BUSAYO OLUWOLE OKE v. NATHANIEL AGUNBIADE & ORS.
(2011)LCN/4825(CA)
In The Court of Appeal of Nigeria
On Monday, the 10th day of October, 2011
CA/AK/EPT/OS/HR/5/2011
RATIO
PLEADINGS: ESSENCE OF PLEADINGS
The law is settled that the essence of pleadings is to compel the parties to define accurately and precisely the issues upon which the case between them is to be fought to avoid any element of surprise by the other party. Pleadings also serve to guide the parties and ensure that they do not give evidence outside the facts pleaded, as evidence on a fact not pleaded goes to no issue. see: Abubakar vs Joseph (2008) 13 NWLR (1104) 307 @ (1973) 4 SC 113; Buhari Vs Obasanjo (2008) 13 NWLR (1104) 307 @ 356 F – G; LPELR-SC10/2002 1 @ 53 – 54 G – A; Akinterinwa & Anor v. Oladunjoye (2000) 4 SCNJ 149; Emegokwue v. Okadigbo (1973) 4 SC 113; Buhari v. Obasanjo (2005) 13 NWLR (941) 193 E and 200 – 201 F – A. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
ELECTION PETITIONS : DUTY OF A PETITIONER TO SHOW IN HIS PLEADINGS THE SUBSTANTIALITY OF THE NON-COMPLIANCE OF THE ELECTORAL ACT WHERE HE CLAIMS IN HIS PETION THAT THE NON-COMPLIANCE WITH THE PROVISIONS OF THE ACT AFFECTED THE RESULT OF THE ELECTION
Section 139 (1) of the Electoral Act provides: 139 (1) “An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.” Thus where the petitioner seeks to rely on non-compliance with the provisions of the Electoral Act, his pleading must show the substantiality of the non-compliance. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
ALLEGATION OF FALSIFICATION OF ELECTION RESULT: POSITION OF THE LAW WHERE A PETITIONER’S COMPLAINT IS THAT THE PERSON RETURNED AS THE WINNER OF THE ELECTION WAS NOT DULY ELECTED BY A MAJORITY OF THE LAWFUL VOTES CAST AT THE ELECTION
It is well settled that where a petitioner’s complaint is that the person returned was not duly elected by a majority of the lawful votes cast at the election and that he should be returned as the winner, he must plead two sets of results: the scores announced by INEC and the scores which he considers to be correct. See: Awuse Vs Odili (2005) 16 NWLR (952)416 @ 482 G – 485 B; Nwobodo v. Onoh (1984) 1 SCNLR 1. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
INTERPRETATION OF STATUTE : INTERPRETATION OF SECTION 137 (3) OF THE ELECTORAL ACT 2010 (AS AMENDED) AS TO WHETHER IT IS NECESSARY TO JOIN ALL ELECTORAL OFFICERS WHOSE CONDUCT WAS COMPLAINED OF AS RESPONDENTS IN THE PETITION
Section 137 (3) of the Electoral Act 2010 (as amended) provides: “If the petitioner complains of the conduct of an Electoral Officer, a Presiding or Returning Officer, it shall not be necessary to join such officers or persons notwithstanding the nature of the complaint and the Commission shall, in this instance be: (a) made a respondent; and (b) deemed to be defending the petition for itself and on behalf of its officers or such other persons.” This is a departure from the provision of Section 144 (2) of the Electoral Act 2006, which required it to be shown that the officer or such other person acted as agent of the Commission. The more liberal provision in Section 137 (3) of the Electoral Act 2010 is to eliminate the previous unwieldy nature of election petitions with hundreds and sometimes thousands of respondents. In striking out the aforementioned paragraphs for non-joinder of necessary parties, the Tribunal relied on the cases of: Eselemo Vs Funkekeme (2007) LPER/FP/CA/B/154/2005 and Buhari Vs Yusuf (2003) 14 NWLR (841) 446. These cases were decided with reference to the Electoral Act 2002. Under the 2002 Act it was mandatory to join all electoral officers whose conduct is complained of as respondents in the petition. This position no longer represents the law. The Independent National Electoral Commission having been made a respondent to the petition, it was not necessary to join the officers whose conduct was complained of in the petition. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
ALLEGATION OF ELECTORAL MALPRACTICES: WHAT THE PETITIONER MUST PROVE, IN ORDER TO SUCCEED IN HAVING THE ELECTION OF THE RESPONDENT NULLIFIED ON GROUNDS OF ELECTORAL MALPRACTICES
With regard to the 1st respondent’s agents, in order to succeed in having the election of the 1st respondent nullified on grounds of electoral malpractices, the petitioner must prove that the acts of those complained of were done with his knowledge and on his authority or that he aided, abetted, counselled or procured the commission of the said acts. See: Yusuf Vs Obasanjo (2005) 18 NWLR (956) 96 at 185 D-F and 122 D-F; Falae Vs Obasanjo (1999) 4 NWLR (599) 435: Oyegun Vs Igbinedion (1992) 2 NWLR (226) 747; Adeola Vs Owoade (1999) 9 NWLR (617) 30. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES
MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
BUSAYO OLUWOLE OKE Appellant(s)
AND
1. NATHANIEL AGUNBIADE
2. ACTION CONGRESS OF NIGERIA
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. RESIDENT ELECTORAL COMMISSIONER/RETURNING OFFICER & OSUN STATE
5. THE ELECTORAL OFFICER ORIADE LOCAL GOVT. AREA, OSUN STATE
6. THE ELECTORAL OFFICER, OBOKUN LOCAL GOVT. AREA, OSUN STATE
7. THE RETURNING OFFICER FOR ELECTION TO OBOKUN/ORIADE FED. CONSTITUENCY Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the National Assembly/Governorship and Legislative Houses Election Petition Tribunal sitting at Osogbo, Osun State (hereinafter referred to as the lower Tribunal) delivered on 12th August 2011 dismissing the appellant’s petition.
On the 21st day of April 2011, election was held into the Obokun/Oriade Federal Constituency seat in the House of Representatives. The Appellant and 1st Respondent were the candidates of the Peoples Democratic Party (PDP) and the Action Congress of Nigeria (ACN) respectively. After the conduct of the election, the Independent National Electoral Commission (3rd respondent herein) declared the 1st Respondent as the winner of the Election with 22,142 votes while 18,005 votes were ascribed to the Petitioner (Appellant herein). Being dissatisfied with the declaration of the 1st Respondent, the Appellant filed a petition dated 28th April 2011 before the lower Tribunal. The grounds of the petition are contained in paragraph 12 of the petition as follows:
12 “The grounds for this petition are as follows:
12.1 The results of the election for Obokun/Oriade Federal Constituency in the House of Representatives are not correct (are untrue in every respects) and thus invalid by reason of non compliance with Electoral Act 2010 as amended and its principles and the Manual for Election Officials 2011 which said non compliance substantially affected the result of the said election for Obokun/Oriade Federal Constituency in the House of Representatives.
12.2 The 1st Respondent was not duly elected by majority of lawful votes cast at the election for Obokun/Oriade Federal Constituency in the House of Representatives.
12.3 The Conduct of the election is marred by corrupt practices, widespread irregularities and malpractices resulting in substantial non-compliance with mandatory provisions of the Electoral Act 2010 as amended and the Manual for Election Officials 2011.”
He sought the following reliefs in paragraph 37:
37. “Whereof your Petitioner prays that it may be determined as follows:
37.1 That votes recorded and/or returned in the following wards in the Obokun/Oriade constituency seat in the House of Representatives election held on Saturday April 9th, 2011 namely Ward 1 Obokun Local Government; Ward 7, Obokun Local Government; Ward 1 Oriade Local Government, Ward 3, Oriade Local Government; Ward 4, Oriade Local Government; Ward 7 Oriade Local Government; Ward 8 Oriade Local Government, Ward 10 Oriade Local Government and Ward 12 Oriade Local Government do not represent lawful votes cast in the said election held on Saturday April 9th, 2011 having been obtained in vitiating circumstances which substantially affected the validity of the said election that the 1st Respondent cannot be validly returned as having validly won in the said election.
37.2 The votes illegally and invalidly counted for the 1st Respondent be revisited and recounted so as to deduct invalid votes from the total votes scored and recorded for the 1st Respondent.
38. That the said Nathaniel Agunbiade (1st Respondent) was not duly elected by majority of lawful votes cast in the Obokun/Oriade Federal Constituency in the House of Representative election held on Saturday April 9th 2011 and that his election is void.
39. That Busayo Oluwole Oke (Petitioner) was elected and ought to have been returned having scored the highest number of lawful votes cast in the Obokun/Oriade Constituency in the House of Representative election held on Saturday 9th April 2011 and satisfied the requirements of the Constitution and the Electoral Act 2010 as amended and the Manual for Election Officials 2011.
40. That the Petitioner be declared validly elected and returned.
41. The Petitioner prays LATERNATIVELY AND ONLY IN THE ALTERNATIVE.(sic)
That the National Assembly Elections for Obokun/Oriade Federal Constituency seat in the House of Representatives held on Saturday 9th April, 2011 is invalid by reason of non-compliance with the provision of the Electoral Act 2010 as amended and the Manual for election Officials 2011 and that the said election was vitiated by substantial non-compliance with the mandatory statutory requirements which substantially affected the validity of the said elections that none of the candidates in the said election can be validly returned as having validly won the said election.
41.2 That the result of the National Assembly election for Obokun/Oriade Federal Constituency seat in the House of Representatives held on Saturday 9th April, 2011 is nullified and cancelled and the 3rd Respondent is to conduct fresh election for the National Assembly election for Obokun/Oriade Federal Constituency seat in the House of Representatives”.
The 1st Respondent herein and 6 others were joined as Respondents to the Petition. The parties duly filed and exchanged pleadings.
At the hearing of the Petition, the Appellant called 32 witnesses and tendered Exhibits P1-P76. In defence of the Petition, the 1st Respondent called 28 witnesses and tendered 7 documents, which were marked as Exhibits R1 – R7. The 2nd Respondent did not call any witness but tendered 3 documents in evidence. The 3rd – 7th Respondents on their part called two witnesses, RW29 and R30. These witnesses who served as the Electoral officers for Oriade and Obokun Local Governments respectively had also been called by the Appellant as PW29 and PW30. At the conclusion of evidence the parties adopted their written addresses. On the 12th of August, 2011, the Tribunal delivered judgment in which it dismissed the Petition. Being dissatisfied with the dismissal of the Petition, the Appellant on the 19th of August 2011 filed a Notice of Appeal containing 36 grounds of Appeal.
In the course of proceedings before the Tribunal, the 1st respondent filed a notice of preliminary objection dated 27/5/2011 seeking the striking out of certain paragraphs of the petition on the ground that they were vague and consequently sought the dismissal of the petition. On 2/6/2011 the Tribunal overruled the objection and ordered the petitioner to supply further and better particulars of the paragraphs complained of. The 1st respondent was dissatisfied with this decision and filed a notice of cross-appeal dated 25/8/2011 containing 3 grounds of appeal. Similarly by a motion on notice dated 5/7/2011 the appellant (petitioner) sought, inter alia, leave to bring the application outside the pre-hearing session and to soft out and recount ballot papers used in the election. The 1st and 2nd respondents opposed the application. In a ruling delivered on 6/7/2011 the Tribunal granted the application. Also on 19/7/2011 the Tribunal closed the 2nd respondent’s case for failure to call its witness. The 2nd respondent was dissatisfied with both decisions and filed a notice of appeal dated 25/8/2011 containing 2 grounds of appeal.
The parties duly filed and exchanged their respective briefs of argument. The appellant filed the following briefs:
i. The Appellant’s brief dated 12/9/2011 and filed the same day;
ii. The Appellant’s reply brief to the 1st Respondent’s brief dated and filed on 12/9/2011.
iii. The Appellant’s/Cross Respondent’s brief to the 1st Respondent/Cross-Appellant’s brief dated and filed on 12/09/2011.
iv. The Appellant’s Reply Brief to the 2nd Respondents brief dated 17/9/2011 and filed on 19/9/2011.
v. The Appellant’s/Cross-Respondent’s brief of argument to the 2nd Respondent’s brief dated 17/9/2011 and filed on 19/9/2011.
The 1st respondent filed the following briefs:
i. The 1st Respondent/Cross-Appellant’s Reply Brief dated and filed on 6/9/2011.
ii. The 1st Respondent’s/Cross-Appellant’s Reply Brief dated 13/9/2011 and filed on 14/9/2011.
The briefs filed by the 2nd respondent are:
i. The 2nd Respondent/Cross Appellant’s brief of argument dated 13/9/2011 and filed on 14/9/2011.
ii. The 2N Respondent’s reply to the Appellant/Cross-Respondent’s preliminary objection dated 21/9/2011 and filed on the same day.
The 3rd – 7th respondents did not file any brief. At the hearing of this appeal on 23/9/2011, learned senior counsel for the appellant, Mr. Adebayo Adenipekun, SAN, adopted and relied on his briefs of argument and urged the court to allow the appeal. He also moved the preliminary objections to the cross appeals, argued in the appellant’s reply briefs filed on 12/9/2011 and 19/9/2011 respectively. Mr. T.S. Adegboyega learned counsel for the 1st respondent and Chief Akin Olujinmi, SAN, learned counsel for the 2nd respondent respectively adopted and relied on their respective briefs of argument and urged the court to allow the cross appeals and dismiss the main appeal. Mr.Adenipekun, SAN and Chief Akin Olujinmi, SAN, also proffered some oral arguments in amplification of their briefs of argument. The submissions will be addressed where appropriate in the course of the judgment. Mr. B.I. Wuyep, learned counsel for the 3rd – 7th respondents aligned himself with the submissions of the 1st and 2nd respondents.
Main Appeal
For the resolution of the main appeal, the appellant formulated four issues for determination. They are as follows:
(1) whether the pleading of the Petitioner/Appellant were not, contrary to the finding of the trial Tribunal, sufficient to support the allegation that the declaration of the 1st Respondent as the winner of the election was based on counting of invalid votes as valid in the nine wards in respect of which the outcome of the election was challenged? Grounds 1, 2, 4, 5, 6, & 7.
(2) whether the Tribunal was not wrong when it held that the officers of Independent National Electoral commission whose conducts are complained against ought to have been joined as parties in the petition. Ground 9
(3) whether the Tribunal was not wrong when it failed to properly or in any form evaluate the evidence of a vast majority of the Petitioner’s witnesses regard being had to the Tribunal’s treatment of the evidence of PW1 – PW27 as abandoned and its refusal to ascribe probative value to the evidence of PW31 and PW32 on the outcome of their physical and forensic examinations of electoral materials used in the conduct of the election? Grounds 10, 11, 12, 13, 14, 15.
(4) Whether the Tribunal was not in error when it refused to invalidate the election of the 1st Respondent and on the contrary proceeded to dismiss the Petition despite the avalanche of evidence, documentary and oral led by the Appellant, particular regard being had to the decision of the Tribunal to discountenance the outcome of the physical recount of ballot papers as contained in Exhibits P75 and P76 tendered and admitted in evidence before it? Grounds 3, 8, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29, 29, 30, 31, 32, 33, 34, 35 and 36.
The 1st Respondent also formulated four issues for determination, which are substantially the same as those formulated by the appellant while the 2nd respondent’s issues are mutatis mutandis with those of the 1st respondent. I adopt the issues formulated by the appellant for the determination of this appeal.
Issue 1
Whether the pleading of the Petitioner/Appellant were not, contrary to the finding of the trial Tribunal, sufficient to support the allegation that the declaration of the 1st Respondent as the winner of the election was based on counting of invalid votes as valid in the nine wards in respect of which the outcome of the election was challenged?
Learned Senior Counsel for the appellant, Chief Adenipekun, SAN submitted that pleadings are the bedrock of any suit and that their essence is to put the other party on notice as to the case he will meet in court. He submitted that pleadings are to contain a statement of fact and not law, material facts stated in a summary form and not evidence. He referred to Nwadiallo Vs Shell Devt. Co. Ltd. (1990) 5 NWLR (150) 322 @ 335. He submitted that contrary to the finding of the lower Tribunal, the facts pleaded in paragraph 15.4, 18, 24, 32 and 36 of the petition to the effect that invalid votes were counted as valid for the 1st respondent in all the 9 wards challenged and paragraph 5 of the further and better particulars were sufficiently clear as to put the respondent on notice of the case he would meet in court. He submitted that paragraph 15 (4) of the petition was clear and unequivocal and that the response of the 1st respondent contained in paragraph 14 of his reply showed that he was not under any misapprehension as to what was referred to as invalid votes and the geographical area in which the alleged acts of non-compliance relating to invalid votes were alleged to have occurred. Relying on the case of Ngige Vs Obi (2006) 14 NWLR (999) 1 @ 142 he submitted that the lower Tribunal ought to have considered the entirety of the pleadings and not paragraph 15 (4) in isolation. He referred to paragraphs 13, 14 and 15 of the petition and submitted that the entire pleading is to the effect that the 1st respondent was not elected by a majority of lawful votes. He also submitted that the relief sought in paragraph 37.2 clearly showed that the appellant was making a case that invalid votes were countenanced in favour of the 1st respondent. He referred to the case of Arise Vs Adetunbi (2011) All FWLR (558) 944 @ 966. He argued further that having regard to the sui generis nature of election petitions in which time is of the essence, a court or Tribunal hearing an election petition has a duty to take cognizance of any evidence that will aid it in the discharge of its duty, whether it is expressly pleaded or not. He relied on Aregbesola Vs Oyinlola (No. 2) (2011) All FWLR (570) 1292 @ 1413 F – H.
With regard to the finding of the Tribunal that the petitioner should have pleaded the results of the election unit by unit to enable the Tribunal determine the substantiality of the acts of non-compliance pleaded, learned Senior Counsel submitted that the pleading in paragraph 13 of the petition stating the result of the election on a ward by ward basis was sufficient to determine the issue. In his oral submissions at the hearing of the appeal he also referred to paragraphs 16, 18 and 36 of the petition. He contended that even without the further particulars the pleadings were sufficient. He submitted that all the Forms EC8A(1), EC8B(1) and EC8C(1) were before the Tribunal in respect of all the nine wards complained of. He referred to Exhibits P45 series, Exhibit P46 series, Exhibit P60, P61 and P62. The Learned silk submitted that in furtherance of the pleading the Tribunal ordered a recount of the ballot papers in the nine wards to determine the valid and invalid votes. The result was tendered as Exhibits P75 and P76. He submitted that the Tribunal had enough facts before it upon which to determine the issue of substantiality.
In reaction to these submissions learned counsel for the 1st respondent reproduced paragraphs 15.4, 18, 24 and 32 of the petition. They read as follows:
“15.4. In most polling units in the nine wards mentioned in paragraph 13 above, invalid votes were counted for the 1st respondent as valid votes.
18. Several invalid votes and rejected votes were counted as valid for the 1st respondent.
24. Several illegal and invalid votes and rejected votes were counted as valid votes for the 1st respondent.
32. The votes recorded in the Electoral Forms especially but not limited to Form EC8A1, EC8B, EC8C do not represent lawful votes cast in the nine wards.
36. The petitioner shall further rely on all Electoral Forms, ballot papers used and unused, voters register used in each of the polling units in the said election in the nine wards enumerated in paragraph 13 above. …” (Emphasis mine)
He observed that the above-mentioned paragraphs came under the subhead “Particulars” and yet lacked clarity and specificity. On the principle of good pleading reference was made to the case of Abubakar Vs Yar’Adua (2008) 19 NWLR (1120) 1 @ 147 G – E. It was argued that the words “most” and “several” used in the pleading are vague, nebulous and unfathomable averments, which cannot be cured by paragraphs 32 and 36.
With regard to the appellant’s contention that the 1st respondent was not misled by the pleading in paragraph 15.4 in view of his reply thereto, it was emphasized that it was the 1st respondent’s preliminary objection to some paragraphs of the petition including paragraph 15.4 that led to the filing of the further and better particulars, particularly paragraph 5 thereof, which the appellant heavily relied upon to sustain the petition. He submitted that the further and better particulars failed to meet the requirement of pleading. It was contended that the geographical or electoral area in which the acts of non-compliance relating to invalid votes were alleged to have occurred were left to speculation. Learned counsel submitted that the facts in Arise Vs Adetunbi (supra) relied upon by the appellant are not on all fours with this case because in that case it was pleaded that all the polling units in all the 56 wards of the Ekiti Senatorial Districts were affected whereas in paragraph 12.2 of instant petition the appellant was not specific about how many wards and polling units were affected by the allegation.
It was argued that notwithstanding the sui generic nature of election etitions, they are still guided by the rules of court and rules of pleading and that parties are bound by their pleading and will not be allowed to set up a case at variance with their pleadings in court. See: Kalu Vs Uzor (2006) 8 NWLR (981) 66 @ 87. He distinguished the case of Aregbesola Vs Oyinlola (supra) from the facts of this case on the ground that the petitioner pleaded of allegations of fact in 12 Local Governments affected by electoral malpractices with certainty; that no recourse was had to further and better particulars; that the case dealt with ballot stuffing, ballot snatching and falsification of results, which were clearly pleaded.
Learned counsel submitted that the appellant’s argument that the pleading in paragraph 13 of the petition together with the various forms EC8As and EC8Bs for Obokun/Oriade Local Government and Exhibits 75 and 76 should be considered to determine the issue of substantiality is not available to the appellant at this stage because the Tribunal had, in a considered ruling, held that paragraphs 15.4, 18, 24 and 32 were vague and there is no appeal against that ruling. He noted that it was this ruling that prompted the appellant to file further and better particulars. Learned counsel also argued that the said Forms ECSA and ECSB series were dumped on the Tribunal without tying them to his case. He referred to Buhari Vs INEC (2008) 4 NWLR (1078) 546 @ 629. The submissions of on behalf of the 2nd respondent are almost identical with the submissions on behalf of the 1st respondent with very slight modifications. It will therefore serve no useful purpose to repeat them here.
In fact this was the case in respect of the entire appeal. In reply to the 1st respondent’s contention that there is no appeal against the Tribunal’s ruling of 2/6/2011 to the effect that the appellant’s pleadings are vague, learned Senior Counsel for the appellant submitted that the Tribunal made the same finding in the course of the final judgment. He submitted that the grounds of appeal filed touching on the same findings are sufficient. He submitted further that it is not correct to say that Forms EC8A were dumped on the Tribunal, as they are statutory forms which are complete in themselves. He referred to Terab v. Lawan (1992) 3 NWLR (231) 569.
The law is settled that the essence of pleadings is to compel the parties to define accurately and precisely the issues upon which the case between them is to be fought to avoid any element of surprise by the other party. Pleadings also serve to guide the parties and ensure that they do not give evidence outside the facts pleaded, as evidence on a fact not pleaded goes to no issue. see: Abubakar vs Joseph (2008) 13 NWLR (1104) 307 @ (1973) 4 SC 113; Buhari Vs Obasanjo (2008) 13 NWLR (1104) 307 @ 356 F – G; LPELR-SC10/2002 1 @ 53 – 54 G – A; Akinterinwa & Anor v. Oladunjoye (2000) 4 SCNJ 149; Emegokwue v. Okadigbo (1973) 4 SC 113; Buhari v. Obasanjo (2005) 13 NWLR (941) 193 E and 200 – 201 F – A.
The appellant herein has challenged the finding of the lower Tribunal that his pleadings did not contain sufficient particulars. It is not in dispute that during the pre-hearing session the lower Tribunal ordered the appellant to supply further and better particulars in respect of his pleading. See page 431 of the record. This was a result of the pleading in paragraph 8 of the 2nd respondent’s reply wherein it sought further particulars of the units referred to in paragraph 15.1 of the petition. Also pursuant to the preliminary objection of the 1st respondent seeking the striking out of certain paragraphs of the petition for being vague, the Tribunal by its ruling of 2/6/2011 rather than strike out the petition ordered the petitioner to file further and better particulars of the polling units referred to in the paragraphs wherein allegations of various irregularities were made. Pursuant to this order the appellant filed further and better particulars dated 3/6/2011. The argument of the respondents, which was accepted by the Tribunal was that even after the filing of the further and better particulars, some aspects of the pleading lacked particulars.
The grounds relied upon in the petition are set out in paragraph 12 reproduced earlier in this judgment. The facts supporting the grounds are pleaded in paragraphs 13 – 15 while particulars are given in paragraphs 16 – 33. In paragraph 13.1 – 13.3, 13.5 – !3.7 and paragraph 13.10 the appellant pleaded the scores announced in favour of ACN and PDP in 7 of the 9 wards complained of. He pleaded the scores in Wards 1 and 7 of Obokun Local Government and the scores in Wards 3, 4, 7, and 12 of Oriade Local Government. Although wards 1, 8 and 10 of Oriade Local Government were complained of the scores were not stated. Paragraph 14 contains a general pleading that there was substantial non-compliance with the mandatory requirements of the Electoral Act 2010 as amended (hereinafter referred to as the Electoral Act) and the Manual for Election Officials 2011 and that the noncompliance substantially affected the validity of the election in the nine wards concerned. In paragraph 15.1 – 15.13 various acts of non-compliance were pleaded as follows:
15.1 Elections were not conclusive and illegal counting of votes took place at more polling units in the nine wards mentioned in paragraph 13 above.
15.2 Counting of votes took place before the statutory time of closure of polls.
15.3 In many of the polling units in the nine wards, multiple registrations, multiple accreditations and multiple voting took place.
15.4 In most polling units in the nine wards mentioned in paragraph 13 above, invalid votes were counted for the 1st Respondent as valid cotes.
15.5 Conclusion of polls and counting of votes took place before the regulatory time for closure of polls.
15.6 In some of the polling units in the aforementioned wards, some voters and supporters of the Petitioner who did accreditation in the morning and came within the statutory period of polls could not vote as they met the Polling Officials already sorting out and counting votes.
15.7 Some of the Petitioner’s supporters were disenfranchised.
15.8 In some polling units, the Party Agents representing the Petitioner were forced to sign electoral forms.
15.9 The votes recorded in Form EC8A1 by the presiding officers do not represent lawful votes scored by the 1st Respondent.
15.10 The 1st Respondent and his agents acting in concert intimidated the supporters of the Petitioner to vote for the 1st Respondent.
15.11 The 1st Respondent and his agent coerced the Presiding Officers to count invalid and rejected votes along with votes scored by the 1st Respondent.
15.12 In some polling units the number of votes returned is more than the number of accredited votes leading to over voting.
15.13 The conduct of the election in the nine wards mentioned in paragraph 13 above is marred by corrupt practice, widespread irregularities and malpractices resulting in substantial non-compliance with the mandatory provision of the Electoral Act 2010 as amended and the Manual for Election Officials 2011.
A careful examination of the pleading reproduced above shows that the averments are certainly lacking in material particulars. As stated earlier, paragraphs 16 33 come under the heading “particulars”. I have carefully examined all the paragraphs, particularly paragraphs 16, 18, 24 and 36 to which our attention has been drawn. In particular in paragraph 18 it is pleaded that “several invalid votes and rejected votes were counted as valid votes for the 1st respondent.” In paragraph 22 it is averred that “the presiding officers in the nine wards colluded with the agents of the 1st respondent to end poll before regulation time.” The averment in paragraph 16 is repeated in paragraph 24. Similar averments pervade all the paragraphs. In paragraph 36 the appellant avers that he would rely on all the electoral forms, ballot papers, used and unused voters register used in each of the polling units in the nine wards enumerated in paragraph 13.
By the various pleadings referred to above, it is obvious that the appellant’s complaints do not relate to all the polling units in the nine wards complained of. Hence the use of the words “some’, “several” and “most”. The appellant’s contention is that there was substantial non-compliance with the provisions of the Electoral Act as amended and the Manual for Election Officials 2011. Section 139 (1) of the Electoral Act provides:
139 (1) “An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.”
Thus where the petitioner seeks to rely on non-compliance with the provisions of the Electoral Act, his pleading must show the substantiality of the non-compliance. Merely stating the scores recorded for the candidates as in paragraph 13 without more does not meet this requirement because there is no comparison of those figures with what the appellant considers to be the lawful and valid votes. It is well settled that where a petitioner’s complaint is that the person returned was not duly elected by a majority of the lawful votes cast at the election and that he should be returned as the winner, he must plead two sets of results: the scores announced by INEC and the scores which he considers to be correct. See: Awuse Vs Odili (2005) 16 NWLR (952)416 @ 482 G – 485 B; Nwobodo v. Onoh (1984) 1 SCNLR 1. The appellant failed to do so in this case.
Furthermore, as observed by the Tribunal the averments to the effect that most or several polling units in the nine wards were affected without stating the affected units and without stating the overall number of wards or units in the constituency does not amount to sufficient particulars of the acts of non-compliance complained of. The gravamen of the petition was the assertion that invalid votes were counted and allocated in favour of the 1st respondent. This was pleaded in paragraph 15.4 of the petition. The purpose of the further and better particulars was therefore to state with precision the actual units in the wards complained of where the counting of invalid votes took place to enable the respondents know the case they were to meet and adequately prepare their defence. Having filed further and better particulars, the appellant was bound thereby and could not turn around again to rely on the vague and general averments in the petition. Once the appellant had provided details of the units affected in the further and better particulars, the presumption is that any unit not referred to therein was not affected. No evidence could subsequently be led in respect of any unit or ward not so particularised, I find support for this position in the case of: Yar’dua Vs Barda (1992) 2 NWLR (231) 638 @ 656 A – C where Akanbi, JCA held thus:
“My understanding of the italicised words is that paragraphs 5, 6 and 7 are material facts, which ordinarily will justify the reception of Forms ECSA in evidence; that is to say, if no particulars had been sought and given, the petitioner would have been at liberty to put forms ECSA in evidence. With the ordering of particulars, those paragraphs would have to be read and considered in the light of the particulars supplied. Particulars have the effect of modifying the paragraphs of the pleadings.
They define or delimit the scope of the issues raised by the pleadings. They prevent the claimant or the pleader from roaming wide a field or veering away from the issue settled on the pleadings. And that is why once particulars have been given, the party is not allowed to give evidence outside those particulars. See: Phillips Vs Phillips (1828) 4 QBD 127 @ 133.”
See also: Abubakar vs. Yar’Adua (2008) 4 NWLR (1078) 465 @ 535 B – G; Nwachukwu v. Eneogwu (1999) 4 NWLR (600) 629.
In considering the paragraphs of the petition earlier in this judgment had held that the pleading in paragraph 13 lacks sufficient particulars. Thus the averment in paragraph 36 of the petition that reliance would be placed on “all electoral forms, ballot papers used and unused voters registers used in each of the polling units in the nine wards enumerated in paragraph 13″ does not assist the petitioner. Furthermore, the Forms EC8A(1), EC8B(1) and EC8C(1) series and Exhibits 75 and 76 (the result of the recounting of ballot papers) would only be relevant if tied to the pleadings in respect of which further and better particulars have been supplied. The authority of Aregbesola Vs Oyinlola (supra) cannot avail the appellant having regard to the peculiar circumstances of this case where further and better particulars were ordered and supplied. I have also considered the case of Arise Vs Adetunbi (supra). I agree with learned counsel for the 1st and 2nd respondents that it is not on all fours with this case. The grounds of the petition were stated in paragraph 9 (a) and (b) thus:
(a) That the election was invalid by reason of corrupt practices and/or substantial non-compliance with the provisions of the Electoral Act 2006 and its guidelines.
(b) That the 1st respondent was not duly erected by majority of lawful votes cast at the election.
In paragraph 10 (xii) the petitioner averred:
(xii) Votes were awarded in favour of the 1st and 2nd respondents (sic) without basis. The 1st, 2nd, 3rd, 4th and 5th respondents are put on notice to produce Form EC8A, in all the polling booths in all the fifty-six wards of Ekiti North Senatorial District.”
The petitioner was specific that he would be challenging the votes in all the polling booths in all the fifty-six wards of the Senatorial District. In the instant case as noted earlier, the pleading was vague and too general in terms. I am of the view and do hold that the Tribunal was correct to exercise its discretionary powers under paragraph 5 of the 1st Schedule to the Electoral Act as amended, by ordering the petitioner to file further and better particulars in respect of certain paragraphs of the petition, particularly paragraph 15.4. Once those particulars had been supplied omitting wards 1 and 10 of Oriade Local Government, the petitioner was precluded from leading evidence in respect of those wards. To hold otherwise would amount to permitting trial by ambush, the appellant having had two opportunities to furnish the necessary particulars. This issue is accordingly resolved against the appellant.
Issue 2
Whether the Tribunal was not wrong when it held that the officers of Independent National Electoral Commission whose conducts are complained against ought to have been joined as parties in the petition.
The appellant’s complaint under this issue is that the Tribunal erred when it struck out paragraphs 15.8, 15.10, 15.11 and 15.13 of the petition for failure to join the officers of the 3’d respondent whose conduct was complained of. Learned senior counsel for the appellant submitted that joining officers of INEC in an election petition is unnecessary once INEC, the master of the affected officers is joined as a party. Reliance was placed on the case of Fayemi Vs Oni (2010) 17 NWLR (1222) 326 @ 409. He noted that under Section 144 (2) of the Electoral Act 2006 such officers need not be joined once INEC is made a party and the officers are stated to have acted as agents of INEC notwithstanding the nature of the act complained of. He observed that the provision has been further watered down by Section 137 (3) of the Electoral Act 2010 (as amended) wherein the requirement that it be stated that the officers acted as agents of INEC has been removed. He argued that the appellant has suffered grave injustice, as the Tribunal did not consider evidence led in support of those paragraphs.
The 1st and 2nd respondents argued this issue as issue 4 in their respective briefs. Relying on the decision of the Supreme Court in Buhari Vs Yusuf (2003) 14 NWLR (841) 446 @ 576, the respective learned counsel argued that copious criminal allegations were made against officers of INEC ranging from forcing party agents to sign electoral forms, intimidation of the petitioner’s supporters by agents of the 1st respondent, coercing presiding officers to count invalid votes and other malpractices and acts leading to substantial non-compliance with the provisions of the Electoral Act, and that they ought to be given a hearing before any decision is reached against them.
They argued that there could be no agency in criminal conduct. See: Dina Vs Daniel (2010) 11 NWLR (2010) 137 @ 154. They noted that the said paragraphs were not merely struck out for failure to join necessary parties, but also on the ground that the facts stated therein were not proved at the trial. They submitted that where evidence is not led on a pleaded fact, it is deemed abandoned unless admitted by the adverse party. They relied on: Nwankwo & Anor. Vs Yar’Adua (2010) 6 SCM 121 @ 165 B – D. They also argued that the 1st respondent’s agents whose acts were complained of were entitled to be given a fair hearing.
Section 137 (3) of the Electoral Act 2010 (as amended) provides:
“If the petitioner complains of the conduct of an Electoral Officer, a Presiding or Returning Officer, it shall not be necessary to join such officers or persons notwithstanding the nature of the complaint and the Commission shall, in this instance be:
(a) made a respondent; and
(b) deemed to be defending the petition for itself and on behalf of its officers or such other persons.”
This is a departure from the provision of Section 144 (2) of the Electoral Act 2006, which required it to be shown that the officer or such other person acted as agent of the Commission. The more liberal provision in Section 137 (3) of the Electoral Act 2010 is to eliminate the previous unwieldy nature of election petitions with hundreds and sometimes thousands of respondents.
In striking out the aforementioned paragraphs for non-joinder of necessary parties, the Tribunal relied on the cases of: Eselemo Vs Funkekeme (2007) LPER/FP/CA/B/154/2005 and Buhari Vs Yusuf (2003) 14 NWLR (841) 446. These cases were decided with reference to the Electoral Act 2002. Under the 2002 Act it was mandatory to join all electoral officers whose conduct is complained of as respondents in the petition. This position no longer represents the law. The Independent National Electoral Commission having been made a respondent to the petition, it was not necessary to join the officers whose conduct was complained of in the petition. With regard to the 1st respondent’s agents, in order to succeed in having the election of the 1st respondent nullified on grounds of electoral malpractices, the petitioner must prove that the acts of those complained of were done with his knowledge and on his authority or that he aided, abetted, counselled or procured the commission of the said acts. See: Yusuf Vs Obasanjo (2005) 18 NWLR (956) 96 at 185 D-F and 122 D-F; Falae Vs Obasanjo (1999) 4 NWLR (599) 435: Oyegun Vs Igbinedion (1992) 2 NWLR (226) 747; Adeola Vs Owoade (1999) 9 NWLR (617) 30. Once the 1st respondent is a party it would not be necessary to join his agent as a respondent. I therefore agree with learned counsel for the appellants that the lower Tribunal erred when it held that the electoral officers and 1st respondent’s agents ought to have been joined as necessary parties. It is however instructive to note that notwithstanding its finding on necessary parties, it went ahead and considered the evidence led in support of those paragraphs. Their Lordships at page 1137 and 1139 of the record held thus:
“In proving criminal allegations, the requirement is that the alleged criminal act must be linked to the 1st respondent by credible evidence and it must be shown that the acts were committed in favour of the 1st respondent, with his knowledge or of such person acting on the general or special authority of the 1st respondent with respect to the election there is no link or nexus between the 1st respondent and those alleged to have committed the alleged criminal acts. It was not shown that those persons acted with the knowledge, consent or under the authority of the 1st respondent. All these go to impeach the alleged criminal acts and render those paragraphs unproved, abandoned and consequently struck out as done above.”
It is therefore not correct, as contended by the appellant that evidence led in respect of the paragraphs that were struck out was not considered.
The finding of the Tribunal that the petitioner failed to prove that the acts complained of were done with the knowledge or authority of the 1st respondent is fully borne out by the evidence on record. Indeed the petitioner substantially fought the petition on the ground that invalid votes were counted for the 1st respondent as valid. I am therefore of the view that in spite of the erroneous view that electoral officers ought to have been joined as respondents when INEC was already a party, the Tribunal rightly struck out the paragraphs complained of on the ground that no evidence was led to support them. This issue is accordingly resolved against the appellant.
Issue 3
Whether the Tribunal was not wrong when it failed to properly or in any form evaluate the evidence of a vast majority of the Petitioner’s witnesses regard being had to the Tribunal’s treatment of the evidence of PW1 – PW27 as abandoned and its refusal to ascribe probative value to the evidence of PW31 and PW32 on the outcome of their physical and forensic examinations of electoral materials used in the conduct of the election?
In support of this issue, learned senior counsel for the appellant submitted the evidence of PW1 – PW27 bordered on the allegations relating to corrupt practices, disenfranchisement of voters, etc. He submitted that the witnesses were either the appellant’s agents or persons who voted and testified as to what transpired on the day of the election. He submitted that the evidence as contained in the witnesses’ written statements on oath was sufficient to shift the burden to the respondents to disprove same. He argued that the failure to tie evidence of a certain malpractice to a document could not detract from the substance of the evidence given by the witnesses. He argued that the onus was on the respondents to demonstrate the inaccuracy of the evidence by recourse to documents and not the other way round. He submitted that the court has a duty to evaluate the evidence as contained in a witness’s statement on oath once adopted and that such evidence is not to be treated as a mere allegation requiring additional proof. Reliance was placed on: Aregbesola v. Oyinlola (supra) and Agagu vs. Mimiko (2009) 7 NWLR (1140) 346.
Learned Senior Counsel submitted that the Tribunal neither stated nor evaluated the evidence of the witnesses. With regard to PW32 a forensic expert who testified and tendered the results of his examination of the ballots used in the election, it was argued that the Tribunal was wrong to have rejected his evidence on the ground that the use of a magnifying glass to examine the ballot papers was neither forensic nor scientific. It was argued that the focus of the Tribunal should have been whether the examination of the ballots revealed acts of non-compliance. It was further submitted that the Tribunal wrongly compared the evidence of PW32 with that of PW31 who did not claim to be an expert and who merely conducted a physical as opposed to forensic examination of the ballot papers. It was argued that even if there were discrepancies, they were not sufficient to lead to a total disregard of the evidence, as whichever way the figures in the two reports were considered they showed that the figures entered into the various electoral forms upon which the declaration of the 1st respondent was made did not reflect the verifiable ballots used on the day of the election. It is also contended that the Tribunal failed to evaluate the evidence of DW29 and DW30 and Exhibits 75 and 76 tendered by them. This court is urged to interfere with the findings on the ground that they are perverse and that the appellant was denied a fair hearing.
The 1st and 2nd respondents argued this issue as issue 2 in their respective briefs of argument. Learned counsel submitted that the burden of proof in civil matters is on he who asserts; that in civil cases the standard of proof is on a balance of probabilities but where the commission of a crime is directly in issue, the standard of proof is beyond reasonable doubt. See INEC vs. Ray (2004) 14 NWLR (892) 92 @ 121 – 122; Sections 137 and 138 of the Evidence Act. It was contended on behalf of both respondents that contrary to the submissions of the learned senior counsel for the appellant, the Tribunal in fact clearly identified the allegations contained in the petition relating to the alleged malpractices, disenfranchisement of voters, coercion of presiding officers etc., duly considered the evidence in respect thereof and rightly came to the conclusion that they were not proved. It was submitted that while the evidence of PW – PW27 was evaluated at pages 1140 – 1144 of the record, the evidence was also considered side by side with documents tendered before the Tribunal, which were not tied or related to the evidence of any witness. It was also observed that the appellant’s main focus at the trial was that invalid votes were counted in favour of the 1st respondent. It is their contention that the evidence of the appellant’s witnesses collapsed under cross-examination. On what evaluation of evidence entails, the case of Buhari vs. Obasanjo (2008) 19 NWLR (1120) 246 @ 409 – 412 G – A was relied upon. It was submitted that the court should only be concerned with issues joined by the parties, which are live, as they will determine the merits of the case. It was further argued that the Tribunal rightly observed that the fulcrum of the appellant’s case was the counting of invalid votes in favour of the 1st respondent. Nevertheless, the Tribunal went ahead to consider all the other allegations made in the petition.
With regard to the evidence of PW32 they agreed with the Tribunal that his report did not reflect any skill or forensic expertise. In addition it was submitted that under cross-examination the witness admitted that his report contained “human errors” and “assistant errors” and further that at the end of the day he invited the Tribunal to have recourse to the original ballot papers and not those used in his report.
On the comparison made between the findings of PW31 and PW32, it was submitted that both witnesses conducted physical examination of the same ballot papers at the sane time and came up with different figures. Learned counsel submitted that in the circumstances the Tribunal could not pick and choose which evidence to accept as the true state of affairs. They relied on: Onya v. Ogbuji (2011) ALL FWLR (556) 493 @ 522 C – D; Eze v. Okologu (2010) 3 NWLR (1180) 183 @ 216 – 217 H – E. It was argued that it is the duty of the trial Judge who sees and hears the witnesses to determine whether they are credible or not and that where this duty has been properly exercised, an appellate court would not intefere with his findings. See: Major I. Z. Umoru Ltd. & Anor. Vs Alhaji Abubakar Zibiri (2003) FWLR (172) 1920 @ 1934 D. Finally learned counsel submitted that the authorities relied upon by the learned senior counsel for the appellant are not applicable in this instance because the Tribunal clearly identified the issues that would meet the justice of the case; made proper use of the opportunity of seeing and hearing the witnesses at the trial; drew right inferences and conclusions from the evidence led by the petitioner; and reached correct findings borne out by the said evidence. He urged this court to resist the invitation to interfere with the decision.
In reply to the above submissions, learned Senior Counsel for the appellant submitted that the method adopted by the Tribunal fell short of its duty, as it focused on what the evidence of the witnesses ought to have contained rather than evaluating the actual evidence given. He also submitted that it was not open to the 1st and 2nd respondents to challenge the expertise of PW32, as the Tribunal had made a finding that he is an expert and there is no appeal against it. As rightly submitted by the respective learned counsel, in civil cases, it is the duty of the party who asserts to prove his case on the balance of probability, except where there is an allegation of the commission of a crime, which requires proof beyond reasonable doubt. It is also trite that the claimant must satisfactorily discharge this burden by establishing a prima facie case before the onus of proof would shift to the respondent. See: Ilobabachie v. Iloabachie 22 NSCQR (Part II) 672; also found in (2005) 13 NWLR (943) 695; Jolayemi v. Alaoye 18 NSCQR (Part II) 682 at 703; also found in (2004) 12 NWLR (887) 322. See also: Sections 137 and 138 of the Evidence Act. Although Election Petitions are of a special class, they are nonetheless civil proceedings and the provisions of the Evidence Act referred to above are applicable thereto. See: Omoboriowo Vs Ajasin (2007) 3 EPR 488 at 523 – 523 – 524; Ajadi v. Ajibola (2004) 16 NWLR (898) 195.
It is equally well settled that there is a rebuttable presumption that the result of any election declared by the Electoral Commission is correct and authentic. The burden lies on the person who disputes the correctness and authenticity of the result to lead rebuttal evidence. See: Omoboriowo Vs Ajasin (supra); Nwobodo Vs Onoh (2007) 3 EPR 180 at 227 G – H; Buhari vs Obasanjo (2005) 13 NWLR (941) 1 at 225 C – F.
The contention of the appellant is that the lower Tribunal failed to evaluate the evidence of his witnesses, particularly PW1 – PW27 on issues of non-compliance with the Electoral Act and various electoral malpractices. The first duty therefore is to examine the record of proceedings to determine whether this assertion is correct. The grounds for the petition as contained in paragraph 12 of the petition have been reproduced earlier in this judgment. In particular it is averred in paragraph 12.3 that the election was marred by corrupt practices, widespread irregularities and malpractices resulting in substantial non-compliance with the mandatory provisions of the Electoral Act 2010 (as amended) and the Manual for Electoral Officials 2011.The facts supporting the grounds are set out in paragraphs 15.1 – 15. 13 of the petition at pages 6 – 7 of the record. At pages 1122- 1124 of the record, the Tribunal set out all the allegations of non-compliance and malpractice as pleaded by the appellant.
At page 1140 of the record it went further to observe thus:
“We observe that the petitioner through his counsel did not address other allegations replete in the pleadings but focused only on the allegation that invalid votes were counted for the 1st respondent. That notwithstanding, we must make a finding on these allegations since learned counsel for the petitioner did not state in clear terms that he has abandoned them.” (Emphasis mine)
Clearly the learned members of the Tribunal were alive to their responsibility to do substantial justice in the case. The learned Judges then took the allegations one after the other and considered them against the evidence led. With regard to the allegation of over voting, multiple accreditation and multiple voting the Tribunal held that although voters registers were tendered as Exhibits P38 – P4, P58 and P59, none was tied to the evidence of a witness and it was not demonstrated before the Tribunal against the results of the units complained of. On the allegation of disenfranchisement of the appellant’s supporters it was held that once again even though the voters’ registers were tendered none of the witnesses testified that he was denied the right to vote nor was the Tribunal shown whether the names of registered voters were ticked on the day of the election.
In order to prove over voting at an election the petitioner must prove that the total votes cast exceed the number of registered voters in a polling unit or station. He must not only prove the votes collated by the assistant returning officers, he must also prove the votes counted by the presiding officers, and the scores of each candidate at the polling booths, which were the basis of the collation. He must also plead and tender the voters’ register for any particular polling station where over voting is alleged. See: Awuse Vs Odili (2005) 16 NWLR (952) 416 @ 494 A – B; 491 D – E. I have examined the evidence on record. PWs 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 13, 14, 20, 23 and 26 all testified that there was multiple registration, multiple accreditation and over voting. The voters’ registers were tendered through PW29 and PW30, the Electoral Officers for Obokun and Oriade Local Governments respectively. As rightly observed by the Tribunal, no attempt was made to tie the exhibits to the evidence of these witnesses. In Awuse Vs Odili (supra) at 510 – 511 G – A the court relied on the dictum of Aikawa, JCA in Terab Vs Lawan (1992) 3 NWLR (231) 559 @ 590 G – H where His Lordship held:
“..the correct view of the law is that a party relying on documents in proof of his case must specifically relate each of such documents to that part of his case in respect of which the document is being tendered. The court cannot assume the duty of tying each of a bundle of documentary exhibits to specific aspects of the case for a party that has not himself done so. The foundation of the principle is that it is an infraction of fair hearing for the court to do in the recess of its chambers what a party has not himself done in advancement of his case in open court.”
It is correct, as stated in Aregbesola Vs Oyinlola (supra) and Agagu Vs Mimiko (supra) relied upon by learned counsel for the appellant that the statement on oath of the witness, once adopted in court becomes his evidence-in-chief. However, such evidence must still be tested as to its probative value. It cannot be accepted hook, line and sinker merely because it is a statement on oath. In the instant case the only way to prove that there was over voting, multiple accreditation and multiple registration was to tie the voters’ register to the evidence of the witnesses and the pleadings. This was not done,
On the allegation of disenfranchisement, I have considered the evidence of PWs 1, 4, 5, 6, 8, 11, 12, 17, 19, 23, 25 and 26. Although they testified that certain persons were unable to vote either because they were intimidated by supporters of the 1st and 2nd respondent, or that after being accredited they were not allowed to cast their vote when they returned to the queue or early closure of the polls, none of the voters allegedly disenfranchised on any of these grounds testified. For instance, PW 19 in paragraph 4 of his statement on oath at page 168 of the record mentioned the names of two PDP members who were disenfranchised. They did not testify. PW 12 in her written statement on oath averred that the resident Hausa Community who had earlier done accreditation were not allowed to vote. No member of the Hausa Community testified.
On the allegation that voters who came before 4.00pm were not allowed to vote, the Tribunal noted that nobody testified that he was not allowed to vote. It was observed that most of the petitioner’s witnesses admitted that those who did not vote arrived after the poll assistant had marked the last person on the queue. It was for this reason that the Tribunal held that the allegation not having been proved had been abandoned.
On the allegation of coercion to sign result sheets, the Tribunal noted that all the polling agents who testified, except for PW25 admitted signing the result sheets voluntarily. The Tribunal however noted that under cross-examination PW25 was unable to name the person who forced him to sign. Furthermore it was noted that the witness was called in respect of Ward 12 Unit 7 while the pleadings in respect of the allegation is for Ward 3 Unit 9 Oriade Local Government.
Having carefully examined the entire findings of the Tribunal at pages 1140 – 144, I am satisfied that the findings are fully borne out by the record. The fact that the evidence of each witness was not set out in the judgment and evaluated seriatim does not on its own show that the Tribunal did not evaluate same. As pointed out by learned senior counsel at page 12 paragraph 6.03 of his brief, the petitioner’s witnesses could be classified into groups; (i) the agents at the polls and other eligible voters; (ii) the petitioner’s expert witness – PW32; electoral officers who testified on subpoena – PW29 and PW30; and (iv) PW31 who testified as to the physical examination of the electoral material he carried out. PW1 – PW28 fall within the first category. The finding of the Tribunal shows that in fact the evidence of these witnesses was carefully considered and due evidential weight given to it. I find no reason to interfere with its findings in respect of these witnesses.
I now come to the evidence of PW31 and PW32. PW32, Dr. Ebenezer Oladapo Ajayi, testified and gave copious evidence as to his qualifications and expertise as a forensic expert. He also testified as to the method he adopted in his analysis of all the electoral materials used in the election of 9th April 2011 into the Obokun/Oriade Federal Constituency seat of the Federal House of Representatives. The Tribunal at page 1151 of the record found him to be an expert in the field of forensic science but however rejected his report (Exhibit 74 A). In view of the finding of the Tribunal, the issue as to whether or not PW32 is an expert witness has been laid to rest. The issue for determination here is the probative value of his evidence. I am inclined to agree with learned counsel for the appellant that having held that the witness is an expert in his field, it was not open to the Tribunal to trivialise the methods used in his analysis when there was no evidence before it to suggest that the method used is not known to forensic science. The fact that the witness examined the exhibits with a magnifying glass could not detract from the expertise he would bring to his analysis of the results produced thereby.
Having said that, it is also trite that a court of law is not bound to accept the evidence of an expert witness. In the case of Fayemi Vs Oni (2009) 7 NWLR (1140) 223 @ 277 F – 278 B the court referred to and relied on the dictum of R.D. Muhammad, JCA in Ngige vs Obi (2006) 14 NWLR (999) 1 @ 143 E – H on the position of the law regarding the evidence of an expert.
His Lordship held:
“A court is entitled to accept the evidence of an expert if is credible, particularly if it is not controverted or challenged and the expert demonstrates his skills. However, the evidence of an expert is generally an aspect of the entire evidence to be evaluated by a court because a trial court must be fully in control of all the evidence before it and must not abdicate its primary duty of assessing the evidence and forming its clear opinion in relation thereto, including any expert evidence. In other words, a court is not bound by the evidence of an expert witness, it has an opinion in the matter that it must exercise judicially and judiciously.”
It was held in the case of Bello Vs Ringim (1991) 7 NWLR (206) 668 @ 676 B – C per Achike, JCA:
“It must be borne in mind that the evidence of an expert is not sacrosanct. Like the evidence of other witnesses … the trial Judge has a duty to evaluate the evidence of experts and thereafter he has a responsibility to accept or refuse to accept their testimonies in reaching a conclusion on whether or not the negligence of the appellant has been proved or not. In other words, a lot depends on the weight the court ultimately attaches to such expert evidence.”
See also: Tuah vs. Michael (2010) 10 NWLR (1203) 519; A.N.P.P. & Anor. vs Usman (2008) 12 NWLR (1100) 1 @ 73.
PW32 in paragraph 15 of his statement on oath at page 664 of the record testified that he carried out a physical examination and analysis of the election materials pursuant to an order of the Tribunal granted on 9/5/2011. The result of the analysis was tendered as Exhibit 74A.It is pertinent to observe that Exhibit 74A contains analysis in respect of all the units in Wards 1 and 7 Obokun Local Government and Wards 1, 3, 4, 7, 8, 10 and 12 of Oriade Local Governent. As stated earlier in this judgment the fulcrum of the appellant’s case before the Tribunal was that invalid votes were counted as valid for the 1st respondent. This averment is contained in paragraph 15.4 of the petition. In paragraph 9 of his reply to the 2nd respondent’s reply, the appellant supplied particulars of the units complained of. In compliance with the order of the Tribunal to supply further particulars, the appellant pleaded some additional units in paragraph 5 of his further and better particulars.
There is no doubt that he had been given ample opportunity to specify the wards and units where invalid votes were counted for the 1st respondent. Having filed further and better particulars, he is fully bound by them and any evidence led outside those particulars would go to no issue. See: Yarhdua Vs Barda (supra).
In the course of resolving the first issue in this appeal, attention was drawn to the fact that no particulars were supplied in respect of Wards 1 and 10 Oriade Local Government yet Exhibit 74A contains the result of the analysis of all the units in these two wards. Similarly, the appellant was specific as to the units complained of in wards 3, 4, 7, 8 and 12 of Oriade Local Government. Exhibit 74A contains an analysis of all the units in the said wards. The appellant failed to tie Exhibit 74A to the specific wards and units pleaded in the further and better particulars. Furthermore, in the course of cross-examination, as observed by the Tribunal at page 1151 of the record, PW32 admitted to various errors and inconsistencies in the said report (see pages 701 – 706 of the record), which he attributed to human and assistant errors. At page 703 of the record, after certain errors were pointed out to him he stated thus:
“My report is based on original images. I want the court to rely on the originals of documents, not the ones used in my report.”
In my humble view, this statement sounded the death knell for the report prepared by this witness. If the Tribunal were to go back to the original documents what is the value of the report placed before it? Which aspect of the report was to be accepted and which rejected? I am of the view that the Tribunal was correct not to place any evidential value on Exhibit P74A. The Tribunal considered the evidence of PW31 and Exhibits P67, P68 and P69, the results of his physical analysis of the materials used in the election, tendered by him. After reviewing his evidence the Tribunal held thus (at pages 1152 – 1153 of the record):
“He was also taken through his findings in cross-examination and he could not defend some of his conclusions as he failed to show how he arrived at those findings. He did not identify the ballot papers by serial numbers that enabled him to reach the conclusions he came to. He also told the Tribunal that counsel to the petitioner would tie the ballot papers to his finding. This was not done and therefore how he arrived at his conclusions remained unexplained. In his report he said 636 and 4, 467 ballot papers, which were invalid votes were counted for ACN in Obokun and Oriade Local Governments respectively. He did not show the Tribunal those 636 and 4,467 ballot papers. He also admitted that if polling agents signed the result Forms ECSA (1) after the counting, it meant they were satisfied with the process of sorting out and counting of ballot papers. His final figures differed from PW32.”
The views expressed above by the lower Tribunal are unassailable having regard to the evidence before it. The probative value of Exhibits 67 and 68 were fully challenged under cross-examination and the witness was found wanting. Learned senior counsel for the appellant has urged the court to discountenance the comparison of the two reports by the Tribunal on the ground that one was prepared by an expert while the other was not. With due respect to the learned senior, the fact is that the appellant seeks to rely on these reports to establish the same fact: that invalid votes were counted for the 1st respondent. It is the duty of the appellant to show not only that there was non-compliance with the provisions of the Electoral Act but also that the non-compliance was substantial enough to affect the outcome of the election. The Tribunal was not at liberty to pick and choose which report to rely on. See: Onya Vs Ogbuji (2011) All FWLR (556) 493 @ 522 C – D; The authors of the reports had also admitted that their reports contained errors. The law is settled that where a trial court has carried out its statutory duty of evaluating the evidence before it and ascribing probative value thereto, an appellate court would not interfere with its findings unless such findings are found to be perverse. See: Saleh Vs B.O.N. Ltd. (2006) 6 NWLR (976) 316 @ 329 – 330 H – A; Agbaje Vs Fashola (2008) 6 NWLR (1082) 90 @ 153 B – E; Ogunleye Vs Safejo (2010) All FWLR (523) 1889 @ 1919 – 1921 G – E. The appellant has not shown that the findings of the lower Tribunal are perverse in the circumstances of this case. This issue is accordingly resolved against the appellant.
Issue 4
Whether the Tribunal was not in error when it refused to invalidate the election of the 1st Respondent and on the contrary proceeded to dismiss the Petition despite the avalanche of evidence, documentary and oral led by the Appellant, particular regard being had to the decision of the Tribunal to discountenance the outcome of the physical recount of ballot papers as contained in Exhibits P75 and P76 tendered and admitted in evidence before it?
The appellant’s complaint under this issue is that the Tribunal erred when it discountenanced Exhibits 75 and 76 (the result of the recounting of ballot papers as ordered by the Tribunal on 6/7/2011), which were tendered through RW29 and RW30 who testified for the 3rd – 7th respondents (referred to as DW29 and DW30 in the judgment) to prove non-compliance with the Electoral Ad, as pleaded in paragraphs 13, 15 and 15.4 of the petition. Learned senior counsel for the appellant noted that these witnesses also testified as PW29 and PW30 on behalf of the appellant pursuant to subpoenas served on them and that under cross examination by the respondents they claimed that the elections were devoid of malpractices.
On the finding of the Tribunal that DW29 and DW30 were not the makers of Exhibits 75 and 76 and therefore could not be cross-examined on them he relied on Section 91 (4) of the Evidence Act and noted that the Tribunal having agreed that the documents could be tendered through DW29 and DW30 since they had appended their signatures thereto, it was contradictory for it to turn around and reject the documents on the ground that the witnesses could not be cross-examined on them because they were not the makers. Learned counsel submitted that the witnesses were not passive observers at the recount having regard to the order of the Tribunal that the recount should be done in the presence of two representatives of each party. He submitted further that not only were the witnesses joined in the petition as the 5th and 6th respondents, they were the Electoral Officers for the two Local Governments in contention and by virtue of their positions were responsible for the conduct of the election in their areas of authority. He submitted that they were in the best position to give evidence on the outcome of the recount of ballot papers. He relied on Fayemi Vs Oni (supra) at 283 – 284 G – D. Learned counsel argued that the even though the exhibits were tendered after the respondents had all cross-examined their witnesses, they should have applied to re-open their cross-examination. He noted that the order for recount was made after the Tribunal had closed the petitioner’s case and contended that the only opportunity to tender the documents was through DW29 and DW30.
Learned senior counsel also argued that it was wrong for the Tribunal to expect the appellant to demonstrate the documentary evidence in open court by tying it to the over 50,000 ballot papers in question because the security and authenticity of the process was fully guaranteed by the order for recount, which required the counting to be done in a controlled environment in the presence of representatives of all the parties with security checks conducted on all the participants. He also noted that the Secretary was to supervise the exercise. He argued that the Tribunal having ordered the tendering of ballot papers in bulk, ward by ward to promote the speedy hearing of the petition was wrong to turn around and hold that the documents were not demonstrated. It was submitted that in similar circumstances, this court had upheld the nullification of the election. The cases of Arise Vs Adetunbi (supra) and Olabode & Anor. Vs Kila in CA/IL/EP/SEN/26/2008 were relied upon in this regard. It was also contended that the failure of DW29 and DW30 to attend all the days of the recount, contrary to the order of the Tribunal, should not be visited on the appellant.
On the finding of the Tribunal that PW29 and PW30 had testified that the elections were free and fair, contrary to the appellant’s pleadings, learned counsel observed that under cross-examination DW30 admitted that invalid votes were counted for the parties. He argued that this admission confirms the appellant’s pleading that invalid votes were counted for the parties; that it is a contradiction of the earlier evidence of the witness while testifying as DW30 that the election was free and fair; and that the admission is contrary to the pleading of the 3’d 7rh respondents that invalid votes were not counted. Relying on: INEC Vs Oshiomole (2009) 4 NWLR (1132) 607, he submitted that rather than dismiss the petition on account of the evidence of DW29 and DW30 the Tribunal ought to have relied on the documentary evidence before it in Exhibits P75 and P76. He submitted that this court is in as good a position to evaluate the documentary evidence.
In oral submissions in amplification of his brief, learned senior counsel for the appellant submitted that the move for the recount of the ballot papers was initiated by learned counsel for the 1st and 2nd respondents. He referred to pages 884 and 887 889 of the record. He also maintained that both learned counsel cross-examined the witnesses on Exhibits 75 and 76. He submitted further, relying on the case of: Okoya Vs Santilli (1994) 4 NWLR (338) 256 @ 282, that having signed the exhibits they were binding on DW29 and DW30.
In reply to the above submissions, learned counsel for the 1st and 2nd respondents submitted that pursuant to the order made on 9/5/2011 physical inspections of the ballot papers were carried out by PW31 and PW32 vis a vis the Forms EC8A used in the election. He noted that the reports tendered by these two witnesses were different and did not agree with the true contents of the ballot papers. With respect to the order of 9/7/2011 which resulted in Exhibits P75 and P76 it was observed that contrary to the order of the Tribunal that the result of the recount should be filed before it, the appellant chose to tender them through DW29 and DW30 during cross-examination. It was argued that the documents were prepared by one Kanmi Ajibola, representing the appellant and that the said Kanmi Ajibola though present in court was not called as a witness to tender the documents. It was submitted that where a document is tendered by a person who is not the maker, it will attach no probative value. Learned counsel relied on the case of: Omega Bank (Nig.) Plc. Vs O.B.C. Ltd. (2005) 8 NWLR (928) 547. The court’s attention was drawn to the evidence of DW30 when she stated that Exhibit P75 was given to her to sign by Kanmi Ajibola whom she identified in court. Learned counsel contended that merely signing the document in the circumstances of this case could not make the witness responsible for its accuracy. He referred to the case of: Flash Fixed Odds Ltd. Vs Akatugba (2001) 9 NWLR (717) 46 @ 63. He urged the court to hold that the documents are documentary hearsay and no probative value could be attached to them. Learned counsel maintained that by virtue of the court order for the recount, DW29 and DW30 were present only as observers and were not in a position to answer any question arising from Exhibits P75 and P76.
On the submission that the respondents could have applied to re-open cross-examination, learned counsel submitted that at the time the documents were tendered, DW29 and DW30 were not the appellant’s witnesses and he did not lead them in evidence in chief. It was submitted further that tendering the exhibits through the witnesses under cross-examination was not meant to impeach or contradict them. It was also submitted that the onus was on the petitioner to prove his case and to tie Exhibits P75 and P76 with oral evidence that would demonstrate the accuracy of the ballot papers before the Tribunal. On examination of witnesses, learned counsel referred to paragraph 41 (3) of the Electoral Act 2010. He submitted that the authority of Buhari Vs INEC (supra) relied upon by learned counsel for the appellant is not helpful to his case. He submitted that in Arise Vs Adetunbi (supra) the petitioner clearly pleaded that “all the polling booths in the 56 wards of Ekiti North Senatorial District” were affected by the acts of non-compliance and that the order of the Tribunal in that case was that the results of the counting should be written down ward by ward, unit by unit, and signed by the three sets of parties.
On the alleged admission by DW30 that invalid votes were counted, learned counsel observed that the witness did not state which party invalid votes were counted for. He submitted the reasonable inference to be drawn from the evidence is that invalid votes were counted for both parties. He noted that the quantum of votes counted for each party was not stated particularly as the witnesses admitted that they were present for only three days out of the five days it took to complete the recounting. Learned counsel submitted that assuming, without conceding, that the said admission would enure for the benefit of the appellant, the appellant’s case was still afflicted by the conflicting evidence contained in Exhibits P68, P69, P74 and P75 and P76. He noted that all the reports cover both pleaded and unpleaded facts in the petition, particularly with regard to the further and better particulars filed. Learned counsel submitted that none of the exhibits tendered by the appellant tally with each other. He contended further that unlike in Oshiomole’s case (supra) they were not tied to any aspect of the appellant’s case. He referred to: Iniama Vs Akpabio (2008) 17 NWLR (1116) 225 @ 299 per Galadima, JCA.
Learned counsel submitted that the appellant has not shown the findings of the Tribunal to be perverse to warrant the interference of this court. It was submitted that the appellant failed to discharge the onus of rebutting the presumption of regularity of Exhibits EC8A series by credible evidence. Learned counsel submitted that the counting of invalid votes and rejected votes in favour of a candidate borders on fraud and must be proved beyond reasonable doubt. He referred to: Buhari Vs Obasanjo (2005) 13 NWLR (941) 1 @ 193. It was observed that in his brief of argument learned counsel for the appellant, in urging this court to cancel the invalid votes credited to the 1st respondent, embarked on a tabulation of the said unlawful/invalid votes as shown in Exhibits P75 and P76. He however argued that the said tabulation encapsulates all the wards in Obokun/Oriade Federal Constituency. He submitted that the court would only be guided by the pleadings and the units challenged thereon in terms of paragraph 13 of the petition and paragraph 5 of the further and better particulars. Learned counsel urged the court to discountenance the scores tabulated by the appellant and affirm the return of the 1st respondent.
In reply to the above submissions, learned senior counsel submitted that the non-filing of the result of the recounting was not raised before the Tribunal and could not be raised before this court for the first time. He submitted that the tendering of the result as exhibits had had brought the result directly to the attention of the Tribunal
Section 91 (4) of the Evidence Act provides thus:
“91. (4) For the purpose of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part thereof was written, made or produced by him with his own hand, or was signed or initialled by him or otherwise recognized by him in writing as one for the accuracy of which he is responsible.”
The order of the Tribunal for the recounting of ballot papers made on 6/7/2011 reads, inter alia, as follows:
‘The petitioner is allowed to recount the ballot papers. Such recount shall be done in the presence of not more than two representatives of each party. …”
DW29 and DW30 admitted that they appended their signatures to Exhibits P75 and P76 and that they participated in the recounting and sorting although they were not present on all the days that the recounting took place. I am of the view that to that extent they participated in the making of the two exhibits by participating in the recounting and could be cross-examined on them. However, the issue in contention here is the probative value to be attached to the said exhibits having regard to the stage at which they were tendered and the fact that while the Appellant’s representatives were present throughout the entire exercise, DW29 and DW30 were present for only three out of the five days. With regard to Exhibit P75, it was tendered through DW29 during cross-examination by learned counsel for the appellant after learned counsel for the 1st and 2nd respondents had concluded their cross-examination of the witness. I am inclined to agree with the lower Tribunal that the 1st and 2nd respondents were denied the opportunity of cross-examining the witness on Exhibit P75. With regard to Exhibit P76 the Tribunal observed as follows at page 1155 of the record:
‘Let us put the scenario under which Exhibit P76 was tendered in perspective. The witness had testified as PW30 for the petitioner on subpoena when she identified her statement on oath in Exhibit R2. Her statement on oath affirmed the validity of the election and said the election was free and fair. She was still the witness of the 3rd – 7th respondents as DW30. Her statement on oath as DW30, which she earlier identified as R2 was reaffirmed. It was when, as DW30 and after adopting her statement (Exhibit R2), and while being cross-examined by the petitioner’s counsel that Exhibit P76 was tendered through her, not for purpose of impeaching her credibility as provided by Section 199 of the Evidence Act, but as confirmation of the Exhibit. Her statement on oath did not say anything on Exhibit P76, She did not explain the exhibit.
The petitioner had sought leave of the tribunal to recount ballot papers in the tribunal while other parties were to serve as observers. Leave was granted and his representatives did the recounting. The order of the tribunal was specific on the petitioner who sought for the order to recount. All others were observers including DW30. By the time Exhibit P76 was tendered through cross-examination the witness had been cross-examined by the 1st and 2nd respondents and they had no opportunity of cross-examining her on Exhibit P76, tendered through her by the petitioner’s counsel and without a statement on oath founding the exhibit. The same approach was applied to DW29 with respect to Exhibit P75.”
It would appear that tendering the exhibits through the witnesses during cross-examination rather than filing the reports, as ordered by the Tribunal was a ploy to overreach the respondents. Where it is intended to discredit a witness by his previous statement in writing, his attention must be called to those parts of the document that are to be used to contradict him. See Section 199 of the Evidence Act. In the instant case Exhibits P75 and P76 were merely tendered before the Tribunal without any aspect of the documents being put to the witness and without tying them to the pleadings relating to the specific units complained of. The witnesses did not proffer any evidence in respect of the exhibits. As observed earlier in the judgment, the appellant in this case was not entitled to lead evidence outside his pleadings, particularly paragraph 5 of the further and better particulars. Exhibits P75 and P76 relate to both pleaded and unpleaded facts. They were at large. The appellant had a duty to tie the exhibits to the specific aspects of his case.
It was argued by learned senior counsel for the appellant that the appellant was no longer required to demonstrate Exhibits P75 and P76 against the ballot papers used in the election because the Tribunal had ordered the tendering of the exhibits in bulk to save time. With due respect to the learned senior counsel, this view is misconceived. The fact that documents were tendered in bulk would not relieve the appellant of proving his case by tying the documents to specific aspects of his case once they had been admitted in evidence. As noted by the Tribunal, no evidence was led to show how the figures in the two exhibits were arrived at. A party relying on documentary evidence to prove his case has a duty to specifically relate each document to the part of his case in respect of which the document is being tendered. See: Adegbuyi Vs Mustapha (2010) All FWLR (532) 1753 @ 1793 C – D; Iniama v. Akpabio (2008) 17 NWLR (1116) 225 @ 299 – 300 F – B; Terab Vs Lawan (1992) 3 NWLR (231) 569. It was not for the Tribunal to carry out its own analysis of Exhibits P75 and P76 and come out with a result, particularly having regard to the fact that the exhibits contain figures in relation to units and wards not covered by the pleadings. In the case of INEC Vs Oshiomole (supra) relied upon by learned senior counsel for the appellant, the INEC official through whom electoral materials were tendered fully demonstrated before the Tribunal the irregularities therein and how they led to invalid votes.
It has also been argued that PW29 and PW30 admitted under cross-examination that invalid votes were counted for the parties and therefore made admissions against interest. The burden of proving not only that there was non-compliance with the provisions of the Electoral Act but also that the non-compliance substantially affected the results of the election is on the person who asserts that fact. He must succeed on the strength of his own case and not on the weakness of the defence. Thus, the mere fact that there were irregularities or failure to strictly adhere to the provisions of the Act would not be sufficient on its own to void an election or result in a declaration in favour of the appellant. Even where the court considers that the proven irregularities constitute non-compliance, the court must be satisfied that the non-compliance substantially affected the result of the election. See: Buhari v. Obasanjo (2005) 13 NWLR (941) 1 @ 191 – 192 F – B; Buhari v. INEC (2008) 19 NWLR (1120) 442 C – G.
The burden of first proving the non-compliance and its effect on the outcome of the election was on the appellant. The burden would only shift to the respondent to rebut the evidence when the appellant has established a prima facie case. See Buhari Vs Obasanjo (supra) at 356 – 357 B – E; Buhari v. Obasanjo (supra). DW29 and DW30 had earlier testified on behalf of the appellant as PW29 and PW30. They maintained that the elections were free and fair. Their evidence dealt a devastating blow to the appellant, as it was completely at variance with his pleadings. As observed by the lower Tribunal in the course of its judgment relying on the case of: Lasun v. Awoyemi in CA/I/EPT/NA/03/2010 delivered on 23/2/2011, the appellant invariably shot himself in the foot by calling these witnesses to testify on his behalf rather than to tender electoral materials only. Thus the admission that invalid votes were counted for the parties without more is not sufficient to lead to the conclusion that there was substantial non-compliance with the provisions of the Act.
It is also noteworthy that in an attempt to prove his case the appellant sought to rely on three different reports, which were at variance with one another. In this regard, the Tribunal held at page 1168 of the record:
“In the face of three different results complaining or challenging the INEC results, which one is now the accurate score that impugns the authenticity of INEC results? NONE. This is because the tribunal cannot pick and choose. A party must be consistent in presenting and proving his case and in this case with definite figures. Here it appears the petitioner is out for a game of speculation. First it is 14 allegations. Later dropping 13 and hanging on to one. Then it is the issue of three different figures from the petitioner and his counsel choosing the last and urging the tribunal to pick that over the earlier two. He produced Exhibits P68, P69 and P74 through PW31, Olaoba Efuntayo and PW32, Dr. Ebenezer Ajayi. When it did not stand cross-examination, h€ went for recount, which he did through his representatives and produced Exhibits P75 and P76, which he now urges the tribunal to pick. The Tribunal cannot choose any of the three different figures. ”
I am of the humble view that this finding of the Tribunal cannot be faulted. From the facts and circumstances of the case there was no basis for the Tribunal to choose one set of exhibits over the other. The contradictions in his case meant that he had failed to rebut the presumption of regularity in favour of the results of the election as declared by INEC. This issue is accordingly resolved against the appellant.
In conclusion, this appeal lacks merit and is hereby dismissed.
Cross Appeals
The 1st cross appeal is filed by the 1st respondent/cross appellant against the ruling of the National Assembly/Governorship and Legislative Houses Election Tribunal sitting at Osogbo, Osun State delivered on 1/6/2011 refusing to strike out certain paragraphs of the cross respondent’s pleading for being vague and rather permitting him to file further and better particulars in respect thereof. Being dissatisfied with the ruling the 1s cross appellant filed a notice of appeal dated 25/8/2011 containing three grounds of appeal.
The 2nd cross appeal is filed by the 2d respondent/cross appellant against two rulings of the aforesaid Tribunal delivered on 6/7/2011 and 19/7/2011 respectively permitting the appellant to recount and sort ballot papers after the closure of the pre-hearing session and the closure of the 2nd respondent’s case for failure to call its witness. The 2nd cross appellant was dissatisfied with the two rulings and filed a notice of appeal dated 25/8/2011 containing two grounds of appeal.
The parties duly filed and exchanged briefs of argument in respect of the cross appeals. They have been referred to in the main judgment. The cross appeals shall be considered together.
The 1st respondent formulated a single issue for the determination of his cross-appeal thus:
“Whether or not the Tribunal has invoked rightly its discretionary powers when it ordered the appellant to supply further and better particulars of the petition after the statutory period when amendment is allowed in election petition thereby assuming jurisdiction and permitting the giving of evidence on facts that are not clearly pleaded by the appellant. Grounds 1, 2 and 3 of the Notice of Cross-Appeal.”
The 2nd respondent also formulated a single issue for the resolution of its cross-appeal as follows:
“Whether having regard to the circumstances of this case, the Tribunal rightly exercised its discretionary powers when it granted the petitioner’s application for sorting and recounting of ballot papers used at the election in the nine wards in Obokun/Oriade Federal Constituency?”
The 2nd respondent/cross-appellant did not tie his issue to the grounds of appeal. It is however clear that ground 1, which complains of the closure of the 2nd respondent’s case is not covered by the sole issue formulated. It is accordingly deemed abandoned.
The 1st and 2nd respondents/cross-appellants shall be referred to as the 1st and 2nd cross-appellants simpliciter while the appellant/cross-respondent shall be referred to as the cross-respondent.
The cross-respondent raised preliminary objections to both cross-appeals. With regard to the 1st cross appeal the grounds of the objection are that the grounds of appeal do not relate to the final judgment of the Tribunal delivered on 12th August 2011; that the grounds of appeal relate to an interlocutory ruling delivered on 2/6/2011; that an interlocutory appeal cannot form the basis of a cross-appeal against the final judgment of the Tribunal and that the reliefs sought in the notice of cross-appeal are academic and moot. With regard to the 2nd cross-appeal he contended, in addition to the first three grounds against the 1st cross-appeal, that there was no extension of time to file an interlocutory appeal; that appeals against decisions of the Tribunal must be heard and disposed of within 60 days of delivery; that the relief sought is incompetent and that ground 1 of the notice of appeal has been abandoned.
With regard to the 1st cross-appeal, Learned Senior Counsel for the cross respondent, ADEBAYO ADENIPEKUN, SAN, referred to the case of Bob-Manuel Briggs Vs Briggs (2003) 5 NWLR (813) 323 in support of the contention that a cross appeal must relate to the final decision of the court. He argued that the cross appellant ought to have filed his notice of appeal within 14 days of the decision. He argued that he would then have been on sound footing to ask that the appeal be determined along with any ground of appeal against the final judgment. He also argued that the relief sought is academic because the cross appellant is seeking the striking out of the petition for failure to disclose a reasonable cause of action whereas the petition has been dismissed. He submitted that a cross appeal is quite different from a respondent’s notice. He also argued that relief 2, which seeks affirmation of the judgment of the Tribunal, is vague for failure to specify the judgment sought to be affirmed. He urged the court to strike out the cross appeal. He made similar submissions with regard to the 2nd cross appeal. In addition he submitted that there was no application for extension of time to file the notice of appeal out of time. He referred to paragraph 6 of the Election Tribunal and Court Practice Directions 2011 (hereinafter referred to as the Practice Directions), which requires an appellant to file his notice of appeal within 21 days from the date of the decision appealed against. He submitted that in the absence of leave of court or an order extending time, the 2nd cross appeal is incompetent and this court lacks jurisdiction to entertain it. The learned Senior Counsel also observed that the time within which to hear and determine the cross appeal has lapsed by virtue of Section 285 (7) of the 1999 Constitution (as amended), which provides that an appeal must be heard and determined within 60 days of the delivery of the decision. He referred to the relief sought by the 2nd cross appellant and submitted that rather than seek an order setting aside the rulings complained of, the cross appellant is inviting the Court to affirm another judgment. He argued that there is no nexus between the rulings appealed against, the grounds of appeal and the relief sought in the notice of cross appeal. He submitted that the relief must relate to the ruling/judgment appealed against. Relying on the case of Fayemi Vs Oni (2010) 7 NWLR (1222) 326 @ 406 he submitted that where a relief sought by an appellant or cross appellant is incompetent, the entire notice of appeal is liable to be struck out. He also referred to: NCC Vs MTN (Nig.) Ltd. (2000) 7 NWLR (1085) 229. He also urged the court to strike out ground 1 of the 2nd cross appeal, as it is not covered by the sole issue formulated by the 2nd cross appellant.
In reply to the submissions of learned senior counsel for the cross respondent, learned counsel for the 1st cross appellant referred to Order 4 Rule 5 of the Court of Appeal Rules 2011 and the case of Iweka Vs SCOA Nig. Ltd. (2000) 7 NWLR (664) 325 @ 348 wherein the Supreme Court interpreted Order 3 Rule 22 of the Court of Appeal Rules 2002, which he submitted are similar to the provisions of Order 4 Rule 5 to the effect that a party may raise a complaint against an interlocutory order made by the trial court even though he did not appeal against the order when it was made. He submitted that the decision in Iweka’s case (supra) was followed by this Court in F.B.N. Plc, Vs Tsokwa (2004) 5 NWLR (866) 271 @ 297 – 298 H – G. Learned counsel argued that election petitions are sui generis and having regard to their time sensitive nature, litigants are enjoined to include grievances against interlocutory decisions in the main appeal. He observed that Section 246 of the 1999 Constitution (as amended) does not make provision for interlocutory appeals. He submitted further that there is no constitutional provision for interlocutory appeals to lie to the court of appeal with leave from decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals at the interlocutory stage. He referred to an unreported decision of the Jos Division of this Court in: Gidado & Anor. Vs Jackson-Bent & 12 Ors. in CA/J/EPT/SN/237/2007. Learned counsel urged the Court to hold that leave is not required to file an appeal against an interlocutory decision.
In the 2nd cross appellant’s reply it is submitted that the cross appeal is an appeal in its own right and does not depend on the main appeal for its validity. Learned counsel submitted that a dismissal of the main appeal will not affect the cross appeal. He also submitted that a cross appeal does not need to relate to the substantive appeal. He relied on: Olowu Vs Abolore (1993) 5 NWLR (2931 255 @ 274 C; Aondoakaa Vs Ajo (1999) 5 NWLR (602) 206 @ 226; Okobia Vs Anya (1998) 6 NWLR (554) 348. In oral adumbration of the brief at the hearing of the appeal, Chief Akin Olujinmi, SAN cited the additional authority of Umana Vs Attah (2004) 7 NWLR (871) 63 @ 85 – 86. In the reply brief it is submitted that in so far as the interlocutory appeal is taken alongside the appeal against the final judgment it is to be reckoned with the time for disposal of the substantive appeal. It is further contended that Section 285 (5) (a), (b), and (c) of the 1999 Constitution as amended read together show that the period of 60 days referred to therein relates to the time the appeal against the final judgment in an election petition dealing with whether or not a candidate returned was validly elected or not should be disposed of. It is argued that it is not a prescription as to when an interlocutory appeal in the petition should be decided. He referred to ANPP Vs REC Akwa Ibom (2008) 8 NWLR (1090) 453 @ 540 – 541, which in learned counsel’s view provides clear guidance on the meaning to be ascribed to Section 285 (c) of the Constitution.
On the issue of the relief sought, learned Senior Counsel submitted that the decisions in Fayemi Vs Oni (2010) 17 NWLR (1222) 325 and NCC VS MTN (supra) relied on by the cross respondent did not advert to the Supreme Court decision in Katto Vs C.B.N. (1991) 9 NWLR (214) 126 @ 147 H – 148 A where it was held that failure to specify the exact nature of a relief sought would not preclude a court from granting the appellant the relief it thinks he is entitled to in the event that his appeal succeeds. He submitted that failure to include a prayer for the setting aside of the ruling delivered on 6th July 2011 complained of in the cross appeal is not sufficient to prevent this court from granting the relief if the cross appeal succeeds. He urged the court to dismiss the preliminary objection as lacking in merit.
Jurisdiction to entertain appeals in respect of election petitions is conferred by Section 246(1) (b)(i), (ii) & (iii) of the 1999 Constitution (as amended). It provides that appeals shall lie as of right from (b) decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunal on any question as to whether (i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution.
Unlike the provisions relating to ordinary civil and criminal proceedings where Section 241 provides for appeals as of rights and Section 242 of the Constitution provides for appeals with leave, there is no such corollary to section 246(1Xb). This court per Ibiyeye, JCA in Orji Vs. Ugochuhwu (2009) 14 NWLR (1151) 207 at 269 – 270 H – D and 271 – 272 H examined Section 246 (1) (b) and concluded that the provision stipulates the only right of appeal cognizable from the decision of an election tribunal to the Court of Appeal is the final decision. His Lordship held that the stipulation rules out any other type of decision such as interlocutory decision.
The court held further that the purport of Section 246(i) (b)(i), (ii) and (iii) of the 1999 Constitution as amended by the Constitution of the Federal Republic of Nigeria 2010 (2nd Alteration) Act is that an appeal can only arise as of right from the decision of an election tribunal which finally disposes of the case without allowing for piecemeal provision in the right of appeal. See also Gidado & Anor. Vs. Jackson-Bent & 12 Ors. – CA/J/EPT/SN/237/2002 (Supra).
This position accords with the time sensitive nature of an election petition. This is particularly so having regard to the fact that the time limit for the hearing and disposal of election petitions have been elevated to the status of constitutional provisions by Section 285(7) of the 1999 Constitution (as amended) which provides that an appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of delivery of the judgment of the tribunal or Court of Appeal.
The practice in election petition proceedings has been to take up an appeal against an interlocutory decision along with an appeal against the final decision.
The issue was raised as to whether a ground of appeal from a final judgment in an election petition incorporating a complaint against an interlocutory decision is competent.
In the case of Iweka Vs. SCOA Nig. Ltd (2000) 1 – 3 SCNJ 71 at 91 recourse was had to the provisions of Order 3 Rule 22 of the Court of Appeal Rules 1981 which provided:
“22 No. interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the court from giving such decision upon the appeal as may deem just.”
The Supreme Court held per Ogundare, JSC at page 91 lines 10 – 15 (supra) thus:
”Under this rule a party who is dissatisfied with a judgment and who appeals against it may raise complaints against any interlocutory order made by the trial court even though he has not appealed against that interlocutory order when it was made.”
This decision was followed in F.B.N. Plc Vs, Tsokwa (2004) 5 NWLR (866) 271 @ 279 – 298 H – G; Iloabuchi Vs. Ebigbo (2000) 4 SCNJ 46 @ 65; Umana Vs. Attah (2004 7 NWLR (871) 6b at 85 – 86 G – G. See also Okobia Vs. Ajanya (1998) 6 NWLR (554) 348 @ 364 – 365, Aondoakaa Vs. Ajo (1999) 5 NWLR (602) 206.
Order 3 Rule 22 of the Court of Appeal Rules 1981 is in para material with order 4 Rule 5 of the court of Appeal Rules 2011. The time constraints in Section 285(7) of the 1999 Constitution (as amended) makes it even more imperative that an appeal against an interlocutory decision be taken along with the appeal against the final decision.
However, in the instant case the cross-appeals have not been incorporated in an appeal against the final decision of the court. Both notices of appeal categorically state in their paragraph 2 that the cross appeals are in respect of the rulings delivered on 1st day of June 2011 for the 1st Cross-Appellant and 6h day of July 2011 and 19th day of July 2011 respectively for the 2nd Cross-Appellant.
As submitted by learned Senior Counsel for the 2nd Cross-Appellant, a cross appeal is an appeal in its own right and has a life of its own distinct from the substantive appeal. Thus where there is no cross appeal against the final judgment, the Cross-Appellant would be required to comply with paragraph 6 of the Practice Directions. In the instant case the cross appeals filed on 25th August 2011 in respect of decisions given on 1/6/2011, 6/7/2011 and 19/7/2011 were filed out of time and are therefore incompetent.
The case of A.N.P.P. Vs. REC Akwa Ibom State (2008) 8 NWLR (1090) 453 relied upon by learned senior counsel for the 2nd Respondent is not applicable to the facts of this case. The issue in contention in that case was the time within which to appeal against a decision of a lower Tribunal dismissing a petition in limine, having regard to the provisions of paragraph 1 of the Practice Directions no. 2 of 2007. It was held in that case that since the Practice Directions stated in its preamble that they were made “for the purpose of appeals coming to the Court of Appeal under Section 149 of the Electoral Act 2006”, the requirement that a notice of appeal should be filed within 21 days from the date of the decision complained of would not apply since the decision was not one in which the tribunal had determined that the candidate returned as elected was not validly elected.
Furthermore, a cross-appeal suggests that a respondent is dissatisfied with the judgment of the lower court and seeks to have it reversed.
A respondent’s notice on the other hand is filed by a respondent who wishes to defend the judgment but seeks to have it affirmed on grounds other than those relied upon in the judgment. See Bob-Manuel Vs. Briggs (2003) 5 NWLR (813) 323 at 338 – 339 H – E.
In the two cross-appeals, both cross appellants seek an order affirming the judgment of the lower Tribunal and dismissing the appeal. By these reliefs, the Cross-Appellants are seeking to defend the judgment of the lower Tribunal. They have no quarrel with the final decision and want this court to uphold it.
A cross-appeal is not the proper process to be filed in the circumstances. We are therefore of the view and do hold that the 1st Cross-Appellant’s notice of cross-appeal dated 25/8/2011 but filed on 26/8/2011and the 2nd Cross-Appellant’s notice of cross-appeal also dated 25/8/2011 and filed on 26/8/2011 are incompetent. They are accordingly struck out.
In conclusion the main appeal is dismissed. The judgment of the National Assembly/Governorship and Legislative Houses Election Tribunal sitting at Osogbo, Osun State in petition no. EPT/NA/OS/01/2011 delivered on 12th August 2011 is hereby affirmed. The two cross appeals are hereby struck out. The parties shall bear their respective costs in this appeal.
CHINWE E. IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, K. M. O. Kekere-Ekun JCA. I agree with the reasoning contained therein and the conclusions arrived thereat. The courts deal with concrete evidence presented at the trial as required by law. It does not take much to identify an election that is marred by malpractices. The facts of the malpractices will be identifiable from the procedure adopted during the election and ought easily to be picked out by the agents of the contestants at the polling units or thereafter if the malpractice occurred elsewhere such as the collating centre. There will be no need to go fishing for facts on which to base the petition. In the appeal before us, the appellant had his agents in all the polling units. Except for one, all signed the results without any complaint. Even the one who claimed he was forced to sign the result was unable to tell the tribunal who forced him to sign. The crux of the appellant’s case was that invalid votes were counted for the 1st respondent. If the appellant was sure of his facts and was not merely fishing, his pleadings would have contained averments as to the exact polling units where invalid votes were counted for the 1st respondent. That is the reason why contestants have agents at the polling units. Most of the appellant’s agents allegedly sent reports to the appellant soon after the election. He ought therefore to have had the necessary particulars to enable him provide same in his petition. On the contrary, the petition was devoid of such particulars and even after the tribunal ordered for further and better particulars, the order was not fully complied with. Even where complied with, evidence was led in respect of units not mentioned in the further particulars. The outcome of the recount of the ballot papers as contained in Exhibits P75 and P76 which was not adequately linked to the averments in the petition was a mere fishing expedition and was properly discountenanced by the Tribunal. I agree with the lead judgment that the main appeal lacks merit and that the cross appeals are incompetent and should be struck out. I also dismiss the main appeal and strike out the two cross appeals. I abide by the order as to costs.
MOORE A. A. ADUMEIN, J.C.A.: I read in advance the lead judgment just delivered by my learned brother, KEKERE – EKUN (JCA). I agree with His Lordship’s reasoning and conclusion.
I abide with all the consequential orders in the lead judgment.
Appearances
Adebayo Adenipekun, SAN with A. A. Abimbola Esq., Tewo Lamuye Esq., Adesoji Olaoba Efuntayo Esq., Oluwole Kupoluyi Esq., Chuks Maduka Esq., Kanmi Ajibola Esq., Habeeb Salawu Esq., Akeem Olaniyan Esq., and Folabi Olasunbo Esq.For Appellant
AND
T. S. Adegboyega with Miss S.O. Morakinyo
Chief Akin Olujinmi, San with Ibrahim Lawal Esq. and Miss V. A. Adeyanju
B. I. WuyepFor Respondent
