HON. UJONG BOB UJONG & ANOR v. HON. ETENG JONAH WILLIAMS & ORS (2019)

HON. UJONG BOB UJONG & ANOR v. HON. ETENG JONAH WILLIAMS & ORS

(2019)LCN/13811(CA)

In The Court of Appeal of Nigeria

On Friday, the 18th day of October, 2019

CA/C/NAEA/SHA/366/2019

RATIO

ELECTION PETITION: A RETURNING OFFICER CANNOT CANCEL ELECTION RESULTS EMANATING FROM POLLING UNITS

It is settled, in the realm of electoral firmament, that a Returning Officer is derobed of the vires to cancel election results emanating from polling units. The power to cancel such results is bestowed on a presiding officer. See Doma v. INEC (2012) 13 NWLR (Pt. 1317) at 328; Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513) 38. PER OBANDE FESTUS OGBUINYA, J.C.A.

ELECTION PETITION: THE DECISION OF A RETURNING OFFICER IS FINAL SUBJECT TO THE ORDER OF A TRIBUNAL OR COURT

By virtue of the provision of Section 68(1) (C) of the Electoral Act, 2010, as amended, the decision of a Returning Officer in respect of “declaration of scores of candidates and the return of a candidate shall be final subject to review by a Tribunal or Court in an election petition proceedings under this Act.This provision, even though comprehension friendly, is not self-executory. A declaration or return, which, under Section 156 of the Electoral Act, 2010, as amended, connotes a declaration by a Returning Officer of a candidate in an election under this Act as being the winner of the election, must have been made in order to ignite the operation of the provision. See INEC v. Abubakar (2008) All FWLR (Pt. 442) 1163; Faleke v. INEC (2016) 18 NWLR (Pt. 1543) 61. Indeed, in the eyes of the law, the electoral umpire, INEC, forfeits the right to cancel election result that has been declared. In Sylva v. INEC (2018) 18 NWLR (Pt. 1651) 310 at 363, Aka?ahs, JSC, incisively, declared:

Where a poll has been taken and a result is announced, the 1st respondent [INEC] cannot cancel the result already announced. It is only the election Tribunal or the Court that can annul such a result upon a petition being laid before it. The burden would be on the petitioner to produce Form EC 8A to prove that a result was announced after the poll. Presently the burden is quite heavy on the petitioner since the result of each polling unit must be produced. PER OBANDE FESTUS OGBUINYA, J.C.A.

A TRIBUNAL OR COURT HAS THE DUTY TO CONSIDER ALL ISSUES THAT ARE BROUGHT BEFORE IT

That takes me to the settlement of issue two. The kernel of the issue is simple. It chastises the Tribunal of failure to pronounce on all issues submitted to it by the parties. To begin with, an issue for determination is a combination of facts and law which, when decided, determines, defines and affects the fate of a case, see PDP v. Umeh (2017) 12 NWLR (Pt. 1579) 27. Generally, a Court of law, trial or appellate, has the bounden duty to consider and pronounce on all issues validly submitted and joined by the parties before it. This hallowed principle of law is elastic. It admits of exceptions. One of them, which the parties identified, is when an issue is subsumed or encompassed by another issue already considered, see Adebayo v. A.-G., Ogun State (2008) 7 NWLR (Pt. 1085) 201; A.I.B. Ltd. v. IDS Ltd. (2012) 17 NWLR (Pt. 1328) 1, Ecobank (Nig.) Ltd. v. Anchorage Leisures Ltd. (2018) 18 NWLR (Pt. 1650) 116; Umar v. Gaidam (2018) 1 NWLR (Pt. 1652) 29; Honeywell Flour Mills Plc. v. Ecobank (Nig.) Ltd. (2019) 2 NWLR (Pt. 1655) 35. PER OBANDE FESTUS OGBUINYA, J.C.A.

HE WHO ASSERTS MUST PROVE

It is settled law, that a party who makes a positive/affirmative assertion is saddled with the arduous burden of proving them. Contrariwise, a party that makes a negative assertion carries no burden of proof. This doctrine, burden of proof on affirmative or negative assertion, traces its paternity to the old Roman jurisprudence and encapsulated in the Latin maxim: incumbit probatio qui dicit, non quit negat the burden of proving of a fact rests on the party who asserts the affirmative of the issue and not upon the party who denies it ? for a negative is usually incapable of proof, see Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205, per Nweze, JSC; Sections 131 133 of the Evidence Act, 2011, Elemo v. Omolade (1968) NMLR 359 at 361; Lewis & Peat (NRI) Ltd. v. Akhimien (1976) 10 NSCC 360 at 365; Kate Enterprises Ltd. v. Daewoo Nig. Ltd. (1985) 2 NWLR (Pt. 5) 116; Vulcan Gases Ltd. v. Gesellschaft Fur Ind. (2001) 9 NWLR (Pt. 719) 610; Imana v. Robinson (1979) 3-4 SC 1 at 9; Onyenge v. Ebere 18 NSCQR (Pt. 10789); Ewo v. Ani (2004) 3 NWLR (Pt. 861) 610; Olaiya v. Olaiya (2002) 12 NWLR (Pt. 982) 652; Akande v. Adisa (2012) 15 NWLR (Pt. 1324) 538; Okoye v. Nwankwo (supra); Odom v. PDP (2015) 6 NWLR (Pt. 1456) 527. In the glaring presence of this trite position of the law, who, as between the parties, has the burden of proof. PER OBANDE FESTUS OGBUINYA, J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

1. HON. UJONG BOB UJONG

2. ALL PROGRESSIVE CONGRESS (APC) – Appellant(s)

AND

1. HON. ETENG JONAH WILLIAMS

2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

3. PEOPLES DEMOCRATIC PARTY (PDP)

4. RESIDENT ELECTORAL COMMISSION CROSS RIVER STATE – Respondent(s)

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal is an offspring of the decision of the National and State Houses of Assembly Election Tribunal of Cross River State, sitting in Calabar (hereinafter addressed as ?the Tribunal?), coram judice: Vincent N. Agbata, J. (Chairman), Ishaku I. Kunda, J. (Member) and Abubakar S. Bello, J. (Member), in Petition No. EPT/CAL/SHA/13/2019, delivered on 4th September, 2019. Before the Tribunal, the appellants and the respondents were the petitioners and the respondents respectively.

The facts of the petition, which transformed into the appeal, are amenable to brevity and simplicity. The second respondent, the Independent National Electoral Commission (INEC, for short), is a body constitutionally allocated the herculean responsibility to organise general election in Nigeria. In discharge of the onerous duty, it conducted an election, on 9th March, 2019, for a member to represent Yakurr II State Constituency in the House of Assembly of Cross River State. A total of ten (10) registered political parties partook in the election. The first appellant was the flag bearer

of the second appellant: the All Progressives Congress (APC) ? a registered political party in Nigeria. The third respondent, the People?s Democratic Party (PDP), another registered political party in Nigeria, had the first respondent as its standard bearer. At the end of the poll, the second respondent declared and returned the first respondent as the winner, id est, as a member to represent Yakurr II State Constituency in the House of Assembly of Cross River State. The appellants were peeved by the declaration and return. Sequel to that, they beseeched the Tribunal, via a petition filed on 28th March, 2019, predicated on two grounds, and tabled against the respondents the following reliefs:

i. AN ORDER declaring the return of the 1st Respondent as invalid and null and void by reason of non-compliance with express provisions of the Electoral Act, 2010 and the Guidelines/manual for the 2019 General Elections.

ii. AN ORDER withdrawing the Certificate of returns given to the 1st Respondent as winner of the election by the 2nd Respondent and given same to the 1st Petitioner.

iii. May it be Determine that the 1st petitioner be returned as

the winner of the general elections of 9th March, 2019 for the office of Cross River State House of Assembly for Yakurr II State Constituency, having scored the majority of the lawful votes cast in the said election.

Alternatively/Or

iv. That it may be determined that the Election into the Yakurr II State Constituency was Inconclusive by reason of the cancellation of the results of the election in Abanakpai and Inyima Registration Areas/wards as well as the four (4) Polling Units in Nkpolo/Ukpawen Registration Area.

In reaction, the respondents joined issue with the appellants and denied liability in their respective replies. The appellants filed replies to the respondents? respective replies.

Following the rival claims, the tribunal had a full-scale determination of the petition. In proof of the petition, the appellants called four witnesses, PW1 – PW4. In disproof of it, the first respondent called twelve witnesses, DW1 – DW12. The second and fourth respondents fielded a witness: DW13. The third respondent called no witness. The contending parties tendered tons of documentary evidence in proof and disproof of the petition

respectively. At the closure of evidence, the parties, through learned counsel, addressed the Tribunal by dint of adoption of written addresses. In a considered judgment, delivered on 4th September, 2019, found at pages 535 ? 546 of the printed record, the Tribunal dismissed the petition.

The appellants were dissatisfied with the decision. Hence, on 13th September, 2019, they lodged an 8-ground notice of appeal, copied at pages 547 ? 556 of the record, and prayed this court for:

i) An order allowing the Appellants appeal and setting aside the Judgment of the lower Court delivered on the 4th day of September, 2019 dismissing the Petition of the Appellant for failure to prove same on a balance of probabilities before it.

ii) AN ORDER of this Honourable Court declaring the cancellation of the Inyima Registration Area/Ward, Abanakpai Registration Area/Ward and the Four (4) Polling Units of Nkpolo/Ukpawen by the Constituency Returning officer ultra-vires, null and void.

iii) An Order of the Honourable Court declaring the 1st Appellant the candidate of the 2nd Appellant as the candidate that scored the majority votes cast in the

election.

iv) AN ORDER of this Honourable Court for the withdrawal of the certificate of return of the 1st Respondent issued to him by the 2nd Respondent. And in the unlikely alternative.

v) AN ORDER of this Honourable Court for the holding of supplementary Elections in the Disputed Areas assuming without conceding the cancellation of same is valid and/or elections did not hold in the disputed Areas/Wards.

Thereafter, the parties filed their respective briefs of argument in line with the procedure governing the hearing of election appeals in this Court. The appeal was heard on 9th October, 2019.

During its hearing, learned counsel for the appellants, E. E. Osim, Esq., adopted the appellants? brief of argument, filed on 28th September, 2019, appellants? joint reply brief to the first and third respondents? brief, filed on 4th October, 2019, and appellants? reply brief to the second and fourth respondents? brief, filed on 3rd October, 2019, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the first respondent, Mba E. Ukweni, SAN, adopted the first

respondent?s brief of argument, filed on 2nd October, 2019 as forming his reactions against the appeal. He urged the Court to dismiss it. In the same vein, learned counsel for the second and fourth respondents, Zakawanu I. Garba, Esq., adopted the second and fourth respondents? brief of argument, filed on 2nd October, 2019, as constituting his stand against the appeal. He urged the Court to dismiss it. Also, learned counsel for the third respondent, Michael Afu, Esq., adopted the third respondent?s brief of argument, filed on 2nd October, 2019, as his contentions against the appeal. He urged the court to dismiss it.

In the appellants? brief of argument, learned counsel distilled four issues for determination to wit:

i) Whether there is power under the provisions of the Electoral Act, 2010 (as amended) and the Manual for Election Officials as well as the Regulation & Guidelines for the General Election donated to the Constituency Returning officer to entitle him to cancel the Polling Units results in Form EC 8A(1) for Abankpai Registration Area/Ward, Inyima Registration Area/Ward and the four (4) Polling Units of 001, 004

and 008 in Nkpolo/Ukpawen Registration Area/Ward to entitle the 2nd Respondents to custody fictitious election results?

ii) Whether the lower Tribunal was not under duty to pronounce on all the issues submitted to it by the parties for determination one way or the other without more?

iii) Whether the Respondents offered sufficiently and/or abundant evidence to rebut the presumptions of law in favour of the election results (Form EC 8 A[1] series] in Abanakpai Registration Area/Ward, Inyima Registration Area/Ward and the four (4) Polling Units of 001,003,004 and 008 in Nkpolo/Ukpawen Registration Area/Ward the areas in dispute?

iv) Whether or not the Appellants discharge the onus of proof on them based on a balance of probabilities as posited by the lower Tribunal?

In the first respondent?s brief of argument, learned counsel crafted three issues for determination viz:

(1) Whether the learned trial Judges of the Election Tribunal failed, refused and/or neglected to make pronouncement on any fundamental or vital issue(s) of law and facts in dispute between the parties in the petition and which was duly placed before them for

consideration?

(2) Whether on the evidence before them, the learned Judges of the Election Tribunal were not right in coming to the conclusion that, the purported or fictitious results from the disputed areas of Abanankpai Registration Area/Ward, Inyima Registration Area/Ward and the four Polling Units of Nkpolo/Ukpawen Registration Area/Ward, which were the outcome of hijack exercise, were properly rejected by the Constituency Returning Officer?

(3) Whether on the totality of the evidence before them, the learned Judges of the Election Tribunal were not right in holding that the Appellants failed to prove their entitlements to the relief sought, particularly, their contention that the election took place in Abanankpai Registration Area/Ward, Inyima Registration Area/Ward and the following four Polling Units of Nkpolo/Ukpawen Registration Area/ Ward, namely;

(i) Unit 001: the polling unit at Lekpankom;

(ii) Unit 003: the polling unit at Agoi Ekpo Road, Letekom;

(iii) Unit 004: the polling unit opposite PCN; and

(iv) Unit 008: the polling unit at Ukpawen playground?

In the second and fourth respondents? brief of

argument, learned counsel nominated two issues for determination, namely:

(1) WHETHER THE TRIBUNAL?S CONSIDERATION OF MATERIAL ISSUES BETWEEN THE PARTIES IN THE DETERMINATION OF THE PETITION WITHOUT MORE OCCASIONED A MISCARRIAGE OF JUSTICE?

(2) WHETHER FROM THE PECULIAR FACTS AND CIRCUMSTANCES OF THE PETITION AND THE TOTALITY OF THE EVIDENCE ADDUCED BEFORE THE TRIAL TRIBUNAL, THE PETITIONERS PROVED THEIR PETITION TO BE ENTITLED TO THE RELIEFS SOUGHT?

Admirably, in the third respondent?s brief of argument, learned counsel adopted the appellants? issues for determination.

A close look at the three sets of issues shows that they are identical in substance. In fact the respondents? issues can be, conveniently, subsumed under the appellants?. Given the sameness, I will decide the appeal on the issues formulated by the appellants: the undoubted owners of the appeal.

Arguments of the issues

Issue one

Learned counsel for the appellants submitted that the Constituency Returning Officer had no power to cancel election result under the Electoral Act, 2010, as amended. He stated that the illegal act of

the Returning Officer was brought to the Tribunal, but it wrongfully glossed over it. He relied on Agip v. Agip (2010) 2 SCM/(2010) NSCQR 167. He noted that the power of the Returning Officer in Section 68(C) of the Electoral Act, 2010, as amended. He cited INEC v. Abubakar (2008) All FWLR (Pt. 442) 1163. He observed that INEC would not custody fictitious results in Form EC8A(1) from the disputed areas. He said that the Tribunal should have taken judicial notice of results of Form EC8A(1) under Section 122 of the Evidence Act, 2011. He referred to Badau v. INEC (2008) (sic) 1794. He asserted that the appellants had no burden to prove that the results in the disputed areas were the second respondent?s result sheets in Form EC8A(1) used for the election. He cited Amgbare v. Sylva (2009) 1 NWLR (Pt. 1121)1.

On behalf of the first respondent, learned counsel argued, per contra, that the cancellation made by the Returning Officer, over votes in disputed areas, was part of the supervisory role of INEC over conduct of election. He cited Section 68(C) of the Electoral Act, 2010, as amended; INEC v. Abubakar (2008) All FWLR (Pt. 442) 1165; Abubakar v. Mark

(2010) All FWLR (Pt. 531) 1578. He reasoned that Exhibits P12, P14 and P15 were produced by strangers who could not give account of them. He explained that the cancellation was made before the return was made and so right in law. He asserted that the appellants alleged that election took place in disputed areas and had the burden to prove that positive. He relied on Ogboru v. Uduaghan (2011) 8 EPL 444; Omisore v. Aregbesola (2015) All FWLR (Pt. 813) 1673/(2015) NWLR (Pt. 1482 205; Udoh v. Abigor (2016) All FWLR (Pt. 839) 1018.

On the part of the second and fourth respondents, learned counsel added that the appellants failed to prove the holding of election on those disputed areas. He relied on INEC v. Abubakar (supra). He insisted that facts would determine a case. He relied on Achebe v. Mbanefo (2017) LPELR ? 41886 (CA).

For the third respondent, learned counsel posited that by Section 72 of the Electoral Act, 2010, as amended, INEC had the power to keep electoral results whether valid or invalid.

Issue two

Learned counsel for the appellants submitted that a Court must pronounce on all issues before it except where one was subsumed

under another. He relied on Adebayo v. A.-G., Ogun State (2008) 5 SCM 1. He noted that the Tribunal failed to pronounce on the respondents? failure to comply with the mandatory provision of Paragraphs 12(a), 15 and 44 of the First Schedule to the Electoral Act, as amended (the First Schedule). He added that it failed to pronounce and strike out the pleadings/replies of the respondents that alleged crimes against innocent third persons who were not made parties to the petition. He repeated that it failed to pronounce on judicial notice of Form EC8A(1). He relied on Obisi v. Chief of Naval Staff (2004) 18 NSCQR (Pt. 11) 18; Agagu v. Mimiko (2009) All FWLR (Pt. 412) 1126; Shigaba v. Gwantana (2015) 11 EPR 52. He maintained that the Tribunal?s failure to pronounce on them affected the appellants? right to fair hearing and occasioned a miscarriage of justice. He urged the Court to pronounce on them pursuant to Section 15 of the Court of Appeal Act.

For the first respondent, learned counsel contended that the situation was not one for invocation of Section 15 of the Court of Appeal Act and that the appellants failed to show how the

Tribunal?s could have favoured them. He cited Okotie-Eboh v. Manager (2004) LPELR ? 2502 (SC). He stated that the issue fell within the exception as it was subsumed under the appellants? lone issue before the Tribunal, at page 439 of the record, which tallied with the second issue in the pre-hearing report. He explained that the points fell within the issue. He insisted that the issue agreed on in the pre-trial session was binding on the parties.

For the second and fourth respondents, learned counsel submitted that a Court could rely on a single issue to determine a case. He cited Mekwunye v. Lotus Capital (2018) LPELR ? 45546 (CA). He said that the Tribunal having determined the material issues in the petition was not bound to pronounce other issues that would not change it. He insisted that the appellants failed to show any miscarriage of justice. He cited Akoma v. Osenwokwu (2014) 11 NWLR (pt. 1419) 462. He added that the no sanctions for failure to comply with Paragraphs 12(2), 15 and 44 of the First Schedule. He claimed that by paragraph 53 (1) of the First Schedule, such non-compliance would not make the proceedings void. He

asserted that even if the Tribunal did not pronounce on them, the petition could not be returned to it as the period to hear it had expired.

On behalf of the third respondent, learned counsel contended that the appellants? allegations were criminal ones and should have been proved beyond reasonable doubt. He cited Section 135(1) of the Evidence Act, 2011; Okechukwu v. INEC (2014) 17 NWLR (Pt. 1436) 255; Chima v. Onyia (2009) 2 NWLR (Pt. 1124) 1. He added that the appellants failed to discredit any disenfranchised voter in the disputed areas. He relied on Kakih v. PDP (2014) 15 NWLR (Pt. 1430) 374. He stated that the appellants did not prove overvoting as required in Section 53(2) of the Electoral Act, 2010, as amended.

On points of law, learned counsel for the appellants submitted that the Tribunal?s failure to pronounce on all the issues affected their right to fair hearing as provided in Section 36(1) of the Constitution, as amended. He cited Victino Fixed Odds Ltd. v. Ojo (2010) 4 SCM 127.

Issue three

?Learned counsel for the appellants contended that there was a rebuttable presumption that election took place in Nigeria.

He relied on Uchechukwu v. Okpalake (2011) 6 WRN 135. He listed what INEC should prove to discharge the presumption as noted in Okeke v. Ejezie (2011) All FWLR (Pt. 603) 1811. He alleged that the evidence of the respondents were contradictory on the point-results of the disputed areas. He added that the presumption availed the election results.

On the part of the first respondent, learned counsel argued that the presumption would apply to result accepted and declared by official body not those rejected by it as in the case in hand.

On the side of the third respondent, learned counsel submitted that the respondents rebutted the presumption based on the evidence they placed before the Tribunal. He described the appellants? reliefs as mutually exclusive. He blamed them for failing to pray for fresh election as provided in Section 140(2) of the Electoral Act, 2010, as amended. He cited CPC v. INEC (2011) 18 NWLR (Pt. 1279) 439; Agbaje v. INEC (supra); Ige v. Olunloyo (1984) 1 SC 195; Mustapha v. Bulama (1999) 3 NWLR (Pt. 595) 376.

Issue four

Learned counsel for the appellants submitted that the appellants having shown that the

Returning Officer wrongly cancelled the results in the disputed areas and tendered certified true copies of the results discharged the burden on them on the balance of probabilities. He described the evidence of DW3, DW5 and DW13 as contradictory on the point that the election at the disputed areas was fraught with malpractices. He added that evidence of DW13 was incredible. He reasoned that the Tribunal wrongly described the evidence of PW1 as hearsay without regard to Section 222 (2) of the Evidence Act, 2011 which it ought to take judicial notice of. He persisted that the unit results did not convey hearsay evidence. He referred toAregbesola v. Oyinlola (2011) 1 WRN 33. He stated that the documents were relied on by the respondents. He explained that the first respondent abandoned paragraph 26 of his reply. He reminded the Court that no oral evidence could contradict the content of a document. He cited Ashakacem Plc. v. Asharatul Mubashshuiurun Invest. Ltd. (2019) 14 WRN 118. He observed that over nine thousand voters were disenfranchised by the cancellation made by the Returning Officer who never testified in the petition. He took the view that the

appellants produced two sets of results, Exhibits P12A-D, P14A ? 1 and P15 A-G, as required by law. He cited Amosun v. INEC (2011) 8 EPR 290.

On behalf of the first respondent, learned counsel submitted that the burden was on the appellants to prove the allegations in the petition. He cited Sections 131 and 132 of the Evidence Act, 2011. He explained that the appellants? case was that election took place in those disputed areas and they had the burden to prove that. He analysed the evidence of PW1 ? PW4 to show that they failed to discharge the burden. He noted that the Tribunal?s findings were in line with justice. He referred to Maigoro v. Bashir (2000) All FWLR (Pt. 19) 553. He described the evidence of PW1, on the malpractices, as an admission against interest. He cited Alon v. Dandrill Nig. Ltd. (1997) 8 NWLR (Pt. 517) 495; Adeboye v. Baje (2016) FWLR (Pt. 845) 79; Justice Party v. Duke (2006) All FWLR (Pt. 339) 907/(2006) 19 WRN 101.

Learned counsel posited that the first appellant, who tendered Exhibits P12, P14 and PW15, was not their maker and they amounted to documentary hearsay. He referred to Ladoja v. Ajimobi

(2016) 10 NWLR (Pt. 1519) 87; Nyesom v. Peterside (2016) 7 NWLR (pt. 1512) 452; Belgore v. Ahmed (2013) 8 NWLR (Pt. 1355) 60. He analysed the evidence of PW2 ? PW4 and insisted that they were unreliable particularly from the point of cross-examination. He noted that evidence of PW3 was full of contradictions and unreliable. He cited A.-G, Oyo State v. Fairlakes Hotel (No.2) (1989) 5 NWLR (Pt. 121) 255. He added that their evidence were inadmissible hearsay as they were based on events on different units. He referred to Doma v. INEC (2012) All FWLR (Pt. 628) 815. He claimed that the appellants? allegations, falsification of results, cancellation of votes and general non-compliance, were criminal ones which they could not prove beyond reasonable doubt. He citedEkpo v. Toyo (2012) 8 NWLR (Pt. 1303) 460; Maikudi v. Musa (2004) All FWLR (Pt. 230) 1096.

It was further submitted that the best evidence of what happened in each of disputed 20 pollings would be those of the voters and parties? polling agents at the units which PW1 ? PW4 did not fall within the categories. He relied on ACN v. Nyako (2013) All FWLR (Pt. 686) 424;

Buhari v Obasanjo (2005) 13 NWLR (Pt. 941) 1. He postulated that the appellants had the burden to prove their allegation of non-compliance with the Electoral Act unit by unit based on the evidence of eye witnesses. He cited Nyesom v. Peterside (supra); Ladoja v. Ajimobi (supra). He stated that the appellants proved nothing and the burden did not shift to the respondents. He referred to Funtua v. Tijjani (2011) 7 NWLR (Pt. 1245) 130. He added that the appellants? relief 1 was declaratory which could not be granted on admission but on the strength of their case which they failed to establish. He citedAchilihu v. Anyatonwu (2013) 12 NWLR (Pt. 1368) 256; Oguanuhu v. Chiegboka (2013) 6 NWLR (Pt. 1351) 588; Nruamah v. Ebuzoeme (2010) 13 NWLR (Pt. 1372) 474; CPC v. INEC (2012) All FWLR (Pt. 617) 605. He concluded that Exhibits D5A ? C were referred to by witnesses and not dumped on the Tribunal.

On the part of the second and fourth respondents, learned counsel posited that appellants? reliefs were contradictory and not grantable. He relied on Agbaje v. INEC (2015) LPELR ? 25651 (CA). He stated that the appellants failed to prove the allegations. He

cited Oke v. Mimiko (2013) LPELR ? 21368 (SC). He noted that the appellants failed to rebut the presumption that election took place in the Constituency. He cited Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1. He reasoned that the election was in substantial compliance with the provisions of the Electoral Act, 2010, as amended, as there could be no perfect election. He cited Ucha v. Elechi (2012) LPELR ? 7823 (SC); Okechukwu v. INEC (2014) 17 NWLR (Pt. 1436) 255. He repeated that Exhibits D5A ? C were not dumped on the Tribunal and that the appellants did not object to their admission and could not object now. He referred to Olojode v. Olaleye (2012) LPELR ? 9845 (CA). He concluded that the appellants failed to appeal against the finding that the evidence of their witnesses were hearsay and they were bound by it.

For the third respondent, learned counsel persisted that the evidence of PW1 was hearsay. He repeated his submission on reliefs under issue three.

On points of law, learned counsel for the appellants stated that the third respondent abandoned its pleadings when it called no witness. He cited Aregbesola v. Oyinlola

(2011) 1 WRN 33. He insisted that the appellants appealed against the findings on hearsay. He relied on the grounds of appeal. He added that there was no ground of appeal to sustain the argument on the incompatibility of the reliefs. He posited that a Tribunal had powers to grant appropriate reliefs even when not under Section 140 of the Electoral Act, 2010, as amended. He cited Emerhor v. Okowa (2016) 48 WRN 1.

Resolution of the issues

In the interest of orderliness, I will attend to the issues in their numerical sequence of presentation by the parties. To this end, I will kick off with the consideration of issue one. An indepth study of the issue, clearly, reveals that it is canalised within a narrow compass. In the main, it queries the power of a Returning Officer to cancel polling unit results, in Form EC8 A(1), in the disputed areas: Abanakpai and Inyima registration areas/wards and four polling units, 001, 003, 004 and 008, in Nkpolo/Ukpawen registration area/ward in Yakurr II State Constituency. While the appellants found the act ultra vires his position, the respondents took it as intra vires his functions.

?It is settled, in the realm

of electoral firmament, that a Returning Officer is derobed of the vires to cancel election results emanating from polling units. The power to cancel such results is bestowed on a presiding officer. See Doma v. INEC (2012) 13 NWLR (Pt. 1317) at 328; Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513) 38.

By virtue of the provision of Section 68(1) (C) of the Electoral Act, 2010, as amended, the decision of a Returning Officer in respect of “declaration of scores of candidates and the return of a candidate shall be final subject to review by a Tribunal or Court in an election petition proceedings under this Act.? This provision, even though comprehension ? friendly, is not self-executory. A declaration or return, which, under Section 156 of the Electoral Act, 2010, as amended, connotes ?a declaration by a Returning Officer of a candidate in an election under this Act as being the winner of the election?, must have been made in order to ignite the operation of the provision. See INEC v. Abubakar (2008) All FWLR (Pt. 442) 1163; Faleke v. INEC (2016) 18 NWLR (Pt. 1543) 61. Indeed, in the eyes of the law, the electoral umpire, INEC,

forfeits the right to cancel election result that has been declared. In Sylva v. INEC (2018) 18 NWLR (Pt. 1651) 310 at 363, Aka?ahs, JSC, incisively, declared:

It is decipherable from this magisterial pronouncement, in the ex-cathedra authority, that the onus to prove that a presiding officer announced result of election at polling unit rests, squarely, on the shoulder of a petitioner. It flows, in the case in hand, that the appellants own the onus probandi to show that the results of the polling units, in Forms EC8A (1), wherein they anchored/registered their protests were, duly, declared by the presiding officers who superintended the polling units during the election. It will be seen

anon, during the treatment of issue four, that the appellants failed to discharge the herculean burden of proof: that results were announced at the polling units in those contested areas. On this premises, their quarrel with the conduct of the Returning Officer vis a vis pseudo-election in those disputed wards come to naught. It is lame and cannot fly. For this reason, I will not hesitate to resolve the issue one against the appellants and in favour of the respondents.

another issue already considered, see Adebayo v. A.-G., Ogun State (2008) 7 NWLR (Pt. 1085) 201; A.I.B. Ltd. v. IDS Ltd. (2012) 17 NWLR (Pt. 1328) 1, Ecobank (Nig.) Ltd. v. Anchorage Leisures Ltd. (2018) 18 NWLR (Pt. 1650) 116; Umar v. Gaidam (2018) 1 NWLR (Pt. 1652) 29; Honeywell Flour Mills Plc. v. Ecobank (Nig.) Ltd. (2019) 2 NWLR (Pt. 1655) 35.

In total fidelity to the law, I have visited the record, the touchstone of the appeal, especially at the residence of the appellants? final address which colonises pages 432 ? 470 of the record. The appellants? solitary issue is wrapped in page 439 thereof. Due to its royal status on the issue, I will pluck it out, where it is domiciled in the record, verbatim ac litteratim, thus:

Whether in view of the peculiar facts and circumstances of this petition, the election and return of the 1st Respondent by the 2nd Respondent is sustainable as having been undertaken in substantial compliance with the electoral (sic) Act?

A microscopic examination of the singular issue, amply, demonstrates that it is ipsissima verba with the Tribunal?s second issue for determination, which is

reflected at pages 344 and 542/543 of the record, which is the final product of the pre-hearing session. At dawn of page 543, lines 4 and 5, of the record, the tribunal said: ?We wish, however, for reasons of convenience only, to consider the two issues jointly; as if they are one issue.? It devoted pages 543 ? 546 of the record to the examination of the conflated issues. It constructed the imaginery scale of justice and, painstakingly, analysed the evidence offered by the feuding parties and came to the conclusion that the petition was unmeritorious. This judicial exercise, to my mind, is a classic exemplification of consideration and pronouncement on issue placed before it by the appellants.

?It is germane to draw a distinction between an issue and points, marshalled by a party, that constitute it. There is a wide dichotomy between the two nomenclatures. An issue parents/gives birth to point(s). In other words, points are offshoots of an issue. A court of law may consider an issue without necessarily addressing all the points germinating from it. This may arise when some points it has considered is potent enough to determine a case or

when the unconsidered points are irrelevant to the hub of a case. A Court that fails to consider a point(s), on the footing of either ground adumbrated above, cannot be branded as having failed to consider and pronounce on an issue. The appellants? grouse is hinged on the Tribunal?s failure to examine some points which is totally divorced from failure to consider all the issues before it. The yawning gulf between an issue and points in an issue, displayed above, with due reverence, exposes the poverty of the appellants? accusation of the Tribunal?s failure to consider all the issues before it. In essence, the judgment of the Tribunal, which is sought to impugned, is not, in the least, guilty of the pseudo-charge of non-consideration of all the issues levelled against it by the appellants. In the result, I have no choice than to resolve the issue two against the appellants and in favour of the respondents.

Having dispensed with issue two, I proceed to handle issues three and four. I will amalgamate their considerations. The reason is plain. A careful look at them shows that they are intertwined and share a common target: to puncture

the Tribunal?s adverse findings against the appellants? petition. The fused issues host lots of points that itch for distinct determinations.

Now, one of the appellants? chief grievances, indeed their trump card on the issues, is that the Tribunal misplaced/swapped the burden of proof between the contending parties. By way of prefatory remarks, the term, burden of proof, which is ubiquitous in adjudication, denotes ?the duty which lies on one or other of the parties, either to establish a case or to establish the facts upon a particular issue?, see Okoye v. Nwankwo (2014) 15 NWLR (Pt. 1429) 93 at 133, per Muhammad, JSC (now CJN). The law divides it into two categories: the legal burden of proof and the evidential burden of proof. The former, which bears other appellations: persuasive burden, probate burden, ultimate burden, the burden of proof on pleadings or the risk of non-persuasion, propounded by Phipson on Evidence, 11th Edition (Sweet and Maxwell) page 125, rests on a party who asserts the existence of facts. The latter oscillates between parties in a case depending on the assertion in the pleadings.

?It is settled

law, that a party who makes a positive/affirmative assertion is saddled with the arduous burden of proving them. Contrariwise, a party that makes a negative assertion carries no burden of proof. This doctrine, burden of proof on affirmative or negative assertion, traces its paternity to the old Roman jurisprudence and encapsulated in the Latin maxim: ?incumbit probatio qui dicit, non quit negat ? the burden of proving of a fact rests on the party who asserts the affirmative of the issue and not upon the party who denies it ? for a negative is usually incapable of proof?, see Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205, per Nweze, JSC; Sections 131 ? 133 of the Evidence Act, 2011, Elemo v. Omolade (1968) NMLR 359 at 361; Lewis & Peat (NRI) Ltd. v. Akhimien (1976) 10 NSCC 360 at 365; Kate Enterprises Ltd. v. Daewoo Nig. Ltd. (1985) 2 NWLR (Pt. 5) 116; Vulcan Gases Ltd. v. Gesellschaft Fur Ind. (2001) 9 NWLR (Pt. 719) 610; Imana v. Robinson (1979) 3-4 SC 1 at 9; Onyenge v. Ebere 18 NSCQR (Pt. 10789); Ewo v. Ani (2004) 3 NWLR (Pt. 861) 610; Olaiya v. Olaiya (2002) 12 NWLR (Pt. 982) 652; Akande v. Adisa (2012) 15 NWLR (Pt.

1324) 538; Okoye v. Nwankwo (supra); Odom v. PDP (2015) 6 NWLR (Pt. 1456) 527. In the glaring presence of this trite position of the law, who, as between the parties, has the burden of proof?

?I have given a clinical examination to the appellants? 40-paragraph petition, which monopolise pages 5-20 of the record. I have perused it with the finery of a tooth-comb. Interestingly, it is submissive to easy appreciation. The meat of the appellants? case is that the results of the election which took place in Abanakpai and Inyima wards and four polling units, 001, 003, 004 and 008, in Nkpolo/Ukpawen ward were not declared in their favour. The respondents? case is antithetical to theirs, id est, that no election took place in those enumerated wards. It is discernible from these incompatible positions, that the appellants asserted the positive: the holding of election in those disputed areas. Contrariwise, the respondents averred the negative: the non-conduct of election therein. As already noted, while positive assertion is obedient to proof, negative assertion is rebellious to it. It stems from these, that the law casts/vests the burden of

proof on the appellants, not the respondents. Put bluntly, it is the appellants that have the onus to prove that election took place in those disputed wards.

That is not all. There is crying need to consult the record, the spinal cord of the appeal, to ascertain the grounds upon which the appellants erected their petition. In paragraph 14 of the petition, located at page 8 of the record, the appellants pegged their petition on these two grounds:

(i) The 1st Respondent was not duly elected by a majority of lawful votes cast at the election of the 9th day of March, 2019 in the Yakurr II State Constituency.

(ii) The election was invalid and marred by reason of corrupt practices and non-compliance with the provisions of the electoral Act, 2010 [amended].

Unarguably, the two grounds qualify as grounds to challenge election as sanctioned by Section 138(1) (c) and (b) of the Electoral Act, 2010, as amended, respectively. Interestingly, the provision has fallen for interpretation in a flood of cases, see Oshiomhole v. Airhiavbere (2013) 7 NWLR (Pt. 1353) 376; PDP v. INEC (2014) 17 NWLR (Pt. 1437) 525; Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56; Oke v.Mimiko (No.2) ?

(2014) 1 NWLR (Pt. 1388) 332; Akeredolu v. Mimiko (2014) 1 NWLR (Pt. 1388) 402; Ngige v. INEC (2015) 1 NWLR (Pt. 1440) 281; Akpamgbo-Okadigbo v. Chidi (No.2) (2015) 10 NWLR (Pt. 1466) 124; Faleke v. INEC (2016) 18 NWLR (Pt. 1543) 61, just to mention but a few. This sacrosanct statutory provision and these authorities will serve as beacons in the settlement of this nagging issue. The two grounds are obedient to clarity.

To start with, compliance has been defined as: ?an act of complying or acting in accordance with wishes, requests, commands, requirements, conditions or orders. It is an act of yielding or conformity with the requirements or order….. Thus, where there is non-compliance, it postulates reversal of all such definitions?, see Ojukwu v. Yar?adua (2009) 12 NWLR (Pt. 1154) 50 at 140, per I. T. Muhammad, JSC (now CJN); Akeredolu v. Mimiko (supra). The law is now firm, beyond any peradventure of doubt, that a party who alleges non-compliance with the provisions of the Electoral Act in conduct of an election possesses the burden to prove it. Indeed, the law ladens him with the burden to establish that the act(s)

of the non-compliance took place and that same substantially affected the result of the election. These the party must actualise with credible, cogent and compelling evidence, see Section 139 (1) of the Electoral Act, 2010, as amended; Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1; Ucha v Elechi (2012) 13 NWLR (Pt. 1317) 330; CPC v. INEC (2011) 18 NWLR (Pt. 1279) 493; Okechukwu v. INEC (2014) 17 NWLR (Pt. 1436) 255; Ngige v. INEC (2015) 1 NWLR (Pt. 1440) 281; PDP v. INEC (2014) 17 NWLR (Pt. 1437) 525; Oke v. Mimiko (No.2) (2014) 1 NWLR (Pt. 1388) 332; Omisore v. Aregbesola (supra); Gundiri v. Nyako (2014) 2 NWLR (Pt. 1391) 211; Yahaya v. Dankwambo (2016) 7 NWLR (Pt. 1511) 284; Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452; Ikpeazu v. Otti (supra); Isiaka v. Amosun (2016) 9 NWLR (Pt. 1518) 417; Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87; Ogboru v. Okowa (2016) 11 NWLR (Pt. 1522) 84; Waziri v. Geidam (2016) 11 NWLR (Pt. 1523) 230; Okereke v. Umahi (2016) 11 NWLR (Pt. 1524) 438; Udom v. Umanah (No.1) (2016) 12 NWLR (Pt. 1526) 179; Doma v. INEC (supra); Andrew v. INEC (2018) 9 NWLR (Pt. 1625) 507.

It is decipherable, from these ex-cathedra authorities,

that the burden to establish the allegation of non-compliance with the provisions of the Electoral Act in the conduct of the said election, weaved by the appellants, resided in them and not on the respondents.

Moreover, the appellants? allegation of corrupt practices in their second ground constitute criminal allegations. Once a party makes any allegation bordering on crimes, he acquires the burden to prove it beyond reasonable doubt. This rule of procedure applies, with equal force, to election proceeding, seeSection 135 (1) of the Evidence Act, 2011; Ucha v. Elechi (supra); ACN v. Lamido (2012) 8 NWLR (Pt. 1303) 650; Ngige v. INEC (supra); Okechukwu v. INEC (supra); Kakih v. PDP (2014) 15 NWLR (Pt. 1430) 374; Nyesom v. Peterside (supra); Ikpeazu v. Otti (supra); Omisore v. Aregbesola (supra); Waziri v. Geidam (supra); Udom v. Umanah (No.1) (supra). It flows, that from all angles, the burden of proof of the entire petition was on the appellants. I endorse, in toto, the Tribunal?s assignment of the burden of proof to the appellants. It will smell of judicial sacrilege to interfere with a finding that is not hostile to the law.

In an avowed bid to castrate the decision, the appellants castigated the Tribunal?s proclamation of the evidence of PW1 as hearsay. PW1 was the first appellant. His windy testimony was a mirror image of the petition. He admirably admitted, in the furnace of cross-examination, that what he testified about the units, which he did not visit, were what agents/informants, who did not give evidence, told him. The Tribunal ostracised his evidence on ground of being hearsay.

In our adjectival law, a witness is expected to testify on oath, or affirmation, on what he knows personally. Where a witness gives evidence on what another person told him about events, then it is not direct evidence which has acquired the nickname: hearsay or second hand evidence. In the eyes of the law, hearsay evidence can only be used to inform a Court about what a witness heard another say and not to establish the truth of an event, see Section 37 and 38 of the Evidence Act, 2011; Doma v. INEC (2012) 13 NWLR (Pt. 1317) 297; Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391; Kakih v. PDP (2014) 15 NWLR (Pt. 1430) 374; Ikpeazu v. Otti (supra); Ladoja v. Ajimobi (supra); Okereke v. Umahi

(supra); Andrew v. INEC (supra).

It cannot be gainsaid that the PW1 proffered evidence not within his knowledge when he conceded, under the crucible of cross-examination, that his evidence was predicated on what his polling agents and informants related to him. Those pieces of evidence, no matter how impregnable, cannot be of any judicial utility to the appellants because they came outside the personal knowledge of the witness maker, PW1 herein. There is no evidence that the PW1 has the rare gift of invisibility, of being at two places (units) at the same time, as claimed by an international magician, late Professor Peller, see Okechukwu v. INEC (supra) at 299. In the result, the Tribunal acted in total fidelity to the law when it declined to ascribe them with any probative value to the advantage of the appellants. I concur with the finding in all ramifications.

The appellants, in their infinite wisdom, failed to call the polling agents, usually appointed based on Section 45(1) of the Electoral Act, 2010, as amended. No doubt, the evidence of polling agents and others, who were/are eye witnesses to the holding election at the polling units, are

relevant and foremost in proving such allegations, see Gundiri v. Nyako (supra); Oke v. Mimiko (No. 2) (2014) 1 NWLR (Pt. 1388) 332; Okechukwu v. INEC (2014) 17 NWLR (Pt. 1436) 255; Ladoja v. Ajimobi (supra); Andrew v. INEC (supra). This is another serious coup de grace in the appellants burden to prove the petition.

The appellants made heavy weather of the Tribunal?s failure to ascribe probative value to the disputed unit results admitted, from the bar, as Exhibits P12, P14 and P15 series. The law has rightly classified polling unit result as the primary evidence of votes cast in any election and placed it at the foundation of the pyramid upon which election process is built, see Nwobodo v. Onoh (1984) 5 WLR 34/(1984) SC 1; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; Agagu v. Mimiko (supra). Curiously, the appellants neglected to field the makers, usually polling units agents. Incontestably, a document must be tendered by its maker or else it will be declared a documentary hearsay that is devoid of any evidential value, see Buhari v. INEC (2008) 18 NWLR (Pt. 1120) 246; Belgore v. Ahmed (2013) 8 NWLR (Pt. 1355) 60; Nyesom v. Peterside (2016) 7

NWLR (Pt. 1512) 452; Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513) 38; Okereke v. Umahi (2016) 11 NWLR (Pt. 1524) 438; Andrew v. INEC (supra). Those exhibits were tendered by the learned counsel for the appellants who, in the spirit and tenet of the law, was not their maker. The Tribunal would have fractured the law to crown the unit results with any toga of probative value. It paid due loyalty to the law when it declared them as ?indeed fictitious? and ?such manipulated results cannot be relied upon for any crucible electoral process?. In all, the appellants starved the Tribunal of the required cogent evidence in proof of the petition.

In the light of this juridical survey done in due consultation with the law, the Tribunal?s evaluation of the evidence and findings thereon, are immaculate and unassailable. They do not insult the law. The appellants woefully failed to prove their petition. Proof, in law, is a process by which the existence of facts is established to the satisfaction of the Court, see Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416. When an asserted fact is drained of

proof, then its existence is not established and liable to be denied without proof, see Maihaja v. Gaidam (2018) 4 NWLR (Pt. 1610) 454. On this score, I dishonour the appellants? counsel?s enticing invitation to sacrifice the judgment of the Tribunal on the undeserved altar of perfunctory/lopsided evaluation of evidence for want of legal justification. In the end, I resolve the fused issues three and four against the appellants and in favour of the respondents.

On the whole, having resolved the four issues against the appellants, the destiny of the appeal is obvious. It is bereft of any morsel of merit and deserves the penalty of dismissal. Consequently, I dismiss the appeal. I affirm the decision of the Tribunal delivered on 4th September, 2019. The parties shall bear the respective costs they incurred in the prosecution and defence of the ill-fated appeal.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was given the privilege of reading in draft the judgment just delivered by my learned brother, O. F. OGBUINYA, JCA and am in complete agreement with the manner he

resolved the issues settled for determination. I have nothing more to add. I also abide by the orders made in the lead judgment.

Appearances:

E.E. Osim, Esq. with him, J.S. Urom, Esq.For Appellant(s)

Mba E. Ukweni, SAN with him, U. F. Inah, Esq., E. J. Amatey, Esq., Eno Edet, Esq., A. J. Akobi, Esq., U. O. Igwenyi, Esq., R.S. Ubana, Esq. and G. F. Udofia, Esq. for the 1st Respondent.

Zakawanu I. Garuba, Esq. with him, E. E. E. Ekere, Esq. for the 2nd and 4th Respondents.

M. N. Afu, Esq. for the 3rd Respondent

For Respondent(s)

Appearances

E.E. Osim, Esq. with him, J.S. Urom, Esq.For Appellant

AND

Mba E. Ukweni, SAN with him, U. F. Inah, Esq., E. J. Amatey, Esq., Eno Edet, Esq., A. J. Akobi, Esq., U. O. Igwenyi, Esq., R.S. Ubana, Esq. and G. F. Udofia, Esq. for the 1st Respondent.

Zakawanu I. Garuba, Esq. with him, E. E. E. Ekere, Esq. for the 2nd and 4th Respondents.

M. N. Afu, Esq. for the 3rd RespondentFor Respondent