HON. CHUKWUMAEZE NZERIBE & ANOR V. ANDY EMMANUEL UBA & ORS
(2012)LCN/5672(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of November, 2012
CA/E/EPT/24/2012
RATIO
“It is not in anyway in doubt that Prince Nicholas Ukachukwu was alleged of bribery, thuggery, disruption of election and beating up of voters, all of which are criminal in nature and must by virtue of Section 135(1) of Evidence, 2011 be proved beyond reasonable doubt. It is the law that the standard of prove of a criminal allegation even when it is made in a civil case including election petition is beyond reasonable doubt. See OMOBORIOWO V. AJASIN (1984) SCNLR 108; NWOBODO V. C.C. ONOH (1984) 1 SCNLR 1.” Per AKEJU, J.C.A .
“The criminal acts alleged by the appellants were obviously not committed by the respondents and under our system of criminal justice; the respondents cannot be punished for the offence allegedly committed by Nicholas Ukachukwu. See ANAZODO V. AUDU (1999) 4 NWLR (PT. 600) 539: ESEDUWO V. I.N.E.C. (1999) 1 NWLR (PT. 226) 474. To warrant the infliction of punishment on the respondents (especially the 1st respondent) for the offence of Ukachukwu the appellants must show satisfactorily that the said Ukachukwu carried out the crime at the instance of the 1st respondent or with his authority. Having found the allegations unsubstantiated against the respondents, and the name of Ukachukwu having earlier been struck out, the Tribunal struck out the pleadings and evidence of the petitioners relating to the allegation. The Tribunal expressed that it followed the decision of this court in HARUNA V. MODIBBO (2004) 16 NWLR (PT. 100) 487.” Per AKEJU, J.C.A
“There is no doubt that by Sections 131 – 134 of the Evidence Act, 2011, the burden of proving their assertions is firmly on the petitioners. The law is that it is he who asserts that bears the burden of proving that assertion. The petitioners like a plaintiffs in any civil action has the burden to show that they are entitled to the reliefs they have sought, and this burden does not shifts until after he has established his case. Where the plaintiff or petitioner fails to prove the reliefs he has sought, his case is bound to fail. See ATTORNEY GENERAL OF ANAMBRA STATE V. ONUSELOGU ENT. LTD. (1987) 4 NWLR (PT. 66) 547; NIMANTEKS ASSOCIATE LTD. V. MARCO CONSTRUCTION CO. LTD. (1991) 2 NWLR (PT. 174) 411; ARCHIBONG V. ITA (2004) 1 SCNJ 141; UDIH V. UDEMUDIA (1998) 3 SC 50; OLUFOSOYE V. FAKOREDE (1993) 1 NWLR (PT. 272) 747.” Per AKEJU, J.C.A
COURT: DUTY OF THE COURT: WHICH COURT HAS THE DUTY OF EVALUATING EVIDENCE
“The fundamental principle on evaluation of evidence is that it is the duty of the trial court to evaluate the evidence adduced before it. The trial court is primarily endowed with the opportunity of seeing the witnesses, hearing them testify and observing their demeanour. That advantage is always conceded to the trial court and an appellate court that lacks such an opportunity will be very slow in interfering with the findings of the trial court on the evidence and the ascription of probative value thereto. The appellate court will only interfere with such finding where they are perverse or occasion a miscarriage of justice. See BUHARI V. INNEC (2009) ALL FWLR (PT. 459) 419; BALOGUN V. AGBOOLA (1974) 1 ALL NLR (PT. 2) 66; OGBECHE V. ONOCHIE (1988) 1 NWLR (PT. 470) 370; MORENIKEJI V. ADEGBOSIN (2003) FWLR (PT. 163) 45; AKIBU V. OPALEYE (1974) 11 SC 189.” Per AKEJU, J.C.A
JUSTICES
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
AYOBODE O. LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1. HON. CHUKWUMAEZE NZERIBE
2. ALL PROGRESSIVE GRAND ALLIANCE Appellant(s)
AND
1. ANDY EMMANUEL UBA
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the National Assembly/Legislative Houses Election Petition Tribunal, sitting at Awka, Anambra State delivered on 3rd October, 2012 in respect of Election Petition No. EPT/AN/NAE/SE/04/2012 filed by the Appellants on 7th April, 2012.
The 3rd respondent had conducted an election (re run) into the Senatorial Seat of Anambra South Senatorial District on 20th March, 2012 at which the 1st Appellant and the 1st respondent were candidates. The result of the election as announced by the 3rd respondent and as pleaded in paragraph 7 of the petition shows that 1st respondent was credited with the highest votes of 42,804 while the 1st appellant was credited with 40,678 votes. The 1st respondent was therefore declared by the 3rd respondent as the winner of the election and duly returned.
The appellant’s, who were dissatisfied, challenged the declaration of the 1st respondent and his return as the winner of the election on the grounds;
“(a) That the 1st Respondent was at the time of the election not qualified to contest the election as he was not sponsored for the election by either the 2nd respondent or any political party in accordance with the requirements of Sections 65 (2)(b) and 221 of the 1999 Constitution (as amended) and Section 31 (1) of the Electoral Act 2010 (as amended).
(b) That the election held in Osumenyi Wards 1 and 2, Uga Wards 1 and 2 and Polling Units Nos. 014 of Uli Ward 2,015 and 016 of Otiogbata Hall and 021 of Ugwunwocha in Uga was invalid by reason of corrupt practices and substantial noncompliance with the provisions of the Electoral Act (as amended).
(c) That the 1st Respondent was not duly elected by majority of lawful votes cast at the election as it was the 1st Petitioner who polled majority of the lawful votes cast at the election”.
By paragraph 18 of their petition, the appellants had prayed the Tribunal to determine that;
“(i) The 1st Respondent was not qualified to contest the election having not been sponsored for this election by any political party and therefore his declaration and return as the winner of the questioned election is unconstitutional, null and void. The certificate of return issued to the 1st Respondent by the 3rd Respondent be and is hereby set aside.
(ii) The 1st Petitioner ought therefore in the circumstances to have been and is hereby declared elected. The 3rd Respondent be and is hereby ordered to issue a fresh certificate of return to the 1st Petitioner.
ALTERNATIVELY
(iii) The 1st Respondent was not duly or validly declared elected or returned as he did not poll the majority of valid votes cast at the questioned election and his purported declaration and return as the winner of the election is hereby nullified.
(iv) The election conducted in Osumenyi Wards 1 and 2, Polling Units 014 in Umuchima Primary School of Uli Ward 2, Units 015 and 016 in Otiogbata and Unit 021 at Ugwunwocha Uga be and is hereby nullified having been in substantial noncompliance with the electoral Act 2010 (as amended).
(v) The 1st Petitioner is the Winner of the Anambra South Senatorial Election that took place on 20/3/2012 and is hereby declared elected. The 3rd Respondent is hereby ordered to issue a fresh certificate of Return to the 1st Petitioner and the certificate of return wrongfully issued to the 1st Respondent by the 3rd Respondent is hereby set aside”.
The Respondents filed their respective Replies to the petition while the Appellants also filed Replies thereto and after the pre trial conference and report thereof, the trial of the Petition commenced on 31/7/12 with parties (except 2nd respondent) calling witnesses and tendering exhibits at the trial in proof of the petition or in defence thereof. In the judgment delivered on 3rd October, 2012, the Tribunal dismissed the petition.
It is noted that originally the three grounds earlier set out in this judgment were the grounds for the petition. However, upon the objections of the respondents at the pre-trial conference, ground (a) of the petition alleging in the main that the 1st respondent was not qualified to contest the election was struck out by the tribunal in the ruling of 6.7.2012 while some paragraphs of the petition were also struck out. It is also note worthy that the name of one Prince Nicholas Ukachukwu who was made the 4th respondent at inception of the petition was struck out.
The Petitioners (who are now appellants) felt dissatisfied with the final decision of the Tribunal and filed a notice of appeal on 18th October, 2012 with 16 grounds of appeal. In pursuance of the appeal and in consonance with the relevant provisions of the Election Tribunal and Court Practice Directions 2011, the parties to this appeal filed and exchanged their Briefs of Argument.
The Appellants’ Brief of Argument dated 31st October 2012 and filed the same date was prepared by Mrs A.J. Offiah SAN while the 1st Respondents’ Brief authored by Athur Obi Okafor, SAN was filed on 7th November, 2012. The 2nd Respondents’ Brief of Argument was prepared by J.T.U. Unodum Esq, SAN and filed on 9th November, 2012. The 3rd Respondents’ Brief filed on 6/11/12 was settled by S.O. Ibrahim Esq, Chief Legal Officer, INEC. The Appellants filed Reply Briefs to the briefs of the respondent on 12/11/12 (for 1st and 3rd Respondents’ Brief and 16/11/12 for the 2nd Respondents’ Brief.
When this appeal was heard on 19th November 2012, the parties were represented by their learned Counsel, all of who adopted and relied on their above stated Briefs of Argument. The Senior Counsel for the appellants, Mrs. A.J. Offiah who led other Counsel urged this court to allow the appeal. Messrs Athur Obi Okafor and J.T.U. Unodum, Senior Advocates of Nigeria and leading counsel for the 1st and 2nd respondents respectively as well as F.O. Ibrahim Esq. for 3rd respondent with who other Counsel appeared all urged that the appeal be dismissed and the judgment of the Tribunal upheld.
In the Appellants’ Brief of Argument, the following issues were formulated for determination of the appeal;
(i) Whether having regard to the copious evidence of violence over-voting, corrupt practices and substantial non-compliance with the Electoral Act laid before it, the Honourable Tribunal was right in dismissing the petition in its entirety? (Grounds 1, 15 and 16).
(ii) Whether the Hon. Tribunal was right not to have nullified the election in Osumenyi Ward 2 Uga Ward land Polling Unit no. 014 Umuchima Primary School of Uli Ward 2 on the ground of corrupt practices and/or substantial non-compliance with the Electoral Act 2010 and declare the 1st Appellant the winner of the election rather than reject the evidence of PW7? (Grounds 2, 3, 6, 9, 11 and 14).
(iii) Whether the Hon. Tribunal was right to have used Exhibits CN 93 and CN 133 for a completely different purpose from that for which they were tendered without considering the purpose for which they were tendered? (Ground 4).
(iv) Was the Hon. Tribunal right in holding that 4,216 ballot papers were issued to Osumenyi Ward 2 with Exhibit CN 125 without considering the available evidence and submissions of the Appellants that the serial numbers of only 2117 ballot papers are contained in the self same Exhibit CN 125? (Grounds 5, 7 and 10).
(v) Was the Hon. Tribunal right in all the circumstances of the petition to have suo motu struck out the pleadings and evidence of substantial non-compliance with the Electoral Act 2010 relating to the criminal conduct of Prince Nicholas Ukachukwu during the questioned election? (Ground 8).
(vi) Was exhibit CN 125 which was not front loaded by any of the Respondents as required by paragraph 41 (8) of the 1st Schedule to the Electoral Act 2010 (as mended) admissible in evidence? (ground 12).
(vii) If the answer to issue 6 is in the affirmative? Then was the Hon. Tribunal right in the circumstances of the petition to have accorded it probative value and preferred it to exhibit CN 80? (Ground 13).
The 1st Respondent distilled the issues for determination to be;
(i) Whether the Tribunal below was right in refusing to annul the results of the election in respect of the Polling Unit 014 Umuchima Primary School, Uli Ward II, Polling Units 015 and 016 Otiogbata Primary School, Uga Ward II and the collated result in form EC8B in respect of Uga Ward II.
(ii) Was the Tribunal below right in its admission of exhibit CN 125 (the list of SPOs) and the use to which it put the said Exhibit as against Exhibit CN 80?
(iii) Whether the Tribunal below was right in refusing to give credence to the evidence of Edet C. Okon and Otu Johnson Otu or “Out Johnson Out” and also in refusing to ascribe probative value to exhibits CN 74 and CN 75.
(iv) Whether the lower Tribunal was right in the manner in which it used exhibits CN 93 and CN 133 setting aside the results for Umuoma village hall unit 005 and Umuagu/Uhume village hall Unit 013.
(v) Was the learned Tribunal right in striking out the paragraphs of the petition in which allegations were made against Prince Nicholas Ukachukwu whose name had earlier been struck out in the petition?
(vi) Was the decision of the tribunal below not to annul the results of the election in Osumenyi Ward II supported by evident and justified?
(vii) Was the court below right in dismissing the Appellants’ Petition?
The 2nd Respondent had set down the following as the issues for determination;
(a) Whether the Tribunal was right to have struck out the pleadings and evidence concerning the alleged criminal activities of Prince Nicholas Ukachukwu (Ground 8).
(b) Whether exhibit CN 125 was admissible in evidence and/or of any probative value vis-a-vis other related documentary evidence (Grounds 5, 7, 10, 12 and 13).
(c) Whether the Tribunal gave due consideration to exhibits CN 93 and CN 133 (Ground 4).
(d) Whether the Tribunal was right to have upheld the election in Osumenyi Ward 2, Uga Ward I and Polling Unit 014 Umuchima Primary School of Uli Ward 2 (Grounds 2, 3, 69, 11 and 14).
(e) Whether the tribunal rightly held that the appellants failed to prove their case (Grounds 1, 15 and 16.
The lone issue distilled by the 3rd respondent for the determination of the appeal is;
Whether from the state of pleadings and evidence adduced by the parties the Tribunal did not properly consider and evaluate the evidence of the witnesses to the parties inclusive of documentary evidence in holding that the Appellants failed to prove all sundry allegations contained in their joint petition and accordingly dismissed the petition (Grounds 1, 3, 15 and 16).
On issue one in the Appellants’ Brief; the Senior Counsel had submitted that a court or tribunal has the duty to consider the totality of evidence adduced in the case on basis of the facts and relevant laws before arriving at its decision. The court must follow the guidelines laid down by the Supreme Court in ODOFIN & ORS V. MOGAJI & ORS (1978) 2 NSCC 275: EKETSU V. OYOBEBERE (1992) 9 NWLR (PT. 226) 438: AKOMOLAFE V. GUARDIAN PRESS LTD. (2010) 1 SC (PT. 1) 58 as well as the decisions of this court in BAMIGBOSE V. OLANREWAJU (1991) 4 NWLR (PT. 184) 132: DAGASH V. BULAMA (2004) 14 NWLR (PT. 892) 144.
It was contended that the Tribunal disregarded these laid down guidelines and failed to weigh the totality of the evidence and accredit the appellants with the facts established through the cross examination of their opponents’ witnesses or evidence of such witnesses that supported the petition which failure occasioned a miscarriage of justice.
The Senior Counsel contended that the summary of the essential pleadings of the appellants captured in their written final address is that the election in Osumenyi Wards 1 and 2, Uga Ward 1 and 2 and Polling Unites 014 at Umuchima Primary School Uli Ward 2, 015 and 016 of Otiogbata Hall and 021 of Ugwunwocha in Uga ought to have been nullified for reason of invalidity as a result of corrupt practices and substantial non-compliance with the Electoral Act 2010. If this had been done and the election in the remaining part of the Senatorial Zone were computed, the 1st appellant would have emerged victorious having scored majority of the valid votes.
It was contended also that the Collation Officer of Ihiala Local Government Area omitted five votes polled by the appellants in Amamu Ward 1 in the process of collating the result in the ward from Form EC8B into Form EC8C of the Local Government Area. It was argued that whereas only 2,500 ballot papers were issued for Osumenyi Ward 2 in Nnewi South Local Government Area, a total of 2,662 votes were polled by the parties which showed a clear case of over voting or over balloting; that Form EC8B of the Ward was signed by one Mr. Ikechukwu Ogbonna who was not the agent of the appellant; that Prince Nicholas Ukachukwu, a PDP Chieftain brought thugs who massively rigged the election; that there was no accreditation and voting in Polling Unit 014 at Unit 014 at Umuchima Primary School, Uli Ward 2 whereas the 3rd respondent declared a result for the Unit with 81% voter turn out; and that election in Uga Wards 1 and, 2 was marred by violence, corrupt practices and other electoral irregularities.
The Senior Counsel referred to the evidence of the 1st appellant who testified as PW9, and who tendered exhibits CN 2 – CN 81 exhibits CN 72 and CN 73 being letters of appointment of SPO who conducted the election in the Senatorial Zone (Edet C. Okon) and the SPO of Osumenyi Ward 2 (Out Johnson Out) respectively while exhibit CN 74 is the true copy of the report of Edet Okon on the election, and exhibits CN 37 and CN 38 were Forms EC8B of Osumenyi Wards 1 and 2 showing that the total votes polled was 2, 924 out of which the 1st respondent scored 2,707 while the 1st appellant got 124. Exhibits CN 47 and CN 48 were Forms EC8D and EC8E which showed that the final result of the election crediting the 1st respondent with 42,804 votes while 1st appellant was credited with 40,678 votes, a difference of 2,168 votes.
It was submitted that all these exhibits were public documents that were admissible on mere production as decided in DAGASH V. BULAMA (2004) 14 NWLR (PT. 892) 144.
The evidence of PW7 who tendered exhibit CN 1, a VCD of what she recorded during the election as a journalist, and the evidence of PW2, PW3, PW4, PW5, PW6 and PW11 who testified on the conduct of Prince Nicholas Ukachukwu who drove round and committed criminal acts in different units of Osumenyi Ward 2 during the election as well as the evidence of PW10 that ballot papers issued to SPO of Osumenyi Ward 2 were 2,500; and the evidence of PW1 and PW8 who testified that no accreditation or voting took place at unit 014 of Umuchima Primary School Uli Ward 2, for the reason that election materials were not supplied, but inspite of which results were declared for the unit as in exhibits CN 40A and CN 40B were referred to.
Further it was contended that the PW9 tendered Forms EC8B for Amamu Ward 1 and Form EC8C of Ihiala Local Government Area as exhibits CN 39 and CN 41 to show that while the 1st appellant scored 1868 votes in Amamu Ward 1, 1863 votes were recorded for him a short fall of five votes but this evidence was not evaluated by the Tribunal.
The evidence of RW 7 and RW 11 which were produced by the respondents to counter the allegation that 2500 ballot papers were issued to the SPO of Osumenyi Ward 2 was also referred to. It was contended that though 4216 was written on exhibit CN 124 tendered by RW7, as the Form EC25A he allegedly used in collecting election materials from RW 11, the Electoral Officer of Nnewi South Local Government Area, a reading of the serial number shows that only 2117 ballot papers were covered by exhibit CN 124. For this reason of this discrepancy exhibit CN 124 is irregular and not entitled to the presumption of regularity which has been debunked or rebutted, but on the other hand the exhibit (CN 124) supports the evidence of over voting or over balloting alleged by the appellants and a case of noncompliance with the Electoral Act which is substantial.
It was submitted that if the Tribunal had evaluated exhibit CN 124 by reading the serial numbers of the ballot papers therein its verdict on over voting would have been different, citing IMAM V. SHERIFF (2005) 4 NWLR (PT.914) 80; ARAKA V. EJEAGWU (2000) 12 SCNJ 206: OVUNWO V. WOKO (2011) 6-7 SC (PT. 1) was cited to submit that a court has the duty to consider all the issues placed before it for consideration, but the Tribunal in the instant petition failed to pronounce on the effect of the serial numbers of ballot papers being less than the number of ballot papers stated in exhibit CN 124.
The failure of the Tribunal to evaluate the submission of the Counsel on the evidence of RW 1 that it took one minute to be accredited was also raised by the Senior Counsel. It was then submitted that without accreditation there cannot be valid votes and any result declared without accreditation of the voters is null and void; OGBORU V. UDUAGHAN 2011) 2 NWLR (PT. 1232) 538; DIN V. AFRICAN NEWSPAPER OF NIG. LTD. (1990) 5 SCNJ 209 was cited to submit that the appellants could rely on the evidence of admission of a fact extracted from the adverse party under cross examination to discharge the burden of proof on them.
It was contended that the appellants’ case of substantial noncompliance with Electoral Act in Uga Ward 1 based on Form EC8B of the ward which failed to indicate the polling units from which the result stated therein emanated was not evaluated. The Senior Counsel conceded that the result was not tendered as an exhibit before the Tribunal, but that the document formed part of the records having been front loaded by the 1st respondent as part of the pleadings and the Tribunal was invited to evaluate the document. It was submitted upon reliance on the decision in AGAGU V. MIMIKO (2005) 7 NWLR (PT. 1140) 342 that a document attached to a pleading forms part of the pleading and a party can rely on averment contained in the opponents’ pleading.
According to the learned Senior Advocate, the front loading by the 3rd Respondent of the invalid result of the election in the Ward is tantamount to an admission.
It was then submitted that a court has the duty to pronounce on all issues properly raised by the parties and upon failure to do so, the appeal court is in a good position to determine such issues, citing KOLAWOLE V. FOLUSO (2009) 8 NWLR (PT. 1143) 338; DAGASH V. BULAMA (SUPRA) and OGBORU V. IBORI (2005) 13 NWLR (PT.942) 319.
We were urged to invoke the powers of this court under the relevant sections of the Court of Appeal Act 2004, and the Court of Appeal Rules 2011 to evaluate the evidence adduced by the appellants as well as those extracted under the cross examination of the respondents witnesses or the evidence of respondents witnesses that support the appellants’ case and make the orders the Tribunal had failed to make in the interest of justice.
According to the SAN, the Tribunal failed to evaluate the evidence of non-compliance with the Electoral Act in respect of the Polling Unit 013 of Umuagu/Uhume village Hall in Osumenyi Ward 2 as evidenced by exhibit CN 133 that whereas no person came out to vote in that unit, the 1st respondent was credited with 127 votes as in exhibit CN 14. There was also unacceptably high voters turn out in the polling units in Osumenyi Ward 2; there was arbitrary ticking of voters register in polling units 008 at Adikpi village Hall, and others as well as the alteration of score of the appellants by RW 10 on exhibit CN 18.
On the whole it was submitted that the judgment of the Tribunal was against the weight of evidence accepted by the Tribunal and this has occasioned a miscarriage of justice.
Appellants’ second issue is whether the Tribunal was right not to have nullified the election in Osumenyi Ward 2, Uga Ward 1 and Polling Unit No. 014 Umuchima Primary School of Uli Ward 2 on the ground of corrupt practices and substantial non-compliance with Electoral Act 2010 and declare the 1st appellant the winner of the election rather than reject the evidence of PW7.
It was submitted that evidence related to a matter in controversy that has not been successfully debunked or controverted is good and credible evidence that should be relied upon by a trial judge, citing ARABAMBI V. ADVANCE BEVERAGES IND. LTD. (2005) 19 NWLR (PT. 959) 1.
It was contended that the case of the appellants was credible enough to have earned the favour of the Tribunal as it has been held that a trial court is not entitled to ignore credible evidence and rely on its own idea to arrive at perverse findings, citing NWOKEDI V. ORAKPOSIM (1992) 4 NWLR (PT. 233) 120: SUNDAY DARIDANY V. THE STATE (1994) 1 NWLR (PT.320) 250.
There was, according to the Senior Counsel ample credible evidence to substantiate that the election in Osumenyi was flawed on grounds of over voting, electoral violence by Prince Ukachukwu and other elements of noncompliance with the Electoral Act 2010. Exhibits CN 74, CN 75 and CN 124 have established over voting with oral evidence of the witnesses but the Tribunal failed to nullify the election on that ground. The appellants’ case is that there was a difference between the number of ballot papers released for the conduct of the election in the ward and the votes returned which shows over voting and if the election in the ward is nullified the 1st appellant will emerge the winner of the election with majority of the votes cast.
It was contended that the Tribunal rather than accord exhibits CN 74 and CN 75 their deserved probative value relied on non-appearance of the makers to give evidence notwithstanding that in law a certified copy of a public document which they are is presumed to be authentic, and once properly admitted, should be acted upon. In the absence of any credible evidence in rebuttal the Tribunal preferred to rely on exhibits CN 2 – CN 36, which are polling units results of the election in Osumenyi Ward 1 and 2 despite the serious doubts cast on exhibits CN 2 – CN 23 in respect of Osumenyi Ward 2.
According to the Senior Counsel, the Tribunal was wrong to have discountenanced the allegations made against Prince Ukachukwu in the petition in respect of Osumenyi as he was, by being made a party given opportunity to defend the allegations but failed to utilize same by not opposing an application to have his name struck out, and his failure to appeal against the decision; EZEIGWE V. NWAWULU (2010) 4 NWLR (PT. 1183) 159.
It was contended that exhibit (CN 124 tendered by RW 7 shows that it was used to issue 2117 ballot papers, which evidence was overlooked by the Tribunal being an admission that there was over voting in Osumenyi Ward 2, where a total of 2,924 votes was declared in excess of the ballot papers issued for the ward.
On Uga Ward 1, it was submitted that the Tribunal ought to have nullified the election in that Ward on the basis of corrupt practices and non-compliance with Electoral Act as established through the evidence of the PW7 and exhibit CN 1 on corrupt practices which evidence was rejected by the Tribunal. The Tribunal failed to refer to the allegation by PW 7 that she was beaten up and her dress torn by the agents of 1st and 2nd respondents; and that piece of evidence was not evaluated or that the Tribunal was biased in its evaluation of the evidence of PW 7. On the wrongfulness of a Tribunal rejecting evidence of a witness, the case of AJIBOLA V. AJADI (2004) 14 NWLR (PT. 892) 14 was cited.
According to the Senior Counsel, the evidence of substantial noncompliance with Electoral Act in respect of Uga Ward I also exists on Form EC8B front loaded by the 3rd respondent which appellants presented to the Tribunal in the final address but which the Tribunal failed to consider and pronounce upon. It was submitted that a court is entitled to look at a document in its file and use its content in the resolution of the matter before it in the interest of justice; citing AGBAISI V. EBIKOROFE (1997) 4 NWLR (PT. 502) 630 and NWANKWO V. NWANKWO (1993) 5 NWLR (PT.293) 291.
The allegation of no accreditation and voting at Polling Unit 014 at Umuchima Primary School, Uli Ward 2 was according to the SAN proved through PW1 and PW8 and the supportive evidence of RW 1 under cross examination that it took one minute for him to be accredited. Evidence of admission extracted from an adverse party under cross examination suffices to discharge the burden of proof on the party who asserted same; BIN V. AFRICAN NEWSPAPER OF NIG. LTD (1990) 5 SCNJ 209.
It was contended that if the Tribunal had nullified the election in Osumenyi Ward 2, Uga Ward 1 and Polling Unit 014 at Umuchima Primary School in Uli Ward 2, and computed the remaining result of the Senatorial election, the 1st appellant would have polled the majority of lawful votes cast at the election; NGIGE V. OBI (2000 14 NWLR (PT. 999) 1: SAM V. EKPELU (2000) 1 NWLR (PT. 642) 592.
In its issue number 7, the 1st respondent had contended that the Tribunal was right in dismissing the case of the appellants and consequently that this appeal should be dismissed.
Specifically however the 1st respondent has raised and argued the failure of the Tribunal to annul the results of the election in respect of Polling Unit 014 Ugwunwocha Primary School, Uga Ward II as issue number one in his brief.
The Senior Counsel for the 1st respondent contended that the complaints of the appellants against the election are specifically in respect of Umuchima Primary School Polling Unit 014, Uli Ward II; Polling Units 015 and 016 Otiogbata Hall in Uga Ward 1; and Polling Unit 021 of Ugwunwocha in Uga II.
On Polling Unit 014 of Uli Ward II, the Senior Counsel contended that the appellants had complained that there was no election in this unit due to non-supply of election materials and that voters dispersed after waiting in vain for election materials and the electoral officers while the high turn out of the voters was also questioned on the ground that none of the candidates hailed from the community.
The two witnesses that testified in respect of these allegations in this unit were PW1 and PW9. The PW1 had no business with the election in that unit not being polling agent and not being accredited to work as party supervisor. The PW9 tendered the copy of the polling Unit result and true copy of original result sheet of the unit as exhibit CN 66 and exhibit CN 40 respectively. The PW8 an agent of Appellants who also testified stated that there was no election in that Unit due to non availability of electoral materials. It was submitted that the appellants have a duty to call at least one voter to testify that he was prevented from casting his vote because there was no election; AYOGU V. NNAMANI (2006) 8 NWLR (PT. 981) 160. It was also contended that the appellants have the duty to tender the voters register for the unit; AWUSE V. ODILI (2005) 6 NWLR (PT. 952) 416: ANDU V. INEC (NO. 2) (2010) 13 NWLR (PT. 1212) 456.
It was submitted that exhibit CN 66 tendered by the appellants as the duplicate copy of the Polling Unit results of that unit has raised a presumption that election took place in that Polling Unit. It was contended that the appellants did not present credible evidence to debunk their evidence that election took place in the Unit.
It was further contended that exhibit CN 85 tendered by RW 1 the 1st respondents agent at Unit 014 was the voters register for the unit while the witness also tendered his voter’s card to confirm that he and his wife voted at the Unit. The case of REMI V. SUNDAY (1999) 8 NWLR (PT. 613) 92 was cited to support the argument that the primary evidence to show whether election took place in a particular unit is the voters register.
It was contended that the impression created by the appellants that there could not have been an election in the Unit as there was no basis for high voters turn out during the election is founded upon speculation which is not the function of the court.
On Polling Units 015, 016 at Otiogbata Hall and Unit 021 of Ugwunwocha in Uga Ward 1, the SAN urged that the Tribunal’s findings that allegations of bribery, corruption, inducement of voters multiple thumb printing, violence, thuggery etc laid by the appellants in respect of these Units are criminal in nature as found by the Tribunal and require to be proved beyond reasonable doubt which the appellants failed to do through the evidence of RW 7.
It was contended that exhibit CN 1 tendered by the PW7 did not show any scene of accreditation or voting whereas all the allegations of the witness were tied to the process of election particularly voting and accreditation.
On the Ward Collation Result (Form EC8B) it was contended that the document was never received in evidence, during the trial though front loaded by the 3rd respondent, it was the appellants that raked it up in the call for nullification of election in the entire Ward 1. It was submitted that a court of law does not make the habit of speculating on documents not brought before it; IDIOK V. STATE (2006) 12 NWLR (PT. 993) 1. It was also submitted that the defects of the names of presiding officers in the Ward being recorded in the column meant for the names of the polling units in the ward alleged by the appellants was not demonstrated at the trial but raked up in the Counsel’s (appellants) final address, a procedure that has been prohibited; ANPP v. INEC (2010) 13 NWLR (pt. 1212) 649.
The 2nd respondent raised the issue of whether the tribunal rightly held that the appellants failed to prove their case as issue (e).
It was submitted by the senior Counsel for the 2nd respondent that admissibility of documents in evidence entails different consideration from the weight of evidence. It was contended that the evidence of PW7 and the exhibit CN 1 thereon lack credibility.
It was submitted that the evidence of PW2, PW3, PW4, PW5, PW6 and PW11 were on the activities of the 4th respondent who had been struck out of the petition by the Tribunal, and so the averments in the petition relating to those activities of 4th respondent and the evidence thereon are incompetent and rightly struck out in the course of delivering the judgment of the Tribunal.
The evidence was a mere chorus that did not link the 1st respondent with the commission of the crime; MADUABUM V. NWOSU (1010) 13 NWLR (PT. 1212) 623: NNACHI V. IBOM (2004) 16 NWLR (PT. 900) 614.
On the five votes allegedly withheld from the 1st appellant, it was the contention of the learned SAN that even the addition of the 5 votes to those scored by the 1st appellant does not alter the result as declared by the 3rd respondent.
On exhibit CN 124, it was contended that the respondents gave other evidence which further confirmed the point that 4,216 ballot papers were supplied to the RW 7 for use at Osumenyi Ward II out of which 3,892 were distributed to the Polling Units, and 2,925 were used as confirmed by exhibits CN 2 – CN 23, the Forms EC8A for the 22 Polling Units and the evidence of RW 9 and RW 10. The non-compliance alleged in respect of the Ward based on the allegation that 2,500 ballot papers were issued was not proved so as to warrant the nullification of the election.
The 3rd issue raised by the appellant is whether the Tribunal was right to have used exhibits CN 93 and CN 133 for a completely different purpose from that for which they were tendered, and without considering the purpose for which they were tendered.
The Senior Counsel submitted on the authority of ISHOLA V. UBN LTD (2005) 6 NWLR (PT. 922) 422 that the court can only utilize a document properly admitted by it for the purpose for which it was admitted and not for any other purpose.
It was contended that exhibits CN 93 and CN 133 being voters registers for Unit 005 at Umuoma, village Hall and Unit 013 at Umuagu/Uhume village Hall in Osumenyi Ward 2 were tendered through RW 4 and RW 11 respectively to proof substantial non-compliance with the Electoral Act in respect of election in Osumenyi Ward 2 particularly the allegation that there was over voting in the Ward.
It was argued that the tribunal in its judgment failed woefully to evaluate the evidence but used exhibits CN 93 and CN 133 in arriving at a conclusion that (Out Johnson Out) Out Johnson Otu did not conduct the election as the SPO of Osumenyi Ward 2 while the appellants were not given the opportunity to address the Tribunal on the authenticity and probative value of exhibits CN 75, CN 93 and CN 133 before reaching its decision contrary to AGBI V. OGBE (2004) MJSC 41: ORIZU V. ANYAEGBUNAM (1978) 5 SC 21.
It was submitted that the conduct of the Tribunal in raising an issue suo motu without hearing the parties is a breach of the appellants’ right to fair hearing under Section 36 of 1999 constitution; UGO V. OBIEKWE (1989) 1 NWLR (PT. 99) 566: OSHODI V. EYIFUNMI (2000) FWLR (PT. 8) 1271.
It was submitted with reliance on AJUWON V. AKANM (1999) 9 NWLR (PT. 3 16) 182 that a court should confine itself to issues raised by the parties before it.
The appellants contended that a clear case of over voting was established and if the Tribunal had nullified the election the 1st appellant would have been declared the winner.
Exhibits CN 93 and CN 133 and the manner in which the Tribunal applied them was the issue number iv in the 1st respondents’ Brief.
The 1st respondent had contended that the Tribunal was right in the manner it used the exhibits and in not setting aside the results of Umuoma village Hall Unit 005 and Umuagu/Uhume village Hall Unit 013.
The Senior Advocate of Nigeria pointed out that exhibit CN 75 was a handwritten report by one (Out Johnson Out) Out Johnson Otu whose position as Supervisory Presiding Officer for Osumenyi Ward II was disputed at the trial and whether the inventory of ballot papers used in the election was correct, and it was the same inventory that was tendered as exhibit CN 75 by the appellants who also tendered exhibits CN 93 and CN 133.
According to the Senior Counsel, the Tribunal simply used exhibits CN 93 and CN 133 as hanger to test the veracity of exhibit 75 and by so doing the Tribunal committed no error.
It was contended that the appellants did not challenge the results in Units 005 and 013 now sought to be set aside and there was no allegation of arbitrary ticking of voters register in Unit 005. It was submitted that having failed to show any complaint in their pleadings, the allegations must go to no issue as parties are bound by their pleadings, citing BADHWAIV V. SADHWANI (NIG) LTD (1999) 2 NWLR (PT 101) 72; ABUBAKAR V. YAR’ADUA (2009) 19 NWLR (PT. 1120) 1.
The same issue of exhibits CN 93 and CN 133 was raised by the 2nd respondent as issue (c) which is whether the Tribunal gave due consideration to them.
The complaint of the appellants on these exhibits according to the Senior Counsel for the 2nd respondent is that the Tribunal used the exhibits for a purpose other than that for which it was tendered by the appellants, i.e. to prove that there was substantial non-compliance with the Electoral Act in the election in Osumenyi Ward 2 and they were tendered to establish over voting in the ward but that the tribunal failed to evaluate the evidence of over voting but used exhibits CN 93 and CN 133 to conclude that Out Johnson Out (Out Johnson Out) did not conduct the election as the SPO of Osumenyi Ward II which the Tribunal raised suo motu without giving the parties a hearing, an infringement on right of fair hearing. It was contended that the appellants’ complaint is baseless, and should be dismissed because the appellants did not raise a complaint of non-voting in Osumenyi Ward II in their petition and exhibit CN 133 was tendered to prove non-voting in Polling Unit 013.
It was submitted that evidence tendered in respect of an unpleaded fact goes to no issue, and that the appellants did not allege that they would rely on non-voting at Polling Unit 013. Exhibit CN 133 is ineffectual and the complaint weaved around it is also ineffectual.
It was however contended that even if the finding of the Tribunal that Out Johnson Otu (Out Johnson Out) was not the SPO of the Ward based on exhibit CN 133 is erroneous, that error will not lead to the setting aside of the tribunal’s decision because the same decision had been reached on another ground and it is not every error of a trial court that leads to the setting aside of its decision; OSOLU V. OSOLU (2003) 11 NWLR (PT. 832) 608. In the same vein it was argued that exhibit CN 93, a register of voters for Polling Unit 005 at Umuoma village Hall in Osumenyi Ward II is an irrelevant piece of evidence as no averment in the petition relates to the issue of over voting. Also as in the case of CN 133, the Tribunal had already found that Out Johnson Otu (Out Johnson Out) was not the SPO for Osumenyi Ward, and so any misuse of that document does not affect the other decision on the same issue based on another ground. This is therefore an academic exercise, as it is not every error in a judgment that leads to the reversal of the decision, especially where no miscarriage of justice was occasioned.
On whether the Tribunal made use of the exhibits suo motu, and without offering opportunity for the appellants to be heard, it was submitted that there was no breach of fair hearing; citing ORUGBO V. BUHARI UNA (2002) 16 NWLR (PT. 792) 175.
The fourth issue formulated by the appellants is whether the Tribunal was right in holding that 4216 ballot papers were issued to Osumenyi Ward 2 with Exhibit CN 125 without considering the available evidence and submission of the appellants that serial numbers of only 2117 ballot papers are contained in the self – same exhibit CN 125.
It is noted here that it is the same document (Form EC25A of Osumenyi Ward 2) that is referred to by the Tribunal as exhibit CN 124 and/or CN 125.
The learned Senior Advocate has chosen to call it exhibit CN 124 in the course of argument of this issue.
The Senior Counsel has submitted that a document when admitted in evidence speaks for itself, citing MOTORI V. BAUCHI (2004) ALL FWLR (PT. 197) 2010. It is also submitted that a Tribunal has a duty to evaluate evidence led before it citing CHUKWUMA V. AYAKORA (2006) ALL FWLR (PT. 302) 121.
The analysis of the appellants on this issue is that the PW9 i.e. the 1st appellant himself tendered the certified copies of reports made by Edet C. Okon and Otu Johnson Otu as exhibits CN 74 and CN 75 respectively. These persons functioned as Election Supervisor and SPO of Osumenyi Ward 2 during the election. Exhibit CN 75 shows that only 2500 ballot papers were issued to the SPO of the Ward by the Electoral Officer of the Local Government Area, while CN 74 shows physical counting of the ballot papers utilized as votes in the Ward to be 810. PW10 also testified that 2500 ballot papers were issued to the SPO of Osumenyi Ward 2.
The RW 7 tendered the Form EC25A he used to receive materials from RW 8, the Electoral Officer of Nnewi South Local Government Area, and it was admitted as exhibit CN 124, which shows that a total of 2117 ballot papers were issued out through it for use in Osumenyi Ward II. It was submitted that since the respondents did not reply, the Tribunal ought to have deemed that point conceded by the respondents; citing ADESANYA V. OTUEWU (1993) 1 NWLR (PT. 270) 414; NWANKWO V. YAR’ADUA (2010) 12 NWLR (PT. 1209) 1.
The Tribunal failed to evaluate exhibit CN 124 and that occasioned a miscarriage of justice as the appellants’ allegation of over voting would have been proved thereby; citing ADENLE V. OLUDE (2003) FWLR (PT. 157) 1074; SUNTAI v. TUKUR (2003) FWLR (PT. 157) 1128.
The Senior Advocate argued that the Tribunal failed also to evaluate the submission for the appellants about the turn out of voters in Osumenyi Ward 2 as indicated in exhibits CN 2 – CN 23 showing between 74%o to 100% with 1st and 2nd respondents scoring more that 90% of the votes cast in each Polling Unit. It was submitted that the 100% turn out of voters as recorded in exhibit CN 4 for Polling Unit 003 of Osumenyi Ward 2 where all the 158 registered voters voted in the rerun election is incredible, citing NGIGE V. OBI (2006) 14 NWLR (PT. 99) 1.
It was submitted that the Tribunal was in error to have refused to give exhibits CN 74 and CN 75 their probative value because they were no election result sheets. The rebuttable presumption of regularity which enures to them was not in any way rebutted by the respondents; citing DAGGASH V. BULAMA (2004) 14 NWLR (PT. 892) 144.
The 1st respondent has made the matter of exhibits CN 74 and CN 75 the third issue in his 1st Respondent’s Brief.
The Senior Counsel contended that one Edet C. Okon who was purportedly directed by the Resident Electoral Commissioner to investigate the report on excess recording of votes lodged by Osumenyi Ward 1 SPO to the Resident Electoral Commissioner. The report of this Edet C. Okon a purported Election Supervisor was admitted as exhibit CN 74, but the report of the SPO Osumenyi Ward 1 that ignited the investigation leading to exhibit 74 was not produced by the appellants and this non-production of the complaint has shown that Edet Okon had no business with the election and recounting of votes after the election.
It was submitted that a court of law does not speculate on documents not presented before it at the trial; GBAJOR V. OGUNBUREGUI (1961) 1 ALL NLR 853.
The appellants, according to the Senior Counsel contended that the foundation having not been laid, the Tribunal was right in not giving credence to the evidence of Edet C. Okon as exhibit CN 74 has to be shown to have arisen from a situation. It was contended also that since the appellants denied the existence of the position of Election supervisor for the rerun election as ascribed to Edet C. Okon, it was incumbent on the appellants to call Edet C. Okon to testify and be cross examined.
On exhibit CN 75 it was argued that the appellants tendered two documents, exhibit CN 73 (a purported letter of appointment) and exhibit CN 80 (a purported list of Supervisory Presiding Officers) (SPOs). By exhibit CN 80, one “Out Johnson Out” was appointed as SPO for Osumenyi Ward II while exhibit CN 73 shows that this Out Johnson Out was allegedly appointed as SPO for Nnewi South Local Government Area; a position that did not exist. It was one Batholomew Modey who testified as RW 7 that worked as SPO for Osumenyi Ward II and not Out Johnson Out. RW 7 was identified as such by RW 8, RW 9, RW 10 and RW 11 as the person that issued Electoral materials for the election to RW 9 and RW 10 while RW 11 confirmed that it was RW 7 that received election materials from him and worked as the SPO for Osumenyi Ward II.
It was contended that the Tribunal evaluated the evidence and the reports respectively issued by Edet C. Okon and Otu Johnson Otu admitted as exhibits CN 74 and CN 75 respectively and made findings thereon to the effect that they did not deserve any weight.
The fifth issue by the appellants is whether in the circumstances of this petition the Tribunal was right to have suo motu struck out the pleadings and evidence of substantial non-compliance with the Electoral Act 2010 relating to the criminal conduct of Prince Nicholas Ukachukwu during the election.
The appellants contend on this issue that after striking out the name of Nicholas Ukachukwu who was initially joined as the 4th Respondent but saving paragraphs of the petition that linked him with criminal activities, the Tribunal became functus officio and was therefore wrong to have subsequently in its judgment struck out those paragraphs that raised criminal allegations against the same Nicholas Ukachukwu; AMAH V. NWANKWO (2008) ALL FWLR (PT. 411) 879: AGBASO V. OHAKIM (2011) LPELR.
According to the Senior Counsel what the Tribunal did was to vary its ruling of 6/7/12 or to deliver same by installment which they did not possess jurisdiction to do; UDE V. OJECHEM (1995) 8 NWLR (PT. 412) 152: DAKOLO V. DAKOLO (2011) 198 LRCN 1.
It was contended that the Tribunal had suo motu made a case not raised by any of the parties and failed to indicate the paragraphs of the petition struck out or the evidence that was discountenanced, and by so doing adopted a procedure not known to law and inimical to justice; EAGLE SUPER RACK (NIG) LTD. V. ACB PLC (2006) 19 NWLR (PT. 1013) 39. It was submitted that the Tribunal denied the appellants a fair hearing by not asking for the address of the parties; OGBORU V. UDUAGHAN (2012) LPELR: OSHODI V. EYIFUNMI (2000) FWLR (PT. 8) 1271; EZEIGWE V. NWAWULU (2010) 4 NWLR (PT. 1183) 159.
This matter of striking out of paragraphs of the petition was raised by the 1st respondent as the fifth issue.
It was contended by the Senior Advocate that it was the 1st respondent in his final address before the Tribunal that urged the Tribunal to strike out all the paragraphs of the petition that were raised against or connected to Prince Ukachukwu whose name had been struck out. The Tribunal place reliance on HARUNA V. MODIBO (2004) 16 NWLR (PT. 900) 487 to strike out those offending paragraphs which was in line with the principle of stare decisis.
The Tribunal did not strike those paragraphs out suo motu.
The Tribunal also found that the allegations of multiple thumb printing, bribery, violence and others in the petition were not proved while the 1st respondent was not linked with those acts.
The same matter of striking out of the pleadings is the issue (a) in the 2nd respondents’ brief.
The contention of the Senior Counsel is that the name of Nicholas Ukchukwu having been struck out as the 4th respondent, the question that agitates the mind is whether in his absence in the proceedings the allegations of crime against him in the petition and purported evidence in support thereof were cognizable.
It was submitted that the Tribunal was right in its decision to strike out the paragraphs; citing EGOLUM V. OBASANJO (1997) 7 NWLR (PT. 611) 355.
It was pointed out that contrary to the appellants assertion, the Tribunal did not suo motu strike out the paragraphs but acted on the request or application of the 1st respondent in his final address.
The Senior Counsel submitted that the order formally striking out paragraphs of the petition and evidence related thereto was consequential to the ruling earlier delivered by which the name of Ukachukwu as 4th respondent was struck out, and as such it could be made suo motu; DINGYADI V. INEC (No. 2) (2011) 18 NWLR (PT. 1224) 154.
It was submitted that the Tribunal had not earlier decided the striking out of those paragraphs and was thus not functus officio as far s that matter was concerned. On the Tribunal not stating the particular paragraphs of the petition or the evidence affected or struck out, it was submitted that it is not every omission or even error by a trial court that leads to the reversal of its decision; AGBI V. OGBEH (2006) 11 NWLR (PT. 990) 65.
It is the argument of the SAN that the Tribunal evaluated the evidence on the allegations of violence, thuggery and other criminal acts, found them incredible and unsustainable while the Tribunal also found that there was no evidence that the 1st respondent personally committed the criminal acts or that he aided the commission.
The appellants argued issues six and seven together under the question whether exhibit CN 125 which was not front loaded by any of the Respondents as required by paragraphs 12 (3) and 41 (8) of the 1st Schedule to the Electoral Act 2010 (as amended) is admissible in evidence.
It is the argument of the appellants that the provisions of paragraphs 41 (8) and 12 (3) of the 1st Schedule to the Electoral Act the parties to list and file their documents before they can be received in evidence are mandatory based on the use of word “shall” in the provisions and they can only be circumvented with the upon application at the pre hearing session or with leave of the Tribunal; NWANKO V. YAR’ADUA (2010) 12 NWLR (PT. 1209) 518; OKEREKE v. YAR’ADUA (2008) 12 NWLR (PT. 1100) 95.
It was contended that the 1st respondent tendered a document at the trial of this petition after the pre hearing session and without leave of court. The document which was tendered through Rw7 a witness of 3rd respondent was neither specific ally pleaded no front loaded but 1st respondent placed reliance on paragraph 30 (1) of the 3rd respondent’s reply. It is submitted that a party who intends to rely on a document must specifically plead it; NWOGU V. INEC (2010) ALL FWLR (PT. 515) 354.
The Senior Counsel submitted that the Tribunal erred in law by admitting the document (exhibit CN 125) at a stage when the appellants had closed their case with no opportunity to react to the said document; citing DARIYE V. FEDERAL REPUBLIC OF NIGERIA (2010) LPELR: OWNER V. INSURANCE (2008) 5 SCNJ 109; AJAYI V. OMOROGBE (1993) 7 SCNJ (PT. 1) 168; DUKE V. AKPABUKO LOCAL GOVERNMENT (2005) 12 SCNJ 280; OGU V. EKWEREMADU (2006) 1 NWLR (PT 961) 255.
The failure to front load the document amounts to withholding evidence and should be construed against the respondents; TSOKWA V. UNION BANK OF NIGERIA LTD (1996) 10 NWLR (PT. 478) 281.
It was also wrong for the Tribunal to not only refuse to construe this withholding against the respondents but to have attached better probative value to exhibit CN 125 than CN 80 on the ground that exhibit 80 was not signed by the Electoral Officer of Nnewi South Local Government Area and was not dated.
The 1st respondent argued this matter of exhibits CN 125 and CN 80 under issue 2 in the 1st respondents’ brief. The issue therein is whether the Tribunal was right in its admission of Exhibit CN 125 (the list of SPOs) and the use to which it put the said Exhibit as against exhibit CN 80.
It was contended that the list of the election officials is relevant and the appellants tendered as exhibit 80, a list of Supervisory Presiding Officers through the appellants’ witnesses and the list thereby became relevant also for all purposes as between the parties especially where there are variants of what should have been the same document.
It is submitted that a plaintiff or respondent can be cross examined by a co-plaintiff or co-respondent under the decision in FUBARA V. OGOLO 14 NSCOR (PT. II) 638.
The 1st respondent contend that unfront loaded documents can be tendered under cross examination as a prospective cross examiner cannot be expected to front load his cross examination.
It was further argued that exhibit CN 25 is a variant of exhibit CN 80. Exhibit CN 80 is a list of SPOs tendered by the appellants but was unsigned and undated, while exhibit 125, its variant is the authentic list of SPOs tendered to rebut exhibit CN 80. Exhibit 80 being undated and unsigned could not be certainly said to be for the rerun election; ADIGHIJE V. NWAOGU (2012) 12 NWLR (PT. 1209) 419. It was submitted that for a document to have probative value, it should not only be duly certified, for admissibility purpose, but it should be dated and authored; citing OMORINBOLA V. MILITARY GOVERNOR ONDO STATE (1995) 9 NWLR (PT. 418) 201.
It is to be stated that the 3rd Respondent argued all the above points under the lone issue formulated for determination in the 3rd Respondent’s brief of argument.
The appellants filed Reply Briefs. In respect of the Appellants’ Reply Brief to 1st and 3rd Respondents’ Brief the reply is in respect of issues one to six by the 1st respondents as well as the sole issue formulated and argued by the 3rd respondent. Also in the Appellants’ Reply Brief to the 2nd Respondents’ Brief, the reply is in respect of issues one and two argued by the 2nd respondent.
It thus become clear that the parties have formulated and argued virtually the same issues in their brief and even where the 3rd respondent has distilled a lone issue the argument thereon has covered all the issues in the briefs of the other party. In the circumstance I will adopt and consider this appeal on the basis of the issues formulated and canvassed by the appellants.
Before going into consideration of specific issues, it needs to be stated here that as captured by the Tribunal on page 1891 of Vol. 3 of the record of appeal, the appellants had challenged the election and return of the 1st respondent on grounds (b) and (c) of paragraph 10 of their petition;
“(b) That the election in Osumenyi Wards I and II, Uga Wards I and II, and Polling Units 014 of Uli Ward II, 015 and 016 of Otiogbata Hall and 021 of Ugwunwocha in Uga was invalid by reasons of corrupt practices and substantial non-compliance with the provisions of the Electoral Act 2010 (as amended).
(c) That the 1st Respondent was not duly elected by majority of lawful votes cast at the election as it was the 1st petitioner who polled majority of the lawful votes cast at the election”.
From the state of pleadings therefore the complaints of the appellants were based on corrupt practices and non-compliance with provisions of the Electoral Act 2010 which according to them had rendered the election in the specific areas mentioned invalid.
The Tribunal took evidence from the parties and after considering same, both oral and documentary, as well as the submissions of Counsel it found and held at pages 1999 – 2000 of the record of appeal, Vol. 3 as follows:-
“The sum total of what we have been saying here is that the petitioners have woefully failed to establish the allegations of corrupt practices, over voting, falsification of result, violence, thuggery, and such other malpractices raised in their petition against the 1st and 2nd respondents. The Petitioners have equally failed to establish against the 3rd respondent such non-compliance with the mandatory provisions of the Act as would invalidate the election conducted by them on the 2nd March, 2012 for Anambra South Senatorial Constituencies of the National Assembly”.
There is no doubt that by Sections 131 – 134 of the Evidence Act, 2011, the burden of proving their assertions is firmly on the petitioners. The law is that it is he who asserts that bears the burden of proving that assertion. The petitioners like a plaintiffs in any civil action has the burden to show that they are entitled to the reliefs they have sought, and this burden does not shifts until after he has established his case. Where the plaintiff or petitioner fails to prove the reliefs he has sought, his case is bound to fail. See ATTORNEY GENERAL OF ANAMBRA STATE V. ONUSELOGU ENT. LTD. (1987) 4 NWLR (PT. 66) 547; NIMANTEKS ASSOCIATE LTD. V. MARCO CONSTRUCTION CO. LTD. (1991) 2 NWLR (PT. 174) 411; ARCHIBONG V. ITA (2004) 1 SCNJ 141; UDIH V. UDEMUDIA (1998) 3 SC 50; OLUFOSOYE V. FAKOREDE (1993) 1 NWLR (PT. 272) 747.
The appellants are required in law to establish their allegation of noncompliance with the Electoral Act, 2010 in the manner laid down in Section 139 (1) of that Act as follows:-
“139-(1) An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal that the Election was conducted substantially in compliance with the principles of this Act and that the non-compliance did not substantially affect the result of the election”.
The consideration of similar provisions to the above by the courts have brought the law to be that a party who alleges non-compliance with the provisions of the Electoral Act in an election must not only assert and establish such non-compliance, it must be proved to the satisfaction of the Tribunal that the non-compliance affected the result of the election. See AWOLOWO V. SHAGARI (1979) 12 NSCC 87; BUHARI V. OBASANJO (2003) (PT. 196) 709.
The Tribunal was therefore correct when it held at page 2000 of the records (Vol. 3) that “It is necessary for example, for the petitioners to give a graphic account of such non-compliance and/or malpractices polling unit by polling unit; go further to lead evidence how such non-compliance(s) affected the conduct of the election; and then finally show how the noncompliance(s) substantially affected the overall result of the Polling unit, ward or local government or constituency concerned”.
The appellants have formulated six issues in this appeal as I had earlier reviewed in this judgment. It is not in doubt that issues 1, 2, 3 and 4 all raise matters of non-evaluation or improper evaluation of evidence which according to the appellants had made the Tribunal to dismiss the petition or refuse to nullify election in some areas thereof specifically in Osumenyi Ward 2, Uga Ward land Polling Unit No. 014 (Umuchima Primary School of Uli Ward 2. the appellants have referred to the evidence adduced by Pw9, Pw7, Pw2, PW3, PW4, Pw5, PW6, Pw8 and Pw11 as well as those of RW7, RW11 and the exhibits tendered by them as those that were not, or were improperly evaluated.
The fundamental principle on evaluation of evidence is that it is the duty of the trial court to evaluate the evidence adduced before it. The trial court is primarily endowed with the opportunity of seeing the witnesses, hearing them testify and observing their demeanour. That advantage is always conceded to the trial court and an appellate court that lacks such an opportunity will be very slow in interfering with the findings of the trial court on the evidence and the ascription of probative value thereto. The appellate court will only interfere with such finding where they are perverse or occasion a miscarriage of justice. See BUHARI V. INNEC (2009) ALL FWLR (PT. 459) 419; BALOGUN V. AGBOOLA (1974) 1 ALL NLR (PT. 2) 66; OGBECHE V. ONOCHIE (1988) 1 NWLR (PT. 470) 370; MORENIKEJI V. ADEGBOSIN (2003) FWLR (PT. 163) 45; AKIBU V. OPALEYE (1974) 11 SC 189.
It must be stated that the Tribunal undertook a comprehensive review of the evidence of the parties’ witnesses on pages 1893 – 1935 of the record including the exhibits tendered by those witnesses, evaluated them and made specific findings in respect of each witness to the satisfaction of this court. We are convinced that the Tribunal had adequately and satisfactorily evaluated the oral and documentary evidence before it, and another process of evaluation or reevaluation by this court can only amount to a mere jamboree which the court must avoid. Issues 1, 2, 3 and 4 are resolved against the appellants.
The fifth issue is the striking out of portions of the pleadings and evidence adduced in respect of the conduct of one Prince Nicholas Ukachukwu during the election.
I had earlier stated in this judgment that the name of Prince Ukachukwu who was joined as the 4th Respondent was struck out before the commencement of trial but the material pleadings relating to the allegations against him were left in the records of the court. One may ask for what purpose.
It is not in anyway in doubt that Prince Nicholas Ukachukwu was alleged of bribery, thuggery, disruption of election and beating up of voters, all of which are criminal in nature and must by virtue of Section 135(1) of Evidence, 2011 be proved beyond reasonable doubt. It is the law that the standard of prove of a criminal allegation even when it is made in a civil case including election petition is beyond reasonable doubt. See OMOBORIOWO V. AJASIN (1984) SCNLR 108: NWOBODO V. C.C. ONOH (1984) 1 SCNLR 1.
The criminal acts alleged by the appellants were obviously not committed by the respondents and under our system of criminal justice; the respondents cannot be punished for the offence allegedly committed by Nicholas Ukachukwu. See ANAZODO V. AUDU (1999) 4 NWLR (PT. 600) 539; ESEDUWO V. I.N.E.C. (1999) 1 NWLR (PT. 226) 474.
To warrant the infliction of punishment on the respondents (especially the 1st respondent) for the offence of Ukachukwu the appellants must show satisfactorily that the said Ukachukwu carried out the crime at the instance of the 1st respondent or with his authority. Having found the allegations unsubstantiated against the respondents, and the name of Ukachukwu having earlier been struck out, the Tribunal struck out the pleadings and evidence of the petitioners relating to the allegation. The Tribunal expressed that it followed the decision of this court in HARUNA V. MODIBBO (2004) 16 NWLR (PT. 100) 487. Which decision remains extant and binding on the Tribunal?
My candid view is that the Tribunal” act was consequential upon the striking out of Ukachukwu’s name which took away the flesh as far the allegations are concerned. The appellants claim that the court acted suo motu but it was the contention of the respondents that the Tribunal acted at the prompting of the 1st respondent. I think it is not entirely forbidden or abominable for a court to raise an issue suo motu and even take decision thereon without inviting parties to address it. A lot must depend on the issue so raised and the important consideration of whether such act of the court did occasion a miscarriage of justice.
In EFFIOM V. C.R.O.S.I.E.C (2010) ALL FWLR (PT. 552) 1610 TABAI JSC put the position thus at page 1634. “While the court has a duty to give the parties the opportunity to be heard on any issue it raises suo motu, a failure to do so does not necessarily lead to a reversal of the decision. To warrant an appellate court’s reversal of the decision, the appellant must go further to show that the failure to hear him on the point occasioned some miscarriage of justice; IMAH V. OKOGBE (1993) 9 NWLR (PT. 316) 159 AT 178′ OLUBODE V. SALAMI (1985) 2 NWLR (PT.7) 282”.
I do not find any miscarriage of justice occasioned by the action of the Tribunal complained about and I accordingly resolve this issue against the appellants.
Issues six and seven were argued together and it is on whether exhibit CN 125 which was not front loaded by any of the Respondents is admissible in evidence. The appellants place reliance on Paragraphs 12(3) and 41(8) of the 1st Schedule to the Electoral Act 2010 (as amended).
Issues six and seven argued together by the appellants concern the admissibility of Exhibit CN 125 and the reliance placed thereon in preference to exhibit CN 80.
For guidance on these issues, it is necessary to state that exhibits CN 80 and CN 125 are two versions of lists of SPOs tendered by the appellants and the 1st respondent respectively on the dispute as to who was the SPO (Supervisory Presiding Officer) for Osumenyi Ward II between Out Johnson Out (sometime called Out Johnson Out) as contended by the appellants and Batholomew Modey contended by the respondents. The learned SAN for the 1st respondent tendered Exhibit CN 125 in the course of the cross examination of the RW 7, a witness called by the 3rd respondent.
It has been the contention of the appellants that Exhibit CN 125 was not admissible for the failure of the 1st respondent to plead and front loads it. It is however noted that the 3rd respondent who called the RW 7 had itself pleaded in paragraph 30 of its own Reply that it will at the trial place reliance on all relevant documents and especially those that are listed therein. This in my own view must mean all documents that are relevant and material to the determination of the Election Petition one of which is the list of the Supervisory Officers.
From the state of pleadings and the contention of the parties, therefore exhibit CN 125 is a relevant document, and the major index for admissibility of evidence generally is its relevance. See FAWEHINMI V. NBA (No. 2) (1989) 2 NWLR (PT. 105) 559.
Exhibit CN 125 is a document that is intended to support the fact that Out Johnson Out was not the SPO for Osumenyi Ward II, but Batholomew Modey; and it is settled that a document in support of a fact needs not be specifically pleaded. See MONIER CONSTRUCTION CO. V. AZUBUIKE (1990) 3 NWLR (PT. 136) 74; OKONKWO V. COOPERATIVE AND COMMERCE BANK (NIG) PLC (2003) 8 NWLR (PT. 822) 347.
Now by virtue of Section 215 (2) of Evidence Act while the examination of a witness by the party calling him is to relate to relevant facts the cross examination of such witness need not be confined to the facts to which the witness testified in his evidence in chief. A cross examination is therefore not limited to evidence that has been front loaded, as it is not at the stage of pleadings possible to anticipate all questions that may arise under cross examination.
I am of the view that exhibit CN 125 was properly admitted by the Tribunal. I have had a calm study and examination of exhibit CN 80 vis a vis exhibit CN 125. While Exhibit CN 125 carries the name and signature of the officer who prepared it as well as the date it was prepared, exhibit CN 80 is unsigned and undated. The Tribunal to my mind rightly described exhibit CN 80 as a worthless document.
A document that requires to be authenticated by signature and date such as exhibit CN 80 but which is not cannot attract heavier weight than a signed and date document on the same issue.
It is my view that exhibit CN 125 was properly admitted and accorded value and preference over exhibit CN 80.
This issue is also resolved against the appellants.
We find on the whole that the judgment of the Tribunal satisfied the attributes of a good judgment with sound findings and conclusions. We find no cause to set it aside, we rather uphold it.
Consequently this appeal fails and is accordingly dismissed.
Costs of N20, 000.00 is awarded to each of the respondents.
JOHN INYANG OKORO, J.C.A: I was obliged a copy of the judgment just delivered by my learned brother ISAIAH OLUFEMI AKEJU, JCA which I read before now, My learned brother has meticulously and quite efficiently dealt with the salient issues submitted for the determination of this appeal.
I agree completely with my brother that this appeal lacks merit and ought to be dismissed. I adopt both his reasoning and conclusion as mine. I abide by all the consequential orders made in the lead judgment; that relating to costs, inclusive.
A.O. LOKULO-SODIPE, J.C.A: I agree.
Appearances
Chief Mrs. A.J. Offiah, SAN with C.O. Ejezie, I.K. Onuoma, Nnezi Offiah and O.N. Owusi.For Appellant
AND
Arthur Obi Okafor for 1st Respondent, with Martins Okeke, C.S. Okafor, P.U. Okoh (Miss).
J.T.U. Nnodum, SAN (with O.G. Adindu)
S.O. Ibrahim (CLO INEC) for 3rd Respondent, (with M.E. Ugwuocha and Ikoroha (PPLO).For Respondent
