ELIZABETH-MARY NGUUMBUL SHULUWA & ANOR v. TOR J. AYE & ORS
(2015)LCN/8016(CA)
In The Court of Appeal of Nigeria
On Saturday, the 7th day of November, 2015
CA/MK/EP/SH/19/2015
RATIO
PRACTICE AND PROCEDURE: PRELIMINARY OBJECTION; THE EFFECT OF PRELIMINARY OBJECTION IN A PROCEEDING
A preliminary objection is a specie of objection which, if sustained by a Court, would render further proceedings in a matter idle or impossible, see Abe v. Unilorin (2013) 16 NWLR (pt. 1379) 183; Apc v. INEC (2015) 8 NWLR (pt. 1462) 531; Jim-Jaja v. C.O.P., Rivers State (2013) 5 NWLR (Pt. NWLR (pt. 1350) 225. To this end, the law mandates the court to handle a preliminary objection,, when raised in any proceedings, first see Ogboru v. Uduaghan (2012) 1 NWLR (pt. 1311) 357; Efet v. INEC (2011) 7 NWLR (pt. 1247) 423; Daniel v. INEC (2015) 9 NWLR (pt. 1453) 113; APC v. INEC (supra). per. OBANDE FESTUS OGBUINYA, J.C.A.
APPEAL: GROUND OF APPEAL; CIRCUMSTANCES THAT GIVE RISE TO A GROUND OF APPEAL
It is trite law that one of the foremost hallmark of a ground of appeal, indeed the barometer with which to gauge its viability, is that it must challenge the ratio decidendi, not an obiter dictum. of the judgment being appealed against, see Chami v. UBA Plc. (supra); African Petroleum Plc. v. Adeniyi (supra); Adelekan v. Ecu-Line NV (2006) 12 NWLR (pt.993) 33; Abe v. Unilorin (supra); Teriba v. Adeyemo (2010) 11 NWLR (pt. 1211) 242; Jim-Jaja v. C.O.P.. Rivers State (supra); Okechukwu v. INEc (2014) 17 NWLR (Pt. 1435) 255; Daniel v. INEC (2015) 9 NWLR (pt. 1453) 113. Put differently, a ground of appeal that is divorced from the ratio in a decision is drafted in nubibus and incompetent and will impinge on the jurisdiction of a Court to adjudicate over an issue generating from it. Nevertheless, it appears that linkage with a decision on appeal is not the only determinant of validity and competence of a ground of appeal. In other words, there are other instances of circumstances that give rise to a ground of appeal. ln Akpan v, Bob (2010) 17 NWLR (pt. 1223) 421 at 464-465, L T. Muhamrnad, JSC, stated:
Although many authorities lay emphasis that a ground of appeal must stem from the of judgment… such decisions in my humble view, by no means limit the scope of a ground of appeal. And, from the general definitions, a ground of appeal can arise in a number of situations such as the following:
(a) from the of the decision appealed against (ipsissima verba).
(b) from the procedure under which the claim was initiated
(c) from the procedure under which the decision was rendered or
(d) from other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates.
(e) From commissions or omissions by the Court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of.
The ideal thing is to have a pronouncement from the Court from which the appeal emanates.
But, where that Court fails to make a pronouncement…where it ought to have made one, that will give rise to a ground of appeal…. per. OBANDE FESTUS OGBUINYA, J.C.A.
EVIDENCE: BURDEN OF PROOF; WHAT THE TERM “BURDEN OF PROOF” ENTAILS AND WHICH OF THE PARTIES HAS THE THE BURDEN OF PROOF
By way of prefatory remarks, the term, burden of proof, which is ubiquitous in adjudication, denotes “the duty which lies on one or other of the parties, either to establish a case or to establish the facts upon a particular issue”, see Okoye v. Nwankwo (2014) 15 NWLR (Pt. 1429) 93 at 133, per Muhammad, JSC. The law divides it into two categories: the legal burden of proof and the evidential burden of proof. The former, which bears other appellations: persuasive burden, probate burden, ultimate burden, the burden of proof on pleadings or the risk of non-persuasion, propounded by Phipson on Evidence, 11th Edition (Sweet and Maxwell) page 125, rests on a party who asserts the existence of facts. The latter oscillates between parties in a case depending on the assertion in the pleading. It is settled that a party who makes a positive/affirmative assertion is laden with the arduous burden of proving them. Contrariwise, a party that makes a negative assertion carries no burden of proof. This doctrine, burden of proof on affirmative or negative assertion, traces its paternity to the old Roman jurisprudence and encapsulated in the Latin maxim: “incumbit probatio qui dicit, non quit negat – the burden of proving of a fact rests on the party who asserts the affirmative of the issue and not upon the party who denies it – for a negative is usually incapable of proof’,, see Omisore v. Aregbesola (2015) 15 NWLR (pt. 1482) 205, per Nweze, JSC; Sections 131-133 of the Evidence Act, 2011, former Sections 135- 137 of the defunct Evidence Act, cap E14, Laws of the Federation, 2004; Elemo v. omolade (i.968) NMLR 359 at 361; Levis & peat (NRI) Ltd. v. Akhimien (1976) 10 NSCC 360 at 355; Kate Enterprises Ltd. v. Brewoo Nig. Ltd. (supra) Vulcan Gases Ltd. v. Gesellschaft Fur Ind. (2001) 9 NWLR (Pt. 719) 610; Imana v. Robinson (1979) 3-4 SC 1 at 9; Onyenge v. Ebere 18 NSCQR (Pt. L0789; Ewo v. Ani (2004) 3 NWLR (Pt. 851) 510; Olaiya v. Olaiya (2002) 12 NWLR (Pt. 982) 652; Akande v. Adisa (2012) 15 NWLR (Pt. 1324) 538; Okoye v. Nwankwo (supra); Odom v. PDP (2015) 5 NWLR (Pt. 1456) 527. per. OBANDE FESTUS OGBUINYA, J.C.A.
ELECTION PETITION; GROUNDS TO CHALLENGE ELECTION
Unarguably, the three grounds qualify as grounds to challenge election as sanctioned by Section 138(1) (a) (b) and (c) of the Electoral Act respectively. Interestingly, the provision has fallen for interpretation in a flood of cases, see Oshiomhole v. Airhiavbere (2013) 7 NWLR (pt. 1353) 376; PDP v. INEC (2014) 17 NWLR (pt. 14371 525; Gwede v. INEC (2014) 18 NWLR (pt. 1438) 56; Oke v. Mimiko (No. 2) (2014) 1 NWLR (Pt. 1388) 332; Akeredolu v. Mimiko (2014) 1 NWLR (pt. 1388) 402; Ngige v. INEc (2015) 1 NWLR (pt. 1440) 281; Akpamgbo-Okadigbo v. Chidi (No.2) (2015) 10 NWLR (Pt. 1456) 124, just to mention a few. per. OBANDE FESTUS OGBUINYA, J.C.A.
EVIDENCE: BURDEN AND STANDARD OF PROOF; THE BURDEN AND SATNDARD OF PROOF IN AN ELECTION PETITION
The law is now firm, beyond any peradventure of doubt, that a party who alleges non-compliance with the provisions of the Electoral Act in conduct of an election possesses the burden to prove it. Indeed, the law bestows on him the burden to establish that the act(s) of the non-compliance took place and that same substantially affected the result of the election. These the party must actualise with credible, cogent and compelling evidence, see Section 139 (1) of the Electoral Act; Buhari v. Obasanjo (2004) 13 NWLR (Pt.941) 1; Ucha Elechi (2012) 13 NWLR (pt. 1317) 330; CPC v. INEC (2011) 18 NWLR (pt. 1279) 493; Okechukwu v. INEC (2014) 17 NWLR (pt. 1436) 255; Ngige v. INEC (2015) 1 NWLR (Pt. 1440) 281.; PDP v. INEC (2014) 17 NWLR (pt. 1437) 525; Oke v. Mimiko (No. 2) (2014) l NWLR (pt. 1388) 332; Omisore v. Aregbesola (supra); Gundiri v. Nyako (2014) 2 NWLR (Pt. 1391) 211. per. OBANDE FESTUS OGBUINYA, J.C.A.
ELECTION PETITION: WHETHER THE ELECTION RESULT OF THE LAW COMES WITHIN THE FOUR WALLS OF OFFICIAL ACT AND THE PRESUMPTION THAT ALL THINGS HAVE BEEN LEGITIMATELY DONE
Above all, the election result of the constituency, in the sight of the law, comes within the four walls of official act: “When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with”, Section 168(1) of the Evidence Act, 2011, former Section 150 (1) of the Evidence Act, 2004. In the domain of Latin it is: Amnia Praesumuntur rite et solemniter esse acta donec probetur in contrarium – all things are presumed to have been legitimately done, until the contrary is proved. Of course, this statutory presumption holds sway in our jurisprudence, see Okeke v. State (2003) 15 NWLR (Pt. 842) 25; Olabode v. The State (2007) All FWLR (pt. 389) 1301; Torri v. N.P.S.N. (2011) 13 NWLR (pt. 1264) 355; Citec Int’l Estates Ltd. v. Francis (2014)8 NWLR (Pt. 1408) 139; Adegbuyi v. Apc (2015) 2 NWLR (Pt. 1442) 1. Admirably, this presumption inures in favour of election results, see Buhari v. Obasanjo (2005) 13 NWLR (pt. garl; ucha v. Elechi (supra); CPC v. INEc (supra); PDP v. INEC (supra); Ngige v. INEC (supra); Omisore v. Aregbesola (supra). It, therefore, behoved the appellants to offer rebuttal evidence to neutralise the efficacy of this beneficent presumption that the election result enjoys in our electoral system. Alas, the appellants failed, woefully, to proffer the needed evidence to refute or deflate the statutory presumption. per. OBANDE FESTUS OGBUINYA, J.C.A.
EVIDENCE: EXPERT OPINION; WHETHER A COURT IS BOUND TO ACCEPT THE EVIDENCE OF AN EXPERT WITNESS
It can be garnered from this clear provision that it is the Court that decides whether or not a witness is an expert, in the areas chronicled in the provision, using his knowledge and skill as the a yardstick. A Court is not bound to accept the evidence of an expert witness, see Seismograph Services Ltd. v. Onokpasa (1972) 4 SC 123; Seismograph Services Ltd. v. Ogbeni (1974) 4 SC 85; Omisore v. Aregbesola (supra); Oruwari v. Osler (2013) 5 NWLR (Pt. 1348) 535; Oando (Nig.) Plc. v. Adijere (W/A) Ltd. (2013) l5 NWLR (Pt. 1377) 37a; Akeredolu v. Mimiko (2014) l NWLR (Pt. 13881 aO7; Gundiri v. Nyako (2014) 2 NWLR (Pt. 1391) 2L1; Rabiu v. Amadu (2013) 2 NWLR (pt. 1337) 36. per. OBANDE FESTUS OGBUINYA, J.C.A.
EVIDENCE: EXPERT OPINION; WHO IS AN EXPERT
To begin with, an expert must be a “person qualified to speak with some amount of authority by reason of their special training skill, mastery or familiarity with the subject”, Rabiu v. Amadu (supra) at 52 per Galadima, JSC. per. OBANDE FESTUS OGBUINYA, J.C.A.
EVIDENCE: HEARSAY EVIDENCE; WHETHER HEARSAY EVIDENCE CAN BE USED TO ESTABLISH THE TRUTH OF AN EVENT
Where a witness gives evidence on what another person told him about events, then it is not direct evidence which has acquired the nickname: hearsay or second hand evidence. In the view of the law, hearsay evidence can only be used to inform a Court about what a witness heard another say and not to establish the truth of an event, see Sections 37 and 38 of the Evidence Act, 2011; (former Section 77 of the Evidence Act, 2004); FRN v. Usman (2012) 8 NWLR (Pt. 1301l Lar; Doma v. INEC (2012) 13 NWLR (Pt. 1317) 297; Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391; Kakih v. PDP (2014) 15 NWLR (Pt. 1430) 374. per. OBANDE FESTUS OGBUINYA, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
1. ELIZABETH-MARY NGUUMBUL SHULUWA
2. PEOPLES DEMOCRATIC PARTY Appellant(s)
AND
1. TOR J. AYE
2. LABOUR PARTY
3. INDEPENDENT NATIONAL ELECTORAL
COMMISSION Respondent(s)
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal queries the correctness of the decision of the National and State Houses of Assembly Election-Tribunal of Benue State, sitting in Makurdi (hereunder called “the trial Tribunal”), coram judice, M. A. Dipeolu, J. (Chairrnan), U. Abubakar, J.(Member) and M. B. wakili, J. (Member), in Petition No. EPT/BEN/SH/09/2015, delivered on 11th September, 2015. Before the trial Tribunal, the appellants were ,the petitioners whilst the respondents maintained their respondents’ position herein.
The facts of the petition, which transformed into the appeal, are amenable to briefness and easy appreciation. The third respondent, the Independent National Electoral Commission (INEC, for short), a body constitutionally assigned the herculean responsibility of organizing elections in Nigeria, conducted an election into the office of a member representing Katsina-Ala West State Constituency in the House of Assembly of Benue State on 1Ith April, 2015. In the said election, the first appellant was the flag bearer of the second appellant, Peoples Democratic Party (PDP): a registered
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political party in Nigeria. The second respondent, the Labour Party (LP), another registered political Party in Nigeria, had the first respondent as its standard bearer during the election. At the end of the poll exercise, the third respondent, INEC, declared and returned the first respondent as the winner of it, id est as a member representing Katsina-Ala West State Constituency in the House of Assembly of Benue State. The appellants were displeased with the outcome of the election. Hence, on 23rd April, 2015, the appellants beseeched the trial Tribunal, via a petition, predicated on three grounds, found at pages 1-22 of the printed record, and entreated it for the following reliefs:
(1) A DECLARATION that the result of the election in Tiir and Iwar wards were invalid by reason of non-compliance with the provisions of the Electoral Act, 2010 (as amended).
(2) AN ORDER cancelling results for Tiir and lwar Wards.
(3) A DECLARATTON that the 1st respondent did not obtain the majority of lawful votes cast at the election.
(4) A DECLARATION that the 1st petitioner had obtained the majority of lawful votes cast at the election.
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(5) A DECLARATION that the 1st Respondent was not qualified to have contested the election, having not met the requirements of the Electoral Act and the 1999 Constitution as at the time of the election.
(6) AN ORDER returning the 1st petitioner as the duly elected member of the Benue State House of Assembly representing Katsina-Ala West State Constituency in the election held on 1Ith April ,2015.
(7) Any further or other order that may be consequential or necessary in the circumstances of this case.
(8) ALTERNATIVELY, an order directing the 3rd respondent to conduct a re-run in Tiir and Iwar Wards to determine the winner of the House of Assembly election in Katsina-Ala West State Constituency, between the 1st petitioner and the 1st Respondent.
In expected reactions, the respondents filed their respective replies whereby they joined issues with the appellants in the petition. Sequel to that, the trial Tribunal proceeded to a full-scale trial of the petition. To prove the petition, the appellants fielded eight witnesses, PW1-PW8, and tendered eight documentary evidence: exhibits PA, PA1, PB, PC, PD, PE, PF and PG. In disproof of the petition, the
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fist respondent called one witness, DW1, through whom the second respondent, who called no witness, tendered a document: exhibit D1A. The third respondent called no witness. At the closure of evidence, the parties, qua counsel, addressed the trial Tribunal. In a considered judgment, delivered on 1Ith September, 2015, the trial Tribunal dismissed the petition as lacking in merit.
The appellants were aggrieved by the decision. Consequently, on 30th September, 2015, they lodged a 1-6-ground notice of appeal, seen at pages 988-999 of the record, and solicited this Court for:
(1) An order setting aside the judgment and orders of the Tribunal dismissing the appellants’ petition.
(2) An order entering judgment for the appellants in terms of the reliefs sought in the appellants’ petition.
(3) An order nullifying the election of the 1st Respondent on grounds of non-compliance with the Electoral Act in the process of accreditation of voters and collation of results and on upon the ground that 1stRespondent was not qualified to contest the election.
(4) Any further or other order that the Honourable Court may deem fit to make in the circumstances
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of this case.
Thereafter, the parties filed and exchanged their briefs of argument line with the rules governing the hearing of election petition appeals this Court. The appeal was heard on 4th November, 2015.
FIRST AND SECON D RESPONDENTS’ PRELIMINARY OBJECTION
At the threshold of their brief of argument, filed on 23rd October, 2015, the first and second respondents greeted the appeal with a preliminary objection on the grounds that:
1. Ground 16 of the appellants’ grounds of appeal is incompetent for not arising from the decision of the lower Tribunal.
2. Issue 1 of the issues for determination formulated by the appellants is incompetent, same having been distilled from Ground 16 which is an incompetent ground of appeal.
In arguing the objection, learned counsel for the objectors, W. I. Wombo, Esq., submitted that ground sixteen (16) of the appellants’ grounds of appeal was incompetent because it did not arise from the decision of the trial Tribunal contrary to the provision of Order 6 of the Court of Appeal Rules, 2011,. He explained that no portion of the decision mentioned irregularities in the election in lkurav-Tiev I and
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lkurav-Tiev ll wards. He relied on Odua v. FRN (2012) 11 NWLR (Pt. 1310) 76; Bia v. Abubakar (2011) 5 NWLR (Pt. 1239) 130; Kabiru v. lbrahim (2004) 2 NWLR (Pt.857) 326; African Petroleum Plc. v. Adeniyi (2011) 15 NWLR (Pt. I271) 560; Chami v. UBA Plc. (2010) 6 NWLR (Pt. 119) 474 to support the submission. He noted that the controversy between the parties was only in respect of elections in Tiir and Iwar Council Wards not those in lkarav-Tiev I and lkurav-Tiev ll Wards which formed the basis of ground sixteen (16).
He further submitted that any issue which was distilled from an incompetent ground of appeal or a combination of incompetent and competent grounds would be incompetent. He cited Danboyi v. Sa’adu {2011) 15 NWLR (Pt. 1269) 1; Pharma Beko Plc. v. N.S.I.T.F.M.B. (2011} 5 NWLR (Pt. 1241) 431 for the submission. He explained that issue one was formulated from grounds 6, 7, 10, 12, 14,14 and 16 bf the grounds of appeal and so incompetent. He urged the Court to strike out ground sixteen (16) and issue one arising from it.
The appellants filed no process in opposition to the objection in that the appellants’ rely brief they wanted to file was
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belated. Their learned counsel, T. D. Pepe, Esq., explained that the ground arose on the failure of the trial Tribunal to consider the effect o f the admission by the first respondent, in his reply and deposition, that there were irregularities in the election in Ikurav-Tiev- land Ikurav-Tiev ll and same occasioned a miscarriage of justice to the appellants.
Resolution of the Preliminary Objection
A preliminary objection is a specie of objection which, if sustained by a Court, would render further proceedings in a matter idle or impossible, see Abe v. Unilorin (2013) 16 NWLR (pt. 1379) 183; Apc v. INEC (2015) 8 NWLR (pt. 1462) 531; Jim-Jaja v. C.O.P., Rivers State (2013) 5 NWLR (Pt. NWLR (pt. 1350) 225. To this end, the law mandates the court to handle a preliminary objection,, when raised in any proceedings, first see Ogboru v. Uduaghan (2012) 1 NWLR (pt. 1311) 357; Efet v. INEC (2011) 7 NWLR (pt. 1247) 423; Daniel v. INEC (2015) 9 NWLR (pt. 1453) 113; APC v. INEC (supra). The instant objection, invented by the first and second respondents, seeks to impugn ground sixteen of the grounds of appeal for lack of correlation with the decision. From its
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tenor, it is impotent to terminate the appeal in limine in the sense that the other fifteen grounds can sustain it. The law has admonished and frowned on proponents of this genre of objection to channel their case through a motion, not by way of a preliminary objection, see Odunukure v. Ofomata (2010) 18 NWLR (Pt.1225) 404.
Be that as it may, since the objection centres on the jurisdiction of this Court to entertain issue one, distilled by the appellants, on account of incompetence, the law gives this Court the unbridled latitude to attend to it, see Jev v. Iyortyom (2014) 14 NWLR (Pt. 1428) 575. On this score, I will proceed to determine the objection even though it is contemptuous of the known legal procedure.
The hub of the objection is that ground sixteen, in the appellants’ notice of appeal, is incompetent because it is bereft of nexus with the decision of the trial Tribunal sought to be annihilated. For its importance, I pluck it out, where it is lodged at page 997 of the mountainous record, derobed of its particulars, thus:
(16) GROUND STXTEEN
The Tribunal erred in law by its neglect or omission or failure to consider the effect of
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the admission/pleading/evidence by the 1st respondent in his reply and statement on oath that there were irregularities in the election, in lkurav-Tiev I and Ikurav-Tiev ll, two out of five wards, and this error occasioned a gross miscarriage of justice.
I have examined the long-winded decision of the trial Tribunal, wrapped between pages 892-987 of the elephantine record, with the finery of a tooth comb. A juxtaposition of the decried ground sixteen with the judgment, amply, reveals that it does not flow from it. It is trite law that one of the foremost hallmark of a ground of appeal, indeed the barometer with which to gauge its viability, is that it must challenge the ratio decidendi, not an obiter dictum. of the judgment being appealed against, see Chami v. UBA Plc. (supra); African Petroleum Plc. v. Adeniyi (supra); Adelekan v. Ecu-Line NV (2006) 12 NWLR (pt.993) 33; Abe v. Unilorin (supra); Teriba v. Adeyemo (2010) 11 NWLR (pt. 1211) 242; Jim-Jaja v. C.O.P.. Rivers State (supra); Okechukwu v. INEc (2014) 17 NWLR (Pt. 1435) 255; Daniel v. INEC (2015) 9 NWLR (pt. 1453) 113. Put differently, a ground of appeal that is divorced from the ratio in a
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decision is drafted in nubibus and incompetent and will impinge on the jurisdiction of a Court to adjudicate over an issue generating from it.
Nevertheless, it appears that linkage with a decision on appeal is not the only determinant of validity and competence of a ground of appeal. In other words, there are other instances of circumstances that give rise to a ground of appeal. ln Akpan v, Bob (2010) 17 NWLR (pt. 1223) 421 at 464-465, L T. Muhamrnad, JSC, stated:
Although many authorities lay emphasis that a ground of appeal must stem from the of judgment… such decisions in my humble view, by no means limit the scope of a ground of appeal. And, from the general definitions, a ground of appeal can arise in a number of situations such as the following:
(a) from the of the decision appealed against (ipsissima verba).
(b) from the procedure under which the claim was initiated
(c) from the procedure under which the decision was rendered or
(d) from other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates.
(e) From commissions or omissions by the Court from which an appeal emanates in
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either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of.
The ideal thing is to have a pronouncement from the Court from which the appeal emanates.
But, where that Court fails to make a pronouncement…where it ought to have made one, that will give rise to a ground of appeal….
As stated earlier, the complaint of the appellant before this Court in the said grounds of appeal relates to the refusal of the Court below to consider a notice of withdrawal of appeal lodged before the Court about three months before the judgment was delivered. These grounds of appeal, as aforementioned challenged the inaction or omission of the Court below to consider a Court process duly filed before it delivered its judgment.
That, in my view, is good and valid ground of appeal.
I have, using the judicial lens of a Court, given a clinical examination to the ground sixteen sought to be invalidated. It quarrels with the trial Tribunal’s failure to do an act, id est, pronounce on the consequences of the first respondent’s admission of orgy of irregularities in two other wards, Ikurav-Tiev land
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Ikurav-Tiev ll, that were not under contest. It qualifies as an indictment/chastisement of the decision of the trial Tribunal on its omission to do what it ought to have done. To my mind, the ground falls, squarely, within the wide province of category (d) catalogued by the magisterial pronouncement in Akpan v. Bob (supra). On this premise, it is a classic exemplification of a valid ground of appeal even though the decision of the trial Tribunal is not its progenitor. I, therefore, armed with licence of the law, clad it with validity.
In the light of these legal dissections, the objectors seemingly dazzling contention, that the incompetence in the ground contaminates other grounds that gave birth to issue one, pales into insignificance. It is drained of any incompetence to taint others. Put the other way round, the issue one, which the appellants generated from a combination of grounds which encompass ground sixteen, is not infested with any incompetence. It is valid and itching for consideration by this Court. I welcome it to this appeal. In all, there is no particle of merit in the objectors’ preliminary objection to snuff life out of the issue, or the
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appeal, at its infancy. Accordingly, l over rule the preliminary objection. I penalise it with a deserved dismissal. It is dismissed. I will move on to decide the appeal on its merit.
Consideration of the appeal
During the hearing of the appeal, learned counsel for the appellants, T. D. Pepe, Esq., adopted the appellants’ brief of argument, filed on l6th October, 2015, as representing his arguments for the appeal. He urged the Court to allow the appeal. In a similar vein, learned counsel for the first and second respondents, W. I Wombo, Esq., adopted their brief of argument, filed on 23rd october,20l5, as forming his submissions against the appeal. He urged the Court to dismiss the appeal. The third respondent’s counsel, M. O. Ogwuche, Esq., informed the Court that the third respondent filed no brief of argument for or against the appeal.
In the appellants’ brief of argument, they crafted six issues for determination to wit:
(l) Whether or not the Tribunal was justified in dismissing the allegations of non-compliance with the provisions of the Electoral Act, 2010 (as amended) and the Manual for Election Officials 2015, in view of the oral
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and documentary evidence before the Tribunal.
(2) Whether the Tribunal was justified in applying Sections 68 and 84 of the Evidence Act to discountenance the evidence of PW8 and Exhibit PD.
(3)Whether or not the allegations in ground 3 of the petition were proved.
(4) Whether the Tribunal had correctly evaluated and discountenanced the evidence of PW1, PW2 and PW3.
(5) Whether or not the Tribunal was justified in holding that the evidence of PW7 in support of grounds 1 and 2 of the petition amounted to hearsay.
(6) Whether the appellants had proved their case on the balance of probabilities.
The first and second respondents, in their brief of argument, framed two issues for determination viz:
1. Whether appellants had proved as required by law, that the election of the Benue State House of Assembly, Katsina-Ala West State Constituency was not conducted in substantial compliance with the provisions of the Electoral Act, 2010 (as amended) and if so, whether appellants had proved that the said noncompliance substantially affected the result of the election as declared by the 3rd respondent?
2. Whether appellants had proved
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as required by law that the 1st respondent was not qualified to contest the Benue State House of Assembly, Katsina-Ala West State Constituency election held on the 11th day of April, 2015?
A close look at the two sets of issues reveals that they are identical in substance. The first and second respondents’ two issues can, conveniently, be subsumed under the appellants’ six issues. For this reason, the appeal will be decided on the footing of the issues raised by the appellants, the undoubted owners of the appeal.
Arguments on the issues
Issue one
Learned counsel for the appellants submitted that the trial Tribunal was wrong to invoke the presumption of regularity in favour of the election, based on exhibits PA, PAL, PB and PC, when the results of the polling units were not before it. He relied on Agagu v. Mimiko (2009) 7 NWLR (Pt. 1140) 342; ogboru v. uduaghan (2011) 1 NWLR (Pt. 1232) 538; Amgbare v. Sylva (2009) 1 NWLR (pt. 1121) 1; Remi v. Sunday (1999) 8 NWLR (pt. 613) 92; Fayemi v. oni (2010) 17 NWLR (pt. 1222) 326; Imana v. Robinson (1974) 6 SC 80; Elemo v. omolade (1968) NMLR 359; Alanu v. Amu (L974110 sc 237; Fashanu v. Adekoya
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(1974) 6 SC 83; Kate Enterprises Ltd. v. Daewoo Nig. Ltd. (1985) 2 NWLR (Pt. 5) 116 to support the submission. He posited that the respondents’ failure to tender the crucial documents amounted to withholding of evidence contrary to Section 167 (d) of the Evidence Act, 2011. He stated that the first respondent’s failure to plead the results in the challenged wards meant admission, citing Ogboru v. Uduaghan (supra). He noted that the trial Tribunal was wrong in holding that the appellants had the duty to tender the election materials.
Learned counsel further submitted that the respondents did not join issue with the appellants on the crucial issue of non-compliance with the Electoral Act and thereby conceded to it. He stated that the first and second respondents abandoned their relies and thereby admitted the appellants’ allegation. He added that appellants were entitled to succeed on minimal proof and the burden shifted to them to show compliance with the Electoral Act. He referred to Aregbesola v. Oyinlola (sic, no citation); Ukpo v. Imoke (2009) l NWLR (pt. 1121) 90; Lewis & Peat (NRl) Ltd. v. Akhimien (1967) 7 SC 167; Akintola v. Solano (1986) 2
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NWLR (Pt” 24) 598; Umoru v. Ijumu LGC (2010) LPELR 19289 (CA); Lawal v. Yama (2006) 2 EPR 64 2 for the submission. He stated that exhibit D1A was inadmissible because it was based on incompetent pleadings of the second respondent and his deposition. He cited Gundiri v. Nyako (2012) 11 SCNJ 73; Paragraph 4 of the 1st schedule to the Electoral Act, 2010, as amended (shortened to “the 1st schedule’).
He maintained that PW1-PW3, PW7 and PW8 gave unchallenged evidence of non-compliance with the procedure for accreditation in line with exhibit PG -The Manual for Election Officers,2015. He noted that a vote cast without accreditation would be invalid, citing Ogboru v. Uduaghan (supra); Ajadi v. Ajibola (200) 16 NWLR (Pt.878) 91. He explained the link between accreditation and the card reader. He reproduced the evidence of PWS and the purport of exhibit PD and persisted that the latter was not a document to come under Section 84 of the Evidence Act 2011, nor the evidence of the former a hearsay. He postulated that the trial Tribunal was bound to admit and act on an inspection report made pursuant to its order for inspection. He relied on Famurewa v. Onigbogi
17
(2010) LPELR 9142 (CA); Akintayo v. Jolaoye (2010) LPELR 3685 (cA); Aregbesola v. oyinlola (2009) 14 NWLR (pt. 1162) 429 for the postulation. He insisted that exhibit PD could not be regarded as hearsay evidence, citing Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173; Aregbesola v. oyinlola (supra). He reasoned that pw8 was an expert witness. He added that exhibit PA was full of alterations indicating that it was tampered with and made it unreliable, citing Okoko v. Dakolo (2006) All FWLR (pt. 336) 201; Agbonifo v. Aiwereoba (1988) L NWLR (pt. 70) 325 for the point.
For the first and second respondents, learned counsel submitted that the burden was on the appellants to prove the non-compliance with the Electoral Act and that same substantially affected the election.
He referred to Buhari v. Obasanjo (2005) 1.3 NWLR (Pt. 941) 1.; Swem v. Dzungwe (1966) l SCNLR lll; Awolowo v. Shagari (1979) 6-9 SC 51; Akinfosile v. ljose (1960) SCNLR 447; lbrahim v. Shagari (1983) 2 SCNLR 176; DPP v. INEC (2009) 4 NWLR (pt. 1130) 92; Audu v. INEC (2010) 13 NWLR (Pt. 1212) 456 for the submission. He stated that the general burden of proof would be on the appellants that
18
made the assertions. He cited Section 131 of the Evidence Act, 2011, Jang v. Dariye (2003) 15 NWLR (Pt. 843) 436; Ucha v. Elechi (2012) 13 NWLR (Pt. 1317) 330; Sorunke v. Udebunmi (1960) SCNLR 414; Nwokidu v. Okana (2010) 3 NWLR (Pt. 1181) 362; Ekun v. Baruwa (1966) 2 All NLR 211; Dantata v. Mohammed (2000) 7 NWLR (pt. 664) 176 for the point.
He added that the appellants’ allegations were criminal in nature and the burden was on them to prove them beyond reasonable doubt. He referred to El-Tiijani v. Saidu (1993) l NWLR (pt. 26g) 246; Nwobodo v. onoh (1984) l scNLR 1; wali v. Bafarawa (2004) 16 NWLR (pt.898) 1; oyegun v. lgbinedon (1992) 2 NWLR (pt. 226) 747; Buhari v. obasanjo (supra); Folami v. cole (1990) 2 NWLR (pt. 133) 445; Goyol v. INEC (No. 1) (2012) 11 NWLR (pt. 1311) 207; INEC v. Abubakar (2009) 8 NWLR (Pt. 1143) 259 for the point. He noted, in the alternative, that even if the appellants’ case was on non-holding of election or non-voting, they had the burden to tender voters’ cards that could be compared with the voters’ register which they failed to do. He cited Ezeanuna v. Onyema (2011) 13 NWLR (Pt. 1263) 36 for the point.
19
He explained that the appellants failed to link the first respondent with the alleged acts of non-compliance to make him liable. He relied on Buhari v. Obasanjo (supra); oyegun v. Igbinedion (supra); Agomo v. lroakazi (1998) 19 NWLR (pt. 565) 173; Nnachi v. Ibom (2004) 16 NWLR (Pt. 9801 6La; Ebebe v. Ezenduka (1998) 7 NWLR (pt. 556) 74; Bahawi v. Bwala (1993) 1 NWLR (Pt.267) 51; Ihute v. INEC (1994) 4 NWLR (Pt. 599) 350; Kudu v. Atiyu (1992) 3 NWLR (pt. 231) 515; Nwole v. Iwuagwu (2005) 15 NWLR (pt.) 543. He maintained that accreditation of voters was not carried out with card reader but register of voters as provided by Section 49 of the Electoral Act. He cited Awuse v. Odili (2005) 16 NWLR (pt. 952) 416; Ezeanuna v. onyema (supra); APC v. Agbage: Appeal No. CA/L/EP/GOV./751A/2015 (unreported) delivered on 26th August, 2015 for the point. He explained that the provision of exhibit PG, the Manual, on the point, was contrary to Section 49 of the Electoral Act and the former null and void. He cited Buhari v. Obasanjo (supra); PHMB v. Ejitagha (2000) 11 NWLR (pt. 677) 154 for the view.
Issue two
Learned counsel for the appellants contended that pW8 was an expert
20
based on his demonstrated experience as Section 68 of the Evidence Act, 2011 did not define the qualification of an expert. He relied on Unilorin Teaching Hospital v. Abegunde (2013) LPELR-21375 (CA) 35; A.-G., Fed. v. Abubakar (2007) 10 NWLR (Pt. 1041) 1; Amosun v. INEC (2010) LPELR-4943 (CA) 111 for the contention. He posited that exhibit PD was not a document generated from a computer for Section 84 of the Evidence Act to be applicable to it. He noted, on the authority of Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) 534, that document produced from a computer would still require to be tendered through a witness who would lay the necessary foundation.
On behalf of the first and second respondents, learned counsel submitted that exhibit PD was inadmissible because it was rejected when PWS wanted to tender it. He relied on Wassah v. Kara (2015) 4 NWLR (pt. 1449) 374; Agbaje v. Adigun (1993) 1 NWLR (pt. 269) ,261; Nwaogu v. Atuma (2013) L1 NWLR (pt. 13G4) LL7; Shittu v. Fashawe (2005) 14 NWLR (Pt. 946) 671, for the submission. He insisted that exhibit PD was inconsistent with Section 84 of the Evidence Act, 2011 and inadmissible. He cited Kubor v. Dickson (supra);
21
Agbaje v. Adigun (supra).
Issue three
Learned counsel for the appellants argued that failure of a political party, like the second respondent herein, to show that it complied with Section 85 of the Electoral Act would be fatal to any nomination/sponsorship arising from the breach. He added that the trial Tribunal was wrong to rely on Kubor v. Dickson (supra) to hold that the appellants were estopped to raise it based on their pleading that the second respondent sponsored the first respondent as it was a requirement of Paragraph 4 of the 1st Schedule to confer jurisdiction on it. He referred to Uduma v. Arunsi: CA/PH/EPT/177/2008 (unreported) delivered on 29th June 2010, on the variety of reasons for disqualification. He reasoned that to qualify to contest an election, a party must be a member of a political party and sponsored by it. He cited Fashogbon v. Adeogun (No.2) (2007) (sic) 881; Gwede v. INEC (2014) LPELR – 23763 SC; Section 105 of the Constitution, as amended, for the view. He stated that a valid nomination must be in accordance with the Electoral Act. He referred to PPA v. INEC (2010) 12 NWLR (pt. 1207) 70 for the point. He added that
22
qualification/disqualification to contest election constituted pre- and post-election matter which the Tribunals and regular Courts had concurrent jurisdiction. He referred to Dangana v. Usman (2013) 6 NWLR (pt. 1349) 50 for the point. He explained that a party who failed to challenge the affidavit submitted to INEC could do so before an election Tribunal, citing PDP v. INEC (2014/ LPELR 23808 (SC) for the point.
He further argued that the burden was on the first and second respondents who asserted that they complied with the constitutional and statutory requirement to have pleaded and led to evidence on it.
He described their pleading on it as vague which breached Paragraph I2(2) of the 1st Schedule and Order 13 of the Federal High Court (Civil Procedure) Rules, 2009. He explained that the respondents, based on those rules, were entitled to lead evidence in rebuttal of the appellants’ negative assertion. He cited Orji v. PDP (2008) LPELR 4997 (CA); Dokubo v. Omoni (1999) 8 NWLR (Pt.516) 647; Bamgboye v. Olarewaju (1991) 4 NWLR (Pt. 18a); Emegokwe v. okadigbo (1973) 4 SC 113 for the point. He enumerated the five documents they pleaded and only one
23
was tendered and insisted that they withheld others.
On the side of the first and second respondents, learned counsel contended that the appellants could not prove that the first respondent was still a member of the second appellant. He noted that membership of a political party was a domestic affair of that party and not justiciable. He relied on Anyanwu v. ogunewe (2014) NWLR (pt. 1410) 437; onuoha v. okafor (1983) 3 scNL 244/(1983) NSCC 494; Lado v. CPC (2012) All FWLR (pt. 607). 598/(2011) 12 SC (pt. III) 113/(2011) 18 NWLR (pt. 1279) 689; PDP v. sylva (2012) 113 NWLR (pt. 1316) 85 for the contention. He persisted that exhibit D14 confirmed that the first respondent was sponsored by the second respondent and same with the evidence of DW1 discharged the burden of proof then. He stated that exhibit D1A was admissible as it was tendered through DW1 whose deposition was not struck out. He reasoned that the other 15 depositions for the second respondent were valid. He noted that what the appellants listed as requirements ought to have been pleaded. He described their argument on the point as a fresh issue which could not be allowed without leave of Court.
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He cited FJSC v. Thomas (2013) 17 NWLR (Pt. 138a) 503; Loveday v. Comptroller, Fed. Prisons, Aba (2013) 18 NWLR (Pt. 1386) 379 for the point. He described the appellants’ pleading on the point, in Paragraph 47 of their petition, as contrary to the Order 13 Rule 4 of the Federal High Court (Civil Procedure) Rules, 2009. He insisted that the pleading was vague and generic and did not support the allegation of non-compliance with Section 85 of the Electoral Act. He relied on AcN v. Lamido (2012) 8 NWLR (pt. 1303) 560; Abubakar v. Yar’adua (2009) NWLR (pt.1120) 1; Udeaghan v. Omegara (2010) 11 NWLR (pt.1204) 168; Buhari v. obasanjo (supra)/(2005) 7 SCNJ 1 for the point.
Issues four and five
Learned counsel for the appellants analysed the evidence of PW1, PW2, PW3 and PW7 and maintained that the trial Tribunal was wrong to have discountenanced them.
On behalf of the first and second respondents, learned counsel argued that the evidence of PW1 went to no issue as it was based on paragraph 9(0) that was struck out. He stated that the evidence of PW2, PW3, PW4, PW6 and PW7 were caught by Section 115 of the Evidence Act, 2011 and the decision in
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Gundiri v. Nyako (2014) 2 NWLR (Pt. 1391) 211. He reasoned that the trial Tribunal was right to hold that their evidence were contradictory. He concluded that PW7’s evidence was hearsay.
Issues six
Learned counsel for the appellants adopted his submissions under issues 1,2,3,4 and 5. He took the view that the appellants proved their case, particularly grounds 1 and 2 of the petition, on the balance of probabilities.
Resolution of issues
In the interest of orderliness, I will settle the issues seriatim: as presented by the parties. I will, without much ado, take off with a consideration of issue one. I must confess that the issue, which occupies pages 4-21 of the appellants’ 36-page brief of argument, is, with due respect, guilty of verbosity. This is because it invaded and trespassed on other points in the other five issues. An in-depth study of it shows that the appellants’ chief grievance falls under a slim compass: who, as between the appellants and the respondents, own the burden of proof in the petition that metamorphosed into the appeal?
?
By way of prefatory remarks, the term, burden of proof, which is ubiquitous in adjudication, denotes
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“the duty which lies on one or other of the parties, either to establish a case or to establish the facts upon a particular issue”, see Okoye v. Nwankwo (2014) 15 NWLR (Pt. 1429) 93 at 133, per Muhammad, JSC. The law divides it into two categories: the legal burden of proof and the evidential burden of proof. The former, which bears other appellations: persuasive burden, probate burden, ultimate burden, the burden of proof on pleadings or the risk of non-persuasion, propounded by Phipson on Evidence, 11th Edition (Sweet and Maxwell) page 125, rests on a party who asserts the existence of facts. The latter oscillates between parties in a case depending on the assertion in the pleading. It is settled that a party who makes a positive/affirmative assertion is laden with the arduous burden of proving them. Contrariwise, a party that makes a negative assertion carries no burden of proof. This doctrine, burden of proof on affirmative or negative assertion, traces its paternity to the old Roman jurisprudence and encapsulated in the Latin maxim: “incumbit probatio qui dicit, non quit negat – the burden of proving of a fact rests on the party who asserts the
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affirmative of the issue and not upon the party who denies it – for a negative is usually incapable of proof’,, see Omisore v. Aregbesola (2015) 15 NWLR (pt. 1482) 205, per Nweze, JSC; Sections 131-133 of the Evidence Act, 2011, former Sections 135- 137 of the defunct Evidence Act, cap E14, Laws of the Federation, 2004; Elemo v. omolade (i.968) NMLR 359 at 361; Levis & peat (NRI) Ltd. v. Akhimien (1976) 10 NSCC 360 at 355; Kate Enterprises Ltd. v. Brewoo Nig. Ltd. (supra) Vulcan Gases Ltd. v. Gesellschaft Fur Ind. (2001) 9 NWLR (Pt. 719) 610; Imana v. Robinson (1979) 3-4 SC 1 at 9; Onyenge v. Ebere 18 NSCQR (Pt. L0789; Ewo v. Ani (2004) 3 NWLR (Pt. 851) 510; Olaiya v. Olaiya (2002) 12 NWLR (Pt. 982) 652; Akande v. Adisa (2012) 15 NWLR (Pt. 1324) 538; Okoye v. Nwankwo (supra); Odom v. PDP (2015) 5 NWLR (Pt. 1456) 527.In the glaring presence of this settled position of the law, who has the burden of proof as between the parties?
There is ample need to visit the record, the bible of the appeal, to ascertain the grounds upon which the appellants grounded their petition. Towards the bottom of pages 3 of the record, the appellants showcased their three
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grounds in the manner following:
(1) Your petitioners state that that the election for member representing Katsina-Ala West State Constituency in the Benue State House of Assembly election held on 11th April, 2015 was invalid particularly in Tiir and lwar Wards as stated hereinunder, by reason of noncompliance with or breach of the provisions of the Electoral Act, 2010 (as amended) and the Manual for Election Officials 1015 (a subsidiary legislation).
(2) That the 1st respondent was not duly elected by majority of lawful votes cast in the election.
(3) That the 1st respondent was as at 11th April, 2015 not qualified to contest the election, having not fulfilled the conditions precedent prescribed by the Electoral Act 2010 (as amended).
Unarguably, the three grounds qualify as grounds to challenge election as sanctioned by Section 138(1) (a) (b) and (c) of the Electoral Act respectively. Interestingly, the provision has fallen for interpretation in a flood of cases, see Oshiomhole v. Airhiavbere (2013) 7 NWLR (pt. 1353) 376; PDP v. INEC (2014) 17 NWLR (pt. 14371 525; Gwede v. INEC (2014) 18 NWLR (pt. 1438) 56; Oke v. Mimiko (No. 2) (2014) 1
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NWLR (Pt. 1388) 332; Akeredolu v. Mimiko (2014) 1 NWLR (pt. 1388) 402; Ngige v. INEc (2015) 1 NWLR (pt. 1440) 281; Akpamgbo-Okadigbo v. Chidi (No.2) (2015) 10 NWLR (Pt. 1456) 124, just to mention a few.
This sacrosanct statutory provision and these authorities will serve as beacons in the settlement of this nagging issue.
The heart of the appellants’ grouse, discernable from their submissions is that the election, conducted by INEC on 11th April, 2015 in Katsina-Ala West State Constituency suffered from non-compliance with the provisions of the Electoral Act and the Manual for Election officials, 2015. The law is now firm, beyond any peradventure of doubt, that a party who alleges non-compliance with the provisions of the Electoral Act in conduct of an election possesses the burden to prove it.
Indeed, the law bestows on him the burden to establish that the act(s) of the non-compliance took place and that same substantially affected the result of the election. These the party must actualise with credible, cogent and compelling evidence, see Section 139 (1) of the Electoral Act; Buhari v. Obasanjo (2004) 13 NWLR (Pt.941) 1; Ucha Elechi (2012) 13 NWLR
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(pt. 1317) 330; CPC v. INEC (2011) 18 NWLR (pt. 1279) 493; Okechukwu v. INEC (2014) 17 NWLR (pt. 1436) 255; Ngige v. INEC (2015) 1 NWLR (Pt. 1440) 281.; PDP v. INEC (2014) 17 NWLR (pt. 1437) 525; Oke v. Mimiko (No. 2) (2014) l NWLR (pt. 1388) 332; Omisore v. Aregbesola (supra); Gundiri v. Nyako (2014) 2 NWLR (Pt. 1391) 211.
It is decipherable, from these ex-cathedra authorities, that the burden to establish the allegation of non-compliance with the provisions of the Electoral Act in the conduct of the said election, weaved by the appellants, resided in them and not on the respondents. The appellants challenged the election in two wards of the said constituency: Iwar and Tiir-14 polling units in the former and 22 in the latter. In the aggregate, they questioned the election in 36 polling units in the two wards. Curiously, the appellants could not furnish sufficient evidence to prove the myriad of irregularities they alleged in those 36 polling booths. In their infinite wisdom, they did not avail the trial Tribunal with the polling unit results of election in those polling units.
The law has, rightly, classified polling unit results as the primary evidence
31
of votes cast in any election and placed it at the foundation/base of the pyramid upon which election process is built, see Nwobodo v. Onoh (1984) 5 WLR 34/(1984) sc 1; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; Agagu v. Mimiko (supra). Amazingly, only four polling agents, usually appointed based on Section 45(1) of the Electoral Act, were fielded, as witnesses, to unravel the tons of irregularities launched against those polling units by the appellants. No doubt, the evidence of polling agents, eye witnesses of the election at the polling units, are relevant and foremost in proving such allegations, see Gundiri v. Nyako (supra); oke v. Mimiko (No. 2) (2014) 1 NWLR (pt. 1388) 332; okechukwu v. INEC (2014) 17 NWLR (pt. 1436) 255. Even if they had availed the Tribunal of those salient unit results, it is doubtful if, on invalidation, the result of the entire election would be substantially affected since the Constituency hosts a total of 111 polling units. The appellants tendered exhibits PA, PB, PC, PD, PE, PF and PG to prove the alleged irregularities in those polling units. On what would the results in exhibit PA-PC be based. In the patent absence of
32
polling unit results, it would be difficult, nay impossible, to achieve the result the appellants were yearning for. In short, the appellants were stingy in the presentation of the necessary evidence , viva voce and documentary, which were sina qua to discharge the herculean burden of proof saddled on them by law. They starved the trial Tribunal of the vital evidence and same constituted coup de grace in the proof of their allegations.
A careful look at the record shows that the appellants’ petition is riddled with an avalanche of criminal allegations as manifest in Paragraph 9(1) (a), (b), (c), (d), (e), (f), (e) and (q). Once a party makes any allegation bordering on crimes, he acquires the burden to prove it beyond reasonable doubt. This rule of procedure applies, with equal force, in election proceeding, see Section 135 of the Evidence Act, 2011, then Section 138 of the erstwhile Evidence Act, 2004; Ucha v. Elechi (supra); ACN v. Lamido (2012) 8 NWLR (Pt. 1303) 550; Ngige v. INEC (supra); Okechukwu v. INEC (supra); Kakih v. PDP (2014) 15 NWLR (Pt. 1430). 374. The terse evidence presented by the appellants did not achieve this standard of proof. The
33
trial Tribunal found, at page 967,lines 13 and 14, of the huge record, that “they failed to discharge [the burden] as required by law”. I approbate the incontrovertible finding. This, no doubt, is another flaw that plagued the applicants’ petition and disabled it to fly.
These are not all. A cursory reading of the appellants’ reliefs, displayed at the dawn of this judgment, amply, demonstrates that four, out of their eight claims, come within the perimeter of declaratory reliefs. In the eyes of the law, it is incumbent on a party who claims a declaratory relief, which is at the discretion of the Court to grant, to prove it on the strength of his case and not on the weakness of the defence. In this class of reliefs, admission by an opponent does not absolve the claimant from this burden of proof, see Ucha v. Elechi (supra); CPC v. INEC (supra); Gundiri v. Nyako (supra). The appellants having made declaratory reliefs the foci of their petition, they inherited the burden to establish them notwithstanding any concession by their adversaries, the respondents. This is another blot on the appellants’ struggle to shirk from its responsibility on the burden of
34
proof in the petition. The petition is theirs and they invited the burden to themselves.
The foregoing legal anatomy exposes the poverty of the appellants’ scintillating arguments on withholding of evidence under Section 167(d) of the Evidence Act, 2011 (then Section 149 (d) of the Evidence Act, 2004), admission and abandonment of pleadings against the respondents. It demolished those arguments. I, therefore, dishonour the inciting invitation of the appellants to invoke the dire consequences of those hallowed principles of law against the respondents for want of legal justification.
Above all, the election result of the constituency, in the sight of the law, comes within the four walls of official act: “When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with”, Section 168(1) of the Evidence Act, 2011, former Section 150 (1) of the Evidence Act, 2004. In the domain of Latin it is: Amnia Praesumuntur rite et solemniter esse acta donec probetur in contrarium – all things are presumed to have been legitimately done, until the contrary is
35
proved. Of course, this statutory presumption holds sway in our jurisprudence, see Okeke v. State (2003) 15 NWLR (Pt. 842) 25; Olabode v. The State (2007) All FWLR (pt. 389) 1301; Torri v. N.P.S.N. (2011) 13 NWLR (pt. 1264) 355; Citec Int’l Estates Ltd. v. Francis (2014)8 NWLR (Pt. 1408) 139; Adegbuyi v. Apc (2015) 2 NWLR (Pt. 1442) 1. Admirably, this presumption inures in favour of election results, see Buhari v. Obasanjo (2005) 13 NWLR (pt. garl; ucha v. Elechi (supra); CPC v. INEc (supra); PDP v. INEC (supra); Ngige v. INEC (supra); Omisore v. Aregbesola (supra). It, therefore, behoved the appellants to offer rebuttal evidence to neutralise the efficacy of this beneficent presumption that the election result enjoys in our electoral system. Alas, the appellants failed, woefully, to proffer the needed evidence to refute or deflate the statutory presumption.
?
It flows from these legal expositions, done after due consultation with the law, that the trial Tribunal was firma terra, in law, when it assigned the burden of proof of the non-compliance with the provisions of the Electoral Act to the appellants and that they failed to discharge it. The solemn
36
finding, which is in keeping with the law, is unassailable.
It will be a flagrant transgression of the law to tinker with the justified finding. l am least prepared to indulge in such a judicial sacrilege. In the end, I have no option than to resolve issue one against the appellants and in favour of the respondents.
I proceed to attend to issue two. It castigates the decision of the trial Tribunal which invoked Sections 68 and 84 of the Evidence Act, 2011, to disregard the evidence of PWS and exhibit PD. PW8, Thompson Jonathan Akpabio, was the appellants’ last and star witness on non accreditation using the smart card reader in the challenged polling units. He was a subpoenaed witness. The appellants canvassed the argument that PW8 was an expert witness. The provision of Section 68 of the Evidence Act, 2011 (then Section 57 of the Evidence Act, 2004) reads:
68. When the Court has to form an opinion upon a point of foreign law, customary law or custom, or of science or art, or as to identity of handwriting or finder impressions, the (opinions upon that point of persons specially skilled in such foreign law, customary law or custom, or science or
37
art, or questions as to identity of handwriting or finger impressions, are admissible.
2. Persons so specially skilled as mentioned in Subsection (1) of this Section are called experts.
It can be garnered from this clear provision that it is the Court that decides whether or not a witness is an expert, in the areas chronicled in the provision, using his knowledge and skill as the a yardstick. A Court is not bound to accept the evidence of an expert witness, see Seismograph Services Ltd. v. Onokpasa (1972) 4 SC 123; Seismograph Services Ltd. v. Ogbeni (1974) 4 SC 85; Omisore v. Aregbesola (supra); Oruwari v. Osler (2013) 5 NWLR (Pt. 1348) 535; Oando (Nig.) Plc. v. Adijere (W/A) Ltd. (2013) l5 NWLR (Pt. 1377) 37a; Akeredolu v. Mimiko (2014) l NWLR (Pt. 13881 aO7; Gundiri v. Nyako (2014) 2 NWLR (Pt. 1391) 2L1; Rabiu v. Amadu (2013) 2 NWLR (pt. 1337) 36. The question, begging for an answer, is: did PW8 come within the restricted confine of an expert witness?
To begin with, an expert must be a “person qualified to speak with some amount of authority by reason of their special training skill, mastery or familiarity with the subject”, Rabiu v. Amadu
38
(supra) at 52 per Galadima, JSC. The evidence of PW8 disclosed that he is a graduate of a Theatre and Performing Arts from Ahmadu Bello University, Zaria.
The INEC employed him as an adhoc staff to prosecute the election. He was trained on the usage of smart card reader for five days. Certainly, a person who is a Theatre and Performing Arts major, without more, cannot, in my view, be classified as one who has unique and unusual skill in the complex and budding area of smart card reader. The usage of smart card reader has been declared as “a nascent procedure injected into our infant and fledgling electoral system to ensure credible and transparent elections”, see APC v. Agbaje & Ors. (2015) 8 C.A.R. (Court of Appeal Report) 23 at 43. There is no iota of evidence that the witness had formal education or previously acquired experience on the subject or its parent, Information and Communications Technology, (ICT). The period of five days, during which the witness underwent a course on the vexed subject, is insufficient to acquaint him with it. An expert witness must be versed in a subject in dispute. His dexterity and knowledge in a subject must be
39
special in the sense of being superlative. The evidence professed by the PW8 was not strong enough to be invested with the rare and coveted toga of an expert witness. The trial Tribunal was right to have found, towards the foot of page 967 of the expansive record, that “the evidence of PW8 is bereft of expertise on issue which he gave evidence”. I am not armed with a better law to interfere with this impeccable finding.
PW8 having been declared not to be an expert witness, exhibit PD, the offshoot of his inspection, will be barren to attract any positive probative value to the appellants. In effect, the trial Tribunal’s findings on the point are unimpeachable to warrant any intervention by this Court. In sum, I resolve issue two against the appellants and in favour of the respondents.
It is now the turn of issue three: whether or not the allegations in ground three of the petition were proved. The kernel of the ground is the disqualification of the first appellant to vie for the election. The ground is cognisable under Section 138(1) (a) of the Electoral Act. In the facts to buttress the ground, the appellants alleged that the issues of notice of
40
convention and nomination of candidates, as required by Sections 85 and 87 of the Electoral Act respectively, were not complied with.
The allegations, to all intents and purposes, are a clear instances of non-compliance with the provisions of the Electoral Act. Compliance has been defined as: “an act of complying or acting in accordance with wishes, requests, commands, requirements, conditions or orders. It is an act of yielding or conformity with the requirements or order”, ….Thus, where there is non-compliance, it postulates reversal of all such definitions, see Ojukwu v, Yar’adua (2009) 12 NWLR (pt. 1154) 50 at 140, per l. T. Muhammad, JSC; see Akeredolu v. Mimiko (supra). In view of the foregoing, there is an affinity between this issue and part of issue one, already determined, on who has the burden of proof on issue of non-compliance with the prescription of the Electoral Act. In order to avoid unnecessary duplication of efforts, I will import and adopt my earlier analyses on the point. Authorities are unanimous that the burden of proof of non-compliance with the provisions of the Electoral Act resides with petitioner(s), the appellants herein.
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In any event, even if the swinging evidential burden of proof fixes the onus of proof on the first and second respondents, they have discharged it creditably. The second respondent tendered exhibit D1A through DW1, the first respondent, during his cross-examination. Exhibit D1A is a Certificate of Return of Primary Election issued to the first respondent by the second respondent on 11th December, 2014. In the exhibit: “He is hereby returned as the candidate of the party in the above capacity”. It has fulfilled the requirement of this law in that:
“Evidence of nomination and sponsorship of a candidate by a political party lies in the declaration of the winner of the party’s primary election conducted to elect the party’s candidate for the general elections…”, see Kubor v. Dickson (supra) at 574, per Onnoghen, JSC.
The exhibit is a conclusive evidence because it leads to a definite result, see Nruamah v. Ebuzoeme (2013) NWLR (Pt.L372l 474. In the presence of exhibit Dl-A, the burden shifted to the appellants to douse its potency by demonstrating that there was non-holding of primary election which produced it. There was no bubble of such evidence.
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In effect, the appellants were unable to perforate the eligibility of the first respondent to contest the election on account of desecration of the provisions of Sections 85 and 87 of the Electoral Act. The trial Tribunal, in its well-honed judgment, found the ground not established after a thorough analyses. I find merit in the finding. It is faultless. It will be injurious to the law to tamper with it. In all, I resolve issue three against the appellants and in favour of the respondents.
Having dispensed with issue three, I move on to thrash out issues four and five. The two issues, which the appellants amalgamated in their brief of argument, deride the decision of the trial Tribunal for discountenancing the evidence of PW1, PW2, PW3 and PW7. For the sake of neatness, I will fuse the consideration of the two issues as presented by the parties.
The appellants’ first complaint is against the discountenance of the evidence of PW1. PW1, Terkuma Koko, was the second appellant’s agent at Adikpo polling unit in Tiir ward. His testimony was pegged on the irregularities in that polling unit as averred in Paragraph 9(0) of the appellant’s petition.
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Incidentally, the particular Paragraph was, on 6th June, 2015, struck out in the course of proceedings as evidenced at pages 873 and 891 of the cold record of appeal. The consequence of this is not a moot point. In law, it connotes that PWI-‘s evidence was an orphan in that it was anchored on unpleaded facts. It is trite that evidence of a witness must be based on pleading, petition in election petition proceeding, or rendered valueless, see Odom v. PDP (supra); Addah v. ubandawaki (2015) 7 NWLR (pt. 1458 (325. The PW1’s parol evidence was caught in the intractable vortex of this cardinal and inelastic principle of adjectival law. The evidence had no substratum to perch and command any consideration. The trial Tribunal did not offend the law when it discarded it as it went to no issue.
?
Next is the evidence of PW2: Iyongo Obuter. He was the second appellant’s polling agent at Ngobua polling unit in Tirr ward. The meat of his evidence is that while the voting was going on there were gunshots, by unknown thugs, and the INEC officials ran away and they carted away the election materials. He used his motorcycle to pursue them but lost in the chase. Under the
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furnace of cross-examination, he admitted that he hid himself along with others. To start with, there is no evidence offered by PW2 that he peeped from his hideout to oversee the nefarious activities of those thugs. In the second place, the acts of hiding and at once chasing the thugs are irreconcilable factual situation. In law, the two pieces of evidence are contradictory – one an opposite of the other on a material point, see Eke v. State (2011) 3 NWLR (Pt. 1235) s89; Ogun v. Akinyelu (2004) L8 NWLR (pt. 905) 362; Owie v. Ighiwi (2005) 5 NWLR (pt. 9t7l LB4; Wachukwu v. owunwanne (2011,1 L4 NWLR (pt. 1266) 1; Yakubu v. Jauroyel (2014) 11NWLR (Pt. 1418) 205. The act of hiding by PW2, perhaps to save his dear and priceless life, and that of pursing the thugs are antithetical as one affirms the opposite of the other on the crucial point of identification of the activities of those thugs at the polling unit.
Contradiction is an anathema in adjudication. On proof of it, it vitiates the case of a party and the evidence of a witness. The law has no respect for a witness who offers inconsistent evidence about an event. It repels it. Following the foregoing, the
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trial Tribunal was on a firm footing in law when it disregarded the evidence of PW2.
The PW3: Julius Ayegnusu. He was an All Progressives Congress (APC) agent at Achough Polling Unit in Tiir ward. The mainstay of his testimony was that materials, meant for the unit, were diverted to unknown place where massive thumb printing of the ballot papers and stuffing of the ballot boxes took place. Under the cross-fire of cross-examination, he admitted that he did not witness those electoral wrongs. The cross-examination showcases the PW3’s disdain for truth. cross-examination has been described as the “noble art” which “constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party”, Oforlete v. State (2000) 3 NSCQR 243 at 268, per Achike, JSC. Cross-examination “if rightly employed, is potent tool for perforating falsehood”, Ayan v. state (2013) 15 NWLR (pt. 1376) 34 at 36, per Fabiyi, JSC. Thus, cross-examination occupies an Olympian position in the adjectival law. It is the index with which to measure the truth in evidence-in-chief of witnesses. The veracity of a witness, under
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examination-in-chief, is tested by the evidence elicited from him under the furnace of cross-examination.
Thus, the respondents, harnessing the advocative prowess of their counsel, neutralised the evidential credit of PW3 on the issues he testified to. The witness offered evidence beyond what he observed through his senses of hearing and sight thereby violating the law of evidence, see Section 37 and 38 of the Evidence Act, 2011, then Section 77 of the Evidence Act.2004. The trial Tribunal respected the law when it dispensed with the evidence. I, too, will not adorn it with any jot of credibility.
Finally, I will deal with the evidence of PW7. The first appellant, Elizabeth-Mary Nguumber Shuluwa, testified in person as PW7. Her windy testimony is a mirror of the petition. The kernel of her evidence were that she visited four units: Takor 1 and 2 and Amosegher l and ll. She admitted that she did not pay a visit to any polling units in Tiir and lwar wards: the wards under contest. She, admirably, admitted that what she testified about the units, which she did not visit, were what her polling agents told her. The trial Tribunal did away with her
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evidence on ground of hearsay.
In our adjectival law, a witness is expected to testify on oath, or affirmation, on what he knows personally. Where a witness gives evidence on what another person told him about events, then it is not direct evidence which has acquired the nickname: hearsay or second hand evidence. In the view of the law, hearsay evidence can only be used to inform a Court about what a witness heard another say and not to establish the truth of an event, see Sections 37 and 38 of the Evidence Act, 2011; (former Section 77 of the Evidence Act, 2004); FRN v. Usman (2012) 8 NWLR (Pt. 1301l Lar; Doma v. INEC (2012) 13 NWLR (Pt. 1317) 297; Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391; Kakih v. PDP (2014) 15 NWLR (Pt. 1430) 374.
It cannot be gainsaid that the PW7 proffered evidence not within her knowledge when she conceded, under the crucible of cross-examination, that her evidence was predicated on what her polling agents related to her. Those pieces of evidence, no matter how impregnable, cannot be of any judicial utility to the appellants because they came outside the personal knowledge of the witness maker, PW7 herein. There is no
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evidence that the PW7 has the rare gift of invisibility, of being at two places (units) at the same time, as claimed by an international magician, late Professor Puller, see Okechukwu v. INEC (supra) at 299. In the result, the trial Tribunal acted in total fidelity to the law when it declined to ascribe/vest them with any probative value to the advantage of the appellants. I endorse the finding in toto.
The foregoing review, done with the aid of the law, makes mincemeat of the strictures which the appellants passed on the trial Tribunal’s evaluation of the evidence of pw1, pW2, pW3 and pW7. Those vitriolic attacks on them are unwarranted as they have no backing of the law. I refuse to accede to the appellants’ request, to crucify the properly evaluated evidence, for fear of desecrating the law and incurring its wrath. This Court gives its blessing to it. I, therefore, will not hesitate to resolve the conflated issues four and five against the appellants and in favour of the respondents.
It remains to deal with issue six: whether the appellants had proved their case on the balance of probabilities. Flowing from the consideration of issues 1-5 above,
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this issue ought not to delay this Court any longer. It can be gleaned, from the detailed deliberations invested in those issues, that the appellants, woefully, failed to prove their petition on the balance of probability or preponderance of evidence as enjoined by law, see Ucha v. Elechi (supra). The trial Tribunal had the imprimatur of the law when it, finally, found at page 986, lines 7-9, of the scary record, that “‘… the petitioners have failed to prove by cogent and credible evidence all the three grounds of the petition” and dismissed the petition for lack of merit. I am in total agreement with it on this terminal finding. The trial Tribunal’s 95-page judgment, though wordy, is suffused with legal erudition and disobedient to puncture. Overall, I resolve issue six against the appellants and in favour of the respondents.
On the whole, having resolved all the six issues against the appellants, the destiny of this appeal is plain. It is devoid of any tinge of merit. It, therefore, fails. Consequently, I dismiss the appeal. For the avoidance of doubt, I affirm, wholeheartedly, the decision of the trial Tribunal, delivered on 11th September, 2015,
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dismissing the appellants’ petition thereby upholding the election of the first respondent, Tor J. Aye, as the member representing Katsina-Aia West (Loko) State Constituency in the House of Assembly, Benue State in the election held on 11th April, 2015. The parties shall bear the respective costs they exp’en’ded in the course of the prosecution and defence of the doomed appeal.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I agree.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I AGREE.
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Appearances:
T. D. Pepe, Esq.For Appellant(s)
A. I. Wombo, Esq. with him, T. T. Shachia, Esq, for 1st and 2nd
Respondents
M.O. Ogwuche, Esq, (holding the brief of Ayo Omolenupen, Esq.) for
3rd RespondentFor Respondent(s)
Appearances
T. D. Pepe, Esq.For Appellant
AND
A. I. Wombo, Esq. with him, T. T. Shachia, Esq, for 1st and 2nd
Respondents
M.O. Ogwuche, Esq, (holding the brief of Ayo Omolenupen, Esq.) for
3rd RespondentFor Respondent
