HON. RALPH OKEKE & ORS. V. CHIEF (MRS) EDITH MIKE EJEZTE & ORS.
(2010)LCN/4132(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 14th day of December, 2010
CA/E/EPT/66/2008 (Consolidated
RATIO
PRELIMINARY OBJECTION: WHETHER WHERE A PRELIMINARY OBJECTION HAS BEEN RAISED , SAME MUST BE DETERMINED FIRST BEFORE THE MAIN APPEAL
At this juncture, I wish to state that the disposal of this appeal would demand that the series of preliminary objections raised by the 1st respondent/appellant ought and should first be disposed of before the disposing of the respective appeals for purpose of allowing a free flow pathway to the hearing of the appeals and cross-appeal. I am fortified on the following authorities: 1. S.B.N. Ltd Vs. I.O. Corp.(2001) 1 NWLR (Pt.693) 191. 2. Onyekwuluje vs. Animashaun (1996) 3 NWLR (Pt.439) 637. In Ogboru vs. Ibori (2005) 13 NWLR (Pt.942) 319, a court is enjoined to determine pending application before judgment is delivered. The existence of a preliminary objection in an appeal symbolizes a rough path way clogging the hearing of such appeal. Without first determining and disposing of same, the appeal cannot properly be set for determination. PER MOHAMMED L. TSAMIYA, J.C.A.
RECORD OF APPEAL: EFFECT OF A RECORD OF APPEAL
It is settled that a record of appeal is presumed to be correct and accurate unless shown by a proper affidavit duly inundated otherwise. See Oieme vs. Momodu (1994) 1 NWLR (Part 323) 685 at 697. In Julius Bereer (Nig.) Ltd. vs. Femi (1993) 5 NWLR (Pt.295) at 619 – 520, this court in somewhat a similar situation held thus”. “The appellate court and the parties are bound by the contents of the record of appeal. I am clearly of opinion that the record of appeal cannot be successfully amended by such oblique assertion or procedure suffice it now to say that since the court is bound by the record of appeal as presented to it by the registrar of the lower court, it follows that the assertion by the respondent’s counsel is tendentious and must be completely discountenanced” Per Achike J.C.A. (as he then was). See also Omoni Vs Tom (1991) 6 NWLR (Pt.195) 93 at 108. PER MOHAMMED L. TSAMIYA, J.C.A.
GROUND OF APPEAL : WHETHER A GROUND OF APPEAL AGAINST A DECISION OF A TRIAL COURT MUST RELATE TO THAT DECISION AND SHOULD BE A CHALLENGE TO THE RATIO OF THE DECISION
It is elementary rule of practice that ground or grounds of appeal must arise from the judgment appealed against. Where a ground of appeal is not borne out by the decision it purports to have evolved from, that ground of appeal would have to be discountenanced for being in competent. See Lambert vs. Nigerian Navy (2006) 7 NWLR (Pt.980) 514 at 532 (Par.E.F.). Similarly, in International Offshore Construction Ltd. vs. S.L.N. Ltd. (2003) 16 NWLR (Pt.845) 157 at 176, it was held as follows: “It is trite that a ground of appeal against a decision of a trial court must relate to that decision and should be a challenge to the ratio of the decision. A ground of appeal must arise from the judgment. Where a ground of appeal is not related to the judgment of the lower court, it becomes incompetent.See also Egbe vs. Alhaji (1990) NWLR (Pt.128) 546. PER MOHAMMED L. TSAMIYA, J.C.A.
GROUND OF APPEAL : EFFECT OF A GROUND OF APPEAL THAT IS NOT RELATED TO THE JUDGMENT APPEALED AGAINST
A ground of appeal which is not related to the judgment appealed against becomes incompetent and is to be struck out. See Adelekan vs. Eculine N.V. (2006) 12 NWLR (Pt.993) 33. Accordingly, ground 1 of the notice of cross-appeal having been found not related to the judgment appeal against, is in competent and is struck out. PER MOHAMMED L. TSAMIYA, J.C.A.
INCOMPETENT GROUNDS OF APPEAL : CONSEQUENCE OF DISTILLING ISSUES FOR DETERMINATION IN AN APPEAL FROM INCOMPETENT GROUNDS OF APPEAL
It is the law that issue formulated for determination in an appeal must be distilled from competent grounds of appeal. And where the issues are formulated from incompetent grounds of appeal such issues would by extension be incompetent. Issue 1 therefore is incompetent having been derived from an incompetent ground. Issue not derived from a competent ground of appeal must be struck out. See Okonkwo vs. Ogbogu (1996) 5 NWLR (Pt. 449 420 at 429. Both ground 1 and issue 1 distilled from it are struck out. See Lambert vs. Nigerian Navy (supra ) at 532. PER MOHAMMED L. TSAMIYA, J.C.A.
GROUNDS OF APPEAL: CONSEQUENCE OF ARGUING AN INCOMPETENT GROUND OF APPEAL WITH A COMPETENT GROUNDS OF APPEAL
The law on this point is that if a ground of appeal is found to be defective, it must be struck out as done in this case. If struck out then the issue from which it was distilled will also be infected with this malady. Of greater calamity is the fact that ground I which is incompetent was argued together with grounds 2, 4, and 5 under issue 1 which is also found to be incompetent. It is therefore a futile exercise to take the ground which is incompetent and sift that which is competent therefrom because the four grounds were argued as one ground. It is not the duty of the court to separate argument in respect of the good grounds from those of the bad one. See Nwadike vs. Ibekwe (1987) 4 NWLR (Pt.67) 718. It is not possible when incompetent ground of appeal is argued in the brief of argument with competent grounds of appeal for the court to be able to examine in the light of the grounds of appeal whether the judgment appealed from is wrong or right. In Avalogu vs. Agu (1998) 1 NWLR (Pt. 532) 129 at 143 (par. A – F), the effect of arguing a competent grounds of appeal together with an incompetent one upon a joint issue raised was also explained thus: “The arguments on these issues are without gainsaying, incompetent or improper and ought to be expunged. But expunction is well high impossible because all the six issues were argued in the appellant’s Brief. Arguments in support of improperly raise issues were taken together with those for the tolerable ones. The problem of the court if faced with, is how to separate the argument for the remaining two issues from those in respect of the other four …. In the appellant’s brief he formulated issues from both original and additional grounds of appeal. In arguing the appeal in the appellant’s brief, counsel related grounds of appeal filed along with the notice of appeal as well as the purported or inchoate grounds of appeal to the same issue and it became impossible to separate argument advanced on issue in respect of perfect and imperfect grounds….. The issues carried out of bad grounds literally choked up those of good grounds,” See also Bereyim vs. Ogbodo (1989) 1 NWLR (Pt.97) 372 at 380. PER MOHAMMED L. TSAMIYA, J.C.A.
JUSTICES
AMINA A. AUGIE Justice of The Court of Appeal of Nigeria
MOHAMMED L. TSAMIYA Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
Between
1. HON. RALPH OKEKE – CA/E/EPT/66/2008
1. CHIEF (MRS) EDITH MIKE EJEZTE AND – CA/E/EPT/66A/2008
1. CHUKWUJEKWU OKEKE (Returning Officer Anambra East/West Federal Constituency)
2. MRS. BLESSING NWANKWO (Electoral Officer, Anambra State Local Government Area)
3. THERESA ADUGBE (Electoral Officer, Anambra East local Government Area)
4. ALHAJI NASIRU AYILARA (Resident Electoral Commissioner Anambra State)
5. INDEPENDENT NATIONAL ELECTORAL COMMISSIONER – CA/E/EPT/66B/2008 (Consolidated) Appellant(s)
AND
1. CHIEF (MRS) EDITH MIKE EJEZTE
2. CHUKWUJEKWU OKEKE (Ret. Officer, Anambra East/West Federal Constituency)
3. MRS BLESSING NWANKWO (Electoral Officer, Anambra East L.G.A.)
4. THERESA ADUGBE (Electoral Officer Anambra West L.G.A.)
5. ALHAJI NASIRU AYILARA (Resident Electoral Commissioner, Anambra State)
6. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – CA/E/EPT/66/2008
1. HON. RALPH OKEKE
2. MRS BLESSING NWANKWO (Electoral Officer, Anambra East L.G.A.)
3. THERESA ADUGBE (Electoral Officer, Anambra West L.G.A.)
4. ALHAJI NASIRU AYILARA (Resident Electoral Commissioner, Anambra State)
5. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – CA/E/EPT/66A/2008 AND
1. CHIEF (MRS) EDITH MIKE EJEZIE
2. HON. RALPH OKEKE – CA/E/EPT/66B/2008 (Consolidated) Respondent(s)
MOHAMMED L. TSAMIYA, J.C.A.(Delivering the Leading Judgment): The petitioner and the 1st respondent were two major contestants, who contested for the seat of the Anambra East/West Federal Constituency in the House of Representatives at the election held on 21st day of April, 2007. The Petitioner and the 1st respondent were sponsored by their respective political parties. The A.N.P.P. fielded the petitioner while the 1st respondent was fielded by P.D.P. The election was conducted by the 6th respondent. The 6th respondent, to be remembered, had the Constitutional and statutory powers to do so. The 2nd – 5th respondents were the officials of the 6th respondent which is the Independent National Electoral commission (INEC). At the conclusion of the election on the said 21st April, 2007, the 6th respondent announced the results of the election and declared the 1st respondent as the winner and returned him as the elected member of Anambra East/West Federal Constituency in the House of Representatives.
Being dissatisfied with final out-come of the election, the petitioner filed petition against the respondents at the Anambra State National Assembly/Governorship/Legislative Houses Election Petition Tribunal holding at Awka. The grounds and facts upon which the petition was anchored are as adumbrated in paragraphs 1 – 27 at pages 1 – 9 of Vol. 1 of the records. In the petition the petitioner alleged:
1. That the 1st respondent, (Ralph Okeke) was not validly elected.
2. That the 1st respondent did not score a majority of the valid votes cast at the election.
3. That the results allegedly awarded in Anambra West and some parts of Anambra East in the said election into Federal House of Representatives for Anambra East/West Constituency be nullified and the return of the petitioner as the winner of the election voided.
4. That the petitioner be declared as elected.
The grounds upon which the petition was brought are as follows:
(a) Appellant was not duly elected by the majority of lawful votes cast.
(b) That the petitioner was the person duly elected and ought to have been returned as such.
Upon being served with the petition, all the respondents filed their respective replies debunking all the allegations contained in the petition. They all contended that the election was free, fair, and that all materials for the election arrived reasonably on times at their intended destinations and that the election was duly conducted and no irregularities.
At the close of pleadings the petition proceeded to pre-hearing session in line with the provisions of the Election Tribunal and Court Practice Direction 2007 (as amended). During the pre-hearing sessions, several interlocutory applications filed by the parties to the petition were duly heard and determined. The Honourable Tribunal having considered the totality of the pleadings and the issues submitted for determination by the parties herein, which are similar, formulated the following two issues which the Tribunal thought, as apt and germane for determination in the report of the pre-hearing session:
1. Whether the petitioner ought not to have been returned based on the majority of the lawful votes cast at the questioned election held on 21st April, 2007 in Anambra East/West Federal Constituency.
2. Between the petitioner and the 1st respondent who was validly elected by a majority of lawful votes cast at the said election. (See vol. ii, page 1189 of the Records of Appeal.
At the hearing of the petition, the petitioner called nine (9) witnesses and styled PW1 to PW9 in support of her petition and tendered numerous documents. All the said nine (9) witnesses were cross-examined in a bid to establish her case. She finally closed her case on …….. The 1st respondent and 2nd – 6th respondents in their defence called a total of sixteen (16) witnesses and styled DW1 – DW16. The Documentary evidence admitted by the Tribunal were marked as Exhibits “A – U” (see vol.1 pages 100 – 101 of the records of appeal).
Upon the conclusion of hearing and in compliance with paragraph 5(12) – (14) of the Practice Directions 2007, the Tribunal ordered the filing and exchange of written final addresses. Consequently, the Tribunal adjourned the petition to 6/3/2008 for adoption of the final addresses which same were duly complied with and the matter was adjourned for judgment. The Tribunal delivered its judgment on 15/5/2008 annulled the results of Election in some units and held that: “the petition of the petitioner partly succeeds.” The tribunal there upon held as follows:
1. “That the 1st respondent, Hon. Ralph Okeke of the PDP was not validly elected and was not validly returned as the winner of the said election.
2. That the said 1st respondent did not score a majority of the valid votes cast at the election.
3. That the results as declared by the 6th respondents (INEC) in respect of Aguleri ward 1, Umuoba-Anam ward, Nsugbe ward I and II, and the entire ten (10 wards in Anambra West Local Government Area are null and void and of no effect whatsoever and are nullified.
4. That the return of the 1st Respondent by INEC (2nd – 6th Respondents) as the winner of the election in dispute is set aside and nullified.
5. That the result of the election in the eleven (11) wards of Anambra East Local Government Area held on 21/4/2007 is validated.
6. That the 2nd – 6th Respondents particularly the 6th Respondent (INEC) is to conduct a fresh election in the Anambra west Local Government Area not later than 3 months from the date of this judgment.
7. That the result of the fresh election when validly declared by the INEC shall be added to the already valid scores of the Candidates and the candidate with the majority of the valid votes cast when so added, shall be returned by INEC as the winner of the election in to the Anambra East/West Federal Constituency in the House of Representatives.
8. That having the results of the election in dispute been validated as follows:
(a) That petitioner (1st Respondent – 18, 642) votes.
(b) The 1st Respondent (Appellant) 6,870 votes.
Both candidates along with other candidates of other parties, who were to have contested the said election in dispute, shall contest the fresh election to be held by INEC not later than 3 months from the date of the judgment in the Anambra West Local Government Area.” (See p. 1375, vol. II of the records of Appeal).
Dissatisfied with the judgment, the 1st respondent filed a Notice of Appeal with 21 Grounds of Appeal. The Notice of Appeal is in vol. II pages 1378 – 1394 of the records.
The Petitioner also cross-appealed against the Tribunal’s decision with a Notice of Appeal containing five (5) Grounds of Appeal. The Notice of Appeal is contained on pages 1395 – 1399 of Vol. ii of the records of Appeal.
The judgment of the Tribunal also becomes the subject of appeal by the 2nd – 6th respondents. Their Notice of Appeal was filed on 5/6/2008 with 21 Grounds of Appeal and spanning at pages 1400 – 1418 of Vol. iii of the records.
In sum total there are three appeals as a result of the decision of the Tribunal delivered nullifying the elections in some wards in the Constituency, and ordering another election in same, within 3 months from the date of the decision. The two sets of respondents and the petitioner before the Tribunal have each appealed to this court which appeals were, by an order of this court consolidated.
The issues for determination in the first appeal, No. CA/E/EPT/66/2008 identified by the learned senior counsel for the 1st respondent/Appellant as contained in his brief of argument filed on 9/9/2008 are as follows:
1. Whether the Tribunal was correct holding that the joinder of Presiding Officers who took part in the conduct of the election was not necessary in the just determination of petition. (Grounds XIX).
2. Whether based on the evidence led the tribunal was justified in holding that the Petitioner/1st Respondent established her case as required in an election petition thus necessitating a shift of Onus of proof to the 1st respondent/Appellant and 2nd – 6th Respondents to justify the result of the election. Grounds i, ii, v, ix, xiv, and xiii)
3. Whether the tribunal was right in its assessment of the evidence led on both sides with respect to the election in Anambra West Local Government to the effect that, election did not take place as a result of absence or late arrival of election materials. (Grounds x, xi, xii, xiv, xv, xvi, xviii).
4. Whether the tribunal was right in canceling the result of the election Aguleri Ward 1, Nsugbe Wards I and II and Umuoba-Anam Ward, all in Anambra East Local Government Area (Ground viii).
5. Whether the tribunal was justified in relying on the summary of list of voters, Exhibit “P8” which was neither pleaded not listed by the Petitioner/1st Respondent in sustaining her case. (Grounds iii and iv).
6. Whether the tribunal justified in accepts the result presented by the Petitioner/1st respondent with respect to the election in Anambra East Local Government and rejecting the case of the 1st respondent/Appellant and 2nd – 6th respondents/Appellants to the effect that the election was cancelled by reason of violence in some wards – (grounds vi, and vii).
In respect of cross-appeal, No. CA/E/EPT/66A/2008 learned senior counsel for the Petitioner/Cross-appellant identified, in the petitioner/cross-appellant’s brief of argument filed on 4/9/2008 two issues. The following are the two issues for determination:
i. Whether the Honourable Election Petition Tribunal had the statutory power or vires to nullify election and order a fresh election only Anambra West Local Government Area (which is only a part or section of the disputed Anambra East/West Federal Constituency) instead of declaring the Petitioner/Cross-Appellant the winner of the questioned election after making a finding that she polled a majority or highest number of valid votes cast at the election to the House of Representatives in respect of the Anambra East/West Federal Constituency held on 21st April, 2007 in Anambra State (see Grounds 1, 2, and 5 in the Notice of Cross-Appeal).
OR IN THE ALTERNATIVE
Whether the Honourable Election Petition Tribunal was right to have refused to declares the Petitioner/Cross-Appellant as the person elected/returned at the election held on 21/4/2007 in Anambra East/west Federal constituency after making a finding the Petitioner/cross-Appellant had polled a majority or highest number of valid votes cast at the said election.
ii. Whether the Tribunal below was right in granting reliefs or remedies not claimed before it in terms of ordering a fresh election be conducted in only the polling units in Anambra west local Government Area (which is just a part or section of the Anambra East/West Federal constituency after nullifying the fabricated election results declared for the wards in Anambra west Local Government Area where there was no election on 21/4/2007 (see Ground 3 in the Notice of Cross-Appeal).
The issues identified for determination in the third Appeal No. CA/E/EPT/66B/2008 filed in the 2nd – 6th respondent/appellants’ brief of argument and filed on 26/9/2008 are six. They are as follows:
1. Was the below right when it held that the Appellants did not supply or distribute any election materials to both INEC Headquarters in Anambra West Local Government Area at Nzam and in all the wards and polling stations. Grounds 3, 4, 15, 16, 18, 19, 22.
2. Was the Court below right when it held that the result generated from the polling booths and collated at the wards level in Anambra West Local Government Area on 21/4/07 were all products of fabrication. Grounds 1, 3, 10, 14, 23.
3. Was the court below right in holding that joinder of the Presiding Officers was not necessary in the determination of this Petition. Grounds 1, 10, 23, 24.
4. Was the Court below right in nullifying the results in Aguteri ward 1, Nsugbe 1 and II and Umuoba-Anam wards. Grounds 2, 9, 13.
5. Was the Court below right when it held that the result of Otuocha II was not impugned and remain valid and that the said result should be added to the total result of the election in Anambra East Local Government. Ground 5, 6.
6. Was the below right when it held that it was the Petitioner/Respondent that scored the majority of lawful votes cast in Anambra East Local Government Area. Grounds 12, 17, 18.
When all the issues as formulated by learned counsel for the 1st respondent/Appellant and 2nd – 6th respondents/Appellants in the appeals No. CA/E/EPT/66 & 66B/2008 are considered closely, one cannot escape the irresistible conclusion that they are the same though differently worded. In fact, having regards to the facts of this petition and the judgment of the Tribunal, there is really no need for the two separate appeals when a single one would have resolved the issues in controversy arising from the decision of the Tribunal. However, since right of appeal is guaranteed by the constitution of the Federal Republic of Nigeria 1999, an Appellate court is compelled to deal with the appeals as filed but parties and their counsel ought to realize that nothing would be gained by wasting the time of the Court with multiple appeals on the same issue when a single appeal would have been sufficient.
On the other hand, learned counsel for the petitioner/1st respondent in the first appeal, No. CA/E/EPT/66/2008 formulated, in their Amended 1st respondent brief of argument, six issues that are identical to the 1st respondent’s/Appellants’ issues for the determination. These are:
(1) Whether the tribunal was correct in holding that the non-joinder of the Presiding Officers is not fatal to the petition in the circumstances of the facts before the tribunal. Ground XIX.
(2) Whether the tribunal was right when it held that the petitioner had raised a case for the respondents to answer at the close of her case as to shift the onus to the appellant and the 2nd – 6th respondents to give a contrary evidence in rebuttal to the evidence of the petitioner. Ground I and XIV.
(3) Whether the tribunal was right in its assessment or evaluation of the evidence led on both sides with respect to the election in Anambra West Local Government Area to the effect that election did not take place on 21/4/2007 as a result of failure by the 2nd to 6th respondents to supply or distribute election materials within the scheduled election time or period of 10 am to 5 pm. Grounds X, XI, XIV, XVI, XVII and XVIII.
(4) Whether the tribunal was right in declaring or holding that the results of the election credited to the candidates with respect to Aguleri Ward 1, Nsugbe Qard 1, Nsugbe Ward II and Umuoba Anam Ward in Anambra East Local Government Area are not valid votes generated from polling units in those wards in the question election held on 2/4/2007. Ground VIII.
(5) Whether the tribunal was right in relying on both Exhibit P8 (Summary of Number of Registered Voters in the constituency) tendered by the Petitioner/1st respondent and other exhibits tendered by the appellant and 2nd to 6th respondents in sustaining or upholding the case of unlawful or invalid votes made by the petitioner/1st respondent with respect to the disputed 4 wards of Aguleri 1, Nsugbe 1, Nsugbe II and Umuoba Anam in Anambra East Local Government Area. Grounds III and IV.
(6) Whether the tribunal was justified in declaring or holding as genuine the results of the election for Otuocha Ward II and including same in the valid results of the election held on 21/4/2007 in Anambra East Local Government Area. Grounds VI and VII.
The 1st respondent/Cross-respondent raised in their respondent’s/Cross respondent’s brief filed on 15/9/2008, two issues determination. They are:
1. Whether the Tribunal was right in not returning the Cross-appellant as duly elected based on the results of some wards in Anambra East Local government areas comprising the Anambra East/West Federal Constituency. (Grounds I, II, and IV).
2. Whether having regard to the findings of the Tribunal, the learned judges of the tribunal were correct in ordering for fresh election to be held with respect to Anambra west local government area.
The 2nd – 6th respondents/Cross-respondents also in their 2nd Cross-respondents brief of argument filed on 15/9/2008 raised a lone issue which reads:
“Whether in all the circumstances of this case and the applicable law therefore, was the court below right to have declined returning the petitioner/Cross-appellant as the winner of the election ordering instead, for fresh election to be held in Anambra West local government area where election was found not has been held.”
The petitioner/1st Respondent in the third appeal NO.CA/E/EPT/66B/2008 in her petitioner/1st respondent’s brief of argument formulated six issues that are identical to the ones she raised in the first appeal for determination. Since reproduced above there is no need to repeat them.
The 1st respondent/2nd respondent (Mr. Ralph Okeke) in this appeal did not file any brief let alone formulated any issue or issues for determination.
It should be noted that the 1st respondent/Appellant in the first appeal raised a preliminary objection in his Amended Appellants reply brief to the 1st respondent’s brief. The preliminary objection relates to certain paragraphs in the 1st Amended respondents brief and have been in corporated/or added in the official record of appeal and without the leave of this court first had and obtained.
Similarly, as the 1st respondents/Cross-respondent, he raised another preliminary objection in relation to the Cross-appeal. This objection which is in relation to this second appeal, relates to grounds 1, 2, 4 & 5 and issue 1 in the cross-appellant’s issues for determination. The petitioner/1st respondent in the third appeal No. CA/E/EPT/66A/2008 raised a preliminary objection in their brief which was filed on 17/10/2008. The objection is on the competence of the appeal. But during the hearing of the appeal he informed this court that he was withdrawing it having discovered that the appeal was properly filed within time. Accordingly the preliminary objection was struck out.
As already stated above, and in accordance with the rules of this court, briefs were filed and exchanged by all the parties and the appeal was heard on 29/9/2010. At the hearing of the appeal, Dr. Onyeachi Ikpeazu, (SAN), appeared with his other junior counsel to represent the 1st Respondent/Appellant. Their brief of argument was dated and filed on 9/2/2008. Just before the learned senior counsel could argue the appeal, he intimated this court of their Notice of preliminary objections which arguments there on were embodied in their reply brief to the Amended 1st respondent’s brief of argument, styled, Amended Appellant’s Reply Brief.
Also, in a separate response to the Petitioner/Cross-Appellants brief however, the 1st respondent/Cross-respondent filed a response, namely 1st respondent’s Cross-respondent’s brief, on 15/9/2008. The learned senior counsel thereupon identified the briefs of his client and sought to adopt and rely on all the briefs of argument, the reply brief and also 1st Cross-respondent’s brief to the 1st respondent’s Cross- appeal. He in the prevailing circumstance urged this court to allow their appeal, dismiss the Cross-appeal and uphold their preliminary objections and set aside the judgment of the Tribunal.
Learned senior counsel, Mr. J.H.C. Okolo (SAN) representing the Petitioner/1st respondent/Cross-Appellant, in company of other junior counsel adopted and relied on their Amended 1st respondent’s brief of argument which was filed out of time on 4/5/2010, but with the leave of this court, the said brief was deemed as properly filed with effect from 10/6/2010.
With regards to the cross-appeal, the learned senior counsel filed their brief of argument styled, petitioner/Cross-Appellant’s Brief of Argument on 4/9/2008. Also on 23/9/2008 filed Cross-appellant’s Reply Brief to the 1st Cross-respondent’s Reply brief. On 23/9/2008 he also filed Cross-Appellants Reply Brief to the 2nd – 6th Cross-respondents reply brief of argument, The Cross-appellant’s briefs were accordingly adopted and relied upon for the purpose of arguing the two appeals and the Cross-appeal and urged this Court to allow the Cross-appeal and dismiss all other appeals filed by the 1st respondent/appellant and 2nd – 6th respondents/appellants.
With regards to the Cross-appeal the learned counsel identified their 2nd – 6th respondents’ brief styled, 2nd – 6th Cross-respondents’ brief of argument, and was filed on 15/9/2008. He adopted and relied upon it, and urged this court to dismiss the Cross-appeal.
On their own appeal, learned counsel for the 2nd – 6th respondents/appellants, identified their brief of argument which was filed on 26/9/2008. Also on 30/10/2008 he filed the 2nd – 6th respondents/Appellant’s Reply Brief, on 39/10/2008. Thereupon he adopted and relied upon their briefs and on the totality, urged this court to uphold their appeal and set aside the judgment of the trial court.
At this juncture, I wish to state that the disposal of this appeal would demand that the series of preliminary objections raised by the 1st respondent/appellant ought and should first be disposed of before the disposing of the respective appeals for purpose of allowing a free flow pathway to the hearing of the appeals and cross-appeal. I am fortified on the following authorities:
1. S.B.N. Ltd Vs. I.O. Corp.(2001) 1 NWLR (Pt.693) 191.
2. Onyekwuluje vs. Animashaun (1996) 3 NWLR (Pt.439) 637.
In Ogboru vs. Ibori (2005) 13 NWLR (Pt.942) 319, a court is enjoined to determine pending application before judgment is delivered. The existence of a preliminary objection in an appeal symbolizes a rough path way clogging the hearing of such appeal. Without first determining and disposing of same, the appeal cannot properly be set for determination. Serially, there appears to be two categories of preliminary objections needing determination.
The 1st respondent/appellant in his Amended Appellant’s Reply Brief at pages 1- 5 thereof raised objections against certain paragraphs in the Amended petitioner/1st respondent’s brief of arguments filed. The paragraphs are 2.22 – 2.32. captioned ERRONEOUS STATEMENT AND IMPRESION CREATED IN APPELLANT’S BRIEF, contained on pages 13-37 thereof.
It is contended on behalf of the 1st respondent/appellant that what the petitioner/1st respondent did in her brief under those paragraphs is an attack on the record of the Tribunal in a most inordinate manner. That, in her 1st respondent’s brief she inserted an additional record of evidence which was recorded by the petitioner/1st respondent during the examination of witnesses at the Tribunal, and this is unnecessary and is a dangerous innovation, because she unilaterally produced her own version of the evidence led before a court of law on matters that are not favourable to her and then argued her appeal based on such aberration. Learned senior counsel urged this court to discountenance the said pages 13-37 of the Amended 1st respondent’s brief where such insertion was made
Without having to labour the point, the law is clear on record of appeal. It is settled that a record of appeal is presumed to be correct and accurate unless shown by a proper affidavit duly inundated otherwise. See Oieme vs. Momodu (1994) 1 NWLR (Part 323) 685 at 697. In Julius Bereer (Nig.) Ltd. vs. Femi (1993) 5 NWLR (Pt.295) at 619 – 520, this court in somewhat a similar situation held thus”.
“The appellate court and the parties are bound by the contents of the record of appeal. I am clearly of opinion that the record of appeal cannot be successfully amended by such oblique assertion or procedure suffice it now to say that since the court is bound by the record of appeal as presented to it by the registrar of the lower court, it follows that the assertion by the respondent’s counsel is tendentious and must be completely discountenanced” Per Achike J.C.A. (as he then was). See also Omoni Vs Tom (1991) 6 NWLR (Pt.195) 93 at 108.
It is pertinent at this point to state that after examining pages 13 – 73 of the Amended 1st respondent’s brief, I have seen included therein a record of evidence recorded by the 1st respondent during the examination of witnesses at the Tribunal. This recorded evidence is not part of the record of appeal as presented to this court by the registrar of the lower court. It is an additional record produced by the petitioner/1st respondent which she has not sought and obtained leave to compile, but unitarily and without any regard to the Tribunal or this court produced it as if she is entitled to maintain the official record of proceedings.
Since record of appeal cannot be easily amended, this court cannot allow the records as presented by the Tribunal to be amended via the assertion of the petitioner/1st respondent. On the legal authority cited above, paragraphs 2.22 – 2.32 at pages 13 – 37 captioned “erroneous statements and impressions created in the appellant’s brief”, is struck out being an attack on the record of the Tribunal or interference with same.
It is also significant and obvious, to next, deal with the 2nd arm of the preliminary objection. Challenged are paragraphs 9.00 – 9.09 under the caption, ”CONCLUSION” on page 60 – 62 of Amended 1st respondent’s brief. In his Amended Appellants Reply Brief to the petitioner/1st respondent’s Brief, learned senior counsel to the 1st respondent/appellant insisted that the said paragraphs were based on evidence of proceedings of his submission in another case. no EPT/AN/SE/2/2007; OZODINOBI VS. OKONKWO & ORS. – which is different from the present case. He also contended that the petitioner/1st respondent cannot legally attach to her brief an address in another proceeding and then urged this court to act upon it. He urged this court to strike out the conclusion of the petitioner/1st respondent’s brief, in paragraph 9.00 – 9.09.
I have gone through the said paragraphs and unable to find any evidence to substantiate the argument that the conclusion of the petitioner/1st respondent contained in those paragraphs were based on evidence of proceeding in a different case. The argument is far from the truth and no evidence to support the contention. The conclusion in the said paragraphs were clearly in order and not based on the evidence in another case different from this case. The 2nd arm of the objection failed and is over-ruled.
The next in line of consideration is the second preliminary objection. As already stated in this judgment, 1st respondent/1st cross-respondent filed notice of preliminary objection which arguments in respect of same had been embedded in his 1st respondent’s/cross-respondent’s brief filed on 15/9/2007. His objection is to the competence of ground 1 of the cross-appellant’s grounds of cross-appeal. The ground of objection is that the said ground of cross-appeal is not related to the judgment of the tribunal. Similarly he equally objected to issue 1 as it is based on an incompetent ground of appeal. Also objected are grounds 2, 4, and 5 on the grounds that they were covered by issue 1 which is in competent. The relief he sought is that ground 1 be struck out, and that all argument canvassed by the Petitioner/cross-appellant in his brief relating to grounds 1, 2, 4 and 5 be expunged and/or discountenanced.
The arguments in respect of this preliminary objection are contained on pages 10 – 16 of 1st respondent’s/cross-respondent’s brief of argument. It is the contention of the learned senior counsel for the 1st respondent/cross-respondent that ground 1 of the notice of cross-appeal is not based on the decision of the tribunal and that any ground of appeal that is not based on what was decided upon by the lower court is incompetent and should be struck out. He submitted that the judgment of the tribunal never revealed any finding that the cross-appellant potted a majority of valid votes cast at the election. (Italics mine for emphasis), but rather the tribunal found that Cross-appellant secured the majority of valid votes cast in Anambra East Local Government Area – (italics mine for emphasis). He further argued that in raising issue 1 in the cross-appellant’s brief, the cross-appellant indicated that the issue raised was in respect of grounds 1, 2, 4 and 5 of the notice of cross-appeal.
In conclusion, he submitted that if ground 1 is found to be defective as it did not arise from the judgment of the tribunal, it must be struck out. If done, issue 1 from which it was distilled will also be affected. That since issue 1 embodied grounds 1, 2, 4 and 5 of the notice of cross-appeal, the entire issue together with all the argument therein must also be struck out. He urged this court to strike out ground 1 of the cross-appellant’s grounds of appeal, issue 1 in the cross-appellant’s brief and grounds 2, 4 and 5 argued along with the defective ground 1 together with all the argument related.
The cross-appellant’s reply to the preliminary objection is contained in his reply brief to the 1st cross-respondent’s brief of argument filed on 23/9/2008. The learned senior counsel for the cross-appellant submitted that the said ground 1 does arise from the judgment of the tribunal. He summarized the findings and/or holding of the tribunal in his own wisdom, and also tried to elucidate the meaning that the ground may have. He further submitted that ground 1 is a clear complaint against the failure of the tribunal to declare the cross-appellant as the person who ought to be returned as the winner of the questioned election after it found that she polled a majority of valid votes at the election (underline mine). He urged this court to dismiss the objection and hold that the entire argument on the preliminary objection including the cases cited therein to be academic. Now for ease of reference, I intend to re-produce herein ground 1 of cross-appeal complained about and issue 1 from which it relates.
Ground 1, shown of its particulars; says:
Error in Law.
“The learned trial tribunal erred in law when it refused to declare the petitioner/cross-appellant as the person who ought to be returned as the winner of the questioned election after making a finding that she polled a majority of the valid votes cast at the election” (underline mine for emphasis.)
ISSUE NO.1
“Whether the Honourable Election Petition Tribunal had the statutory power/vires to nullify election and order a fresh election in only Anambra West Local Government Area (which is only a part or section of the disputed Anambra East/west Federal constituency) instead of declaring the petitioner/cross-appellant the winner of the questioned election after making a finding that she polled a majority or highest number of valid votes cast at the election to the House of Representatives in respect of the Anambra East/ West Federal Constituency held on 21st April, 2007 in Anambra State.” (this issue covers grounds 1, 2, 4 and 5 in the Notice of Cross-appeal).
OR IN THE ALTERNATIVE,
“Whether the Honourable Election Petition Tribunal was right to have refused to declare the Petitioner/Cross-appellant as the person elected/returned at the election held on 2/4/2007 in Anambra East/West Federal constituency after making a finding that the petitioner/cross-appellant had polled a majority or highest number of valid votes cast at the said election.”
It is elementary rule of practice that ground or grounds of appeal must arise from the judgment appealed against. Where a ground of appeal is not borne out by the decision it purports to have evolved from, that ground of appeal would have to be discountenanced for being in competent. See Lambert vs. Nigerian Navy (2006) 7 NWLR (Pt.980) 514 at 532 (Par.E.F.). Similarly, in International Offshore Construction Ltd. vs. S.L.N. Ltd. (2003) 16 NWLR (Pt.845) 157 at 176, it was held as follows:
“It is trite that a ground of appeal against a decision of a trial court must relate to that decision and should be a challenge to the ratio of the decision. A ground of appeal must arise from the judgment. Where a ground of appeal is not related to the judgment of the lower court, it becomes incompetent.See also Egbe vs. Alhaji (1990) NWLR (Pt.128) 546.
I have carefully examined side by side ground I of the Notice of Cross-Appeal and the judgment already produced in this judgment appealed against and I am, unable to pinpoint the relevant portion of the Tribunal’s finding which stated that “the Cross-appellant polled a majority of the valid votes cast at the election. The point that must be made and brought clearly is that nowhere in the body of judgment did the Tribunal found that the Petitioner/cross-appellant “polled a majority of the valid votes cast at the election”.
The tribunal therefore, did not rule that the cross-appellant scored the majority of lawful votes cast at the election, and to hold or contend otherwise, in my view, will be to impute on the tribunal’s finding which is alien to its judgment delivered. The impression created in ground 1 of the grounds of cross-appeal is that the tribunal, with respect to the election held 21/4/2007, which comprised both Local Government Areas (East/West) found that, the cross-appellant scored majority of the lawful votes cast at the questioned election, when in fact what the tribunal states was that the election was inchoate and was impaired by the inadequacies found in Anambra west Local Government Area. Thus fresh election was ordered to be held in Anambra West Local Government Area with the results subsequently added to the accepted votes in Anambra East Local government area before the determination of the person who secured the majority of the lawful votes cast at the election could be made.
However, I am in total agreement with the senior counsel for the 1st respondent/appellants that ground 1 of the notice of cross-appeal is not from the judgment of the tribunal appealed against. A ground of appeal which is not related to the judgment appealed against becomes incompetent and is to be struck out. See Adelekan vs. Eculine N.V. (2006) 12 NWLR (Pt.993) 33. Accordingly, ground 1 of the notice of cross-appeal having been found not related to the judgment appeal against, is in competent and is struck out.
I have also observed that issue 1 of the cross-appellant’s issue is based on ground 1 which I found to be incompetent ground of cross-appeal. It is the law that issue formulated for determination in an appeal must be distilled from competent grounds of appeal. And where the issues are formulated from incompetent grounds of appeal such issues would by extension be incompetent. Issue 1 therefore is incompetent having been derived from an incompetent ground. Issue not derived from a competent ground of appeal must be struck out. See Okonkwo vs. Ogbogu (1996) 5 NWLR (Pt. 449 420 at 429. Both ground 1 and issue 1 distilled from it are struck out. See Lambert vs. Nigerian Navy (supra ) at 532.
Still on ground 1 of the cross-Appeal. In raising issue 1 in the cross-Appellant’s brief the cross-Appellant, indicated that issue 1 raised was in respect of grounds 1, 2, 4, and 5 of the Notice of Cross-Appeal. The law on this point is that if a ground of appeal is found to be defective, it must be struck out as done in this case. If struck out then the issue from which it was distilled will also be infected with this malady. Of greater calamity is the fact that ground I which is incompetent was argued together with grounds 2, 4, and 5 under issue 1 which is also found to be incompetent. It is therefore a futile exercise to take the ground which is incompetent and sift that which is competent therefrom because the four grounds were argued as one ground. It is not the duty of the court to separate argument in respect of the good grounds from those of the bad one. See Nwadike vs. Ibekwe (1987) 4 NWLR (Pt.67) 718. It is not possible when incompetent ground of appeal is argued in the brief of argument with competent grounds of appeal for the court to be able to examine in the light of the grounds of appeal whether the judgment appealed from is wrong or right. In Avalogu vs. Agu (1998) 1 NWLR (Pt. 532) 129 at 143 (par. A – F), the effect of arguing a competent grounds of appeal together with an incompetent one upon a joint issue raised was also explained thus:
“The arguments on these issues are without gainsaying, incompetent or improper and ought to be expunged. But expunction is well high impossible because all the six issues were argued in the appellant’s Brief. Arguments in support of improperly raise issues were taken together with those for the tolerable ones. The problem of the court if faced with, is how to separate the argument for the remaining two issues from those in respect of the other four …. In the appellant’s brief he formulated issues from both original and additional grounds of appeal. In arguing the appeal in the appellant’s brief, counsel related grounds of appeal filed along with the notice of appeal as well as the purported or inchoate grounds of appeal to the same issue and it became impossible to separate argument advanced on issue in respect of perfect and imperfect grounds….. The issues carried out of bad grounds literally choked up those of good grounds,”
See also Bereyim vs. Ogbodo (1989) 1 NWLR (Pt.97) 372 at 380. By the same token grounds 2, 4 and 5 of the cross-appeal related along with ground 1 to issue 1 and all the argument thereon, are equally in competent and are struck out.
I have not forgotten with the alternative issue raised. It does not alter the basic erroneous statement that the tribunal found that the cross-appellant polled the highest number of valid votes cast at the election to the House of Representatives in respect of Anambra East/West Federal Constituency.” (underline mine for emphasis).
By adding the words “Anambra East/west Federal constituency”, to alternative issue 1, the cross-appellant, in my view left no doubt whatsoever, that her basic contention was that the tribunal found that she secured the highest number of valid votes cast, not in Anambra East Local Government Area alone but “in respect of the whole Federal Constituency in the election held on 2/4/2007, when in fact it is not so.
Finally, for what I said above, the preliminary objection raised by the 1st respondent/cross-respondent succeeds and is sustained.
Next to be considered is the merit of the main appeal No. CA/E/EPT/66/2008 whereupon arguments have been advanced by counsel on behalf of their respective clients.
As I have said earlier in this judgment that both appellants and respondents raised issue or issues for determination in this appeal. I have carefully read through the respective issues of appellants and the respondents. The issues raised by the 1st respondent/appellant are in substance the same as the issues raised by though difference warded. Since the issues settled by the 1st respondent/appellant and 2nd – 6th respondents are similar in substance, I shall adopt the issues of the 1st respondent/Appellant for the purpose of this appeal. I shall attend the issues serially. First with issue no.1.
1ST ISSUE
This issue has been re-produced in this judgment. The complaint of the 1st respondent/appellant under this issue is that, the Tribunal was wrong in holding that the joinder of presiding officers who took part in the conduct of the election was not necessary in the just determination of the petition. This issue is distilled from ground 1 of the grounds of appeal.
On behalf of the 1st respondent/appellant, learned senior counsel submitted at great extent in support of the issue raised and re-iterated in forceful terms and without mincing words that there was need to join the presiding officers in the just determination of petition and failure to join them is fatal to the petition. He further contended, with no disrespect, that the cases of Avogu vs. Nnamani (2006) 8 NWLR (Pt…) 160 and Anvabele vs. INEC (2004) FWLR (pt.196) 782 relied upon by the Tribunal in coming to its conclusion, were mis-applied, on the grounds that the two cases are distinguishable from the present case. The summarized the distinguishing factors between the two distinguishable cases. The learned senior counsel concedes that in the case of non-joinder, paragraphs affected by the allegations against persons not joined could be struck out and the petition saved if there are other paragraphs to sustain the petition. But he maintained that since the entire petition of the petitioner/1st respondent is founded on the falsification of the results in Anambra West Local Government Area as well as Aguleri , Nsugbe 1 and (II) and Umuoba- Anam, then it is manifest that if the paragraphs affected by the allegation of falsification of results are deleted from the petition, the petitioner will be bereft of any strength and must necessarily fail. The learned senior counsel also tried in their brief of argument, to persuade this court by microspic examination of cases dealing with section 133(2) of Electoral Act 2002 which, according to him, is pari-materia with section 144(2) Electoral Act, 2006 save for the proviso, to show that the proviso did not obliterate the effect of sec. 36 of the 1999 Constitution on consequences of non-joinder of persons against whom allegation were made. He finally urged this court to hold that non-joinder is fatal to Petition.
The petitioner/1st respondent in response to the 1st issue, submitted extensively and negated the arguments by the 1st respondent/appellant. The deductive summary is largely anchored on the findings of the tribunal. He further submitted that proviso to section 144(2) of the Electoral Act 2006 has cured the mischief in earlier decisions based on the relevant provisions in previous Electoral Laws such as section 133 (2) of the Electoral Act 2002 which provides that allegation of misconduct against an electoral official cannot be entertained where he is not joined. He also submitted that section 144(2) simply re-echoes the principle of law that it is not necessary to sue an agent who has disclosed principal such as INEC and where such an agent like presiding officer who has not been joined in the petition, the petition will be entertained once INEC is made a party. The learned senior counsel for the petitioner/1st respondent further submitted that since paragraph 24 of the petition which contained the allegation against the presiding officer had been struck out, therefore, it is academic and idle for the 1st respondent/appellant to argue that non-joinder of the presiding officers amounted to a breach of the 1st respondent’s/appellant’s constitutional rights to fair hearing’ considering that criminal allegations were made against him. Learned senior counsel in his further submission cited a number of authorities wherein the non-joinder of presiding officers was found not fatal to the petition. See Ngige Vs. Obi & Ors. (2006) 14 NWLR (Pt.999) 1 AT 113 & 115. He finally on this issue 1 urged this court to resolve this issue in the affirmative, i.e. that the Tribunal was right in holding that the non-joinder of the presiding officers is not fatal to the petition. .
On behalf of 2nd – 6th respondents, there was no brief filed and did not offer any oral argument in this appeal.
In reply on point of law, learned senior counsel for the 1st respondent/appellant submitted, that there would be no determination by whatever standard could have been completely made in the absence of the officers who are statutorily obliged to make the returns and who from a totality of the petition were indicted by the petitioner/1st respondent in numerous ways in the petition. On the proviso to section 144 (2) of the Electoral Act, 2006, learned senior counsel submitted that it will only apply where there is a contention that the petition should be voided, and in this instance, what is contended is that the tribunal was bereft of the vires to make the determination for the reason that the officer statutorily charged with the duty to return the booths results which were alleged to be fabricated were not in attendance in court to explain one way or the other what had transpired. That the principle of agency does not apply in the instant case where the agents of disclosed principal are accused of diverse acts of impropriety.
The 1st respondent/appellant’s contention however, under this issue 1 deals with non-joinder of Electoral officers against who allegation of wrong doings were leveled. It touches upon the presiding officers whose conduct were seriously called in to question or impugned in the petition. The tribunal, on page 1372 of vol.II of the records, decided that, non-joinder of presiding officers is not fatal to the petition and they relied on section 144 (2) of the Electoral Act, 2006, and the case of Ayogu vs. Nnamani (2006) 8 NWLR (Pt.981) 160 at 195 of the report.
At this juncture, it is pertinent to re-produce the provisions of section 144(2)of the said Act. The section provides thus:
“The person whose election is complained of is in this Act referred to as the respondent, but if the petitioner complains of the conduct of a Electoral officer, presiding officer, Returning officer or any other person who took part in the conduct of the election such officer or person shall for the purpose of this Act be deemed to be respondent and shall be joined in the election petition in his or her official status as a necessary party PROVIDED that where such officer or person is shown to have acted as an agent of the commission his non-joinder as foresaid will not on its own operate to void the petition if the commission is made a party”.
It should be noted that this section is a clear departure from the provisions of the Electoral Act, 2002. The PROVISO under section 144(2) of the Electoral Act, 2006, was never in the Electoral Act, 2002. Therefore since all the cases cited by learned senior counsel for the 1st respondent/appellant are cases decided under the 2002 Electoral Act, these cases, in my view, could not be relevant. Consequently, INEC, the Constitutional body which conducted the election in question being joinder as a party to the petition I did not see any reason why all the officials or the ad-hoc staff of INEC should be joined as parties to the petition. The proviso to section 144 (2) is clear on this issue which provided that, once INEC is joined as a party, it is not necessary to join every one that participated in the election. See Nakventa Vs. Thomas & Anor. (1975) 5 S.C. 51. It seems to me that the proviso to section 144(2) Electoral Act, No.2 of 2006 is a declaration of the common law principle.
By virtue of the proviso stated above, it is unnecessary to join a presiding officer or agent carrying out the directive of the commission. See Obasanio vs. Yusuf (2004) 9 NWLR (Pt. 877) 144 at 185. If the Proviso holds the commission responsible for the conduct of its agent it follows that it has to defend the action.
It should be noted that the proviso making the commission liable for the conduct of its agents, i.e. returning officers, electoral officers, presiding officers or polling officers is conspicuously missing from the Electoral Act, 2002 but it is peculiar to the 2006 Act. The decisions of courts including the Supreme Court and Court of Appeal, voiding election petition on account of non-joinder of officials whose conduct were indicted under the Electoral Act, 2002, are no longer applicable under Electoral Act 2006 cases. The provisions of the two laws are not in pari-materia. The proviso to section 144(2) of the Electoral Act 2006 has saved such petitions. They can no longer be voided solely on the account of non-joinder since failure to do so is not fatal to the petition. The proviso to the 2006 Act tempers the severity or strictness of the subsection (2) of section 144 by saving the petition where the commission itself is made a party. It follows in the instant appeal that since the commission is made a party to the petition, the joinder of presiding officers or other INEC Official is not necessary to the validity of the petition.
Learned senior counsel for the 1st respondent/appellant submitted that, where the allegation is indeed made against persons who signed the results, as in this case, the concept of fair hearing will dictate that such determination cannot rightly be made in the absence of such individuals. That the concept of fair hearing also as enshrined in section 36(1) of the 1999 Constitution cannot be superseded by the proviso to section 144(2) of the 2006 Electoral Act.
In answer to this argument I will say that the effect of non-joinder of INEC on relevant officers against whom allegation of criminality had been made was that, the proof of such criminal acts would not be entertained by the court in the absence of such a joinder. Also, non-joinder of such officers had the effect of depriving the tribunal of jurisdiction to adjudicate and pronounce on the issues which fundamentally affect the proper functioning of the INEC in the exercise of its jurisdiction under the Electoral Act. See Ikpatu vs. Ivaho (1999) 7 NWLR (Pt.609) 58. In Buhari vs. Obasanjo (2005) 2 NWLR (Pt.910) 1 this court (Abuja Division) per Tabai, JCA (as he then was) observed that:
“……Since the complaint is against the results in Forms E.C. 8A prepared by presiding officers, their non-jonder is fatal to those paragraphs which are therefore struck out.” (italics mine).
It is clear from the above decision that, where the allegations relate to some paragraphs in the petition in respect of which the delinquent officers are not joined, and there remained other complaints against officers who are joined the court will strike out only the affected paragraphs of the petition. But where the entire substance of the election petition contains allegations against officials of INEC who are not joined as parties to the petitioner, the tribunal becomes bereft of jurisdiction to entertain such petition. Thus in the instance case, the tribunal struck out paragraph 24 of the petition.
However, striking out the said paragraph 24 in the petition does not suffice the appellant. In his brief of argument it was contended that if the affected paragraphs by the allegation are deleted from the petition the petition will be bereft of any strength and must necessarily fail.
From the petition itself, it could be seen that apart from the allegations of the commission of crime, there are other grounds of the petition that do not border on allegation of crime. For example, the petitioner/1st respondent averred at one of the paragraphs of her petition that the 1st respondent/appellant was not duly elected by majority of lawful votes cast, and that on the authentic results of the election in dispute she won and ought to be returned. Thus it is not only the allegations of the commission of crimes that formed the basis or foundation of the Petition.
With the subject matter at hand being an election petition appeal, it is civil by nature and the principle of doctrine of severance of pleadings applicable. The principle of severance of pleadings stated thus:
“If in any civil proceedings the averments alleging a crime are severable and if after such severance, there still remain in the pleadings of the plaintiff or the petitioner’ sufficient averments devoid of criminal imputation against any party to the proceedings and on which the plaintiff or the petitioner can succeed in his claim or petition, the burden of proof upon the plaintiff or petitioner is to prove his case on the balance of probability.”
In Nwobodo vs. Onoh (1985) 1 S.C.N.L.R. page 1 at 27-28, the Supreme Court explained the application of this principle on the following terms:
“……Where a plaintiff makes an allegation of crime in his pleading but nevertheless can succeed in his claim without proving the crime, it cannot then be said that the alleged crime was in issue or directly in issue.”
With the above considerations in mind, I am of the view that the averments alleging crimes against the respondents and the others that are not bordered on crimes are severable in the petition. And having severed the criminal allegations from others there are sufficient facts left to support the petition. In a nutshell, therefore, I hold that issue t has militated against the 1st respondent/appellant and therefore cannot be resolved in his favour but that of the petitioner/1st respondent.
ISSUES (i) AND (ii)
These two issues have also been reproduced earlier in this judgment. They are argued together as they are substantially related with respect to the evaluation of the evidence on the printed record. They challenged the judgment Court explained the application of principle on the following of the Tribunal in holding that the petitioner/1st respondent had established her case by the required standard.
The learned senior counsel for the 1st respondent/appellant submitted at great extent in support of the issues raised and re-iterated in forceful terms that the Tribunal failed to pay any due attention to the evidence in this case and also ignored the basic laid down principle of law for proof of irregularities at an election. The learned senior counsel having x-rayed the entire evidence adduced at the tribunal, and submitted that there is grievous error in its conclusion that, the petitioner/1st respondent did prove her case as pleaded. Learned senior counsel submitted that in view of the allegations contained in the petition the petitioner/1st respondent must prove her case beyond reasonable doubt by clear and cogent evidence, and the burden of proof is on the petitioner/1st respondent before the burden shifts to the respondents/appellants. The learned senior counsel submitted further that in view of the oral and documentary evidence tendered at the trial, the Tribunal was not even handed in the way and manner it reviewed and ascribed probative value to the testimonies of the witnesses called by the petitioner/1st respondent vis-a-vis those called by the respondents. That on a proper appraisal of the evidence tendered, it would irresistibly not led to the nullification of the elections in all the four polling stations of Aguleri ward 1, Umuoba Anam ward Nsugbe ward I and II in Anambra East Local Government Area, and the entire 10 wards in Anambra West Local government Area, as well as the return of the 1st respondent/appellant as the winner of the election.
Learned senior counsel in his further submission, poised that, having regard to the testimonies of PW1, PW2, PW3, PW4, PW5, PW6, PW7, PW8 and PW9, as to the level of election did not take place as a result of absence or late arrival of election materials in Anambra West Local Government Area, the petitioner/ 1st respondent has not proved beyond reasonable doubt all the allegation of electoral malpractice pleaded in the petition. Also that having regard to the totality of the evidence adduced before the tribunal, it would not be right to shift the onus of proof to the two sets of respondents/appellants in this case. Several authorities were cited in support of the submission and a number of them would be considered later in the course of the judgment. He finally prayed that it is in the interest of justice therefore to allow the appeal in its entirety.
The petitioner/1st respondent’s learned senior counsel in response submitted extensively and negated the arguments by the 1st respondent/appellant. His submission is also largely anchored on the findings of the Tribunal. The learned senior counsel outlined the fulcrum of the various malpractices alleged to have marred the election in dispute. In other words, that the allegations that election materials were not supplied at all or supplied late in some wards, no elections in some wards, hijacking of materials by thugs, no result entered, and yet result were announced, were largely proved. Cited in support to buttress his submission are some legal authorities. He urged this court to dismiss the appeal in its entirely as nothing has been placed before this court to disturb the unimpeachable findings of fact by the Tribunal in relation to these two issues thereof.
On behalf of 2nd – 6th respondents no brief was filed on this appeal.
Having summarized the submissions of the counsel, I wish to re-state that election petition cases are sui-generis, that is, they belong to a special class of their own. What that simply means is that they are given special treatment by the constitutions – past and present. See Obih Vs. Mbakwe (1984) 1 S.C.N.L.R 192.
Basically therefore, subject to the special provisions under the Constitution and the electoral statute, election petitions are governed by the rules in civil proceedings. Consequently, in an election petition it is the party that asserts in its pleadings the existence of a particular fact that is required to prove by adducing credible evidence. The onus of proof in an election petition like in any civil cases, therefore, is on the person questioning the result of an election.
The onus of proof, to be noted, is not static. It shifts from one side of the litigation to the other and vice-versa and from time to time as the petition progresses and eventually rests on the party who would fail if no further evidence is given on either side. See Awuse vs. Odili (2004) 8 NWLR (Pt.876) 481, and Aiadi vs. Ajibola (2004) 16 NWLR (Pt.898) 91.
STANDARD OF PROOF: Where allegations in an election petition are limited to allegations of acts or commission or omissions or complaints that are civil in nature, the standard of proof, in that circumstances as I said above, is proof on the balance of probability. It has even been stated that election cases require liberal and lighter proof on the balance of probability or on preponderance of evidence on the part of the petitioner. See Aiadi vs. Aiibola (supra) at 195.
Where however, an election petition raises allegations that amount to commission of crime which is denied, the provisions of section 138(1) of the Evidence Act becomes applicable. The proof of such allegations must be beyond reasonable doubt. See Onoh vs. Okey (1999) 5 NWLR (Pt.602) 240. In Nwobodo vs. Onoh (1984) 1 S.C.N.L.R. I BELLO, J.S.C. (of blessed Memory), explained the scope of the provisions in section 138(1) which was then section 137(1) of the Evidence Act, in the following words:
“The scope of section 137 (now section 138(1) of the Evidence Act may be summarized:
Where in an election petition the petitioner makes an allegation of a crime against a respondent and makes the commission of the crime as the basis of his petition, the subsection imposes strict burden on the petitioner to prove the crime beyond reasonable doubt. If the petitioner fails to discharge the burden, his petition fails. However, the provisions of section 137(1) are subject to the principle of severance of pleadings which may be stated thus: If in any civil proceedings the averments alleging crime are severable and if after such severance there still remain the pleadings of the plaintiff or petitioner sufficient averments devoid of the criminal imputation against any party to the proceedings and on which the plaintiff/petitioner can succeed in his claim or petition, then the burden of proof upon the plaintiff/petitioner is to prove his case on the balance of probability.”
It follows from the foregoing that for section 138(1) (former section 137) of the Evidence Act to apply, the issue of commission of crime be raised in the pleadings. I wish to point out that the subsection of the said section 138 only applies where there is specific allegation of Commission of crime so that the Commission of Crime can properly be said to be a basis or foundation of the claim or defence as the case may be. See Ikoku vs. Oli (1962) 1 ALL NLR Vol.1 (Pt.1) 194 at 199, and Nwobodo vs. Onoh (supra). Where, however, the petitioner or plaintiff makes an allegation of a crime in his petition or claim but nevertheless can succeed in his claim or petition without the crime, it cannot then be said that the alleged crime was a fact in issue or directly in issue. See Nwankere vs. Adewunmi (1967) NMLR 45 at 48.
In the instance case, paragraphs 13-16, 20, 23 and 25 of the petition, the petitioner raised several issues among which include criminal allegations. And these averments as I said above, are severable and after such severance there still remain in the pleadings of the petitioner/1st respondent sufficient averments disclosing a cause of action which is devoid of criminal imputation against the respondents. See par. 27 of the petition.
Indeed, the case of the petitioner/1st respondent on the pleadings is that, elections in the four (4) disputed enumerated wards of Aguleri ward 1, Umuoba-Anam, Nsugbe ward I and II alt in Anambra East Local government area were marred by irregularities and hijack of elections materials, including votes cast by voters, while the election in Otuocha was duly held and the results generated from the voting were genuine and should be added to the already declared results of the 10 wards in Anambra East. Similarly no elections were conducted in the 10 wards of Anambra West local government area. The reasoning was premised on the sundry irregularities that beset the purported election and for non-compliance with the provisions of the Electoral Act 2006 as provided. Cardinal amongst acts of non-compliance pleaded bordered on either non-supply at all of the electoral materials or late arrival of same in the affected wards to the effect that elections could not be held at the time well out side the time scheduled for election which is 10.00a.m – 5.00 pm. Yet the 2nd – 6th respondents produced some results which they claimed were the results of the election in Anambra West Local Government Area on 21/4/07, and relied on to return the 1st respondent/appellant as the person elected/returned into the House of Representatives for Anambra East/West Federal Constituency held on 21/4/07.
On the other hand, however, and to the contrary, the respondents in the petition all contended that the elections were duly conducted in tandem with the conditions and procedures prescribed by the Electoral Act, 2006 and the manual for elections.
In proof of her case, petitioner/1st respondent testified as PW7 and tendered some exhibits, P5, P8, P9 (a – h), p11, p15, p22, p23 and p24 in evidence. PW2 and PW3 testified to the violence in Nsugbe I and II. PW4 also testified that on 21/4/07 there was violence in Nsugbe 1 and II as well as Aguleri 1. PW9 testified that the result collated in Aguleri ward 1 was hijacked and taken away by thugs who are agents of PDP. She also called PW1, PW4, PW5, PW6 and PW8 to prove her case.
In its judgment, the Tribunal came to the conclusion as follows:
“We find that the petitioner/1st respondent has led sufficient evidence for which onus ought to and has shifted to the respondent…….”
The question now is whether it is correct as held by the Tribunal that having regard to the evidence adduced before it both oral and documentary, the petitioner/1st respondent had established her case necessitating a shift of the onus of proof to the 1st respondent/appellant and 2nd – 6th respondents.
In order to have a clear picture of what transpired at the hearing of the petition, it seems proper and necessary that I produce the substantial parts of the testimonies of the witnesses of the petitioner/1st respondent in evidence-in-chief, and under cross-examination, as well as the documentary evidence tendered through them.
I shall first proceed to consider the case of the petitioner/1st respondent as it relates to Anambra East Local Government Area. The petitioner/1st respondent pleaded in her petition that the elections in Nsugbe 1 and II and Umuoba-Anam ward were marred by the act of the INEC Officials refusing to count the votes coupled with the acts of thuggry and violence by hoodlums. While in respect of Aguleri ward 1, the election results were not counted and collated as the INEC Officials refused to do so on the execuse that the result sheets were not provided. The petitioner/1st respondent also alleged that the supervisor for the said Aguleri ward 1 absconded with the votes cast for the said ward in connivance with PDP agents. She also pleaded in her petition that the election in Otuocha II was duly held and results generated from the voting as in Exhibits p9 (a – h) were genuine and should be added to the already declared result of the 10 wards in Anambra East Local Governent Area. See paragraph 13 – 15 of the petitioner.
As to this, the key witnesses are PW7, PW2, PW3, and PW4 as well as PW9 in this case, thus their oral testimonies vis-a-vis the documentary evidence tendered through them and the conclusion of the Tribunal therefore requires looking.
PW2 – Akwudolueze Emmanuel Edochie. He is the ANPP Local government chairman for Anambra East. This witness testified as to the election in Anambra East and stated that election commenced late but was duly conducted. He claimed there was report of violence in Nsugbe 1 and II, Igbariam ward, and Aguleri ward 1. In these wards persons believed to be agents of some political parties snatched election materials and vital documents from INEC Officials and vanished. But he did not linked them with any political party involved.
The highlight of the PW2’s evidence under cross-examination includes:
1. That he cannot tell the locations of the wards.
2. That he was only at the Enugu – out ward when he said there was violence at Nsugbe ward 1.
3.That he was referring to what he got from his agents.
4. That voting took place in Anambra East.
5. That he voted at Enugu-out ward.
From the evidence of this witness under cross-examination he admitted that his evidence of violence in some wards was hearsay as he did not attend these wards as he was only at Enugu-out ward for voting. Clearly this piece of evidence could not be accorded any probative value at all. PW3 – Chike Mehodius Owelle – he is the ward chairman of ANPP. This witness testified that he was a registered voter at Nsugbe ward II and that voting took place but rather commenced very late. At the collation centre certain thugs and agents of PDP hijacked the ballot boxes and other election materials and documents. To this date nobody in the ward or in the whole of Nsugbe had seen or heard anything about the voting or out come of it. No counting or recording of the results.
Under cross-examination, it was only his sample signature that was taken and admitted as Exhibit P.1.
PW4 – Chukwuka Ndu – The witness in his evidence in-chief testified that he was a voter and member of the petitioner/1st respondent party- He stated that voting took place rather late but collation of results was not effected because there was no result sheet to record the votes’ The INEC officials took away the ballot boxes and other materials.
This witness did not tender his voter’s card to show that he was indeed a voter as claimed and was qualified to vote at the election. Remarkably this witness claimed that he voted and worked as an agent at the place called Ugwunadegbo Primary School.
However, when cross-examined he miraculously stated as follows:
“I was not at Ugwunadagbe Primary School.”
This piece of evidence, in my view, destroyed the entire evidence on oath which was mounted on the premise and what he claimed he observed at Ugwunadegbe Primary School.
PW5 – Alex Ikwunne Onukwue – He was the Supervisor for Okeite 2007 Campaign. He claimed that election, though late, was conducted in the 15 wards of Local Government but in the wards of Nsugbe I and II, Igbariam ward, Aguleri ward 1, persons believed to be agents of some political parties snatched election materials and vital documents from INEC Official and vanished. Elections took place inspite of these odds. (underline mine).
Under cross-examination, he admitted that he did not visit all the wards in Anambra East Local Government Area. He also admitted that his evidence was based on what he personally observed and also on what his ANPP agents told him.
The tribunal believes and gave his evidence credibility in all the material particulars to the pleadings of the petitioner/1st respondent.
PW9 – was Hon. Mike Ikwunne. He was the chief campaign coordinator/Constituency collation agent of the petitioner/1st respondent. He gave evidence and tendered results.
The evidence of these witnesses was to prove the allegation of hijacking and refusal to record the results of the election.
The allegations of hijacking and refusal to record the result of the election as well as thuggery, are criminal in nature and as such there must be proof beyond reasonable doubt on the basis of clear, cogent and compelling evidence. I am not able to find cogent or compelling evidence of the said allegations.
The tribunal however, that the petitioner/1st respondent has led sufficient evidence for which the onus ought to and has shifted to the respondent/appellants is, in my view wrong. The failure on the part of petitioner/1st respondent to prove such allegations beyond reasonable doubt on the basis of clear, cogent and compelling evidence, has made it impossible for the petitioner/1st respondent to discharge the onus placed on her in respect of violence, thuggery and refusal to record the results of the election. There must be strict proof of any allegation of electoral offence.From the evidence available in the records of Appeal there exists political relationship between PW2, PW3, PW5, PW9, on one hand and the petitioner/1st respondent on the other hand, which in my view, made all of them interested witnesses whose evidence should not be relied upon. I said so because both of them belonged to the same political party, (ANPP), with the petitioner/1st respondent, and therefore, they have common interest to protect in the case. And because of the interest, the witnesses develop a one sided inclination and it is the inclination towards the party who call them as to gave evidence, no matter the obvious lies they tell in court.
An interested witness, however, as the name implies, is a witness who has interest in the litigation. He is a witness who may drive an advantage from the result of the litigation. The advantage benefit may tangible or intangible. See University of Ilorin Teaching Hospital Management Board vs. Issa Aluku (1996) 3 NWLR (Pt.434) 74 at 86 para. E.
In determining whether a witness is an ‘interested witness’ the court must examine relation of the witness to the party calling him. The court also must examine the subject matter or ‘res” involved in the litigation as it relates to the witness. While these two criteria may not be conclusive in all cases, they provide some useful guidelines.
In the present case, having regard to the way and manner these witnesses were cross-examined by the respective respondents counsel, it was apparent that their evidence were under a serious attack on the ground of any possibility of interest.
Having said the above, I shall now turn my attention to the case of the petitioner/1st respondent in respect of Anambra West Local Government Area in the disputed election of 21/4/07.
The main grouse of the petitioner/1st respondent in respect of Anambra West Local Government Area upon which she filed the petition was captured in paragraph 17 of her petition thus:
“Your petitioner state that the election was not held in the 10 wards of Anambra West Local Government Area within the relevant Constituency due to the non-delivery of the election materials to various wards within the time scheduled for the election (that is from 10.00am – 5.00 pm).” (underline mine).
In reply the respective sets of respondents at the Tribunal conceded that there was no election only in Ezianam ward and Umueze-Anam ward but denied that election was not duly conducted in the rest of the West Local Government Area.
There are 10 wards in the said Local Government Area, namely:
1. Mmiata Anam
2. Umueze Anam.
3. Umuenwelum Anam
4. Ifite Anam.
5. Oroma-Etiti Anam
6. Iyiora Anam.
7. Umuoba Anam
8. Olumbanasa ward I & II
9. Innoma, and
10. Nzam.
The tribunal at the conclusion held that the 2nd – 6th respondents/appellants did not supply or distribute any election materials in all the wards and polling stations in the said local government area. The question is, can the Tribunal’s finding be supported by the evidence before it?
In proof of the petitioner’s/1st respondent’s case, the key witnesses are the petitioner/1st respondent who gave evidence as PW7, PW1, PW5, PW6, PW8 and PW9.
PW1 – Comrade Mathias Ameke. In his deposition on oath stated that he went round Anambra west and that on 21/4/07, election did not hold in any ward/polling station in the entire Anam nation’ He further stated that election materials arrived at about 8.00pm in Anam nation by which time voters trooped out to vote had gone home.
On cross-examination, he stated:
1. That he did not know the collation centre for Anam.
2. That he was at Oroma-Etiti during the election.
3. That he was not a poll agent for any party.
4. That he was not a credited observer.
5. That he did not know how many wards are in Anam.
In accepting the evidence of this witness the Tribunal describes him as credible witness, who gave evidence that election materials did not arrive at the wards of Anambra West and where they arrive they arrived very late at 8.00 pm and consequently could not be used to conduct the election on that 21/4/07. But this witness admitted under cross-examination that he was at another place – Oroma-Etiti during the election and that he did not know the number of wards in Anambra.
PW6 – Julius Agbata. He was the Co-ordinator for the petitioner in Anambra West Local Government. In his deposition on Oath, he stated that materials were not distributed to any of the wards in Anambra West as at 7.30pm on 21/4/07.
Under cross-examination his sample signature was taken which was admitted as Exhibit P.2. This piece of evidence was given probative value by the Tribunal. In its effort to accept the evidence of this witness and give a probative value to his evidence that election was not held in the Anambra West Local Government, the Tribunal undertook comparison of his signature Exhibit P.2 and his signature on his deposition before it and said, ‘there is slightly difference in the two signature but difference should not be a prove that the deposition on oath does not belong to him.
I want to observe here that the finding made by the Tribunal based on comparison of the two signatures on both Exhibit P2 and one statement on oath of PW6. This act is not finding based on credibility of witness appearing before it to place the Tribunal in a position of advantage of having seen and observed the demeanor of the PW6. It is finding based on examination of documents. In the circumstances, I am also entitled to make my own assessment and draw my own conclusion. And in my own assessment it is patently clear that PW6 did not infact make the signature on the statement on oath which he adopted. Even the witness himself was so convinced for he exclaimed in defensive mechanism thus:
“You notice that my hand was shaking”
PW7 petitioner/1st respondent. Her testimony just like others was that the materials did not arrive within schedule time. The petitioner/1st respondent tendered the following documents:
Exhibit- P5 Exhibit- P6 Exhibit -P7 Exhibit- P9 (a – h) Exhibit- P8. Under cross-examination she admitted that she did not know the number of towns there were in Anambra West and did not go to all of them.
The witness in her written deposition said that election materials never arrived Anambra West but in the Tribunal under cross-examination, she stated that materials were distributed late, and that she had left when the materials arrived.
Her evidence as to availability and distribution of materials is most vital and contradictory in this regard, and her case becomes unassailable in this regard, and yet the tribunal found that her piece of evidence was in line with her pleadings and is credible.
Still on PW7. As I said above, she testified person as PW7 and her story just like others, was that the materials did not arrive within schedule time. Under cross-examination she said she came into Anambra West at about 12.00 noon and left for Otuocha ward in Anambra East at about 2.00 pm. Her evidence, to be noted, did not disclose when she came back again to Anambra west from Anambra East. Her answer was that she left Anambra West after 7:00 pm. This answer should not have any probative value because she did not state when she got back to Anambra West after visiting Anambra East. Again, even if the evidence of the petitioner/1st respondent was that election materials arrived late, she did not lead any evidence to show that voting could not go on after the arrival of those materials, considering the fact that the same petitioner/1st respondent called pW2 – PW4 whose testimony is that even though election materials arrived late at the wards in Anambra East, election still went on. (Underline-mine).
PW8 is Raphael Onwuzuligbo. He is a hand writing Expert. In his evidence he never identified where the result he evaluated came from and for which election. Therefore his evidence is not helpful to the petitioner/1st respondent’s case.
PW.9 Hon Mike lkwunne. He is the chief campaign Co-ordinator/Constituency collation agent of the petitioner/1st respondent. He gave evidence and tendered some documentary evidence which were admitted and marked as Exhibits P.13 – P.24.
Under cross-examination he stated:
1. That he was supposed to work at Otuocha Anambra East.
2. That he was there when the first result arrived.
3. That he was not at the constituency collation centre when the second result came.
4. That when he came back from Anambra East ,collation at Anambra West had started.
5. That he was not at Umunennlum Anam.
6. That he was not at Olumbanasa-Odeh when he said that election did not hold in all these places.
7. That he was not at the above is the oral evidence given by those witnesses for the petitioner/1st respondent to establish her case that no election was held in the whole of Anambra West Local Government Area.
The evidence of PW9 is clearly, materially contradictory’ His evidence is not a concrete evidence to be relied on as required by law of evidence.
It is now a settled law that allegation of non-holding of an election must be proved by concrete evidence. See Ayogu vs. Nnamani (2006) 8 NWLR (Pt.981) 160 at 194, where in, the law was stated thus:
“It is trite that in an election petition where allegation is made that registered voters did not cast their votes, the allegation must be proved by concrete evidence.” This position of the law was also re-echoed in this Division in Sallivan Chime & Anor. vs. Barr. Okey Eze & Ors. Appeal No. CA/E/EPT/19/2008 page 45 at 66 (unreported).
In the instant case, as said earlier, the allegation was that the election materials were not distributed within the scheduled time thereby leading to non-election – (italics mine for emphasis). This allegation can only be proved where witnesses, as voters, were called to show that they could not vote on the day of the election due to non-availability of election materials, and/or where the voter’s registers were tendered to prove non-election. Contrary to this, no witness of the petitioner/1st respondent proved himself or herself as a registered voter, who could not vote by tendering his or her voter’s card from which it would have been determined that he or she could not be accredited to vote due to the alleged late distribution of election materials. To compound matters for the petitioner/1st respondent, PW9 testified under cross-examination that there was collation of results in the Anambra West Local Government Area. (Italics mine for emphasis) See p.1220 of the record vol. II L-111-12.
PW5 in his oral testimony said in one breath that election were not conducted in Anambra West Local Government due mainly to late arrival of election materials but made – a volte face under cross-examination to admit that by the time he got to Anambra West at about 5:20 p.m election had been concluded. (italics mine for emphasis.)
In the testimony of PW9, he said under cross-examination that:
“When I came back from Anambra West collation at Anambra West had started.”
This witness had earlier stated in lines 1 – 2 of page 1220 of the record volume 11 thus:
“I know what collation centre means. Constituency collation centre is that place where results from various wards in that constituency are collated.”If as at 5:20pm when PW5 went to Anambra west, election had been concluded while collation had started as at time when PW9 went back to Anambra West, it naturally follows that there was voting, the results of which PW9 saw being collated. Also if there was collation of results, there must be voting, and if there was voting it must have been done with the election materials supplied to the polling stations in the Local government area where voting took Place.
PW9 having testified that there was collation in the local government area, the Tribunal, with respect should not make finding that there was no election in the local government area. With the admission of this piece of evidence, by the Tribunal it cannot be the prove of the fact that the election materials, the basis of which there was collation, were not supplied. In this situation the best the Tribunal would say is that there is confusion in the case presented by the petitioner/1st respondent. Of course the Onus is heavily on the petitioner/1st respondent to clear whatever confusion that has arisen in the facts she pleaded and sought to prove before the Tribunal. This court of Appeal, (Abuja Division,) took the same view in the case of Ojukwu vs. Obasanjo (2004) 12 NWLR (Pt. 886) 169 where confusion arose from the pleadings and evidence led by the petitioner. Even though the respondents, unlike in this case, led no evidence in support of their defence, it was held that the petitioner did not prima-facie, discharge the burden on him for the sustenance of his petition.
With regards to the evidence of PW1, the gist of his evidence is that election materials arrived as late as 8:00 pm in the wards in Anambra West Local government area by which time the voters had gone and the INEC Officials who brought the said materials took them back. His cross-examination revealed that he was neither a polling agent, INEC staff nor accredited observer and he admitted that he in the local government area. His claim of being a registered voter was not substantiated as he did not produce or tender his voter’s card in evidence. The law of evidence requires that any person alleging that voting did not take place in a given area on the day of the election for whatever reason had to prove same on the strength of the voter’s cards of those voters who were so prevented from voting and voters’ register in the said area. In Buhari vs. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 116, 257 – 258, one of the allegations was that voters did not vote because there were no electoral officials present. The court held that:
“… there is presumption that elections were duly conducted in all the wards including the disputed areas and that all the conditions for valid elections were duly met, it is therefore, incumbent on the Petitioner to call the voters to show that they did not vote in the disputed wards on the said date because there were no electoral official present and that no voting, counting or announcement of results took place in the disputed wards on that day” (Underline mine).
In Nnaji vs. Agbo 2 EPR 867 this court held that there are only two ways by which it could be proved that election did not take place in some wards (as in the instant case) that is, by calling the voters that went to vote on that day but could not do so, and also summoned the respondent to tender the voter’s register.
None of the witnesses who testified for the petitioner/1st respondent proved to be a voter, and no voters register tendered by the petitioner/1st respondent.
From the evidence of PW6, it was shown that materials for the election did not arrive in the local government area before 8.00pm. The witness on the other hand, veered of the pleadings of the petitioner/1st respondent when she pleaded that the materials for an unidentified collation centres were hijacked by hoodlums. This is sharp contract to the evidence of PW1 who stated INEC Officials went back with their materials.
The above is therefore the nature of the evidence put forward by the petitioner/1st respondent to prove her case so as to determine the necessity of shifting the onus to the respondents.
The pertinent question is, can the petitioner who called evidence that collation took place in Anambra West still claims that there was no voting as materials were distributed after the time scheduled for the election? Considering the petitioner’s/1st respondent pleadings, her case is that election did not take place at all. This claim cannot be supported in view of the evidence of her witness who testified that when he came back from Anambra East, collation had started at Anambra west. PW5 had also admitted that when he got to the local government at about 5:20 pm election had been concluded.
Next, the petitioner/1st respondent had alleged in her petition that the results of the election were contrived or fabricated with the active collusion of presiding Officers and 2nd – 6th respondents after the election and outside the election venue. These presiding officers were not joined and as such the Tribunal could not have jurisdiction to entertain allegation of the petitioner/1st respondent that the result of the election was fabricated in the absence of these persons who made the said results. In addition to the non-joinder of the presiding officers, there was not in my view evidence of fabrication given in the proceedings PW7 (the petitioner/1st respondent) testified that she did not witness the alleged fabrication so also did none of the witnesses testify to having witnessed the act fabrication. To find that the results were fabricated, the evidence must be very compelling as the standard of proof is beyond reasonable doubt. There is nothing that justified the holding of the Tribunal that the results were fabricated.
With regards to the distinction being drawn by the Tribunal between allegation of non-holding of elections as a result of late supply of election materials and non-voting where election materials were supplied, with respect, is not the correct position of the law. I have stated earlier that, the law of evidence requires that any person alleging that voting did not take place in a given voting area on the day of the election for whatever reason had to prove same on the strength of voters’ cards of voters who were so prevented from voting, and voters register in the said area. The authorities did not draw a distinction as to when concrete proof is required in allegation that no voting take place. See Ayogu vs. Nnamani (supra) and Rotimi v. Taforii (1999) 6 NWLR (Pt.606) 305.
In view of my analysis above, I am of the view that the petitioner/1st respondent had not discharged the onus of proof as required in the election petition thus necessitating a shift of the onus of proof to the Appellant and 2nd – 6th respondents, and consequently the Tribunal was wrong in the assessment of the evidence led with regards to the Election in Anambra West Local Government Area to the effect that the election did not take place.
Accordingly issues ii and iii of the Appellants issues which are similar in substance to the 2nd – 6th respondents/appellants’ issue (a) and (b) both are resolve in favour of the Appellants.
ISSUE NO. 4
The complaint of the appellant under this issue is that the tribunal was wrong in canceling the election result in Aguleri ward 1, Nsugbe wads 1 and II and Umuoba Anam ward all in Anambra East Local Government.
In his submission the learned senior counsel to the appellant submitted that the proof of the allegations advanced by the petitioner/1st respondent was in adequate as the evidence was not produced from polling agents. He further submitted that the evidence, beside not coming from polling agent or accredited voters with voters cards, did not come from witnesses who claimed that they were present at these wards when the alleged incidents relied on by the Tribunal took place.
In response, learned senior counsel for the petitioner/1st respondent contended that the Tribunal was right because it rightly evaluates both oral and documentary evidence before it reaches its decision to cancel the results. Moreover, the Tribunal used Exhibit p.8 and other exhibits tendered by both parties in making its finding that the results credited to the candidates in questioned election in the said 4 disputed wards were no generated from the polling Units and so cannot represent valid votes cast in the election in those wards. He finally submitted that the Appellant failed to discharge the onus on him, that the findings was not supported by evidence.
The 2nd – 6th respondents/Appellants did not file their respondents’ brief in this appeal.
The petitioner/1st respondent pleaded in her petition paragraph, that the elections in Nsugbe 1 and II and Umuoba-Anam ward were marred by acts of the elections official refusing to count the votes coupled with acts of thuggery and violence by agents of PDP. While in respect of Aguleri ward 1 the election results were not counted and collated as the INEC Official refused to do so on the excuse that the result sheets were not provided. The petitioner/1st respondent also alleged that supervisor for the said Aguleri ward 1 also absconded with the votes cast for the said ward in connivance with PDP agents.
It is to be noted that in the face of all these serious allegations, the petitioner/1st respondent did not join in this suit the officials who refused to count the results and who aided and abetted the hijack of the election materials. The allegation of hijacking and refusal to record the results of the election are criminal in nature and as such there was need for proof beyond reasonable doubt on the basis of clear, cogent and compelling evidence.
In order to discharge this duty, the petitioner/1st respondent called PW2, PW3, PW4, PW5, PW7, PW8 and PW9. First, the evidence of PW2 as to Anambra East Local government is that:
“I was only at Enugu-Out ward when I said there was violence at Nsugbe ward 11. I was referring to what I got from my agent. Voting took place at Anambra East.”
In another angle, that is in his evidence in-chief, PW2 stated that violence took place in the 3 mentioned wards of Anambra East.
I have stated earlier that the evidence of PW2 in this circumstances is contradictory or at least that the evidence was based on hear say which destroyed the entire evidence.
On PW.3,- This witness also testified as to Nsugbe ward II and stated that INEC Officials refused to count and records the votes and the election materials and ballot boxes were hijacked by thugs and agents of PDP who stormed the collation centre and took away all the ballots boxes and other documents. There was no counting or recording of votes as the INEC Officials and PDP took every thing away.
This witness I found earlier in this judgment was not the one who made the deposition on oath he adopted having examine the sample of his signature Exhibit P.2. Also from his evidence there was no nexus established between the perpetrators and the respondents in the petition.
PW4 – this witness testified with respect to Aguleri ward 1, which is one of cancelled wards. As was shown earlier in his statement on oath he claimed he was at Ugwuonadegbe Primary School when the alleged offensive Act took place, yet, when he was cross-examined he was emphatic that he was not at the said location. In spite of this, the Tribunal found that the petitioner/1st respondent discharges the onus on her.
The position of the law is that material contradiction (as in this case) robs the testimony of any probative value. See Onubogu vs. The State (1974) 9 S.C. Once contradiction has been established the accounts given will be afforded no evidential weight and accordingly no burden on the adversary to offer an explanation or contrary evidence.
PW5, also gave evidence as to those wards in dispute to the effect that “there was reports of malpractices and violence” in them. He added that.” In these wards, persons believed to be agents of some political parties snatched materials and vital documents from INEC Officials vanished with them.
Under cross-examination, that his evidence was based on reports which he received. Thus his testimony as to what transpired in these disputed wards was hearsay. The law is trite that oral evidence must in all cases be direct. If it refers to something that was seen, it must be the evidence of the person who said he saw it. See Sec. 75 of the Evidence Act. PW.7 (petitioner/1st respondent). The evidence of PW 7, herself was on cancellation, and this admittedly was hearsay, and also was yet infected with another Melachy. Exhibit P.5 contradicted her evidence and that her evidence under cross-examination to shield the inadequacy further exposed her deposition. In my view, her evidence should not give any credibility, and the Tribunal was wrong when it gave probative value to it.
PW.8 – This witness having examined his evidence I observed that it did not relate to the issue of the cancelled wards.
PW.9 – This respect to this witness, he clearly eat are-treat from his bold assertion of irregularities in these disputed wards made in his statement on Oath. He stated thus under cross-examination:
“I was not at Nsugbe on the date of the election when I said malpractices (sic) when at (sic) Nsugbe wards I and II it was what my agents told me. Iloanito and Ilonnoh (sic) is both at Nsugbe.”
However, it cannot imagine any case that could be further from credibility than the evidence on the irregularities in these wards. The Tribunal, I discover, accepted this hearsay and contradictory case of the petitioner/1st respondent and shift the onus to 2nd – 6th respondents to justifying their case. I must agree with the submission of the learned senior counsel to the 1st respondent/Appellant that the petitioner/1st respondent must in the first instance rely on the strength of her own case and not on the weakness of the defence case. See Bivu vs. Ibrahim (2006) 8 NWLR (Pt.981) 1 at 55.
The evidence in the foregoing regards, in my own view did not come from witnesses who were present at these wards when the alleged incidents alleged took place.
For the witnesses accounts were based on reports given to them. To make the matters worse, only one witness who claimed in his statement on oath that he was present, and under cross-examination clearly stated that he was not present at the previously mentioned polling stations when the act of violence occurred.
From what I have stated above under this issue the Tribunal was in error in canceling the results of the election in the 4 dispute of wards. Accordingly this issue is also resolved in favour of 1st respondent/Appellant.
ISSUE NO 5:
The complaint of the 1st respondent/Appellant under this issue is that, the Tribunal was not justified in relying on the “summary of list of voters”, – Exhibit P8 which was neither pleaded nor listed by the petitioner/1st respondent.
The learned senior counsel for the 1st respondent/Appellant submitted that Exhibit p8 ‘summary of voters’ register, cannot represent a legal proof of the “register of voters,” which was pleaded. He further submitted Exhibit P.8 is of no probative value because it is at best documentary hearsay, as to what is contained in the ‘register of voters’ which is the only evidence of the contents of the register of voters.
In response the learned senior counsel for the petitioner/1st respondent submitted that what the Tribunal did in relying on Exhibits P8 was right and he relied on the Supreme Court decision in Okafor vs. Abiwo (1978) 9 & 10 S.C. 115 at 123. He stated that the Tribunal made a valuable inference on Exhibit P.8.
On whether or not Exhibit P.8 was pleaded he submitted that it was covered ‘paragraph 25 of the petition.
The tribunal in its judgment nullified the election results in the four (4) disputed wards. In nullifying the results of the election in these disputed wards in Anambra East Local government area, it relied heavily on Exhibit P.8. Trying to justify its findings, the Tribunal in its judgment at page 1359 of the record of appeal held thus:
“We do not think that these gamuts of documentary evidence were tendered by both parties for the fun of it or as mere decorations before the tribunal. On the contrary, we think that they were tendered so that they could be evaluated and used in this proceeding for the purpose they were duly tendered and admitted as Exhibits.”
This Exhibit P.8 is form SC/03/A which was tendered through PW.7. Giving probative value did not please the all the respondents to the petition. This Exhibit is again being objected on ground that it was not pleaded or listed as a document on which reliance will be placed in proof of the petition as directed by the Practice Direction.
The law is settled that parties including the court or tribunal are bound by their pleadings as settled by the parties. All matters therefore, which are not embodied in the pleadings proceed to no issues at all and must be disregarded. See Saidu vs. Abubakar (2008) 12 NWLR (Pt.110) 201 at 252.
The essence of pleadings is to narrow down the case of the parties and to eliminate surprise at the trial.
The 1st respondent/appellant in their brief of argument contended that no where in the petition of the petitioner/1st respondent was this document pleaded, or was listed among the documents on which reliance will be placed in proof of the Petition.
1. I have examined the pleadings and observe that nowhere in the pleadings of the petitioner/1st respondent’s petition was this document pleaded or listed. Indeed, what the petitioner/1st respondent pleaded was ‘the comprehensive voters register’ for all the polling booths in the constituency. See paragraph 22(ii) thereof. It was this document that the parties joined issues. It was therefore a total surprise to the defence, instead of reliance on the ‘Comprehensive Voters’ Register,’ the petitioner/1st respondent produced a document which was not contemplated by the settled issues in the pleadings. It is trite that where a party in any proceeding specifically pleaded certain documents to establish his case he cannot be allowed to, during the trial, to rely on other documents different from those specifically pleaded without amendment of his pleadings, as that will render such unpleaded document in admissible and being at variance with pleadings. See Abraham vs. Olorunfunmi (1991) NWLR (Pt.165) 53 at 70 – 71.
I am not unmindful of what appears to be an omnibus pleadings at paragraph 22(v) of the petition which reads:
“22. The respondents, particularly 2nd – 6th respondents are hereby given notice to produce at the hearing of this petition the following documents, namely:
(v) And other documents used in the Federal House of the Representatives election in Anambra East/West Constituency purportedly held on the 21st April, 2007.
This, in my view, cannot be the basis for tendering all documents of the commission unless it first of all established that the document was indeed a document, not just in the custody of INEC, but infact used in the conduct of the election. I have not found any evidence, whatsoever, that Exhibit P.8 was ever used by INEC in the conduct of the election. Equally, no facts as pleaded on which the said evidence could be anchored, i.e., no facts whatsoever which could be related to the existence or otherwise of from SC/03/AN for Anambra East Local government area.
From the records of appeal, it shows that when this Exhibit P.8 ‘Form SC/03/AN’ was tendered, an objection was taken on the ground that it was not pleaded, nor listed. The petitioner/1st respondent offered no answer to its admissibility, yet the Tribunal, admitted it and held that it was pleaded and no mention was made as to whether or not was listed. See page 1211 of the records of Appeal vol. II.
I have seen Exhibit P8. It is a summary of the number of registered voters in the Anambra East/West Federal Constituency. On the face of it, it was clearly certified by INEC on 7/4/2007. From the judgment of the Tribunal it seems to me that the Tribunal applied Exhibit P8 to Exhibits P9 (A-H) P11, P15, P22 and P23 on the viability over the election results in the four (4) disputed wards and held that the votes cast as disclosed on INEC results were not generated at the polling booths. In so doing, the Tribunal accepted the case of over-voting which was put across in the address of petitioner/1st respondent’s counsel, which never formed part of the pleading nor evidence led before the Tribunal. The law is established that it is incumbent on the parties to demonstrate not in an address of their counsel after evidence would have closed, the import of document tendered in evidence. Nobody, so be noted, explained Exhibit P8, it’s impart and its extent.
On the legal effect of Exhibit P8, the alleged summary of voters’ Register cannot be legal proof of the Register of voters. For voters’ Registers are public documents by virtue of section 109 of the Evidence Act, being documents forming the record or Act of official body INEC. By virtue of section 111(1) of the Evidence Act, the Petitioner/1st respondent was entitled to obtain a certified true copy thereof. But no evidence was led by her to the effect that she applied for a C.T.C of the Register and equally she did not subpoena the production of same. See Nzekwu vs. Nzekwu (1989) 2 NWLR (Pt.604) 373 at 404. By virtue of Sec. 92(2) (c) of the Evidence Act NO OTHER KIND OF SECONDARY EVIDENCE of the Register is admissible other than a C.T.C. therefore. That in as much as what the petitioner/1st respondent sought to prove was the continents of voters’ Register, it is not an extract such an Exhibit P8 that will satisfy that proof. The Registers are the best evidence of the number of registered voters and nothing more. Exhibit P8 should not have been a probative value for it is a documentary hearsay, as to what it contained in the Register of voters which should be the only evidence of the contents of the Register of voters.
It is the law that absence or presence of lawful votes can be proved by tendering the Register of voters which was not done in this case. Exhibit P.8 in my view, will paint an invidious picture if accepted without a breakdown of polling booths where, after all, the voting should take place.
Issue of over-voting, which appeared to me to be where the Tribunal rested its forensic examination, is such a serious matter which would not be trivialized by a document such as Exhibit P8 with no pretension of sincerity. In this circumstance, the best evidence, in my view, is the Register of voters itself and there being no evidence of the efforts made by the petioner/1st respondent to obtain it, this court will not give due credence to Exhibit P8.
Over-voting, to be remembered, could not be established in the absence of pleadings. Such allegation is not just an irregularity but an allegation of fraud. Such allegation must be specifically pleaded. See Buhari vs. INEC ( unreported) CA/E/EPT/2/07, delivered on 26/2/2008 at p.52. In this, it was not pleaded, and any evidence led on unpleaded facts go to no issue, and in the same way, an averment of which evidence is not led.
For what I have said and applying the principle above stated and in addition to the absence of the petitioner’s/1st respondents ability to answer to Exhibit P8’s admissibility, I hold the view that Exhibit P8 should not have been relied upon to nullify the results of the election for if this Exhibit P8 had not been admitted, the Tribunal would have reached a different decision.
See Agagu vs. Dawodu (1990) 7 NWLR (Pt.160) 56. That being so I have no alternative but to hold that the conclusion reached by the Tribunal was wrong and extraneous to the pleadings of the parties to this appeal. Accordingly this issue is resolved in favour of 1st and 2nd – 6th respondents/Appellants.
ISSUE NO.6:
The complaint of the 1st respondent/Appellant under this issue is that the Tribunal issue is that the Tribunal was wrong in accepting the results presented by the petitioner/1st respondent with respect to the election in Anambra East Local government and rejecting the case of the 1st and 2nd – 6th respondents/Appellants to the effect that the election in Out-Out-ocha ward II was cancelled by reason of violence in some wards.
Under this issue, it was the contention of the 1st respondent/Appellant that the points, on which the Tribunal sustained the case of the petitioner/1st respondent, are faulty. They are faulty because no competent polling agent or voter with duly accredited voter card gave evidence, despite the fact that the petitioner 1st respondent that the petitioner/1st respondent as confirmed by PW5 under cross-examination, that there were polling agents in all the polling stations and that voters came out and voted even with respect to the wards cancelled by INEC.
It was also contended that the alleged duplicate results tendered by the petitioner/1st respondent herself had no foundation of any kind and are at best hearsay evidence. This is because there was no witness who testified that or she received any of the results at any of the polling stations in Anambra East Local Government Area. This court is finally urged to reject the alleged duplicate result tendered by the petitioner/1st respondent as PW.7, for if rejected there will be no evidence whatsoever on which the case of the petitioner/1st respondent with respect to Anambra East will be sustained with the result that the determination of the Tribunal that the petitioner/1st respondent secured majority of lawful votes cast at the election in the Local Government is liable to be set aside.
In response, it was submitted that on behalf of the petitioner/1st respondent that the Tribunal was right in holding that as genuine the result of the election tendered as the results of the said election and included same as valid result of the election held on 21/4/2007 since it was proved by credible and unchallenged evidence.
At the conclusion of elections in Anambra East/West Federal Constituency on 21/4/07, INEC, 6th respondent, declared the results of the election in which 1st respondent/Appellant emerged the winner. In the results announced for the election, no result recorded for Out-Ocha ward II which was one of the wards in the Federal Constituency. That the petitioner/1st respondent, with a view to impugning the result of the election and or declaration of the 1st respondent/Appellant as the person duly elected and returned in the election filed her petition. Clearly the basis of INEC’s return of the 1st respondent/Appellant was that the results released, announced or declared by INEC did not include the result of Out-ocha ward II. In the case of Buhari vs. Obasanje (supra) at page 193 it was held, per Belgore, J.S.C (as he then was) that:
“Once the Electoral Commission announces the result of an election it is presumed correct and authentic and the petitioner who alleges the opposite must offer clear and positive proof that the result is incorrect and not authentic.”
The petitioner/1st respondent, however not satisfied with the declaration, petitioned, alleging that the said election was duly held in Out-ocha ward II while the respondents in time with the official results tendered denies the allegation. The onus, by the principle of law stated above, was on the petitioner/1st respondent to lead evidence to establish that election was duly held in the said wards and result produced. In order to discharge the onus place on her, i.e. to prove the conduct of the election on the basis of the voters’ register which is the primary evidence of whether election was conducted or not, the petitioner/1st respondent failed to call any evidence to that effect. Apart from herself as PW7 and PW9, none of her witnesses mentioned in Out-ocha ward II. Zeroing down on the testimony, she and her witness presented, did not give any details of any event indicating that election was held in the ward. The petitioner/1st respondent failed to call any voter in the said ward or even a polling agent or INEC staff to testify on how election was conducted in that particular wards II. Yet, the Tribunal despite this lack of evidence on the part of the petitioner/1st respondent insisted that the 1st respondent/appellant and 2nd – 6th respondents did not lead any admissible evidence to impugn the results of the election tendered by the petitioner/1st respondent.
On the duplicate results tendered by the petitioner/1st respondent I wish to point out that, the petitioner/1st respondent neither plead that she got them from the polling Units in the ward, nor gave any such evidence. She did not state how she came about the said result sheets. The results sheets were merely dumped in the Tribunal. I have not seen where in the records that the petition/1st respondent demonstrated before the Tribunal the source of the poling Units result. The evidence with which the results could be impugned is the evidence of the people who were there when the results were made. See Buhari vs. Obasanjo (2005) 13 NWLR (Pt.941) 1, where it was decided that the evidence by which a party challenging election results score or figures must be that of witnesses who were there when the results were made or ought to have been made. Thus the evidence of voters, polling agents, or INEC Official in those Unit in out-ocha ward II is imperative for the court to reject the excuse of the results in the over all results announced by INEC.
I am not unmindful of the decision of the Supreme Court of Nigeria in Omoboriowo vs. Aiasin (1984) 1 SC NLR 108 to the effect that Duplicate results of an election meant for the parties to an election are admissible documents. The issue here is not of admissibility of the duplicate result sheets, but what value to be placed on the documents when admitted. It is to be noted that lawful votes are the votes proved to have duly secured firstly at the polls which is the base of the pyramid in the processes of election culminating in the declaration of result of the Constituency and I hold so.
In the final on this issue, I may be allowed to say that these are oral and documentary evidence for the petitioner/1st respondent to prove her petition which in my view, she woefully failed to do. It is trite that a petitioner or plaintiff must succeed on the strength of his case, not on the weakness of the defence. That the examination of the weakness or otherwise of the case of the defence was not called for as the petitioner/1st respondent did not at all cross the rubicon that would have necessitated strutting of the defence case. I, therefore, resolved this issue in favour of the 1st respondent/Appellant.
The next point for consideration having determined all the six (6) issues raised in the main appeal is the cross-appeal by the petitioner/Cross-Appellant.
The Cross-appeal is against a part of the judgment of the Tribunal delivered on 15/5/2008 wherein the Tribunal in its decision made some findings which ultimately led to the announcement of the results of the election in certain Units which are the contested wards.
From the five grounds of Appeal raised in the notice of Cross-appeal, the petitioner/Cross-appellant formulated two issues. The two issues have been re-produced in the early part of the judgment.
Having determined the main appeal in favour of the 1st respondent/appellant, the cross-appeal and Appeal No. CA/E/EPT/66B/2008 each is subsumed under the main appeal No. CA/E/EPT/66B/2008, and determining each becomes an academic exercise as there is no live issues to be determine. In the result therefore the entire cross-appeal ought and Appeal No. CA/E/EPT/66B/2008 ought to be struck out as it would amount to a mere academic exercise to consider same. It is trite law and elementary that a court of law does not engage in exercise in futility. This has been pronounced in a number of authorities, for example, see the cases of: U.B.A Ltd vs. Edionseri (1988) 1 NSCC 603 at 610; BHOJWAN VS. Bhojwani (1996) 7 S.C.N.J. 16 at 20 – 21. The entire appeal of 2nd – 6th respondents/appellants and cross-appeal of the petitioner/Cross-appellant both are hereby struck out.
In the final result, the decision of the Tribunal dated 15/5/2008 is hereby set aside and the declaration of 1st respondent/appellant by 6th respondent/appellant as the winner in the election held on 21/4/2007 is hereby affirmed.
There shall be no order as to costs, each party to bear his/her costs. In parenthesis, I wish to commend the judgment of the Tribunal for its exemplary industry and lucidity. I also commend counsel for all the parties.
AMINA A. AUGIE, J.C.A: I have read before now the lead Judgment just delivered by my learned brother, Tsamiya, JCA, and I agree with his reasoning and conclusions.
The law is beyond settled that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a Court of trial, which saw, heard and duly assessed the witnesses.
However, where an appeal is brought against the Judgment of the trial Court on findings of fact, this Court has a duty to consider the following –
(a) Whether there was evidence to support the findings and/or decision.
(b) Whether the trial Court made a correct assessment of the evidence before it.
(c) Whether the trial Court has wrongly accepted or rejected any evidence.
(d) Whether there was erroneous appraisal of facts leading to erroneous conclusion in the case.
See -Asheik v. M.T. Nig. Ltd. (2000) 15 NWLR (Pt. 1215) 114.
Once there is sufficient evidence on record from which the trial Court arrived at its findings of fact, the appellate Court cannot interfere – See Okeowo v. A.G Ogun State (2010) 16 NWLR (1219) 327 at 336 SC. However, this Court will readily reverse findings of fact of a trial Court where such findings are perverse and not supported by evidence – See Amadi v. FRN (2008) 18 NWLR (Pt. 1119) 259 SC. Dumez Nig. Ltd. V. Nwakhoba 18 NWLR (Pt. 1119) 361 SC Asheik v. M.T. Nig. (supra).
The lead Judgment in this appeal is replete with findings of fact arrived at by the Tribunal that are clearly perverse. It will not be necessary to highlight them. The erroneous appraisal of facts, obviously led to the erroneous conclusions, and its Judgment must be set aside. Thus, I also allow the main appeal and strike out the other appeals.
ABDU ABOKI, J.C.A: I agree.
Appearances
J.H.C. Okolo (SAN);
Emeka Etiaba, Esq;
Aniukwu;For Appellant
AND
Dr. Ikpeazu (SAN);
O. Anumonye, Esq.,
& Anyigbo, Esq.For Respondent
