INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS v. OKWESA O. ANTHONY & ORS (2010)

INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS v. OKWESA O. ANTHONY & ORS

(2010)LCN/3586(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 24th day of February, 2010

CA/E/EPT/47/2008 (CONSOLIDATED

RATIO

COURT: DUTY OF TRIBUNAL OR COURT TO GIVE REASONS FOR ITS BELIEFS

The tribunal ought to have indicate the basis for its believe. In Sunday Onuoha & Ors. v. The State (1989) 2 NWLR pt, 101 page 23 at 40, the Supreme Court per Nnamani said:-

“It has been said so often that it is indeed now trite that there is no magic in the words “I believe” ‘I believe’ There has to be basis for that belief which an appeal court can really see and respect, where there is no such basis for belief, or where the surrounding circumstances are such as clearly negative the truth, the finding of the learned trial judge would not be accepted the truth, the finding of the learned trial judge would not be accepted merely because he used the words “I believe”. (Emphasis mine)

So also Abeke Onafowakan v. State (1987) SCNJN 233, Oputa JSC at 245 stated:

“With proper findings on all the issues of fact “belief’ or disbelief may be natural and logical conclusion but stating that conclusion without also stating how it was arrived at will detract substantially from that conclusion.

This is another way of saying that there is no magic in the expression “I believe” or “I do not believe”. PER ABDU ABOKI, J.C.A.

ELECTION MATTERS: WHT IS THE TEST OF PROOF OR OTHERWISE OF THE PROPER CONDUCT OF AN ELECTION

In Buhari v. Obasanjo (supra) the Supreme Court said of the type of evidence required to support the case of an election Petitioner, at page 315 per Akintan JSC, “The position of the law regarding the type of evidence which must be led in support of the allegations in which figures and scores of candidates at an election being challenged should come direct from officers who were in the field where the votes were counted and or collated. The party state agents such as Bisi Lawal (PW1) received the figures he gave in his evidence in Court in the case from his party agents who were not called as witness. Such evidence is therefore inadmissible as it is here said”.

See also Hashidu v. Goje (2003) 15 NWLR (pt 843) 352 @ 592 where the Court of Appeal held thus per Akintan JCA (as he then was)

“The main contention in this appeal is whether the appellants led sufficient credible evidence at the trial to warrant turning around the result of the election declared in favour of the1st respondent.

But in their efforts to prove this they relied principally on the evidence led by the PW1 and PW2 these two principal witnesses. They overlooked the point that these two witnesses were not on the field where the result is being challenged were counted and entered in the forms brought to the PW1 and later passed on to PW2. The evidence relied on by PW1 and PW2 were what they told by the witness (their agents) who where not called to give evidence. The correct evidence in this regard ought to come from polling agents who received the forms from INEC polling officials and in whose presence the INEC officials prepared and signed the forms on which the disputed figures were written”. PER ABDU ABOKI, J.C.A.

ELECTION MATTERS: PERSONS ENTITLED BY LAW TO TESTIFY WHETHER OR NOT RESULT SHEETS WERE DISTRIBUTED AND THE TIME OF ARRIVAL OF THE MATERIALS AT THE POLLING UNITS

The only persons entitled by law to testify as to whether or not result sheets were distributed and the time of the arrival of the materials at the polling units are the polling units agents. PER ABDU ABOKI, J.C.A.

APPEAL: ATTITUDE OF THE APPELLATE COURT TOWARDS INTERFERENCE WITH THE FINDINGS OF FACTS OF THE TRIAL COURT

Fashani v. Citicon Nig. Ltd. (supra).

In Ebba v. Ogodo (supra) at page 381. The Supreme Court said:

‘Credibility of witness based on the factors other than demeanor. The Court of Appeal should examine those factors which the trial court examined as a result of which it made the inference which led to its findings and determine whether the trial court has made use of its singular advantage of seeing and having the witnesses before making its finding especially having regard to the inferences that could reasonably be made by a just and reasonable tribunal from the same factors’. It is very clear to me from all the evidence contained on the printed Record of Appeal that the trial tribunal was wrong in holding that the election was wrongly conducted and that the allegations of late arrival of materials, polls opening late, result sheets not included among the materials supplied and no result recorded on the statutory forms have not been satisfactorily proved. PER ABDU ABOKI, J.C.A.

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

ABUDU ABOKI Justice of The Court of Appeal of Nigeria

SAMUEL C. OSEJI Justice of The Court of Appeal of Nigeria

Between

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. RESIDENT ELECTORAL COMMISSIONER ANAMBRA STATE
3. ELECTORAL OFFICER, OGBARU LOCAL GOVERNMENT AREA –

CA/E/EPT/47/2008
4. OGBARU CONSTITUENCY RETURNING OFFICER.

AND

CHINWE C. NWABILE
–
CA/E/EPT/54/2008

(CONSOLIDATED) Appellant(s)

AND

1. OKWESA O. ANTHONY
2. NWAEBILE CHINWE -CA/E/EPT/47/2008

AND

1. OKWESA O. ANTHONY

2. INDEPENDENT NATIONAL ELECTORAL COMMISSION.
3. THE RESIDENT ELECTORAL COMMISSIONER –
CA/E/EPT/54/2008
4. ELECTORAL OFFICER (INEC) OGBARU L.G.A.
5. OGBARU CONSTITUENCY II RETURNING OFFICER.
(CONSOLIDATED) Respondent(s)

ABDU ABOKI, J.C.A.(Delivering the Leading Judgment):This is a consolidated appeal in respect of Appeals No. CA/E/EPT/47/08 and CA/E/EPT/54/08. Both appeals were consolidated by the order of the court granted on 24/4/2010.
In Appeal No. CA/E/EPT/47/08, the Appellants who were the 2nd – 5th Respondent at the tribunal are appealing against the decision of the Anambra State Governorship/Legislative Houses Election Petition Tribunal, as contained in the judgment of I.M. Bako (Chairman) Bolaji – Yesuf M. H.A. Balogun, S.A. Bola and B.T. Ebuta JJJ delivered on Friday, the 22nd day of February, 2008 nullifying the election of the 1st Respondent to the petition.
The fact of this appeal is briefly stated as follows.
The petitioner was a candidate of All Progressive Grand Alliance (APGA) at the election held on 14/4/2007 for the Ogbaru II State House of Assembly Constituency. The 1st Respondent also contested the election at the end of which, she was returned as the winner of the election.
Aggrieved by the return of the 1st Respondent, the petitioner filed a petition at the Election Petition Tribunal sitting at Awka Anambra state praying for the following declarations:-
(1) That no election was conducted at all in the constituency on 14/4/2007.
(2) That the return of 1st Respondent was invalid, null and void,
(3) Nullification of the Election’
The trial tribunal relying on the evidence of the petitioner’s witnesses nullified the Election. Dissatisfied with the decision of the tribunal the Appellants filed a Notice and Ground of Appeal dated the 12th day of March, 2008.
Before hearing commenced in this appeal, the 1st Respondent Okwesa O. Anthony applied to withdraw his brief in this Appeal. The brief of the 1st Respondent withdrawn was accordingly struck out.
By withdrawing its brief, the 1st Respondent had technically withdrawn his participation in the Appeal.
In other words, he was no longer going to defend the appeal filed against him. In fact, learned counsel for 1st Respondent told the court that he had the instruction of his client to concede to this Appeal. The 2nd
Respondent on his part did not file any brief of argument. But urged the court to allow the Appeal.
It follows therefore that this Appeal which is not being contested, is being heard on the Appellants brief alone.
The Appellants brief of argument dated 19/6/08 was filed on 20/6/08.
Learned counsel for the Appellants said they adopted the said brief and were relying on same as the Appellants’ argument in the Appeal. The appellants formulated four issues for determination from their grounds of Appeal.
The issue for determination reads as follows:-
1. Whether the Honourable tribunal was right to hold that no valid election was conducted in the entire Ogbaru II
Constituency.
2. Whether the Honourable Tribunal was right to hold that the petitioner had established his case by preponderance of the evidence adduced by PW1 to PW3.
3. Did the petitioner rebut the presumption of correctness and authenticity of the result, if he did not, was the tribunal right to have relied on the evidence that were neither pleaded nor proved to rebut the presumption on regularity of the results.
3. Whether there was any controversy as to who was the constituency Returning Officer and was the Tribunal right in relying on exhibits R and R1 to nullify the Election.
After a careful reading of issues 1 and 2 they seem to me to raise the same question, the argument canvassed in issue 2 seemed to be a repetition of that in issues 1, Also Issues 3 and 4 can be subsumed into issue 1 conveniently.
I have earlier said in this judgment that this appeal is being determined on the Appellants’ brief alone. I consider issue 1 as the only relevant issue worthy of consideration.

ISSUE 1.
Whether the Honourable Tribunal was right to hold that no valid election was conducted in the entire Ogbaru II
Constituency.
It has been submitted that the grouse of the petitioner rests on the event at the various polling units in the constituency where the petitioner alleged that election did not take place or that it took place barely for an hour yet results were returned.
Learned counsel for the Appellant argued that with respect to the averments that election did not take place in all the polling units in the constituency or that it took place barely an hour the law is trite that averments contained in a party’s pleadings are not evidence. He described such averments to be like a skeleton and the evidence is the flesh which ought to breath life into the skeleton, thus if no evidence is led on them, they remain skeleton and are not alive for the purpose of the contest between the parties. He referred that court of the case of Akanmu v. Adigun (1993) 7 NWLR pt. 304 page 212. Learned counsel submitted that the corollary is where evidence is not led in support of any averment in a pleading; the averment is taken or deemed to have been abandoned. He cited in support of his submission the cases of FCDA v. Naibi (1990) 3 NWLR pt. 138 page 281.
NAS Ltd. v. UBA Plc. (2005) 1 NWLR pt. 945 page 421 at 435 – 436.
Learned counsel for the Appellants argued that in the present case, the petitioner failed to lead evidence to support his averments in respect of the polling units and that where he alleged elections did not take place the trial tribunal was clearly wrong to have held in support of the claim.
Learned counsel contended that the trial tribunal relied on the evidence of PW1, PW2 and PW3 to hold that no election was held in the 86 polling units in Ogbaru Constituency. He referred the court to the evidence of the witnesses as contained on the printed record. PW1 deposed in an affidavit that he was the agent of APGA in his ward collation centre Ogwu Aniocha ward and that he is a registered voter. The witness said that the supervisor could not account for the result sheets, and that he did not cast his vote. He also alleged that there was no returning officer seen at the collation centers. He said that materials were turned back to the Local Government Headquarters because of non availability of result sheets. The witness said that materials were not allocated to the presiding officer.
Learned counsel for the Appellant contended that PW1 did not tender his voters card. He did not also state the time of arrival of the materials at the collection centre. PW1 was not a polling agent and did not work at any of the polling units.
Learned counsel said PW2 deposed to an affidavit that he worked as the ward collation Agent for his party at Atani Ward I. He stated that no results sheets for the election were made available, that he did not cast his vote, hence no elections were held in his ward. He said that the returning officer did not show up, and that the people refused to cast their votes, since no result sheets were provided or made available.
Learned counsel argued that PW2 did not tender his voter card, and that he never mentioned that materials arrived late at the collation centre.
He said that PW2 never worked as a polling agent at any of the polling units.
With regards to the evidence of the PW3, learned counsel also said the witness swore to an affidavit. Learned counsel referred the court to paragraphs 7, 8, 9 and 10 of the said affidavit which reads thus:-
7. That the Election materials arrived INEC Headquarters Ogbaru Local Government Area at 12 noon and thus 5 hours behind schedule with those vital electoral materials missing.
8. That between 12 noon and 2 pm there was distribution of materials to unidentifiable INEC staff
9. That between 2 pm and 3pm materials arrived at the various polling units after which election was barely for an hour as voting ends by 4 pm.
10. That as the time was supposedly ending at 4pm at the order of the Nigeria Police, there was neither counting of votes at the polling booths nor collation of results at the various wards collation centers let alone any collation of wards result at the constituency centre which was Atani Local Government Area Headquarters’.
Learned counsel submitted that it is trite that by virtue of section 135, 136, 137 and 139 of the Evidence Act, the party in a civil case who asserts in his pleadings the existence of a particular fact is required to prove such facts by adducing credible evidence; if he fails his case fails. The court was referred to the cases of Adegoke v, Adibi (1992) 5 NWLR pt. 242 page 410.
Buhari v. Obasanjo (2005) 13 NWLR pt. 941 page 1 at 122.
Learned counsel argued that the proof is by preponderance of evidence where the allegations in support of the plaintiff/petitioner’s case is based on purely civil matter and proof beyond reasonable doubt where the allegations are criminal in nature. He referred the court to the case of Nwobodo v. Owoh (1984) 1 SCNLR 1.
Learned counsel maintained that there are certain basic rules proof or otherwise of regularity in electoral process. He submitted that the petitioner did not satisfy any, thus resulting in his failure to discharge the burden of proof. He referred the court to the case of Nnaji v. Agbo 2 E.P.R. 546.
Learned counsel insisted that the burden was on the petitioner who had complained that no election took place or that it lasted barely an hour, to call witness who were registered voters to tender both their voters cards and the voters register, so as to discover, those that were not accredited on the voters register. Learned counsel maintained that PW1, PW2 and Pw3 did not tender any unmarked voters card in proof of their claim that voting did not take place, and that the petitioner did not also produce or tender the voters register which would have enabled the tribunal to ascertain whether or not election took place or whether it was held for more than an hour.
He contended that in the instant petition, it is categorically clear that the petitioner did not call any credible witnesses who tendered their voters card and did not tender the voters register. He did not equally call any witness who was an agent at the booths where votes were counted and entered into the result form.
Learned counsel insisted that votes are not cast and recorded at the collation centers but at the polling booths where the votes are entered in the Forms EC8A 91 and not at the collation centers. He maintained that PW1 and PW2 in their affidavit evidence never disposed that they were in INEC office when the materials arrived or at the polling centers. They did not state when the material arrived at the ward collation centers. The polling agents of the party who by virtue of section 44 (3) of the Electoral Act 2006 were to observe the distribution of electoral materials from the INEC office to the polling booths were not called, in evidence.
Learned counsel argued that although the trial tribunal believed their evidence that material got to the polling booth very late in the afternoon.

The tribunal also believed the petitioner witness that where polls were open, they were opened late. The trial tribunal also accepted the evidence of PW1 and PW2 that no result sheet was included among the materials supplied and by the extension, no results were rendered on the statutory forms. He argued that the tribunal did not state the basis of its decision or what under pin its belief. Learned counsel referred the court to the cases of Sunday Onoha and ors v. The State (1989) 2 NWLR pt. 101 page 23 at 40. Abeke Onagowakan v. State (1987) SCNJ 233 at 245.
Learned counsel argued that PW1 and PW2 who claimed to be ward collation agents did not say they visited any polling units in the ward nor did PW3 the petitioner, did not also state that he visited any polling unit during the election.
He submitted that the finding of the trial tribunal did not derive or flow from the accepted evidence in proof of the regularity or otherwise of an electoral process.
The demeanor of witnesses of the petitioner he argued is not a true test of the testimony on the proof or otherwise of an election process and that it is just a little guide to the truth.
Learned counsel submitted that the true test of proof or otherwise of the regularity in the conduct of an election are the voters cards of those who could not vote because the materials arrived late or that result sheets were not distributed, the production or tendering of the voters register to compare same so as to show whether they were not accredited to vote, can be shown by the absence of any marks in their voters card.
He maintained that this is the clear position of the law as borne out by the decision of the Supreme Court in Buhari v. Obasanjo supra) at page 315 and also by the decision of the Court of Appeal in the case of Hashidu v. Goje(2003) 15 NWLR pt. 843 page 352.

Learned counsel maintained that the burden of proof is not just discharged by saying that materials arrived late and voting took place barely an hour or that result sheets were not distributed along with other electoral materials. He argued that the time of arrivals of electoral materials and the materials brought must be certified by designated officers in the presence of polling agents.
Learned counsel argued that the Electoral Act 2006 made provisions as to who are entitled to observe the distribution of the materials and at where. He cited section 46(1) of the Electoral Act.
He said that section 44(3) of the Act provides for polling Agents. On the definition of a polling Agent he referred the court to the case of Buhari v. Obasanjo (supra).
Learned counsel submitted that PW1 and PW2 to whom the trial tribunal ascribed probative weight to their evidence are not polling agents having claimed to be a party agent. He maintained that they are therefore not entitled to give evidence of what happened at the polling units, and any such evidence given by them is inadmissible. He argued that the only person/persons entitled by law to testify as to whether or not result sheets were distributed or the time of their arrival at the polling units, should be the polling agents. He referred the court to the case of Buhari v. Obasanjo (supra) at pages 257 – 258.
Learned counsel for the Appellant maintained that no polling agent was called to say that result sheet were not among the materials distributed or the time they arrived or that the scores of candidates were not recorded in the result sheets or were not taken to the collation centers. He contended that none of the witnesses called by the Petitioner was a polling Agent.
Learned counsel conceded that it is a general rule that the Court of Appeal does not normally disturb the finding of fact of court below most especially where such finding is based on demeanor of a witness. He submitted that an Appellate court would however interfere with the finding of the facts of a trial court where its findings cannot be supported or are not proper conclusions or inferences drawn from the evidence. He referred the court to the cases of Ajuwon v. Akanni (1993) 3 NWLR pt. 316 page 382 at 220 – 221. Fashanu v. Adekoya (1934) 1 ALL NLR 35 at 41.
Jegede v. citicon Nig. Ltd. (2001) 3 WRN 1 at 21 – 22. Ebba v. Ogodo (1984) 1 SCNJR 372 AT 381.
Learned counsel for the Appellants submitted that the trial tribunal was wrong in holding that the election was not conducted based on the allegations of late arrival of materials, polls opening late, result sheets not included among the materials supplied and no result recorded on the statutory forms. He urged the court to resolve issue 1 in favour of the Appellant. On the first issue which is presented for determination, the trial tribunal said:-
“By reason of the above, the Tribunal is inclined to believe the evidence of the petitioner and his witnesses as regards irregular conduct of the election on 14-4-2007. We believe their evidence that materials got to the polling booth very late in the afternoon. We also believe the petitioners witnesses that where polls were open, they were opened very late. We also believe their evidence that no result sheets was included among the materials supplied and by extension, no result was recorded on the statutory forms.

It is trite that the party, who asserts the existence of a particular fact, must prove such fact by adducing credible evidence to succeed in his case.
In the instant case, the trial tribunal based its decision on the evidence of PW1, PW2 and PW3. PW1 who said in his affidavit evidence that he was the agent of APGA in his ward collation centre at Ogwu Anaocha and that he was a registered voter, did not tender his voters card. He was not a polling agent and did not work at any polling units. PW2 claimed in his evidence that he was the ward collation Agent for his party at Atani Ward. He maintained that materials arrived late at the collation centre and that result sheets for the election were not included.
PW3 deposed in his affidavit that the electoral materials arrived INEC headquarters Ogbaru Local Govemment Area at 12 noon and thus 5 hours behind schedule and those vital electoral materials were missing.
He also said that between 12 noon and 2pm there was distribution of materials to unidentified INEC staff and that between 2 pm and 3pm, material arrived at the various polling units after which election was barely for an hour as voting ended at 4pm.
He said that there was neither counting of votes at the polling booths nor collation of results at the various ward collation centers or at the constituency collation centre at Atani Local Government Area Headquarters.
The burden was on the petitioner who had complained that no election took place or that it lasted barely an hour to call witnesses who could not vote to tender both their voter’s cards and voters register so that they can be compared to show whether they were accredited or not on the voter’s register.
PW1 and PW2 did not tender any unmarked voter’s card in proof of their claim that voting did not take place. The petitioner did not produce or tender the voters register which would have enabled the tribunal to ascertain whether or not election took place or whether if it did, it was held for about an hour.
By virtue of the provisions of section 150 of the evidence Act, there is a presumption of regularity that elections were duly conducted in all of the 86 polling units in Ogbaru Local Government Constituency which included the Ogwu Aniocha Ward and Atani Ward 1.
The petitioner has not discharged the burden placed on him to rebut the presumption. He has also failed to discharge the burden of proof on him to show the irregularities he alleged in the conduct of the election.
In Nnaji v. Agbo 2 EPR 846′ The Court of Appeal said at page 880 thus:-
“In the instant case, by virtue of section 150 of the Evidence Act is a presumption that elections were duly conducted in all the wards including the disputed areas and that all the conditions for valid elections were duly met, it is therefore incumbent on the petitioner to call voters to show that they did not vote in the disputed wards on the said date because there were no voting, counting of votes. Or announcements of results look place in the disputed wards on that day.

No doubt the allegations of the petitioner that elections did not hold in 17 wards out of the 26 wards in the Constituency is a very serious one and the burden of proof on the petitioner is s very weighty one and it is not what he can easily discharge by only bringing people to say that they spent the whole day in those wards that there was no voting and the burden of proof will then shift to the Respondent to show that there was voting, accreditation, counting of votes and the announcement and also tendering the voters register which is a public document which the petitioner is expected to subpoena the Electoral Commission to produce, so that he could prove his case. If this is the case, anyone can easily raise such a ground in his petition and then sit back and leave the Respondent to struggle it out and show that there was an election”.
(Emphasis mine).
See also ONOYOM VS EGARI (1999)5 NWLR (PT603) 416 @ PAGE 425 where the Court of Appeal stated thus:-
“The appellant asserted thaw there was no election in some areas wards and there were election malpractices, it was for the appellant to lead all available evidence to establish those allegations. The argument that the appellant having led evidence to show that PW4, PW5 did not vote and that some votes cards were not accredited, that the onus of proof has shifted on the respondents to satisfy the Tribunal by producing the voters register to show that the voters were accredited has no basis in law”.
In the instant case, the petitioner who had complained at the Election Tribunal that no election took place or that it lasted barely an hour, has obligation to call witnesses who were registered to vote to tender both their voters cards and voters register so that a comparison can be done to show that they were not accredited on the registers. This the petitioner did not do. He did not call any witness who was an agent at the booth where votes were counted and recorded in the result forms.

I am in agreement with the submission of the learned counsel for the Appellants that votes are not cast and countered at the collation centers but at the polling booths where the votes are entered in Form ECSA 91 and any of such statutory forms.
PWI and PW2 in their affidavit evidence never stated that they were at the INEC office when the materials arrived or at the polling centers. The witnesses did not state the time the materials arrived at the Ward collation centre. The polling agents of the party who by virtue of section 44(3) of the Electoral Act 2006 were to observe the distribution of electoral materials from the INEC office to the polling booths were not called to testify.
The tribunal said of the evidence of PW1, PW2 and PW3 in its judgment at page 678 thus.
‘We believe their evidence that materials got to the polling booth very late in the afternoon. We also believe the petitioner’s witnesses that where polls were open, they were opened late. We also believe their evidence that no result sheet was included among the materials supplied and by the extension, no result was recorded on the statutory Form’.
The tribunal ought to have indicate the basis for its believe. In Sunday Onuoha & Ors. v. The State (1989) 2 NWLR pt, 101 page 23 at 40, the Supreme Court per Nnamani said:-
“It has been said so often that it is indeed now trite that there is no magic in the words “I believe” ‘I believe’ There has to be basis for that belief which an appeal court can really see and respect, where there is no such basis for belief, or where the surrounding circumstances are such as clearly negative the truth, the finding of the learned trial judge would not be accepted the truth, the finding of the learned trial judge would not be accepted merely because he used the words “I believe”. (Emphasis mine)
So also Abeke Onafowakan v. State (1987) SCNJN 233, Oputa JSC at 245 stated:
“With proper findings on all the issues of fact “belief’ or disbelief may be natural and logical conclusion but stating that conclusion without also stating how it was arrived at will detract substantially from that conclusion.
This is another way of saying that there is no magic in the expression “I believe” or “I do not believe”.
I have earlier stated in this judgment that PW1, PW2 and PW3 did not tender their voter’s card or the voters Register to ascertain if they actually voted. The petitioner did not also call in evidence voters who could not vote because the election materials arrived late at their polling centre.
The trial tribunal gave its reason for believing the testimonies of the petitioner and his witnesses at page 672 of the Record of appeal thus:-
“We are struck with certain impressions and observations of the witness and their testimonies.
Observing their demeanor, they appeared to us as witnesses of truth who have first head knowledge of the facts in which they testified. Also their evidence was consistent and uncontradicted particularly under cross-examination’. It seems to me from the evidence contained on the face of the printed record that the finding of the trial tribunal did not flow from the accepted evidence in proof of the regularity or otherwise of an election process.
I am in agreement with the submissions of the learned counsel for the appellants that the demeanor of the witness of the petitioner is not a true test of the testimony in the proof of allegation of improper conduct of an election.

The test of proof or otherwise of the proper conduct of an election are the voters card of those who could not vote because the materials arrived late or that result sheets were not among the materials distributed, the production and tendering of the voters register for comparison to show that they were not accredited to vote are the essential evidence required to establish that there was no election and not the demeanor of the witnesses.
In Buhari v. Obasanjo (supra) the Supreme Court said of the type of evidence required to support the case of an election Petitioner, at page 315 per Akintan JSC, “The position of the law regarding the type of evidence which must be led in support of the allegations in which figures and scores of candidates at an election being challenged should come direct from officers who were in the field where the votes were counted and or collated. The party state agents such as Bisi Lawal (PW1) received the figures he gave in his evidence in Court in the case from his party agents who were not called as witness. Such evidence is therefore inadmissible as it is here said”.
See also Hashidu v. Goje (2003) 15 NWLR (pt 843) 352 @ 592 where the Court of Appeal held thus per Akintan JCA (as he then was)
“The main contention in this appeal is whether the appellants led sufficient credible evidence at the trial to warrant turning around the result of the election declared in favour of the1st respondent.
But in their efforts to prove this they relied principally on the evidence led by the PW1 and PW2 these two principal witnesses. They overlooked the point that these two witnesses were not on the field where the result is being challenged were counted and entered in the forms brought to the PW1 and later passed on to PW2. The evidence relied on by PW1 and PW2 were what they told by the witness (their agents) who where not called to give evidence. The correct evidence in this regard ought to come from polling agents who received the forms from INEC polling officials and in whose presence the INEC officials prepared and signed the forms on which the disputed figures were written”.
(Emphasis mine).
The burden of proof is not discharged by a petitioner by simply telling the court that materials arrived late and voting took place barely an hour or that result sheets were not distributed along with other essential electoral materials, the petitioner has to go further to prove the time of the arrival of the electoral materials and the materials that arrived and such evidence must come from person/ persons who are designated officers or by polling agents present. In the present case none of such designated officers or polling agents who were present when the materials arrived at the polling stations gave evidence.
“The electoral Act, 2006 made provisions as to who are entitled to observe the distribution of the materials and at where. Section 46(1) of the electoral Act provides;
“Each political party may by notice in writing ad dressed to the Electoral Officer of the Local Government or Area Council appoint a person (in this Act referred to as a “polling Agent”) to attend at each polling unit in the Local Government Area council for which it has candidate….”
Section 44(3) of the same Act provides:
(3) “The polling Agents shall be present at the distribution of electoral materials from the office to the polling booth”
The words “polling agents” and from “Office” to the polling booth has received judicial pronouncement. In Buhari v. Obasanjo (supra) Uwais CJN at page 117 stated at paragraph C-D.
“According to Section 36 (1) of the Electoral Act, 2002, the polling agents are to carry out their function at a polling booth. In my view, the Act simply mentions “Office” and “polling booth”. It certainly does not mention “Ward collation centre” or “ward distribution centre” as surmised by Tabai JCA”.
And at paragraph F-G:-
“In the tight of the provisions of section 36(1)’ I do not think that a “polling agent” even if appointed by a political party should be interpreted to mean a “party agent” as submitted by Chief Anambra”.
In the instant appeal, the trial tribunal ascribes probative value to the evidence of PW1 and PW2 who were not polling agents having claimed to be party agents. I am in agreement with the submission of the learned counsel for the Appellant that they are not entitled to give evidence of what happened at the polling units and any such evidence given by them is inadmissible because it is hearsay evidence.
The only persons entitled by law to testify as to whether or not result sheets were distributed and the time of the arrival of the materials at the polling units are the polling units agents.
In Buhari v. Obasanjo (supra) the Supreme court while interpreting the provisions of section 67 (3) of the Electoral Act said at page 257-258 per Edozie JSC thus:-
“In my view, what is crucial in the proper interpretation of section 67(3) of the Electoral Act, 2002, that has been dealt with under the first issue for determination in which I endorse the interpretation of the ward collation/distribution centre where election materials were supposed to be handed over to the Presiding officers”

Although, as a general rule, Appellate Court seldom disturb the finding of facts of a trial court, there are however circumstances when the court can disturb a finding of fact’ An Appellate Courts would interfere with the findings of facts of a trial court where from the printed record such findings cannot be supported or where no proper conclusions and inferences are be drawn from the evidence before the trial court. See Ajuwum v. Akanni (supra),
Fashani v. Citicon Nig. Ltd. (supra).
In Ebba v. Ogodo (supra) at page 381. The Supreme Court said:
‘Credibility of witness based on the factors other than demeanor. The Court of Appeal should examine those factors which the trial court examined as a result of which it made the inference which led to its findings and determine whether the trial court has made use of its singular advantage of seeing and having the witnesses before making its finding especially having regard to the inferences that could reasonably be made by a just and reasonable tribunal from the same factors’. It is very clear to me from all the evidence contained on the printed Record of Appeal that the trial tribunal was wrong in holding that the election was wrongly conducted and that the allegations of late arrival of materials, polls opening late, result sheets not included among the materials supplied and no result recorded on the statutory forms have not been satisfactorily proved.
This issue is resolved in favour of the Appellants. Having resolved issue I in favour of the Appellants any further discussion on issues 3 and 4 will be an academic exercise.
There is merit in this appeal and it is hereby allowed.
The decision of the trial tribunal delivered on 22nd February, 2008 is hereby set aside. The petition ought to have been dismissed and it is hereby dismissed accordingly.
The election and return of Chinwe Nwaebile as the winner of the election conducted in Ogbaru II Constituency on 14/4/07 is hereby upheld and confirmed.
There shall be no order as to costs. Each party to bear its cost of prosecution in this appeal.

CA/E/EPT/54/2008
ABDU ABOKI, J.C.A (Delivering the Leading Judgment): This is a consolidated appeal. The appeal emanated from the decision of the Anambra state Governorship and Legislative Houses Election Petition Tribunal delivered on 22nd January, 2008.
The fact of the appeal is as follows: – ‘The 1st Respondent as Petitioner on the 14th day of May, 2007 filed a Petition at the Election Petition Tribunal, Awka claiming the following Reliefs:-
“WHEREFORE YOUR PETITIONER HUMBLY PRAYS FOR THE FOLLOWING RELIEFS:
1. DECLARATON that no election was conducted in the entire Ogbaru II Constituency in which your Petitioner was a candidate for the Anambra State House of Assembly under APGA on 14th April, 2007 or at any date at all
ii. DECLARATION that the return of the 1st Respondent as the winner of the 14th April House of Assembly election for Ogbaru II is invalid, null and void and of no effect’ And that no election in fact took place on that date
iii An ORDER nullifying the result of the said election and directing the 2nd Respondent to conduct election for the House of Assembly seal in Ogbara II Constituency. After the Petition and reply were exchanged and evidence in support presentedbeforethetrialtribunal’thetrialtribunalinaconsideredjudgment delivered on 22/1/2008 nullified the election/return of the 1st Respondent/Appellant by the 2nd – 5th Respondent Dissatisfied with the said decision, the 1st Respondent/Appellant on 13/3/08 filed an Amended Notice of Appeal dated 18/3/08, containing eleven Grounds of Appeal. The Appellant from the eleven grounds of appeal distilled three issues for determination and they are adumbrated as follows:-
Whether the Court below was right when it believed the evidence of the Petitioner/Respondent and his witnesses and relied on same to hold that the Anambra State House of Assembly Ogbaru Constituency II was irregularly conducted (Grounds 1, 2, 3, 4, 5, 6, 9, 10 and 11).
2. Whether the court below was right to have held that there were patent irregularities in the result forms and that there was contradictions as to which forms were used in the final collation and relying on same in the nullification of the election of the Appellant’ (Grounds 1(A), 5,6 and 8).
3, Was the trial tribunal right in holding that there was controversy as to who was the authentic Constituency Returning Officer and that there was want of competence on the part of the makers of the result forms (Ground 7 and 8).
When this appeal came up for hearing on 20/10/10, learned counsel for the 1st Respondent A. I. Ifeanya Esq. informed the court that he had received instruction from his client to withdraw the brief of argument filed on behalf of the 1st Respondent and that they concede to the appeal.
Counsel for the 2nd – 5th Respondent and that of the Appellant said they had not objected to the application.
The 1st Respondent’s brief withdrawn was struck out.
Learned counsel for the Appellant A.L Aniukwu Esq told the court that the Appellants brief was filed on 23/3/10 by order of the court. He said they were adopting and relying on the amended Appellant’s brief as the Appellant’s argument in this Appeal.
He urged the court to allow the appeal. G.O. Ogugua Esq , counsel for the 2nd – 5th Respondents told the court that they did not file any brief of argument on behalf of the 2nd – 5th Respondents.
The appeal was therefore argued on the Appellant’s brief alone.
I have carefully considered all the submissions made on behalf of the Appellant in his amended brief of argument on the three issues presented for determination.
I have earlier said in this judgment that this is a consolidated Appeal consolidated with Appeal CA/EPT/47/08.
Since parties have agreed that the outcome of any of the Appeals would bind the parties to the other appeal. This court having decided in Appeal CA/EPT/47/08 to uphold and conform the election and return of the Appellant in this Appeal Chinwe Nwaebile as the winner of the election conducted in Ogbaru II Constituency in the 14/4/07. The decision in Appeal CA/E/EPT/47/08 shall be applicable to this Appeal CA/E/EPT/47/08 and shall be deemed as the decision of this court in this Appeal. By virtue of the decision in Appeal CA/E/EPT/47/08 this appeal CA/E/EPT/54/08 is also allowed.
The judgment of the trial tribunal is hereby set aside. The petition ought to have been dismissed and it is hereby dismissed accordingly.
The election and return of the Appellant Nwaebile C. Chinwe as the winner of the election conducted in Ogbaru II Constituency into the Anambra State House of Assembly on 14th April, 2007 is hereby upheld and confirmed.
There shall be no order as to costs each party to bear his costs of prosecuting this Appeal.

AMINA A. AUGIE, J.C.A.: I have read the lead judgment just delivered by my learned brother, Aboki, JCA, and I agree with him that the appeal should be allowed.
The petitioner’s ground for challenging the election at the Tribunal is that no election was conducted at all in the constituency, and he is expected to produce evidence to that effect. The Tribunal definitely went off far away fro the mark, when it relied on its mere perception that his witnesses appeared to be “witnesses of truth”. What part did so called “witnesses of truth” play in the election? Where is the evidence that no election took place as alleged? It is settled that a Petitioner relying on this Ground must prove so by calling at least a registered voter from each of the polling boots in each of the Wards in the Constituency – see Chime v. Onyia (20090 2 NWLR (Pt. 1124) 1. in the absence of any such evidence, the impression made on the Tribunal by the witnesses, must remain in the mind of the Tribunal; it is irrelevant, and cannot be used to fill up the blank spaces or empty holes in the Petitioner’s case.
In the circumstances, I also allow the appeal. I abide by the consequential orders in the lead judgment, including that as to no costs.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read the judgment just by my learned brother ABDU ABOKI, JCA. I agree with the reasoning and conclusion reached therein. I have nothing more to add and I abide by the orders made in the said lead judgment.

Appearances

G. O. OguguaFor Appellant

AND

A. I. Ifeanya
F. I. AniukwuFor Respondent