ADEBISI ADEGBUYI, ESQ. & ANOR V. HON. RAMONI OLALEKAN MUSTAPHA & ORS
(2010)LCN/3927(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 6th day of July, 2010
CA/I/EPT/NASEN/99/08
RATIO
ELECTION PETITION PROCEEDINGS: NATURE OF ELECTION PETITION PROCEEDINGS
…election petition proceedings, though civil in nature, are sui generis, with their own set of rules to aid the quick dispensation of justice. The Election Tribunal and Court Practice Directions 2007 are complementary to the provisions of the Electoral Act 2006 (hereinafter referred to as the Electoral Act) and the Federal High Court (Civil Procedure) Rules, which the Tribunal might have recourse to by virtue of paragraph 50 of the First Schedule to the Electoral Act. On the special nature of election petitions the Supreme Court in Buhari Vs Yusuf (2003) 14 NWLR (841) 446 held thus: “An election petition is a proceeding which is sui generis, as it is of its own kind, possessing an individualistic character, unique or like only to itself. It is distinct from ordinary civil proceedings. It is not particularly related to ordinary rights and obligations of the parties concerned. The slightest non-compliance with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in a fatal consequence to the petition.” (Emphasis supplied) See also: Kallamu Vs Guin (2003) 16 NWLR (847) Buhari Vs Obasanjo (2003) 17 NWLR (850) 423: A.N.P.P Vs R.E.C. Akwa Ibom State (2008) 8 NWLR (1090) 453 at 546 F – H. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
PLEADINGS: WHETHER THE RULES OF PLEADINGS IN ORDINARY CIVIL PROCEEDINGS IS APPLICABLE TO ELECTION PETITIONS
At this juncture it is necessary to reiterate the fact that election petitions are in a class of their own, governed by their own rules. To this extent the rules of pleading in ordinary civil proceedings would apply in election petitions only to the extent that the peculiar rules governing election petitions allow. In other words, unlike in ordinary civil proceedings where pleadings are expected to contain only facts and not the evidence by which they are to be proved, in election petitions, by virtue of paragraph 1 (1) of the Practice Directions, apart from pleading the facts relevant to the complaint in the petition, the petition must be accompanied by a list of all the witnesses to be called in proof of the petition, their written statements on oath and copies or list of every document to be relied on at the hearing of the petition. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
FRONT-LOADING: PURPOSE OF FRONT-LOADING
Front-loading is to ensure that there is no trial by ambush and to expedite the hearing. It is to enable the parties know not only the case they are to meet at the trial but also the oral and documentary evidence by which the case is to be proved. It affords the parties an opportunity at the pre-trial hearing session to object to certain documents at the earliest opportunity, to allow certain documents and/or to concede certain facts or issues where appropriate. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
WHETHER AN APPELLANT CAN INTRODUCE ANY DOCUMENT WHATSOEVER NOTWITHSTANDING THE FACT THAT IT WAS NOT SPECIFICALLY LISTED AS ONE OF THE DOCUMENTS TO BE RELIED ON AT THE HEARING OF THE PETITION
It follows therefore that any document to be relied on at the hearing of the petition must have been listed or a copy thereof filed along with the petition. The fact that the Tribunal granted the relief sought by the appellants in the general form in which it was couched cannot be a licence to the appellants to thereby introduce any document whatsoever notwithstanding the fact that it was not specifically listed as one of the documents to be relied on at the hearing. I am of the view that the documents that could be relied upon as a result of the inspection allowed by the order of 23/8/07 must be those already listed along with the petition. To hold otherwise, to my mind, would be to defeat the entire front-loading concept. It would open the floodgates for any document to be introduced through a generic prayer such as the one granted on 23/8/07. For the same reason I do not agree that paragraph G on the list accompanying the petition, which indicates that the appellants would rely on “other relevant and material documents touching and affecting this petition” meets the requirement of specifically listing the documents to be relied on at the trial. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
DOCUMENTARY EVIDENCE: PURPOSE OF ISSUING NOTICE TO PRODUCE A DOCUMENT IN COURT.
The purpose of issuing notice to produce is to allow the person who gives the notice to tender secondary evidence of the required documents where the adverse party fails to produce them. Thus, in the instant case, if the appellants- had listed Form EC40 (A) among the documents to be relied on at the hearing of the petition, they would have been entitled to tender secondary evidence in respect thereof if the respondents failed to produce the original copies in their custody. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
JUSTICES:
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
Between
1. ADEBISI ADEGBUYI, ESQ.
2. ACTION CONGRESS (A.C) – Appellant(s)
AND
1. HON. RAMONI OLALEKAN MUSTAPHA
2. PEOPLES DEMOCRATIC PARTY (P.D.P.)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS. – Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A (Delivering the Leading Judgment): This is a consolidated appeal against the judgment of the National Assembly Election Tribunal, Ogun State sitting at Abeokuta delivered on 17th April 2008 and against four interlocutory rulings delivered by the said Tribunal on 12/12/07, 14/1/08, 16/1/08,and 6/3/08.
Elections were held into the Ogun East Senatorial District of Ogun State on 28th April 2007. The 1st appellant herein contested the election on the platform of the 2nd appellant, the Action Congress (AC), while the 1st respondent contested on the platform of the 2nd Respondent, the Peoples Democratic Party (PDP). At the conclusion of the election the 3rd respondent returned the 1st respondent as the winner having scored 293, 551 votes. The appellant came second with 14, 519 votes. Being dissatisfied with the outcome of the election, the appellants filed a petition before the National Assembly Election Tribunal sitting at Abeokuta (hereinafter referred to as the Tribunal). The summary of the grounds of the petition as stated at page 32 of the record is as follows:
“The petitioners thus maintain that the election of 28 April 2007 was invalid by reason of corrupt practices and or non-compliance with the provisions of the Electoral Act and consequently the respondent was not duly elected by majority of lawful votes.”
The petitioners urged the Tribunal to declare the election null and void and to order a fresh election.
Pleadings were filed and exchanged, pre-hearing sessions were held and the petition went to trial. Witnesses testified on behalf of all the parties and documents were tendered in evidence. At the conclusion of the trial and after considering the addresses of learned counsel, the Tribunal on 17/4/08 dismissed the petition and upheld the return of the 1st respondent. The appellants were dissatisfied with the judgment as well as interlocutory rulings delivered during the course of proceedings. The notice of appeal against the judgment is dated 7/5/08 and contains seven grounds of appeal (pages 1529 – 1540 of the record). The notices of appeal against the interlocutory decisions are as follows:
a. Notice of Appeal dated 14/12/07 against ruling delivered on 12/12/07 (pages 1162 – 1166 of the record).
b. Notice of Appeal dated 22/1/08 against ruling delivered on 14/1/08 (pages 1176 – 1180 of the record).
c. Notice of Appeal dated 22/1/08 against ruling delivered on 16/1/08 (pages 117 (b) – 117 (d) of the record).
d. Notice of Appeal dated 31/3/08 against ruling delivered on 6/3/08 (pages 1388 – 1392 of the record).
The appellants and the 1st and 2nd respondents duly filed and exchanged briefs of argument in compliance with the Rules of this Court. At the hearing of the appeal on 11/5/2010 it was brought to the court’s attention that the 3rd – 1237th respondents (who had been served with hearing notice against that date but were absent and unrepresented by counsel) were granted an extension of 48 hours within which to file their brief of argument on 27/1/2010. The court’s record revealed that the brief was not filed within the stipulated time. The said respondents filed an application on 12/2/2010 for further extension of time to file their said brief. They failed to attend court to move the application. The application was accordingly struck out for want of prosecution. Thus the briefs of argument for the determination of this appeal are:
(i) the appellants’ brief dated 19/11/08 and filed on 20/11/08;
(ii) the 1st and 2nd respondents’ brief dated 17/9/09 and filed on 24/9/09; and
(iii) the appellants’ reply brief dated 9/11/09 and filed on 13/11/09.
Taiwo Kupolati Esq., learned counsel for the appellants adopted and relied on both briefs filed on their behalf. He made some submissions in elaboration of the appellants’ brief in respect of arguments on the first two interlocutory appeals argued at pages 6 – 15 therein. He submitted that these two interlocutory appeals challenge the basis of the rulings delivered on 12/12/07 and 14/1/08 wherein the Tribunal disallowed the tendering of certain election materials. He stated that at page 84 (actually page 80) of the record the appellants pleaded that they would rely on “other relevant and material documents touching and affecting” the petition and that they also pleaded and gave notice to produce to INEC that all forms used by INEC including notices used prior to, during and after the election touching and affecting the petitioners and the 1st and 2nd respondents would be used in proof of the appellants’ petition. He argued that the reason the petitioners were given access to the documents was because they were in the 3rd Respondent’s custody. He contended that by refusing to admit the documents, the Tribunal had denied the appellants the means of proving their petition. He urged the court to allow the interlocutory appeals as well as the substantive appeal.
Otunba Kalejaiye, SAN adopted and relied on the 1st and 2nd respondents’ brief of argument. He drew the court’s attention to two preliminary objections raised and argued therein. He sought leave to withdraw the first preliminary objection argued in paragraphs 2.0 – 2.5 at page 3 of the brief. He however adopted the arguments in respect of the second preliminary objection argued in paragraphs 3.0 – 3.3.9 at pages 3 – 8 of the brief. He also drew the court’s attention to the fact that the fourth interlocutory appeal was withdrawn on 19/5/09 and urged the court to discountenance arguments in respect thereof contained in the appellants’ brief. He also made oral submissions in further amplification of his brief. He submitted that the arguments in reaction to the interlocutory appeals address the efficacy of paragraph 1 (1) (c) of the Practice Directions. He submitted that election petitions are sui generis and that for a person to be heard he must bring his case within the peculiar laws that govern the proceedings. He submitted that failure to comply with the requirement to list every document to be relied upon is met with penal sanctions. He referred to: INEC Vs Iniama (2008) 8 NWLR (1088) 182 @ 189. He submitted that the word “shall” in paragraph 1 (1) (c) of the Practice Direction is mandatory. He contended that the argument of learned counsel for the appellants regarding the general pleading of documents would defeat the purpose of the Practice Directions. He referred to INEC Vs Iniama (supra) and urged the court to dismiss all the interlocutory appeals.
In respect of the main appeal, he referred to paragraphs 7.25 – 7.29 of the respondents’ brief and submitted that a litigant has a duty to tie his documents to his case. He submitted that the proper place to do that is before the Tribunal and not the address of counsel. He referred to: Senator Ibikunle Amosun Vs INEC in Appeal No. CA/I/EPT/GOV/I/01/2009 delivered on 8/3/2010 at page 97 and Obirema Vs Awolola (2010) 7 WRN 155 at 173. He urged the court to dismiss the appeal.
The 1st and 2nd respondents have raised a preliminary objection to the main appeal. This will be considered at the appropriate stage of the judgment. The interlocutory appeals shall be considered first.
INTERLOCUTORY APPEALS 1 & 2
The first interlocutory appeal is against the ruling of the Tribunal delivered on 12/12/07 wherein the Tribunal held that Form EC40 (A) (Ballot Paper Account and Verification Statement) for Ijebu Waterside Local Government Area was inadmissible for non-compliance with paragraph 1 (1) (c) of the Election Tribunal and Court Practice Direction 2007 (hereinafter referred to as the Practice Direction). The second interlocutory appeal is against the ruling of the Tribunal delivered on 14/1/08 wherein Form EC40 (A) series in respect of Remo North, Ijebu-East, Ijebu-North, Ijebu North East, Sagamu, Ikenne, Odogbolu and Ijebu-Ode Local Government Areas were also rejected for non-compliance with paragraph 1 (1) (c) of the Practice Direction.
From the three grounds of appeal in the notice of appeal dated 12/12/07, the appellants formulated two issues for determination:
1. Whether Form EC40 (A) as a documentary fact which was generally pleaded in the petition on account of the fact that its existence and specific nature was not known to the petitioners and the document was in fact in the custody of Independent National Electoral Commission (INEC) is inadmissible on the grounds that it was not specifically listed as a document to be relied on at the hearing of the petition as provided in paragraph 1 (1) (c) of the Election Tribunal and Court Practice Directions 2007.
2. Whether Form EC40 (A) which had been certified as being a public document in accordance with the provisions of Section 111 of the Evidence Act Cap.E14 Laws of the Federation of Nigeria, 2004 and in respect of which facts or subordinate facts had been reasonably and sufficiently pleaded, is not admissible in law on the grounds that the document has not been listed under paragraph 1 (1) (c) of the Election Tribunal and Court Practice Directions 2007. Is the Election Tribunal and Court Practice Directions 2007 superior in purpose and effect to the provisions of the Evidence Act?
The 1st and 2nd respondents formulated one issue for determination thus:
“Whether, considering the fact that the Appellants were ‘deemed to have known of the existence of the Ballot Paper Account and Verification Statement Form – Form EC40 (A), it could have been validly admitted for use at the trial without the appellants complying with the requirements of paragraph 1 (1) (c) of the Election Tribunal and Court Practice Directions 2007.”
The issues formulated by both the appellants and the 1st and 2nd respondents appear to be argumentative and unnecessarily prolix. I am of the respectful view that the sole issue for determination in respect of this interlocutory appeal is:
“whether the Tribunal erred when it rejected the Ballot Paper Account and Verification Statement Form – Form EC40(A) series for non-compliance with paragraph 1 (1) (c) of the Practice Directions having regard to the circumstances of the case.”
In the appellants’ and 1st and 2nd respondents’ briefs the arguments in respect of the first interlocutory appeal have been adopted in respect of the second. Both interlocutory appeals shall therefore be determined on the sole issue formulated above.
Learned counsel for the appellants submitted that Form EC40 (A) is one of the documents issued by INEC for the conduct of the Senatorial Election in 2007 and provides a full account of ballot papers issued and delivered to every polling booth. He noted that the form is for the internal operations of the 3rd respondent and not meant for the appellants or for the use of the party agents. He contended that the appellants did not know of the existence of this form at the time the petition was prepared and therefore it was not specifically pleaded. He submitted that by its order of 23/8/07 permitting the appellants to inspect and make certified copies of relevant electoral/ballot papers, result sheets and “other materials” used in the election in the Senatorial Election of 28 April 2007 “now in custody” of INEC, it acknowledged the fact that the said Form EC40 (A) was not one of the documents in the appellants’ custody or of which they were aware.
He referred to paragraph 7 (g) of the petition at page 80 of the record wherein the appellants pleaded that they would rely on “other relevant and material documents touching and affecting this petition” and paragraph 8 (d) thereof wherein they gave notice to the 3rd respondent to produce “all election materials including documents, letters, notices and Forms issued by the 3rd respondent prior to, during and after the election of 28 April 2007 touching and affecting the petitioners and the 1st and 2nd respondents.” He submitted that the Form EC40 (A) was accordingly properly pleaded, albeit through an omnibus paragraph, and ought to have been admitted in evidence. He argued that the appellants had pleaded facts alleging insufficiency of ballot papers and therefore Form EC40 (A) constituted the evidence by which the fact was to be established. He submitted that the provisions of paragraph 1 (1) (c) of the Practice Direction cannot be applicable in respect of documents which became known to the appellants through a judicial order made during the course of the pre-trial session.
It is the further contention of learned counsel for the appellants that Form EC40 (A) being a public document duly certified pursuant to Section 111 of the Evidence Act is admissible in evidence without further ado. He argued that since subordinate facts relating to it had been pleaded, it ought to have been received in evidence. He again referred to the order made by the Tribunal on 23/8/07 permitting the petitioners “to inspect and make certified true copies of the relevant electoral/ballot papers, result sheets and other materials used in the election held on Saturday 27 April 2007 now in custody of the 3rd respondent”, and submitted that the failure to list Form EC40 (A), which was in the 3rd respondent’s custody, as one of the documents to be relied on would not foist any surprise or prejudice on the 3rd, respondent or other respondents. He also contended that the Tribunal did not set out all electoral materials, which it categorised and expressed as “relevant electoral papers”. He submitted that the appellants were therefore in order to have qualified the documents used in the election in their petition and on the list of documents as “relevant and material” at page 84 of the petition. He contended that a document, which had been pleaded, duly certified, in respect of which notice to produce had been given and which was in the custody or possession of the 3rd respondent ought not to have been rejected as inadmissible.
Learned counsel argued that the Practice Directions do not have the authority of the rules of court or of an Act of Parliament. He submitted that they cannot overrule court decisions. He referred to: University of Lagos Vs Aigoro (1985) 1 NWLR (1) 143; Advocacy in Election Petitions by Onamade, J. at page 443. He submitted that the court has a duty to give primacy to the fundamental principles of justice over and above strict adherence to rules. He relied on: Haruna Vs Modibbo (2004) 16 NWLR (900) 487 at 535 – 536 & 560. He submitted that by rejecting the Form EC40 (A), the Tribunal had denied the appellants the right to fair hearing, as the only way to question the lawfulness of votes cast at an election is to tender in evidence all the forms used and call witnesses to testify as to the manipulation of the votes scored by individuals. He relied on: Babba Vs Tafarhiya (1999) 5 NWLR (603) 468.
He urged the court to set aside the ruling of the Tribunal and admit the Form EC40 (A) series in evidence.
In reaction to this issue, learned Senior Counsel for the 1st and 2nd respondents referred to the contention of learned counsel for the appellants that Form EC40 (A) could not have been listed or pleaded because the appellants were unaware of its existence until it discovered them as a result of an inspection carried out upon an order obtained from the Tribunal. He submitted that the corollary to this argument is that if the existence of Form EC40 (A) was known or deemed to have been known by the appellants at the time of preparing their petition, they would have no excuse for not complying with the provision of the Practice Directions requiring “every document” to be listed in mandatory terms. Learned counsel submitted that the appellants’ argument does not hold water having regard to the fact that all documents used by INEC along with their respective functions and purposes are comprehensively listed in the Manual for Election Officials 2007 (hereinafter referred to as the Manual) issued by INEC, and severally referred to in the appellants’ brief. He submitted that Form EC40 (A) is listed on page 61 of the manual with a pictorial illustration on page 64. He submitted that the manual having been made pursuant to Section 161 of the Electoral Act 2006, is a subsidiary legislation having force of law, the ignorance of which cannot constitute an excuse. He urged the court to take judicial notice of it. He also referred to the Introduction at page iv, which states:
“The manual will also be useful to polling and party agents, security agents and election observers as it contains material that will enable these actors understand their respective roles in the elections.”
He submitted that this makes it clear that it is a public document issued for the guidance of all persons involved in the electoral process including the appellants and their party agents. He also argued that it validates the holding of the Tribunal at page 1159L of the record that “the petitioners who participated at the election and had agents at all levels of the election are expected to know the documents required by INEC in conducting the election.”
Learned counsel submitted that the appellants knew or must be deemed to know of the existence of the Ballot Paper Account and Verification Statement form and that requiring them to list the said form in compliance with the Practice Direction could not be deemed an impossibility or unreasonable expectation. He submitted that the intendment of paragraph 1 (1) (c) of the Practice Direction is clear by the words used by the draftsman. He submitted that the words “every document” does not admit of generalisation, as each document by whatever description must be individually listed. He argued further that the use of the word “shall” and the penal provision for non-compliance underlines the mandatory nature of the provision. He referred to: Okereke Vs Yar’Adua (2008) All FWLR (430) 626 at 666.
He submitted further that the use of the word “accompany” in the said provision makes it clear that the documents are intended to be part of the petition so that they form part of the requirement of pleadings, which a party seeking justice must comply with. He maintained that an election petition is sui generic and guided by its own peculiar rules and circumstances. On the consequence of failure” to comply with paragraph 1 (1) (c) of the Practice Directions he referred to Okereke Vs Yar’Adua (supra); INEC Vs Iniama (2008) 8 NWLR (1088) 182 at 200.
On the contention of the learned counsel for the appellants that the refusal to admit the document amounted to elevating the Practice Directions above the Evidence Act, learned Senior Counsel submitted that the contention missed the essence of the Practice Directions. He also submitted that notice to produce documents ought to be given at the stage of serving the petition and not at the pre-trial session when pleadings have closed. He argued that documents not listed but introduced at the exchange of documents during pre-trial would greatly prejudice the respondents who had prepared their reply based on the list filed with the petition.
He submitted that the requirement to list every document to be used at the trial does not clash with the rules of pleading but is in fact an enhancement of the rule. He argued that since listing is part of what makes a petition complete, the consideration of whether a document is pleaded or not for the purpose of admissibility includes whether or not that document had been specifically listed in the list that accompanied the petition.
On the contention that the order of the Tribunal permitting the appellants to inspect “relevant electoral papers” was an indication that only INEC knew the forms and had custody of them and that since the Tribunal did not specify the nature of the “relevant electoral papers” the appellants were justified in describing the documents as “relevant and material” on their list of documents, learned Senior Counsel for the 1st and 2nd respondents submitted that the argument is untenable because the order referred to was granted in terms of the prayer placed before the Tribunal. He referred to the enrolled order at page 1051 of the record and submitted that the Tribunal has no jurisdiction to grant what has not been asked for. He submitted further that the Tribunal had no duty to assist the appellants to discover and list the documents they intended to inspect and use to prove their case.
He submitted that election petitions being sui generis, the law and procedural rules must be strictly adhered to and that the proceedings are not open to the indulgence that litigants in ordinary civil matters enjoy. He referred to: Buhari Vs Dikko Yusuf (2003) ALL FWLR (174) 329 at 355; Ogu Vs Ekweremadu (2005) ALL FWLR (260) 1 at 19 – 20. He submitted that where a party has knowledge of what is to be done, how and when it is to be done, he cannot complain of infringement of his right to fair hearing when faced with the consequences of non-compliance. He referred to: Buhari Vs Obasanjo (2003) 16 NSCQR 1 at 44: Ladipo Vs Oduyoye (2004) 1 EPR 705 at 708.
In reply to the submissions of learned counsel for the 1st and 2nd respondents, learned counsel for the appellants submitted that the cases of Okereke Vs Yar’Adua (supra) 1 and INEC Vs Iniama (supra) are not applicable to the facts of this case having regard to the fact that in those two cases there was no pleading such as the omnibus pleading contained in paragraph G on page 84 of the record that the appellants would rely on “other relevant and material documents touching and affecting this petition.” He submitted that the pleading that “all notices and forms” issued by INEC would be relied on did not feature in either of the cases. He also contended that the portion of the judgment quoted by learned counsel is not contained in the lead judgment but in the concurring judgment of Tabai, JSC. He submitted that pronouncements in concurring judgments do not have binding force. He relied on; Abacha Vs Fawehinmi (2000) FWLR (4) 533.
In determining this issue, it is pertinent to observe at the outset that election petition proceedings, though civil in nature, are sui generis, with their own set of rules to aid the quick dispensation of justice. The Election Tribunal and Court Practice Directions 2007 are complementary to the provisions of the Electoral Act 2006 (hereinafter referred to as the Electoral Act) and the Federal High Court (Civil Procedure) Rules, which the Tribunal might have recourse to by virtue of paragraph 50 of the First Schedule to the Electoral Act. On the special nature of election petitions the Supreme Court in Buhari Vs Yusuf (2003) 14 NWLR (841) 446 held thus:
“An election petition is a proceeding which is sui generis, as it is of its own kind, possessing an individualistic character, unique or like only to itself. It is distinct from ordinary civil proceedings. It is not particularly related to ordinary rights and obligations of the parties concerned. The slightest non-compliance with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in a fatal consequence to the petition.”
(Emphasis supplied)
See also: Kallamu Vs Guin (2003) 16 NWLR (847) Buhari Vs Obasanjo (2003) 17 NWLR (850) 423: A.N.P.P Vs R.E.C. Akwa Ibom State (2008) 8 NWLR (1090) 453 at 546 F – H.
Paragraph 1 (1) & (2) of the Practice Directions provides:
(1) All petitions to be presented before the Tribunal or Court shall be accompanied by
(a) list of all 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
(2) A petition which fails to comply paragraph (1) of this paragraph shall not accepted for filing by the Secretary.”
(Emphasis supplied)
The provision of sub-paragraph (2) above underscores the importance attached to compliance with the provisions of sub-paragraph (1). Paragraph 1 (1) (c) was interpreted in the case of INEC Vs Iniama (2008)8 NWLR (1088) 182 @ 200 thus:
‘The meaning of the word “shall” in paragraph 1 (1) (c) of the Practice Direction is clearly provided for in the expression “to be relied on at the hearing of the petition”. The negative consequence of disobedience of the petitioner to the expression of command “shall” in paragraph 1 (1) (c) is that he would not he able to rely on any such document not so listed at the hearing.”
(Emphasis supplied)
See also: Ukpo Vs. Ngaji & Ors. (2010) All FWLR (514) 144 at 167-16R G-B: Okereke Vs. Yar’Adua 12 NWLR (1100) 95.
At pages 82 – 83 of the record, the appellants listed in paragraphs A – G documents to be relied on at the hearing of the petition. In paragraphs A – E specific documents were listed.
Paragraphs F and G state:
“F. Form EC8A (1) covering wards in the Local Government Areas affected by this Petition.
G- Other relevant and material documents touching and affecting this Petition.”
(Emphasis supplied)
A careful examination of paragraphs A – G shows clearly that there is no mention of Form EC40 (A) therein. It is contended by the appellants that facts relating to the said form had been pleaded in the petition and furthermore that pursuant to an application filed by them, the Tribunal, on 23/8/07, made the following order:
“That the 3rd – 1237th respondents are ordered to permit the Petitioner to inspect and make certified true copies of the relevant electoral/ballot papers, result sheets and other materials used in the election held on Saturday 28th April 2007 in the Ogun East Senatorial District now in custody of the 3rd respondent.”
(Emphasis supplied)
Learned counsel for the appellants lays particular emphasis on the underlined portion of the order. At this juncture it is necessary to reiterate the fact that election petitions are in a class of their own, governed by their own rules. To this extent the rules of pleading in ordinary civil proceedings would apply in election petitions only to the extent that the peculiar rules governing election petitions allow. In other words, unlike in ordinary civil proceedings where pleadings are expected to contain only facts and not the evidence by which they are to be proved, in election petitions, by virtue of paragraph 1 (1) of the Practice Directions, apart from pleading the facts relevant to the complaint in the petition, the petition must be accompanied by a list of all the witnesses to be called in proof of the petition, their written statements on oath and copies or list of every document to be relied on at the hearing of the petition. This is in accordance with the front-loading principle contained in the Practice Directions. Front-loading is to ensure that there is no trial by ambush and to expedite the hearing. It is to enable the parties know not only the case they are to meet at the trial but also the oral and documentary evidence by which the case is to be proved. It affords the parties an opportunity at the pre-trial hearing session to object to certain documents at the earliest opportunity, to allow certain documents and/or to concede certain facts or issues where appropriate. See: A.N.P.P. Vs. R.E.C. Akwa Ibom at 542 – 543 H – A.
It follows therefore that any document to be relied on at the hearing of the petition must have been listed or a copy thereof filed along with the petition. The fact that the Tribunal granted the relief sought by the appellants in the general form in which it was couched cannot be a licence to the appellants to thereby introduce any document whatsoever notwithstanding the fact that it was not specifically listed as one of the documents to be relied on at the hearing. I am of the view that the documents that could be relied upon as a result of the inspection allowed by the order of 23/8/07 must be those already listed along with the petition. To hold otherwise, to my mind, would be to defeat the entire front-loading concept. It would open the floodgates for any document to be introduced through a generic prayer such as the one granted on 23/8/07.
For the same reason I do not agree that paragraph G on the list accompanying the petition, which indicates that the appellants would rely on “other relevant and material documents touching and affecting this petition” meets the requirement of specifically listing the documents to be relied on at the trial. Learned counsel has also argued that insofar as the documents to be relied on were documents in the 3rd respondents’ custody and duly certified by it, they ought to be admitted in evidence as public documents having complied with the relevant provisions of the Evidence Act. With due respect to learned counsel, this argument seems to put the cart before the horse. If the document had been listed as one of those to be relied upon at the hearing of the petition in compliance with paragraph 1 (1) (c) of the Practice Directions, a certified true copy thereof would certainly be admissible in evidence. That is not the case here.
It is also contended on behalf of the appellants that the Form EC40 (A) could not have been listed at the time the petition was filed because the appellants were not aware of its existence and that it was only discovered during the inspection undertaken pursuant to the order of the Tribunal made on 23/8/07. In response, learned counsel for the 1st and 2nd respondents referred to the Manual for Election Officials 2007 and submitted that the said form, among others, and its use in the election process is fully spelt out therein. Learned counsel for the appellants has argued that one of the issues raised and pleaded in the petition was insufficiency of ballot papers and that the Form EC40 (A) was the evidence by which the pleaded facts were to be proved. I am in complete agreement with learned counsel for the 1st and 2nd respondents that the Manual for Election Officials 2007, which was issued pursuant to Section 161 of the Electoral Act, is a subsidiary legislation of which the appellants are deemed to have knowledge. Indeed such knowledge has been demonstrated by various references to the Manual in the appellants’ brief. It stands to reason that where a party is complaining of insufficiency of ballot papers, he would first consult the Manual to determine the procedure to be adopted by INEC in relation to the issuance and distribution ‘of ballot papers in order to determine whether the procedure was complied with or not. The argument that the Form was not listed because the appellants were unaware of its existence is therefore untenable.
Learned counsel for the appellants has also argued that in paragraph 8 (d) of the petition the respondents were given notice to produce “all election materials including documents, letters, notices and forms issued by the 3rd respondent prior to, during and after the election of 28 April 2007 touching and affecting the petitioners and the 1st and 2nd respondents.” The issue to be considered in this regard is whether this very wide and general notice to produce absolves the appellants of the obligation to comply with paragraph 1 (1) (c) of the Practice Directions. I think not. The purpose of issuing notice to produce is to allow the person who gives the notice to tender secondary evidence of the required documents where the adverse party fails to produce them. Thus, in the instant case, if the appellants- had listed Form EC40 (A) among the documents to be relied on at the hearing of the petition, they would have been entitled to tender secondary evidence in respect thereof if the respondents failed to produce the original copies in their custody. Not having listed the Form in the first place, they could not fall back on the general notice to produce contained in paragraph 8 (d) of the petition. A situation where omnibus pleading of documents to be relied upon in an election petition is allowed would completely defeat the purpose of the front-loading concept under the Practice Directions, which requires that party’s place all their cards face up on the table at the commencement of the proceedings.
This issue must be and is hereby resolved against the appellants. The appellants rely on their submissions in the first interlocutory appeal in respect of the second. In light of my finding above, I hold that the interlocutory appeals dated 12/12/07 and 14/1/08 lack merit and are hereby dismissed.
3rd Interlocutory Appeal
This appeal is against the ruling of the Tribunal delivered on 16/1/08. Pursuant to a subpoena issued to the Resident Electoral Commissioner (REC) of Ogun State, samples of ballot boxes from each of the local governments affecting the petition were produced before the Tribunal. The admissibility of the ballot boxes containing ballot papers was opposed on grounds of non-compliance with paragraph 1 (1) (c) of the Practice Directions. It was contended on behalf of the appellants that the notice to produce contained in paragraph 8 (b) of the petition which referred to “all thumb-printed ballot papers in all the wards” and paragraph 7 (g) of the list of documents to be relied on at the hearing of the petition, which referred to “other relevant and material documents touching and affecting this petition” amounted to pleading the said ballot boxes generally. The Tribunal was not persuaded by this argument and refused to admit the said ballot boxes.
The appellants formulated 2 issues for determination from the three grounds of appeal as follows:
1. Whether given the indication in paragraph 8 (b) of the appellants’ petition that “all thumb-printed ballot papers in all the wards” shall be relied upon and for which notice to produce was given to the 3rd and 4th respondents and the fact that it was listed on page 84 of the record that all other relevant and material documents touching and affecting this petition will be used by the petitioners, the Tribunal was right in holding inadmissible the ballot papers and ballot boxed on the grounds that they have not been listed as required by paragraph 1 (1) (c) of the Practice Directions.
2. Whether the Tribunal was not wrong in giving effect to the provisions of the Practice Directions 2007 as a basis for rejecting the ballot papers and ballot boxes which were specifically pleaded in the petition and generally listed in paragraph G on page 84 of the record of appeal.
The 1st and 2nd respondents raised the following single issue for determination:
Whether the trial Tribunal could validly have admitted the ballot papers and ballot boxes in view of the failure of the appellants to list them amongst the documents they will be relying on at the trial in contravention of paragraph 1 (1) (c) of the Practice Directions.
The 1st and 2nd respondents’ sole issue fully encapsulates the issue in contention in this interlocutory appeal. I hereby adopt it for the resolution of this interlocutory appeal.
Learned counsel for the appellants submitted that in so far as the appellants had pleaded all electoral materials used in the election, including ballot papers and ballot boxes and notice to produce the said documents had been given to the 3rd and 4th respondents, the ballot papers and ballot boxes became ordinarily admissible. He submitted that the Practice Directions do not have the authority of the Rules of Court and thus have no capacity to fetter the rules of court or hamper the court in the exercise of its discretion. Learned counsel contended that once the rules of pleading and evidence had been complied with the Tribunal had no discretion in the matter and ought to have admitted the documents. He submitted that the Tribunal must tread the path of substantial, justice where strict adherence to technicalities would defeat the course of justice. He relied on: Nneji Vs Chukwu (1988) 3 NWLR (81) 184. He submitted that paragraph 4 (1) of the Practice Directions, which makes the issue of evidence or admissibility of evidence subject to any statutory provision, is an indication of the inferiority of the Practice Directions to the Evidence Act. He argued that paragraph 4 (8) of the Practice Directions deals with the filing of documents and not the listing thereof and as such the appellants did not require leave of the Tribunal before the ballot boxes could be tendered and admitted in evidence, as they were in the custody of the 3rd and 4th respondents.
Learned counsel challenged the legitimacy of the Practice Directions. He argued that contrary to the preamble to the Practice Directions, Section 285 (3) of the Constitution of the Federal Republic of Nigeria 1999 (hereinafter referred to as the 1999 Constitution), does not empower the President of the Court of Appeal to make or issue Practice Directions for Election Tribunals. He referred to paragraph 1 (3) of the Sixth Schedule to the 1999 Constitution and submitted that by virtue of Section 248 of the 1999 Constitution, the powers of the President of the Court of Appeal are restricted to making rules for the practice and procedure of the Court of Appeal alone. He contended that the Practice Directions are unconstitutional and void. He urged this court to hold that the Practice Directions ought not to have been given effect by the Tribunal as a basis for rejecting the ballot papers and ballot boxes.
In reaction to this issue, learned Senior Counsel for the 1st and 2nd respondents repeated his submissions in respect of the first two interlocutory appeals on the mandatory nature of the requirement to list every document to be relied upon in the petition inv paragraph 1 (1) (c) of the Practice Directions. In addition he submitted that paragraph 7 (g) of the petition at page 80 of the record wherein the appellants pleaded that they would rely on “other relevant and material documents touching and affecting this petition” had been struck out by the Tribunal on the 1st and 2nd respondents’ application on 19/11/07. He referred to page 1444 of the record and observed that there is no appeal against the said order. Relying on a recent decision of this division of the Court of Appeal in: Onabanjo Vs The Sheriff High Court of Justice & 2 Ors. in Appeal No. CA/I/192/2006 delivered on 78/5/09 at page 11, he submitted that this ground of complaint can no longer avail the appellants as a particular of the ground of appeal. He argued that the entire ground of appeal is thus affected.
With regard to the notice to produce “all thumb printed ballot papers…” in paragraph 8 (b) of the, petition at page 80 of the record, learned counsel submitted that a notice to produce, being an ancillary provision in the pleading to assist the appellants where the need to rely on secondary evidence arises, cannot on its own be the basis of admitting a document not expressly pleaded and listed. He referred to Section 98 of the Evidence Act. He observed that the reference to ballot papers on pages 82, and 83 of the record are mere particulars of the contents of item D, which are “visual and video recordings of corrupt practices and electoral malpractices.” He submitted that those particulars are only relevant to the visual and video recordings tendered and admitted in evidence as Exhibits P34 and P35 (A) & (B). He argued that it is evident that the appellants knew that they needed ballot papers to establish their case but refused to properly plead and list them as required by law. He maintained that the failure was fatal to the application to tender the ballot boxes.
With regard to paragraph 4 (8) of the Practice Directions, he submitted that a community reading of the provision in conjunction with paragraphs 1 and 2 shows that the filing of a document referred to in paragraph 4 (8) clearly included documents that a party was unable to file but which had been listed in accordance with the Practice Directions. Alternatively learned counsel submitted that if paragraph 4 (8) is limited to filing and not listing of documents, the fact that the appellants contended that they were unable to list the documents because they were in the 3rd and 4th respondents’ custody, would have qualified as an exceptional circumstance for which they could have sought leave to tender them under paragraph 4 (8).
On the constitutionality of the Practice Directions, learned counsel for the 1st and 2nd respondents observed that the issue was not raised before the Tribunal. He submitted that in any event the jurisdiction of the Tribunal to hear and determine election petitions is circumscribed by Section 285 (1) of the 1999 Constitution and therefore it has no jurisdiction to determine the constitutionality or otherwise of the Practice Directions. He submitted further, without conceding that even if the Tribunal had the power to invalidate the Practice Directions it would mean that every process filed in compliance with its provisions, beginning with the petition itself, would be liable to be struck out. He submitted that the validity of the Practice Directions has been recognised and given effect in various judicial authorities, including: Maitsidau Vs Chidari (2008) ALL FWLR (438) 355; Okereke Vs Yar’Adua (supra) at 644. He urged the court to uphold the position of the Supreme Court as expressed in Okereke Vs Yar’Adua (supra) and hold that the Tribunal was not only bound to give effect to the Practice Directions, the appellants were bound to obey its provisions, particularly as it is the platform upon which they approached the Tribunal.
The first issue to be resolved is whether, as contended by learned counsel for the appellants, the ballot papers and ballot boxes were specifically pleaded. In resolving the first two interlocutory appeals, I upheld the mandatory nature of the requirement of paragraph 1 (1) (c) of the Practice Direction that every document to be relied on at the hearing of the petition must be included in the list of documents accompanying the petition. The appellants’ list is at pages 82 – 84 of the record. Item D on page 80 refers to “visual and video recordings of corrupt practices and malpractices on the day of election.” It is followed by sub-paragraphs (i) – (v), which contain particulars of the incidents covered by the recordings. For example, particular (i) states: Ijebu East Local Government Area: Ballot papers had been thumb printed and put in the ballot boxes [before] the arrival of voters at 8.20 am.” It is clear that this relates to the content of the recording referred to in the preceding paragraph. It is not a listing of ballot papers and/or ballot boxes to be relied on at the hearing. Item G is “other relevant and material documents touching and affecting this petition.” I had held in resolving the first two interlocutory appeals that this omnibus item does not meet the requirement of paragraph 1 (1) (c) of the Practice Direction. I maintain that position in this instance.
I had also held that the general notice to produce in paragraph 8 (b) of the petition could only avail the appellants if it was tied to documents already listed in compliance with paragraph 1 (1) (c) of the Practice Directions. As submitted by learned counsel for the 1st and 2nd respondents a notice to produce documents cannot stand on its own. The ballot boxes and their contents were a vital part of the appellants’ petition. There can be no excuse for failing to include them in the list of documents to be relied on at the hearing. Where the appellants failed to comply with the procedure specifically provided for by the Practice Directions they cannot be heard to complain of lack of fair hearing when faced with the consequence of their non-compliance. The ballot boxes and ballot papers were neither pleaded in the petition nor included in the list of documents to be relied on at the hearing.
Paragraph 1 (1) (c) of the Practice Direction requires either copies or a list of every document to be relied on to accompany the petition. The provision clearly envisages a situation where, in certain instances, copies of the documents are unavailable at the time of presenting the petition. In such circumstances, the provision allows a petitioner to give notice of his intention to rely on the said documents by listing them. Where the appellants were unable to file copies of the documents or omitted to list them, paragraph 4 (8) of the Practice Directions provides a remedy by allowing them to seek leave to rely on the said documents upon satisfying the Tribunal that exceptional circumstances exist to warrant the exercise of discretion in their favour. The appellants herein did not avail themselves of this useful provision. The rules of procedure in election petitions are for the benefit of both parties. As observed earlier in this judgment, it would amount to reverting to the old tactics of trial by ambush if omnibus pleading or omnibus listing of documents, as employed by the appellants were allowed to circumvent the front-loading provisions of the Practice Directions. Rules of court prima facie must be obeyed. Requiring strict adherence to paragraph 1 (1) (c) of the Practice Directions in the circumstances of this case cannot be construed as a resort to technical justice.
On the issue of the constitutionality of the Practice Directions, a careful perusal of the record of proceedings reveals that the issue was not raised before the Tribunal and therefore no decision was reached in respect thereof. It is a new issue being raised before this court for the first time. The position of the law is that a fresh issue can only be raised at the appellate court upon leave of the trial court or appellate court having been first sought and obtained. See: Tiza Vs Begha (2005) 5 SC (Part II) 1 @ 21. In Olufeaaba & Ors. Vs Abdur-Raheem & Ors. (2009) 12 SC (Part in 1 (5) 32 lines 8 – 16. the Supreme Court per Fabiyi, JSC stated the position thus:
“An appeal ordinarily presupposes the existence of a decision appealed against. In the absence of such a decision on a point, there cannot possibly be an appeal against what had not been decided against a party. Since there was no decision by the trial court in respect of the point relating to “good cause” advanced before the Court below, it lacked the vires to consider same on appeal.”
The case of: Babalola Vs The State (1989) 7 SC (Part I) 94; (1989) 4 NWLR (115) 264 was cited with approval.
I am guided by the said authority in the instant case and accordingly discountenance the submissions on the issue. In conclusion I find no merit in this interlocutory appeal. It is accordingly dismissed.
According to they record of proceedings of this court, learned counsel for the appellants withdrew the fourth interlocutory appeal on 19/5/09. It was accordingly struck out. Arguments in the appellants’ brief in respect thereof are accordingly discountenanced.
MAIN APPEAL
I had observed earlier in this judgment that the 1st and 2nd respondents raised a preliminary objection to the competence of the main appeal. The preliminary objection will be determined before delving into the merits of the appeal, if necessary.
It is the contention of the 1st and 2nd respondents that grounds 1, 2, 4, 5 and 6 of the grounds of appeal contained in the notice of appeal dated 7/5/08 are defective for the reason that they each allege error in law and in fact in the same ground. He submitted that the said grounds of appeal are liable to be struck out. He relied on: Ufayo Vs Datiri (2008) ALL FWLR (421) 964 @ 973 C – D.
With regard to ground 5, learned Senior Counsel submitted that in addition to the ground alleging error in law and fact, the particulars of the said ground are not based on the ratio of the decision appealed against. He urged the court to hold that ground 5 is incompetent. He relied on: Umar Vs White Gold Ginnery Nig. Ltd. (2007) ALL FWLR (358) 1096 @ 111: Hinterland Resources Ltd. Vs Fixity Investment Ltd. (2007) ALL FWLR (355) 487 @ 500.
Learned counsel submitted further that the particulars of ground 6 do not correctly reflect the decision of the Tribunal appealed against. He submitted that the particulars complain that the Tribunal refused to attach any weight to Exhibits P36 and P37 because their makers were not called. He submitted that while it is correct that the Tribunal refused to attach any weight to Exhibit P36 for the reason stated, its refusal to attach any weight to Exhibit P37 was because its evidential value had been whittled down as a result of cross-examination. He submitted that since the appellants did not challenge the ratio of the decision with regard to Exhibit P37, the particulars of the ground, relating to Exhibit P37 are incompetent. He argued that once a particular of a ground of appeal is struck out, it automatically affects the remaining particulars, as the court has no duty to excise the good from the defective. He referred to the case of: Onabanjo VS The Sheriff High Court of Justice and 2 Ors. in Appeal No. CA/I/192/2006 delivered on 28/5/08 at page 11. He urged the court to strike out ground 6 of the grounds of appeal and the issues formulated from the said ground.
In reaction to the preliminary objection, learned counsel for the appellants submitted that in the case of Ufayo Vs Datiri (supra) relied upon by learned counsel for the 1st and 2nd respondents, the grounds of appeal complained of “error in law and misdirection”, which is not the case with the grounds of appeal now complained of. He referred to the case of: Olanrewaju Vs B.O.N. Ltd. (1994) 8 NWLR (364) 622 & 628 where the Court of Appeal held that the expression “the learned Judge erred in law and on the facts” is not the same as complaining of “error in law and a misdirection.” He submitted that the said view was endorsed by the Supreme Court in: Aderounmu Vs Olowu (2000) 4 NWLR (652) 253 (9) 272. He therefore urged the court to overrule the preliminary objection.
On the competence of a ground of appeal alleging misdirection in law or error of law and on the facts, the Supreme Court in Garuba Vs Kwara Inv. Co. Ltd. (2005) 1 SC (Part II) 80 at 83 per Oguntade, JSC, cited the following dictum of Uwaifo, JSC in Akanbi Vs Salawu (2003) 6 SC (Part II) 144; (2003) 13 NWLR (838) 637 @ pp. 648 – 649 with approval thus:
“I need not go into further discussion of the consequences of framing a ground of appeal as a misdirection in law or of an error in law and on the facts other than to say that such framing does not ipso facto make the ground of appeal incompetent. That would normally raise a ground of mixed law and fact, which is not unusual in many appeals. But it ought to be carefully examined in order to determine its purport. So long as it is not capable of misleading the other party and the court is satisfied that its meaning can be reasonably elicited, it cannot be considered objectionable. See: Thor Ltd. Vs First City Merchant Bank Ltd. (1997) 1 NWLR (479) 35; Aderounmu Vs Olowu (2000) 4 NWLR (652) 253; Odonigi Vs Oyeleke (2000) 6 NWLR (708) 12” (Emphasis supplied)
See also: Aigbohai Vs Aifuwa (2006) 2 SC (Part I) 82 @ 90.
I am well guided by these authorities in the instant case.
There is no complaint by the 1st and 2nd respondents that the grounds of appeal as couched have misled them. I have examined grounds 1, 2, 4, 5, 6 and 7 of the notice of appeal and I am of the view that the complaints in the said grounds are easily discernible. In the circumstances I hold that the objection to the said grounds of appeal for alleging error in law and on the facts lacks merit and is accordingly overruled.
I have considered the second ground of the objection to ground 5 of the notice of appeal. The complaint in that ground is that the trial Tribunal erred in law when it held that it could not attach any probative value to Exhibits P34 and P35 (a) and (b). With regard to paragraph (a) of the ground it is argued that the opinion of the Tribunal’ that the proceedings depicted in the Video CDs i.e. Exhibit P35 (a) and (b) were in a language not known to the court and were not interpreted into the language of the court was not the ratio of the decision. It is contended that the ratio of the decision, as contained on pages 1512 – 1513 of the record was that the appellants failed to relate the contents to specific aspects of their case. With regard to Exhibit P34, which was referred to in paragraph (c) of ground 5 it is argued that the ratio of the decision was not that the Resident Electoral Commissioner was not called as a witness but that the appellants failed to show how the insufficiency of ballot papers affected the result of the election.
I have carefully examined the portions of the judgment complained of in this ground of appeal. With regard to ground (a), I am of the view that the failure to interpret the contents of Exhibit P35 (a) and (b) is one of the reasons the Tribunal held that the appellants failed to relate its contents to specific aspects of their case. Similarly, with regard to paragraph (c), one of the reasons for not attaching probative value to Exhibit P34 was that the Tribunal was of the view that the Resident Electoral Commissioner ought to have been called to show how the state of affairs (insufficiency of ballot papers) affected the election. I therefore hold that the complaint in Ground 5 of the notice of appeal properly arises from the judgment appealed against. The said ground is therefore competent.
With regard to Ground 6, I agree with learned counsel for the 1st and 2nd respondents that the decision of the Tribunal relating to Exhibit P36 was that its probative value had been whittled down as a result of cross-examination. It did not refuse to consider the document on the ground that its maker was not called, which was the case with Exhibit P37. It is therefore correct to say that the complaint in respect of Exhibit P36, which has been merged with the complaint in respect of Exhibit P37, does not arise, from the judgment appealed against. The complaint in respect of each Exhibit in the circumstances ought to have been split into separate grounds of appeal. As the appellants have failed to do so, the defect with regard to Exhibit P36 has tainted the complaint with regard to Exhibit P37. It is not the duty of the court to excise the incompetent particulars from the competent ones. See: Balonwu v. Obi (2007) 5 NWLR (Pt. 1028) 488 at 528 – 529 F – H. 543 E – F. I therefore hold that ground 6 is incompetent. It is accordingly struck out. Arguments in respect of ground 6 canvassed under issue 2 shall be discountenanced.
The preliminary objection therefore succeeds in respect of Ground 6 of the notice of appeal only.
I shall now proceed to consider the main appeal. The appellants formulated three issues for the determination of this appeal as follows:
1. Whether the contents of Exhibit P1 (A) – P33 (H) [Form EC8A (1) series] being the election result sheets for 1, 122 polling units in which election was purportedly conducted in Ogun East Senatorial District on 28 April 2007 established that there was undue election and undue return and non-compliance with the Electoral Act, 2006, which rendered the process of the election invalid. (Grounds 1, 2 and 3)
2. Whether the pieces of oral and documentary evidence offered by the petitioners through Exhibits P34, P35 (a) and (b), P36 and P37 sufficiently proved that there were undue election and undue return and substantial non-compliance with the principles of the Electoral Act, 2006.
(Grounds 5 and 6)
3. Whether the trial Tribunal did not wrongly evaluate or loosely characterize the cogency and effectuality of the entire evidence led before it. (Grounds 4 and 7).
The 1st and 2nd respondents also formulated three issues for determination thus:
1. Whether in view of the pleadings and issues distilled for trial at the pretrial session and the evidence led, Exhibit PI (A) – P33 (H) Form EC8A (1) series could be deployed for any purpose other than establishing “substantial noncompliance with the provisions of the Electoral Act 2006 and “electoral malpractices and corrupt practice.” (Grounds 1, 2 and 3).
2. Whether or not the trial Tribunal’s decision not to attach probative value to Exhibits P34, P35 (a) and (b), P36 and P37 was right?
3. Whether or not the Tribunal properly appraised the evidence led before it? (Grounds 4 and 7).
The appeal shall be determined on the issues formulated by the appellant.
Issue 1
The appellants’ main complaint under this issue is the finding of the Tribunal at page 1529 of the record wherein it held inter alia:
“The documentary evidence received in evidence was not maximally utilized by the petitioners calling credible evidence to link them to the purpose they were meant to serve. Upon this failure of the petitioners to properly link documentary evidence to the substance of the case, learned petitioners counsel quite industriously though, purported to prepare” from the inner recesses of his chambers an ANALYTICAL tabulation of figures derived from what he admitted to be incomplete election results in the form of Form EC8A (1) and purported to introduce same as part of the documents to be acted upon in determining this case.”
(Emphasis supplied by appellants’ counsel).
Learned counsel for the appellants submitted that the “Graphic/Comprehensive Tabulation Schedule,” contained in his written address before the Tribunal analysing the contents of Exhibits PI (A) – P33 (H), does not amount to introducing evidence. He argued ‘that the results from the polling stations in which elections were conducted, as contained in the Form EC8 (A) series, are fundamental for the purpose of determining whether there has been undue return or undue election. Relying on the case of Chukwuma Vs Anyakorah (2006) ALL FWLR (360) 526, he submitted, “any reasonable person with a little effort in arithmetical calculation can determine the result of an election.” He submitted that Exhibits PI (A) – P33 (H) being primary evidence of election results constitute the best evidence of undue return and undue election as indices of substantial non-compliance with the principles of the Electoral Act, which form the substance of the appellants’ complaint.
Learned counsel referred to the Manual for Election Officials 2007 as it relates to the Form EC8A (1) series and submitted that for the proper conduct of an election the presiding officers must comply with all the provisions in the Manual relating to the recording of votes. He argued that where the forms are unavailable or where results were not recorded in a particular polling station, it would be concluded that there were no results at the said polling station. He submitted that since the respondents did not object to the tendering of the certified true copies of the Form EC8A (1) series, the said forms reflect the correct position of the election results conducted into the Senate on 28/4/07. It is the appellants’ contention that there are contradictions between the results announced by INEC on 28/4/07 and the actual results shown in the Form EC8A (1) series, which show the manipulation and lawlessness that tainted the conduct of the election. In paragraph 9.33 of his brief, learned counsel for the appellants highlighted some of the discrepancies in the conduct of the election thus:
(a) The total votes of 293,551 declared for the 1st respondent far exceed the figure of 218, 866 being the actual number of ballot papers issued to all the polling units in the Ogun East Senatorial District.
(b) The combined votes of the PDP (193,087) and AC (11,320) being 204,407 exceed the number of used ballot papers (199,405) and the number of valid votes (203,329). He referred to the Schedule of the Graphic Statement of the Form EC8A (1) series (Exhibits P1 (A) – P33 (H).
(c) By supplying only 218,866 ballot papers to meet the voting need of 366,436 registered voters, a total of 147,570 persons had been disenfranchised in the Ogun East Senatorial District.
Learned counsel submitted that the court is not entitled to speculate on the numerous contradictions in the results. He referred to: Kanumbu Vs Bunu (2006) ALL FWLR (300) 1709: Agbi Vs Oabeh (2006) ALL FWLR (329) 941. He submitted that the consequence of improper report of voting results is that there was undue election and undue return. He referred to Sections 146 and 140 (1) of the Electoral Act. On the importance of Form EC8A as the foundation upon which the pyramid of an election process is built he relied on: Awuse Vs Odili (2005) 16 NWLR (952) 416 @ 488. He submitted further that tendering the forms used by INEC is the only means by which the unlawfulness of the election could be questioned. He referred to: Malumfashi Vs Yaga (1999) 4 NWLR (598) 230 @ 237.
He submitted that the appellants discharged the burden of placing two conflicting election results before the Tribunal, namely the certified true copies of the Form EC8A (1) series obtained from the 3rd and 4th respondents and the results announced by INEC after the conduct of the election. He relied on: Moghalu Vs Ngige (2005) 4 NWLR (914) 1 @ 36; Buhari Vs Obasanjo (2005) ALL FWLR (258) 1605 @ 1694; Swen Vs Dzungwe (1996) NMLR 297 (5) 303; Morgan Vs Simpson (1975) 1 QB 151: Halsbury’s Laws of England Vo1- 15. He submitted that the existence of two disharmonious results is the purest illustration of undue return and improper election. He cited the case of: Nnaji Vs Agbo (2006) 2 EPR 867 & 894.
It was argued on behalf of the appellants that the 3rd and 4th respondents suppressed the results of the election in eight of the eleven wards comprising Ijebu North Local Government in breach of the Tribunal’s order that all result sheets from all the polling units should be certified and made available to the appellants. He urged they court to invoke Section 149 (d) of the Evidence Act against them and to hold that the results of the eight wards, which could be and were not produced would have been unfavourable to them.
In paragraphs 9.53 to 9.127 at pages 49 to 74 of the appellants’ brief, learned counsel for the appellants undertook an extensive forensic analysis of the Form EC8A (1) series i.e. Exhibits P1 (A) – P33 (H). He concluded the analysis by submitting that the finding of the Tribunal that the appellants failed to rebut the presumption of regularity and correctness of the result of the election is unsupported by the evidence elicited from those exhibits. He submitted that the Tribunal failed to consider or give any attention whatsoever to the said exhibits. He submitted further that the Tribunal did not define the type of credible evidence outside Exhibits P1 (A) – P33 (H) required to establish that there was undue return and undue election. He submitted that the exhibits establish non-compliance with the principles of the Electoral Act, undue election and undue return. He therefore urged the court to hold that the election was invalid.
In reaction to this issue, learned Senior Counsel for the 1st and 2nd respondents submitted that from the grounds of the petition, the appellants contested the election on the grounds contained in Section 145 (1) (b) of the Electoral Act. He submitted that the petitioner’s case was limited to the twin grounds of “substantial non-compliance with the provisions of the Electoral Act 2006” and “large-scale electoral malpractice and corrupt practices”. He argued that the issue of undue election and undue return, which is related to the question whether or not the 1st respondent scored the majority of lawful votes was pleaded as a consequence of two grounds of the petition, referred to earlier and could therefore not stand on its own. To further underscore this point he noted that the two issues for determination raised by all the parties at the pre-trial and agreed upon for the determination of the petition were premised on the two grounds of “non-compliance” and “electoral malpractices and corrupt practices”. He referred to pages 1156C – 1156D of the record. He argued that once parties have agreed on the issues for determination at the pre-trial session, it would be inequitable for any of them to raise new issues at the address stage. He relied on: Papianlong Vs Dariye (No.1) (2007) ALL FWLR (373) 1 & 42: (2007) 8 NWLR (1036) 239. He urged the court to uphold the finding of the Tribunal that “such issues as relating to the scoring of majority of lawful -Votes do not form the fulcrum of the petitioner’s case.”
Learned counsel submitted that the Form EC8A (1) series was pleaded and tendered in evidence for a specific purpose, to wit: in support of the averment in paragraph 4 (ii) (h) of the petition on “insufficient provision of electoral materials”. He referred to page 1159C of the record wherein PW12 testified that Form EC8A (1) and EC40 were “to show that insufficient ballot papers were brought to the polling units”. He submitted further that in paragraph 6 of the petition it was also pleaded that the appellants would tender their own copies of Form EC8A (1) for five local government areas to show paucity or insufficiency of ballot papers. He submitted that in the circumstances the said forms could not be used for any other purpose. In support of this contention he referred to: Ishola Vs U.B.N. Ltd. (2005) ALL FWLR (256) 1202 @ 1213: Awuse Vs Odili (2005) ALL FWLR (261) 248. Learned Senior Counsel submitted, without conceding, that even if it were to be argued that having been admitted in evidence the documents could be used for other purposes, they could only be used to establish pleaded facts. He relied on: Olaniyi Vs Elero (2008) ALL FWLR (411) 975 @ 987. He submitted that the issues of improper report of voting, misapplication and manipulation of votes ought to have been specifically pleaded. He submitted that by raising the issue of manipulation of election results the appellants have raised a completely different issue from the issues mutually agreed upon at the pre-trial hearing session. He submitted that issues such as: non-serialisation and binding of ballot papers, non-observance of polling hours, multiple voting, ballot stuffing, voting by unregistered and under aged persons, ballot box disappearance, intimidation and violence pleaded in the petition could not be established through examination of Form EC8A (1) series. He argued that the elaborate analysis of the forms by the appellants’ counsel seeks to prove allegations not made in the petition and to overreach the respondents. He maintained that the analysis addresses issues other than those agreed upon by the parties and which went to trial.
Learned counsel submitted that the appellants had a duty to call evidence and demonstrate publicly before the Tribunal the issues sought to be established through the Analytical Tabulation so that it could be subjected to appropriate cross-examination and scrutiny. He referred to: Duruminiya Vs C.O.P. (1961) NNLR 70 (5) 74: Enemuo Vs Dim (2002) FWLR (1.26) 1004 @ 1015 – 1016 H; Nwaga Vs Regd. Trustees. Recreation Club (2004) FWLR (190) 1360 @ 1380 – 1381- Awuse vs Odili (2005) ALL FWLR (261) 248 @ 321 – 322: Ejiogu vs Onyeaguocha (2006) ALL FWLR (317) 467 @ 490 – 491.
He submitted that the material parts of the document x-rayed in the analytical tabulation were never examined before the Tribunal. He submitted that neither the court nor counsel through his address could link a party’s documents to his case for him. He submitted that the Tribunal rightly discountenanced the analytical tabulation along with Exhibits P1 (A) – P33 (H).
On the contention of the appellants that results do not exist for some wards in Ijebu North Local Government and Ogun Waterside Local Government because INEC failed to produce them at the inspection, learned counsel for the 1st and 2nd respondents submitted that on 14/11/07, when giving the final report of inspection, learned counsel for the appellants informed the Tribunal that they had received all the certified copies of the documents requested for, only to turn around at the point of tendering the documents on 12/12/07 to repeat an earlier assertion that Forms EC8A (1) for eight wards in Ijebu North were not given to them. He further observed that the original complaint was limited to Ijebu North and it was only in the appellants’ written address that the complaint relating to Ogun Waterside was made. Relying on: Odu Vs Jolaoso (2003) 8 NWLR (823) 547 @ 559 – 600 he was of the view that they ought to have taken steps to compel INEC to produce the documents.
He noted that the appellants had pleaded that they had 195 copies of Form EC8A (1) covering five local governments in their possession. He observed that at pages 64, 65 and 66 of the record, results for Omen, Japara/Ojowo and Oke Agbo wards respectively are reflected in the said forms whereas learned counsel for the appellants listed the said wards in paragraph 9.54 (c), (b) and (e) as not having any results. Learned counsel submitted that having been made by the same uniform process the results in the appellants’ possession are primary evidence of their contents. He relied on Section 94 (4) of the Evidence Act and Anyaeabu Vs Uzor (1999) 4 NWLR (598) 184. He argued that even if INEC refused to make certified true copies of the documents available to them, which was not conceded, they ought to have tendered the copies in their possession. He also argued that since the 1st Respondent (RW22) testified under cross-examination that he was given results for all the wards in his local government, Ijebu North, the appellants were at liberty to have tendered the results, which he said were in his possession through Him if the tissue was so fundamental to their case. He urged the court to hold that there existed results for all the polling stations in the Senatorial District, which the appellants refused to tender and/or could, with reasonable diligence have tendered before the Tribunal but failed to do so.
He submitted that apart from the fact that allegation of falsification of election results is a criminal offence, which must be proved beyond reasonable doubt, the invitation to the court to analyse the incomplete results before it raises issues of law, which cannot justify the exercise. Relying on the case of: Malumfashi Vs Yaba (1999) 4 NWLR (598) 230 @ 737 to the effect that the only way to question the unlawfulness or otherwise of some of the votes is to tender all the forms used and call witnesses to testify as to the misapplication of the votes, he observed that the appellants only tendered form EC8A (1) and neglected to tender other forms like EC25, EC40C, EC40D, EC40E and EC1A (1). He further observed that they did not call any witness to testify as to the falsification or misapplication of any votes. He relied on: Yar’Adua Vs Barda (1992) 2 NWLR (231) 638 @ 653: Hashidu Vs Goje (2003) 15 NWLR (843) 352 @ 393. He submitted that rather than relying on evidence from polling agents, the appellants relied on their counsel’s analysis of results, which on their own admission are incomplete. He referred to: Chukwuma Vs Anyakorah (2006) ALL FWLR (302) 121: Adun Vs Osunde (2003) 16 NWLR (847) 643 @ 672 – 673: 666 – 667: 674 – 674 & 669: Moghalu Vs Ngige (2005) 4 NWLR (914) 1 @ 36.
Learned counsel submitted that on the authority of Chukwuma Vs Anvakorah (supra) the possession of “the necessary data … of undisputed results at polling stations” is a precondition for the court in calculating the correct result of an election. He submitted that in this case, not only are the results incomplete, the appellants are alleging that the available results are false. He argued that apart from the fact that the majority of lawful votes was not in issue before the Tribunal, by withholding their own copies of the result from the trial, the appellants have made it impossible for this court to invoke its powers under Section 16 of the Evidence Act in their favour.
In reply to the argument that the appellants went outside the issues for determination mutually agreed upon at the trial, learned counsel for the appellants submitted that issues for determination in an appeal are drawn from the grounds of appeal, which must be derived from the decision appealed against. He submitted that the issues canvassed in an appeal would not necessarily be the same as those argued before the trial Tribunal. He maintained that the issues raised by the appellants are firmly rooted in the decision of the Tribunal.
On the failure to tender Forms EC8A (1) in the appellants’ possession, learned counsel submitted that they were not tendered because the 3rd respondent had indicated in Form TF 008-Answers to pre-hearing information sheet dated 20/8/07 that it would contest documents sought to be tendered by them on the ground that they were inconsistent with those at the 3rd respondent’s disposal, while the 1st and 2nd respondents also filed a statement on 11/9/07 to the effect that they intended to dispute all documents “because they do not exist on grounds of law.” He argued that it is unjust to accuse the appellants of withholding documents because the certified true copies of electoral documents made available by INEC ultimately renders invalid the contents of any documents not in harmony with them.
In determining this issue, I am of the view that it is appropriate to begin with a consideration of the premise upon which the petition was fought before the Tribunal. Learned counsel for the 1st and 2nd respondents has submitted that the appellants raised a different issue at the address stage from the issues mutually agreed upon by all the parties at the pre-trial hearing. Learned counsel for the appellants on the other hand contends that the issues canvassed in this appeal are derived from the judgment appealed against and that the issues in contention at the Tribunal may not necessarily be the same issues in contention before this Court. I am of the view that it is imperative to ascertain the premise upon which the petition was fought before the Tribunal because the Tribunal’s deliberation and final determination of the petition was guided by the said issues.
The grounds upon which a petition may be questioned are set out in Section 145 (1) of the Electoral Act 2006 as follows:
(a) “That a person whose election is questioned was, at the time of the election, not qualified to contest the election;
(b) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;
(c) That the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”
In paragraph 4 (i) and (ii) of the petition at pages 31 – 32 of the record the appellants pleaded thus:
“4. Your petitioners state that the GROUNDS OF THIS PETITION are as follows:
(i) Substantial non-compliance with the provisions of the Electoral Act 2006.
PARTICULARS OF NON-COMPLIANCE
(a) Ballot papers were not bound in booklets and numbered serially with differentiating colours for each office being contested.
(b), Hours of polls were not observed.
(c) The number of ballot papers brought to most polling booths/centres were far less than the number of registered voters who were consequently denied the voting right.
(d) Multiple voting was condoned and allowed by electoral officers.
(e) Ballot stuffing and ballot trading were permitted by the electoral officers.
(f) Multiple thumb printing of ballot papers were allowed.
(g) Form EC8A was not available in some polling centres; photocopies were used in others and bare sheets of paper were used in other locations.
(h) Form EC8A was in most polling centres not counter-signed by the polling agents of the petitioners due to lawful and unlawful practices.
(i) Instances of voting by unregistered and underaged persons as well as by proxies were prominent due to non-accreditation of voters.
(j) Electoral officers in alliance with the agents and members of the 1st and 2nd respondents freely and without restriction took part in stuffing ballot boxes with ballot papers thumb printed secretly by unknown persons.
(k) Several instances of disappearance of ballot boxes were recorded.
(ii) There were incidences of large-scale electoral malpractices and corrupt practices by the respondents, which include:
(a) Use of hooligans to disrupt peaceful conduct of the election or chase away non-PDP members from voting centres;
(b) Intimidation of bona fide voters;
(c) Fraud;
(d) Rigging;
(e) Corruption;
(f) Violence perpetrated by the respondents through the use of guns, matchetes and broken bottles to harass and scare away intending voters;
(g) Thuggery;
(h) Insufficient provision of electoral materials and commencement of election before scheduled time;
(i) Closing of election before scheduled time;
(j) Unregistered persons were allowed to vote by INEC officials.
Summary of Grounds of Petition
“The petitioners thus maintain that the election of 28, April 2007 was invalid by reason of corrupt practices and or non-compliance with the provisions of the Electoral Act and consequently the respondent was not duly elected by majority of lawful votes.”
A careful examination of paragraph 4 reproduced above reveals that the petition was based on the two grounds set out in sub-paragraphs (i) and (ii) i.e. corrupt practices and non-compliance with the provisions of the Electoral Act. Learned counsel’s summary of the said grounds, which includes what may be described as a conclusion, cannot be imported as one of the grounds of the petition. From sub-paragraphs (i) and (ii) there is no doubt that the petition was filed pursuant to Section 145 (1) (b) of the Electoral Act. There is nothing in paragraph 4 above, or indeed the entire petition to suggest that the appellants were relying on Section 145 (1) (c) of the Act. Their contention is not that the respondent was not elected by a majority of lawful votes cast at the election but that the entire process, which led to the declaration of the 1st respondent as winner, was invalid for the reasons enumerated in sub-paragraphs (i) and (ii) above.
I have examined the record of proceedings at pages 1156C – 1156D. At the conclusion of the pre-trial hearing sessions the appellants’ counsel formulated two issues for the determination of the petition thus:
1. Whether or not the 3rd to 1236th respondents have failed substantially to comply with the provisions of the Electoral Act 2006.
2. Whether the Respondents did not commit a large scale (sic) electoral malpractices as to warrant the nullification of the Senatorial Election conducted on the 28/4/2007.
As observed by learned counsel for the 1st and 2nd respondents, the two sets of respondents’ formulated similar issues but with slight differences in the wording. These issues formed the basis upon which the petition was determined.
Learned counsel for the appellants argued that the results from polling units, in this case represented by Exhibits P1 (A) – P33 (H) are fundamental to the determination of whether there was undue election or undue return. The 1st and 2nd respondents agree with the finding of the Tribunal that the said exhibits could only be deployed for the purpose for which they were tendered. Is the expression: “undue election and undue return” a catch-all phrase for every complaint against an election? Section 140 (1) of the Electoral Act provides:
“140 (1). No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an “election petition”) presented to the competent tribunal or court in accordance with the provisions of the Constitution or of this Act, and in which the person elected or returned is joined as a Party.”
What this provision means is that the only way by which an election or a return at an election could be questioned is by way of a petition complaining of undue election or undue return. Section 145 (1) then goes on to specify the four grounds upon which an election may be questioned in a petition. Thus the complaint of undue election or undue return must be founded on any of those four Questions. In the instant case, the complaint was founded on Section 145 (1) (b) of the Act. The issue of tendering two sets of results, one, which the petitioner alleges, is wrong and the other which is correct therefore only arises where the accuracy of the votes is being challenged and the court is being called upon to hold that the person returned was not duly elected by a majority of lawful votes cast at the election. See: Moghalu Vs Ngige (2005) 4 NWLR (914) 1 (5) 36 A – B: Adun Vs Osunde (2003) 16 NWLR (847) 643 @ 672 – 673 H – B; Omoboriowo Vs Ajasin (1984) 1 SCNLR 108.
What was the “purpose for which Exhibits P1 (A) – P33 (H) were tendered? The evidence of the 1st appellant (PW12) at page 1159C of the record is instructive on the issue. He testified thus:
“I have seen paragraph 4 (c) of my sworn statement I obtained the order of this Tribunal to apply to the INEC to give me Certified True Copies (C.T.C.) of all the documents and Forms used in the conduct of the Senatorial Election conducted on the 28/04/2007. The documents are:-
(a) Form EC8A (1) and Form EC40 to show that insufficient ballot papers were brought to the Polling Units. At the time of preparing my petition I had 195 copies of Form EC8A (1) spanning 5 Local Government Areas.”
Certified true copies of the Form EC8A (1) series were then tendered and admitted in evidence as Exhibits PI (A) – P33 (H).
In paragraph 4 (c) of his written statement on oath at pages 89 and 90 of the record, PW12 averred thus:
“4. I verily believe that the conduct of the election process was not in substantial compliance with the provisions of the Electoral Act. The particulars of non-compliance are stated below:
(c)The number or ballot papers brought to most polling booths/centres were far less than the number of registered voters who were consequently denied voting right.”
Thus the exhibits were tendered in respect of paragraph 4 (i) (c) of the petition and paragraph 4 (c) of the 1st petitioner’s written statement on oath. In paragraph 6 of the petition the five local government areas for which the appellants had 195 copies of Form EC8A (1) were listed followed by a tabulation from page 54 – 79 of the record showing the alleged paucity of ballot papers. I agree with the submission of learned counsel for the 1st and 2nd respondents relying on the authorities of Ishola Vs U.B.N. Ltd. (2005) ALL FWLR (256) 1202 @ 1213 and Awuse Vs Odili (2005) ALL FWLR (261) 248. that the Tribunal could only use Exhibits P1 (A) – P33 (H) for the purpose for which they were tendered. The appellants did not plead improper result of voting nor misapplication or manipulation of votes scored by the candidates. The exhibits could not be used to establish the other particulars of non-compliance such as multiple thumb printing of ballot papers, voting by unregistered or under aged voters, non-availability of Form EC8A (1) at some polling centres, the use of photocopies and bare sheets to record results, ballot stuffing and ballot trading among others.
The other issue to be considered is whether the appellants tied Exhibits P1 (A) – P33 (H) to their case. The authorities are well settled that a party relying on documentary evidence to prove his case has a duty to specifically relate each document to the part of his case in respect of which the document is being tendered. See: Awuse Vs Odili (2005) 16 NWLR (952) 416 @ 510 – 551 G – A: Terab Vs Lawan (1992) 3 NWLR 569: Ejiogu Vs Onyeaguocha (2006) ALL FWLR (317) 467 @ 490 – 491: Enemuo Vs Dim (2002) FWLR (126) 1004 @ 1015 E. This court in the case of Nwole Vs Iwuagwu (2005) 16 NWLR (952) 543 @ 571 A – C per Fabiyi, JCA (as he then was) held:
“It must be made clear that a party is under obligation to tie his documents to facts or evidence or admitted facts in the open court and not through counsel’s address – written or oral. This is because it is not part of the duty of a court or tribunal to embark upon cloistered justice by making enquiry into the case outside the court; not even by examination of documents which were in evidence when the documents have not been examined in the open Court nor brought out and exposed to test in court or were not things that at least must have been noticed in the open court.”
(Emphasis supplied).
First of all, as observed earlier, Exhibits P1 (A) – P33 (H) were tendered to show insufficiency of ballot papers and not the alleged discrepancies in the results. Secondly, there was no attempt to tie the said exhibits to the appellants’ case during the course of evidence at the trial. What learned counsel for the appellants did was to prepare a “Graphic/Comprehensive Tabulation Schedule” as part of his written address at pages 1358 – 1387 of the record wherein he undertook a forensic analysis of Exhibits P1 (A) – P33 (H). Having been incorporated in counsel’s final address, there was no opportunity for the respondents to examine and/or challenge the said tabulation in open court. The finding of the Tribunal at page 1529 of the record that “the documentary evidence received in evidence were not maximally utilized by the Petitioners by calling credible evidence to link them to the purpose they were to meant to serve” cannot be faulted. The issue was not whether the tabulation correctly reflected the contents of Exhibits P1 (A) – P33 (H), but that the analysis ought to have been demonstrated before the Tribunal through the witnesses. At the address stage, the respondents had no opportunity to challenge the tabulation. I am of the view and I do hold that the Tribunal rightly discountenanced the “Graphic/Comprehensive Tabulation Schedule” in the circumstances of this case. Without the tabulation the exhibits remained a mere bundle of documents not specifically tied to the relevant aspects of the appellants’ case. This issue is accordingly resolved against the appellants.
Issue 2
In respect of this issue, learned counsel for the appellants at page 76 paragraph 10.2 of his brief referred to reasons given by the Tribunal for its refusal to attach any probative value to Exhibits P34 and P35 (a) and (b), which are Video CD recordings of alleged happenings during the election as set out hereunder:
(a) “The pictorial scenes were enveloped in strange sounds suggestive of transactions conducted in a language foreign to the court and that no witness was called to provide a guide by way of evidence or to interpret or transfer [translate?] the apparent foreign language.
(b) The Resident Electoral Commissioner (4th Respondent) who informed the world that only 60% of the ballot papers were made available for the purpose of the election was not called as a witness.
(c) That the exhibits served as a rare breed of video entertainment lacking in evidential value.”
He argued that with respect to Exhibit P34, which featured the Resident Electoral Commissioner (R.E.C.), the onus was on the respondents to call the said R.E.C. to deny the contents. He contended that the statement of the R.E.C. recorded on Exhibit P34 is in conformity with the analysis of Exhibits P1 (A) – P33 (H), which shows that only 59.72% of ballot papers were available for the election and they appellants therefore did not need to call the 4th respondent to confirm or deny Exhibit P34. With regard to Exhibit P35 (a) and (b) he contended that the Tribunal has complete control over its proceedings and ought to have made use of the services of its Registrar to interpret the contents or alternatively it should have directed that an interpreter be provided. He also argued that the Tribunal members did not state at any time during the proceedings that they did not understand the language spoken therein.
In reaction to this issue, learned counsel for the 1st and 2nd respondents submitted that the language of superior courts of record in Nigeria is the English Language and thus no document tendered, which is in a language other than English Language, could be acted upon by the court unless it is translated into the language of the court. He relied on: Aribisala Vs Ogunyemi (2001) FWLR (31) 2867 @ 2874. He submitted that the primary responsibility of translating the contents of the Video CDs into the language of the court was that of the appellants. He referred to: Ali Vs Audu (2005) ALL FWLR (269) 1909 @ 1919.
In determining this issue, I shall consider the reasons given by the Tribunal for not placing much probative value on Exhibits P34 and P3S (a) and (b). With regard to Exhibit P34, the Tribunal held at page 1513:
“The petitioners were at liberty to call the Resident Electoral Officer for Ogun State to say how the state of affairs affected the elections but they failed to do so. It is not enough to say how much of ballot papers are supplied or not supplied. It must be shown how this state of affairs affected the election. It did not matter that the Resident Electoral Officer was a Respondent … it was held in Madueke Vs Okoroafor (1992) 9 NWLR (263) 69 that “the Electoral officer in charge of an election is competent to give evidence for the Petitioner aggrieved by they result of the election if called to do so.”
The view expressed by the Tribunal was that merely tendering a video recording showing the R.E.C. allegedly stating that only 60% of ballot papers was supplied, is not sufficient without more to prove the appellants’ contention that insufficiency of ballot papers substantially affected the result of the election.
The R.E.C. who was a party to the petition ought to have been called and confronted with the contents of Exhibit P34. The alleged statement ought to have been tied to the appellants’ case through other witnesses, who might have been disenfranchised by not being able to cast their vote on account of insufficiency of ballot papers.
With regard to Exhibit P35 (a) and (b), there is no doubt that the language of the superior courts of record in Nigeria is English Language. The view expressed by Muhammed, JCA in Ali Vs Audu (2005) ALL FWLR (269) 1909 @ 1919 cited by learned counsel for the 1st and 2nd respondents, with regard to reliance on a document that is not in English Language, fully expresses the legal position thus:
“Any document sought to be relied upon by a party which otherwise is not in the English Language must be translated by the party, seeking to rely on it in evidence into the English Language. It is entirely the responsibility of the party that intends to rely on such documents, in this case the appellant, to translate that document… into the language of the Court i.e. English Language. The Trial Court cannot call for its translation or interpretation suo motu as to do that will amount to making a case for the appellant which is not the duty of the court.”
(Emphasis supplied)
I think no more needs to be said on this issue. I hold that the Tribunal was perfectly in order to have discountenanced Exhibit P35 (a) and (b), which were not in the language of the court. This issue is resolved against the appellants.
Issue 3
In support of this issue, learned counsel for the appellants argued that the Tribunal focused on allegations of non-compliance bordering on crime and failed to consider other pieces of evidence which, in his view, established non-compliance with the provisions or principles of the Electoral Act. He submitted that the Tribunal neglected the usefulness and substantiality of the evidence offered by the results of the election as shown in Exhibits P1 (A) – P33) (H). He submitted that the Tribunal drastically reduced the number of witnesses listed by the appellants from 189 to 50. He also argued that the striking out of Paragraphs 5 (f) (ii), (iii), (iv), (v) and (vii) of the petition by the Tribunal was unjustified. He submitted that the striking out of other sub-paragraphs of paragraph 5(A), (B), (D), (E), (F) and (L) on the ground that they are deemed abandoned because no evidence was led on them cannot be supported having regard to the state of the law on election petitions.
He argued that the authority of Buhari Vs Obasanjo (2005) ALL NWLR (273) 1 @ 73 relied on by the Tribunal is not applicable in the circumstances of this case because the case was not decided with reference to the Practice Directions 2007 and also because it dealt with evidence being led in respect of facts not pleaded. He argued that the streamlining policy introduced in the Practice Directions and employed by the Tribunal had the effect of narrowing a party’s opportunity to bring witnesses to prove facts on a wide array of situations. He contended that only three witnesses were called to testify in respect of Ijebu-East Local Government out of twenty listed. He submitted that the policy of streamlining witnesses is to allow the evidence of the few witnesses called to serve and be used as a sample of what occurred in a particular ward or Local Government. He relied on the case of Odi Vs Ndu (1993) 1 NWLR (268) 235 @ 243 and urged the court to hold that the pleaded facts in paragraph 5 of the petition were sufficiently proved by evidence before the court.
In reaction to this issue, learned counsel for the 1st and 2nd respondents submitted that the purport of the decision of the Supreme Court in Buhari Vs Obasanio (supra) was that the “sample evidence” has no place in our judicial system. He submitted that the corollary to the decision in that case to the effect that evidence of unpleaded facts goes to no issue is that pleaded facts not supported by evidence are deemed abandoned. He referred to: UBN Plc. Vs Ayodare & Sons (Nig.) Ltd. (2007) ALL FWLR (383) 1 @ 42; M/V Gongola Hope Vs Smurfit Cases Ltd. (2007) ALL FWLR (383) 1005 @ 1018.
He referred to Paragraph 3 (8) (b) of the Practice Direction and submitted that the purpose of streamlining witnesses is to ensure that only “relevant and indispensable” testimonies are placed before the Tribunal. He argued that it is not the purpose of the provision to introduce the concept of sample evidence. He submitted further that the responsibility of determining what is “relevant and indispensable” testimony is that of counsel. He referred to page 1156A of the record and observed that the Tribunal did not compel the parties to trim the number of witnesses they would call but advised the parties to look at the possibility of trimming down their witnesses to 50 on each side. He further observed that the appellants in fact called only 30 out of the suggested 50 witnesses and could not therefore be heard to complain that the streamlining policy shut out their witnesses.
The essence of the submission of learned counsel for the appellants in respect of this issue is that the Tribunal having ordered the parties to streamline their witnesses could not later turn round and strike out certain paragraphs of their pleading on the ground that evidence was not led in respect thereof.
The directive of the Tribunal to the parties on 1/12/07 at page 1156A of the record was as follows:
“Parties are directed to look at the possibility of trimming down their witnesses to 50 on each side.”
On 4/12/07 learned counsel for the appellants informed the Tribunal that pursuant to the Tribunal’s directive they had come up with “at least 50 witnesses”. Learned counsel for the 1st and 2nd respondents informed the Tribunal that they had a list of 52 witnesses, while learned counsel for the 3rd – 1236th respondents informed the Tribunal that they had a list of 50 witnesses. The order of the Tribunal was clear and unambiguous. It was not a mandatory order compelling the parties to restrict themselves to 50 witnesses each. They were directed to “look into the possibility” of trimming them to 50 each. The fact that the 1st and 2nd respondents indicated that they would call 52 witnesses is a clear indication that the number suggested by the Tribunal was meant as a guide. Under Paragraph 3 (8) (b) of the Practice Directions, the Tribunal has a duty to ensure that hearing is not delayed by the number of witnesses and objections to documents to be tendered. To that extent it has the power to “direct parties to streamline the number of witnesses to those whose testimonies are relevant and indispensable.” As submitted by learned counsel for the 1st and 2nd respondents, a determination of those witnesses whose testimonies are relevant and indispensable could only be, made by the party calling them. The purpose of streamlining the number of witnesses to be called in respect of an election petition is to, avoid a situation where numerous witnesses are called to testify in respect of the same fact, occurring at the same polling unit or station, when the testimony of one of them, if credible, would be sufficient proof of that fact. See: Oji Vs Ndu (1993) 1 NWLR (268) 235 @ 243, cited by learned counsel for the appellants. It was therefore fully open to the appellants to call the number of witnesses whose testimonies they considered to be relevant and indispensable. In the instant case, the appellants called 30 witnesses, fewer than the 50 suggested by the Tribunal. The presumption is that they had critically examined their case and were satisfied that they could succeed on the evidence of the witnesses called. The argument of learned counsel for the appellants that they were prevented from calling all the witnesses required to prove their case is not borne out by the records. The contention that the evidence of the witnesses called was a sample of what occurred at various polling stations throughout the Constituency on the day of the election is not tenable.
I have carefully studied the judgment appealed against. The Tribunal painstakingly considered the oral and documentary evidence before it on a local government by local government basis against the backdrop of the pleadings. The evidence of each of the appellants’ witnesses was scrutinized and married with the evidence in rebuttal given by the respondents’ witnesses. The paragraphs of the petition in respect of which no evidence was led were properly deemed abandoned by the Tribunal. See: Buhari Vs INEC (2008) 4 NWLR (1078) 546 (a) 629 H.
By virtue of Section 146 (1) of the Electoral Act, a person challenging the return at an election on grounds of noncompliance with the provisions of the Act must not only prove that the non-compliance took place but also that the noncompliance substantially affected the result of the election. See: Buhari Vs INEC (2008) 19 NWLR (1120) 246 @ 356 – 357 B – E: Buhari Vs Obasanjo (2005) 2 NWLR (910) 241: Haruna Vs Modibbo (2004) 16 NWLR (900) 487. The Tribunal at pages 1527 – 1529 of the record concluded its review of the evidence as follows:
“Except for a few allegations made directly against the 1st Respondent for which the 1st Respondent testified and rebutted the evidence tendered against him, majority of the petitioners’ witnesses said they never saw him on the day of the election. He was never linked to any violence or thuggery or malpractice by credible evidence. There was also no credible evidence to show how alleged disenfranchisement as borne out of either oral testimony of the Exhibits P1 – P33 for instance affected the elections. Allegations of malpractice with criminal content were never proved beyond reasonable doubt.
No register of voters was tendered to show who voted and was disallowed from voting. The documentary evidence received in evidence was not maximally utilized by the petitioners by calling credible evidence to link them to the purpose they were meant to serve.”
I find and hold that the above finding is fully supported by the evidence before the Tribunal. The mere proof of certain acts of non-compliance with the provisions of the Electoral Act without showing how the non-compliance substantially affected the result of the election, would not result in an election being nullified. Exhibits P1 – P33 were tendered to establish insufficiency of ballot papers. Without tendering the voters register, it was not possible for the Tribunal to determine the number of voters disenfranchised. There was no evidence as to the number of votes the appellants would have scored had the default not occurred. It was also not in dispute that Exhibits P1 – P33 did not represent all the forms used in the election. I had also held in the course of this judgment that the petition was not fought on the basis that the 1st respondent did not score a majority of lawful votes cast at the election. Most of the allegations were of the commission of electoral offences, which the appellants failed to prove beyond reasonable doubt.
Where a trial court has performed its primary duty of evaluating the oral and documentary evidence before it dispassionately and its findings are not perverse, an appellate court would be reluctant to interfere with its decision. See: Bunge Vs Governor, Rivers State (2006) 12 NWLR 573 @ 629 E – H: Saleh Vs B.O.N. Ltd. (976) 316 @ 329 – 330 H – C. I find no reason to disturb the finding of the Tribunal in the circumstances of this case. This issue is accordingly resolved against the appellants.
In conclusion the appeal lacks merit and is hereby dismissed.
The three interlocutory rulings delivered by the National Assembly Election Tribunal, Ogun State sitting at Abeokuta in Petition No. EPT/OG/NASEN/99/08 delivered on 12/12/07, 14/1/08 and 16/1/08 are hereby affirmed. The judgment delivered by the said Tribunal on 17th April 2008 is also affirmed. There shall be costs assessed at N50,000.00 against the appellants and in favour of the 1st and 2nd respondents.
CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading before now the judgment delivered by my learned brother K. M. O. Kekere-Ekun, J.C.A.
The issues raised in the Interlocutory Appeals and the main appeal have been comprehensively dealt with and resolved. I agree with the analytic reasoning and conclusions arrived at in holding that the appeal lacks merit; I also dismiss same and affirm the decisions of the Tribunal in the Interlocutory Rulings and the final judgment respectively.
I abide by the order made as to costs.
SIDI DAUDA BAGE, J.C.A.: I have had the opportunity of reading in draft the lead judgment of my learned brother, Kekere-Ekun, J.C.A. just delivered.
I agree with the reasoning and conclusion that the appeal lacks merit and should be dismissed. I dismiss same and abide by the consequential orders made in the lead judgment including order on Costs.
Appearances
TAIWO KUPOLATI
RICHARD MARK MBARAM For Appellant
AND
OTUNBA KUNLE KALEJAIYE, SAN with A.A. ABIMBOLA ESQ., A. MORONKEJI ESQ., CHIEF O.O. OTAYEMI, TEWO LAMUYE, OLUWOLE KUPOLUYI, OLUMIDE ALIYU, AKINTOBA KALEJAIYE for the 1st and 2nd Respondents.
3rd-1237th Respondents absent and unrepresented by counsel although duly served with hearing notice. For Respondent
