MR. ENYI O. CHUKWUMA & ANOR V. DEACON CELESTINE IGWE NWORJI & ORS (2011)

MR. ENYI O. CHUKWUMA & ANOR V. DEACON CELESTINE IGWE NWORJI & ORS

(2011)LCN/5000(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 13th day of December, 2011

CA/E/EPT/38/2011

RATIO

ROLE OF A RESPONDENT: THE TRADITIONAL ROLE OF A RESPONDENT IN AN APPEAL

The traditional role of a respondent in an appeal is to defend the decision appealed against. If however he wishes to depart from that role by attacking or challenging the judgment or ruling in any way, he is enjoined to file a cross appeal, since the main purpose of a cross appeal is to correct an error which is standing in the way of a respondent in the main appeal. Where a respondent has not cross appealed, he cannot attack or challenge the decision appealed against. In the circumstance, the brief of the 3rd Respondent is hereby discountenanced. See Obasanjo v. Buhari (2003) 17 NWLR (Pt.850) 510 at 554, Adefulu v. Oyesile (1989) 5 NWLR (Pt. 122) 377, Eliochin (Nig) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47, Lagos City Council v. Ajayi (1970) 1 ALL NLR 291, African Continental Seaways Ltd. V. Nigerian Dredging Roads & General Works Ltd. (1977) SC 235, Imoniyame Holdings Ltd. v. Sonneb Ent. Ltd. (2010) ALL FWLR (Pt 517) 627. PER ADAMU JAURO JCA

ELECTION: WHAT THE CONCEPT OF ELECTION ENTAILS

A convenient starting point is from the elements that constitute an election. The concept of “election” denotes a process constituting of accreditation, voting, collation, recording and all relevant INEC forms and declaration of results. See INEC V. Ray (2004) 14 NWLR (Pt. 892) 92, Kwarra v. Innocent (2009) 1 NWLR (Pt. 1121) 179, APGA V. Ohakim (2009) 4 NWLR (Pt. 1130) 116, Fayemi v. Oni (2010) 17 NWLR (Pt. 1222) 326. PER ADAMU JAURO JCA

PLEADINGS: WHETHER PARTIES ARE BOUND BY THEIR PLEADINGS; EFFECT OF AN UNPLEADED DOCUMENT ADMITTED IN EVIDENCE

It is trite law that parties are bound by their pleadings where a document is specifically pleaded and issues joined on it, a party cannot turn around and tender a different document. A party will not be allowed to shift base and advance a case different from that put across in his pleadings. Evidence at variance with pleadings goes to no issue, and ought to be discountenanced. The document specifically pleaded is Form EC8A (I) for Nweke Ekpuru 009 and the one tendered in evidence as Exhibit ‘P1’ is Form EC8A (I) reflecting Central School Oriuzor 005. Where an unpleaded document is admitted in evidence, it ought to be discountenanced. See Hashidu v. Goje (2003) 15 NWLR (P. 843) 352 Ohairi v. Akabeze (1992) 1 NWLR (pt. 221) 1, INEC v. Ray (supra) Saidu v. Abubakar (2008) 12 NWLR (Pt. 1100) 201, UBN v. Ozigi (1999) 8 NWLR (pt. 615) 495, B.O.N. LTD v. Akintoye (1999) 12 NWLR (pt. 631) 392, Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248. PER ADAMU JAURO JCA

ORAL/DOCUMENTARY EVIDENCE: WHETHER ORAL EVIDENCE CAN BE ALLOWED TO CONTRADICT CONTENTS OF A DOCUMENT

It is also noteworthy to mention that oral evidence cannot be allowed to contradict contents of a document, except where fraud is alleged in the pleadings. See Igboke v. Emordi (2010) 11 NWLR (pt.1204) 1, Obazikwor & ors. V. Obazikwor & ors. (2007) 37 WRN 106. Consequently, Exhibit P1 is hereby discountenanced and is accordingly not the result of Nweke Ekpuru Polling Unit 009. PER ADAMU JAURO JCA

INCONSISTENCIES IN EVIDENCE: ATTITUDE OF THE COURT WHEN NO COGENT REASON ARE ADVANCED FOR THE INCONSISTENCIES IN THE STATEMENT OF A WITNESS WITH THE EVIDENCE GIVEN IN COURT

It is trite that where a witness made a statement before a court which is inconsistent with the evidence he gives in court and no cogent reason were advanced for the inconsistencies, the court should regard his evidence as unreliable and should attract no weight. See Onubogu V. State (1974) I ANLR 5, Dogo v. State (2001) Odu’a Investment Co., Ltd. v. Talabi (1991) 1 NWLR (Pt. 170) 761. PER ADAMU JAURO JCA

JUSTICES:

ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria

A. OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

Between

1. MR. ENYI O. CHUKWUMA
2. ALL NIGERIA PEOPLES PARTY (ANPP) – Appellant(s)

AND

1. DEACON CELESTINE IGWE NWORJI
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)

ADAMU JAURO JCA (Delivering the Leading Judgment): This is an appeal against the judgment of the National and State Houses of Assembly Election Tribunal Ebonyi State, sitting at Abakaliki delivered on 17th October, 2011 in petition number EB/EPT/SHA/1/2011, wherein the tribunal nullified the election of the 1st Appellant.
A brief summary of the facts giving rise to this appeal is hereby made as follows: On the 26th April 2011, the 3rd Respondent (INEC) conducted State House of Assembly elections nationwide, Ebonyi state inclusive. The 1st Appellant and the 1st Respondent were among the candidates that contested the Ebonyi State House of Assembly elections for Ezza North-West State Constituency. Upon the conclusion of the election, the 3rd Respondent (INEC) declared and returned the 1st Appellant as the winner of the election, having polled a total of 7, 428 votes. The 1st Respondent came second with a total of 7, 148 votes. Peeved and upset by the declaration and return of the 1st Appellant as the winner of the election, the 1st and 2nd Respondents challenged same vide a joint petition filed at the National and State Houses of Assembly Election Tribunal Ebonyi State sitting at Abakaliki.
The petition of the 1st and 2nd Respondents dated 11th May, 2011 was filed the same day in the registry of the tribunal. Paragraphs 6, 7 and 8 of the petition captured the grounds upon which the petition is predicated. The said paragraphs are hereby reproduced thus:-
“6. Your petitioners state that they were the duly elected candidate and political party respectively having scored majority of valid votes cast at the said elected but were wrongly and unlawfully not declared winner.
7. Your petitioners aver that their ground for questioning the result of the election was that the election result was invalid and or inconclusive by reason of corrupt practices and non-compliance with the provisions of the Electoral Act 2010 (as amended) and the fact that the 1st Respondent was not duly elected by majority of valid votes cast at the election.
8. Your petitioners aver that the crux of their complaints arose from the 3rd respondent’s refusal or negligence to record the result of the votes cast for your petitioners at two polling booths which fall within their stronghold namely: Nweke Ekpuru (a.k.a. Nweke Okpuru) polling unit (009) Oriuzor Ward of Eza North L.G.A. and Umuekee Hall Polling Unit, 001, Inyere Ward also in the same Ezza North L.G.A.”
See page 2 of the Record of Appeal.
The 1st and 2nd Respondents as petitioners before the tribunal, prayed for the following reliefs in paragraph 32 of the petition, namely:-
“(a) WHEREFORE your petitioners pray that it be determined that the refusal of the 3rd Respondent’s Electoral personnel to record the result of elections in Nweke Ekpuru Polling Unit (009) Oriuzor Ward as counted and announced at the polling booth and non-counting and recording of votes cast in Umuekee Hall Polling Unit (001) Inyere Ward in Ezza North-West State House of Assembly Constituency have rendered the said result purportedly declared by the 3rd Respondent invalid and/or inconclusive for being a violation of the Electoral Act, 2010 (as amended).
(b) That the 1st Petitioner be declared the duly elected member of Ebonyi state House of Assembly, Ezza North-West Constituency, taking into account the votes so far declared in addition to that of Nweke Ekpuru Polling Unit (009) which is 706 votes and votes cast at Umuekee Hall Polling Unit (001) Inyere Ward yet to be counted.
(c) An order that votes as counted at Nweke Ekpuru Polling Booth (009) on 26/04/2011 be recorded for all the political parties.
(d) An order of Tribunal that the votes cast at Umuekee Hall Polling Unit (001) Inyere Ward be counted and recorded for each party in the alternative an order of the Tribunal for a re-election in the said Umuekee Hall Polling Unit (001) Inyere Ward to determine the wishes of the people who put their lives on line to save their votes.”
See page 7 of the Record of Appeal.
Upon the conclusion of pre hearing session, the tribunal commenced hearing in earnest. The petitioners called a total of six witnesses and tendered 7 exhibits, styled ‘P1’ to ‘P7’. The 1st Respondent called a total of 7 witnesses and tendered 7 exhibits marked ‘R1’ to ‘R7’. Upon the close of hearing, written addresses were filed, exchanged and adopted in court.
In its judgment at pages 249 to 250 of the record of appeal, the tribunal held thus:
“Exhibit “P1” is the result sheet for Nweke Ekpuru polling unit 009. It was headed Central School Oriuzor in line with the Notice Board that was wrongly issued by the 3rd respondent to her officials. That result sheet shows that while the 2nd respondent scored 21 votes, the 2nd petitioner scored 706 votes.
Exhibit “P3” is the summary of results for Ezza North West Constituency.
Exhibit “R1,” is the declaration of result of election, i.e. Form EC8E (I). Both exhibits “P3: and “R1” shows that while-the 1st and 2nd respondents polled 7,428 votes, the 1st and 2nd petitioners polled 7,148 votes.
When the scores in exhibit “P1” are added to the scores in exhibit “R1”, the total votes scored are as follows:
(1) 1st and 2nd respondents 7,428 + 21 = 7, 449 votes.
(2) 1st and 2nd Petitioners 7,148 + 706 = 7,854 votes.
Based on the above, the tribunal gave judgment in favour of the 1st Respondent by nullifying the return of the Appellant and declaring the 1st Respondent as the winner of the election.
Aggrieved by the decision of the tribunal, the Appellants challenged same vide a Notice of Appeal dated 26th October, 2011 and filed on 28th October, 2011. The Notice of Appeal was anchored upon nine grounds of appeal. In compliance with the Rules of Court and Election Tribunal and Court Practice Directions 2011, briefs of argument were filed and exchanged. The Appellant’s brief of argument is dated 10th November, 2011 and filed the same date. The Appellants also filed a reply brief to the 1st and 2nd Respondent’s brief. The Appellants Reply brief is dated 18th November, 2011 and filed the same date. The 1st and 2nd Respondents brief is dated 15th November, 2011 and filed on the same date. The 3rd Respondents brief is dated 14th November, 2011 and filed on 15th November 2011.
Mr. Chukwudi C. Okaa leading Miss J. O. Nwankiti for the Appellants adopted and relied on the Appellants Brief and the Reply Brief, in urging the court to allow the appeal and set aside the decision of the tribunal. Learned counsel contended that petitioners filed the petition based on exhibit P1 and the said exhibit was not pleaded in the petition. Learned counsel stated that what was tendered in evidence was the result of Central School Oriuzor and not Nweke Ekpuru polling unit. Learned counsel argued that exhibit P1 was written by a poll Assistant which contravened Section 68 of the Electoral Act 2010 (as amended). Learned counsel urged the court to set aside the decision of the tribunal and confirm the return made by INEC. Mr. P.O. Egwu leading O.P. Onu Esq., for the 1st and 2nd Respondents, adopted and relied on the 1st and 2nd Respondent’s brief in urging the court to dismiss the appeal. Learned counsel urged the court to discountenance the brief of the 3rd Respondent for supporting the appeal, hence deviating from the traditional role of a Respondent. In support, reference was made to Imoniyame Holdings Ltd. v. SONNEB Enterprises Ltd. (2010) ALL FWLR (Pt 517) 627 at 629. Mr. M. Ugwuocha for the 3rd Respondent adopted and relied on the 3rd Respondent’s brief in urging the court to allow the appeal. Learned counsel submitted that exhibit P1 was made by a Poll Assistant and a Poll Assistant is not recognized by the Electoral Act.
The Appellants submitted three issues for determination on page three of the Appellant’s brief. The said issues are hereby reproduced thus:
(i) “Whether from the pleadings and the evidence led the tribunal was right in their decision that election was held at Nweke Ekpuru Unit, that counting was done and that scores of candidates and their parties entered in Form EC8A (I) collated at the ward Collation Centre and constituency Centre Grounds 1, 3, 5.
(ii) Was the tribunal right that the results of Nweke Ekpuru Polling Unit was excluded or re-written by the ward collation officer on the instruction of the electoral officer. Grounds 2, 4, 6, 7 and 8.
(iii) Whether the tribunal was right in computing the final result on the basis of exhibit P1 the Form EC8A (I) result of Central School Oriuzor Unit 009 and declaring the 1st petitioner the winner of the election. Ground 9.”
The 1st and 2nd Respondents on their part also nominated three issues for determination on pages three to four of their brief of argument. The three issues are hereby reproduced thus:
1. “Whether from the pleadings and evidence led by both parties, election was conducted in Nweke Ekpuru Polling Unit in substantial compliance with the Electoral Act, 2010 (as amended) or whether the tribunal below was right in holding that elections took place at Nweke Ekpuru Polling Unit, Oriuzor Ward and that the result emanating therefrom was valid and ought not be excluded.
2. Whether an electoral officer or any INEC official in that regard has the power to exclude and/or reject election result declared at the polling booth by the Presiding Officer and his staff at polling unit on a day of election.
3. Whether the Honourable Tribunal has the power to declare the Petitioner/Respondents elected having scored the highest number of valid votes cast at the election having regard to the unduly excluded result from Nweke Ekpuru Polling Unit (009) Oriuzor Ward, Ezza North-West Constituency, Ebonyi State House of Assembly which was wrongly excluded at the conclusion of elections on 26/4/2011 by the 3rd Respondent.”
The third Respondent on its part identified two issues for determination on page two of the third Respondents brief. The two issues are hereby reproduced as follows:
(a) “Whether in the light of the provisions of the Electoral Act 2010 and the Manual for Election Officials Poll Assistant can take over functions of the presiding officer including signing form EC8A when the presiding officer is indisposed.
(b) Whether in the absence of the vital evidence of the presiding officer, the Electoral officer and the ward collation officer who are necessary witnesses to this petition, the petition could be justly determined.”
I have carefully and meticulously examined the issues for determination nominated by all parties to this appeal. The issues are virtually identical save that they were couched in different wordings. In the circumstance, the three issues for determination as distilled by the Appellants will be adopted in resolving this appeal. The three issues will however be taken together as they are all closely interwoven. However, before considering the issues, a consideration will be made on the 3rd Respondent’s brief with a view to determining whether it should be discountenanced or not.
I have painstakingly studied the brief of the 3rd Respondent. There is no doubt whatsoever that the said brief is definitely and positively in support of the appeal. This is in clear breach of the traditional role of a respondent to an appeal. The traditional role of a respondent in an appeal is to defend the decision appealed against. If however he wishes to depart from that role by attacking or challenging the judgment or ruling in any way, he is enjoined to file a cross appeal, since the main purpose of a cross appeal is to correct an error which is standing in the way of a respondent in the main appeal. Where a respondent has not cross appealed, he cannot attack or challenge the decision appealed against. In the circumstance, the brief of the 3rd Respondent is hereby discountenanced. See Obasanjo v. Buhari (2003) 17 NWLR (Pt.850) 510 at 554, Adefulu v. Oyesile (1989) 5 NWLR (Pt. 122) 377, Eliochin (Nig) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47, Lagos City Council v. Ajayi (1970) 1 ALL NLR 291, African Continental Seaways Ltd. V. Nigerian Dredging Roads & General Works Ltd. (1977) SC 235, Imoniyame Holdings Ltd. v. Sonneb Ent. Ltd. (2010) ALL FWLR (Pt 517) 627.The contention of the Appellant is that there was no election conducted and result declared for Nweke Epkuru Polling Unit (009). The 1st and 2nd Respondents on the other hand contended there was election and result declared. The Appellants contended that the evidential burden is on 1st and 2nd Respondents who asserted in the positive. In support, reference was made to Agagu v. Mimiko (2009) 7 NWLR (Pt 1140) 342 at 431, Ogboru v. Uduaghan (2010) ALL FWLR (pt. 577) 650 at 702 Fayemi v. Oni (2011) ALL FWLR 1 at 50 – 51.
Learned counsel stated that the petitioners tendered a completely different Form EC8A (I) with a different serial number from the one pleaded. Learned counsel referred to list of exhibits on pages 33, 190 and paragraph 12 of deposition on page 11 and stated that what the petitioners pleaded was Form EC8A (I) for Nweke Ekpuru Unit (009). Learned counsel however stated that what was tendered was Form EC8A (I) for Central School Oriuzor Unit (005) with serial number 109089. Learned counsel argued that despite objecting to its admissibility on grounds of having a different polling booth name and serial number from the Form EC8A (I) pleaded on which issues were joined, the tribunal admitted it in evidence as exhibit P1.
Learned counsel contended that the petitioner tendered exhibit P1 with Central School Oriuzor Polling Unit boldly written on it, rather than the result of Nweke Ekpuru which was pleaded. Learned counsel submitted that it is trite law that where a party specifically pleads a document, that person cannot at the trial rely on another document not pleaded in the absence of amendment. In support, reference was made to INEC V. RAY (2004) 14 NWLR (Pt. 829) 92 at 136, OHAIARI V. AKABUEZE (1992) 1 NWLR (Pt. 221). Hashidu v. Goje (2003) 15 NWLR (Pt. 843) 352 at 360 Ojugbue V. Nnubia (1992) 6 SC 227, Onibudo v. Akibu (1982) 2 FNLR 224, Ajayi v. Fisher (1956) 1 FSC 90 at 92, Abdullahi v. Elaho (1993) 1 NWLR (Pt. 268) 171 at 207. Learned counsel urged that exhibit P1 be expunged or discountenanced.
Still on exhibit P1, learned counsel submitted that by virtue of section 132(1) of the Evidence Act Cap. 112, oral evidence is not admissible in proof of or to add to or in contradiction of a written document. Learned counsel posited that where a written document is tendered in court, such a document is the best proof of its contents and no oral evidence will be allowed to discredit or contradict same. In support, reference was made to Obazikwor & Ors v. Obazikwor & Anor (2007) 37 WRN 106. Learned counsel argued that by holding that Exhibit P1 is the result of Nweke Ekpuru polling unit, the tribunal descended into the arena of speculation and it is settled law that judges are not allowed by law to speculate or conjure on possible facts. In support, reference was made to Adisa v. State (1991) 1 NWLR (Pt. 168) 490 at 500 Abu v. state (2008) ALL FWLR (Pt. 447) 126 at 139.
Learned counsel further submitted that the decision that exhibit P1 is the result of Nweke Ekpuru (009) is not only speculative but perverse. In support, reference was made to Adimora v. Ajufo & ors, (1998) 3 NWLR (Pt 320) 250 at 2601, Nwokedi v. Orakposim (1992) 4 NWLR (Pt. 3012) 643. Learned counsel further argued that exhibit P1 being a public document ought to have been certified. In support, reference was made to Araka v. Egbue (2003) 39 WRN 1 at 15, Oguma Associates companies Nig Ltd, v. I.B.W.A. Ltd, (1998) 1 NWLR (pt. 73) 658 at 669, Abowaba v. Adesina (1946) WACA 18 at 20 and Section 111 of the Evidence Act.
Learned counsel contended that PW1 the 1st Petitioner testified that there was election at Nweke Ekpuru and the Presiding officer who took ill directed Poll Assistant to fill and sign the Form EC8A (I). Learned counsel argued that under cross examination, PW1 admitted that he was not physically present at Nweke Ekpuru and therefore not an eye witness. Learned counsel submitted that the filling and signing of exhibit P1 by Poll Assistant not Presiding Officer or Poll clerk violates S.63(1) and (2) of the Electoral Act 2010 (as amended), hence rendering it invalid. In support, reference was made to Obioha v. Dafe (1994) 2 NWLR (pt. 325) 157, Amaechi v. INEC (2009) 10 WRN 1 at 115 and 118, Learned counsel submitted that the word “shall’ used in S.63 is to express a command or exhortation or what is legally mandatory. In support, reference was made to Achineke v. Isagba (1988) 4 NWLR (Pt. 89) 411, Ifezue v. Mbadugha (1984) 1 SCNLR 427. Learned counsel argued that a poll Assistant has no authority under the Electoral Act to conduct an election in a polling unit as S. 63(5) of Act provided that in the absence of the Presiding Officer, the poll Clerk shall enjoy and exercise the powers of the Presiding Officer.
Learned counsel submitted that the concept of election denotes a process of accreditation, voting, collation, recording of results on all relevant forms and declaration of results. In support, reference was made to INEC V. RAY (2004) 14 NWLR (pt. 892) 92 at 123, Igodo v. Owulo (1999) 5 NWLR (Pt.149) 61 at 77, 78, 79. Learned counsel contended that the petitioners who alleged that election took place in Nweke Ekpuru did not call any voter who voted in Nweke Ekpuru nor tendered voters register to prove that accreditation took place. In support, reference was made to Remy v Sunday (1999)8 NWLR (pt 613) 92. Learned counsel further argued that neither the result of Nweke Ekpuru which was said to have been submitted nor the collated result which PW4 claimed petitioners had 7,854 and Respondents 7,449 votes, were tendered before the Tribunal.
Learned counsel submitted that the testimony of PW1 and PW4 amounts to hearsay as both of them were not at Nweke Ekpuru. Learned counsel stated that PW4 admitted being at constituency collation centre. Learned counsel submitted that pW2 is not a witness of truth, as he stated in exhibit P5 written by him that the presiding Officer requested to fill Form EC8A(I) because the presiding Officer doesn’t know how to fill the form. In an answer to a question, the same witness learned counsel posited on page 196 of the record stated that it is not correct that the Presiding Officer doesn’t know how to fill the Form.
Learned counsel stated that the witness admitted that it was wrong for him to sign and fill the form EC8A (I). Learned counsel further stated that PW2 under cross examination further stated that he can’t remember when accreditation started, so also when voting started and ended and when results were announced. Learned counsel posited that RW2 APGA polling agent at Nweke Ekpuru and RW5 ANPP polling agent confirmed that there was no counting of votes or declaration of results at Nweke Ekpuru. Learned counsel further submitted that the evidence of RW2 and RW5 was further confirmed by RW1.
Learned counsel urged the court to set aside the perverse and speculative findings of the tribunal and allow the appeal. The 1st and 2nd Respondents on their part contended that election was duly conducted in Nweke Ekpuru polling unit 009, and result declared. Learned Counsel for the 1st and 2nd Respondents stated that the election result of the polling unit (Nweke Ekpuru) was duly pleaded and tendered in evidence. Learned counsel stated that the result for Nweke Ekpuru polling unit (009), exhibit P1 with serial number 2132109089 has Central School Oriuzor Code 05 written on it, while Form EC8A(I) result for Central School, Oriuzor Polling Unit (005) Exhibit P2 has serial number 2132109085. Learned counsel contended that the confusion created by the two results was fully explained by the petitioner’s witnesses. Learned counsel contended that after collation at Oriuzor Ward, the result of Nweke Ekpuru was removed from the collated result at the Constituency Collation Centre and reference was made to the evidence of PW4. Learned counsel submitted that RW5 stated that there were two INEC staff at Nweke Ekpuru polling Unit, while RW2 stated that there was accreditation before voting commenced in the same polling unit. Learned counsel submitted that the evidence of RW5 and RW2 amounted to an admission that election was conducted in Nweke Ekpuru and admitted facts need no further proof. In support, reference was made to Oseni v. Banjulu (2010) ALL FWLR (Pt. 511) 813 at 817.
On the issue of poll Assistant taking over the role of a Presiding Officer in violation of Section 61(5) of the Electoral Act, learned counsel relied on Section 139(2) of the Act to the effect that election cannot be questioned by reason of defect of title of the officer conducting it. In support, reference was made to Okechukwu v. Onyegbu (2010) ALL FWLR (Pt. 524) 117, and Section 167 and 168 of the Evidence Act. Learned counsel stated that the 3rd Respondent never denied that PW2 had authority to act on their behalf, nor denied exhibit P1. Learned counsel argued that failure to deny or controvert by the 3rd Respondent amounts to an admission of the facts as true and correct. In support, reference was made to Waziri v. Ali (2009) ALL FWLR (Pt. 465) 1712 at 1716, Alintah v. Ogodo (2009) ALL FWLR (Pt. 470) 793 at 797, Adeleke v. Oyo State House of Assembly (2007) ALL FWLR (Pt. 345) 211 at 241.
Learned counsel submitted that an Electoral Officer or any other INEC official lacks the power to exclude or reject a result duly returned by INEC staff after declaring same in the polling unit. In support, reference was made to Section 155 of the Act and the case of Balonwu V. Ikpeazu (2005) 13 NWLR (pt 942) 479. On the lack of Certification on exhibit P1, learned counsel submitted that it is an original of a public document and therefore needs no certification. In support, reference was made to Section 85 and 86 of the Evidence Act. Learned counsel submitted that the election in Nweke Ekpuru polling unit was free and fair and Exhibit P1 was the result of the election. Learned counsel argued that the tribunal was right in adding the scores as contained in exhibit ‘P1’ to parties before determining the winner of the election. In conclusion, learned counsel urged the court to dismiss the appeal.
In a short reply on points of law, learned counsel submitted that Exhibit P2 tendered was dumped on the tribunal as there was no evidence on record as to the part of the petitioners case it was being tendered. Learned counsel argued that the explanation by counsel in his brief is not evidence, as counsel address no matter how brilliant, is not a substitute for evidence. In support, reference was made to Egba v. Appah (2005) 10 NWLR (Pt. 934) 464, Terab v. Lawan (1992) 3 NWLR (Pt. 231) 569. Yoye v. Olubode (1974) 1 ANLR (pt 2) 118. Learned counsel submitted that Section 155 of the Electoral Act has no application as to who shall conduct election in a polling unit and further reference was made to sections 63(1) – (4), 61, 27(1) and 65 of the Electoral Act.
Learned counsel contended that the case of Balonwu v. Ikpeazu (supra) is distinguishable from the case at hand and that it is only final declaration and return that is subject to review by tribunal. In support, reference was made to S.68 (1) and 27(1) of the Electoral Act. On Exhibit P1, learned counsel further submitted that evidence which is contrary to pleadings should never be admitted. In support, reference was made to N.I.P.C. LTD. v. Thompson Organisation Ltd. (1969) NMLR 99 at 144, Emegokwue v. Okadigbo (1973) ANLR (reprint) 314, Learned counsel argued that Exhibit P1 cannot be the result of Nweke Ekpuru and no result of Nweke Ekpuru as pleaded and listed was before the Tribunal. In concluding, learned counsel urged the court to allow the appeal.
The narrow compass within which this appeal oscillates is on Nweke Ekpuru polling unit code 009 of Oriuzor ward. The contention of the Appellants is that there was no election and no results declared for Nweke Ekpuru Polling Unit 009. The 1st and 2nd Respondents on the other hand are contending that there was a free and fair election in the polling unit and result of the election declared. The question begging for an answer towards resolving this appeal is fundamentally whether there was an election and result declared in Nweke Ekpuru or not. The 1st and 2nd Respondent’s witnesses for Nweke Ekpuru are PW1 to PW4, while the Appellants called RW1, RW3, RW5 and the 1st Appellant testified as RW7.
A convenient starting point is from the elements that constitute an election. The concept of “election” denotes a process constituting of accreditation, voting, collation, recording and all relevant INEC forms and declaration of results. See INEC V. Ray (2004) 14 NWLR (Pt. 892) 92, Kwarra v. Innocent (2009) 1 NWLR (Pt. 1121) 179, APGA V. Ohakim (2009) 4 NWLR (Pt. 1130) 116, Fayemi v. Oni (2010) 17 NWLR (Pt. 1222) 326. The 1st and 2nd Respondent’s contention was that the election was freely conducted in Nweke Ekpuru and result announced and declared which they tendered as exhibit P1.
The 1st and 2nd Respondents as petitioners pleaded Form EC8A (I) for Nweke Ekpuru polling Unit 009 and Central School Oriuzor 005. See pages 11, 33 and 190 of the record. The 1st and 2nd Respondents contended that exhibit P1 is the Form EC8A (I) for Nweke Ekpuru 009. I have examined exhibit P1, the polling unit reflected on it is “Central School Oriuzor 005” of Oriuzor Ward, Ezza North Local Government Area of Ebonyi State. The 1st and 2nd Respondents as petitioners pleaded Form EC8A (I) for Nweke Ekpuru 009. It is trite law that parties are bound by their pleadings where a document is specifically pleaded and issues joined on it, a party cannot turn around and tender a different document. A party will not be allowed to shift base and advance a case different from that put across in his pleadings. Evidence at variance with pleadings goes to no issue, and ought to be discountenanced. The document specifically pleaded is Form EC8A (I) for Nweke Ekpuru 009 and the one tendered in evidence as Exhibit ‘P1’ is Form EC8A (I) reflecting Central School Oriuzor 005. Where an unpleaded document is admitted in evidence, it ought to be discountenanced. See Hashidu v. Goje (2003) 15 NWLR (P. 843) 352 Ohairi v. Akabeze (1992) 1 NWLR (pt. 221) 1, INEC v. Ray (supra) Saidu v. Abubakar (2008) 12 NWLR (Pt. 1100) 201, UBN v. Ozigi (1999) 8 NWLR (pt. 615) 495, B.O.N. LTD v. Akintoye (1999) 12 NWLR (pt. 631) 392, Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248. It is also noteworthy to mention that oral evidence cannot be allowed to contradict contents of a document, except where fraud is alleged in the pleadings. See Igboke v. Emordi (2010) 11 NWLR (pt.1204) 1, Obazikwor & ors. V. Obazikwor & ors. (2007) 37 WRN 106. Consequently, Exhibit P1 is hereby discountenanced and is accordingly not the result of Nweke Ekpuru Polling Unit 009.
The petitioners as earlier stated called PW1 to PW4 in respect of Nweke Ekpuru polling Unit. PW1 and PW4 were not at the polling unit throughout the period of the election. RW2 and RW5 on the other hand stated that there was no result declared at the polling station on the day of the election. RW1 confirmed the evidence as given by RW2 and RW5. Not a single voter was invited to state that he voted at the polling unit on the day of the election and neither was any voters register tendered to confirm accreditation. The purported ward collated result containing the result of Nweke Ekpuru poling unit 009 was also not tendered in evidence, to confirm the earlier collation alleged.
The evidence of PW2 was battered and rendered worthless. This is so inview of the conflicting reasons he gave for filling and signing exhibit P1 as a poll Assistant, instead of Presiding Officer or Poll Clerk whom by Section 63 of the Act are vested with such a responsibility. In exhibit P5, the witness stated that the presiding Officer, Mohammed Salihu asked him to fill and sign the result form because the Presiding Officer doesn’t know how to fill the form. Under cross examination on page 196 of the record, the witness stated thus:
“It is not correct that Salihu Mohammed requested me to fill and sign Form EC8A (i) for Nweke Ekpuru polling unit because he did not know how to fill the form.”
It is trite that where a witness made a statement before a court which is inconsistent with the evidence he gives in court and no cogent reason were advanced for the inconsistencies, the court should regard his evidence as unreliable and should attract no weight. See Onubogu V. State (1974) I ANLR 5, Dogo v. State (2001) Odu’a Investment Co., Ltd. v. Talabi (1991) 1 NWLR (Pt. 170) 761.
On the whole, there being no result for Nweke Ekpuru Polling Unit 009. The 1st and 2nd Respondents have failed to discharge the evidential burden on them to the effect that election was conducted in Nweke Ekpuru polling unit 009. The tribunal was wrong in its decision that election was held at Nweke Ekpuru polling Unit 009 and result entered in Form EC8A(1). There was therefore no basis of computing or adding the scores in Exhibit ‘P1’ bearing “Central School Oriuzor 005” as the result of “Nweke Ekpuru Polling Unit 009” on the final result.
Consequent upon the foregoing, all the issues for determination are hereby resolved in favour of the Appellants. The appeal herein is therefore meritorious and is hereby allowed. The judgment of the tribunal delivered on 17th October, 2011 in Petition Number EB/EPT/SHA/1/2011 nullifying the election of the 1st Appellant and declaring the 1st Respondent as the winner of the election is hereby set aside. An order is hereby made affirming the declaration and return of the 1st Appellant as the winner of the election for Ezza North West State Constituency, Ebonyi State. There will be no order as to costs.