SENATOR CHRIS ADIGHIJE v. HON. NKECHI J. NWAOGU & ORS. (2010)

SENATOR CHRIS ADIGHIJE v. HON. NKECHI J. NWAOGU & ORS.

(2010)LCN/3667(CA)

In The Court of Appeal of Nigeria

On Monday, the 29th day of March, 2010

CA/PH/EPT/667/2008

RATIO

WORDS AND DEFINITION: MEANING OF PROOF

The law of evidence is all about proof of a partitular issue. Proof in its legal meaning is the process by which the existence, non-existence of facts is established to the satisfaction of the court. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

EVIDENCE: NATURE OF BURDEN OF PROOF

Burden of proof can be divided into three (1) The legal burden – S.135 Evidence Act (2) The Evidential burden S.136 Evidence Act (3) Burden on the pleadings S.137 of the Evidence Act.

Uwais CJN held in BUHARI v. OBASANJO (2005) 7 SCNJ Pg.1 at Pg.47 that:

In general, in a civil case, the party that asserts in its pleadings the existence of a particular fact is required to prove such fact by adducing credible evidence. If the party fails to do so, its case will fail. On the other hand, if the party succeeds in adducing evidence to prove the pleaded fact, it is said to have discharged the burden of proof that rests on it. The burden is then said to have shifted to the party’s adversary to prove that the fact established by the evidence adduced, could not on the preponderance of evidence, result in the court giving judgment in favour of the party. These propositions are the product of Sections 135-139 of the Evidence Act, Cap 112 Laws of the Federation of Nigeria 1999″.

Where there has been assertion and denial of a fact in issue, onus rests on the party asserting. IBRAHAM v. OJOMO (2004) 4 NWLR Pt.862 pg.89 at 110. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

WORDS AND PHRASES: MEANING OF PRESUMPTION OF LAW

In ABUBAKAR v. YAR’ADUA (2008) 19 NWLR Pt. 1120 Pg.1 at Pg.155, Niki Tobi JSC held thus -:

A presumption of law is merely an invocation of a rule of law compelling a fact finder to reach a particular conclusion in the absence of evidence to the contrary. It otherwise means a mandatory deduction which law directs to be made having regard to rules of law and practice laid down for courts use. It is a procedural device, which takes place of evidence in certain cases until the facts in lieu of which the presumption operates are shown. Presumption of law is in fact a preliminary rule of law which may disappear in the face of rebutted evidence. However, in the absence of evidence to the contrary the presumption stands.

See Chief Afe Babalola (Ed), Law and Practice of Evidence page 361.

This is a very adequate definition of presumption. I cannot put it better. A presumption of law is law and the court can make use of it. A presumption of law will however, fossilize into air if it is rebutted. Of course, a party can rebut the evidence if it is a rebuttable presumption. Where presumption is irrebutable it stands for all time, like the rock of Gibraltar. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

EVIDENCE: BURDEN OF PROOF IN CIVIL CASES

By Section 137, the burden of proof is not static. It fluctuates between the parties. Subsection (1) places the first burden on the party against whom the court will give judgment if no evidence is adduced on either side. In other words, the onus probandi is on the party who would fail if no evidence is given in the case. Thereafter, the second burden goes to the adverse party by virtue of subsection (2). And so the burden change places almost like the colour of a chameleon until all the issues in the pleadings have been dealt with. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

ORDER: WHEN WILL AN ORDER OF RETRIAL BE MADE BY AN APPELLATE COURT

In Okonkwo vs. Udoh (1997) 9 NWLR (Pt 519) 16, Mohammed, JSC, in ordering retrial had this to say.

This Court had in Awote vs. Owodunni (No. 2) (1997) 9 NWLR (Pt. 57)367 held that where a court of trial fails to advert his mind to and treat all issues in controversy fully, and there is insufficient material before the Appeal Court for the resolution of the matter, the proper order make is one of retrial. If an Appeal Court says that a trial Judge has committed both misfeasance and nonfeasance during trial which he presided over. It would mean that the decision of that court amounted to a miscarriage of Justice. What will constitute miscarriage of justice may vary, not only in relation to that particular facts, but also with regards to the jurisdiction which has been invoked by the proceedings in question, and to reach the conclusion that a miscarriage of justice has taken place does not require a finding that a different result necessarily would have been reached in the proceedings said to be affected by the miscarriage, It is enough if what is done is not justice according to law.

See also, Onubruchere vs, Esegine (supra) and Osazuwa & Ors. vs Isibor & Anor. (2004) 3 NWLR (Pt. 859) 16 at 44. PER MOJEED ADEKUNLE OWOADE, J.C.A.

JUSTICES:

ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria

HELEN MORONKEJI OGUNWUMUJI Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

Between

SENATOR CHRIS ADIGHIJE – Appellant(s)

AND

1. HON. NKECHI J. NWAOGU
2, INDEPENDENT NATIONAL ELECTORAL
COMMISSION
3. RESIDENT ELECTORAL COMMISSIONER,
ABIA STATE
4. RETURNING OFFICER ABIA CENTRAL
SENATORIAL ZONE
5. RETURNING OFFICER OSISIOMA NGWA L.G.A.
6. RETURNING OFFICER ISIALA NGWA SOUTH L.G.A.
7. RETURNING OFFICER ISIALA NGWA NORTH L.G.A.
8. RETURNING OFFICER UMUAHIA NORTH L.G.A.
9. RETURNING OFFICER UMUAHIA SOUTH L.G.A.
10. RETURNING OFFICER IKWUANO L.G.A. – Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is appeal against the judgment of the lower Tribunal sitting in Umuahia, Abia State delivered on 24/10/08 dismissing the petition of the Appellant. There are some facts which should highlighted: The 1st Tribunal on 26/11/07 had dismissed the petition in limine for non joinder of parties, an issue on which it had previously made a contrary ruling. The Court of Appeal in its judgment dated 14th May, 2008 reversed the decision of the Tribunal on this ground and because the Tribunal did not make a finding on the merit of the petition, sent the petition back to a reconstituted Tribunal to determine the petition based on the issues joined by the parties in respect of paragraphs 17 – 20 of the petition. To put it succinctly, the new Tribunal was to determine:
“the question whether or not election was conducted in Osisioma Ngwa Local Government Area on 28th April, 2007 as pleaded in paragraphs 17, 18, 19 and 20 of the petition and the paragraphs of the Respondents replies joining issues on the question and the reply of the petitioner to the replies of the Respondents on that singular question”.
The second trial Tribunal determined the question posed by the court of Appeal in favour of the Respondents Dissatisfied with this judgment, Appellant filed a Notice of Appeal containing 11 grounds of appeal to this court on 12th November, 2008. The Appellant’s brief dates 22/12/08 was filed on 24/12/08. The 1st Respondent’s brief dated 16/1/09 was filed on 19/1/09. And the brief of the 2nd – 10th Respondents dated 14/1/09 was filed on the same day. Appellants Reply brief dated 27/1/09 was filed on 28/1/09.
It is important at this juncture to explain the significance of the judgment and consequential order of the Court of Appeal. The Appellant was credited with a total of 92,059 votes coming second after the 1st Respondent who was credited with 103,371 votes. The Appellant’s case is that the total votes supposedly added from Osisioma Local Government Area should be deducted from the total votes credited to both candidates. His argument is that if it is accepted that no election took place in Osisioma Ngwa Local Government and the 40,671 votes credited to the 1st Respondent is deducted from her total of 103,371 votes she would have a balance of 62,700 votes. If the 2,912 votes credited to the Appellant are deducted from his total votes of 92,059, he would have a balance of 89,147 which would make him the winner of the election. That is the crux of the matter. Thus, our answer yea or nay to the question of whether election took place at Osisioma Ngwa Local Government would determine on the merit of who won the election.
I will adopt the Appellant’s issues for determination as I feel they best address the complaints raised in the grounds of appeal and re-arrange them for ease of reference. I will only examine the five issues germane to the determination of this appeal. They are as follows:
(a) Was the Tribunal correct or competent to hold that the pleading of the Appellant were self contradictory and subject to two interpretations. –
Ground II.
(b) Was the Tribunal correct in its conclusion that the burden of proving the non holding of an election was on the Appellant who relied upon a negative assertion rather than the Respondents who made a positive assertion – Grounds 1-2.

(c) Was the Tribunal correct when it held that the Appellant did not prove any of the allegations in paragraphs 17(i)-(xii) of the petition Grounds 4, 5, 6, and 8.

(d) Was the Tribunal correct in its conclusion that the Respondents proved that an election took place in the constituency on the day in question – Grounds 9 and 10.

(e) Was the Tribunal correct in its findings that Exhibit 30 which was undated had probative value – Ground 7.

ISSUE I – The Appellant’s counsel’s quarrel is with the observation of the Tribunal on page 818 of the record that the pleadings of the petitioner are contradictory and subject to two interpretations. Learned Appellant’s counsel argued that the issue of pleadings being already settled by the Court of Appeal, the Tribunal had no right to re-open it. He argued that similar pleadings were not found contradictory by this court. He cited OKWUSA v. IKECHUKWU OBIORA in CA/PHIEPT/68/2007 of 18/12/2008, where this court was faced with similar pleading and did not find it contradictory.
Learned senior counsel for the 1st Respondent submitted that since the case was to be heard de novo, the Tribunal had the jurisdiction to look at the pleadings critically particularly in relation to the issue in controversy. He cited OKERE v. STATE (2001) 2 NWLR Pt.697 Pg.397 at 420; FABUNMI v. OYEWUSI (1990) 6 NWLR Pg.159 Pg.728 at 738; AGBI v. OGBE (2005) 8 NWLR. Pt.926 pg.40 at 107-108; BABATUNDE v. PAS & T.A. LTD. (2007)13, NWLR Pt.1050 Pg.113 at 147 – 148.
Counsel, submitted that mutually contradictory pleading cannot be countenanced under S.145 (1) of the Electoral Act. Counsel, argued that Appellant pleaded, electoral malpractices characterized by forceful, hijacking and diversion of electoral materials and also pleaded that there was no election at all. He submitted that this is not allowed. He cited BUHARI v. INEC (2008) 4 NWLR Pt.1078 Pg,546 at 634-637.
I am of the humble view and it is obvious, that any view or finding by the Tribunal that is inconsistent with the earlier view of the Court of Appeal or that presumes to exceed the mandate given to the trial court would be erroneous. The Court of Appeal did not find the Appellant’s pleadings self contradictory. Indeed, it could not have done so because in civil litigation and indeed in election matters, a party can make two seemingly contradictory pleadings leading to two different heads of claim. That is why a petitioner can claim that the election be annulled for reason of substantial non-compliance and in the same breath claim that he won the election by a majority of lawful notes. A petitioner may plead the same set of facts to ground alternative reliefs. Those pleadings are not ipso facto held to be self-contradictory. The court can only grant one relief is best supported by the evidence on record.
The observation of the Tribunal is on page 868 of the record. My own humble view is that there is an unnecessary fuss about this particular obiter particularly in the context in which it was made. I agree with the learned senior counsel for the Appellant that the Tribunal should not re-open a matter already settled by the court of appeal and exceed the parameters of the issue of fact they were mandated to determine.
The Tribunal held that:
The order of the Court of Appeal being referred to is as produced earlier in the judgment. The said order appears clear enough. It is to the effect that a trial de novo be commenced on the question as to whether elections were conducted in Osisioma Ngwa Local Government Area, taking into consideration paragraphs 17-20 of the petition, as well as the replies thereto. We are unable to see any aspect limiting evidence especially as it relates to the paragraphs under consideration. We do not in that regard agree with the Learned SAN, that such a restriction can be read into the said order, and we so hold. Indeed, the Learned SAN equally took advantage and filed further evidence which he relied on. I cannot for the life of me see what the storm in the teapot is all about. The observation of the Tribunal that there was nothing in the order of the Court of Appeal limiting the evidence to be admitted especially as it relates to the paragraphs under consideration is in my humble view quite right and proper. Also in consideration is in my humble view quite right and proper. Also, in considering the pleadings, the Tribunal had a right and indeed a duty to point out the fact that the pleadings of the Appellant appeared self contradictory in the sense that the Appellant pleaded that no voting took place and concurrently pleaded incidents of gross electoral malpractices. There is no substance in that complaint. Indeed, it is not every obiter of the trial court that should give cause for complaint or ground of appeal. The trial court did not make any finding nor was any specific ratio enunciated by the court which influenced their ultimate decision one way or the other. The first issue is resolved in favour of the Respondents.

Issue 2 – The Learned Senior Counsel for the Appellant on issue 2 argued that the Tribunal’s conclusion that the Appellant was bound to prove that there was no election in Osisioma Ngwa Local Government Area was erroneous.
Counsel argued that shifting the burden of proof on the Appellant to prove non-conduct of the election was erroneous. Counsel argued that all the cases cited by the Tribunal in support of their conclusion were in conflict with their ratio. Counsel argued that the burden of proof in election matters is not static but shifts from one side to the other depending on the state of pleadings.
Counsel also submitted that the burden of proof in a civil matter is on the party who alleges the affirmative. Counsel argued that the onus of proving an affirmative against a native assertion is on the person asserting the affirmative. He argued that the initial burden on him by the Tribunal. He argued that since the Respondents were asserting that election took place, the legal burden was on him. Learned Appellants counsel further argued that the Tribunal misdirected itself by shifting the burden on the Appellant which had caused miscarriage of justice. Counsel cited BUHARI v. OBASANJO (2005) 13 NWLR Pt.94 Pg.1 at Pg.309-910; REYNOLDS CONSTRUCTION v. OKWUEJIMINIOR (2001) 15 NWLR Pt.735 Pg.87; ADEGOKE v. ADIBI (1992) 5 NWLR Pt.242 Pg.410 at 423; REMI v. SUNDAY (1999) 8 NWLR Pt.613 Pg. 92 at 105; AMGBARE v. SYLVA (unreported) CA/PH/EPT/534/07; FELIX v. OSAWARU v. SIMEON EZEIRUKA (1978) 6-7 SC.
Learned senior counsel for the 1st Respondent argued that in whatever situation a Plaintiff finds himself in a court of law, whether he is asserting the positive or negative the position, of the Law remains unchangeable to the effect that the burden of proof of either the positive or negative lies on him This is so because whether a Plaintiff is asserting the positive or negative, such assertion constitutes his legal right or liability, as the case may be in respect of the lis before the court, therefore, the burden of proof in any situation or circumstance is as regulated in both civil and criminal cases by Section 135, 136, 137 and 138 of the Evidence Act. He observed that Appellant’s counsel had restricted himself to Section 137 of the Evidence Act without taking his bearing from Section 135. Even in the isolated Act without taking his bearing from Section 135. Even in the isolated case of Section 137, the burden of proofing the fact in issue first lies on the Appellant.
1st Respondent’s counsel further submitted that all the cases cited by Appellant’s counsel supports the position of the 1st Respondent.
Senior counsel submitted that it is the Appellant who by virtue of Section 135(1) and (2) of the Evidence Act who wanted the Tribunal to give judgment in his favour as per the legal right he purportedly espoused before the Tribunal and the burden of proof lies on him. If stretched further to Section 136 of the same Evidence Act and assuming without conceding that no evidence was led at all at the lower Tribunal, the Appellant’s case would have been dismissed or at best, struck out. He cited OLOHUNDE v. ADEYOJU (2000) 10 NWLR, Pt.676 Pg.562; AMGBARE v. SYLVA (2009) 1 NWLR Pt.1121 Pg.1; REMI v. SUNDAY (supra); NNACHI v. IBOM (2004)16 NWLR Pt.900.Pg.614 at Pg: 635
The 2nd-10th Respondents on this issue argued that having regard to the fundamental basic rules of evidence that who asserts must prove his allegation in election petitions the consideration of the case for the defence of respondents only arises after the petitioner has made our a case. He cited AWUSE v. ODILI (2005) 16 NWLR Pt.952 Pg. 416 at 440. Counsel argued that the subtle classification of negative and positive assertion made by the Appellants inappropriate and can only be deployed to circumvent the duty placed on the petitioner by S.137 (1) and (2) of the Evidence Act. He submitted that the Appellant did not provide enough evidence of the allegations in paragraphs 17-20 of his petition to shift the burden on the Respondents.
I must observe, on this issue, it is interesting to note that Learned Senior counsel on both sides each took two parallel views. The learned senior counsel for the Appellant is of the view that the initial onus and evidential burden rests squarely on the Respondents. Learned counsel for the 1st Respondent is of the opposite view that the Respondent is not obliged to do anything until, the Appellant had discharged the onus probandi and that both the initial and subsequent evidential burden rests on the Appellant.
The determination of this issue cannot be taken in an isolated context or in a theoretical context without relating it to the facts of this case, the pleadings and evidence led by the parties. It also cannot be considered outside the context of the reasoning of the Tribunal.
There is no doubt that where a court misplaces the burden, of proof, the judgment should be set aside. See IWUORIE IHEANACHO v; MATHIAS-CHIGERE (2004) 7 SCJ 272.
Now Sections 135, 136 and 137 of the Evidence Act provide thus:
135(1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
136. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. S. 137(1). In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given, if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be, proved is established, the burden lies on the party against whom judgment would be given if no more to evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.

It is certain that the initial burden of proof is fixed by the pleadings. See UZOKWE v. DANSY INDUSTRIES (2002) 1 SCNJ 1. Let us look at the pleadings in this case and while looking at the pleadings let us remember that this is an election petition which is sui generics and is outside the normal gendre of civil procedure and is in a class of its own, Niki Tobi JSC in BUHARI v. INEC (2008) 12 SCNJ Pg.1 at Pg.68 held thus:
A petitioner who files a petition under S:145 (1) of the Electoral Act has the burden to prove the grounds or grounds: This is because he is the party alleging the grounds and he has a duty to prove the affirmative. He is the party who will lose if no evidence is given on the grounds. If the petitioner does not prove his ease under S.145 (1) of the Electoral Act, the action fails.
In this case the ground of petition now relevant in this appeal and on which issues were joined before theTribunal is:-
That the first Respondent did not win majority of lawful votes cast at the said election.
The Appellant claimed the following relief before the lower court –
That the petitioner be declared as duly elected and accordingly be returned as the winner of the election.
The Appellant claims the following in this court-

That the appeal be allowed and reliefs sought by the petitioner at the Tribunal be granted.
It is elementary law that a plaintiff has the burden to prove the reliefs sought in the statement of claim to obtain judgment. That burden does not shift. This is because he is the party who claims the reliefs in the statement of claim, and so the onus probandi rests on him. He must prove the affirmative content of his statement of claim. Our adversarial system of justice demands that. Then where a party in a suit complains that the provisions of the Constitution or a statute have been breached by the acts performed by the other party the court ought to examine the acts complained of against the relevant provisions of the law and to resolve the issue.
The law of evidence is all about proof of a partitular issue. Proof in its legal meaning is the process by which the existence, non-existence of facts is established to the satisfaction of the court. Burden of proof can be divided into three (1) The legal burden – S.135 Evidence Act (2) The Evidential burden S.136 Evidence Act (3) Burden on the pleadings S.137 of the Evidence Act.
Uwais CJN held in BUHARI v. OBASANJO (2005) 7 SCNJ Pg.1 at Pg.47 that:
In general, in a civil case, the party that asserts in its pleadings the existence of a particular fact is required to prove such fact by adducing credible evidence. If the party fails to do so, its case will fail. On the other hand, if the party succeeds in adducing evidence to prove the pleaded fact, it is said to have discharged the burden of proof that rests on it. The burden is then said to have shifted to the party’s adversary to prove that the fact established by the evidence adduced, could not on the preponderance of evidence, result in the court giving judgment in favour of the party. These propositions are the product of Sections 135-139 of the Evidence Act, Cap 112 Laws of the Federation of Nigeria 1999″.

Generally, in civil cases, the burden of proof is cast on the party who asserts the affirmation of a particular issue: See OKECHUKWU v. NDAH (1967) NMLR 368; AKINFOSILE v. IJOSE (1960) SCNLR 447; NBN LTD. v. OPEOLA (1994) 1 NWLR Pt.319 126. The burden rests on the party whether plaintiff or defendant who substantially asserts the affirmative of an issue: See MESSRS LEWIS & PEATS (NRI) LTD. V. A.E. AKHIMIEN (1976) 7 SC.p.157 at 169.
Where there has been assertion and denial of a fact in issue, onus rests on the party asserting. IBRAHAM v. OJOMO (2004) 4 NWLR Pt.862 pg.89 at 110.
S.137 is the most pertinent in the circumstances of this case. S.137(1) provides that whether the Appellant is making an affirmative assertion i.e. the existence of a fact or a negative assertion the non-existence of a fact the burden of first proving either of the two lies on the party against whom judgment would be given if no evidence is led on either side, S.137(2) provides that the burden of proof shifts as the facts preponderates or as the facts in issue are proved by each side.
S.137 of the Evidence Act speaks of existence and non-existence of a fact. The affirmation of a fact is the claim of existence thereof. The negation of a fact is the claim of non-existence thereof. Therefore, S.137 talks about existence of a fact which means both the positive and negative assertions are contemplated.
Section 137(1) talks about the burden of first proving the existence or non-existence of a fact. With humility, I would not agree that the Appellant making a negative assertion needs only to make the assertion in the pleadings and thereafter fold his arms expecting the Respondent to bring forth evidence to debunk the assertion in the pleadings. The Appellant in this case after pleading the negative assertion that no election took place, went further to call evidence of 13 persons in aid of that negative assertion. If after the Appellant had started the process and has discharged the burden of first proof on a balance of probabilities then the onus shifts to the Respondents to debunk the negative assertion. In my humble view, what the law requires is than the initial onus being on the Petitioner he has to adduce evidence that no election took place. Then, in spite of the presumption that a return by INEC is regular, the burden then shifts on the Respondents to prove that indeed election took place.
Now let us talk about the presumption in S.137 (1)of the Evidence Act. Section 137(1) states that the burden of first proof lies against whom judgment would be given if no evidence is adduced on either side regard being had to presumption that may arise on the pleading. The presumption arising from the pleading of both parties is that INEC dedated a valid result in the disputed local government.
In SHITTA-BEY v. AG FEDERATION (1978) 7 SCNJ 264 Pg.287, the Supreme Court held that:
“Apart from what is called presumption of regularity of official acts, there is the presumption that where there is no evidence to the contrary, things are presumed to have been rightly and properly done”.
See also NIG. AIR FORCE v. JAMES (2002) 12 SCNJ 379 at 392. The presumption is resorted to in respect of official acts where there is no evidence to the contrary. Thus, there must be evidence to the contrary before the presumption of regularity can be rebutted. It is the person who wants to rebut regularity that leads evidence first.
Where the burden of proof of the non-existence or existence of a fact is in issue, regard must be had for presumptions arising from the pleadings. See CHIEF ARCHIBONG v. CHIEF ITONG ITA (2004) 1 SCNJ 141 also (2004) 4 NWLR Pt.858 Pg.590 per TOBI JSC on page 619.
There is no doubt that by the combined effect of S.4 and S.150 (1) of the Evidence Act there is presumption of regularity in respect of judicial or official acts are presumed to have been complained with until the contrary is proved. See THE NIGERIAN AIR FORCE v. EX.WING COMMANDER L. D. JAMES (2002) 12 SCNJ 380; UCHENNA v. NWACHUKWU v. THE STATE (2002) 7 SCNJ 230.
Let us remember the special nature of election petition cases. Niki Tobi JSC in ABUBAKAR v. YAR’ADUA (2008) 19 NWLR Pt.1120 Pg.1 at Pg.82 had this to say:
An election petition is sui generis. That is to say, it is in a class by itself. Surely, this is no longer a moot point. It is different from a common law civil action. This must be borne in mind throughout the proceedings.
His lordship, Niki Tobi JSC in BUHARI v. INEC (2008) 19 NWLR Pt.1120 Pg 240 at 379-380 also emphasized the fact that the total jurisprudence of election petition is sui generis.
It is my humble view that the Supreme Court in recent times have accentuated the sui generic nature of election petitions. All the authorities quoted above derived from normal civil litigations cannot be applicable on this point in election matters. Let us look at the case law in the Court of Appeal and the Supreme Court on election matters. In MOHAMMED v. MOHAMMED (2008) 6 NWLR Pt.1082 pg.73 – presumption of authenticity of INEC results was emphasized.
In OGA v. EKWEREMADU (2006) 1 NWLR Pt.981 Pg.255, ADEKEYE JCA (as she then was) at pg. 282 held on the presumption of authenticity of INEC results thus:
where the petitioner fails to rebut the presumption in favour of due return, his petition must fail. REMI v. SUNDAY (1999) 8 NWLR pt.613 Pg.92; IMAR v. MALARIMA (1999) 3 NWLR Pt.596 Pg.545.
In ABUBAKAR v. YAR’ADUA (2008) 19 NWLR Pt. 1120 Pg.1 at Pg.155, Niki Tobi JSC held thus -:
A presumption of law is merely an invocation of a rule of law compelling a fact finder to reach a particular conclusion in the absence of evidence to the contrary. It otherwise means a mandatory deduction which law directs to be made having regard to rules of law and practice laid down for courts use. It is a procedural device, which takes place of evidence in certain cases until the facts in lieu of which the presumption operates are shown. Presumption of law is in fact a preliminary rule of law which may disappear in the face of rebutted evidence. However, in the absence of evidence to the contrary the presumption stands.
See Chief Afe Babalola (Ed), Law and Practice of Evidence page 361.
This is a very adequate definition of presumption. I cannot put it better. A presumption of law is law and the court can make use of it. A presumption of law will however, fossilize into air if it is rebutted. Of course, a party can rebut the evidence if it is a rebuttable presumption. Where presumption is irrebutable it stands for all time, like the rock of Gibraltar.
As the presumption here is rebuttable, I will so restrict myself. The acts of announcing the result are official acts within the meaning of section 150(1) of the Evidence Act. The burden is on the Appellants to prove that the acts were not official. The burden is also on the Appellants to prove that the acts were not done in a manner substantially regular.
In BUHARI v. INEC (2008)19 NWLR Pt.1120, Pg 246 at 354 per Niki Tobi at pg.354, (2008) 12 SCNJ at 71, Election results are presumed by law to be correct until the contrary is proved. It is however a rebuttable presumption. In other words, there is a rebuttable presumption that the result of any election declared by a returning officer is correct and authentic and the burden is on the person who denies the correctness and authenticity of the return to rebut the presumption. See OMOBORIOWO v. AJASIN (1984) 1 SCNLR 108; JALINGO v. NYAME (1992) 3 NWLR Pt.231 538; FINEBONE v. BROWN (1999) 4 NWLR Pt.600 613; HASHIDU v. GOJE (2003) 15 NWLR Pt.843 352 and BUHARI v. OBASANJO (2005) 13 NWLR Pt.941 Pg.

Section 137 of the Evidence Act, 2004 provides for the burden of proof in civil cases. The burden of first proving the existence or a fact lies on the party against whom the judgment of the court could be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. If such party adduces evidence which might reasonably satisfy a court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively until all the issues in the pleadings have been dealt with. Where there are conflicting presumptions, the case is the same as if there were evidence.
By Section 137, the burden of proof is not static. It fluctuates between the parties. Subsection (1) places the first burden on the party against whom the court will give judgment if no evidence is adduced on either side. In other words, the onus probandi is on the party who would fail if no evidence is given in the case. Thereafter, the second burden goes to the adverse party by virtue of subsection (2). And so the burden change places almost like the colour of a chameleon until all the issues in the pleadings have been dealt with.
Let us remember that INEC had declared results in Osisioma Local Government and has pleaded those results which are presumed to be valid until the contrary is proved.
In this case the legal onus is fixed on the Appeliant who would fail if he cannot produce the first evidence to show that the election did not take place. The Appellant first produced witnesses who gave evidence that election did not take place. Then the burden of proof that is evidential burden then shifted on the Respondents to prove that an election took place. The Appellant next had the duty to rebut the evidence of the Respondents.
The court would then weight both evidence on an imaginary scale called preponderance of evidence to arrive at the conclusion whether the person with the last evidential burden had discharged that evidential burden.
The above is the implication of the Supreme Court’s decision in OMORINBOLA II v. MIL. GOV. ONDO STATE (1995) 9 NWLR Pt.418 Pg.201; OGBU v. WOKOMA (2005) 7 SCNJ 299.
Let us now look at the pleadings and evidence within the context of the reasoning of the Tribunal.
The petition is on page 1-6 of the record. Paragraphs 17-20 state as follows:
(a)17 The petitioner pleads that there was no election in Osisioma Ngwa Local Government Area on the day in question. The petitioner’s agents, members of other parties and even members of the 1st Respondent’s party acknowledge that there no election in the local government on the day in question. Specifically, the petitioner pleads that the election was characterized by:
i) Non-inclusion of result sheets amongst the electoral materials which were intended for use at the polling station.
ii) Non-inclusion of result sheets intended for use at ward and local government levels.
iii) Forceful hijacking and diversion of electoral materials by supporters of the 1st Respondent.
iv) Absence of actual voting by the electorate at the polling unit.
v) Non-display of ballot boxes before voting.
vi) Absence of presiding officers and other agents of the 2nd Respondent at polling stations and resultant non-accreditation of voters.
vii) Non-entry of results at polling stations into statutory forms at polling stations and no counter signature by party agents.
viii) Non-announcement of result at polling stations by agents of the 2nd Respondent.
ix) Non delivery of duly completed and counter-signed result sheets to agents of the candidates.
x) No step by step recording of results in forms from the polling units to the senatorial district collation center.
xi) Result forms at ward and local government levels not stamped, signed and counter signed by the relevant officers, agents of the 2nd Respondents, agents of the parties and security agents.
xii) Non-collation of results at ward and local government levels.
18. In view of the foregoing, the Divisional Police Officer for Osisioma Ngwa Local Government testified openly at the collation centre for Abia Central Senatorial District that no election took place within the local government.
19. The Transition Chairman for Osisioma Ngwa Local Government Area equally testified that no election was held in the Local Government. Based on the report, the petitioner wrote a letter dated 29th April, 2007 to the 3rd Respondent requesting that the purported result be cancelled. In spite of the unanimity amongst the Law Enforcement Agents, the electoral officer and other parties except that of the 1st Respondent that no election took place in Osisioma Ngwa Local Government Area, the 2nd-10th Respondents went ahead to declare the 1st Respondent as the winner of the election.
20. The Petitioner specifically pleads that there are no units or polling station results backing up the false score of 40,671 votes allegedly scored by the 1st Respondent in the Osisioma Ngwa Local Government Area. The Respondents are hereby challenged to produce the units results from all the wards within the local government.
The reply of the 1st Respondent is on pages 129-142 of the records.
The judgment of the Tribunal is on page 835-878 of the record. This issue was considered from page 864-868. The Tribunal concluded thus at pages 866-867:
“We have carefully studied the various submissions made in support of the positions taken. We have equally perused the case law cited; we in particular studied the case of Prince Ebitimi Amghare & Ors. v. Chief Timipre Slyva (supra) amongst others, which we find illuminating. We are of the understanding that, the law relating to the burden of proof is as set out in S.135(1)of the Evidence Act.
Whoever desires any court to give judgment as to any legal right or liability depends on the existence of facts which he asserts must prove that those facts exist.
It is clear therefore that the burden is upon him who asserts to prove, and the party which pleads and asserts the existence of a fact has the burden of proving same. The case of Michael Nnachi v. Hon. Irem O. Ibom (supra) is apposite. Indeed, S.137(1) and (2) of the same Evidence Act provides…”
In the case of AMGBARE v. SYLVA (supra) the Court of Appeal stated:
The Appellants through the evidence of their witnesses, in alleging the absence of any election held were by implication asserting the negative which needed no documents to prove. On the contrary the respondents asserted the existence of positive facts relating to election having been held.
In the instant case, the petitioner pleads that elections were not conducted in Osisioma Ngwa Local Government Area. Paragraphs 17(i)-(xii) enumerates what formed the basis of his assertion that elections did not hold. In the circumstance, it is the evidence that will shiff the burden upon the Respondents who asserted the positive. We place reliance on the authorities of REYNOLD CONSTRUCTION v. OKWEJIMINOR (supra), the case of ADEGOKE v. ADIBI (supra), the case of OSAWARU v. EZEIRUKA (supra) and the case of REMI v. SUNDAY (supra).
In the grounds of appeal before this court, Ground 1 stated the above dicta of the learned Tribunal and gave the following as the particulars of misdirection.
“PARTICULARS OF MISDIRECTION
(i) The Tribunal misunderstood and misapplied the principle enunciated in the authorities it referred to in that the principle established by the cases is that the burden of proof lies on he who asserts the positive and not on he who asserts the negative of an issue.
(ii) The Respondents who were asserting the positive or affirmative to wit the holding of an election had the burden of proving same which on the evidence before the tribunal they did not.
(iii) By misplacing the burden of proof, the Tribunal caused a grave miscarriage of justice.
GROUND TWO
The Tribunal misdirected itself and consequently arrived at a wrong decision which led to miscarriage of justice when it held:
The combined provisions of S.135, S.137(1)(2) and S.139 of the Evidence Act restates the position that the burden of proof lies on he who asserts, and in this case the petitioner. It is only where such evidence is proffered that the burden shifts to the Respondents who asserted that elections were conducted to prove the assertion. The law is trite that the consideration of the Respondent’s case did not arise until and unless the petitioner had made out a case. In other words, a duty is laid on the petitioner who alleges to succeed on the strength of his own case and not on the weakness of the defense see the case of AWUSE v. ODILI (2005) 16 NWLR Pt.952 pg.416 at 440. We believe that is the position taken in the cases of REMI v. SUNDAY (supra) as well as AMGBARE V. SYLVA (supra) kindly cited and referred to by the learned senior counsel, and we so hold.
I am of the humble view that the Tribunal’s reasoning cannot be faulted. This is because a petitioner who files a petition under S.145(1) of the Electoral Act 2006 has the burden the prove the ground or grounds. He is the party alleging the grounds and he has a duty prove the affirmative. He is the party who will lose if no evidence is given on the grounds of the petitioner does not prove his case under S.145(1) of the Act, the action fails. See Niki Tobi JSC in BUHARI v. INEC (2008) 19 NWLR Pt.1120 Pg.246 at Pt.350.
This is an election petition. S.145 of the Electoral Act 2005 provides for grounds to challenge an election result or return.
S.145 (1) An election may be questioned on any of the following grounds,
(a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election;
(b) that the election was invalid by reason of corrupt practices or non-compliance with the provision of his Act;
(c) that the respondent was not duty elected by majority of lawful votes cast at the election; or
(d) that the petitioner or its candidates was validly but was unlawfully excluded from the election.
In my view, paragraphs 17-20 of the Petition were allegations to prove the grounds of the petition. Paragraph 17 stated categorical forms of electoral malpractices. I cannot agree with the proposition that the burden of proof is on the Respondents to prove that election took palce and that if both parties had folded their arms, it is the Respondents who are supposed to lead evidence of the holding of the election first who would lose. The case law does not support the conclusion that the Respondents in this case bear the legal burden under S.135 and S.136 as well as the burden of first adducing evidence under S.137(1) of the Evidence Act. No matter how fanciful a claim has been couched, either in negative or positive terms, the burden is on the person who will lose if no evidence was led. There is a presumption that an election took place in this local government, the burden is on the Appellant to rebut that presumption on a balance of probability, thereafter the burden would shift on the Respondents by S.137(2).
There is the issue of the evidential burden of proving specific facts either by oral on.documentary evidence under S.137(2) of the Evidence Act. That is quite different from the legal burden in S.135, S.136, and the burden on the pleadings in S.137(1) of the Act with the risk of sounding repetitive the legal burden is on the Appellant in this case to prove the grounds of the petition. In the peculiar circumstances of this case being an election petition there is a presumption of regularity of the results released by INEC which were pleaded, this presumption based on the pleadings must first be rebutted by the Appellant.
Thus, in elections petition matters, the onus of proof of the grounds of the petition is fixed at the end of pleadings on the petitioner who kick starts the process. Thereafter the burden of proof shifts as the evidence preponderates.
I do not think the Tribunal misdirected itself as to the placement of the legal burden of proof on a petitioner in an election petition. See Amgbare v. Sylva (2009) 1 NWLR Pt.1121 Pg.1.
As I said earlier this issue cannot be treated in a hypothetical manner outside the context of what occurred at the Tribunal. After making the ratio in contention, the Tribunal then went on to consider in detail the evidence led by both parties in order to arrive at the determination of who best proved his assertion. The second issue is also resolved in favour of the Respondents.

Issue 3 is whether the Tribunal was correct when it held that the Appellant did not prove any of the allegations in paragraphs 17(i)-(xii) of the petition. This issue has two legs. The question of the Tribunal’s treatment of Appellant’s oral testimony and witnesses then the question of what the Appellant claimed to be bogus results.
On the evaluation of Appellant’s witnesses, learned senior counsel for the Appellant on this issue argued that the evidence of the petitiorter and his witnesses as well as the exhibits tendered conclusively proved the case. He argued that the reasons given by the Tribunal for rejecting the evidence of the Appellant’s witnesses were flimsy and untenable. He submitted that the Tribunal ignored the evidence of the Appellant’s witnesses while labouring under the impression that voting alone constituted an election. He submitted that this is contrary to the decisions in IGODO v. OWULO (1995) 2 NWLR Pt.601 Pf.70 at 78-79; INEC v. RAY (2004) 14 NWLR Pt.892 Pg.92; PPA v. SARAKI (2007) 17 NWLR Pt.1064 Pg.453.
Learned senior counsel for the 1st Respondent argued that the Tribunal rightly refused to give any weight to the evidence of the Appellant and his witnesses. Those who were agents did not tender their letters of accreditation. Counsel argued that the evidence of all the witnesses were discredited under cross-examination due to the fact that the witnesses could not tender documents which they relied on or that their evidence was hearsay.
Counsel for the 2nd-10th Respondents argued that it has been shown that the evidence of most of the Appellant’s witnesses are hearsay evidence in relation to the specific issue for determination which is whether or not voting took place in Osisioma Ngwa Local Government on 28/4/07, and are in admissible Again there is conflict between the evidence of the PW3 and PW4 and the evidence of PW8 and PW9 on materials points. The Tribunal can not in the circumstance pick and choose from these conflicting pieces of evidence. The retrial Tribunal could not have given weight to any of the testimonies nor pick and choose from them. He cited ADUN v. OSUNDE (2003) 16 NWLR Pt.847 Pg.643 at 666.
The Tribunal on pages 872-873 of the record made a succinct evaluation of the evidence of the Appellant and his witnesses. The Tribunal held as follows:
The petitioner first gave evidence in support of his case. His evidence as to the non holding of the elections is as it was narrated to him by his agents. He states categorically that on the date of the election, he did not visit the local government under consideration. His evidence therefore, as to the non holding of the election is based on hearsay, and we so hold. PW2 testified to the fact that there was no collation of result in ward 10. His evidence is also of no relevance as the alleged election in the ward was allegedly cancelled. PW3 is the Senatorial Collation Officer for the petitioners. He likewise did not visit the local government under consideration. His evidence as to the non holding of elections in the local government is based on what he as told. He also stated what he heard the Electoral Officer, the Divisional Police Officer, and the Local Government Transition Chairman say at the centre, on the day of the election. PW4 in his evidence stated that there was no meeting between him and the witness. We note also that by the provisions of 8.46 of the Electoral Act, this witness was precluded from being an agent. He also stated in the course of his evidence that the results from Osisioma Ngwa came in late in the day. His evidence as to the non holding of election in the local government is based on reports and consequently hearsay. The evidence of PW4 material to the issue for determination reads:
“That the said election in Osisioma Ngwa Local Government on the 28/4/07 was marred by fraud, fundamental irregularities, and violence, consequent upon which I, in consultation with the Divisional Police Officer and the Electoral Officer for Osisioma Ngwa Local Government Area, cancelled the said election. Copies of my letter to the Resident Electoral Commissioner and my press release are annexed as exhibits A and B”.
His further evidence that elections did not hold therefore runs counter to his evidence in chief. To make matters worse, his exhibits A and B were not attached to his deposition, nor were they tendered during his testimony. PW5 is the local government Collation Officer. He did not visit the ward collation centers but depended on reports reaching him. His evidence is similarly hearsay as to the conduct of elections in the local government except for the fact that results were not collated. The identity of the 6th petitioner’s witness conflicts with exh. 20(a) and (b), making it suspect and unreliable. The 7th, 8th and 9th witnesses for the petitioner gave similar evidence. They are ward collation officers. PW8 stated that he visited the wards where he observed that elections did not hold. PW9 visited the ward collation centre as well as one unit where he attests to the fact that elections did not hold. The 10th witness similarly visited, his unit and collation centre where he discovered that elections did not take place. The 11th witness for the petitioner is the collation agent for ward 2. His identity conflicts with exh 26(a) and (b). In the like manner PW13 also a ward collation agent, his identity likewise conflicts with exh.28 (a) and (b). This renders their evidence suspect and unreliable. The evidence of PW12 who alleged that she was the agent of the PDP. And who attests to the fact that elections did not hold failed to identify herself, in view of the evidence of PW1. Where the evidence adduced by the petitioner in proof of the allegations is considered, especially as it relates to paragraphs 17(1) (xii), 18, 19, and 20, the petitioner in our view failed to establish any of the allegations therein made as required by law. We say so because all the allegations covered by Paragraph 17(1) (xii) remained unproved. As canvassed by the Respondent, it is trite that pleadings do not take the place of evidence, consequently, any pleadings for which no evidence is adduced in support goes to no issue. I place reliance on the case of OBEIDE v. ORSULA (supra).
A careful reading of the above evaluation of the evidence of the witnesses in my humble view shows that the conclusion of the Tribunal that the totality of the evidence did not discharge the burden which was on him to prove on a balance of probabilities that election did not hold on the day in question was not in error. None of the witnesses gave evidence proving the various acts of electoral malpractices stated in paragraph 17 of the Election. Someone should have given evidence that no result sheets were included for use at the polling station, ward and local government levels. No one gave evidence of violence or hijacking and diversion of electoral materials by supporters of the 1st Respondent. I have read the statement on oath and oral evidence of all the Appellant’s witnesses. I did not like the manner in which the Tribunal swept under the carpet with no reason given the evidence of PW5, PW6, PW7, PW8, PW9 and PW10. Unfortunately, the content of their testimony all unanimous was to the effect that they saw no INEC official nor did they vote on that day. However, that evidence can only prove paragraph 17(iv) of the pleadings that in some polling units no actual voting took place. That is not to say in the whole local government, election did not take place. In fact, the complaints in the other subparagraphs of paragraph 17 are related to the lapses which occurred where elections actually took place. No witness gave evidence of non display of ballot boxes before voting. There was no direct evidence of non-accreditation of voters. No one said I got to the polling station and was not accredited to vote. No evidence from anyone that results were not entered at the polling stations into the statutory forms nor that party agents were not allowed to counter-sign results. No agent said that after voting results were not announced at the polling station. No agent gave evidence. That results were not collated at ward and Local government levels. The evidence of PW3 and PW4 in aid of paragraph 18 that the DPO testified that there was no election was debunked on the basis that none of the witnesses metitioned the name of the particular DPO since there were two DPOs in that Local Government. PW4 was called to prove paragraph 19 but the letters he wrote to the Electoral Officer and his press release were not tendered. The letter written by the Appellant to the 3rd Respondent on 29th April requesting a cancellation of the election was also not tendered.
With the greatest respect, the Appellant muddied the waters in this case. There is a difference between an assertion that NO VOTING took place at all and an assertion that election was marred by violence and electoral malpractices including non collation of results in the statutory forms at all stages of the election on Election Day. See Uwais CJN in BUHARI v. OBASANJO (2005) 7 SCNJ tat page 82.
The second leg of this issue asargued is whether there is proof that the documentary evidence adduced by the Respondents particularly the 1st Respondent was concocted to support the spurious results tendered in proof of her case that election was conducted in the local government.
Appellant’s senior counsel argued that the Tribunal shut its eyes to the fact that the 2nd-10th Respondents had sworn to an affidavit which formed part of its record. In that affidavit at pages 384-387 of the record the 2nd-10th Respondents had sworn that it could not produce the INEC documents as they were no where to be found. Counsel argued that two days later, the same INEC documents surfaced to be tendered by the 1st Resporrdent.
Counsel submitted that the first assertion on oath by the 2nd-10th Respondents that the INEC documents had disappeared must be construed as an admission against their interest. He cited ACB KTD. v. GWAGWALADA (1994) 5 NWLR Pt.342 Pg.25 at Pg.42. Counsel submitted that the court is empowered to look at its file and make use of any documents therein even when not tendered as an exhibit. Counsel cited the following cases (1) AGEAISI v. EFIKOREFE (1997) 4 NWLR Pt.502 Pg.630; (2) AGEAHOMOWO v. EDUYEGEE (1999) 3 NWLR Pt.594 Pg.170 at Pg.182; (3) FAMUDOH v. AFORO (1991) 9 NWLR Pt.214 Pg.210; (4)OKE v. AIYEDUN(1986) 2 NLWR Pt.23 Pg.548 (5) MTAME V. SHIDI (1994) 2 NWLR Pt.326 Pg.321; (6) NWANOSIKE v. UDOSEN.(1993) 4 NWLR Pt.290 Pg.684; (7) FUNDUK ENG LTD V. MC’ARTHUS (1995) 4 NWLR Pt .392 Pg.640

The Appellant’s senior counsel’s contened further that Exhibits 5A, 5C, 5D and 5E, Exhibits 6A-6U (the entire 21 units)Exhibits’977C,7D,7E,7K1G, 7J, 7K, 7M,7N, 7R, 7S, 8B, 7G, 9A, 9B, 9D, 9E, 9F, GG, GH, 10(B) (C) (D) (E) (F) and (G) 11 (E) and 11(F), 12(A) (B) (D) (E) (G) (H) (I) (K) and (Y) as Exhibit 13B were written by persons whose names were not in Exhibits 1-4 and Exhibit .32 which was admittedly the list of INEC adhoc staff and no explanation was offered.
The fact that whereas there can only be one presiding officer for one unit, (as gallantly conceded by the 1st Respondent under cross-examination) the following exhibits had one author as below: Exhibits 6(o) and 6(S) (Nkechi Orji Exhibit 7N, 7Q, 7S (Ezinna Ezebunwa) Exhibits 7G and 7R (Angela Njoku) Exhibits 7H and J (Obioma Okoro) Exhibts 10N and 10F (Victor Emereole).
On the other hand, learned senior counsel for the 1st Respondent argued that Appellant’s counsel had contended in paragraph 4.13 of his brief and in relation to exhibits 1-4 to the effect that the result sheets or forms EC8A series relied upon could not stand because the authors of the said exhibits were never recruited by INEC. This was not established at the lower Tribunal and the so called exhibits 1-4 were not the reasons given by the Appellant to state that election was not conducted in the Local Government as can be seen in paragraph 17 of the petition. It was submitted further that Exhibits 1 and 4 are talking of ad-hoc staff and, therefore, cannot be used by any stretch of imagination to impugn certified public documnents.
Counsel for the 2nd-10th Respondents on this issue which particularly concerned INEC argued that the allegation that election results were concocted was unfounded given the fact that Exh. 30 of the Electoral Officer’s Report was against the case of the Appellant. Counsel argued that the persons who prepared Exhibit 5A, 14A series and Exhs. 15, 17 were duly employed by INEC to conduct the election. He submitted that INEC had the power to designate and re-designate its staff pursuant to 8.62(5) of the Electoral Act. He argued that a careful analysis of Exhs. 1, 2, 2A, 2B and 4 reveal that all the names of INEC officials who conducted the election either as supervisors, presiding officers, collation officers and other ad-hoc staff was clearly shown and in such a case these exhibits debunked the case of the petitioner. He argued that paragraph 20 of the petitioner stating that there are no units or polling station results have been debunked by 5A-13A series and Exhs 14 A-I, 15,16 and 17 which are ward, local government and constituency level results.
Counsel, argued that it is for the Appellant to rebut the presumption that the results published by INEC are authentic. He cited HASIDU v. GOJE (2003) 15 NWLR Pt.843 Pg.352 at 386-387. He argued that 2nd-10th Respondents RW16 led credible evidence of the holding of the questioned election counsel also argued that paragraph 17 sub (i),(ii), (v) (vi).(vii) (iv) (x) (xi) and (xii) of the petition made specific allegations of crime against presiding officers, collation officers, supervisors, presiding officers etc who were not joined in the petition. There allegations are criminal offences by virtue of S.130 of the Electoral Act and must be proved beyond reasonable doubt. Also, these accused officers were not joined to answer the allegations against them contrary to S.36(1) of the Constitution.
I will consider the questions raised in this issue seriatim. On the question of the failure of the Tribunal to give probative value to and to consider that part of the record of proceedings which contained an affidavit sworn to by the 2nd-10th Respondents, the Tribunal held that the Tribunal can only act on relevant evidence that is properly before it. See. page 875 of the record. I cannot argue with the reasoning of the Tribunal that the Appellant did not lead any evidence on this point neither did he confront any of the Respondents witnesses even RW16 the INEC official with the affidavit through cross-examination. There is no doubt that the law permits the use of elicited documentary or oral evidence in a previous proceeding to be used at subsequent proceeding under S.34(1) of the Evidence Act. See. ALADE v. ABORISADE (1960) SCNLR 398; OKWONKWO v. KPAJIE (1992) 2 NWLR Pt.226.Pg.633; ROMAINE v. ROMAINE (1992) 5 SCNJ 25. Learned Appellant’s counsel with the greatest respect seemed to forget that the trial was to begin de novo with another set of judges. The affidavit which was part of the proceedings before the previous Tribunal sworn to by INEC stating that vital election documents in its possession had disappeared should have been used to cross-examine RW16 witness for 2nd-10th Respondents:
That is the proviso in S.34(1)(a) of the Evidence Act. That it the only way the document can properly be before the later Tribunal in a trial de novo. As far back as ALADE v. ABORISADE (1960) 5 FSC 167 at 172, the Supreme Court held that evidence in a previous proceeding is only relevant in examining the credibility of a witness in the present proceeding. It is not however eo ipso evidence in the fresh proceeding. In this case, the Appellant brought the issue up for the first time during address and is complaining that the Tribunal did not yield to his faulty position.
See OCEANIC BANK v. UDUMABRAYE (2008) ALL FWLR Pt.430 Pg.769 at 784.

The second major complaint of the Appellant is that most of the Exhibits tendered by the Respondents were not signed by those whom the Respondents claimed to have signed them. The Tribunal held that since most of the INEC documents were tendered by the 1st Respondent upon her request to INEC and since she could not claim to be a handwriting expert; her admission that the Exhibits might have been written by persons other than those listen in Exhs. 1 and 4 cannot be used against her.
I cannot in the circumstances of this case fault the reasoning of the Tribunal. The question of who signed what cannot be resolved by the Tribunal after it was brought up in address by Appellant’s counsel. It must be resolved during oral testimony.
The question of hand-writing calls for the opinion of the Tribunal possibly guided by a hand-writing expert. Exhs. 1, 2, 2A, and B and 4 were in aid of proving that those who executed the INEC documents tendered by the Respondents were not INEC ad hoc staff at the time of the Election.
A careful analysis of Exhs 1, 2, 2A, 2B and 4 reveal the following details as analyzed by the counsel for 2nd-10th Respondent’s counsel on page 12-13 of his brief which was not denied by the Appellant’s counsel in his Reply Brief. They are stated below:
(a) The names of the following Respondent’s witnesses appear on the following exhibits of the petitioner as officers who conducted elections:
(i) RW11 Supervisor Ikerie Nnena Oko is No. 5 in Exh. 1 list of Supervisors.
(ii) RW15 Supervisor Bright Nwangwa is No.6 in Exh. 1
RW12 Presiding Officer Ugochukwu Irondi appears in column 3 in Exh.1 signed the result in Exh.9c his photograph and name was also in Exh.4.
(iv) RW13 Presiding Officer Victor Emerole is in column 8 of Exh.1 signed the result in Exh.l0h and has his name and photograph in Exh.4.
(v) RW16 Collation Officer for the National Assembly Election David Nwahirole is no.11 in Exh.41. He collated and signed Exhibits 17-31 and many more we cannot mention here for space and time.
(b) The names of the INEC officials who conducted the election and-prepared Exhibits 5A-14A series or exhibits 15 – 17, appear on exhibits 1, 2, 2A and 2B.
(i) Ward 1 is exhibits 5A-11. All the presiding officers who signed the results have their names shown in exhibits 4.
(ii) Ward 3 is exhibit 7A-S (19) units. All the presiding officers for units 1, 2, 3, 5, 9, 12, 15, 16, 17 and 18 have their names in Exh.1, the rest are those where the polling clerks were used as presiding officers.
(iii) Ward 4 is Exhibit 8-L. B units. Presiding Officers for units 1, 2, 3, 4, 5, 6, 7 and 8 all have their names in Exhibit 1. The rest were signed by substitute staff whose names were not listed in Exhibit but are in Exh.4
(iv) Ward 7th is Exhibit 11A-K presiding officers for units 1, 2, 3, 4, 7, 9, 10 and 11 all have their names in Exh.1 the above are put up as samples the rest of the wards are like that.
Given the above analysis, I have to agree with the argument of counsel for the 2nd-10th Respondents that the persons who prepared Exhs.5A, 14A, 15 and 17 were bona fide employees of INEC whose names were on Exhs. 1 and 4.
On the argument of the Appellants that the Respondents did not produce electoral materials i.e. Voter’s register and Form EC25A etc. The Tribunal held that the case of the Appellant was not based on electoral malpractices. The Tribunal held that the pleadings did not specifically include any complaint about Form EC25A or voter’s Register.
Paragraph 20 of the Appellant’s pleadings specifically challenged the Respondents to produce unit results from all the wards within the local government which the 1st Respondent did.
This case must be distinguished from the cases of AMGBARE v. SYLVA (2009) 1 NWLR, Pt.1121 Pg.1; UKPO v. IMOKE (2009) 1 NWLR Pt.1121. Pg.90 where the Respondents and even INEC made absolutely no efforts to tender any document or lead any oral documentary evidence to prove that election took place where the petitioner alleged that election did not take place. To make matters worse, in AMGBARA v. SYLVA AND UKPO v. IMOKE, INEC refused (in spite of notice to produce) to produce for the use of the petitioner or to tender themselves relevant election results.
It is my humble view that the pleadings in this case did not indicate the fact that the voter’s Register and from EC 25A were in controversy to oblige INEC to produce them on their own initiative as a shield or a defence. The documents directly put in controversy by paragraph 20 of the petition were the polling unit results in all the polling units. If the Appellant felt they were needed to prove his case he had the right to ask INEC to produce them for his use or in default face committal proceedings. See BUHARI v. OBASANJO (2005) 7 SCNJ 1 at Pg.52 per Uwais CJN. That was also the opinion of Niki Tobi JSC in ABUBAKAR v. YAR’ADUA (2008) 19 NWLR Pt.1120 Pg.1 at Pg.149. The Supreme Court has placed a much greater burden on the petitioner to facilitate the tendering of relevant documentary evidence to prove his case. Niki Tobi JSC held that it was the duty of the Appellant to tender ballot papers in dispute to prove his case. In this case, the Appellant did not ask the 2nd-10th Respondents to produce the Voter’s Register and EC25A in the latter’s possession.
I cannot help but resolve this issue in favour of the Respondents.

The fourth issue for determination is whether the Tribunal was correct in its conclusion that an election took place in that constituency that day. Learned Appellant’s counsel argued that no witness gave evidence of accreditation. The Respondents did not produce the voter’s Register and Form EC25 (Electoral Material Receipt) which is the only proof that electoral materials were issued and distributed Counsel also argued that no explanation was offered to counter the allegation that only one person authored several exhibits containing differed names. We can see that issues three and four overlap particularly with regard to argument of counsel.
In considering this issue, I must against reiterate the law that the onus was not on the Respondent but the petitioner to prove that election did not take place. One of arguments of the Appellant is that the Respondents did not call the Electoral Officer and the Divisional Police Officer for the Local Government. Since it was the Appellant who claimed in paragraph 18 of the petition that the DPO for Osisioma Ngwa Local Government testified openly that no election took place, he cannot turn around to rely on his adversary to call such a person as a witness.
Paragraph 19 of the petition also states that the Transition Chairman of Osisioma Local Government Area equally testified that no election was held in the local government. The Tribunal noted that even though as the Local Government Transition Chairman he could not give evidence under S.46 of the Electoral Act, the Tribunal evaluated his evidence. The Tribunal held that in the witness statement on oath the witness swore that he cancelled the election in the local government in consultation with the DPO and Electoral Officer because the result was marred by fraud, fundamental irregularities and violence. Later, he told the court that election did not hold at all which is a contradiction.
The Tribunal also held that the Exhs. A & B he referred to were not attached to his sworn statement nor tendered during evidence.
The problem here is the pleading of the petitioner. A pleading that election did not hold AT ALL is quite different from a pleading that the election held was fraught with so numerous and grave electoral malpractices that it must be nullified. The case met by the adverse party is dependant on the case of the Petitioner.
Each of the incidents of electoral-malpractices in paragraph 17 of the petition must be proved. Paragraphs 18, 19 and 20 must also be proved on a balance of probabilities.
In fact, unrelenting effort should have been made to prove paragraphs 18 and 19 of the Petition. S.46 of the Electoral Act only says PW4 cannot be an agent of any political party at the election.
He did not give evidence as the agent of any party. I do not buy the argument of the learned counsel for 2nd-10th Respondents that he was not a competent witness. However, the Appellant did not maximize his usefulness. For example, the letters purportedly written by PW4 who was in my view the most credible and material witness for the Appellant were not tendered to buttress the testimony of PW4. PW4 had claimed in his sworn statement that he wrote to the Resident Electoral Commissioner and issued a press release. Those documents were within the powers of the Appellant to produce.
With the greatest respect, I wish also to reiterate that the mind set of the Appellant that the legal onus rested on the Respondent to prove the holding of the election led to the misconception that only minimal proof was required on the part of the Appellant. Unless there is admission in the pleadings, a person making a negative or positive assertion still needs to prove same depending on the assertions either beyond reasonable doubt or on a balance of probabilities.
The 1st Respondent called a total of 15 witnesses. Most of the witnesses gave evidence of having voted on the day of the election.
RW3, RW4, RW5, RW6, RW7, RW8, RW9, RW10 all gave evidence that they were accredited; they voted and they tendered their voter’s registers.
RW11 and RW15 were INEC ward Supervisors who testified that they collected electoral materials, distributed them and received results from the presiding officers.
RW12, RW13, RW14 were presiding officers who testified that they collected call electoral materials, conducted election, filed all the statutory forms and handed the result to the ward supervisor.
The 1st Respondent tendered Exh. 5A-5H up to Exh.13A-13E which is completed form EC8A1, the results from all the polling units in the nine wards of the local government. Ward summary results in form EC8B1 are Exh.14A-I. The local government results form EC8C1 was tendered as Exh.15. The Senatorial District Result EC8E1 was tendered as Exh.16. Summary of results from registration areas was tendered as Exh.17 is contained in form EC8C 11.
I hold the view upon a dispassionate consideration and evaluation of the evidence of both parties that the preponderance of evidence was on the side of the Respondents who claimed that in fact; election was conducted- by INEC in the local government I find that the Tribunal was right in its finding that the Appellant did not prove the grounds of the petition: The fourth issue is resolved against the Appellant.
The fifth issue is whether the Tribunal was correct in its finding that Exh.30 which was undated had probative value.
Appellant’s counsel argued that Exh.30 an undated report made by the Electoral Officer should have been rejected or at best given no probative value. He cited OMORINBOLA II v. MIL. GOV. ONDO STATE (1995) 9 NWLR Pt.418 Pg.201 at Pg.222, were this court held that for a document to have probative value; it should not only be duly certified which goes only to admissibility but it should also contain evidence of date and authorship.
Learned counsel for the 1st Respondent argued that the facts of this case must be distinguished from the facts of the case OMORINBOLA II v. MIL. GOV. ONDO STATE (supra).
Let me first deal with the case law in OMORINBOLA II v. MIL. GOV. ONDO STATE, the Supreme Court held that the presumption in S.130 of the Evidence Act cannot avail an undated document more than 20 years old and whose authors were not known.
The Tribunal on this point held that the document was signed and clear as to its purpose and for which election it reported, thus lack of date was of no moment. My own view is that election petition results and reports are very important documents. The date on them is of great significance in proof of their contents and many issues flow from the date it was executed. Without having the date of execution of Exh.30 how can the Tribunal know that it was made contemporaneous with the date the results were declared?
It may be of probative value if the maker gives parol evidence of the date it was executed. Where such a report is undated, it should be suspect. See OGBAHON v. REG. TRUSTEES CCC (2002).1 NWLR Pt.749 Pg.675; ANIZU v. NZERIBE (1989) 4 NWLR Pt.118 Pg.775. I Would not in the circumstances have given much probative value to Exh.30 which was the undated report of the election. I agree with the Appellant on this issue. The Tribunal should not have given any probative value to Exh.30.
In any event, the evidence on record in favour of the Respondent’s case was overwhelming. Most of the pertinent issues particularly based on the finding of the Tribunal regarding the holding of the election have been resolved by me in favour of the Respondents. The appeal fails, the judgment of the trial Tribunal is affirmed. Costs of N30,000.00 to the 1st Respondent against the Appellant.

ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I have had the privilege of reading in advance the majority Judgment of my learned brother, Ogunwumiju, JCA, just delivered in this appeal with which I entirely agree. In the aforesaid Judgment, all the issues submitted to this Court for the determination of the appeal have been meticulously and exhaustibly dealt with to which I find it difficult to add any useful comment.
Accordingly, the appeal fails and it is dismissed. I abide by the consequential orders made in the Judgment including the order as to cost.

MOJEED ADEKUNLE OWOADE, J.C.A.: This appeal stems from the judgment of the National Assembly/Governorship Election Petition Tribunal sitting in Umuahia, Abia State, delivered on 24th October, 2008.
The judgment of 24th-October, 2008; by the lower Tribunal was in turn based on the retrial order by the Court of Appeal, Port Harcourt Division in its judgment of 14th May, 2008, that the petition be heard before another Panel to determine a sole issue to wit:
“Whether or not, election was conducted in Osisioma Ngwa Local Government Area on 28th April, 2007, as pleaded in paragraphs 17, 18, 19 and 20 of the petition and the paragraphs of the Respondent’s Replies joining issues on the question and the Reply of the petitioner to the Replies of the respondent.

In dismissing the appellant’s petition, the retrial lower tribunal concluded at page 878 that:
We have earlier ruled that the pleadings of the petitioner is self contradictory and subject to two interpretations; we equally held the view that the petitioner failed to prove his assertion that elections were not conducted. We did find also that the allegation that the results used by the respondents to declare the winner, had not been proved to be bogus, concocted and contrived. Accordingly, having carefully analyzed the evidence placed before us, this Tribunal in answering the question as to whether or not elections were held in Osisioma Ngwa Local Government answers in the affirmative. It is our further finding that the results of the election used to declare a winner, was actually the result of the election conducted. From all the deductions so far made, we find no merit in the petition and it is hereby dismissed…
Earlier on at page 864 of its judgment, the retrial, Tribunal held that:
In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to the presumption that may arise on the pleading. The above burden is on the petitioner and does not shift, nor can the petitioner depend on the weakness of the case of the adverse party. He must set out his case and prove it. See the case of Attorney-General of Anambra State v. Onuselogun (1987) 4 NWLR pt.66) 547.
Also at page 873, the retrial Tribunal held inter alia that:
It is equally trite he who asserts bears the evidence burden of proof. Thus, the assertion by the petitioner that election were not conducted places the burden squarely on him to first prove that assertion…
Dissatisfied with this judgment appellant filed a Notice of Appeal containing 11 grounds of appeal to this court on 12th November, 2008. The Appellant’s brief dated 22/12/08 was filed on 24/12/08. The 1st Respondent’s brief dated 16/1/09 was filed on 19/1/09. And the brief of the 2nd-10th Respondents dated 14/1/09 was filed on the same day. Appellant’s reply brief dated 27/1/09 was filed on 28/1/09. The appellant formulated 6 (six) issues for determination as follows:
1. Was the Tribunal correct in its conclusion that the burden of proving the non holding of an election was on the appellant who relied upon a negative assertion rather that the respondents who made a positive assertion. Grounds 1-2.
2. Was the Tribunal correct when it held that the appellant’s address related to the proof rendered by the respondents and if not, did this misdirection not impair the Tribunal’s consideration of the appellant’s case. Ground 3.
3. Was the Tribunal correct when it held that the appellant did not petition. Grounds 4, 5, 6, and 8.
4. Was the Tribunal correct in its finding that Exhibit 30 which was undated had probative value. -Ground 7.
5. Was the Tribunal correct in its conclusion that the respondents proved that an election took place in the constituency on the day in question. – Grounds 9 and 10.
6. Was the Tribunal correct or competent to hold that the pleadings of the appellant were self contradictory and subject to two interpretations. – Ground 11.

The 1st respondent through his leading senior counsel, Chief Wole Olanipekun formulated the following issues for determination:
1. On who lies the burden of proof of the issue at stake in the petition leading to this appeal. (Grounds 1, 2 and 3)
2. Considering the express pleadings of the petitioner/appellant in paragraph 17 (i – xii) of his petition and the hollow evidence adduced by the petitioner, whether the lower Tribunal was not right by holding that appellant did not prove any of the allegations in the said paragraph.” (Grounds 4, 5, 6 and 8)
3. Having regard to the fact that the lower Tribunal heard, this petition de novo in respect of the question directed to it by the Court of Appeal vide its judgment of 14th May, 2008. Whether the lower Tribunal was not competent to look at the pleadings of the appellant as contained in paragraphs 17, 18, 19 and 20 under (sic) and the corresponding paragraphs of the Respondents’ Replies.” (Ground 11)
4. Considering the germane aspects of the pleadings of the parties vis-a-vis the oral and documentary evidence tendered before the lower Tribunal whether the said Tribunal was not perfectly right in the decision it reached. – (Grounds 7, 9 and 10)

The 2nd – 10th respondents submitted only three (3) issues for determination as follows:
1. Whether the Tribunal was right in its finding that the appellant did not prove his case or his petition regard being had to the pleadings and evidence led. (Grounds 1, 2, 3, 4, 6, 8 and 11)
2. Whether having regard to the pleadings and evidence led, the reconstituted/retrial Tribunal was right in its findings that election was duly held in Osisioma Ngwa L.G.A. (Grounds 5)

I have carefully perused the issues set down for determination by the appellant and the two sets of respondents, I am of the considered opinion that the following issues which are an admixture of the issues formulated by the parties would suffice to dispose off the appeal.
1. Was the Tribunal correct or competent to hold that the pleadings of the appellant were self contradictory and subject to two interpretations- (Ground 11)
2. On who lies the burden of proof of the issue at stake in the petition leading to this appeal. – (Grounds 1, 2, and 3)
3. Was the Tribunal correct when it held that the appellant did not prove any of the allegations in paragraphs 17(i) – (xii) of the petition – (Grounds 4, 5, 6 and 8)
4. Was the Tribunal correct in its finding that Exhibit 30 which was undated had probative value, – (Ground 7)
5. Was the Tribunal correct in its conclusion that the respondents proved that an election took place in the constituency on the day in question. (Grounds 9 and 10)

The present arrangement of the issues for determination in this appeal recognizes the dependency of Issue No. 2 on the answer to Issue No. 1 as well as the sole determining factor of Issue No. 2 on the appeal. In other words, the consideration of other issues in this in this appeal, may well depend on the answer to Issue No. 2.

Henceforth, the case of the appellant shall be placed on one side while the case of the two sets of respondents shall be put together on the other side of the scale and the two sets of respondents shall barring the need for emphasis would henceforth be referred to as the respondents. This is for reasons of convenience and the shared common interest between the two sets of respondents.

On Issue No. 1, the appellant submitted that the tribunal lacked the competence to hold that the pleadings of the appellant were self contradictory and subject to two interpretations. Learned senior counsel for the appellant referred to page 818 of the record, vol. 1, where the Tribunal in the concluding part of its judgment said:
“We have earlier ruled that the pleadings of the petitioner is self contradictory and subject to two interpretations”.
The learned senior counsel for the appellant juxtaposed this holding with that of the Court of Appeal in its judgment remitting the case for retrial at pages 30 that:
That totality of the petitioner’s averments in paragraph 16 of the petition is that there was no election in Osisioma Ngwa Local Government Area and that the 1st respondent was wrongly credited with some bogus result from Osisioma Ngwa Local Government Area land.
On this grave allegation that there was no election in Osisioma Ngwa Local Government Area and yet the 1st respondent was credited with some bogus result the tribunal did not bother to evaluate the totality of the evidence.

Learned senior counsel for the appellant argued that the Tribunal was bound by the decision of the Court of Appeal and had no business reopening the issue settled by the Court of Appeal. Moreover, that there is nothing in the pleadings of the petitioner that supports the conclusion of the Tribunal. The respondents on the other hand, took the view generally that as the appellant’s petition was heard de novo in respect of the question directed to it by the Court of Appeal vide its judgment of 14th May, 2008, the lower Tribunal was competent to look at the pleadings of the appellant as contained in paragraphs 17, 18, 19 and 20 and the corresponding paragraphs of the Respondent’s Replies.
The respondents more particularly through the leading senior counsel for the 1st respondent submitted that in ordering a differently constituted panel to hear this matter de novo in respect of whether or not election was held in Osisioma Ngwa Local Government and using paragraphs 17, 18, 19 and 20 as the fulcrum, read together with the relevant paragraphs of the Respondents Replies the Court of Appeal did not by so doing divest the lower Tribunal of the power and jurisdiction to look at the pleadings critically particularly in relation to the issue in contention Respondents relied on the cases of Okere vs. State (2001) 2 NWLR (Pt. 6970) 397 at 420, Fabunmi v. Oyewusi (1990) 6 NWLR (Pt.159) 728 at 738 Agbi v. Ogbe.(2005) 8 NWLR (Pt. 926) 40at 107 – 108, Babatunde vs. P.A.S. & T.A Ltd. (2007) 13 NWLR (Pt. 1050) 113 at 147 – 148 and submitted that since the-order was for trial de novo albeit in respect of the narrow issue the state is wiped clean and the trial is afresh.
The respondents further supported this line of argument by referring to a quotation by the lower Tribunal in reaction to the 1st Respondent’s counsel urge at the address stage to discountenanced the new de novo albeit in respect of the narrow issue; the slate is wiped clean and the trial is afresh.

The respondents further supported this line of argument by referring to a quotation by the lower Tribunal in reaction to the 1st Respondent’s counsel urge at the address stage 4 to discountenance the new depositions by the petitioner/appellant. Respondents said that in rejecting the invitation the lower Tribunal held that:
“The order of the Court of Appeal being referred to is as produced earlier in the judgment. The said order appears enough. It is to the effect that a trial de novo be commenced on the question in Osisioma Ngwa Local Governemnt Area, taking into consideration paragraphs 17-20 of the petition, as well as the replies thereto. We are unable to see any aspect limiting evidence especially as it relates to the paragraphs under consideration. We do not in that regard agree with the learned SAN, that such a restriction can be read into the said order and we so hold”.

According to the respondents, the aforequoted finding of the lower Tribunal completely settled the issue of whether or not it could look into the pleadings of the parties, particularly the petitioner to hold as it did, that the pleadings were self contradictory and that the Court of Appeal’s order never foreclosed the right of the Tribunal to reach the conclusion it so reached.
Respondents submitted that on the basis of the pleadings in paragraph 17 and applying the maxim res ipsa loquito, that by the petitioner’s/appellant’s own showing there was election in Osisioma Ngwa Local Government on 28th April, 2007. That, the twelve characteristics of the election given by the petitioner/appellant under paragraph 17 were/are to the effect that election held and that something which did not take place at all as alleged could not have been characterized by vices as adumbrated under 12 sub paragraphs of paragraph 17. There is a world of difference, said the respondents between election being characterized by malpractices and election not holding at all. That for a petitioner/appellant like the one we have in this case to complain, amongst others, of forceful, hijacking and diversion of electoral, materials by supporters of the 1st Respondent non-display of ballot boxes, before voting etc. amounts to complaining of electoral malpractices, or corrupt practices or non-compliance with, the provisions of the Electoral Act; particularly; section 145(1) (b). This according to Respondents means that election was conducted but that the said election can be voided by reason of corrupt practices etc. Furthermore, said the respondents, it is not the pleadings of the petitioner/appellant or his case that the election be voided under section 145(1) (b) of the Electoral Act. But if anything, the 2nd ground the petition is that the 1st respondent did not win majority of lawful votes cast at the election which is contrary to paragraph 17 of the petition as pleaded.
The respondents relied on the case of Buhari vs. INEC (2008) 4 NWLR (Pt. 1078) 546 at 634-637, to further contend that a mutually exclusive and contradictory pleading such as, that of the petitioner/appellant cannot be countenanced under section, 145 (1) of the Electoral Act. Still on the petitioner’s/appellant’s pleadings, the respondents further contend that paragraph 18 flows from paragraph 17 but further contradicts it. That paragraph 19 further complicates and contradicts paragraphs 17 and 18.
In his Reply brief, learned senior counsel for the Appellant referred to the case of Sir Hon. Sir Azuka Okwusa vs. Ikechukwu Obiora & Ors. CA/PH/EPT/68/2007 of 18th December, 2008 (unreported) where the Enugu Division of the Court Appeal considered the same pleadings as in this case and found no contradiction. Appellant’E2’80’99s counsel quoted the court to have said;
The case of the appellant simply put was that there was no election within the context of the Electoral Act, 2006 on the 21st of April, 2007. It was the appellant’s case that for the reasons summarized in paragraph nine (9) of the petition, there was no election. The reasons are:
(a) Late arrival of the election material in all the 7 Local Government INEC Offices.
(b) Non-inclusion of result sheets amongst the electoral materials which were intended for use at polling stations.
(c) …..
(d) …..
(e) …..
(f) …..
(g) Non-display of ballot boxes before voting.
(h) ….
(i) Non entry of result at polling stations into statutory forms at polling stations and non counter signature by party agents.
(j) ….
(k) ….
(l) ….
(m) ….
(n) Non-collation of results at Ward and Local Government levels.
Appellant’s senior counsel contend that the Court of Appeal, Enugu Division did not see any contradiction in the above pleading used in the case of Okwusa vs. Obiora & Ors. (supra) and could not see any contradictions in the petitioner’s/appellant’s pleadings in the instant case either.
In deciding Issue No.1, it is important for ease of reference to make copious references to the relevant paragraphs of the petitioner’s/appellant’s pleadings in the instant case. Appellant’s petition can be found on pages 1-92 of Volume 1 of the Record. Of particular relevance to this appeal are paragraphs 17, 18, 19 and 20 which can be found on pages 4-5.
“17. The petitioner pleads that there was no election in Osisioma Ngwa Local Government Area on the day in question. The petitioner’s agents, members of other parties and even members of the 1st respondent’s party acknowledge that there was no election in the Local Government on the day in question. Specially, the petitioner pleads that the election was characterized by-:
(i) Non-inclusion of result sheets amongst the electoral materials which were intended for use at polling stations.
(ii) Non-inclusion of result sheets intended for use at Ward and Local Government levels.
(iii) Forceful hijacking and diversion of electoral materials by supporters of the 1st respondent.
(iv) Absence of actual voting by the electorate at the polling units.
(v) Non-display of ballot boxes before voting.
(vi) Absence of Presiding Officers and other agents of 2nd respondent at polling stations and resultant non accreditation of voters.
(vii) Non-entry of results at polling stations into statutory forms at polling stations and no counter signature by party agents.
(viii) Non-announcement of results agents of the 2nd respondent at polling stations by-
(ix) Non delivery of duly completed and counter signed result sheets to agents of the candidates.
(x) No step by step recording of result in forms from the polling units to the Senatorial district collation centre.
(xi) Result forms at Ward and Local Government levels not stamped, signed and counter signed by the relevant officer’s agents of the 2nd respondent’s agents of the parties and security agents.
(xii) Non collation of results at Ward and Local Government levels.
18, In view of the foregoing, the Divisional Police Officer for Osisioma Ngwa Local Government testified openly at the collation centre for Abia Central Senatorial District that no election took place within the Local Government.
19. The Transition Chairman for Osisioma Ngwa Local Government Area equally testified that no election was held in the Local Government. Based on the report which the petitioner wrote a letter dated 29th April, 2007, to the 3rd respondent requesting that the purported result be cancelled. In spite of the unanimity amongst the law enforcement Agents, the Electoral Officer and other parties except that of the 1st respondent that no election took place in Osisioma Ngwa Local Government Area, the 2nd-10th respondents went ahead to declare the 1st respondent as the winner of the election.
20. The petitioner specifically pleads that there are no units or polling station results backing up the false score of 40, 671 votes alleged scored by the 1st respondent in the Osisioma Ngwa Local Government Area. The respondents are hereby challenged to produce the unit’s results from all the wards within the Local Government.

A perusal of paragraphs 17-20 of the petitioner’s/appellant’s pleadings may indeed suggest that the said paragraphs of the pleadings are grammatically contradictory and logically inconsistent. Also, the counsel to the respondents could also be right to say that the order of the Court of Appeal of 14th May, 2008, was for the petition to be heard de novo and that there was nothing in the order of the Court of Appeal which precluded the retrial Tribunal from looking at the pleadings of the petitioner more especially paragraphs 17-20 of the petition and the paragraphs of the respondents replies joining issues on the question and the reply of petitioner to the replies of the respondents on the singular question whether or not election was conducted in Osisioma Ngwa Local Government Area on 28th April, 2007.
It seems to me to that the limits of what the retrial Tribunal could look at in the pleadings of the parties was defined by the judgment of the Court of Appeal of 14th May, 2008, when it said at Page 30 that:
“The totality of the petitioner’s averments in paragraphs 16-22 of the petition is that there was no election in Osisioma Ngwa Local Government Area and that the 1st respondent was wrongly credited with some bogus result from Osisioma Ngwa Local Government Area”
and at page 31 that:
“On this grave allegation that there was no election in Osisioma Ngwa Local Government Area and yet the 1st respondent was credited with some bogus result, the tribunal did not bother to evaluate the totality of the evidence”.

In the circumstances of this case, and by the judgment of 14th May, 2008, by the Court of Appeal, Port Harcourt Division, while it is permissible for the retrial Tribunal to look generally at the pleadings of the parties in the determination of the question before it, any pronouncement or holding which contradicts the opinion or conclusion of the Court of Appeal that totality of the petitioner’s averments in paragraphs 16-22 of the petition is that there was no election in Osisioma Ngwa Local Government Area by the retrial Tribunal would not be permissible.

Appeal that the totality of the Petitioner’s averments in paragraphs 16-22 of the petition is that there was no election in Osisioma Ngwa Local Government Area by the retrial Tribunal would not be permissible. It is from this background that one must view the pronouncement of the retrial Tribunal at page 818 of the record that:
“We, have earlier ruled that the pleadings of the petitioner is self contradictory and subject to two interpretations”.

In my humble opinion, the finding of the retrial Tribunal in the above quoted passage that the pleadings of the petitioner is subject to two interpretations can only mean in the context of the case before the retrial Tribunal that the petitioner’s/appellant’s pleadings in one breath says there was no election and in another breadth that there was an election albeit characterized by vices. This idea of the petitioner’s/appellant’s pleadings being subject to two interpretations runs foul of the express finding in the judgment of the Court of Appeal that the totality of the petitioner’s averments in paragraphs 16-22 of the petition is that there was no election in Osisioma Ngwa Local Government Area….”. The passage by the retrial Tribunal at page 868 of Vol. 2 of the record quoted by in support of argument by the learned senior counsel for the 1st respondent where the Tribunal said that as it was a trial de novo they could not see any aspect limiting evidence especially as it relates to the paragraphs under consideration may well be within the limits of the power and competence of the Tribunal. However, any finding of the Tribunal which gives, any other interpretation to the pleadings of the petitioner outside the conclusion in the judgment of the Court of Appeal would, be ultra vires the power donated to the retrial Tribunal by the judgment of the Court of Appeal.
It is in light of the above that I agree with the learned senior counsel for the appellant that the Tribunal was bound by the portion of the decision of the Court of Appeal that the totality of the petitioner’s averments in paragraphs 16-22 of the petition is that there was no election in Osisioma Ngwa Local Government Area and that the, 1st respondent was wrongly credited with some bogus result from Osisioma Ngwa Local Government Area, And that the retrial Tribunal had no business re-opening the issue settled by the Court of Appeal Issue No. 1 is resolved against the Respondents.
Issue No.2 is on who lies the burden of proof of the issue at stake in the petition leading to the appeal. In arguing the 2nd issue, the learned senior counsel for the appellant targeted two of the findings of their Lordsbips of the Tribunal at pages 864 – 868 of Vol. 2 of the record First that:
“In the case of Amgbare vs. Sylva (supra) the Court of Appeal, stated that ‘the appellants through the evidence of their witnesses, in alleging the absence of any election held were by implication asserting the allegation, which needed no documents to prove. On the contrary, the responcients assert the existence of positive facts in relation to election having been held’ ”
“In the instant case, the petitioner pleads that elections were not conducted in Osisioma Ngwa L.G.A. Paragraphs 17 (i) – (xii) enumerates what formed the basis of his assertion that election did not hold. In the circumstances, it is the evidence of his witnesses which will now assert the negative that will shift the burden upon the respondents who asserted the positive. We place reliance on the authorities of Renold Construction vs. Okwejiminon (supra) the case of Adegoke vs. Adibi (supra) the case of Osawaru vs. Ezeiruka (supra) and the case of Remi vs. Sunday (supra)”.

Second, at page 867, 2nd paragraph to page 868 1st paragraph, their Lordships of the Tribunal held again that:
“In the present case, the pleadings of the petitioner in paragraph 17 where it averred that election were not conducted can only speak out and say so through witnesses. The combined provisions of section 135, section 137(1), (2) and section 139 of the Evidence Act relates the position that the burden of proof lies on he who asserts and in this case the petitioner. It is only where such evidence is proffered that the burden shifts to the respondents who asserted that the election were conducted to prove the assertion”.

On the above views expressed by the Tribunal, the learned senior counsel for the appellant submitted that it is not difficult to appreciate the fact that the Tribunal took the view that the burden was on the appellant to first prove his negative assertion and thereafter the burden would shift to the respondent to prove the positive. This according to the learned senior counsel for the appellants is a misconception of the cases relied upon by the Tribunal. Learned senior counsel for the appellant then referred to the cases of: Buhari vs: Obasanjo & Ors (2005)13 NWLR (Pt.94) 1 at pp 309-310; Reynolds Construction v. Okwejiminior (2001) 15 NWLR (Pt. 735) p. 871; Adegoke vs. Adibi (1992) 5 NWLR(Pt. 242) p. 410 at 423; Remi v. Sunday (1999) 8 NWLR (Pt. 613) p. 92 at 105 and Amgbare vs. Sylva (2009) 1 NWLR (Pt. 1121) p: 1 to drive home the point in the words of the Supreme Court in Adegoke vs. Adibi (supra) that the principle is that the burden of proof lies on who asserts and not on he who asserts the negative of an issue.
Learned senior counsel for the appellant submitted that the Tribunal erred grievously as they misdirected themselves, completely by shifting the respondent’s burden to the appellant. The approach of the Tribunal said appellant’s counsel has caused a grave miscarriage of justice as the Tribunal did not appreciate that the burden of proof depended on the state of the pleadings.
The respondents in response to the above submitted that in whatever situation a plaintiff finds himself in a court of law, whether he is asserting the positive or negative, the position of the law remains unchangeable to the effect that the burden of proof of either the positive or negative lies on him. Relying on the provisions of sections 135, 136 and 137 of the Evidence Act and the cases of Omorinbola vs. Military Governor, Ondo State (1995) 9 NWLR (Pt. 418) 201 and Olohunde vs. Adeyoju (2000) 10 NWLR (Pt. 676) 562. Respondent’s counsel submitted that it has been the position of our law and jurisprudence from time immemorial that the onus or duty is always on a plaintiff to prove his case and rely on its strength, rather than relying or capitalizing on the weakness of the defence. Respondent’s counsel pointed out that what the petitioner in the case of Remi vs. Sunday (supra) asserted as in this case was that there was no election without him tendering the voter’s lists and the voter’s registers. That, judgment was given in his favour at the lower Tribunal but that a full panel of the Court of Appeal reversed the judgment on an appeal filed by the returned candidate. And that in the cases of Reynold Construction Ltd. vs. Okwejiminior (supra); Adegoke vs. Adibi (supra); Osawaru vs. Ezeiruka (1978) 6-7 SC 135 at 145 and Remi vs. Sunday (supra). It was severally held that in this type of situation, the burden lies on the appellant to prove or establish what he has asserted. Respondents submitted further that section 137(2) of the Evidence Act only calls on the 1st respondent herein to enter any defence or proffer any evidence if the appellant has produced reasonable evidence.
In determining Issue No: 2, it is important to reproduee, revisit and analyse the provisions, of the Evidence Act relating to burden of proof more especially the provisions of sections. 135, 136 and 137 of the Evidence Act.
Now sections 135, 136 and 137 of the Evidence Act provide thus:
135(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts
(2) When a person is bound to prove the existence of any fact, it is said that the burden if proof lies on that person.
136. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
137(1) In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presulmption that may arise on the pleadings.
(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established the burden lies on the party against whom the judgment would be given if no more evidence were adduced and so on successively, until all the issues in the pleading have been dealt with.
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.
The provisions of sections 135 – 137 indeed to section 140 of the Evidence Act are related rules on the concepts and nature of burden of proof in civil cases. The provisions generally maintain the common law rule that ‘he who asserts must prove’, a rule which is adopted principally because it is just that he who invokes the aid of the law should be the first to prove his case and partly because, in the nature of things, a negative is more difficult to establish than an affirmative. However, the burden of proof in any particular case depends on the circumstances in which the claim arises. See e.g. Lord Maugham in the case of Constatine Line vs. Imperial Smelting Corporation (1942) AC 154, where the learned Lord said:
“The burden of proof in any particular case depends on the circumstances in which the claim arises. In general the rule which applies is Ei qui affirmat non ei qui neqat incumbit probatio. It is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons”.
Section 135 of the Evidence Act corresponds to what is generally termed the burden as a matter of law and pleadings or the burden of establishing a case whether on the preponderarice of evidence or beyond reasonable doubt. Section 136 goes further to expatiate the provision of section 135 and places the burden of proof in a suit or proeeeding on either of the parties plaintiff or defendant who would lose if no evidence were adduced on either side, It would then be seen that the confusion which sometimes arise in the placement of the burden of proof in civil cases in between the plaintiff or the defendant can be easily located in the interplay between the provisions of sections 135 and 136 of the Evidence Act.
By virtue of section 135 of the Evidence Act the person who usually desires that a court gives judgment as to any of his legal right or liability is the plaintiff but that in itself is not always so. Section 136 further explains the provision of section 135 by properly placing the burden on that party, plaintiff or defendant who would fail if no evidence were given on either side.
It is therefore clear and contrary to the submissions of the respondent’s counsel in the instant case that the burden of proof is not permanently on the plaintiff even if it is almost always on the plaintiff. This imperative as to the non-permanent nature of the party on whom the burden of proof lies must have influenced the decision of the Supreme Court in the case of Chief Gordon Joe Young Jack & Ors. Vs Chief R. I. T.Whyte & Ors. (2001) 3 SCNJ 55 at 63, when it held that:
“The law is well settled that the burden of proof in civil cases rests upon the party, whether plaintiff or defendant who substantially asserts the affirmative of the issue. It is an ancient rule founded on consideration of good sense and it should not be departed from without reasons. It is fixed at the beginning of the trial by the state of pleadings, and it is seated as a question of law remaining unchanged throughout the trial exactly where the pleadings placed it and never shifting in any circumstances whatever. If and when all the evidence, by whosoever introduced is in the party who has the burden has not discharged it, the decision must be against him.”

Section 137 as could also be seen from the above cited case amplifies but at the same time corroborates as it tallies with the provisions of sections 135 and 136 of the Evidence Act. It’s subsection (1) places the burden of first proving on the party again either plaintiff or defendant who would lose if no evidence were called on either side and then talks about the role of pleadings and presumptions in the identification of that party. Sub-section (2) of section 137 talks about the shifting of the load or evidential burden after if had been discharged by the party or) whom the burden on,pleadings is located by virtue of section 137(1) and who incidentally is the same party who must first as it were kick the ball of burden of proof in Civil cases. Sub-section (2) of section 137 says in effect that if the party who first kicked the ball under section 137(1) adduces evidence which ought reasonably to satisfy a jury that the fact proved is established he has discharged his own burden. The burden shall then lie or perhaps shifts to the party against whom judgment would be given if no more evidence were adduced and so on successively, until all the issues in the pleasings have been death with.
It would be seen that the provisions of section 136 and section 137 (1) represent the so called non-shifting nature of the burden of proof or burden on pleadings simply because the party who carries that burden must be appropriately identified at the close of pleadings and before the commencement of trial. The provision of section 137(2) on the other hand represents the shifting nature of the burden which now transforms or metamorphises into a shifting or evidential burden after the party who first kicked the ball, has successfully adduced evidence that the fact sought to be proyed is established.
The Supreme Court grasped the essence of the nature of burden of proof embodied in the provisions of sections 135, 136 and 137 of the Evidence Act when, it held in the case of Murana B. O. Elemo & Ors. Vs. Fasasi A. S. Omolade & Ors, (1968) NMLR 359 at 361 as follows:
The point raised by Chief Williams, counsel for the plaintiffs, raises the question as to the burden of proof and his submission failed to distinguish the two distinct and frequently confused meanings which have always been attached to the proof has two distinct and frequently confusing meanings. (i) It means the burden of proof as a matter of law and pleadings, the burden as it has been called of establishing a case whether by preponderance of evidence or beyond reasonable doubt. (ii) The burden of proof in the sense of introducing evidence. As regards the first meaning attached to the term burden of proof this rests upon the party whether plaintiff or defendant who substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the state of the pleadings and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it and never shifting in any circumstances whatever. In deciding which party asserts the affirmative regards must of course be had to the substance of the issue and not merely to its grammatical form which latter the pleader can frequently vary at will. Moreover, a negative allegation must not be confounded with the mere traverse of an affirmative one. The true meaning of the rule is that where a given allegation whether affirmative or negative forms an essential part of a party’s case, the proof of such allegation rest on him. (see Abrath vs. North East Railway, (see Phipson on Evidence, 9th Edition, pages 82-83).
(2) Burden of adducing evidence. It is in this second sense that the term is more generally used while the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift. Constantly more as one scale of evidence or the other preponderates. In this sense the Onus Probandi rests upon the party against whom the tribunal at the time the question arises would give judgement if no further evidence were adduced.
See also, Imana v. Robinson (1979) 3-4 SC 1; Osawaru vs. Ezeiruka (supra); Atane vs. Amu (1974)10 SC 237 Fashanu vs, Adekoya (1974) 6 SC 83; Kate Enterprises Ltd. vs. Daewoo Nig Ltd. (1985)2 NWLR (Pt. 5) 116; Okunola v. Oduola (1987) 4 NWLR (Pt. 64) 141; USA Ltd. vs. Ademujiwa (1999)11 NWLR (P.t. 628).570 and Adeniji vs. Onagoruwa (2000) 1 NWLR (Pt. 639) 125.

Respondents counsel in the instant case should not find it strange that there are circumstance arising from the Claims when the responsibility or burden of proof would be placed on the defendant. For example, in the case of Olotu vs. Administrator General 12 WACA 71, it was held that where an owner of land brings an action to recover possession the onus of proof of their right to possession lies on the defendants, To discover where the onus lies in any given case the court has to look critically at the pleadings.
In Onobruchere vs. Esegine (1986) 1 NWLR (Pt. 19) 799, the Supreme Court explained the dynamics of the shifting burden as follows:
Where for instance the plaintiff pleads possession of the land in dispute as his root of title and the defendant admits that possessioin but adds that the plaintiff on pledge then the onus shifts onto the defendant to prove that the plaintiff is not the owner of the land in his possession of which has been admitted, Once the defendant admits the plaintiffs possession of the land in dispute in his statement of defence, there and then, the plaintiff has on the pleadings discharged the onus of proof cast on him and section 145 of the Evidence Act, Cap, 62 of 1958 will impose a burden on the defendant to prove the negative namely that the plaintiff is not the owner. See Lawrence Onyeakaonwu & Ors, vs. Ekwubiri (1966) 1 All NLR 32 at p, 35.
The relationship between the provisions of sections 135, 136 and 137 of the Evidence Act more especially sections 136 and 137 is best demonstrated by the case presently on hand in this appeal.
In the instant case, we are agreed that the summary of the totality of the petitioner’s/appellant’s pleadings is that:
There was no election in Osisioma Ngwa Local Government area and that the 1st respondent was wrongly credited with some bogus result from Osisioma Ngwa Local Government Area.
The 1st respondent in reaction to the petitioner’s paragraph 17 entered a denial and further response in paragraph 18, 19 and 20 of the Reply by the 1st respondent as follows:
18. Paragraph H of the petition is denied. In further answer, the 1st respondent avers that there was election in Osisioma Ngwa L.G.A. except for Okpu Umuobo Ward 10 where the election cancelled by the 2nd respondent on account of violence, ballot box snatching and other electoral malpractices carried out by supporters and agents of the petitioner.
19. The 1st respondent further avers as follows:
(a) The election in Osisioma Ngwa was free and fair and the election was conducted in compliance with Electoral Act.
(b) Result sheets and other materials for the election were distributed to the various polling units and collation centers by the INEC Officers
(c) There was no incidence of hijacking and or diversion of electoral materials by the supporters of the 1st respondent or at all. The 1st respondent states that at the time of the collation of the result at the Local Government Secretariat Osisioma the result of Ward 10 Okpu Umuobo was not included to her detriment the Ward being one of her strong holds in the depertment the Ward being one of her strong holds in Local Government.
(d) There was actual voting at the units
(e) At the arrival of the ballot boxes at the polling units, the same was displayed to the voters before voting.
(f) The officers of the 2nd respondent including presiding officers were present at the various polling stations and they conducted the elections.
(g) At the end of the election the votes cast for each of the candidates/political parties were duly entered into the appropriate INEC Forms EC8A(1) by the presiding officers and the same was properly endorsed and stamped. The 1st respondent shall at the hearing of this petition found and rely on the said INEC result forms. The 2nd respondent is hereby given notice to produce the originals of the said INEC Form EC8A(1) at the hearing of this petition.
(h) After sub paragraph (g) above, the scores were announced at the polling units after which the completed forms was given to the various party agents.
(i) The results and materials were then taken to the ward collation centers where the results were collated and entered into INEC. Form EC8B(1) by the Ward Collation/Returning Officers who after announcing the results then distrlbufed the resuir sheets to the various party agents. The respondent shall at the hearing found and rely upon the INEC Form EC8B(1) given to the PDP party agent. The 2nd respondent is hereby given notice to produce the original of the said results at the hearing of this petition.
(J) The results so collated and announced were then to the Osisioma Local Government Area Collation Center at Osisioma and delivered to the Collation/Returning Officer of the Local Goverrtnient Area who collated same and entered the scores into INEC Form EC8C(1) which was properly endorsed and distributed to the party agents. The 1st respondent shall at hearing found and rely upon the INEC form EC8C(1) given to the PDP party agent. The 2nd respondent is hereby given notice to produce the original of the said result at the hearing of this petition.
(k) The collated results above, were then taken to the Senatorial District Collation Centre where the same was handed over by the Collation/Returning Officer of Osisioma Ngwa Local Government Area who called the said results together with those of Isiala Ngwa South Isiala Ngwa Local Government Area who collated the said results together with those of Isiala Ngwa North, Umuahia South, Umuahia North and Ikuano Local Government Areas into the INEC Form EC8E (1) then declaied the result and distributed the result to the party agents including that of the 1st respondent. The 1st respondent shall at hearing found and rely upon the INEC Form EC8E(1) given to the PDP party agent. The 2nd respondent is hereby given notice to produce the original of the said results at the hearing of this petition.
20. The 1st respondent avers that the result for Osisioma Ngwa L.G.A. is not bogus as the same represents the votes cast by the voters.
Also, the 2nd-10th respondents in their Reply filed on 20th July, 2007 contained in pages 423-428 in Vol. 1 of the record denied petitioner’s/appellant’s paragraph 17 in their paragraph 11 of the Reply as follows:
11. Paragraph 17 of the potion (sic) petition is denied. In further answer to the same the 2nd-10th respondents states as follows:
(i) That on the 28th day of April 2007, election into the Senate of the Federal Republic of Nigeria for Abia Central Senatorial Zone was conducted in compliance with the Electoral Act by the Electoral Officer of the 2nd respondent, statutorily foisted with the responsibility of conducting the election.
(ii) The materials meant for the conduct were distributed to the polling stations by the Supervisors to the Presiding Officers.
(iii) The result sheets for the collation of the results at the ward collation center (INEC FORM EC8B (1) were also distributed.
(iv) Actual voting really took place at the various poilling units except for Okpu Umuobo Ward 10 where there was no election due to disturbances and violence.
(v) Ballot boxes aistributed to the polling units were displayed before the commencement of voting.
(vi) There were Presiding Officers and other Officers of the 2nd respondent at the units and votes were properly accredited for voting.
(vii) The results cast at the various polling units were entered into the statutory INEC FORM EC8A(1)by the Presiding Officers who endorsed same, had them Counter-signed by the party agents before distributing them to the said party agents. The 2nd – 10th respondents shall at the hearing found and rely, upon the INEC Form EC8A (1) The petltioner is hereby given notice to produce his copy at the hearing of the petition.
(viii) After sub-paragraph (vii) above, the scores were announced at the polling units after which the completed forms were given to the various party agents.
(ix) The results and materials were then taken to the ward collation center where the results were collated and entered into the INEC Form EC8A(1) by the ward Collation/Returning Officers who after announcing the results then distributed the result sheets to the various party agents. The 2nd – 10th respondents shall at the hearing found and rely upon the INEC Form EC8B(1), The petitioner is hereby given notice to produce his copy of the said results at the hearing of this petition.
(x) The results so collated and announced were then to taken to the Osisioma Local Govemment Area Collation Center at Osisioma and delivered to the Collation/Returning Officer of the Local Government Area who collated same and entered the scored into the INEC Form EC8C(1) which was properly endorsed and distributed to the party agents. The 2nd – 10th respondents shall at the hearing found and rely upon the INEC Form EC8C(1) given to the PDP party agent. The petitioner is hereby given notice to produce his copy of the said results at the hearing of this petition.
(xi) The collated results above, were then taken to the Senatorial District Collation centre where the same was handed over to the Senatorial Zone Collation/Returning Officer by the Collation/Returning Officer of Osisjoma Ngwa Local Government Area who, collated the said results together with those of Isiala Ngwa South, Isiala Ngwa North, Umuahia South, Umuahia North and Ikwuano Local Government Areas into the INEG Form EC8E(1), then declared the result and distributed same to the party agents including that of 1st resportdent. The 2nd – 10th respondents shall found and rely on the said form at the hearing. The petitioner is hereby given notice to produce his copy of the said results at the hearing of this petition.
Given the above pleadings, the question is who bears the burden of proof under the provisions of sections 136 and 137 of the Eviderice Act. The undeniable answer is the respondents This is because if both parties had folded their arms and no evidence was adduced on either side in the case, it is the respondent who aver substantially in the affirmative not only that an election was conducted but indeed that a free and fair election was conducted in Osisioma Ngwa LGA on 14th April, 2007, that would lose. Thus, it is the respondents in this case that bear the burden of proof under section 136 as well as the burden of first adducing evidence under section 137 of the Evidence Act.
These were the circumstances, which made the learned senior counsellor for the appellant to insist relying on the decision of this court in Prince Ebitimi Amgbare & 1 Or vs. Chief Timipre Sylva & Ors, (2009) 1 NWLR (Pt.121) Page 1, that a petitioner in an election petition who alleged that no election took place need not produce any election result and that the Tribunal misunderstood and misapplied the law when it held inter alia at pages 864 – 868 that:
In the instant case, the petitioner pleads that elections were not conducted in Osisioma Ngwa LGA. Paragraphs 17(i) – (xii) enumerates what formed the basis of his asserting that elections did not hold. In the circumstances, it is the evidence of his witnesses which will now assert the negative that will shift the burden upon the respondents who asserted the positive…”
The case of Amgbare vs. Sylva (supra) concerns the Governorship election held in Bayelsa State on 14th April, 2007 the petitioner/appellant in that case alleged variously that election materials could not get to the polling stations in the predominantly riverine areas, that there was no entry of the results at all in the polling units in Bayelsa State. That the election was conducted without any electoral forms for the entry of result sheets and that there was no accreditation amongst others. Consequent on which the petitioner prayed that the election be declared null and void and nullified on the grounds that it was not conducted substantially in accordance with the provisions of the Electoral Act 2006 as amended.
The Respondents denied these allegations and pleaded that the gubernatorial elections of 14th April 2007 were conducted in compliance with the provisions of the Electoral Act 2006, as amended and the 1999 Constitution: The learned Judges of the Tribunal in the Amgbore vs. Sylva case (supra) dismissed the appellant’s petition and held inter alia that on the totality of the evidence adduced in this case, we hold that the petitioners have failed to discharge the onus on them.
A unanimous Court of Appeal led by Ibiyeye, JCA, allowed the appeal on the ground of misplacement of burden of proof. At page 5.9 at the judgment, Ibiyeye JCA, asked, the pertinent question is: was any election for the gubernatorial seat held in Bayelsa State on 14th April, 2007? The appellants asserted the negative that no election was held while the respondents, asserted positive that they distributed election materials and that election was held…
And at page 60 the learned Justice of the Court of Appeal answered thus:
It is inconceivable how the trial tribunal expected the appellants whose case was that there was no election to produce any result. In spite of this the trial tribunal went on to hold that the petitioners challenge of the result of the election must fail for failing to produce what they (the learned Judges of the tribunal) called the accurate result. I entirely agree with the submission of learned Senior Advocate that the learned Judges of the tribunal, with due respect, were wrong and that the decision in this regard should not be allowed to stand.
I think that the circumstances of the onus of Proof in the instant case are quite similar to that in the case of Amgbare v. Sylva (supra). Accordingly, the petitioner does not have to prove the negative assertion that there was no election since it is the respondents that have asserted the affirmative that there was election, they bear the burden of proving it. See the case of Aiyedun J. Jules v. Raimi Ajani (1980) 5 – 7 SC pages 77-78.
In conclusion, I hold in agreement with the learned Counsel for the appellant that the lower tribunal was wrong to have placed the burden of proving that there was no election on the petitioner/appellant.
Issue No, 2 is resolved against the Respondents.
The second issue in this appeal which has just been resolved against the respondents deals with misplacement and misdirection as to onus of proof Misdirection as to the onus of proof Misdirection as to the onus of proof is a very serious matter which can affect the credibility of witnesses, and it can also lead to a miscarriage of justice. See Joe Sandy VS. P. C. Johannes, B. Hotogua & Anor, (1952)14 WACA 18. Where the court held that the proceeding on the wrong assumption that the onus was on the plaintiff affected the learned trial Judge’s view of the evidence and therefore that evidence would have to be reconsidered. For this reason, I do not find it any longer necessary to consider the other issues formulated for this appeal.
It is also my considered view that since the fundamental complain in this appeal was a misdirection on the onus of Proof, the proper order after allowing the appeal is that of retrial before another panel of Judges of the Governorship and Legislative Houses Election Tribunal.
In Okonkwo vs. Udoh (1997) 9 NWLR (Pt 519) 16, Mohammed, JSC, in ordering retrial had this to say.
This Court had in Awote vs. Owodunni (No. 2) (1997) 9 NWLR (Pt. 57)367 held that where a court of trial fails to advert his mind to and treat all issues in controversy fully, and there is insufficient material before the Appeal Court for the resolution of the matter, the proper order make is one of retrial. If an Appeal Court says that a trial Judge has committed both misfeasance and nonfeasance during trial which he presided over. It would mean that the decision of that court amounted to a miscarriage of Justice. What will constitute miscarriage of justice may vary, not only in relation to that particular facts, but also with regards to the jurisdiction which has been invoked by the proceedings in question, and to reach the conclusion that a miscarriage of justice has taken place does not require a finding that a different result necessarily would have been reached in the proceedings said to be affected by the miscarriage, It is enough if what is done is not justice according to law.
See also, Onubruchere vs, Esegine (supra) and Osazuwa & Ors. vs Isibor & Anor. (2004) 3 NWLR (Pt. 859) 16 at 44.

In the final result, this appeal is allowed. The judgment of the Chairman and members of the Governorship and Legislative Houses Election Petition Tribunal sitting at Umuahia, Abia State dated 24th October, 2008 is hereby set aside.

It is hereby ordered that this case more particularly the question set down for retrial in the judgment and order of the Port Harcourt Division of the Court of Appeal of 14th May, 2008, be heard before another panel of the Governorship and Legislative Houses Election Petition Tribunal. The appellant is awarded costs assessed at N30,000.00.

Appearances

A. O. Obianwu, SAN, with him, M.C. Ogunji, Esq. and E. U. Echefu, Esq. For Appellant

AND

Chief Wole Olanipekun, SAN with him M. O. Onayeka Esq., M. U. Nwokocha-Ahaiwe, Esq., K. Akingbolu, Esq., I. A. Nwabughogu, Esq., M. N. Eteri and J. Ugbogu, Esq. for the 1st Respondents

L. T. C. Erubo, Esq. with him, Emeka Eze, Esq. for the 2nd-10th Respondents For Respondent