MRS ONYIDO EKWUTOSI UCHECHUKWU & ANOR. v. BARR UZAMA SIMON OKPALAKE & ORS. (2010)

MRS ONYIDO EKWUTOSI UCHECHUKWU & ANOR. v. BARR UZAMA SIMON OKPALAKE & ORS.

(2010)LCN/3993(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 21st day of July, 2010

CA/E/EPT/50/2008.

RATIO

NON-JOINDER OF ELECTORAL OFFICERS: EFFECT OF THE NON JOINDER OF AN ELECTORAL OFFICER, OR PRESIDING OFFICER OR RETURNING OFFICER IN AN ELECTION PETITION UNDER THE ELECTORAL ACT, WHO WAS SHOWN TO HAVE ACTED AS AN AGENT OF THE ELECTORAL COMMISSION, AS A NECESSARY PARTY TO THE PETITION ON THE JURISDICTION OF THE TRIBUNAL TO ENTERTAIN, AND DETERMINE THE PETITION

…the present electoral law applicable now, that is to say the Electoral Act 2006, brought a departure from the old position highlighted supra. This is because Section 144 (2) of the Electoral Act 2006 introduced a proviso which was not in Section 132 of the Electoral Act 2002. The proviso in the current Electoral Act 2006 is to the effect that where an electoral officer, or Presiding Officer or Returning Officer in an election petition under the Electoral Act is shown to have acted as an agent of the Electoral Commission, his non joinder will not on its own operate to void the petition, provided the Electoral Commission is made a party in the petition. See Buhari vs INEC & Ors. (2008) 4 NWLR (Pt 1078) 546. But still, even under the new dispensation where a necessary party to a petition is omitted to be joined as a party, the tribunal still lacks jurisdiction to entertain, and determine the petition, as the failure to join such necessary party is fatal to the action and is not curable. PER AMIRU SANUSI, J.C.A.

NECESSARY PARTY: WHO IS A NECESSARY PARTY

A necessary party is defined as one who is not only interested in the subject matter of the proceedings but also who in his or her absence, the proceedings could not be fairly dealt with. PER AMIRU SANUSI, J.C.A.

JOINDER OF PARTY: WHETHER WHERE ELECTORAL OFFICERS ARE ALLEGED TO HAVE CONNIVED WITH OTHER PARTIES’ CANDIDATE TO PERPETRATE SOME CRIMINAL ACTIVITIES OR ELECTORAL PRACTICES THEY MUST BE JOINED AS NECESSARY PARTIES IN THE PETITIONERS’ PETITION

To my mind, a careful and calm consideration of the provision of Section 144(2) the Act leaves one with the impression that the provision only contemplates a situation where the official is simply shown to have acted as an agent of the Commission simpliciter, in which case, as I said supra, his non joinder will not on its own operate to void the petition once the Commission or to put it more explicitly, INEC, is made a party to the petition. This perhaps can be said to be restrictive, or in other words to be limited, to a situation where there is “principal and agent relationship” between the Commission and the Electoral Officer concerned. I do not think, it will cover or extend to a situation where the act of the official transcend on some acts of the official where for example he is alleged to have connived with other parties candidate to perpetrate some criminal activities or electoral practices as in this instance case, where the petitioners alleged they connived with some PDP chieftains to engage in commission of electoral offences or malpractices. In such situation, it is my opinion, that they are necessary parties who must be joined in the petitioners’ petition. In the instant case, it is my opinion that the allegations made in the petition of the petitioners against supervisory Presiding Officers and Presiding Officers are of commission of heinous crimes such as fabrication of results, stealing of ballot boxes and other corrupt practices. Such allegations in my view, are of very serious nature which makes it imperative on the petitioners to include them as respondents in their petition in order to give them opportunities to answer or respond to such serious allegations. They are such that the Commission which was made a party could answer them adequately on their behalf. The allegations were directed against the Supervisory Presiding Officers and Presiding Officers who were in charge of the polling units in the constituency hence they ought to have been made parties. PER AMIRU SANUSI, J.C.A.

NON-COMPLIANCE WITH ELECTORAL ACT: BURDEN PLACED ON THE PETITIONER WHERE HE NON COMPLIANCE WITH ELECTORAL ACT, THE FOUNDATION OF HIS PETITION

ALLEGATION OF CRIMINAL OFFENCES: THE STANDARD OF PROOF REQUIRED WHERE ALLEGATIONS MADE BY THE PETITIONER BORDER ON CRIMINAL OFFENCE

…where the allegations made by the petitioner border on criminal offence or offences, the standard of proof of such criminal act(s) or electoral offences is proof beyond reasonable doubt. PER AMIRU SANUSI, J.C.A.

EVALUATION OF EVIDENCE: CIRCUMSTANCE UNDER WHICH AN APPELLATE COURT WILL INTERFERE WITH THE EVALUATION OF EVIDENCE DONE BY THE TRIAL COURT OR TRIBUNAL

It is trite law that it is within the province of a tribunal or court to consider and evaluate the evidence adduced before it by parties. It is only where such evaluation is lacking or that it was improperly done by the trial court or tribunal, that this court can come in to interfere or disturb the findings of trial court or tribunal. PER AMIRU SANUSI, J.C.A.

JUSTICES

AMIRU SANUSI Justice of The Court of Appeal of Nigeria

OLUKAYODE ARIWOOLA Justice of The Court of Appeal of Nigeria

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

Between

1. MRS ONYIDO EKWUTOSI UCHECHUKWU

2. ALL NIGERIAN PEOPLES (ANPP) – Appellant(s)

AND

1. BARR UZAMA SIMON OKPALAKE

2. PEOPLES DEMOCRATIC PARTY

3. INDEPENDENT NATIONAL ELECTORAL COMMISSION

4. THE ELECTORAL OFFICER, IHIALA L.G.A

5. THE RETURNING OFFICER, IHIALA L.G.A

6. OKIJA WARD 1 RETURNING OFFICER

7. OKIJA WARD 2 RETURNING OFFICER

8. OKIJA WARD 3 RETURNING OFFICER

9. OKIJA WARD 4 RETURNING OFFICER

10. OKIJA WARD 5 RETURNING OFFICER

11. AZIA WARD RETURNING OFFICER

12. MBOSI WARD RETURNING

13. ORSUMOGHU WARD RETURNING OFFICER

14. ISSEKE WARD RETURNING OFFICER

15. LILU WARD RETURNING OFFICER

16. UBULUISIZOR WARD RETURNING OFFICER – Respondent(s)

AMIRU SANUSI, J.C.A.(Delivering the Leading Judgment):This is an appeal against the judgment of the National Assembly/Governorship and Legislative Houses Election Tribunal, Awka, Anambra State (hereinafter referred to as (“the Tribunal”) delivered on the 14th day of May 2008. The 1st appellant herein contested election into the Anambra State House of Assembly on the platform of the All Nigerian Peoples Party (A.N.P.P). The election was held on the 14th day of April 2007.

The 1st respondent also contested the same election on the ticket of Peoples Democratic Party (P.D.P). Both the 1st appellant and the 1st Respondent contested the said election as members of the House of Assembly of Anambra State for the Ihiala II Constituency. The 2nd appellant herein and the 2nd respondents were the two registered political parties which sponsored the 1st appellant and 1st respondent respectively. The third respondent is the statutory body which conducted the elections with the assistance of 4th to 16th respondents who are its officials. At the end of the election, the 1st respondent was declared and returned winner of the election by the 5th Respondent, its Returning Officer.

After the declaration of results of the election by the 5th respondent in favour of the 1st respondent, the two appellants herein became dissatisfied with the declaration and return of the 1st respondent as the said winner of the election by scoring majority of lawful votes cast at the election, hence they filed their joint petition at the tribunal on 11th May 2007. The grounds upon which the petitioners now appellants presented the petition as contained in Paragraph 8 of their petition are adumbrated below –

1. That the 1st respondent was not elected with the majority of lawful votes cast at the election held on 14/4/2007 not having polled the highest number of majority of the lawful votes cast at the said election.

2. That the 3rd to 16th respondents should not have duly returned or declared, the 1st respondent as the winner of the said election.

3. The election or return of the 1st Respondent is invalid by reason of corrupt practices and non compliance with the provisions of the Electoral Act 2006.

4. The 3rd to 16th Respondents unlawfully excluded the valid votes cast for your petitioners in determining the winner of the election.

Upon the above mentioned grounds of the petitioners’ petition, the petitioners sought the under-listed reliefs from the tribunal, namely –

(a) A declaration that the said 1st Respondent was not duly elected or returned and should not have been declared as duly returned or elected by the 3rd to 16th Respondents

(b) A declaration that the 1st petitioner is validly and duly elected or returned into the House of Assembly election for Ihiala II Constituency, having scored or polled the highest number of lawful votes cast at the said election of 14th April 2007. The Appellants claimed in the ALTERNATIVE

(c) A declaration that the election conducted for the Anambra State House of Assembly for Ihiala II Constituency is declared null and void for substantial rigging and corrupt practices which marred the election

(d) An order directing the 3rd Respondent to conduct a fresh election for the Anambra State House of Assembly for Ihiala II Constituency.

After filing and exchanging of pleadings, pre trial conference was held by the tribunal. Later hearing of the petition commenced in earnest.

The appellants called eight witnesses at the trial including the 1st petitioner/appellant herein, and tendered several documentary exhibits. On their part, the 1st and 2nd Respondents called three witnesses and also tendered several documentary exhibits. The 3rd to 16th Respondents called one witness, the Local Government Electoral Officer i.e. the 4th Respondent herein, and through him several documentary/electoral documents were also tendered in evidence. At the conclusion of and adoption addresses by learned counsel, the tribunal delivered its considered judgment on 14/5/2008 wherein, the joint petition of the two petitioners now appellants, was dismissed in its entirety.

Aggrieved by the decision of the tribunal dismissing their petition, the two petitioners appealed to this court vide their Notice of Appeal dated 30th May 2008 which contained six grounds of appeal but with leave of this court, the original notice of appeal was amended bringing about the increase of number of grounds of appeal by one in the Amended Notice of Appeal to make them seven instead of six grounds of appeal.

In keeping with the rules and procedure applicable in this court, parties filed and exchanged briefs of argument. The Appellants herein in his Amended Brief of Argument dated 23/1/2009 but filed on 25/3/2010 raised four issues for the determination of this appeal which are set out hereunder –

(a) Whether the tribunal misconceived the case of the parties (Grounds 1, 2, 4 & 5)

(b) Whether the non-evaluation by the court result sheets of the petitioners occasioned a miscarriage of justice (Ground 3)

(c) Whether the tribunal is bound by its finding of facts in Petition No. EPT/AN/SAE/47/2007. Barrister C. Ejezie & Anor vs Simon Ohajianya & 13 Ors (Ground 6)

(d) Whether the petition is incompetent for non-joinder of some officers of Independent National Electoral Commission. (Ground 7)

The 1st and 2nd Respondents who amended their brief of arguments twice finally relied on their Further Amended Brief of Argument dated 29/6/2009 but deemed filed on 18/12/2009 vide a Motion on Notice granted filed on that same 18/12/2009. Therein, two issues were distilled for the determination of this appeal as reproduced below –

1) Was the court below right when it held that the non-joinder of presiding officers and Supervisory Presiding Officers rendered the petition defective and in so holding by referring to the case of Nwankwo vs YarAdua CA/A/EP/6/2007 (unreported) delivered on 30/9/2007 and Clarence Olafemi vs Ben Ayo CA/A/281/2008 in which it was held that such non-joinder was fatal to the petition?

2) Whether in all circumstances of this case the learned trial tribunal was right in dismissing the Petition filed by the herein Appellants.

On their part, the 3rd to 16th respondents filed their joint brief of argument on 25/7/2008 dated same date. Therein, they also raised two issues for determination as follows –

(i) Whether the Honourable tribunal misconceived the case of the parties and or improperly evaluated the evidence of the witnesses to the parties in determining the Petition,

(ii) Whether the Honourable tribunal is bound by its findings of facts in Petition No. EP/AN/SAE/47/2007 between Barrister CO. Ejezie & Anor vs Simeon Ohajianya & 13 others.

Issue D in the appellants brief of argument on non-joinder of parties tally with Issue No. (1) in the brief of 1st and 2nd respondents. Issues (A) (B) and (C) in the Appellants brief can be said to have subsumed by Issue (ii) in the 1st and 2nd Respondents Brief while the two issues raised in the brief of 3rd to 16th Respondent as they all relate to evaluation of evidence or proof.

Sequel to that, I choose to be guided by the Issues raised in the brief of 1st and 2nd respondents in determining this appeal in view of their elegance and in doing so, I shall first of all consider the Issue No. 1, dealing with non joinder of parties which more-or-less touches on the competence of the petition, before considering the other issue if need be.

On this issue of non joinder of some Senior presiding officers and presiding officers, the appellants’ counsel submitted that the tribunal was in error when it held that as petitioners they did not plead that the presiding officers were agents of INEC as provided in Section 144 (2) of the Electoral Act 2006. He referred to paragraph 9 (3) of the petition where according to the learned counsel for the Appellant provided adequate plea that the presiding officer, supervisory Presiding Officers, Polling Assistants and Ward Returning officers were agents, adding that none of the respondents denied such assertions. He submitted that by Section 30 of Electoral Act 2006, INEC is empowered to appoint its agents and designate them for the purpose of the election. Learned appellants’ counsel while relying on the provisions of Section 144 (2) of the Electoral Act, also cited the decisions of this court in Nwankwo vs YarAdua No. CA/A/EP/6/2007 (unreported) and Clarence Olayemi vs Ben Ayo in (Unreported) Appeal No. CA/A/28/2007, where Section 144(2) of the Electoral Act 2006 was interpreted to suggest that the petitioner must plead that the presiding officer, Supervisors etc must be pleaded in the petition to be agents of INEC in order not to be joined. He said the tribunal was wrong in such holding in view of the fact that he pleaded that they were agents. The learned counsel for the appellants maintained that even failure to join the presiding officers did not render the petition incompetent. See Egolum vs Obasanjo (1999) 7 NWLR (Pt 611) 355. He urged that this court should hold that their non joinder does not void the petition. He further relied on the decision of Kamil vs INEC (2000) 1 NWLR (Pt 1174).

In his response to the above submissions of the appellants’ counsel, the learned senior counsel for the 1st and 2nd Respondents submitted that the allegations made against the Supervisory Presiding Officers and the Presiding Officers by the petitioners border on criminality such as illegal allocation of votes to some candidates in polling booths where there was no election held, stealing of ballot boxes and fabrication of figures by the Supervisor Presiding Officers, Returning Officers and Electoral Officers who also massively rigged the election by filing result sheets with fabricated figures. He said the tribunal was therefore right in holding that various allegations of malpractices, corrupt practices etc were leveled against them in virtually all the units. He said the tribunal was right in holding that failure to join such officers as respondents to defend those allegations is fatal to the petition. He said since the allegations border on corrupt practices and other criminal offences they ought to have been joined as parties.

It is worthy of note, that in their petition the petitioner leveled some serious allegations against some supervisory Presiding Officers, Presiding Officers etc. For instance, in some Paragraphs it was alleged that after the close of voting, voters were counted and recorded in Form EC8 (A) (1) and signed by candidates and presiding officer and polling agents, these officers simply added up figures which are different from lawful or actual votes cast at the polling unit and thereafter declared false results in favour of the 1st respondent. There are other such allegations in Paragraphs 6, 9 and 11 of the Petition made against the Supervisory Presiding Officer and Presiding Officers bordering on non distribution of result sheets, electoral materials and falsification of results and other corrupt practices especially at Okija Wards 3 and 4 etc. There is no gain saying that the conduct of the presiding officers and Supervisory Officer were called to question. The question to ask is “Must they be joined as Respondents to the petition in order to make the petition competent”? In order to answer this question, I think it is pertinent to examine the provisions of Section 144(2) of the Electoral Act 2006 which provides thus –

“The person whose election is complained of is in this Act, referred to as the Respondent, but if the petitioner complained of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a Respondent in the election petition in his or her official status as a necessary party.

PROVIDED that where such officer or person is shown to have acted as an agent of the Commission, his non joinder as aforesaid will not on its own operate to void the petition if the Commission is made a Party”.

Now as could be discerned from Paragraphs 5, 6, 9(b) (d) (e) of the petition, the petitioners accused the Supervisory Presiding Officers and Presiding Officers of some criminal act relating to fraud, rigging of the election by allocating scores of votes to candidates in some polling booths where no election was conducted or stealing of ballot boxes and fabrication of figures at the election and in massive rigging in some wards and even taking results sheets to the residence of a named PDP chieftain where figures were fabricated and other corrupt practices/acts.

There is no doubt that in the instant petition, not a single supervisory Presiding Officer or Presiding Officer was made a party to the Petition by the Petitioners, despite the catalogue of criminal allegations or accusations made against them. Generally speaking, the law is that, where a petitioner complains of the conduct of an electoral officer, a presiding officer, a returning officer or any other person who took part in the conduct of an election, such officer or person as the case may be, or that other person shall for the purpose of the law be deemed to be a respondent and shall be joined in the election petition as a necessary party. This was the position in the old dispensation governed by the Electoral Act 2002. See for instant the case of Egolum vs Obasanjo (1999) 7 NWLR (Pt 661) 355 where allegation of fraud and other electoral offences were made against some electoral officers but they were not made parties or joined as parties to the election petition and the Supreme Court per Belgore JSC (as he then was) held as follows: “The principle of our laws is that no person shall be guilty without being given the opportunity to defend himself. Every person against whom an allegation is made, must be and confronted with that allegation so that he can offer his defence………. The petitioner who complains that an Electoral Officer, a Presiding Officer, a Returning Officer or any other person is involved in the election by conduct as initiated.

The election must presume that officer as a necessary party and must make him a party…………”

Many decided authorities abound which were decided under Section 132 of the old Electoral Act 2002 where this court decided that the joinder of an electoral officer against whom there is a complaint of his conduct in an election is not at the discretion of the petitioner. The moment a petitioner complains of the conduct of such official of Electoral Commission or any person, the petitioner is duty bound to join such officer and if he fails to do so, that petition is bound to fail as the non joinder of such person renders it incompetent and by extension, the tribunal is robbed of jurisdiction to hear and determine or try such allegations against the parties not before it. See the cases of Kallamu vs Gurin (2003) 16 NWLR (Pt 847) 493 at 502; Obasanjo vs Yusuf (2004) 9 NWLR (Pt 887) 14, Akpokinavo vs Ages (2004) 10 NWLR (P881) 394, Kalu vs Uzor (2004) 12 NWLR (Pt 886).

However, the present electoral law applicable now, that is to say the Electoral Act 2006, brought a departure from the old position highlighted supra. This is because Section 144 (2) of the Electoral Act 2006 introduced a proviso which was not in Section 132 of the Electoral Act 2002. The proviso in the current Electoral Act 2006 is to the effect that where an electoral officer, or Presiding Officer or Returning Officer in an election petition under the Electoral Act is shown to have acted as an agent of the Electoral Commission, his non joinder will not on its own operate to void the petition, provided the Electoral Commission is made a party in the petition. See Buhari vs INEC & Ors. (2008) 4 NWLR (Pt 1078) 546. But still, even under the new dispensation where a necessary party to a petition is omitted to be joined as a party, the tribunal still lacks jurisdiction to entertain, and determine the petition, as the failure to join such necessary party is fatal to the action and is not curable. See Tafida vs Bafarawa (1999) 4 NWLR (Pt 597) 70. A necessary party is defined as one who is not only interested in the subject matter of the proceedings but also who in his or her absence, the proceedings could not be fairly dealt with. Chief Abusi David Green vs Chief Dr E.T Green (1987) 3 NWLR (Pt. 611) 480 or (2001) 48 WRN 90.

In the instant case, it is my opinion that the allegations made in the petition of the petitioners against supervisory Presiding Officers and Presiding Officers are of commission of heinous crimes such as fabrication of results, stealing of ballot boxes and other corrupt practices. Such allegations in my view, are of very serious nature which makes it imperative on the petitioners to include them as respondents in their petition in order to give them opportunities to answer or respond to such serious allegations. They are such that the Commission which was made a party could answer them adequately on their behalf. The allegations were directed against the Supervisory Presiding Officers and Presiding Officers who were in charge of the polling units in the constituency hence they ought to have been made parties. See Nwoke vs Ebeogu (1999) 6 NWLR (Pt. 606) 247 at 258. In the case of Kallamu vs Gurin (2003) 16 NWLR (Pt 847) 493 the appellant filed an election petition challenging the return and declaration of the 1st respondent as the duly elected member of the House of Representatives of Song/Fufure Constituency. The 1st and 5th Respondent filed a Preliminary Objection challenging the competence of the petition and the jurisdiction of the tribunal to entertain and determine such petition on the ground that necessary parties were not joined as parties to the petition especially the presiding officer. The tribunal upheld the preliminary objection and held that the Presiding Officers were necessary parties and ought to have been joined. The appellant appealed to the Jos Division of this court, wherein, this court held per Obadina JCA as below –

“……. To allege that voting did not take place at the same polling units complained of, is to indict the presiding officers duly posted to the respective units with breach of duty imposed by Sections 39 and 40 of Electoral Act 2002; mat makes the presiding officers concerned necessary parties to the petition”.

This court also went further to hold thus:

“The allegation of malpractices, irregularities falsification of votes and allocation of fictitious votes directed against the Presiding Officers who are in charge of the polling units. The petitioners’ claim in the instant case that he had no complaint against the conduct of the Presiding Officers is misconceived as they are deemed to be respondents and in the circumstances ought to be joined to the suit. The allegations of the appellant in paragraphs 2 to 7, 9 to 12, 14 and 15 of his petition calls for question.

The activities or conduct of Presiding Officers at the polling stations where this alleged irregularities took place in the circumstances. There are matters which can not be determined by the tribunal in the absence of the presiding officers who were in charge of the polling units or centres.

The non joinder makes the petition management and tribunal lack jurisdiction to entertain it”.

Now as I posited earlier, the allegations leveled against the Supervisory Presiding Officers and Presiding Officer are more than those that approved or authorized agent could perpetrate especially if one considers the facts that INEC or the Commission’s statutory function is to conduct, free, fair and acceptable election in the country, hence cannot be expected to instruct, assist or authorize its agent, to engage in the commission of such heinous electoral offences. That is what informed the need to join those accused of committing the criminal activities or corrupt practices to be made parties so that they will be given the opportunity to ventilate their case/defence at the trial. This unfortunately has not been the case here, since none of them was made party.

Again in the case of Clarence Olafemi & Ors vs Ben Ayo & Ors (supra) this court had this to say:

“The effect of not joining the officers of the polling units, wards or collation officers in the instant petition by Section 44(2) of Electoral Act 2006 and 47(1) of the 1st Schedule of the Electoral Act 2006 is that the petition can not be proceeded against. No evidence ought to be led in respect of those units, wards or centres. At the hearing of the petition, any evidence led by the petitioner and their witnesses in respect of the units, wards supposed to be affected by the malpractices, corrupt practices, thuggery and violence must be discountenanced. No court of justice should proceed against a party in a matter which may demnify his actions without making a party thereto”.

Thus, in the light of what I discussed above it is clear and beyond any doubt that the Supervisory Presiding Officers and Presiding Officer were necessary parties who ought to have been joined but were not so joined as parties and the appellants as petitioners did not plead that they were agents of INEC either or that they acted as agents of INEC. To my mind therefore right from the onset the tribunal would not have assumed jurisdiction on the petition presented before it due to the non joinder which is that very fatal defect on the petition. In that regard therefore, this issue is hereby resolved in favour of the 1st and 2nd respondent and against the appellants.

In any case, notwithstanding my resolution on the first issue, as a final or apex court in election appeal, I will still consider the second issue in order to determine the appeal on its merit. The Issue is “whether in all circumstances of this case the learned trial tribunal was right in dismissing the petition filed by the appellants herein”. To my mind this issue is all encompassing and its consideration will determine the appeal in its entirety.

It is the submission of the learned counsel for the appellants that the appellants called witnesses to show how the election was marred by electoral malpractices such as non supply of result sheets to some polling units. He said he called the 1st petitioner to testify that party agent reported to the 1st petitioner all that had happened at the polling booths and the parties’ agents forwarded result sheets generated from those booths. The units’ results sheets were tendered in evidence as Exhibits E – E3 and the unit results as Exhibit G – G106, G107 and G116. The learned counsel also submitted that the tribunal was in error when it rejected the evidence he led through PW8, the Ist petitioner/appellant that Form EC8A (1) was not used in the polling units in Okija Ward 3, Okija Ward 4, Orsumogbu Ward, Issieke Ward and in Mbosi and Ubuluisizor Wards in Ihiala II Constituency simply on two grounds namely, that no agent of the petitioners or voters testified that Form EC8 A(l) was not used in those wards and secondly because Exhibits G7 – G20 and other result sheets were for other wards. He said this is an error on the part of the tribunal because the Ist petitioner/appellant, PW8 gave evidence in her deposition that Form ECS A(1) was not used in the polling booths mentioned above. He said PW5 an ANPP agent also testified in that regard with regard to Umuatuegwu Primary School Ward adding that also PW4 a Presiding Officer in polling booth at Okija Primary School also testified that Form ECS A(1) was not supplied to her booth. The learned counsel for the appellants argued that there is disparity in the handwriting and signatures on the disputed result sheets of the 1st and 2nd Respondents on one hand and those on the result sheets front loaded by 3rd to 16th Respondents for the same set of polling booths and this clearly shows that the witnesses e.g PW4 did not sign the results sheets front loaded by 3rd to 16th Respondents and PW2 also denied signing the latter results of 3rd to 16th Respondents. He said the petitioners decided to tender the two result sheets i.e the false and the genuine one in order to give the tribunal the opportunity of comparing them. See Etuk vs Senin (1992) 4 NWLR (Pt 236) 361 at 414 G to H.

Learned counsel for the appellants also submitted that the findings of the tribunal was misconceived when it wondered how PW 8 was able to know what had happened at the various polling wards when she earlier said that she would not know what happened after she had left a ward and also when agents were not called to testify even though she claimed she had agents at the various polling units and wards. She emphasized that her evidence was supported by that of PW4 the ANPP agent and PW3 her own agent; PW6 & PW5. The appellants’ counsel further submitted that the false and misguided comparison of the two results by the tribunal led to its misconceiving the petitioners’ case and also led to its non-evaluation of their case by the tribunal and leading it hold that the results of the election were correctly entered for the 1st petitioner/appellant and 2nd respondent and led it to adjudge the latter the winner of the said election.

On the evidence presented by the respondent in defence of the petition, the learned appellants’ counsel submitted that the evidence led by the respondents was discredited during cross examination especially the specimen of the signature in his deposition in court and it ought not be relied on by the tribunal. See Ojibah vs Ojibah (1991) 5 NWLR (Pt. 191) 296 at 310/311. With regard to RW1, who said he voted at ASO centre, yet he did not know its code number but the tribunal believed his evidence that election took place in Azia Ward. The learned appellants’ counsel then submitted that the irregularities he highlighted supra went on to show that it was most probable that election did not take place in Azia Ward.

Learned appellants’ counsel finally argued that the tribunal had really misconceived the parties’ case, especially that of the Appellants and this led it to hold that the petitioners/appellants failed to prove their case and that because they did not tender any result sheets generated from some of the polling booths. He urged us to resolve this issue in favour of the two appellants.

Replying to the above submissions of the appellants’ learned counsel, the learned senior advocate representing the 1st and 2nd respondents submitted that the law presumes the correctness and authenticity of results of an election announced by INEC. See Buhari vs Obasanjo (2005) 13 NWLR (Pt 941) 1 at 193. He said the issuance of certificate of Return to a winner of election at the end of election, not only represents the announcement of result, but also confirms the validity and conclusiveness of the election. See Sowemimo vs Awobanjo & Ors (1999) 7 NWLR (Pt.610) 355. The learned senior counsel also argued that the appellants by tendering duplicate copy of results, they were urging the tribunal to disregard the authentic results tendered by INEC which are the official results. He said even in tendering those duplicate copies of the results, they merely tendered them without specifying the aspect of their case to be given attention to by the tribunal as required by law. See Sani Abacha & Ors vs Chief Gani Fawehinmi 2 SC NQR (Pt 489) at 591 1-692. The learned silk argued that it was the appellants who tendered Exhibits G7 to G77 without making any attempt to discredit the said results they tendered, hence the tribunal was free to rely on them so the appellants could not be heard complaining, afterall they did not discredit any of the two sets of results they tendered at the trial.

He further submitted that the tribunal had properly assessed the witnesses before disbelieving them, for instance, the testimonies of PW 2 to PW7 due to contradictions in their testimonies which rendered them incredible, hence that did not relate to any misconception as to which results sheets should be compared. Similarly, PW8, the 1st petitioner when testifying, she did not discredit any of the two results hence there is also no misconception in that regard. On the complaint of the appellants that the tribunal did not evaluate Exhibits E to E30, he argued that even if that was true, such alleged non evaluation could not lead to setting aside of the judgment as that did not occasion any miscarriage of justice. See Buhari vs INEC (supra), Garko vs State (2006) 6 NWLR (Pt 977) 524 at 544. He added that as respondents, they even filed Respondents’ Notice praying this court to affirm the judgment on two of her grounds such as –

(1) that Exhibit E to E38 (duplicate results tendered by appellants) were inadmissible, hearsay and lacking in probative value and

(2) that the said exhibits were scanty, given the fact that there were 137 polling units in the Constituency.

On the grounds in the petition challenging results or figures or scores, the learned silk submitted that the evidence that should have been led by them, should come from the officers who were in the field where the votes were counted and or collated. See Buhari vs Obasanjo (supra). Here, none of the party agents who were at the polling units was called to testify hence Exhibits E7 to E38 were all hearsay evidence. He also stated that Exhibits E7 to E38 were inadvertently admitted and should be expunged. See Shehu vs Afrik Bank of Nig. Plc (2002) 17 NWLR Okulade vs Alaale (1976) 1 All NLR (Pt 19) 67, Awuse vs Odile & Ors (2005) 16 NWLR 52, 406, Yusuf vs Obasanjo (2005) 18 NWLR (Pt 956) 96 at 176/177.

On the appellants’ submissions that the tribunal should have disbelieved the evidence of PW1 because he did not know the code number of his ward, the learned silk for the 1st & 2nd respondents argued that the crucial issue was whether election took place at Azia ward and whether results were generated therefrom, and appellants failed to prove that it did not hold. In the end the learned silk submitted that the tribunal was right in holding that the petition was not proved by the petitioners hence the tribunal could not be faulted in dismissing it. He urged that this issue be resolved in favour of the 1st and 2nd respondents.

On their part, the 3rd to 16th Respondents submitted through their learned counsel, that the tribunal did not misconceive the cases of the parties and that it properly evaluated the evidence adduced by them at the trial by putting same on imaginary scale and weighed them. See Mogaji vs Odofin (1978) 4 SC 91; Hashidu vs Goje (2003) 15 NWLR (Pt 843) 15 NWLR 352 at 392. The learned counsel went at length to refer to the testimonies of all the eight witnesses called by the petitioners and highlighted how they were duly evaluated by the tribunal and the points where each of them were impeached during cross examination especially the testimony of PW8 the 1st petitioner/appellant. He also highlighted some contradictions and inconsistencies that characterized the testimonies of all the eight petitioners, witnesses.

Again, on the learned appellants counsel’s submission that appellants never tendered any result sheets generated from the polling booths in Azia Ward and that they tendered Exhibits G to G6 as result sheets of the 3rd to 16th Respondents he referred to pages 911 and 912 of the Record to show that Exhibits G to G106 were, in fact tendered by the Appellants and not by the Respondents and admitted in evidence by the tribunal based on the Notice to produce served on the 3rd to 16th Respondents. He therefore insisted that the said exhibits were tendered by the appellants and not by his clients, adding that the said exhibits were rightly admitted by the tribunal and it was therefore free to act on them.

Then on the issue of alleged non-compliance with Electoral Act 2006, the learned counsel for the 3rd to 16th Respondent submitted that there was substantial compliance with the provisions of the Electoral Act 2006 and that the petitioners failed to prove none of such complaints of non compliance, corrupt practices, irregularities, violence, thuggery, falsification of results or inflation of votes, forgery etc. He opined that the 1st Respondent was actually elected by majority of lawful votes cast at the election. He later cited the cases of Moaye vs Omagu (2008) 7 NWLR (Pt 1087) 477 at 518. Agbaje vs Fashola (2008) 6 NWLR (Pt. 1082) 90. He said the appellants had actually failed to prove their petition against the Respondents. See SPDC vs Okenode (2008) 9 NWLR.

Then on the next issue whether the tribunal was bound by its findings of facts in Petition No. EPT/AN/SAE/47/2007, the learned counsel for the 3rd to 16th Respondents submitted that the tribunal was not bound by that decision as in fact in the two cases as that decision is not even part of the record of appeal. The learned counsel then urged me to dismiss the appeal.

I have in the fore paragraphs of this judgment highlighted the grouse upon which the petitioners at the tribunal (now appellants herein) as well as the declaration sought by them. Basically, some of the allegations complained of as could be gleaned from paragraphs 5, 6, 9 & 11 of the petition, include the following:

a) That the 1st respondent was not elected by a majority of lawful votes cast at the election hence should not have been declared winner of same by 3rd to 16th Respondents

b) That the results declared by INEC were not correct

c) Non display of voters register

d) Some voters were disenfranchised .

e) That the election was rigged to their disadvantages.

f) Elections were not conducted in some polling units in Ihiala II Constituency while figure or scores were announced in those areas.

g) Election was fraught with many irregularities.

The above and many other election malpractices were also alleged in the petition.

It is well settled law that where a petitioner makes non compliance with Electoral Act, the foundation of his petition, he is fixed with a heavy burden to prove with cogent and compelling evidence, that the alleged non compliance has affected the results of the election to his disadvantage. See Buhari vs INEC (supra). By the provision of Sections 136 and 137 of the Evidence Act, it is the person who asserts that has the burden to prove such allegations which if he fails to prove them, his petition is bound to fail. See Kalgo vs Kalgo (1999) 6 NWLR (Pt 608) 639; Awolowo vs Shagari (1979) 6 – 9 SC 51; Itule vs INEC (1999) 4 NWLR (Pt 599) 360 Olu Akinfosile vs Ijose (1960) SCNLR 447; Ajadi vs Ajibola (2004) 16 NWLR (Pt. 898) 9. Permit me my Lords, to stress here also, that where the allegations made by the petitioner border on criminal offence or offences, the standard of proof of such criminal act(s) or electoral offences is proof beyond reasonable doubt. See Ezeduwa vs INEC (1999) 3 NWLR (Pt 594) 215 Walgo vs Bukar (1999) 3 NWLR (Pt 596) 539.

Perhaps it will be pertinent at this stage to consider the evidence adduced by the petitioners in proof of the allegations and also to ascertain whether the tribunal had actually evaluated the evidence adduced in the case.

The 1st petitioner’s witness testified that she was a polling clerk at polling booth with Code No. 005 at Central School Mbosi. She said no results sheet i.e. Form EC8 A(1) was supplied to her unit by the Supervisory Presiding Officer on 14/4/2007. PW2 also a presiding officer, stated that election materials were supplied to her unit including Form EC8A(1). She alleged however that having filled Form ECS A(1) and signed same after recording the result of her unit, the result Form attached to Respondents Reply had her signature forged. Here it is noted by me, that the tribunal on page 1036 held that the Form she said she filled and signed was not tendered before it for purpose of comparison. See page 1036 of the Record. In my view, for the tribunal to verify her assertion, the petitioner ought to tender the said Form she filled and signed which contained her genuine or correct signature. PW3 also an agent, testified on late commencement of election in his unit as it started at 1.25 pm and ended at 7pm. He also stated that there were no result sheets but he recorded the result on a piece of paper. He said before he could go to the collation centre they were driven away by 1st respondent’s thugs but he admitted not reporting the 1st respondent to the police. On this testimony, the tribunal found the allegation was unproved as such piece of paper he allegedly recorded results was not tendered. PW4, a Presiding officer, also testified that at the end of the poll she recorded result of her unit on piece of paper as Form EC8 A(1) was not supplied to her unit. She also claimed that her name and signature were forged. When confronted during cross examination she also could not produce the piece of paper on which she said made her recording of results. On her testimony, the court rejected her assertion as she could neither produce the paper she recorded the result nor state the scores of the parties she allegedly recorded. She could also not state that there were discrepancies in the result produced by INEC. It also held that the allegation of forgery she made could not be substantiated. PW5 testified to the effect that in his unit, no result sheet was supplied and none was therefore signed adding that results were declared orally. But under cross examination he said the Presiding officer read out the result from a piece of paper. He had no copy of the result to show to the tribunal as he said he threw it away the copy of the result he personally recorded after the election. The tribunal on pages 1037 – 1038 of the Record rejected his testimony since no copy of such piece of paper on which he made the recording was produced by him and that the result tendered by the respondent for that unit could be relied on. PW 6 a party agent in his testimony alleged that thugs snatched away original result sheets before party agents signed them but prior to that he had already copied the results from the original results snatched away. But under cross examination he denied ever seeing the original result sheets during the election. He also denied copying any result from the original result sheets. For those reasons it rejected his testimony. The witness also testified on the snatching away of original result sheets by thugs in his polling booth before they were signed.

He also under cross examination denied seeing the original result sheets because INEC did not supply result sheets to his unit. He also under cross examination denied copying any result from the original result sheets The evidence on oath of PW7 was not dissimilar to that of PW6 under cross examination admitted knowing the 1st respondent which he denied earlier in his statement on oath.

The 8th PW, who is the 1st petitioner and the 1st appellant herein, also testified at the tribunal. According to her no Form EC8 A(1) was issued or given to or signed by her or her agent in some polling booths at Okija Wards 3 & 4, Isseke Mbosi. She also said that no such Form was used in poling units in Okija Wards e, 4, Orsumoghu Ward and in most of the Wards in Mbosi and Ubuluisizor all in Ihiala II Constituency. She however did not call the polling agent deployed to these units to testify that such Forms were not used in such units. The witness tendered Exhibits G7 to G20 for Mbosi, Exhibits G 21 – G31 for Orsunoghu Ward, Exhibit G-46 – G 56, 58, 60, 62 and 64 for Okija Ward as Exhibits G 67, 73 75, 76 and 77 for Okija Wards.

Under cross examination he testified that no result was declared in Isseke and Ubichisuizor because the materials were snatched at those Wards. These pieces of evidence are however inconceivable, if one considers that she had earlier asserted that no Forms EC8A(1) were supplied to the two Wards.

The witness also contradicted herself when she stated that no Form EC8A(1) was supplied in Paragraph 22 of her deposition on oaths. With these inconsistencies in her deposition and her testimony in court during cross examination, I think the tribunal was right in believing the evidence of PW4 to the effect that election materials, especially Forms ECS A(1), were supplied to the aforesaid Wards.

I have gone at length supra to highlight some loopholes and inadequacies in the evidence or testimonies of the witnesses called by the petitioners and the findings or assessments or evaluation of them made by the tribunal before it arrived at its finding on them. It is trite law that it is within the province of a tribunal or court to consider and evaluate the evidence adduced before it by parties. It is only where such evaluation is lacking or that it was improperly done by the trial court or tribunal, that this court can come in to interfere or disturb the findings of trial court or tribunal.

It is my view therefore, that the tribunal had in the instant appeal, duly and properly evaluated the evidence adduced by parties, before it arrived at its conclusion in dismissing the appellants’ petition. For instance, in order to prove allegation of non voting in a particular unit or ward the petitioner has the heavy task of leading credible evidence like calling a registered voter or voters in the disputed wards to show that he/they did not vote in the particular booth on the election day because there were no election officials and that election did not take place but there were counting or announcement of results on that day at such wards. This is necessary because the law presumes that election took place everywhere on election day (see section 150 of the Evidence Act) even though such presumption is a rebuttable one. See Nweke vs Ejims (1999) 11 NWLR (Pt. 628) 39 Onoyon vs Egari (1999) 5 NWLR (Pt. 603) 415, Nnaji vs Agbo 2 EPR 867. It is noted by me, that voter register was not tendered by the petitioners. Again no evidence was called to show that any voters were disenfranchised. I must state here that it is not enough for the petitioners to simply allege that there was non-compliance with the provisions of Electoral Act 2006. They must also satisfy the tribunal that the alleged non-compliance was substantial and that it had also affected the result of the election. This, to my mind, is based on the time-honoured principle of law that “He who Asserts Must Prove” See the cases of Kundu vs Aliyu (1999) 3 NWLR (Pt 231) 615 at 634; Agode vs Emenato (1999) 8 NWLR (Pt 615) 407. Buhari vs Obasanjo (2005) 13 NWLR (Pt 941) 193; Nmoole vs Iwuagwu (2004) 15 NWLR (Pt 895) G1, Yusuf vs Obasanjo (2005) 18 NWLR (Pt 956) 96 at 178.

I also opine that some of the allegations made by the petitioners border on corrupt practices, especially the allegations that the result sheets were forged or snatched as alleged by some of the witnesses as I highlighted above. On such allegations, the petitions have the heavy burden to prove the element of forgery/offence beyond reasonable doubt that the 1st respondents personally committed the forgery or other corrupt acts or aided and abetted their commission or that he procured the Commission to commit the forgery through its agents or officials. And if the forgery was committed by the 1st respondent’s agents, they have to prove that the alleged forgery, corrupt practices or undue influence affected the outcome of the election and also to show how it affected the outcome of the election too. Having thoroughly gone through the entire evidence adduced by the petitioners, I am afraid, they are not more than mere assertions of some of the witnesses that their signatures or names were forged. This is not sufficient or adequate proof of the serious allegations bordering on corrupt acts or practices which standard is beyond reasonable doubt. Mere averments on pleadings are not evidence of and can not be so construed as so, except where there are admissions. See Akanmi vs Adigun (1990) 7 NWLR (Pt 304) 216 at 231; Engr. G. Agabi & Anor vs Chief Audu Ogbeh (2007) 10 WRN 144 at 205. For instance in Haruna vs Modibbo (supra) this court held thus –

“It is our law that an allegation of corrupt practice in an election is a compliant of a criminal offence. It must be proved beyond reasonable doubt”

The petitioners in this case have failed to prove such corrupt practices. See Nwobodo vs Chief Onoh (1984) 1 SCNIR; Buhari vs Obasanjo (supra) Oni vs Odeyinka (1999) 9 NWLR (Pt 566) 527.

It needs to be emphasized here that the appellants complained on the reliance in Exhibits G – G106 by the tribunal which were results of the election and even insinuating that it was respondents’ exhibits. Although the said exhibits were produced by INEC when served with Notice to Produce, that does not mean such exhibits are respondents’ evidence since the appellants called for their production and tendered them in evidence even though when admitted in evidence, the appellants should have gone further to show how they differ with Exhibits E – E 38 with a view to highlighting the discrepancies between them. The appellants in their Joint brief also argued that the tribunal misconceived the case of the parties. I do not agree with such insinuation, in view of the elaborate evaluation it did in the evidence some of which I highlighted above.

The appellants also contended that the 1st petitioner won the election by majority of lawful votes cast at the election. To my mind, the evidence to be led in proof of such assertion which seems to be questioning the figures or scores of candidate at the election, must be evidence coming directly from the officers who were at the election ground where votes were cast, counted and or collated. The appellants herein, failed to lead such type of evidence in proof of such allegation. See Buhari vs Obasanjo (supra). Omoboriowo vs Ajasin (1984) 1 SCNLR 108, Buhari vs INEC 36 NSCQR 475 at 516.

In a nut shell I am fully convinced that the tribunal had adequately evaluated the evidence adduced before it at the trial. Considering the evidence adduced, I am also convinced that the evidence adduced by the petitioners at the trial fell short of proof the allegations upon which they grounded their petition. The tribunal was therefore right in its judgment that the allegations were not proved by credible evidence. It is therefore right in dismissing the petition of the petitioners.

In the result, I adjudge the appeal unmeritorious. It fails and must be dismissed. The appeal lacks merit and is accordingly dismissed by me. The judgment of the National Assembly/Governorship and Legislative Houses Election Tribunal, Awka delivered on 14/5/2008 in Petition No. EPT/AN/SAE/30/2007 is hereby affirmed. I make no order on costs.

OLUKAYODE ARIWOOLA, J.C.A : I had the advantage of reading the draft of the lead judgment just delivered by my learned brother, SANUSI, JCA. I agree entirely with the reasoning and the conclusion arrived thereat. I have nothing more to add.

I abide by the consequential orders including order on costs.

AYOBODE O. LOKULO-SODIPE, J.C.A : I have had the privilege of reading in advance the Judgment of my learned brother, AMIRU SANUSI, JCA. I am in complete agreement with His Lordship’s reasoning and conclusions. I have nothing to add. I also abide by all orders made by my learned brother in the Judgment including the order as to costs.

Appearances

P.U. Nnodum, Esq.,For Appellant

AND

Arthur Obi Okafor SAN

S.O. Ibrahim Esq.,For Respondent