BARR. IHUOMA E. UDEAGHA & ANOR v. MATTHEW OMEGARA & ORS.
(2010)LCN/3669(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 30th day of March, 2010
CA/PH/EPT/173/2008
RATIO
EVIDENCE: EFFECT OF FAILURE OF THE RESPONDENT TO MEET THE TRAVERSE OF THE PLAINTIFF
The law is that a petitioner’s traverse must be met by the Respondent categorically and frontally, if not that fact is deemed admitted. See OWOSHO V. ADEBODELE DADA (1984) 7 SC 149; AG ABIA v. AG FRN & 35 ORS. (2005) 6 SCNJ 1. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
ELECTORAL LAW: PRINCIPLES GUIDING THE NULLIFICATION OF AN ELECTION BY THE COURT
“Nullification of an election is a very serious sanction which can be inflicted on an election already conducted. It should only be imposed in very rare situations and only after well established reasons have been adduced in support of such a decision.” See Akintan J.C.A (as he then was) in EDONKUMOH v. MUTU (1999) 9 NWLR Pt.620, Pg.633 at Pg.653.
Thus to make a case for nullification there must be evidence that the non-compliance materially affected the result of the election. See NNAGI v. AGBO (2006) ALL FWLR Pt.305 Pg.736 at 760; BUHARI v. INEC (2008) 19 NWLR Pt.1120 Pg.246; INIAMA v. AKPABIO (2008) 17 NWLR Pt.1116 Pg.225. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
EVIDENCE: ON WHOM LIES THE BURDEN TO PROVE THE ALLEGATION OF NON-COMPLIANCE WITH THE ELECTORAL LAW
In IHUTE V. INEC (supra) this court held as follows at page of Pt.599 NWLR:
“In an election petition, when a petitioner makes an allegation of non-compliance with the electoral law as the basis or foundation of his case he has a heavy burden to show the Tribunal by cogent and compelling evidence that the non-compliance is of such a nature as to affect the result of the election…”
There is a presumption that the result of an election as published by INEC is correct and the onus is on the person who denies its authenticity to rebut the presumption. See AYOGU v. NNAMANI (supra). Where the denial is based on allegations of crime like forgery and massive thumb-printing of ballot papers etc. the allegations which tantamount to criminal offences must be proved beyond reasonable doubt.
Apart from that, the first burden is on the Appellants to establish not only substantial non-compliance with the principles of the Electoral Act but also that such a non-compliance affected the result of the election. See BUHARI V. INEC (2008) 12 SCNJ 1 at pg.78. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
ELECTORAL LAW: SITUATION WHERE A BYE ELECTION WILL BE ORDERED BY COURT
In CHIBOK V. BELLO (1993) 1 NWLR Pt.267 Pg.109, this court held that where results from specific polling stations could not stand, the court must ascertain whether or not the nullification of the results in those polling stations concerned were substantial enough to affect the overall results of the election in the Constituency. If after mathematical deduction and calculation, the person declared winner would have lost, then the whole election in respect of that seat is nullified and a bye election should be ordered. In the case of NA-GAMBO v. INEC (1993) 1 NWLR Pt.267 Pg.94 it was held that the question of the validity of an election objected to a ground of irregularity or non-compliance is one of degree. Once an election Tribunal finds that there is non-compliance with the law in respect of election in certain areas, votes cast in such areas are to be cancelled. This the Tribunal in this present case rightly did. See also IZUOGU v. UDENWA (1999) 6 NWLR Pt.608 Pg.582; CHIEF AJADI v. CHIEF AJIBOLA (2004) 16 NWLR Pt.898 Pg.91 at Pg.170-171; NGIGE v. OBI (2006) ALL FWLR Pt.330 Pg.1140; AGAGU v. MIMIKO (2009) 7 NWLR Pt.1140 Pg.342 at Pg.439-440. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
1. BARR. IHUOMA E. UDEAGHA
2. ACTION CONGRESS (AC) – Appellant(s)
AND
1. MATTHEW OMEGARA
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. RESIDENT ELECTORAL OFFICER IMO STATE & 64 ORS. – Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Governorship and Legislative Houses Election Tribunal sitting at Owerri Imo State dated 7/3/08. The appellants filed a petition on the following grounds:
“GROUND 1
NONE QUALIFICATION OF 1ST RESPONDENT
The petitioners state that the 1st Respondent Matthew M. Omegara whose elections is being questioned was at the time of the election not qualified to contest in the election.
GROUND 2
That the election of the 1st Respondent as member representing Okigwe North Federal Constituency of Imo State in the Federal House of Representatives was invalid by reason of corrupt practices and substantial non-compliance with the provisions of the Electoral Act 2006.
GROUND 3
That the 1st Respondent was not duly elected by the majority of lawful votes cast at the election.
GROUND 4
That the 1st petitioner who was validly nominated by the 2nd petitioner was unlawfully excluded from the election.”
The petitioner asked for the following reliefs:
“WHEREOF your humble Petitioners pray that this Honourable Tribunal finds and holds as follows:
i.That the 1st Respondent Matthew M. Omegara was not duly and/or validly elected on ground of non-qualification as member of Federal House of Representatives and that his election was void.
ii.That the 1st petitioner be declared the winner of the election for the House of Representatives in Okigwe North Federal Constituency having gained the highest number of validly cast vote.
iii. ALTERNATIVELY, an order canceling the votes obtained by the 1st Respondent in the said election and a fresh election ordered.”
Following objections from the Respondents which were upheld in part, Ground 1 and relief (i) and (ii) of the petition were struck out on 25/10/07. The Tribunal proceeded to trial only in respect of the alternative relief sought. The Appellants as Petitioners called 8 witnesses, the 1st Respondent testified for himself while the 6th-64th Respondents called one witness. At the end of the trial, the Tribunal dismissed the petition.
The Appellants filed several grounds of appeal against the final judgment and with leave against the interlocutory ruling dated 25/10/07. The Appellants relied on their brief dated 16/4/08 filed on 17/4/08 and the Reply brief dated 14/4/09 filed on 16/4/09. The 1st Respondent’s brief is dated 26/3/09 and filed on 30/3/09. The 2nd Respondent’s brief is dated and filed on 28/4/08. The 3rd-64th Respondents’ brief is dated 25/4/08 and filed on 28/4/08.
From these grounds of appeal, the Appellants distilled four issues for determination set out below:
I. Whether the learned election Tribunal approached the pleadings by the parties in the petition correctly, and if not, whether that did not affect its decision in the matter. (This issue is distilled from Grounds 1, 3 & 11).
II. Whether the election Tribunal was right in failing to apply the necessary presumption of law under Section 149 (d) of the Evidence Act against the Respondents when they failed to produce the (election) ballot papers in their custody. (This issue is distilled from Ground 2).
III. Whether the election Tribunal was right in law in holding that it had no jurisdiction to entertain the question of non-qualification and if such holding was not perverse. (This issue is distilled from Grounds, 9 & 10).
IV. Whether the petitioners have not successfully established the facts and grounds on which they rely for their prayers. (This issue is distilled from Grounds 4, 5, 6, 7, & 8).
I will adopt the issues for determination as crystallized by Appellants’ counsel. They are more detailed and better represent the complaints of the Appellants against the judgment of the Tribunal.
ISSUE ONE
Appellants’ counsel argued that the Respondents did not traverse the case made out in the petition in their replies to the petition especially in relation to the pleaded facts and evidence led by PW1, PW3, PW4, PW5 and PW6.
The argument of learned Appellants’ counsel is that the Tribunal should not have rejected the depositions because the Respondents’ reply to the petition neither traversed the contents of the depositions nor complained about their makers. Counsel argued that no issues were joined by the parties on the admissibility of the depositions to call for the determination of the Tribunal. He cited OJO AJAO v. POPOOLA ALAO (1986) 12 SC 193 at 244; NWADIKE v. IBEKWE (1987) 3 NWLR Pt.67 Pg.718 at 741.
Counsel submitted that facts elicited from cross-examination cannot be used by party cross-examining when they have not pleaded such facts or denied them in their pleadings. He argued that the answers as to sworn depositions were directed only at locations but not persons before whom they were made. He cited BUHARI V. OBASANJO (2005) 2 NWLR Pt.910 Pg.241 at 483. He also cited NWEKE V. EJIMS (1999) 11 NWLR Pt.625 Pg.39 at 53. He argued that the Practice Directions to the Electoral Act 2006 specifies in paragraph 1 (b) that “a written statement on oath of the witnesses” should be filed with the petition.
He argued that contrary to S.84 of the Evidence Act the Tribunal made no finding as to “a person duly authorized” to entitle the Tribunal expunge the depositions and evidence of the witnesses. He cited OMOBORIOWO V. AJASIN (1984) 1 SCNLR Pg.108 at Pg.143-144.
The brief answer of the 1st Respondent on this issue is that these witnesses did not depose to their respective witness statements before the secretary of the Tribunal or in the Registry of the Tribunal which makes them inadmissible. He cited NKEIRUKA V. JOSEPH (2009) 5 NWLR Pt.1135 Pg.505 at 525-526.
Counsel argued that the Respondents met the pleadings of the Appellants in paragraphs 5-7 of the Reply to the petition.
The 2nd Respondent’s argument on this issue is that the witnesses were obviously suborned since they never appeared before the secretary of the Tribunal to depose to any sworn statement contrary to the attestation on those statements.
The 3rd-64th Respondents counsel made no response to the Appellants’ argument on this issue as it was not one of the issues adumbrated by him in his address before this court.
This issue has two legs. One is the question of whether the 1st Respondent made a proper traverse of the Appellants’ pleadings. The second is whether the Tribunal was right in rejecting the witness statement on oath of some of the Appellants’ witnesses because they were not purportedly sworn before a person duly authorized.
The oral testimony of the Appellants’ witnesses are on pages 248-252 of the record. On the issue of proper traverse, paragraph 12 (i) of the Schedule to the Electoral Act 2006 provides that the Respondents in reply must specify which facts he admits and denies in the Petition. The law is that a petitioner’s traverse must be met by the Respondent categorically and frontally, if not that fact is deemed admitted. See OWOSHO V. ADEBODELE DADA (1984) 7 SC 149; AG ABIA v. AG FRN & 35 ORS. (2005) 6 SCNJ 1.
The reply of the 1st Respondent is on pages 86-87 of the record. I will set out paragraphs 5-7 below:
“5(a) There was due voting at the appropriate time in the various units in that election. Paragraph 1 (a) (ii) and (iii) of the facts supporting the Grounds of the Petition are denied. Electoral materials were duly supplied and used for the election.
(b) The Respondents never engaged any person to engage in any act of thuggery or violence at any time during or material to the election and no such acts were committed on their behalf. Paragraph 1 b (i) and (ii) are denied.
(c) There were no incidents or rigging, massive thumb-printing of ballot papers and illegal stuffing of ballot boxes as alleged by the petitioners in that election. Paragraph 1 C (i) to (ii) are denied.
(d) There was due election and the overall results are not higher than the registered eligible voters in the constituency. The petitioners have not pleaded any ward to which their ID (ii) relates and the Respondent shall at the trial urge that the said paragraph (which is denied) be struck out.
6. The 1st Respondent was elected by the majority of lawful votes cast at the election. The ground and facts numbered (i) and (ii) on page 6 of the petition are denied.
7. The petitioners were not excluded from the election. The petitioners duly contested the election and scored the valid votes set out in paragraph 3 of the petition. Ground 4 and paragraph (i), (ii) and (iii) set out on page of the petition are denied.”
The Appellants were thus put to the proof of their petition.”
I have read the replies of the petition and they in my humble view contain full traverse of the contents of the specific allegations in the petition. The relevant portions of the 1st Respondent’s Reply have been set out above. The argument of Appellants’ counsel that the Respondents did not adequately traverse the petition is unfounded. The petition itself contained general complaints. There was no effort to pinpoint in the pleadings the various places where corrupt practices, non-voting, use of violence, thuggery, rigging in polling units, massive thumb-print of ballot papers, fictitious entry of election results took place. Therefore there was a general corresponding reply denying the allegations in general terms from the Respondents. If the Petitioners/Appellants did not plead particulars, how could the respondents traverse non existent particulars? The averments in the Appellants’ pleadings should have contained details of the allegations and complaints to which the Respondents could reply in detail in their own pleadings. The Appellants expected the Respondents to reply to the various specific allegations contained in the witness statements filed with the petition. That is not the correct procedure. Those specific allegations should have been in the pleadings. The pleadings must show the facts disputed while the witnesses would give evidence of these facts. In election petitions, it has been held that there is need to plead particulars where required in order to prevent taking adverse party by surprise. See BUHARI v. OBASANJO (2005) 7 SCNJ 1. It is not the function of particulars to take place of necessary averments in pleadings. See NWOBODO V. ONOH (1984) 1 SC 201; PIRISON V. LIOYDS & NATIONAL ETC (1941) 2 KG 72 at 75. That leg of the issue is resolved in favour of the Respondents.
The 2nd leg is whether the Tribunal was right in rejecting the witness statements.
The Tribunal on page 3 of its judgment and page 326 of the Record held as follows:
“Petitioners’ counsel has made reference to the saving provisions of Order 10 Rule 3 of Federal High Court Rules and Section 84 of the Evidence Act. We are quite at home with those provisions but they only apply “if the court is satisfied that it has been sworn before a person duly authorized”. We had earlier in this judgment indicated where each of PW1, PW3, PW4, PW5 and PW7 said they signed their written depositions. We find and hold that none of those persons were duly authorized to take Oath. In consequence, they were no depositions at all. The effect is that those witnesses did not testify in chief. Having not testified in chief they were not liable to be cross-examined and re-examined. Their depositions, cross-examination and re-examination on all their statements are hereby expunged from these proceedings.”
I have read the record of proceedings. Page 51 of the records shows the sworn testimony of PW1 and it shows that the deponent swore to the statement before the secretary of the Election Petition Tribunal. Page 55 of the record shows the sworn statement of PW3, page 49 the statement of PW4, page 24 the statement of PW5, page 20 the statement of PW6. They all show that they were sworn to before the secretary to the Tribunal who signed as Commissioner for Oaths.
The Practice Directions made pursuant to the Electoral Act 2006 were made to facilitate speedy trials of election petitions. By paragraph 4 (1) and (3) of the Practice Directions No.1 of 2007 parties were to frontload witness statements on oath and those witnesses were to subject themselves to cross-examination during the trial. Usually, a witness adopts the statement already filed as his own when being led during examination in chief. This is to cut short the time spent leading a witness. Let us assume, that the statements of witnesses in this case were not sworn to before a person duly authorized to take oaths in contravention of S.90 of the Evidence Act, it is my humble view that their subsequent adoption of these written depositions after they had been sworn in open court to give oral evidence regularizes the depositions.
Let us not forget that statements of witnesses which are adopted during oral evidence on oath are different from mere affidavit evidence which stand on their own without any oral backup and which are not subjected to cross-examination. It is such affidavit evidence which do not meet the requirements of S.90 of the Evidence Act that are intrinsically inadmissible. Where a witness is in court to say he/she is adopting an irregular written deposition, the implication is that the witness is re-asserting on oath what is contained in the irregular deposition and as I opined earlier, such adoption on oath makes all the evidence in the written deposition admissible. This situation is quite different from the circumstances in BUHARI V. INEC (2008) 12 SCNJ Pt.1 at Pg.91. In that case the depositions made contrary to S.83 of the Evidence Act were never adopted in open court by their makers.
In any event, I agree with the argument of learned Appellants’ counsel that the questions under cross-examination were targeted at where the witnesses made their depositions and not before whom they were sworn. The cross-examination did not elicit the information that the witnesses never swore before the Commissioner for Oaths.
The compelling factor in this matter is that all the statements showed that they were signed before the secretary of the Tribunal who signed as commissioner for oaths. The presumption of regularity in my view still avails. By the combined effect of S.4 (2) and S.150 of the Evidence Act, there is a legal presumption of regularity in respect of the witness statements stamped and signed by the Secretary of the Tribunal as Commissioner for Oaths. There is no specific finding of the Tribunal that the statements were not sworn to before the person authorized to do so. Since PW6 swore that he made no prior statement, his statement and evidence is expunged. The statements of PW1, PW3, PW4 and PW5 are admissible and the evidence also. The second leg of this issue is resolved in favour of the Appellants.
On issue 2, Appellants’ counsel submitted in the first instance that the 2nd Appellant’s logo was conspicuously missing in design and presentation on the ballot papers used for the election. Appellant’s counsel argued that the 1st Appellant had given evidence in respect of the fact that the ballot papers did not carry the recognized registered and authorized logo of the party and thus made out a case of exclusion which was not rebutted by the Respondents either in their pleadings or in the evidence. Counsel argued that since the oral evidence was not rebutted it must be believed. He cited A.G. OYO v. FAIRLAKES (2) (1989) 5 NWLR Pt.121 Pg.255; OSAKWE v. GOV. IMO STATE (1991) 5 NWLR Pt.191 Pg.318 at 339. Counsel argued that the onus of proof had shifted to the Respondents. The 1st, 2nd, 3rd-64th Respondents’ counsel on this issue all argued that the burden did not lie on the Respondents to show the ballot papers which did not carry the correct logo. They argued substantially in the same vein that in accordance with S.136 of the Evidence Act, the onus of proof lies on the person who would fail if no evidence is led on either side. He cited UZOHO v. TASK FORCE (2004) 5 NWLR Pt.867 Pg.627 at 642-643. They further argued that Order 33 rule 14 (2) of the Federal High Court Civil Procedure Rules provides that the effect of failure to produce when notice to produce is served is that the party in default will not later be allowed to lead evidence of that document.
The learned Tribunal held on this issue as follows on page 330 of the record:
“Ground 4 of the petition is that the recognized and authorized logo of the 2nd petitioner was not on the ballot papers, and that the petitioners were thereby unlawfully excluded from the election. Apart from the say so of the 1st petitioner (PW8) in his written statement on oath, nothing else was said about that ground. No ballot paper was tendered to show what logo of the 2nd petitioner was on it. The recognized/authorized logo was not tendered to enable comparison. The petitioners did not allude to the ground in their final address. Where no evidence is led in support of a ground and pleadings thereon, they are deemed abandoned. This ground was in no way proved before us. It is therefore deemed abandoned.”
The Appellants in ground 4 of the petition at page 9 of the record had complained that they were unlawfully excluded from the election. They pleaded that the logo of the 2nd Respondent is green, white and black with a hand holding a broom at the centre but that the ballot paper used during the election showed a hand holding a broom only.
This averment was categorically denied by the 3rd-64th Respondents in their joint reply paragraph 13 where they stated at page 99 of the “Ground 4 and sub paragraphs (i) (ii) and (iii) are false and denied. The petitioners are put to the strictest proof thereof.”
It is pertinent to note that the only paragraph where the Appellants mentioned this complaint was paragraph 11 at page 16 of record where the Appellants deposed as follows:
“That contrary to the provision of the Electoral Act 2006. The 3rd Respondent also excluded the 1st and 2nd petitioners in the elections by refusing to print their recognized, registered and authorized logo on the ballot papers used in the conduct of the election in question.”
Even though the petition pleaded facts in support of that ground on page 9 of the records, such facts were not stated in the deposition filed by the 1st Appellant and thus cannot constitute evidence. Averment in pleadings need to be proved by evidence, it is not evidence or equivalent to evidence. Pleadings constitute mere notice of the plaintiff’s allegations. See MAGUNSSON v. KOIKI (1993) 12 SCNJ 14; AJUWON v. AKANNI (1993) 12 SCNJ 32; NIGERIAN ADVERTISEMENT SERVICES LTD. V. UBA PLC (2005) 7 SCNJ 388; IWUEKE v. IMO BROADCASTING CORPORATION (2005) 9-10 SCNJ 191.
I have read the evidence on oath of the 1st Appellant who gave evidence as PW8 which covered pages 253-266 of the record and spanned several days. There was absolutely no reference to that complaint in the oral evidence before the Tribunal. Even though the deposition constitutes evidence, but does paragraph 11 of the 1st Appellant’s deposition constitute enough evidence sufficient to shift the burden of proof from the Appellants to the Respondents? That testimony set out above in my view did not give particulars of how the party logo was different from the logo on the ballot paper.Let us believe the evidence of the 1st Appellant in paragraph 11 of her deposition which we are obliged to do having not been contradicted on oath by any witness for the 3rd-64th Respondents. See pages 107-108 evidence of witness for the 3rd-64th Respondents. See A.G. OYO v. FAIRLAKES (2) (supra); AG PLATEAU STATE v. AG NASARAWA STATE (2005) 4 SCNJ 120. However, can that without more prove on a balance of probabilities that the Appellants were unlawfully excluded? It is trite that he who asserts must prove. The Appellant must lead evidence in proof of his case. The situation only changes if there is admission made by defendant on the pleadings. See DR. AUGUSTINE MOZIE v. CHIKE MBAMALU (2006) 7 SCNJ 411. No such admission was made. The relief sought based on paragraph 11 of the 1st Appellant’s statement on oath cannot be granted as a matter of course. The merit of the relief sought must be considered. See MISS IFEYINWA OGOEJEOFO v. DANIEL CHIEJINA OGOEJEOFO (2006) 1 SCNJ 69.
Section 145 (1) (d) of the Electoral Act provides as follows:
“145 (1) (d) an election may be questioned on any of the following grounds:
(e) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”
What constitutes unlawful exclusion? S.45 (1) of the Electoral Act 2006 provides that the Commission shall prescribe the format of the ballot papers which shall include the symbol adopted by the political party of the candidate and such other information as it may require. Thus the ballot paper must contain (1) the name of the political party (2) its symbol or logo and (3) the name of the candidate.
The Appellants argued that after the evidence in chief of the 1st Appellant, the onus shifted on the Respondents to produce Certified True Copies of the results and ballot papers used at the election and they should be adjudged as withholding evidence. Consequently, S.149 (d) of the Evidence Act should be construed against them. I quite agree that where there has been a deliberate failure or refusal to produce a document by an adverse party, then it can be construed as a deliberate concealment of facts and S.149 (d) of the Evidence Act will be invoked. See ADUN v. OSUNDE (2003) 16 NWLR Pt.847 Pg. 643 at 667. The problem here is that having read the proceedings there is nowhere the Appellant brought the issue of the failure of the 3rd Respondent to produce ballot papers to the attention of the court. In fact on 3/12/07 at page 261 of the records learned counsel for the Appellants specifically told the Tribunal that the “Respondents have brought all the documents we have asked for.” In the circumstances S.149 (d) of the Evidence Act cannot be invoked against the 3rd-64th Respondents. The point in my humble view is that the Appellants had not made a prima facie case at all even after we believe paragraph 11 of the deposition to warrant any reaction from the Respondents. There was no complaint made to the Tribunal that the 3rd Respondent refused to produce the ballot papers. The Appellant should have led evidence to show that the 3rd-64th Respondents refused to produce the document which they could use. That is when S.149(d) can be construed against them. See SALAMI JCA in REMI v. SUNDAY (1999) 8 NWLR Pt.613 Pg.92 at 107. The Supreme Court held emphatically in BUHARI v. OBASANJO (2005) 7 SCNJ 1 at Pg.52 that where notice to produce is served on a party who fails to produce same, then secondary evidence may be given of the document where available. Where the documents are not available, committal proceedings against defaulters may issue. If the Appellants had been interested in pursuing that aspect of their case, they should have pursued it to the logical conclusion. After all, the 3rd Respondent produced a large volume of electoral materials which 1st Appellant tendered. The Appellants have laboured under the mistaken belief that the Respondents bore a burden to tender the ballot papers. The hard principle of law is that the burden and onus of proof lies on the party against whom the decision on the point will go if the material evidence is not led. See Section 136 of the Evidence Act. The burden of proof can only shift to the Respondent when the Appellant has given sufficient evidence to call for a rebuttal. See BUHARI v. OBASANJO (2005) 7 SCNJ 1. There was no attempt to tender the logo of the party and the ballot paper used at the election for the purpose of comparison by the Tribunal. The law is that no court will act on an untendered document. See OLADELE v. OBA AROMOLARAN II(1996) 6 NWLR Pt.453 Pg.180. Also OMEGA BANK v. OBC LTD. (2002) 16 NWLR Pt.794 Pg.485 at Pg.516.
In any event, INEC declared that 16,957 people actually voted for the 1st Appellant. The Appellants did not show how the purported refusal of the 3rd Respondent to print the recognized logo of the 2nd Appellant adversely affected their fortune at the election. No witness was called to say that as a result of the defective logo of the Appellants, he/she was confused as to whom to vote for, or that he/she could not vote as a result of the defective logo.
Because it is an infraction of the Electoral Act 2006 for the ballot paper not to contain a correct logo of a party fielding a candidate that can constitute a ground for presenting a petition. As stated earlier there is no proof of precisely how the logo put on the INEC ballot paper was different from the logo of the 2nd Appellant. The Appellant needed to prove on a balance of probabilities how the logo differed and how this affected the majority of voters or the result of the election. See AGBAJE V. FASHOLA (2008) 6 NWLR Pt.1082 Pg.90 at pg.133; DADA v. DOSUNMU (2006) 18 NWLR Pt.1010 Og.134; AMOSUN v. INEC (2007) ALL FWLR Pt.391 Pg.1712; BUHARI v. OBASANJO (2005) 13 NWLR Pt.941 Pg. 1.
Given the fact that no reference was made to this ground during address at the lower court and the paucity of evidence led, I cannot help but agree with the learned Tribunal that the Appellants had abandoned that ground of the petition. The Tribunal did not decide the issue on whether the Appellants had discharged the burden of proof but on the basis that the Appellants appeared to have abandoned that ground altogether. I resolve this issue in favour of the Respondents.
The third issue is whether the Election Tribunal was right in holding that it had no jurisdiction to entertain the question of non-qualification of the 1st Respondent to contest the election. For expediency, I am inclined to grant the second relief in the alternative as contained in the notice of appeal filed in respect of this question of jurisdiction and to determine and pronounce on the issue. The 1st Respondent made this their 1st issue, 2nd Respondent made it their 1st issue while the 3rd-64th Respondents made it their 1st issue. I will therefore set out the arguments of the Appellants and the corporate replies of the Respondents which are similar in content.
The Appellants had stated in Ground 1 of the Petition that the 1st Respondent was at the time of the election not qualified to contest the election. They further stated that the 1st Respondent gave false information by virtue of facts averred to in the affidavit supporting the personal particulars of the 1st Respondent submitted to INEC. They further argued that The 1st Respondent had in a motion filed before the Tribunal argued that the Ground was not cognizable under the Electoral Act 2006 and consequently the Tribunal had in its considered ruling delivered on 25th October 2007 held that it lacked the jurisdiction to entertain same. See pages 230-235 of the Records.
Appellants’ counsel further submitted that the proper time to challenge the qualification of the 1st Respondent to contest the election is at the post election tribunal set up to try election cases and that the Tribunal’s refusal to assume jurisdiction in the matter was erroneous. He cited IMAM v. SHERIFF (2005) 3 NWLR Pt.914 Pg.80 at 168-169; FALAE v. OBASANJO (1999) 4 NWLR Pt.599, Pg.476; ABDULLAHI v. HASHIDU (1999) 4 NWLR Pt.600 Pg. 638. He argued that the court refused to consider the provision of S.145 of the Electoral Act 2006 but applied S.32 (4) which applies to the candidate when the issue arises before the election. Appellants’ counsel submitted that the only time the Petitioner establishes an accrual of action against the Respondent is when a result has been declared touching on the right of the petitioners. He opined that the petitioners brought an action on the issue of qualification of the 1st Respondent at the Federal High Court sitting in Owerri. The 1st Respondent challenged it. The learned justice of the Federal High Court in its Ruling delivered on 4/12/07 held that since elections had taken place, the matter became cognizable under the Electoral Act and held that the Federal High Court lacked jurisdiction. This was in Suit No FHC/OW/CS/126/2007 BARR. IHUOMA E. UDEAGHA v. MATTHEW OMEGARA & 2 ORS.
The Appellants’ counsel submitted that the qualification of candidates to contest an election must be considered by a community reading of the provisions of the Constitution of the Federal Republic of Nigeria and the Electoral Act 2006. He cited BUHARI v. OBASANJO (2005) 2 NWLR Pt.910 Pg.241.
The Respondents argued that the decision of the Tribunal was correct as the issue must derive from a proper classification of the facts which gave rise to the complaint. The classification of facts must fall into either a pre-election or post election complaint. Counsel argued that cases of allegation of false information in a nomination form are by S.32 (4) of the Electoral Act to be tried by a State or Federal High Court.
Counsel argued that IMAM v. SHERIFF cited supra by Appellants’ counsel shows that they did not appreciate the distinction which exists between the facts of that case and this case. They argued that IMAM v. SHERIFF (supra) decided the issue of non-qualification which may exist even without an overt act from the candidate such as want of requisite educational qualification, being under-age, dismissal from public office, declaration of insanity etc,
The allegation that the 1st Respondent made a false declaration in the nomination form must be tried by a court with competent jurisdiction. They cited NIG. CEMENT CO. LTD. v. NIG. RAILWAY CORP. (1992) 1 NWLR Pt.220 pg.747 at 758 and argued that where a statute has made express provisions for the mode in which a proceeding must be commenced, the parties are not at liberty to follow another procedure. They also cited A.C. V. INEC (2007) 12 NWLR Pt.1048 Pg.222. They argued further that the decision of the Federal High Court in UDEAHA v. OMEGARA & ORS is not a binding authority to compel the Tribunal to depart from the correct state of the law which applied to be petition before them. That suit was filed after the petition had been filed.
This was ground 1 of the petition and is stated in page 6 of the record as follows:
“8. The petitioners state that the 1st Respondent Matthew M. Omegara whose elections (sic) is being questioned was at the time of the election not qualified to contest in the election.
9. That the 1st Respondent gave false information by virtue of the facts averred to in affidavit in support of personal particulars of persons seeking election to the office/membership of Federal House of Representatives, Okigwe North Federal Constituency, Imo State Nigeria.”
The 1st Appellant deposed as follows in paragraphs 6-9 of her written statement which is on pages 15-16 of the record:
“6. That I have seen the Affidavit of Personal particulars filed by the 1st Respondent and submitted to the 3rd Respondent. The 3rd Respondent is hereby put on notice to produce the originals.
7. That the said affidavit contains facts and statements which when was cross checked with the relevant authorities was found to be false and devoid of any iota of truth.
8. That copies of the letter received from various institutions where the 1st Respondent alleged that he attended would be tendered to show as follows: that either he did not attend same or that these institutions did not exist.
9. That copies of the documents the 1st Respondent tendered to his party i.e. nomination forms and expression of interest will also be tendered to show and support the averments contained above.”
The evidence of the 1st Appellant took several days and is on page 253-268 of the record. No where did she or any of her witnesses mention or tender as asserted on paragraph 8 of the statement on oath copies of the letters received from various institutions where the 1st Respondent alleged that he attended. Neither did she tender the copies of the documents the 1st Respondent tendered to his party i.e. nomination forms etc to show and support the averments. I will come to the proof of this ground of the petition anon. The Tribunal held as follows at page 231 of the Records –
“The 1st Respondent contends that Section 32 (4) & (5) of Electoral Act, 2006 has directed a person with a complaint as above to the State High Court or the Federal High Court and that this Tribunal therefore has no jurisdiction over a relief based on ground 1. We could not agree with him more. Ground 1 at paragraph 8 and the facts supporting it at paragraph 9 of the petition are hereby struck out. Relief No.1 being based on them is also struck out as there is nothing left on the petition to hoist it.”
Section 32 (3) and 32 (4) of the Electoral Act states as follows:
“32 (3) The Commission shall, within 7 days of the receipt of the personal particulars of the candidate, publish same in the constituency where the candidate intends to contest the election.
(4) Any person who has reasonable grounds to believe that any information given by a candidate in the Affidavit is false may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the Affidavit is false.”
It is clear that the Electoral Act 2006 provides that a candidate is given the opportunity to scrutinize the personal particulars of an opponent as soon as it is received and published by INEC. After the scrutiny, an opponent who has grounds to believe that any information given to INEC is false may file a suit at the State or Federal High Court against a candidate seeking a declaration that the information in the affidavit is false. That should be done before the election is held. I agree with the Respondents that the provision is different from the incidents of non-qualification provided for by S.66 and S.106 of the 1999 Constitution which should be tried by the Election Petition Tribunal by virtue of S.285 of the 1999 Constitution. In paragraph 4.44 of Appellants’ brief, counsel essentially agreed with this position when he stated as follows:
“4.44 Submitted that Section 32 (4) of the Electoral Act 2006 applies to the candidate when the issue arises before the election.”
The truth of the matter is that the issue of false declaration in nomination forms arises before the election and the Electoral Act says the State High Court or Federal High Court has jurisdiction. This was actually to prevent a situation in which an obvious perjurer is allowed to contest the election. The person may not have fallen under any of the incidents of non-qualification provided by the Constitution but may have given false information i.e. regarding extent of educational qualification, false local government of origin, extent of financial interests etc. All these are supposed to be determined before the election actually takes place.
This is different from the circumstances which can enable a party present a petition on the ground provided under S.145 (1) of the Electoral Act.
I have read IMAM v. SHERIFF(supra); ILOBI v. UZOEGURI (2005) ALL FWLR Pt.283 Pg.595 at 610-611 and ABDULLAHI v. HASHIDU (1999) 4 NWLR Pt.600 Pg.638 at 644-645 cited by Appellant’s counsel. They are based on complaints made pursuant to the Constitutional provisions on disqualification. I have to agree with the Tribunal that by virtue of S.32 (4) of the Electoral Act only the State High Court or Federal High Court can try cases of false information in the nomination forms of candidates.
The Supreme Court in AC v. INEC (supra) was quite clear. That judgment was based on the Electoral Act 2006 and the court held that only the courts by virtue of S.32 (4) (5) and (6) of the Electoral Act 2006 have the power to deal with matters of disqualification of candidate. Thus, the provisions of the Electoral Act as to jurisdiction to try the different specie of disqualification were affirmed as constitutional.
The Appellants claimed that the 1st and 2nd Respondents did not deny the allegation of putting false information in the nomination papers. I have read the reply of the 1st and 2nd Respondents particularly paragraph 2 (d) and 3 on pages 86 of the records. In view of the averments of the Appellants which are vague, I am of the view that the traverses of the 1st and 2nd Respondents were sufficient.
The Appellants claimed that the Federal High Court having declined jurisdiction to hear the matter, the Tribunal should have done so. If the Appellants had filed the suit before the election at a State or Federal High Court according to the intendment of S.32 (4) and (5) of the Electoral Act 2006, they would not have found themselves in this pickle. I agree with the Respondents’ counsel that where a law prescribes a procedure or venue or method of commencement of a particular type of proceedings, anything done contrary would be set aside. See UDENE v. UGWU (1997) 3 NWLR Pt.491 Pg.57 at 63.
In the circumstances, I am of the view that the learned Tribunal was right to have declined jurisdiction to try the issue. The third issue is resolved in favour of the Respondents.
Issue 4 is whether the petitioners successfully established the facts and grounds on which they rely for their prayers. Appellants’ counsel argued that the Tribunal did not take cognizance of the principles of pleadings in election petitions. Counsel submitted that the total of 8 witnesses called by the Appellants were not controverted in any way by the Respondents or their witnesses and that the Tribunal should have entered judgment in favour of the Appellants. Counsel submitted that the Appellants adduced evidence to show that results in many of the polling units were marred by irregularities of: (i) Undating of EC8A (ii) Non Stamping of result sheets (iii) Absence of the signatures of petitioners party agents. (iv) Over-voting. (v) Disenfranchisement of voters that affected the result. The Appellants’ Counsel argued that sufficient evidence was led to show that the 1st Respondent was not validly elected by a majority of valid cast at the election.
On nullification, the Appellants’ counsel argued that the non-compliance with the provisions of Electoral Act 2006 affected substantially the result of the Elections and the result ought to be nullified. He cited BASHEER V. SAME (1992) 4 NWLR (Pt.236) 491 at 505.
Appellants’ counsel submitted that to challenge the lawfulness of votes cast in the election, the Appellants fielded witnesses who testified that there were no accreditation or voting in the polling booths where they acted as agents and any votes emanating from such units are clearly misapplied.
The Election Tribunal veered into addition and subtraction of scores recorded by the candidates. Counsel opined that the Election Tribunal has no competence to go outside the realm of the case brought before it by the parties. He cited ORIZU v. ANYAEGBUNAM (1978) 1 LRN 216 at 223. Also IDIKA v. ERISI (1988) 2 NWLR (Pt.78) 563 at 575H-576C.
Counsel also submitted that failure to hold a collation or a disruption before a collation is concluded leads to cancellation or nullification of a result. He cited AONDOAKAA v. AJO (1999) 5 NWLR (Pt.602) 2006.
Counsel further therefore submitted that this level of disenfranchisement and over voting shown by the witnesses on pages 332-336 of the record, is without more, enough to nullify the election in the entire constituency and the Court of Appeal is urged to nullify it on the ground of substantial disenfranchisement and over-voting apparent on the face of Exhibits itemized on pages 332-366 of the record.
This issue was the third issue for determination adumbrated by the 1st Respondent, the second issue for both the 2nd Respondent and the 3rd-64th Respondents. Their arguments are similar in content and I will take them together.
Respondents’ counsel submitted that the burden rests on a petitioner to prove his petition. They cited IHUTE V. INEC (1999) 4 NWLR Pt.599 Pg.360 at 363; MASKA V. IBRAHIM (1991) 4 NWLR Pt.599 Pg.415 at 422; ABIBI V. TANMUNO (1999) 4 NWLR Pt.599 Pg.334 at 339-340.
Counsel submitted further that the Appellants evidence was at variance with pleadings and should be ignored. BUSARI v. EDO STATE CIVIL SERVICE COMMISSION (1999) 4 NWLR Pt.599 Pg.365 at 377 was cited to support the submission. It was argued for the Respondents that the Appellants were obliged to show evidence of witnesses who were deprived of the opportunity to vote.
Respondents’ counsel argued that even the evidence of the Appellants witnesses showed that voting took place in the Constituency that day. Counsel insisted that the Appellants had proceeded to lead evidence of votes scored at the election and tendered copious volumes of statements of results which they invited the trial Tribunal to evaluate.
Apart from the allegation of late arrival of voting materials and over-voting, the facts alleged in the petition at pages 7 to 9 of the record consist of allegations of crime which are not particularized to any alleged agent of the 1st Respondent.
The Appellants were therefore bound to prove those allegations beyond reasonable doubt and also prove that the persons who committed the acts were the agents of the 1st Respondent. Counsel cited ANAZODO v. AUDU (1999) 4 NWLR Pt.600 Pg.530 at 546; FALAE v. OBASANJO (No.2) (1999) 4 NWLR Pt.599 Pg.476 at 498 and NWOLE v. IWUAGWU (2005) 16 NWLR Pt.952 Pg.543 at 568.
Counsel also argued that the evidence of the 1st Appellant contradicted that of her PW4 who testified on oath that the 1st Appellant scored votes at the polling booth he supervised. Thus the Tribunal cannot pick and choose whose evidence to believe and was thus bound to reject the contradictory evidence. Counsel submitted that this court ought not to interfere with the finding of the Tribunal on the weight to be attached to the evidence of the Appellants’ witnesses. They cited OZURUOKE V. OKOLIE (2000) 1 NWLR Pt.642 Pg.569 at 575; NNADOZIE V. MBAGWU (2008) 3 NWLR Pt.1074 Pg.363; UBA V. UKACHUKWU (2004) 10 NWLR Pt.881 Pg.224 at 256-257
Counsel argued that the Appellants had the burden to prove that election was not held. Where they claim malpractices and invalid votes, they must prove arithmetically that invalid votes were more than the valid votes.
I have earlier in this judgment ruled that the Tribunal was wrong in expunging from the record the evidence of PW1, PW3, PW4, and PW5 . Since an appeal is by way of rehearing, I will consider the evidence given by these witnesses. The Tribunal addressed the issue of whether or not election took place in that constituency on the day of the Election on page 7-8 of its judgment and page 330-331 of the Record. The Tribunal considered the evidence of PW8, and PW2 who said they did not vote because they were actually moving around as against the evidence of DW1 and the Voters Registers and Forms EC8A tendered by the 1st Appellant. The Tribunal then concluded as follows:
“PW2 said that 2 elections held on the day in Imo State. Could every body have gone out to vote in only one of the 2 elections? We think not. We therefore find and hold that indeed there was voting in the constituency in question on the day of the election 21/4/2007.”
Let us consider the evidence expunged by the Tribunal which decision I have reversed.
PW1 stated in his deposition that election did not take place because electoral materials did not arrive at the local government secretariat until 7.30pm. He also swore that election did not take place. He was not cross-examined on this point. PW2 stated in his deposition that he was the agent of the 2nd Appellant for the Ndiogbuonyeoma polling unit and that no voting took place at that unit on that day.
PW3 swore that the electoral materials which arrived at 5pm for Umualumoke Ward was taken to the house of a politician and that no voting took place on that day. He did not vote due to his assignment.
PW4 swore that as INEC polling clerk in charge of booth 004 at Central School Okwelle on 21/4/07, voting materials did not arrive at Onuimo Local Government until 5.30pm. He swore that the voting materials were seized and illegal thumb-printing was done by PDP agents.
PW5 swore that there were malpractices on the day of the election but that he voted at Umuaguro Okelle Ward.
Let us weight that against the evidence of the Respondents’ witnesses. That is DW1 the 1st Respondent and DW2 the Director of Operations INEC whose deposition is on page 107 of the record. They both gave oral evidence to the effect that voting took place in the constituency on the day of the election. There was no pretence that PW1, 3, 4, and 5 were able to see what took place outside their own local area or polling booth. Their evidence even if believed could not be taken to have covered the whole constituency and to prove by the preponderance of evidence that no voting took place in the whole constituency made up of three local governments. See OMORINBOLA II v. MIL. GOV. ONDO STATE (1995) 9 NWLR Pt.418 Pg.201.
I am bound to agree with the learned Tribunal on this issue of fact. That NO VOTING took place in any of the polling booths in the three Local Governments making up the Federal Constituency has not been proved by the preponderance of evidence adduced by the Appellants. There is believable evidence from some of the Appellants’ witnesses that in some polling units, there was over-voting. There is also evidence that voting in some polling units did not take place, but there is no evidence as postulated by the Appellants that NO VOTING took place in the WHOLE constituency. Indeed, the evidence of the Appellants’ witnesses are that pockets of non-voting, forgery, thumb-printing and other acts of violence occurred which marred the voting exercise. This is quite different from the assertion by the Appellants that voting did not occur at all.
At the trial, the 1st Appellant took the position that no voting took place in the constituency and indeed in the entire Imo State on 21st April, 2007. Her evidence is at pages 264 to 265 of the record as stated below:
“There was no voting in the entire constituency on that day. There was no voting or election in the constituency and the entire State as a whole that day. Nobody scored any vote in the election. I did not score any vote. I am entitled to the reliefs I seek because there was no election.”
I am of the humble view that a party who alleges non-voting should tender voters cards through registered voters in that constituency who turned up to vote but were not given an opportunity to vote. Such registered voters must be made available for cross-examination. See ONOYON v. EGARI (1995) 5 NWLR (Pt.603 Pg.416 at 425; AYOGU v. NNAMANI (2006) 8 NWLR Pt.981 Pg.160 at 187. I agree with the submission of Respondents’ counsel that the Appellants gave evidence contrary to their pleadings and to reiterate that the 1st Appellant who testified that no election was held, proceeded to tender a large volume of documentary evidence at the trial. Those documents show election results which are presumed to be accurate until the contrary is proved. Those election results tendered by the 1st Appellant can only serve the purpose of contradicting the case of the Appellants to the effect that no election was held at all.
In AYOGU v. NNAMANI (supra) Z. A. BULKACHUWA J.C.A held that an Appellant pleading that no voting took place must prove so by calling at least a registered voter from each of the polling booths in each of the wards in the respective Local Government Areas to show that he could not vote. The Appellant must also establish by credible evidence how the lack of voting affected the final results to his disadvantage.
I have earlier set out the reliefs sought by the Appellants from the court below. In this court the Appellant seeks the following reliefs on page 376 of the record:
“RELIEFS SOUGHT FROM THE COURT OF APPEAL
(a) To set aside the judgment of the Governorship and Legislative Houses Election Petition Tribunal Imo State delivered on 7/3/08.
(b) To enter judgment for the Appellants nullifying the election and ordering a fresh election OR in the alternative sending the petition for retrial by the different panel of judges.”
In essence the Appellants want nullification of the result.
“Nullification of an election is a very serious sanction which can be inflicted on an election already conducted. It should only be imposed in very rare situations and only after well established reasons have been adduced in support of such a decision.” See Akintan J.C.A (as he then was) in EDONKUMOH v. MUTU (1999) 9 NWLR Pt.620, Pg.633 at Pg.653.
Thus to make a case for nullification there must be evidence that the non-compliance materially affected the result of the election. See NNAGI v. AGBO (2006) ALL FWLR Pt.305 Pg.736 at 760; BUHARI v. INEC (2008) 19 NWLR Pt.1120 Pg.246; INIAMA v. AKPABIO (2008) 17 NWLR Pt.1116 Pg.225.
In IHUTE V. INEC (supra) this court held as follows at page of Pt.599 NWLR:
“In an election petition, when a petitioner makes an allegation of non-compliance with the electoral law as the basis or foundation of his case he has a heavy burden to show the Tribunal by cogent and compelling evidence that the non-compliance is of such a nature as to affect the result of the election…”
There is a presumption that the result of an election as published by INEC is correct and the onus is on the person who denies its authenticity to rebut the presumption. See AYOGU v. NNAMANI (supra). Where the denial is based on allegations of crime like forgery and massive thumb-printing of ballot papers etc. the allegations which tantamount to criminal offences must be proved beyond reasonable doubt.
Apart from that, the first burden is on the Appellants to establish not only substantial non-compliance with the principles of the Electoral Act but also that such a non-compliance affected the result of the election. See BUHARI V. INEC (2008) 12 SCNJ 1 at pg.78. The Tribunal in its judgment proceeded to examine and resolve specific complaints raised by the Appellants in the Wards and polling booths specified at pages 2-23 of their address at the lower court. The Tribunal was left with only the views of the Appellants and it proceeded from pages 332-363 of the record to resolve issues of non-compliance raised in 170 polling booths. In some areas, documents tendered were of no use to the Tribunal as they were dumped on the Tribunal with no effort at all to link them to specific polling stations. Please recollect that 536 exhibits were tendered before the Tribunal. The Tribunal must be commended for going through these documents tendered by the Appellant to do the needful according to law and subtract invalid from valid votes.
At the end of the tedious exercise, the Tribunal found that in 34 polling booths there was over-voting and proceeded to nullify the elections in those polling booths. In CHIBOK V. BELLO (1993) 1 NWLR Pt.267 Pg.109, this court held that where results from specific polling stations could not stand, the court must ascertain whether or not the nullification of the results in those polling stations concerned were substantial enough to affect the overall results of the election in the Constituency. If after mathematical deduction and calculation, the person declared winner would have lost, then the whole election in respect of that seat is nullified and a bye election should be ordered. In the case of NA-GAMBO v. INEC (1993) 1 NWLR Pt.267 Pg.94 it was held that the question of the validity of an election objected to a ground of irregularity or non-compliance is one of degree. Once an election Tribunal finds that there is non-compliance with the law in respect of election in certain areas, votes cast in such areas are to be cancelled. This the Tribunal in this present case rightly did. See also IZUOGU v. UDENWA (1999) 6 NWLR Pt.608 Pg.582; CHIEF AJADI v. CHIEF AJIBOLA (2004) 16 NWLR Pt.898 Pg.91 at Pg.170-171; NGIGE v. OBI (2006) ALL FWLR Pt.330 Pg.1140; AGAGU v. MIMIKO (2009) 7 NWLR Pt.1140 Pg.342 at Pg.439-440.
The Tribunal in this case rightly in my humble view deducted the invalid votes of the 34 polling units where non-compliance occurred from the total of 329 polling units in the Constituency and came up with the following results:
“PDP: 99,715 LESS 14,179 = 85,536
AC: 16,957 LESS 881 = 16,076
APGA: 3,152 LESS 284 = 2,868
ANPP: 1,161 LESS 237 = 924
NDP: 220 LESS 21 = 199”
The result clearly shows that the 1st Respondent still won the election. Therefore, even though there were proven electoral malpractices, they did not substantially affect the over-all results of the election. The third issue is resolved in favour of the Respondents.
In the circumstances, the decision of the lower Tribunal is upheld. This appeal is dismissed for lack of merit. N30,000.00 costs for the 1st Respondent against the Appellants.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I read before now, a copy of the Judgment just delivered by my learned brother, OGUNWUMIJU, JCA, I entirely agree that the appeal have no substance and ought to fail.
The appeal is accordingly dismissed. I abide by the consequential order as to cost.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.
Appearances
A. S. Ogujiofor with him O. I. Nnabugwu Esq., D. U. Enwere Esq., C. U. Ekomaru Esq., C. C. Azara Esq.For Appellant
AND
Denwigwe SAN for 1st Respondent
B. I. Amadi (Mrs) for the 3rd – 64th Respondents
L. C. Alinnor (Jnr); with him D. U. Alinnor for the 2nd RespondentFor Respondent
