CHIEF ONWUKA KALU (a.k.a.) OKPUZU v. DR. KALU ORJI JOHNSON UZOR & ORS.(2005)

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CHIEF ONWUKA KALU (a.k.a.) OKPUZU v. DR. KALU ORJI JOHNSON UZOR & ORS.

(2005)LCN/1834(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 22nd day of November, 2005

CA/PH/EPT/317/05

 

JUSTICES

RAPHAEL OLUFEMI ROWLAND   Justice of The Court of Appeal of Nigeria

CHRISTOPHER MITCHELL CHUKWUMA-ENEH   Justice of The Court of Appeal of Nigeria

ISTIFANUS THOMAS   Justice of The Court of Appeal of Nigeria

MOHAMMED LAWAL GARBA   Justice of The Court of Appeal of Nigeria

OLABODE RHODES VIVOUR   Justice of The Court of Appeal of Nigeria

Between

 

CHIEF ONWUKA KALU (a.k.a.) OKPUZU Appellant(s)

AND

  1. KALU ORJI JOHNSON UZOR & 5 ORS. Respondent(s)

ROWLAND, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of The Governorship and Legislative Houses Election Tribunal dated 16th August, 2005. The appellant was the petitioner in an Election Petition filed in the said Governorship and Legislative Houses Tribunal holden at Umuahia, Abia State. The appellant and the 1st respondent herein were contestants at the gubernatorial elections, concerning the Governorship of Abia State, held on the 19th of April, 2003.
The 1st respondent was returned as duly elected by the Independent National Electoral Commission (INEC) and being dissatisfied with the result, the appellant filed the said petition challenging the 1st respondent’s return. The petition is at pages 1 – 3 of the printed record. The respondents satisfied all the preliminaries including filing their respective memoranda of appearance. The 1st respondent filed a reply to the petition which incorporated a notice of preliminary objection. In addition, the 1st respondent filed a motion on notice indicating the grounds of objection to the competence of the petition. The 2nd – 6th respondents, similarly, filed a separate notice of preliminary objection. Both objections were heard by the Tribunal and a ruling was delivered on June 13, 2005 by which the petition was struck out.
Dissatisfied with the ruling of the tribunal, the appellant appealed to the Court of Appeal. The Court of Appeal ordered that the petition be remitted to a fresh panel for hearing on the merit of the petition. Against that order, the 1st respondent filed an appeal at the Supreme Court which said appeal was struck out by the apex court for want of jurisdiction. The petition was thereafter heard by a new panel. At the hearing on merit, the petitioner called twenty-seven witnesses and also testified in person. The 1st respondent did not testify but called eight witnesses. The 2nd to 6th respondents elected not to call any witness and after hearing the addresses of all counsel to the parties, the tribunal delivered a well considered judgment and dismissed the petition as unmeritorious. It is against that judgment that the appellant has again appealed to this court.
The appellant has filed twenty-seven grounds of appeal (see pages 531- 554 of the record). There is a cross-appeal by the 2nd – 6th respondents (see pages 555 – 558) of the record. The 1st respondent has however challenged the jurisdiction of this court to hear the appeal by reason of a notice of preliminary objection dated the 20th September, 2005.From the twenty-seven grounds of appeal, the appellant raised thirteen issues for determination. They read:
Issue 1
3.01 “Whether the learned tribunal approached the pleadings by the parties in the suit correctly, and if not, whether that did not affect its decision in the case.
(This issue is distilled from grounds 1, 22 & 26)
Issue 2
3.02 Whether the tribunal was right in holding that the standard of proof required to establish the petition or grounds of the petition was not satisfied in this case?
(This issue is distilled from ground 4 & 9).
Issue 3
3.03 Whether the allegation of crime was directly issue in the petition so that it will require proof of the petition beyond reasonable doubt. (This issue is distilled from ground 10).
Issue 4
3.04 If the answer to issue No.3 above is in the affirmative, whether the said allegation, was fully and effective abandoned by the appellant so that the petition may now be determined on the balance of probabilities, the criminal aspect having been severed from civil aspect.
This issue is distilled from grounds 11. 12 & 20).
Issue 5
3.05 Whether the Election Tribunal was right when it failed to strike out the 2nd – 6th respondents’ reply, when no evidence was called in support of their reply.
(This issue is distilled from ground 8).
Issue 6
3.06 Whether the provisions of s. 149(d) of the Evidence Act ought to apply against the petitioner/appellant.
(This issue is distilled from ground 25 & 27).
Issue 7
3.07 Whether the Election Tribunal was right in failing to apply the necessary presumption of law under section 149 (d) of the Evidence Act against the respondents when they had the carbonated and originals of the polling units result but refused to produce them.
(This issue is distilled from ground 17).
Issue 8
3.08 Whether the documents marked ID 1-ID 1-1395 were admissible as primary evidence?
(This issue is distilled from grounds 2, 3, 6 & 21).
3.09 Whether the Election Tribunal was right in law by excluding the petitioner/appellant’s admissible oral and documentary evidence. (This issue is distilled from grounds 7 & 19).
Issue 10
3.10 Whether the lower tribunal was not wrong in rejecting and expunging the appellant’s evidence as to the total number of votes scored by him and the 1st respondent at the election as well as the number of votes scored by each, and their respective percentages in the various local governments of Abia State.
(This issue is distilled from grounds 5, 15 & 23).
Issue 11
3.11 Whether the appellant pleaded two sets of results in the petition.
(This issue is distilled from ground 24)
Issue 12
3.12 Whether, by the pleaded facts and evidence, (oral and documentary), the appellant did not prove his case.
(This issue is distilled from grounds 14 & 14). )
Issue 13
3.13 Whether the petitioner has successfully established the facts and grounds on which he relies for his prayer.”
The first respondent formulated one issue for the determination of this appeal.
It is as follows:
“Whether the tribunal below was right when it held that the appellant (as petitioner) has failed to prove the petition and whether the order dismissing the petition was justified having regard to the circumstances.”
The second to sixth respondents on their part formulated two issues for the determination of this appeal. They read thus:
“1. Whether the tribunal was right in holding that the allegations of criminality made by the appellant is at the root of his petition and that the doctrine of severance of pleadings did not apply in the circumstances.
2. Whether the tribunal was right in holding that the appellant did not prove that he won majority of the lawful votes cast at the election and had 25% of the votes cast in 2/3 of the 17 Local Government Areas in Abia State.
I hasten to point out that at the hearing of this appeal on 16th November, 2005, Mr. Livy Uzoukwu for the 2nd – 6th respondents told us that he would like to withdraw their notice of cross-appeal at pages 555 to 558 of the record.
The oral application was not opposed by the other counsel in this appeal. The notice of the cross-appeal of the 2nd – 6th respondents was accordingly struck out by us. In other words there is no longer any cross-appeal in this matter. It must be mentioned also that the 2nd – 6th respondents did not file a cross-appellant brief. I need say no more about that.
Before I consider the issues formulated by the parties, I consider it necessary at this point in time to consider the 1st respondent’s notice of preliminary objection and the argument thereon.
The 1st respondent’s objection against the notice of appeal is to the effect that… “each of the grounds of appeal contained therein is either a ground anchored on facts or on mixed law and facts, or is replete with argument and narratives and no prior leave either of this court or of the court below having been sought and obtained.” Essentially therefore, the 1st respondent’s complaint against the grounds of appeal contained in the appellant’s notice of appeal is that each of the said grounds of appeal is incompetent either because the grounds are on facts or concern mixed law and facts or is replete with arguments and narratives or contain a conclusion.
The appellant’s reply brief is not a reply brief in consonance with the rules of this court. But be that as it may, the so called reply brief to my mind is a repetition of the appellant’s brief and is loaded with other extraneous matters that should not be in a reply brief. Having said that, I make bold to say that the purported reply brief is of no moment to this appeal and it should therefore be discountenanced. In any case, if the appellant’s grounds of appeal are competent, I will so hold even without a reply brief.

There are litanies of cases dealing with how to test the efficacy of grounds of appeal. To mention just a few, see: Ade Coker v. United Bank for Africa Plc. (1997) 2 NWLR. (Pt.490) 641: Excel Plastic Industry  Ltd. v. First Bank of Nigeria Plc. (2005) 11 NWLR (Pt.935) 59; Nwabueze v. Nwora (2005) 8 NWLR (Pt.926) 1; (2005) All FWLR. (Pt.255) 1000; Engineer Nura Khalil v. Umaru Musa Yar’Adua & Ors. (2003) 16 NWLR (Pt.847) 446. From the above authorities, I am of the strong view that a ground of appeal should contain precise, clear, unequivocal and direct statement of the decision being attacked. It must in other words, give the exact particulars of the mistake, error or misdirection alleged and a ground of appeal without particulars, save the general or omnibus ground, is defective and incompetent. A ground of appeal must not be argumentative or narrative in compliance with Order 3 rule 2 of the Court of Appeal Rules, 2002. If it is, it ceases to be a ground of appeal but an argument or a narration which rightful place in a proceeding of a court or tribunal is at the hearing of the appeal. In no way should the particulars be independent complaints from the appeal itself but should be auxiliary to it. Any ground of appeal which is argumentative, unnecessarily lengthy, elaborate, vague and which contain detailed reasons may be struck out.

In the instant case, all the grounds of appeal and their particulars are unwieldy, argumentative and incomprehensible. The particulars supplied in support of the grounds are in direct conflict with Order 3, rule 2 of the Court of Appeal Rules, 2002. See Oge v. Ede (1995) 3 NWLR (Pt.385) 564; Agbaje v. Younan (1974) 3 WACA66; C.B.N v. Okojie (2002) 8 NWLR (Pt.768) 48.
It seems to me in the final result, that the 1st respondent has demonstrated to non-viability of each of the 27 grounds of appeal contained in the notice of appeal. In my view, each, and accordingly, all the grounds of appeal are incompetent and there being no grounds of appeal, the appeal in any normal circumstance ought to be struck out.
However, this is not and should not be the end of the matter. From the nature of the case in hand and assuming that I am wrong in the views which I hold in respect of the grounds of appeal, that is, their competence, I will still in the interest of justice and considering the fact that this court is the final court in this matter consider the appeal on its merit.
However, I take significant cognizance of the fact that the appellant formulated thirteen issues for determination. I take the view that the appellant’s approach, to say the least, is inelegant, clumsy, dull and prolix and is calculated to cover-up the real issues in controversy between the parties to this appeal. It seems to me that all the issues formulated in the appellant’s brief can be encompassed in the two issues formulated in the brief of the 2nd – 6th respondents.
The said two issues have direct bearing to the bone of contention in this appeal and should determine the appeal one way or the other. The two issues have been reproduced herein before and I do not consider it necessary to reproduce them here again. Having said that, I should now treat this appeal in the light of the two issues formulated in the brief of the 2nd – 6th respondents.
Issue one is the same one and the same thing as issue No.3 in the appellant’s brief. It was submitted for the appellant that the sole ground on which the matter was heard at the lower tribunal will be found in the first paragraph 4(i) of the petition. It was contended that a look at that paragraph will show that it did not allege any crime against any of the respondents. It was submitted further that a further look at paragraph 4(iv), (v) and (vii) will show that an attempt was made by the petitioner to raise issue of alteration at ward, local government and state levels in favour of the 1st respondent by the 3rd, 5th and 6th respondents. It was argued that these allegations are at best feeble. It was contended that the issue of criminality did not actually arise in the proceedings to make the petition one that will require proof beyond reasonable doubt.
For the 1st respondent it was contended that allegation of crime was directly in issue in the petition so that it will require proof of the petition beyond reasonable doubt.
Learned counsel for the 2nd to 6th respondents on their first issue for determination said that it is instructive to note, that the appellant had set out the result as declared wherein the 1st respondent scored 540,983 votes and the appellant 51,496. It is the contention of the respondents that they all admitted the appellant’s pleadings in that regard.
The 2nd to 6th respondents stated in their brief that emerging from the pleadings of the appellant are the following clear allegations:
(1) The votes of 540,983 credited to the 1st respondent were unlawful or invalid.
(2) The votes of 540,983 credited to the 1st respondent arose as a result of inflation and alterations of votes which were done on forms used for the collation of results.
(3) The alleged inflation and alteration were carried out at wards, local governments and state collating centres and the perpetrators were the 3rd to 6th respondents.
(4) The full particulars of the alteration shall be given after interrogatories, discoveries and inspection of electoral documents.
(5) By deducting the unlawful or invalid votes which resulted from inflation and alteration of results in favour of the 1st respondent, the lawful votes will show that the appellant is the winner of the election.
It was further submitted for the 2nd to 6th respondents that the record of proceedings of the court below showed that the appellant was granted leave on 21st May, 2003 to inspect results and all electoral documents and he did that.
Without much ado, I must say that

it is trite law that pleadings delimit and determine the scope and province of the legal ring for parties to prosecute and defend their respective case. It is the foundation of the success or failure of a case.
It must be mentioned also that parties are bound by their pleadings and will not be allowed to set up in court a case which was at variance with the pleadings. See Ehimare v. Emhonyon (1985) 1NWLR (Pt.2) 177; George v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117; (1963) 1 All NLR 71; Meta limp ex v. A.-G., Leventis (Nig.) Ltd. (1976) 2 SC 91; Ochonma v. Unosi (1965) NMLR 321.

In Ojong v. Duke (2003) 14 NWLR (Pt.841) 581 at 618; it was held as follows:
“In litigation, the necessity of providing for certainty can hardly be over emphasized. Otherwise the judicial process stands to collapse sequel to the heat which uncertainty and attendant confusion would create. Invariably, therefore, all legal actions are expected to be exact and precise. Election petitions being conually unique, more than others, must be distinctly precise.”
I have no doubt in my mind that on the state of the appellant’s pleadings, he clearly and unequivocally anchored his petition on the shores of criminality. The foundation or the root of his petition is built on criminal offences of fraud, forgery, falsification of results and dereliction of duty.

It is settled law that when allegations of corrupt practices or electoral offences are made in an election petition; they must be proved beyond reasonable doubt that indeed they were committed. When that is done there is yet a second hurdle to scale through. In other words, where generally corrupt practice or offence is alleged in an election, to invalidate the election, the petitioner must prove the alleged practice or offence in addition to the following:
(a) That the 1st respondent personally committed the corrupt act or aided, abetted, etc the alleged commission of the alleged corrupt practice or offence;
(b) That where the alleged act was committed through an agent, the said agent must have been authorized by the 1st respondent.
(c) That the corrupt practice or offence affected the outcome of the election and how it affected it.
(d) The petitioner must go further to prove that but for the corrupt practice he would have won the election. See Section 138(1) of the Evidence Act; section 122(2) of the Electoral Act; Oyegun v. Igbinedion (1992) 2 NWLR (Pt.226) 747 at 759-760; Opia v. Ibru (1992) 3 NWLR (Pt.231) 658 at 708 to 709; Ebebe v. Ezellduka (1998) 7 NWLR (Pt.556) 74; Haruna v. Modibbo (2004) 16 NWLR (Pt.900) 487 at 561.

It is settled law that altering a document amounts to forgery. See Imam v. Sheriff (2005) 4 NWLR (Pt. 914) 80 at 162 to 163. The petitioner is under a duty to plead particulars of fraud. See Buhari v. Obasanjo (2005) 13 NWLR (Pt.941) at 151 to 152.
It is also trite law that a petitioner alleging inflation of figures needs to further prove his allegation by giving particulars of the inflated figures and by also showing that if the inflated figures were taken from the votes credited to his opponent, the result would change in his favour. See Ajadi v. Ajibola (2004) 16 NWLR (Pt.898) 91 at 168-169; Izuogu v. Udenwa (1999) 6 NWLR (Pt.608) 582.
It should be noted that in paragraph 4(iv) of the petition, the appellant pleaded that “the full particulars of the alterations made shall be given after interrogatories, discoveries and inspection of electoral documents.” He made application to that effect and it was granted on 21st May, 2003.
I am of the view that the above pleading is an acknowledgement by the appellant that detailed particulars were crucial to his case.
Contrary to the foregoing undertaking, the appellant after the application was granted and the inspection carried out, provided no detailed or full particulars or even any particulars. It seems to me therefore that the appellant had something to hide.
As I have said above, the case of the appellant at the tribunal was anchored on criminality. Having regard to the total failure of the appellant to prove the allegations of criminality in his petition and the candid concession by his leading counsel that they did not prove crime and had abandoned it, the tribunal had to decide whether the petition had a redeeming feature or whether anything is left of it. (See page 481 of the record).
On behalf of the appellant it was contended that the petition is in two parts “the area of crime” and “the area of civil.” That having abandoned the “area of crime,” he relies on the civil aspect of his case which requires proof on the balance of probabilities. Relying on the cases of Torti v. Ukpabi (1984) 1 SCNLR 214; (1984) 1 SC 370 at 393-394; Nwobodo v. Onoh (1984) 1 SC 1; (1984) 1 SCNLR 1; Omoboriowo v. Ajasin (1984) 1 SC 206 at pages 227-229; (1984) 1 SCNLR 108, the tribunal was urged to apply the principle of severance and sever the part of the petition alleging crime and hold that on the balance of probabilities, the appellant proved that he was the successful candidate and should be returned. (See pages 482 to 483 of the record).
On behalf of the respondents, it was contended that having abandoned the issue of criminality, the entire petition had collapsed as the whole petition is centred on criminality. (See pp. 496-508 of the record).
As I have said herein before, parties are bound by their pleading and they would not be allowed to set up a different case at the trial which is not supported by the pleadings. The appellant’s senior counsel at the trial wanted the tribunal to do a surgical operation on the appellant’s pleadings to enable him set up a new case not based on the pleadings. This is absolutely not possible as parties are bound by their pleadings. Again, it is not the duty of a trial court to bridge the yawning gap in the case of either party. If a court does that, it has descended into the arena and that will occasion a miscarriage of justice. At page 523 of the record, the tribunal made the following findings:
“The petitioner testified and called 25 witnesses. Neither the petitioner nor any of his witnesses in their evidence alleged that any particular officer or officers was responsible for the alteration and falsification of votes alleged. No documents were tendered either to prove the allegations. Both learned senior counsel representing the respondents addressed the court in extenso on this issue. This tribunal cannot but agree with the submissions of both learned counsel. It must be in the realization of this lacuna in the case of the petitioner that Chief Ahamba, with commendable candour, in his address conceded that the petitioner has not produced evidence or documents to establish these allegations in his petition. The learned silk submitted that those averments should be regarded as having been abandoned by the petitioner.”
The above findings of the tribunal cannot be faulted as they are based on the totality of the evidence placed before it. I hasten to add also that he who asserts must prove. The appellant to my mind asserted but did not prove.
At page 526 paragraph 5 of the record the tribunal said:
“Having carefully examined the remainder of this petition after paragraph 4(iv) and (v) had been excluded, we are of the opinion that nothing is left worthy adjudicating over. We uphold the submissions of learned counsel for the respondents that the doctrine of severance is inapplicable to this petition.”
I hold the strong view that as far as this petition is concerned, the latter findings of the tribunal are unassailable.
It is not in doubt that the issue of crime is central and remains the substratum of the petition. Having said that, I therefore have no difficulty in resolving issue one hereof against the appellant and in favour of the respondents.
As I have resolved issue one against the appellant, issue two becomes academic and of no moment. This is so because this court has upheld the decision of the tribunal that the allegation of crime is central to the petition and the appellant conceded that he did not prove the crime and also abandoned it. This appeal will stand to be dismissed.
Before I am done, I wish to point out that the appellant brief and his so called reply brief are loaded with legal technicalities to enable him win this appeal. The Supreme Court in the case of The State v. Gwonto & 4ors. (1983) 1 SCNLR 142; (1983) 3 SC 62 at 76 said that “justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice.” See also Okojo v. Odje (1985) 10 SC 267; Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 668 at 717; U.S.A. v. Europharm (Nig.) Ltd. & Anor. (1990) 6 NWLR (Pt.155) 239 at 242.
As issue No. one has been subsumed within issue No. two in this appeal, I hold that in the final analysis this appeal is devoid of merit and it is therefore dismissed. I uphold the decision of the tribunal given on 16/8/05. I make no order as to costs.

CHUKWUMA-ENEH, J.C.A.: It is incontrovertible that the case of the appellant/(petitioner) in this election petition is founded (as per pages 2 – 3 of the record as follows:
“(a) That the 1st respondent was not duly elected by majority of lawful votes cast at the election and did not have 25% of the votes cast in 2/3 of the 17 Local Government Area (5) in Abia State, and
(b) That the 1st respondent was at the time of election not qualified to contest the election by virtue of section 21(4)(5) of Electoral Act” – this second arm of the claim has been struck out upon the preliminary objections taken by the respondents.
The lead judgment, which I have read before now has painstakingly delved into all the issues canvassed in this matter most satisfactorily. I agree with the reasoning and conclusions. I am therefore constrained to circumscribe my comments to one critical point, that is, as to whether the question in the petition alleging criminal offences are severable and so, whether the appellant has through his counsel abandoned all issues of criminality in his petition. However, the appellant contends that the petition has two sections to it, one civil, the other criminal. In effect, the appellant has posited that the civil aspect of the petition is pitted against the 1st respondent, to be proved on the balance of probabilities while the criminal aspect is against the INEC officials, which on the law has to be proved beyond reasonable doubt. And that only the criminal aspect of the petition has been abandoned. The crucial issue in this regard is whether the criminal aspect of the petition was abandoned and the case fought in its civil character. It is therefore not contended that the allegations against the respondents have criminal content. These are the narrow issues discussed here.
There can be no doubt from the particulars pleaded in support of the grounds for the petition as per paragraph 40), (ii), (iii), (iv), (vi), (vii), & (viii) that the petition is founded upon criminal offences specifically of fraud, forgeries falsification of results and dereliction of duty. For the avoidance of any doubt, and for easy of reference, I set hereunder the aforesaid paragraph 4 of the petition as follows:
“(i) The 1st respondent was returned as elected by the 2nd respondent as having scored the majority of lawful votes and 25% of votes cast in 2/3 of the 17 Local Government Areas in Abia State.
(ii) The petitioner avers that the 1st respondent did not have the majority of lawful votes cast and did not have 2/3 of votes cast in the 17 Local Government Areas of Abia State.
(iii) The petitioner further avers that the counting of the votes cast at the polling units show that the 1st respondent did not receive the votes credited to the 1st respondent by the 2nd respondent.
(iv) The petitioner avers that the votes alleged by the respondents to have been scored by the 1st respondent arose as a result of inflations of votes which were done by the alteration of results on forms for collation of results at wards, local government and state collating centres. (The full particulars of the alteration shall be given after interrogatories, discoveries and inspection of electoral documents).
(v) The alteration of votes at the wards levels were done by the 6th – (1-17) respondents while the lateration at the local government collating centre were done by 5th (1-17) respondents. The alterations of the results at the state level were done by the 3rd respondent who also announced the result and handed over to the 4th respondent.
(vi) The lawful votes cast at the election for the 1st respondent are ascertainable from the votes cast in the ballot boxes and the record or results in the forms for entry of results at polling unit.
(vii) The petitioner further avers that by the votes cast and entered in the form used for entry of votes cast at the polling units the petitioner has the highest number of lawful votes cast and has satisfied all the other requirement to be returned in the said election.
(viii) By deducting the votes cast as a result of the alteration made in the results of the actual voting in favour of the 1st respondent the lawful votes cast show that the petitioner is the winner of the election and ought to be returned. ”
The foregoing averments in the petition speak for themselves. All the same, I have clearly underlined the salient portions simply to highlight the allegations of criminality levelled against the 1st respondent and the INEC officials, this is the 3rd, 5th and 6th respondents. The law is settled that where as here a crime is alleged in an election petition, it must be proved beyond reasonable doubt. See: Section 138 of the Evidence Act, 1990, Section 122(q) of the Electoral Act. This proposition of law has been underscored in Oyegun v. Igbinedion (1992) 2 NWLR (Pt.226) 747 at 756 – 760; Opia v. Ibru (1992) 3 NWLR (Pt.231) 658 at 708 -709 and Haruna v. Modibo (2004) 16 NWLR (Pt.900) 487 at 561 G-H. To give a comprehensive picture of the effect of alleging criminality in an action of this nature as borne out in the immediate cases above stated that is to say if the petitioner is to be successful at all, he must go a step further to allege anyone or a combination of the following crucial factors:
“(a) That the respondent personally has committed the alleged crime or aided, abated its commission.
(b) Where the alleged act has been committed through an agent, that the said agent must have been authorised by the respondent.
(c) That the alleged criminal act has adversely affected the respondent in the election.
(d) And, that but for the alleged criminal act the petitioner would have won the election.”
Again,

it is settled law that a petitioner is obligated to plead particulars of fraud without which the whole allegation is a non-starter. See: Order 26 rules 5 & 6(1) of the Federal High Court (Civil Procedure) Rules also as expounded in Nwobodo v. Onoh (1984) 1 SCNLR 1; (1984) 1 Sc. 1; Omoboriowo v. Ajasin (1984) 1 SCNLR 108; (1984) 1 SC 206 and Buhari v. Obasanjo (2005) 13 NWLR (Pt.941) 1 at 151 et seq.
Let me state at once, that the appellant has not in the petition particularised any of the allegations of criminal acts leveled against the 1st respondent. This default has been made all the more evident as per paragraph 4(iv) of the petition wherefore the petitioner unreservedly stated, that “the full particulars of the allegations made shall be given after interrogatories, discoveries and inspection of electoral documents.” It is on record the petitioner consequent upon his application in this regard was granted leave to carry out the exercise which he did. The outcome of what happened to the exercise is neither here nor there in these proceedings and is now a matter of speculation.
I now revert firstly to the appellant’s contention that having abandoned all issues of criminality wherever they purport to arise in the petition has thus anchored his case solely on the civil aspect of the matter. This proposition presupposes there has been a severance as in Omoboriowo’s case and abandonment of the criminal allegations therein. And so, it is the case of the petitioner that the tribunal erred to have held that para. 4(viii) of the petition was excluded and after all was not abandoned. I will come anon to the question of whether or not paragraph 4(viii) of the petition formed part of the concession made by the appellant’s counsel before the tribunal. However, I agree with the tribunal as clearly stated in page 525 line 17 – 20 of the record that paragraph 4(viii) shows that the claim of the petitioner that he won the majority of lawful votes could only be ascertained after, “deducting the votes cast as a result of alteration made in the result of the actual voting.” Against this background can it properly be postulated in the face of criminal allegations that there was effective and effectual severance of criminality leaving the petition to be decided on the balance of probabilities. This court is bound by the record and it is instructive that at pages 480 and 481 in lines 24 to 27 and 1 to 3 respectively the petitioner said:
“My Lords, look at the petition you will find that paragraph 4(i) has no allegations of alteration, that is 1st paragraph 4 that is the ground then coming to the facts under the grounds we have there (ii), (iii), (iv) then (vi), (vii). My Lords those allegations were only talking about the petitioner getting the highest number of valid votes.”
Even though these sub-paragraphs have not been struck as rightly they should after they have been abandoned, the implication of the concession vis-a-vis the tribunal’s findings on them is not, in any doubt when it said: “Finally subparagraph (viii) repeated the criminal allegation of alteration.” From the above it is crystal clear that the allegation of criminality is at the root of this petition contrary to the position taken by learned SAN for the petitioner …” While the tribunal as per the foregoing (and the respondents are in unison) is unequivocal as regards the abandonment of all the subparagraphs but subparagraph 4(viii), the appellant contends that the entire paragraph has been clearly abandoned. That the concession was made by the petitioner’s counsel before the tribunal has not been challenged formally. Indeed there is no ground of appeal on it. Also, the appellant has not formally challenged the record in this regard. Therefore, I see no reason not to agree with the tribunal fully that subparagraph 4(viii) has not been abandoned and as regards the import of subparagraph 4(viii) to the effect that the petitioner repeated the allegation of criminality (that is of alteration of the results).
To keep my reasoning properly focused I have at this stage to turn to the import of the doctrine of severance. Briefly put, and in this regard I agree with the appellant thus: that where in any civil proceedings the averments alleging a crime are severable and if after the severance there still remains in the pleadings of the plaintiff or petitioner as here sufficient averments devoid of criminal imputation against any party to the proceedings and on which the plaintiff or petitioner as in the instant petition can succeed in his claim or petition, then the burden of proof upon the plaintiff or petitioner is to prove his case within the balance of probability as it cannot then be said that the alleged crime was a fact in issue or directly in issue. See: Military Governor of Imo State v. Nwauwa (1997) 2 NWLR (Pt.490) 675; Omoboriowo v. Ajasin (1984) 1 SCNLR 108 per Bello JSC (as he then was) and Nwankwere v. Adewunmi (1967) NMLR 45. Before examining the cases of the parties on paragraph 4 of the petition excepting subparagraph 4(viii), the appellant has in elucidation strenuously argued that by bringing to bear the principle of severance as enunciated above, to the particulars of this matter that the petition falls to be considered under two parts that is; civil and criminal aspects. It must be observed that the categorisation of the particulars into this broad division is nowhere set out. The court is left to speculate on this. He has further submitted that no allegations have been made as far as the polling unit results are concerned but only in relation to collation levels of the elections (i.e. at the Ward, Local Government Areas and the State). In other words, that the criminal allegations as regards the collation levels of the election have stood independently of the averments relating to the polling units in respect of which no electoral fraud has been alleged. That is to say, that even though he pleaded in the alternative although it be inconsistent it is allowable within the rules of pleadings. See Metal Construction WA. Ltd. v. Chief Aboderin (1998) 6 SCNJ 161 at 170; (1998) 8 NWLR (Pt.563) 538. This with respect, runs counter to the letter and spirit of subparagraph 4(viii) of the petition.
These unfounded more so baseless attempts by the appellant, with respect, to fantasise with the particulars as per the averments in his pleadings in the petition as portrayed by the foregoing argument vis-a-vis the doctrine of severance that is, as expounded in the cases of Torti v. Ukpabi (supra); Nwobodo v. Onoh (supra) and Omoboriowo v. Ajasin (supra) however brilliant are totally belated and unacceptable on the backdrop of the peculiar facts of this matter. Again, with respect, this type of argument is being pursued here for the first time without leave. I must emphasis that the facts and circumstances which informed particularly the decision in Omoboriowo’s case where of the Supreme Court found that the petitioner had abandoned the allegations of crime in his petition and so, to hold that on the balance of probabilities the petitioner had proved that he was the successful party at the polls and should be returned, have no application here. As against what happened in this matter and I agree with the respondents in this respect that the petitioner in the cited case had set out the scores/figures and percentages of the votes of the petitioner and the 1st respondent in the wards and constituencies so that there was no difficulty in severing the criminal allegations from the petitioner’s pleadings based on all the results he tendered, which had supported the figures he pleaded that he won majority of lawful votes. This is the clear distinction between the cited case and the instant matter. And it is fatal the to appellant’s case here.
By so submitting as per the above on the applicability of the principle of severance to this matter, the appellant has overlooked the critical antecedents upon which this issue is premised, that is, the abandonment of sub-paragraphs 4(i) to 4(vii) leaving out sub-paragraph 4(viii) which the tribunal has formed and I agree with it, has repeated the criminal allegations of alteration and so the issue of criminality has remained the substratum of the petition.
In his brief, the appellant has variously although unseriously contested the finding of criminality, that is, on the allegation of alteration of results as being insufficient and in general terms and even feeble as they cannot add up to the commission of the crimes against the 1st respondent and INEC officials i.e. 3rd, 5th and 56th respondents. My reasoning here has demonstrated within the narrow compass of the question being discussed under subparagraph 4(viii) of the petition that there cannot be any effectual and effective severance of the criminal content of the said sub-paragraph. And even more so that the particulars of the petitioner therefore are not amendable to categorisation into civil and criminal sections. This, as I have shown is clearly unattainable on the peculiar facts of this matter. The tribunal has rightly in my view found that the petition is built on the allegation of criminal offences.
Having, as it were, found that the principle of severance is inapplicable to this matter, the criminal offences alleged in the petition have not been abandoned as claimed by the appellant. It is therefore non sequitur that the petition has been fought in its civil character and has to be proved on balance of probability.
I have because of the critical nature of this question tended to treat it very exhaustively.
For all this and even more so for the reasons so ably stated in the lead judgment, I also dismiss the petition as unmeritorious. I endorse all the consequential orders contained in the lead judgment of my learned brother, Rowland, JCA.

THOMAS, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother Rowland, JCA just delivered. His Lordship has infact covered the entire issues canvassed by the parties and I have no other contrary opinion as I am of the view that the appeal is unmeritorious and I also dismiss the appeal in its entirety. I abide with consequential orders made in the lead judgment of my learned brother.

GARBA, J.C.A.: I have read a draft of the lead judgment written and delivered by my learned brother Rowland, JCA. He has very ably identified, considered and rightly resolved the vital issues that called for determination in this appeal. For the sake of emphasis and support, I would like to say a few words.
1st respondent’s preliminary objection to the ground of appeal:
Learned senior counsel Awa U. Kalu for the 1st respondent, had filed a notice of preliminary objection on the 20th November, 2005 praying inter alia for (i) an order striking out the appellant/respondents’ notice of appeal filed on the 6th day of September, 2005 in that each of the grounds of appeal contained therein is either a ground anchored on facts or mixed law and facts, or is replete with arguments and narratives and prior leave of either this court or of the court below having not been sought and obtained.
In his brief of arguments, learned senior counsel relied on several decisions of the Supreme Court in which the general guidelines for determining whether a ground of appeal is one of law or mixed law and facts or facts alone, were set out. It was his contention that all the 27 grounds of appeal contained on the appellants’ notice of appeal are either of facts or mixed law and facts and therefore require leave to be competent. Though learned senior counsel did not mention it in his brief, his submissions were clearly based on the provisions of section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria and section 25(1) and (2)(a) of the Court of Appeal Act, in the first instance. However as rightly pointed out by the learned appellants’ counsel in his response to the issue, the applicable provisions are in section 246(1) of the Constitution which provide thus:
“246(1) An appeal to the Court of Appeal shall be as of right from:
(b) decisions of the National Assembly Election Tribunal and Governorship and Legislative
Houses Election Tribunals in any question as to whether:
(ii) any person has been validly elected to the office of Governor or Deputy Governor.”
The appeal being as of right no need therefore arises for leave of either this court or the lower/tribunal. This is more so regard being had to the recognized and accepted sui generis nature of election petitions. His Lordship Uwais, JSC (now Chief Justice of Nigeria) in the case of Orubu v. NEC (1988) 5 NWLR (Pt.94) 323 at 340 cited by counsel put the special nature of election petition succinctly thus:
“An election petition is not the same as ordinary civil proceedings, it is a special proceedings because of the peculiar nature of elections which, by reason of their importance to the well being of a democratic society, are regarded with an aura that places them over and above the normal day today transactions between individuals which give rise to ordinary or general claims in court.”
See also Buhari v. Yusufu (2003) 14 NWLR (Pt.841) 446; (2003) FWLR (Pt 74) 329.
The above position was encapsulated in section 137 of the Electoral Act, 2002 which provides that:
“137. Without prejudice to the provisions of section 294 subsection (1) of the Constitution of the Federal Republic of Nigeria, 1999, an election petition and an appeal arising therefrom under this Act shall be given accelerated hearing and shall have precedence over all other cases or matter before the tribunal or court.”
Accordingly, the correct and viable legal submission which I agree with is that the appellant did not require or need leave to file and argue the grounds of appeal contained in the notice of appeal. ACB v. Crestline Services Ltd. (1991) 6 NWLR (Pt 97) 301; British American Ins v. Edema-Sillo (1993) 2 NWLR (Pt. 277) 567.
The case of Khalil v. Yaradua (2003) 16 NWLR (Pt.847) 446 cited by the learned senior counsel for the 1st respondent at the hearing of the appeal did not say that an appellant under provisions of section 246(1) of the Constitution requires leave to file and argue grounds of facts or mixed law and facts. The opinion expressed by my learned brother I.T. Muhammad, JCA on page 479 paragraphs E – F of the report was on the provisions of section 241(1)(b) and 242(1) of the Constitution. To that extent, that case is not helpful to the objection by the 1st respondent.
In the 2nd instance, the learned senior counsel had also argued that the grounds are replete with arguments and narratives. By the provisions of Order 3 rule 3, of Court of Appeal Rules, 2002, a notice of appeal in this court is required to set forth concisely and distinctly, the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative.
Any ground of appeal which is narrative, prolix, repetitive, or which contains round-about arguments would not only be bad but incompetent. See: Okudo v. Inspector General Police (1998) 1 NWLR (Pt.533) 335 at 340; Anie v. Ugagbe (1995) 6 NWLR (Pt.402) 432. Kachia v. Yazid (2001) 17 NWLR (Pt.742) 431; Adah v. Adah (2001) FWLR (Pt. 211) 1815; (2001) 5 NWLR (Pt.705) 1 and Kamba v. Bawa (2005) All FWLR (Pt.28l) 1775; (2005) 4 NWLR (Pt.914)
43.
A cursory reading of the 27 grounds of appeal filed by the appellant would easily reveal that many of them are prolix, repetitive and therefore not concise. In addition, a few of them can correctly and properly be described as argumentative and narrative. However the bottom line is that after all deductions and cancellations of the grounds on these points, there are left on the appellants’ notice of appeal, grounds which are competent and can sustain his appeal. In my view such grounds include Grounds No.1, 3, 4, 8 and 12. As result, the notice of argument the appellant is competent for the purposes of this appeal. See: Ojukwu v. Onyeador (1991) 7 NWLR (Pt.203) 286; F.CM.B. Ltd. v. Abiola & Sons Bottling Co. Ltd. (1991) 1 NWLR (Pt.165) 14; Osasona v. Ajayi (2004) 5 SC (Pt.71) 96; (2004) 14NWLR (Pt.894) 527 and Asinya v. INEC (2005) 16NWLR (Pt.950) 157 at 168.
The end result is that the preliminary objection by the 1st respondent to the notice and grounds of appeal fails and is also dismissed by me.
Issues distilled and determined in the appeal
The law is now commonplace that generally, a court is to confine itself to the issues raised before it by the parties in the determination of matters. However where the issues raised or formulated by the parties before a court are prolix, split or fragmented and couched in such a manner as to obscure the crucial and real issues that would properly, adequately and finally determine the dispute between them, the court would be entitled to distill such or other issues from the grounds of appeal filed. In such situation, this court in particular has the power and discretion to formulate issues from the grounds of appeal which will determine the vital questions in dispute between the parties. See: Aduku v. Adejoh (1994) 5 NWLR (Pt.346) 582; Fabiyi v. Adeniyi (2000) 6 NWLR (Pt.662) 532 and 546; Yakubu v. Governor of Kogi State (1997) 7 NWLR (Pt.511) 66 and 92 and Edem v. Canon Balls (2005) All FWLR (Pt.276) 693; (2005) 12 NWLR (Pt.938) 27.
Where such issues formulated by the court were derived from the grounds of appeal and addressed by the counsel in that briefs, the need for the court to call for address by the parties on them becomes unnecessary and abates. Anyaduba v. Nigeria Renowned Trading Co. Ltd. (1992) 5 NWLR (Pt.43) 535 and 561; Ebba v. Ogodo (1984) 1 SCNLR 372 and Adah v. NYSC (2004) All FWLR, 1850; (2004) 13 NWLR (Pt.891) 639.
In the peculiar nature of an election petition as highlighted earlier and in view of the grounds of appeal filed by the appellant, I entirely agree that the issues identified in the lead judgment are the crucial ones that require determination in this appeal.
Let me quickly point out that the duty of an appellate court upon a complaint made to it in respect of a decision of a lower court or tribunal, is concerned with seeing whether or not that court or tribunal has or has not made substantive or procedural errors or has or has not failed to make any or proper finding on the available evidence and accordingly to take such decisions in the interest of justice, by way of correction or confirmation of the decision of the lower court tribunal. It is not our function to re-try a case on the notes of evidence and set asides the decision of the lower court or tribunal merely because we would have reached a different conclusion on some or even all the facts the case. See: Layinka v. Makinde (2002) 10NWLR (Pt.775) 358 and 374; Nwokoro v. Onwna (1999) 12NWLR (Pt.631) 342 and 355 and Ajadi v. Okenihun (1985) 1 NWLR (Pt.3) 484 and 492.
In the present appeal, the pith of the appellants’ petition at the lower tribunal was that the 1st respondent though returned as duly elected by the 2nd respondent, did not score the highest number of votes cast at the election in question. The heart and soul of the complaint was that the votes credited to the 1st respondent by the 3rd – 6th respondents on the basis of which he was returned as the duly elected Governor of Abia State, was as a result of falsification and alteration of votes by the said respondents.
It is common ground that the above allegation is one of commission of a crime which by the position of the law, i.e. section 138(1) of the Evidence Act, is to be proved beyond reasonable doubt. In addition, the appellant had conceded both at the lower/tribunal and in this court that he had abandoned that allegation at the trial and so did not discharge the burden of proof placed on him by law.
Having abandoned and failed to prove the allegation of alteration and falsification of votes as required by law, there was no longer any foundation upon which the complaint against the return of the 1st respondent as having been duly elected by a majority of the votes cast at the election could stand. By abandoning that allegation, the appellant had unwittingly taken and has to bear the consequences of the enormous risk of pulling the rug from under the petition he filed against the respondents. The allegation was the blood that gave life to the petition which when drained, will leave it empty and dead.
In this regard, the finding of the lower/tribunal that the allegation could not be severed from the petition or that it was not only collateral thereto is on firm terrain and cannot be assailed. The principle of severance established in all the cases cited and more, is inapplicable in this appeal because the allegation of alteration and falsification of votes was the crux of the appellants’ petition in the lower/tribunal.
Without it, the petition became abated and extinct, leaving nothing from which anything could be severed.
Furthermore from the record of appeal before us, there was sufficient evidence adduced by both appellant and respondents that the election in question was conducted in substantial compliance with provisions of the Electoral Act, 2002. The appellant did not show or prove that there was any non-compliance with the principles of the Act which substantially affected the result of the election. It is to be noted that there is a rebuttable presumption that the result of any election declared by the Electoral Commission is correct and authentic, and the burden lies on the party that disputes the correctness and authenticity of the result to lead credible evidence in rebuttal. See Buhari v. Obasanjo (2005) 13 NWLR (Pt.941) 1 and 193 and 255; Nwobodo v. Onoh (1984) 1 SCNLR 1 and Omoboriowo v. Ajasin (1984) 1SCNLR 108. As demonstrated earlier, the appellant did not lead credible evidence at the trial of his petition to rebut that presumption.
For the above and the fuller reasons given in the lead judgment of my learned brother the presiding Justice I too find no merits in this appeal. I join him in dismissing the appeal and affirming the decision of the lower/tribunal in the terms contained in the lead judgment.

RHODES- VIVOUR, J.C.A.: I had the privilege of a preview in draft of the leading judgment by my Lord the Hon. Justice R. O. Rowland, JCA, just delivered. I am in agreement with the reasoning and conclusions but I would however like to say a thing or two.
The thrust of the appellant’s case is on allegation of crime, fraud, forgery, falsification of result, etc. Sadly, the appellant failed to provide particulars of fraud.
To prove falsification of results, it is elementary that there should be in existence at least two results one of which he alleges to be genuine and the other false. See Ojo v. Esolze (1999) 5 NWLR (Pt.603) p. 444; Sabiya v. Tukur (1983) NSCC p.559. The petitioner has an added responsibility to prove the criminal allegations beyond reasonable doubt. See Hashidu v. Goje (2003) 15 NWLR (Pt.843) p.352. Aloyebi v. Odudu (1990) 6 NWLR (Pt.157) p.384. At all times in election petition cases the petitioner must always have at the back of his mind that there is a rebuttable presumption that the result of any election declared by the regulatory body, in this case INEC is correct and authentic and the onus is on the person who denies the correctness and authenticity to rebut the presumption. In this case to succeed the rebuttal must be proved beyond reasonable doubt. See Nwobodo v. Onoh (1984) 1 SCNLR p.1108; Omoboriowo v. Ajasin (1984) 1 SCNLR p.108. The case for crime was abandoned. In the circumstances, the tribunal was perfectly correct to dismiss the petition as there was nothing left to try.
I must comment on the appellant’s reply brief. An appellant’s reply brief is designed to provide an avenue for the appellant to reply to fresh points of law or issues raised by the respondent in his brief of argument.

In this appeal the appellant’s reply brief is more or less a repetition of what he has already said in his appellant’s brief.It is very wrong for the appellant in his reply brief to have gone beyond replying to fresh points or issues raised in the respondent’s brief.
This appeal has no redeeming features.
Once again, I entirely agree with the reasoning and conclusions of my learned brother in the lead judgment. The appeal fails and it is hereby dismissed. There would be no order as to costs.
Appeal dismissed.

 

Appearances

  1. U. C. Eduzor, Esq.
    C. A. Elodu, Esq.
    Okechukwu Odumodu, Esq.For Appellant

 

AND

Awa U. Kalu, SAN
Stanley Ojigbo
H. S. Okorie, Esq.
Livy Uzoukwu, Esq.
C. K. Uba, Esq.For Respondent

 

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