HON. MUSA TANKO ABARI & ANOR v. HON. PHILIP T. ADUDA & ORS
(2011)LCN/4999(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 13th day of December, 2011
CA/A/EPT/581/2011
RATIO
BURDEN OF PROOF: WHETHER THE BURDEN OF PROOF IN AN ELECTION PETITION RESTS ON THE PETITIONER; CLASSES OF THE BURDEN OF PROOF
It is settled law that the burden of proof is on the person who will lose if no evidence were led. This will now lead me to consider provisions of Sections 131, 132 and 133 of the Evidence Act 2011 (as amended) which provides thus:- “131(1) Whoever desire any Court to give Judgment as to any Legal Right on the existence of facts which he asserts must prove that those facts exist. 2. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 132. The burden of proof in a suit or proceeding lies on the person who would fail if no evidence at all were given on either side. 133. In civil cases, the burden of first proving the existence or non – existence of a fact lies on the party against whom the Judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. 2. If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom Judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleading have been dealt with. 3. Where there were conflicting presumptions, the case is the same as if there were conflicting evidence.” The above views, and the provisions of the Evidence Act set out are fortified by the following cases:- In Buhari vs. INEC (2008) 12 SCNJ Page 1 at 68 the Supreme Court held as follows:- “A Petitioner who files a Petition under Section 145(1) of the Electoral Act, has the burden to prove the ground or grounds, if the Petitioner does not prove his case under Secfion 145(1) of the Act, the action fails.” I have set out the grounds upon which petition is based earlier in this Judgment. The reliefs claimed by the Appellants at the trial Tribunal are hereby set out as follows:- (1) That the 1st Respondent was and is disqualified from contesting the Election and being returned as duly elected having not met the statutory and Constitutional qualifications to contest the said Election. (2) That the entire election in the Federal Capital Territory Senatorial District was invalid, null and void and the purported election of the 1st Respondent nullified by reason of massive and pervading irregularities, corrupt practices, heinous electoral offences and monumental non-compliance with the laws governing the election. (3) Any other reliefs……………………………………………………………………………………………………………………………………………………….”Once again I have to emphasise that it is the law that a petitioner has the burden to proof the reliefs sought in the Petition to obtain Judgment. That burden does not shift. This is because he is the party who claims the reliefs in the Petition and so the onus rests on him. Burden of proof can be divided into three. (1) The Legal burden [Section 131 of the Evidence Act 2011 (as amended)] (2) The evidential burden [Section 132 of the Evidence Act 2011 (as amended)] (3) Burden on the pleadings [Section 133 of the Evidence Act 2011 (as amended)] In Buhari vs. Obasanjo (2005) 7 SCNJ Page 1 at Page 47 Uwais CJN held that:- “In general, in a civil case, the party that asserts in its pleadings the existence of a particular fact required to prove such fact by adducing credible evidence. If the party fails to do so its case will fail. On the other hand, if a party succeeds in adducing evidence to prove the pleaded fact, it is said to have discharged the burden of proof that rests on it. The burden is then said to have shifted to the party’s adversary to prove that the fact established by the evidence adduced could not on the preponderance of evidence, result in the Court giving Judgment in favour of the party. These propositions are product of Sections 135 to 139 of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990.” See also the following cases:- – N.B.N. vs. Opeopla (1994) 1 NWLR Part 319 Page 126; – Akinfosile vs. Ijose (1960) SCNLR Paqe 447; – Okechukwu vs. Ndah (1967) NMLR Page 368; -Messrs Lewis & Peat (N.R.I) Ltd vs. A. E. Akhimien (1976) 7 S. C. Page 157 at 169. PER JIMI OLUKAYODE BADA, J.C.A.
DISCREDITED EVIDENCE: WHETHER A COURT CAN ACT ON AN EVIDENCE SUCCESSFULLY DISCREDITED UNDER CROSS EXAMINATION/ESSENCE OF SUPPORTING ASSERTIONS WITH EVIDENCE
In Wali vs. Bafarawa & Others (2003) 3 LRECN Page 25 at 55 Paragraphs D to E, this Court held thus:- “It is trite law that evidence that is not pleaded is of no effect. But not only that, the evidence of PW4 is contradictory in that he first said a Policeman intimidated agent of the Appellant at gun point, but in cross examination, he changed it to be a soldier and there was no explanation to the contradiction as to whether it was a policeman or a soldier. No reasonable Tribunal could act on evidence of a witness that has been successfully discredited under cross examination. The Tribunal however evaluated and assessed his credibility and found him most unreliable. I cannot agree better.” Under Section 131 (1) of the Evidence Act 2011 as amended, the burden of first proving the existence or non-existence of a fact lies on the Petitioners/Appellants. It is not enough to make a bare assertion. It must be supported by credible and admissible evidence before the burden will shift. See Aregbesola vs. Oyinlola (Supra). PER JIMI OLUKAYODE BADA, J.C.A.
HEARSAY EVIDENCE: WHETHER HEARSAY EVIDENCE IN AN ELECTION PETITION ARE ADMISSIBLE
Apart from the evidence of election in JIWA View Center, all other piece of evidence relating to what happened in the Polling Units which the 1st Appellant never visited amounted to hearsay evidence. See Buhari Obasanjo (2005) 13 NWLR Part 941 pages 315 to 316. In Ojukwu vs. Yaradua (2009) 12 NWLR Part 1154 page 50 at 129 Paragraphs A – C in a similar situation where inadmissible piece of evidence was contained in a witness statement on oath the Supreme Court held thus:- “It is clear to me that paragraphs 14, 15, and 21 of the written statement are hearsay evidence and therefore inadmissible. In paragraph 14, the Petitioner told the witness of his inability to vote as well as three other Local Government Areas where no voting took Place. Paragraph 15 is another story told the witness by the Appellant on the efforts of the Appellant to reach the Resident Electoral Commissioner. Paragraph 21 is also another story told the witness by his friend Mr. Vincent Okoye. The only direct evidence is in paragraph 25 which does not contain much beyond the words of the paragraph. PER JIMI OLUKAYODE BADA, J.C.A.
FALSITY OF AN ELECTION RESULT: DUTY UPON A PETITIONER CHALLENGING AN ELECTION RESULT ON THE GROUND OF FALSITY
A Petitioner challenging an election result on the ground of falsity is required to plead among others two sets of results. One in respect of the false result and the other relating to the result the Petitioner considered to be genuine or correct. It is the two sets of results that would be compared to determine the falsity or otherwise of the result. It is not sufficient to sustain an allegation of falsification of election result by merely asserting that the figures in the result of an election were falsified. See the following cases:- – Buhari vs. Obasanjo (2005) 2 NWLR Part 910 Page 241 : – Moghalu vs. Ngige (2005) 4 NWLR Part 914 Page 1: – Adun vs. Osunde (2003) 16 NWLR Part 847 Page 643. In Yusuf vs. Obasanjo (2005) 18 NWLR Part 956 at 182 to 183 Paragraphs E to F this Court held as follows:- “It is more than settled in a long line of cases by both this Court and the Supreme Court that when a Petitioner challenges the return of a statutory Respondent on account of falsity of result, it is incumbent on such Petitioner to plead and produce in evidence two sets of results one correct and the other stigmatized as false.” See also the case of:- – Audu vs. INEC No. 2 (supra) page 521 paragraphs E to G. PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES:
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
Between
1. HON. MUSA TANKO ABARI
2. CONGRESS FOR PROGRESSIVE CHANGE – Appellant(s)
AND
(1) HON. PHILIP T. ADUDA
(2) PEOPLES DEMOCRATIC PARTY
(3) INDEPENDENT NATIONAL ELECTORAL COMMISSION – Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of National and State House of Assembly Election Tribunal at Abuja delivered on the 18th day of October, 2011.
Briefly the facts of the case are that on the 9th day of April, 2011 there was a General Election for the Senatorial Seat in the AMAC/BWARI Federal Constituency, Abuja. The election result was declared on the 10th day of April, 2011 wherein the 1st Respondent was returned elected having scored the highest lawful majority votes. The Appellants filed their Petition on 29th April, 2011 challenging the return of the 1st Respondent.
The grounds upon which the Petition was based are as follows:-
(a) Non-qualification pursuant to Section 145(1)(a) of the Electoral Act 2006;
(b) Corrupt Practices pursuant to Section 145(1)(b) of the Electoral Act 2006;
(c) Non-Compliance pursuant to Section 145(1)(b) of the Electoral Act 2006. (See pages 4 to 5 of the Record of Appeal.)
At the conclusion of hearing, the learned trial Judges of the Tribunal in a considered Judgment dismissed the Petition in its entirety.
Dissatisfied with the Judgment of the trial Tribunal, the Appellants now appealed to this Court.
The learned Counsel for the Appellants formulated two issues for determination of the appeal, the issues are set out as follows:-
“(1) Whether the 1st Petitioner, having testified that the FCT Senatorial Election result was false, the 3rd Respondent under the principles of the burden of proof not obliged to present, vide relevant forms, the results of the said election before the Tribunal (Distilled from Ground 1).
(2) Whether the trial Tribunal was right to have regarded the testimony of the 1st Petitioner to the effect that the result which returned the 1st Respondent as winner of the FCT Senatorial Election as false as hearsay evidence (Distilled from Ground 2).”
The 1st, 2nd and 3rd Respondents adopted the two issues formulated for determination by the Appellants.
At the hearing, the learned Counsel for the Appellants referred to the brief of argument filed on 11/11/2011 and the Appellants’ reply brief filed on 22/11/2011.
He adopted the two briefs of argument and urged that the appeal be allowed and Judgment of the lower Court to be set aside.
On the other hand Learned Senior Counsel for the 1st and 2nd Respondents referred to the brief filed on behalf of the two Respondents on 17/11/2011.
He applied to adopt the said brief as his argument in urging that this appeal should be dismissed.
He urged that the submission of the Appellants that there was no election was not an issue at the trial Court. He referred to paragraph 6 of the witness statement of PW1 on pages 30 and 31 of the record of appeal. He stated that the trial Tribunal considered the said paragraph 6 of the witness statement of PW1 at Page 510 of the record of appeal.
He also referred to pages 412 and 413 of the said record and urged that the appeal be dismissed.
The learned Counsel for the 3rd Respondent referred to the brief filed on behalf of the 3rd Respondent on 21/11/2011. He applied to adopt the said brief as his argument in urging that the appeal be dismissed.
ISSUES 1 AND 2 (TAKEN TOGETHER)
The learned Counsel for the Appellants contended that the result declared by the 3rd Respondent in which the 1st Respondent was returned as the winner of the FCT Senatorial Election was false. He referred to paragraph 7 of the Petition on page 4 of the record of appeal.
He submitted that the Petitioners did not have any burden of proof placed on them to prove the falsity of the result. He went further that it is the responsibility of the 3rd Respondent to conduct all elections under a democratic government and provide authentic results of the Election accordingly. He argued that, once the authenticity of an announced result is being attacked, the burden of proving whether or not the result announced or declared is authentic rests on the 3rd Respondent to produce the results in issue.
It was also argued on behalf of the Appellants that where a piece of evidence stands unchallenged, the Court or Tribunal is obliged to accept it as true.
The learned Counsel for the Appellants also argued that the Tribunal ought to have shifted the burden of proof to the Respondents to produce the results of the FCT Senatorial Election.
He relied on the case of:-
– Trade Bank Plc vs. Chami (2003) 13 NWLR Part 836 at Page 158.
He argued further that the Tribunal should have invoked the provisions of Section 167 of the Evidence Act to presume that the result as depicted in paragraph 7 of the Petition is false. On the 2nd issue, he referred to the decision of the trial Tribunal on its view that paragraph 6 of the 1st Appellant’s statement on oath was a documentary hearsay. He went further in his argument that there was no document before the Tribunal from which it could be inferred that paragraph 6 amounts to “documentary hearsay”.
He relied on the case of:-
Osagede Ojo vs. Dr. Gharoro 25 NSCQR Page 712 at 736.
He finally urged this Court to allow this appeal by setting aside the Judgment of the Tribunal and order a retrial of the Appellants’ Petition.
The learned Senior Counsel for the 1st and 2nd Respondents referred to the grounds upon which the Petition was based and he stated that there was no ground in the Petition that election was not conducted in any of the Polling Units in the FCT Senatorial District Abuja.
He submitted that the Appellants having failed to adduce any admissible evidence in discharge of the burden of proof showing that there was no election, no burden shifted to any of the Respondents to present any relevant forms or /and the results of the said election before the Tribunal.
On the 2nd issue, the learned Counsel referred to the decision of the trial Tribunal and submitted that, witness statement on oath is an evidence in chief in a documentary form. The piece of evidence that no election took place in all polling units in Abuja Senatorial District on 9th day of April, 2011 refer to a fact which could be seen by a person present in those Polling Units at the time of the election.
He relied on the following cases:-
-Audu vs. INEC No.2 (2010) 13 NWLR Part 1212 Page 456 at 522 – 523;
– Buhari vs. Obasanjo (2005) 13 NWLR Part 941 Pages 315 – 316;
– Ojukwu vs. Yaradua (2009) 12 NWLR Part 1154 Page 50 at 129 Paragraphs A – C.
He finally urged the Court to dismiss the appeal.
In his reply to the 1st and 2nd Respondents’ brief of argument the learned Counsel for the Appellants submitted that the principles and procedure for determining issues in election petitions are not as strict as those applicable in civil cases.
He relied on the following cases of:-
– Agumuo vs. Ogwuegbu (1999) 4 NWLR Part 599 at 405;
– Yahaya vs. Abdulahi (2006) 3 JNSC Part 8 Page 120.
On issue 2 concerning the fact that the Tribunal referred to the 1st Appellant’s witness statement on oath as hearsay, learned Counsel for the Appellants submitted that the said witness statement on oath in paragraph 6 does not fit into any of the classes of hearsay in accordance with the provision of Section 37 of the Evidence Act.
On his own part the learned Counsel for the 3rd Respondent submitted that the Appellants rested their case on the evidence of a sole witness – Hon. Musa Tanko Abari (PW1) whose evidence was discredited under cross examinations by the Respondents.
He relied on the following cases:-
– Wali vs. Bafarawa & Others (2003) 3 LRECN Page 25 at 55 Paragraphs D-E;
– Remi vs. Sunday (1999) 2 LRECN Page 132 at 146 Paragraphs G – A;
– Adighije vs. Nwaogu (2010) 12 NWLR Part 1209 Page 419 at 460, 468 Paragraphs D to G and F to G;
– Aregbesola vs. Oyinlola (2011) 9 NWLR Part 1253 Page 458 at 594 Paragraphs A to B.
On issue 2 learned Counsel for the 3rd Respondent submitted that the argument on it should be discountenanced in view of the fact that the witness statement on oath of PW1 has been discredited under cross examination.
He went further that the Appellants did not carry out inspection of data base of all the registered voters and ballot papers used in the conduct of the Senatorial Election on 9th April, 2011, in the Federal Capital Territory. He then submitted that the Appellants failed to prove paragraph 6 of the PW1’s witness statement on oath. He relied on the following cases:-
– Yusuf vs. Obasanjo (2005) 18 NWLR Part 956 at 166 to 167 Paragraph H to A;
-Chime vs. Ezea (2008) 2 LRECN Page 973 at 705 to 706 Paragraph H – A.
He finally urged this Court to dismiss the appeal.
The Appellants’ Notice of Appeal filed on 31/10/2011 was made up of 8 grounds of appeal. In the Appellants’ brief of argument filed on the 11/11/2011, two issues for determination were distilled from Grounds 1 and 2. No issue was raised from grounds 3 to 8. It is therefore my view that the Appellants have abandoned grounds 3 to 1 of the Notice of Appeal and the said grounds 3 to 1 are hereby struck out.
The grounds upon which this Petition was based were set out earlier in this Judgment.
The Appellants filed their Petition against the declaration of the 1st Respondent as the winner of the Senatorial Election held on 9th day of April, 2011 in the Federal Capital Territory. Attached to the Petition are the list of documents to be relied upon by the Petitioner and the list of 5 witnesses to be called.
The Appellants rested their case on the evidence of PW1 i.e. Musa Tanko Abari who is the sole witness.
The witness statement of the said Hon. Musa Tanko Abari is at pages 13 to 14 of the record of appeal and the relevant part is set out as follows:-
“2. By virtue of my position, I was virtually at all the Polling stations in the Presidential and National Assembly Election held on Saturday the 9th day of April, 2011 .
3. At about 7.00am in the morning of the said Election Day, I went to the Police Station where I was supposed to observe the distribution of Election materials to Electoral Officials.
4. At about 10.00 am when there was no INEC official or materials in the sight I became worried and enquired from the Police officers at the station if and when the distribution of Election materials will be carried out at the Police Station. I was told by the police officers that they had neither seen any INEC officials nor their materials.
5. I therefore took a tour of the wards and Polling Stations in the Area Councils where I discovered that there was no Election going on in any part of the Area Councils. I also met all the Wards and Polling Unit Agents of our Party whom I had dispatched to various beats earlier in the day in the hope that the Election will be conducted at the Polling Units. They all reported to me that INEC officials and PDP Agents hijacked the materials to unknown destinations where they conducted secret voting by multiple thumb printing of ballot papers.
6. The purported results that emanated from the polling units and wards in the Area Councils during the said Election are false, fictitious and fabricated.”
The Appellants in this case relied on paragraph 6 of the 1st Appellant’s witness statement on oath earlier set out above.
The learned Counsel for the Appellants argued that Election was not conducted in the Senatorial District of the Federal Capital Territory Abuja. He relied on paragraph 6 of Petitioners statement on oath. He also submitted that that same piece of evidence was in support of the grounds based on corrupt practices as contained in paragraph 10(b) of the Petition.
It is necessary to emphasize it at this juncture that whether the said paragraph 6 of the 1st Appellant’s witness statement on oath is in support of corrupt practices or in support of the unpleaded allegation of non-conduct of the Election in the Senatorial District of the Federal Capital Territory Abuja on 9th of April, 2011, the burden of proof is on the Appellants to prove the substance of his allegations. It is not right to make allegations in the pleadings, as the Appellants have done and thereafter expect the Respondents to show by evidence that such an allegation is false.
The Appellants after the pleading in paragraph 6 of the Petition should have taken a further step to adduce credible evidence in support of each of the allegations in the pleading. What the Appellants have done in paragraph 6 of the 1st Appellant’s witness statement on oath amounts to evidence given by the witness relying on information by another person, this is hearsay and it is not admissible. It is after the Appellants have discharged the burden of proof on a balance of probability that the onus shifts on the Respondents to prove that the allegation is false. The Respondents will do this also by calling evidence in rebuttal of each of the allegations.
It is settled law that the burden of proof is on the person who will lose if no evidence were led.
This will now lead me to consider provisions of Sections 131, 132 and 133 of the Evidence Act 2011 (as amended) which provides thus:-
“131(1) Whoever desire any Court to give Judgment as to any Legal Right on the existence of facts which he asserts must prove that those facts exist.
2. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
132. The burden of proof in a suit or proceeding lies on the person who would fail if no evidence at all were given on either side.
133. In civil cases, the burden of first proving the existence or non – existence of a fact lies on the party against whom the Judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
2. If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom Judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleading have been dealt with.
3. Where there were conflicting presumptions, the case is the same as if there were conflicting evidence.”
The above views, and the provisions of the Evidence Act set out are fortified by the following cases:-
In Buhari vs. INEC (2008) 12 SCNJ Page 1 at 68 the Supreme Court held as follows:-
“A Petitioner who files a Petition under Section 145(1) of the Electoral Act, has the burden to prove the ground or grounds, if the Petitioner does not prove his case under Secfion 145(1) of the Act, the action fails.”
I have set out the grounds upon which petition is based earlier in this Judgment.
The reliefs claimed by the Appellants at the trial Tribunal are hereby set out as follows:-
(1) That the 1st Respondent was and is disqualified from contesting the Election and being returned as duly elected having not met the statutory and Constitutional qualifications to contest the said Election.
(2) That the entire election in the Federal Capital Territory Senatorial District was invalid, null and void and the purported election of the 1st Respondent nullified by reason of massive and pervading irregularities, corrupt practices, heinous electoral offences and monumental non-compliance with the laws governing the election.
(3) Any other reliefs …………………………
……………………………………………………………..
……………………………………………………………..”
Once again I have to emphasise that it is the law that a petitioner has the burden to proof the reliefs sought in the Petition to obtain Judgment. That burden does not shift. This is because he is the party who claims the reliefs in the Petition and so the onus rests on him.
Burden of proof can be divided into three.
(1) The Legal burden [Section 131 of the Evidence Act 2011 (as amended)]
(2) The evidential burden [Section 132 of the Evidence Act 2011 (as amended)]
(3) Burden on the pleadings [Section 133 of the Evidence Act 2011 (as amended)]
In Buhari vs. Obasanjo (2005) 7 SCNJ Page 1 at Page 47 Uwais CJN held that:-
“In general, in a civil case, the party that asserts in its pleadings the existence of a particular fact required to prove such fact by adducing credible evidence. If the party fails to do so its case will fail. On the other hand, if a party succeeds in adducing evidence to prove the pleaded fact, it is said to have discharged the burden of proof that rests on it. The burden is then said to have shifted to the party’s adversary to prove that the fact established by the evidence adduced could not on the preponderance of evidence, result in the Court giving Judgment in favour of the party. These propositions are product of Sections 135 to 139 of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990.”
See also the following cases:-
– N.B.N. vs. Opeopla (1994) 1 NWLR Part 319 Page 126;
– Akinfosile vs. Ijose (1960) SCNLR Paqe 447;
– Okechukwu vs. Ndah (1967) NMLR Page 368;
-Messrs Lewis & Peat (N.R.I) Ltd vs. A. E. Akhimien (1976) 7 S. C. Page 157 at 169.
In this appeal under consideration the Appellants rested their case on the evidence of their sole witness Hon. Musa Tanko Abari PW1 whose evidence was discredited under cross examination by the two sets of Respondents.
After the adoption of the witness statement on oath by the trial Tribunal, the 1st witness who doubles as the 1st Petitioner at the trial Tribunal was cross examined.
The cross examination is hereby set out as follows:-
“Cross Examination by SAN
There was an order by INEC that we should not go out so I did not visit any Police Station contrary to paragraphs 3 and 4 of my statement on oath.
If anybody comes to tell the Court that I went to the Police Station on the day of election, such will be an error.
Based on the rules of INEC, I did not go anywhere on the day of election. I casted my vote and went back home.
If anybody came before the Court to say I went round all the Polling Units on the day of election, that would be an error.
I admit that everything stated in my written statement on oath was stated by me.
I swear that everything in my written statement on oath is correct.
I further confirm that the statements in paragraphs 3 and 4 are in error.
I also confirm that paragraph 5 which stated that I went round the Polling units in the Constituency is an error.
“Cross Examination by Madaki
I cast my vote at View Centre at JIWA.
I cast my vote after 12:30pm.
After casting my vote, I went back to my house in compliance with INEC Rules,
Nobody harassed or embarrassed me before I cast my vote.
At JIWA Viewing Centre where I cast my vote, the voting there was free and fair.”
(See pages 412 to 413 of the record of appeal).
A careful review of the witness statement on oath of the 1st Petitioner’s witness earlier set out in this Judgment and the cross examination set out above after the adoption of the said witness statement would reveal that the evidence of PW1 was full of contradictions and same crumbled like “pack of cards”.
In his witness statement on oath the 1st Appellant stated that he was virtually at all the wards and polling stations for the election of 9/4/2011 in Abuja, and he discovered that there was no election in the wards and polling stations in the area councils which made up the Federal Capital Territory. He stated further that he went to the Police Station to observe distribution of election materials.
But under cross examination he stated that all the allegations he made were made in error. He denied paragraphs 2, 3, 4 and 5 of his witness statement and said the paragraphs were made in error.
The evidence adduced by the 1st Appellant in his witness statement and his evidence under cross examination when placed side by side are contradictory. No Tribunal or Court can rely on such evidence which has been discredited under cross examination.
In the circumstance it is my view that the 1st Appellant is an unreliable witness.
In Wali vs. Bafarawa & Others (2003) 3 LRECN Page 25 at 55 Paragraphs D to E, this Court held thus:-
“It is trite law that evidence that is not pleaded is of no effect. But not only that, the evidence of PW4 is contradictory in that he first said a Policeman intimidated agent of the Appellant at gun point, but in cross examination, he changed it to be a soldier and there was no explanation to the contradiction as to whether it was a policeman or a soldier.
No reasonable Tribunal could act on evidence of a witness that has been successfully discredited under cross examination. The Tribunal however evaluated and assessed his credibility and found him most unreliable. I cannot agree better.”
Under Section 131 (1) of the Evidence Act 2011 as amended, the burden of first proving the existence or non-existence of a fact lies on the Petitioners/Appellants. It is not enough to make a bare assertion. It must be supported by credible and admissible evidence before the burden will shift.
See Aregbesola vs. Oyinlola (Supra).
On issue 2, the trial Tribunal in rejecting paragraph 6 of the 1st Appellant’s witness statement on oath as documentary hearsay gave its reasons on page 510 lines 21 to 29 of the record of appeal as follows:-
“We are in total agreement with the Senior Advocate that paragraph 6 of his statement on oath amounts to evidence given by the witness relying on information by another person, and therefore a hearsay. Since the witness under cross examination maintained that after voting he did not go anywhere that day in obedience to INEC directives, that all the statements made in paragraphs 2, 3, 4 and 5 that he went round that day are statements made in error. He is not capable of being ubiquitous, therefore paragraph 6 is a hearsay evidence which is inadmissible.”
In situations like this, the witness statement on oath is an evidence in-chief in a documentary form. To be admissible it must satisfy all the conditions laid down by the Evidence Act before an oral testimony of a witness is admitted. The piece of evidence that no election took place in all Polling Units in Abuja Senatorial District on 9th day of April, 2011 refer to a fact which could be seen by a person present in those Polling Units at the time of the election. The competent witness in the instant case shall be the Presiding Officers or Party Agents present at the Polling Units or and registered voters who could not vote. (See Section 126(a) of the Evidence Act 2011, And also the case of:-)
Audu vs. INEC No.2 (2010) 13 NWLR Part 1212 Page 456 at 522 to 523.
On page 413 lines 4 to 10 of the record of appeal the Appellant’s evidence on record at the trial Court was that:-
“I cast my vote at View Centre at JIWA, I cast my vote after 12:30 pm. After casting my vote, I went back to my house in compliance with INEC directives.
Nobody harassed or embarrassed me before I cast my vote at JIWA View Centre.
……………………………………………………………..
The voting there was free and fair.”
It is my view that the above piece of evidence obtained from the 1st Appellant during cross examination contradicts his evidence on paragraph 6 of his witness statement on oath which was construed to mean that there was no election in all the Polling Units in the FCT Senatorial District on 9th day of April, 2011.
Apart from the evidence of election in JIWA View Center, all other piece of evidence relating to what happened in the Polling Units which the 1st Appellant never visited amounted to hearsay evidence.
See Buhari Obasanjo (2005) 13 NWLR Part 941 pages 315 to 316.
In Ojukwu vs. Yaradua (2009) 12 NWLR Part 1154 page 50 at 129 Paragraphs A – C in a similar situation where inadmissible piece of evidence was contained in a witness statement on oath the Supreme Court held thus:-
“It is clear to me that paragraphs 14, 15, and 21 of the written statement are hearsay evidence and therefore inadmissible. In paragraph 14, the Petitioner told the witness of his inability to vote as well as three other Local Government Areas where no voting took Place.
Paragraph 15 is another story told the witness by the Appellant on the efforts of the Appellant to reach the Resident Electoral Commissioner. Paragraph 21 is also another story told the witness by his friend Mr. Vincent Okoye. The only direct evidence is in paragraph 25 which does not contain much beyond the words of the paragraph.”
Before I conclude, I will also like to point out that the burden of proof that election result was false rests on the Appellants as they did not produce before the trial Tribunal the said false result. The burden has not shifted to the Respondents.
A Petitioner challenging an election result on the ground of falsity is required to plead among others two sets of results. One in respect of the false result and the other relating to the result the Petitioner considered to be genuine or correct. It is the two sets of results that would be compared to determine the falsity or otherwise of the result. It is not sufficient to sustain an allegation of falsification of election result by merely asserting that the figures in the result of an election were falsified. See the following cases:-
– Buhari vs. Obasanjo (2005) 2 NWLR Part 910 Page 241;
– Moghalu vs. Ngige (2005) 4 NWLR Part 914 Page 1;
– Adun vs. Osunde (2003) 16 NWLR Part 847 Page 643.
In Yusuf vs. Obasanjo (2005) 18 NWLR Part 956 at 182 to 183 Paragraphs E to F this Court held as follows:-
“It is more than settled in a long line of cases by both this Court and the Supreme Court that when a Petitioner challenges the return of a statutory Respondent on account of falsity of result, it is incumbent on such Petitioner to plead and produce in evidence two sets of results one correct and the other stigmatized as false.”
See also the case of:-
– Audu vs. INEC No. 2 (supra) page 521 paragraphs E to G.
Consequent upon the foregoing, it is my view that the Appellants failed woefully to prove their Petition before the trial Tribunal and the only case of false election result which they relied upon based on paragraph 6 of the 1st Appellants witness statement on oath cannot sustain this appeal as same collapsed along with paragraphs 2, 3, 4 and 5 of the witness statement on oath.
You cannot place something on nothing and expect it to stand. See the case of:-
– Macfoy v. U.A.C. Ltd (1961) 3 All E. R. Page 1168 at 1172 Paragraph I
In view of the foregoing issues 1 and 2 are hereby resolved in favour of the Respondents and against the Appellants.
In the final analysis, it is my view that this appeal lacks merit and it is accordingly dismissed.
There shall be N50,000.00 (Fifty Thousand Naira) costs in favour of the Respondents jointly and against the Appellants jointly.
HUSSEIN MUKHTAR, J.C.A.: I have had a preview of the judgment just delivered by my learned brother Jimi Olukoyode Bada, JCA. I fully agree with the reasons advanced therein to arrive at the conclusion that the appeal is devoid of merit and should be dismissed
Suffice it to stress that a party wishing to challenge an election result on any ground has the incumbent duty to prove that which is alleged by him to be wrong. In this case the evidence of the witnesses for the petitioner as to what allegedly happened at certain polling stations in their absence is certainly hearsay. It is only a person who saw what happened that could give direct evidence as to what he actually saw. By the provision of section 126 of the Evidence Act 2011, oral evidence must be direct and any testimony regarding any fact which could be seen must be that of a witness who said he saw such fact. Hearsay evidence is inadmissible and in the instant case, the petition was certainly not proved by hearsay evidence as rightly held by the lower tribunal.
For forgoing and the more detailed reasons so eloquently appraised in the lead judgment which I hereby adopt, this appeal is glaringly bereft of merit and same is hereby dismissed by me. The judgment of the lower tribunal delivered on the 18th October, 2011 is accordingly affirmed. I subscribe to other consequential orders inclusive of the one as to costs.
EJEMBI EKO, J.C.A.: On 9th April, 2011 the INEC, the 3rd Respondent in this appeal, conducted a general election in the Abuja Senatorial District,
The appellants participated in the election against the 1st and 2nd Respondents. The 1st Respondent, sponsored by the 2nd Respondent, was returned by INEC as the person who won the election with the majority of lawful votes cast in the election.
The 1st Appellant, the candidate sponsored by the 2nd Appellant, challenged the declaration and return of the 1st Respondent at the Election Tribunal. He is challenging the return of the 1st Respondent, among other things, on the ground that there was no election at all in the polling units. This is contained in his depositions on oath verifying the petition. In the said depositions he categorically averred in paragraphs 26 that on the election day he was “virtually at all the polling stations” to monitor the election and that upon his “tour of the wards and polling stations” he discovered “that there was no election going on in any part of the Area Councils”. It is on this ground that he averred further that “the purported results that emanated from the polling units and wards in the area councils during the election are false, fictitious and fabricated”.
These categorical statements made on oath by the 1st Appellant who testified as the PW. 1 could not stand the test of cross-examination in which he admitted that because “there was an order by INEC that we should not go out” he did not go anywhere on the election day, and that after he had cast his vote he “went back home”. By this recanting he thereby contradicted himself and rendered his evidence-in-chief in the depositions on oath completely false and unreliable. At best he had shown himself to be a liar. In the old English case of CLARK v. MOLYNEUX (1897) 3 QB 237 at 247 it was stated:-
If a man is proved to have stated that which he knew to be false, no one need enquire further. Everybody assumes from thenceforth that he was malicious, that he did a wrong thing for a wrong motive.
The trial tribunal was, therefore right in my view to have disbelieved this liar wanting to be member of the Senate of the Republic upon a maliciously packaged falsehood contained in paragraphs 2 – 6 of his depositions on oath.
It is now beyond doubt that there is a rebuttable presumption in law that election results declared by electoral officers are correct and authentic and the onus of proof is on the person who denies their correctness and authenticity to rebut the presumption. See NWOBODO v. C. C. ONOH (1984) 1 SC 1 at 52; OMOBORIOWO v. AJASIN (1984) 1 SC 206 at 227. This presumption of regularity is anchored on Section 168 of the Evidence Act, 2011 (Section 150 of Evidence Act of the former Act).
In civil cases, including election petitions, the onus of proof shifts from the plaintiff to the defendant and vice versa from time to time as the case progresses. It rests heavily on the party who will fail if no evidence at all, or more, as the case may be, were given on either side. See EJIOGU v. ONYEAGUOCHA (2006) All FWLR (pt.317) 467. See also Sections 131, 132 and 133 of the Evidence Act, 2011 (the sections 135, 136 and 137 of the former Evidence Act). In election petition, the petitioner has the burden of proving the grounds on which he founded his petition, in order to succeed. See BUHARI v. INEC (2008) 12 SCNJ 1 at 68. The appellants, in this case, can not shierk their responsibility and throw on the respondents the burden of proving that the elections took place and the results emanating therefrom are neither fabricated, false nor fictitious. The golden rule is, he who asserts must first prove his assertion. It is after that the burden shifts on the defendants or respondents to prove the contrary.
For these and the fuller reasons in the judgment just delivered by my learned brother, J. O. BADA, JCA. I am of the firm view that the appeal lacks substance and it is accordingly dismissed. The judgment, including all consequential orders therein are hereby adopted by me.
Appearances
Mr. Ikechukwu Uzuegbu For Appellant
AND
Chief Karina Tunyan SAN with him are A. I. Moru, M. Aliero and J. Okereke for the 1st and 2nd Respondents.
Mr. P. M. Ayam for the 3rd Respondent, with him is A. V. Aderemi. For Respondent
