CHIEF GREAT OVEDJE OGBORU & ANOR. V. DR. EMMANUEL EWETAN UDUAGHAN & ORS.
(2010)LCN/4030(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 9th day of November, 2010
CA/B/EPT/38/10
RATIO
CONSEQUENCE OF A NOTICE OF PRELIMINARY OBJECTION NOT FILED AND SERVED IN COMPLIANCE WITH THE SAID RULES OF THIS COURT
By virtue of order 10 Rule 1 of the Rules of this court, a party desirous of raising a preliminary objection is required to file such notice and serve same on the other party at least three clear days before the hearing of the appeal. Failure to serve the said notice is a breach of the provisions of the Rules. It must be emphasised that these rules are meant to be obeyed. They are not designed for window dressing. In the instant appeal, it is unarguable that the Notices were not filed and served in compliance with the said Rules of this court. As a result, they are hereby declared incompetent. We, accordingly strike them out see Ejura v Idris and ors (2006) LRECN 327; Okolo v UBN Ltd (1998) 2 NWLR (Pt.539) 618; and Kenlink Holdings Ltd v Realistic Equity Investment Ltd (1991) 11 NWLR (Pt. 529) 438. PER MONIGA B. DONGBAN-MENSEM, J.C.A.
RAISING ISSUES SUO MOTU: EFFECT OF THE COURT RAISING AN ISSUE SUO MOTU AND CONSIDERING IT WITHOUT INVITING THE PARTIES TO ADDRESS IT ON SUCH ISSUE
…we have ample support in the decision of the Supreme Court in Ughutevbe v Shonowo (2004) 32 WRN 27; (2004) 16 NWLR (pt 882) 300. In that case, the trial court suo motu considered the validity of certain paragraphs of the respondent’s pleading. It resolved the issue without hearing from the parties. On appeal, this Court held that the trial court was wrong in its approach. On further appeal, the Supreme Court upheld this court’s decision on the matter. According to Ejiwunmi JSC (of the blessed memory): It must be borne in mind that the pleadings in an action determine and control the way and manner the trial of an action will succeed or fail. Being the threshold that determines the facts of an action, it makes for justice and fair play for their validity and relevance to be tested at the beginning of the action or as soon as possible thereafter. In any event, in a matter as crucial as the determination of the rights and wrongs of an action, the parties ought to be given an opportunity of being heard before the court takes its decision. It is against this background that we look with askance at the approach which the tribunal adopted in the present case [see, pages 2691-2695 of the Records Vol 5]. In the course of its judgment, it considered the statements on oath of PW 65 and PW 66. It took the view that they did not comply with the oaths Act. It proceeded to strike them out. Interestingly, as Ichekor, insightfully, pointed out in his submissions, the parties did not join issues on the competence of the said written statements on oath. Worse still, when these witnesses adopted their written statements on oath as their evidence in chief, none of the counsel for the respondents took any objection to their competence. We must hasten to add that the tribunal was entitled to raise suo motu the issue of the pedestal of the statements on oath of the PW 65 and PW 66 in the light of the provisions of the oaths Act, Kraus T. org. Ltd v UNICAL (2004) 25 WRN 1, 17. However, it erred in one respect: it, unilaterally, undertook the resolution of the said issue it raised suo motu without hearing from the parties. That was, clearly, a wrong approach. The law is now, clearly, settled that when a court, for any compelling reason, finds it necessary, and particularly in the interest of justice, to raise a point or issue suo motu, the parties must be given an opportunity to be heard on such a point or issue. This rule applies even with greater force in favour of the party that would be prejudiced as a result of the point raised without the prompting of any of the litigants in the case, Adegoke v Adibi (1992) 5 NWLR (pt 242) 410; Atanda v Lakanmi (1974) 3 SC 109; Odiase v Agho (1972) 3 SC 71; Kraus T. Org. Ltd v UNICAL (2004) 25 WRN 1, 17. The implication is that its violation amounts to a flagrant breach of the aggrieved party’s right to fair hearing as entrenched in the Constitution, Oje v Babalola (1991) 4 NWLR (pt 185) 267; Ugo v Obiekwe (1989) 1 NWLR (pt 99) 566. Indeed, it equiponderates to a miscarriage of justice, Owoso v Sunmonu (2004) 30 WRN 93, 106-107; meaning, failure of justice, Ojo v Anibire (2004) 5 KLR (pt 177) 1205, 1207 or justice which is not in consonance with the law, Wilson v Wilson (1969) ALR 191 approvingly adopted in Ojo v Anibire (supra) 1214. PER MONIGA B. DONGBAN-MENSEM, J.C.A.
MEANING OF THE WORD “ELECTION”
The law, as we understand it, is that the word “election” is a generic term; a process which embraces the entire gamut of activities ranging from accreditation, voting, collation to recording on all relevant INEC Forms and declaration of results, INEC v Ray (2004) 14 NWLR (pt 892) 92, 123; Agoda v Enamuotor (1999) I LRECN 205,219; Alaki v Shaaho (1999) 2 LRECN 287; Igodo v Owulo (1999) 4 LRECN 22; Aondoakaa v Ajo (1999) 3 LRECN 380,402. Voting is, thus, only a species of the genus, which is election, Aondoakaa v Ajo (1999) 3 LRECN 380,402. Casting of votes alone, therefore, does not constitute election, Aondoakaa v Ajo (1999) 3 LRECN 380, 402; Agbaso v Ohakim (2003) 1 LRECN 317, 371. PER MONIGA B. DONGBAN-MENSEM, J.C.A.
ON WHOM RESTS THE BURDEN OF PROOF
In Imana v Robinson (supra), Aniagolu JSC delivering the unanimous judgment of the Supreme Court, approvingly adopted the exposition in Phipson on Evidence (supra) as the Nigerian law on the subject: ‘The burden of proof, in this sense, 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 strong reasons’. 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. If when all the evidence, by whosoever introduced, is in, the party who has this burden has not discharged it, the decision must be against him. PER MONIGA B. DONGBAN-MENSEM, J.C.A.
JUSTICES
MONICA B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
OLUKAYODE ARIWOOLA Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
Between
1. CHIEF GREAT OVEDJE OGBORU
2. DEMOCRATIC PEOPLES PARTY Appellant(s)
AND
1. DR. EMMANUEL EWETAN UDUAGHAN
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORIAL COMMISSION, (INEC) AND ORS Respondent(s)
MONIGA B. DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): Some time in 2007, precisely on April 14, 2007, the third respondent (INEC) herein allegedly conducted gubernatorial elections in Delta State. The first appellant was the candidate of the second appellant; on the other hand, the second respondent sponsored the candidature of the first respondent. At the end of the exercise, the third respondent returned the first respondent as the winner of the said election. Dissatisfied, the appellants beseeched the Governorship/Legislative Houses Election Petition Tribunal, holden at Asaba (hereinafter referred to as the “the tribunal”) with a petition praying for certain specific reliefs. Pleadings were settled and exchanged in accordance with the applicable Rules and Practice Directions. At the conclusion of the hearing, the tribunal, in its judgment of October 19, 2009, (about one year ago), dismissed the petition. Dissatisfied with the outcome of the proceedings, the appellants appealed to this Court. From the twenty grounds of appeal, they have formulated eight issues for the determination of this appeal. These issues were couched thus:
ISSUES FOR DETERMINATION
ISSUE ONE
Whether the Tribunal was not in error in holding that the burden of proving that the Delta State Gubernatorial Elections did not hold rested on the Appellants and that the Appellants failed to discharge the burden placed on them by law in respect of proof of the non-conduct of the election.
ISSUE TWO
Whether the tribunal was not in error in discountenancing or and failing to evaluate (properly or at all) the evidence of the Appellants’ witnesses.
ISSUE THREE
Whether the tribunal erred in striking out the evidence of PW 65 and PW 66, when no objection whatsoever was taken to their witnesses’ statements and when by their sworn statements the case of the Appellants was that there was no gubernatorial election in Delta State.
ISSUE FOUR
Whether the tribunal was not in error in admitting exhibits R3 (i)-(ix); R4 (i)-(vii); R5(i)-(ix); R6(i) – (vii); R7(i) – (ix); R8(i) – (x); R9 (i) – (ix); R10 (i)- (iv); R11(i) – (xii); R12 (i) – (ix); and R13 (i) – (iv), which purport to be Forms EC8 As for some polling units in eleven Local Government Areas of Delta State when same were not front loaded or listed at all as part of the documents to be relied on by any of the Respondents and then refused to evaluate and or give effect to the facts loudly proclaimed on the face of the exhibits.
ISSUE FIVE
Whether the order of the Court of Appeal in CA/B/EPT/205/2008 CHIEF GREAT OVEDJE OGBORU & ANOR V DR EMMANUEL EWETAH UDUAGHAN & ORS for a hearing of the petition on the merit and paragraph 49 (2) of the First Schedule to the Electoral Act 2006 precluded the tribunal from entertaining the issue of the alleged incompetence of the petition.
ISSUE SIX
Whether the Tribunal was not in error in holding that the petition was incompetent for non-compliance with the provisions of paragraph 4(1) (c) of the first schedule to the Electoral Act 2006.
ISSUE SEVEN
Whether Exhibits R2, R2A, R2b, R2C, R2D, R2E, R2F, R2F, R2G, R2H, R2J, R2K, R2L, R2M, R2N, R2P, R2Q and R2R tendered by the 1st Respondent’s witnesses and admitted by the tribunal were admissible when they are mere photocopies of the temporary voters cards which cards are public documents and property of the Independent National Election Commission (INEC) which is a public body.
ISSUE EIGHT
Whether the tribunal was right to have rejected the bundle of original temporary voters cards belonging to disenfranchised voters which voters card were sought to be tendered by petitioners witness PW 65 when same was referred to in the witness’s statement on oath; listed as part of the documents to be relied on and is relevant to the Appellants’ case.
The other sets of respondents, equally, formulated issues, which in their respective views were determinative of this appeal. The first respondent’s eight issues span pages 9- 10 of the Brief of Argument; on their part, the 2nd and 2975th respondents concreted nine issues for the determination of this Court: see, pages 7-8 of their Brief of Argument; in the views of the 3rd – 2974th respondents, the issues that call for determination are the six issues which they put forward on pages 6-7 of their Brief of Argument]. We have perused the issues put forward by the appellants and the three sets of respondents. They are almost akin in their tenor and import except for the slight variations introduced by the respondents. In all, however, all the parties are, almost, ad idem on the pith and substance of the issues which the appellants formulated.
In the determination of this appeal, therefore, we shall adopt the issues which the appellants formulated from their whopping twenty one Grounds of Appeal. After all, it is their appeal. However, we shall take the liberty to reverse the order of the consideration of the issues. Thus, the first issue will be considered last. In the same vein, we intend to dispose of issue 3 first. While issues 4 and 7, dealing with the admissibility of documents, would be taken together; issues 5 and 6, which verge on the questions for determination in the interlocutory appeal, have been dealt with in the course of the resolution of the said interlocutory appeal. Issue 8 will, equally, be attended to. In effect, the first issue would be the last to be addressed. The final resolution of this first issue, in our view, would obviate the need to broach the second issue. Before embarking on the resolution of the above issues, however, it is only meet and proper to dispose of the Notices of Preliminary Objection of the respondents.
PRELIMINARY OBJECTIONS
The 2nd and 2975th respondents and the 3rd -2974th respondents filed Notices of preliminary objections against the reply Briefs filed by the appellants. The two Notices were dated 8/10/10. Whereas that of the 2nd and 2975th respondents was dated 8/10/10, it was served on the appellants on 11/10/10. However, that of the 3rd -2974th respondents, although dated and filed on 8/10/10 was actually, served on the appellants on 11/10/10, when the appeal was heard. The said objections were targeted at the reply briefs of the appellants: reply briefs filed in response to the various briefs filed by the respondents.
The voluble arguments of the parties in respect of the said objections need not distract us from the determination of the main issues for consideration in this appeal. By virtue of order 10 Rule 1 of the Rules of this court, a party desirous of raising a preliminary objection is required to file such notice and serve same on the other party at least three clear days before the hearing of the appeal. Failure to serve the said notice is a breach of the provisions of the Rules. It must be emphasised that these rules are meant to be obeyed. They are not designed for window dressing. In the instant appeal, it is unarguable that the Notices were not filed and served in compliance with the said Rules of this court. As a result, they are hereby declared incompetent. We, accordingly strike them out see Ejura v Idris and ors (2006) LRECN 327; Okolo v UBN Ltd (1998) 2 NWLR (Pt.539) 618; and Kenlink Holdings Ltd v Realistic Equity Investment Ltd (1991) 11 NWLR (Pt. 529) 438.
This order striking out the Notices notwithstanding, we take the view that the approach of the appellants, in their said reply briefs, is clearly overreaching. Substantial portions of their reply briefs are evidently attempts to re-argue the appeal. We are under obligation to purge the said briefs of such overreaching arguments. We, therefore, discountenance the said reply briefs. Having thus dealt with the objections, we now turn to the resolution of the issues; first issue 3.
ISSUE THREE
WHETHER THE TRIBUNAL ERRED IN STRIKING OUT THE EVIDENCE OF P.W.65 AND P.W.66, WHEN NO OBJECTION WHATSOEVER WAS TAKEN ON THEIR ON THEIR WITNESSES’ STATEMENT AND WHEN THEIR SWORN EVIDENCE IN OPEN COURT WAS COGENT, UNCHALLENGED AND UNEQUIVOCALLY PROVED THE CASE OF THE PETITIONER THAT THERE WAS NO GUBERNATORIAL ELECTION IN DELTA STATE
When this appeal came up for hearing, N. I. Ichekor, learned counsel for the appellants, adopted and relied on the appellants’ brief of arguments’ He referred to pages 244 to 247 of the judgment [pages 2691 to 2695 of the Records, Vol.5], where the tribunal considered the statements on oath of P.W.65 and P.W.66 and came to a conclusion that they did not comply with the oaths Act and, consequently, struck them out, citing and relying on Chikwelu Chris Obumneke v Okeke Sylvester & Ors [unreported Appeal No CALE.EPT/27/2008].
Counsel observed that the conclusion of the tribunal provoked two questions. In his view, the first was whether the tribunal was right to have raised such an issue suo motu without calling on the parties to address on it. The second question, according to him, was whether the tribunal was right to strike out the testimonies of P.W.65 and P.W. 66 based on its findings that the witnesses’ statements on Oath did not comply with the Oaths Act.
He took the first question. He submitted that the tribunal was not in a position to raise an issue that bordered on the competence of written statements on oath in support of the petitioners’ petition suo motu and resolve same against the petitioners without hearing argument thereon from any of the parties. He maintained that the parties did not join issues on the matter. The respondents did not even raise any objection at the time P.W.65 and P.W. 66 adopted their written statements on oath as their evidence in chief, citing page 1868 of vol.4 of the Records. He argued that the tribunal acted wrongly in the circumstance, Bayol v Ahemba (1999) 10 NWLR (pt 623) 381, 391- 392; also, Bamgboye v Olarenwaju (1991) 4 NWLR (pt.184) 132, 144; Uma v Bayero University (1988) 7 SCNJ 380; Irom v Okimba (1998) 3 NWLR (pt 540) 19, 25; Oyekanmi v NEPA (2000) 15 NWLR (Pt 690) 414, 439; Dipcharima v Umar Ali (1974) NSCC Vol 9, 596, 597.
Learned counsel submitted that the striking out of the statements on oath of P.W.65 and P.W.66 was wrong in law and had, substantially, affected the case of the petitioners because these two witnesses had testimonies that were very vital to the case of the petitioners. He explained that the two witnesses, especially during cross-examination, gave vivid recollection of how they visited all the Local Government Areas and wards in Delta State on the day of the election and saw that no election was taking place there, citing pages 1874 – 1877 and 1880 – 1882 of vol.4 of the Records. The striking out of their evidence had led to a miscarriage of justice as those testimonies formed the bulk of the proof of the petitioners’ petition.
Turning to the second leg of this issue, counsel submitted that the statements on oath of the two petitioners’ witnesses were admissible and competent. He explained that the sole reason which the tribunal gave for rendering the two statements invalid was that they did not, substantially, comply with the format prescribed by the oaths Acts. Counsel cited P.W.65’s witness statement, page 110 of vol. 1 of the Records and that of P.W.66, page 114 of vol. 1 of the Records. He submitted that an affidavit is sworn when the statement is made before an authority having the power to attest to an oath and not when the words used in the oaths are copied into the statement. Thus, when a commissioner for oaths duly states and attests to an oath as having been made before him, such an oath or affidavit becomes duly sworn to, Ibrahim v INEC (1999) 8 NWLR (Pt 614) 334, 346-347.
He maintained that a statement becomes one on oath when the oath is administered on the maker by an appropriate authority and thereafter it cannot be declared invalid on the mere excuse that the wordings of the declaration in the oaths Act were not incorporated into the affidavit.
It was, also, submitted that the Statement on oath required to be filed with an election petition is different from an affidavit in support of motion. In his view, while a person or deponent (witness) in an election petition is expected to take another oath and adopt his statement on oath in court; a deponent in an affidavit supporting a motion is not expected to do so unless in special circumstances such as when there are conflicts in affidavits. He submitted that since P.W. 65 and P.W.66, also, subscribed to another oath in the open court, any formal deficiency in that regard suffered by their original statements on oath had been cured by this subsequent oath taken in the open court. Counsel explained that the real object of front loading of witnesses’ statements in election petitions is to avoid the waste of time and springing of surprises. It is, thus, a rule designed to enhance the hearing of matters on the merit and not an invitation to relapse into technicalities. He submitted further that Obumneke v Okeke (supra), which the tribunal relied on was quite irrelevant. He urged this Court to resolve this issue in favour of the appellants.
The first, and other, respondents did not subscribe to the above submissions. Counsel for the first respondent referred to the findings of the tribunal, [page 2693 in volume 5] and the findings on the issue, [line 12, page 2694 to line 3, page 2695 in volume 5 of the records]. He impugned the submission that the tribunal took the issue of the invalidity of the said statements suo motu. In his view, the invalidity of the written statements was glaring and the tribunal merely applied the law to the facts, citing, Ibe v Ugochukwu (2010) All FWLR (pt 505) 1590, 1602. He maintained that despite the findings that the written depositions were not validly deposed to, the tribunal still evaluated the evidence contained in the written depositions and found that it was not credible.
The submissions of the learned counsel for the 2nd and 2975th respondents were, essentially, anchored on the same premise as those put forward for the first respondent [see, paragraph 7.01 et seq., pages 83 etc of their brief of argument]. On their part, the 3rd -2974th respondents, conveniently, elided any consideration of this issue [see, paragraphs 4.00- 10.0, pages 7 – 33 of their brief of argument].
RESOLUTION OF THE ISSUE
Although, the appellants opted to deal with this issue under two sub-heads, we take the humble view that a resolution of the first arm of this issue would render it unnecessary for us to deal with the second leg of the appellants’ complaint. The reason would be evident anon.
Indeed, we have no hesitation in resolving the said first arm of this issue in favour of the appellants. In doing so, we have ample support in the decision of the Supreme Court in Ughutevbe v Shonowo (2004) 32 WRN 27; (2004) 16 NWLR (pt 882) 300. In that case, the trial court suo motu considered the validity of certain paragraphs of the respondent’s pleading. It resolved the issue without hearing from the parties. On appeal, this Court held that the trial court was wrong in its approach. On further appeal, the Supreme Court upheld this court’s decision on the matter. According to Ejiwunmi JSC (of the blessed memory):
It must be borne in mind that the pleadings in an action determine and control the way and manner the trial of an action will succeed or fail. Being the threshold that determines the facts of an action, it makes for justice and fair play for their validity and relevance to be tested at the beginning of the action or as soon as possible thereafter. In any event, in a matter as crucial as the determination of the rights and wrongs of an action, the parties ought to be given an opportunity of being heard before the court takes its decision.
It is against this background that we look with askance at the approach which the tribunal adopted in the present case [see, pages 2691-2695 of the Records Vol 5]. In the course of its judgment, it considered the statements on oath of PW 65 and PW 66. It took the view that they did not comply with the oaths Act. It proceeded to strike them out. Interestingly, as Ichekor, insightfully, pointed out in his submissions, the parties did not join issues on the competence of the said written statements on oath. Worse still, when these witnesses adopted their written statements on oath as their evidence in chief, none of the counsel for the respondents took any objection to their competence.
We must hasten to add that the tribunal was entitled to raise suo motu the issue of the pedestal of the statements on oath of the PW 65 and PW 66 in the light of the provisions of the oaths Act, Kraus T. org. Ltd v UNICAL (2004) 25 WRN 1, 17. However, it erred in one respect: it, unilaterally, undertook the resolution of the said issue it raised suo motu without hearing from the parties. That was, clearly, a wrong approach. The law is now, clearly, settled that when a court, for any compelling reason, finds it necessary, and particularly in the interest of justice, to raise a point or issue suo motu, the parties must be given an opportunity to be heard on such a point or issue. This rule applies even with greater force in favour of the party that would be prejudiced as a result of the point raised without the prompting of any of the litigants in the case, Adegoke v Adibi (1992) 5 NWLR (pt 242) 410; Atanda v Lakanmi (1974) 3 SC 109; Odiase v Agho (1972) 3 SC 71; Kraus T. Org. Ltd v UNICAL (2004) 25 WRN 1, 17.
The implication is that its violation amounts to a flagrant breach of the aggrieved party’s right to fair hearing as entrenched in the Constitution, Oje v Babalola (1991) 4 NWLR (pt 185) 267; Ugo v Obiekwe (1989) 1 NWLR (pt 99) 566. Indeed, it equiponderates to a miscarriage of justice, Owoso v Sunmonu (2004) 30 WRN 93, 106-107; meaning, failure of justice, Ojo v Anibire (2004) 5 KLR (pt 177) 1205, 1207 or justice which is not in consonance with the law, Wilson v Wilson (1969) ALR 191 approvingly adopted in Ojo v Anibire (supra) 1214.
In the circumstance, we have a duty to purge the proceedings of the tribunal of such breaches which have the capacity of tarnishing the allure and purity of its decisions. That is why we must flush out the aspects of its proceedings resulting from such an exercise. It is immaterial that such proceedings were brilliantly conducted. In a word, they constitute a travesty of justice, Owoso v Sunmonu (supra). The net effect is that we resolve this issue in favour of the appellants. This, also, relieves us of the drudgery of the consideration of the second limb of this issue. This must be so because of the our view that the approach of the tribunal was a flagrant breach of the appellants’ right to fair hearing as entrenched in the Constitution, Oje v Babalola (1991). Thus, no matter how brilliantly the proceedings were conducted, we are bound to vacate them as a travesty of justice! This brings us to issues 4 and 7 which, as noted earlier, will be considered together.
ISSUES 4 AND 7
We take the view that issues 4 and 7 can be conveniently dealt with together since they border on the admissibility of documents. In consequence, they would be disposed of under one sub-heading with two limbs, first limb ‘A’: the admissibility of certain exhibits, that is, issue 4. The appellants couched this issue thus:
Whether the tribunal was not in error in admitting Exhibits R3(i)-(ix); R4(i)-(vii); R5(i) – (ix); R6(i) – (vii); R7(i) – (ix); R8(i) – (x); R9(i) – (ix); R10(i) – (iv); R11 (i) -(xii); R12(i) – (ix) and R13(i)- (iv), which purport to be Forms EC8As for some polling units in eleven Local Government Areas of Delta State when same were not front loaded or listed at all as fart of the documents to be relied on by any of the Respondents and then refuse (sic) to evaluate and or give effect to the facts loudly proclaimed on the face of the Exhibits.
Ichekor pointed out that the tribunal, despite objections from the appellants, admitted in evidence Forms EC8A for some polling units in 11 Local Government Areas, in respect of which it was conceded that the appellants called oral evidence. The forms EC8A were admitted as Exhibits R3(i) – (ix); R4(i)-(vii); R5(i)-(ix); R6(i)-(vii); R7(i)-(ix); R8(i)-(x); R9(i)-(iv); R10(i)-(iv); R11(i)-(xii); R12(i)-(ix) and R13(i)-(iv).
He observed that the forms aforesaid were not listed or frontloaded by any of the respondents as documents they intended or proposed to rely on at the trial of the petition. He explained that the respondents, in unison, stoutly resisted every effort by the appellants to produce the forms and other electoral materials at the tribunal. He contended that the provisions of the Practice Direction precluded the tribunal from receiving in evidence any document which was not filed along with the pleadings of the party. He pointed out that, in this case, the first respondent did not apply for leave and none was granted to it to adduce evidence not filed along with his pleadings. In his view, the tribunal was in error to have admitted the Forms EC8A as exhibits. This was more so when it had repeatedly rejected in evidence the voters’ card sought to be tendered by the appellants on the ground that, though frontloaded and pleaded, they were not mentioned in the written deposition of the witness. However, it admitted forms that were not pleaded at all or frontloaded by the respondents!
He observed that it was curious that after admitting the Forms EC8A in evidence as exhibits, the tribunal, bluntly, refused to look at the contents of the exhibits to see what they in fact evidenced! He asked, rhetorically, whether the forms, from their content, evidenced that elections were conducted in the units they purport to relate to or whether they themselves evidenced the fact that no election could have been conducted in any of the units that they purportedly related to.
Learned counsel explained that it was the contention of the appellants that from the alteration of figures, absence of signatures of presiding officers, fundamental conflicts in the names and numbers of political parties that, purportedly, contested the election in each of the polling units, different political parties and different number of political parties were recorded on the forms as having contested the election in the various units. As such, the forms were all bereft of any probative value or that the very matters, which the forms themselves loudly evidenced, were the very evidence that elections were not conducted as contended by the appellants, citing pages 2323-2326, vol. 5 of the Record of Appeal.
According to him, what the tribunal was invited to do was simply to evaluate the documents in order to determine whether any probative value ought to be accorded to them or whether matters that they evidenced were consistent or inconsistent with the conduct of an election, citing A. G. Oyo State v Fairlakes Hotels Ltd (1989) 12 SC 1, 40. He maintained that in refusing to evaluate the exhibits it admitted in evidence; or to attend to the matters which the exhibits evidenced, the tribunal fell into a serious error which denied the appellants of vital proof of their complaint that there was no election, citing Terab v Lawan (1992) 3 NWLR (PT.231) 569 at 592 and 588.
In further elaboration of his arguments, Ichekor pointed out that all the result sheets tendered for the entire Warri South West, for example, had only the name of PDP as the party that contested the election. It was common ground, however, from the pleadings of the parties that, at least, twenty two political parties contested the election, citing paragraph 14 of the petition, page 62 of vol. 1 of the Record of Appeal which lists the names and scores allocated to some 22 political parties, a list not challenged or denied by any of the Respondent in their separate Replies!
He further pointed out that the Forms EC8A for the entire Warri South West Local Government had only the name of, and scores for, PDP but page 677 vol.2, which contains the purported collated result for the said warri south west Local Government, has the names of and scores for 13 political parties. He opined that this cannot be consistent with or be proof of the conduct of any election. The matters evidenced by the forms EC8A were in conflict with the conduct of any election, citing G. Chitexind Ltd v Oceanic Bank Int (2005) 7 SC (PT.II) 50 on what should be done when a document is impugned; Aromolaran v Kupoluyi (1994) 2 NWLR (PT.325) 221, 244; Alade v Aborishade (1960) FSC 167 And Esene v Cecilia Esikhuevep (1978) 2SC 87; Alao v Akano (2005) 4 SC 25 at 36; Agagu v Mimiko (2009) 7 NWLR (pt.1140) 342,411; Ajadi v Ajibola (2004) 16 NWLR (Pt 595) 91 at 166-167 .
Counsel for the first respondent, in reply, submitted that the exhibits are certified true copies of public documents. He maintained that they were pleaded in paragraphs 41 and 42 (xiv) of the Petition. The first respondent also referred to and pleaded same in paragraphs 20 and 38 of his Reply. He argued that the documents are admissible in law being certified true copies in accordance with section 111 of the Evidence Act, Daggash v Bulama (2007) 14 NWLR (Pt. 892) 144, 200-201; Yero v UBA (2000) 5 NWLR (pt 657) 470, 478; Aregbosola v Oyinlola (2009) All
FWLR (Pt 472) 1147, 1181.
On the appellants’ contention on the tribunal’s refusal to look at the said exhibits, learned counsel for the first respondent referred to page 2699 in vol 5 of the Records. He submitted that the tribunal was right, citing Ejiogu v Onegocha (2006) All FWLR (pt 317) 467, 490. He relied on Ayogu v Nnamani (supra) for his submission that the respondents had discharged the burden to show that election held in Delta State on April 14, 2007. The 2nd and 2975th respondents canvassed similar arguments like the first respondent in respect of this issue, see paragraphs 8.03.6.021, pages 94 et seq. On their part, the 3rd- 2974th respondents addressed this issue at pages 28-33, paragraphs 9.01 et seq.
RESOLUTION OF THE ISSUE
We acknowledge the polarity of opinions of this Court, see, Ukpo v Ngaji (2008) 3 LRECN 505, at 525-526; Chime v Egwuonwu (2008) 2 LRECN 575, 616; Chime v Ezea (2008) 2 LRECN 673 744-745; and of the apex court, see, for example, the views of Tabai JSC in Okereke v Yar’ Adua (2003) and Tobi JSC in Abubakar v Yar’ Adua (2008) 4 NWLR (pt 1078) 465 on this issue. On the one hand, some Divisions of this court had taken a strict view of the provisions. For example, in Ukpo v Ngaji (2008) 3 LRECN 505, at 525-526, it was held that:
By paragraph 1 (1) (c) of the Practice Direction, a petitioner is expected to accompany the petition with ‘copies’ or ‘list’ of every document to be relied on at the hearing of the petition. It gives the petitioner the option of whether attaching the copies or ‘listing’ the documents where attaching them is not possible… It is unarguable that the provisions [of the said paragraph] are mandatory therefore non-compliance with the provision is not a mere technicality but a violation of the law, citing Ladipo v Oduyoye II EPR 705; Ojugbele v Lamidi (1999) 10 NWLR (Pt 621) 167.
On the other hand, there is the liberal approach founded on a consideration of the attainment of substantial justice. According to this approach, the rejection of documents because they were not frontloaded would occasion a miscarriage of justice. In Chime v Egwuonwu (2008) 2 LRECN 575, 616, this court held that:
The Evidence Act by virtue of section 1 (2) thereof applies to all Election Petition Tribunals since the proceedings are judicial proceedings within the contemplation of the said Act. Section 6 of the Evidence Act provides that evidence may be given of all relevant facts. The combined effect of sections 91 (1) and 111 of the Evidence Act is that the certified true copy of public documents may be tendered in evidence if they are relevant to the fact in issue. Neither the Electoral Act including the Schedule made thereto, nor the Evidence Act made any provision to the effect that if a document is not frontloaded that same will not be admitted in evidence.
Reacting to the approach which favoured the rejection of documents that were not frontloaded, this Court held at page 617 that:
The learned trial Tribunal fell into grave error when it rejected the documents tendered …on the ground that the documents were not frontloaded as required by the practice Direction. This is more so when the documents…are duly pleaded… and which are relevant and germane to the determination of the petition. The rejection of the [documents…] has occasioned substantial miscarriage of justice…the Court of Appeal found that notwithstanding that the documents were not frontloaded, the trial court ought not to have rejected same at the trial…
In the subsequent case of Chime v Ezea (2008) 2 LRECN 673 744-745, Adekeye JCA (as she then was), the erudite judicial Amazon, now a Justice of the Supreme Court, made further clarifications on why it would be wrong to reject such documents:
In the application of the Practice Direction, the provision of paragraph 4 (8) of the Practice Direction 2007 empowers the tribunal to grant leave in exceptional circumstances to receive in evidence documents which were not filed along with the petition in accordance with the Practice Direction. Exceptional circumstance in paragraph 4 (a) of the Practice Direction is synonymous with the interest of justice in paragraph 43 (1) and (2) of the First Schedule to the Electoral Act 2007, citing Abubakar v Yar’ Adua (2008) 4 NWLR (pt 1078) 465; INEC v Inyiama (2008) 5 NWLR (pt 1038) 182; Ogunsakin v Ajidara (2008) 6 NWLR (pt 1082) 1
We are inclined to the latter views for they are in accord with our understanding of the current mood of the courts in election matters: a mood dictated by the need to eschew technicalities in favour of substantial justice. In consequence, we find no merit in the agitation of the appellants with regard to this first limb of this issue. We, therefore, resolve it against them. However, against the background of the submissions of counsel for the parties, we have had to peruse the exhibits in contention here over and over again. Upon each perusal, what we saw were photocopies of certified true copies of the said exhibits: exhibits which, admittedly, at a public documents. For the respondents, it was argued, that the said documents are admissible in law being certified true copies in accordance with section 111 of the Evidence Act, citing Daggash v Bulama (supra).
With profound respect, this is not the whole truth about these documents. Though certified, they are, actually, photocopies of certified public documents. This is why we must greet the submissions of counsel for the respondents with unequivocal disapprobation. In doing so, however, we must observe, in fairness to counsel, that the question of the admissibility of photocopies of certified true copies of public documents has, unduly, continued to agitate the minds of our Judges. This should, actually, not be so. Incidentally, the Ilorin Division of this Court has had occasion to dwell, at some length, on this heady question. In this judgment, therefore, we shall pray in aid this Court’s erudite disquisition on the matter in Ogunleye v Aina and. Ors [Appeal No CA/IL/41/2009, unreported judgment of the Ilorin Division of this Court delivered on June 10, 2010], in answer to the submissions of the counsel for the respondents.
In that case, this Court was confronted with the same question of the admissibility of photocopies of certified true copies of public documents. This court first acknowledged the unpardonable divergence of juristic views on this question. It explained that:
On the one hand, some of our colleagues had taken the view that a photocopy of a certified true copy of a public documlent needs no further certification’ see, DTN v Williams (1986) 4 NWLR (Pt 36) 525, 536, IMB Nig Ltd v. Dabiri (1998) 1 NWLR (Pt 533) 284; Kabo Air Ltd v INCO Ber Ltd (2003) 6 NWLR (Pt 816) 323, 339; Iheonu v Obiukwu (1994) 1 NWLR (pt. 322) 594; ACB Plc v. Nwodika (1996) 4 NWLR (Pt 443) 470; Daniel Taylor Trans Ent Ltd. v. Busari (2001) 1 NWLR (pt 695)482, 489; Kerri v Ezunaka Bros Ltd (2003) 25 WRN 54, 63.
On the other hand, this Court in SPDC Nig Ltd v Nwolu (1991) 3 NWLR (pt 180) view that a photocopy of a certified true copy of a public document is inadmissible in evidence…
It then proceeded to proffer reasons why the viewpoint in SPDC Nig Ltd v Nwolu (supra) should prevail as the correct position of the law. According to the Court:
There are, at least, two clear reasons for departing from the position that a photocopy of a certified true copy of a public document needs no further certification. The first reason is hinged on the Evidence Act. Sections 97 (1) (e), (f) and 97 (2) (c) are germane. Section 97 (1) (e) and (f) of the Act provide inter alia:
Secondary evidence may be given of the existence, condition or contents of a document in the following cases:
(e) When the original is a public document within the meaning of section 109 of the Act;
(f) When the original is a document of which a certified copy is permitted by this Act or by any other law in force in Nigeria to be given in evidence.
Now, these provisions must be read against the background of the impregnable and finite clause in section 97 (2) (c) of the same Act which, in unmistakeable terms, canalises the admissibility of the secondary evidence of a public document to ‘a certified copy of the document, but no other kind of secondary evidence’.
Section 97 (2) (c) (supra), which deals with the admissibility of secondary evidence of public documents, must not be confused with the provisions of section 97 (2) (a) which deals with the admissibility of secondary copies of private documents. For their bearing on this point, we set out section 97 (2)(a):
97 (2) The secondary evidence admissible in respect of original documents referred to in the several paragraphs of subsection (1) of this section is as follows:
(a) In paragraphs (a), (c) and (d) any secondary evidence of the contents of the document is admissible
The Supreme court had the opportunity of explaining the nuances of these Sections in Araka v Egbue (2003) 33 WRN 1. Tobi JSC explained that section 97 (2) (c) (supra):
…is clearly in contradistinction to the provision of section 97 (2)(1) of the Act which admits any secondary evidence of the contents of the document. …section 97 (2) (a) anticipates private documents within the very vague meaning of section 110 of the Act. In other words, while section 97 (2) (c) provides for public documents, section 97 (2) (a) provides for private documents, which section 110 simply defines as all other documents which are not public documents
[page 15]
The second reason stems from the inviolable doctrine of stare decisis. Seventeen years before the decision of Ademola JCA in DTN v Williams (supra) the Supreme courts had ruled out the admissibility of photocopies of certified copies of public documents. In Minister of Lands W. N. v Azikiwe (1968) 1 All NLR 49 at pages 58-59, Coker JSC first observed thus:
…Exhibit 2 is a Photostat copy of what is ostensibly a certified true copy of a public document in the custody of the High court, Lagos. The certified copy in the custody of the High Court…had been subpoenaed…; apparently it was in fact produced before the court but, wrongly in our view, the official who produced it refused to tender it… and so it was withdrawn by the court official who had brought it and a Photostat of it was, undoubtedly with the consent of all concerned, left with the court and marked exhibit 2…
We have already pointed out that the original of the document exhibit 2 is a public document and it is indeed within the meaning of section 109 of the Evidence Act. Section 96 (2) [now, 97 (2)] of the Evidence Act prescribes the type of secondary evidence which may be given in the several cases therein set out…
The distinguished jurist (now of the blessed memory), then, made this oracular declaration:
The combined effect of the subsection [now section 97 (2) (c)] is that in the case of public documents the only type of secondary evidence permissible is a certified true copy of the document and, none other. The document now marked exhibit 2 is not a certified true copy but a Photostat copy and is therefore inadmissible as secondary evidence of a public document which it purports to be.
[italics supplied]
In effect, before the decision in DTN (supra) the apex court had settled the question of the inadmissibility of photocopies of certified true copies of public documents. Unarguably, therefore, any subsequent contrary decision on that point may, justifiably, be treated as one reached per incuriam.
In all, therefore, the only categories of public documents that are admissible in evidence are either the original documents themselves Onubruchere and Anor v Esegine (1986) 1 NSCC 343 at 350; Iteogu LPDC (2009) 17 NWLR (Pt 1171) 614,634 or in the absence of such original copies, their certified copies and no other, Minister of Lands W.N. v. Azikiwe (supra); Onubruchere and Anor v Esegine (supra); Araka v. Egbue (2003) 33 WRN 1; SPDC v Aswani ile Industries Ltd. (1991) 3 NWLR (pt 180) 496, 505; Ojibah v. Ojibah (1991) 5 NWLR (pt 191) 296, 312; Nzekwu v. Nzekwu (1989) 2 NWLR (pt 104) 373.
In Onubruchere and Anor v Esegine (1986) 1 NSCC 343 at 350, Oputa JSC (as he then was) interpreted section 96 (2) (c) [now section 97 (2) (c)] of the Evidence Act. One of the documents in that case was a public document. It was neither the original nor a certified copy. According to the distinguished jurist:
The court below did not admit Exhibit E as an original document….Even if [the said document] were admissible under section 96 (2) (c) [now section 97 (2) (c)] it should be a certified copy of the ‘original in court record book’ …Failing to produce the primary evidence, a party relying on [the documents] will at least tender admissible secondary evidence of [these documents]. Such secondary evidence will necessarily be certified, true copies- [These exhibits] do not purport to be certified true copies. They were, therefore, wrongly admitted
[italics page 350]
Why, then, it may be asked, should a photocopy of a certified true copy of a public document be re-certified? The answer is that:
…in this age of sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the con of section 97 (2) (a) could be tutored and therefore not authentic. Photo tricks could be applied in the process of copying the original document with the result that the copy, which is secondary evidence, does not completely and totally reflect the original and therefore not a carbon copy of the original. The court has not the eyes of an eagle to detect such trick.
[see, per Tobi JSC in Araka v Egbue (2003) 33 WRN 1, 15-17].
We are, entirely, in agreement with these elucidations on the question of the inadmissibility of photocopies of certified copies of public documents. We adopt them as our reasoning in this appeal in answer to the submissions of the counsel for the respondents. The net effect is that the said exhibits, mere photocopies of public documents, were inadmissible pieces of papers that should not have found their way into the records of the tribunal. In a word, although we resolve the issue of frontloading in favour of these documents, we regret to say that, being photocopies of certified copies of public documents, they were wrongly admitted in evidence.
This is where, with utmost respect, we find that the contentions of the learned senior counsel for the respondents are as weak kneed as they are unsupportable. We, therefore, hold that, though the submissions on frontloading cannot avail the appellants, the tribunal was wrong in admitting the said exhibits, photocopies of certified copies of public documents. The above-mentioned exhibits are, hereby, expunged from the proceedings culminating in the judgment of the tribunal. We owe it as a duty to discountenance such inadmissible pieces of evidence and to determine this appeal only on the legally admissible evidence, Pharmatek Industrial projects Ltd v Trade Bank (Nig) Plc and ors (2009) All FWLR (pt 495) 1678, 1120; (2009) 13 NWLR (Pt 1159) 577, 635; Shittu v Fashowe (2005) All FWLR (Pt 278) 1017; IBWA Ltd v Imano (Nig) Ltd (2001) FWLR (Pt 44) 421, 439; Yaya v Mogaga (1947) 12 WACA 132, 133; Ogolo v IMB (Nig) Ltd (1995) 9 NWLR (pt 419) 314,325; Akpan v state (1994) 9 NWLR (Pt 368) 347; Ayanwale v Atanda (1988) 1 NWLR (pt 68) 22.
That brings us to the second limb which is issue 7 – That issue was expressed thus:
WHETHER EXHIBITS R2, R2A, R2B, R2C, R2D, R2E, R2F, R2G, R2H, R2J, R2K, R2L, R2M, R2N, R2Q and R2R TENDERED BY THE 1ST RESPONDENT’S WITNESSES AND ADMITTED BY THE TRIBUNAL WERE ADMISSIBLE WHEN THEY ARE MERE PHOTOCOPIES OF THE TEMPORARY VOTERS CARDS WHICH CARDS ARE PUBLIC DOCUMENTS AND PROPERTY OF THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) WHICH IS A PUBLIC BODY
Learned counsel for the appellants observed that during the trial of the petition, all the witnesses that testified for the first respondent tendered photocopies of their temporary voters’ cards and stated that the originals were with INEC. He explained that those documents were the exhibits referred to in this particular issue for determination. He, further, pointed out that objections were taken in respect of most of them but the tribunal overruled the petitioners’ counsel. He submitted that even if they were not objected to; they were still inadmissible as they were not admissible in any event. He referred to one of the objections recorded at page 1951 of Vol.4 of the Records when exhibit R2H was to be tendered by RW13. He noted that the same type of objection was taken in respect of RW7 and RW8. He drew attention to page 1951, where RW13 stated that he returned the original temporary voters’ card to INEC in order to get a permanent one. He noted that, that was, basically, the reason all the first respondent’s witnesses gave for tendering photocopies of their temporary voters’ cards.
Counsel submitted that the temporary voters’ card is a public document. He observed that on the face of it, there is an inscription that it is an INEC property and INEC is a public body. In his view, the evidence of the witnesses to the effect that they had returned the original to INEC gave fillip to his contention that the document is a public document. It, equally, goes to show that INEC, which is a public body’ is in possession and custody of the original document.
He maintained that being public documents, the only admissible secondary pieces of evidence of their content are their certified true copies, citing section 109 (a) (ii). He argued that voters’ cards, especially in this case, temporary voters cards, are documents forming the act or records of an official body (INEC) and, therefore, are public documents, citing section 109 (b) [public records kept in Nigeria of private document]. Counsel drew attention to page 1687 of the Records [Vol.4] where P.W8 (the petitioners’ witness) tried to tender photocopies of voters’ cards. This attempt was greeted with firm and strident opposition from counsel for the respondents who took the view that they were public documents. Hence, mere photocopies were not admissible and that notice to produce was not issued on INEC by the petitioners since the original are with INEC.
He referred to page 1688 of the said records [Vol.4] for Akpofure, SAN’s objection: an objection that aligned his views with the submission of Turaki, SAN, for the first respondent. At pages 1688 – 1689 of Vol. 4 of the Records, Ken Mozia, Esq. for the 3rd set of respondents (INEC), also, aligned himself with the above submissions, citing section 33 of the Electoral Act and section 109 (b) of the Evidence Act.
Ichekor submitted that the tribunal was in grave error when it admitted the photocopies of the first respondent’s voters’ cards when they were not certified true copies, citing Egbue v Araka (1988) 3 NWLR (pt 84) 598; Okonji v Niokanma (1998) 14 NWLR (Pt.638) 250. He urged this Court to reject and discountenance the said exhibits as inadmissible and set aside every part of the judgment where the tribunal relied on them to find for the respondents. In his view, when this is done, it would become evident that none of the first respondent’s witnesses succeeded in showing any evidence of voting in the election, the subject matter of this petition.
Expectedly, counsel, for the respondents, attempted to debunk the above submissions. They contended, see [paragraph 3.64, page 41, of the first respondent’s brief; paragraphs 8. 01 et seq, page 93 etc of the brief of argument of 2nd and 2975th respondents; paragraphs 9.01 et seq, pages 28 etc of the brief of argument of the 3rd- 2974th respondents] that the said exhibits were certified true copies of public documents in accordance with section 111 of the Evidence Act, Daggash v Bulama (2007) 14 NWLR (pt 892) 144, 200-201; Yero v UBA (2000) 5 NWLR (pt 657) 410,478; Aregbesola v Oyinlola (2009) A11 FWLR (pr 472) 1147, 1181. It was, also, submitted that the documents were pleaded.
RESOLUTION OF THE ISSUE
Against the background of all we have said in the resolution of the first limb of this issue in relation to the admissibility of secondary evidence of public documents, this limb need not delay us any further. We only need to re-iterate that under section 97 (2) (c) of the Evidence Act, the only secondary evidence admissible in respect of a public document is “a certified copy of the document, but no other kind of secondary evidence,” Kwara State Water Corp v AIC (NIG) Ltd (2009) 47 WRN 90, 118-119; Onubruchere and Anor v Esegine (supra) at 350; Minister of Lands, western Nigeria v Azikiwe (supra) at 57 ; Araka v Egbue (2003) 33 WRN 1. In all, Ichekor was, therefore, right in his contention that the said Exhibits R2, R2A, R2B, R2C, R2D, R2E, R2F, R2G, R2H, R2J, R2K, R2L, R2M, R2N, R2P, R2Q and R2R [photocopies of public documents] tendered by the first respondent’s witness and admitted by the tribunal were inadmissible in evidence. We, hereby, enter an order expunging them from the records.
ISSUE 8
WHETHER THE TRIBUNAL WAS RIGHT TO HAVE REJECTED THE BUNDLE OF ORIGINAL TEMPORATY VOTERS CARDS BELONGING TO DISENFRANCHISED VOTERS WHICH VOTERS CARDS WERE SOUGHT TO BE TENDERED BY PETITIONER’S WITHNESS P.W65 WHEN SAME WAS REFERRED TO IN THE WITNESS’S STATEMENT ON OATH; LISTED AS PART OF THE DOCUMENTS TO BE RELIED UPON BY THE PETITIONERS AND SAME ARE RELEVANT TO THE CASE OF THE PETITIONERS.
On behalf of the appellants, it was submitted that the tribunal was in grave error in rejecting the bundle of original voters’ cards of members of the second petitioner’s party who were disenfranchised at the alleged governorship election in Delta State. Counsel noted that the documents were, copiously, pleaded in paragraph 42 (xxxvi) of the Petition, citing page 90 of items 36 in the list of documents to be relied upon by the petitioners. He, further, observed that the witness, specifically, referred to this document in paragraph 15 of his statement on Oath. What is more, the documents were relevant to the case in order to prove disenfranchisement and non-voting. Counsel submitted that there is nothing that renders these pieces of evidence or documents inadmissible as there was no condition precedent to tendering them that were not met. He noted that relevancy is the sole of admissibility, Torti v Ukpabi (1984) I SCNLR 214. He maintained that in Agagu v Mimiko (supra), a bundle of voter’s cards was received in evidence to show that there was no INEC endorsement on them showing voting. This was done even though the owners were not called as witnesses.
Counsel, further, submitted that the petitioners did not need to frontload the cards as paragraph 1 (1) (c) of the Election Tribunal and Court Practice Directions 2007 stipulates that either copies of document or list of documents to be relied upon at the hearing could be frontloaded. These documents were listed by the petitioners. This was not in contention at all in the tribunal. He canvassed the view that no law prohibits documents from being tendered as a bundle. He, therefore, submitted that the rejection of these documents affected the case of the petitioners. In his assessment, the ruling of the tribunal [pages 1871 and 1872 of Vo1.4 of the Records] only begged the question without giving any, cogent reason for the rejection of those documents.
Ichekor turned to the ruling of the tribunal. He noted the reasoning of the tribunal to the effect that the voters’ cards were in sealed envelopes and that proper foundation was not laid relating to the whereabouts of the owners, their identities and their number quality. He derided these as irrelevancies. He adduced reasons. He observed that, in the first instance, the envelopes that contained the documents were not sealed. The argument about their admissibility was on the basis that it was a bundle of unmarked voters’ cards that was sought to be tendered. No party was misled as to the content of the envelopes. The tribunal, on its own, decided to hide under the non existent subterfuge to reject the documents. On the issue of proper foundation as to non disclosure of the whereabouts of the owner, their identities etc, counsel submitted that these are not important in an issue of admissibility. What is important is whether the document sought to be tendered is relevant. He submitted that the unmarked voters’ registers are very vital and relevant to the case of the petitioner. He urged this Court to admit and act on them to find that the owners were disenfranchised on the Election Day.
RESOLUTION OF THE ISSUE
What prompted this issue was the unfavourable disposition of the tribunal to bundles of sealed envelopes. When counsel for the petitioners attempted to put the said bundle in evidence, objection was promptly taken. In its ruling, the tribunal noted [page 1872] that:
What is brought before it (sic) are bundles of sealed envelopes which contents are not known but alleged by the petitioners to be voters’ cards of disenfranchised voters. We have also referred to paragraphs 6 and 15 of PW 65’s written deposition and found in paragraph 15 thereof that the witness PW65 deposed that he shall rely on all relevant documents, 11 newspapers…unmarked voters’ slips from any registered voters…Is this averment enough to cover and clothe the witness with the necessary foundation to tender the sealed envelopes? What said (sic) there is that unmarked voters’ cards of voters in the State but what he now seeks to tender are sets of sealed envelopes and not voters’ cards. Again even if the sealed envelopes are voters’ cards no foundation is laid as to their source, the where about of the owners, their identities, their number and quality.
In the result, we tried and hold that no proper foundation is laid for the tendering and admissibility of the documents is made by the witness. The application to admit into evidence is refused and ordered that they are marked tendered but marked rejected…
The tribunal may not be, justifiably, pilloried in its approach. In effect, what counsel wanted to do was to dump the said sealed envelopes on the tribunal through the PW65 without any explanation. Case law is now, fairly, settled on the point that a party relying on a document as part of its case must specifically relate each of such documents to that part of its case in respect of which the document is being tendered. The rationale for this judicial attitude is that the court cannot be saddled with the duty of relating each of the documents or bundles of documents tendered in evidence to specific aspects of the case for a party. This is because it is the duty of the party to do so for itself. Indeed, the courts have even taken the view that it would be an infraction of the right to fair hearing if the tribunal, in the quiet ambience of its chambers, engages itself to fish out or guess which document relates to a particular aspect of the case of a party. Such a duty ought to be carried out in open court by the party, Terab v Lawan (1992) 3 NWLR (pt 230) 569, 590; (1992) 2 LRECN 563; ANPP v Usman (2008) 2 LRECN 155, 200. We find no merit in this complaint.
As noted earlier, issues 5 and 6 have been, extensively, dealt with in the course of the resolution of the interlocutory appeal. As such, it would serve no useful purpose dealing with them again here. In consequence, we adopt our views in the interlocutory appeal in respect as our views on the said issues. In effect, the only outstanding issues are issues one and two. However, as already indicated above, the final resolution of the first issue will obviate the need for a consideration of issue 2. We, now, turn to the first, and last, issue, namely, issue one.
ISSUE ONE
Whether the Tribunal was not in error in holding that the burden of proving that the Delta State Gubernatorial Elections did not hold rested on the Appellants and that the Appellants failed to discharge the burden placed on them by law in respect of proof of the non-conduct of the election.
APPELLANTS’ CONTENTIONS
In the main, the appellants’ plank of argument rests on the principal proposition that the third respondent did not conduct any election known to law, as they claimed, on April 14, 2007. Counsel advanced effervescent arguments in substantiation of this claim. For ease of presentation, we shall set out the arguments in respect of these contentions in the order in which they were canvassed, first, the arguments on the burden on the pleadings.
BURDEN ON THE PLEADINGS
It was contended that having regard to the nature of the averments in the pleadings of the appellants [as petitioners at the tribunal]: averments in which the appellants made negative assertions that there were no elections on the said April 14, 2007, the tribunal was wrong in its decision that the appellants had the burden to prove that elections did not hold. References were made to the pleadings which were settled and exchanged at the tribunal: paragraphs 4; 5; 7; 8; 15; 17; 18; 19; 28; 32 and 33 of the Petition; paragraphs 3; 7; 9; 12; 15; 21; 22; 25; 26; 27; 28 and 29 of the first respondent’s Reply to the Petition: a Reply which was identical in form and substance to the Replies of the other Respondents. The crux of the averments in the said Reply was that the governorship election was duly conducted in all the Local Governments Areas of Delta State except in the Local Government Areas in respect of which elections were inconclusive on April 14, 2007.
Learned counsel drew attention to pages 2674; 2675; 2677; 2682 etc of the record for the way in which the tribunal resolved the issue of burden of proof against the appellants. For instance, on page 2674, the tribunal observed thus: “we shall now deal with issue 3 that is whether or not election to the office of Governor of Delta State did not hold on the 14th of April, 2007”. According to the tribunal [page 2677]:
Reading through the pleadings, it is clear as day that issues in this petition have been joined largely, if not solely, on the fact whether elections in Delta State were held in the various polling units that make up the Delta Constituency on the 14th April, 2007, Gubernatorial Elections.
It took the view that the appellants had the onerous burden of proving their negative assertion that the said election did not hold. Counsel faulted this conclusion of the tribunal. In his view, since the appellants made negative assertions that election did not hold and the respondents positively asserted that elections held, they had a burden of proving their positive assertion. He contended that it was only where the statutory records under section 74 of the Electoral Act, 2006, of the step by step conduct of the election were front-loaded with the Replies of the respondents that the burden to prove that no election was conducted would fall squarely and unremittingly on the appellants.
In particular, since the import of the appellants’ negative assertion is that there was no election, the respondents had an onerous burden in their pleadings: they were under obligation to plead the primary evidence of an election at the polling unit, namely, Form EC8A, in rebuttal of the said negative pleading. What is more: they were required to list such other vital forms like Form EC25 and EC40C. Reliance was placed on several cases, namely, Amgbare v Silva (2009) 7 NWLR (Pt.1121) 1, 72; Buhari v Obasanio (2005) 2 NWLR (pt 910) 241, 597; Agagu v Mimiko (2009) 7 NWLR (Pt 1140) 342; Onyenge and Ors v Ebere 18 NSCQR (pt 11) 789, 802; Vulcan Gases Ltd v G.FI (2001) 9 NWLR (pt 719) 610,667; Nnachi v Ibom and ors (2004) 16 NWLR (pt 900) 614, 637; Ukpo v Imoke (2009) 1 NWLR (pt 1121) 90, 149.
THE TRIBUNAL’S WRONG RELIANCE ON INAPPLICABLE AUTHORITIES
Next, learned counsel canvassed the view that the tribunal wrongly relied on the cases of Ayogu v Nnamani (2006) 8 NWLR (pt 981) 160; and Chime v Ezea (2009) 2 NWLR (pt 1125) 263. He argued that in these two cases, the binary tension between the negative and positive assertions as to who bears the burden of proving non-conduct of elections did not arise at all for consideration. What is more: the question of the absence of Forms EC8As; EC25 and EC40C was not an issue in these two cases. The tribunal, in his view, was, therefore, wrong to have espoused the inapplicable principles of law enunciated in the said cases as against the cases of Amgbare v Sylva (supra); Agagu v Mimiko (supra); Ukpo v Imoke (supra); Remi v Sunday (supra): cases in which the said binary tension was comprehensively addressed by the parties and unanimously resolved in favour of the view which the present appellants are now canvassing. The tribunal, therefore, erred in not following the latter line of decisions: decisions which held that a person who pleads the positive assertion that an election was conducted in answer to a negative pleading that no election was conducted bears the burden of proving his positive averments.
DUE ELECTORAL PROCESS DEFICIT
In furtherance of his contention that no election was held in Delta on the, said April 14, 2007, learned counsel drew attention to the absence of other formal requirements of due electoral process in the said exercise of April 14, 2007. In the first place, in proof of the absence of accreditation, counsel drew attention to the evidence of the twenty one witnesses which the first respondent called. Their testimonies were to the effect that their voters’ cards were, allegedly, stamped and signed by INEC Presiding Officers. This, in counsel’s view, was a clear affront to the due process of accreditation consecrated in Step 5 under Voting Procedure [paragraph 3.1 of the INEC Manual for Election Officials. The procedure which the witnesses described was alien to the conduct of elections under the said Manual.
He re-iterated the formal requirement, which is an integral and vital part of the process of accreditation of voters. He, further, referred to the mandatory accreditation procedure laid down in section 50 (1) and (2) of the Electoral Act and Chapter 3, page 17 of the said Manual. Counsel submitted that in the face of the conflicting claims of the appellants’ witnesses to the effect that there were no electoral materials which pointed to the absence of accreditation and the claims of the first respondent’s witnesses that they were accredited, the third respondent, who had the exclusive custody and control of the Voters’ Register, had a duty to plead and tender the said Voters’ Register so that the tribunal could utilise it as a hanger upon which the veracity of the oral testimonies of the witnesses could be tested, Kimdey v Military Governor of Gongola State (1988) 2 NWLR (Pt.77) 445.
That is not all. Counsel observed that the first respondent listed only two documents, namely, temporary voters’ card and letter of appointment of PDP agents. On its part, the third respondent listed three documents, namely, Form EC8C series for twenty two local governments in Delta State; Form EC8D and Form EC8E. However, these documents were not tendered. The second set of respondents, led by the PDP, listed two letters of petitions addressed to the President of Nigeria. They, equally, pleaded that they would be relying on the two documents of the first respondent.
According to him, the respondents’ failure to tender Form EC8A for eleven local government areas could only mean that no elections were held in any of those areas. Thus, results which INEC returned in those areas must be annulled, citing Agagu v Mimiko (2009) 7 NWLR (pt 1140) 342, 408. He, accordingly, urged the Court to nullify the results/election of the eleven local governments in respect of which no form EC8A was tendered. He reasoned that since there are twenty five local governments, and the result/election in three local governments had been cancelled, the total number of affected local governments would be fourteen. In effect, the remaining eleven local government areas would be insufficient to sustain the return of the first respondent as envisaged by section 179 (2) of the 1999 Constitution. Above all, he, equally, pointed out that the respondents’ failure to tender Form EC8E/certificate of return means that the election was not conducted conclusively or at all, Ukpo v Imoke (supra) 150-151.
APPELLANTS’ EVIDENCE OF NON-CONDUCT OF ELECTIONS
It was equally argued that the proof of the negative assertion that there was no election did not impose any burden on the appellants to produce any supporting documents and only the positive pleader, the respondents, required supporting documents, Amgbare v Sylva (supra) at72. The appellants, ex abundant cautela, led evidence in proof of the fact that there was no election and that electoral materials were not distributed in Delta State. Attention was drawn to the testimonies of PW65 and PW 66 which covered the twenty two local government areas of the State as sufficient proof that there was no election, citing Amgbare v Sylva (supra) at 59-60 where this Court accepted the material evidence of PW 8 as sufficient proof although only eight witnesses were called.
Reference was, also, made to exhibit P33 which PW66 tendered. The exhibit, a bundle of letters protesting the non-holding of elections in the entire State, contains a covering letter to the Chairman of the third respondent among others. Although INEC acknowledged its receipt, it did not respond to the weighty allegations. Its silence, therefore, meant admission of those allegations, Zenon Pet and Gas v Idrisiyya Ltd (2006) 8 NWLR (pt 982) 221, 251.
Exhibits P32 and 15 etc were, equally, cited and this Court was urged to accord them weight in accordance with the standard of proof stated in paragraph 4 (6) (d) of the Election Tribunal and Court Practice Directions 2007 which allows for the proof of certain facts by newspaper publications, Amgbare v Sylva (supra) at 74. It was, therefore, submitted that the witnesses which the petitioners called and the exhibits which they tendered cover the entire twenty two local Government Areas of Delta State and have established that elections were not held in Delta State on April 14, 2007.
Learned counsel contrasted this scenario with the evidence which the first respondent adduced. He explained that the first respondent called twenty one witnesses from seven local Government Areas. In effect, out of a total number of 1,088 (One Thousand and eighty eight) units in those seven local Governments Areas, the respondents led evidence in only twenty two units. He invited the court to hold that this would be insufficient proof of the conduct of elections in the entire seven local Government Areas. To hold otherwise would be inconsistent with the rationale of the settled position that the burden of proof of the conduct of elections is on the respondents who allege that election, actually, took place, Remmy v Sunday (1999) 8 NWLR (Pt 613) 92; Amgbare v Sylva (2009) 1 NWLR (pt 1121) 1; Agagu v Mimiko (2009) 7 NWLR (pt 1140) 343,432: cases which enjoy the endorsement of the Supreme Court, Vulcan Gases Ltd v G.F. Ind (2001) 9 NWLR (pt 719) 610, 667; Onubruchere v Esegine (1986) 1 NWLR (Pt 19) 799, 806; Lewis v Akimien (1976) 1 All NLR (pt 1) 460, 469.
He gave other reasons why the testimonies of the first respondent’s witnesses should not be believed, pages 44- 45 of the Brief of Argument. He also drew attention to the responses elicited from PW8 under cross examination: that witness had stated under cross examination that it was Form EC8A (1) that he handed over to his party ward coordinator. PW8; 9 and 10, also, made the same affirmation in respect of Form EC8A (1). Counsel referred to page 30 of the Manual for Election Officials 2007, paragraph 4. 3 (a) which shows that while Form EC8A should be used for Governorship elections, Form ECSA (1) should be used for Assembly elections.
It was contended that the negative assertion that there was no election and that electoral materials were not distributed was a frontal impeachment of the authenticity of exhibits R 3 (i)- (xi); R4 (i)- (viii); R5 (i) -(ix); R6 (i) -(vii); R7 (i)- (ix); R 8 (i)-(x); R10 (i) -(v); R11 (i)- (xii); R12 (i)- (ix) and R13 (i)- (iv): exhibits which purport to be Forms EC8As used in eleven units. He submitted that when the authenticity of a document is in question, the burden of proving its validity rests on the party propounding its authenticity, Ita v Dadzie (2000) 4 NWLR (pt 652) 168.
PRESUMPTION OF THE CORRECTNESS OF ELECTION RESULTS
Counsel canvassed the view, citing INEC v Ray (2004) 14 NWLR (pt 892) 92, 135, that as much as there is a presumption of authenticity of INEC results until the contrary is proved, there is also the evidential burden of adducing evidence of facts upon which to found the presumption. In effect, that presumption is not cast in iron for it is rebuttable. In other words, the presumption of genuineness of election results does not operate independently of some facts which will support it, Amgbare v Sylva (supra) 61-62.In the instant case, the inconsistencies; discrepancies; questions and duplications of forms manifest on all the above-cited exhibits for the eleven local Government Areas negate any presumption of correctness or genuineness. On the other hand, they demand explanations from the purported makers of the documents.
Worse still, there is neither Form EC25; Form EC 40C nor the voters’ Register before this Court. Yet these are the pieces of evidence upon which to found the presumption of authenticity of the result. The selective production of just one form in isolation of the supporting facts is insufficient to raise the presumption. Above all, the presumption would only arise if the result was tendered by INEC. In this case, INEC did not plead it; did not frontload it and, of course, did not tender it, INEC v Ray (supra) 92, 123; 130; 135. He maintained that this was a proper case where the Presiding Officers should have been called. Unfortunately, they were not called because they would have been confronted with the inconsistencies; discrepancies; questions and duplications of forms manifest in the above exhibits, citing Agbi v Ogbe 26 NSQR (Pt 2) 1257.
Counsel submitted that the basis of the correctness of the Form EC8As tendered by the first respondent is non-existent. Hence, the document should have been subjected to the general test of veracity of documents and the weight to be attached thereto, Flash Fixed odds Ltd v Akatuga (2001) 9 NWLR (Pt 717) 46,63. He prayed in aid the authority of Yayaha v Aminu (2004) 7 NWLR (pt 871) 159; Nweke v Ebeogu (1999) 6 NWLR (pt 606) 247. Counsel submitted that the tribunal was in error in placing the onus of proof of the non-conduct of the election on the appellants. The onus was that of the respondents who propounded the holding of election.
RESPONDENTS’ CONTENTIONS
Expectedly, the respondents were not persuaded by the ratiocinations of the counsel for the appellants. They took their turns in their concerted efforts to debunk the main thrust of the submissions of the appellants’ counsel.
FIRST RESPONDENT
The learned Senior Advocate of Nigeria for the first respondent advanced reasons why the appellants’ postulations must not be accepted: first, the arguments on the burden of proof on the appellants.
BURDEN OF PROOF ON THE APPELLANTS
In the first place, he canvassed the view that once the first respondent had been declared the winner of the election, the said declaration enjoyed a presumption of regularity, citing Nwobodo v Onoh (supra); Buhari v Obasanjo (2005) 13 NWLR (pt 941) 1,255. Following from this contention, he submitted that the burden of proof is on the person who asserts. In consequence, where the Petitioner fails either to plead or call evidence in support of the ground for the petition or where he calls insufficient evidence, the Petition was liable to be dismissed, Abba v Jumare (1999) 5 NWLR (pt 602) 270, 278; Rimi v INEC (2005) 6 NWLR (pt 920) 5 6, 84; Chime v Onyia (2009) 2 NWLR (Pt 1124) 1, 70; Mark v Abubakar (2009) 2 NWLR (pt 1124) 79, 188 and 400; Chidubem v Ekanna (2009) All FWLR (pt 455) 1692, 1720. He equally placed reliance on section 137 of the Evidence Act and Chuwuka v Nduka (2009) All FWLR (pt 487) 56.
PROOF OF ALLEGATION OF NON-VOTING
Next, learned senior counsel proceeded on the premise that what was in issue was an allegation of non-voting. Even the tribunal thought as much. It had found that the petitioners fell short of the standard of proof required: “to prove their allegation of non-voting as stated in the case of Ayogu v Nnamani,” [page 2678 of vol. 5 of the records]. Bouyed by this finding, counsel canvassed the view that in order to prove their allegation that there was no voting in the polling units that make up the twenty five Local Government Areas of Delta State, the appellants had two hurdles to scale, namely, they had to tender the voters’ registers for the said polling units and, in addition, had to call, at least a registered voter from each of the said polling units. Such a voter would produce his voter’s card and point to his name on the voters’ register to show that he did not vote. Chime v Ezea (2009) 2 NWLR (pt 1125) 263 was cited as authority for this proposition.
On the first question, that is, failure to tender the voters’ register, it was contended that the appellants had the burden of tendering the voters’ registers for the polling units in order to establish their allegation that voters did not vote in the election. Counsel submitted that it was only from the said register that the tribunal would have ascertained whether, truly, the names of the petitioners’ witnesses, who tendered their voters’ cards, were ticked or not, Chukwuka v Nduka (supra); Chime v Ezea (supra); Awuse v Odili (supra).
The second hurdle presented above has to do with the appellants’ alleged failure to call registered voters from the polling units. Learned senior counsel construed the averments in paragraph 16 [page 62, vol 1 of the records] and paragraph 17 of the said Petition to the effect that the said elections did not hold and that election materials were not distributed as tantamount to allegations of non-voting. On the strength of this construction, he prayed in aid the authority of the cases dealing with the conditions to be fulfilled by a petitioner who alleges non-voting in the polling stations, Ayogu v Nnamani (2006) (sic) NWLR (pt 981) 160, 187; Nnaji v Agbo (2006) 2 EPR 890, 907; (2006) All FWLR (pt 305) 736,757; Chime v Onyia (2009) 2 NWLR (Pt.1124) 1, 44; (2009) All FWLR (pt 480) 673, 702-703.
2ND AND 2975TH RESPONDENTS’ CONTENTION
Like the learned senior counsel for the first respondent, the learned Senior Advocate of Nigeria for the 2nd and 2975th respondents, also, construed the averments in the Petition as allegations of non-voting. His arguments were patterned after the submissions of the counsel for the first respondent. He placed reliance on the same set of decided cases, see, paragraph 5.03 -5-14 for his submissions on the burden of proof on the appellants, pages 9-12 of the Brief of argument; paragraphs 5.15- 5.48 on the submissions relating to proof of allegations of non-voting: failure to tender voters’ register, [paragraph 5.17- 5.34, pages 12-16] and failure to call registered voters, paragraphs 5.35- 5.46, [pages 16- 20 of the Brief].
3RD – 2974TH RESPONDENTS CONTENTION
Learned counsel for the 3rd – 2974th respondents followed on the footsteps of the counsel for the other sets of respondents. His submissions on the burden of proof, paragraphs 4.01-4.08, pages 7-9 of the Brief; proof of allegation of non-voting; failure to tender voters’ register, paragraphs 5.02-5.19, pages 10-14 and failure to call registered voters from the polling units, paragraphs 6.00-6.14, pages 14-18 of the Brief are, essentially, a facsimile restatement of the submissions of the counsel for the other sets of respondents.
RESOLUTION OF ISSUE ONE
As noted at the outset, the appellants made the case that the third respondent did not conduct any election known to law on April 14, 2007. The law, as we understand it, is that the word “election” is a generic term; a process which embraces the entire gamut of activities ranging from accreditation, voting, collation to recording on all relevant INEC Forms and declaration of results, INEC v Ray (2004) 14 NWLR (pt 892) 92, 123; Agoda v Enamuotor (1999) I LRECN 205,219; Alaki v Shaaho (1999) 2 LRECN 287; Igodo v Owulo (1999) 4 LRECN 22; Aondoakaa v Ajo (1999) 3 LRECN 380,402. Voting is, thus, only a species of the genus, which is election, Aondoakaa v Ajo (1999) 3 LRECN 380,402. Casting of votes alone, therefore, does not constitute election, Aondoakaa v Ajo (1999) 3 LRECN 380, 402; Agbaso v Ohakim (2003) 1 LRECN 317, 371.
Against this background, it is evident that there is a world of difference between an allegation that “no elections known to law were conducted”, on the one hand, and an averment that “there was no voting in the polling booths”, on the other hand. As would be made clear shortly, different consequences attend to these averments. As shown earlier, the appellants [as petitioners] averred in several paragraphs of their petition that “the…election…did not hold almost every where in the twenty-five Local Government Areas…but votes were arbitrarily assigned and allocated and results were made up and declared…” In contrast to these negative averments, the respondents maintained that “the Governorship election was duly conducted in all the Local Government Areas of Delta State…” These were clearly positive averments.
The appellants’ contention comes to this: having regard to the nature of averments in their Petition: negative averments which disclaimed the conduct of any election known to law: the respondents who made that positive averment that elections were duly conducted had the burden of proving that the said elections were conducted as known to law. On their part, the respondents insist that tire appellants bear the burden of proving that there was no election. In doing so, however, they most, disingenuously, attempted to circumscribe the compass or universe of the appellants’ complaint. The difference is this: the allegation of the appellants centred on the non-conduct of elections, that is, the non-observance of the sequence of activities commencing with accreditation; voting; collation, culminating in the recording of the results on all relevant INEC Forms and declaration of results, INEC v Ray (supra); Idris v ANPP (200g) 4 LRECN 554, 693; Ojukwu v Obasanjo (2004) 1 LRECN 528. The respondents canalised this issue within the narrow prism or restricted question of non-voting. We shall return to the differences in the nuances of the concepts anon. For now, it is imperative to elucidate on the concept of negative and positive averments and their implications on the concept of burden of proof on the pleadings.
BURDEN OF PROOF ON THE PLEADINGS
Only recently, this Court had the opportunity of elucidating on the concept of burden of proof on the pleadings. That was in Olateru v Sanni [Appeal No. CA/IL/87/06, unreported judgment delivered on June 2, 2010] where the court made these insightful clarifications:
As is well known, in civil cases, there is the general burden of proof on the plaintiff to prove his claim or relief before a court by virtue of section 137 (1) of the Evidence Act, Frempong II v Brempong II (1952) 14 WACA,L3; Olowu v Olowu (1985) 3 NWLR (pt 13) 372; Fashanu v Adekoya (1984) 6 SC 83; Commissioner of Police v Oguntayo (1993) 6 NWLR (pt 299); Kokoro-Owo v Ogunbabi (1993) 6 NWLR (pt 313) 627.
What is, perhaps, not well-known is that there is yet another kind of burden which is dictated by the nature of the pleadings. This is known as the burden of proof on the pleadings. Unlike the general burden referred to earlier, the burden of proof on the pleadings rests on any party [whether the plaintiff or the defendant] who substantially asserts the affirmative of the issue. This category of burden is fixed at the beginning of the trial by the state of the pleadings; it is settled as a question of law, remaining unchanged throughout the trial, exactly where the pleadings place it, Imana v Robinson (1974) 6 SC 83.
The concept of burden of proof on the pleadings has an ancient ancestry, Pickup v Thames Ins. Co.3 Q.B.D.594. 600; and Wakelin v L & S.W. Rv 12 App Cas. 41, 45. Its contemporary affirmation can be found in such popular cases like Joseph Constantine Steamship Line Ltd. v Imperial Smelting Corporation (1942) AC 154.174; Seldon v Davidson (1968) 1 WLR 1083. Leading authorities on the English Law of Evidence have endorsed this usage, see, for example, Phipson on Evidence, (11th Edition), paragraph 92; page 40: “Burden of proof on the pleadings.”
In Imana v Robinson (supra), Aniagolu JSC delivering the unanimous judgment of the Supreme Court, approvingly adopted the exposition in Phipson on Evidence (supra) as the Nigerian law on the subject:
‘The burden of proof, in this sense, 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 strong reasons’. 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. If when all the evidence, by whosoever introduced, is in, the party who has this burden has not discharged it, the decision must be against him.
We have no reason whatsoever for departing from this eloquent exposition of the law. In our view, that is a correct restatement of the consistent posture of the Supreme Court on this question, see, Elemo and Ors v Omolade and Ors (1968) NMLR 359, 361; Atane v Amu (1974) 10 SC 237; Fashanu v Adekoya (1974) 6 SC 83; Kate Enterprises Ltd v Daewoo Nig Ltd (1985) 2 NWLR (pt 5) 116 etc. There is no gainsaying the fact that we are bound by these illuminating decisions of the apex court. Hence, we are under obligation to ignore any other decision, including decisions of this Court, which, to employ the apt expression of the Supreme Court, fail “to distinguish [between] the two distinct and frequently confused meanings which have always been attached to the words ‘burden of proof”, see, Elemo and Ors v Omolade and Ors (supra) at 361. Unarguably, any contrary decision of any other court on these two distinct meanings of the expression “burden of proof’ could be, justifiably, classified as a decision reached per incuriam.
It is from this perspective, therefore, that we are endorsing the submissions of the counsel for the appellants. We, entirely agree with him that having regard to the above negative averments which the appellants made in their pleadings that no elections known to law were conducted on April 14, 2007, the respondents, who positively asserted that elections were duly conducted, had the burden of proof on the pleadings: to plead the constitutive activities that define an election, namely, accreditation, Ajadi v Ajibola (2004) 1 LRECN 255,355-356 etc. In this regard, they had the burden to plead Form EC25, a form which shows that result sheets were issued; Form EC40C, a form which shows that the said result sheets were distributed before the results in EC8A were recorded; Amgbare v Sylva (supra) 60-63; voters’ register, Nweke v Ejims (1999) 2 LRECN 84,99; Nwakanma v Abaribe (2010) All FWLR (pt 505) 1767, 1800; Form EC8A which is the primary evidence of votes cast in the election; the foundation or base on which the pyramid of the election process is built; Nwobodo v Onoh (supra); Awuse v Odili (2005) 16 NWLR (Pt 952) 416, 488; Sa Biya v Tukur (1983) 11 SC 109; EC40C, Agagu v Mimiko (2009) 7 NWLR (pt 1140) 342, 408; Nwole v Iwuagwu (2005) 16 NWLR (Pt 952) 543, 569; Ukpo v Imoke (2009) 1 NWLR (pt 1121) 90, 149; Ajadi v Ajibola (2004) l6 NWLR (pt 898) 91, 183.
From an intimate reading of the Electoral Act, we entertain no doubts that Forms EC25 and EC40C were, deliberately, provided for in order to ensure the transparency of the accreditation process. Whilst Form EC25 is the electoral materials receipt form which makes detailed provisions for the serial number of items, the items and quantity of items received by the presiding officer; Form EC40C is the ballot paper account and verification statement. It records how the materials received by the presiding officer were expended for the conduct of the election. The forms were thus designed to vouchsafe a system that is not only transparent but also fraud proof.
Due to the defective or insufficient pleadings of the respondents: insufficient because the positive pleaders [that is, the parties that made positive averments in their pleadings] did not plead Forms EC25; EC40C and EC8A, the respondents, strictly speaking, did not even join issues with the appellants in their negative averments to warrant the appellants rebutting the same by introducing evidence. This is the con in which Abdullahi PCA declared in Agagu v Mimiko (2009) 7 NWLR (Pt 1140) 342 that:
It was the first respondent’s case that there was no election held. The appellant who incidentally was the first respondent to the petition responded that the election was conducted. The burden of introducing evidence otherwise known as evidential burden squarely rests on the party who substantially asserts the positive before evidence is adduced. Thereafter, the burden of proof rests on the party who will fail if no further evidence is produced. Where this is done, the burden of proof will shift on the other party to introduce evidence, which if accepted will then defeat the claim of the petitioner (italics supplied for emphasis);
See, also per Tobi JSC in Onyenge v Ebere (18 NSCQR (pt 11 l) 789,802; Ukpo v Imoke (2009) 1 NWLR (pt 1121) 90, 149; Amgbare v Sylva (supra).
Indeed, this Court had another opportunity of considering this question in the recent case of Fayemi and Anor v Oni and Ors (Appeal No. CA/IL/EPT/GOV/1/10, unreported judgment delivered on October 15, 2010). Salami PCA, [who read the leading judgment of his unanimous brethren in that case] after citing Agagu v Mimiko (supra); Amgbare v Sylva (supra); Ukpo v Imoke (supra) etc, held thus:
In the matter under consideration, it was the appellants’ case that no election was conducted in the six disputed wards while the respondents asserted that there were elections in those wards. The onus in line with the case of Agagu v Mimiko (supra) shifted onto to the respondents who asserted the positive and, therefore, submitted the contrary. I am aware, and as rightly submitted by the … respondents, that the principle of law is to place the general burden of proof on the appellants as the petitioners. However, it is also trite that the said principle is not static but that which could certainly shift depending on the circumstances as it is in the case at hand. That submission by the learned respondents’ counsel does not, therefore, hold water…
The implication of this position is that since the appellants were asserting the negative that no election was held, they had no burden to plead any document in proof of their negative averment, Amgbare v Sykva (supra) 72. Abdullahi PCA explained the rationale of this position in Agagu v Mimiko (supra) at 432-433 thus:
The petitioner who asserted that no election held cannot be required to prove the holding of the election by producing its result. It is the respondent/appellant who alleged that there was a free and fair election that is under obligation to tender the result of the election in the nature of Form EC8A in proof of their assertion that election was freely and freely conducted and result duly collated and declared. Their failure to do so means they failed to prove that elections were held and, therefore, impliedly admitted that there was no election…
Now, as shown above, the respondents attempted to circumscribe the universe of the appellants’ complaint by narrowing it down to the allegation that there was no voting. This is clearly an unwarranted abridgement of the appellants’ rights to ventilate their grievance. Above all, the two allegations are completely dissimilar in their import and nuances. Indeed, the respondents expended considerable space in their respective briefs of argument circumstantiating this issue. Unfortunately, the issue of non-voting was completely outside the circumambient compass of the appellants’ averments: averments which repeatedly harped on the non-conduct of elections on April 14, 2007.
Surely, the question of the burden of proof on the pleadings and, indeed, the evidential burden, where the allegation relates to non-voting have long been settled by a ling line of authorities, see, for example, Ayogu v Nnamani (2005) 2 LRECN 55; Awuse v Odili (2005) I LRECN 114; Nnaji v Agbo (2006) 2 EPR 867; Remy v Sunday (1999) 2 LRECN 132; Onoyom v Egari (1999) 1 LECN 625; Okoroji v Ngwu (1992) 1 LRECN 239; Chime v Ezea (2008) 2 LRECN 673; Chime v Egwuonwu (2008) 2 LRECN 575. In these, and other matters of their kind, the petitioners’ averments centre, in the main, on the allegations of non-voting. This is the distinguishing element between this line of cases and those in which the allegations centre on the non-conduct of elections.
In the above cases: cases in which non-voting was the pivot of the petitioners’ cases, the courts consistently held that, in order to succeed, such petitioners were under obligation to call voters from each of the polling booths in the affected constituency or area as witnesses. Such witnesses would tender their voters’ cards and testify that they did not vote on the day of the election. From there, it would be ascertained whether they were accredited or not, Chime v Egwuonwu (supra) 612; Ayogu v Nnamazi (supra); Nnaji v Agbo (supra) Onoyom v Egari (supra); Chime v Onyia (2009) 2 NWLR (Pt 1124) 1, 44-45. Put simply, in such petitions, the allegations only revolved around non-voting, which, as shown above, is only a species of the genus, which is election, Aondoakaa v Ajo (1999) 3 LRECN 380, 402. In this connection, it must, always, be borne in mind that casting of votes alone does not constitute election, Aondoakaa v Ajo (1999) 3 LRECN 380, 402; Agbaso v Ohakim (2008) 1 LRECN 317, 371.
However, as already noted above, that is not the crux of the appellants’ complaint here. At the risk of repetition, their complaint was that there were no elections on the said day. In effect, the respondents may, with respect, be compared to a pupil who, on entering an examination hall, and discovering to his chagrin that the questions are not favourable, decides to set his own questions and to attempt answers to them. No matter how brilliant his dissertation on those soi-disant questions may be, no examiner would return a favourable grade for him. Like an examiner confronted with the impudent antics of such a pupil, we can do no more than to discountenance the respondents’ submissions on the jurisprudence of non-voting as being completely wide off the mark!
The tribunal, woefully, misconceived the nature of the burden of proof which the respondents had on the pleadings. It took the erroneous view that “…issues in this petition have been joined largely, if not solely, on the fact whether elections in Delta State were held in the various polling units that make up the Delta State Constituency…” [page 2677 of the records]. With respect, this cannot be correct having regard to the restatement of the implication of the concept of burden of proof on the pleadings, as shown above. To join issues with the appellants’ negative averments that there were no elections, the respondents, since they positively pleaded the due conduct of the said elections [see, for example, paragraphs 3; 7; 9; 12; 15; 21; 22 25 26; 28 etc of the first respondent’s Reply], were required, inter alia to plead Forms EC25; EC40C; EC8A: documents which were in the custody of the third respondent, Angbare v Sylva (supra) 73. That was the only way in which they would have joined issues with the appellants’ negative assertions. If they had done that, that is, if they had pleaded those crucial documents, the burden of introducing evidence to prove the non-conduct of the elections would have shifted to the appellants who would fail if no evidence, or no further evidence, was led, Agagu v Mimiko (supra); Angbare v Sylva (supra) 72; Remi v Sunday (supra). As the Supreme Court explained in Elemo and Ors v Omolade and Ors (supra) at 361 “the Onus Probandi …rests before evidence is gone into upon the party asserting the affirmative of the issue and it rests after evidence is gone into upon the party against whom the tribunal at the time the question arises would give judgment if no further evidence were adduced” (italics supplied for emphasis).
Curiously, the third respondents listed, although they did not tender, Forms EC8C; EC8D and EC8E. This, in our humble view, did not lighten their burden any inch for as Abdullahi PCA observed in Agagu v Mimiko (supra) 432- 435, without Form EC8A there would be no basis for considering Forms EC8C; EC8E etc. The reason is simple: Form EC8A is the primary evidence of the votes cast in an election. It is the foundation or base on which the pyramid of an election process is built, Agagu v Mimiko (supra) 432- 435, citing Awuse v Odili (supra) Sabiya v Tukur (supra); Nwobodo v Onoh-(supra). In effect, Form EC8A constitutes the foundation for the step by step recording of votes in Forms ECSB; EC8C etc, Ukpo v Imoke (supra).
THE TRIBUNAL’S WRONG RELIANCE ON INAPPLICABLE AUTHORITIES
Learned counsel for the appellants had contended that the tribunal wrongly placed reliance on Ayogu v Nnamani (supra) and Chime v Ezea (supra) in holding that the appellants had the burden to introduce evidence. It is not, altogether, surprising that the tribunal arrived at this erroneous conclusion. This is one incident of its misconception of the concept of burden of proof on the pleadings. We hasten to note the grave error in which the tribunal had fallen. It felt it was bound by the decisions in these two cases. We regret to observe that its understanding of the concept of stare decisis is somewhat skewed, if not completely distorted! In the words of Tobi JSC in Onyia v state (2009) All FWLR (pt 450) 625, 640: “cases are decided on their facts and ratio decidendi is based on the facts of the case before the court. A ratio cannot be determined outside the facts of the case”.
Incidentally, the facts of those two cases and issues that fell for determination in them were, in no way, conterminous or co-extensive with the facts and issues in the petition before the tribunal. Hence, the question of the binding force of the ratio decidendi in the said decisions on the tribunal was, utterly, non sequitur! As Ichekor, learned counsel for the appellants, forcefully contended, and we are entirely in agreement with him, the tribunal wrongly relied on the cases of Ayogu v Nnamani (supra) and Chime v Ezea (supra). The facts and issues in these cases were, in no way, analogous to the facts and issues before it.
Counsel is right: in these cases, the issue of negative or positive assertions as determinants of the person on whom the onus of proving the non conduct of the election lies did not arise at all for consideration. We, equally, agree with him: the total absence of Forms EC8As; EC25 and EC40C was not a feature of the two cases. Contrariwise, the tribunal was in error in not following the prescriptions laid down in Amgbare v Sylva (supra); Agagu v Mimiko (supra); Ukpo v Imoke (supra) and, Remi v Sunday: decisions whose redoubtable reasoning and conclusions are deeply rooted in the ex cathedra pronouncements of the apex court on the concept of burden of proof on the pleadings in Imana v Robinson (supra); Elemo and Ors v Omolade and Ors (supra); Atane v Amu (supra); Fashunu v Adekoya (supra); Kate Enterprises Ltd v Daewoo Nig Ltd (supra). We entertain no doubts at all that Amgbare v Sylva (supra); Agagu v Mimiko (supra); Ukpo v Imoke (supra) and Remi v Sunday (supra), which favoured the view that a person who pleads the positive assertion that an election was conducted in answer to a negative pleading that no election was conducted bears the burden of proof on the pleadings, find firm anchorage on these unshakeable juridical roots.
Now, learned counsel for the first respondent not only cited the opinion of Allagoa JCA in Chukwuka v Nduka (2009) All FWLR (pt 487) 56, he, equally, forwarded an additional authority through his letter addressed to this Court through the Deputy Chief Registrar. The said additional authority is the case of Adighije v Nwaogu (2010) 12 NWLR (Pt 1209) 419. He referred, particularly, to pages 460 and 468. We regret to say that these two cases cannot, in any way, tilt the scale in favour of the submissions of the respondents.
As already noted above, in a long line of cases, this Court had affirmed that the burden of proof on the pleadings in an election petition is on the party [whether a petitioner or respondent] who alleges affirmatively that elections took place. These decisions are many: Amgbare v Sylva (supra); Agagu v Mimiko (supra); Ukpo v Imoke (supra) and Remi v Sunday (supra) and, most recently, Fayemi and Anor v Oni (supra). We prefer to err in favour of these decisions: decisions which we find to be firmly anchored on the irrefutable logic of the ratio decidendi of the Supreme Court decisions on the concept of burden of proof on the pleadings in Imana v Robinson (supra); Elemo and Ors v Omolade and Ors (supra); Atane v Amu (supra); Fashanu v Adekoya (supra); Kate Enterprises Ltd v Daewoo Nig Ltd (supra). All said and done, we shall resist the temptation of classifying the decisions in Chukwuka v Nduka (supra) and Adighije v Nwaogu (supra) as decisions reached per incuriam!
DUE ELECTORAL PROCESS DEFICIT
It is difficult to fault the contention of the counsel for the appellants that the so-called elections of April 14, 2007, were characterised by what may be termed electoral due process deficit. As already demonstrated above, there is unanimity of judicial views on the fact that accreditation is an important step in the conduct of an election that should be done by the presiding officer before a voter casts his vote. As such, a ballot without accreditation cannot be a valid ballot; without a valid paper there can be no valid vote; if there is no valid vote there can be no valid election. Any votes returned without an accreditation for a particular voting unit cannot be said to have been obtained through due electoral process, Ajadi v Ajibola (2004) 1 LRECN 255, 355-356 etc].
In this regard, the respondents had the burden to plead Forms EC25, to show that result sheets were issued; EC40C, to show that they were distributed before the results in Form EC8A were recorded; indeed, Form EC25 has been described as authentic proof of receipt and distribution of election material to the Presiding Officer], Amgbare v Sylva (supra) 60-63; voters’ register: the marking of the voters’ register proves that the accreditation took place. Where the electoral register was not so marked but votes were returned for a particular voting unit, it would be safe to conclude that such votes were not obtained through the due electoral process, Nweke v Ejims (1999) 2 LRECN 84, 99. They, equally, had the burden to plead Form ECSA: the primary evidence of votes cast in the election; the foundation or base on which the pyramid of the election process is built, Nwobodo v Onoh (supra); Awuse v Odili (2005) 16 NWLR (Pt 952) 416, 488; Sa Biya v Tukur (1983) 11 sc 109 ; EC40C, Agagu v Mimiko (2009) 7 NWLR (pt 1140) 342, 408; Nwole v Iwuagwu (2005) 16 NWLR (Pt 952) 543, 569; Ukpo v Imoke (2009) 1 NWLR (Pt 1121) 90, 149; Ajadi v Ajibola (2004) 16 NWLR (pt 898) 91, 183. In the face of these lacunae in the respondents’ pleadings, the irresistible conclusion is that the said election was afflicted by an irreversible electoral due process deficit. The deficit was so corrosive that it infested the entire process with an incurable or untreatable virus. Any vote returned in such circumstances for any particular voting unit must be, invariably, infested with that virus of undue electoral process, Ajadi v Ajibola (2004) 1 LRECN 255,355-356 etc. That is our finding in this case!
APPELLANTS’ EVIDENCE OF NON-CONDUCT OF ELECTIONS
Having regard to the chain of authorities cited above, the submission of the appellants’ counsel on this point need not detain us here. It may only suffice to reiterate the views of the eminent Justices of this court: views with which we are in agreement: that the appellants who averred that there were no elections could not be said to bear the initial burden of proof on the pleadings to prove the conduct of the said election by pleading its result, see, per Abdullahi PCA in Agagu v Mimiko (supra) 432-433.. On the contrary:
It is the respondents… who alleged that there was a free and fair election that is under obligation to tender the result of the election in the nature of Form EC8A in proof of the assertion that election that election was freely and fairly conducted and result duly collated and declared…
Per per Abdullahi PCA in Agagu v Mimiko (supra) 432-433; also, Amgbare v Sylva (supra) 72.
PRESUMPTION OF THE CORRECTNESS OF ELECTION RESULTS
As noted earlier, learned counsel for the respondents canvassed the view that once the first respondent had been declared the winner of the election, the said declaration enjoyed a presumption of regularity, citing Nwobodo v Onoh (supra); Buhari v Obasanjo (supra). On this footing, it was submitted that the burden of proof was on the person who asserted the contrary. In consequence, where the Petitioner failed either to plead or call evidence in support of the ground for the Petition or where he called insufficient evidence, the Petition was liable to be dismissed, citing Abba v Jumare (1999) 5 NWLR (pt 602) 270,278; Rimi v INEC (2005) 6 NWLR (pt 920) 56, 84; Chime v Onyia (2009) 2 NWLR (pt 1124) 1, 70; Mark v Abubakar (2009) 2 NWLR (Pt 1124) 79, 188 and 400; Chidubem v Ekanna (2009) All FWLR (pt 455) 1692, 1720.
As a general proposition, the contention that a rebuttable presumption inures in favour of the correctness and authenticity of the results declared by INEC is well-taken. The authorities on this point are many: only a handful may be cited here, Nwobodo v Onoh (supra); Omoboriowo v Ajasin (1981-1990) LRECN 332, 353; Jalingo v Nyame (1992) 2 LRECN 532; Atikpekpe v Joel (1999) 2 LRECN 302; Agoda v Enamuotor (1999) 1 LRECN 205; Onye v Kema (1999) 3 ‘LRECN 655; Mufutau v Kayode and Ors (2008) 4 LRECN 227; Adun v Osunde (2003) 1 LRECN 160; Kalu v Uzor (2005) 2 LRECN 281.
However, this general proposition is hedged around with qualifications. Hence, before a party can seek refuge under the beneficent umbrella of this presumption, he must first discharge the evidential burden which is a precondition to its invocation, that is, he has the burden of adducing evidence of the facts upon which to anchor the presumption, INEC v Ray (2004) 14 NWLR (pt 892) 92, 135. This is so for the said presumption in favour of Form EC8A is not in nubibus (in the sky). It is firmly rooted on cold, solid evidential materials. These include Forms EC25; EC40C; Voters’ register, INEC v Ray (supra). In plain terms, the presumption does not orbit outside the evidential milieu that should sustain it, Amgbare v Sylva (supra) 61-62.
Above all, the said presumption will only arise if the results were pleaded and tendered, INEC v Ray 48. Thus, it is only where the proponent of the doctrine of the presumption of regularity has pleaded such evidence that the petitioner carries the burden of interrogating the authenticity of such documents. That is the rationale for the principle that the burden is on any one questioning such a declaration to establish his query, that is, to impeach and disclaim the authenticity of such documents like Forms EC25; EC40C etc, Agoda v Enamuotor (1999) 1 LRECN 205, 221; Abibo v Tamuno (1992) 4 LRECN 378.
Unfortunately, as already shown above, the respondents, particularly, the third respondent, did not join issues with the appellants on the crucial averment that there were no elections. Since they pleaded positively that elections were duly conducted, in answer to the negative assertion that no such elections were conducted, they [the respondents] were required to plead the essential steps that define an election. This they did not do. To that extent, their pleadings were deficient. They failed to discharge the burden of proof on the pleadings: a burden that was fixed at the beginning of the trial by the state of the pleadings; a burden that was settled as a question of law; a burden that remained unchanged throughout the trial exactly where the pleadings placed it; a burden that never shifted in any circumstances whatsoever, Imana v Robinson (supra); Elemo and Ors v Omolade and Ors (supra); Atanev Amu (supra); Fashanu v Adekoya (supra); Kate Enterprises Ltd v Daewoo Nig Ltd (supra).
In the circumstance, we hold that no such presumption operated in favour of the respondents. In all, we hold that having regard to the nature of the averments in the appellants’ pleadings at the tribunal: negative averments that disclaimed the conduct of the said elections as aforesaid, the respondents [who asserted positively that due elections were held], had a burden on the pleadings to plead the constitutive sequence of events that yielded the said election. They failed to do this. We are, thus, entirely, in agreement with learned counsel for the appellants that the appellants are entitled to a favourable resolution of this first issue.
We find firm support for our position on the settled position that the respondents who positively asserted the due conduct of elections had the burden to plead the constitutive activities that define an election, namely, accreditation, Ajadi v Ajibola (2004) 1 LRECN 255,355-356 etc. In this regard, they had the burden to plead Forms 8C25, to show that result sheets were issued; EC40C, to show that they were distributed before the results in EC8A were recorded; Amgbare v Sylva (supra) 60-63; voters’ register, Nweke v Ejims (1999) 2 LRECN 84,99; EC8A, the primary evidence of votes cast in the election; the foundation or base on which the pyramid of the election process is built; Nwobodo v Onoh (supra); Awuse v Odili (2005) 16 NWLR (Pt 952) 416, 488; Sa Biya v Tukur (1983) 11 sc 109 ; EC4OC, Agagu v Mimiko (2009) 7 NWLR (Pt 1140) 342, 408; Nwole v Iwuagwu (2005) 16 NWLR (pt 952) 543, 569; Ukpo v Imoke (2009) 1 NWLR (pt 1121) 90, 149; Ajadi v Ajibota (2004) 16 NWLR (pt 898) 91, 183.
The implication of the absence of these constitutive acts that define an election is that the votes which the third respondent returned for the first respondent on April 14, 2007 were not obtained through the due electoral process, Nweke v Ejims (1999) 2 LRECN 84, 99. The consequence is that since 2007, the said first respondent has been sojourning under the roof of a veritable house of cards; worse still, a house of cards erected on the slippery quicksand of electoral jiggery pokery!
Before we conclude this judgment, we shall respond, even if cursorily, to the submission of the counsel for the respondents on the cogency of proof beyond doubt as an ubiquitous feature of the burden of proof in election petitions which allege electoral malfeasances, see, paragraphs 3.54; 3.55 and 3.56 of the first respondent’s brief, pages 36-37; paragraph 6.348 -6. 350 of the brief of argument of 2nd and 2975th respondents; paragraph 7.14 to 7.16, page 22 of the brief of 3rd -2974th respondents.
In our respectful view, these contentions glossed over the implication of the radical logic that dictated the formidable reasoning of Eso JSC in Omoboriowo v Ajasin (1981-1990 LRECN 332): a decision which endorsed the concept of severance of criminal averments in pleadings. According to this prescription: a magisterial prescription which has been endorsed by the apex Court in other decisions, see, Nwobodo v Onoh (1951-1990) LRECN 369; Torti v Ukpabt (1981-1990) LRECN 221, if in an election petition the allegations of crimes are severed from the pleadings and the extant or surviving averments can still sustain a ground for an election petition, then the court is empowered to sever the said criminal averments and deal with the petition on the basis of the surviving averments. This court admirably utilised this prescription in the recent case of Fayemi v Oni (supra).
According to Salami PCA:
If averments alleging crime are severable and if after such severance there remain in the pleadings of the petitioners sufficient averments which disclose a cause of action which is devoid of criminal imputation against any party to the proceedings then the burden of proof upon the petitioner is to establish his case on a preponderance of evidence, [citing Arab Bank Ltd v Ross (1952) Q.B. 216, 2291. Omoboriowo v Ajasin (supra)]…
Apart from the allegation of the commission of crime, the petitioners/appellants averred…that the first respondent was not duly elected by majority of lawful votes and his election was not valid for reason of noncompliance with the Electoral Act…These averments are severable and are sufficient grounds under section 145 of the Electoral Act. The excess is deemed abandoned…
True indeed, the case of the appellants on the pleadings is that no elections known to the Electoral Act, 2006…were conducted…. With the subject matter at hand being an election petition appeal, it is civil by nature and which needless to state but only obvious that the proof required is on the balance of probabilities or preponderance of evidence… [see, pages 33- 35].
Indeed, the appellants’ case in the present appeal follows this trend. We are fortified by the above decision of this Court [per Salami PCA] in our view that the allegation of the non conduct of elections: an allegation firmly anchored on the noncompliance with the provisions of the Electoral Act, can sustain the petition. It is a distinct allegation which is clearly severable from allegations dealing with the commission of offences such that require proof beyond reasonable doubt. We, therefore, hold that, contrary to the above submissions of the counsel for the respondents, the requisite burden is that of proof on the preponderance of evidence.
Finally, we turn to the usual question of the effect of substantial non compliance on the election. Our findings that the certified copies of the photocopies of the above form EC8A were inadmissible must be re-iterated here. Having expunged those exhibits and the photocopies of the temporary voters’ cards in respect of the eleven local Government Areas above, the implication is that the third respondent did not prove the conduct of elections in the said eleven local Government Areas. The tribunal had cancelled the results in three Local Government Areas where elections were inconclusive. That means that the non compliance affected fourteen out of the twenty five local Government Areas in Delta State. In plain terms, the voters in these fourteen Local Government Areas were disenfranchised because of the non compliance with the Act. This, in our view, amounted to substantial noncompliance that vitiated the entire exercise. This means that the first respondent did not satisfy the mandatory requirement of section 179 (2) of the 1999 Constitution. In a word, he did not secure the mandate of the electorate in the two thirds of the local Governments of Delta State before mounting the gubernatorial saddle as their Governor.
In the circumstance, we have no choice than to enter an order dismantling his over three and half years’ illegal occupancy of the Government House which is the very symbol of the people’s mandate: indeed, his illegal habitation of the said Government House for the said period of time is a mockery and, indeed, an affront to the indefeasible rights of the electorate in Delta State to elect their Governor through a free and fair contest.
It is unfortunate that the law would permit this sort of anomalous situation: an unfortunate situation where a man who usurped the sacred mandate of the people would be allowed to fritter away their common patrimony without their due authorisation: authorisation that should come through free and fair elections where the said electorate, in whom sovereignty resides in a democracy, are afforded the opportunity of exercising their franchise. It is arguable whether this state of affairs would be permitted to endure in other civilised jurisdictions! As we hinted at the outset of this judgment, the resolution of issue one would obviate the need to broach the second issue.
One more point: it remains to be emphasised that this appeal and appeal in Okocha v Uduaghan [Appeal No CA/B/EPT/321/2009 which this Court disposed of on February 19, 2010) have nothing in common. In Okocha’s case, what was in issue was the question of unlawful exclusion of a candidate who claimed to have been duly nominated by his party. In effect, the petitioner in that case was not allowed the indulgence of participating in the election.
In the present appeal, the petitioner, who was duly sponsored by the second appellant, contended that the third respondent did not conduct any election on the said day. From all we have said above, there is considerable merit in his complaint. In all, this appeal succeeds. We, accordingly, enter an order allowing it.
For the avoidance of doubt, we make the following orders as prayed for by the appellants:
1. The judgment of the Election Tribunal delivered on October 19, 2009 is hereby set aside;
2. The return of the first respondent by the third respondent is hereby nullified Accordingly, the certificate of return issued to the said first respondent is hereby quashed;
3. We, hereby, order the said first respondent to vacate the office of the Governor of Delta State forthwith;
4. The third respondent (INEC) shall conduct a fresh election into the office of the Governor of Delta State within ninety days from the date of this judgment;
5. In the meantime, the Speaker of the House of Assembly shall oversee the affairs of the State pending the conduct and outcome of the said fresh election;
6. The sum of Thirty Thousand Naira (N30,000.00) cost is awarded in favour of the Appellants and against the 1st and 2nd Respondents only.
OLAKAYODE ARIWOOLA, J.C.A.: I agree.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I agree.
JOHN INYANG OKORO, J.C.A.: I agree.
CHIMA CENTUS NWEZE, J.C.A.: I agree.
Appearances
N. I. Ichekor for the 1st and 2nd appellants; with him:
Uzo Onwukwe; W. O. Kokohor and C. S. JokpoghoFor Appellant
AND
K. T. Turaki, A. Adenipekun, SAN; for the 1st respondent, with him:
V. O. Grant; J. Ikomi; A. Asala;
E. Ohwovoriole; C. Maduke and W. S. Bissellah (Miss);
Chief E. L. Akpofure, SAN for the 2nd and 2975th respondents; with him:
V. O. Idiapho; J. I. Odibelu, with him S. A. Owootori, for the 3th-2974th respondents.For Respondent
