LAWAN MOHAMMED NEKA & ANOR v. JOSEPH ALBASU KUNINI & ORS
(2015)LCN/8053(CA)
In The Court of Appeal of Nigeria
On Monday, the 21st day of December, 2015
CA/YL/EPT/TRS/SHA/114/2015
RATIO
ELECTORAL PETITION; THE IMPLICATION OF AN ELECTION THAT IS MARRED BY MALPRACTICES, IRREGULARITIES AND CORRUPT PRACTICES
By law, once it is proved that the election in an area of the Constituency or in the entire Constituency is marred by malpractices, irregularities and corrupt practices, as alleged in the Petition, the election in that constituency or part thereof is bound to be nullified, and fresh elections ordered. Such a flawed election cannot give rise to a winner. Instead, the candidates must all go back to the field to test their acceptability to the electorate in a free and fair election. See Agbaje v. INEC (2015) LPELR-25651(CA); & Ige v. Olunloyo (1984) 1 SCNLR 158. per. JUMMAI HANNATU SANKEY, J.C.A.
ELECTION: ACCREDITATION OF VOTERS; THE IMPORTANCE OF ACCREDITATION TO THE VALIDITY OF AN ELECTION
Before embarking upon a consideration of these issues, it is important to state upfront that the issue of accreditation and its compulsory nature to the validity of an election is well settled. The significance of accreditation is that it cannot be dispensed with in any election process. It is a most important step in the conduct of an election that should be carried out by the presiding officer before a voter casts his vote. Only accredited voters should be allowed to vote. Ballot papers without accreditation cannot be valid ballot papers, and without valid ballot papers, there can be no valid election. Any votes returned without accreditation cannot be said to have been obtained through a due electoral process. Indeed, accreditation and the actual voting are the extreme signposts for determining whether malpractice in an election has occurred. See Fayemi v. Oni (2010) LPELR-4145(CA); Ajadi v. Ajibola (2004) 16 NWLR (Pt. 898) 1 at 182-183; Terab v. Lawan (1992) 2 NWLR (Pt. 231) 569; & Nweke v. Ejims (1991) 1 NWLR (Pt. 625) 39. per. JUMMAI HANNATU SANKEY, J.C.A.
COURT: EVALUATION OF EVIDENCE; WHAT CONSTITUTE THE EVALUATION OF EVIDENCE BY A TRIAL COURT
The Supreme Court summed up what constitutes the evaluation of evidence by a trial court in Kaydee Ventures Ltd v. Hon. Minister, FCT (2010) ALL FWLR (Pt. 519) 1079 at 1104 as follows:
“After the completion of evidence and perhaps closing addresses (where necessary) by the parties, it is now the duty of the trial Judge to first of all put the totality of the testimony adduced by both parties on an imaginary scale, that is, he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then observe which is heavier, not by the number of witnesses called by each party, but by the quality or probative value of the testimony of those witnesses. In determining which side is heavier, the learned trial Judge will need to have regard to whether the evidence is relevant, conclusive, admissible and more probable than the one adduced by the other party… The totality of the evidence should be considered in order to determine which has weight and that which carries no weight at all.”
See also Hashidu v. Goje (2004) ALL FWLR (Pt.228); & Izuagie v. Amuda (2006) ALL FWLR (Pt. 294) at 439. per. JUMMAI HANNATU SANKEY, J.C.A.
APPEAL: COMPLIANT OF IMPROPER EVALUATION OF EVIDENCE; WHAT AN APPELLATE COURT IS OBLIGE TO FIND OUT IN DEALING WITH TH COMPLAINT OF IMPROPER EVALUATION OF EVIDENCE
Thus, in dealing with the complaint of improper evaluation of evidence, an appellate court is obliged to find out the following:
a) What was the evidence before the trial court;
b) Whether it accepted or rejected any evidence upon the correct perceptions;
c) Whether it correctly approached the assessment of the evidence before it and placed the right probative value on it;
d) Whether it used the imaginary scale of justice to weigh the evidence on either side;
e) Whether it appreciated, upon the preponderance of evidence, which side the scale weighed having regard to the burden of proof. See Funtua v. Tijjani (2011) 7 NWLR (Pt. 1245) 130 at 150; & Aregbesola v. Oyinlola (2011) 9 NWCR (Pt.1253) 458 at 599-600, para F-A. per. JUMMAI HANNATU SANKEY, J.C.A.
EVIDENCE: WHETHER A PARTY SEEKING THE NULLIFICATION OF AN ELECTION MUST SUCCEED ON THE STRENGTH OF HIS OWN CASE AND NOT ON THE WEAKNESS OF THE RESPONDENTS’ CASE
Thus, a party seeking the nullification of an election must succeed on the strength of his own case and not on the weakness of the respondents’ case. This is so as the failure of the adversary to call evidence will not relieve the party asserting from satisfying the Tribunal by cogent and reliable proof or evidence in support of the petition. See CPC v. INEC (2011) LPELR-8257(SC); DPP v. INEC (2009) 4 NWLR (Pt. 1130) 92; Rotimi v. Faforiji (1999) 6 NWLR (Pt.606) 305; & Okoroji v. Ngwu (1992) 1 NWLR (Pt.263) 113. per. JUMMAI HANNATU SANKEY, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSAINI Justice of The Court of Appeal of Nigeria
Between
1. LAWAN MOHAMMED NEKA
2. ALL PROGRESSIVES CONGRESS (APC) Appellant(s)
AND
1. JOSEPH ALBASU KUNINI
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): On 11th April, 2015, elections were held into the State Houses of Assembly in the various States simultaneously with election into the offices of Governors of the various States in Nigeria. In Taraba State, just like in the other States, the story was no different. Residents of the State excitedly and in a generally organized fashion, queued up to cast their votes for their preferred candidates to occupy the many House of Assembly seats in the various constituencies of the State. One of those seats contested for was the Lau State Constituency. Both the 1st Appellant and the 1st Respondent were candidates in the election and contested for the seat of Member representing Lau Constituency of the House of Assembly of Taraba State. Whereas the 1st Appellant contested on the platform of the All Progressives Congress (2nd Respondent herein), the 1st Respondent contested on the platform of the Peoples Democratic Party (4th Respondent herein). At the close of polls, the Independent National Electoral Commission (INEC) (3rd Respondent), declared the 1st Respondent as the winner of the election.
?1
Distressed by this declaration, the 1st and 2nd Appellants jointly presented a Petition before the National and State Houses of Assembly Election Tribunal of Taraba State on 18th April, 2015, challenging the return of the 1st Appellant. After hearing the parties and receiving both oral and documentary evidence, the Tribunal, on 25th October, 2015, delivered its Judgment dismissing the Petition for being without merit. Still aggrieved by the decision of the Tribunal, the Appellant filed this Appeal on 12th November, 2015 wherein he complained on nine grounds as set out in the Notice and Grounds of Appeal (contained at pages 888-899 of the printed Record of Proceedings).
A precis of the facts of the case relevant to this appeal is that, following the conduct of the election on 11th April, 2015 and the declaration of the 1st Appellant as winner, the 1st and 2nd Respondents filed a Petition wherein they complained on three (3) grounds:
“11. Your petitioners have brought this petition challenging the election on 11th April, 2015 in the Taraba State House of Assembly, Lau Constituency on the following grounds:
(i) The 1st Respondent was not
2 duly elected by majority of lawful votes cast in the election;
(ii) The election that returned the 1st Respondent was invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act; and
(iii) The election was conducted in substantial non-compliance with the provisions of the Electoral Act and the Manual and Guidelines for 2015 Election and the said non-compliance has substantially affected the outcome of the election.”
?Parties before the Tribunal filed their respective pleadings stating their own positions. After the proceedings at the pre-trial conference were concluded, trial commenced in earnest. The Petitioners (now Appellants) called one sole witness, i.e. the Petitioner himself, to prove their Petition, while the 1st Respondent called Seven (7) witnesses and the 2nd Respondent called one witness in the defence of the sanctity of the election. The 3rd Respondent (INEC) did not file a Reply and so did not call any evidence. At the close of hearing, learned Counsel for the different parties filed and adopted their final written addresses wherein they articulated the facts and the law arising from their
3 various perspectives. Subsequently, in its Judgment, the Tribunal found in favour of the Respondents, thus this Appeal.
At the hearing of the Appeal on 15th December, 2015, the learned Counsel representing the individual parties, i.e. the Appellants, 1st Respondent and 2nd Respondent argued the Appeal and adopted their respective Briefs of argument. No Brief was filed by the 3rd Respondent, thus Counsel aligned himself with the submissions of the 1st and 2nd Respondents. The Appeal was thereafter reserved for Judgment.
The Appellants raised four issues for determination from their Nine (9) Grounds of Appeal, while the 1st Respondent formulated two issues and the 2nd Respondent distilled three issues. Since the issues crafted by the Appellant capture the essence of the Grounds of Appeal, they are adopted in the determination of the Appeal. However, issues one and two will be taken separately, while issues three and four will be taken together. The issues are therefore set out hereunder as follows:
1. Having regard to the state of the law with particular reference to the insignificant score of the 3rd candidate in the election, whether failure to
4 state the scores of the 3rd candidate is fatal to the Petition filed by the Appellants. (Distilled from Ground 1 of the Notice of Appeal)
2. Given the nature of the Appellants’ claim before the Court and the state of the Law, was the Lower Court justified in holding that the Appellants’ Reliefs are contradictory and that they ought to include a prayer for fresh election in their Petition. (Distilled from Grounds 2, 3 and 8 of the Notice of Appeal)
3. Having regard to the evidence led, both oral and documentary as well as the nature of the Appellants’ complaint in the Petition which border on non-accreditation and improper accreditation, whether the lower Tribunal properly evaluated the evidence before dismissing the Appellants’ case for want of evidence. (Distilled from grounds 4, 5, 7 and 9 of the Notice of Appeal)
4. Given the state of the law with regard to subpoena and the options open to the party, whether the lower Tribunal rightly applied the law on the failure of INEC to obey the court order. (Distilled from ground 6 of the Notice of Appeal)
Issue one:
Having regard to the state of the law, with particular reference to the
5insignificant score of the 3rd candidate in the election, whether the failure to state the scores of the 3rd candidate is fatal to the Petition filed by the Appellants. (Distilled from Ground 1 of the Notice of Appeal)
Learned Counsel for the Appellants submits under this issue that the major contenders in an election petition are the winner of the election and the person who scored the second highest votes. That being so, he considered that stating the scores of candidates who came a distant third or fourth in the election, unnecessary. He relies on Olaosun v. Ogunsemi (2004) ALL FWLR (pt 214) 49. He therefore set out only the scores of the candidates who came first and second in the Petition. However, the Tribunal held that the view that the scores of the other candidates ought to have been stated in the Petition. Counsel submits that the cases relied upon by the Tribunal, i.e. Kalu v. Chukwumerije (2012) 12 NWLR (Pt. 1315) 425; & Obuzor v. Ake (2009) 2 NWLR (Pt.1125) 388, are not applicable, since technicality of any sought is not allowed to affect the hearing of an election. He relies on Abubakar v. Yar’Adua (2008) 4 NWLR (Pt. 1078) 465 at 512. He
6 thus urged the Court not to be persuaded by what he referred to as the “technical point” that the scores of an irrelevant party to the Petition must be stated.
In response, learned Counsel for the 1st Respondent submits that the Petition was not competent. He submits that by Paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2010 (as amended), the law specifies what should be contained in an Election Petition. He contends that the decision in Olaosun v. Ogunsemi (supra) is inapplicable to the facts of the instant case because therein, the Petitioners did not seek to be returned as winners of the election. He submits that a petitioner who seeks to be declared by a Tribunal as the winner in an election is duty bound to state the scores of all the candidates who participated in the election. He relies on Obuzor v. Ake (2009) 2 NWLR (Pt. 1125) 388.
On his part, learned Counsel for the 2nd Respondent submits also that by Paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2010 (as amended), it is a fundamental requirement of the Act for a petitioner in an election petition to indicate the votes scored by each of the candidates who
7 contested the election. He submits that the Appellants were under a legal obligation to state the scores of all those who contested the election. This is especially so as the Appellants prayed the Tribunal for a return, and not for a nullification of the election in paragraph 59(iv) of their Petition. He relies on Kalu v. Chukwumerije (2012) 12 NWLR (Pt. 1315) 425 at 430. He submits further that the case of Olaosun v. Ogunsemi (supra) is the earlier in time when compared to the case of Kalu v. Chukwumerije (supra) which was decided eight years after it. That since the decisions are conflicting, the later in time prevails. He relies on Osakwe v. Federal College of Education (supra).
Counsel submits that Olaosun v. Ogunsemi (supra) is distinguishable from the facts and circumstances for the instant case in that it was delivered in 2004 long before the Electoral Act 2010 was enacted; whereas the decision in Kalu v. Chukwumerije (supra) was made specifically interpreting the provisions of Paragraph 4(1)(c) of the First Schedule to the Electoral Act 2010 (as amended). Counsel submits further that election petitions are sui generis thus the slightest default,
8 which ordinarily is curable in ordinary civil matters, is fatal. Reliance is placed on Buhari v. Yusuf (2003) 8 SCM 46 at 61; & Nwogu v. INEC (2010) All FWLR (pt 515) 350 at 371-372, paras B-D.
Counsel thus urges the Court not to disturb the decision of the Tribunal and to resolve this issue in favour of the Respondents.
Resolution of issue one:
The contention of parties under this issue is: whether or not it is the entire results of the election containing votes scored by all candidates who contested in the election that should be contained in an election petition or only the scores of the top two highest scorers. This invariably calls for an examination of the law that stipulates what the contents of an election petition should contain. Fortunately, the Electoral Act, 2010, (as amended) is not silent but has spoken loudly and unequivocally on this very issue. Thus, the arguments rise or fall on the state of the law, and all opposing contenders shall forever hold their peace. Consequently, it is to Paragraph 4(1) of the First Schedule to the Electoral Act, 2010 (as amended) that we look, which is relevant for our purposes. It provides in
9 these terms:
“4(1) An election petition under this Act shall ?
(a) Specify the parties interested in the election petition;
(b) Specify the right of the petitioner to present the election petition;
(c) State the holding of the election, the scores of the candidates and the person returned as the winner of the election; and
(d) State clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the petitioner.”
From the express wordings of this provision, it is mandatory that the outcome/findings of the election, the names of all candidates who contested the election together with their scores, and the winner of the election must be set out in an election petition. It is therefore positively erroneous and a misreading of this provision to contend that all it calls for are the names and scores of only the two candidates who scored the highest votes in the election. When any pre-requisite information prescribed under the Act is left out, the data in a petition is considered incomplete and the resultant effect is fatal to the petition. The use of the word “shall”
10 in the provision makes it a necessity not an option. See Sirika v. Bello (2011) 2 NWLR (Pt. 1232) 452 at 466, paras E-F.
The rationale for this provision of the law is that other candidates, outside the top two highest scorers, also scored some votes at the election. Therefore, a failure to indicate and capture their scores to the total votes scored by all the candidates at the election would create nothing but uncertainty and doubt in ascertaining the true number of voters at the election and how they voted.
?In fact, the information is even more indispensable where a petitioner seeks to be returned or declared by an Election Petition Tribunal as the winner of an election, as in the instant case. In such a circumstance, without the scores of all the candidates at the election, it would be impossible to arrive at such a determination. Thus, a petitioner in a petition is under a strict duty to plead and/or state the scores of all the candidates who participated in the election under contest. See Obuzor v. Ake (2009) 2 NWLR (Pt. 1125) 388 at 455, where Owoade, JCA, in his contribution to the lead Judgment was categorical on the subject as follows:
11″In the instance case, the appellant could not benefit even from the above liberal view of the interpretation of Paragraph 4(1)(c) of the First Schedule to the Electoral 2010 (as amended) because their reliefs made the scores of the candidates an issue in the petition as they sought the return of the 1st Petitioner as the winner of the election. Therefore, and contrary to the suggestion of learned Counsel for the Appellant the Tribunal rightly applied the current position of the law to the facts of the case before it and did not apply ‘any killer position’ to strike out the petition.”
See also Kalu v. Chukwumerije (2012) 12 NWLR (Pt. 1315) 425 at 430.
?
A careful perusal of the reliefs sought by the Appellants in paragraph 59(iv) discloses that the Appellants prayed inter alia thus:
“(iv) AN ORDER DECLARING THE 1ST PETITIONER as winner of the election in Lau State House of Assembly Constituency, Taraba State held on 11th April, 2015 having scored majority of the lawful votes cast in the said election.”
?As if for the avoidance of doubt and to confirm that this was not a slip, the 1st Appellant, (as PW1), actually reiterated his claim and
12 the state of his pleadings in his evidence under cross-examination before the Tribunal. He stated as follows (at page 420 of the Record):
“I listed only 2 candidates and their scores. I want the Tribunal to declare me winner of the election under contest. Nowhere did I state the scores of the other candidates in the said election.”
Certainly, without a list of all the contestants and their scores, the total number of accredited voters and those who actually voted could not be ascertained. This is information which is vital and indispensable to the Petition since the number of voters is directly in issue in the determination of which of the candidates scored a majority of the votes cast at the election. This therefore makes the strict observance to this provision of the law a mandatory prerequisite to an election petition. As a result, I cannot but agree more with the findings of the Tribunal on this issue that the incomplete information of such a nature omitted from the Petition, is fatal.
I must say that the contention of learned Counsel for the Appellants that Kalu v. Chukwumerije (supra) and Obuzor v. Ake (supra) are not applicable does
13 not hold water; just as his submission that giving full details of all candidates is a mere technicality. I am not unaware of the decision in Olaosun v. Ogunsemi (2004) ALL FWLR (Pt. 214) 49 relied on by the Appellants in support of their arguments per contra that the failure to state the scores of others apart from the main gladiators in an election petition amounts to technical justice. However, the decision in that case, which was rendered in the year 2004, and not based on the interpretation of Paragraph 4(1)(c) of the Electoral Act, 2010 (as amended), is clearly distinguishable. Since then, the law has progressed further in leaps and bounds, the Electoral Act, 2010 has since been enacted, and decisions interpreting specific provisions therein, such as Section 4(1)(c) of the Act (supra), have been rendered. This is therefore the extant law as it is today. Furthermore, the provisions of the Electoral Act (supra) are statutory and therefore cannot be dismissed offhandedly as a technicality. As aforesaid, the provision is mandatory and not discretionary. Therefore any failure in compliance renders the petition incompetent. See Mamman v. Bwacha (unreported
14 Appeal number CA/YL/EPT/SEN/45/2015.
It is therefore for these reasons that I find that the learned Judges of the Tribunal acted rightly when they held that the petition is incompetent for the failure of the Appellants to state the scores of all the candidates that contested the election, even where the principal relief is for the declaration and return of the 1st Appellant as winner of the said election. I resolve issue one in favour of the Respondents.
Issue two:
Given the nature of the Appellants’ claim before the Court and the state of the law, was the Lower Court justified in holding that the Appellants’ Reliefs are contradictory and that they ought to include a prayer for a fresh election in their petition. (Distilled from Grounds 2, 3 and 8 of the Notice of Appeal)
Under this issue, learned Counsel for the Appellants submits that, in an election petition, there are only two major prayers namely: a prayer by the petitioner that he be declared the winner and a prayer stating the right of the petitioner to ask for a nullification of the election and an order for a fresh election. He claimed that such prayers are as sought by the
?15 Appellants in paragraph 59(i)-(iv) of the petition. He contends that the Appellants challenged the areas where they felt that the election was not free and fair, and they prayed the Tribunal to declare the election in those areas invalid by reason of non-compliance with the provisions of the Electoral Act.
?Counsel further submits that the lower Tribunal did not take into cognisance the fact that the election in question is a House of Assembly election different from a Governorship election where there is the requirement of geographical spread. It is not so in this election. He argues that a petitioner in a House of Assembly election can be declared winner irrespective of the number of votes discarded by the Tribunal, unlike in a Governorship election. Counsel further submits that the Appellants do not seek that the election in all the Units in the constituency be nullified, and at the same time sought for a return. He therefore submits that the reliance on Ige v. Olunloyo (1984) 1 CNCLR 158 and Agbaje v. INEC by the Tribunal was wrong in law since they were in respect of Governorship elections. He relies instead on Ajadi v. Ajibola (2004) 16 NWLR (Pt. 898)
16 91.
In response, learned Counsel for the 1st Respondent submits that the Appellants’ six reliefs in the Petition are inconsistent with and/or contradictory to one another. This, he says, is so because while relief (i) of the Petition seeks for “a determination and declaration that the election of the 1st and 2nd Respondents of the Lau State House of Assembly Constituency Election of 11th April, 2015 are vitiated by non compliance with the Electoral Act, 2010 and Manual and Guidelines for the 2015 Elections;” reliefs (iv) & (vi) on the other hand seek for “an order declaring the 1st petitioner as winner of the election in Lau State House of Assembly Constituency, Taraba State held on 11th April 2015 having scored the majority of the lawful votes cast in the said election and an order directing the 3rd Respondent to issue a certificate of return to the 1st Petitioner having scored the highest number of valid votes cast at the election.” Counsel submits that these reliefs are contradictory and inconsistent with each other because a petitioner who alleges that an election has been vitiated by corrupt practices or non-compliance with the Electoral Act,
?17 2010 (as amended) is completely precluded from seeking to be declared a winner of the same election. Reliance is placed on Ige v. Olunloyo (1984) 1 SCNLR 158; & Agbaje v. INEC, Appeal number CA/L/EPT/GOV/744/2015.
Counsel submits that there is no evidence on record supporting the reliefs being sought by the Petitioners, particularly the principal relief of declaration as winner of the election. He refers to the testimony of PW1 under cross-examination at page 420 of the Record where he states that the election was fraught with malpractices, yet he was not asking the Tribunal to order a fresh election. Counsel therefore submits that the Petition is a nullity in law and the trial Tribunal was right in law to have so held. He relies on Ajayi v. Nomiye (2002) 7 NWLR (Pt.1300) 593 at 596-597 ratio 3; & Buhari v. Yusuf (2003) 14 NWLR (Pt.841) 446.
?On his part, learned Counsel for the 2nd Respondent submits that by the prayer of the Appellants in paragraph 59 of their Petition, they prayed the Tribunal for a declaration that the election and return of the 1st and 2nd Respondents was vitiated by non compliance with the Electoral Act and Manual and
18 Guidelines for the 2015 Elections. That being the case, to ask to be declared the winner of the election is certainly contradictory. He also submits that the prayer asking the Tribunal to make an order directing the 3rd Respondent to collate the votes scored to reflect the following: Lawan Mohammed Neka (APC) – 9,801 votes, and Joseph Albasu Kunini (PDP) – 2,577 votes, amounts to approbating and reprobating which is not allowed in judicial parlance. He argues that the Appellants cannot be heard to say in one breath that the electoral process that produced the 1st Respondent as the elected Member was wrought with irregularities, and then turn around to pray that the 1st Appellant be declared winner at the same faulty election. The law brooks no approbation and reprobation. This is encapsulated in the Latinate maxim Alleganscontratia non estaudiendus. He submits that the reliefs are mutually exclusive. Reliance is placed on Onyekwelu v. Elf Petroleum Nigeria Ltd (2009) All FWLR (Pt.469) 426 at 442, paras F-H; Ajayi v. Total (Nig) Plc (2014) All FWLR (Pt.719) 1069 at 1088-1089, paras H-A (SC); Ngige v. Obi (2006) 14 NWLR (Pt. 999) 1, paras B-D; & Ayantola v.
19 Action Congress of Nigeria (supra) at 1814, para F.
Counsel contends that the reliefs are contradictory and cannot be granted as prayed by the Appellants. He therefore submits that the Tribunal was right in holding that the Petitioners Reliefs 1 and 4 are contradictory; just as its reliance on Ige v. Olunloyo (supra); & Agbaje v. INEC (supra), which he contends, is on all fours with the fact of this case. He argues that even if the Appellants had succeeded in adducing credible evidence showing that the election was marred by substantial irregularities and non-compliance with the provisions of the Electoral Act, the law effectively ties the hand of the Tribunal and precludes it from making the order prayed for in paragraph 59(iv) of the Petition. He relies on Section 140 of the Electoral Act.
Counsel submits that the import of the foregoing is that, where the anchorage of a petition is Section 138(1)(b) of the Act, the consequential reliefs if sustained are: nullification of the entire election; and the conduct of a fresh election. He relies on Mu’azu v. ANPP (2013) All FWLR (Pt.160) 1382 at 1405-1406, paras H-A; & Arise v. Adetubi (2011) All
20 FWLR (Pt. 558) 941 at 971-972, paras G-A. Counsel submits that the consequence of the foregoing is that the Petition has no substantial reliefs and is thus incompetent. He urged the Court to uphold the decision of the Tribunal.
Resolution of issue two:
The Electoral Act, 2010 (as amended) makes provision for the nullification of an election where it is marred by substantial irregularities and non-compliance with the provisions of the Act. It also makes provision for the declaration of a candidate who scored the majority of lawful votes at an election as duly elected. These provisions therefore guide potential petitioners in framing, both the grounds of their Petitions, as well as the reliefs that could result in the event that the ground(s) succeed. The relevant provision is contained in Section 140 of the Act (supra), and it is set out hereunder:
140(1) Subject to the provision of subsection (2) of this section, if the tribunal or the court as the case may be, determines that the candidate who was returned as elected was not validly elected on any ground, the tribunal or the court shall nullify the election.
(2) Where an election tribunal
21 or court nullifies an election on the ground that the person who obtained the highest votes at the election was not qualified to contest the election, the election Tribunal or court, as the case may be, shall not declare the person with the second highest votes as elected, but shall order a fresh election.
(3) If a tribunal or the court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the election tribunal or the court, as the case maybe, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirement of the constitution and this Act.”
By paragraph 11 of the Petition, the Appellants challenged the election on the following grounds:
“11. Your petitioners have brought this petition challenging the election on 11th April, 2015 in the Taraba State House of Assembly, Lau Constituency on the following grounds:
(i) The 1st Respondent was not duly elected by majority of lawful votes cast in the election;
(ii) The election that returned the 1st Respondent was
22 invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act; and
(iii) The election was conducted in substantial non-compliance with the provisions of the Electoral act and the Manual and Guidelines for 2015 Election and the said non-compliance has substantially affected the outcome of the election.”
Ground (iii) was subsequently struck out by the Tribunal on the ground of incompetence, leaving the Appellant with only the first two grounds to prove. Therefore, having pleaded as above, the Appellant went on to seek inter alia the following reliefs at paragraph 59 of the Petition:
“59. (i) That it may be determined and doth declare that the election and return of the 1st and 2nd Respondents of the Lau State House of Assembly Constituency Election of 11th April, 2015 are vitiated by non-compliance with the Electoral Act, 2010 and Manual and Guidelines for the 20015 Elections.
(ii) AN ORDER setting aside the declaration made by the 3rd Respondent declaring the 1st Respondent as duly elected Member of Lau State House of Assembly Constituency, Taraba State.
(iii) AN ORDER directing the 3rd Respondent to
23 collate the election conducted on the 11th April, 2015 in Lau State House of Assembly Constituency to reflect the following votes as valid votes:
(a) Lawan Mohammed Neka- (APC): 9,801 votes;
(b) Joseph Albasu Kunini- (PDP): 2,557 votes.
(iv) AN ORDER DECLARING THE 1ST PETITIONER as the winner of the election in Lau State House of Assembly Constituency, Taraba State held on 11th April, 2015 having scored majority of the lawful votes cast in the said elections.
(v) AN ORDER setting aside the Certificate of return issued to the 1st Respondent by the 3rd Respondent as a duly elected member of Lau State House of Assembly Constituency, Taraba State.
(vi) AN ORDER directing the 3rd Respondent to issue a certificate of return to the 1st Petitioner having scored the highest number of valid votes cast at the election.
(Emphasis supplied)
Paragraphs 21-52 of the Petition (at pages 10-20 of the Record) shed more light on the purport of Relief (i). The question to be answered is: since the Appellants allege that the election was invalid, meaning that it was null and void, can they thereafter make a 360 degree turn and to ask to be
24 returned as the winners in an election which is invalid? The concept is as ludicrous as it is unfeasible. It also smacks of placing something on nothing and expecting it to stand. That would be a futile action in defiance of the laws of gravity. It will certainly crumble and collapse.
?Thus, the contradiction in prayers in reliefs 59(i) and (iv) is self-evident. By the first prayer in paragraph 59(i), the contention of the Appellants is that the entire election, (and not a part of it), was invalidated by the allegations of corrupt practices and of non-compliance with the provisions of the Electoral Act. In the event that such non-compliance is proved, the resultant effect, by virtue Section 140(1) of the Act (supra) is the nullification of the election. That being the case, the Appellants cannot take benefit from an election that is vitiated by non-compliance, and so logically cannot seek to be a winner in such an election, as has been sought in paragraph 59(iv). The Appellants, by contending as they did, that the election was fraught with corrupt practices, irregularities and malpractices which invalidated it, cannot again turn around and ask to be
25 declared the winners of the self-same flawed election. Certainly, this is contradictory. The Appellants are caught in the web of approbating and reprobating.
By law, once it is proved that the election in an area of the Constituency or in the entire Constituency is marred by malpractices, irregularities and corrupt practices, as alleged in the Petition, the election in that constituency or part thereof is bound to be nullified, and fresh elections ordered. Such a flawed election cannot give rise to a winner. Instead, the candidates must all go back to the field to test their acceptability to the electorate in a free and fair election. See Agbaje v. INEC (2015) LPELR-25651(CA); & Ige v. Olunloyo (1984) 1 SCNLR 158.
?Since however, by the first ground in the Petition the Appellants contend that the election in the entire Constituency was invalid for the reasons stated therein, and they marshalled their pleadings along that line, alleging acts of corrupt practices, malpractices and infractions against the Electoral Act, by virtue of Section 140(1) of the Electoral Act, upon proof of those allegations, what the Tribunal was called upon to do was to
26 simply nullify the entire election; and not to order for any other party to be returned as winner in the election. The scenario would have been different if the ground for the presentation of the petition was that the election was invalid only in some areas of the Constituency, and therefore that prayer was for the election in those areas be nullified and a re-run ordered. In that case, an additional prayer for the return of the candidate who scored majority of the lawful votes cast at the election could stand. This is because, following a re-run in areas where an election is invalidated, an addition of the fresh votes in the re-run to the votes in the other areas of the constituency where the election is valid could sway the outcome of the election one way or the other. See Fayemi v. Oni; Aregbesola v. Omisore, Oshiomole v. Osunbor, etc. However, that is not the scenario in the instant case, since the prayers of the Appellants are for an outright nullification of the election, and yet at the same time, they seek a return of the 1st Appellant as the winner of the nullified election! Clearly, on the basis of Section 140(3) of the Electoral Act as well as by
27 common sense, such a relief cannot stand.
The upshot of my findings above is that the reliefs are indeed contradictory. The facts of a case determine the reliefs a party may seek in any given case. Reliefs are the remedy arising from the cause of action. Therefore, where a party claims a relief that an election was invalid, and thus null and void, he cannot go further to ask for a relief to be declared a winner based on the same election which is a nullity. I therefore agree with the submissions of the Respondents that the learned Judges of the Tribunal acted rightly when they found that the reliefs of the Appellants were contradictory and not in consonance with the relevant law and with their pleadings. I resolve issue two in favour of the Respondents.
Issues three & four:
3. Having regard to the evidence led, both oral and documentary as well as the nature of the Appellants’ complaint in the Petition which border on non-accreditation and improper accreditation, whether the lower Tribunal properly evaluated the evidence before dismissing the Appellants’ case for want of evidence. (Distilled from grounds 4,5,7 and 9 of the Notice of
28 Appeal)
4. Given the state of the Law with regard to subpoena and the options open to the party, whether the lower Tribunal rightly applied the law on the failure of INEC to obey the court order. (Distilled from ground 6 of the Notice of Appeal)
In arguing issues three and four together, Counsel for the Appellants submits that the scope of the Petition is that the 1st Respondent did not score the majority of lawful votes cast at the election of 11th April, 2015 and also that the election was conducted in substantial non-compliance with the provisions of the Electoral Act and the Manual and Guidelines for the 2015 Elections. He submits that where the Appellants are able to establish non-compliance with the provisions of the Electoral Act, it goes to the root of the election, and the Petition is deemed proved.
?Counsel submits that the main complaint of the Appellants in the units being challenged is that there was no valid accreditation in those units and so there can be no valid results for the said units. He contends that in any election process, accreditation is the first process to be undergone and it constitutes the foundation of any
29 election. Therefore that, where there is no valid accreditation, there cannot be a valid result for such election. He relies on Fayemi v. Oni (2009) 7 NWLR (Pt. 1140) 233; Uweka v. Ejins (1999) 11 NWLR (Pt. 625) 39 at 53; & Ajadi v. Ajibola (2004) 16 NWLR (Pt. 898) 171.
?Counsel submits further that the position taken by the Tribunal that the Appellants did not call any registered voter at the election who could vote is not the law where a petitioner, as in the instant case, has been able to establish that accreditation was not done as required by the law. That once it is established that election was conducted in a polling unit without prior accreditation, the result of the election will be cancelled. He relies on Fayemi v. Oni (supra). He submits that a person is qualified to vote only after he is duly accredited. He relies on Section 49 of the Electoral Act (supra) to submit that a valid accreditation is established by comparing the number of accredited voters in the voters register with what is contained in Form EC8A(1) and the Card Reader report to know the number of accredited voters in a polling unit. He submits that in the instant case, the
30 Appellants pleaded that card readers were not used, while the Respondents maintained that they were used. He argues that he who asserts the affirmative of a fact must prove it, and relies on Ibrahim v. Ijose (2004) 4 NWLR (Pt. 862) 89 at 110; Okechukwu v. Noah (1967) NWLR 368; Akinfosile v. Ijose (1960) SCNLR 447; NBNV v. Opeola (1994) NWLR (Pt. 319) 126; & INEC v. Ray (2004) 14 NWLR 92 at 128-129. Counsel submits that, having shown the irreconcilable contradictions in the voters register and the unit results, the Respondents ought to lead evidence in rebuttal to prove that there was proper accreditation. He contends that since the entries in the Forms EC8A(1) are to be generated from the voters registers, the numbers recorded therein must, of necessity, tally. Where they fail to tally, it is consistent with incidents of non-compliance as the total accreditation for the units have been tainted. Once a petitioner establishes that votes credited to a candidate, as in the instant case, are invalid, such votes will be deducted from the votes declared by INEC, and whoever has majority of the lawful votes after such deductions will be declared the winner of the
31 election, based on the votes found by the court to be valid. He relies on Agagu v. Mimiko (2009) 7 NWLR (Pt. 1140) 22; & INEC v. Oshiomole (2009) 4 NWLR (Pt. 1132) 607.
Counsel disputes the finding of the Tribunal that the 1st Appellant who testified for the Appellants as PW1 can only give evidence in respect of the Polling Unit where he voted. He contends that this is a misapplication of the law. Instead he contends that the PW1 in his witness statement brought out vividly the contradictions in the voters registers and Forms EC8A(1), showing that the accreditation was improperly done and invalid. He argues that the Respondents were unable to discredit the evidence as PW1 was not cross-examined on the contradicting figures, and that therefore this established assertion of the Appellants that there was no valid accreditation in the units challenged. He relies on Union Bank Plc v. Govt. of Anambra State (2001) 12 NWLR (Pt.726) 155 at 170; Ajide v. Kelani (1985) NWLR (Pt. 12) 248 at 270. Counsel further submits that in an election petition where the nature of the complaint of the petitioner deals with improper accreditation in some units and
32 non-accreditation in some, it rises and falls with documentary evidence. He relies on Aregbesola v. Oyinlola (2009) 14 NWLR (Pt.1162) 429; Ngige v. Obi (2005) 1 NWLR (Pt.999) 1.
Learned Counsel further submits that a party who takes the risk of not calling evidence in support of his case runs a great and enormous risk because in such a situation, only minimal evidence is required. He submits that the 3rd Respondent’s (INEC’s) failure to lead evidence on the contradicting accreditations in the various Forms, is fatal to its case and its pleadings are deemed abandoned. He relies on Monkom v. Odili (2010) All FWLR (Pt. 526) 565, paras C-D; Imana v. Robinson (1979) 3-4 SC 1; (1979) NSCC (Vol. 12) 5; Okolie v. Marinho (2006) 15 NWLR (Pt. 1002) 316; Otuedor v. Olughor (1997) 9 NWLR (Pt.512) 355; University of Calabar v. Ephraim (1993) 1 NWLR (Pt.271) 551; Nigeria Housing Development Society Ltd v. Mumuni (1977) SC 57; Okkoebor v. Police Council (2003) 12 NWLR (Pt. 834) 44; Nwabuoku v. Otti (1991) 1 All NLR 489; Odulaja v. Hadad (1973) 11 SC 357; Omoregbee v. Lawani (1980) 3-4 SC 108; Baba v. Civil Aviation Authority (1991) 5 NWLR (Pt. 192) 388; Mogaji v. Odofin
33 (1978) 4 SC 91; Asafa Foods Factory Ltd v. Alraine Nig. Ltd (2002) 1 NWLR (Pt. 781) 353; & Ojoh v. Kamalu (2006) ALL FLR (Pt 297) 978.
Counsel submits that no oral evidence, aside the deposition on oath, is required to prove any facts and thus, facts are deemed proved once they have been stated in the witness statement and same has been adopted. He relies on Paragraph 41 of the First Schedule to the Electoral Act 2010, and Idris v. ANPP (2008) 8 NWLR (Pt. 1088) 1. Counsel therefore submits that the Appellants, who adduced evidence through PW1, did not merely dump the documents on the Tribunal, but he gave evidence of the contents of the documents, demonstrating in the mathematical comparison of the irreconcilable figures in the voters register as well as the Forms EC8A(1). He therefore contends that they satisfied the provision.
?In respect of the subpoena served on the 3rd Respondent, Counsel submits that the Appellants took all the known legal steps required in the circumstance; and that the procedure laid down by the Supreme Court in Buhari v. Obasanjo (2009) NWLR (Pt. 941) 1 is not the only procedure that can be adopted in the circumstances of
34 the Appellants’ case. He relies on CPC v. INEC (2012) 2-3 SC 1 at 44-45. Counsel finally urged the Court to resolve this issue in favour of the Appellants and to grant their reliefs.
Learned Counsel for the 1st Respondent submits in response that it is not in doubt that on the 11th April 2015, when the election under contest was conducted, PW1 (also 1st Petitioner) was in his Polling Unit, Donada Primary School, all through the election. It therefore goes without saying that PW1 did not visit any other Polling Unit during the election. Counsel thus submits that all the facts deposed to by PW1 in his statement on oath with respect to all other Polling Units in the Nine (9) Wards in issue, particularly in paragraphs 6, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 27, 28, 29, 30, 31, 32, 33, 34, 35, 37, 38, 39, 40, 41, 43, 45 and 46 thereof, are information which he derived from third parties. He submits that the said paragraphs are therefore hearsay evidence which has been rendered inadmissible and liable to be discountenanced or expunged from the Record by virtue of Section 126(a)-(d) of the Evidence Act, 2011. He contends
35 that the hearsay nature of these paragraphs is not cured by the fact that PW1 purportedly verified the information supplied to him by third parties and through Exhibits 1-120, which were not even tendered through their makers. He submits that this is what is termed documentary hearsay and relies on Mark v. Abubakar (2009) 2 NWLR (Pt. 1124) 79 at 184-185, paras H-A.
Counsel further submits that the said paragraphs, which are incompetent for being hearsay evidence, are actually the centre piece of PW1’s statement on oath and since they have become vitiated by virtue of Section 126(a)-(d) of the Evidence Act 2011, the entire statement on oath of PW1 collapses like a pack of badly arranged cards. He contends that Exhibits 1-120 lack any probative value on the strength of the Supreme Court decision in Belgore v. Ahmed (supra) because they were tendered through PW1 who is not their maker. He therefore submits that, having regard to the state of pleadings and inadmissible evidence led, the Appellants woefully failed to prove their case to be entitled to judgment. He submits that the Appellants failed to prove that the election was not conducted in substantial
36 compliance with the provision of the Electoral Act 2010 (as amended) and that they failed to establish by credible evidence that the first respondent did not score majority of the lawful votes cast in the election into the Lau Constituency of the Taraba State House of Assembly. Reliance is placed on Udeagha v. Omegara (2010) 11 NWLR (Pt.1204) 168 at 197, para G; & PDP v. Sani Ali (unreported) Appeal number CA/YL/EPT/TRS/SEN/100/2015.
Counsel further submits that, assuming without conceding that the exhibits tendered by the Appellants were capable of being ascribed probative value and the statement on oath of PW1 is competent, the Petition is still bound to fail on the merit. He submits that the facts pleaded in paragraphs 12-53 of the Petition are corrupt practices which have become criminalized and made punishable by Section 123(1)(2)(3)(4)(5)&(6) of the Electoral Act, 2010 (as amended) and that accordingly, they must be proved beyond reasonable doubt. He relies on Section 135(1) of the Evidence Act, 2011. Counsel submits that the evidence adduced by the Petitioners was weak and completely bereft of probative value, and that the Petitioners
37 were unable to prove beyond reasonable doubt the criminal allegations contained in paragraphs 12-53 of the petition. Counsel submits that those who allegedly witnessed those criminal acts were not called as witnesses in the Petition and this failure is a fundamental flaw in the case of the Petitioners and completely knocks the bottom off their claims. He further submits that in an election petition where the petitioners allege that an election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act, then they are under the onerous duty to prove by credible and admissible evidence that the alleged non-compliance was substantial enough to invalidate the election. He relies on Haruna v. Modibbo (2004) 16 NWLR (Pt. 900) 487 at 542 paras A-C, & 585 paras D-E; Adewale v. Olaifa (2012) 17 NWLR (Pt. 1330) 478 at 515 paras B-C; Section 139(1) of the Electoral Act (supra); & Chime v. Ezea (2009) 2 NWLR (Pt. 1125) 263 at 348-349 paras D-B.
?Additionally, Counsel submits that Exhibits 1-20 were dumped on the Tribunal by the Appellants and some were not in any way demonstrated by or through their lone witness, PW1.
38 This failure, he submits, is fatal to the case of the Appellants. He relies on Section 138(2) of the Electoral Act, 2010 (as amended) to submit that under the electoral jurisprudence of Nigeria, any purported non-compliance or violation of the Approved Guidelines issued by the Independent National Electoral Commission (INEC), cannot be used to nullify an election conducted pursuant to the Electoral Act (supra); and relies on Anderifun v. Adaki, Appeal number CA/YL/EPT/TRS/SHA/48/2015; & Muhammed v. Abdullahi, Appeal number CA/YL/EPT/TRS/SHA/55/2015. He relies on the law in respect of the proper place of card readers in APC v. Agbaje, Appeal number CA/L/EP/GOV/751A/2015. On the strength of these authorities, Counsel submits that issue two is without merit and urges the Court to discountenance the submissions of the Appellants in their entirety, dismiss the Appeal for lacking in merit and further uphold the judgement of the trial Tribunal.
?Learned Counsel for the 2nd Respondent, on his part, submits that the Appellants pleaded and made heavy criminal allegations against the conduct of the elections in paragraphs 21, 22, 24, 33, 34, 35, 36, 37, 38, 39,
39 40, 41, 42, 43, 44, 45, 45, 46, 47, 48, 49, 50, 51, 52 and 53 of the Petition. He contends that the allegations constitute corrupt practices, forgery or fraud, and the allegations ought to be proved beyond reasonable doubt. He relies on Chime v. Onyia (2009) All FWLR (Pt. 480) 673 at 717, paras D-F; & Yusuf v. Obasanjo (2003) FWLR (Pt. 158) 597; Section 135(1) and (2) of the Evidence Act 2011; Olafemi v. Ayo (2009) All FWLR (Pt. 452) 1111 at 1148, paras E-G; Mu’azu v. ANPP (2013) All FWLR (Pt. 660) 1374 at 1405, paras G-H; Yagba v. Sekibo (2009) All FWLR (Pt. 466) 1951 at 1970, paras G-H; Atamah v. Ebosele (2009) All FWLR (Pt. 473) 1385; Isah v. Kamba (2009) All FWLR (Pt. 456) 1901 at 1907; Obafemi v. Ben Ayo (2009) All FWLR (Pt. 452) 1111 at 1118; Mu’azu v. ANPP (supra) at 1390; Saeed v. Yakowa (2013) All FWLR (Pt. 692) 1650 at 1655; & Chukwuma v. Anyakora (2006) All FWLR (Pt. 302) 212 at 215.
?Learned Counsel further submits that the Tribunal properly and appropriately evaluated the evidence of the sole witness before making its findings and holding. He submits that the Tribunal embarked upon a proper evaluation of the evidence adduced before it
40 through PW1, and did not just sum it up. The gamut of the entire allegations is on fraud, assault, threat to life, forgery and falsification of results. He submits that where such allegations are made against polling officers, they ought to be given a hearing as mandated by Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as altered). In the absence of their joinder, the paragraphs where such allegations are contained ought to be struck out. He relies on Yusuf v. Obasanjo (2004) All FWLR (Pt. 213) 1884 at 1940-1941, paras G-B.
In addition, learned Counsel submits that the onus propandi on a party alleging the non-holding of an election is very high. The required witnesses are voters. In a bid to prove the allegation, the Petitioners called only one witness for the entire Constituency, i.e. 1st Appellant himself, whose testimony was limited to identifying documents and tendering them in evidence without doing anything to demonstrate their relevance and applicability to the claims in the Petition. He submits that a petitioner alleging non-voting or disenfranchisement must call all the voters disenfranchised or as many as possible,
41 tender their voters card as well as registers of voters, and have them testify to show that, if they had voted, their candidate would have won the election. Counsel submits that the Petitioners were also expected to show that all the disenfranchised voters would have voted for them. He relies on Ngige v. INEC (2015) 1 NWLR (Pt.1440) 281 at 326 paras A-F; & Onoyon v. Egari (1995) 5 NWLR (Pt. 603) 416 at 425; & Fannami v. Bukar (2004) All FWLR (Pt.198) 1210 at 1266-1267, paras F-A.
Resolution of issues three and four:
Before embarking upon a consideration of these issues, it is important to state upfront that the issue of accreditation and its compulsory nature to the validity of an election is well settled. The significance of accreditation is that it cannot be dispensed with in any election process. It is a most important step in the conduct of an election that should be carried out by the presiding officer before a voter casts his vote. Only accredited voters should be allowed to vote. Ballot papers without accreditation cannot be valid ballot papers, and without valid ballot papers, there can be no valid election. Any votes returned without
42 accreditation cannot be said to have been obtained through a due electoral process. Indeed, accreditation and the actual voting are the extreme signposts for determining whether malpractice in an election has occurred. See Fayemi v. Oni (2010) LPELR-4145(CA); Ajadi v. Ajibola (2004) 16 NWLR (Pt. 898) 1 at 182-183; Terab v. Lawan (1992) 2 NWLR (Pt. 231) 569; & Nweke v. Ejims (1991) 1 NWLR (Pt. 625) 39.
?Having said that, the issue for consideration here is whether the lower Tribunal properly evaluated the evidence before dismissing the Appellants’ case for want of evidence. It is the law that whenever evidence is produced before a trial court or a tribunal, it is the duty of such court/tribunal to properly evaluate the evidence. The evaluation of evidence adduced at a trial and the ascription of probative value thereto is primarily the duty of trial court. It therefore behoves the trial court or tribunal to make findings on the evidence before it by assessing the quality of evidence, giving necessary credence to or expressing doubt about witnesses by taking advantage of having seen and heard them testify and watching their demeanour. It is also the duty
43 of the trial court to weigh the evidence of witnesses on both sides and to make up its mind as to which evidence to prefer.
The Supreme Court summed up what constitutes the evaluation of evidence by a trial court in Kaydee Ventures Ltd v. Hon. Minister, FCT (2010) ALL FWLR (Pt. 519) 1079 at 1104 as follows:
“After the completion of evidence and perhaps closing addresses (where necessary) by the parties, it is now the duty of the trial Judge to first of all put the totality of the testimony adduced by both parties on an imaginary scale, that is, he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then observe which is heavier, not by the number of witnesses called by each party, but by the quality or probative value of the testimony of those witnesses. In determining which side is heavier, the learned trial Judge will need to have regard to whether the evidence is relevant, conclusive, admissible and more probable than the one adduced by the other party… The totality of the evidence should be considered in order to determine which has weight and that
?44 which carries no weight at all.”
See also Hashidu v. Goje (2004) ALL FWLR (Pt.228); & Izuagie v. Amuda (2006) ALL FWLR (Pt. 294) at 439. Thus, in dealing with the complaint of improper evaluation of evidence, an appellate court is obliged to find out the following:
a) What was the evidence before the trial court;
b) Whether it accepted or rejected any evidence upon the correct perceptions;
c) Whether it correctly approached the assessment of the evidence before it and placed the right probative value on it;
d) Whether it used the imaginary scale of justice to weigh the evidence on either side;
e) Whether it appreciated, upon the preponderance of evidence, which side the scale weighed having regard to the burden of proof.
See Funtua v. Tijjani (2011) 7 NWLR (Pt. 1245) 130 at 150; & Aregbesola v. Oyinlola (2011) 9 NWCR (Pt.1253) 458 at 599-600, para F-A.
?In an attempt to prove the vast claims in their Petition, the Appellants placed on the witness stand the 1st Appellant. His evidence rang as clear as crystal that on 11th April, 2015 when the election, (the subject-matter of this Appeal), was conducted, he was at
45 all times in his Polling Unit at Donada Primary School throughout the period of the election. (See page 421 of the Record). It is therefore undeniable that he did not visit any other Polling units at the time the election was on-going. It is also unarguable, even as it has been expressly admitted by him, that all the facts deposed to in his witness statement on oath with respect to all other Polling Units in the Nine (9) Wards in issue, in particular in paragraphs 6-46 thereof, are pieces of information derived from third parties. It was evidence that was told to him, i.e. second-hand evidence. This constitutes hearsay evidence which is inadmissible. The trial Tribunal clearly evaluated the PW1’s evidence (at pages 881-882 of the Record) and rightly discountenanced it by virtue of Section 126(a)-(d) of the Evidence Act.
?It is a fact that only the 1st Appellant gave evidence in proof of the petition at the Tribunal. That should not have been the case in the face of the grave, widespread and wide-ranging allegations contained in the petition. The polling agents present at the polling units on the day of election, were the 1st Petitioner’s representatives
46 there, they were his eyes and ears. And as stated by him in his evidence, he received his reports from them. Consequently, they should rightly be the ones to give first-hand information to the Tribunal on the goings on there as they were there and they saw and observed all that took place at the Polling Units. PW1 was certainly not a direct and qualified witness under Section 77 of the Evidence Act, but a hearsay witness. See Aregbesola v. Onyinlola (supra) at 571-572, paras F-A; & Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 at 424-426 paras D-A.
?The Tribunal also, over and above the objections of the Respondents, duly admitted the bundles of documents tendered by the Appellants (pages 401-409 of the Record) through the sole witness called by the Appellants, PW1, and marked them Exhibits 1-20 They are however ineffectual to assist the Appellants in any way, as they were neither demonstrated before the Tribunal nor was any eyewitness evidence presented to substantiate them. In the words of the Tribunal, they were simply “dumped” on the Tribunal, which is without jurisdiction to perform the work of an investigator by embarking upon a private
47 investigation within the confines of its serene chambers, to sift which evidence belongs where and to whom, etc. Doing so would have amounted to doing cloistered justice, which is outside the precinct of the function of any court/tribunal worth its salt.
It is evident that paragraphs 6-46 of the PW1’s witness statement on oath, which as aforesaid constitute hearsay evidence, are the heart and focus of the evidence offered by the Appellants in proof of the weighty allegations in the Petition. Having found them incompetent and worthless for any consideration by a court of law, the bottom is totally knocked out of the case of the Appellants. In consequence, there is in effect no oral or documentary evidence adduced by the Appellants in proof of their claims. The only logical conclusion therefore is that, having regard to the state of the pleadings and inadmissible evidence led by the Appellants, the Appellants woefully failed to prove their case to the standard required by law to entitle them to Judgment.
?It is therefore my finding that, due to the dearth of admissible evidence before the Tribunal, the Appellants failed to prove their assertions that
48 the election was not conducted in substantial compliance with the provisions of the Electoral Act, 2010 (as amended). By the same token, they also failed to prove that the 1st Respondent did not score the majority of lawful votes cast in the election into Lau Constituency of the Taraba State House of Assembly conducted on 11th April, 2015.
Based on all the above, I am of the considered view that the trial Tribunal properly and appropriately evaluated the evidence of the sole witness before making its finding and holding as it did. It did not just sum up the evidence but based its findings on the facts placed before it. Once the settled principles of appraisal or evaluation of evidence is followed, and notwithstanding the style of writing judgment by the individual Judge, it cannot be said that there was no evaluation of evidence. I am therefore satisfied that the Tribunal was well-guided by the principles guiding evaluation of evidence, in that it considered the totality of the evidence and determined which side weighed heavier than the other before arriving at its decision.
?Additionally, in the final address of Counsel, the Appellants adopted the
49 stance of passing the buck. They made allegations of corruption and non-compliance and retreated, expecting the Respondents to provide the necessary and relevant evidence to establish their case for them. By force of law, the Independent National Electoral Commission (INEC) has the duty of conducting elections. In addition to the constitutional provisions, it is guided by the Electoral Act, 2010 (as amended) and the Election Guidelines and Manual issued for its officials in accordance with the Act. These documents embody all steps necessary to comply with in the conduct of a free, fair and hitch-free election. Thus, a party seeking the nullification of an election must succeed on the strength of his own case and not on the weakness of the respondents’ case. This is so as the failure of the adversary to call evidence will not relieve the party asserting from satisfying the Tribunal by cogent and reliable proof or evidence in support of the petition. See CPC v. INEC (2011) LPELR-8257(SC); DPP v. INEC (2009) 4 NWLR (Pt. 1130) 92; Rotimi v. Faforiji (1999) 6 NWLR (Pt.606) 305; & Okoroji v. Ngwu (1992) 1 NWLR (Pt.263) 113.
?
Furthermore, the Petition before
50 the Tribunal, (specifically at pages 10-22 of the Record) contains allegations which are both civil but mostly felonious and criminal in nature. The Appellants pleaded and made criminal allegations against the conduct of the entire election in paragraphs 12-53 of the Petition. The allegations were quite extensive touching on virtually every aspect of the election. They ranged from over-voting, to non-use of card readers for accreditation, non-accreditation, allotting of votes, non-voting, arbitrary award of scores, inflation of scores, arbitrary accreditation of figures and return of scores without voting, alteration of figures, rigging, falsification of votes, forgery, thuggery, snatching of ballot boxes, stuffing of ballot boxes, barricading roads and refusing voters access to Polling Units, chasing voters away from Polling Units, assault and causing grievous hurt, issuance of death threats and manipulation of the electoral process. By paragraph 53 of the Petition, the Appellants therefore pleaded as follows:
“53. Your petitioners state that apart from the Units specifically mentioned in all the Wards being challenged in this Petition, it shall
51 demonstrate by concrete evidence through the various INEC Forms and documents that most of the figures announced for the 1st and 2nd Respondents are products of fictitious manipulations and allotments of votes without recourse to any electoral rules and guidelines.”
The questions that arise therefore are: did the Appellants actually ‘demonstrate’ and prove these allegations, as they contended they would, to the standard of proof required by law, which in the case of these serious criminal allegations, is proof beyond reasonable doubt? From the state of evidence before the trial Tribunal, were the Appellants able to discharge the burden of proving their allegations of the commission of the litany of crimes itemised against a multitude of persons, beyond reasonable doubt as required by Section 135(1) of the Evidence Act, 2011? See Haruna v. Modibbo (2004) 16 NWLR (Pt. 900) 487 at 542 & 585; Adewale v. Olaifa (2012) 17 NWLR (Pt. 1330) 478 at 515 on the standard of proof in respect of criminal allegations.
?As has been stated earlier in the body of this Judgment, the sole witness for the Appellants was the 1st Appellant, and his evidence spans pages
52 400-422 of the printed Record. However, in spite of the host of innumerable criminal allegations catalogued against the Respondents, the evidence adduced through this witness was disappointingly frail, bogus, weak, puny, pathetic and insubstantial. It completely failed to prove that any of these incidents took place, how much more, to prove same beyond reasonable doubt. Suffice it to say, that when a petitioner decides to embark on making wild criminal allegations, he must also be ready to meet up with the standard of proof in criminal cases to prove his case beyond reasonable doubt. Can the Appellants, in all seriousness, be said to have attained this standard of proof by the nature and quality of evidence adduced through the PW1, who was not there did not see and did not hear? It is clear that they have not, and the allegations contained in the petition remain nothing but wild and spurious allegations. Authorities on this position of the law are legion. See: Danladi Sani Abubakar v. Sani Ali, Appeal No. CA/YL/EPT/TRE/SEN/99/2015 (unreported); Ojo v. Oshe (1995) 5 NWLR (Pt.603) 444 at 452; Atikpekpe v. Joe (1999) 6 NWLR (Pt.607) 428 at pp. 439-440. See also
53 Kingibe v. Maina (2004) ALL FWLR (Pt. 191) 1555 at 1558; Micheal v. Yuoso (2004) ALL FWLR (Pt. 209) 1015; Maikudi v. Musa (2004) ALL FWLR (Pt.230) 1096 at 1111-1112; Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) 416; Dantiye v. Kanya (2009) 4 NWLR (Pt.1130) 13; Ezeanuna v. Onyema (2011) 13 NWLR (Pt. 1263) 36 at 67-70, paras H-A; Eseduwo v. INEC (1999) 3 NWLR (Pt.594) 215; & Wulgo v. Bukar (1999) 3 NWLR (Pt. 596). I therefore agree that the evidence of the Appellants’ lone witness is nothing but hearsay; and his failure to invite his polling agents to give vent to what they saw and heard, spelt doom for the Petition.
?The Appellants have again argued that the burden of proof is on the 3rd Respondent, INEC. Nothing of course could be further than the truth. By virtue of the provisions of Sections 136 and 137 of the Evidence Act, the person who asserts has the onus of proof. In the instant case, all the allegations and assertions were made by the Petitioner. Thus, where a petitioner makes a wide range of allegations of facts against the other party but fails to prove them, then the court or tribunal has the right to throw away his case on those facts. See
54 Ezeanuna v. Onyema (supra) at 69, paras G-H; Kalgo v. Kalgo (1999) 6 NWLR (Pt. 608) 639; & Eboh v. Ogujiofor (1999) 3 NWLR (Pt. 595) 419.
Furthermore, the presumption of correctness of the official acts of the 3rd Respondent is sacrosanct and guaranteed under Section 146 of the Evidence Act. By virtue of this provision, the result of any election declared by the National Independent Electoral Commission is presumed to be correct and authentic. However, such presumption is rebuttable, and the burden is on the party who disputes the correctness and authenticity of the result to lead credible evidence in rebuttal. See Maduabum v. Nwosu (2009) LPELR-4455(CA); Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 193; INEC v. Ray (2004) 14 NWLR (Pt. 892) 92.
?On the issue of the subpoena and the Appellants’ assertion that the 3rd Respondent failed to produce the card reader report even after being subpoenaed by the Tribunal, it is totally correct, as found by the learned Judges of the Tribunal, that the Appellants had other options open to them to exploit in getting access to the documents they needed to prove their Petition. For instance, they could have
55 adduced secondary evidence of them under Sections 97(1) (a) and 98 of the Evidence Act ; or asked the Tribunal to compel the defaulter to produce the documents by an order of committal to prison. However, the Appellants failed to explore these options and so they only have themselves to blame. A party is expected to be diligent, forthright and creative, within the confines of the law, in presenting his case. This position was strongly advocated by the Supreme Court in Buhari v. Obasanjo (2005) All FWLR (Pt.273) 1 at 76, paras C-D.
The Appellants, having woefully failed to substantiate their allegations that the election was invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act, it follows logically that they could not be said to have also proved that the alleged non-compliance was substantial enough to have invalidated the said election. See Section 139(1) of the Electoral Act and Chima v. Ezea (2009) 2 NWLR (Pt. 1125) 263 at 348-349.
I am therefore in full agreement with the learned Judges of the Tribunal that the Appellants failed to successfully prove that the election in Nine (9) out of Ten (10) Wards of
56Lau State Constituency of the Taraba State House of Assembly complained of was not conducted in substantial compliance with the provisions of the Electoral Act, 2010 (as amended). I also agree that the Appellants failed to establish by credible evidence that the 1st Respondent did not score the majority of lawful votes cast in the election under contest. Issues three and four are also thus resolved against the Appellants. I find that the Judgment of the Tribunal is faultless and unimpeachable in law.
In consequence of all the above, I find the Appeal bereft of all merit. It ought to fail, and it fails. It is therefore dismissed in its entirety.
Accordingly, the Judgment of the National Assembly and State Houses of Assembly Election Tribunal Taraba State, delivered on 24th October, 2015, in Petition number EPT/TRS/SHA/12/2015 between Lawan Mohammed Neka & 1 Other v. Joseph Albasu Kunini & 2 Others, is affirmed. I award costs assessed at N50, 000.00 to the 1st and 2nd Respondents, against the Appellants.
Appeal dismissed.
UCHECHUKWU ONYEMENAM, J.C.A.: I read in advance copy of the judgment just delivered by my
57
learned brother JUMMAI HANNATU SANKEY, J.C.A. and I completely agree that the appeal is lacking in merit. It is dismissed.
I abide by the order as to costs.
SAIDU TANKO HUSAINI, J.C.A.: My Lord, Sankey, JCA afforded me with the opportunity to read in draft form the Judgment just delivered. My Lord Sankey, has dealt with all the issues raised in the appeal satisfactorily. I have noting useful to add. I abide by all consequential order as contained in the lead Judgment.
Appearances
Kabir Akingbolu Esq. For Appellant
J. A. Oguche Esq., For 1st Respondent
with him, Sunday Stephen
Esq. and E.B. Kizito, Esq.
E.A. Effiong, Esq. with For 2nd Respondent
him, A.B. Ahmad Esq.
Martin Milkman Esq. with For 3rd Respondent
him Ganki Hassan (Miss).
58
Appearances
Kabir Akingbolu Esq.For Appellant
AND
J. A. Oguche Esq., with him, Sunday Stephen Esq. and E.B. Kizito, Esq. For 1st Respondent
E. A. Effiong, Esq. with him, A. B. Ahmad Esq. For 2nd Respondent
Martin Milkman Esq. with him Ganki Hassan (Miss) For 3rd RespondentFor Respondent
