DANIEL DONALD ONJEH & ANOR v. DAVID MARK & ORS
(2015)LCN/8038(CA)
In The Court of Appeal of Nigeria
On Saturday, the 28th day of November, 2015
CA/MK/EP/SEN/25/15
RATIO
APPEAL: SETTING ASIDE THE FINDINGS OF THE LOWER COURT; WHAT AN APPEALLANT SEEKING TO HAVE THE FINDINGS OF A LOWER COURT OR TRIBUNAL MUST ESTABLISH
The Law is now trite that an Appellant seeking to have the findings of a Lower court or a Tribunal set aside especially findings of fact, must establish that the Trial court or Tribunal made improper use of the opportunity of its having seen and heard the witnesses testified before it. It must also be proved that the learned Trial Judge or Tribunal did not properly appraise the oral and documentary evidence before him either by failing to ascribe probative value to the evidence led or drawing of wrong inferences or conclusions from the evidence proffered and tendered. It must be shown also that the failure on the part of the Judge or Tribunal occassioned a miscarriage of Justice see
(1) CHIEF ALEX OLUSOLA OKE & ANOR v. DR. RAHAMAN OLUSEGUN MIMIKO & ORS . (2014) 1 NWLR (PART 1388) 332 at 397 – G-H.
(2) MICHAEL ACHILIHU & ORS. v. EZEKIEL ANYATONWU (2013) 12 NWLR (PART 1368) 256 at 285H – 286A – G Per AKAAHS JSC who said:
“This appeal therefore turns on whether the Lower Courts conformed with the principles of law regulating proper and correct evaluation and appraisal of evidence. It is settled law that an appellate Court should not ordinarily disturb or tamper with the findings of facts made by the trial Court, particularly if such findings and conclusions reached are supported by credible evidence. This principle is premised on the fact that the duty of appraising of evidence given at a trial is pre-eminently that of the trial court that saw and heard the witnesses; Emarieru v. Ovirie (1977) 2 SC 31: Ogundulu v. Philips (1973) 1 NWLR 267 at 272; Okolo v. Uzoka (1978) 4 SC 77 at 86; Mogaji v. Odofin (1978) 4 SC 91: Nor v. Torkaa (1998) 4 NWLR (Pt.544) 130 at 139; Jimoh Garuba v. Isiaka Yahaya (2007) 1 SC (Pt.2) 262 at 266, (2007) 3 NWLP (Pt. 1021) 390. There is an exception to the above rule. The exception is where there is a misdirection by the trial Court, misdirection occurs when the issues of fact in the case for the parties or the law applicable to the issues raised are not fairly appraised or considered or misconceived or the law applicable is incorrectly applied by the trial court as a result there would be a miscarriage of justice if the decision reached is allowed to stand. See: Abisi v. Ekwealor (1993) 6 NWLR (Pt.302) 643; and Nor v. Tarkaa (supra). Where a trial court has drawn wrong inference from primary facts, the appellate court can reject the inference and make what it considers to be the right inference supported by evidence. It is also trite that where a trial court has failed, as in the instant case, in its duty to properly consider the evidence before it which led it to draw wrong conclusions from the evidence it accepted, the Appeal Court will be perfectly justified in revaluating and re-considering the whole evidence in order to arrive at a just decision”.
(3) VAB PETROLEUM INC. v. MR. MIKE MOMAH (2013) 14 NWLR (PART 1374) 284 at 318 E-H per I.T. MOHAMMED JSC.
(4) MARKUS NATINA GUNDIRI & ANOR v. REAR ADMIRAL NYAKO & ORS (2014) 2 NWLR (PART 1391) 211 at 240 A-C per OGUNBIYI JSC. per. PETER OLABISI IGE, J.C.A.
EVIDENCE: DOCUMENTARY EVIDENCE; WHETHER DOCUMENTS TENDERED BEFORE A COURT AT THE TRIAL OF A CASE IS PART AND PARCEL OF THE EVIDENCE TO BE CONSIDERED IN THE DETERMINATION OF ISSUES BEFORE THE COURT
The above findings are potently erroneous and have no support in law. It is the law that where there is complaint that documentary evidence was not properly utilized or adverted to by the trial court the Appellate court can evaluate it and see if the failure of the trial court to use the documents has any adverse effect on the Appellant’s case. See CHIEF NYA EDIM EKONG v. CHIEF ASUQUO E. OTOP & ORS. (2014) 11 NWLR (PART 1419) 549 at 573 F – H per OKORO, JSC who said:” It is trite that documents tendered before a Court at the trial of a case is part and parcel of the evidence to be considered in the determination of issues before the Court. Such documents usually referred to as exhibits are subject to scrutiny and to be tested for credibility and weight by the trial Court where the trial Court fails to examine documents tendered before it, an appellate court is in a good position to evaluate such exhibits. See Ayeni v. Dada (1978) 3 SC 35; Bamgboye v. Olanrewaju (1991) 22 NSCC (PT.1) 501. (1991) 4 NWLR (PT.184) 132. I think since Exhibit ‘C’ was tendered before the trial court and was part of the Record of Appeal before the court below, the Justices of that Court were eminently qualified to draw such inferences as they found fit and proper so to do.”
(2) U.T.C. NIGERIA PLC v. ALHAJI ABDULWAHAB LAWAL (2014) 5 NWLR (PART 1400) 221 at 238 E – F per MUNTAKA-COMMASSIE, JSC who said:
“the Court below rightly held that “where the evidence to be appraised are documentary evidence, because the exercise does not hinge on the credibility of witnesses and assessed only by trial Court the Appeal Court would lawfully interfere to re-appraise the relevance evidence with a view to checking the injustice, the perverse decision of the trial Court would have caused the Appellant.” per. PETER OLABISI IGE, J.C.A.
EVIDENCE: DOCUMENTARY EVIDENCE; HOW PUBLIC DOCUMENT IS ADMITTED IN EVIDENCE
Documentary evidence can be admitted in evidence in case of a public document through any witness and from the Bar and even a private document by consent of the parties without the presence of the makers of the document. In any event documents like LGA PC 01 – LGA PC 09 can also be tendered from the Bar by learned counsel to the petitioners. Those documents having been properly certified in accordance with Sections 102 and 104 of the Evidence Act 2011 because they enjoy presumption of correctness, authenticity and regularity accorded to them in Sections 105 , 146 and 167(1) of the Evidence Act, 2011. See the case of HON. MIKE BALONWU & ORS. v. MR. PETER OBI & ORS (2007) 5 NWLR (PAPT 1028) 488 at 535 F – H to 536A where BADA JCA who read the leading judgment (which was supported by the other four Justices of Court of Appeal ) relying on the Election petition case of Daggash v. Bulama said: “It is my view that the learned trial Judge correctly approached the issues of admissibility of certified true copy of the public documents pleaded in the originating summons and came to a correct conclusion that they were admissible. per. PETER OLABISI IGE, J.C.A.
EVIDENCE: ONUS OF PROOF; WHICH OF THE PARTIES HAS THE ONUS OF PROOF IN AN ELECTION PROCEEDINGS
The Law is settled that the initial onus of proof in an election proceedings is on the Petitioner. The Petitioner must introduce and give oral and documentary evidence capable of being believed by the Court or Tribunal before Onus will shift to the Defendants or Respondents to disprove or dislodge the claims of the Petitioner. Therefore depending on the preponderance of evidence each side has duty to prove the facts pleaded or asserted. See the case of ALIYU BALOGUN v. ALHAJI SHITTU LABIRAN (1988) 3 NWLR (PART 80) 66 at 84 A per OPUTA, JSC of blessed memory who had this to say: “Also when pleadings have been filed the onus is on the Plaintiff to prove the averments in his Statement of Claim and on the Defendant to prove what he averred in his Statement of Defence. Proof by preponderance of evidence simply means that the evidence adduced by the plaintiff should be put on one side of the imaginary scale mentioned in Odofin & Ors v. Mogaji & Ors (1978) 1 LRN 212 and the evidence adduced by the Defendant put on the other side of the scale and weighed together to see which side preponderates.” per. PETER OLABISI IGE, J.C.A.
JUSTICES
M.B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
1. DANIEL DONALD ONJEH
2. ALL PROGRESSIVE CONGRESS (APC) Appellant(s)
AND
1. DAVID MARK
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the National and State Houses of Assembly Election Petition Tribunal which sat at Makurdi delivered on the 7th day of October, 2015 dismissing the Appellants’ Petition.
The Appellants as Petitioners had by their Petition dated and filed on the 18th day of April, 2015 containing 66 paragraphs prayed the said Tribunal as follows:
“WHEREOF YOUR PETITIONERS PRAY AS FOLLOWS:
i. That it may be declared and do declare that the 1st Respondent, David Mark who was the Candidate of the 2nd Respondent was not only elected or returned by the majority of Lawful votes cast at the Benue South District Election held on 28th March, 2015.
ii. That it may be declared and do declare that the said election and return of the 1st Respondent, David Mark are voided by acts which clearly violate and breach the provision of Electoral Act, 2011 and manual for election made pursuant to the Electoral Act, 2011.
iii. That it may be declared and do declare that the purported election and the results there from in all the units identified and proved as being invalid election be nullified and
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iv. That it may be determined and declared that if the invalid and vitiated votes cancelled and nullified are deducted from the votes allocated or credited to the 1st Respondent, your 1st Petitioner will have the majority of Lawful votes and ought to have been declared and returned as the winner of the Benue South Senatorial District Election held on 28th March, 2015 or in the alternative returned as the winner of the election into office of Senate of Benue South Senatorial District held on 28th March, 2015.
OR, ALTERNATIVELY:
AN ORDER nullifying the Benue South Senatorial District Election held on 28th March, 2015 and ordering for a fresh election.”
The Petition was founded on the following grounds namely:
“i. The 1st Respondent was not elected by the majority of Lawful votes cast with the Election (sic).
ii. The Election and return of the 1st Respondent is invalid by reason of corrupt practices and/or non compliance with the provisions of Electoral Act, 2011.”
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There was exchange of pleadings and Pre-Hearing Session which led to the hearing of the Petition.
In their efforts to sustain the Petition the Petitioner called 19 witnesses and tendered documents
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while the 1st Respondent called 10 witnesses. The 2nd Respondent called one witness; the 3rd Respondent did not call any witness.
Aggrieved by the decision the Appellants have by their NOTICE OF APPEAL dated and filed on the 27th day of October, 2015 appealed to this Court. The said Notice of Appeal consists twelve grounds of appeal which without their particulars are as follows:
“3. GROUNDS OF APPEAL
GROUND ONE
The Trial Tribunal erred in law by failing, neglecting or omitting to consider and make necessary findings of fact on all the vital issues in controversy in respect of which parties had joined issues by their pleadings.
GROUND TWO
The Trial Tribunal erred in law by failing, neglecting and or omitting to follow its own decision and reason, to the effect that Collation of votes after declaration and return on certain votes is an irregularity which is substantial.
GROUND THREE
The Trial Tribunal erred in law by failing, neglecting and or omitting to consider the final written address of the Petitioners/Appellants and make findings or determining the germane issues on arguments proffered therein.
GROUND FOUR
The learned Trial Tribunal erred in law by holding
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that all the documentary evidence tendered by the Petitioners/Appellants amounted to documentary hearsay.
GROUND FIVE
The Trial Tribunal erred in law when it held thus;
“This application seems to me to correct anomalies in the case of the petitioners, thus amending the pleadings to bring it in line with the evidence led. No wonder ………….in the circumstance, I hold that this application is belated. It is accordingly dismissed as it will not be in the interest of justice to grant same.”
GROUND SIX
The Trial Tribunal erred in law when it held thus:
“The petitioner’s tendered bags of documents in proof of this petition through PW8 and PW19 – INEC officials, PW17 – 1st Petitioner and PW18 – data analyst, none of who was either the maker or privy to the making of the documents. The documents are therefore documentary hearsay; I am enjoined not to attach any probative value to them.”
GROUND SEVEN
The Trial Tribunal erred in law when it held thus:
“The Petitioner and his Witnesses did not link the documents to any area of their pleadings or their evidence.”
GROUND EIGHT
The Trial Tribunal erred in law when it held thus:
?”Apart from the legal flaws inherent in the
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evidence of PW18 as an expert for the petitioner, I shall consider the credibility of the witness. I have read the oral evidence of the witness in his statement on oath and report. I agree with Ikonne Esq. of learned Counsel to the 1st Respondent that the evidence of PW18 was discredited under cross-examination when it was shown and he agreed that this report contain errors which he admitted is unavoidable…thus, the report is inadmissible by the provisions of Section 83(3) of the Evidence Act . The “expert” witness’s report tendered is accordingly discountenanced and expunged from the record.”
GROUND NINE
The Trial Tribunal erred in law in failing to consider and determine the Fundamental issue of the 1st Respondent’s failure to adopt his Written Statement on Oath and his refusal to testify before the Tribunal to controvert and/or rebut the petitioners oral evidence led at the Tribunal.
GROUND TEN
The Trial Tribunal erred in law when it held thus in dismissing the Petitioners/Appellants Petition;
“From the foregoing, this Tribunal holds that the petitioners herein have failed to discharge the burden of proof placed on them by law and so failed to prove
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the civil aspect of the petition on the balance of probability and or the criminal allegations beyond reasonable doubt. The petition fails and is accordingly dismissed.”
GROUND ELEVEN
The Trial Tribunal misdirected itself by relying on and considering extraneous issues to the petition in dismissing the Petitioners/Appellants’ Petitions. GROUND TWELVE
The decision of the Trial Tribunal is against the evidence led and placed before it; which has occasioned miscarriage of Justice.”
At the hearing of this appeal, the Appellant learned Counsel abandoned the Notice of Appeal dated 19th day of October, 2015 and filed on the 22/10/2015. The said Appellant’s Counsel told the Court he was relying instead on the Notice of Appeal dated and filed on 27th day of October, 2015.
The Appellants filed their Appellants’ Brief of Argument dated 2nd day of November, 2010 on 4th day of November, 2015. The 1st Respondent’s Brief of Argument was filed on 13th day of November, 2015.
?It is dated 13th November, 2015. The 2nd Respondent’s Brief of Argument dated 9th November, 2015 was filed on 10th November, 2015.
The 3rd Respondent’s brief of Argument dated 9th day of November, 2015 was
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filed on the same date. The Appellants’ Learned Counsel distilled six (6) issues for determination of this appeal viz:
1. Whether the failure of the lower Tribunal to consider, make findings and pronouncement on some crucial issues submitted to it for determination, particularly the issue of declaring the 1st Respondent winner of the election in dispute with a certain number of votes on 28th March, 2015 while collation of votes that should be the basis of that declaration was still ongoing was not fatal to the lower Tribunal’s holding that the Appellants had not proved substantial non-compliance/irregularity, in view of the lower Tribunal’s earlier sound and extant decision that declaration of result before final collation of votes that should form the basis of the declaration is an irregularity that is substantial (Grounds 1 and 2).
2. Whether the lower Tribunal was right in dismissing the Appellants’ application to sever their pleadings and treat the facts pleaded on criminal allegations in the petition as surplusage and abandoned having held that the Appellants pleadings filed before it are by their nature severable. (Ground 2).
3. Whether the lower
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Tribunal was right in dismissing the Appellant’s petition before it on the ground that the Appellants failed to proof non-compliance because all the documentary evidence tendered by the Appellants of the trial was documentary hearsay and was not tiled to the Appellant’s case. (Grounds 4, 6 and 7).
4. Whether the Appellants have not proved their case on the balance of probability and therefore entitled to the relief sought contrary to the holding of the lower Tribunal that the Appellants have not proved their case on the balance of probability. (Grounds 9, 10 & 11 and 12).
5. Whether the lower Tribunal was right in discountenancing the evidence of PW18 on the ground that PW18 was not an expert in law and that his evidence was caught by Section 83(3) of the Evidence Act 2011 amongst other unsubstantiated grounds. (Ground 8).
6. Whether the failure of the Tribunal to consider and evaluate the Appellant’s final written address along side with the other three Respondents was not a breach of Appellants’ right to fair hearing and had not occasioned a miscarriage of justice to the Appellants. (Ground 3).
The Learned counsel to the 1st Respondent KEN C. IKONNE ESQ.
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formulated five issues for determination of the appeal namely:-
1. Whether, in arriving at its decision that the Appellants had not proved their allegation of substantial non-compliance/irregularity, the lower Tribunal left unresolved some crucial issues submitted to it for determination, particularly the issue that the 1st Respondent was declared the winner of the disputed election on 28th March, 2015 with a certain number of predetermined votes while collation was still ongoing (Grounds 1 and 2).
2. Was the lower Tribunal not right in discountenancing the documentary evidence tendered by the Appellants at the trial as documentary hearsay not tied to the Appellant’s case by admissible evidence? (Grounds 4, 6 and 7).
3. Whether the Appellants succeeded in proving the petition at the trial (Grounds 9, 10, 11 and 12)
4. Was the Lower Tribunal not right in discountenancing the evidence of PW18, the Appellants’ so, called expert witness? (Ground 8).
5. Whether the trial Tribunal was not right in dismissing the Appellants application to sever their pleadings and abandon the criminal allegations in the petition, which application was belatedly brought after the close of
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the respective parties cases and exchange of written address. (Ground 5).
The Learned Counsel to the 2nd Respondent raised eight issues for determination viz:
1. Whether or not the lower Tribunal considered and resolved all the issues submitted before it for adjudication by the parties to the petition before arriving at its judgment/decision. (Ground 1).
2. Whether or not the lower Tribunal was bound to have followed its own decision earlier delivered in another petition when the facts and circumstances are different from that of the instant petition. (Ground 2).
3. Whether or not the Lower Tribunal was right when it dismissed the Appellants’ application to sever the criminal allegations from the civil allegations as put forward in the Appellants’ pleadings in the petition. (Ground 5).
4. Whether the Lower Tribunal was right when it refused to attach any probative or evidential value to the documentary evidence adduced by the Appellants. (Grounds 4, 6 & 7).
?5. Whether the Lower Tribunal was duty bound to have accepted and acted upon the evidence of PW18 who was put forward by the Appellants as an expert witness in the circumstances of the instant petition.
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(Ground 8).
6. Whether the Appellants are entitled as a matter of course to the judgment of the Lower Tribunal supply because the 1st Respondent did not by himself testify in the petition. (Ground 9).
7. Whether the judgment/decision of the Lower Tribunal arrived at was based upon an extraneous issue not canvassed by the parties before it. (Ground 11).
8. Whether the judgment/decision of the Lower Tribunal is not consistent with evidence adduced. (Ground 12).
On his part the Learned Counsel to the 3rd Respondent MRS. G. S. MAMSWA nominated four issues for the determination of this appeal which are:-
1. Whether the Lower Tribunal was right in dismissing the Appellants petition on the ground that the Appellants failed to proof the non-compliance because the documentary hearsay that was not tied down to that Appellants case. (sic).
2. Whether the Lower Tribunal was right when it held that the Appellant’s have not proved their case on the balance of probability and thereby entitled them to the reliefs sought before the Lower Tribunal.
3. Whether the Tribunal was right in discountenancing the evidence of PW18 on the ground that PW18 was not an expert in law and that his
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evidence was caught by Section 83(3) of the Evidence Act, 2011 .
4. Whether the Lower Tribunal properly evaluates the evidence before arriving at its decision and whether it was in breach of the Appellant right to fair hearing.
It must be noted that Appellants filed Reply Brief to the Briefs of 1st and 2nd Respondents on 14/11/15 and 15/11/15 respectively and when this appeal came up 12th day of November, 2015 the Learned Counsel to the parties adopted their respective Briefs of Arguments and the learned Counsel made further elucidation and adumbrated on the said briefs.
The Appellant had formulated 6th issue which complained that the trial Tribunal did not consider or evaluated Appellants final written address alongside Respondents final addresses. Learned Counsel to the 2nd Respondent was right in informing the Court that the Appellants Learned Counsel did not argue issue 6 and same is deemed abandoned.
The law is trite that where no argument is canvassed in support of an issue raised in an appeal both the issue and the ground to which such issue is tied will be taken as having been abandoned and liable to be struck out. Issue 6 formulated by Appellants and
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ground 3 of the appeal are hereby struck out.
This appeal can be determined on the remaining five issues distilled from the Notice of Appeal by the Appellants. I will treat issues 1 and 3 together.
ISSUES 1 AND 3
The Learned Counsel to the Appellant who settled the Brief of the Appellants under Issue 1, drew attention of this court to the holding of the lower Tribunal on page 2,981 of the record to the effect that the Tribunal stated it looked at a petition containing 39 paragraphs, according to the learned Appellant Counsel when in fact the Appellant’s petition in paragraph 40 dealt with the grounds upon which the petition was predicated while paragraphs 41-65 pleaded facts to support the grounds of the Petition relying on Vol. 1 of the record pages 1-97 thereof. To learned Counsel, since the Lower Tribunal failed to look at facts pleaded in the petition up to paragraph 66 it would not be able to marry oral and documentary evidence led and tendered. That total failure of the lower Tribunal to consider almost half of the pleaded facts in the petition shows lack of adequate consideration of Appellants Petition. That the trial Court was bound to consider all
13issues joined by the parties on pleadings. That the Petitioners pleaded in paragraphs 60, 61, 62 and 63 of their petition that 1st Respondent was declared and returned on 28th day of March, 2015 while collation of votes at some polling units, wards and local governments that should form the basis of the declaration was still on going up till two days after the 1st Respondent was declared as winner of the election with certain figures of votes. That the 3rd Respondent who conducted the election had no explanation for this irregularity and that the 1st and 2nd Respondents by paragraph 107 of their respective pleadings in their Replies on pages 1795 and 1450 – 1451 respectively joined issues on the allegation. That Appellants further joined issues with them in their Reply on pages 140 and 1485 of the record respectively.
That at the trial the 1st Petitioner/Appellant adopted his written statement on Oath as his evidence and paragraphs 64, 65 and 66 of his written statement was evidence on the issue. That the 1st Appellant tendered without objection Exhibits LGA PC 04, LGA PC01, LGA PC 02, LGA PC 03, LGA PC 05 and LGA PC 06 which according to Appellants’ counsel
14 are clear evidence of the fact that collation of votes in respect of seven local governments out of the nine that make up Benue South Senatorial district were collated on 29th March, 2015 one clear day after the 3rd Respondent declared and returned the 1st Respondent as winner by 99,538 votes. That notwithstanding this the lower Tribunal did not make any finding over the issue though arguments were canvassed by all sides before the lower Tribunal. That the failure is fatal to the decision of trial Tribunal.?He relied on the cases of;
1. UGBODOME v. ABIEGBE (1991) 8 NWLR (Pt.309).
2. OKWARA v. OKWARA (1997) 11 NWLR (Pt.527) 160 at 170 – 171 and a host of others.
That it amount to lack of fair hearing. That the 1st and 2nd Respondents admitted that the 1st Respondent was indeed declared winner of the Election on 28/3/2015 with 99, 538 votes and insisted that collation of votes at all level of collation ended on 28/3/2015 but did not offer any evidence whether oral or documentary in rebuttal of the oral and documentary evidence of the Appellants on the issue. That the Appellants tendered Exhibits Ohimiri PB 28 and P30 endorsed by 3rd Respondent’s official to show
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that collation was still on in some wards on 29/3/2015. That the documentary evidence ought to have been used to assess Appellants evidence along with Exhibits LGA PC series. That documentary evidence is the best form of evidence. He relied on MIMIKO v. AGAGU (2009) 7 NWLR (Pt.1140) and INEC v. OSHIOMOLE (2009) NWLR (Part 1140).
He submitted that evidence of a valid and regular collation of votes at all levels of collation is a condition precedent for declaring a final result and making valid return of a candidate. He relied on MARK v. ABUBAKAR (2009) 2 NWLR (Pt.1124) 79 at 89 A – C. That the same Lower Tribunal had in EPT/BEN/SH/15/2015 delivered on 11/9/2015 in a similar matter held that collation of result done on 12/4/2015 after result had been declared on 11-4-15 contradicted the result declared and that it constituted substantial irregularity. That the Lower Tribunal ought to be bound by its decision relying ONAGORUWA v. STATE (1992) 5 NWR (Pt.244) 713 at 73 D-E per KALGO, JCA as he then was.
In his reply under Issue 1, the learned Counsel to the 1st Respondent submitted that the Lower Tribunal resolved all crucial issues submitted to it by the
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parties for determination both expressly and by necessary implication. That the Tribunal resolved the two broad issues considered for the determination of the Petition and held on page 2999 Vol. 3 of the record that the Appellants failed to prove non-compliance with the Electoral Act 2010 as amended or that any non compliance affected the result of the Election.
According to the learned counsel to the 1st Respondent, by necessary implication, one of the several allegations of the petition held by the Honourable Tribunal as not having been proved either beyond reasonable doubt or on a balance of probability was allegation that while compilation or collation of results were still ongoing and that 3rd Respondent had as at 28th awarded certain scores and on that basis declared and returned the 1st Respondent as the winner of the said election. That the Criminal Allegation was made in paragraph 6 of the Petition and expatiated in paragraph 60, 62 and 63 of the Petition and that same was held not proved. That by Sections 131, 132 and 133 of the Evidence Act 2011 the burden on Appellants would not be discharged except by cogent admissible evidence beyond reasonable
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doubt but that Appellant did not establish the onus on them.
The learned Counsel to the 1st Respondent stated that out of 19 witnesses Appellants called, it was 1st Petitioner himself as PW17 that testified in respect of the said allegation and personally tendered Exhibits LGA PC 01, LGA PC 02, LGA PC 03 , LGA PC 04, LGA PC 04, LGA PC 05, LGA PC 06 and LGA PC 09. That these Exhibits are the LGA collation Forms EC8C (1) for 7 LGAS. That PW17 also tendered more than 700 other Exhibits consisting mostly of Polling Units, Ward Collation, Local Government Collation and Senatorial District Collation Forms EC8A(1), EC8C(1) and EC8D(1). That the Sheer Volume of these documents made the Lower Tribunal to refer to them in its Judgment as “bags of Exhibits. That Ohimiri PB28 and Ohimiri PB. 30 were among the bags of Exhibits tendered by PW17. That they are also Ward Collation Forms EC8B(1). That the Petitioners failed to tender the Declaration of result Form EC8E and that the Petitioners did not even plead it. That PW1’s testimony which was contained in a witness statement on Oath deposed to by him and filed along the Petition was a reproduction of the entire Petition.
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That PW17 admitted under Cross-examination that he was nowhere near any of the Polling Units in respect of which he gave assertive and conclusive evidence. That he also confirmed that he did not visit the Senatorial District Collation Centre situated in Otukpo or any of the nine Local Government Collation centres. That the PW17 agents did not testify. That the evidence of PW17 was hearsay. That the contents of Exhibits LGA PC 01 to PC 09 and all of the other Exhibits tendered by PW17 could only have been proved by someone who could give direct oral evidence of the contents of Exhibits and PW17 was no such person. That only PW17 Agents could give evidence to the making of these Exhibits and in their absence the documents became documentary hearsay. He relied on the following cases:
(1) OBINNA OSUOHA v. THE STATE (2010) LPELR 4669 (CA).
(2) DANLADI MUSA v. THE STATE (2013) LPELR 21866 CA.
That there is no allegation that LGA PC 01 – LGA PC 09 were different from the result collated into EC8D1, that all Appellants are complaining is disparity in dates but they were not proved.
On the allegation that 1st Respondent was returned on 28/3/2015, the Counsel to the
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1st Respondent submitted that the Appellants must rely on the strength of their own case and not on weakness of defence since they are seeking for declaratory reliefs. He cited and relied on the case of CPC v. INEC & ORS. (2011) LPELR – 8257 SC per Mohammed JSC. That the Appellants owe it a duty to tender Form EC8E(1) and given oral evidence of it in order to proof date of declaration of result in Form EC8E(1). He relied on Section 128(1) of the Evidence Act and OMALE v. UNIVERSITY OF AGRICULTURE MARKURDI (2011) LPELR. On the complaint that the Tribunal refer as “40 page” Petition, that it is not a slip that can result in a reversal of Judgment.
On the earlier decision of the Lower Tribunal in EPT/BEN/SH/5/2015, he said that two Petitions are not exactly the same and that the record of proceedings in EPT/BEN/SH/15/2015 is not before this Court and cannot speculate. He urged the Court to resolve Issue 1 in 1st Respondent’s favour.
The position and arguments of learned Counsel to the 2nd Respondent, C.O. ALECHENU Esq. is not different from that of the 1st Respondent’s learned Counsel under Issue 1. The learned Counsel submitted that all issues submitted were
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considered by the Lower Tribunal before arriving at its decision . He relied on pages 2985, 2990, 2809, 2812 of the Vol. 3 of the record to submit that the Lower Tribunal was not impressed by evidence called by PW17 inclusive of Petitioners evidence. That a Court can only rely on credible evidence and not conjecture. That the Appellants did not challenge by way of appeal all the findings highlighted by 2nd Respondent. He relied on the case of CPC v. INEC 2012 ALL FWLR (Pt.617) 605 at 615 & 639. That Appellants are bound by it. That all cases cited by Appellants did not establish their complaints. That based on the case of GUNDIRI & ANOR v. NYAKO & ORS. (2014) 2 NWLR (Pt.1391) 211 at 243-244 per Ogunbiyi JSC. the Lower Court was right in its rejection of evidence of PW17. He also draw strength for his argument by relying on the case of DOMA & ANOR v. INEC (2012) ALL FWLR (Pt.628) 815 at 829 per FABIYI, JSC.
?That the Appellants goofed in their understanding of doctrine of judicial precedent while relying on decision of Lower Tribunal in EPT/BEN/SH/15/2015. That the doctrine does not operate in vacuo. That the facts are not similar. As to documentary
?21 evidence, the learned Counsel to 2nd Respondent stated that since those documents were not tendered by their makers as required by Law no value could be attached to them. He relied on the case of FLASH FIXED ODDS v. ATAKUGBA (2001) FWLR (PT.76) 709 at 730 B. E. per Niki TOBI JCA as later JSC.
The learned Counsel to the 3rd Respondent Mrs. G.S. MAMSWA who settled the 3rd Respondent’s Brief submitted that the Lower Tribunal was right in holding that the documents tendered are documentary evidence. That the Appellants failed to proof non-compliance as widely alleged in the petition and that the bundle of documents tendered have no nexus to connect the bags tendered with the grounds in the Petition. That the Appellants ought to have specifically related the documents to the part of the case in respect of which the documents were tendered. The learned counsel to the 3rd Respondent relied on the cases of:
1. UCHIEZE v. EZENAGU & ORS . (2010) LPELR CA/E/EPT/NA/63/08.
2. ALHAJI U.S.B. LUNGU & ANOR. v. ALHAJI AHMED A. ZAREWA & ORS . (2013) LPELR-20726 (CA)
3. BELGORE & ORS. v. ABDUL-FATAH AHMED & ORS . (2013) 8 NWLR (PT.1355) 60 at 90A.
4. SAMARI ABDUL
?22
MALIK v. TIJANI & ORS. (2012) LPELR 19731 (CA)
That the Appellant was not the maker of the documents he tendered. That the Supreme Court frowned against dumping of Exhibit and he cited the case of UCHA v. ELECHI (2012) ALL FWLR (Pt.625) 237 at 258. That the case of AGI v. ACCESS BANK Supra cannot avail the Appellants. This Court was urged to resolve Issue 1 in favour of Respondents.
Under Issue 3 the learned Counsel to the Appellants find fault with the holding of the Lower Tribunal on pages 2991 – 2992 of the record that the documents tendered by Appellants are documentary hearsay. That the Lower Tribunal relied on LAMBER v. NIGERIA ARMY (2007) 14 WRN 136 at 189 and AGI v. ACCESS BANK PLC. (2014) 9 NWLR (PART 1411) which according to Appellants Counsel did not support the position of Lower Tribunal. That the two decisions enjoined the Court to consider documents properly tendered in evidence. That the Lower Tribunal cannot with a wave of hand and without due consideration hold the documents earlier admitted to be hearsay. That once a document is admissible there is no need to call agents to tender them. He relied on MAGAJI v. NIGERIAN ARMY (2008) 8 NWLR
23
(Pt.1089) 338 at 395 – 396 per OGBUAGU, JSC. The learned Counsel to the Appellants relied on Paragraph 46(4) of the First Schedule to the Electoral Act that provides that documentary evidence may be put in and deemed read by the Court. That on pages 2768, 2809-2813 and 2817-2826 all the documents were tendered without objections.
That the 1st Appellant was comprehensively cross-examined on the documents. That the 3rd Respondent in Law and in fact is the maker of all the documentary evidence which are mainly the Statutory Forms produced by the 3rd Respondents for the use of its official. He relied on the cases of UZOIME v. UDENWA (2004) 1 NWLR (Pt.854) 303 at 347 – 349 per Aderem JCA and ADIGHIJE v. NWOGU (2009) 2 NWLR (Pt.1125) 231 at 254. That Appellants served Notice to produce on 3rd Respondent who produced to the 1st Appellant all the documents tendered. That PW19 is an official of INEC. That PW19 was not cross-examined he being official of INEC the maker of the documents tendered. That Appellants did not dump documents on the Tribunal. He relied on AGAGU v. MIMIKO (2007) 7 NWLR (PART 1140) 342 at 427A. That the documents without more are in themselves
?24
evidence being INEC Statutory Forms. He relied on the case of ARABAMBI v. ADUANCE BEVERAGES IND. LTD. (2008) 19 NWLR (PT.959) 61 at 38 per MUKHTAR JSC Later CJN to contend that having tendered them in respect of facts pleaded the Lower Tribunal was bound to appraise the documents. He urged the Court to re-evaluate the evidence.
The learned Counsel to the 1st Respondent submitted that the trial Tribunal was right in holding that all the pieces of oral and documentary evidence given by the Appellants are inadmissible hearsay, unreliable contradictory and bordered on unpleaded facts. That none of the witnesses was the maker of the documentary evidence. That PW8 only tendered Exhibits P1-40 i.e. card reader accreditation data without giving evidence on their contents. That the only oral evidence on the contents of these Exhibits came from PW17 and PW18 who were not an eye witness account. That the evidence was properly discountenanced. That the extensive evidence given by PW17 on the various Exhibits he tendered were documentary hearsay lacking in probative value. He relied on the cases of:
1. ABUBAKAR v. YAR’ADUA (2008) 19 NWLR (PT.1120) 1 at 173-174 D-G per NIKI
?25
TOBI JSC.
2. BUHARI v. OBASANJO (2005) 13 NWLR (PART 941) 1 at 315.
3. HASHIDU v. GOJE (2003) 15 NWLR (PT.843) 352 at 393 per AKINTAN JCA among host of other cases cited.
On failure of 1st Respondent to testify the learned counsel stated that there is no Law which says 1st Respondent must testify personally.
The learned Counsel to the 2nd Respondent was in tandem with the submissions of learned counsel to 1st Respondent contending that those documents were not tendered through their makers and as such are of no probative value. He also relied on Section 83 of the Evidence Act . That the documents were just dumped on the Tribunal.
He relied on GUNDIRI v. NYAKO Supra to contend that, the Tribunal cannot grant them any relief merely because 1st Respondent did not testify as according to learned counsel, the Declaration of results enjoy presumption of regularity and it is for Appellants to prove not Respondents. That 19 witnesses are inadequate to enable petitioners prove allegation of criminal offences.
The learned Counsel to the 3rd Respondent toe the same line in his submissions just as the learned counsel to 1st and 2nd Respondents. That the Petitioners witnesses evidence
26
and documents tendered amount to hearsay evidence by virtue of Section 126(a) (b) (c) of the Evidence Act 2011 . He too cited and relied on the cases of:
1. BUHARI v. OBASANJO Supra.
2. BAJIMOBI v. INEC (2009) ALL FWLR (PT.477) 91 at 102
3. GUNDIRI v. NYAKO & ORS . P.246 C – H.
4. OKAFOR v. INEC (2010) 3 NWLR (Pt.1180) 1 at 49.
Urges the Court to resolve the issue in favour of Respondents.
?Replying to the submissions of 1st and 2nd Respondent in the two Appellants Reply Briefs already identified the appellants maintained the stance they took in the main brief and specifically in response to the principle of Law that a Petitioner must rely on the strength of his case, Appellants’ learned counsel stated that in the instance case which is whether the 1st Respondent was declared and returned while collation was still ongoing, it is civil in nature and was not denied therefore the Appellant only require a minimal proof and the onus has been discharged. That the court should use the documents tendered to assess the oral evidence.
The Law is now trite that an Appellant seeking to have the findings of a Lower court or a Tribunal set aside especially findings of fact, must
27
establish that the Trial court or Tribunal made improper use of the opportunity of its having seen and heard the witnesses testified before it. It must also be proved that the learned Trial Judge or Tribunal did not properly appraise the oral and documentary evidence before him either by failing to ascribe probative value to the evidence led or drawing of wrong inferences or conclusions from the evidence proffered and tendered. It must be shown also that the failure on the part of the Judge or Tribunal occassioned a miscarriage of Justice see
(1) CHIEF ALEX OLUSOLA OKE & ANOR v. DR. RAHAMAN OLUSEGUN MIMIKO & ORS . (2014) 1 NWLR (PART 1388) 332 at 397 – G-H.
(2) MICHAEL ACHILIHU & ORS. v. EZEKIEL ANYATONWU (2013) 12 NWLR (PART 1368) 256 at 285H – 286A – G Per AKAAHS JSC who said:
“This appeal therefore turns on whether the Lower Courts conformed with the principles of law regulating proper and correct evaluation and appraisal of evidence. It is settled law that an appellate Court should not ordinarily disturb or tamper with the findings of facts made by the trial Court, particularly if such findings and conclusions reached are supported by credible evidence. This principle is premised on the fact that the duty
28
of appraising of evidence given at a trial is pre-eminently that of the trial court that saw and heard the witnesses; Emarieru v. Ovirie (1977) 2 SC 31: Ogundulu v. Philips (1973) 1 NWLR 267 at 272; Okolo v. Uzoka (1978) 4 SC 77 at 86; Mogaji v. Odofin (1978) 4 SC 91: Nor v. Torkaa (1998) 4 NWLR (Pt.544) 130 at 139; Jimoh Garuba v. Isiaka Yahaya (2007) 1 SC (Pt.2) 262 at 266, (2007) 3 NWLP (Pt. 1021) 390. There is an exception to the above rule. The exception is where there is a misdirection by the trial Court, misdirection occurs when the issues of fact in the case for the parties or the law applicable to the issues raised are not fairly appraised or considered or misconceived or the law applicable is incorrectly applied by the trial court as a result there would be a miscarriage of justice if the decision reached is allowed to stand. See: Abisi v. Ekwealor (1993) 6 NWLR (Pt.302) 643; and Nor v. Tarkaa (supra). Where a trial court has drawn wrong inference from primary facts, the appellate court can reject the inference and make what it considers to be the right inference supported by evidence. It is also trite that where a trial court has failed, as in the
29
instant case, in its duty to properly consider the evidence before it which led it to draw wrong conclusions from the evidence it accepted, the Appeal Court will be perfectly justified in revaluating and re-considering the whole evidence in order to arrive at a just decision”.
(3) VAB PETROLEUM INC. v. MR. MIKE MOMAH (2013) 14 NWLR (PART 1374) 284 at 318 E-H per I.T. MOHAMMED JSC.
(4) MARKUS NATINA GUNDIRI & ANOR v. REAR ADMIRAL NYAKO & ORS (2014) 2 NWLR (PART 1391) 211 at 240 A-C per OGUNBIYI JSC.
The Appellants have accused the Lower Tribunal of a misapprehension of their case as postulated in the Petition. That the learned Tribunal claimed to have perused “a 39 paragraphs averment of the Petition” whereas the Appellants petition consisted of 66 paragraphs meaning according to the Appellants, that the Lower Tribunal did not at all consider facts and documents pleaded in paragraphs 41 – 65 of the Petition. They therefore contended that the Tribunal failed to properly appraise or evaluate the oral and documentary evidence before it. The three Respondents contended the contrary. They are at one that the Lower Tribunal adequately
30 considered the case of the Petitioner alongside Respondents defences and came to the right conclusion.
Now on page 2904 Vol. 3 of the record the learned Lower Tribunal said:
?”From paragraphs 10-39 the petitioners stated that elections in some Wards and Polling Units were marred by irregularities, non-compliance, financial inducement, harassment and intimidation of voters, over voting, abuse of office by 1st Respondent, procurement of fake and unlawful result, improper accreditation, manipulation of voters Register, non use of card reader machine and abduction of collation officers. By paragraph 39 the Petitioners pleaded various Election Forms and materials in support of pleadings.
By paragraph 40 of the petition, the petitioners herein prayed as follows:
(1)
(2)
(3)
(4)
OR ALTERNATIVELY An Order nullifying the Benue South Senatorial District Election held on 28th March, 2015 and ordering for fresh election.”
And further in its Judgment on page 2981 Vol. III of the record the following appears viz:
?”Now to answer the question whether the pleadings in the instant petition are severable, recourse must be had to the Petition.
I have had a Cursory look at the 39 paragraphs
31
averments of the petition I observed that paragraphs 1-9 contain introduction of the parties and the event of the remaining thirty paragraphs, nine of them viz paragraphs 13, 14, 15, 16, 21, 29, 32, 33, 34 contain Criminal allegations while the other twenty-one paragraphs are mainly civil.”
It is glaringly evident that the Lower Tribunal gravely mixed up the pleadings of the Appellants and under a misapprehension when it stated that the Appellants Petition consisted of 40 paragraphs and severely limited the pleading of the Appellants to consideration of only 40 paragraphs out of the 66 Paragraph Petition which in Law must be read and treated as a whole and oral and documentary evidence on them considered. This no doubt is grave error on the part of the Lower Tribunal which error truncated the pleaded case of the Appellants. It is trite law that parties as well as the Court are bound by the pleadings of the party. The Court or Tribunal Court cannot deviate from the pleaded case of a party. The Court has no jurisdiction or power to abridge the pleadings of parties. In effect the Tribunal shut or closed its eyes to facts pleaded in paragraphs 41 – 66 of the
?32
Petition. It thus means that the Lower Tribunal operated and conducted the trial and by extension gave its Judgment based on the false or erroneous impression that the Appellants petition contained 40 paragraphs.
It is a strange failure on the part of the Tribunal to appreciate fully the case of the Appellants as laid out in their pleadings. Just as parties cannot veer out of their pleadings the court or Tribunal is also bound to keep within the precincts of the pleadings of the parties before it and must at all times in the proceedings and its judgment be conscious of pleadings and evidence led in the matter.
The Appellants stated that the PW17 gave evidence and tendered exhibits LGA PC04, LGA PC01, LGA PC03, LGA PC03, LGA PC05 and LGA PC06 without objections from Respondents all showing that collation of votes in respect of seven (7) out of nine (9) Local Governments making up the Senatorial District was ongoing as at 29/3/2015 whereas the 3rd Respondent returned the 1st Respondent as winner of the election on 28/3/15. That the Lower Tribunal failed to make any findings on this aspect of Appellants case. The three Respondents justified the Tribunal position
?33
and submitted that the witnesses called by Appellants including PW17 (1st Appellant) were not the makers of the documents and were not at the collation centres.
The Appellants as petitioners pleaded in paragraphs 60, 61, 62 and 63 of their petition as follows:
“60. Your petitioners aver that though the Benue South Senatorial Election like all other National Assembly Elections was held on the 28th March, 2015 in Benue South Senatorial District compilation and collation of results from polling units wards and Local Government that makes up Benue South were still ongoing till 29th to 30th March, 2015.
61 . Your petitioner asserts that while compilation and collation of results as described above were still going on and taking place in many polling units and in 28th Local Governments, the 3rd Respondent had as at 28th awarded certain scores and on that basis declared and returned the 1st Respondent as the winner of the said election.
62. Your Petitioner will contend that the results from some polling units wards and Local Governments were allocated and or allocated to the 1st Respondent just to make up the votes already allocated to the 1st Respondent on 28th March,
?34
2015 while collation and computation of results was still going on.
63. Your petitioner will contend that the votes/scores of the 1st Respondent and upon which he was declared and returned as the winner of this election were fictions, fake concocted, premeditated and ought to be cancelled.”
The Appellants listed the documents exhibits LGA series among other on pages 190 of the record. The 3rd Respondent listed the same Forms EC8A(1), EC8CB, EC8C(1), IJC8D(1), EC8E(1), FORMS 49G series and voters register used for the conduct of the Election. It frontloaded FORM EC8D(1) and adapted FORM EC8E(1) meant for the House of Representative Election for use in the Senatorial Election under consideration wherein collated results and declaration of result was made. The Respondents denied the averments in paragraphs 60-63 of the petition but all agreed that the return of the 1st Respondent was made on 28/3/2015 as winner of the election.
?It is here relevant to mention that all the documents tendered and marked Exhibits LGA PC01 – LGA PC09 were all frontloaded by the 1st Respondent also on pages 1996 – 1998 and pages 2001 – 2004 vol. 2 of the record. They were frontloaded on
?35 07-07-2015 under the process filed by 1st Respondent’s Learned Counsel titled:
“ADDITIONAL BUT ALREADY PLEADED DOCUMENTARY EXHIBITS TO BE RELIED UPON BY THE 1ST RESPONDENT.”
I have carefully read the judgment of the Lower Tribunal and I cannot find any place in the judgment where any pronouncement or findings were made concerning the facts and allegations contained in paragraphs 60-63 of the Appellants petition, and oral/documentary evidence given thereon No pronouncement was made on them and nothing was specifically said in the said judgment concerning the Exhibits LGA PC series. The Exhibits show that collations or results in the Election were carried out by INEC officials at Local Government levels in the following Seven (7) Local Government on 29/3/15 viz:
1. OBI LGA which shows the signature of collation officer with date put as 29/3/2015 even by the Agents of APC & PDP – EXHIBIT LGA PC 05.
2. OJU LGA signed and dated, 29/03/2015 by collation officer and PDP and APC Agents- EXHIBIT LGA PC 01.
3. OKPOKWU LGA signed and dated 29/3/2015 by collation officer and partly Agent that signed- EXHIBIT LGA PC 09.
?4. AGATU LGA signed and dated 29/03/2015 by collation
?36
officer, PDP and APC Agents – EXHIBIT LGA PC 04.
5. APA LGA signed and dated 29/3/2015 by collation officer, APC and PDP Agents.
6. ADO LGA signed and dated 29/3/2015 by the collation officer.
7. OGBADIBO LGA signed and dated 29/3/2015 by collation officer APC and PDP EXHIBIT LGA PC 02.
Summary of results from Local Government Areas tendered as EXHIBIT BSPD01 by PW17, 1st Appellant shows that the collation officer Prof. L.O. TIAMIYU who doubled as Returning Officer signed and dated it 28/03/15. PDP Agent also dated it 28/03/15 in front of his name but APC Agent dated it as 30/3/15 in front of his name. The declaration of result of the election in Form EC8E(1) adapted from 2015 House of Representative Election Form EEC8E(1) was signed and declared by Returning Officer Pro. Lateef Oloyede Tiamiyu and it returned the 1st Respondent on 28/03/2015. See pages 2005 and 2006 of the record Vol. II. All the Respondents admitted that the 1st Respondent was declared winner of the election on 28/3/2015.
It is appalling that at the trial the three Respondents failed to tender the documents herein mentioned though front loaded by them yet they are contending that Exhibits LGA
?37 PC01 – LGA PC09 tendered by Appellants which were certified true copies handed or given to the Appellants by 3rd Respondent INEC are documentary hearsay. With considerable respect to them I think it is outlandish. The Lower Tribunal failed in its duty to consider and evaluate Exhibits LGA PC01-LGA PC09 having regard to facts pleaded in paragraphs 60 – 64 of the record.
The evidence of collation done by INEC Officials at the seven (7) identified Local Governments on 29-3-2015 has monumentally rubbished and dented irreparably the integrity of the Declaration of Result and purported return made by INEC Returning Officer for BENUE SOUTH SENATORIAL DISTRICT on 28/3/15 while collation of results were still ongoing in the affected seven Local Government Governments enumerated on 29-3-2015.
?Exhibits LGAPC 01, LGAPC 03, LGAPC 06, LGAPC 02, LGAPC 09, LGAPC 05, which relate to collation as ongoing on 29/3/15 drastically belied and belittle the correctness, authenticity and regularity of the Return. Those Exhibits supported the case of Appellants that collation for the nine Local Government making up BENUE SOUTH Senatorial District had not been concluded or completed when
?38
the Returning Officer purportedly returned the 1st Respondent on 28/3/2015.
The findings of the Tribunals complained of can be found on pages 2991 – 2992 of the record which reads;
“It is trite that documents are to be tendered through their maker. See Section 83(1)(a)(i) (ii) and (b) of the Evidence Act 2011 . The proviso in Section 83(1)(b) of the Evidence Act cannot be used as on excuse by any petitioner with the burden of proving this petition, for not calling all necessary witnesses except when the attendance of the witness cannot reasonably or practically be secured. The petitioner should however plead such impracticability before the Tribunal. See Okereaffia v. Agwu & Ors (2012) 1 NWLR (PT.1282) 425 at 449 and 452, Olatunji v. Waheed (2012) 7 NWLR (PT 1298) 24 at 47. It is also trite that evidence on the contents of documents or circumstances under which such documents were made by a person who was not their maker or present when the documents were made will be hearsay. See Abdumalik & Anor v. Tijani & Ors . (2012) LPELR- 19731 (CA) at page 17, Osigwedem v. INEC (2010) LPELR (………..).The petitioners tendered bags of documents in proof of
39 this petition through PW8 and PW19. – INEC officials PW17 – 1st petitioner and PW18 – data analyst, none of who was either the maker or privy to the making of the documents. The documents are documentary hearsay. I am enjoined not to attach any probative value to them. See Lambert v. Nigerian Navy (2007) 14 WRN 136 at 189, Agi v. Access Bank Plc (2014) 9 NWLR (PT 1411) 121 at 156. Also documents were tendered without linking them to the petitioner’s case.”
The above findings are potently erroneous and have no support in law. It is the law that where there is complaint that documentary evidence was not properly utilized or adverted to by the trial court the Appellate court can evaluate it and see if the failure of the trial court to use the documents has any adverse effect on the Appellant’s case. See CHIEF NYA EDIM EKONG v. CHIEF ASUQUO E. OTOP & ORS. (2014) 11 NWLR (PART 1419) 549 at 573 F – H per OKORO, JSC who said:”
It is trite that documents tendered before a Court at the trial of a case is part and parcel of the evidence to be considered in the determination of issues before the Court. Such documents usually referred to as exhibits are subject to
40
scrutiny and to be tested for credibility and weight by the trial Court where the trial Court fails to examine documents tendered before it, an appellate court is in a good position to evaluate such exhibits. See Ayeni v. Dada (1978) 3 SC 35; Bamgboye v. Olanrewaju (1991) 22 NSCC (PT.1) 501. (1991) 4 NWLR (PT.184) 132. I think since Exhibit ‘C’ was tendered before the trial court and was part of the Record of Appeal before the court below, the Justices of that Court were eminently qualified to draw such inferences as they found fit and proper so to do.”
(2) U.T.C. NIGERIA PLC v. ALHAJI ABDULWAHAB LAWAL (2014) 5 NWLR (PART 1400) 221 at 238 E – F per MUNTAKA-COMMASSIE, JSC who said:
“the Court below rightly held that “where the evidence to be appraised are documentary evidence, because the exercise does not hinge on the credibility of witnesses and assessed only by trial Court the Appeal Court would lawfully interfere to re-appraise the relevance evidence with a view to checking the injustice, the perverse decision of the trial Court would have caused the Appellant.”
It is erroneous for the trial Tribunal to make a generalized statement that documents are to be
41
tendered through their makers only or that they are documentary evidence. The documents particularly Exhibits LGA PC01 – LGA PC09 are public documents and upon admission are evidence of what are therein contained. The pre-requisite for admissibility of documentary evidence in civil proceedings is that it must not only be pleaded, it must also be relevant to render such document admissible by a court or Tribunal.
See OKONKWO ONKONJI & ORS v. GEORGE NJOKANMA & ORS (1999) 14 NWLR (PART 638) 250 at 266 D – E where Supreme Court per ACHIKE, JSC laid down three main criterion for admissibility of documents in civil proceedings thus:
“The position of the law in relation to the question of admissibility of a document in evidence is that admissibility is one thing while the probative value that may be placed thereon is another. Generally, three main criteria govern the admissibility of a document in evidence, namely:-
1. Is the document pleaded?
2. Is it relevant to the inquiry being tried by the court? And
(3) Is it admissible in law? See DUNIYA v. JIMOH (1994) 3 NWLR (PT.334) 609 AT 617 and OBA R.A.A. OYEDIRAN OF IGBONLA v. H.R.H. OBA ALEBIOSU II & ORS
?42
(1992) 6 NWLR (PT 249) 550 AT 559.
Documentary evidence can be admitted in evidence in case of a public document through any witness and from the Bar and even a private document by consent of the parties without the presence of the makers of the document. In any event documents like LGA PC 01 – LGA PC 09 can also be tendered from the Bar by learned counsel to the petitioners. Those documents having been properly certified in accordance with Sections 102 and 104 of the Evidence Act 2011 because they enjoy presumption of correctness, authenticity and regularity accorded to them in Sections 105 , 146 and 167(1) of the Evidence Act, 2011. See the case of HON. MIKE BALONWU & ORS. v. MR. PETER OBI & ORS (2007) 5 NWLR (PAPT 1028) 488 at 535 F – H to 536A where BADA JCA who read the leading judgment (which was supported by the other four Justices of Court of Appeal ) relying on the Election petition case of Daggash v. Bulama said:
“It is my view that the learned trial Judge correctly approached the issues of admissibility of certified true copy of the public documents pleaded in the originating summons and came to a correct conclusion that they were admissible.
43
This is so because the said documents were duly pleaded in the amended originating summons and/or the facts relating to them were duly pleaded. They were also relevant to the issues in controversy. They were public documents duly certified in accordance with the provisions of Section 111 of the Evidence Act . That being so, they did not need to be brought in through an affidavit the said documents are admissible in law upon their mere production. See Daggash v. Bulama (2004) 14 NWLR (PT. 892) pages 44 at 161-162 ratio 15 where it was held inter alia:
Once a public document is certified and signed as required by Section 112 of the Evidence Act , such document is admissible on its mere production and it is unnecessary to prove custody or verify it. It is unnecessary to call the public officer who certified it and it may even be tendered from the Bar.”
Similar position was taken in the case of OLUFUNKE IBIDUN AGAGU v. SULE DAWODU (1990) 7 NWLR (PART 160) 56 at 69 where Ogwuegbu J.C.A. (later JSC) said:
“The said Exhibit “A” qualified as secondary evidence under Section 96(1)(e) of the Evidence Act , Section 110 of the said Act did not make any provision as to who should
44 give evidence or tender the certified copy of the document in a court proceedings. Once Exhibit “A” (A public document) was signed and certified as required by Section 110 of the Evidence Act it becomes admissible on its mere production. It is not necessity to call a witness to prove proper custody or to verify the document.”
I am also fortified by the case of Simeon Olusoji Kuforiji & Anor v. V.Y.B. Nigeria Ltd (1981) 6-7 SC 40 at 80 – 81 where Obaseki JSC said:
“The question of admissibility of the marriage certificate raised by the Appellant has no merit whatsoever. It is admissible under Section 116 of the Evidence Law of Lagos State. It also erroneous also to contend that because it came from the custody of counsel at the Bar it did not come from proper custody. It was also erroneous to contend that counsel could not produce the marriage certificate which was in his possession from the bar. The case of Isibor v. The State (1970) 1 ALL NLR 248 approved by this court recently in the case of Ogbunyiya v. Obi Obando & Ors (1979) 6 – 9 SC 32 settled that:
?In Ogbuyinya’s case, Idigbe JSC (deriving the judgment of the Court) said at pages 42 and 43:
?45
“Finally, this court, in the criminal case of Vincent Isibor v. The State (1970) 1 ALL NLR 248 was of the view that the Learned trial Judge in the court below erred in law in refusing to admit the deposition of a witness duly signed by the magistrate when Learned Counsel to the accused sought to tender same from the bar insisting that it could only be proved in evidence through a witness on oath. It follows from the foregoing that in our view, the Lordships of the Court of Appeal erred in law when they held, in effect, that the mere production of the official gazette of 6th October, 1977 (thereafter referred to as “the October gazette”) without more did not constitute evidence of Government Notice No. 1258 therein contained.”
Exhibits LGA PC01 – LGA PC09 and BSPD 01 cannot be dubbed documentary hearsay being public documents made and produced by 3rd Respondents collation officers/officials of INEC who are public officers. Those documents including their contents enjoy presumption of authenticity and regularity. See Sections 104 and 105 of the Evidence Act 2011 which provide thus:
“104(1) Every public officer having the custody of a public document which any
?46
person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.
(2) The certificate mentioned in subsection (1) of this section shall be dated and subscribed by such officer with his name and his official title and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
(3) An officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.
105. Copies of documents certified in accordance with Section 104 may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.” (Underline mine).
The Appellants PW17 testified that the documents including Exhibits LGA PC01 – OGA PC09 which established that collations were still being done and had not been concluded or completed by INEC officials in
?47
seven Local Government Headquarters on 29/3/2015, are certified true copies which documents INEC gave the PW17 (1st Appellant) upon payments made for the certified true copies. The receipt for payment was also tendered in evidence as Exhibit.
Procedure has also been made in the First Schedule to the Electoral Act Paragraph 41 thereof that documents which the parties consented to at the pre-hearing session or other exhibits shall be tendered from the bar or by the party where he is not represented by a Legal Practitioner. Paragraph 41 (3) forbids oral evidence-in-examination-in-chief except to tender documents. A petitioner is only enjoined to adopt his witness statement on oath and tender documents.
Thus by Paragraph 4(5) of the First Schedule to the Electoral Act 2010 as amended an Election petition shall be accompanied by
(a) A list of the witnesses that the Petitioner intends to call in proof of the Petition.
(b) Written statements on oath of the witnesses and
(c) Copies or list of every document to be relied on at the hearing of the Petition.
All these are designed to ensure smooth and expeditious hearing of a petition. Thus a party is expected to prove facts
?48 pleaded in his or her petition or Reply to the Petition and or pleadings coupled with witness statement on oath or deposition. The Witness/Deponent enters the witness box, sworn to testify and then under Examination-in Chief, adopts his deposition or witness statement on oath which is an embodiment of facts pleaded in the Petition or Replies of the person concerned. The witness must testify, as in this case, on Oath. Upon the adoption of the witness statement on oath or his deposition, all that is contained in the said witness statement on oath or deposition becomes the evidence of the said witness before the Court or Tribunal hearing the Petition. If there are documents to be tendered which documents must have been pleaded or could be accommodated vide pleaded facts in the petition or Replies, such documents will be tendered subject to conditions for admissibility provided in the Evidence Act or other relevant enactments.
The witness will then be handed over to his adversary for cross examination on his adopted evidence and documents tendered if any.
SEE: DR. OLUSEGUN AGAGU v. RAHMAN OLUSEGUN MIMIKO & ORS (2009) 7 NWLR (PART 1140) 34 AT 42 A – E TO 43 A EPR
?49
ABDULLAHI, PCA (RTD) who said:
“The contention of the Learned Senior Counsel for the Appellant that no modicum of oral evidence in Chief was produced on the documents is erroneous. The provisions of the Election Tribunal and Court Practice Direction dispensed of Oral evidence-in-Chief. The witnesses are to enshrine their evidence-in-Chief in deposition which will be adopted at the trial by the deponents who will then be cross-examined and be re-examined. See Paragraph 4(1) and (3) of the Practice Direction which provides as follows:
“4(1) Subject to any Statutory Provisions or any provisions of these paragraphs relating to evidence any fact required to be proved at the hearing of a petition shall be proved by written deposition and oral examination of witnesses…
(3) There shall be no oral examination of a witness during his examination-in-Chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the deposition.”
It is clear from the foregoing provisions of the Election Tribunal and Court Practice Direction, that facts are receivable in evidence by witness statement and VIVA
?50VOCE examination of the witness. After leading a witness to adopt his statement, he can then be cross examined and reexamined VIVA VOCE.”
?All the documents, that is Exhibits LGA PCO – LGA PC09 and Exhibit BSPD01, met the conditions of admissibility under the Evidence Act 2011.
Upon the testimony of the 1st Appellant as PW17 all facts contained therein in his Witness Statement on Oath and the 66 paragraph petition become his oral evidence before the Tribunal. The Respondents having failed to object to the documents and his oral testimonies cannot turn round now to say the documents tendered specifically as to collation are documentary hearsay.
They are not. The facts contained in them, have been established upon tendering at the Lower Tribunal. The same is true of Exhibit BSPD01 collated by the Returning officer.
See: (1) ALHAJI SAFIANU & ORS v. ISIAKA HASSAN (2014) 5 NWLR (PART 1400) 287 AT 322 B – E PER ODILI, JSC.
(2) NSITF v. KLIFCO NIG. LTD (2010) 8 SCM 212 AT 227 E – F PER CHUKWUMA-ENEH, JSC.
Apart from few questions asked the 1st Appellant on polling units documents no cross examination was exerted on the PW 17 on the oral and documentary evidence given on
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non compliance by the 3rd Respondent with the Electoral Act before declaring the 1st Respondent as the winner of the Election on 28/3/15 while collation of results were ongoing. The Lower Tribunal was duty bound to evaluate the oral and documentary evidence led by the Appellants concerning collation of results on 29th day of March, 2015 having regard to 3rd Respondents admission that it declared 1st Respondent on 28/3/2015 yet the same 3rd Respondent produced evidence of collation in seven (7) LGA in the Senatorial District on 29/3/15 a day after declaring 1st Respondent..
Exhibits LGA PC01 – LGA PC09 ought to have been used as hangers to assess the truth or otherwise of the allegations of Appellants concerning the collation aforesaid, the said documents should have been used to accord weight and credibility to Appellants evidence on paragraphs 60 – 64 of the petition. See:
(1) GOYANG KAYILI v. ESLY YILBUK & ORS (2015) 7 NWLR (PART 1457) 26 at 69 B – G per OGUNBIYI, JSC.
(2) MRS LOIS CHITURU UKEJE & ANOR v. MRS GLADY’S ADA UKEJI (2014) 7 SCM 148 at 160 1 to 161 A – E per BODE RHODES VIVOUR, JSC who said:
“The section referred to by the Court of Appeal is
?52Section 114(1) of the Evidence Act which states that:
“The Court shall presume every document purporting to be a certificate, certified copy or other document, which is by the law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer in Nigeria who is duly authorized thereto to be genuine, provided that such document is substantially in the Form and purports to be executed in the manner directed by law in that behalf .”
“Under this subsection the court will presume a document to be authentic if the contents on the face of the said document were properly done and the document is properly executed by the authorized Government Official. I must say that a birth certificate is conclusive proof that the person named therein was born on the date stated, and the parents are those spelt out in the document. Once the authorized Government Official appends his signature and stamp on the document and such authentication is not contested by the adverse party the presumption of regularity will be ascribed to it.
It has not been disputed that the respondent was born in Lagos on the 5th of July, 1952 and her birth
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was registered in Lagos in August 1952. Her parents are L. O. Ukeje (deceased) and PW2. Since the appellants’ did not rebut the presumption of regularity the finding of fact by the trial court remains unassailable. L. O. Ukeje (deceased) is the biological father of the respondent. Exhibit H is authentic, it is genuine. The Court of Appeal drew the right conclusion in respect of Exhibit H”. (Underlined mine)
The Respondents cannot be heard to say Exhibits LGA PC 01 – LGA PC 09 are not authentic, correct or regular. It would have been an antithesis, for 3rd Respondent (INEC) to have opposed the admissibility and efficacy of those documents. It is also apposite to mention that during the pretrial conference held on 22/7/15 pages 2752 to 2753 the Learned Counsel to the 3rd Respondent MRS. MAMSMA told the Tribunal that:
“3rd Respondent intends to call three witnesses and rely on the documents to be tendered by the Petitioners”
3rd Respondent cannot debase those documents. The 3rd Respondent did not call any witness of the trial and there is nothing to show that PW17 was cross examined by INEC from the record. The 3rd Respondent is bound by all the pieces of evidence oral
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and documentary given concerning paragraphs 60 – 65 of the petition and Exhibits LGA PC01 to LGA PC09 which the 3rd Respondent commendably told the court came from their custody and which INEC said it relied upon.
The onslaught of the Respondents against those documents is belated and cannot whittle down the efficacy of those documents moreso that they did not object to their admissibility. They did not also contest their correctness and authenticity. The Respondents have waived their rights to complain against those Exhibits see: CHIEF BRUNA ETIM & ORS v. CHIEF OKON UDO EKPE & ANOR (1983) NSCC 86 at 95 – 96 per ANIAGOLU, JSC who said:
“Turning now to the Exhibits (4, 6, to 10) which were not objected to, all of them previous proceedings and leases. It is something perplexing to see how Counsel could turn round on appeal (before the Court of Appeal) to complain about the admissibility of a document to which he did not object when it was tendered in the court below in the course of trial.
It is a cardinal rule of evidence, and of practice, in civil as well as in criminal cases that an objection to the admissibility of a document sought by a party to be
55
put in evidence is taken when the document is offered in evidence. Barring some exceptions where by law certain documents are rendered inadmissible (consent or no consent of the parties notwithstanding) for failing to satisfy some conditions or to meet some criteria the rule still remains inviolate that where objection has not been raised by the opposing party to the reception in evidence of a document (or other evidence see: Chukwura Akunne v. Mathias Ekwuna (1952) 14 WACA 59), the document will be admitted in evidence and the opposing party cannot afterwards be heard to complain about its admission (See: Alade v. Oluade (1976) 2 SC 183 at 188-9: for criminal trials – R. v. Hammond (1941) 3 All ER 318: P. v. Patel (1951) 2 All ER 29).”
The Appellants established and proved before the Lower Court that collation of results were still ongoing in seven of the nine Local Governments making up the Benue South Senatorial District on 29/3/15 even though INEC had returned the 1st Respondent on 28/3/2015 in breach of the clear provisions of Sections 73 and 74 of the Electoral Act and the manual of Election for INEC officials 2015.
It is settled Law that
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where an adversary fails to call evidence in support of his pleading the onus on the Plaintiff naturally discharged on minimal proof. The Appellants have discharged the onus on them.
See (1) A. S. AJIDAHUN v. MRS. D. O. AJIBAHUN (2000) 4 NWLR (Part 653) 605 per GALADIMA, JSC now JSC.
?(2) ANNA v. UBA PLC. (1992) 4 NWLR (PART 498) 181 at 189.
Issues 1 and 3 are hereby resolved in favour of the Appellants against the Respondents.
ISSUE 2
The Learned Counsel to the Appellants referred to pages 2965 and 2982 of the record where the Lower Tribunal held that the Appellants Motion on Notice for severance of pleadings was belated and would amount to amendments of pleadings.
That the Lower Court was wrong in refusing the application. He conceded that Appellants were under a duty to justify the lateness in bringing their motion. He stated that such application could only be made outside the pre-trial and close of trial. He relied on the case of OMOBORIOWO v. AJASIN (2003) 50 WRN 132. The Appellants submitted that by the very nature of the application all they need to do was to seek leave to move it once pretrial had closed and this Appellants deposed to in paragraph 9 of
?57 their Affidavit in support. That Paragraph 43(1) and (2) of the First Schedule to the Electoral Act 2010 as amended gave the Tribunal the power to enlarge time with or without showing extreme circumstances.
That seeking severance of Appellants petition cannot prejudice the Respondents. That once severance of pleadings is granted the pleadings severed will be deemed abandoned. That the Lower Tribunal having made correct and valid findings of fact that Appellant’s petition contained more of civil allegations it was a misconception for it to have dismissed the Appellant’s motion as according to him the timing of the Appellants motion was of no moment. That in the case of GUNDIRI v. NYAKO (2014) 2 NWLR (PT 1391) 285 the Supreme Court held that there must be a formal application to seek leave to severe pleadings. That the Tribunal ought to have granted the application having found the pleading severable.
In his reaction the Learned Counsel to the 1st Respondent submitted that the Appellants ought to have shown extreme circumstances in the affidavit accompanying the application. That the application was belatedly filed after exchange of final address on the
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substantive petition.
That to allow the application would mean allowing the Appellants to make substantial alteration or addition to the statement of facts in the petition after the 21 days permitted for presentation of petition. That the granting of the application would over reach the Respondent. He relied on the case of BRAWAL SHIPPING (NIG) LTD v. OMETRACO INTERNATIONAL LTD (2011) LPELR – 9238 (CA) that the Lower Tribunal was right in rejecting the application.
In his own argument the Learned Counsel to the 2nd Respondent stated the Lower Tribunal cannot be faulted in dismissing the application. That the ground for the application did not disclose extreme circumstances. That the application constitutes abuse of court’s process.
The 3rd Respondent on its part argued that the application to sever the Appellants’ pleadings was brought in bad faith. The Learned Counsel to the 3rd Respondent relied on the case of GUNDIRI v. NYAKO (2014) 2 NWLR (Pt.1391) 211. He urged the Court to uphold the Lower Tribunal’s ruling or decision.
In the template or realm of pleadings in civil action is the doctrine of severance. It is a situation where pleadings of a party and most
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times the Plaintiff or a Petitioner in ordinary civil or an election matters makes of allegations of crimes and civil allegations in the pleading against Defendants or Respondents and their agents. The Plaintiff or the Petitioner in such a situation is entitled to abandon the paragraphs or parts of his pleadings containing allegations of crimes which must be proved beyond reasonable doubt, in order to make do with the rest of his pleadings containing civil allegations that can be proved on balance of probability, if the paragraphs alleging crimes are divorced from the pleading or Petition, there still remains in the remnant of the pleading or Petition facts which if proved can still sustain the Plaintiff or Petitioners Case. See CHIEF AKIN OMOBORIOWO & ORS v. CHIEF MICHAEL AJASIN (2007) 3 EPR 488 at 500 G – H to 501 A- B per BELLO JSC later CJN of blessed memory.
The eminent jurist had in the case of CHIEF JIM NOWBODO v. CHIEF C. C. ONOH & ORS (2007) 3 EPR 180 at 220 G – H to 221 A – D explained the doctrine of severance lucidly in the following captivating words:
“However, the provisions of Section 137(1) are subject to the principle of severance of
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pleadings which may be stated thus: If in any civil proceeding the averments alleging a crime are severable and if after such severance there still remain in the pleadings of the plaintiff or the petitioner sufficient averments devoid of the criminal imputation against any party to the proceeding and on which the plaintiff or the petitioner can succeed in his claim or petition, then the burden of proof upon the plaintiff or petitioner is to prove his case within the balance of probability.”
?The Appellants had by their Motion on Notice dated 7th day of September, 2015 and filed on 8/9/15 approached the Lower Tribunal at the tail end of the proceedings for the order of the Lower Tribunal severing the sections relating to criminal allegations from the material civil allegations of the pleadings filed by the Petitioners particularly with respect to paragraphs 14, 15, 32, 34 and other affected paragraphs of the said Petition.
The Lower Tribunal dealt with the said application from page 2965 of the record. On page 2981 the Lower Tribunal said:
“I have had a cursory look at the 39 paragraphs averments of the Petition I observed that paragraphs 1 – 9 contain introduction
?61 of parties the event, of the remaining thirty paragraphs, nine of them viz paragraphs 13, 14, 15, 16, 21, 29, 32, 33 and 34 contain Criminal Allegations while the other twenty-one paragraphs are mainly Civil. In the circumstance, it seems to me that the pleadings are severable.”
Thereafter the Lower Tribunal on page 1982 contradicted the above finding on the application to sever the pleadings when it said:
“This application seems to me to be an attempt to correct anomalies in the case of the Petitioners, thus amending the pleadings to bring it in line with the evidence led.”
The application was thus refused. With profound respect to the learned Lower Tribunal, the latter finding is a direct vacation of the earlier finding that the pleadings are severable. The Lower Tribunal cannot be allowed to blow hot and cold at the same time. It is a misconception to equate doctrine of severance with amendment of pleadings in an Election Petition. What the Appellants sought to do by their Motion cannot by any stretch of imagination be amendment forbidden by Paragraph 14(2)(a) of the 1st Schedule to the Electoral Act 2010 as amended. The application falls within the penumbra
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of doctrine of severance of pleadings.
?The dismissal of the application ought to be set aside and I hereby set it aside. In its stead the application is hereby granted. Paragraphs 13, 14, 15, 16, 21, 29, 32, 33, 34 of the Appellants Petition which the Lower Court earlier found to contain Criminal Allegations on page 2981 of the record are hereby severed from the Appellants Petition and are deemed abandoned.
?Issue 2 is hereby resolved in favour of the Appellants.
ISSUE 4
The Appellants learned Counsel drew attention to holding of the Lower Tribunal that the Appellants did not proof their case of non compliance on the balance of probability and submitted that the finding did not reflect the true understanding of the Appellants Case viz-a-vis Respondents total failure to lead any shred of evidence and the weight of Appellants oral and documentary evidence as it relate to the Appellants pleading. That the 1st Appellant gave evidence of non compliance and irregularity. That the burden of proof on the Appellant is on balance of probability. That the Appellants were not obliged to tender incident forms. That PW17 called evidence and also tendered Forms EC8A(1) EC8B(1)
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EC8C(1) and EC8D(1) that were used in the election and available. Appellants repeated their arguments concerning collation as they did under issues 1 and 3 particularly Exhibits LGA PC 01 – LGA PC 09. Appellants submitted that it is settled that election is a process and collation of votes from Polling Units to wards and to Local Government Area constitute essential part of that process without which no results can be declared or return made therein.
That the evidence of ten witnesses called by the 1st Respondent and other witness called by the 2nd Respondent were discredited and that there was no attempt by the 1st and 2nd Respondents to defend the Appellants Petition particularly against the documentary evidence tendered by Appellants. That the 3rd Respondent did not call any evidence nor tender any Exhibit in defence of the Petition. That failure of 1st and 2nd Respondents to lead evidence in respect of their pleadings mean they did not give evidence in defence of the Petition.
He submitted that Election Petition is sui generis and its trial regulated. He relied on paragraph 41 (1), (2), (3) to submit that even though 1st Respondent filed his written
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deposition along his response to the Petition, he deliberately or otherwise refused to adopt his Written Statement in accordance with Paragraph 41 of the 1st Schedule to the Electoral Act 2010 as amended. To the Appellants Counsel the inevitable implication of that failure to adopt (1st Respondent) his deposition is that he had abandoned his opposition to the Petition and it constituted admission of Petitioners Claim.
On whether the Appellant has not proved non compliance to nullify the Election, Appellants learned Counsel submitted that what is substantial enough to affect the outcome of an Election varies from each case to another. He relied on the case of:
(1) ROMANUS & ORS v. ANTHONY EZEUGWU (1992) 4 NWLR (PT.236) 462 at 474 AKINTAN JCA.
(2) FAYEMI v. ONI (supra).
(3) CPC v. INEC.
On the effect of declaring results and returning 1st Respondent on 28/3/15 while according to him collation was still ongoing in seven Local Government and lack or failure of collation of various level, the learned Counsel to the Appellants stated that the importance of substantiality of collation of votes of all levels during the process of on election is important as according
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to him the effect of failure of collation at every critical level before declaring result and returning candidate as winner is that such election will be deemed inconclusive and inchoate. He relied on the case of MARK v. ABUBAKAR (2009) 2 NWLR (PT.1124) 79 at 189 A-C.
That by the stance of 1st Respondent that collation ended on 28/3/15 and that 1st Respondent was declared on 28/3/15 when the results or votes in seven Local Governments of AGATU, OBI, OKPOKWU, APA, ADO, OGBADIBO and OJU were proved to be collated on 29/3/15 cannot be part of the votes upon which the 1st Respondent was returned. He urged the Court to resolve Issue 4 in favour of the Appellants.
In his reply to the submissions on Issue 4, the learned Counsel to the 1st Respondent submitted that there was no evidence from witness to demonstrate the contents of Form. EC8B(1) by admissible evidence in respect of the 39 Polling Units complained about on pages 17 – 18 of Appellants Brief. That address of learned counsel cannot be a substitute for the evidence that was not led. That no improper or invalid accreditation was proved by the Petitioners.
That issue Four is an attempt to resile from the
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pleaded case of the Appellants into deceiving the Court that the general burden of proof in Election Petition rests on Respondents. That the case of the Appellant was not that Election were not held. That by virtue of Sections 131 and 132 of the Evidence Act 2011, the burden is squarely on the Appellants to proof their Petition in respect of all the Polling Units and Local Government complained of.
The Reply of the learned Counsel to the 2nd Respondents arguments is along the same line with the 1st Respondent’s learned Counsel. On the question of allegation of non compliance the learned Counsel submitted the Appellants have heavy burden to discharge or establish same. That the Appellants total evidence fell for short of proving that the 1st Respondent was not duly elected by majority of Lawful votes as the evidence adduced lacked probative value being hearsay evidence or documentary hearsay evidence.
That the 19 witnesses called by Petitioners are inadequate to prove the purported allegations of malpractice, non compliance and other criminal offences as alleged to have been committed in 700 Polling Units. That all the allegations have criminal connotations and
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as such the standard of proof is beyond reasonable doubt.
The learned Counsel to the 3rd Respondent took the same position as learned Counsel to the 1st and 2nd Respondents and submitted that the Appellants did not proof any non compliance as according to him the evidence of the Appellants lacks credibility and evidential value. He relied also on the case of GUNDIRI v. NYAKO & ORS (2014) 2 NWLR (PART 1391) 211 at 246 C – H.
The Law is settled that the initial onus of proof in an election proceedings is on the Petitioner. The Petitioner must introduce and give oral and documentary evidence capable of being believed by the Court or Tribunal before Onus will shift to the Defendants or Respondents to disprove or dislodge the claims of the Petitioner. Therefore depending on the preponderance of evidence each side has duty to prove the facts pleaded or asserted. See the case of ALIYU BALOGUN v. ALHAJI SHITTU LABIRAN (1988) 3 NWLR (PART 80) 66 at 84 A per OPUTA, JSC of blessed memory who had this to say:
“Also when pleadings have been filed the onus is on the Plaintiff to prove the averments in his Statement of Claim and on the Defendant to prove what he averred in
?
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his Statement of Defence. Proof by preponderance of evidence simply means that the evidence adduced by the plaintiff should be put on one side of the imaginary scale mentioned in Odofin & Ors v. Mogaji & Ors (1978) 1 LRN 212 and the evidence adduced by the Defendant put on the other side of the scale and weighed together to see which side preponderates.”
There is added burden on the Petitioner in Election petition Litigation because of the settled position of Law in Election Matters that where the result of an election had been announced and a Candidate declared winner or elected by a Returning Officer and a Return is made by Electoral body, INEC, there is in Law a presumption of regularity in favour of the return that was made. The onus cast on a Petitioner who denies the correctness or authenticity of the said return is to rebut the presumption of regularity statutorily endowed on such Declaration of result or return.
1. CHIEF JIM NWOBODO v. CHIEF ONOH & ORS (1984) 1 SC 1 at 52-53 per BELLO JSC later CJN of blessed memory.
2. CHIEF AKIN OMOBORIOWO v. CHIEF M. A. AJASIN (1984) I SC 206 at 227 – 228 where BELLO JSC of blessed memory restated the
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position on burden of prove thus:
“Now, as I stated in Nwobodo v. Onoh (supra) there is in law a rebuttable presumption that the result of any election declared by the Returning Officer is correct and authentic by virtue of Sections 115, 148(c) and 149(1) of the Evidence Act and the burden is on the person who denies the correctness and authenticity of the return to rebut the presumption.”
?
The non compliance which the Appellants strongly canvassed is that as of the time the 1st Respondent was declared winner of the Benue South Senatorial District Election on 28/3/2015 Collation of results were still ongoing till 29/3/15. Oral evidence was led in that regard by the PW17 (1st Petitioner/Appellant) and he tendered collated results for the nine Local Governments showing that seven Local Governments Collated results were carried out on 29/3/15.
The INEC Collated results done on 29/3/2015 in respect of the 7 Local Government in dispute are:
1. ADO LOCAL GOVERNMENT – EXHIBIT LGA PC 06
2. AGATU LOCAL GOVERNMENT- EXHIBIT LGA PC 04
3. APA LOCAL GOVERNMENT – EXHIBIT LGA PC 03
4. OBI LOCAL GOVERNMENT- EXHIBIT LGA PC 05
5. OGBADIBO LOCAL GOVERNMENT- EXHIBIT LGA PC 02
6. OJU
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LOCAL GOVERNMENT – EXHIBIT LGA PC 01
7. OKPOKWV LOCAL GOVERNMENT – EXHIBIT LGA PC 09
?The core complaint of the Appellants here is not much about what took place at polling booths or units but whether all conditions precedents and mandatory steps before election results could be declared were followed by INEC and its Returning Officer for Benue South Senatorial Election. Having resolved Issue 2 relating to severance of allegations of crimes contained in the Appellants Petition from civil allegations in their favour, the Appellants have the burden to prove the alleged non compliance and facts pleaded in support thereof, particularly paragraphs 60 – 64 on the balance of probability. The Appellants dwell so much on Exhibits LGA PC 1 – LGA PC 09 as showing that votes were still being collated into those Exhibits in seven Local Governments under Benue South Senatorial District as at 29/3/2015 yet INEC declared the result on 28/3/2015. The Appellants opined that the non compliance with collation process is fatal and consequently vitiated the whole electoral process in the election for BENUE SOUTH SENATORIAL DISTRICT conducted on 28/3/2015.
Now Section 139(1) of the
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Electoral Act 2010 as amended provides as follows:
“139(1) An Election shall not be liable to be invalidated by reason of non compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non compliance did not affect substantially the result of the election.
The Appellants are enjoined to prove not only that there was non compliance with the Electoral Act but it substantially affected the result of the election. They have two hurdles to cross. This they can attain by oral and documentary evidence and by admissions of the Respondents either on the pleadings or other methods permitted by law. See (1) SENATOR IYIOLA OMISORE & ANOR v. OGBENI RAUF AREGBESOLA (2015) 7 SCM 92 at 159 H – I to 160 A per FABIYI, JSC who said:
“It has been consistently reiterated by this court that for a petition to succeed on non-compliance with the provisions of the Electoral Act, the petitioner must prove not only that there was non-compliance with the provision of the Act that same substantially affected the result of the election.
In other words, the
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petitioner has two burdens to prove-
1. That the non-compliance took place.
2. That the non-compliance affected the result of the election.
The decisions in the cases of Buhari v. INEC (2008) 19 NWLR (Pt.1120) 246 at 435, (2008) 12 SCM (Pt.2), 234; Buhari v. Obasanjo (2005) 13 NWLR (Pt.941) 1 at 80; Akinfosile v. Ijose (1960) SCNLR 447; Awolowo v. Shagari (1979) 6-7 SC 51 are directly in point here.”
In the case of BAR. DONATUS ONUIGWE v. DECLAN MABADIWE EMELUMBA & ANOR (2008) 7 NWLR (PART 1092) 311 at 395 E-H to 396 A – B the Court of Appeal per Galadima JCA now JSC said:
“The law is that a petitioner who relied on non-compliance as a ground must Prove essentially corrupt practices in order to succeed. Section 146(1) of the Electoral Act 2006, provides that an election shall not be invalidated by reason of noncompliance with the provisions of the Electoral Act, 2006 if it appears to the Tribunal that the election was conducted in substantial compliance with the provision of the Act. Thus two hurdle bars have been placed before the Petitioner to scale. These are:
1. That the election is not in compliance with the provisions of Electoral Act
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2006.
2. That the non compliance with the provisions of the Electoral Act 2006, substantially affected the result of the Election.
However, a Petitioner can by the admission of the Respondents and the Exhibits tendered in the proceedings prove non compliance with the provisions of Electoral Act 2006 and also show that the non compliance substantially affected the result of the Election. Minor or insignificant breach of the provision of the Act cannot vitiate the Election. See BUHARI v. OBASANJO (2005) 13 NWLR (PART 941) 1. OJUKWU v. ONWUDIWE 1984 18 CNLR 247 at 305-306. Proof of non-compliance with the provisions of the Electoral Act can be by oral and documentary evidence. Where it is established by documentary evidence that the election, subject matter of an election petition is not in compliance with the provisions of the Electoral Act, and that the non-compliance substantially affected the result of the election, that election shall be invalidated by the Tribunal or the Court.”
The steps that must be statutorily taken before a declaration could be made in an election are well spelt and laid out in Sections 73 and 74 of the Electoral Act 2010 as amended
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under step by step recording of poll wherein they stipulate thus;
?”73. Subject to the provisions of this Act, the Commission shall issue and publish in the Gazette, guidelines for the elections which shall make provisions, among other things, for the step by step recording of the poll in the electoral forms as may be prescribed beginning from the polling unit to the last collation centre for the ward or constituency where the result of the election shall be declared.
74. Every Result Form completed at the Ward, Local Government, State and National levels in accordance with the provision of this Act or any Guidelines issued by the Commission shall be stamped, signed and countersigned by the relevant officers and polling agents at those levels and copies given to the police officers and the polling agents, where available.”
The above sections of the Electoral Act 2010 as amended must be read along with the provisions of Paragraphs 39 and 40 of the INEC APPROVED GUIDELINES AND REGULATIONS FOR THE CONDUCT OF 2015 GENERAL ELECTIONS which provide as follows:
“39. The Local Government/Area Council Collation Officer in charge of Senatorial District Election shall:
(a)
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take delivery of the original copies of forms EC 8B(I) from the Registration Area/Ward Collation Officers together with other materials and reports relating to the election including forms EC 40(G) (if any);
(b) collate the results for the Senatorial District Election by entering the votes from forms EC 8B(I) into form EC 8C(I) in words and figures in the space provided;
(c) add up the RA/ward Results to obtain the LGA summary.
(d) cross-check the totals with the Electronic Collation Support Secretarial where available, for computational accuracy;
(e) date and sign the forms and request the polling agents to countersign;
(f) transfer the total number of registered voters of affected polling units from forms EC 40G into form EC 40G(I):
(g) cross-check the entries in form EC 8C(1) carefully, announce the votes scored by each party and distribute copies of the forms to the party agents and the Police:
(h) complete the Notice of Result of Polls Poster EC 60E and display it at the Collation Centre;
(i) take the original copies of forms EC 8C(1) to the Senatorial District Collation/Returning Officer at the Senatorial District Collation Centre together with other
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materials and reports relating to the election, including form EC 40G(I).
?40. The Senatorial District collation/Returning Officer for the Senatorial District Election shall:
(a) take delivery of the original copies of forms EC 8C(1) from the Local Government Area/Area Council Collation Officers together with other materials and reports relating to the election including form EC 40G(I);
(b) collate the results of the Senatorial District Election by entering the votes in the original copies of forms EC 8C(I) into form EC 8D(I) and enter the votes scored in both words and figures in the spaces provided;
(c) add up the LGA results to obtain the Senatorial District summary;
(d) cross-check the total with the Electronic collation support secretariat where available, for computational accuracy;
(e) transfer the total number of registered voters of affected polling units from forms EC 40G(I) into form EC 40G(2).
(f) cross-check the entries in form EC 8D(I) carefully, and announce loudly the votes scored by each party;
(g) sign and date the form and request the polling agents to countersign:
(h) distribute copies of forms EC 8D(I) to party agents and the Police:
(i) where the
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margin of win between the two leading candidates is not in excess of the total number of registered voters of the polling unit(s) where election was cancelled or not held, decline to make a return until another poll has taken place in the affected polling unit(s) and the results incorporated into a new form EC 8D(I) and subsequently recorded into form EC 8E(I) for Declaration and Return;
?(j) enter the score of each candidate into the declaration of result form EC 8E(I) for the Senate and return as elected the candidate who scores the highest number of valid votes cast at the Senatorial District Election.
(k) distribute copies of form EC8E(i) to party agents and the Police;
(l) complete the Notice of Result of Poll Poster EC 60E and display it at the Collation Centre;
(m) handover to the Resident Electoral Commissioner, the original copies of forms EC8D(I) and EC8E(I) together with other materials relating to the Election.”
They are the conditions precedent to a valid Declaration of results in any Election including Senatorial Elections. They are the bounden duties to be performed by the Electoral Officials including a Returning Officer and which must be
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dutifully carried out in accordance with the aforesaid Electoral Laws and regulations before declaration of result can be made by a Returning Officer in a Senatorial Election.
The above procedure and position have been judicially pronounced upon by this Court in a well articulated and lucid judgment in the case of MARK v. ABUBAKAR (2009) 2 NWLR (PART 1124) 190 at 189 A-C where my Noble Lord, BULKACHUWA J.C.A. now (HON. PRESIDENT, COURT OF APPEAL) said:
“The procedural steps needed to be taken at a senatorial election that will lead to a return of a candidate as provided by the Electoral Act read together with the Manual for Election Officials, 2007, Sections 74, 75 are that results are tabulated from the polling unit level, ward level and local government level in forms EC8A(1), EC8B(1), EC8C(1) which are results from the local government level. These forms must have been signed and endorsed by the various party agents at each level. At the final step the returning officer is required to collect form EC8C(1) from the collation officers of the local governments and transfer the scores of the parties unto form EC8D(1), sign same, declare the result and make a
?79 return on form EC8E(I). While the other forms are to be endorsed by the party agents, form EC8D(1) and EC8E(1) are to be signed only by the returning officer. In the instant case, as the responsibility of the returning officer for the Senatorial district was only to enter the scores of form EC8C(1) as submitted to him by the various local government collation officers into form EC8D(1) and declare the scores and make a return on form EC8E(1), all the processes of an election had been concluded as all entries into the various forms of the election results had been entered and endorsed by party agents at the various levels.”
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The Appellants have been able to show by oral evidence and Exhibits LGA PC 06, LGA PC 04, LGA PC 03, LGA PC 05, LGA PC 02, LGA PC 01 and LGA PC 09 that collation of results were still ongoing in ADO LGA, AGATU LGA, APA LGA, OBI LGA OGBADIBO LGA and OJU LGA as at 29th day of March, 2015, a day after the purported declaration of result of the BENUE SENATORIAL DISTRICT election by INEC Returning Officer Prof. Lateef Oloyode Tiamiyu ON 28/3/2015 when collation of results in seven Local Government highlighted were still on till 29/3/2015.
The
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Appellants had pleaded in paragraph 64 of their petition thus:
?”64. Your petitioner will further contend that in their desperation to foist an already predetermined and premeditated result on the electorates, the officers of 3rd Respondent could not wait to use the designated declaration of result form for the Benue South Senatorial election when they quickly converted a Form designated for the House of Representatives while collation was still ongoing.”
The 1st Respondent’s Reply to the above allegation can be found in paragraph 108 and 109 of his Reply thus:
“108. With specific reference to paragraph 64 of the Petition, the Respondent states that due to an administrative mix-up, officials of the 3rd Respondent brought only the Declaration of Election Result Forms meant for the House of Representatives to the Senatorial collation/Returning center in Otukpo. When the Returning Officer discovered this error after collating all results from Local Government Areas on Form EC8D(1) he adapted and converted the said House of Representatives Declaration of Result Form EC8E (II), duly authenticated the adaptations with his signature entered thereon the figures already
?81 collated on Form EC8D(1) from the various Forms EC8C(1) from the LGAs, and duly made the return.
109. The Respondent further states that the scores entered on the converted and adapted Declaration Result Form EC8E(II) flow logically and systematically from, and correspond with the added up scores on Forms EC8A(I), and collated on Forms EC8B(I), EC8C(I) and EC8D(I) all of which are hereby pleaded.”
?
?None of the 10 witnesses called by the 1st Respondent gave any evidence on facts pleaded in paragraphs 108 and 109 of the 1st Respondent’s Reply to controvert or explain the reason behind the adaptation pleaded and the fact that “all collated results from Local Government Areas were collated on Form EC8D(1) on 28/3/2015.”
All the forms pleaded were not tendered by the witnesses called by the 1st Respondent and neither was any other document apart from Exhibits LGAPC series tendered by Appellants, tendered by 1st, 2nd and 3rd Respondents. There is no contrary evidence oral or documentary from the Respondents to challenge the facts pleaded in paragraphs 60 – 64 of the Appellants Petition and oral and documentary evidence led on those paragraphs of the petition. The 3rd
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Respondents admitted giving Exhibits LGA PC 01 – LGA PC 09 to the Appellants and they are certified true copies. They fully established that there was serious breach of the Electoral Act and Manual for Election Official, on collation process. The Appellants established their case on balance of probability.
The breaches are no doubt substantial and the Appellants have scaled the hurdles of proof as laid down in the law and decided authorities and they have shown that the aforesaid breaches and non compliance indeed affected substantially the result of the BENUE SOUTH SENATORIAL ELECTION HELD ON 28-3-2015. See Sections 73 and 74 of the Electoral Act 2010 as amended.
Where a statute lays down a particular method or procedure for doing of anything no other method or procedure can be enlisted or employed for the doing of the thing. See DR. ARTHUR A. NWANKWO & ORS v. ALHAJI UMARU YAR’ADUA & ORS (2010) 6 SCM 121 at 143 F – G where ONNOGHEN, JSC said:
“It is settled law that where a Statute lays down a procedure for doing anything no other method is to be employed in doing the thing. In other words “where a statute or legislation provides for a particular
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method of performing a duty regulated by the statute that method and no other must have to be adopted.”
?The declaration of result of the election in contest, before collations were concluded at 7 Local Governments level is void. Issue 4 is resolved in favour of Appellants.
ISSUE 5
The Learned Counsel to the Appellants opined that the reasons given by the Lower Tribunal for the rejection of evidence of PW18 are misconceived in fact and in law. That the fact that he was employed by the Appellant would not make his evidence unworthy. That PW18 said that they are professionals rendering services for a fee and of times to advance cause of justice. That of the trial PW18 was not cross examined as to whether he was paid in this particular instance. That rejecting PW18’s evidence on the ground that he was not in law an expert is erroneous. That he gave evidence as a statistician.
He submitted that the PW18 was a competent witness because they gave direct evidence of what he saw and perceived on the documentary evidence before the Court. That PW18 is not a witness that could be caught by Section 18(3) of the Evidence Act. He relied on AREGBESOLA v. OYINLOLA (2011) 9 NWLR
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(PART 1253) 458. That the content of documents analyzed were not freshly procured by PW18 either in anticipation of a suit or during pendency of a suit. That the order for inspection of documents predates the filing of the petition.
Reacting to the above submissions on issue 5 the Learned Counsel to the 1st Respondent said the evidence of PW18 left too much to be desired. That they included several other polling units that petitioners had no complaints. He submitted that the entire evidence of PW18 was in admissible as it did not come within the purview of Section 68(1) of the Evidence Act 2011. That the courts have always been quick to ward off witnesses masquerading as experts. He relied on the case of AMOSU v. INEC & ORS (2010) LPELR – 4943 (CA).
That he is caught by Section 83(3) of the Evidence Act. He relied on the case of UGOCHUKWU AGBALLA v. DR. CHIMAROKE NNAMANI 2 EPR 757 at 773 – 774 per M. B. DONGBAN MENSEM, JCA.
That PW18 was gracious enough to admit errors in the analysis he made. That it is thus clear that PW18’s evidence is unreliable. That PW18 was in Oyo when the election in question took place. That the Lower Tribunal was right in expunging
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the evidence as being inadmissible.
?The Learned Counsel to the 2nd Respondent argued that the Lower Tribunal was not duty bound to accept PW18’s evidence. That his testimony is hearsay as he stated that his team comprised 7 persons. That the evidence of PW18 was cooked up at the time proceedings was already pending in this petition and as such caught by Section 83(3) of the Evidence Act. That the detachment, neutrality and impartiality of PW18 could not be assured. The Learned Counsel to the 3rd Respondent took a cue from the submissions of the 1st and 2nd Respondents Learned Counsel. He contended that the Lower Tribunal was right in discountenancing the evidence of PW18 on the ground that he was not an expert witness in law and his evidence was caught by Section 83(3) of the Evidence Act, 2011.
Now under cross examination by Learned Counsel to the 1st Respondent PW18 who had earlier described himself as a Researcher and Data Analyst answered on page 2815 of the record thus:
“The purpose of the inspection and analysis is to find out (1) if there are discrepancies between the various result forms on the one hand and between the voters’ register and whether the
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presiding officers followed the Process and procedure laid down by INEC in the manual of Election 2015 and other documents with which they were trained while preparing for elections. We dealt with areas where there were irregularities: our mandate was not to look for evidence to sustain the petition”
The above pieces of evidence of PW18 under cross examination is a clear usurpation of the constitutional and statutory role and duties of Election Petition Tribunal and other courts set up or put in place by the Constitution to adjudicate on election petition matters. It is squarely the duty and judicial functions of Tribunals and courts to find out and determine in matters properly brought before them whether there are discrepancies between the various result forms and voters registers and whether or not the presiding officers followed the process and procedure laid down by INEC in the manual of Election Officers 2015 and other relevant documents deployed by INEC for use by its officers/officials for elections. The Judicial officers in charge of Tribunals and courts all over Nigeria are adequately and eminently versed and trained in the art of law of evidence to
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know when there is/are irregularities in an election. See Section 285 of the Constitution of the Federal Republic of Nigeria 1999 as amended and Section 133 of the Electoral Act 2010 as amended. It is purely a judicial function and not that of a Researcher and Data Analyst. The Tribunal and this court can do their duties without the aid of a Data Analyst cum expert.
See: KAYDEE VENTURES LTD v. THE HON. MINISTER OF FEDERAL CAPITAL TERRITORY (2010) 7 NWLR (PART 1192) 171 at 216 G ? H to 217 A ? B where MUHAMMAD J.S.C. who read the leading judgment said:
“The trite position of the law in relation to expert evidence is that an expert must be called as a witness before he can give evidence in Court and his evidence is necessary where he can furnish the court with scientific or other information of technical nature that may be outside the experience and knowledge of the Judge. See ATTORNEY GENERAL OF THE FEDERATION & ORS v. ALHAJI ATIKU ABUBAKAR & ORS (2007) 10 NWLR (PART 1041) 1.”
No expert evidence or opinion is needed in the situation that presents itself in this petition. It will not be right to abdicate or subjugate the Constitution of and
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judicial functions bestowed on the courts or Tribunals as orbiters and interpreters of law and the Constitution to the opinion of the PW18 who in any event is not an expert within the meaning of Section 68(1) of the Evidence Act, Even if he is an expert the Lower Tribunal was not bound to accept the Evidence.
I do not however accept the position of the Tribunal that the PW18 was caught in the web of Section 83(3) either because he was paid for his services or because the inspection or analyses were carried before or after the institution of this petition. An expert may be paid for his services and yet be disinterested in the subject matter of the litigation. See Section 151 of the Electoral Act 2010 as amended which entitles a petitioner or party in election petition proceeding to seek the order of Tribunal or Court to enable him or her inspect documents used in the conduct of election for the purpose of instituting, maintaining or defending an election petition. I will nonetheless resolve issue 5 against the Appellants in favour of the Respondents.
Notwithstanding the resolution of issue 5 (five only) in favour of the Respondents, the Appellants appeal is
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quite meritorious on issues 1, 2, 3 and 4 which herein before I have resolved in Appellants favour. The Appellants appeal is hereby allowed.
The judgment of the National and State Houses of Assembly Election Petition Tribunal, MAKURDI, Coram HON. JUSTICE M. A. DIPEOLU (Chairman) HON. JUSTICE U. ABUBAKAR and HON. JUSTICE M. B. WAKILI (MEMBERS) delivered on 7th day of October, 2015 dismissing the Petition of the Appellants is hereby set aside. The Election and/or return of the 1st Respondent is hereby invalidated.
I hereby make an order nullifying the BENUE SOUTH SENATORIAL DISTRICT ELECTION held on the 28th day of March, 2015 for non compliance with the provisions of the Electoral Act 2010 as amended and INEC Approved Guidelines and Regulations for the conduct of 2015 General Elections.
The Election and return of the 1st Respondent as SENATOR representing the BENUE SOUTH SENATORIAL DISTRICT IN THE SENATE OF NATIONAL ASSEMBLY OF THE FEDERAL REPUBLIC OF NIGERIA is hereby set aside.
It is hereby further Ordered that INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC), the 3rd Respondent herein, SHALL WITHIN NINETY (90) DAYS from today hold fresh election for the BENUE
?90SOUTH SENATORIAL DISTRICT OF BENUE STATE OF NIGERIA for the Election of SENATOR for the said District in the National Assembly aforesaid.
There shall be no order as to costs bearing in mind the industry and ingenuity all the Learned Counsel in this appeal exhibited in their Briefs of Argument.
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. : I agree.
HUSSEIN MUKHTAR, J.C.A. : I agree.
Appearances
Adetunji Oso Esq., For Appellants
with Kester Oyibo Esq.
Ken C. Ikonne Esq. with, For 1st Respondent
Oga Ekwu Esq., Okey Edeze Esq.
and C. C. Umeh Esq.,
C. O. Alechenu Esq., For 2nd Respondent
with S.T. Iorvihi
P. O. Retshik Esq., For 3rd Respondent
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Appearances
Adetunji Oso Esq., with Kester Oyibo Esq.For Appellant
AND
Ken C. Ikonne Esq. with, Oga Ekwu Esq., Okey Edeze Esq. and C. Umeh Esq., for the 1st Respondent.
C. O. Alechenu Esq., with S. T. Iorvihi 2nd Respondent.
P. O. Retshik Esq., for 3rd RespondentFor Respondent
