ALL PROGRESSIVE GRAND ALLIANCE (APGA) V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS
(2012)LCN/5627(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 24th day of October, 2012
CA/E/EPT/23/2012
RATIO
ELECTION PETITION: DUTY OF A PARTY CLAIMING RESULTS WERE FALSIFIED
It is trite that to establish that results were falsified, the party alleging concoction of forgery of the result must produce two sets of results, one showing the true result and the other concocted or forged results. The Appellant herein did not give such evidence.
See Ume v. Eneli (1999) 4 NWLR (Pt. 600) 680, Sabiya v. Tukur (1983) 11 SC 109, Ojo V. Esotte (1999) 5 NWLR (Pt. 603) 444 and Atikpekpe v. Joe (1999) 6 NWLR (Pt. 607) 428. PER JOHN INYANG OKORO, J.C.A.
ELECTION PETITION: PRESUMPTION THAT RESULT OF AN ELECTION AS PUBLISHED BY INEC
There is a general presumption that the result of an election as published by INEC is correct and the onus is on the person who denies its authenticity to rebut the presumption with credible evidence. PER JOHN INYANG OKORO, J.C.A.
APPEAL: CIRCUMSTANCES WHERE THE APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF FACT OF A LOWER COURT
It is now well settled that a court of appeal will ordinarily not interfere with the findings of fact of a lower court unless it is satisfied that such findings are perverse or that the Judge did not utilize properly the opportunity of seeing and hearing witnesses. Whenever a judgment is said to be perverse, it simply means that it is persistently in error, different from what is reasonable or required, against weight of evidence. A judgment may be perverse where the trial judge took into account matters which he ought not to have taken into account or where the judge shuts his eyes to the obvious. This is not the case in the instant case. See Atolagbe v. Shorun (1985) NWLR (pt. 2) 360, Ojo v. Governor of Oyo State (1959) 1 SC (Pt. 1), 1. Chief Frank Ebba v. Chief Warri Ogodo & Anor (1984) 4 SC 84. PER JOHN INYANG OKORO, J.C.A.
JUDGMENT: CIRCUMSTANCES WHERE THE COURT OF APPEAL WILL REVERSE THE JUDGMENT OF A LOWER COURT
Let me state categorically that the court of appeal will not reverse the judgment of a lower court for every slip unless it is shown that it occasioned miscarriage of justice. The Supreme Court in Chiabee Bayol v. Iorkighir Ahemba (1999) 10 NWLR (pt. 623) 381, at 397 paragraphs E-F stated the position as follows:-
“But it must be emphasised that it is not every slip or error committed by the court that leads to reversal of the judgment of that court by an appellate court. For a slip or error in a judgment to lead to its reversal by an appellate court, it must have substantially affected the outcome of the decision. It is therefore not enough to allege error or slip in the judgment in question but the party complaining must demonstrate that the error or slip substantially affected the result of the decision as to result in a substantial miscarriage of justice.”
See also Olubode v. Salami (1955) 2 NWLR (Pt. 7) 252, Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417, Adeyemi v. Att. General for Oyo State (1954) 1 SCNLR, 525. From all I have said above, that slip by the Tribunal does not in my view make the judgment perverse. PER JOHN INYANG OKORO, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
A.O. LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
ALL PROGRESSIVE GRAND ALLIANCE (APGA) Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. THE RESIDENT ELECTORAL COMMISSIONER (REC) ANAMBRA STATE.
3. THE ELECTORAL OFFICER IDEMILI SOUTH L.G.A. (STATE CONSTITUENCY).
4. THE RETURNING OFFICER IDEMILI SOUTH L.G.A. (STATE CONSTITUENCY).
5. DR. CHRIS NGIGE
6. CHARLES ODEDO
7. EBELE OBI Respondent(s)
JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the National Assembly/Legislative Houses Election Tribunal, sitting in Awka which upheld the election of the 7th Respondent, Ebele Obi into the Anambra State House of Assembly, representing Idemili South State Constituency in the re-run election which took place on 15th of February, 2012. In the said petition, the Appellant had prayed the Tribunal for the following reliefs:-
1. That it be determined that on a proper collation of the valid votes cast at the questioned election, the return of the 7th Respondent as the winner of the House of Assembly election held on 15th February, 2012 is null and void in that the 7th Respondent did not score the majority of lawful votes cast at the election.
2. An order setting aside the return of the 7th respondent as the winner of the said election.
3. That it be declared that the Petitioner (and her candidate) scored the highest number of valued votes cast at the election and that the Petitioner ought to have been returned as the winner of the election.
4. An order that the Petitioner (and her candidates) be returned as duly elected and a certificate of return issued accordingly and forthwith.
ALTERNATIVELY
1. A declaration that the No. of registered voters in units 006, 007, 008, 009, 010, at Nkwo Ide Public Square Alor Ward 1; Unit 006, at Alor Central School Alor Ward II, Unit 002 at Community Central School, Nnobi Ward 1, Unit 013 of Nnobi ward II; Unit 014 at Umuoghaji in Awka Etiti ward II; Unit 001 at Ejihinnadu Hall I. Awka Etiti ward 1: Unit 011 of Iruowele Hall, Awka Etiti Ward I, and Unit 007 at Central School Awka Etiti ward I where malpractices and substantial noncompliance with the provisions of the Electoral Act occurred being in excess of the number of the accredited voters on the register had rendered the result of the election in these units invalid and unlawful.
2. A declaration of the Hon. Tribunal that the massive disenfranchisement of the voters in unit 034, 035, 030, 029, 028 and 026 in Oba Ward II, Unit 031 at Ezedom Hall 1; Unit 032 at Ezedom Hall III both in Oba Ward II and unit 033 at Uruokolavu in Oba Ward II; unit 023 and 024 at Health Centre Ojoto constitute substantial non-compliance with the Electoral Act and substantially affected the results of the election.
3. An order of the Hon. Tribunal that the return of the 7th Respondent as the winner of the election be set aside and another poll conducted by the 1st Respondent for the units mentioned in alternative relief ‘b’ above.
All the Respondents filed their respective replies to the petition and at the close of pleadings, all the parties called their various witnesses. At the close of the case of all the parties, written addresses were filed and adopted by learned counsel for the various parties. After considering the evidence and addresses before it, the Tribunal delivered its judgment on 1st September 2012 wherein the Appellant’s petition was dismissed as lacking in merit.
Dissatisfied with the judgment of the trial Tribunal, the Appellant filed Notice of Appeal dated 17/9/2 on 19th September, 2012. Thereafter the Appellant filed another Notice of Appeal on 20th September, 2012 which said notice is dated 19th September, 2012. At the hearing of this appeal on 22nd October, 2012, the learned counsel for the Appellant adopted and relied on the Notice of Appeal filed on 20th September 2012. The said Notice contains 15 grounds of appeal, out of which the Appellant has distilled six issues for determination. The said issues are as follows:-
1. Whether the Trial Tribunal’s findings of fact in this case, the fulcrum on which her final orders were based, were not against the weight of evidence and therefore perverse. (Formulated from grounds ii, iii, iv, v, vi, vii, viii, ix, xiv and xv of the grounds of appeal).
2. Whether as a trial Tribunal, the court below was not wrong in its failure to evaluate all the credible evidence that was led before it, if yes, whether the said failure has not occasioned a miscarriage of justice (Ground XIII).
3. Whether the trial Tribunal was right to have shut its eyes and/or failed to act on the unchallenged credible evidence of PW8 in its consideration and resolution of the issue of who, as between the appellant and the 7th respondent, scored the majority of the lawful votes cast in the questioned election ground I…)
4. Whether the trial Tribunal acted judicially and judiciously by affirming the 7th respondent as the winner of the questioned election despite the unchallenged credible evidence of Pw8 that scores from polling units where there were over voting as well as the ones from unstamped, undated and unsigned result sheets formed part of what was used in returning the said 7th respondent (grounds x).
5. Whether the trial Tribunal considered the case of the petitioner on its merit vis-‘E0-vis the evidence in proof thereof before reaching its decision in the matter (formulated from grounds xi, xii)
6. Whether the judgment of the Trial Tribunal was not against the weight of evidence and therefore perverse (ground XV)
It was however, the view of the 1st – 4th Respondents that only one issue is germane for the determination of this appeal, to wit:
“Whether the Tribunal properly considered and evaluated the evidence of the witnesses inclusive of documentary evidence in arriving at the findings that the Appellant failed to prove all sundry allegations contained in her petition and accordingly dismissed the petition”
In the brief settled by Bona Orakwe Esq., the 5th Respondent distilled three issues as hereunder reproduced:-
i. Whether the Trial Tribunal’s finding of facts and final judgment were based on proper evaluation of credible lawful evidence led before it and in consonance with the tilting of the weight of evidence. (Grounds I, II, III, IV, V, VI, VII, VIII, IX, X, XI, XII, XII, XIV and XV).
ii. Whether the trial Tribunal properly dismissed the petition and affirmed the return of the 7th Respondent when the Petitioner failed to prove or establish how the alleged non compliance affected the result of the election or that the alleged irregularity or non compliance was done with the consent and knowledge of the 7th Respondent (Grounds III, IV, V, IX and X).
iii. Whether the trial Tribunal was right not to have acted on exhibits dumped at the Tribunal by the plaintiff without linking it to his evidence in the case. (Grounds III and VIII).
The 6th Respondent has distilled two issues which are contained on pages 5 to 6 of his brief of argument. The two issues are:-
(1) Whether the Tribunal’s finding of facts are such that the Appellate court can interfere, and if so, whether the findings are not in consonance with the pleadings and admissible evidence before the trial Tribunal. (From grounds II, III, IV, V, VI, VII, VIII, IX, XIV, and XV)
(2) Whether considering the totality of the evidence, both oral and documentary, before the Tribunal, it was right in upholding the election of the 7th Respondent (from grounds I, XIII, X, XI, and XII).
The 7th Respondent in this appeal, through his counsel Emeka Agbapuonwu Esq., formulated two issues for the determination of this appeal. The issues are as follows:-
(a) Was the judgment of the Trial Tribunal perverse as to warrant interference by this Honourable Court?
(b) Was the Trial Tribunal wrong, in the circumstances of the evidence adduced before it, to affirm the election of the 7th Respondent?
From all the fifteen grounds of appeal contained in the Notice of Appeal and all the issues formulated by all the parties herein, I am persuaded to hold that only two issues are necessary for the effective determination of this appeal. The two issues would be as follows:-
1. Whether the judgment of the Tribunal was perverse.
2. Whether the Tribunal Properly evaluated the evidence of the parties before coming to its conclusion.
The above two issues run through the briefs of the parties to this appeal. That is why the appellant, although he formulated six issues, argued them under the two issues identified by this court in its judgment. The learned counsel for the Appellant has argued issue one in their brief separately and this has to do with whether the judgment of the lower court was perverse. Thereafter, the Appellant argued issues 2, 3, 4, 5 and 6 in its brief together which lends credence to my observation that only two issues are germane to this appeal. I shall accordingly determine this appeal based on these two issues as classified.
On the first issue, the learned counsel for the Appellant submitted that the far reaching findings of fact made by the Tribunal, upon which her final orders were predicated were not only perverse but have indeed occasioned a miscarriage of justice. The Appellant contended that the Tribunal refused to accept the petitioner’s argument in its final written address that it was bound to act and rely on the evidence of PW8 in paragraph 26, 27, 28, 29, 30, 32(1), and 33(1) and (2) of his written deposition of 4th July, 2012 as well as the ones in paragraphs 12 and 13 of his written deposition of 28th April, 2012, same not having been challenged in cross examination by any of the respondents.
Learned counsel submitted further that in making the said refusal, the Tribunal predicated same on a finding that the other respondents, other than the 7th Respondent, not only denied the said paragraphs but led evidence in proof of their said denials. He opined that this finding was perverse as the tribunal did not say how and where the said other respondents denied the averments contained in the said paragraphs or how and where they allegedly led evidence in denial of the said averments.
An aggregate of submissions by counsel for the Respondents on the issue is that the PW8 could not give evidence of result of elections in places he did not visit and that it is not enough to merely tabulate results of units he desired the Tribunal to deduct in order to falsely create impression that he had majority of lawful votes. It was their further contention that the failure to cross examine the PW8 on those inadmissible evidence, did not make the said evidence relevant, relying on the cases of Subremanian v. Public Prosecutor (1956) 1 WLR 965, Pharmacists Board of Nigeria v. Adegbesote (1986) 5 NWLR (Pt….) 707 and Armels Transport Ltd. v. Madam Tinuke Martins (1970) 1 All NLR 27.
The Respondents further submitted that the cases of Oforlete v. State (2000) 12 NWLR (Pt. 681) 415, Akinwunmi v. Idowu (1980) 3-4 SC 108, Ukpo v. Imoke (2009) 1 NWLR (Pt. 1121) 90 and Umeshie & Ors. v. Onuaguluchi & Ors. (1995) 12 SCNJ 120 cited by the appellant on the issue are inapplicable.
Let me start by saying that it is uncharitable for the learned counsel for the Appellants to, in a bid to brand the judgment of the Tribunal as perverse, accuse the Tribunal of importing extraneous issues to support the case of the Respondents. It is not true that the Respondents did not deny the averments contained in paragraphs 26, 27, 28, 29, 30, 32(1), 33(1) and (2) of PW8’s deposition of 4th July, 2012 and paragraphs 12 and 13 of his deposition of 28th April, 2012. In fact, the Respondents in their respective replies to the petition denied these averments. For example, on page 124 of the Record of Appeal, 6th Respondent avers:-
“With regard to paragraph 10.18, the 6th Respondent denies the calculation contained therein and states that all the votes were lawful and that there are no unlawful votes to be deducted.”
Thus, the finding of the Tribunal on the issue was not without foundation. And in any case, paragraphs 26, 27, 28, 29, 30, 32(1) and 33(1) and (2) of witness statement of 4/7/12 and paragraphs 12 and 13 of PW8’s written deposition of 28/4/12 relate to a table of figures and calculation of results from stated polling units which the appellant urges should be deducted from the total figure in the results. As was rightly submitted by the learned counsel for the 7th Respondent, for the table to have evidential value, each of the results in the table must be proved by credible evidence to be invalid. There was no such evidence to show that those tabulated results were invalid.
The 7th Respondent herein has also made his table of results and also calculated votes which he desires should be deducted from the Appellant’s score. Where do we go from here? Is it proper to allow a party to sit in the comfort of his room to calculate figures favourable to him and then force it down the throat of the court? Never. No court will permit or allow this to happen.
It is my view that the Tribunal properly refused to attach any weight to those paragraphs of the PW8’s written deposition which contain the table of results. My reason is that although the Appellant allege that no election took place in Alor Ward I, he however tendered exhibit A1-A10 as result sheets from these polling units. No evidence was led to challenge their authenticity. The Respondents had called Rw3, Rw4, Rw12 who were presiding officers in these polling units who gave evidence corroborating Exhibits A1, – A10 that there was election in these polling units in Alor Ward I. In fact the Tribunal, commenting on Exhibits A1- A10 said as follows:-
“These exhibits on their respective faces appear regular and seem to have complied with the provision of the Electoral Act. They are stamped, dated, and contain the names of the Presiding officers and clearly written on them.”
It is trite that to establish that results were falsified, the party alleging concoction of forgery of the result must produce two sets of results, one showing the true result and the other concocted or forged results. The Appellant herein did not give such evidence.
See Ume v. Eneli (1999) 4 NWLR (Pt. 600) 680, Sabiya v. Tukur (1983) 11 SC 109, Ojo V. Esotte (1999) 5 NWLR (Pt. 603) 444 and Atikpekpe v. Joe (1999) 6 NWLR (Pt. 607) 428.
There is a general presumption that the result of an election as published by INEC is correct and the onus is on the person who denies its authenticity to rebut the presumption with credible evidence.
A close look at paragraph 12 of the PW8’s deposition of 12/4/12 reveals that it contains 60 polling units whereas the complaint in the whole petition is with regard to 24 polling units. Learned counsel for the 6th Respondent has observed, and rightly too, that the chart is a mixture of polling units complained against and those not complained against in the petition. It is clear and quite trite that the PW8 could not have given evidence of results of polling units he did not visit during the election as he stated clearly that he was in one polling unit only. The table of chart prepared by the PW8 remains hearsay unless and until he calls witnesses who were present in those polling units to substantiate those figure either positively or negatively depending on what he intends to achieve. It is elementary to say that hearsay evidence is inadmissible and where a court has inadvertently admitted such evidence, it should be at liberty to strike it out. The fact that no cross examination was made on it does not make otherwise inadmissible evidence admissible. It remains legally inadmissible. See Owomiyi v. Omotosho (1961) 1 ALL NLR 304, Kate Enterprises Limited v. Daewro Nigeria Limited (1985) 2 NWLR (pt. 5) 116, Salowu Olukade v. Abolade Agboola (1976) 2 SC 183.
It is now well settled that a court of appeal will ordinarily not interfere with the findings of fact of a lower court unless it is satisfied that such findings are perverse or that the Judge did not utilize properly the opportunity of seeing and hearing witnesses. Whenever a judgment is said to be perverse, it simply means that it is persistently in error, different from what is reasonable or required, against weight of evidence. A judgment may be perverse where the trial judge took into account matters which he ought not to have taken into account or where the judge shuts his eyes to the obvious. This is not the case in the instant case. See Atolagbe v. Shorun (1985) NWLR (pt. 2) 360, Ojo v. Governor of Oyo State (1959) 1 SC (Pt. 1), 1. Chief Frank Ebba v. Chief Warri Ogodo & Anor (1984) 4 SC 84.
It is my view therefore that the failure of the Tribunal to act on those paragraphs of the deposition of PW8 or the finding that some of the Respondents denied those paragraphs did not make the judgment perverse as canvassed by the appellant. I think the same way the Tribunal failed to apply the table or chart of the Appellant was also meted out to the 7th Respondent as the Tribunal also refused to accord any importance to his chart. Both tables were, to my mind, self serving and the Tribunal was right not to accord any of them any evidential value.
One other reason for branding the judgment of the Tribunal as perverse by the Appellant is that the Tribunal held that the petitioner “laid no evidence as to which of the forms were either non-signed, non-dated or unstamped. It also did not lead corroborative evidence to establish over voting in some specific polling units.”
It was the Appellant’s contention that contrary to the above finding of the Tribunal, the PW8 in paragraph 12 of his written deposition of 28/4/12 led evidence as to which of the forms were either not signed, not dated or unstamped. I have read paragraph 12 alluded to by the appellant over and over again but I have not seen any evidence to prove the allegations contained in that paragraph. The paragraph contains a table of figures of 60 polling units and although the Appellant states that the PW8 has led corroborative evidence in that paragraph to show which forms were undated, unsigned and unstamped, this is far from the truth. There is no column in the table to show or remark on what happened in each of the 60 polling units. It is not the duty of this court to assign the toga of “unsigned” “undated” or “unstamped” to any of the polling units. It was the duty of the Appellant through the PW8 or any other witness to do so, but it failed to discharge that duty.
Although so many exhibits were tendered in bundles before the Tribunal, the preponderance of judicial opinion on the matter is that a tribunal or court cannot assume the duty of matching each of the bundle of documents to specific aspects of the case when the party tendering them has failed to so do. For a court to retire to the relaxed ambience of its chambers to examine documents suo motu and attach them to evidence led in court would amount to breach of the time honoured doctrine of fair hearing. See ANPP v. Usman (2009) All FWLR (Pt. 463) 1292, Amachree v. Goodhead (2009) All FWLR (Pt. 461) 911, ANPP v. INEC (2010) 13 NWLR (Pt. 1212) 549 and Imama v. Akpabio (2008) 17 NWLR (Pt. 1116) 225.
It is clear from pages 746-749 of the Record that Appellant’s documentary evidence were tendered in bundles on 20th July, 2012. However, throughout the course of evidence-in-chief of PW8, none of the witnesses related their various allegations against any of the admitted documentary evidence tendered from the Bar. The evidence in chief of Appellant witnesses are on 749-768 of the record. Under cross examination, the PW8 admitted that he was in Oba II poling Unit 026 on the Election Day and not in all the units tabulated in the table in paragraph 12 of his deposition of 28/4/12. So, even if he had tied the exhibits to the various units, would it have made any difference? Would that not be hearsay as already postulated in this judgment? I think the Tribunal was right in holding that the Appellant failed to prove which of the forms was unsigned, undated or unstamped. The finding of the Tribunal was therefore not perverse on that score.
The learned counsel for the Appellant had submitted that the Tribunal held that the petitioner clearly made out the case for non-dating, non-signing and non-stamping of some EC8A (1) and that for the Tribunal to turn round to say the issue was not proved makes the judgment perverse. Let me state at once that the learned counsel for the Appellant took the quotation out of con. I refer to page 1019 of the record of appeal where the statement was made. That statement was made in response to the argument raised by the 5th and 6th Respondents in their reply that the Petitioner did not make non dating, non signing and non stamping of some form EC8A (1) as ground for the petition. The Tribunal held that the petitioner made it a ground of the Petition and not that it had proved its case of non signing of the forms. This is what the court said, reading it in con:-
“Thirdly, the 5th and 6th Respondent in their Reply on Points of law contended that the Petitioner did not make the non stamping, non signing and non dating of some form EC8A (1) S as a ground for the Petition. We do think that the 5th and 6th respondents cannot be more erroneous in their submission. We do believe that the petitioner clearly made out the case for non stamping, non signing and non dating of some form EC8A (1). But although it laid no evidence to which of the forms were either non signed, non-dated or non stamped.”
It follows that the argument of learned counsel for the Appellant on his issue is of no moment since it was taken out of con.
Another decision of the Tribunal which the appellant submitted is perverse is as recorded on page 1005 of the record and it states:
“‘We have observed that it was the petitioner itself which tendered exhibits A1-10 which are in all material particular copies of the corresponding exhibits tendered by the respondents. The purpose of tendering the documents by the petitioner is what baffles our imagination. While it contends that no lawful election took place, yet it tendered public documents against which no evidence was adduced to challenge their authenticity. In effect, the petitioner, having failed to lead evidence in rebuttal to the statutory presumption attached to these documents cannot turn round to challenge the election which is evidenced by these documents……Accordingly, we hold that the petitioner has failed to prove that there was no lawful voting at Nkwo Ide Square at units 006, 007, 008, 009 and 010…”
It was appellants’ contention that the underlined portion of the above finding of the Tribunal is at variance with its earlier finding on page 1004 of the records, lines 1-6 that exhibit 8 and 9 on their faces were not regular and did not seem to have complied with the provisions of the Electoral Act as they were not stamped, dated and signed. He went further to submit that the Appellant’s main complaint in Nkwo Ide Square, Alor Ward I is not that there was no lawful voting but that there was no lawful election in the units located thereat.
In response, the learned counsel for the 1st – 4th respondents submitted that an appellant who conceded there was lawful voting cannot suddenly turn back and state that there was no lawful election since lawful voting is a crucial factor of a free and fair election.
According to the Appellant, its complaint is not that there was no lawful voting but that there was no lawful election in Nkwo Ide Square, Alor Ward I. This is why the Tribunal was baffled that the Appellant who alleged that there was no election in this area, turned round to tender Exhibits A1 – 10 showing result of elections in that area. It was held by this court in Audu v. INEC (No.2) (2010) 13 NWLR (Pt. 1212) 456 at 523 that:-
“Evidence of non-voting in a particular polling booth is provable by production of voters register, production of voters cards and the oral evidence of registered voters who were available and turned up to vote at their respective polling booths on the day of the election but could not vote for a variety of reasons.”
The Appellant herein did not tender any of the above materials to prove that there was no lawful election. As was held by the court below, an allegation that no election took place at a polling unit is that no actual or physical voting took place and that the result generated was a product of forgery or fraud. In this case the petitioner is duty bound to prove one or more of the following:-
l. That no voting materials were delivered at the polling unit, or
2. That no presiding officer reported for the election or
3. That INEC officials refused or failed to conduct election at all, or
4. That voters were totally disenfranchised either by reason of violence or threat of violence or for some other reason, the election was either impracticable or practically impossible to be conducted or
5. That election materials were hijacked and many other facts which can show that election did not take Place.
It is rather absurd that the Appellant tendered all those exhibits showing result of elections in that ward only to turn around to say that there was no lawful election and not lawful voting. The issue of non signing or stamping of documents was addressed earlier in this judgment and I do not intend to repeat it here. There is nothing on this issue to hold that the judgment of the Tribunal was Perverse.
Again, learned counsel for the appellant contended that the Tribunal’s finding on page 1009 of the Record that the averment in paragraph 10.7 of the petition was affected by the ruling of the Tribunal on 21/6/12 and that any evidence given in support of the said averment will go to no issue runs contrary to the said ruling, the pleading and evidence given thereon. According to counsel, this makes the judgment perverse.
On the above observation by the learned counsel for the Appellant, I think he is right here. However, as was pointed out by the learned counsel for 7th Respondent, this must be taken to be a mistake as it is clear that the Tribunal was referring to paragraphs 10.5 and 10.6 that go together which made allegations against the army. This is what the Tribunal said on page 1009 of the record concerning the issue:-
“The said paragraphs 10.5 and 10.6 and 10.7 which alleged criminal misconduct against armed personnel without joining them were declared incompetent. Consequently, they were struck out.”
Paragraph 10.7 of the Petition has nothing to do with allegation against security operatives, only paragraphs 10.5 and 10.6 were struck out by the Tribunal in its ruling of 21st June, 2012. So the inclusion of paragraph 10.7 among the paragraphs struck out as contained on page 1009 of the record is not correct. But having said so, there is nothing to show that the said pronouncement occasioned any miscarriage of justice. At last, the Appellant did not show how that statement affected their position in the judgment. It is not every slip in a judgment that can lead to a miscarriage of justice. The Tribunal had held that in the face of presumption of correctness of the election result tendered by the appellant and the 1st – 4th Respondents including results from the units stated in paragraph 10.7 of the petition, the results were not proved to be invalid. The results from the polling booths including those mentioned in paragraph 10.7 of the petition not being rebutted, the pronouncement of the tribunal affecting paragraph 10.7 of the petition has not occasioned of miscarriage of justice.
Let me state categorically that the court of appeal will not reverse the judgment of a lower court for every slip unless it is shown that it occasioned miscarriage of justice. The Supreme Court in Chiabee Bayol v. Iorkighir Ahemba (1999) 10 NWLR (pt. 623) 381, at 397 paragraphs E-F stated the position as follows:-
“But it must be emphasised that it is not every slip or error committed by the court that leads to reversal of the judgment of that court by an appellate court. For a slip or error in a judgment to lead to its reversal by an appellate court, it must have substantially affected the outcome of the decision. It is therefore not enough to allege error or slip in the judgment in question but the party complaining must demonstrate that the error or slip substantially affected the result of the decision as to result in a substantial miscarriage of justice.”
See also Olubode v. Salami (1955) 2 NWLR (Pt. 7) 252, Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417, Adeyemi v. Att. General for Oyo State (1954) 1 SCNLR, 525. From all I have said above, that slip by the Tribunal does not in my view make the judgment perverse.
Yet again, the learned counsel for the Appellant faulted the decision of the Tribunal which is contained on page 1013 of the record which stats:-
“‘We have closely analysed the above voters registers and compared them with their corresponding form EC8A (1) but we are Unable to decipher any case of over voting.
We have closely examined the form EC8As and we are satisfied that on their faces, they are genuine and there being no effective rebuttal by the petitioner we cannot rule against them.”
On the above decision of the Tribunal, the learned counsel for Appellant submitted that this decision runs counter to the unchallenged evidence of PW8 in paragraphs 24 and 25 of his written deposition of 4/7/12 which was also highlighted in the petitioner’s final address of 9/8/12.
Without much ado, I have stated earlier in this judgment the testimony of PW8 in respect of those wards including those mentioned in paragraphs 24 and 25 of his written deposition of 4/7/12 which he did not personally observe or witness what happened. They are hearsay and ought to have been corroborated by his agents who witnessed these incidents I need not go over this matter again. That would be enough for that aspect.
The other two complaints on this first issue also have to do with the evidence of PW8 which I have clearly addressed. It will amount to a waste of precious judicial time to repeat the exercise. All that is left to be said is that the Appellant has failed to show that any decision of the Tribunal was perverse.
Accordingly, this issue is hereby resolved against the Appellant.
Issues 2, 3, 4, 5 and 6 were argued together by the learned counsel for the Appellant. Essentially, these five issues complain that the Tribunal failed to evaluate the witness deposition of PW8 made on 28/4/12, particularly the table of results which the learned counsel for the Appellant has reproduced on pages 25 – 28 of their brief of argument. In arguing these issues, the Appellant first and foremost has adopted and relied on all arguments under issue I (one) together with all the authorities cited in support thereof. It was counsel’s contention that at the trial of the petition, the PW8 made two written depositions which were adopted and relied upon on 24/7/12. According to counsel, for no apparent reason, the trial Tribunal did not in her judgment make reference to PW8’s deposition of 28/4/12, let alone evaluating and ascribing any probative value to same.
The summary of the submission of the Respondents in their various briefs on these issue is that the Tribunal adequately evaluated the evidence of the parties before coming to its conclusion. As I noted earlier, both the appellant’s and particularly the 7th Respondent counsel adopt their argument on issue one as they set out to argue issues 2, 3, 4, 5 and 6 together. Even as I was considering issue one above, these other set of issues were being resolved because they are so interwoven and ought to have been couched in one issue only. As it is, I also adopt my views and conclusions in issue one as affects issues 2 – 6 mutatis mutandis.
Having said that let me state here and now that the PW8 did not give evidence as an expert witness who based his evidence on already established facts. As was rightly observed by the Respondents, all he said in his evidence on oath including the figures he tabulated in the table containing 60 polling units are facts he was told by other persons who themselves did not give evidence before the Tribunal. I have already held that those pieces of evidence were hearsay and inadmissible and it follows that in the circumstance, there was no proper evidence of Pw8 to have been evaluated. An inadmissible evidence cannot for any reason attain any other status other than what it is.
Although the Appellant tendered several exhibits from which the table of results was prepared by PW8 or his counsel, the PW8 or his counsel was not at all the polling units, booths or wards to be able to authenticate the figure listed in the table. His evidence in his written statement is based on what he was told by probably his agents. Since he was not an eye witness as to what transpired leading to the generation of those figures, his evidence concerning those units was hearsay and had no probative value. The fact that counsel repeated same in his address to the court does not make any difference as the ingenuity or brilliance of counsel does not take the place of evidence. See Ucha v. Elechi (2012) 13 NWLR (pt. 1317) 330, Ishola v. Ajiboye (1995) 1 NWLR (Pt. 532) 71, Chukwujekwu v. Olalere (1992) 2 NWLR (Pt. 221) 86. Yusuf v. Obasanjo (2005) 18 NWLR (Pt. 956) 96.
The Appellant has relied so much on the evidence of PW8 particularly the table of results prepared by him but I think it was not enough to prepare the table based on figures which PW8 did not know how they were generated. The appellant ought to have led evidence to show that those figures were either credible or otherwise. Such witnesses would have given evidence on why the court should accept or reject any of the figures tabulated therein. No court will act upon evidence which is of doubtful origin. I have read the judgment of the Tribunal being appealed against and I note that it made copious references to the evidence of both parties before arriving at its decision. Apart from the evidence of PW8 in his deposition of 28/4/12 which I have discussed severally in this judgment, I think the Tribunal did its best in the circumstance. The Appellant has not been able to show that issues 2, 3, 4, 5 and 6 as couched by it avail her at all. Accordingly, I resolve these issues against the Appellant.
Having resolved the six issues against the Appellant I hold that this appeal lacks merit and is hereby dismissed. I uphold the judgment of the Tribunal delivered on 1/9/12 which dismissed the petition of the Appellant. I award costs of N50, 000.00 against the Appellant and in favour of the 5th, 6th and 7th Respondents only.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I agree.
AYOBODE O. LOKULO-SODIPE, J.C.A.: I agree.
Appearances
T.U. Oguji Esq., with N.R. Owoh (Miss) and B.O. Aguigwo Esq.For Appellant
AND
S.O. Ibrahim Esq., Chief Legal Officer (INEC) with M.E. Ugwuocha Esq., Senior Legal Officer (INEC) for the 1st, 2nd, 3rd and 4th Respondents.
Bona Oraekwe Esq. for the 5th Respondent.
G.N. Onwusi Esq., with D.O. Ene Esq. for the 6th Respondent
Emeka Agbapuonwu Esq., with Emeka Ibe Esq. for the 7th RespondentFor Respondent
