HON. SAHEED AKINADE FIJABI & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2019)LCN/13800(CA)
RATIO
DUTY OF COURT IN ADMITTING EVIDENCE BROUGHT BEFORE IT
The settled position of the law is that a Court of law can only act and pronounce Judgment based on credible evidence presented and properly established before it. It is not the duty of the Court to search for extraneous evidence in favour of any of the parties. See CPC VS. INEC (2011) 18 NWLR PART 1279 PAGE 493 AT 544 PARAGRAPH D. PER JIMI OLUKAYODE BADA, J.C.A.
WHETHER THE RESULTS DECLARED BY THE INEC ARE PRIMA FACIE CORRECT
It is trite law that the election result declared by the Independent National Electoral Commission (INEC) are prima facie correct. The onus is on the Appellants who were the petitioners to prove the contrary. In cases of this nature which is declaratory, the petitioners are to succeed on the strength of their case and not on the weakness of the Respondents case. See: –
– AWUSE VS. ODILI (2005) ALL FWLR PART 226 PAGE 248.
– WOLUCHEM VS. GUDI (1981) 5 S.C. PAGE 291.
– ADIGHIJE VS. NWAOGU (2010) 12 NWLR PART 1120 PAGE 419 AT 462 PARAGRAPHS A B. A careful examination of the relief sought by the Appellants showed that it is declaratory in nature. There is therefore no escape route for the Appellants, the burden is on them to succeed on the strength of their own case and not on the weakness of the Respondents case. PER JIMI OLUKAYODE BADA, J.C.A.
DUTY OF PETITIONER IN AN ELECTION PETITION
I am of the view that it is one thing to make allegations but it is another thing to be able to establish and substantiate it in the Court where there are established rules and procedure on how to establish and substantiate such allegations. For example the Supreme Court in NYESOM VS. PETERSIDE (2016) 7 NWLR PART 1512 PAGE 452 AT 520 PARAGRAPHS C F stated on over-voting in an election that the Petitioner must do the following: –
(a). Tender the voters register
(b). Tender the statement of results in appropriate forms which would show the number of registered accredited voters and number of actual voters.
(c). Relate each of the documents to the specific area of his case in respect of which documents are tendered.
(d). Show that the firm representing the over-voting if removed would result in victory to the petitioner.
See HARUNA VS. MODIBBO (2004) 16 NWLR PART 606 PAGE 639. AUDU VS. INEC NO. 2 (2010) 13 NWLR PART 1212. In this appeal the lower Tribunal was therefore right when it held that the Appellants did not establish any of the four ingredients and therefore did not discharge the burden of proof placed upon them. PER JIMI OLUKAYODE BADA, J.C.A.
DUTY OF A PETITIONER WHO CONTESTS THE LEGALITY OF VOTES CAST IN AN ELECTION
The law is that the only way a Petitioner can question lawfulness of some of the votes cast at an elections is to tender in evidence all the forms used and call credible witnesses to testify on the misapplication of votes scored. See OBUN V EBU (2006) ALL FWLR (PT. 327)419; INIAMA V AKPABIO (2008) 17 NWLR (PT. 1116) 225 @ 323, PARAS. D-H; PEOPLES DEMOCRATIC PARTY V USMAN J. & ORS (2015) LPELR- 26032. IN BUHARI V INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2008) 19 NWLR (PT. 1120)246, the Supreme Court, per Tobi, JSC held that: “A Petitioner who contests the legality or lawfulness of votes cast in an election and the subsequent result must tender in evidence all the necessary documents by way of forms and other documents used at the election. He should not stop there. He must call witnesses to testify to the illegality or unlawfulness of the votes cast and prove that the illegality or unlawfulness substantially affected the result of the election. The document are amongst those in which the results of the votes are recorded. The witnesses are those who saw it all on the day of the election; not those who picked the evidence from an eye witness. No. They must be eye witnesses too. Both forms and witnesses are vital for contesting the legality or lawfulness of the votes cast and the subsequent result of the election. One cannot be a substitute for the other. It is not enough for the Petitioner to tender only the documents. It is incumbent on him to lead evidence in respect of the wrong doings or irregularities both in the conduct of the election and the recording of the votes; wrong doings and irregularities which affected substantially the result of the election.” The Appellants as Petitioners therefore had a duty to tender election results and call witnesses who were present at each of the polling units and who witnessed the entry of wrong scores into the affected result sheets. They must in addition testify in relation to alleged erroneous collation of results, manipulation and arbitrary allocation of figures by agents of the 1st Respondent in favour of the 2nd and 3rd Respondents. They must further prove that the wrong entries substantially affected the result of the election. Our concern therefore is whether the Appellants proved their case before the lower Tribunal. It is evident from the printed record that the Appellants called supervisory and ward agents to testify in proof of allegations made in their Petition. PER FOLASADE AYODEJI OJO, J.C.A.
DUTY OF A POLLING AGENT IN AN ELECTION
The law is settled that it is only polling agents of the parties, security agents and other Ad-hoc staff of the 1st Respondent that can validly give eye-witness account of what transpired when a Presiding Officer made entries in the result sheet. I agree with my learned brother that supervisory and ward agents have no role to play at this point as they did not participate in the making of the polling unit results. See BUHARI V OBASANJO (2005) 13 NWLR (PT. 941)1; OKE & ORS V. MIMIKO & ORS (2014) 1 NWLR (PT. 1388)332; ALL PROGRESSIVES GRAND ALLIANCE V INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS. (2012) LPELR- 19952 @ 15- 16, PARAS. C-A. It follows therefore that the evidence of PW1-PW31 constitute hearsay evidence which is inadmissible. It is for the foregoing and the fuller reasons given in the lead Judgment that I agree that the arguments canvassed on behalf of the appellants are not cogent enough to warrant a reversal of the Judgment of the lower Tribunal. I also dismiss this appeal and abide by the consequential orders in the lead Judgment PER FOLASADE AYODEJI OJO, J.C.A.
In The Court of Appeal of Nigeria
On Monday, the 14th day of October, 2019
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the National and State House of Assembly Election Petition Tribunal, holden at Ibadan, Oyo State delivered on 16th August 2019 in Petition NO:- EPT/OY/HR/08/2019 BETWEEN: (1). HON. SAHEED AKINADE FIJABI (2). ALL PROGRESSIVE CONGRESS (APC) VS. (1). INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC), (2). PEOPLES DEMOCRATIC PARTY (PDP), (3). HON OLAJIDE A. STANLEY.
The trial Tribunal refused the prayers of the petitioners and dismissed the petition in its entirety.
Briefly the facts of this case are that the 1st and 2nd Appellants were respectively the candidate and the sponsoring Political Party in the Election of 23rd February 2019 into the House of Representatives for the Ibadan South West/Ibadan North West Federal Constituency.
At the end of the Election the 1st Respondent declared the 3rd Respondent who was the candidate sponsored by the 2nd Respondent as the winner and he was thus returned.
The Appellants challenged the said return of the 3rd Respondent on the sole ground that he was not duly elected by majority of the lawful votes cast at the election and that the election was characterized by various forms of irregularities, substantial non-compliance, over-voting, disenfranchisement, erroneous collation of results, manipulation and arbitrary allocation of figures, erroneous or wrong figures by agents/officials of the 1st Respondent in favour of the 2nd and 3rd Respondents.
At the conclusion of hearing, the trial Tribunal in a Judgment delivered on 16th August 2019 refused the prayers of the Appellants and dismissed the Petition in its entirety.
The Appellants who are dissatisfied with the Judgment of the Trial Tribunal Appealed to this Court.
The learned Counsel for the Appellants formulated two issues for the determination of the appeal. The said issues are reproduced as follows: –
(1) Whether the lower Tribunal was right to have refused to evaluate the documentary evidence tendered as Exhibits by the Appellants before dismissing the petition which if considered proved the case of the Appellant.
(2)Whether having regard to the pleadings and evidence adduced the Appellants have not proved their case to entitle them to reliefs sought in the petition.
The learned Counsel for the 1st Respondent adopted the two issues formulated for the determination of the appeal on behalf of the Appellants.
On his own part, the learned Counsel for the 2nd Respondent adopted with slight modification the two issues formulated for the determination of the appeal by the Appellants. The said issues are reproduced as follows: –
(1) Whether the lower Tribunal was not right not to have attached any probative values to the documents tendered as Exhibits by the Appellants before dismissing the petition. (Distilled from Grounds 1, 5, 6, 9, 11 and 12).
(2) Whether having regard to the pleadings and evidence adduced, the Appellants have proved their case to entitle them to the relief sought in the petition. (Grounds 2, 3, 4, 8, 9, 10, 13, 14, 15, 16 and 17).
On the part of the 3rd Respondent, the learned Counsel formulated two issues for the determination of the appeal. The said issues are reproduced as follows: –
(1). Whether the lower Tribunal had adequately evaluated the evidence, both documentary and oral tendered before the Court before making necessary findings or not.
(Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17).
(2). Whether considering the state of the pleadings and the evidence led before the lower Tribunal can it be said that the lower Tribunal were not right on their assessment of documentary and oral evidence of the Appellants witnesses so as to affect the declaration of the 3rd Respondent at the election for Ibadan South West/North West Federal Constituency seat of Oyo State held on the 23rd day of February 2019. (Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the Notice of Appeal).
At the hearing of this appeal on 4/10/2019, the learned Counsel for the Appellants stated that the appeal is against the Judgment of the National and State House of Assembly Election Petition Tribunal holden at Ibadan delivered on 16/8/2019.
The Notice of Appeal was filed on 5/9/2019 while the record of appeal was transmitted to this Court on 13/9/2019.
The Appellants Brief of Argument was filed on 21/9/2019. The Appellant Reply Brief to the 1st and 2nd Respondents Brief of Argument were both filed on 28/9/2019 while the Reply Brief to the 3rd Respondents Brief was filed on 2/10/2019.
Learned Counsel for the Appellants adopted and relied upon the said Appellants Brief of Argument as well as the Appellants Reply Brief of Argument as his argument in urging that the appeal be allowed.
The learned Counsel for the 1st Respondent also referred to the 1st Respondents Brief of Argument filed on 27/9/19. He adopted the said brief as his argument in urging that the appeal be dismissed. He stated that the Appellants reargued their appeal in the Reply Brief.
The learned Counsel for the 2nd Respondent also referred to the brief filed on behalf of 2nd Respondent on 21/9/2019. He adopted the said brief as his argument in urging that the appeal be dismissed.
The learned Counsel for the 3rd Respondent also referred to the 3rd Respondents Brief filed on 27/9/2019. He adopted the said brief as his argument in urging that the appeal be dismissed.
I have perused the issues formulated for the determination of this appeal by Counsel for the parties to this appeal. The issues are similar. But the issues as formulated on behalf of the Appellants are apt in the determination of this appeal. I will therefore rely on the said issues formulated on behalf of the Appellants.
ISSUES FOR THE DETERMINATION OF THE APPEAL
ISSUE NO. 1
Whether the lower Tribunal was right to have refused to evaluate the documentary evidence tendered as Exhibits by the Appellants before dismissing the petition which if considered proved the case of the Appellants. (Distilled from Grounds 1, 5, 6, 9, 11 and 12).
The learned Counsel for the Appellants highlighted the statement on Oath which PW1 to PW31 gave at the trial Tribunal.
Several documents were tendered either through the Bar or through the witnesses called by the Appellants.
The learned Counsel for the Appellants contended that none of the documents tendered were evaluated by the trial Tribunal.
He relied on the following cases AWUSE VS. ODILI (2005) ALL FWLR PART 261 PAGE 323 PARAGRAPH D, F-H.
-FLASH FIXED ODDS LTD VS. AKATUGBA (2001) 9 NWLR PART 717 PAGE 63.
It was contended that the Appellants in proof of specific allegations in the petition called the supervisory and collation Agents in respect of all the Wards, gave evidence and tendered Form EC8A(11) in respect of both disputed polling units and undisputed polling units. It was also stated that the Appellants witnesses who are both supervisory and Ward Agents gave evidence of what transpired at 81 poling units and 37 voting points of Ward 012 as eye witnesses.
He relied on the following cases:-
– AREGBESOLA VS. OYINLOLA (2011) 9 NWLR PART 1253 PAGE 458 AT 570-571 PARAGRAPHS D-A.
– ONYE VS. KEMA (1999) 4 NWLR PART 598 PAGE 198 AT 2014 PARAGRAPHS G-H.
– YAR?ADUA VS. BARDA (1992) 2 NWLR PART 231 PAGE 653.
– MALUMFASHI VS. YABA (1999) 4 NWLR PART 598 PAGE 230 AT 237 PARAGRAPHS D-E.
It was contended on behalf of the Appellants that elections were free and fair in all the Wards except Ward 012 where he complained that no proper election took place.
It was submitted on behalf of the Appellants that the position of the lower Tribunal that only the makers of a document can tender them otherwise it becomes a documentary hearsay does not represent the correct position of the law. It was stated further that the correct position of the law is that the documents which are relevant were duly tendered and admitted as Exhibits by the lower Tribunal hence they ought to have been evaluated to come to a decision one way or the other.
Learned Counsel for the Appellants submitted that the Tribunal failed in its duty to evaluate the evidence already before the lower Tribunal.
He relied upon the case of ARABAMBI VS. ADVANCE BEVERAGES INDUSTRY LTD. (2005) 19 NWLR PART 959 PAGE 9 AT 31.
He contended that the nature of the case of the Appellants is such that complaints can only be proved by documentary evidence which were before the trial Tribunal as Exhibits, yet the Tribunal failed to consider the Exhibits in arriving at its decision.
He relied on the following cases:-
– AREGBESOLA VS. OYINLOLA (2010) LPELR 3805 AT 165-166.
– DALHATU VS. TURAKI (2003) 7 S. C. PAGE 1.
Learned Counsel therefore urged that this issue be resolved in favour of the Appellants.
The learned Counsel for the 1st Respondent submitted that the issue canvassed by the Appellants is the fact that the lower Tribunal failed and or refused to evaluate the documentary Exhibits by the Appellants before dismissing the petition.
But on the contrary, the learned Counsel for the 1st Respondent submitted that the documentary evidence led were considered before the lower Court arrived at its decision.
He relied on the case of:-
– SHELL PETROLEUM DEVELOPMENT CO. NIGERIA LTD VS. OTOKO (1990) 6 NWLR PART 159 PAGE 693 AT 709.
It was submitted that the testimonies of Appellants witnesses at the Trial Tribunal i.e. PW1-PW31 none of them was a unit agent, thus all documents tendered were tendered by non-makers who did not participate in making them.
He relied on OKONJI & 2 OTHERS VS. NJOKANMA & 2 OTHERS (1999) 14 NWLR PART 638 PAGE 250.
Learned Counsel for the 1st Respondent urged this Court to affirm the Judgment of the lower Tribunal.
The learned Counsel for the Appellants in his Reply Brief reiterated his earlier submission in urging that this appeal be allowed.
The learned Counsel for the 2nd Respondent in his own case highlighted the evidence of PW1 to PW31 and submitted that the submissions of Counsel for the Appellants is misconceived.
It was contended that none of the witnesses called by the Appellants demonstrated before the Tribunal the alleged results which the Appellants tagged fake and genuine.
He relied on the following cases:- BELGORE VS. AHMED (2013) 8 NWLR PART 1335 PAGE 60 AT 100.
– FLASH FIXED ODDS LTD VS. AKATUGBA (2001) 9 NWLR PART 717 PAGE 46 AT 63.
It was further submitted that the only persons who can give evidence on what happened at the polling unit on election day are those like Presiding Officers and Polling Agents who actively participated in or observed the conduct of that election.
He finally urged that this issue be resolved in favour of the Respondents.
In his Reply Brief to the 2nd Respondent, the Appellants Counsel submitted that the nature of the Appellants complaint and quality of evidence adduced by the Appellants witnesses vide their respective statements on Oath are such that probative value and heavy weight be attached to the documents which are result sheets.
It was further submitted on behalf of the Appellants that there was no legal justification for the Tribunal to hold that the result tendered were inadmissible hearsay same not being tendered by their makers. He relied on the case of: –
– ANDREW VS. INEC (2018) 9 NWLR PART 1625 PAGE 507 PARAGRAPH H.
The learned Counsel for the Appellants reiterated his earlier argument in the Appellants Brief and urged that the appeal be allowed.
The learned Counsel for the 3rd Respondent submitted that the findings of fact made by the trial Tribunal on oral testimony of witnesses of the petitioners are within the exclusive preserve of the lower Tribunal. He relied on the case of:- OSUAGWU VS. STATE (2013) 5 NWLR PART 1347 PAGE 360 AT 389 PARAGRAPHS B E.
The learned Counsel submitted that the Appellants made allegation of falsification of election results and non-compliance with the Electoral Act as basis of the petition. He went further that the petition is laced with Criminal Allegations. He submitted that the burden of proof on Appellants is proof beyond reasonable doubt. He relied on the case of:- GANDIRI VS. NYAKO (2014) 2 NWLR PART 1391 PAGE 211 AT 258 PARAGRAPHS D E.
It was also stated that the Appellants by their petition are challenging election in 595 polling units and called only 31 witnesses. It was submitted that 31 witnesses would not be enough to prove the allegations. He relied on the cases of: –
– AJIMOBI VS. INEC (2009) ALL FWLR PART 477 PAGE 91
– HASHIDU VS. GOJE (2006) 2 EPR PAGE 789.
– BUHARI VS. OBASANJO (2005) ALL FWLR PART 273 PAGE 1 AT 214.
It was contended on behalf of the 3rd Respondent that the lower Court was right in not entertaining the Exhibits tendered by the Appellants because they were tendered by the Appellants witnesses who were not polling unit agents. He relied on the case of:- ANDREW VS. INEC (2018) 9 NWLR PART 1625 PAGE 507 AT 557 558 PARAGRAPHS H C.
The learned Counsel for the 3rd Respondent urged that this issue be resolved in favour of the Respondents.
In his Reply Brief of Argument the learned Counsel for the Appellants reiterated his earlier submissions and urged that this appeal be allowed.
RESOLUTION
The issue under consideration here is whether the lower Tribunal was right to have refused to evaluate the documentary evidence tendered as Exhibits by the Appellants before dismissing the petition which if considered, proved the case of the Appellants.
The settled position of the law is that a Court of law can only act and pronounce Judgment based on credible evidence presented and properly established before it. It is not the duty of the Court to search for extraneous evidence in favour of any of the parties. See CPC VS. INEC (2011) 18 NWLR PART 1279 PAGE 493 AT 544 PARAGRAPH D.
A careful reading of the petition and the evidence presented at the trial Tribunal would reveal that the Appellants are challenging the election in 595 polling units. The Appellants called 31 witnesses in proof of their case. But as rightly observed by the trial Tribunal in its Judgment that from the evidence presented, none of the witnesses called by the Appellants at the trial Tribunal i.e. PW1 to PW31 was a unit agent. Therefore all the documents tendered by the Appellants were tendered by the non-makers or persons who did not participate in making them. The documents tendered by the Appellants are therefore documentary hearsay. See the following cases: –
– OKONJI & 2 OTHERS VS. NJOKANMA & 2 OTHERS (1999) 14 NWLR PART 638 PAGE 250.
– OKOREAFFIA VS. AGWU (2012) 1 NWLR PART 1282 PAGE ? AT 452 PARAGRAPHS D – G
– BUHARI VS. OBASANJO (2005) 13 NWLR PART 941 PAGE 1 AT 177.
The trial Tribunal was therefore right when it held that:-
From the evidence of the witnesses, it is very clear that there were elections held at the various units and results produced. The results were signed. It follows that:- (1). There were results tendered and admitted as Exhibits.”
However, these results were not tendered either by the Presiding Officers who entered them at the units or the Party units Agents who participated in the making of the unit results. So for them to be tendered either by the learned Counsel to the Petitioners, the 1st Petitioner himself or Collation Agents who tendered and or identified them, all the efforts would amount to hearsay evidence as they are not the makers. Only Polling Units Agents or Presiding Officers can give evidence on them. So, they are inadmissible on this point See – NWAOGU & ANOTHER VS. INEC & OTHERS (2015) LPELR 41576 AT 16 17.
The importance of polling agents at the polling units/stations as being the eyes of the Petitioners was restated more recently by the APEX COURT IN OGUNRIRI VS. NYAKO (2014) 2 NWLR PART 1391 PAGE 211 AT 245, thus:-
The significance of the polling units agents cannot therefore be under estimated in the case at hand if the Appellant must have the facts to prove their case. The best evidence the Appellant could have had was that of the agents at the polling units who were physically on ground and in true position to testify as to what transpired at the election. The consequence of shutting them out for whatever reason is very detrimental to the Appellants case. See HASHIDU VS. GOJE (2003) 15 NWLR PART 843 PAGE 352 AND BUHARI VS. OBASANJO (2005) ALL FWLR PART 373 AT 164 165. Further See OKE VS. MIMIKO NO 2 (2014) 1 NWLR PART 1388 PAGE 323 AT 376.
ADEWALE VS. OLAIFA (2012) 17 NWLR PART 1330 PAGE 478.
In view of the foregoing, this issue No. 1 is hereby resolved in favour of the Respondents and against the Appellants.
ISSUE NO. 2.
Whether having regard to the pleadings and evidence adduced the Appellants have not proved their case to entitle them to reliefs sought in the petition. Distilled from Grounds 2, 3, 4, 8, 9, 10, 13, 14, 15, 16 and 17.
The learned Counsel for the Appellants stated that the Appellants called 30 witnesses in support of their case. He went further that the complaint of the Appellants is simply rooted in the unlawfulness of votes as it relates to the entries made in column 7 of the Form EC8A(II) as total valid votes which entries are not correct when the total votes cast and recorded against each of the political parties that contested election are calculated.
It was contended that the 1st Respondent has failed to justify the purported correction of error at the collation centre. He went further that the petition is challenging the lawfulness votes leading to the victory and return of the 3rd Respondent as the candidate of the 2nd Respondent in the Election under reference.
It was submitted that the end result of the complaints of the Appellants in this petition knocks at the very foundation of the return of the 3rd Respondent as the winner of the election. He relied on the case of:- IBRAHIM VS. UMAR (2012) 7 NWLR PART 1300 PAGE 507 AT 535 PARAGRAPHS C G.
The learned Counsel for the Appellants stated that there has been no allegation of or proof of forgery against any of the electoral documents tendered by the Appellants. The cumulative effect of the foregoing is that the lower Tribunal without much ado is entitled to rely on the said documents in resolving issue of unlawfulness of votes raised in the petition.
He went further in his submission that Ward Collation Agents and Supervisory Agents gave unchallenged evidence that they saw what transpired at the Polling Units. These pieces of evidence were contained in their statement on Oath. The documents were referred to in their statement on Oath as the document they worked with. He submitted that their evidence is credible and reliable. He relied on the case of AREGBESOLA VS. OYINLOLA (2010) LPELR-3805 CA AT 165-166.
He went further that the Appellants witnesses gave evidence of clustered poling units and the fake or incorrect results also lie against the 2019 Manual and Guidelines for Election made pursuant to Section 149 of the Electoral Act 2010 (as amended). The Provisions therein are meant to be strictly followed by the Electoral Officers. He submitted that a contravention as in the instant petition shall amount to non-compliance. He relied on the following cases:- CPC VS. INEC (2011) 18 NWLR PART 1279 PAGE 493 AT 543.
– YAKI VS. BAGUDU (2015) LPELR-25721 (SC).
– UZAMERE VS. URHOGHIDE (2011) ALL FWLR PART 558 PAGE 839 AT 859.
The learned Counsel for the Appellants also stated that if the non-compliance with the Electoral Act affects the results as in this petition, it will lead to nullification of results. He relied on the case of TOUNAREGHA VS. WILSON (1993) 1 NWLR PART 267 PAGE 31 PARAGRAPHS D-E.
It was also stated that the case of the Appellants so far as it relates or affects the 11 wards of the Ibadan North West Local Government remains unassailed having regard to the acts of the 1st and 2nd Respondents abandoning their pleadings in rebuttal of the allegations in the petition. The rebuttal evidence in respect of the 12 wards of Ibadan South West Local Government as that R15 being one Wasiu Adeleke whose name was not listed in the list of witnesses as contemplated by the Electoral Act. The statement on Oath is inadmissible afortiori, his evidence under Cross Examination, he not being a competent witness to testify as he was not listed among the 13witnesses whose names were indicated by Alphabets in the list of witnesses filed along the 2nd Respondents Reply. He submitted that a party to an election petition can only file a witness whose names is contained in the list of witnesses filed which accompanied the petition or reply. He relied on ADEGBUYI VS. MUSTAPHA (2010) ALL FWLR PART 532 PAGE 1753 AT 1779 PARAGRAPHS A-B.
Learned Counsel for the Appellants urged that the evidence of Wasiu Adeleke be expunged and if this is done, the implication is that the 2nd Respondent did not call any evidence in respect of 11 wards in Ibadan North West Local Government hence the Appellants allegation of facts in respect of the units complained of are deemed admitted.
He finally urged that this issue be resolved in favour of the Appellants.
The Learned Counsel for the 1st Respondent in his response to the submission of Counsel for the Appellants submitted that the law is trite that the election results declared by Independent National Electoral Commission are prima facie corrects. The onus is on the Petitioner to prove the contrary. He relied on the cases:- BUHARI VS. OBASANJO (2005) 13 NWLR PART 941 PAGE 1.
– AWOLOWO VS. SHAGARI (1979) 6-9 SC PAGE 51.
He submitted that the trial Tribunal was right when it held that the Appellants being the Petitioners at the lower Tribunal had the burden of adducing credible evidence to disprove the result of the election as declared and announced by the 1st Respondent.
He went further in his submission that where a party seeks declaratory reliefs, the burden is on him to succeed on the strength of his own case and not on the weakness of the defence. He relied on the following cases: -EMENIKE VS. PDP (2012) 12 NWLR PART 1315 PAGE 556.
-DUMEZ LTD VS. NWAKHOBA (2008) 18 NWLR PART 1317 PAGE 330.
It was stated that the Appellants alleged the elections in the Poling Units and Wards in Ibadan North West Local Government and South West/North West Federal Constituency were characterized by various forms of irregularities substantial non-compliance and manipulations etc.
Learned Counsel for the 1st Respondent submitted that it is one thing to make an allegation but it is another thing to be able to establish and substantiate the allegation in a Court of law. He relied on NYESOM VS. PETERSIDE (2016) 7 NWLR PART 1512 PAGE 452 AT 520 PARAGRAPH C-F.
It was submitted on behalf of the 1st Respondent that the lower Tribunal was right when it held that the Appellants as Petitioner did not discharge the burden of proof placed on them.
The learned Counsel for the 1st Respondent urged that this issue be resolved in favour of the Respondents and dismiss the appeal.
The learned Counsel for the Appellants in his Reply Brief of Argument submitted that the presumption of regularity in favour of the results declared by the 1st Respondent is rebuttable and has been rebutted by the avalanche of relevant documentary and oral evidence presented by the Appellants.
He went further that it is erroneous for the trial Tribunal to hold that the Appellants did not discharge the burden of proof placed on them by law.
He stated further that there is no doubt that even without considering the other pockets of non-compliance or falsification of results or unlawfulness of votes in other polling units outside the ones on the face of Exhibits tendered by the Appellants as fake results, the registered voters in all the polling units of Ward 012 Ibadan South/West Local Government where election did not hold is above and beyond the margin of victory between the 1st Appellant and the 3rd Respondent. Therefore, the 1st Respondent ought to have applied the margin of lead principle in circumstances of this case. He relied on the case of:-
– FAYEMI VS. ONI (2009) 7 NWLR PART 1140 PAGE 223.
Learned Counsel for the Appellants finally urged that this Court should discountenance 1st Respondents submission, resolve this issue in favour of the Appellants and allow the appeal.
The learned Counsel for the 2nd Respondent stated that the sole ground of the petition is that the 3rd Respondent was not duly elected by majority of lawful votes cast at the election.
He stated that the implication of this sole ground was settled in OGBORU VS. UDUAGHAN (2012) ALL FWLR PART 651 AT 1475 where the Court held that:
Where an election is contested on the ground that the Respondent was not duly elected by a majority of lawful votes cast at the election, allegations of corrupt practices and non-compliance with the Provisions of the Electoral Act are excluded.
This is the difference between Section 138(1)(b) and 138(1)(c) of the Electoral Act. Section 138 (1) (c) of the Electoral Act has to do with errors of collation, miscalculation or exclusion of lawful votes to the disadvantage of the petitioner (without allegation of non-compliance with the Provisions of the Electoral Act or Corrupt Practices). Invalidation of votes can only come up when there are either non-compliance with the Provisions of the Electoral Act or Corrupt Practice.
It was submitted on behalf of the 2nd Respondent that allegations that election did not take place because the electorate were scared away by the 2nd and 3rd Respondents thugs brandishing lethal weapons at the election venues as pleaded in paragraph 104(ii) of the petition amount to breach of public peace, criminal intimidation and being in illegal possession of fire-arms all of which are criminal in nature and must be proved beyond reasonable doubt. He relied on the case of ABUBAKAR VS. MARK (2010) ALL FWLR PART 531 PAGE 1578 AT 1603 1604.
He submitted further that for the Appellants to succeed on these allegations, they must go further and establish beyond reasonable doubt that the Respondents personally committed the offence or authorized the commission of the alleged crimes, a duty which the Appellants in the instant case failed to discharge. He relied on the case of OGU VS. EKWEREMADU (2006)1 NWLR PART 961 PAGE 255 AT 282.
Learned Counsel for the 2nd Respondent urged that this issue be resolved in favour of the Respondents and dismiss the appeal.
In his reply brief, the learned Counsel for the Appellants repeated the submissions he made in reply to the 1st Respondents submission and he urged that this appeal be allowed.
The learned Counsel for the 3rd Respondent submitted that the Appellants are expected to succeed on the strength of their case and not on the weakness of the defence. As such the burden to establish by credible proof became more stringent and strong considering the fact that there is a presumption of regularity and validity on the result so declared pursuant to Section 168 (1) of the Evidence Act. Therefore where any Petitioner challenges the announcement and declaration of results of an election such as was made by the 1st Respondents, it behooves on and very incumbent upon the Appellants who are petitioners to adduce reliable credible and cogent evidence to prove their assertion. He relied on the case of :-
– ADIGHIJE VS. NWAOGU (2010) 12 NWLR PART 1120 PAGE 419 AT 462 PARAGRAPHS A B.
It was also submitted on behalf of the 3rd Respondent that the Appellants who made criminal allegation of forgery of election results did not prove their case beyond reasonable doubt by calling unit agents who can testify in respect of those units who would be cross-examined.
The learned Counsel for the 3rd Respondent also submitted that the Appellants were unable to prove beyond reasonable doubt their claim that the 3rd Respondent did not win the majority of lawful votes cast at the election. And also that they were unable to prove the grounds for nullifying the election that produced the 3rd Respondent as winner of the election held on the 23/2/2019 into the House of Representative for Ibadan South West/North West Federal Constituency.
RESOLUTION
It is trite law that the election result declared by the Independent National Electoral Commission (INEC) are prima facie correct. The onus is on the Appellants who were the petitioners to prove the contrary. In cases of this nature which is declaratory, the petitioners are to succeed on the strength of their case and not on the weakness of the Respondents case. See: –
– AWUSE VS. ODILI (2005) ALL FWLR PART 226 PAGE 248.
– WOLUCHEM VS. GUDI (1981) 5 S.C. PAGE 291.
– ADIGHIJE VS. NWAOGU (2010) 12 NWLR PART 1120 PAGE 419 AT 462 PARAGRAPHS A B.
A careful examination of the relief sought by the Appellants showed that it is declaratory in nature. There is therefore no escape route for the Appellants, the burden is on them to succeed on the strength of their own case and not on the weakness of the Respondents case.
The Appellants by their pleading alleged that sizeable number of invalid results of the voting were entered in the polling unit result Forms EC8A (II) by the Presiding Officers of the 1st Respondent which results ought to have been cancelled and fresh election ordered. It was also alleged that all the polling units and wards of Ibadan North West Local Government Area of Ibadan South West/North West Federal constituency was characterized by various forms of irregularities, substantial non-compliance, over-voting, disenfranchisement, erroneous collation of results, manipulation and arbitrary allocation of figures, erroneous wrong entry of figures by the agents and/or officials of the 1st Respondent and in favour of the 2nd and 3rd Respondents which elections ought to be cancelled and fresh election conducted.
I am of the view that it is one thing to make allegations but it is another thing to be able to establish and substantiate it in the Court where there are established rules and procedure on how to establish and substantiate such allegations.
For example the Supreme Court in NYESOM VS. PETERSIDE (2016) 7 NWLR PART 1512 PAGE 452 AT 520 PARAGRAPHS C F stated on over-voting in an election that the Petitioner must do the following: –
(a). Tender the voters register
(b). Tender the statement of results in appropriate forms which would show the number of registered accredited voters and number of actual voters.
(c). Relate each of the documents to the specific area of his case in respect of which documents are tendered.
(d). Show that the firm representing the over-voting if removed would result in victory to the petitioner.
See HARUNA VS. MODIBBO (2004) 16 NWLR PART 606 PAGE 639. AUDU VS. INEC NO. 2 (2010) 13 NWLR PART 1212.
In this appeal the lower Tribunal was therefore right when it held that the Appellants did not establish any of the four ingredients and therefore did not discharge the burden of proof placed upon them.
Also in order to prove disenfranchisement, the Court would be satisfied when such voters give clear evidence that they were registered for the election but were not given the opportunity to cast their votes. Such voters must tender in evidence their respective voters cards and register of voters from each affected polling unit to confirm the allegation of disenfranchisement. And most important is the need for such disenfranchised voter to give evidence to show that if they had been given the opportunity to vote, the candidate of the political party of their choice would have won the election.
See the following cases:- NGIGE & OTHERS VS. INEC & 3 OTHERS (2015) 1 NWLR PART 1440 PAGE 281 AT 326.
– OKE VS. MIMIKO NO. 2(2014) 1 NWLR PART 1388 PAGE 332.
– UCHA & ANOTHER VS. ELECHI & 2 OTHERS (2012) 13 NWLR PART 1317 PAGE 330.
– UDOM VS. UMANA NO. 1 (2016) 12 NWLR PART 1526 PAGE 179 AT 247 PARAGRAPHS E H.
In this case none of the voters who claimed to have been disenfranchised tendered their voters registers for the affected units.
The trial Tribunal was therefore right when it held that the Petitioners failed to establish or prove disenfranchisement.
Furthermore, allegations contained in the Petition which range from entry of wrong results into various result sheets, over-voting, manipulation, arbitrary allocation of figures are acts which are criminal in nature which by law must be proved beyond reasonable doubt. See the following cases:-
-NYESOM VS. PETERSIDE. (SUPRA)
– HASHIDU VS. GOJE (2003) 15 NWLR PART 843 PAGE 352 AT 386 PARAGRAPHS E F.
– ABUBAKAR VS. YARADUA (2008) 19 NWLR PART 1120 PAGE 1 AT 143.
– ABUBAKAR VS. MARK (2010) ALL FWLR PART 531 PAGE 1578 AT 1603 1604.
Consequent upon the foregoing, this issue No. 2 is hereby resolved in favour of the Respondents and against the Appellants. With the resolution of the two issues in this appeal against the Appellants, it is my view that this appeal lacks merit and it is hereby dismissed.
The Judgment of the trial Tribunal in petition NO: – EPT/OY/HR/08/2019 BETWEEN: (1). HON. SAHEED AKINADE FIJABI (2). ALL PROGRESSIVES CONGRESS (APC) VS. (1). INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) (2). PEOPLES DEMOCRATIC PARTY (PDP) (3). HON. OLAJIDE A. STANLEY delivered on the 16th day of August, 2019 is hereby affirmed.
There shall be (100,000.00) One Hundred Thousand Naira costs in favour of each of the Respondents against the Appellants.
Appeal Dismissed.
NONYEREM OKORONKWO, J.C.A.: I agree.
FOLASADE AYODEJI OJO, J.C.A.: I have had the benefit of reading in draft the lead Judgment just delivered by my learned brother, Jimi Olukayode Bada, JCA. I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed. I wish to comment briefly on the challenge raised by the Appellants in respect of lawfulness of votes cast at the election conducted on 23rd February, 2019 into Ibadan South West/lbadan North West Federal Constituency seat in the Federal House of Representatives.
The law is that the only way a Petitioner can question lawfulness of some of the votes cast at an elections is to tender in evidence all the forms used and call credible witnesses to testify on the misapplication of votes scored. See OBUN V EBU (2006) ALL FWLR (PT. 327)419; INIAMA V AKPABIO (2008) 17 NWLR (PT. 1116) 225 @ 323, PARAS. D-H; PEOPLES DEMOCRATIC PARTY V USMAN J. & ORS (2015) LPELR- 26032. IN BUHARI V INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2008) 19 NWLR (PT. 1120)246, the Supreme Court, per Tobi, JSC held that:
“A Petitioner who contests the legality or lawfulness of votes cast in an election and the subsequent result must tender in evidence all the necessary documents by way of forms and other documents used at the election. He should not stop there. He must call witnesses to testify to the illegality or unlawfulness of the votes cast and prove that the illegality or unlawfulness substantially affected the result of the election.
The document are amongst those in which the results of the votes are recorded. The witnesses are those who saw it all on the day of the election; not those who picked the evidence from an eye witness. No. They must be eye witnesses too. Both forms and witnesses are vital for contesting the legality or lawfulness of the votes cast and the subsequent result of the election. One cannot be a substitute for the other. It is not enough for the Petitioner to tender only the documents. It is incumbent on him to lead evidence in respect of the wrong doings or irregularities both in the conduct of the election and the recording of the votes; wrong doings and irregularities which affected substantially the result of the election.”
The Appellants as Petitioners therefore had a duty to tender election results and call witnesses who were present at each of the polling units and who witnessed the entry of wrong scores into the affected result sheets. They must in addition testify in relation to alleged erroneous collation of results, manipulation and arbitrary allocation of figures by agents of the 1st Respondent in favour of the 2nd and 3rd Respondents. They must further prove that the wrong entries substantially affected the result of the election. Our concern therefore is whether the Appellants proved their case before the lower Tribunal. It is evident from the printed record that the Appellants called supervisory and ward agents to testify in proof of allegations made in their Petition.
The law is settled that it is only polling agents of the parties, security agents and other Ad-hoc staff of the 1st Respondent that can validly give eye-witness account of what transpired when a Presiding Officer made entries in the result sheet. I agree with my learned brother that supervisory and ward agents have no role to play at this point as they did not participate in the making of the polling unit results. See BUHARI V OBASANJO (2005) 13 NWLR (PT. 941)1; OKE & ORS V. MIMIKO & ORS (2014) 1 NWLR (PT. 1388)332; ALL PROGRESSIVES GRAND ALLIANCE V INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS. (2012) LPELR- 19952 @ 15- 16, PARAS. C-A. It follows therefore that the evidence of PW1-PW31 constitute hearsay evidence which is inadmissible.
It is for the foregoing and the fuller reasons given in the lead Judgment that I agree that the arguments canvassed on behalf of the appellants are not cogent enough to warrant a reversal of the Judgment of the lower Tribunal. I also dismiss this appeal and abide by the consequential orders in the lead Judgment
Appearances:
Mr. Sikiru Adewoye with him, P.A. Fakoya, Esq., Mr. R. Olabisi, Esq. and T.S. AbdulazeezFor Appellant(s)
Mr. P.O. Kuye with him, Mrs. F.O. Ajiboye for the 1st Respondent.
Mr. Adewale Adegoke with him, Suleiman Olaiya, Esq., Akeem Olaniyan, Esq. and Chiamaka Okereafor.
Mr. Yusuf O. Ogunrinde for the 3rd RespondentFor Respondent(s)
Appearances
Mr. Sikiru Adewoye with him, P.A. Fakoya, Esq., Mr. R. Olabisi, Esq. and T.S. AbdulazeezFor Appellant
AND
Mr. P.O. Kuye with him, Mrs. F.O. Ajiboye for the 1st Respondent.
Mr. Adewale Adegoke with him, Suleiman Olaiya, Esq., Akeem Olaniyan, Esq. and Chiamaka Okereafor.
Mr. Yusuf O. Ogunrinde for the 3rd RespondentFor Respondent
