BONA ORAEKWE & ANOR v. OBIORA CHUKWUKA & ORS.
(2010)LCN/4165(CA)
In The Court of Appeal of Nigeria
On Friday, the 17th day of December, 2010
CA/E/EPT/32/08
RATIO
BRIEF OF ARGUMENT: WHETHER IT IS PERMITTED TO INCORPORATE ARGUMENTS ON A PRELIMINARY OBJECTION IN THE BRIEFS
The Rules of this Court require parties to file briefs of arguments, and it is accepted practice to incorporate arguments on a preliminary objection in the briefs – see Aregbesola V. Oyinlola (2009) 14 NWLR (Pt.1162) 429. PER AMINA ADAMU AUGIE, J.C.A.
BRIEF OF ARGUMENT: ATTITUDE OF THE APPEAL COURT TOWARDS A MERE ASSERTION IN A BRIEF THAT A PARTY WILL NOT BE JOINING ISSUES ON A PRELIMINARY OBJECTION BECAUSE A PARTICULAR DIVISION OF THIS COURT HAS MADE PRONOUNCEMENTS ON THE ISSUE
I must quickly say that a mere assertion that the decisions of this Court have made the arguments on the issue at stake academic is unknown to our Rules, and cannot pass as a submission in any brief of argument. Order 17 rule 3 (2) of the Court of Appeal Rules 2007, reads as follows- “Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, dates and pages of cases reported in the Law Reports or elsewhere including the summary of the decisions in such cases, which the parties propose to rely upon. – – “. Surely, it’s a very lazy approach to brief writing to merely assert in a brief that a party will not join issues on a preliminary objection because a particular Division of this Court has made pronouncements on the issue. PER AMINA ADAMU AUGIE, J.C.A.
GROUND OF APPEAL: WHETHER LEAVE OF COURT IS REQUIRED WHERE A GROUND OF APPEAL INVOLVES QUESTIONS OF LAW ALONE
The Supreme Court settled the issue in Abubakar V. Yar-Adua (2008) 4 NWLR (Pt. 1078) 465, which dealt with an election Petition. It clearly stated at page 525 of the said report that where the Grounds of Appeal against a decision, whether final or interlocutory, involves questions of law alone and it is filed within the time stipulated by the Rules of Court, the appeal is competent; and that no leave is required in such a case. In other words, it is not the law that an interlocutory appeal does not lie as of right from an election Tribunal to this Court, and I will be stating the obvious when I add that any decision of this Court to the contrary has been overruled by the Supreme Court in Abubakar v. Yar-Adua (supra) -see Uduma V. Arunsi (2009) 17 NWLR (Pt.170) 310. PER AMINA ADAMU AUGIE, J.C.A.
GROUNDS OF APPEAL: WHAT AN APPELLATE COURT MUST DO IN MAKING THE DISTINCTION BETWEEN A GROUND OF LAW AND A GROUND OF FACT OR MIXED LAW AND FACT
It is always difficult to distinguish a ground of law from a ground of fact or mixed law and fact, however, in making the distinction, an appellate Court must examine the grounds thoroughly to see whether it reveals a misunderstanding by the lower Court of the law or a misapplication by it of the law to the proved or admitted facts, in which case it would be a question of law; or one that will require questioning the evaluation of the facts before the application of the law, in which case it would amount to a question of mixed law and fact – Ononuju V. AG Anambra State (2009) 10 NWLR (Pt.1148) 182, SC and Ogbechi v. Onochie (1986) 2 NWLR (Pt 23) 484 at 491 SC. PER AMINA ADAMU AUGIE, J.C.A.
ELECTION PETITIONS: WHETHER A GROUND OF APPEAL FROM A FINAL JUDGMENT IN AN ELECTION PETITION THAT INCORPORATES A COMPLAINT AGAINST AN INTERLOCUTORY DECISION IS COMPETENT
Parties are usually advised to appeal against an interlocutory decision in an election matter when they come to appeal against the final Judgment, so as to save time – see Osunbor v. Oshiomole (2007) 18 NWLR (Pt.1065) 32, and it is settled that a ground of appeal from a final Judgment in an election Petition that incorporates a complaint against an interlocutory decision is competent – see Orji v. PDP (2009) 14 NWLR (Pt- 1161) 310, Aodoakaa v. Ajo (supra) and Maduako v. Onyejicha (2009) 5 NWLR (Pt.1134) 259. PER AMINA ADAMU AUGIE, J.C.A.
GROUND OF APPEAL: MEANING AND ESSENCE OF A GROUND OF APPEAL
In simple terms, a ground of appeal is the totality of the reasons why the decisions complained of is considered wrong in law or fact or a mixture of law and fact by the party appealing against the Judgment – see Ehinlanwo v. Oke (2008) 16 NWLR (Pt. 1113) 357 at 395 SC, Ugboaja v. Akitoye-Sowemimo (2008) 16 NWLR (Pt.1113) 278 SC. The essence is to avail the opposite party of the nature of the complaint by the Appellant in words that are not vague, and the purpose of particulars is to elucidate and advance reasons for the complaints in the grounds of appeal – see Abiodun V. FRN (2009) 7 NWLR (Pt.7141) 489. In other words, particulars of error alleged in a ground of appeal are intended to highlight the complaint against the Judgment on appeal – see Diamond Bank Ltd. V. P.L.C. Ltd. (2009) 78 NWLR (Pt.1172) 67 SC. PER AMINA ADAMU AUGIE, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
Between
1. BONA ORAEKWE
2. ACTION CONGRESS Appellant(s)
AND
1. OBIORA CHUKWUKA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. RESIDENT ELECTORAL COMMISSIONER ANAMBRA STATE
4. ELECTORAL OFFICE ONITSHA SOUTH LOCAL GOVERNMENT (LG.A)
5. CONSTITUENCY RETURNING OFFICE ONITSHAL SOUTH CONSTITUENCY II
6. SUPERVISORY PRESIDING OFFICER ODOAKPU 1
7. SUPERVISORY PRESIDING OFFICER ODOAKPU 2
8. SUPERVISORY PRESIDING OFFICER ODOAKPU 3
9. SUPERVISORY PRESIDING OFFICER ODOAKPU 4
10. SUPERVISORY PRESIDING OFFICER ODOAKPU 5
11. SUPERVISORY PRESIDING OFFICER ODOAKPU 6
12. SUPERVISORY PRESIDING OFFICER ODOAKPU 7
13. WARD COLLATION OFFICER ODOAKPU 1
14. WARD COLLATION OFFICER ODOAKPU 2
15. WARD COLLATION OFFICER ODOAKPU 3
16. WARD COLLATION OFFICER ODOAKOU 4
17. WARD COLLATION OFFICER ODOAKPU 5
18. WARD COLLATION OFFICER ODOAKPU 6
19. WARD COLLATION OFFICER ODOAKPU 7 Respondent(s)
AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): The 1st Appellant, was the candidate of the Action Congress [AC], and 1st Respondent, who was sponsored by the Peoples Democratic Party [PDP], vied for the same election into the Anambra State House of Assembly as the Member representing Onitsha South Constituency II.
Dissatisfied with the declaration of the 1st Respondent as the duly elected Member representing the said Constituency, the Appellants filed a Petition at the Anambra State Governorship and Legislative Houses Election Tribunal wherein they prayed the Tribunal for the following –
“– That it be determined that the said Obiora Chukwuka was not duly elected and that his election into the Anambra State House of Assembly for Onitsha South 11 Constituency on the 14th day of April 2007
(1) Is void for reasons of:
(a) Corrupt practices;
(b) Substantial non-compliance with the provisions of the Electoral Act, and
(2) That the said election be nullified;
(3) That fresh election be conducted by the 2nd – 19th Respondents pursuant to paragraph 27 of the 1st schedule to the Electoral Act, 2006.
The Petition was accompanied with 15 Written Statements, however, before trial could commence, the 1st Respondent brought an Application praying the Tribunal to strike out the Petition for want of competence; and/or strike out the said written statements, on the following Grounds –
1. The Petition is not in accordance with the provisions of the Electoral Act 2006 and the First Schedule to the said Act.
2. The Petition did not comply with the mandatory provision of paragraph 4 (1) (c) of the First Schedule to the Electoral Act 2006 having not stated the scores of the candidates in the election as announced by INEC.
3. The purported Written Statements on Oath of the Listed petitioners’ witnesses attached to the Petition did not comply with the mandatory provisions of the Oaths Act.
The Application was argued and in its Ruling delivered on the 4th day of October 2007, the Tribunal struck out the said 15 Written Statements. Dissatisfied with the decision, the 1st Respondent filed a Notice of Interlocutory Appeal dated 20th October 2007 against the said Ruling.
At the end of the day, the Tribunal dismissed the Petition itself in its Judgment delivered on 18th January 2008, and the Appellants appealed against it with a Notice of Appeal dated 6th February 2008. However, the 2nd – 19th Respondents filed a Notice of Preliminary objection challenging the competency of the two Notices of Appeal on the Grounds that –
i. The decision appealed against vide the Notice of Appeal dated 20th October 2007 – – is basically interlocutory in nature and – – is incompetent and gross violation of Section 246 of the 1999 Constitution – – as no appeal lies to the Court of Appeal from an interlocutory decision of the Tribunal.
ii. Grounds 1 and particulars 1, 2, 3, and 4 of the 2nd Notice of Appeal dated 6th February 2008 does not arise from the decision appealed against and disclose no reasonable Ground of Appeal.
iii. Grounds 2, 3, and 4 together with the particulars thereto of the 2nd Notice of Appeal – – are vague, general in terms, does not disclose reasonable Grounds of Appeal and are merely narrative and urging on the Court arguments as opposed to the required particulars and the nature of the misdirection or errors, which should have been clearly stated.
iv. Ground 5 is grossly incompetent as no evidence was proffered by the Respondents.
In other words, they are challenging the competency of the Notice of Interlocutory Appeal (hereinafter referred to as the 1st Notice of Appeal), and the Grounds of Appeal in the Notice of Appeal against the Tribunal’s final Judgment (hereinafter referred to as the 2nd Notice of Appeal).
The Rules of this Court require parties to file briefs of arguments, and it is accepted practice to incorporate arguments on a preliminary objection in the briefs – see Aregbesola V. Oyinlola (2009) 14 NWLR (Pt.1162) 429. In this case, the 2nd – 19th Respondents submitted that the 1st Notice of Appeal is incompetent because no appeal lies as of right to this Court from an interlocutory decision of the Tribunal, and the Appellants did not also seek leave before they filed it, citing Akinsanya v. U.B.A. Ltd (1986) NWLR (Pt 35) 273, Aitara v. Garuba (1995) 6 NWLR (Pt.402) 490, Okon v. Bob (2004) 1 NWLR (Pt. 854) 378, Orubu v. INEC (1988) 5 NWLR (Pt. 94) 323, Okokhue v. Olubadan (/989) 5 NWLR (Pt.120) 185, Aodoakaa v. Ajo (1999) 5 NWLR (Pt. 602) 206, Okonkwo v. Ngige (2007) 12 NWLR (pt- 1047), Odunze v Nwosu (2007) 13 NWLR (Pt. 1050) 1, Kolawole V. Alberro (1989) 1 NWLR (Pt. 98) 382; Okonkwo Vs INEC (2004) 1 NWLR (Pt. 854) 242. Furthermore, that since the 1st Notice and Grounds of Appeal are “comatose and incompetent”, the virus affecting them has infected the issues formulated thereon, citing Obi-Odu v. Duke (2006) 1 NWLR (Pt 961) 375, Welle v. Bogunjoko (2007) 6 NWLR (pt. 1029) 125, Borishade V. N.B.N. Ltd (2007) 1 NWLR (Pt 1015) 217, thus, this Court was urged to strike all of them out.
The Appellants filed a Reply Brief to the Preliminary Objection, where they stated as follows on the objection to the 1st Notice of appeal-
“This issue would have been a life issue for argument but for the several decisions of the Court of Appeal, Enugu Division on the Ruling complained of in the said Notice of Appeal. In view of these decisions, I do not intend to join issues with the Respondents on this preliminary objection. Those decisions have made the arguments on this preliminary issue academic”.
I must quickly say that a mere assertion that the decisions of this Court have made the arguments on the issue at stake academic is unknown to our Rules, and cannot pass as a submission in any brief of argument.
Order 17 rule 3 (2) of the Court of Appeal Rules 2007, reads as follows-
“Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, dates and pages of cases reported in the Law Reports or elsewhere including the summary of the decisions in such cases, which the parties propose to rely upon. – – “.
Surely, it’s a very lazy approach to brief writing to merely assert in a brief that a party will not join issues on a preliminary objection because a particular Division of this Court has made pronouncements on the issue.
The 2nd – 19th Respondents challenged the 1st Notice of Appeal on the ground that the Ruling was an interlocutory Ruling, and under Sections 240 and 246 of the 1999 Constitution, an appeal does not lie as of right from the decision of the Tribunal to this Court. They also proffered a number of authorities to buttress their submissions. The Appellants should have done their homework and proffer arguments to counter same, or at the very least, cite the decisions of this Court on the matter.
Be that as it may, I will promptly say that the preliminary objection raised by the said Respondents on this score, absolutely lacks merit. The Supreme Court settled the issue in Abubakar V. Yar-Adua (2008) 4 NWLR (Pt. 1078) 465, which dealt with an election Petition. It clearly stated at page 525 of the said report that where the Grounds of Appeal against a decision, whether final or interlocutory, involves questions of law alone and it is filed within the time stipulated by the Rules of Court, the appeal is competent; and that no leave is required in such a case. In other words, it is not the law that an interlocutory appeal does not lie as of right from an election Tribunal to this Court, and I will be stating the obvious when I add that any decision of this Court to the contrary has been overruled by the Supreme Court in Abubakar v. Yar-Adua (supra) -see Uduma V. Arunsi (2009) 17 NWLR (Pt.170) 310.
As to the issue of leave, the question now is whether the Grounds of Appeal in the 1st Notice of Appeal involve questions of law or not, because if they do, leave is not required. It is always difficult to distinguish a ground of law from a ground of fact or mixed law and fact, however, in making the distinction, an appellate Court must examine the grounds thoroughly to see whether it reveals a misunderstanding by the lower Court of the law or a misapplication by it of the law to the proved or admitted facts, in which case it would be a question of law; or one that will require questioning the evaluation of the facts before the application of the law, in which case it would amount to a question of mixed law and fact – Ononuju V. AG Anambra State (2009) 10 NWLR (Pt.1148) 182, SC and Ogbechi v. Onochie (1986) 2 NWLR (Pt 23) 484 at 491 SC.
The Grounds of Appeal in the 1st Notice of Appeal are as follows –
1. The trial Tribunal erred in law when it struck out the statements on oath attached to the Petition on the grounds of non compliance with the provisions of the Oaths Act and this led to a miscarriage to a miscarriage of justice.
2. The learned Chairman and Members of the election Tribunal erred in law when they struck out the statements on oath attached to the Petition when by virtue of Sections 4 (2) of the Oaths Act any irregularity in the form in which an oath or affirmation is administered or taken shall not invalidate any proceedings in any Court or render inadmissible evidence in or in respect of which an irregularity took place in any proceedings, and this error led to a grave miscarriage of justice.
3. The trial Tribunal erred in law and thereby arrived at a wrong decision when it held that there had been total non-compliance with the provisions of the Oaths Act when from the impugned statements on Oath it was clear that the provisions of the Oaths Act had been fully complied with.
4. The Tribunal erred in law when it relied on the provisions of the Election Tribunal and Courts Practice Directions 2007 which is not valid in law to strike out 15 witness statements on oath.
5. The Election Tribunal erred in law when it struck out the witness statements on the ground of alleged defect in form only.
Obviously, the gist of the Appellants’ grouse in the interlocutory appeal is that the Tribunal misapplied the provisions of the Oaths Act. No doubt, the Grounds of Appeal in the 1st Notice of Appeal involve questions of law, and the Appellants do not require leave to file same. What is more, the Ruling appealed against was delivered on the 4th of October 2007, and the Notice of Appeal was filed within time on the 20th of October 2007, the Objection on this ground fails, and is dismissed.
But that is not all; the said Respondents also challenged the competency of Ground 1 of the Grounds of Appeal in the 2nd Notice of Appeal and issue 1 there-from on the ground that they touch on the striking out of witness statements in the interlocutory decision. It was submitted that a ground of appeal has to relate to the Judgment appealed against and be a challenge to the validity of the ratio of the decision as there is no such thing as an appeal at large; and that the said particulars of denial of fair hearing refers to the striking out of the Witnesses Statements in the Tribunal’s interlocutory decision, thus, the Ground is incompetent and liable to be struck out, citing Obi Odu v. Duke (supra), N.H. Int’ S. A. V. NICON Hotels Ltd (2007) 15 NWLR (Pt.7056) at 36; and Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416 at 462.
Again, this leg of objection lacks merit. Parties are usually advised to appeal against an interlocutory decision in an election matter when they come to appeal against the final Judgment, so as to save time – see Osunbor v. Oshiomole (2007) 18 NWLR (Pt.1065) 32, and it is settled that a ground of appeal from a final Judgment in an election Petition that incorporates a complaint against an interlocutory decision is competent – see Orji v. PDP (2009) 14 NWLR (Pt- 1161) 310, Aodoakaa v. Ajo (supra) and Maduako v. Onyejicha (2009) 5 NWLR (Pt.1134) 259.
Thus, the interlocutory appeal and Ground 1 of the Grounds of Appeal in the 2nd Notice of Appeal are competent, and the objection is dismissed.
They also objected to Grounds 2, 3 & 4, which complains as follows –
Ground two – The Tribunal erred in law when it held that the burden of proving that the result forms were not eventually provided by the Electoral Officer was at all times on the Petitioner even when the Petitioners have by credible evidence proved that as at 12 noon (of) – – the day of the election, the Electoral Officer was still promising that he will go to Awka to collect the result forms for the election.
Particulars
1. The Petitioners pleaded that the Result Sheets were not provided for the election.
2. The Tribunal found as a fact that as at 12 noon result sheets for the election had not been brought to Onitsha from Awka and that the Electoral Officer promised to go to Awka later to get the result sheets.
3. There was no evidence from the Respondents to show that the Electoral Officer eventually brought the result sheets.
4. There was no evidence from the Respondents that the Electoral Officer distributed the result sheets to the Supervisory Presiding Officers – – .
5. The Result Sheets were supposed to be distributed in the morning of the election of the election to the Supervisory Presiding Officers.
6. The burden which the Tribunal placed on the Petitioners affected the Judgment of the Tribunal.
Ground Three – The – – Tribunal erred in law when having held that Election started late in all the seven Wards in the Constituency, the Tribunal sill failed to nullify the election for substantial non-compliance with the provisions of the Electoral Act.
Particulars
1. The Tribunal found as a fact that as at 12 noon the Supervisory Presiding Officers refused to collect the materials distributed because of the non-availability of the Result Sheets.
2. There was evidence that as 12 noon electorates, agents and candidates were protesting the non-availability of the Result Sheets for the conduct of the election.
3. The evidence of the Petitioners Witnesses that the voting commenced in some polling booths were material got to about 2.30pm and lasted for barely 10 minutes before the disruption by irate electorates for non-availability of result sheets was not challenged.
4. The Respondents pleaded that voting ended about 3.30pm.
5. By the Provisions of the Guidelines to election Official, voting should commence at 8am and close at 3pm.
6. An election wherein voting started at 2.30pm and ended at 3.30pm cannot be said to be fair to the electorates and the Petitioners.
Ground Four – The – – Tribunal erred in law when they refused to nullify the election – – on the grounds that the said election was void for reasons of substantial noncompliance with the provisions of the Electoral Act 2006.
Particulars
1. Election includes all the processes necessary to arrive at a fair result
2. The Petitioners Pleaded that –
(i) The Result Sheets were not provided for the election.
(iii) Electorates refused to vote because of the non-availability of the Result Sheets.
(iii)Where other electoral materials reached the polling booth, voting commenced about 2.30pm and lasted for barely 10 minutes before protesting electorates disrupted the election.
(iv)There was no collation or result and there was no declaration of the result of the election.
(v) Voters Register was not generated from the polling booth.
(vi)The results as announced by INEC were not generated from the polling booth.
3. Evidence of these facts of substantial non-compliance were given at the trial.
4. These facts of non-compliance substantially affected the result of the election.
5. The Tribunal ought to have nullified the election and order fresh election.
It is their contention that the said Grounds and particulars are – “vague, general in terms, does not disclose reasonable Grounds of Appeal and are merely narrative and urging on the Court arguments as opposed to the required particulars and the nature of the misdirection or errors which should have been clearly stated”, relying on Awuse v. Odili (supra).
This time, the Appellants countered that the said Grounds 2, 3 & 4 attacked the real issues in contention, and are competent, not narrative, argumentative or vague, and disclose reasonable grounds of appeal. They further submitted that the cases cited by the Respondents are not useful; and that they have not shown why the Grounds are incompetent.
In simple terms, a ground of appeal is the totality of the reasons why the decisions complained of is considered wrong in law or fact or a mixture of law and fact by the party appealing against the Judgment – see Ehinlanwo v. Oke (2008) 16 NWLR (Pt. 1113) 357 at 395 SC,
Ugboaja v. Akitoye-Sowemimo (2008) 16 NWLR (Pt.1113) 278 SC.
The essence is to avail the opposite party of the nature of the complaint by the Appellant in words that are not vague, and the purpose of particulars is to elucidate and advance reasons for the complaints in the grounds of appeal – see Abiodun V. FRN (2009) 7 NWLR (Pt.7141) 489.
In other words, particulars of error alleged in a ground of appeal are intended to highlight the complaint against the Judgment on appeal – see Diamond Bank Ltd. V. P.L.C. Ltd. (2009) 78 NWLR (Pt.1172) 67 SC.
In this case, I may agree with the 2nd – 19th Respondents that some of the Appellants’ Grounds of Appeal could have been better drafted, and that some of the particulars are more of submissions in a brief of argument than particulars of error clarifying reasons for their complaints. For instance, particular No. 6 in Ground 3 that – “an election wherein voting started at 2.30pm and ended at 3.30pm cannot be said to be fair to the electorates and the Petitioners” and particular 1 in Ground 4 that – “election includes all the processes necessary to arrive at a fair result”, cannot by any yardstick be a particular of error to a ground of appeal. But the rules relating to formulations of grounds of appeal are primarily designed to ensure fairness to the other side, and to insist on form rather than substance is to defeat the aims of justice – see Aderounmu v. Olowu (2000) 4 NWLR (pt. 652) 253 SC, where Ayoola JSC added- “- – The application of such rules should not be reduced to a matter of mere technicality, whereby the Court will look at the form rather than the substance.
The prime purpose of the rules of appellate procedure, both in this Court and the Court of Appeal, that the Appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal; and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal, is to give sufficient notice and information, to the other side of the precise nature of the complaint of the Appellant and, consequently, of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out notwithstanding that it did not conform to a particular form” (Italics mine).
In this case, the said Grounds 2, 3 & 4 and particulars are very clear on the specification of the alleged errors in the Judgment appealed against, and the 2nd – 19th Respondents cannot say that they have not been given sufficient notice and information of the precise nature of the complaints against the Judgment, and issues that are likely to arise on the appeal. Consequently, their objection to the said Grounds of appeal is overruled.
They also objected to the omnibus Ground 5 that – “the Judgment is against the weight of evidence”, on the ground that they did not proffer any evidence, and that it is not in all situations that an Omnibus ground can be alleged, citing Ojong V. Duke (2003) 14 NWLR (Pt. 841) 581.
The Appellants, however, countered that Ojong V. Duke (supra) can be distinguished from this case because there was no issue of fact in that case, while in this case, they led evidence at the trial, and the Tribunal analyzed the evidence led before it arrived at its conclusion.
I have to agree with the Appellants. When an Appellant complains that the decision of the lower Court is against the weight of evidence, what he means is that when the evidence adduced by him is balanced against that adduced by the Respondent, the Judgment given is against the weight, which should have been given to the totality of the evidence. In other words, appeal against weight of evidence is basically on facts – see Agbamu v. Ofili (2004) 5 NWLR (Pt- 867) 540. In this case, the 2nd – 19th Respondents may not have adduced any evidence at the Tribunal, but it is on record that the Appellant called three witnesses and tendered five exhibits; and that the Tribunal found as follows in its Judgment –
From the totality of the evidence placed before this Tribunal, it is evident from the interview in Exhibit “A” that voting commenced late in the polling units in the 7 wards – – it is also clear from the testimonies of the PW1 – PW3 that no evidence was led on any irregularity in the election process in Wards 1, 2, 3, 4, 5, 6 and 7 – – except for the four units covered by the PW2 – –
The Tribunal thereafter concluded as follows at page 319 of the record –
“—The burden is on the petitioners who alleged that election did not hold in Onitsha South Constituency to plead and lead evidence on all material facts required to prove. – – In this petition, the Petitioners have failed to prove their case by preponderance of evidence, and therefore failure to satisfy the provisions of sections 135, 137 of the Evidence Act. They have to succeed on the strength of their case; not on the weakness of Respondents’ case. Having failed to discharge this burden of proof, this Petition cannot succeed. It fails and is accordingly dismissed”.
The situation in Ojong v. Duke (supra) is completely different from this. In that case, the Petition never went to trial. It was struck out at the interlocutory stage of the proceedings, and since no evidence was led in the Petition, this court held that the issue of weight of evidence did not arise, and the omnibus ground was struck out for being incompetent. The Petition that led to this appeal was heard on the merits, thus, the objection to the omnibus Ground lacks merit, and it is also dismissed.
Having dealt with the objections, we now come to the main appeal. The Appellants distilled four issues for Determination from the five Grounds of Appeal in their brief prepared by O. Onyekwuluje, Esq. thus –
1. Whether the tribunal was right when it struck out the written statements of the Petitioners witnesses on the ground that they did not comply with the Oaths Act and has not qualified to be statements on oath and therefore deprived the Petitioners their right of fair hearing.
2. Whether the Tribunal was right when it held that the burden of proving that the result sheets were not eventually distributed still lay on the Petitioners who have proved that as at 12 noon the result sheets have not arrived from Awka to INEC office Onitsha for distribution for use at the election.
3. Whether the Tribunal was right when after holding that elections started late as scheduled did not nullify the election and the declaration made.
4. Whether the Tribunal properly evaluated the evidence led at the hearing, and drew proper conclusions and inferences from the evidence showing that the election was not conducted in substantial compliance with the provisions of the Electoral act.
The 1st Respondent filed an “Amended 1st Respondent’s Brief/Amended Cross-Appellant’s Brief of Argument”, settled by Arthur Obi Okafor, Esq., wherein he formulated two issues for Determination for the main appeal.
1. Whether the Court below was right in striking out the written statements of the Appellants’ witnesses which were not made on oath.
2. Whether the Honourable Tribunal was right in dismissing the Petition.
The 2nd – 19th Respondents adopted the four issues formulated by the Appellants in their own brief prepared by S. O. Ibrahim, Esq. In my view, the two issues formulated by the 1st Respondent are more apt and straight to the point, and I will adopt them in dealing with this appeal.
The first issue is hinged on the Tribunal’s decision to strike out the written statements of the Appellants’ fifteen witnesses, as follows –
“- – A deponent is not bound to adhere strictly to the format prescribed in the First Schedule to the oaths Act – – It suffices if there is substantial compliance with the requirement of the Act – – see Lonstar Drilling v. Trirer Engr (supra) where a deponent concluded (with) – – “I deposed to this affidavit in good faith. This Tribunal in its previous decisions had never insisted on total compliance with the oaths Act. Our approach has been one of liberation. This is also manifested in the instant Petition where the first statement on oath – – commenced with the words “hereby state on oath…” has been saved for substantial compliance with the oaths Act. The concluding part is bereft of the format prescribed in the first schedule hereto. This is the statement on oath of Barrister Pat Obum which we hereby hold to be in substantial compliance with the Oaths Act. On the contrary, the statements of all the 15 other witnesses to wit – – which do not evince any substantial compliance are hereby struck out”
In contending that the Tribunal erred in striking out the said statements, the Appellants referred this Court to – the oath for affidavit in the First Schedule to the Oaths Act (Form A); this Court’s decisions in NNB Plc V. IBWA Ent. Ltd. (1998) 6 NWLR (Pt. 558) 446, Lonesrar Nig. Ltd. V. Triveni Eng. & Co. Ltd. (1991) 1 NWLR (Pt. 558) 662, relied on by the Tribunal; Paragraph 1 of the Election Tribunal and Court Practice Direction 2007 (hereinafter referred to as the Practice Direction); Sections 5 (1) and 6 of the Oaths Act; and Ibrahim V. INEC (1990) I NWLR (Pt. 614) 334, which they rely on in support of their contention.
It is their contention that all the written statements on oath attached to their Petition satisfied the requirements of the Oaths Act because they are headed STATEMENT ON OATH and concluded with – “SWORN TO AT AWKA, THIS 11TH DAY OF MAY, 2OO7 – BEFORE ME – – NOTARY PUBLIC’, and were signed and stamped by the Notary Public and dated.
It was further submitted, citing Sections 82, 90 and 150(1) of the Evidence Act that there is therefore the presumption of regularity of law that all that was required to be done in compliance with the Oaths Act have been done, and that the Tribunal was therefore wrong to hold that the said Statements did not evince any substantial compliance with the Oaths Act, and this has occasioned a grave miscarriage of justice.
They further argued in the alternative that even if the Tribunal is right, the omission was a mere defect or an irregularity, which is cured by Section 4 (2) of the Oaths Act, citing Anatogu v. Iweka 11 (1995) I NWLR (Pt 415) 547, Fed. Min. of Comm. and Tourism V Benedict Eze (2006) All FWLR (Pt. 323) 1700; and that Sections 84 & 85 of the Evidence Act permits the use of an affidavit even though defective in form, citing Falae v. Obasanjo (1999) 4 NWLR (Pt 599) 472, Solola v State (2005) All FWLR (Pt 269) 1751, Abiodun v. C. J. Kwara State (2007) 8 NWLR (Pt 1065) 109 & Buhari v. INEC (2008) 4 NWLR (Pt.1078) 546.
Furthermore, that the instant matter is an election petition where the Courts have been warned on the dangers of strict adherence to technicalities since it is a matter bothering on public interest, thus, everything should be done to see that the matter is determined on the merit, citing Nwobodo v. Onoh (1984) 1 SCNJ 1 at 92, Ajudua v. Nwogu (No.1) (2004) 16 NWLR (Pt.859) 56, Dongarai v. Gwazo (1965) NNLR 9, Abubakar v. Yar’adua (2008) 4 NWLR (pt. 1075) 465. This Court was therefore urged to overrule its decision in NNB plc V. IBWA Ent. Ltd. (supra), and to hold that the Tribunal was wrong when it struck out the said statements, which deprived them of their right to fair hearing.
The 1st Respondent, however, contends that the Tribunal was right. He argued that there is a world of difference between a written statement and a written statement of oath; that a written statement on oath is a witness statement, and the written deposition mentioned in paragraph 4 (1) & (3) of the Practice Direction is therefore a witness statement or evidence in a written form; that where a written statement is not verified as to the truth of the matter stated therein, it is not a written deposition or a witness statement and cannot be adopted at the trial in view of the provision of Paragraphs a (3) of the practice Direction, which explains why the Practice Direction states that written statements should be on oath and should accompany the petition at the time of filing; and that the written statements of the Appellant’s witnesses are not oath.
It was further submitted with particular reference to the definitions of “Witness Statement” in Halsbury’s Laws of England, 4th Ed., and the meaning of the words – “Oath”, “Swear”, and “Verify” in Black’s Law Dictionary 6th Ed., that an examination of the Written Statements on Oath filed by the Appellants at the Tribunal, would clearly show that –
a) There is no form of attestation by the makers of the statements in the purported written statements.
b) There is no verification of the statements by the makers indicating the serious and reverent state of their mind in making the statements.
The 1st Respondent further submitted as follows at page 6 of his brief-
“The point that is crucial and ought to be appreciated in the Appeal vis-a’-vis Paragraph 1 of the practice Direction is that there were no written statements on oath by the – – witnesses and not just the question of non-compliance with the Oaths Act. It may well be, which is the position in the instant matter, that there has been a total non-compliance with the Oaths Act for the reason that there were no acts of swearing in the written statements of the Appellants’ witnesses. Also of importance is that the written statements cannot be adopted within the contemplation of paragraph 4(3) of the Practice Direction not being written depositions. Deductively, without any act of swearing by the maker of a statement, there could not have been any oath or deposition and there would not have been any compliance with the Oaths Act”. (Highlight his)
On their part, the 2nd – 19th Respondents referred to paragraphs 1 & 4 of the Practice Direction; the definition of “witness statement,’ in Halsbury’s Laws of England, 4th Ed: the decision of this court in National Assembly v. C.C.L. Co. Ltd. (2008) 5 NWLR (pt.1081) 519, and submitted that this is the first time in the history of election petitions, practice and procedure in Nigeria that written statements of prospective witnesses are required to be made on oath and filed along with the main petition at the Tribunal.
Apparently, the Practice Direction is the key to unlocking this issue. Practice Directions, as the name implies, direct the practice of the court in a particular area of procedure of the court. A practice Direction could also be described as a written explanation of how to proceed in a particular area of law in a particular court – see Buhari v. INEC (2008) 19 NWLR (Pt.1120) 246 SC, where Tobi, JSC, further added as follows –
“what is the legal status of practice Directions? practice Directions have the force of law in the same way as rules of court, I herd in Abubakar v. Yar-Adua (2008) 4 NWLR (Pt. 1078) 465 at 511 that rules of court include practice Direction. – – Practice Directions will, however, not have the force of law if they are in conflict with the Constitution or the statute which enables them”.
See also Owners of the MV Arabella v NAIC (2008) 11 NWLR (pt.1097) 182 SC, where the Supreme Court per Ogbuagu, JSC, stated as follows-
“It is now firmly settled that Rules of court, are not mere rules, but they partake of the nature of subsidiary legislations by virtue of Section 18(1) of the Interpretation Act and therefore, have the force of law. That is why Rules of court must be obeyed- This is because, and this also settled that when there is non-compliance with the Rules of court, the court should not remain passive and helpless- There must be a sanction, otherwise, the purpose of enacting the Rules, will be defeated”.
In other words, the Election Tribunal and Court Practice Directions 2007, qualifies as a rule of Court, and since the rules of Court must be obeyed, it therefore follows that the said Practice Directions must also be obeyed. Paragraph 1 of the Practice Directions 2007, clearly stipulates that –
(1) All Petitions to be presented before the Tribunal or Court shall be accompanied by:
(a) Statement indicating the number of witnesses – – –
(b) Written Statement on Oath of the witnesses whose identity may be represented by an alphabet or a combination thereof; and
(c) Copies or list of every document to be relied on – –
(2) A Petition which fails to comply with sub-paragraph (1) of this paragraph shall not be accepted for filing by the Secretary.
Paragraph 4(1) and (3) of the same Practice Direction further provides –
(1) Subject to – – any provision of these Paragraphs relating to evidence, any fact required to be proved at the hearing of a Petition shall be proved by written deposition and oral examination of witnesses in open Court.
(2)–
(3) There shall be no oral examination of a witness during his evidence in chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other Exhibits referred to in the deposition”.
An election Petition must be accompanied with Written Statement on Oath of the witnesses, and any fact required to be proved at the hearing must be proved by written deposition.
A “deposition” is a witness’s out-of-Court testimony that is reduced to writing for later use in Court – see Black’s Law Dictionary, 7th Ed. Thus, the testimony of a witness is reduced to writing, and there shall be no oral examination of a witness during his evidence in chief, except for the purpose of leading him to adopt his written deposition and tender documents referred to therein.
In this case, the Written Statement on Oath of Barrister Pat Obum, which was “sworn to at Awka this 11th day of May 2007” before a Notary Public, and which the Tribunal “saved for substantial compliance with the Oaths Act”, commenced with the following statement by the witness –
“1. Pat Obum, Legal Practitioner, Christian, male resident at No. 43 Flanigan Street, Odoakpu, hereby state on oath that – -”
The written statements of fifteen other witnesses, were sworn to before a Notary Public, but there is no reference whatsoever to any oath in them.
The Appellants are not quarreling with the procedure set out in the Practice Direction, what they are saying is that the written statements accompanying their Petition qualify as Written Statements on Oath, and to this end, they submitted that the oath envisaged by the Practice Direction is the oath for affidavit (form A) in the Oaths Act, which states-
“I – – do hereby solemnly swear by Almighty God that this is my name and handwriting and that the facts deposed to in this affidavit are true, the whole truth and nothing but the truth.”
It is also their contention that the said written statements complied with Sections 5 (1) and 6 of the Oaths Act. Section 5 (1) provides as follows –
“Whenever an oath is required to be taken under the provisions of this or any other Act or in order to comply with the requirements of any law in force for the time being in Nigeria or other country the following provisions shall apply – The person taking the oath may do so in form and manner following, that is to say-
(a) He shall,
(i) If a Muslim, place both hands on a copy of the Koran.
(ii) lf a Christian, hold in his right hand a copy of the Holy Bible or of the New Testament.
(iii) lf a Jew, hold in his uplifted hand a copy of the old Testament, – And shall say or repeat after the person administering the oath the words prescribed by law or by the practice of the Court, as the case may be;
(b) In any other manner which is lawful according to any law, customary or otherwise, in force in Nigeria.
And Section 6 of the same Oaths Act, further provides as follows –
“Every commissioner for oaths or notary public before whom any oath or affidavit is taken or made – – shall state truly in the jurat or attestation at which place and on what date the oath or affidavit is taken or made”
The 1st Respondent, however, countered that even if the quoted passage is what is envisaged by the Practice Direction, there is nothing like that in the Written Statements; that Section 5 (1) of the Oaths Act deals with where an oath is taken orally, while written depositions and Affidavits are documentary evidence, so the oath or act of swearing must be found in the document itself; that there is no evidence that the makers of the written statements were administered with oath; and that the mere fact that the Notary Public appended his signature to the written statements stating that they were sworn to before him does not, ipso facto, cloth the said Written Statements with the solemnity of Statements on Oath.
They cited Josien Holdings Ltd v. Lornamead Ltd. (1995) 1 NWLR (Part 371) 265, Nkeiruka Onwuka V. Joseph Dimobi (2009) 5 N.WL.R (PART 135) 505, Maraya Plastic Ltd. v. Inland Bank (2002) 7 NWLR (part 765) 109, and unreported decisions in CA/E/EPT/37/08 – Obed Orlando Ibe & Anor. V. Nkiru Ugochukwu & Ors. CA/E/EPT/3S12008 – Theophilus O. Nnorom & Anor. V. Simon U, Okpalaeke & Ors. and CA/E/EPT/23/2008 – Ifeanyichukwu Anthony Ibezi & Anor v. Anthony Ezechi Nwove & ors.
The 2nd – 19th Respondents argued along the same lines, and cited almost the same authorities. They also added that the non-inclusion of oaths in an affidavit or witness statement is a fundamental defect torching the root of the statement itself and rendering the entire statement invalid and useless written deposition, citing Maraya plastics Ltd. v. Inland Bank (2002) 7 NWLR (Pt. 765) 109, where it was held –
“- – It is the swearing thereto that makes the document an affidavit. Where the document is not sworn to, it is only a piece of paper, not an affidavit. The word is derived from the Latin “affidavit” which is a declaration on oath. Without oath therefore there is no affidavit. What the Respondent filed therefore is a piece of paper in support of the writ of summon to place the writ on the undefended list. This is not as prescribed by the rules”.
I have to agree with the Respondents. Once it is understood that the procedure for presenting a witness’s testimony at an election Tribunal is not the same as in ordinary proceedings, it is easy to see why there has to be something on the face of the witness’s statement to show that his testimony was reduced to writing under oath or affirmation.
Section 180 of the Evidence Act provides that “all oral evidence in any proceedings must be given upon oath or affirmation administered in accordance with the provisions of the Oath and Affirmations Act”. In ordinary proceedings as soon as a witness steps into the witness box, he is asked whether he is a Christian or Moslem, or belongs to any other religious body. If he does not, or so desires he is allowed to make an affirmation before being allowed to give evidence. In election matters, however, the testimony of the witness is reduced to writing and he later adopts it at the Tribunal.
The witnesses are not going to give oral evidence at the Tribunal, which would necessitate the administration of oath in the witness box. They are only expected to adopt their written statements at the Tribunal, and it is imperative that the written statements be deposed to on oath. As this Court noted in the unreported case of Ibe v. Ugochukwu (supra)_
“The Provision of Paragraph 1(1) of the practice Direction 2007 provides for written statements on oath of witnesses. The word oath is what gives the written statements their validity. Any written statement without Oath will not satisfy the mandatory requirement of the practice Direction… It is this vital aspect of the oath that is missing in all the written statements of the witnesses to the appellant in the present appear. All written statements without oath cannot be effective in the Practice Direction.,’ (Highlight mine) The Appellants also argued strenuously that the said written statements complied with Sections 5 (1) (a) & 6 of the Oaths Act, however, those sections of the oaths Act apply in two distinct and separate situations. Section 5 (1) of the Oaths Act (reproduced above) deals with the “Form and Manner in which Oath may be taken”, and Section 6 of the same Act (reproduced above) relates to the “place and Date of Oath. Obviously, the form and manner in which an oath may be said to have been taken, is not the same thing as the place and date the oath was actually taken. The Notary Public may have signed, stamped and dated the 15 written statements at Awka on the 11th day of May 2007, but there is nothing to indicate that the makers of the written statements made them on oath. The point that the two sets of Respondents kept hitting on in their briefs. However, the Appellants relied on the following observation of this Court in the case of Ibrahim V. INEC (supra) in support of their position-
“By virtue of section 13 of the Oaths Act, it shall be lawful for any Commissioner for Oath, Notary public or any other person authorized by the Act to administer an oath or to take and receive the declaration of any person voluntarily making the same before him in the prescribed form set out in the First schedule to the Act. The section does not state the statutory declaration or wording that must be contained in an affidavit. Rather it provides for classes of oath that may be lawfully administered by the commissioner for Oaths, Notary Public or any other person authorized by the Act to administer oaths…. It is not the intention of the legislature that the wording of the declaration be incorporated into an affidavit in render it valid.”
But, as the two sets of Respondents rightly submitted – “the Appellants failed to relate the facts of the case in Ibrahim V. INEC (supra) to the decision reached by this Court in that case”. In that case, the deponent averred that he deposed to the affidavit in question in good faith, and the decision therein is that it was sufficient to render the affidavit competent.
The two sets of Respondents also cited Ogwuegbu v. Agomuo (supra) decided after lbrahim v. INEC (supra), wherein it was held that –
“Failure of a deponent to comply with the format prescribed in the Oaths Act could render an affidavit incompetent. The form prescribed in the 1st schedule to the Oaths Act is expected to serve as a guide as to the form and acceptable oath within the provision of the Oaths Act should take. It is not expected to be rigidly followed word for word or letter for letter. What is required is to ensure that there is substantial compliance with requirement of the Act. Therefore a situation where an affidavit would be said to have failed to comply with requirement of the Oaths Act would depend on the fact in every case”.
They also cited Lawal-Osula V. UBA Plc (supra), wherein it was held-
“The Commissioner for Oaths before whom the counter-affidavit was sworn abandoned his statutory function by allowing this unreliable prima facie evidence to be sworn before him with all the patented insincerity. This lackadaisical approach to work is strongly deprecated. It is settled that if an affidavit fails to comply with the Oaths Act it shall, by virtue of any attendant substantial defect, be incompetent and/or invalid.”
In this case, the Notary Public who signed and dated the said 15 Written Statements actually attested to the fact that the said written statements were sworn to before him, and meanwhile there was nothing on the face of the documents to indicate they were made on oath or in good faith.
Obviously, the Respondents are right that there was a substantial and fundamental defect in the Written Statements of the witnesses of the Appellants, which rendered the said Written Statements incompetent. They cannot be characterized as “Written Statements on Oath’,, and the Tribunal was therefore right to hold that the said statements did not “evince any substantial compliance” with the Act, and to strike them out.
There is therefore no question of this Court having to overrule its decision in NNB Plc V. IBWA Enterprises Ltd. (supra), as was urged on us by the Appellants. This issue is hereby resolved against them.
We now come to the core issue in this appeal – whether the Tribunal was right to dismiss the Petition filed by the Appellants, wherein they averred as follows at Paragraphs 8 (a) – (g) of the Petition –
(a) Election did not hold as voters refused to vote in the entire Onitsha South 11 Constituency due to the non provision of any Result Forms in any polling booth in any ward in the entire Constituency, and the non provision of the Voter’s Register, in most wards of the Constituency. Video Record of the JDPC will be relied.
(b) Vehicles that were to convey the Supervisory Presiding Officers (SPOs) to distribute the electoral materials started leaving the Onitsha South Local Government premises between 2.30pm and 4.00pm.
(c) Some SPOs were appointed that morning, and some electoral materials for certain wards were abandoned at the Local Government.
(d) And none of the Petitioner’s agents who were all present in all the polling booths saw or signed any result form.
(e) No Ward Collation Officer was seen or reported for duty at any Ward Collation Center in the Constituency. At the few polling stations where voting commenced, it lasted for few minutes, as it was disrupted by irate voters who complained of non-provision of result sheets, exclusion of certain candidates’ name and photograph in the ballot paper, exclusion of the names of good number of eligible voters in the voter’s register and other irregularities.
(f) No results forms were sent to any polling station in any of the wards in this Constituency.
(g) No Returning Officer was seen or reported for duty at the Constituency Collation Center.
They further averred as follows at Paragraph 10 of the same Petition –
“That the 4th respondent who had promised to go to INEC Headquarters Awka to collect the Result Forms when the candidates and their agents complained of the non provision of the same among the electoral materials being distributed failed to do so. Later, he told the 1st petitioner and others present that the 3rd Respondent had telephoned him to cancel the election for being inconclusive.
They therefore prayed the Tribunal to determine that the 1st Respondent was not duly elected and that his election is void for reasons of – (a)Corrupt practices; and (b)Substantial non-compliance with the provisions of the Electoral Act 2006. The 1st Respondent herein who was also the 1st Respondent at the Tribunal, filed a Reply wherein he averred as follows at Paragraph 9 –
“Paragraph 8 (a) is utterly false and denied. In answer thereto, the 1st Respondent avers as follows –
d. There was in fact an election into Anambra State House of Assembly for Onitsha South II Constituency – – There was a massive turn out of voters who voted in the said election. All the requisite materials including the result booklets were distributed and utilized in recording the result of the election in accordance with the Electoral Act 2006 in the respective polling booths and wards of Onitsha South II Constituency.
b. Voter Registers and Results Booklets were accordingly made available in all the polling booths and wards of Onitsha South II Constituency and used appropriately in the election contrary to the claims of the Petitioner.
c. The purported video clip is one of the antics of the Petitioner and his cohorts to discredit the election upon his unpopularity dawning on him. The video clip was indeed produced for the purposes of this Petition and is not a true reflection of what transpired – – The JDPC was not accredited by INEC to observe the election – – and were not in the said Constituency during the election and cannot give account of what transpired thereat.
He further averred at Paragraph 10 of his Reply to the Petition that –
“Paragraphs 8 (b), (c), (d) and (e) of the Petition are utterly false and denied. In combined answer to the said sub-paragraphs the 1st Respondent states –
a. The officials of the 2nd respondent arrived on time in all the polling units and ward on the day of the election.
b. The electoral materials indeed left INEC Office at about 9.00am and were duly received by the Supervisory Presiding Officers who in turn delivered same to the respective Presiding Officers who in turn delivered same to the respective Presiding Officers for the various polling units.
c. The electoral materials including Form EC8A1, Form EC8B1, Form EC8C1 and Form EC8E1 were accordingly distributed and utilized in recording the result of the election in all the wards and polling units/stations – –
d. Voter’s Registers were accordingly made available and used appropriately
e. Voting commenced at about 10.45am in all the polling stations and came to an end at about 3.30pm.
f. The Presiding Officers in the respective polling units accordingly entered the results of the voting in their polling units in the requisite Forms EC8A1 provided for same. The Forms were counter-signed by the polling agents who were present at the polling units at the material time.
g. There was a massive turn out of voters who voted in the said election. The election took place in a peaceful and calm atmosphere and the result of the voting was subsequently collated and results declared appropriately.
The 1st Respondent further averred as follows in his paragraph 20 –
“Paragraph 10 of the Petition is false. The election materials were duly supplied to the Supervisory Presiding Officers in the morning of 14/7/07 who in turn supplied same to the Presiding Officers. At the trial the 1st Respondent shall place reliance on the relevant receipts/Forms used in the acknowledgement of distribution of the said materials.
On their part, the 2nd – 19th Respondents made the same denials, almost word for word, in paragraphs 9 and 10 of their Reply to the Petition.
At the trial, the Appellants called three witnesses, and tendered five exhibits. PW’1, Mr. Emmanuel Nwanolue, of Anambra Broadcasting Service [ABS], adopted his written deposition and tendered a video tape, which was admitted in evidence as Exhibit A and played at the Tribunal. Under cross-examination by the 1st Respondent’s counsel, PW1 said he could not cover some places with his camera due to threats received.
In reviewing the evidence of PW1, the Tribunal stated as follows –
“The PW1 – – testified that he recorded the events of the election. In the course of his assignment, he visited Onitsha South LG Headquarters, Fegge, where the INEC Office for the Local Government was situated. He met some candidates and their agents complaining about the non provision of the result forms to be used for the election. He interviewed some people present including the Electoral officer for Onitsha South LG – Mr. Clinton Chukwuigwe some minutes after 12 noon. The video tape of the interview was admitted as Exhibit “A”. It was played in the open Court at the sitting of this Tribunal. The video tape covered only the interview conducted at the Onitsha Local Government Headquarter office of INEC. Below is the excerpt from Exhibit A the video tape at the interview of the Electoral officer.
(i) The electoral materials were distributed at 11.am.
(ii) That INEC staff were on ground to collect the materials.
(iii) That security personnel and observers were also on ground
(iv) That materials did not come at the same time.
(v) That the electorate demanded for the result sheets and the SPOs refused to accept the materials on the ground for lack of result sheets.
(vi) The Electoral Officer said he would go to Awka to bring the result sheets to Onitsha.
Under cross-examination by the 1st Respondent’s counsel the PW1 said he could not cover some places with his camera due to threat by some people. When he came back to Onitsha on 14/4/2007, he did not see the Electoral Officer again. He did not see other INEC officials because there was confusion everywhere. He could not have access to the Local Government premises. Under cross-examination by the 2nd – 19th Respondents’ counsel, the witness said he did not know the Electoral officer and officials of INEC prior to the day of election. From the interview of the Electoral officer in Exhibit A. the following facts are settled:
(i) That electoral materials were distributed at 11.am at the Local Government Headquarters INEC office.
(ii) That the SPOs refused to accept the materials on the ground that the forms for result sheets were not among the materials distributed.
(iii) That result sheets were not amongst the electoral materials brought to the Local Government as at the time of the interview.
In the same vein, the PW I testified under cross-examination that on the day of election, he came back to Onitsha but did not see the Electoral Officer again and had no access to the Local Government premises where INEC office for Onitsha was situated. By reason of this could it be said that the materials such as the result sheets came after the interview and when the PW1 had left the INEC officer at Onitsha? Did the Electoral officer eventually get the result sheets from Awka as promised by him? The answers to these questions are not covered by the PW1 in the interview and on the process of his reportorial duties. His report was not conclusive as to whether the result sheets were eventually made available and distributed or not. Against the background of this inconclusiveness in the report of the PW1, this Tribunal CANNOT find as of fact that sensitive materials such as result sheet, forms were not brought to the Local Government office of INEC after the interview conducted on the Electoral officer at 12 noon on 14/4/2007.
Mr. Pat Obum of the Justice Development and Peace Commission of the Sacred Catholic Church [JDPC] Odoakpu, Onitsha, testified as PW2 that the JDPC was one of the Observers recognized by INEC, and they observed the elections in Wards 1, 3, 5, and 7 of the said Constituency and some parts of Ward 2 . The Tribunal had this to say on his evidence-
“He (PW2) was the leader of the team that observed the election at Pioneer Primary School, O’Connor Primary School polling stations located within the same premises. – – – – He further said that the election was not conclusive at Odoakpu Ward 1, no counting of voting, no collation of results, no declaration of the result. Finally, he said he could not vote due to what happened. Under cross-examination by the 1st Respondent’s counsel, the PW2 contradicted himself when he said he voted on the day of the election for a candidate of his choice. He said he would not know the number of the polling units in Wards 1, 2, 5 and 7 Odoakpu. He did not observe the election in all the units in Odoakpu Wards 1, 2, 3, 5 and 7. – – – From the evidence of PW2 under examination in chief and under cross-examination, it is revealed that –
(1) He acted as an Observer from the JDPC in respect of the election – –
(2) His observation is limited to the four units located at Pioneer Primary School, CKC Primary School Modebe and Community Primary School in Odoakou Ward 1.
(3) He did not observe the other elections in the Odoakpu Ward 1.
(4) That there were about 20 Units in Wards 1. 2. 3, 5. 6 and 7 of the Onitsha South II Constituency.
(5) In the four units, he observed in Ward 1, the election was disrupted due to non-provision of result sheets at the polling unit after voting had begun.
It is pertinent to note that the written Report of the JDPC was not tendered by the Petitioner. It is also to be noted that the oral report and report of the PW2 cover only 4 Units in the Constituency”.
The 1st Appellant testified as PW3, and the Tribunal commented that –
“(He) had only his Further Witness Statement to adopt. The surviving further paragraphs of the Statement – – is on the failure of the 2nd – 19th Respondents to publish the result of the election on the INEC Notice Board and the Website of INEC on the internet. No evidence was led in connection with the allegation of electoral malpractices alleged by the Petitioners in the Petition particularly paragraphs 8 and 9 of their pleading”.
After reviewing the evidence, the Tribunal stated as follows at page 316 –
“- – It is evident from the interview in Exhibit A that voting commenced late in the various polling units in the 7 Wards – – in view of the Electoral Officer’s assertion that electoral materials were distributed at 11am. It is also clear from the testimonies of PW1 – PW3 that no evidence was led on any irregularity in the election process in Wards 1, 2, 3, 4, 5, 6 and 7 – – except for the four units covered by the PW2 – Pat Obum. No evidence was led in support of paragraph 8 (a), paragraphs 9 (a), (b), (c), (d), (e), (f) and (g) of 10, 11, 12, 13, 14, 15, 16 and 17 of the Petition. – – The aforesaid paragraphs – – not supported by any evidence are hereby deemed to have been abandoned. The paragraphs hold no water, go to no issue and are hereby dismissed – – “.
At the end of the day, the Tribunal concluded as follows at page 319 –
“- – The burden is on the Petitioners who alleged that election did not hold – – to plead and lead evidence on all material facts required to prove. – – – The Petitioners have failed to prove their case by preponderance of evidence, and therefore failure to satisfy the provisions of Sections 135, 137 of the Evidence Act. They have to succeed on the strength of their case; not on the weakness of Respondents’ case. Having failed to discharge this burden of proof, this Petition cannot succeed. It fails and is accordingly dismissed”.
From all indications, this appeal turns on the issue of burden of proof, and it is the Appellants’ contention that the Tribunal erred when it held that the burden of proving that the result sheets were not eventually distributed still lay on them after they had proved that as at 12 noon the result sheets had not arrived from Awka to the INEC office, Onitsha. They submitted that PW1’s evidence and the Electoral Officer’s statement is in direct conflict with the Respondents’ pleadings on the issues of what materials were distributed, when they were distributed and when voting commenced in the constituency; that the evidence of PW1 confirmed their pleadings, and debunked the Respondents’ case; that the burden of proving that the result sheets were eventually brought and distributed to the SPOs shifted to the Respondents; and that the Tribunal having found that they proved that as at 12 noon the electoral materials had not left the INEC office because the SPOs refused to take delivery due to non availability of result sheets and that the Electoral officer promised to go to Awka later to collect and thereafter distribute the result sheets to the SPOs for use at the election, should not have required more from them especially in view of the parties’ pleadings.
They argued that PW1 ‘s evidence and the video tape (Exhibit A), stood unchallenged and were rightly believed by the tribunal, but the Tribunal went ahead to state they did not show that the Electoral Officer did not eventually go to procure the result sheets/forms, and submitted that the onus of proving a particular fact lies on the party asserting it; that the onus is fixed by the pleadings, and does not remain static but shifts from side to side, citing Basheer V Same (1192) 4 NWLR (Pt 236) 491.
The Appellants submitted that the onus to show that the result sheets/forms were not provided for the election is on them, but will shift if they provide credible evidence in proof of this averment in their pleadings, citing Hon. Fidel Ayogu v. Dr Chimaroke Nnamani (2006) 8 NWLR (Pt. 981) 160, Princnss Ajidua v. Hon. Okaka Nwogu (2004) 14 NWLR (Pt 898) 59, Uniben v. Kt. Org. Ltd (2007) 14 NWLR (Pt. 1055) 441, MNT Nig. Ltd. (Pt 1058) 451 (sic), Tsokwa & Sons V. Union Bank (1996) 10 NWLR Pt 478 and Iman v. Sheriff (2005) 4 NWLR (Pt 9/4) 80. It was further argued that in arriving at its conclusion, the Tribunal lost sight of the pleadings and evidence led, and also failed to realize that the Petition was undefended as it were, citing Badawi v. Adam (1999) 3 NWLR (Pt 592, Onifade v. Oyedemi (1999) 5 NWLR (Pt. 601) 67 and Ezenwa V. Okeke (1995) 3 NWLR (Pt 388) 147; that the Tribunal placed more burden and onus of proof on them than is required under the law; that the result sheets/forms were not provided for use at the election culminating in the election being conducted in substantial non-compliance with the provisions of the Electoral Act; and that result forms are the master keys with which anybody can be declared winner in an election, thus, they are tagged sensitive materials, and non-provision of result forms for use at an election is so substantial that no reasonable Tribunal or Court of Appeal will ignore it, citing Buhari & Anor v Chief Olusegun Obasanjo & Ors (2005) 13 NWLR (Pt. 941) 1 at 311.
However, the 1st Respondent referred this Court to the decision of the Supreme Court in Buhari v. Obasanjo (2005) 13 NWLR (Part 941) 1 at 122 on burden of proof, and at page 309 on the centrality of pleading in the ascertainment of onus of proof, and argued that pleading is central for the ascertainment of the onus of proof, and the Appellants who filed a Petition are bound to prove the Grounds under which Petition is brought, which Grounds are provided for Section 145 of the Electoral Act, 2006.
Furthermore, that the Ground alleged by the Appellants is that there has been substantial non-compliance with the Electoral Act; that the fact alleged in proof of that Ground was the alleged non-production of the results sheets in any of the Polling Booths in the Constituency; and that since the Appellants are bound to prove the Ground, they are as much bound to prove the facts because if the facts are not proved then the Grounds are also not proved, and if the Grounds are not proved then the Petition must necessarily fail, citing Buhari V. INEC (SC) (supra).
He also referred us to Section 146(1) of the Electoral Act, 2006, and submitted that it is not just any non-compliance with the Electoral Act that will lead to the nullification of the election; that it is only a noncompliance that would substantially affect the result of an election that would hold sway; and that it is only after the Appellants have proved their allegation that the burden would now shift to the Respondents to explain how they came about the results of the election which they announced.
It was further argued that instead of proving their case as pleaded, the Appellants went into his pleadings (which is not even evidence) to scrounge for facts forgetting that a Plaintiff must succeed on the strength of his own case and not on the weakness of the Defendant’s case, if any, citing Jolayemi & ors v. Alaoye & anor 18 NSCQR Part II, 682 at 703, Chime & Anor. V. Okey Ezea & ors (2009) 2 NWLR 263 @ 341; that the Appellants’ case suffered a serious setback when the Tribunal dismissed paragraphs 8 – 17 of the Petition, and having not appealed against the said dismissal, they are deemed to have accepted the decision, citing Jolayemi & ors v. Alaoye & anor (supra); and that until the Appellants proved that the result forms were not produced in any polling booth in any ward in the entire Onitsha South II Constituency, the onus had not shifted to the Respondents to offer an answer to the case presented by the Appellants, and so, they have not established their case as pleaded.
The 1st Respondent also argued, citing Buhari v. Obasanjo (supra), Agbaje v Fashola (2008) 6 NWLR (Pt.1082) 90, Nnachi v. Ibom (2004) 16 NWLR (Pt.900) 614, that a Petitioner who alleges non-compliance must lead evidence to show how it affected the results of the election; that the Appellants did not introduce evidence as to when the election was supposed to end, and did not call evidence of any registered voter who ought to vote but was prevented from doing so by the closure of polls; and that in view of the tenuous and weak evidence of PW2, the call on this Court to hold that the election was not conducted in substantial compliance with the Electoral Act ought not to be acceded to.
The 2nd – 19th Respondents also referred us to Sections 135, 136, 137, 138 and 139 of Evidence Act dealing with burden of proof, and the decisions in Agbeotu v. Brisibe (2005) 10 NWLR (pt. 932) 1, Ezeazodosiako V. Okeke (2005) 16 NWLR (Pt. 952) 612, and Jang v. Dariye (2003) 75 NWLR (Pt. 843) 436. They argued that the Appellants’ contention is misconceived, and that the Tribunal was right to hold that the Appellants failed to prove their case by preponderance of evidence.
The question that comes to mind from the foregoing arguments and positions taken by the parties is who had the burden to prove what? The Appellants challenged the Petition at the Tribunal on the grounds of – (a) Corrupt practices, and (b) Substantial non-compliance with the provisions of the Electoral Act. The two grounds have a common base. Every established act of corrupt practice amounts to non-compliance with the provisions of the Electoral act, but it is not every act of non-compliance that would amount to corrupt practice because corrupt practice imputes a criminal element, the burden of which is proof beyond reasonable doubt. In effect, the burden of proof in any allegation of corrupt practice is higher than the burden on a Petitioner who alleges a mere non-compliance with the provision of the Electoral Act, 2006.
Any allegation of corrupt practice must be proved beyond reasonable doubt, and the burden is on the Petitioner to prove same – see Onuigwe V. Emelumba (2008) I NWLR (Pt. 1092) 371; ANPP v. Usman (2008) 12 NWLR (Pt. 1100) 1. In this case, it is quite apparent from the evidence before the Tribunal that the Appellants failed to make out any case against anyone that would amount to corrupt practice.
Nevertheless, they also alleged substantial non-compliance with the provisions of the Electoral Act, and its Section 146 (1) provides that –
“An Election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the compliance did not affect substantially the result of the election”. (Highlight mine)
The operative words in the above Section as it relates to this appeal are –
“if it appears to the election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act’. Obviously, the Tribunal or Court can only come to that conclusion in the light of the evidence before it; one of the parties must give that evidence to the contrary, and the party is the one who will fail if that evidence is not given – see Abubakar V. Yar-Adua (2008) 19 NWLR (Pt.1120 1 SC, where the Supreme Court per Tobi, JSC categorically added at p. 164 –
“That party, in my humble view, is the Petitioner. He is the one who alleges that the election was not conducted substantially in accordance with the principles of the Electoral Act; the opposite situation in Section 146 (1).”
There is no question then – the Appellants are the ones who must discharge the burden of establishing that the election was not conducted substantially in accordance with the provisions of the electoral Act.
The crux of their allegation is that result sheets were not provided for the election, and their contention is that they proved that as at 12 noon on election day, the result sheets were not available for distribution, and the burden therefore shifted to the Respondents to show that the Electoral Officer later “went to Awka, collected the result sheets and distributed same for use at the election and what time this was done”.
The law relating to burden of proof is simple and straightforward. He who asserts must prove – see Section 135 (1) of the Evidence Act. The burden lies on the party who would fail if no evidence at all were given on either side – see Section 136 of the same Evidence Act and yes, the burden in a civil trial shifts from one party to the other, depending on the nature of the case and evidence adduced by either party – see Section 137 (1) and (2) of the Evidence Act. In effect, where a party has offered enough evidence and the other would be the one to lose if no evidence is adduced in rebuttal, the burden will shift to that other party.
In this case, it is the Appellants who alleged that elections did not hold because result sheets were not distributed to the voting centers, and it is for them to prove that the result sheets were not distributed by INEC from the beginning of the election to the very end. It is not enough for them to say – we produced a video that proves that as at 12 noon of the Election Day, the result sheets had not been distributed by INEC. There is nowhere in their Petition where they mentioned the time frame within which the election was to hold, but the Respondents mentioned in their replies that voting came to an end at about 3.30pm. What happened between 12 noon and 3.30pm? Who would lose if no evidence is adduced to cover that period? It is the Appellants that would definitely lose because INEC produced results that were used to declare the 1st Respondent as the winner of the election, and the duly elected Member.
Looking at it the other way, if the Appellants had proved that result sheets were not distributed all through the time period of the election, then the burden would shift to the Respondents to explain how they came about the results they used to declare the 1st Respondent winner. But the Appellants stopped at 12 noon, and the burden still rests on them to prove that the result sheets were not distributed till the end of election. From all indications, the lower Court was right to hold that they did not.
It may or may not be, and I am not allowed to speculate that the evidence needed to prove the Appellants’ case are in the fifteen witness statements that were thrown out for non-compliance with the Oaths Act, but there is nothing in the evidence before the Tribunal that proves or even points to non-compliance with the provisions of the Electoral Act. PW1, the reporter who took the video, admitted that he did not go back to verify whether the results sheets were distributed after his interview around 12 noon; PW2, the leader of the monitoring team JDPC, testified that he could not vote because of what happened, but he admitted under cross-examination that he voted for his candidate at the said election; and the 1st Appellant who testified as PW3 had nothing to say on the allegation of substantial non-compliance with the provisions of the Act.
The Tribunal’s conclusion cannot be faulted, and the end result is that the appeal clearly lacks merit, and it is hereby dismissed.
The 1st Respondent filed a cross-appeal, which queries whether the Tribunal was right to rely on the video recording. But the Tribunal did not use the video admitted as Exhibit A against the Respondents at all, and it would amount to a mere academic exercise to address that issue. Thus, the cross-appeal is of no value, and it is therefore struck out.
There will be no order as to costs
MOHAMMED L. TSAMIYA, J.C.A.: I have had the advantage of reading in draft a copy of the lead judgment by my learned brother Amina Augie, JCA. He has exhaustively dealt with the issues in this appeal and I entirely agree with him. I adopt his reasoning and conclusions as mine. I would also dismiss this appeal as unmeritorious.
On the cross-appeal, I too agree that the cross-appeal is of no value and is struck out.
I subscribe to the order on costs.
ABDU ABOKI, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my Lord A. A. Augie JCA.
I find myself in complete agreement with the reasoning and conclusion expressed on this Appeal.
I also dismissed the Appeal and strike out the Cross-Appeal whose consideration in my opinion will amount to an academic exercise.
Appearances
Mrs. C. OnyekwulejeFor Appellant
AND
Arthur Obi-Okafor (SAN) with F. I. Aniukwu, Esq.
S. O. Ibrahim, Esq.For Respondent
