BARRISTER CHIJIOKE MADUMERE & ORS V. HON. CHIEF FRED NWOSU & ORS (2009)

BARRISTER CHIJIOKE MADUMERE & ORS V. HON. CHIEF FRED NWOSU & ORS

(2009)LCN/3176(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 31st day of March, 2009

CA/PH/EPT/227/2008 (CONSOLIDAT

RATIO

WHETHER A GROUND OF APPEAL MUST FLOW FROM THE JUDGMENENT OR RULING OF A TRIAL COURT

It is trite law that a ground of Appeal must always have bearing on the salient contents of the judgment or ruling appealed against. The ground of appeal must flow from the judgment or ruling appealed against. Having regarded to the position of the law on this issue it cannot be reasonably argued that ground 5 does not relate to or have a bearing on the judgment of the trial Tribunal. There is nothing wrong with an appellant who couches a ground of appeal that encapsulates his grievance with the judgment. A ground of appeal which complains about an error in law must not necessarily refer to the ipssissima verba or exact words used by court. See NWANKWO V. ECUMENICAL DEV. COOPERATIVE SOCIETY (2007) All FWLR (Pt. 360) 1448. PER SULEIMAN GALADIMA, J.C.A.

DUTY OF COURT: EVALUATION OF EVIDENCE

It is now settled beyond peradventure that evaluation of evidence and the ascription of probative value to such evidence are primary function of a trial Court, which saw, heard and assessed the witnesses. Where a trial Court unquestionably evaluates the evidence and makes findings of fact which are fully supported by the evidence and are not perverse, it is not the business of the appellate Court to substitute its own views for those of the trial Court.

JUSTICES

SULEIMAN GALADIMA Justice of The Court of Appeal of Nigeria

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

Between

BARRISTER CHIJIOKE MADUMERE – CA/PH/EPT/227/2008

AND

INDEPENDENT NATIONAL ELECTORAL COMMISSION & 144 ORS – CA/PH /EPT/227A/2008
(CONSOLIDATED) Appellant(s)

AND

1. HON. CHIEF FRED NWOSU
2. PEOPLES DEMOCRATIC PARTY – CA/PH/EPT/227/2008
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION & 144 ORS

AND

1. HON. CHIEF FRED NWOSU
2. PEOPLES DEMOCRATIC PARTY – CA/PH /EPT/227A/2008
3. BARR. CHIJIOKE MADUMERE
(CONSOLIDATED) Respondent(s)

SULEIMAN GALADIMA, J.C.A. (Delivering the leading judgment): This is an appeal by the 1st Respondent (now the “Appellant”) against the decision of the Abia State Governorship/Legislative Houses Election Tribunal (hereinafter referred to as the Tribunal sitting at Umuahia delivered on 5/2/2008. The Tribunal upturned the return of the Appellant who contested under the platform of the Progressive Peoples Alliance (PPA) as the winner of the election held on 12/4/2007 in respect of the UMUAHIA SOUTH STATE CONSTITUTENCY. The Tribunal below in its judgment held that the 1st Respondent (still 1st Respondent herein) who contested under the platform of the Peoples Democratic Party (PDP) won the majority of lawful votes cast at the said election and ordered his return as the winner of the election.
Aggrieved by the decision of the Tribunal the Appellant has thus appealed to this court. His amended Notice of Appeal contains EIGHT GROUNDS. In compliance with the Practice Directions No.2 of 2007, briefs of argument were filed and exchanged by the parties. The Appellant’s brief dated 30/4/2008 was filed on 2/5/2008. He also filed a Reply brief on 25/5/2008. THREE ISSUES were raised for determination thus:
“(i) whether in the light of issues framed for determination by the Tribunal below, the requisite standard of proof was one beyond reasonable doubt and if so, whether the standard was met or attained having regard to the circumstances (Grounds 1, 2, 4, 5 and 6).
(ii) Whether paragraphs 15 and 49 of First Schedule to the Electoral Act 2006 apply to the petition having regard to the circumstances (Grounds 3 and 7)
(iii) Whether the judgment is not against the weight of evidence (Ground 8.”
The 1st and 2nd Respondent’s Amended brief of argument dated 11/6/2008 was filed on 13/6/2008. THREE ISSUES presented for determination in this appeal are as follows:-
“1: whether the Tribunal was right in its reception and treatment of result forms tendered in evidence and in holding that the Petitioners/Respondents scored majority of lawful votes cast, regard being had to the standard of proof and specific findings of fact made on the issues joined in the pleadings (Grounds 1, 2, 3, 4, 5 and 6).
2. Whether the Tribunal was not right in holding that the application to strike out the petitioners Reply is incompetent and stale (Ground 7).
3. Whether the judgment was against the weight of the evidence led at the Tribunal (Ground 8).”
On the 20th day of January 2008, this appeal came up for hearing. AWA U. KALU SAN, Learned Senior Counsel for the Appellant identified, adopted and relied on the Appellant’s brief of argument and urged us to allow the appeal. On his part, H. BALOGU Esq., Learned Counsel for the 1st and 2nd Respondents, identified, adopted and relied on the Respondent’s brief of argument. He however drew the court’s attention to the preliminary objection which was raised and canvassed on pp. 14-19 of the brief of argument of the 1st and 2nd Respondents. He urged us to sustain the objection or in the alternative dismiss the appeal as lacking in merit.
However, CHIEF IFEANYI IBOKO Esq. who appeared for the 3rd/144th Respondents informed the court that he did not file any brief of argument in this appeal.
I shall first deal with the preliminary objection filed by the 1st and 2nd Respondents, (herein after referred as “Respondents”), it is to the effect that:
“(a) The Appellant (sic) Notice of Appeal is defective and incompetent and ought to be struck out.
(b) Grounds 1, 2, 3, 4, 5, 6 and 7 of the Notice of Appeal is incompetent and ought to be struck out.”
The grounds of the objection have been enumerated as follows:
“1. The appeal is not proper before the court.
2. The Notice of Appeal is incompetent and defective in that the 3rd or 3rd set of Respondents are non-juristic persons or are persons unknown to law. The Honourable Court of Appeal lacks Jurisdiction to entertain this appeal.
3. The Appellant did not join or list all the Parties to the petition as Respondents in his Notice of Appeal.
4. The names and addresses of the persons directly affected by the appeal were not stated as required by law and this defect renders the Notice of Appeal incompetent and thus deprives the Honourable court of
Appeal of the jurisdiction to entertain this appeal.
5. Grounds 1, 2, 3, 4, 5, 6 and 7 of the Appeal are incompetent and ought to be struck out, in that:
(i) GROUND 1
The Issue raised by Ground I was never raised by Appellant in the Tribunal. The Appellant did not object to the tending (sic) of the units result. Ground 1, together with particulars does not disclose any reasonable ground of appeal.
(ii) GROUND 2
None of the five particulars contain the particulars and nature of the misdirection complained of as required by law. Particulars i, ii, iii, iv and v, being clearly argumentative, vague and do not disclose any reasonable ground misdirection, are defective and incompetent.
(iii) GROUND 3
Particulars (i), (ii) and (iv) are defective. They disclose no reasonable or any misdirection and how the finding of the Tribunal on this issue adversely affected the Appellant. Also, particulars I, ii, iii and iv are argumentative and narrative in nature, contrary to the Rules of Court.
(iv) GROUND 4
The particulars in support of this ground did not state the nature of this misdirection by reference to particular passages of the judgment complained of Particulars (ii) of this ground is totally misleading and misrepresents the finding of the Tribunal on this point/issue. Also, particulars (iii) and (iv) are vague and argumentative and offend the Rules of Court.
(v) GROUND 5
The entire GROUND 5 of the appeal does not relate to or arise from any finding or decision of the Tribunal. Also, the particulars in support of ground 5, particularly particulars ii, iii, iv and v, just like ground 5 itself, these particulars do not also flow from ground 5 of the appeal.
(vi) GROUND 6
The issue raised in this ground was not raised by the appellant in the Tribunal; neither did the appellant object to the tendering of the documents. In addition, particulars (i) (ii) and (iii) of this ground are Argumentative and narrative in Nature.
(vii) GROUND 7
The nature of the misdirection was not given in any of the particulars and no references to passages of the Tribunals judgment where the alleged misdirection occurred was mentioned in the particulars.
Additionally, the particulars do not flow from the decision of the Tribunal and the ground itself, also particulars (iii) and (iv) are all argumentative and narrative in nature and do not disclose any misdirection or ground of appeal.”
Now to the consideration of preliminary objection. The first ground of objection is that the Appellant did not join or list all the parties to the petition as Respondents in his Notice of Appeal. Notwithstanding this objection, the Respondents in their Notice of objection and in their brief of argument listed the 3rd Respondent to the appeal as “Independent National Electoral Commissioner (sic) and 144 Ors”. In the Appellant’s brief of argument filed on 2/5/20080 ex-facie the 3rd Respondent is shown to be “Independent National Electoral Commission and 146 Ors.”
Furthermore in the petition filed by the instant Respondents and all other processes to which the petitioners/Respondents subscribed , after listing the 1st Respondent (now the Appellant) the document simply joined “2nd-146” Respondents. I cannot really see the point of complaint being raised here. It is not sustained.
The second ground of objection is that “the Notice of Appeal is incompetent and defective in that the 3rd Respondent or 3rd set of Respondents are non-juristic persons or are unknown to law. It is instructive to note that it is the Respondents who initiated or originated their petition. They determined the parties that were joined ab initio. Hence, if they have discovered that they joined non-juristic persons or parties, then they are admitting that the petition was incompetent from the very beginning. Even then I agree with the learned counsel for the Appellant that it is not contestable that the “Independent National Electoral Commission” is the 3rd Respondent to the petition and to the instant appeal. This court is entitled to take judicial notice of the corporate status of the Respondent and therefore its juristic personality has never been in doubt. I have observed that the Notice of Appeal is at pages 1552-1557 Vol. II of the Record. The Notice is in paragraphs. Paragraph 5 is titled “names and Addresses of the persons. Directly Affected by The Appeal.” Three parties listed under that paragraph are follows:
“(i) The 1st Respondent/Appellant.
(ii) Petitioners/1st and 2nd Respondents.
(iii) 3rd – 147th Respondents”
It is obvious that the parties affected by the appeal have had notice of appeal and have suffered no prejudice whatsoever, nor have they been misled. The petitioners 1st and 2nd Respondents is indicated in the Notice of Appeal as “Chief Fred Nwosu, Umudem Amakama Olokoro, Umuahia South L.G.A. or the Peoples Democratic Party 32 Ojike Street Umuahia”. The Respondents received the Notice of Appeal and have responded in a manner decided and chosen by them. They did not complain about the service of the process or taking steps to set aside the process, they are deemed to be satisfied and cannot complain. I have also taken cognizance of the fact that despite the notice of preliminary objection, the Respondents have formulated three issues for determination and argued these grounds as if there was no objection. The Respondents have not stated clearly that the issues for determination raised by the appellant are inapplicable. Besides, despite their view that ground 1 of the Ground of Appeal did not arise in the Tribunal below, the Respondents have formulated an issue for determination distilled from this ground of appeal. Consequently, they cannot now complain. I need not go further lengthy submission on this point like the parties have done in their respective briefs. I do not found merit on this ground of objection.
Now on the incompetence of grounds 1, 2, 3, 4, 5, 6 and 7 of the Appellants’ grounds of Appeal.
First, the Respondents’ submitted that grounds 1 and 6 are incompetent because the records show that the appellant did not object to the tendering of unit-results as exhibits during hearing. Worst stilt that the Appellants never raised these issues in the appellant’s counsel’s final address. Consequently, the Tribunal was denied opportunity to consider and pronounce on the issues. Proper scrutiny of the record will show the address filed by the Appellant’s counsel at the Tribunal see pp 1384-1398. The Reply of the Respondents who were petitioners is at pp 1399-1491. The Appellant who was the 1st Respondent filed a Reply on points of law. In answer to this ground of objection the Appellant makes some extracts from the record concerning the exhibits before the trial Tribunal, at page 1412 of the record to show that the petitioners founded their case almost entirely on documentary evidence. These documents were copiously pleaded and tendered as exhibits. These were the numerous forms EC8A (I) issued to the petitioners’ agents at the polling units level and the 9 form EC8B (I) issued to the petitioners agents in respect of the 10 wards in Umuahia South L.G.A. except for old Umuahia ward where the petitioners agent were not given a copy. These were the statement of the 1st and 2nd Respondents in their address in reply to argument put forward by the Appellant. Again at page 1495, of the record the appellant in his Reply on points of law contended that 1st Respondent pleaded in paragraph 14 of his Reply that any forms EC8A tendered by the petitioners which contain figures or scores and or endorsement different in character from the original with INEC and or the authentic duplicates returned to the 1st Respondent by his agents, are irregular, manipulated and concocted and thus do not reflect the actual votes cast or scored by the parties at the election. Appellant contended also that 2nd – 146th Respondents in paragraph 14 of their reply also pleaded in a similar manner.
It is therefore noted that Appellant’s address in the trial Tribunal dwelt on the factual and legal shortcomings of the exhibits tendered by the Respondents. The written addresses of all the parties to the petition concentrated on condemning or justifying the documentary exhibits put forth at the Tribunal. Thus ground I of the appeal is simply that the agents who received the units result did not testify contrary to the Supreme Court decision in BUHARI V. OBASANJO (2005) 13 NWLR (pt.941) 1. And ground 6 is challenging the failure of the Tribunal to abide by a procedure provided by law. I agree therefore with the learned counsel for the Appellant that in the con of the proceedings before the Tribunal below, and having regard to the judgment, subject matter of this appeal, grounds 1 and 6 are competent. This court is not bereft of jurisdiction. The grounds do not offend order 6 Rule 2(I) of the extent court of Appeal Rules.
In paragraph 5.07 of the Respondents brief they have attached ground 5 of the grounds of appeal. They gave submitted that the ground does not in any way represent or reflect the holding of the Tribunal. That the Appellant’s counsel invented his own holding quite different from the Tribunal’s holding on which the appellant proceeded to formulate the said ground 5. Here again, a careful examination of the record on page 1520 clearly reveals that the Tribunal was concerned with the issue of whether or not the allegations of criminal conduct in the petitioners, pleading had been established. The Tribunal’s review of the evidence at the trial is at pp 1537; wherein it made several findings in respect of the numerous allegations bordering on criminal conduct. The Tribunal then concluded thus:
“We venture to remark at this stage before we proceed to issue number two that the irregularities discovered in this petition and impunities with which they were perpetrated bears much to be desired in nation’s desire for a free and fair election” (see pp 1537-1538).
The Respondents have relied on the case of ALUBANKUDI V. A-G FEDERATION (2002) 17 NWLR (Pt.796) 338 at 360-3 61. The Court of Appeal held that a party who is dissatisfied with a decision of a court of law or Tribunal expresses his grievance by entering an appeal. That the Notice of Appeal carries the grounds upon which the appeal is founded.
It is trite law that a ground of Appeal must always have bearing on the salient contents of the judgment or ruling appealed against. The ground of appeal must flow from the judgment or ruling appealed against. Having regarded to the position of the law on this issue it cannot be reasonably argued that ground 5 does not relate to or have a bearing on the judgment of the trial Tribunal. There is nothing wrong with an appellant who couches a ground of appeal that encapsulates his grievance with the judgment. A ground of appeal which complains about an error in law must not necessarily refer to the ipssissima verba or exact words used by court. See NWANKWO V. ECUMENICAL DEV. COOPERATIVE SOCIETY (2007) All FWLR (Pt. 360) 1448.
Ground 5 complains of error in law when the Tribunal held that the allegations of electoral malpractices carrying imputation of crimes had been proved beyond reasonable doubt. The Respondent failed to advert their mind to the 1st Issue framed by the trial Tribunal to wit
“Whether the Petitioner/Respondent has proved falsification, vote manipulation wrong entries of votes, vote swapping, recording of unit result and use of forms with multiple serial number that are out of sequence”.
The above issue framed by the Tribunal itself is an acknowledgment that the allegations the petitioners needed to prove are criminal in nature bordering on fraud and forgery. See NWOBODO V. ONOH (1984) AII NLR. 1.
In sum, in view of the foregoing, I must disregard the challenge to the competence of ground 5 of the appeal, and to hold that the ground is valid.
The complaint of the Respondents in the remaining grounds 2, 3, 4 and 7 is that they are not competent because they disclose no reasonable or any misdirection and how the finding of the lower Tribunal on this issue adversely affected the Appellant. Also that particulars (i), (ii), (iii) and (iv) of ground 3 are argumentative and narrative in nature contrary to the Rules of this court. That particular in support of this ground did not state the nature of misdirection by reference to particular passage of the judgment complained of.
A ground of appeal alleging misdirection is distinct from one described as error in law. When an Appellant complains of misdirection the only thing which the authorities indicate as mandatory, is for the appellant to quote verbatim the portion of the judgment in which the misdirection has occurred. A misdirection occurs when the judge misconceives the issues, whether of facts or of law or summarizes the evidence inadequately or incorrectly. See SAKA ATUYAYE & ORS V. EMMANUEL ASHAMU (1987) 1 SC 333 at 357-358; CHIDIAK V. LAGUDA (1964) I NWLR 123 at 125; and Nwadikwe v. Ibekwe (1987) 4 NWLR (Pt.67) 718 at 744. Viewed from this point of law, admittedly, the argument of the Respondents in paragraph 5.08 of their brief is clearly misconceived and inapplicable. For instance the Respondents have stated that:
“Ground of the appellant’s grounds complains of the Tribunals’ finding of voters’ swapping affecting the appellant and the petitioners/Respondents in respect of 28 units in certain wards. The particulars of this ground did not point or state the nature of misdirection by reference to the particular passage of the judgment appealed against.
Again particular (ii) of this ground is totally misleading and misrepresents findings of the Tribunal on this issue and so incompetent. Also particulars (iii) and (iv) are vague and argumentative and as such are defective and incompetent.”
It is curious as it is difficult to fathom how the Respondents can in one breath argue that the particulars of the ground did not point or state the nature of the misdirection and in another breath state that “particular (ii) misrepresent the finding of the Tribunal—“. The Respondents cannot in the circumstance take shelter either under order 6 rule 2 of the Court of Appeal Rule 2007, or in the decision of OKWUMODI v. SOWUNMI (2004) 2 NWLR (Pt. 356) page 1 and a host of other cases relied on in paragraph 5.09 of the Respondents’ brief. This is because of the tenor of the recent decision of the apex court in SOSANYA V. ONADEKO (2005) 8 NWLR (Pt.926) 185. The court held at page 226 thus:
“The decision of Nnaemeka Agu in Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 to the effect that a ground of appeal cannot be an error in law and misdirection at the same time has been watered down or qualified in subsequent decisions of the Supreme Court. The Court would seem to have taken a more liberal view on the issue devoid of any legalism any technicality. In the determination of the strength of grounds of appeal the Supreme Court should not involve itself instinctively and parochially in technicalities or niceties of adjectival law in the interpretation of enabling rules of court. On the contrary, the Supreme Court should exercise the grounds of appeal to see whether they satisfy the rules governing framing of grounds. Once a ground of appeal is succinctly concluded, specifically described and avoids vagueness, repetition, narration or argument to the extent that the averse party knows the exact complaint against the judgment, the Supreme Court will be very reluctant to strike it out on mere technicality of not following rules of court.”

The main function for filing a ground of appeal is to let the Respondent know the complaint of the appellant has against the judgment of the court. “Particulars” as the term implies, serves one purpose. It is to particularize in specific and clear language the grounds of appeal. Where the grounds are not explicit, particulars will fill in the gaps and space by stating specific details. See GABRIEL IWUOHA & ORS V NIGERIAN POSTAL SERVICES LTD & ANOR 14 NSQR (Pt.1) 253 at 275.
The Court should be guided by these emphatic terms and statements of the apex court in deciding the competence of a ground of appeal to see whether the Respondent knows or understands the complaint against the judgment of the court. It is interesting to note that the Respondents have filed their brief of argument. One is not left in doubt that the Respondents understand the nature of complaints of the Appellants against the judgment of the Tribunal below.
In the final result, in view of the foregoing, objections ought to be dismissed and it is hereby dismissed.
Having resolved the preliminary issues raised by the 1st and 2nd Respondents in favour of the Appellant, I shall now consider the main issues raised by the parties for determination of this appeal. The issues formulated by the Appellant and the Respondents are similar save that those of the Respondents are aptly couched and presented for ease of resolution and determination of the appeal.
On ISSUES 1 and 3 the Appellant has canvassed and contended in his brief that the lower Tribunal was wrong in its reception and treatment of results forms tendered in evidence and in holding that the Respondents scored majority of lawful votes cast regards being had to the standard of proof and the specific findings of fact made on the issues joined in the pleadings. It is argued that considering the two issues framed by the Tribunal to determine the appeal, the said issues underscore the nature of petition, that it was anchored fully on allegations of criminality. This is because of the matters pleaded in the petition. It is further submitted that in line with the decision in BUHARI v. OBASANJO (2005) 13 NWLR (Pt.941) p. 151 at p.152, the trial Tribunal ought not have paid any heed to the unit results on which it placed reliance to invalidate the return of the appellant as winner of the election now in question. It is submitted that if that is the case this Court will have no difficulty in holding that the bulk of the polling unit results relied upon by the Respondents and the Tribunal were tendered by persons other than the agents as observed by the Supreme Court in the decision of BUHARI V. OBASANJO (supra). That should this court agree with this submission the irresistible conclusion would be that the petitioners would not have placed any result before the Tribunal and there would be no evidence to weigh against the evidence of RW1, RW2, RW3 and RW4. It is submitted, in the alternative that, if this court upholds the view that that the standard of proof ought to have been beyond reasonable doubt, then the Respondents would not bear burden of proving any fact in issue. The petition would then be defeated by two factors viz: the presumption of regularity in favour of the result declared by the Independent National Electoral Commission (INEC) and the woeful failure to prove the petition beyond reasonable doubt. Furthermore that when the standard of proof is one beyond reasonable doubt, then the petitioner bears the onus to introduce all the evidence required for the proof of all relevant facts.
On ISSUES 1 and 3 it is submitted by the Respondents that the trial Tribunal must make a determination based on the election results tendered before it as to which of the candidates scored the majority of the lawful votes cast at the election. It is submitted that the Respondents in their petition founded their case mainly on documentary evidence that is the numerous forms EC8A (I) and EC8B (I) issued to the petitioner’s agents which were duly pleaded and tendered in evidence. On how a case which is centered on both documentary evidence and oral testimonies ought to be approached, reliance was placed on the supreme cases of FASHANU V. ADEKOYA (1974) 6 SC 83 at 91-930 and KIMDEY & ORS. V. MILITARY GOVERNOR OF GONGOLA STATE & ORS (1988) I.N.S.C.C.827 at 85.
It is further submitted that it was in respect of the copies of the election result forms issued to the Respondents through their agents and tendered as Exhibits B-L series EC8A (I) and M-M8 series EC8B (I) and the Appellant’s and INEC copies of the results tendered as, Exhibits GG-RR series and exhibits V. V.AG series respectively that the Tribunal made findings of fact which have not been appealed against. That the election results forms tendered by the Petitioners/Respondents were legally admissible evidence that Tribunal correctly admitted them as statutory forms and thereby ascribing probative value to them and the testimonies of the parties.
It was finally submitted that there were ample material upon which the Tribunal arrived at its findings and conclusions thus rendering it inappropriate for this court to interfere. It is conceded that in matters of documentary evidence the appellate court is in as good a position as the trial court to make findings; and that if this court embarks on examination of the documents which the Tribunal examined, the court will irresistibly arrive at the conclusion that the efforts and findings of the Tribunal were clearly unassailable. On the question of the party who secured the majority of votes cast in the election, the Respondents submit that the result pleaded by the Respondents in forms EC8A (I) series are the lawful votes cast which when correctly added up for each polling unit in each ward the Respondents ought to have been returned as duly elected. That the Tribunal having seen all the Exhibits tendered by the parties and scores in all the forms EC8A (I) and EC8B (I) tendered as Exhibits B-M and N-Z, GG-SS and W-AG series (supra) and having ascribed probative value and weight to the exhibits, the Tribunal was in a position to do some arithmetical calculation of the scores as indeed the Tribunal did of the valid votes recorded in form EC8A (I). Reliance was placed on cases of NWOBODO V. ONOH (1934) AII NLR P.1 at 25 and TERAB V. LAWAN (1992) 3 NWLR (pt. 23t) p. 59 at pp 590-593, OKAFOR V. ANYAKORA unreported CA/E/EPT/10/2004 delivered 4/5/2004, ADUN V OSUNDE (2003) 1 NWLR (pt.841) 645; and SAM v. EKPELU (2000) 1 NWLR (pt. 642) 582 at 596.
On the argument of the Appellant that the results in exhibits B to M series are not authentic as no single polling agent was called upon to identify any of the said results, Respondent submits that the principle of law arising from the decision in HASHIDU V. GOJE (2003) 15 NWLR (Pt.843) 352 at 336 and restated by Pats-Acholonu J.S.C. (of Blessed memory) in BUHARI V. OBASANJO 13 NWLR (Pt.941) S.C. I at 315 was based on the state of pleading of the parties in those petitions. The principle of law is to the effect that the evidence adduced in support of allegations challenging the figures or scores of candidates at an election should come direct from officers who were in the field where the votes were counted and collated and that the evidence from persons who received the figures or scores from officers who were present at the counting or collation of the votes is inadmissible as hear-say evidence.
It is submitted that in the instant case, unlike BUHARI V. OBASANJO (supra) and HASHIDU V. GOJE (supra) where the complaints were centered on rigging or irregularity at the polling units, the Respondents, complaint was not centered on rigging or irregularity at the polling unit as shown in their petition, but their complaint is centered on what happened at the ward and Local Government Collation Centers just as was the (one of NWOBODO V. ONOH) (supra), where the Supreme Court allowed the results of the poll entered at the polling booths tendered through a witness of the petitioner in respect of 96 polling stations.
On the issue of whether the judgment of the lower Tribunal was against the weight of the evidence led at the Tribunal, the Respondents, have submitted that the evidence adduced by the Respondents at the trial, manifestly outweigh the evidence produced by the Appellant.
ISSUE (ii) which is taken last is whether paragraphs 15 and, 49 of First Schedule to the Electoral Act 2006 apply to the petition, having regard to the circumstances. The Appellant in his Reply Brief stated that he relies on the argument in support of ground 7.9, the grounds of appeal. It is contended that paragraphs 6.39, 6.40 and 6.41 of the Respondent’s brief are incorrect. The Respondents have submitted in paragraph 6.39 of their brief that the Appellant who was aware of the existence of the incompetence or offensive paragraphs of the petition cannot now raise the issue of the purported incompetence of petitioner’s Reply on the basis of which the trial of the petition was conducted and in which the appellant fully participated. Appellant having chosen to remain quiet, he must be deemed to have waived any right to raise any such issue. That the provisions of paragraphs 49(1) (2) (3) (4) AND (5) OF THE First Schedule to the Electoral Act, prevent the Appellant from raising any such issue at this time. In support of this submission, the following cases were cited: BAYO V. NJIDA (2004) 8 NWLR (Pt.876) p, 544 at 815-81; AJADI V. AJIBOLA (2006) 14 NWLR (Pt.999) p.1 at 124-127. It is further contended by the Respondents that the contention of the Appellant that the Petitioners’ Reply offended paragraph 16 of the First Schedule to the Electoral Act is untenable because the Appellant did not satisfy the requirements of paragraph 49 of the first schedule.
Arguing further learned counsel for the Respondents, assuming but without conceding that the petitioners Reply contain any new facts, he submitted that those facts are consistent with the averments in the petition and are facts necessary to show that the defence raised by the Appellant in his Reply to the petition is not sustainable. He cited in reliance the case of APEPOJU V. AWODUYILEMT (1999) 5 NWLR (Pt.603) p.3 64.
I shall now consider the three issues raised by the parties in determining the appeal. It is to be noted that from outset I have noted that the issues formulated by the Respondents are aptly set out for the just determination of the Appeal. Issues (i) and (iii) are considered together herein. ISSUE (I) covers grounds 1, 2, 3, 4, 5 and 6 of the Appellants grounds of Appeal. These grounds complain about the reception and treatment of result forms tendered in evidence and the Tribunal holding that the 1st Respondent scored the majority of lawful votes cast regard being had to the standard of proof and the specific findings of fact made on the issues joined in the pleadings. In resolving this issue the Tribunal must make a determination based on the election results tendered before it as to which of the candidates secured the majority of the lawful votes cast at the election. Hence section 147 (2) of the Electoral Act 2006 provides thus:
“If a Tribunal or Court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election the election Tribunal or the court as the case may be shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfies the requirement of the Constitution and this Act.”
From the foregoing it is therefore imperative that the Tribunal must scrutinize the entire result forms tendered by all the parties including the version of the result tendered by 3rd Respondent (INEC). It is then the Tribunal can determine the validity of the election results placed before it and make definite pronouncements on the election results. I will set out the relevant portions of the pleadings of the parties to the petition. The 1st and 2nd Respondents in paragraph 12 of the petition pleaded thus:
“For petitioners state that at the end of voting and recording of votes at the polling stations, the 10 ward collation/Returning officers did not appear or failed to collate the polling booths/units result forms EC8A(I)s at the designated ward collation centers as required by law. As a result of this fact, all the presiding officers had to move to the Umuahia South L.C.A/State Constituency. Collation Centre at the Council Headquarters at Ubakala where the ward results were collated by a few collation officers. Copies of the ward results as collated in forms EC8B (I) were issued to party agents including your petitioners agent. The ward result EC8B (I) for old Umuahia was not issued to your petitioners agent—”
In paragraph 15 the 1st and 2nd Respondents also pleaded the following facts:
“Your petitioner say that the votes cast at the various polling stations and the wards were not correctly or properly collated or added up by the 2nd – 5th Respondents or in fact by some of the Respondents with the result that unlawful votes were added to the 1st Respondent which made the 1st Respondent to obtain an apparent colourable majority over the 1st petitioner whereas in truth and in fact your petitioners had the majority of the lawful votes cast at the election in Umuahia South L.G.A./state constituency on 14th April 2007 —”
Relying mainly on Forms EC8A (I)s and EC8 B(1)s given to their agents the 1st and 2nd Respondents further pleaded in paragraph 19 as follows:
“Your petitioners say that for the purpose of this petition the petitioners rely mainly on forms EC8 A (I) s given to their agents in addition to Forms EC8 B (I)s for the 9 out of the 10 wards in Umuahia South L.G.A. which forms were also given to your petitioners agents….”
In paragraph 19 of the petitioners Reply to the Respondents Reply, the following facts were pleaded:
“In further answer to paragraph 12 of the 1st and 2nd-146th Respondents Replies, the petitioners state as follows:
In some wards and polling stations the Respondent used result forms with the same serial number or result forms with strange serial numbers . …And in other cases, figures or scores of the 1st Respondent were unlawfully increased added or altered in favour of the 1st Respondent. Most of the suspicious result forms submitted by the Respondents were not signed by party agents, including agents of PPA”.
Now to the 1st Respondent’s pleadings: on the second to the last page of the 1st Respondents Reply it was averred as follows:
“1st Respondent avers that there were very minor mathematical errors in the computation of ward result i.e. in the summing up of the results in Omaegwa, Ochioche Ahiaukwu ‘II’ and Ubakala ‘A’ wards …”
Again the 1st Respondent (Appellant herein) in paragraph 1 & 3 of his Reply pleads thus:
“1st Respondent contends that the said mathematical errors arising out of computation of the unit result did not affect the overall result of the constituency. 1st Respondent contends and shall urge the Tribunal to hold that even if the 1st Petitioners actual/lawful score of 7698 were to be deducted from the Respondent of 9258 (as announced or computed by INEC) 1st Respondent would still score higher than the 1st petitioner with margin 1570 votes. Equally even if the difference of 10 votes between the actual figures of 9268 scored by the 1st Respondent and the earlier figure/score of 7674 announced for the 1st Respondent by INEC were to be deducted and added to the 1st Petitioners actual score of 7998, the 1st Respondent would still win with a margin of 1550 votes —-”
By the 1st Respondent’s own pleading and showing in the petition, and trial the figures or scores used by the 3rd Respondent (INEC) to declare the Appellant as duly elected was an incorrect figures or scores. The summary of facts relied upon in the petition herein by the petitioners are that the petitioners scored majority of the lawful votes cast in the election in that by the actual lawful votes cast in the polling unit as contained in forms EC8A (I) issued to party agents the petitioners clearly scored majority of the lawful votes. Their complaint is that the 3rd Respondent manipulated the electoral process and unduly returned the Appellant as the winner of the election. That the 2nd – 146th Respondents to the petition made wrong entries of votes of the Appellant using different methods which included outright change of figures on the face of the election result forms’ wrong entries of figures in favour of the
Appellant, swapping of the petitioners’ votes with that of the Appellant; rewriting of unit results with the result sheets with serial numbers that are either the same or which have been used in different polling units or which are completely out of sequence; and in correct or improper collation of results. The Respondents therefore rely on the fact that when the votes wrongfully credited to the Appellant are discountenanced for invalidity and irregularity the Respondents actually scored majority of the lawful votes cast. The Appellant and other Respondents, on the other hand pleaded that there was due election and that copies of the election result forms at the respective polling units and ward collation centres were given to party agents. It is instructive to note and it is common ground that election was duly conducted and that the presiding officers issued copies of the polling units results to party agents. But while the Petitioners/Respondents pleaded that 9 copies out of the 10 ward result forms were given to their agents, the Appellant pleaded that his agents were given the result forms for all the 10 wards.
In the Respondents/ Brief of argument from paragraphs 4.08-4.11, the various documents tendered at the pre-hearing session, without objection and by consent of the parties were meticulously listed. It is also common ground that the petitioners tendered all forms EC8A (I) s and EC8B (I)s as Exhibits B-c series and MMB series respectively. These were given to the agents of the petitioners in respect of the election. The 3rd Respondent (INEC) upon notice produced certified true copies of forms EC8A (I)s EC8B (I), EC8C (I) and EC8E (I). These documents which had earlier also been listed were tendered as exhibits N-Y series, Z1-z series AA and BB series respectively. The PW1, Deputy Superintendent of police, the officer in charge of the Criminal intelligence Bureau (CIB) Umuahia, produced 8 copies of forms EC8 B(I) issued to the police by the ward collation officers in Umuahia South L.G.A. His written deposition was admitted as Exhibit AK, while the eight forms EC8 B (I) were admitted in evidence as Exhibits AL, AL1-AL7. It is not in dispute that a comparison of the result tendered by the police show agreement with the corresponding results tendered by the Respondents.
Thus from the relevant portions of the pleadings of the parties to the petition and the number of documents admitted in evidence, no doubt, the Respondents founded their case mainly on documentary evidence issued to their agents. Where, as in the instant case, election results have been put in evidence by the parties, their authenticity may only be ascertained by examination of the results and not necessarily by oral testimony of witnesses. The passage extracted from the case of FASHANU V. ADEKOYE (1974) 6 SC 83 at 91-92 by the Respondents is quite apt on this point of law.
The passage runs thus:
“Undoubtedly the duty of the court in ascertaining the truth in these circumstances is all but easy and the test of logic may be as availing to one of the parties as it is to the other. But there was produced by both parties a large body of documentary evidence containing a number of letters and other documents and as argued by learned counsel for the plaintiff it is the duly of the learned trial Judge in a case like the present to test the probability of the case of either of the parties by reference to relevant documents which represent evidence of some mere or less permanent or perhaps unassailable character.”
Also in KIMDEY & ORs v. MILITARY GOVERNOR OF GONGOLA STATE & ORS (1988) 1 NSCC 827, at 851 the Supreme Court per Nnaemeka Agu J.S.C. held that:
“No doubt the legal preposition that where there is oral as well as documentary evidence documentary evidence should be used as a hanger from which to assess oral testimony is a sound one.”
The question now is whether the lower Tribunal was properly guided and arrived at a proper decision. Aware of this fact the lower Tribunal at page 1515 of the record acknowledged that:
“The issue of falsification raised by learned counsel admittedly is the fulcrum of all pervading allegations of the petitioners: use of inconsistent serial numbers, mutilations, and alterations, re-writing of election unit results and ward results, voter’s manipulation, votes swapping.”
It is for these far-reaching allegations the Tribunal proceeded on the premise that proof of falsification is precedent to the subsequent establishment or proof of other allegations. It is for this reason paragraph 23(1) and (2) of the petition was reproduced in extenso. The paragraph reads:
“Accordingly the petitioners shall lead evidence to show.
i. That any Forms EC8A (i), which contains figures or scores and endorsements different in character, form or substances (sic) from that contained in duplicate copies of Form EC8A (I) s given to party agents by the presiding officers in the course of the election at the polling station/units are irregular, fake, altered and fabricated and not the true lawful valid and genuine results/votes cast at the election.
ii. Any Form EC8B (I)s which contain summary of ward results which is inconsistent with or different from scores of candidate in the Form EC8 A(I)s given to party agents at the booth polling stations and Form EC8 B(II)s given to your petitioner’s agent at the Umuahia south Local Government Area collation Center, minor error or misconception, excepted is false, altered and fabricated and not true reflection of the lawful and genuine result of the election.”
Learned Counsel for the Appellant has contended in the brief of argument that what emerges from the foregoing paragraph of the pleadings is a complete misconception of the nature of the said pleadings in respect of the proceedings in connection with the requisite standard of proof which is beyond reasonable doubt. I do not agree with the learned counsel that paragraph 23(1) and (2) of the petition reproduced herein, which the Tribunal set out as serving as background for the allegations are predicated on nothing but conjecture. It is my respectful view that the Tribunal did not seem to anchor its findings of falsification on results produced by the Respondents to the petitioner only; rather the examination of the unit results tendered by the petitioners, the Appellant and the certified true copy of the result from the INEC relied upon by the petitioners. The Tribunal then came to the conclusion that “the Respondents unit result are false result and will not be used in the determination of the ward and constituency results and the declaration by the 2nd – 145th Respondents were not based on the authentic and valid unit results of the election for all the parties in the election” I do not agree with the learned counsel for the Appellant that the impression created by the foregoing findings of the Tribunal is that the Respondents to the petition were required to prove the genuineness of the results they tendered rather than the petitioners proving the falsity of the results they tendered. After the foregoing exercise, to my mind the lower Tribunal correctly came to these following findings at page 1533 of its Judgment:
“The units’ results tendered by the petitioners were all signed by between 4-6 party agents of the various political parities – AA, AC, ANPP, APGA, PPA, PDP, and CPP. Etc, but the majority of the unit results of the Respondents were not so signed whereas the votes scored by all the parties and their candidates are the same and remains unaltered in the petitioners set of unit results and the Respondent’s set of units results, the votes scored by the peoples Democratic party (PDP) and its candidate altered, changed, re-written or swapped in favour of Progressive Peoples Alliance (PPA) and vice versa in some unit results tendered by the Respondents. We found evidence of the use of unit results in the same ward or different words with those of the Respondents in the majority and some also in the petitioners, version as stated by the Respondent’s counsel.”
The Tribunal also found that whereas the actual scores of all the political parties were correctly reflected in all the ward 9 results (Exhibit M-M8) tendered by the petitioners and tally in all particulars with Exhibit AC-AL tendered by the police and also tally with Respondents corresponding Exhibits SS, SS1-SS9 and AL-AL9, the scores for Progressive Peoples Alliance (PPA) only were altered or written or changed or increased in the Respondent’s version of ward results. It was also found that the petitioners’ version of ward results in wards 2, 3, 4, 5, 7, 8 and g did not tally in respect of the votes scored by Progressive peoples Alliance (PPA) but the scores of other political parties were correctly reflected. That the exception was in wards where there was vote swapping in favour of Progressive Peoples Alliance (PPA). It was also the finding of the trial Tribunal that the ward results for ward 1, 6, and 10 were not manipulated and same in all the versions and that upon the examination of the 28 unit results in Nsirimo, Ubakara, A&B, Amakama, Ahiaukwu, I and II Omaegwu and Ezeleke/Ogbodiukwu if found that the votes/scores of all the political parties tally tendered by the Petitioner correspond with the corresponding entry in the unit results relied upon by the Respondents, the exception being where there was vote swapping affecting the votes of Progressive Peoples Alliance (PPA) and peoples Democratic Party (PDP) in Respondent’s results.
Another far-reaching finding by the Tribunal was in respect of the Ubakala B ward. It found in this ward that the unit results for unit 010, 012 and 005 with serial number 0114836, 0114838 and 0114841 are the petitioners Exhibits L1 LII and L4 which correspond with the scores in respect of 1st Respondents’ Exhibits KK, KK4 and KK12 but in Respondent’s version the votes for Progressive Peoples Alliance (PPA) were altered or changed or re-written or increased. It is found that in all the other unit results so affected or figures for all the parties remain same in petitioner’s unit results but in the Respondents version the votes for Progressive Peoples Alliance were increased white those of other parties remain as found in petitioners version of the unit results.
In summary from the above findings of fact the Tribunal came to the conclusions that whereas there were no vote manipulations in petitioner’s unit’s results, there were vote manipulations in the Respondents, version of 28 unit results in question. That the petitioners have proved falsification of results by the Respondents as in the petition required by law and finally that the petitioner have proved that their own version of unit results are correct, authentic or genuine results of generated from the conduct of the election and that the unit results tendered by the Respondents are incorrect not genuine and false the just exception being INEC’s certified true copies relied upon by the petitioner which were not disputed by the petitioners.
It is instructive to note that the findings of fact which resulted in the foregoing conclusions were not appealed against by the Appellant therein. The lower Tribunal in ascribing probative value to the documents tendered before it by the parties it also resorted to admissible testimonies of witnesses of the parties and thereby made specific findings of fact. From the foregoing findings, the decision of the trial Tribunal that evidence by the Appellant to establish that his own version of the result was true and authentic result of the election were duty evaluated and found incorrect not genuine and false. This case revolves itself entirely on facts elicited from the documents and witnesses. The appeal clearly attacks the findings of these facts, it would seem to me. The Appellants complaining or challenging the judgment in an area which is only narrowly open to this court. The appraisal of evidence and ascription of probative value to such evidence is the primary duty of a trial Tribunal or court. This court would only interfere with the performance of that exercise if the trial Tribunal or court had made imperfect or improper use of opportunities of hearing and seeing witnesses or has drawn wrong conclusions from accepted or proved facts which those fact do not support or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support. What this court can do is to find out whether there is evidence which the trial court arrived at its findings. Once such evidence is manifest on the record, this court cannot interfere. See FASHANU v. ADEKOYA (supra) at p. 91; EBBA v. OGODO (1934) SCNLR 372; AGBONIFO V. AIWEROBA (1988) 1 NWLR (Pt.70) 325. I agree with the learned counsel for the Respondents that there were ample material upon which the Tribunal arrived at its findings and conclusions. It is not appropriate in the circumstance for this court to interfere with such findings and conclusions. The Respondents pleaded the result in forms EC8 A (I) of lawful votes cast which when correctly added up for each polling unit in each ward based on the lawful votes cast in the election, the 1st Respondent ought to have been returned as duly elected.
At the risk of repetition, if only to make this point clearer. That the Respondents had in the petition given 2nd-144th Respondents Notice to produce at the hearing Forms EC8 A (I) and EC8 B (I) for all the potting stations/units wards used in the House of Assembly elections. They also pleaded that the Appellant was not duly elected or returned by a majority of lawful votes cast at the election. At the trial the result in forms EC8A (I) and EC8B (I) given to the Respondents polling agents were tendered as Exhibits B-M series. These covered each polling unit in each of the Umuahia South Constituency. Also tendered by INEC on Notice to produce is Exhibits N-2. No doubt the trial Tribunal had before it exhibits in Forms EC8A (I) and EC8B (I) of all polling units and wards in Umuahia South L.G.A. The Tribunal having seen the exhibits tendered by the parties and also the scores in all the series of forms tendered as Exhibits in evidence and having ascribed probative value and weights to them the trial Tribunal was in a position to embark on arithmetical calculation of the scores. In NWOBODO v. ONOH (1984) AII NLR p.1 at 25- Bello CJN of Blessed memory, stated the position succinctly when he said:
“The journey was from the polling stations through the collation processes to the returning officer. With the necessary data available to wit the results at the polling stations, not only the trial court and the Federal Court but any reasonable person with a little effort in arithmetical calculation may determine the correct result of the election. Polling stations are the concrete foundation on which the pyramid of an election process is built.”
See also TERAB V. LAWAN (1992) 3 NWLR (Pt.231) 59 at 590-5930 where it was held that forms EC8A and EC8B are regarded as statutory forms and not ordinary documents, and must be adequately considered once tendered by a petitioner. There was no way the court would close its eyes to such evidence duly admitted in evidence and relevant to the issue. See further ADUN V. OSUNDE (2003) 1 NWLR (Pt.847) 643 at 673, OKAFOR v. ANYAKORA unreported CA/E/EPT/2004 of 4/5/20074.
On the argument that the results in Exhibits B-M series are not authentic as no single agent was called to identify the said results I observe that the facts of this case are distinguishable from those in HASHIDU V. GOJE (2003) 15 NWLR (pt. 843) p.352 at 386 and restated by PATS ACHOLONU J.S.C. (of blessed memory) in BUHARI v. OBASANJO (2005) 13 NWLR (Pt. 941) 1 at 315. Unlike these two cases; where the complaints were centered on rigging and irregularity at the polling units, in the instant case the Respondents’ complaint in the main, was not centered on rigging or irregularity at the polling unit as clearly shown in the petition; but on what happened at the ward and Local Government Collation Centres, just as was the case in NWOBODO V. ONOH (supra) where it was held:
“From the outset, it may be appreciated that in an election petition such as the one on appeal where the complaint does not allege any rigging or irregularity of the election at the polling booths but the issue is based on falsification of the results in the course of collation process, the dispute which calls for the proof of the issue beyond reasonable doubt cannot in the main be adjudicated on the credibility of the witnesses from their demeanour.”
In the circumstance of that case as in the instant case, the Supreme Court allowed the results of the poll entered at the polling booths tendered through a witness of the petitioner in respect of 96 polling stations. See further NDUKWE OKAFOR V. AGWU OBINO & ANOR (1978) 9-10 S.C. and BAYO V. NJIDDA (2004) 8 NWLR (Pt. 876) 544 at 622. The relevant documents pleaded by the Respondents in their petition and admitted by the trial Tribunal speak for themselves. The contents are clear, not hidden. Election petition is sui generis. It is neither a criminal case nor a civil claim. In respect of the burden of proof, however, section 135, 136 and 137, 138, 142 of the Evidence Act Cap. 112, Laws of the Federation apply. It is true that by our law there is a higher standard of proof in criminal cases than in civil claims, but this is subject to the qualification that there is no absolute standard in either case. While in criminal cases, the charge must be proved beyond reasonable doubt so it is in civil cases, where the standard of proof is by a preponderance of probability. Where the allegation of crime is separable from the petition and if after such separation the petition could still be sustained, the burden of proof is on the balance of probabilities, see NWOBODO v. ONOH (supra). If the allegation of crime is not made against a Respondent who was declared the winner of the election, to my mind, the standard of proof between the petitioner and such Respondent is on a balance of probabilities. The bottom line, however, is that each case must be decided on its peculiar facts and circumstance. The law is clearly stated in NWOBODO V. ONOH (supra) thus:
“The issue of crime must arise on the pleadings. The subsection only applies where there is a specific allegation of a crime, so that its commission can properly be said to be a basis or foundation of the claim or defence as the case may be: IKOKU V. OBI (1962) 1 All NLR Vol. 1 (Pt. 1) 194 at 99 and JULES v. AJANI (1930) 5-7 SC at 116.
However, where a plaintiff makes an allegation of a crime in his pleadings but nevertheless can succeed in his claim without proving the crime, it cannot then be said that the alleged crime was a fact in issue or directly in issue: NWANKWERE V. ADEWUNMI (supra).”
In the instant case, assuming that there are paragraphs of the petition dealing with allegation of commission of crime, the petition is severable or separable and can sustain the claim that led to the findings of the trial Tribunal. See NWOBODO V. AJASIN (1984) NSCC 81; (9S4) All NLR 116, 117. The trial Tribunal in the instant case found that from the exhibits available before it the petitioner 1st Respondent herein scored the majority of lawful and valid votes cast at the election consistent with his prayers. In the determination of the scores the Tribunal used the results at the base to determine the valid votes scored by each candidate in the election and was therefore in a position to determine who was duly elected by majority of lawful votes cast. It is clear from the petition that the issue is between the petitioners and the Appellant. There was no allegation made against the Appellant based on falsification. The issues were clearly joined between the Respondents and the Appellant on who scored the majority of lawful votes which requires proof on a balance of probabilities. The Appellant from his pleadings relied solely on the results of INEC and he stands straight or falls down with the INEC results. The prescription of regularity of INEC result was displaced or rebutted by the petitioner in some of the results tendered by INEC for several reasons as observed and canvassed at the trial. With the sets of documents tendered by the parties the trial Tribunal accepted or rejected some as credible and incredible respectively. It arrived at first and proper decision in the circumstance r cannot disturb its findings.
In view of the foregoing I have resolved issues 1 and 3 in favour of the Respondents. Issue 2 is whether the Tribunal was right in holding that the Appellant’s application to strike out the petitioners’ Reply is incompetent and stale.
Paragraph 49(2) of the First schedule to the Electoral Act 2006 provides:
“An application to set aside an election petition or a proceeding resulting there from for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.”
It is not disputed that the Respondents filed their reply to the Appellant’s Reply on 25/6/2007 which process was duly served on the Appellant before the commencement of hearing of the petition by the Tribunal. Appellant was fully aware of the existence of the Respondents’ Reply. The issue of incompetence or offensive paragraphs of the petitioners Reply (if any) cannot now be raised on the basis of which trial of the petition was conducted and in which the appellant fully participated. By keeping silent, the Appellant must be deemed to have waived his right to raise any such issue. See paragraph 49(1)(2) (3) (4) and particularly (5) which provides:
“An objection challenging the regularity or competence of an election petition shall be heard and determined before any further steps in the proceeding of the objection is brought immediately the defect on the face of the election is noticed.” See BAYO v. NJIDDA (supra); AJADI v. AJIBOLA (supra); NGIGE V. OBI (supra) and ADEPOJU V. AWODU YILEMU (1999) 5 NWLR (pt.603) p.364. The learned counsel for the Appellant has contended that the challenge of the appellants does not relate to the competence of the petition or any proceeding resulting there from but it relates merely to the Reply of the petitioners Reply filed by the Appellant to the petition. That the petitioners raise new issues not arising from the reply of the respondents to the petition and the Tribunal relied on such evidence on the issue for its judgment; unquestionably therefore, the appellants suffered a miscarriage of justice. I do not think so. The Petitioners/Respondents’ Reply of 25 paragraphs contain facts consistent with averments in the petition and are facts necessary to show that the defence raised by the Appellant in his Reply to the petition is not sustainable. It is my respectful view that the Tribunal was right when it held that the application to strike out the petitioners Reply or any paragraph thereof was not timeously ventilated and it was incompetent and stale. It is for this reason I resolve this issue against the Appellant.
In the final result and for all the reasons given above this appeal fails and ought to be dismissed. It is accordingly hereby dismissed. The judgment of the lower Tribunal dated 5/2/2009 which upturned the return of the Appellant as winner of the election held on
14/4/2007, in respect of Umuahia South State Constituency is hereby affirmed. The 1st Respondent herein (HON. CHIEF CHIDI FRED NWOSU) is declared duly elected for UMUAHIA SOUTH STATE CONSTITUENCY, OF ABIA STATE. There shall be costs of N50, 000 against the Appellant but in favour of the 1st Respondent.

SULEIMAN GALADIMA, J.C.A.: This is an appeal by the 1st – 144th Appellants who were the Respondents in the trial Tribunal against the decision of the National Assembly/Governorship and Legislative Houses Election Tribunal holding at Umuahia Abia State, delivered on 5th February 2008. The Tribunal set aside the return of 3rd Respondent (then 1st Respondent) as the duly elected candidate for Umuahia South State Constituency and declaring the 1st Respondent (then the Petitioner) as the duly elected candidate. The 1st Respondent contested the election on 14/4/2007 for the said Umuahia South State Constituency under the platform of the 2nd Respondent herein, Peoples Democratic Party (PDP). The 3rd Respondent contested the said election on the platform of the Progressive Peoples Alliance (PPA) and was declared the winner by the Appellants.
Dissatisfied with the outcome of the election 1st Respondent filed his petition at the said Election petition Tribunal on 12/5/2007 challenging the return of the 3rd Respondent by the Appellants.
The judgment of the Tribunal was delivered on 5/2/2008 wherein it set aside the declaration and returns of the 3rd Respondent and declared the 1st Respondent duly elected.
Dissatisfied with the judgment of the Tribunal Appellants filed their Notice containing 7 grounds appeal. On 21/1/2009 upon an application brought before this court to amend the said Notice by deleting the words “and 142 ORS” appearing after “Independent National Electoral Commission 1st Appellant’s and substituting therewith the names of the parties listed “2nd-146th Respondents “as 2nd-145th Appellants’ to the petition. The proposed Amended Notice of Appeal was deemed validly filed and served on 20/1/2009. In compliance with the Practice Directions No.2 of 2007, briefs of argument were filed and exchanged by the parties. The Appellant’s brief of argument dated 21/4/2003 and filed on 2/5/2008 was deemed filed on 15/9/2008 upon a motion for extension to file and serve same. The Appellants’ FOUR ISSUES were formulated for determination thus:
“(1) Whether the Tribunal was not in error when it relied on the 28 itemized units in arriving at its decision (Ground 1 & 2).
(ii) Whether the Tribunal was not in error when it held that the allegation of falsification, alteration, mutilation and vote manipulation were proved warranting re-computation of scores of 1st and 3rd Respondents (Ground 3).
(iii) Whether the Tribunal was not in error when it held that the Respondents in the circumstances of the petition ought to comply with paragraphs 15 of the 1st Schedule to the Electoral Act 2006 (Ground 6).
(iv) Whether the judgment was not against the weight of evidence (Grounds 4, 5 and 7).
The Appellants also filed a Reply Brief. This was deemed validity filed on 20/1/2009.
The 1st and 2nd Respondents’ amended Brief of argument dated 11/6/2008 was filed on 22/10/2008. THREE ISSUES were presented for determination of the appeal as follows:
“1. Whether the Tribunal was right in its reception and treatment of result forms tendered in evidence and in holding that the Petitioners/Respondents scored majority of lawful votes cast, regard being had to standard of proof and the specific findings of fact made on the issues joined in the pleadings (Grounds 1, 2, 3, 4, 5, and 6).
2. Whether the Tribunal was not right in holding that the application to strike out the petitioners reply is incompetent and stale. (Ground 6).
3. Whether the judgment was against the weight of the evidence led at the Tribunal (Ground 7).
On the 20th day of January, 2008, this appeal was heard. Chief IFEANYI IBOKO Esq. learned counsel for the Appellants identified, adopted and retied on the Appellant’s brief of argument and the Reply brief deemed filed 20/1/2009. He urged us to allow the appeal. On his part CHIEF HENRY BALOGUN Esq. learned counsel for the 1st and 2nd Respondents identified the amended brief of the Respondents adopted and retied on same. He however drew our attention to the preliminary objections which was raised and canvassed on pp 14-18 of the brief of argument of the 1st and 2nd Respondents. He urged us to sustain the objections or in the alternative dismiss the appeal for lacking in merit. However, C.O. NWAOGU Esq. who appears for the 3rd Respondent did not file any brief of argument in this appeal. Preliminary objections were filed. The first is to the effect that:
“(a) The Appeal is not proper before the court.
(b) The Appellant Notice of Appeal is defective and incompetent and ought to be struck out.
(c) In the Notice bf Appeal the Appellant did not list all the names of the Appellants, or all the names of the persons who entered & appeal.
(d) The “145 ors “listed on the Notice of Appeal are non-juristic persons and/or persons known to law.
(e) Ground 1, 2, 3, 4, 5 and 6 of the Notice or Appeal is incompetent and ought to be struck out.
The second set of preliminary objection is to the competence of the Notice of Appeal and Grounds of Appeal. It is that the appeal of the Appellant is grossly incompetent and an abuse of court process in that Independent National Electoral Commission (INEC) as a body that conducted the questioned election has no right of Appeal, but should remain neutral and independent. That they can only defend a petition and respond to an Appeal. Reliance was placed on the case of CHRIS NGIGE & ors v. PETER OBI & ors. (2006) 14 NWLR (Pt. 999) 1 at 224; HARUNA v. MODIBBO (2004) 16 NWLR (Pt. 900) 487 at 569 and 573 and unreported, Consolidated Appeals CA/PH/EPT/157/08 and CA/PH/EPT/157A/2008: EMEKA STANLEY V. BARR. UZOMA NKEM ABONTA & ORS.
In the first set of objection, the Respondents were unmindful of the fact that this court had granted the Appellant’s application for amendment of their Notice of Appeal on 20/1/2009. In the original Notice of appeal the Appellants were described as “Independent National Electoral Commission & 142 Ors.” By their own showing in the affidavit in support of the motion for amendment of the Notice of Appeal, the Respondents counsel regretted his mistake of simply describing the Appellant as above. The names of the parties directly affected by the appeal were now stated in the proposed amended Notice of Appeal annexed to that application as Exhibit ‘B’.
Now on the competence or otherwise of grounds 1, 2, 3, 4, 5 and 6 of the Appellants’ grounds of appeal.
First, in respect of the preliminary objection raised in paragraph 4 of sub-paragraph 5.11 at page 18 of the Respondents’ brief, in this paragraph it is urged on this court to strike out paragraph 7 of the Appellants’ ground of appeal which is omnibus; which the apex court has held can sustain an appeal even if the other grounds are incompetent. See ABISI V. EKWEALOR (1993) 6 NWLR (Pt. 302) 643 at666. Also reliance on Order 6 rule 3 of the Court of Appeal Rules 2007 is misapplication of that Rule. It talks of about vagueness of ground of appeal.
In paragraphs 5.05 pages 15 of the 1st and 2nd Respondents’ Brief it was argued that grounds 1, 2, 3, 4, 5 and 6 from which the Appellants distilled their issues for determination are incompetent and ought to be struck out. The reason being that particulars (i)-(v) of the Appellants’ grounds are misleading, erroneous, argumentative and conclusive in nature. My careful perusal of these grounds does not suggest so. They are competent. The contention that particular (v) of the ground relates to an issue that cannot be raised by the Appellants for the first time on appeal is misconceived. The Appellants raised the issue in paragraph 14 of their Reply to the petition. See their Reply at page 432 of the record. This ground of objection ought to fail. The Appellants’ Notice of Appeal complies with the provisions of Order 6 rule 2(I) of the Court of Appeal Rules 2007. The Appellants stated the grounds of their appeal. In paragraph 2 it was clearly stated that the complaint is against the whole decision. In paragraph 4 the relief sought by the Appellant is clearly stated. In paragraph 5 the names and addresses of the persons affected by the appeal are stated. 1st and 2nd Respondents were wrong in their argument that the particulars (i and ii) of ground 2 of Appellant grounds of Appeal misrepresented the finding and decision of the trial Tribunal. The Particulars are not misleading or erroneous. So also ground 5 and their particulars are not erroneous but represent the reasoning and findings of the trial Tribunal.
The misdirection complained about in ground 4 of the Appellants’ ground of Appeal is the positive act of the Tribunal in using 28 itemized unit results which were stigmatized in computation of final result. If so, the Appellant herein is therefore competent. They ought to be heard on this ground.
Finally I am of the view that grounds 1, 2, 3, 4, 5, 6 and 7 indeed all the grounds of appeal are competent. They are not argumentative, narrative or general in terms. They disclose reasonable grounds of appeal and conform to the provision of Order 6 Rule 2(3) (supra). A ground of appeal is not supposed to be of any particular form, once it gives sufficient notice to the Respondent of the nature of the complaint of the Appellant it is taken as competent and arguable.
The Respondents are not complaining that they were misled by not been given sufficient notice of the complaint of the Appellants’ grounds of appeal. Indeed, 1st and 2nd Respondent has responded elaborately to all the issues raised by the Appellants in their brief of argument.
It is instructive to note that the 1st and 2nd Respondents also filed an additional Notice of preliminary objection on 13/10/008. It is argued that this appeal is grossly incompetent and an abuse of the court process in that the Independent National Electoral Commission (INEC) as a body that conducted the said election has no right of appeal but should remain neutral and independent. That they can only defend a petition and respond to an appeal. The dictum of this court in DR. CHRIS NGIGE & ORS V. MR. PETER OBI & ORS (supra) was relied on.
I am mindful of the fact that the Independent National Electoral Commission (INEC) is a statutory body with constitution powers to conduct election in Nigeria. It discharges its constitutional powers vested by the constitution, as an umpire in the conduct of election. INEC should not place itself in a position where imputation may be concluded that it supports one party or the other. However, the right to appeal, as provided by 246(I) of the 1999 Constitution, from the decision of the National Assembly/Governorship and Legislative Houses Election Tribunal to the Court of Appeal is a constitutional right: See KHALIL V. YAR’ADUA (2003) 16 NWLR (Pt. 847) 446 at 488, BONI HARUNA & ORS V.ADAMU MODIBBO & ANOR. (2004) 16 NWLR (Pt.900) 487 at 573.
However, where it is clearly established that the Tribunal made a definite finding or conclusion in law which affects INEC and its officials directly then they may well seek redress by filing an appeal against that decision or finding. See further unreported decisions of this court in the consolidated Appeals Nos. CA/PH/EPT/157/2008 and CA/PH/EP/157A/2008 delivered 14/7/2008. CA/PH/EPT/197D/08 and CA/PH/EPT/197D/08 and the case of EKECHI V. OKAH (1993) 1 NWLR (Pt.267), 34 at 45. However on moral grounds INEC as umpire should not descend into arena of the battle between parties. Its constitutional right to appeal should be sparingly exercised, in the interest of our electoral process and confidence reposed on it by the public. It should remain as neutral as possible. In the instant case INEC has not abused the process of court in appealing against the decision of the trial Tribunal on 5/2/2008 which affected its conduct and officials. In view of this the preliminary objection therefore fails and it is dismissed.
It has been said time and again that the election matter being sui generis, special in nature, undue technicalities should be avoided to allow the determination of the issues raised by the parties on merit. Unnecessary objection should not be raised so as to delay or frustrate the hearing of election cases. This court shall always look at the substance rather than the form, so as to achieve the set goal of justice and fairness in determining appeals brought before it.
In view of the foregoing I find that all the preliminary objections raised by the 1st and 2nd Respondents as lacking in merit and are overruled and dismissed.
Having resolved the preliminary issues in favour of the Appellants, I shall now proceed to consider the main issues raised by the parties for the determination of this appeal. It is my respectful view that the issues formulated by the Respondents are quite apt and are adequately presented before this court for the determination of the appeal. However I shall consider issues 1 and 3 of the Respondents which is similar to Appellants issues (i), (ii), and (iii) taken together.
The Appellants submission on their first issue is that the finding of tribunal was perverse because it was not supported by the evidence before the tribunal. That the trial Tribunal is not allowed in law to summersault having earlier found the 28 unit result tendered and relied upon by the 1st Respondent were not on the list of result sheets issued by the Appellant, the logical step is for the Tribunal to disregard the 28 unit’s results and to attach no probative value to them. Reliance was placed on the cases of FLASH FIXED ODDS V. AKATUGA (2001) 9 NWLR (Pt.717) 46 at 63; CHIEF SERGEANT C AWUSE v. DR. PETER ODILI & ORS (2005) 16 NWLR (Pt.952) 416 at pp.509-510 and HASHIDU V. GOJE (2003) 15 NWLR (Pt.843) 352 at393. That the agents who returned Exhibits B, B1-BII to L, L1-L4 to the petitioner were not called to testify, the said Exhibits are therefore documentary hearsay and that the Tribunal was in error when it relied on them to find for the 1st Respondent.
On the second issue, it is contended by the Appellants that the Tribunal was in error when it held that the allegation of falsification, alteration, mutilations and votes manipulation were proved warranting re-computation of the scores of the 1st and 3rd Respondents. That the stigmatization of the result tendered by the 3rd Respondent and finding of the Tribunal that “the result tendered by the Appellants are incorrect, not genuine and false” is perverse.
On issue (iii), the Appellant submitted that the Tribunal erred in law by holding that in the circumstances of the petition the Respondents ought to have complied with the provisions of paragraph 15 of the 1st schedule to the Electoral Act 2006.
ISSUES (1) and (3) presented for determination of the appeal by the 1st and 2nd Respondents cover Appellant’s issues (i) and (ii)’ and (iii). The two issues arise from grounds 1, 2, 3, 4, 5, and 6. The Respondents have contended that they founded their case mainly on documentary evidence that is on to say that their case was founded on forms EC8 A(I) and EC8 B(I) issued to the Respondents’ agents which were pleaded and tendered in evidence. It is submitted by the Respondents that where election results have been put in evidence by the parties their authenticity may only be ascertained by oral testimony of witnesses. They rely on FASHANU V. ADEKOYE (1974) 6 SC 83 at 91-92. KIMDEY & ORS. V. MILITARY GOVERNOR OF GONGOLA STATE & ORS (1988) l NSCC 827 at 85.
It is further submitted that it was in respect of the copies of the election result forms issued to the Respondents through their agents and tendered as Exhibits B-L, series EC8A (I) and M-M8 series EC8B (I) and the Appellant’s and INEC’s copies of the results tendered as Exhibits GG-RR series and exhibits VV-AG series respectively that the Tribunal made findings of fact which have not been appealed against. In their further submission learned counsel for the Respondents. That the election result forms tendered by the Respondents were legally admissible in evidence and that the trial Tribunal correctly admitted them as statutory forms and thereby ascribing probative value.
That because there was ample evidence upon which the Tribunal arrived at its findings this court ought not to interfere. On the question of the candidate who scored the majority of votes cast at the election, the Respondents submitted that the result pleaded by them in form EC8A (I) series are lawful votes cast and when correctly added up for each polling unit in each ward, the Respondents ought to have been returned as duly elected- Reliance was placed on the cases of TERAB V. LAWAN (1992) 3 NWLR (Pt.231) p.59 at pp.590-593; NWOBODO V. ONOH (1984) AII NLR. p.1 ay 25 and lastly ADUN V. OSUNDE (2003) 1 NWLR (Pt. 841) 643 where the court held that that the trial Tribunal has a right and indeed a duty to compute or collate where there has been inflation and or wrong computation. See further SAM V. EKPELU (2000) 1 NWLR (Pt.642) p.582 at 586.
On the Appellant’s issue (ii) and Respondents issue (iv) that is issue of whether the judgment of the lower Tribunal was against the weight of evidence led at the said Tribunal, the Respondents have submitted that the evidence adduced by the Respondents at the trial manifestly out weigh the evidence produced by the Appellants.
On the Appellant’s issue (iii) which is subsumed in Respondents issue (i), the question is whether the Tribunal was right in its views on the necessity for compliance with paragraph 15 of the 1st Schedule to the Electoral Act 2006. Appellants have submitted that the Trial Tribunal erred in law by holding that in the circumstances of the petition the Respondents ought to have complied with the provisions of paragraph 15. The Respondents on the other hand contented that the Tribunal was right in its views on the necessity for compliance with the paragraph 15 of the 1st Schedule to the Electoral Act (supra). That Appellants did not raise the issue at the lower Tribunal and it is not shown that they were affected by the view held by the Tribunal. That in any case the Tribunal based its decision on the point canvassed by the Appellants in paragraph 6.03 and 6.04 of their brief. It is submitted that the Tribunal duly examined all the exhibits and invalidated all such exhibits which the Tribunal found to be in valid.
Having carefully summarized the argument, and submissions of the respective counsel, I now intend to first consider the issues nominated for determination of the appeal. Appellants’ issues (i), (ii) and (iii), are subsumed in issue 1 of the Respondents’ brief of argument. They are considered together. Appellants issue (i) covers grounds 1, 2, 3, 4, 5, and 7 of the Appellants’ grounds of Appeal. These grounds complain of the reception and treatment of result forms tendered in evidence and the reliance on them by the Tribunal to found for the 1st Respondent that he scored the majority of lawful votes cast regard being had to the standard of proof and the specific findings of fact made on the issue joined in the pleadings. It is noted that the trial Tribunal based its decision on the results of the election tendered before it so as to determine which of the candidates scored the majority of the lawful votes cast at the election. Undoubtedly, the Tribunal must have been guided by section 147(2) of the Electoral Act 2006, which provides thus:
“If a Tribunal or court determines that a candidate who was returned as elected was not validly elected or the ground that he did not score the majority of valid votes cast at the election Tribunal or the court as the case may be shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfies the requirement of the constitution and this Act.”
From the foregoing the Tribunal is duty bound to scrutinize the entire forms tendered by alt the parties including the version of resulted tendered by the 1st Appellant (INEC) herein. The trial Tribunal will then determine the validity of the election result placed before it and arrive at definite findings on the result. In doing this the consideration of the relevant paragraphs of the pleadings of the parties to the petition is necessary. I have for this purpose set them out in the following order. The 1st and 2nd Respondents in paragraph 12 of the petition pleaded thus:
“Your petitioners state that at the end of voting and recording of votes at the polling stations, the 10 ward Collation/Returning Officers did not appear or failed to collate the polling booths/units result forms EC8 A(I)s at the designated ward collation centers as required by law. As a result of this fact, all the presiding officers had to move to the Umuahia South L.G.A./State Constituency. Collation Centre at the Council Headquarters at Ubakala where the ward results were collated by a few Collation Officers. Copies of the ward results as collated in forms EC8B (I) were issued to party agents including your petitioners agent. The ward result EC8B (I) for old Umuahia was not issued to your petitioners agent —”
In paragraph 15 the 1st and 2nd Respondents also pleaded the following facts:
“Your petitioner say that the votes cast at the various polling stations and the wards were not correctly or properly collated or added up by the 2nd – 5th Respondents or in fact by some of the Respondents with the result that unlawful votes were added to the 1st Respondent which made the 1st Respondent to obtain an apparent colourable majority over the 1st petitioner whereas in truth and in fact your petitioners had the majority of the lawful votes cast at the election in Umuahia South L.G.A./State Constituency on 14th April 2007 – – -”
Relying mainly on Forms EC8 A (I)s and EC8 B (I)s given to their agents the 1st and 2nd Respondents pleaded in paragraph 19 as follows:
“Your petitioners say that for the purpose of this petition the petitioners rely mainly on forms EC8 a(i)s given to their agents in addition to Forms EC8 B(I)s for the 9 out of the 10 wards in Umuahia South L.G.A. which forms were also given to your petitioners agents . . . .”
In paragraph 19 of the petitioners reply to the Respondents Reply, 19 following facts were pleaded:
“In further answer to paragraph 12 of the 1st and 2nd-146th Respondents Replies, the petitioners state as follows:
(i) In some wards and polling stations the Respondents used result forms with the same serial number or result forms with strange serial numbers. …and in other cases, figures or scores of the 1st Respondent were unlawfully increased added or altered in favour of the 1st Respondent. Most of the suspicious result forms submitted by the Respondents were not signed by party agents, including agents of PPA”.
Now to the 1st Respondent’s (3rd Respondent herein) pleadings: on the second to the last page of the 1st Respondents Reply it was averred as follows:
“1st Respondent avers that there were very minor errors in the computation of ward result i.e. in the summing up of the results in Omaegwa, Ochioche Ahiaukwu ‘II’ and Ubakala ‘A’ wards …”
Again the 1st Respondent in paragraph 1 & 3 of his Reply pleads thus:
“1st Respondent contends that the said mathematical errors arising out of computation of the unit result did not affect the overall result of the constituency. 1st Respondent contends and shall urge the Tribunal to hold that even if the 1st Petitioners actual/lawful score of 7698 were to be deducted from the Respondent of 9258 (as announced or computed by INEC) 1st Respondent would still score higher than the 1st Petitioner with margin 1570 votes. Equally even if the difference of 10 votes between the actual figures of 9268 scored by the 1st Respondent and the earlier figure/score of 7674 announced for the 1st Respondent by INEC were to be deducted and added to the 1st Petitioners actual score of 7698, the 1st Respondent would still win with a margin of 1550 votes—”
By his showing the 1st Respondent (3rd Respondent herein) in his own pleadings contended that the figures or scores used by the 1st Appellant (INEC) to declare the 1st Petitioner as duly elected was incorrect figures or scores. The summary facts relied upon in the petition herein by the petitioners are that the petitioners scored majority of the lawful votes cast in the election in that by the actual lawful votes cast in the polling unit as -contained in forms EC8 A(I) issued to party agents the petitioners clearly scored majority of lawful votes.
Their complaint is that the 1st Appellant manipulated the electoral process and unduly returned the 3rd Respondent as the winner of the election. That the 2nd-146th (Appellants herein) to the petition made wrong entries of votes of the 3rd Respondent herein using different methods which included outright change of figures on the face of the election result forms wrong entries of figures in favour of the 3rd Respondent, swapping of the petitioners’ votes with that of the 3rd Respondent, rewriting of unit results with the result sheets with serial numbers that are either the same or which have been used in different polling units or which are completely out of sequence. The Respondents in the petition therefore rely on the fact that when the votes wrongfully credited to the 3rd Respondent herein) Appellant are discountenanced for invalidity and irregularity the Respondents actually scored majority of the lawful votes cast.
The Appellants and other Respondents, on the other hand pleaded that there was due election and that copies of the election result forms at the respective polling units and ward collation centres were given to party agents. However, it is instructive to note and it is common ground that election was duly conducted and that the presiding officers issued copies of the polling units results to party agents. White the petitioners pleaded that 9 copies out of 10 wards result forms were given to their agents, the Appellant pleaded that his agents were given the result forms for all the 10 wards.
In the amended Brief of 1st and 2nd Respondents, from paragraphs 4.08 – 4.11 the various documents tendered at the pre-hearing session, without objection and by consent of the parties were meticulously listed and enumerated. It is also common ground that the petitioners at the trial Tribunal tendered all forms EC8A (I)s and EC8B (I) series as Exhibits B-C and M-MB respectively. These Exhibits were given to the agents of the petitioners in respect of the election. The 1st Appellant (INEC) herein, upon notice, produced certified true copies of forms EC8 A(I)s EC8 (B) I, EC8 C(I) and EC8 E(I). The documents which had earlier been listed were tendered as Exhibits N-Y, Z1 -Z, AA and BB series respectively. The PW1, a police officer in charge of C.I.B. Umuahia produced 8 copies of forms EC8 B(I) issued to the police by the ward collation officers in Umuahia South L.G.A. His written deposition was admitted as Exhibit A/L, while the eight forms EC8B (I) were admitted in Evidence as Exhibits AL, AL1-AL7. A comparison of the result tendered by the police show agreement with the corresponding results tendered by the Respondents. No doubt, the petitioners’ founded their case mainly on documentary evidence issued to their agents. Where the election results have been put in evidence by the parties, as in the case at hand, their authenticity may only be ascertained by examination of the results and not necessarily by oral testimony of witnesses. See FASHANU V. ADEKOYE (1974) 6 SC 83 at 91-92, and KIMDEY & ORS. V. MILITARY GOVERNOR OF GONGOLA STATE & ORS. (1988) 1 NSCC 927 at 851.
It is for these far reaching allegations that the Tribunal preceded on the premise that proof of falsification are precedent to the subsequent establishment or proof of other allegations. See paragraphs 23(l) and (2) of the petition which reads:
“Accordingly the petitioners shall lead evidence to show.
i. That any Forms EC8A (i), which contains figures or scores and endorsements different in character, form or substances (sic) from that contained in duplicate copies of Form EC8 A (I) s given to party agents by the presiding officers in the course of the election at the polling station/units are irregular, fake, altered and fabricated and not the true lawful valid and genuine results/votes cast at the election.
ii. Any Form EC8B (I)s which contain summary of ward results which is inconsistent with or different from scores of candidate in the Form EC8 A(I)s given to party agents at the booth polling stations and Form EC8 B(II)s given to your petitioner’s agent at the Umuahia south Local Government Area collation center, minor error or misconception, excepted is false, altered and fabricated and not true reflection of the lawful and genuine result of the election.”
Learned Counsel for the Appellant has contended in the brief of argument that what emerges from the foregoing paragraph of the pleadings is a complete misconception of the nature of the said pleadings in respect of the ‘proceedings in connection with the requisite standard of proof which is beyond reasonable doubt. I do not agree with the learned counsel that paragraph 23(1) and (2) of the petition reproduced herein; which the Tribunal set out as serving as background for the allegations are predicated on nothing but conjecture. It is my respectful view that the Tribunal did not seem to anchor its findings of falsification on results produced by the Respondents only; rather the examination of the unit results tendered by the petitioners/Respondents, the Appellant and the certified true copy of the result from the INEC relied upon by the petitioners. The Tribunal then came to the conclusion that “the Respondents unit result are false result and will not be used in the determination of the ward and constituency results and the declaration by the 2nd – 145th Respondents were not based on the authentic and valid unit results of the election for all the parties in the election.” I do not agree with the learned counsel for the Appellant that the impression created by the foregoing findings of the Tribunal is that the Respondents were required to prove the genuineness of the results they tendered rather than the petitioners proving the falsity of the results they tendered. After the foregoing exercise, to my mind the lower Tribunal correctly came to these following findings at page 1533 of its Judgment:
“The units’ results tendered by the petitioners were all signed by between 4-G party agents of the various political parities – AA, AC, ANPP, APGA, PPA, PDP, and CPP. Etc, but the majority of the unit results of the Respondents were not so signed whereas the votes scored by all the parties and their candidates are the same and remains unaltered in the petitioners set of unit results and the Respondent’s set of units results, the votes scored by the Peoples Democratic Party (PDP) and its candidate altered, changed, re-written or swapped in favour of Progressive Peoples Alliance (PPA) and vice versa in some unit results tendered by the Respondents. We found evidence of the use of unit results in the same ward or different words with those of the Respondents in the majority and some also in the petitioners’ version as stated by the Respondent’s counsel.”
The Tribunal also ‘found that whereas the actual scores of all the political parties were correctly reflected in all the ward 9 results (Exhibit M-M8) tendered by the petitioners and tally in all particulars with Exhibit AC-AL tendered by the police and also tally with Respondents corresponding Exhibits SS, SS1-SS9 and AL-AL9, the scores for Progressive Peoples Alliance (PPA) only were altered or written or changed or increased in the Respondent’s version of ward results. It was also found that the petitioners’ version of ward results in wards 2, 3, 4, 5, 7, 8 and 9 did not tally in respect of the votes scored by Progressive Peoples Alliance (PPA) but the scores of other political parties were correctly reflected. That the exception was in wards where there was vote swapping in favour of Progressive Peoples Alliance (PPA). It was also the finding of the trial Tribunal that the ward results for ward 1, 6, and 10 were not manipulated and same in all ‘the versions and that upon the examination of the 28 unit results in Nsirimo, Ubakala, A&B, Amakama, Ahiaukwu I and II Omaegwu and Ezeleke/Ogbodiukwu we found that the votes/scores of all the political parties tally tendered by the Petitioners correspond with the corresponding entry in the unit results relied upon by the Respondents, the exception being where there was Alliance (PPA) and Peoples Democratic Party (PDP) in Respondent’s results.
Another far-reaching finding by the Tribunal was in respect of the Ubakala B ward. It found in this ward that the unit results for unit 010, 012 and 005 with serial numbers 0114836, 0114838 and 0114841 are the petitioners Exhibits La LII and L4which correspond in scores in respect of 1st Respondents Exhibits KK, KK4 and KK12 but in Respondent’s version the votes for Progressive Peoples Alliance (PPA) were altered or changed or re-written or increased. It is found that in all the other unit results so affected or figures for all the parties remain same in petitioner’s unit results but in the Respondents version the votes for Progressive Peoples Alliance were increased while those of other parties remain as found in petitioner’s version of the unit results.
In summary from the above findings of fact the Tribunal came to the conclusions that whereas there were no vote manipulations in petitioners units, results, there were vote manipulations in the Respondents version of 28 unit results in question. That the petitioners have proved falsification of results by the Respondents as required by law and finally that the petitioner have proved that their own version of unit results are correct, authentic or genuine results of generated from the conduct of the election and that the unit results tendered by the Respondents are incorrect not genuine and false, the just exception being INEC’s certified true copies relied upon by the petitioner which were not disputed by the petitioners.
It is instructive to note that the findings of fact which resulted in the foregoing conclusions were not appealed against by the 3rd Respondent, therein. The lower Tribunal in ascribing probative value to the documents tendered before it by the parties it also resorted to admissible testimonies of witnesses of the parties and thereby made specific findings of fact.
From the foregoing findings of the decision of the trial Tribunal that evidence by the 3rd Respondent herein to establish that his own version of the result was true and authentic result of the election were duty evaluated and found incorrect not genuine and false. This case resolves itself entirely on facts elicited from the documents and witnesses. The appeal clearly attacks the findings of these facts, it would seem to me. The Appellant’s complaining or challenging the judgment in an area which is only narrowly open to this court. The appraisal of evidence and ascription of probative value to such evidence is the primary duty of a trial Tribunal or court. This court would only interfere with the performance of that exercise if the trial Tribunal or court had made imperfect or improper use of opportunities of hearing and seeing witnesses or has drawn wrong conclusions from accepted or proved facts which those fact do not support or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support. What this court can do is to find out whether there is evidence which the trial court arrived at its findings. Once such evidence is manifest on the record, this court cannot interfere. See FASHANU v. ADEKOYA (supra) at p. 91; EBBA v. OGODO (1984) SCNLR 372; AGBONIFE V. AIWEROBA (1988) 1 NWLR (Pt.700) 325. I agree with the learned counsel for the Respondents that there were ample material upon which the Tribunal arrived at its findings and conclusions. It is not appropriate in the circumstance for this court to interfere with such findings and conclusions. The Respondents pleaded the result in forms EC8 A (I) of lawful votes cast which when correctly added up for each polling unit in each ward based on the lawful votes cast in the election the 1st Respondent ought to have been returned as duly elected.
At the risk of repetition, if only to make this point clearer, that the Respondents herein had in the petition given 2nd-144th Respondents in the petition Notice to produce at the hearing Forms EC8A (I) and EC8B (I) for all the polling stations/units wards used in the House of Assembly elections. They also pleaded that the 3rd Respondent herein was not duly elected or returned by a majority of lawful votes cast at the election. At the trial the result in forms EC8A (I) and EC8B (I) given to the Respondents polling agents were tendered as Exhibits B-M series. These covered each polling unit in each of the Umuahia South Constituency. Also tendered by INEC on Notice to produce is Exhibits NZ. No doubt the trial Tribunal had before it exhibits in Forms EC8A (I) and EC8B (I) of all polling units and wards in Umuahia South L.G.A. The Tribunal having seen the exhibits tendered by the parties and also the scores in all the series of forms tendered as Exhibits in evidence and having ascribed probative value and weights to them the trial Tribunal was in a position to embark on arithmetical calculation of the scores. In NWOBODO V. ONOH (1934) All NLR p.1 at25- Bello CJN of Blessed memory, stated the position succinctly when he said:
“The journey was from the polling stations through the collation processes to the returning officer. With the necessary data available to wit the results at the polling stations, not only the trial court and the Federal Court but any reasonable person with a little effort in arithmetical calculation may determine the correct result of the election. Polling stations are the concrete foundation on which the pyramid of an election process is built.”
See also TERAB V. LAWAN (1992) 3 NWLR (Pt.231) 59 at 590-593, where it was held that forms EC8A and EC8B are regarded as statutory forms and not ordinary documents, and must be adequately considered once tendered by a petitioner. There was no way the court would close its eyes to such evidence duly admitted in evidence and relevant to the issue. See further ADUN V. OSUNDE (2003) 1 NWI R (Pt.847) 643 at 673, OKAFOR V. ANYAKORA unreported CA/E/EPT/2004 of 4/5/20074.
On the argument that the results in Exhibits B-M series are not authentic as no single agent was called to identify the said results I observe that the facts of this case are distinguishable from those in HASHIDU V. GOJE (2003) 15 NWLR (Pt. 843) p. 352 at 386 and restated by PATS ACHOLONU J.S.C. (of blessed memory) in BUHARI V. OBASANJO (2005) 13 NWLR (Pt.941) 1 at 315. Unlike these two cases; where the complaints were centered on rigging and irregularity at the polling units, in the instant case the Respondents’ complaint in the main, was not centered on rigging or irregularity at the polling unit as clearly shown in the petition; but on what happened at the ward and Local Government Collation Centres, just as was the case of NWOBODO V. ONOH (supra) where it was held:
“From the outset, it may be appreciated that in an election petition such as the one on appeal where the complaint does not allege any rigging or irregularity of the election at the polling booths but the issue is based on falsification of the results in the course of collation process, the dispute which calls for the proof of the issue beyond reasonable doubt cannot in the main Be adjudicated on the credibility of the witnesses from their demeanour.”
In the circumstance of that case as in the instant case, the Supreme Court allowed the results of the poll entered at the polling booths tendered through a witness of the petitioner in respect of 96 polling stations. See further NDUKWE OKAFOR V. AGWU OBINO & ANOR (1975) 9-10 S.C. and BAYO V. NJIDDA (2004) 8 NWLR (Pt.876) 544 at 622. The relevant documents pleaded by the Respondents in their petition and admitted by the trial Tribunal speak for themselves. The contents are clear, not hidden. Election petition is sui generis. It is neither a criminal case nor a civil claim. In respect of the burden of proof, however, section 135, 136 and 137, 138, 142 of the Evidence Act Cap. 112, Laws of the Federation apply. It is true that by our law there is a higher standard of proof in criminal cases than in civil claims, but this is subject to the qualification that there is no absolute standard in either case. While in criminal cases, the charge must be proved beyond reasonable doubt, but in civil cases, where the standard of proof is by a preponderance of probability. Where the allegation of crime is separable from the petition and if after such separation the petition could still be sustained, the burden of proof is on the balance of probabilities, see NWOBODO V. ONOH (supra). If the allegation of crime is not made against a Respondent who was declared the winner of the election to my mind, the standard of proof between the petitioner and such Respondent is on a balance of probabilities. The bottom line, however, is that each case must be decided on its peculiar facts and circumstances. The law is clearly stated in NWOBODO V. ONOH (supra) thus:
“The issue of a crime must arise on the pleadings. The subsection only applies where there is a specific allegation of a crime, so that its commission can properly be said to be basis or foundation of the claim or defence as the case may be: IKOKU v. OBI (1962) 1 AII NLR Vol. 1 pt 1 194 at 99 and JULES v. AJANI (1980) 5-7 SC at 116.
However, where a plaintiff makes an allegation of a crime in his pleadings but nevertheless can succeed in his claim without proving the crime, it cannot then be said that the alleged crime was a fact in issue or directly in issue: NWANKWERE V. ADEWUNMI (supra).”
In the instant case, assuming that there are paragraphs of the petition dealing with allegation of commission of crime, the petition is severable or separable and can sustain the claim that led to the findings of the trial Tribunal. See NWOBODO V. AJASIN (1984) NSCC 81; (9S4) All NLR 116, 117. The trial Tribunal in the instant case found that from the exhibits available before it the petitioner 1st Respondent herein scored the majority of lawful and valid votes cast at the election consistent with his prayers. In the determination of the scores the Tribunal used the results at the base to determine the valid votes scored by each candidate in the election and was therefore in a position to determine who was duly elected by majority of lawful votes cast. It is clear from the petition that the issue is between the petitioners and the 3rd Respondent herein. There was no allegation made against him based on falsification. The issues were clearly joined between the Petitioners and the 3rd Respondent here on who scored the majority of lawful votes which is proof on a balance of probabilities. The Appellant from his pleadings relied solely on the results of INEC and he stands straight or falls down with the INEC results. The prescription of regularity or INEC result displaced or rebutted by the petitioner in some of results tendered by INEC for several reasons as observed and canvassed at the trial. With the sets of documents tendered by the parties the trial Tribunal accepted or rejected some as credible and incredible respectively. It arrived at first and proper decision in the circumstance I cannot disturb its findings.
In view of the foregoing I have resolved issues (i), (ii), (iv) of the Appellants and (i) of the Respondents taken together in favour of the Respondents. Now issue (iii) of the appellant and issue two of the Respondents. This relates to complaint in Appellant’s ground 6 of the appeal. That the lower Tribunal erred in law when it held that the Respondents did not comply with the provisions of paragraph 15 of the 1st Schedule to the Electoral Act 2006. It provides:
“When a petitioner claims the seat alleging that he had the highest number of valid votes cast at the election the party defending the election or return at the election shall set out clearly in his reply particulars of the votes if any which he objects to and reason for his objection against such votes showing how he intends to prove at the hearing that the petitioner is not entitled to succeed.”
I do not agree with learned counsel for the 1st and 2nd Respondents herein that Appellants as Respondents to the petition did not reject or object to the votes. They did.
I am of the respectful view that the Tribunal was right in its decision on the necessity for compliance with paragraph 15 of the 1st Schedule to the Electoral Act 2006. The Appellants did not raise the issue at the Tribunal. They have not shown in any way how they were affected by the view held by the trial Tribunal.
The Tribunal duly examined alt the exhibits and validated all such exhibits which it found to be valid and came to its final decision. I have no reason to disturb such finding.
In the light of foregoing reasons I consider that this appeal fails and ought to be dismissed. It is accordingly dismissed. The judgment of the lower Tribunal dated 5/2/2008 which upturned the return of the 3rd Respondent (herein in this appeal) as the winner of the election of 14/4/2007 in respect of Umuahia South Constituency is hereby affirmed. The 1st Respondent herein in this appeal (HON. CHIEF CHIDI FRED NWOSU) is declared duly elected for UMUAHIA SOUTH STATE CONSTITUENCY OF ABIA STATE.
I award no costs. Each party to bear costs of prosecuting this appeal.

M.L. GARBA, J.C.A.: I have read the read judgment in draft, written by my learned brother Galadima, JCA. His lordship has fully considered the germaine issues that called for determination in two appeals and I agree with the conclusions reached thereon by him.
For the reasons so admirably set out in the lead judgment which I adopt, I dismiss the appeal No. ca/ph/22708 and affirm the decision of the lower Tribunal with the costs of N50, 000.00 in favour of the 1st Respondent.
The appeal No- CA/PH/227A/08 is also demonsratably devoid of merit for all the reasons stated in the lead judgment and I in consequence dismiss it. I affirm the decision of the Lower Tribunal.

TIJJANI ABDULLAHI, J.C.A.: I have had a preview of the judgments of my learned brother, Galadima, JCA, just delivered. His Lordship has thoroughly and meticulously thrashed out all the issues that call for our determination in these appeals. I entirely agree with the lead judgments in the two consolidated appeals. However for emphasis I add a few words.
(1) APPEAL NO. CA/PH/EPT/227/2008
This is an appeal by the Appellant who was the 2nd Respondent in the Tribunal against the decision of the National Assembly/Governorship and Legislative Houses Election Tribunal Holden at Umuahia delivered on 5th February, 2008 wherein the Tribunal granted the reliefs sought in the petition instituted by the 1st and 2nd Respondents herein and set aside the election of the 3rd Respondent.
Being dissatisfied with the decision of the Tribunal, the Appellant filed Notice and Grounds of Appeal containing 8 grounds. Three issues were distilled from the said grounds.
It is instructive to note from the onset that the election results forms tendered by the Petitioners/Respondents were legally I admissible evidence which were correctly admitted and acted upon by the Tribunal being statutory forms as was decided in the case of Terab v Lawan (1992) 3 NWLR (Pt. 231) p. 590.
As can be gleaned from the records, the trial Tribunal in ascribing probative value to the documents duly tendered and admitted before it, also resorted to properly admissible evidence of the parties and made specific findings of fact.
It is now settled beyond peradventure that evaluation of evidence and the ascription of probative value to such evidence are primary function of a trial Court, which saw, heard and assessed the witnesses. Where a trial Court unquestionably evaluates the evidence and makes findings of fact which are fully supported by the evidence and are not perverse, it is not the business of the appellate Court to substitute its own views for those of the trial Court.

It is also settled that what the appellate Court ought to do is to find out whether there is evidence on which the trial Court arrived at its findings. Once such evidence is manifest on the record, the appellate Court cannot interfere. See Ebba v Ogodo (1934) 1 SCNLR 372 and Agbonife v Aiweroba (1988) 1 NWLR (Pt. 700) p. 325.
It is crystal clear from the records that there was ample material upon which the lower Tribunal arrived at its findings and conclusions, thus rendering it inappropriate for this Court to interfere. I am of the considered view that there is absolutely no basis upon which to disturb the findings and conclusion arrived at by the lower Tribunal based on the Exhibits tendered and admitted in evidence.
For these reasons and the more detailed ones contained in the lead judgment of learned brother, I too hold the view that the instant appeal lacks merit and same is dismissed by me with N50, 000.00 costs in favour of the 1st Respondent.
(2) APPEAL NO. CA/PH/EPT/227A/2008
This is an appeal by the 2nd/45th Respondents/Appellants (hereinafter referred to as the Appellants) against the judgment of the Governorship/Legislative Houses Election Tribunal sitting at Umuahia delivered on Tuesday, the 5th day of February, 2008 setting aside the return of 3rd Respondent (then 1st Respondent) as the duly elected candidate for Umuahia South State Constituency and declaring the 1st Respondent (then Petitioner) as the duly elected candidate.
His Lordship, Galadima, JCA availed me with a draft copy of the judgment just delivered in this appeal. I am entirely in agreement with his Lordship that the appeal lacks merit and ought to be dismissed. The lead judgment of learned brother is very exhaustive and dealt with determination. I adopt the reasoning and conclusions arrived thereat as mine. The appeal is accordingly dismissed by me. I abide by the no costs order contained therein

Appearances

AWA U. KALU (SAN) with C. O. NWAOGU Esq. and N.C. OKONKWO for the Appellant in CA/PH/EPT/227/2008 and 3rd Respondent in CA/PH/EPT/227A/2008.
I. IGBOKO Esq. with S. NWIGBOKE Esq. for the 3rd-147 the Respondents in CA/PH/EPT/277/2008 and 1st-144th Appellants in CA/PH/EPT/227A/2008.For Appellant

AND

AWA U. KALU (SAN) with C. O. NWAOGU Esq. and N.C. OKONKWO for the Appellant in CA/PH/EPT/227/2008 and 3rd Respondent in CA/PH/EPT/227A/2008.
CHIEF HENRY BALOGU Esq. For the 1st and 2nd Respondents in the two consolidated appeals.
I. IGBOKO Esq. with S. NWIGBOKE Esq. for the 3rd-147 the Respondents in CA/PH/EPT/277/2008 and 1st-144th Appellants in CA/PH/EPT/227A/2008.For Respondent

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