HON. MARTINS AZA & ANOR v. HON. ALPHONSUS AVINE AGBOM & ORS
(2015)LCN/8017(CA)
In The Court of Appeal of Nigeria
On Monday, the 9th day of November, 2015
CA/MK/EP/SH/17/2015
RATIO
EVIDENCE: ORAL AND DOCUMENTARY EVIDENCE; WHETHER ORAL EVIDENCE CAN BE EMPLOYED IN PROOF OR DISPROOF OF CONTENT OF DOCUMENTS
Their case depended essentially on documentary evidence and it is trite that oral evidence cannot be employed in proof or disproof of contents of documents. See the authorities of S. S. GMBH vs. TD lNDUSTRlES LTD, (2010) 11 NWLR ……, ATT. GEN. Bendel State vs. UBA LTD (1986) 4 NWLR (pt. 37) 547; and EMEJE vs. POSITIVE (20101 l NWLR (pt. 1174) 48, where it was held that when a document is duly pleaded and admitted in evidence, that document becomes the best evidence of its contents and therefore speaks for itself. lt stands to reason that where the issue in contention has to do with majority of votes cast and or scored thereby involving recorded figures, the documents whereon such figures are recorded become indispensible. To my mind the question of calling oral evidence would be a minimal requirement given that written words are immutable. per. CORDELIA IFEOMA JOMBO-OFO, J.C.A.
ELECTORAL PROCESS: SMART CARD READER; THE ESSENCE OF THE SMART CARD READER IN NIGERIAN ELECTORAL PROCESS
The whole idea of the smart card reader which was recently introduced into our electoral system by INEC (the 3rd respondent herein) is aimed at facilitating the Nigerian electoral process. In the very recent case of this Court: APC. vs. Olujimi Agbaje (2015) 8 C.A.R. 23 at 43, paras. C – D, per Ogbuinya, JCA it was held that:
‘The evolution of the concept of the smart card reader is a familiar one. lt came to being during the last general election held in March and April, 2015 in Nigeria. On this score, it is a nascent procedure injected into our infant and fledgling electoral system to ensure credible and transparent election. Specifically, it is aimed to concretize our fragile process of accreditation – the kevstone of anv suffrage. The concept, ……… traces its paternity to the Manual for Election Officials, 2015: Chapter 2, pages 35-42…….” [Underlining mine]. per. CORDELIA IFEOMA JOMBO-OFO, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
1. HON. MARTINS AZA
2. PEOPLE’S DEMOCRATIC PARTY (PDP ) Appellant(s)
AND
1. HON. ALPHONSUS AVINE AGBOM
2. ALL PROGRESSIVE CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: This appeal arose from the judgment of the National and State Houses of Assembly Election Tribunal (hereinafter the Tribunal) sitting at Makurdi and presided over by Hon. Justices M.A. Dipeolu (Chairman), U. Abubakar (Member 1) and M. B. wakili (Member 11).
STATEMENTS OF FACTS
The facts leading to the appeal are that on 11th April, 2015, the Independent National Electoral Commission (hereinbefore us the 3rd respondent) conducted election into the office of the member representing Makurdi North State Constituency. Hon. Martins Aza as the 1st respondent before the Tribunal but before us the 1st appellant and who was sponsored by the Peoples Democratic Party (2nd respondent before the Tribunal but 2nd appellant before us) contested in the said election.
Hon Alphonsus Avine Agbom being the 1st petitioner at the Tribunal but herein the 1st respondent and who was sponsored by The All Progressives Congress the 2nd petitioner at the Tribunal but hereinbefore us the 2nd respondent also contested in the election. At the close of the said election the 1st appellant was declared and returned as the winner by the 3rd respondent having
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purportedly scored 12,085 votes while the 1st respondent purportedly scored 8,432 votes.
Being dissatisfied with the declaration and return of the 1st appellant as winner of the election, the 1st and 2nd respondents in their petition No: EPT/BEN /SH/L5/20L5 filed before the Tribunal on 3oth April, 2015 challenged the election on the ground to wit:
‘Your petitioners state that the 1st respondent was not duly elected by a majority of lawful votes cast at the Makurdi North State Constituency Election in Benue State held on the 11th day of April, 2015 and announced on the 1lth day of April , 2O15.”
(See page 2, para.10 of the record of appeal).
The facts put forward by the 1st and 2nd respondents in substantiation of the sole ground hung primarily around the 20 polling units in Agan council ward and the 14 polling units in Mbalagh council ward respectively. The respondents claimed that the election in these two wards was not conducted in compliance with the mandatory provisions of the Election Guidelines and Manual for 2015 General Elections which manual was admitted before the Tribunal as Exhibit PJ consequent upon which they prayed the Tribunal for the following
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reliefs:a)
A declaration that the 1st respondent was not duly elected/returned by a majority of lawful votes cast at the said election of 11th day of April , 2015 for Makurdi North state constituency House of Assembly Election and that his election/return is void.
b) A declaration that all the votes recorded by the 3rd respondent for both 1st petitioner and 1st respondent respectively in the Makurdi North State Constituency House of Assembly Election on 11th day of April, 2015 in the Twenty (20) Polling Units in Agan Council Ward and Fourteen (14) Polling Units in Mbalagh Council Wards complained of in this petition are invalid and unlawful having not been obtained in compliance with the Electoral Act, 2010 (As Amended) and the Approved Guidelines and Regulations for the Conduct of 2015 General Elections.
c) An order of the Tribunal nullifying/invalidating the said votes referred to in prayer 2 above, same having being (sic) obtained in contravention of the Approved Guidelines and Regulations for the Conduct of 2015 General Elections and the Electoral Act, 2010 (as amended) particularly Part 4 thereof.
?d) An order of the Honourable Tribunal that the 1st
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petitioner scored the majority of the lawful votes cast at the Makurdi North State Constituency House of Assembly Elections in Benue State held on 11th day of April, 2015.
e) An order of the Honourable Tribunal that by scoring the majority of lawful votes of 7,320 by the 1st petitioner as against 6,344 votes scored by the 1st respondent, the 1st petitioner is the winner of the Makurdi North State Constituency House of Assembly Election in Benue State held on the 1lth day of April, 2015.
f) An order of the Honourable Tribunal declaring the lst petitioner as the winner of the Makurdi North State Constituency House of Assembly Elections in Benue state held on the 11th day of April, 2015 having scored the majority of the lawful votes cast at the elections.
g) An order directing the 1st respondent to issue a Certificate of Return to the 1st petitioner as the winner of Makurdi North State Constituency House of Assembly Election in Benue State held on the 11th day of April, 2015.
In order to establish their case the 1st and 2nd respondents (petitioners at the Tribunal) called 2 witnesses and tendered some documents while the appellant in defence fielded 3 witnesses
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without tendering any document.
In its judgment delivered 1lth April, 2015, the Tribunal granted reliefs (a), (b) and (c) and while refusing reliefs (d), (e) (f) and (g) nevertheless went on to order a fresh election in the twenty polling units in Agan and fourteen polling units in Mbalagh Council wards of Makurdi North State Constituency pursuant to Section 140 (2) of the Electoral Act, 2010 (as amended). See pages 300 – 302 of the record of appeal.
Disturbed by the judgment of the Tribunal, the respondents before the learned Tribunal are now before us as appellants vide their notice of appeal dated and filed 28th September, 2OLS and containing 14 grounds of appeal. The parties in line with the practice of this Court filed and exchanged their respective briefs of argument. The appellants’ brief of argument as well as the appellants’ reply to the 1st and 2nd respondents’ notice of preliminary objection and brief of argument were each settled by A. l. WOMBO, ESQ. The 1st and 2nd respondents’ brief of argument dated 15th October ,2O15 and filed 16th October, 2015 Was settled by CHIEF (MRS.} MBAFAN EKPENDU, ESQ. The 3rd respondent’s brief of argument dated and
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filed 16th October, 2015 was settled by A. A. ONOJA, Esq. The 1’t and 2nd respondents in their joint brief of argument raised a preliminary objection which is located at pages 1-5, Paragraphs 1- 2.3 thereof while the argument on the main appeal is contained at pages 5 – 18, Paragraphs 3.0 – 6.4 thereof.
At the hearing of the appeal on 3rd November, 2015, Chief (Mrs.) Ekpendu moved their preliminary objection while Wombo, Esq. replied to same. Akaeme, Esq. for the 3rd respondent filed no reply to the preliminary objection. Learned counsel on both sides adopted and placed reliance on their respective briefs of argument.
Having raised a preliminary objection to some of the grounds of the appeal, it is imperative to attend to it first before delving into the merit or otherwise of the appeal. The grounds upon which the objection is raised include that:
Ground 1 of the petition is vague, verbose, narrative and general in terms and does not disclose any reasonable ground of appeal, contrary to Order 5 Rules 2(3) and 3 of the Court of Appeal Rules, 2011. Learned counsel relied on the authorities of Adah vs. Adah (2001) 5 NWLR pt. 7005,1 sc., N. s. Eng. co. ltd. vs.
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Ezenduka (200) (?] 1 NWLR pt.748, 459 at 486 CA., Kalu vs. Uzor (20061 8 NWLR Pt. 981, 66 CA; and Oloruntoba-oju vs. Abdul-Raheem (2009) 13 NWLR pt. 1157, 83 and urged that ground 1 be struck out.
Counsel argued that ground has raised issues of burden of proof in both criminal and civil allegations and questions the availability or non availability of certain pieces of evidence thereby leaving the 1st and 2nd respondents and the Court at a cross-road as to what precisely is being complained about in the said ground.
Learned counsel also submitted that grounds 4, 9 and 12 of the grounds of appeal have raised in this appeal fresh issues or questions which were not raised, canvassed and decided upon by the lower Tribunal without first seeking the leave of this Court so to do. He relied on the cases of lyanda vs. Amori (2007) All FWIR Pt. 256, 726 at 735; Owners of MV Gongola Hope vs. Smurfit Cases Nig. Ltd. (2ooll All FWLR pt. 388, 1005 sc., Lamboyo Ltd. vs. New Nigerian Bank plc. (2007) All FWLR Pt. 365, 385; and the learned author of the Treatise “Civil Procedure in Nigeria” 2nd edition 2000 by prof. Fidelis Nwadialo, page 185 thereof. Counsel also criticized those
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grounds 4, 9 and 12 as being inconsistent and radically different from the appellants’ case at the Tribunal. He argued that the appellants built their defence on strict compliance with the provisions of the Approved Guidelines for 2015 Elections and the use of Card Readers. See pages 40 – 53 of the Record of Appeal; and that allowing them to question the legality of Card Reader usage at this point will be tantamount to affording an appellant the opportunity of arguing a case inconsistent with the case previously argued and that this cannot be allowed. see Uor vs. Loko (1988) 2 NWLR 430; and also Fidelis Nwadialo (op. cit) at page 823 upon which he urged a striking out of the said grounds 4,9 and 12.
Further in his contention counsel argued that ground 5 of the appeal is repetitive and prolix as it essentially repeats the contentions of the appellants in grounds 1 and 2 of the grounds of appeal and so has to be struck out.
Regarding ground 7 of the appeal, the learned counsel for the 1st and 2nd respondents contends that it is not supported by any particulars of error neither was the main grouse of the appellants against the finding of the “Court” in the ground
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made manifest. Relying on the authorities of UBA vs. Afrimpex Enterprises Ltd. (2013) LPELR – 22603 (CA); Khalil vs. Yar’Adua (2004) All FWIR Pt. 225, 111 he urged that it be struck out.
Regarding grounds 8, 10 and 11 of the grounds of the appeal, counsel submitted that they are repetitive, prolix and unnecessary proliferation of grounds of appeal as they deal with the same issue which is the correct procedure for accreditation using the Card Readers. placing reliance on Sosanya vs. Onadeko (2000) LPELR – 10569 (CA)., counsel urged that ground 7 be struck out for want of competence.
ln their response to the preliminary objection, the learned counsel for the appellants first of all pointed out that though the 1st and 2nd respondents listed Grounds1,2, 4,5, 6,7, 8,9, 1O, 11 and 12 of the grounds of appeal as being incompetent but they failed to canvass arguments against ground 5. He urged on us to note that grounds 6 and 14 of the appellants’ grounds of appeal and from which issue one of appellants’ issues for determination was raised are not challenged by the 1st and 2nd respondents. To this end they urge on us to hold that issue one of the appellants’ issues for
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determination is valid.
Regarding the 1st and 2nd respondents’ challenge of grounds 8, 10 and 11, the appellants are saying that they did not formulate any issue from grounds 10 and 11. In this vein that grounds 10 and 11 ought to be deemed abandoned. See N.B.C. plc. vs. Ubani (2014)4 NWLR pt. 1398, 421; and lfegwu vs. U.B.N. plc. (20011 16 NWLR pt. 1274, 555 at 579, para. C where this Court per Ariwoola, JCA (as he then was) held thus:
The law is clear that any ground of appeal on which no issue is formulated is deemed abandoned and is liable to be struck out.
Learned appellants’ counsel further contends that they also did not formulate any issue from ground 12 of the grounds of appeal and same is thus abandoned. Counsel maintains that the only grounds of appeal that ought to be considered in this appeal and upon which objections are raised are Grounds 1, 2, 3, 4, 5,7 and 9 from which issue 3 is formulated. He then goes on to reply to the preliminary objection as it relates to grounds 1, 2,3,4,5,7 and 9 in the wise hereinafter referred to as points.
Learned counsel for the appellants denies that ground 1 is either verbose or vague. He relied on Oduah vs. F.R.N.
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(2012) 11 NWLR Pt. 1310, 76 at 95 being a decision of this Court, per Pemu, JCA wherein a vague ground of appeal is defined as well as on lzedonwen vs. U.B.N. (2012) 6 NWLR Pt. 1295, 1 at 29 paras. B-D; and Onah vs. Okenwa (2010) 7 NWLR Pt. 1195, 512 at 527-528. He submits finally hereon that the appellants however had no difficulty responding to the said ground 1.
For grounds 4, 9 and 12 of the grounds of appeal, the learned counsel for the appellants defends them as questioning the decision of the lower Tribunal as can be seen at pages 124, 286 – 289 and 308 of the record of appeal and as such do not constitute fresh issues as is argued by the 1st and 2nd respondents.
Regarding ground 5 of the grounds of appeal, the learned counsel for the said appellants contends that the said ground 5 is questioning the decision of the lower Tribunal to the effect that the Card Reader Data and the result sheets tendered by the 1st and 2nd respondents which are civil in nature alone have proved the petition without considering whether the criminal acts of non compliance also alleged in the petition was proved or not.
That ground 7 of the appellants’ grounds of appeal lacks
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particulars of error and that their grouse is not manifest, the learned counsel for the appellants denies the suggestion. He referred to page 311 of the record of appeal.
Regarding the lst and 2nd respondents’ objection that no issue in the appeal is distilled from Grounds 10 and 11 of the Grounds of Appeal, the appellants’ counsel submit that the two grounds have been abandoned and finally that issue 2 as raised by the appellants is distilled from Ground 8 only.
Upon their foregoing submissions the appellants are urging on us to dismiss the preliminary objection raised by the 1st and 2nd respondents against the appeal for lacking in merit.
The 3rd respondent however did not deem it necessary to file a reply to the preliminary objection by the 1st and 2nd respondents.
RESOLUTION OF THE PRELIMINARY OBJECTION.
To begin with, in the course of hearing this appeal on 3rd November, 2015 the appellants applied vive voce to withdraw grounds 10, 11, 12 and 13 of their grounds of appeal. In this vein grounds 10, 11, 12 and 13 of the appellants’ grounds of appeal having been withdrawn are each struck out. Thus all arguments relating to any of the grounds go to no issue and as
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such are discountenanced.
Regarding grounds 1,2,3,4,5,6,7, 8 and 9, which are listed by the 1st and 2nd respondents/objectors as being incompetent, I have to note that upon going through the arguments by the objectors that none was directed at Grounds 2, 6 and 14. With no smear on their competence, grounds 2, 6 and 14 are deemed competent.
I shall now proceed with the determination of the preliminary objection as it touches on the remaining Grounds 1, 3, 4, 5, 7, 8 and 9 of the appellants’ grounds of appeal.
I have read through ground 8 from which the appellants’ second issue for determination was distilled from and I have found nothing in it to show that it is argumentative in any way. Ground 8 is competent and therefore subsists.
I also read the remaining grounds 1, 3, 4, 5,7 and 9 from which issue three of the appellants emanated. lt is the contention of the 1st and 2nd respondents that Ground 1 is vague, verbose and general in terms and that it summarizes the entire case of the appellants at the trial Tribunal in that it raises issue of burden of proof and questions the availability or otherwise of certain pieces of evidence thereby leaving the objectors as
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well as the Court at a cross-road as to what precisely is being complained about. Now for a ground of appeal to qualify as vague in law it has to be couched in such a way as not to allow an easy appreciation and understanding of the message it is meant to convey. In the case of Oduah vs. F.R.N. (2012) 11 NWLR (pt. 1310) 76 at 95. paras. C-E;97 para. D, this Court per Pemu, JCA defined a vague ground of appeal thus:
Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood, or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularized, or the particulars are clearly irrelevant.
Much as it seems to me that the purport or message thereof is hidden in that inelegantly couched ground 1, yet I am constrained to allow same as an irregularity which has only affected the form more so as the era of technicality has been far gone. Since the 1st and 2nd respondents were able to grasp the content or purport of ground one and in return offered
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their response to same, the said ground 1 (one) ought to be allowed and it is so allowed in the interest of justice.
In the case of grounds 4 and 9 of the grounds of appeal, I do not subscribe to the fact that the appellants were raising fresh issue in them and for which they needed the leave of Court to do. Both grounds obviously arose from the decision of the trial Tribunal. The facts as disclosed in Ground 4 were canvassed by the appellants (1st and 2nd respondents before the Tribunal). See pages 123 and 140 of the record of appeal. Ground 4 is thus competent as a ground of appeal in this appeal. As for Ground 9 of the grounds of appeal it seems to me that it is focused on the aspect of the Tribunal’s judgment as it relates to the usage or non-usage of the Smart Card Readers to nullify the election in view. lt is thus not a fresh issue in this appeal as to necessitate the seeking of the leave of this Court for it to be a ground for appeal. The evidence of the PW2 as can be gleaned at page 23, para. 13 of the record of appeal is instructive on this. The tribunal accepted and relied upon the evidence in reaching its findings at page 286 of the record of appeal
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to the effect that:
“As stated by the petitioner, it is obvious from forms EC8A(I) – Result sheets from Agan and Mbalagh wards tendered as Exhibits PD1-20 and PF1-14 and the card reader data in Exhibit Pll that voters who failed accreditation were allowed to vote. Hence, the contention of the petitioner that votes scored in such polling units are invalid.”
Ground 9 undoubtedly is not a fresh issue having been borne out of the judgment of the Tribunal. lt is therefore a competent ground of appeal.Regarding ground 5, I think that it is repetitive of the contentions of the appellants in grounds 1 and 2 of the Grounds of Appeal and as such a surplusage. Being a repetition of grounds 1 and 2 of the grounds of appeal, ground 5 to my mind cannot be characterized as a distinct or different ground of appeal. lt is thus not serving any useful purpose. I therefore deem it necessary to strike it out for being incompetent and it is so struck out.
Finally and as it touches on ground 7 which the 1st and 2nd respondents contend not to be supported by any particulars of error, I think that the contention is misconceived. Ground 7 is supported by particulars of the error. The
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objection to its being a competent ground of appeal is therefore over ruled.
By and large the preliminary objection raised by the 1st and 2nd respondents to the hearing of this appeal is indeed without merit. lt is therefore dismissed.
I now proceed to the main appeal. The appellant has formulated the following 3 issues for the determination of the appeal:
1) In view of the evidence adduced by the lst and 2nd respondents at the trial of this petition to support the sole ground of the petition, whether the lst and 2nd respondents have proved that the 1st appellant did not win the Makurdi North State Constituency House of Assembly election held on the 11th day of April, 2015 by majority of lawful votes cast? (Grounds 6 and 14).
2) Whether the lower Tribunal correctly applied the instructions stipulated in the Independent National Electoral Commission (INEC) Approved Guidelines and Regulations For The Conduct of 2015 General Elections (Exhibit “Pj”) to invalidate and nullified (sic) the votes in 34 polling units of Agan and Mbalagh council wards? (Ground 8).
3) In view of the express and mandatory procedures laid down for accreditation of votes and the definition of
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over-voting in the Electoral Act, 2010 (as amended), whether, lst and 2nd respondents have proved their petition as regards non-accreditation of voters and over-voting at the lower Tribunal to justify the nullification of votes in the 20 polling units of Agan council ward and L4 polling units of Mbalagh council ward? (Grounds 1, 2, 3, 4,5, 7 and 9).
The lst and 2nd respondents on their part came up with the following two issues as fit for the determination of the appeal:
a) From the totality of the facts, pleadings and evidence before the lower Tribunal, did the 1st and 2nd respondents not prove the sole ground of their Petition on a balance of probabilities as required by the law? (Grounds 1, 2, 3, S, 6, 1,8, 10, 11, 13, and 14.).
b) ls the usage of Smart Card Readers for accreditation of voters in the 2015 General Elections not sanctioned by law? (Grounds 4, 9 and 12).
The 3rd respondent on its part donated a lone issue for determinationand it reads:
whether the elections in twenty polling units in Agan and fourteen polling units in Mbalagh Council Wards which the trial Tribunal nullified were conducted by the 3rd respondent in substantial compliance with the
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provisions of the Electoral Act, 2010 (as amended). (Ground 7 of the Notice of appeal).
I think that we can safely determine the appeal based only on issue 3 of the issues donated by the appellants. The rest of the issues are substantially captured by it. The issue for determination of the appeal therefore reads:
In view of the express and mandatory procedures laid down for accreditation of votes and the definition of over-voting in the Electoral Act, 2010 (as amended), whether, 1st and 2nd respondents have proved their petition as regards non-accreditation of voters and over-voting at the lower Tribunal to justify the nullification of votes in the 20 polling units of Agan council ward and L4 polling units of Mbalagh council ward? (Grounds 1, 2, 3, 4,5, 7 and 9).
The appellants upon responding in the negative to this issue went on to recall that the sole ground of the 1st and 2nd respondents’ petition before the Tribunal is thus:
“Your petitioners state that the 1st respondent was not duly elected by a majority of the lawful votes cast at the Makurdi North State Constituency Election in Benue State held 11th April, 2O15.”See page 2 of the record of
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appeal.
Appellants submit that the 1st and 2nd respondents having contested the lawfulness of the votes cast in the election had the evidential burden of proving the alleged unlawfulness with credible evidence by tendering relevant documents and calling witnesses who actually saw what transpired at the polling units, failing which it will be fatal to their case. They placed reliance on the Supreme Court’s decision per Niki Tobi, JSC. in Abubakar vs. Yar’Adua (2008) (pt. 1120) 1; and Babba vs. Tafashiya (1999) 5 NWLR (Pt. 603) 468 at 474. Learned counsel for the appellants pointed out that throughout the evidence of the PW1 and PW2 who testified for the 1st and 2nd respondent before the Tribunal, that none of the two testified to being present at any of the 20 polling units in Agan or the 14 polling units in Mbalagh council wards in issue. He said that all that the PW1 did at the Tribunal was to tender Smart Card Reader Data Statistics allegedly generated from the Card Readers used for election at the polling units. In this light the counsel opined that the evidence of PW1 and PW2 did not meet the required burden placed on them.
Counsel further submitted that even
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the facts in support of the sole ground of the petition as they appear on pages 2 – 13, Paragraphs 11 – 64 of the record of appeal at best are in support of a ground of petition in respect of the election not being conducted in compliance with the provisions of the law. Counsel contends that the evidence of the 1st and 2nd respondents at the Tribunal failed to prove their sole ground of their petition as it was at variance with it.
Further in his contention the learned counsel for the appellants attacked the judgment of the Tribunal submitting that the Tribunal went out of its way to formulate two additional grounds for the 1st and 2nd respondents to wit:
1) That the election was marred by serious cases of electoral malpractices, irregularities and non-compliance with the Electoral Act, 2010 (as amended).
2) That the election was not in compliance with the approved Guidelines and Regulations released by the 3rd Respondent for the conduct of the 2015 elections.
Appellants argued that the Tribunal went into grave error in its findings and holding at page 299 of the record of appeal. lt was their strong contention that the findings of the Tribunal to the effect that
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the 1st respondent before it was not duly elected by majority of lawful votes cast at the election of 11/4/15 was based on the evidence of the 1st and 2nd respondents in support of an election not held in compliance with the provisions of the law and not on evidence in support of the sole ground of the petition. Counsel noted with reference to Section 138(1) of the Electoral Act, 2010 (as amended), that the grounds for questioning an election are distinct in nature and facts in support of the said grounds and evidence required for their proof are also distinct. Thus, that the facts in support of one ground and evidence thereof cannot be held to support and prove another ground as done by the Tribunal and we are urged to so hold. Counsel also submitted that the lower Tribunal again erred in using the standard of proof required in proving a ground of the petition that is based on non-compliance to hold that 1’t and 2nd respondents had proved their petition when the sole ground of the said petition is that the 1’t appellant did not win the election by the majority of lawful votes cast. See the Tribunal’s judgment at pages 290 – 291 of the record of appeal. He
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submits that the Tribunal’s holding thereof did not arise from the sole ground upon which the petition was brought.
Also in appellants’ contention is the holding of the Tribunal at page 299 of the record of appeal that the 1st and 2nd respondents proved the allegations of over-voting, non-accreditation and allocation of votes on the balance of probability and that the election in Agan and Mbalagh council wards were not held in compliance with the Electoral Act,2010 (as amended) and Approved Guidelines and Regulations.
On the allegation of over-voting, learned counsel submitted that the 1st and 2nd respondents failed to establish by credible evidence that overvoting occurred in the polling units complained of in their petition. Relying on Haruna vs. Modibbo (2004) l6 NWLR (pt. 900) 487, 543, counsel submitted that that failure is fatal to the case of the lst and 2nd respondents. Counsel analyzed the ingredients of over-voting by calling in aid the cases of Awuse vs. odili (2005) 16 NWLR (pt. 952) 416, 471, paras. B-D; and Malumfashi vs. Yaba (1999) 4 NWLR (pt. 598) 230, 237 where it was held that over-voting can occur where the total number of votes cast exceeds
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the number of accredited voters. Learned counsel surmised that since the voters’ register in the polling units complained of were not produced before the Tribunal, the allegation of over-voting cannot be said to have been established in the 20 polling units of Agan council ward and the 14 polling units of Mbalagh council ward as found by the Tribunal.
On allocation of votes, the learned counsel submitted that the allegation is criminal in nature and the standard required for its proof is that of proof beyond reasonable doubt and not on the balance of probability. Counsel went on to state that the particulars of the vote allegedly allocated and the polling units or places where the said votes were allocated were not pleaded, neither was evidence adduced in respect of the said particulars. The people who allegedly allocated the votes were not mentioned in the petition, neither were they joined as parties. see Ogu vs. Ekweremadu (2005) 1 FWLR (pt. 260) 1; (2006) 1 NWLR (Pt. 951) 255; and Chime vs. Onyia (2009) 2 NWLR (pt. 1124) 1, 46.
On non-accreditation of voters- counsel submitted that the only document or Electoral material recognized by the Electoral Act, 2010
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(as amended) to be used for accreditation of voter for the election under review is the Register of Voters. See Section 49 of the Electoral Act supra which the 1st and 2nd respondents failed to comply with. Counsel submitted that since the 1st and 2nd respondents did not produce the Voters Register at the hearing of the petition, it means that the allegation of non-accreditation was not established and he urged on us to so hold.
ln their reaction to the lone issue for determination, the learned counsel for the lst and 2nd respondents as they are before us submitted that the judgment of the Tribunal as it appears at pages 292-293 of the record of appeal which is unassailable is, unfortunately the primary subject of vicious attacks by the appellants in this appeal. He stated the obvious which is that a counsel’s address however elegantly prepared and argued can never take the place of hard facts, evidence and pleadings of parties in a case. He referred to the cases of Archibong vs. Edak (2006) 7 NWLR (Pt. 980) a58; and UBA Plc. vs. BTL Industries Ltd. (2007) All FWLR (pt. 352) 1615 SC. to submit that parties are bound by their pleadings and cannot be permitted to
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make a case on appeal different from that made by them at the lower Court. Learned counsel submitted that they are re-asserting that the 1st and 2nd respondents’ case is based essentially on documentary evidence and all the material documents necessary to prove their case were tendered and admitted in evidence. The issue of calling oral evidence did not and has not arisen. Counsel pressed on that it is trite in election matters where the issue is as to who had majority of lawful votes, that decisions thereon are based largely on documentary evidence, mainly election forms.Thus, the question of calling oral evidence cannot be over flogged. See Ngige vs. Obi (2005) 14 NWLR (Pt. 999) 1 CA; and ANPP vs. Usman (2008) 12 NWLR (Pt. 1100) 1 at 487. He contends that the cases of Abubakar vs. Yar’Adua (supral; and Babba vs. Tafashiya (supra) are therefore inapplicable in the present case.
Learned counsel further contends that there is no better fact pointing to the illegality of votes other than over-voting, nonaccreditation/ improper accreditation, inflation of votes/arbitrary allocation of votes among other facts as duly pleaded by the 1st and 2nd respondents. Counsel
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argued that the authorities of Haruna vs. Modibbo (supra) and Awuse V. Odili (supra) relied upon by the appellants were not decided based on the use of Permanent Voters Cards (PVCs) for elections and electronic accreditation of voters, but on Temporary Voters Card (TVCs) and manual accreditation of voters and are thus distinguishable from the present case and do not avail the appellants. Counsel referred to Chapter 2 Section B 2.6 of the Manual for Election Officers 2O15, issued by the 3rd respondent wherein it is provided that:
“ln other (sic) to make the polling process more transparent and credible, the Commission has introduced the use of card readers to enhance accreditation of voters. The card reader is used to verify the biometrics of the voter, thereby checkmating all forms of impersonation by voters. With the Card Reader, the INEC Voters Authentication System (IVAS) now becomes another innovation in the Nigeria Electoral Process.” [Underlining theirs].
Relying on the foregoing provision as well as Exhibit P2 titled “PU By PU ACCREDITATION FOR SELECTED PUs lN AGAN AND MBALAGH WARDS OF MAKURDI NORTH STATE CONSTITUENCY”; the learned counsel for the 1st and
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2nd respondents submitted that the primary function of the Card Reader is to verify and authenticate the eligibility of prospective voters and as such accrediting them for the elections. Card reader accreditation statistics is therefore, relevant and admissible evidence in proof of accreditation of voters. Counsel argued that with the admission by the appellants at Paragraph 11 of their reply (page 41 of the record of appeal) that Smart Card Readers were used for accreditation, the appellants are estopped from claiming that card reader accreditation data is not proof of accreditation. He also relied on Paragraphs 13 and 17 of the appellants’ reply to the petition to submit that the appellants themselves substantially admitted and conceded to the content of Exhibit P2 to be the accurate accreditation data in the affected polling units. Thus, admitted facts such as are contained in Exhibits P1 and P2 leave no room for proof of the issue of accreditation.See Olagunyi vs. Oyeniran (1995) 6 NWLR (Pt. 4531 127 SC., Akpan vs. Unoh (1999) 11 NWLR (Pt. 6271 349 SC., and Agbanelo vs. UBN. Ltd. (2000) 4 (?) (Pt. 1) 233 SC. He submitted finally on this point that Exhibit
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“PJ” (Guidelines for 2015 Elections) did not in any way define accreditation as ticking the names of the voters on the voters register as erroneously argued by counsel to the appellants in paragraph 4.19 of the appellants’ brief.
The 1st and 2nd respondents further contented that there can be no better evidence of non-accreditation of voters in the 2015 General Elections where Card Reader accreditation statistics puts the number of accredited voters as zero and that no evidence to the contrary is sustainable as far as the 2015 General Elections and Exhibit “PJ” as well as Election Manuel 2015 are concerned. Counsel without mincing words submitted that paragraphs 14 and 15 of Exhibit PJ do not in any way make voters register a superior document for accreditation to card reader, neither has the provisions elevated the status of voters register in accreditation process over and above that of the Smart Card Reader. Rather the provisions have strengthened their argument that card reader accreditation statistics is relevant and admissible proof of accreditation in a polling unit.
?As for the learned counsel for the 3rd respondent he was substantially on the same page
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with the appellants. 3rd respondent’s grouse was basically that the trial Tribunal shut its eyes to other methods of accreditation adopted by them where card readers malfunctioned. He insisted that the findings of the lower Tribunal to wit: that the lst appellant was not duly elected by majority of lawful votes was based on the evidence of the 1st and 2nd respondents in support of an election not held in compliance with the provisions of the law and not based on the evidence in support of the sole ground of the petition that 1st appellant did not win the election with the majority of lawful votes cast at the election. Learned counsel submitted that by Section 138(1) of the Electoral Act, 2010 (as amended), the grounds for questioning an election are distinct in nature and facts in support of the said grounds and evidence required for their proof are also distinct. Accordingly, facts in support of one ground and evidence thereof cannot be held to support and prove another ground. That contrariwise what the Tribunal did was to consider the petition on the ground of non-compliance with the Electoral Act, 2010 (as amended) instead of considering same on the ground
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that the 1st appellant did not win the election by the majority of lawful votes cast which was the sole ground of the 1st and 2nd respondents’ petition.
The 3rd respondent submitted that the failure of the Honourable Tribunal to examine the case of the 3rd respondent which essentially is predicated on proper accreditation of voters with both the card reader and manual accreditation by the completion of incidence forms, grossly affected the decisions arrived at by it. See Otukpo vs. John (2O12) 7 NWLR (Pt. 12991 357 at 355; and Action Congress of Nigeria vs. Nyako (2012) LPLR-19649 SC. lt was the counsel’s further contention that the Tribunal’s heavy reliance on Paragraph 8(b) of Exhibit PJ in nullifying the elections in the aforementioned polling units in Agan and Mbalagh Council wards was considered in isolation of Paragraphs 12(b) (i) and (ii), 14(d) and (e) and 15(a) of the same exhibit and Section 49 of the Electoral Act, 2010 (as amended) instead of reading all in the entire con as it relates to accreditation of voters. He referred to the cases of UNILIFE DEV. CO. LTD. vs. ADESHIGBIN (20011 4 NWLR (pt. 704) 609. 3rd respondent’s counsel also put up the
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argument that for a Tribunal to reach a conclusion that there was over-voting in any election, it must have examined the voters’ register to ascertain the number of persons duly registered therein and the number of votes cast in the polling unit. He submitted that the 1st and 2nd respondents did not in any way demonstrate at the hearing by calling in aid all the registers of voters in the affected polling units before the Tribunal arrived at the unfortunate decision that over-voting occurred. Counsel placed reliance on Awuse vs. Odili (2005) 16 NWLR (Pt. 952) 415 at 490- 491; and Iniama vs. Akpabio (2008) 17 NWLR (Pt. 1116) 225 at299.
Finally, the learned counsel for the 3rd respondent urged on us to hold that the 3rd respondent did conduct the House of Assembly elections for Makurdi North Constituency held on 1lth April, 2O15 with particular reference to the 20 polling units in Agan and 14 polling units in Mbalagh Council Wards which the trial Tribunal nullified, in substantial compliance with the Electoral Act,2010 (as amended); and consequently therefore to allow the appeal and set aside the judgment of the trial Tribunal by dismissing the “petition”
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(sic).
RESOLUTION OF THE LONE ISSUE
In view of the evidence adduced by the 1st and 2nd respondents at the trial of this petition to support the sole ground of the petition, whether the 1st and 2nd respondents have proved that the lst appellant did not win the Makurdi North state Constituency House of Assembly election held on the 1lth day of April, 2015 by majority of lawful votes cast? (Grounds 5 and 14).
It stands out as a sore thumb that the sole ground upon which the petition before the trial Tribunal was based is as it appears at page 2, Paragraph 10 of the record of appeal. Therein the two petitioners who before this Court are the 1st and 2nd respondents challenged the election of the appellants as they are before us. The petitioners prayed thus of the Tribunal:
‘Your Petitioners state that the 1st respondent was not duly elected by a majority of lawful votes cast at the Makurdi North State Constituency Election in Benue State held on the l1th day of April, 2015 and announced on the llth day of April , 2015.” [Underlining mine].
Being that the 1st and 2nd respondents were thereby contesting the election of the appellants, the burden was on them to prove the
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unlawfulness of the votes cast by tendering relevant documents and calling witnesses as the case may be. Thus it was held in the case of Abubakar vs. YarAdua supra per Tobi JSC. at 173 – 174, paras. D-D that:
“A petitioner who contests the legality or lawfulness of votes cast in an election and the subsequent result must tender in evidence all the necessary documents by way of forms and other documents used at the election…… He should call witnesses to testify that the illegality or unlawfulness substantially affected the result of the election. The documents are amongst those in which the result of the votes are recorded…… Both forms and witnesses are vital for contesting the legality or lawfulness of the votes and the subsequent result of the election. One cannot be a substitute for the other. lt is not enough for the petitioner to tender only the documents… ,,…”
The 1st and 2nd respondents in furtherance of the demands on them regarding burden of proof fielded two witnesses and then relied mostly on documentary evidence. Their case depended essentially on documentary evidence and it is trite that oral evidence cannot be employed in proof or
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disproof of contents of documents. See the authorities of S. S. GMBH vs. TD lNDUSTRlES LTD, (2010) 11 NWLR ……, ATT. GEN. Bendel State vs. UBA LTD (1986) 4 NWLR (pt. 37) 547; and EMEJE vs. POSITIVE (20101 l NWLR (pt. 1174) 48, where it was held that when a document is duly pleaded and admitted in evidence, that document becomes the best evidence of its contents and therefore speaks for itself. lt stands to reason that where the issue in contention has to do with majority of votes cast and or scored thereby involving recorded figures, the documents whereon such figures are recorded become indispensible. To my mind the question of calling oral evidence would be a minimal requirement given that written words are immutable.
Now the 1st and 2nd respondents out of the 5 council wards that make up the Makurdi North State Constituency took exception to the elections conducted in two of the Council wards namely: Agan and Mbalagh Council Wards. They pleaded that election in most of the polling units therein were marred by cases of voting without accreditation of the voters, non-usage of card readers for accreditation as against the express and mandatory provision of
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the approved Guidelines and Regulations for the conduct of the 2O15 General Elections, inflation of votes and arbitrary allocation of votes all of which culminated in having invalid/unlawful votes for the political parties/candidates at the respective polling units in Agan and Mbalagh Council Wards.
The 1st respondent in his evidence as the PW2 led evidence to the effect that the election in those two council wards were marred by malpractices and falsification of result consequent upon which the 3rd respondent awarded to him a score of 8,432 votes while the appellants were awarded 12,085 votes thus making the 1st appellant the winner of the said election. The malpractices that gave rise to the figures as recorded against the appellants on the one side and the lst and 2nd respondents on the other in the two council wards of Agan and Mbalagh included voting without accreditation of voters, non-usage of card readers for accreditation, inflation of votes and arbitrary allocation of votes to political parties and their candidates. The 1st respondent gave in evidence polling unit by polling unit in the two affected council wards regarding the total number of voters
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who turned up for accreditation, the number that were successfully accredited with the card reader and the number that failed accreditation and thus not eligible to vote. Notwithstanding the fact that there were those who were not successfully accredited yet they were allowed to vote. 1st respondent stated also that from form ECSA (1) which is the result sheet and the card reader data a total of 1,458 voters were successfully accredited while 2,899 failed accreditation. 1st respondent went further to state in his evidence that the purported accredited figure given by the 3rd respondent in the 20 polling units in Agan council ward stood at 4,582 which does not tally with the total number of votes cast and allotted to parties.
It is obvious from the case of the lst and 2nd respondent that the usage or improper usage of the Smart Card Readers was a factor to be reckoned with in proving their case. This is because for any vote cast to be lawful the voter had to be duly accredited. lt was in this light that the learned Tribunal held and rightly too at page 286 of the record of appeal thus:”
As stated by the Petitioner, it is obvious from forms EC 8A(1) – Result
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Sheets from Agan and Mbalagh wards tendered as exhibits PDl -20 and PF1 -L4 and the card reader in exhibit P1l that voters who failed accreditation were allowed to vote. Hence, the contention of the Petitioner that votes scored in such polling units are invalid.”
The whole idea of the smart card reader which was recently introduced into our electoral system by INEC (the 3rd respondent herein) is aimed at facilitating the Nigerian electoral process. In the very recent case of this Court: APC. vs. Olujimi Agbaje (2015) 8 C.A.R. 23 at 43, paras. C – D, per Ogbuinya, JCA it was held that:
‘The evolution of the concept of the smart card reader is a familiar one. lt came to being during the last general election held in March and April, 2015 in Nigeria. On this score, it is a nascent procedure injected into our infant and fledgling electoral system to ensure credible and transparent election. Specifically, it is aimed to concretize our fragile process of accreditation – the kevstone of anv suffrage. The concept, ……… traces its paternity to the Manual for Election Officials, 2015: Chapter 2, pages 35-42…….” [Underlining mine].
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The smart card reader as a process obviously enjoys the backing of the approved Guidelines and Regulations for the conduct of 2015 General Elections which was tendered and admitted as Exhibit PJ as well as the INEC Press Release admitted as Exhibit PK. There is no gainsaying that proper and due accreditation is inviolable in the electoral process. Hence, to cast a vote as is been shown to be the case in the instant appeal without due accreditation will obviously yield an unlawful vote. The Tribunal was thus right when it concluded as follows at page 289 of the record of appeal:
“From the Card Reader Data j Exhibit P1, the numbers of successful accredited voters is 1,468, however from the result sheets, ECSA(I) Exhibits PD1-12 and PE1-14 the total number of accredited voters in Agan ward is 4,582, a difference of 3,124.
In Mbalagh Council, 443 (four hundred and forty three) voters were successfully accredited according to the card reader data Exhibit Pl while 1339 failed accreditation totaling 1782.
However, by Form EC8A(I) Exhibit PF1-14,2,545 (two thousand five hundred and forty five) voters were accredited. From exhibit PGl and PG2 – form ECSB(I) in respect of Agan and Mbalagh wards
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respectively, the total number of votes scored by the parties are as follows:..,..”
The 3rd respondent on his part who had hung tenaciously on the usage of incident form in the alternative in the Agan and Mbalagh had the burden shifted to him to produce the said incident form before the Tribunal but he failed to do so. This omission left a yawning gap in their case and defence and can only mean that no such incident form was used as alternative for purposes of accreditation of voters. In their absence, neither the alleged incident form nor the purported voters register now being brandished by the appellants is of any moment before us. The documents were visibly not part of the documentary evidence laid before the learned Tribunal. Therefore they ought not to be smuggled in now on appeal without the leave of this Court sought and obtained to bring and argue such as a fresh issue.
I am afraid that the Tribunal worked with the materials before it to reach its conclusion to the effect that the appellant was duly elected/returned by a majority of lawful votes cast. The judgment of the learned Tribunal is to that extent unassailable. However, it went into grave error
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of law when rather than declare the 1st respondent winner of the election pursuant to Sub-section (3) of Section 140 of the Electoral Act, 2010 (as amended) it went on to call for a fresh election pursuant to Sub-section (2) thereof. This is because the 1st and 2nd respondents had the burden to prove their allegation of over voting which resulted from unaccredited or unlawful votes cast at the election. Consequently, the appellants who scored their purported majority votes unlawfully are unduly elected pursuant to the provision of Section 138 (c) of the Electoral Act, 2010 (as amended). The election in this regard is rightly nullified by the learned trial Tribunal. However, having so nullified the election the proper order to make in the circumstances is as per the provision of Section 140(3) of the Electoral Act, 2010 (as amended) which reads as follows:
lf the Tribunal or the Court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Election Tribunal or the Court, as the case maybe, shall declare as elected the candidate who scored the highest
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number of valid votes cast at the election and satisfied the requirements of the Constitution and this Act.
Having found the 1st respondent (Hon. Alphonsus Avine Agbom) to be the candidate with majority of lawful votes scored in the Makurdi North State Constituency House of Assembly Election, Benue State held 11th April, 2015, I feel legally compelled to declare him the winner of the said election and he is so declared.
Furthermore and for the avoidance of doubt this appeal abides the further orders as made in appeal Nos: CA/MK/EP/16/15.
In the main this appeal which is devoid of merit shall be dismissed and it is so dismissed.
Parties to bear their respective costs borne out of the appeal.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I agree.
OBANDE FESTUS OGBUINYA, J.C.A.: I agree
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Appearances:
A. l. Wombo with him, T. T. Shachia and E. O. AgenaFor Appellant(s)
Chief Mbafan Ekpendu with, A. A. Akaa Esq. and A. O. Sogunro Esq. for 1st and 2nd Respondents
Jonathan Akaeme Esq. with him, Mrs. J. A. Chiagorom and O. C. Erheriene for 3rd RespondentFor Respondent(s)
Appearances
A. l. Wombo with him, T. T. Shachia and E. O. AgenaFor Appellant
AND
Chief Mbafan Ekpendu with, A. A. Akaa Esq. and A. O. Sogunro Esq. for 1st and 2nd Respondents
Jonathan Akaeme Esq. with him, Mrs. J. A. Chiagorom and O. C. Erheriene for 3rd RespondentFor Respondent
