ENO EKAPONG OFEM & ANOR V. HON. BASSEY EKO EWA & ORS
(2012)LCN/5082(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 3rd day of January, 2012
CA/C/NAEA/278/2011(REASON)
RATIO
ON WHOM LIES THE ONUS TO PROVE TO PROVE AN ASSERTION
The burden is always on he who alleges and it shifts only when the initial burden has been satisfied by the tilting of the imaginary scale-against the responding party. The initial burden, the commencement burden always lies with the accuser – i.e. the person who alleges and asserts the affirmative. (See the case of Ogboru v. Uduafan (2011) 2 NWLR (pt. 1121) 1. PER. PER. M. B. DONGBAN-MENSEM, J.C.A
THE POSITION OF THE LAW ON THE ISSUE AS TO WHETHER BOTH PARTIES CALLED EVIDENCE IN SUPPORT OF THEIR PLEADINGS.
In our law a defendant or a respondent as the case may be, who had elicited or extracted evidence through cross-examination of plaintiff or Petitioner’s witnesses sufficient enough to support his pleadings cannot in law be said to have abandoned his pleadings. (See the case of Akomolafe V. Guardian Press Ltd. (2010) 3 NWLR (Pt. 1181) at 351) where Onnoghen JSC espoused the law thus:
“On the issue as to whether both parties called evidence in support of their pleadings as held by the lower court, it is settled law that evidence elicited from a party or his witness (es) under cross examination which goes to support the case of the party cross examining, constitute evidence in support of the case or defence of that party. If at the end of the day the party cross examining decides not to call any witness, he can rely on the evidence elicited from cross examination in establishing his case or defence. In such a case you cannot say that the party calls no evidence in support of his case or defence. One may however say that the party called no witness in support of his case or defence, not evidence, as the evidence elicited from his opponent under cross examination which are in support of his case or defence constitute his evidence in the case. There is however a catch to this principle. The exception is that the evidence so elicited under cross examination must be on facts pleaded by the party concerned for it to be relevant to the determination of the question/issue in controversy between the parties.” PER. PER. M. B. DONGBAN-MENSEM, J.C.A
THE BURDEN ON A PETITIONER TO PROVE AN ALLEGED NON-COMPLIANCE
In the case of Daggsh V. Bulama (2004) 14 NWLR (Pt. 892) 144 at 241 Paras. Ogbuagu JCA (as he then was), had cause to make an exposition on this aspect of the law, thus:” I wish to state and this is also settled, that a party be he a plaintiff or petitioner, or a defendant or respondent, it entitled to lead evidence though his own witnesses or by cross-examination of the opponent’s witnesses in order to extract a fact pleaded by either the defence or the plaintiff or petitioner as the case may be. (See Bamgboye & Ors. V. Olanrewaju (1991) 4 NWLR (Pt. 184) 132 at 155; (1991) 5 SCNJ 88.
Secondly, evidence procured from cross-examination, is as valid and authentic as evidence procured from examination-in-chief. Both is said to have the potency of relevancy and relevancy is also said to be heart of admission in the law of evidence. That where evidence is relevant, it is admissible and admitted whether it is procured from examination-in-chief or under cross-examination. See again Gaji & Ors. V. Paye (Supra).” Adekeye JCA (as he then was) took the issue further in Chime V. Ezea (2010) 6 EPR 353 at 430- 431 Paras. C-D, thus: ”On non-compliance, in an election petition, a Petitioner who alleges non-compliance with the Electoral Rules or Act and avers that such non-compliance was substantial, has two fold burdens on him to prove and satisfy the court.-That the alleged non-compliance actually occurred and took place. -That the non-compliance affected or might have affected the result of the election. (See Bassey V. Young (1963) 1 SCNLR 61; Buhari V. Obasanjo (2005) 13 NWLR (Pt. 941) pg. 160; Awolowo V. Shagari (1979) 6-SC 51. PER. PER. M. B. DONGBAN-MENSEM, J.C.A
THE POSITION OF THE LAW ON WHETHER NON-COMPLIANCE WITH THE ELECTORAL RULES CAN RENDER THE ELECTION INVALID
In order for non-compliance with the Electoral Rules to render the election invalid or contrary to the principle of the Electoral Act, it must be so great and substantial and the court or tribunal must be satisfied that it affected or might have affected the majority of the voters or the result of the election. (See Sorunke V. Odebunmi (1960) SCNLR 414; Umawah V. Ekwejunor-Echie (1962) 1 SCNLR 157; Dada V. Dosunmu (2006) 18 NWLR (Pt. 1010) pg. 138; Amosun V. INEC (2007) All FWLR (Pt. 391) pg. 1712. However, it is very important that a party seeking nullification of an election must succeed on the strength of his own case and not on the weakness of the Respondent’ case, so that failure of his adversary to call evidence would not relieve the party from satisfying the tribunal by cogent and reliable proof or evidence in support of his petition. In an election where an allegation is made that registered voters did not cast their votes the allegation must be proved by concrete evidence. (See Rotimi V. Fatoriji (1999) 6 NWLR (Pt. 606) Pg. 305; Okoroji V. Ngwu (1992) 9 NWLR (Pt. 265) Pt. 263. PER. PER. M. B. DONGBAN-MENSEM, J.C.A
THE PRESUMPTION THAT ANY ELECTION RESULT DECLARED BY A RETURNING OFFICER IS AUTHENTIC AND CORRECT.
By Sections 115, 148 and 149 of the Evidence Act, there is presumption that any election result declared by a returning officer is authentic and correct. The burden is on the person who denies its correctness to rebut its correctness. (See; Jalingo V. Nyame (1992) 3 NWLR (Pt. 231) Pg. 538; Nwobodo V. Onoh (1984) 1 SCNLR 1; Omoboriowo V. Ajasin (1984) 1 SCNLR Pg. 108.” In the case of Onisaulu v. Elewuji in which Katsina Alu JSC who read the lead Judgment, this issue was addressed in details: – The evidence of DW2 called by the Defendants strengthened the Plaintiff’s case. This was an admission against the interest of the defendants. The said admission against the interest is relevant and admissible evidence, (See Ojiegbe & ors. V. Okwaranjia & ors. (1962) All NLR 605 2 SCNLR 358). DW2 was not treated as a hostile witness; in the circumstance, the evidence must be treated as an admission upon which the plaintiff’s are entitled to rely as further reinforcement of his claim”. Tabai JSC expressed the same principle in these picturious way: ”That the only evidence specifically is that, under cross examination which stated in unequivocal terms, rather it is a contradiction of the entire case of the defendants/Appellants and pointed in support of the Respondent’s case and which ought to be accorded its proper weight”. PER. M. B. DONGBAN-MENSEM, J.C.A
JUSTICES
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
MOORE A.A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. ENO EKAPONG OFEM
2. ACTION CONGRESS OF NIGERIA Appellant(s)
AND
1. HON. BASSEY EKO EWA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. RESIDENT ELECTORAL COMMISSIONER, CROSS RIVER STATE Respondent(s)
M. B. DONGBAN-MENSEM, J.C.A (Delivering the Leading Judgment): This is an appeal against the Judgment of the National and State Assembly Election Petition Tribunal sitting in Calabar, Cross River State of Nigeria delivered on the 4th November, 2011, dismissing the Petition filed against the return of the 1st Respondent as the winner of the Abi/Yakurr Federal Constituency Election held on the 26th April, 2011.
The Appellants who were dissatisfied with the decision of the Tribunal coram:
Hon. Justice G. M. Nabaruma – Chairman
Hon. Justice S.U. Dikko – Member
Hon. Justice A.K. Baaki – Member
filed a notice of appeal on the 15th November 2011. The facts which gave rise to the appeal are stated in the appellant’s brief of arguments as follows:
”i. Election was held into the Abi/Yakurr Federal Constituency of Cross River State of Nigeria for the seat of the house of Representatives on Saturday the 26th April, 2011. The 1st Appellant was sponsored by the 2nd Appellant, Action Congress of Nigeria.
ii. The 1st Respondent contested the election under the aegis of the 4th Respondent. At the conclusion of the election the 3rd Respondent announced or declared the 1st Respondent as the winner of the said election.
iii. The 1st Appellant was deeply aggrieved with the return of the 1st Respondent as the winner of the Petition, thus the 1st Appellant presented a petition before the National and State Assemblies Election Petition Tribunal on the 17th day of May, 2011.
iv. After the service of the petition on the Respondents, the Respondents filed their replies to the petition.
v. At the pre-trial session the 1st Respondent raised a preliminary objection to certain paragraphs of the Petition and the Tribunal sustained the objection by striking out the offensive paragraphs of the Petition.
vi. At the hearing of the Petition, the Appellants called 12 witnesses and tendered a number of documentary evidence.
vii. The Respondents did not call evidence but rested their case on that of the petitioners.
viii. The Tribunal in its Judgment on the 4th November, 2011 dismissed the Petition as lacking in merit and declared the 1st Respondent as duly elected despite the fact that the 1st Respondent did not tender his Certificate of Return to establish that he was validly declared the winner of the election.
ix. The Appellants have lodged Nine (9) Grounds of Appeal against the Judgment of the lower Tribunal.”
The Appellants raise a legion of seven issues for determination on the nine grounds of appeal filed and which grounds the 1st, 2nd & 3rd Respondents respectively raised three and two issues each for determination.
I must observe upfront that the seven issues formulated by the Appellants were not tied to the grounds of appeal as is the required practice. Further in these arguments of the issues, the learned counsel kept repeating/adopting the arguments in other issues which style confirms that the issues were proliferated.
In the circumstance, I find the three issues formulated by the 1st Respondent, and which were dully tied to the grounds of appeal as apt and I shall adopt same in the determination of this appeal. The 2nd and 3rd Respondents also tied their issues to the grounds of appeal.
I shall however, set out anon, all the issues formulated by each set of the parties.
APPELLANT’S ISSUES FOR DETERMINATION
The issues that call for the determination of the Court as framed from the Grounds of Appeal are as follows:
1. What is the standard of proof required by the Appellant in an Election Petition where the Respondents elects not to call evidence to disprove or dispel the evidence called by the Petitioner, regard being had to the facts and circumstances of this case?
2. Can a Tribunal which had failed to invoke the principle of severance of pleadings urged upon it by the Appellants as regards the Criminal aspects of the Petition, descend into the arena to strike out paragraphs of the petition on the ground that the Appellant had submitted that they were abandoning these paragraphs of the petition?
3. Whether the Tribunal was right when it held that where a Appellant (Petitioner) makes allegation of non-voting he must necessarily call evidence of voters who did not vote in the election to prove his cased
4. Whether the Tribunal was not bound to evaluate documentary evidence tendered through PW12 on the ground that such documentary evidence was merely dumped on the Tribunal; and whether the failure has not resulted in a miscarriage of justice against the Appellants?
5. Whether the Tribunal was correct when it held that the 1st Respondent was validly elected and the fact that he did not tender his certificate of Return was not an issue that was raise in the pleadings of the Appellants?
6. Whether the Appellants were not entitled to Judgment regard being had to the facts and circumstances of this case?
7. Whether the failure and or refusal of the Tribunal to consider the address and analysis of examination of documentary evidence did not occasion a miscarriage of justice on the Appellants?
1ST RESPONDENT’S ISSUES FOR DETERMINATION
1. Whether the Appellants did not abandon their complaint against the conduct of the Abi/Yakurr Federal Constituency Elections held on the 26th April, 2011 as it relates to Yakurr Local Government Area- (Grounds 1, 8, 10).
2. Whether the Appellants were able to prove that Elections did not take place in Abi Local Government Area on the 26th April, 2011 for the Abi/Yakurr Federal Constituency. (Grounds 2, 3, 5, 6, 7).
3. Whether the return of the 1st Respondent as the duly Elected Representative of the Abi/Yakurr Federal constituency is valid in the eyes of the Law- (Grounds 9 & 11).
2ND & 3RD RESPONDENT’S ISSUES FOR DETERMINATION
1. Whether from the totality of the evidence before them the learned trial Judges of the Election Tribunal were right in coming to the conclusion that the Petitioners/Appellants failed to prove their case and whether in that failure of the Appellants to prove the allegations in the petition, the Tribunal was right in dismissing the petition? (Grounds One, Two, Three, Five, Six, Seven, Eight, Ten and Eleven).
2. Considering the facts of the case in its totality, the state of the pleadings and the evidence before the Election Tribunal, whether the issue of Certificate of Return was in contention in the petition, and thus, needed to have been resolved by the lower Tribunal? (Ground Nine).
Before I proceed to the issues, it is pertinent to state here that the Appellant concedes in paragraph five (v) of his statement of the facts for this appeal, that at the pre-trial session, the 1st Respondent raised a preliminary objection to certain paragraphs of the petition and which objection the learned members of the Tribunal upheld by striking out the offensive paragraphs of the petition.
In a considered ruling of the Tribunal rendered on the 14th September, 2011 at page 722 of the records for this appeal, paragraphs 10, 11, 12, 20, 28 and 30 of the Appellant’s petition were accordingly struck out. There is no interlocutory appeal filed challenging the Ruling of the Tribunal striking out the said paragraphs. The petition was thus heard and determined on the remaining paragraphs excluding paragraphs 10, 11, 12, 22, 28 and 30.
ISSUES ONE AND THREE:
I will consider issues one and three together and then issue two all of which comprehensively cover the nine grounds of appeal filed.
It is the case of the Appellant that the 1st Respondent failed to produce a Certificate of return as the winner and dully elected candidate in the election being contested. The reason for this argument is the alleged failure of the 1st Respondent to call evidence and tender the certificate of return issued to him by the 2nd Respondent as conclusive evidence that the 1st Respondent won the election. The learned Counsel for the Appellant anchored his argument on the provisions of Section 73(1) of the Electoral Act and the following cases:-
1. OTUNBA V. AWOBAJO (1999) 7 NWLR (PT. 610) 335.
2. INEC V. ONYIMBAH RAY (2004) NWLR (Pt 892) 130 at 132.
3. UDEAGHARA v. OMEGARA (2010) 1 NWLR (Pt. 1204) 168 at 181.
In his argument, the learned Counsel alleged that the learned members of the Tribunal “glossed over” the validity of the return of the 1st Respondent for holding that the issue was not pleaded. Rather than state the specific paragraphs were the issue of the certificate of return was deeded in the petition, the learned Counsel submits that the said fact could be implied from the pleadings of the Appellant which Counsel argued, legitimately raised and canvassed argument in support there to.
In a brief response on its issue, the 1st respondent cited pg 2 of the records for this appeal which bears the petition of the Appellants admitting the fact that Bassey Eko Ewa was returned as the winner of the election. Further the evidence of the PW2 was also cited and relied upon by the learned Counsel.
Counsel for the 1st Respondents submits that PW2 tendered Form EC8C, being the declaration of results and was admitted, as Exhibit 1, and in which Exhibit, the 1st Respondent was returned. Also tendered were Forms EC8A, EC8B, EC8C, EC8D and EC8E. For the 2nd and 3rd Respondents, the learned Counsel cited and quoted pg 3 of the Petition of the Appellant which goes thus:
”The 1st Respondent was also a candidate at the said election. He was declared as the candidate with the highest votes and returned as winner”
In paragraph 7, the petitioners stated that;
”On Tuesday, 26th April, 2011, the 2nd Respondent declared the result of the election and the scores of the candidates were announced as follows…” They reproduced the scores of the candidates and of the portion of the 1st Respondent they indicated ”elected” they went further in paragraph 8 thereof so state that ”…Bassey Eko Ewa was returned as the winner of the election”. The law is settled that parties are bound by their pleadings. (See N. I. P. C LTD. V. THOMAS ORGANISATION LTD. (1969) 1 ALL NLR 134). And facts admitted need no proof. (See section 75 of the Evidence Act, Cap. E.14), Laws of the Federation of Nigeria, 2004 now section 123 of the Evidence Act, 2011 and the case of Andony v. Ayi (2004) All FWLR (Pt. 227) 464 at 482-483 paras. A – A. Accordingly, the cases of Ukpo V. Imoke (2009) 1 NWLR (Pt. 1121) 261, Otunba v. Awobajo (1999) 7 NWLR (Pt. 610) 335 and INEC V. Onyimbah (2004) NWLR (Pt 892) 130 & 132 cited by the Appellants’ counsel at pages 22 and 27 of the Appellants, brief of argument, are inapplicable to the facts of this case”.
I could not agree more with the submissions of the two sets of Respondents. The argument of the Appellant in this issue is totally without merit.
The learned members of the Tribunal were right in holding that:
”In the issue of failure of the Respondents to plead and tender the Certificate of Return we are in agreement with learned Counsel to the 2nd and 3rd Respondents that the issue does not arise in this petition. Essentially, the Petitioners did not raise it anywhere in their pleadings. As both the parties, on the one hand and the Court on the other hand are bound by the pleadings in the petition, pleadings the tribunal lacks the necessary jurisdiction to entertain it. In any event the issue of who the successful candidate was entitled to the issued with the Certificate of Return is not in dispute in this petition and the demand that the said Certificate of Return be tendered as evidence in unnecessary”.
ISSUE TWO:
Appellant says, because Respondent called no evidence the Appellant’s case is unchallenged and therefore this appeal should be allowed!
Respondents say there was no need to call evidence since the case of the Appellant as Petitioner was demolished under cross-examination.
While the principle of law called in by the Appellants are correct, they are not applicable to the facts of the instant appeal. In ordinary procedure, it is called no case submission in criminal procedures and in a civil proceedings, it is termed summary hearing.
Indeed it is a procedure which should be adopted in election proceedings- there is no need expending energy on non-issues.
The case of Na’umba V. Na’umba (2008) 31 LRECN 279 at 289 which is cited and relied upon by the Appellant is of no relevance and totally inapplicable to the facts of this appeal. (Jang v. Dariye (2003) 15 NWLR (Pt. 843) 436, Ajadi v. Ajibola (2005) 16 NWLR (Pt. 898) 91, Sokwo v. Kongbo (2008) 7 NWLR (Pt. 1086) 342, Ayeni v. Adesina (2007) 7 NWLR (Pt. 1033) 233 referred to. (Pp. 74-75, Paras. G-F).
The burden is always on he who alleges and it shifts only when the initial burden has been satisfied by the tilting of the imaginary scale-against the responding party. The initial burden, the commencement burden always lies with the accuser – i.e. the person who alleges and asserts the affirmative. (See the case of Ogboru v. Uduafan (2011) 2 NWLR (pt. 1121) 1.
The Respondents have demonstrated in their submissions, that the evidence of the petitioner were demolished under cross-examination. In light of this essential time line nature of the electoral proceedings, it makes sense to safe time and refrains from calling witnesses to repeat what have been established through the witnesses of the Petitioner under cross-examination. In the case of Onisaolu v. Elewuji, it was held that the contention of the Appellants, that because the Respondents did not call any evidence they have abandoned their pleadings/claim is not a correct position of the law. In our law a defendant or a respondent as the case may be, who had elicited or extracted evidence through cross-examination of plaintiff or Petitioner’s witnesses sufficient enough to support his pleadings cannot in law be said to have abandoned his pleadings. (See the case of Akomolafe V. Guardian Press Ltd. (2010) 3 NWLR (Pt. 1181) at 351) where Onnoghen JSC espoused the law thus:
“On the issue as to whether both parties called evidence in support of their pleadings as held by the lower court, it is settled law that evidence elicited from a party or his witness (es) under cross examination which goes to support the case of the party cross examining, constitute evidence in support of the case or defence of that party. If at the end of the day the party cross examining decides not to call any witness, he can rely on the evidence elicited from cross examination in establishing his case or defence. In such a case you cannot say that the party calls no evidence in support of his case or defence. One may however say that the party called no witness in support of his case or defence, not evidence, as the evidence elicited from his opponent under cross examination which are in support of his case or defence constitute his evidence in the case. There is however a catch to this principle. The exception is that the evidence so elicited under cross examination must be on facts pleaded by the party concerned for it to be relevant to the determination of the question/issue in controversy between the parties.”
The evidence elicited under cross examination by the Respondents in this case, including the concession and admission made by the learned Counsel for the Appellants relates to facts pleaded by the Respondents and deal with the issue of the conduct of election in question. They are facts which are relevant to the determination of the issue in controversy between the parties. The Appellants have not shown that the results they tendered were not the results of the election in question or that the results they tendered were not the results of the election in question, or that the facts elicited under the cross-examination of their witnesses which show that election took place, were not part of the pleadings of the Respondents. In the case of Daggsh V. Bulama (2004) 14 NWLR (Pt. 892) 144 at 241 Paras. Ogbuagu JCA (as he then was), had cause to make an exposition on this aspect of the law, thus:
”I wish to state and this is also settled, that a party be he a plaintiff or petitioner, or a defendant or respondent, it entitled to lead evidence though his own witnesses or by cross-examination of the opponent’s witnesses in order to extract a fact pleaded by either the defence or the plaintiff or petitioner as the case may be. (See Bamgboye & Ors. V. Olanrewaju (1991) 4 NWLR (Pt. 184) 132 at 155; (1991) 5 SCNJ 88.
Secondly, evidence procured from cross-examination, is as valid and authentic as evidence procured from examination-in-chief. Both is said to have the potency of relevancy and relevancy is also said to be heart of admission in the law of evidence. That where evidence is relevant, it is admissible and admitted whether it is procured from examination-in-chief or under cross-examination. See again Gaji & Ors. V. Paye (Supra).”
Adekeye JCA (as he then was) took the issue further in Chime V. Ezea (2010) 6 EPR 353 at 430- 431 Paras. C-D, thus:
”On non-compliance, in an election petition, a Petitioner who alleges non-compliance with the Electoral Rules or Act and avers that such non-compliance was substantial, has two fold burdens on him to prove and satisfy the court.
-That the alleged non-compliance actually occurred and took place.
-That the non-compliance affected or might have affected the result of the election. (See Bassey V. Young (1963) 1 SCNLR 61; Buhari V. Obasanjo (2005) 13 NWLR (Pt. 941) pg. 160; Awolowo V. Shagari (1979) 6-SC 51.
In order for non-compliance with the Electoral Rules to render the election invalid or contrary to the principle of the Electoral Act, it must be so great and substantial and the court or tribunal must be satisfied that it affected or might have affected the majority of the voters or the result of the election. (See Sorunke V. Odebunmi (1960) SCNLR 414; Umawah V. Ekwejunor-Echie (1962) 1 SCNLR 157; Dada V. Dosunmu (2006) 18 NWLR (Pt. 1010) pg. 138; Amosun V. INEC (2007) All FWLR (Pt. 391) pg. 1712.
However, it is very important that a party seeking nullification of an election must succeed on the strength of his own case and not on the weakness of the Respondent’ case, so that failure of his adversary to call evidence would not relieve the party from satisfying the tribunal by cogent and reliable proof or evidence in support of his petition. In an election where an allegation is made that registered voters did not cast their votes the allegation must be proved by concrete evidence. (See Rotimi V. Fatoriji (1999) 6 NWLR (Pt. 606) Pg. 305; Okoroji V. Ngwu (1992) 9 NWLR (Pt. 265) Pt. 263.
By Sections 115, 148 and 149 of the Evidence Act, there is presumption that any election result declared by a returning officer is authentic and correct. The burden is on the person who denies its correctness to rebut its correctness. (See; Jalingo V. Nyame (1992) 3 NWLR (Pt. 231) Pg. 538; Nwobodo V. Onoh (1984) 1 SCNLR 1; Omoboriowo V. Ajasin (1984) 1 SCNLR Pg. 108.”
In the case of Onisaulu v. Elewuji in which Katsina Alu JSC who read the lead Judgment, this issue was addressed in details: –
The evidence of DW2 called by the Defendants strengthened the Plaintiff’s case. This was an admission against the interest of the defendants. The said admission against the interest is relevant and admissible evidence, (See Ojiegbe & ors. V. Okwaranjia & ors. (1962) All NLR 605 2 SCNLR 358). DW2 was not treated as a hostile witness; in the circumstance, the evidence must be treated as an admission upon which the plaintiff’s are entitled to rely as further reinforcement of his claim”.
Tabai JSC expressed the same principle in these picturious way:
”That the only evidence specifically is that, under cross examination which stated in unequivocal terms, rather it is a contradiction of the entire case of the defendants/Appellants and pointed in support of the Respondent’s case and which ought to be accorded its proper weight”.
The learned Counsel for the Appellant submits that ”the kernel of the petition of the Appellants was hinged on the fact that there was non-voting in Abi and Yakurr Local Government Area that constitutes the Abi/Yakurr Federal Constituency.”
The only live issue in contention before the Tribunal was the issues relating to complaints in respect of the few remaining paragraph of the petition relating to Abi Local Government Area. Elections having been shown to have held in Yakurr.
The evidence of PW12 which the Appellants have made so much fuss and heavy weather about is in respect of Yakurr LGA where they have already admitted that election took place. That admission supports the pleadings of the Respondents. The evidence of PW12, which is basically hearsay evidence, does not relate to the remaining portions of the petition which relates to Abi LGA. For clarity, the Federal Constituency in contention is made up of Abi and Yakurr Local Government Areas, The learned Counsel for the 1st Respondent exposed the feather weight of the PW2’s evidence in these terms:
”1. Paragraphs 10, 11, 12, 20, 28 and 30 of the petition were struck out by the lower Tribunal on 14/9/2011 during the pre-hearing session;
2. Paragraphs 15, 16, 17, 18, 19, 22, 24, 25 and 33 of the petition were abandoned by the Petitioners/Appellants in paragraph 4.3 of their final written address at the Tribunal; (See page 788 of the record); and
3. The Petitioners/Appellants again conceded to the fact that the election took place in Yakurr Local Government Area, which is one of the two Local Government Areas that constitutes the Abi/Yakurr Federal Constituency; (See paragraph 4.6 of the Petitioners’ final address at page 790 of the record)”.
The learned counsel to the Appellants narrowed down the areas in contention at the Tribunal, when he identified what he termed “constitute the driving force of the petition” to be paragraphs 7, 8, 14, 21, 29, 31, 34 and 35 of the petition. (See paragraphs 4.5 of the Petitioners’ final address at page 788 of the record). He called only 4 witnesses to prove the allegations in those paragraphs. The witnesses are:
1. PW4 Mr. Audu Egbe Iyoli, who assumed the alphabets BC and adopted the written statement on oath of BC (See page 20 – 21 of the record).
2. PW5 Imoke David Cyprian, who assumed the alphabets CD, testified on 21/9/2011 and adopted the written statement on oath of CD, which is at pages 22-23 of the record;
3. PW6, Ese Ezeoke Ese, who assumed the alphabet EF, testified on the same date 21/9/2011 (See page 7 of the supplementary record of appeal) and adopted the written statement on oath of EF (See pages 26-27 of the record) and
4. PW7, Bassey Ene Ekpo, who assumed the alphabets DE, also testified on 21/9/2011 (See page 8 of the supplementary record of appeal) and adopted the written statement on oath of DE, which is at pages 24 – 25 of the main record.
The statements of these witnesses were merely one statement encircled among the witnesses with a few obvious variations.
I agree with the Respondents that the testimonies of the witness are worthless as the evidences are stereotype, hearsay and same out rightly contradictory and not worthy of belief some extract may amplify the points.
The PW4 in his evidence said he moved around all the polling units in the two council wards of Imabana 1 and 2 and found that there was no voting in the wards ”instead canopies were erected where food, drinks, money, rice, salt, magi etc were shared to voters while ballot papers were taken to place other than polling units and thumb printed and stuffed into ballot boxes”.
Under cross-examination on page 6 of the supplementary record of appeal he said ”I was one of the polling agents. I was assigned to Emotomozo polling booth… We were not authorized to leave our polling booths on the day of election… I was there at my polling booth because I was not authorized to leave the place.”
The PW5 gave the same evidence of moving around all the polling units and saw ”jamboree instead of voting”. However under cross – examination he said at page 7 of the supplementary record ”I did not visit that unit, I did not visit all the units in Ekureku ward 1 and 2”
He too contradicted himself when he, contrary to his evidence in chief claimed he went round all the polling units in Ekureku ward 1 and 2.
Evidence as to what took place or did not take place at any or all polling units are very material and any conflict in such evidence is fatal and go to the root of such evidences and thereby inflicting a serious dent on the weight. No wonder the Tribunal refused to believe these witnesses. In the case of EZEMBA V. IBENEME (2004) 14 NWLR (Pt. 894) 617 at 654 per Edozie JSC ”No witness who has given on oath to material of inconsistent evidence is entitled to the honour of credibility. Such a witness does not deserve to be treated as a truthful witness”.
PW 6 & 7 gave evidence of what they purportedly saw on the Election Day as contained in their evidence in chief. However under cross-examination PW6 said on page 6 of the supplementary record of appeal that “Agents were appointed for each of the polling unit by our party. I was not one of those agents. All the agents told me that there were no elections in their polling booths. I left my unit in the morning at 8.30. I was not at my unit during accreditation”.
Also PW7 said the agents reported to her what happened in their polling booths as that is their duty. The evidence adduced gave impression of what they all saw but under cross-examination they all admitted that their evidences were told to them.
In Buhari V. Obasanjo (2005) 7 NWLR (Pt 910) 241 at 435. It was held that:
”Hearsay evidence is inadmissible and it need not to be confronted before it is expunged it is expunged from the record of the court”.
(See also Okpara v. Federal Republic of Nigeria (1977) NSCC 166 and Management Enterprises v. Otusanya (1987) NSCC 577. (See Ojukwu V. Onwudiwe (1984) SCNLR 247).
The Tribunal was therefore right when it found that the Appellants failed to prove their case.
Indeed none of the witnesses in Abi Local Government gave evidence of the voters register not being ticked or ticked in any manner. None of them gave evidence of stamping or none stamping of result sheets, unsigned ballot papers.
Further not one of them gave evidence touching on Forms EC8A, EC8B, EC8C, EC8D & EC8E. Much less of the errors and irreconcilable figures in them. It is now firmly settled that where there is no evidence in support of pleadings, the pleading is deemed abandoned.
In finding and holding against the Appellants, the Tribunal was very clear in terms which disclose industry and experience. Their lordships held:
”The evidence called by the Petitioner to prove the non-holding of election in Abi Local Government Area on the election day; 26th April, 2011 to the Federal House of Representatives in the Abi/Yakurr Federal Constituency is hollow and has failed to prove the Petitioners assertion in that regard in the petition. The Petitioners are required to succeed on the strength of their own case and not on the weakness of the Respondents defence, if any. (See Igwe V. ACB Plc (1999) 6 NWLR (Pt. 605) 1.” (P. 855-856 or the record).
As to the issue of Appellants abandonment of complaint against the Abi/Yakurr Federal Constituency, the Tribunal held that:-
It is clearly established on the available evidence before the Tribunal that of the 10 wards constituting Abi Local Government Area election held in substantial compliance with the Electoral Act and the manual for conduct of the election in Ediba/Anong, Usumutong/Adeugo, Ebom/Ebijakara and Igosigoni/Afafanyi in respect of which the Petitioners called no witness nor led evidence and since from the pleadings and the evidence of the witnesses called by the Petitioners nothing is said regarding these wards concerning non-conduct of election thereat. The four witnesses called by the Petitioners only gave evidence in respect of Itigidi, Ekureku 1, Ekureku 2, Imabana 1, Imabana 2, and Adadama. Even in respect of these wards PW4 stated in paragraph 4 of his witness statement that he went round all the polling unit in Imabana 1 and Imabana 2 in the morning of April, 26th, 2011 but when he was cross-examined he stated that he did not visit the other 18 polling units that made up Imabana 1 and Imabana 2 wards as he remained all through the election at Amotomotu polling unit where he was assigned to monitor the election as polling agent for his party AACN. Similarly, the PW5 who confirms that Ekureku 1 and Ekureku 2 have 18 polling units and that his party had polling agents in each of them, however, said that he was not one of the polling agents. He admitted that he did not visit all the units in Ekureku 1 and Ekureku 2 ward but he could not name the polling units he visited. PW6 stated in paragraph 4 of his written deposition that he also went round the two ward of Ekureku 1 and Ekureku 2 but under cross-examination he said that he was not a polling agent and was not at all at his polling unit during accreditation. He could then not vote in the absence of his being accredited. We accept the submission of the learned counsel to the end and 3rd Respondents that both PW5 and PW6 have failed to prove non-conduct of election in these areas just like PW4 has failed to prove in Imabana 1 and Imabana 2. PW2 who said that he went round all the polling units in Itigidi and Adadama ward of Abi Local Government Area on the Election Day admitted that during cross-examination that he was not a poling agent of his party. He went to INEC Office but could not state when he came back to the wards to observe the conduct or non-conduct of election thereat. Under the circumstances we agree with the learned Counsel to the 2nd 3rd Respondents that the Petitioners have failed to prove the allegations in paragraphs 7, 8, 14, 21, 31, 34 and paragraphs 35 of the petition. Again we find that the Petitioners have asserted non-conduct of election in Abi Local Government on 26th April, 2011 in their pleadings but have failed to prove same and on the authority of Chime v. Ezea (2010) 6 EPR 353 at 415 paragraph B-F cited in the 2nd and 3rd Respondents’ address their petition fails and is to be dismissed. (P. 853-855 of the record).
In view of this detailed and skillful analysis of the materials placed before the Tribunal, I find no good reasons to overturn the decision of the learned members of the Tribunal.
I find no merit in this appeal which is hereby dismissed.
A cost of N30, 000.00 is hereby ordered against the Appellant and in favour of the 1st Respondent. It is hereby so ordered.
OYEBISI FOLAYEMI OMOLEYE, J.C.A: I have read in advance the leading judgment delivered by my learned brother, M.B. Dongban – Mensem, JCA. I agree with the line of reasoning and conclusions therein. I would myself dismiss both the preliminary objection of the 1st Respondent questioning the competence of this appeal and the appeal itself for the reasons contained in the said leading judgment.
MOORE A.A. ADUMEIN, J.C.A: I read before now the draft of the judgment just delivered by my learned brother, DONGBAN-MEMSEM (JCA). His Lordship has carefully and rightly analyzed and resolved the issues for determination in this appeal.
The National and State Assembly Election Petition Tribunal, under the Chairmanship of NABARUMA, J. sitting in Calabar, Cross River State rightly dismissed the appellants’ election petition based on the pleadings of the parties and the evidence adduced by them. The duty of assessment and evaluation of evidence is the primary responsibility of a trial court or a trial tribunal. An appellate court will only interfere or intervene where the trial court or tribunal failed to perform its primary function or where the findings are wrong, perverse or cannot be supported by the evidence before it. In the present case, the tribunal meticulously evaluated the evidence before it, made proper findings and arrived at an unimpeachable conclusion that the appellants’ election petition lacked merit and rightly dismissed it. I find no basis to disturb the decision of the election tribunal.
It is for the foregoing reasons and the very elaborate reasons given by my learned brother that I also find no merit in this appeal. I dismiss the appeal with the sum of N30, 000.00 costs in favour of the 1st respondent against the appellants.
Appearances
For Appellant
AND
For Respondent
