ALYELABEGAN KAYODE A. & ANOR V. SALMAN ABDULFATAI & ORS
(2012)LCN/5085(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of January, 2012
CA/IL/EPT/13/2011
RATIO
EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE THERETO ARE PRIMARILY THE FUNCTIONS OF A TRIAL
Evaluation of evidence and ascription of probative value thereto are primarily the functions of a trial court or tribunal that had the advantage of not only seeing the witnesses but also heard them and observed their demeanour. Where the trial court has, from the printed record unquestionably evaluated the evidence before it and made proper findings therefrom, the appellate court should not interfere.    Evaluation of evidence however goes beyond merely reproducing or repeating the evidence of the witnesses, it entails the weighing of the evidence on the imaginary scale and making the proper findings therefrom. See Guardian Newspapers Ltd. V. Ajeh (2011) 10 NWLR (pt. 1256) 574; Omotoso V. Co-operative Supply Association (2010) All FWLR (Pt. 537) 608; Plateau Investment And property Development company Ltd. V. Philip Ebhota (2001) FWLR (Pt. 64) 375. PER. ISAIAH OLUFEMI AKEJU, J.C.A.
THE DUTY OF THR COURT IN THE EXERCISE OF EVALUATION OF EVIDENCE
In the exercise of evaluation of evidence, the trial court should give equal consideration to the case of the parties; take into consideration the totality of the evidence before the court and not just an aspect thereof as the trial court does not possess the right to pick and select the evidence of the parties. The trial court must place the totality of the evidence on an imaginary scale and decide in whose favour the pendulum tilts. See Buhari V. INEC (2009) All FWLR (Pt.459) 419. PER. ISAIAH OLUFEMI AKEJU, J.C.A.
Justice
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1. ALYELABEGAN KAYODE A.
2. ACTION CONGRESS OF NIGERIA (ACN)Appellant(s)
AND
1. SALMAN ABDULFATAI
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the National and State House of Assembly Election Petition Tribunal, sitting in Ilorin, Kwara State, (hereinafter called the Tribunal) delivered on 12th November, 2011 in respect of the Election Petition No. EPT/KWA/SH/8/2011 filed by the Appellants against the declaration and return of the 1st respondent as the winner of the election conducted by the 3rd respondent on 26th April, 2011 for the Ilorin North/West Constituency Seat of the Kwara State House of Assembly. The 1st Appellant was the candidate of the 2nd appellant while the 1st respondent was the candidate of the 2nd respondent at the said election. The 3rd respondent credited the 1st respondent with 27, 182 votes and declared him as duly elected and returned while the 1st appellant was credited with 19,635 votes. There were other contestants who are not involved in this appeal.
The appellants who were aggrieved by the declaration and return of the 1st respondent filed their Election Petition No. EPT/KWA/SH/08/2011 on 18th May, 2011 on the following grounds:
a. The 1st respondent was not duly elected by majority of lawful votes cast at the election and did not score one quarter of the lawful votes cast in two third majority of the wards in the Ilorin North/West Constituency of Kwara State where lawful votes were cast as required by the provisions of the Constitution as amended and the Electoral Act as amended.
b. Further and in the alternative the election was invalid by reason of corrupt practices or non compliance with the provisions of the Electoral Act.
They consequently prayed for the following:
a. A declaration that the 1st respondent SALMAN ABDUL FATAI sponsored by the 2nd Respondent was not duly elected by a majority of lawful votes cast in the House of Assembly seat to represent Ilorin North/West Constituency of Kwara State.
b. That it may be determined and thus declared that the said election and the return of the 1st Respondent, SALMAN ABDUL FATAI are voided by acts which clearly violate and breach the provisions of the Electoral Act 2010 including but not limited to rigging and manipulation of election results, unprecedented acts of violence, thugery, abduction and coercion of opponents etc committed at the polling units in the constituency aforementioned.
c. That it may be determined that going by the lawful votes cast at the said election your petitioner ought to have been returned and should he returned as the elected (sic) to the Kwara State House of Assembly to represent the Ilorin North/West Constituency.
d. An order declaring the 1st petitioner AIYELABEGAN KAYODE A. validly elected to the Kwara State House of Assembly seat to represent the Ilorin North/West Constituency of (sic) having scored the highest number of lawful votes cast at the election.
e. A declaration that no election took place in Ilorin North/west constituency within the meaning of the Electoral Act, as amended and an order canceling the entire result thereof having regard to the fact that the result issued were products of wrong entries, deliberate manipulations and falsified figures.
In the Alternative:
An order nullifying the election to the House of Assembly Seat to represent the Ilorin North/West constituency of Kwara State in which the 1st Respondent SALMAN ABDUL FATAI was returned the winner by the 3rd Respondent on the ground that there were substantial irregularities and corrupt practices and substantial non-compliance with the provisions of Electoral Act 2010 particularly Sections 57, 58, 59, 66, 120, 123, 124, 125, 126, 127, 128, 129, 130, 131 and other provisions of the Act and order a fresh election.
After hearing the evidence of the parties as well as the final address of counsel, the Tribunal nullified the election in the two wards of Balogun Alanamu and Oloje on the ground that the election in the two wards was inconclusive and ordered that a fresh election be held within 90 days from the date of the judgment. The Tribunal further ordered that:
“… It is only after the collation of the results from the two wards that whosoever wins a majority of valid votes cast in the said election from all the seven wards will be announced and be declared winner in the said Ilorin North/west Constituency.”
The Appellants felt dissatisfied with the judgment of the Tribunal.
They filed Notice of Appeal on 30th November 2011 with seven grounds of appeal, and in pursuance of the appeal, they filed their Appellants’ Brief of Argument on 9th December, 2011 wherein they formulated the following seven issues for the determination of the appeal:
i. Whether the Lower Tribunal was right in failing to determine all the issues submitted to it on all the allegations made in the petition challenging the election results into House of Assembly, Ilorin North/West Constituency of Kwara State held on 26th April, 2011?
ii. Whether the Lower Tribunal was right in failing evaluating (sic) all the documentary und oral evidence placed before it and ascribing probative value, to them in determining the Appellants petition?
iii. Whether the Lower Tribunal indeed misconstrued the Appellants’ case as to the existence of Form EC8C (1) and EC8E (1) before completion of Form EC8 (B) (1) in proof of the Appellants’ petition which misconstruing has occasioned miscarriage of justice to the Appellants
iv. Was the Lower Tribunal right in making an order of fresh election despite the fact that the Appellants were able to prove non-compliance with the Electoral Act as one of the grounds in the petition?
v. Whether the Lower Tribunal rightly rejected on 24th September, 2011, the documents tendered form (sic) the bar having earlier held that the documents passed the litmus test of admissibility?
vi. Whether the Tribunal was right in raising the issue of paragraph 41 (3) of the First Schedule to the Electoral Act suo motu to the admissibility of documents in its Ruling delivered on 24th September, 2011 without allowing the Appellants to address it on the point?
vii. Whether the Tribunal was right in failing to grant the main relief of the Appellants in view of the allegation made in the petition and evidence adduced at the trial?
The learned counsel for the Appellants, Babatunde Irukera Esq. who settled the Brief argued the above issues seriatim.
On the first issue, the learned counsel submitted that a court or tribunal is duty bound to determine every issue submitted to it, citing Chief L. A. Akpan v. Senator Effiong Bob & Ors. (2010) 17 NWLR (Pt. 1223) 421; Okeke-Oba v. Okoye (1994) 8 NWLR (Pt. 364) 605. The learned counsel argued that the Tribunal did not consider the issues of multiple voting, over-voting, alteration, cancellation, manipulations and manufacturing of election results submitted to it by the Petitioners in both their pleading and their arguments, and failed to determine whether or not those allegations were proved by evidence of the Appellants which failure occasioned a miscarriage of justice and rendered the Tribunal’s judgment perverse. He further argued that the Tribunal’s failure to consider all the issues and allegations raised in the petition as well as evidence adduced had touched on the Appellants’ right to fair hearing, citing Uzuda v. Ebigah (2009) 15 NWLR (Pt. 1163) 1.
On the second issue, the learned counsel submitted that a trial court has the primary duty to listen to witnesses and observe their demeanor. It has the duty to admit or reject documents tendered in evidence, and also has the duty to weigh the evidence adduced at the trial and ascribe probative Value to the evidence properly placed before it before arriving at its judgment; counsel cited Mogaji & Ors v. Odofin & Ors (1978) 3-4 SC 91. Counsel argued that the appellants stated that the results recorded for the 1st respondent in 67 polling units out of 173 units of the seven wards were manufactured by 3rd respondent and there were multiple thumb printing, ballot stuffing, over-voting and rigging at the polling units by the 1st and 2nd Respondents through their agents while votes were manipulated and most of the result forms contained alterations, cancellations, deliberate false entries or falsification of results and votes by the 3rd respondent, and so total valid votes were not correct in the 67 units of the constituency.
Appellants’ counsel contended that in proof of the second limb of the petition which is based on irregularities and non-compliance with Electoral Act and Manual for Electoral Officials the appellants established non-signing and non-stamping of electoral forms; that the results in 67 polling units were altered, falsified, manufactured and manipulated. He argued further that both oral and documentary evidence were presented by the appellants in support of the allegations in the second ground of the petition which the petitioners were required to proof on the preponderance of evidence being civil in nature but the tribunal did not make any evaluation of the evidence adduced and so failed to determine the real dispute submitted to it which was whether the 1st Respondent indeed scored the majority of lawful votes at the election or whether the Appellants proved their case on the preponderance of evidence as required by law.
According to the learned counsel, evaluation of evidence by a court or tribunal goes beyond reproducing or restating the evidence or argument of the parties in the judgment, rather, the court or tribunal as the only one that had the unique opportunity of seeing and hearing the witnesses has the duty to appraise the evidence and ascribe probative value thereto by putting such evidence on an imaginary scale of justice to determine in whose favour the balance tilts, and thereafter make necessary findings by applying the law to the facts, citing Anyanwu & Ors v. Uzowuaka & Ors (2009) LPELR – SC 167/2005.
He further argued that the Tribunal did not act upon the evidence before it, but picked only two forms, i.e. EC8B (1) for Balogun Alanamu and Oloje Wards as well as Form EC8E (1) which is the summary of the entire result but neglected other forms EC8A (1) which contained the result of other polling units and held that the election was inconclusive. He submitted that the court or tribunal is not permitted to be selective in the evaluation of evidence but must evaluate the totality of the evidence; Mogaji & Ors v. Odofin & Ors (1978) 3-4 SC 91; Anuonye Wachukwu & Anor v. Amadike Owun-Wanne & Anor (2011) LPELR SC 87/2001.
The learned counsel contended that the failure of the tribunal to evaluate the appellants’ evidence has rendered its judgment perverse as it would have found for the appellants if it has carried out the duty of evaluation. He submitted that a perverse decision must be set aside, citing Tsokwa Motors (Nig) Ltd v. Awoniyi (1999) 1 NWLR (Pt. 586) 199; Kwajaffa v. Bank of the North Ltd (1999) 1 NWLR (Pt. 587) 423; Ademolaju v. Adenipekun (1999) 1 NWLR (Pt. 587) 440; AVPO Plc v. A. G. Enugu State (2000) 7 NWLR (Pt. 664) 260: Iliya A. Lagga v. Audu V. Sarnuna (2008) 16 NWLR (Pt. 114) 427.
On the third issue, it was submitted by counsel that as held in Ogundele v. Agiri (2009) 18 NWLR (Pt. 1173) 219 the law is that a court should not set up for the parties a case that is different from the one they have set for themselves in their pleadings and evidence. Also stated in Oniah V. Onyia (1989) 1 NWLR (pt. 99) 514; Ojo-Osagie V. Adonvi (1994) 6 NWLR (pt. 349) 131. He contended that the tribunal set up a case for the appellants that differed from their own case. The case of the appellants according to counsel was that following from the Forms EC8B (1); EC8A (1) EC8C (1) and EC8E (1) tendered, the result of the election was manufactured or falsified, as against the case of inconclusiveness of the election set up by the tribunal which has shown that the tribunal misconstrued the appellants’ case the result of which is that the decision is perverse and must be set aside, citing Udengwu v. Uzuegbu (2003) 13 NWLR (Pt.836) 136.
Arguing the 4th issue, the learned counsel stated that the case of the appellants was that the 1st respondent did not score the majority of lawful votes and that the election in 67 polling units was marred by irregularities and non-compliance with the provisions of Electoral Act 2010 (as amended) and Manual for Election Officials 2011. He argued that the appellants established non-compliance in 67 units under dispute and the tribunal found that there was non-compliance in respect of Form EC8E (1) which was produced before the collation of results from all the wards that made up the Constituency.
The learned counsel submitted that where unlawful votes are recorded in favour of any candidate in an election, the quantum of the votes unlawfully credited to that candidate must be nullified, and in the instant case the votes from the 67 units complained of should be deducted from the total votes as demonstrated in the chart he prepared for the tribunal. After the nullification and deduction of the unlawful votes, the 1st appellant would have emerged victorious. He opined that based on the evidence at the tribunal, the circumstances for ordering a fresh election did not arise.
The learned counsel submitted that the use of a chart to arrive at the final result of an election has been recognized by the court, citing Ngige V. Obi (2006) 14 NWLR (Pt. 999) 1; INEC V. Oshiomole (2009) 4 NWLR (pt. 1132) 607; Fayemi V. Oni (2010) 17 NWLR 327. He submitted that the appellants had shown on the balance of probabilities that there had been irregularities and non-compliance of substantial nature which was confirmed by the tribunal and such substantial irregularities and non-compliance with the Electoral Act also substantially affected the outcome of the election; Oyegun V. Igbinedion (1992) 2 NWLR (Pt. 226) 747: Ebebe V. Ezenduka (1998) 7 NWLR (Pt.556) 74; Ayua V. Adasu (1992) 3 NWLR, (Pt. 231) 598; Azudibia V. Ogunewe (2004) FWLR (Pt. 205) 289.
This court was urged by counsel to invoke Section 16 of the Court of Appeal Act to do what the tribunal failed to do i.e. by holding that the appellants scored the majority of lawful votes at the election as they established their case if the tribunal had nullified the results in the 67 polling units out of 173 units. The power of this court under Section 16 of the Court of Appeal Act had been reaffirmed in Dapianlong & Ors V. Dariye & Anor (2007) 4 SC (pt. 111) 118. This court is also permitted to do so under Order 4 Rule 9 of the Court of Appeal Rules 2011 as stated in NNPC V. Iyani (2006) 17 NWLR (Pt. 1007) 29; Ideozu V. Odonu (2006)4 NWLR (Pt. 970) 364.
The fifth issue deals with admissibility of documents by the tribunal. The learned counsel submitted that admissibility of documents is governed by the following rules:
a. Whether the facts relevant to the document are pleaded.
b. Whether the document itself is relevant to the fact in issue, and;
c. Whether the document is by its nature admissible in law. He cited Daggash V. Bulama (2004) 14
It is the argument of counsel on this issue that the decision of the tribunal in rejecting the Forms EC25B, EC40A, and EC40C as well as voters registers and ballot papers counted for the 1st and 2nd respondents on the ground that they were tendered from the bar was erroneous as no objection was raised to the tendering of the documents but to admissibility thereof. He contended that the tribunal made a case for the other party as none of the parties raised the issue concerning paragraph 41 (2) of 1st schedule to the Electoral Act relied upon by the tribunal and which provision does not regulate the admissibility of documentary evidence. It was misdirection, counsel argued, for the tribunal to have rejected the documents tendered after finding that they passed the litmus test of admissibility.
The decision of the tribunal, according to learned counsel amounted to wrongful exclusion of admissible evidence which occasioned a miscarriage of justice since the rejected documents would have strengthened, supported and corroborated the allegations of non-accreditation of voters and over voting at the election in the 67 polling units challenged and the decision of the tribunal would have been otherwise. He referred to Section 251 of Evidence Act 2011 and the case of Ezeoke V. Nwagbe (1988) 1 NWLR (pt. 72) 630. He argued further that the documents tendered being certified true copies of public documents could be tendered from the bar and they are not excluded by paragraph 41 (3) of 1st Schedule to the Electoral Act, citing Kuforiji & Anor V. Y. B. (Nig) Ltd. (1931) 12 NSCC 251.
In concluding the argument on this issue, the appellants’ counsel stated thus in paragraph 55 at page 25:
”Having shown that the Tribunal was in grave error for rejecting the document which rejection is substantial, the Appellants however, submit that in the event that this Honourable Court is not disposed to grunting the main prayer in this appeal, the Appellants request that in the alternative and based on the argument canvassed on this issue of wrongful exclusion of evidence, the judgment should be set aside admitting the rejected (sic) as evidence and case remitted back to the Tribunal for re-trial by another panel of justices”
The sixth issue deals with the propriety of the tribunal raising the issue of paragraph 41 (2) of 1st Schedule to the Electoral Act suo motu and applying same to admissibility of documents without allowing the Appellants to address it on that point.
The learned counsel argued that though a court or tribunal is permitted to raise an issue suo motu in the course of the proceedings the court must call on the parties to address it on the issue or point so raised and failure to do so constitutes a violation of the right of the parties to fair hearing. On this point of law, he cited Rekku Fulani & Anor V. Ephraim Danladi Idi (1990) 5 NWLR (Pt. 150) 311; Ezeje V. Anuwu (2008) 12 NWLR (Pt. 1101) 446; Shadi V. Smith (2009) 18 NWLR (Pt. 1173) 330. He submitted that the tribunal was in error to have raised the issue of tendering certified true copies of public documents from the bar and to have applied paragraph 41 (2) of the 1st Schedule to the Electoral Act suo motu without inviting address from the appellants.
On the seventh issue for determination, the appellants’ counsel argued that the judgment of the tribunal is against the weight of evidence adduced at the trial citing Balogun V. E. O. C. B. (Nig) Ltd. (2007) All FWLR (Pt. 382) 1952.
The learned counsel stated that the appellants had complained that the tribunal did not evaluate the evidence; misconstrued the Appellants’ case, raised issue suo motu without allowing the appellants to address it, wrongly rejected evidence that was admissible, and failed to act upon legally admissible and admitted evidence; S. T. B. Ltd. V. Anumnu (2008) All FWLR (Pt.399) 405.
The 1st and 2nd respondents also felt dissatisfied with part of the same judgment of the tribunal delivered on 12th November, 2011 and they filed a Notice of Cross Appeal on 2nd December, 2011 with four grounds of appeal.
The cross appeal was argued in the 1st and 2nd Respondents/Cross Appellants Brief of Argument settled by Akin Akintoye Esq. of counsel and filed on 14th December, 2011. The Brief also contains the argument of the 1st and 2nd respondents on their Notice of Preliminary Objection to the Appellants’ Notice of Appeal raised therein and the argument on the appellants’ appeal. These were argued under Parts A, (Notice of Preliminary Objection) B (Main Appeal) and C (Cross Appeal) respectively.
The preliminary objection, notice of which was filed on 14/12/2011 is premised on the following grounds (without the particulars):
1. The said Notice of Appeal being against two rulings and not judgment of the Lower Tribunal is not competent.
2. The said Notice of Appeal which incorporates another ruling delivered on 24th September, 2011 which was not part of the purported decision of 12th November, 2011 appealed against is incompetent.
3. The ruling of 24th September, 2011 incorporated in the said Notice of Appeal was wrongly appealed against and their (sic) abandoned.
4. The issue relating to the Lower Tribunal’s ruling disallowing the Appellants’ forensic expert to adopt his statement on oath as contained in particular VI of ground one of the Notice of Appeal did not arise or flow from the, decision of the Tribunal delivered on 12th November, 2011.
In his argument on the first ground, the learned counsel submitted that from the face of the Notice of Appeal and its content, the appellants had appealed against a ruling of the tribunal delivered on 12th November, 2011 whereas what the tribunal delivered on that date is a final judgment. He referred to Black’s Law Dictionary 8th Edition, page 858 and cited the cases of Oredoyin V. Arowolo (1989) 4 NWLR (pt. 114) 172, and Saraki V. Kotoye (1992) 9 NWLR (pt. 264) 561 to distinguish between a ruling and a judgment.
The learned counsel submitted further that the employment of the word ”Ruling” by the appellants in their Notice of Appeal is not a mere slip or technicality, but quite fundamental to the competence of this court to determine the appeal since the Notice of Appeal gives life to the appeal itself; Udenigwe V. Emenalo (2009) All FWLR (Pt. 454) 1544; Musa V. Madwette (2003) All FWLR (Pt. 421) 937.
He submitted that as no ruling was delivered on 12th November, 2011 there is no appeal before this court to adjudicate upon, and the notice of appeal being against a ruling is incompetent since there is no right of appeal against interlocutory decisions in an election petition; Olafemi V. Ayo (2009) All FWLR (pt. 452) 1111. He submitted that grounds of appeal must flow or arise from the judgment appealed against; Bamigboye V. Saraki (2009) All FWLR (Pt. 484) 1573; Azazi V. Adhekegba (2009) All FWLR (Pt. 484) 1545.
He contended that the appellants who had filed notice of appeal on 5th October, 2011 against the ruling of 24th September, 2011 but failed to pursue that appeal must be deemed to have abandoned same which has now expired when it was not determined within 60 days from the date of the decision. The appellants cannot incorporate or merge issues in that ruling with the current appeal without first seeking and obtaining the leave of court; Odige V. Obiyan (1997) 10 SCNJ 1.
No specific arguments were rendered in respect of grounds 2 and 3 of the preliminary objection.
On the fourth ground, the counsel submitted that the issue mentioned in particular VI of ground one in the Notice of Appeal did not arise from the judgment of the Tribunal and it cannot constitute an issue in this appeal. In sum, counsel urged that the appeal be struck out.
In part B (pages 7-20) of the Brief, the learned counsel argued against the appeal of the appellants. He set clown the following three issues for determination:
1. Whether the Lower Tribunal evaluated the evidence before it and determined the case of the petitioners rightly.
2. Whether a proper construction of Forms EC8B (1), EC8C (1) und EC8E (1) as they relate to the nullification of the results in Balogun Alanamu and Oloje wards on grounds of non-compliance with the Electoral Act can entitle the Appellants to all their reliefs.
3. Whether the rejected documents by the Lower Tribunal was right.
On the first issue for determination, the learned counsel stated that the appellants had challenged the results in only 67 out of 173 polling units in the 7 wards that constitute Ilorin North/West Constituency of Kwara State. He submitted that the tribunal should have confined itself to those 67 polling units; Ukpo V. Ngaji (2010) 1 NWLR (Pt. 1174) 175. The implication is that the results of the remaining 106 polling units are correct and the election there is free from any error.
He argued further that the allegations against the 67 polling units are on over-voting, multiple voting, cancellations and alterations in the result forms, manipulation and manufacturing of results multiple signing and non-stamping of electoral forms as contained in the pleadings. He contended that the appellants did not provide evidence on these allegations and therefore failed to prove them; INEC V. Ifeanyi (2010) 1 NWLR (Pt. 1174) 98.
He submitted that it is the function of the trial court (or tribunal) to assess and evaluate the evidence before it and ascribe probative value thereto, and the appellate court cannot interfere with that function unless it is shown that the trial court has drawn the wrong inference and conclusion therefrom or that the finding is perverse; Lawan V. Amusa (2009) All FWLR (pt. 485) 1770; Ejiteme V. Okpara (2003) FWLR (Pt. 167) 821; Attorney General, Ekiti State V. Daramola (2003) 10 NWLR (Pt. 827) 104. He contended that the judgment of the tribunal did not contain mere narration or restatement of the evidence of the parties; it shows a proper assessment and evaluation of the evidence. He referred to pages of the record of appeal regarding some of the witnesses and stated that the word ”admitted” used by the tribunal shows that it carried out a proper evaluation of the evidence and made findings of fact.
Counsel submitted that the appellants who called only 7 witnesses could not succeed on the petition as the witnesses failed to demonstrate the irregularities complained of in the exhibits dumped on the tribunal and failed to lead evidence in respect of the alleged wrong doings; Abubakar v. Yar’adua (2003) 19 NWLR (Pt. 1120) 1.
He stated that the tribunal had properly evaluated the evidence, but where this court holds to the contrary, this court should evaluate same under Section 16 of the court of Appeal Act and determine the petition on the materials before the court.
On the second issue, the learned counsel stated that it was not all the duplicate copies of Form EC8A in the 67 polling units that were tendered while the few that were tendered and admitted were not legible and so nothing could be made out of them. He then submitted that even if this court agrees with the appellants that there were manipulations of figures, such manipulations can only concern the polling units covered by the duplicate copies.
He submitted that the part of the tribunal’s judgment on the difference in the dates on Forms EC8B(1) – 27/4/2011, and EC8E(1)-26/4/2011 relates only to two wards of Balogun Alanamu and Oloje and not evidence on the results of the remaining five wards, and the decision of the tribunal cannot be said to be a misconstruction of the appellants’ case which was on figures and election results, but they failed to produce their own version of the correct results as required by law.
On the third issue, the learned counsel submitted that the Tribunal was right when it rejected the bundle of documents tendered by the appellants from the bar, the reason being that the parties did not consent to the tendering of the documents as required by paragraph 41 (2) of the 1st Schedule to the Electoral Act.
The 3rd Respondent’s Brief of Argument was settled by Sunny Olorunmola Ake Esq. of counsel and filed on 16th December, 2011. It contains the argument in support of the preliminary objection of which notice was file on 16th December, 2011.
The 3rd Respondent’s Preliminary objection was anchored on the following grounds:
a. The appellants’ Notice of Appeal dated the 29th day of November, 2011 but filed on the 30th day of November, 2011 was not filed by the appellants against the final judgment of the lower tribunal that was delivered on the 12th day of November, 2011 which incorporated the “Ruling” delivered on 24th day of September, 2011 in petition No. EPT/KWA/SH/8/2011.
b. Grounds five and six as contained in the appellants, Notice of Appeal dated the 29th day of November 2011 are incompetent, because, they were incorporated into the said Notice of Appeal without the requisite order or leave of this Honourable Court.
c. The appellants’ Notice of Appeal dated and filed on the 5th day of October, 2011 against the interlocutory decision of the lower tribunal that was delivered on the 24th day of September, 2011 which is the basis of Grounds five and six in the appellants, Notice of Appeal dated the 29th day of November, 2011 had lapsed or expired by operation of law.
d. The appellants’ Notice of Appeal dated and filed on the 5th day of October, 2011 against the interlocutory decision of the lower tribunal that was delivered on the 24th day of September, 2011 which is the basis of Grounds five and six in the appellants’ Notice of Appeal dated 29th day of November 2011 was filed by the appellants outside the statutory period prescribed for the filing of interlocutory appeals.
e. The appellants have no right in law to have filed their Notice of Appeal dated and filed on the 5th day of October, 2011 since it was a purported appeal against the interlocutory decision of the lower tribunal.
The contention of the learned counsel on the first ground is that the ‘appellants’ notice of appeal dated 29th day of November, 2011 is incompetent having been filed against a “Ruling” delivered on 12th November, 2011 whereas what the tribunal delivered on 12th November, 2011 was the final judgment in the petition and it did not contain or incorporate the ruling delivered on 24th September, 2011.
The learned counsel submitted that based on the foregoing the appellants, notice of appeal was not based on any foundation in law, it is invalid, and should be struck out.
On the second ground, the learned counsel argued that for the appellants to include grounds five and six in their notice of appeal they must first seek the leave of court for the reason that under section 246 (1) (b) (ii) of the constitution of the federal Republic of Nigeria, 1999 (as amended) the appellants have right of appear only against the final decision of the tribunal which in the instant appeal did not arise until 12th November, 2011 when the judgment of the tribunal was delivered. He submitted that the appellants may include interlocutory decisions in the appeal against a final decision, but leave of court must first be sought and obtained to do so, Ogigie V. Obiyan (1997) 10 SCNJ 1. Tiamiyu V. Olaogun (2009) All FWLR (Pt.451) 960. The failure to seek leave has rendered grounds five and six of the grounds of appeal incompetent and should be struck out.
On the third issue the argument of the learned counsel is that the interlocutory appeal filed by the appellants on 5th October, 2011 against the ruling of the tribunal delivered on 24th September, 2011 but which appeal was not concluded within sixty days as required by Section 285 (7) of the Constitution of the Federal Republic of Nigeria, 1999, has lapsed and grounds five and six of the Notice of Appeal dated 29th November 2011 which purported to have incorporated the appeal should be struck out.
On the fourth ground, the learned counsel submitted that by virtue of Section 24 (2) of the court of Appeal Act, 2004, an appeal against the interlocutory decision of court must be filed within 14 days of such decision. He argued that the Notice of Appeal filed by the appellants on 5th October, 2011 against the ruling delivered on 24th September, 2011 without the leave of court was filed two days outside the statutory period as a result of which grounds 5 and 6 that were purportedly incorporated from that notice of appeal should be struck out from the notice of appeal dated 29th November, 2011.
The learned counsel submitted on the fifth ground that Section 246 (1) (ii) of the Constitution of the Federal Republic of Nigeria 1999 forbids the appellants from filing any notice of appeal against interlocutory decision of the tribunal. The appellants therefore do not have such right to exercise. He cited the cases of Olafemi V. Ayo (2009) All FWLR (Pt.452) 1111; Musa V. Madwette (2008) All FWLR (pt. 421) 937; Bamigboye V. Saraki (2009) All FWLR (pt. 484) 1573; Amgbare V. Sylva (2008) All FWLR (Pt. 419) 579.
The merit or otherwise of the appeal was argued by the 3rd respondent on pages 15-28 of the Brief of Argument. Three issues were distilled by the learned counsel for determination as follows:
“1. Whether the tribunal was right to have rejected the documents tendered from the bur by the appellants’ counsel, on the ground that the documents in question, being disputed documents, could not he tendered from the bar under paragraph 41 (2) of the First Schedule to the Electoral Act 2010 (as amended).
2. Whether the tribunal properly evaluated the evidence of the parties and the submissions of counsel placed before it and if not, whether this Honourable court can, on the basis of the scanty, worthless, conflicting and confusing evidence of the appellants adduced before the tribunal grant the appellants’ reliefs as claimed in the instant petition?
3. Whether the tribunal misconstrued the appellants’ complaint about the date on Form EC8B (1) in relation to Alanamu/Balogun and Oloje wards vis-a -vis the date on Form EC8E (1) for the entire Ikorin North/West Constituency?
The above issues were argued in sequence. On the first issue, the learned counsel argued that the decision of the tribunal rejecting the documents tendered or sought to be tendered from the bar was right by virtue of paragraph 41 (2) of the first Schedule to the Electoral Act, 2010 since the documents were disputed documents which could only be tendered through a witness under paragraph 41 (3) of the 1st schedule to the Electoral Act (as amended). He argued further that paragraph 41 (1) (2) and (3) of the Electoral Act 2010 is an innovation and it is designed to govern admissibility of documents in election petition proceedings, and under that provision, the only category of documents that can be tendered from the bar are those to which the parties had consented during the pre-hearing session.
Counsel submitted that election petition matter is governed wholly by statute i.e. Electoral Act 2010 and the provisions of the 1st Schedule to the Act. While a counsel is allowed to tender certified true copies of public documents from the bar in other civil proceedings, it is a different situation in an election petition which is sui generis; Chime V. Ezea (2009) All FWLR (pt. 470) 659. He further submitted that the tribunal was not under any obligation to invite addresses from counsel before taking its decision on the effect of paragraph 41(2) of Electoral Act on the tendering of documents by counsel from the bar which is purely a matter of interpretation and application of the provision of the law; Okonji v. Njokamma (1999) 12 SCNJ 259.
On the second issue, the learned counsel submitted that the evaluation of evidence and ascription of probative value thereto is the primary function of the trial court or tribunal that saw, heard and assessed the witnesses, and where the trial court has evaluated the evidence, appraised the facts and has arrived at a conclusion thereon, the appellate court will not interfere with such findings of fact nor will it substitute its own views on the facts with those of the trial court; Oguonzee V. The State (1993) 4 SCNJ 226; Okino V. Obamebira (1999) 12 SCNJ 27; Nwakasi V. Nwachukwu (2004) All FWLR (pt.210) 292; Jikantoro V. Dantoro (2004) All FWLR (Pt.218) 390. He contended that evaluation of evidence is a matter of style adopted by the trial court and that in the instant case the tribunal did evaluate the evidence.
He contended also that even if the tribunal did not evaluate the evidence of the witnesses and appraise the submissions of counsel, the evidence led by the petitioners is very scanty, confusing, negligible, worthless, inconsequential and at variance with their pleadings, and cannot affect the election of the 1st respondent because the evidence relates to only 8 polling units in the entire Ilorin North/West Constituency of Kwara State that had 7 wards and several polling units. He submitted that the appellants failed to prove the allegations in the petition and failed to join the perpetrators of the acts of violence alleged by them as a result of which the evidence given on such allegations must go to no issue; Baba Ahmed v. Adamu (2009) All FWLR (Pt. 473) 1257.
He contended further that the written statements on oath of the petitioners, witnesses (PW1, PW4 and PW6) are based on or amount to hearsay evidence which the tribunal could not act upon as a court does not act on hearsay evidence; Edu V. C.A.W.R.D (2011) FWLR (Pt. 55) 433.
On the third issue, the learned counsel argued that it was the appellants, counsel who submitted that there was non-compliance with the Electoral Act on the basis that the results from Alanamu/Balogun and Oloje wards were collated on 27th April, 2011 while the final result from the entire constituency was compiled on 26th April, 2011, and it was this counsel’s submission that weighed heavily on the minds of the tribunal in finding that there was non-compliance with the Electoral Act in that respect as there was no issue joined in the pleadings of the parties in relation to dates that appeared on the forms. He submitted that it was wrong for appellants’ counsel to have raised the issue for the first time in the final written address and it was wrong also for the tribunal to have pronounced upon the issue which was not pleaded, but the tribunal did not misconstrue the appellants’ case before it.
The appellants filed on 19th December, 2011, the “Appellants Reply Brief to 1st and 2nd respondents’ Brief of Argument and Appellants/Cross Respondents Brief of Argument.”
The learned counsel for the appellants in his reply to the objection of the 1st and 2nd respondents to the appeal argued that what is required of an appellant under Order 6 Rule 2 (1) of the Court of Appeal Rules is to set forth in the notice of appeal, the grounds of appeal, the whole or part of the judgment complained of, the exact nature of relief sought and the names and addresses of all parties directly affected by the appeal all of which the appellants have stated in their Notice of Appeal, not-withstanding the reference to ruling or judgment. He contended that the Notice of Appeal filed on 30th November, 2011 clearly indicated the decision of the tribunal appealed against to be that delivered on 12th November, 2011 and it can therefore not be argued that there was no appeal against the tribunal’s decision of 12th November, 2011.
The learned counsel argued further that by Section 246 (1) (a) of the Constitution of the Federal Republic of Nigeria, 1999, an appeal to the Court of Appeal shall lie as of right from decisions of the National And State House of Assembly Election Tribunal and by Section 318 of the same Constitution, “decision” in relation to a court means ”any determination of the court and includes judgments, decree, order, conviction, sentence or recommendation.” Uchechukwu V. Bielonwu (2008) Vol. 44 WRN 138 and Awuse V. Odili (2003) 18 NWLR (Pt. 851) 116 were cited in support of his argument that an appeal can lie from any decision of the tribunal. The finality of the decision of court, according to counsel, depends not on the stage of the proceedings at which it has been given, but on whether it has finally determined the rights of the parties, Akinsanya v. U.B.A. Ltd. (1986) 4 NWLR (pt. 35) 273; and the tribunal’s decision of 24th September, 2011 rejecting the appellants’ documents is a final decision that requires no leave under Section 241 (1) of the Constitution.
He argued that the tribunal incorporated its ruling of 24th September, 2011 to the judgment of 12th November, 2011 and therefore made it part of the judgment; Onwe V. Oke (2001) 13 NWLR (pt. 700) 406 and being an issue of wrongful rejection of evidence, leave to appeal is not required; Alabi V. Alabi (2008) All FWLR (Pt.418) 245.
The learned counsel submitted that though a ground of appeal must flow from the text on the judgment, that does not limit the scope of the grounds of appeal as a ground of appeal can arise from a number of situations as held in Akpan V. Bob (2010) 17 NWLR (Pt. 1223) 421. He argued that ground one of the grounds of appeal and the particulars thereto is against the tribunal’s failure to determine the appellants’ application to set aside its ruling disallowing their expert witness from adopting his written statement and it is a valid ground of appeal.
On the appeal, the learned counsel cited the cases of Nwaokorobia V. Uzoho (2007) All FWLR (pt. 376) 729; Akintola V. Adegbite (2007) All FWLR (pt. 372) 189; Arabambi V. Advance Beverages Ltd. (2005) 12 SC (pt. 1) 60 on what constitutes proper evaluation of evidence. He submitted that merely reciting witness’s evidence and reproducing parties’ argument does not amount to, or take the place of evaluation of evidence.
He submitted also that the failure of the tribunal to demonstrate that it evaluated the evidence before it by giving reason for either believing or disbelieving any of the parties’ evidence is fatal to the decision.
Appellants’ counsel stated that the evidence admitted by the tribunal forms part of its records and the tribunal duty bound to look at such documents and it is not correct that the documents were dumped before the tribunal. He submitted that exhibits such as election forms and results are vital evidence provided a party can link them with the facts pleaded in the petition; Terab V. Lawan (1992) 3 NWLR (Pt. 231) 569. He submitted that in the instant case the appellants did not dump the documents before the tribunal; they actually demonstrated their content in the open court.
The learned counsel argued that the contention of the 1st and 2nd respondents that the allegations of manipulation or alteration of figures should be limited to only the areas where duplicate copies were tendered is an attempt to alter their case which they are not permitted to do. He contended that there is evidence covering the whole 67 units that were challenged, but the tribunal evaluated only the evidence of the RW5 and RW6 who were even not the makers of the documents tendered. He submitted that Forms EC8B and EC8E, and the content thereof are the evidence the appellants used to establish their allegation, and the difference in dates needs not be pleaded since it amounts to evidence; Ajadi V. Ajibola & Ors. (2006) 16 NWLR (Pt. 898) 91.
On the competence of the witnesses who were polling agents and ward collation agents/supervisors, counsel contended that they were competent witnesses and their evidence was credible; Aregbesola V. Oyinlola (2011) 9 NWLR (Pt. 1253) 458; Obinwune V. Tabansi-Okoye (2006) 8 NWLR (Pt.981) 104; Lasun V. Awoyemi (2009) 16 NWLR (Pt. 1168), 513.
He maintained that the bundle of documents tendered in respect of appellants’ case was wrongly rejected.
Appellants’ counsel also filed the “Appellants’ Reply Brief to 3rd Respondents’ Brief of Argument” on 22/12/2011. Therein the learned counsel devoted pages 3 to 9 to answering the arguments on the preliminary objection raised in the 3rd respondents’ Brief. It is clear that the arguments and contentions of the appellants are the same as those proferred in the Reply Brief to 1st and 2nd respondents’ Brief as far as the objection is concerned and I need not restate them here again.
In response to the 3rd respondents’ argument on the appeal, the learned counsel contended that the case of the 3rd respondent at the tribunal did not relate to the applicability of paragraph 41 (2) of 1st Schedule to the Electoral Act, 2010 (as amended) and the 3rd respondent did not object to the admissibility of the documents on that ground but it was the tribunal that raised the issue suo motu without allowing parties to address it on the issue. He submitted that the 3rd respondent cannot be permitted to make a different case at this stage; Akpan V. Bob & Ors (2010) 17 NWLR (Pt. 1223) 421.
Appellants’ counsel contended that paragraph 41 (2) of the Electoral Act does not preclude the tendering of certified documents from the bar, and submitted that the Evidence Act 2011 which is the principal legislation on matters of evidence in Nigeria does not preclude the tendering of Certified True copy of public documents from the bar; Kuforiji & Anor. V. VYB (Nig) Ltd. (1981) 12 NSCC 251; Ogbunyiya v. Obi-Okudo & Ors. (1979) 6-9 SC 32. He submitted that where a statute mentions certain things or words, those not mentioned are not intended; Abacha v. FRN (2006) 4 NWLR (Pt. 970) 239; A.G. Ondo State V. A.G. Ekiti (2001) 17 NWLR (Pt. 7430) 706.
On evaluation of evidence by the tribunal, counsel cited Akintola v. Adegbite (2007) All FWLR (pt. 376) 1891 and Nwaokorobia v. Uzoho (2007) All FWLR (pt.376) 729 and submitted that the tribunal failed to adduce reasons for believing or rejecting evidence, and this is fatal to the decision.
On the credibility of PW3, the learned counsel submitted that it is not all contradictions in a piece of evidence that will affect the credibility of the witness; Fatoba V. Ogundahunsi (2003) All FWLR (Pt. 154) 561. He submitted that the wrong description of PW3 in her statement on oath cannot diminish her credibility.
ARGUMENT OF CROSS APPEAL:
The 1st and 2nd respondents argued their Cross Appeal under Part C of the”1st and 2nd Respondents/Cross Appellants Brief of Argument”. They shall hereinafter be referred to as the cross Appellants.
Two issues were formulated for determination:
1. Whether from the State of pleadings and totality of evidence before the Lower Tribunal it was right for it to have nullified and subsequently order a fresh election in Balogun Alanamu and Oloje wards and further hold that the election into the Ilorin North/West Constituency was inconclusive.
2. Whether the Lower Tribunal was justified in the absence of a proper consideration and evaluation of submissions before it to have dismissed the 1st and 2nd Respondents/Cross Appellants preliminary objections to the competence of the Petition.
On the first issue, which concerns the nullification of the election result in the two wards of Balogun Alanamu and Oloje and the tribunal’s holding that the election was inconclusive based on the difference in dates on forms EC8B (27th April 2011) an EC8E (26th April 2011), the learned counsel submitted that it was wrong for the tribunal to have nullified the election in those wards on that basis since that was not made an issue in the pleadings of the parties and the reliefs they sought. The tribunal went outside the pleadings to make the order.
The learned counsel submitted that the parties as well as the court are bound by the pleadings because pleadings are the engine room of litigation and cases are fought on the basis of pleadings; Oke-Bola v. Molake (1975) 12 SC 61. Pleadings determine and delimit the scope of the parties’ legal rights, Kalu V. Uzor (2006) 8 NWLR (Pt.981) 66. It was further submitted that the order of the tribunal amounts to a Father Christmas gift because the appellants did not challenge the inconclusiveness of the election in their entire pleadings and reliefs. The order of the tribunal was a violation of the fundamental rules of pleadings which occasioned a miscarriage of justice, Ngige V. Obi (2006) 14 NWLR (pt.999) 1. The court’s duty is limited to considering and pronouncing only on issues raised in the pleadings, Ukpo V. Ngaji (2010) 1NWLR (Pt.1174) 175.
The learned counsel submitted further that the tribunal failed to take cognizance of the credible and admissible evidence of RW6 who gave the reasons for the difference in the dates on the documents as the pressure of work, and which evidence was not challenged. He argued that the tribunal did not rely on oral evidence before it but allowed itself to be misled by a wrong application of the law as stated in Buhari V. INEC (2008) 4 NWLR (pt. 1078) 247 at 427-428 per Niki Tobi, JSC that courts of law do not go on a frolic or on a journey to collect inculpatory or exculpatory evidence, they deal only with evidence before them. He submitted that the tribunal arrived at a perverse decision.
The learned counsel further submitted that the lower tribunal ought to have placed reliance on the complete set of results before it, i.e. Form EC8A (1) to declare the 1st respondent/cross Appellant as the winner of the election who scored the majority of the lawful votes cast at the election. He submitted that a fresh election will be ordered where the whole election is declared void or where upon deducting the unlawful votes cast at the election, no candidate has satisfied the requirements of the law.
The second issue is the dismissal of the Cross Appellants’ Preliminary objection without properly considering and evaluating the submissions of the parties.
The learned counsel submitted that the tribunal merely glossed over very important issues of jurisdiction raised in the objection and did not do justice to those issues; F.M.H V. Commet Shipping Agencies (2009) All FWLR (pt. 483) 1260; Duzu V. Yunusa (2010) 10 NWLR (Pt. 1201) 80.
He contended that the tribunal merely narrated and summarized the content of the preliminary objection of the cross Appellants without showing how it arrived at its conclusion, and by so doing, it reached a conclusion that is perverse. He contended further that since the objection challenged the competence of the petition mainly on ground that criminal allegations were made against persons not joined as parties, the affected paragraphs and the whole petition should have been struck out.
The learned counsel argued that the tribunal neglected an aspect of the cross Appellants’ submission, but suddenly jumped to conclusion that the petition was competent, while it also failed to consider the cross Appellant’s motion filed on 23rd June, 2011 challenging the competence of the Appellants/Cross Respondents’ Reply to their own Reply which contained extraneous facts not raised in the cross Appellants’ Reply to the petition; Odedo V. INEC (2008) 7 SCNJ 1.
The argument of the Appellants/Cross Respondents in respect of the Cross Appeal is on pages 21-26 of the “Appellants Reply Brief to 1st & 2nd Respondents, Brief of Argument and Appellants/cross Respondents Brief of Argument” filed on 19th December, 2011. They are herein called the Cross Respondents.
The learned counsel formulated two issues for determination:
1. Was the Lower Tribunal right in making an order of fresh election despite the fact that the Appellants were able to prove non-compliance with the Electoral Act as one of the grounds in the Petition?
2. Whether the Tribunal was right in dismissing the 1st and 2nd Respondents/Cross Appellants preliminary objections dated and filed on 6th June, 2011 and 23rd June, 2011 respectively.
On the first issue, counsel contended that the first issue in the Cross Appellants Brief is similar to issue four in the Appellants Brief filed on 9th December, 2011. He adopted his arguments on that issue and applied them to this issue in the cross appeal. He however contended that the evidence of Rw5 and Rw6 were properly evaluated, Akintola v. Adegbite (2007) All FWLR (Pt. 372) 1891.
On the second issue, counsel argued that the allegation of the Cross Respondents in their petition is that there was non-compliance with the provisions of the Electoral Act and the Manual for Election Officials 2011 and that there were irregularities ranging from intimidation, violence and harassment, not allegations of crime as stated by the Cross Appellants. He submitted that the allegations of the Cross Respondents were civil in nature and they were proved at the trial; Aregbesola v. Oyinlola (2011) 9 NWLR (pt. 1253) 453; Omoboriowo V. Ajasin (1984) 1 SCNLR 108. Even where the cross Respondents alleged crime, they had been proved beyond reasonable doubt when the Cross Appellants were unable to contradict or discredit the evidence of the Cross Respondents; Pincent V. The State (1997) 1 NWLR (Pt. 480) 234.
The learned counsel submitted that Section 137 (3) of Electoral Act 2010 (as amended) has provided that a petitioner who complains of the conduct of officials of the Independent National Electoral commission in the conduct of the election needs not join the officials of the commission.
Earlier in the Brief the Cross Respondents had raised ”PRELIMINARY ISSUE OF LAW” that the Cross Appellants’ Brief filed on 14th December, 2011 was filed out of the time allowed by paragraph 10 of Election Petition Tribunal Practice Direction, 2011 which is 10 days from the date of transmission of the records of appeal; also that the said Brief is incompetent for the Cross Appellants’ failure to pay filing fees. The third ”issue” is that the description of the Brief as to whether it is their Respondents’ Brief of Argument or their Cross Appellants’ Brief of Argument.
He submitted that a cross appeal is a separate appeal and processes therein must be paid for; Akpan V. Bob & Ors. (2010) 17 NWLR (Pt. 1223) 421. Failure to pay for filing of Cross Respondents’ Brief is fatal as it amounts to not fulfilling a condition precedent; Madukolu V. Nkemdilim (1962) All NLR 304.
He submitted that the Cross Respondents who filed their Brief out of time required leave to regularize the Brief but they failed to obtain leave; Otu V. A.C.B. International Bank Plc. (2008) 3 NWLR (Pt. 1073) 179. The overall implication is that no issues had been formulated from the grounds of the Cross appeal and therefore deemed as abandoned; O.O.M.F. Ltd. V. N.A.C.B. Ltd (2008) 12 NWLR (Pt. 1098) (sic); Iyoho v. Effiong (2007) 11 NWLR (Pt. 1044) 31; Sunday V. INEC (2009) 12 NWLR (Pt. 1154) 194.
The Cross Appellants responded to the above “Preliminary Issues” through their 1st and 2nd Cross Appellants Reply Brief filed on 22nd December, 2011.
The argument of the learned counsel is that the records of appeal were not fully transmitted until 8th December, 2011 and that the Brief in issue was filed within time since time did not start to run before the 8th December, 2011 and no leave was required; Olu V. A. C. B. International Bank Plc (2008) 3 NWLR (Pt. 1073) 179.
He argued further that he incorporated his argument on the Cross Appeal in compliance with Order 12 Rule 1 and Order 18 Rule 8 of the Court of Appeal Rules 2011 in the payment of filing fees as he paid the fees as assessed by the Registrar; O. O. M. F. Ltd V. N.A.C.B Ltd. (supra).
On the issues formulated and argued by the Cross Respondents, the learned counsel submitted that in nullifying the elections in Balogun Alanamu and Oloje Wards, the tribunal acted as Father Christmas, as the decision was not supported by any evidence and none of the parties asked for the gift. Same should be reversed. The learned counsel argued that though the tribunal evaluated the evidence of RW5 and RW6 and believed that they made human error, the same tribunal came to a conclusion that was against the evidence it believed and this amounts to misdirection.
On the second issue, the learned counsel submitted that the paragraphs of the petition in which allegations of crime were made against persons whose identity was not disclosed and who were not joined as parties should have been struck out since they had no opportunity of presenting their case which amounts to denial of fair hearing.
The “3rd Respondents’ Brief of Argument in respect of 1st and 2nd Respondents’ Cross Appeal” was also filed on 19th December, 2011. Therein the learned counsel, Sunny Olorunmola Ake Esq. formulated three issues for determination as follows:
1. Whether the lower tribunal was right to have nullified the result of the election to the Ilorin North/West Constituency of Kwara State House of Assembly which took place on the 26th day of April 2011 in Alanamu/Balogun and Oloje wards on the sole ground that the election was inconclusive in the said wards when the fact of inconclusiveness of the election was not made an issue before the trial tribunal?
2. Whether the trial tribunal was right to have ordered a fresh election in Alanamu/Balogun and Oloje wards in order to determine the winner of the election to the Ilorin North/West Constituency of the Kwara State House of Assembly which took place on the 26th day of April 2011 when it is evident based on the facts before the Honorable Tribunal, that, even with the nullification of the results in Alanamu/Balogun and Oloje wards, the 1st respondent still had the majority of lawful votes cast of the election in the remaining five wards that make up the Constituency?
3. Whether the lower tribunal was right to have dismissed the 1st and 2nd respondents’ motions on notice dated and filed on the 6th and 23rd day of June, 2011 respectively without giving any reasons for their dismissal?
On the 1st issue, the learned counsel submitted that parties are bound by their pleadings and any evidence not founded upon pleadings goes to no issue, also any averment in pleadings upon which no evidence is led is deemed abandoned; Baliol (Nig) Ltd. V. Navcon (Nig) Ltd. (2010) All FWLR (Pt.532) 1672; address or submission by counsel cannot take the place of evidence; Famoroti V. Akinrinlola (2008) All FWLR (Pt.423) 1374; Okon V. Ita (2011) All FWLR (Pt. 569) 1205; Yoye V. Olubode (1974) 9 & 10 SC 145.
He submitted further on this issue that the inconclusiveness of the election in the two wards was not based on the parties’ pleadings and/or the evidence adduced while the issue of the dates on Forms EC8B (1) and EC8E (1) for the wards and entire Constituency respectively came up only in the final address by the appellants’ counsel and was therefore a new issue that came in through counsel’s final address thereby springing surprise on the respondents; Oloruntoba-Oju V. Abdul-Raheem (2009) All FWLR (Pt. 497) 1. The court must restrict itself to issues properly joined by the parties in their pleadings and should not pronounce upon issues not arising from the pleadings; Martchem Ind. (Nig) Ltd. V. M.F. Kent (W/A) Ltd. (2005) All FWLR (pt. 271); Rini V. Maradun (2008) All FWLR (Pt. 436) 1978.
He contended that it was wrong for the tribunal to have nullified the election in the two wards on ground that the election was inconclusive when such issue was not canvassed by the parties.
On the second issue it is the contention of the learned counsel that even with the nullification, the tribunal should have preceded to declare the 1st cross appellant as the winner of the election on the basis that he still had majority of the lawful votes; Buhari V. Obasanjo (2005) All FWLR (Pt. 258) 1604. The results of the remaining five wards which were admitted required no further proof and must be presumed to be correct by virtue of Section 168 ( 1) of Evidence Act, 2011; Ogu V. Ekweremadu (2005) All FWLR (Pt. 260) 1.
On the 3rd issue the learned counsel argued that the decision of the court or tribunal must be based on law and not on sentiments or extraneous matter. He contended that the decision of the tribunal in respect of the 1st and 2nd respondents’ motions was not based on any law nor were reasons given for dismissing the motions.
At the hearing of the appeal on 5th January, 2012, the learned counsel for the appellants, Babatunde Irukera Esq. adopted all the Briefs filed for the appellants after which the learned counsel for 1st and 2nd respondents, Akin Akintoye Esq., and Chris Ubogu Esq. for 3rd respondent also adopted their own Briefs. Placing reliance on these Briefs, the appellants’ counsel urged that the appeal be allowed, while the cross appeal should be dismissed, the respondents, counsel urged us to dismiss the appeal and allow the Cross appeal.
It is expedient to first settle the preliminary objections of the respondents, the gist of which had earlier been stated in this judgment. The law is that where a preliminary objection is raised in any proceedings or against the hearing of an appeal, it is the duty of the court to consider and pronounce upon that objection before going into other matters. See F.B.N. plc. V. T.S.A. Industries Ltd. (2010) All FWLR (Pt. 537) 633.
However at the hearing of this appeal though the two learned counsel for the 1st, 2nd and 3rd respondents were in court, they failed to raise the objections as preliminary matters by moving them before the appellants’ learned counsel adopted his Briefs of Argument. It is the law that a counsel must move his preliminary objection before the hearing of the appeal, and where counsel fails to do so, the objection is deemed abandoned. See Magit V. University of Agriculture, Makurdi (2006) All FWLR (Pt. 298) 1313; Ajibade V. Pedro (1992) 5 NWLR (Pt.241)257.
Based on this settled principle, the preliminary objections of the Respondents are deemed abandoned and they are accordingly discountenanced.
The appellants formulated seven issues for determination while three issues where formulated by each set of the respondents which issues were distilled from, and cover all the seven grounds of appeal filed by the appellants. The respondents’ issues are quite similar, if not substantially the same as they differ only in the manner in which they are couched. The three issues touch on evaluation of evidence by the tribunal, the Construction of Forms EC8B (1), EC8C (1) and EC8E (1) as they relate to nullification of the election in Balogun/Alanamu and Oloje wards, as well as rejection of documents by the tribunal.
We have also considered the seven issues formulated by the appellants, and not withstanding the style adopted by learned counsel, the seven issues also bother on evaluation of evidence, the construction of Forms EC8B (1) EC8C (1) and EC8E (1) and the admissibility of documents. It will be proper to consider and determine this appeal on the three issues formulated by the 1st and 2nd respondents.
On the first issue, it has been the contention of the appellants that the tribunal did not evaluate the oral and documentary evidence placed before it, but merely reproduced the evidence of the witnesses and failed to determine the real dispute which is whether the appellants proved their case as required by law. The respondents argued per contra.
Evaluation of evidence and ascription of probative value thereto are primarily the functions of a trial court or tribunal that had the advantage of not only seeing the witnesses but also heard them and observed their demeanour. Where the trial court has, from the printed record unquestionably evaluated the evidence before it and made proper findings therefrom, the appellate court should not interfere.    Evaluation of evidence however goes beyond merely reproducing or repeating the evidence of the witnesses, it entails the weighing of the evidence on the imaginary scale and making the proper findings therefrom. See Guardian Newspapers Ltd. V. Ajeh (2011) 10 NWLR (pt. 1256) 574; Omotoso V. Co-operative Supply Association (2010) All FWLR (Pt. 537) 608; Plateau Investment And property Development company Ltd. V. Philip Ebhota (2001) FWLR (Pt. 64) 375.
In the exercise of evaluation of evidence, the trial court should give equal consideration to the case of the parties; take into consideration the totality of the evidence before the court and not just an aspect thereof as the trial court does not possess the right to pick and select the evidence of the parties. The trial court must place the totality of the evidence on an imaginary scale and decide in whose favour the pendulum tilts. See Buhari V. INEC (2009) All FWLR (Pt.459) 419.
In the instant appeal it is gleaned from the records that although the tribunal in its judgment made references to the oral evidence of the witnesses, it merely reechoed what those witnesses had stated without any specific findings thereupon. The tribunal commented only on Forms EC8E (1) and EC8B (1) for the ward of Balogun Alamamu and Oloje wards from the documents presented before it, nullified the election in the two wards and ordered the Independent National Electoral commission (3rd respondent) to conduct election in those wards within 90 days; and concluded thus:
”It is further ordered that it is only after the collation of the results from the two wards that whosoever wins a majority of valid votes cast in the said election from all the seven wards will be announced and be declared winner in the said Ilorin North/West Constituency”
The above order of the tribunal shows that it made a finding and conclusion of a no victor no vanquished without settling the actual dispute submitted for adjudication. The law does not provide a specific mode of writing a judgment, but the court is expected to demonstrate fully that it has comprehensively and dispationately considered the real dispute between the parties, after a full consideration of the facts. The judgment of the tribunal has not met this requirement.
We agree with the appellants that the tribunal failed to properly evaluate the evidence (oral and documentary) of the witnesses and failed to make findings on the res submitted before it. Where the trial court has failed to utilize the advantage of seeing and hearing the witnesses and has failed to properly evaluate the evidence, it is proper to order a retrial. See Okpiri V. Jonah (1961) ANLR 112.
One of the alternative reliefs sought by the appellants is an order for retrial. It is the law that where a trial court has failed in its primary duty of making findings of fact on the issues joined on the pleadings and the nature of the evidence involves the credibility of witnesses as a result of which the appellate court can not make its findings and come to a decision on the relevant issues, the proper order is that of a retrial. See Sha V. Kwan (2000) 5 SC 178.
It has also been held that where a trial court has failed to treat all issues in controversy and there are no sufficient materials before the appellate court for the resolution of the matter, it is proper to make an order of retrial. See Awote V. Owodunni (No. 2) (1987) 2 NWLR (Pt. 57) 367; Nnadozie V. Mbaqwu (2003) All FWLR (Pt. 405) 1613.
In any given case, the appellate court has discretion as to whether or not to order a retrial, and no one decision is a binding precedent in the exercise of such discretion.
We are of the view that the justice of this case will be met by an order of retrial by another tribunal, and in the light of this, it is incumbent on this court to avoid taking decisions on the issues relating to admissibility of documents and construction of Forms EC8B (1), EC8C (1) and EC8E (1) which are the 2nd and 3rd issues in this appeal. In ordering a retrial, the appellate court must avoid taking decisions or making comments that may prejudice the new trial.
CROSS APPEAL:
The Cross Appellants formulated two issues for determination as follows:
1. Whether from the State of pleadings and totality of evidence before the Lower Tribunal it was right for it to have nullified and subsequently ordered a fresh election in Balogun Alamamu and Oloje wards and further-hotel that the election into the Ilorin North/West Constituency was in conclusive.
2. Whether the Lower Tribunal was justified in the absence of a proper evaluation of submissions before it to have dismissed the 1st and 2nd Respondents/Cross Appellants preliminary objections to the competence of the Petition.
The 3rd respondent’s and the Appellants/Cross Respondents, three and two issues respectively are basically the same as the issues formulated by the Cross Appellants.
Having found on the appeal of the appellants that the tribunal did not properly evaluate the oral and documentary evidence before it and failed to make proper findings and conclusion, this court has ordered a retrial of the petition before another tribunal, the two issues in the cross appeal are no more material as in the circumstances caution must be exercised to avoid any comment, statement or conclusion that may prejudice the new trial. The cross appeal is dismissed.
On the whole the appeal is allowed and a retrial of the petition is ordered. The retrial is to be conducted by another tribunal strictly on the pleadings already existing on the records.
There is no order as to costs.
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Appearances
Babatunde Irukera Esq., Bashiru A. Ramoni Esq., and S. O. Giwa Esq.For Appellant
AND
Akin Akintoye Esq., and Sikiru Usman Solagberu Esq.
Sunny Olorunmola Ake Esq. Chris Ubogu Esq., Sunday Martins Esq., and Olemuyiwa Boluwatife Esq.
For respondent
