SAM ADEJOH OKEDI V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2012)LCN/5124(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 31st day of January, 2012
CA/A/EPT/585/2011
RATIO
THE ACT OF EVALUATION OF EVIDENCE
The act of evaluation of evidence is done by the trial court putting the totality of the evidence adduced by the parties on an imaginary scale before it can come to a decision as to which evidence it accepts and which it rejects. The trial court will first put on one side of the scale the evidence adduced by the Plaintiff and then put the evidence adduced by the defence on the other side of the scale and weigh the two together. From there the trial court will see which is heavier, not by the quantum or quantity of witnesses called, but by the quality or probative value of the testimonies of those witnesses. This has been the golden rule laid done by the Supreme Court in MOGAJI v. ODOFIN (1978) 4 SC 91. See also FAGBENRO v. AROBADI (2006) 7 NWLR [pt.978] 174. PER. EJEMBI EKO, J.C.A
THE GUIDING PRINCIPLES OF EVALUATION OF EVIDENCE WHICH GUIDE EVERY TRIAL COURT
The guiding principles of evaluation of evidence which guide every trial court are (1) whether the evidence is admissible; (2) whether the evidence is relevant i.e. whether the facts on which it is founded are pleaded; (3) whether the evidence is credible; (a) whether the evidence is conclusive; and (5) whether the evidence is more probable than that given by the other party. see MOGAJI v. ODOFIN (supra); AKAS INDUSTRIES LTD v. OLUBODE (2004) 4 NWLR [pt.862) 1. PER. EJEMBI EKO, J.C.A
THE POSITION OF THE LAW WHERE THE COURT HAS TO FORM AN OPINION UPON A POINT OF FOREIGN LAW, CUSTOMARY LAW OR CUSTOM, OR OF SCIENCE OR ART ETC
The distinguishing facts are as follows: in ANPP v. USMAN the tribunal refused to rely on the evidence of a statistician because statistical analysis does not constitute expert evidence contemplated by section 57(2) of the Evidence Act, 1990 (now section 68(1) of the Evidence Act, 2011) that provides:
When the court has to form an opinion upon a point of foreign law, Customary law or Custom, or of science or art, Or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, customary or custom, or Science or art, or in questions as to handwriting or finger impressions, are admissible. The adjective “skilled” denotes one or person having enough ability, experience and knowledge to be able to do something well. See OXFORD ADVANCED LEARNER’S DICTIONARY 7th ed. Having a skill does not a necessarily mean or is synonymous with possessing academic qualifications. PER. EJEMBI EKO, J.C.A
THE POSITION OF THE LAW WHERE THE TRIAL COURT FAILS TO EVALUATE, OR PROPERLY EVALUATE THE EVIDENCE, BEFORE COMING TO CONCLUSION
Where the trial court fails to evaluate, or properly evaluate the evidence, before coming to conclusion the appellate court has no other option than to allow the appeal. That is the law restated by the supreme Court in KARIBO & OR v. GREND & ANOR (1992) 3 NWLR [pt.230) 426 at 441; MORENIKEJI & ORS v. ADEGBASIN (2003) 3 SCNJ 105; (2003) 8 NWLR [pt.823] 612. PER. EJEMBI EKO, J.C.A. PER. EJEMBI EKO, J.C.A
JUSTICES
ZAINAB ADAMU BULKACHUWA Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
Between
1. SAM ADEJOH OKEDI Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. THE RESIDENT ELECTORAL COMMISSIONER, KOGI STATE
3. THE ELECTORAL OFFICER, IBAJI IGA KOGI STATE
4. THE ELECTORAL OFFICER, IGALAMELA/ODOLU LGA
5. PEOPLES? DEMOCRATIC PARTY (PDP)
6. HON. ISMAIL HUSSEINI INAH Respondent(s)
EJEMBI EKO, J.C.A (Delivering the Leading Judgment): On 9th April 2011, the 1st-4th Respondents conducted general elections in Idah Federal Constituency. The 1st Appellant was the candidate of the 2nd Appellant for that election. The 5th Respondent sponsored the 6th Respondent as its candidate for the said election. The 6th Respondent was returned by the 1st – 4th Respondents as the winner of the said election for a seat in the House of Representatives.
Dissatisfied with the return of the 5th Respondent the Appellants, on 29th April, 2011,filed a petition challenging the said return of the 6th Respondent. The Respondents filed their respective replies to the petition, and issues were duly joined.
The complaint of the appellants, the petitioners, was that the 5th and 6th Respondents did not score the majority of the lawful votes cast at the election. The focus of the Petitioners’ complaint was the invalidity of the votes cast in two wards of two Local Government Areas, namely: Ibaji Local Government Area and Igalamela/Odolu Local Government. The Federal Constituency comprised of four (4) Local Government Areas. The summary of the complaint of the Petitioners is that;
1. Voting did not take place in some of the units as a result of violence and yet results were allegedly produced and computed.
ii. Corrupt practices in the process of collation of the results by 1st – 4th Respondents in alleged connivance with officers of the 5th Respondent.
iii. Multiple thumb printing of ballot papers.
iv. Compilation of results outside INEC’S authorized or designated venues.
v. Mutilation of result sheets (Forms EC8A (1) without counter-signing and false entries on result sheets.
vi. Inflation of votes.
vii. None or improper accreditation of voters
The Petitioners/Appellants called four (4) witnesses. They also tendered documents in evidence. Respondents also tendered documents.
They also called witnesses. The 1st – 4th Respondents called one witness. The 5th Respondent called one witness. The 5th Respondent, on his part, called two witnesses, including himself.
At the close of the trial the parties exchanged written addresses, which they later adopted. In its reserved judgment, delivered on 25th October, 2011, the National and State Houses of Assembly Election Tribunal (hereinafter called “the Tribunal”) dismissed the petition in its entirety. The appeal is against that decision of the Tribunal.
vii. In this appeal the parties have exchanged their Briefs of Argument.
The appeal was heard on 19th December, 2011. Pursuant to section 285 (8) of the Constitution 1999, as amended, we unanimously gave our decision dismissing the preliminary objections in the appeal and allowed the appeal on issues 1, 2 and 4 and ordered that the petition be remitted to the Tribunal, differently constituted, for retrial on merits. The reasons for the decision were reserved to a date to be communicated. I now give my reasons.
The preliminary objection of the 5th Respondent has for grounds, namely:
i. That the Appellants’ purported application for issuance of pre-hearing notice filed before the close of pleading without an order abridging the time by the trial Tribunal was invalid. For this my judgment in OHAKA v. EZE (2010) ALL FWLR [pt.525] 580 was relied upon.
ii. That the Appellants Brief of Argument was typed without leaving at least “single spacing in-between” the typographic character as required by the provisions of Paragraph 14 of the Election Tribunal and Court Practice Directions, 2011.
iii. That the grounds of appeal read with the particulars are argumentative or narrative or vague or general in terms or discloses no reasonable ground of appeal; and
iv. That the issues formulated in the Appellants’ Brief of Argument are at variance with the grounds of appeal.
There is no cross-appeal by the 5th Respondent. I agree with the Appellants that, it is not open to the 5th Respondent to raise the issue of the incompetence of the Appellants’ Notice for Pre-trial session at this stage, by way of preliminary objection to the appeal. Having not filed a cross-appeal or an appeal to challenge the decision of the Tribunal on this issue, the 5th Respondent can not raise it by way of preliminary objection to the appeal: see EYO v. OTAPA (2010) 6 NWLR [pt.1191] 611 at 532 – 533.
The complaint under the second ground of objection of the 5th Respondent seems to founded on paragraph 14(b) of Election Tribunal and Court Practice Directions, 2011 that provides inter alia that the type set shall be Arial, Times New Roman or Verdana of 12 point type with at least single line spacing in-between.
The 5th Respondent seems to think here that the “single line spacing in-between” means “leaving single line spacing in-between the typographical characters”. That is a complete misconception of the purpose and meaning of paragraph 14(b) of the Practice Directions. The “single line spacing” is not in-between the typographical characters. It refers to the spacing in-between the lines, and not the typographical characters.
By his ground (iii) of the preliminary objection the 5th Respondent is guilty of the very vagueness imprecision and uncertainty he complains of against the Appellants. The trite principle of equity is that he who comes to equity must come with clean hands. He can not therefore be guilty of uncertainty while he complaining that the grounds of appeals are uncertain and vague. Worse still, the 5th Respondent was arguing the merits of the appeal while purporting to argue that the grounds of appeal, together with their particulars, are argumentative, or narrative or vague or general in terms or disclose no reasonable grounds of appeal. For instance, the 5th Respondent while arguing that Ground one of the Notice of Appeal discloses no reasonable ground of appeal, argues that it is trite law that he who asserts must prove and that the Appellants, who alleged that the 6th Respondent was a deserter from the Nigerian Navy have the burden of proving that allegation by credible evidence.
The 5th Respondent has completely misconceived the purport of Order 6 Rule 3 of the Rules of this Court that prohibits “any ground of appeal which is vague or general in terms or which discloses no reasonable ground of appeal.”
Without particulars the fourth ground of the 5th Respondent’s objection states that the issues formulated in the Appellants’ brief of argument are at variance with the grounds of appeal. Implicit in this shoddy advocacy is that rules of fair hearing or audi alteram partem have no place in preliminary objection. That is far from the truth. The basic principle of pleading is audi alterom partem and the purpose is two fold. The first is that the defendant will not be taken by surprise. Secondly, it makes for economy as parties are confined to their pleadings. See EMOGOKWU v. OKADIGBO (1973) 4 SC 113.
The 5th Respondent’s preliminary objection, in grounds (iii) and (iv), offends the principles of audi alteram partem and the Appellants’ right to fair hearing enshrined in section 36 (1) of the Constitution 1999, as amended. They breach Appellants fundamental rights, and therefore ought to be discountenanced as they are a nullity.
Even on its merit, the preliminary objection on its ground (iv) is unfounded. I have read the ground of appeal and the issues formulated therefrom in the Appellants Brief of Argument. I agree with the Appellants that the grounds of appeal and their particulars attack the ratio decidendi of the judgment of the Tribunal. The four issues formulated therefrom arise from the grounds of appeal.
Accordingly, the 5th Respondent’s preliminary objection is hereby dismissed in its entirety.
The 6th Respondent’s preliminary objection is, in substance,similar in every materia particular to the 5th Respondent’s preliminary objection, particularly the third and fourth grounds thereof.
I have read grounds 1, 3 and 4 of the Notice of Appeal which P.A.Akubo, SAN for the 6th Respondent says “are incompetent in that they do not disclose reasonable grounds of appeal and/or arise from the judgment of the trial Tribunal.” The complaint under ground 1 of the Notice of Appeal is that the Tribunal ought not, in law, have placed on the petitioners the burden of proving that the 5th Respondent was qualified to contest the election. I do not see the inaccuracy or imprecision in this complaint which flows directly from the ratio decidendi of the decision appealed.
The Tribunal relied on the case of ANPP v. USMAN (2003) 12 NWLR [pt.1100] 73 and “the sentiments expressed by the 5th and 6th Respondents in their replies on points of law” to dismiss the evidence of the PW.3. This is found at pages 1199-1200 of the Record. The complaint in the 3rd ground of appeal is that the Tribunal erred in law to have determined the status of the PW.3 as an expert witness and his competence as such a witness on the authority of ANPP v. USMAN (supra) and the submissions of counsel to 5th and 6th Respondents. The ground flows from the judgment directly. It is not incompetent.
The Tribunal had found that the allegations of crime and fraud made in the petition ought to be proved beyond reasonable doubt and that they were not proved beyond reasonable doubt. The complaint under ground 4 of the Notice of Appeal is that the Tribunal erred in law by holding that the allegations bordering on crime were not strictly proved on one hand, and that on the other hand the Tribunal erroneously described major irregularities admitted by the Respondents as mere irregularities that are saved by section 139 (1) of the Electoral Act, 2010. This is a complaint that the Tribunal was not even handed in its judgment. The allegation is serious and it discloses a reasonable ground of appeal.
In all, there were four grounds of appeal and four issues were formulated from the four grounds of appeal by the Appellants. An issue for determination in the appeal is the point that has arisen from a ground or combination of grounds of appeal which forms the basis of the complaint in the ground(s) that requires the resolution of the appellate court. See METAL CONST. (W.A.) LTD v. MILGLIORE (1990) 1 NWLR [pt.126] 299; EGBE v. ALHAJI (1990) 1 NWLR [pt.128] 546. Issue for determination, therefore, has to flow directly from the ground (s) of appeal to be valid. See IHEANACHO v. EJIOGU (1995) 4 NWLR [pt.3891 324, I have, myself, read the grounds of appeal and the issues formulated therefrom in the Appellants Brief. I do not agree with the 6th Respondent that the issues do not flow directly from the grounds of appeal. The issues, like the grounds of appeal, are valid and competent.
The preliminary objection of the 6th Respondent is misconceived and it is accordingly dismissed in its entirety.
The Appellants had formulated four (4) issues from the grounds of appeal. The issues they formulated and argued in their brief as follows –
1. Whether there is any basis arising from the pleadings and the evidence led by PW.3 (forensic Expert) for the Trial Tribunal to hold as follows:
“We find ourselves sharing the sentiments expressed by the 5th and 6th Respondents in their replies on points of law that of the Petitioners. We therefore find ourselves unable to accept without any reservation or doubt the testimony of PW.3 and Exhibits P18 (1 – 5) tendered through him. In coming to this conclusion we bear in mind the admonition of Aboki JCA in ANPP vs. USMAN (2008) 12 NWLR [pt.1100) at 73. His Lordship had warned:
“The Court must be wary of admitting a report prepared by an expert not at the instance of the Court but at the behest of any of the parties to the disputes. Such a report should be taken with a pinch of salt. A trial Judge would be right to prefer credible evidence of an expert on the same issue where the former is an independent witness whilst the latter prepared evidence specifically on hand on the direction of the party calling him. See “ELF (NIG) LTD vs. SOLO (1994) 6 NWLR [pt.350] page 258. In the result, therefore this issue is resolved against the Petitioners and in favour of the Respondents”.
2. Whether the Appellants did not discharge the burden of proof beyond reasonable doubt placed on them when allegations of crime are made in civil suit?
3. Whether the Appellants are required by law to prove that the 6th Respondent was discharged from the Nigerian Navy a matter which is strictly within the knowledge of the 6th Respondent?
4. Whether it is permissible for the Respondents to lead evidence to show that the same irregularities complained of by the Petitioners/Appellants in the units of the wards in the Ibaji and Igalamela/Odolu LGAs of Kogi State also occurred in some units of the did not file a cross petition, counter petition or counter claim”.
For the 1st- 4th Respondents the issues formulated for determination in their Brief of Argument are as follows:
1. whether the Hon.Trial Tribunal was not right in holding that the petitioners had the evidential burden to move
the non-qualification of the 6th Respondent to contest the election. (Distilled from Ground 1 of the grounds of Appeal.)
2. Whether from the totality of evidence before the Hon.Trial Tribunal, it was not right in holding that the Respondents did not in anyway lead evidence to question the votes in the areas won by the petitioners at the Idah Federal Constituency but to show that some irregularities took place in the areas where the petitioners won. (Ground 2 of the grounds of Appeal).
3. Whether the Tribunal needed to analyse the competence of PW.3 or Forensic report of the expert having not believed in his testimony and the documents tendered through him. (Ground 3 of the grounds of Appeal)
4. Whether from the totality of both documentary and oral evidence produced by the petitioners, the Hon.Tribunal was not right in hold that the petitioners failed to prove their allegations of crime in petition beyond reasonable doubt. (Ground 4).
In the Brief settled by Mr. Mohammed for the 5th Respondent the four issues determination are as follows –
1. Whether the competence and status of the Appellants’ PW.3 was determined by the learned justices of the tribunal by reference to the case of ANPP v. USMAN (2000) 2 LRECN P.155? Ground 3 of the notice of appeal.
2. Whether the Appellants proved the allegations of crimes and substantial irregularities contained in their petition at the trial Tribunal? Ground 4 of the notice of appeal.
3. Whether the Appellants discharge the onus of proof required by law to establish the allegation that the 6th Respondent deserted from the Nigeria Navy? Ground 1 of the notice of appeal.
4. Whether the trial Tribunal was right in holding that the Respondents were merely seeking to show that there were also the same irregularities in poling units were the Appellants won election and not challenging the declared results to warrant filing cross petition? Ground 2 of the notice of appeal.
The 6th Respondent, through P.A. Akubo, SAN, has formulated the following issues for determination. That is
1. Whether the Appellants had the burden of proof regarding the question of competence of the 6th Respondent to contest the election as found by the Tribunal. (Ground 1).
ALTERNATIVELY
Whether the Tribunal was right in its conclusion that the burden of proof on the qualification of the 6th Respondent to contest the election lied on the Appellants.
2. Whether the trial Tribunal was right in holding that the Respondents were strictly not leading evidence to question the areas the Appellants won thereby warranting a necessity of a cross-petition but only leading evidence to show that some irregularities took place in the area the Appellants won election. (Ground 2).
3. Whether having regard to the entire circumstances, the trial Tribunal was justified in rejecting the evidence of PW.3, Supol Reginald Udunze and by extension documents tendered by and through him. (Ground 3).
4. Whether the Tribunal was right in holding that the Appellants failed to discharge the requisite burden of proof on them. (Ground 4).
It is apparent that the Appellants’ issues 1, 2 and 4, adopted by the 5th Respondent, are issues 2, 3 and 4 formulated respectively in the Briefs of Argument of 1st – 4th Respondents and the 6th Respondent. The Kernel of these issues, particularly Appellants’ issues 1 and 2, is whether the Tribunal was right in the manner it dismissed the evidence of PW.3, Forensic Expert called by the Appellants. The Tribunal, at page 998 of the Record, before discountenancing the evidence of PW.3 in its entirety had stated in its judgment that
We find ourselves sharing the sentiments expressed by the 5th and 5th Respondents in their replies or points of law (sic) that of the Petitioners. We therefore find ourselves unable to accept without reservation or doubt the evidence and Exhibits ‘P18 (1- 5)’ tendered through him.
The Tribunal said that, in coming to this conclusion, they were being guided by the admonition of Aboki, JCA in ANPP v. MAN (sic Usman) (2008) 12 NWLR [pt.1100] at 73 that, “the Court should be wary of admitting a report prepared by an expert not at the instance of the court but at the behest of any of the parties to the dispute” and that “such a report should be taken with a pinch of salt.” The statement of Aboki JCA in this ANPP case (supra) is purely admonitive. The operative words in this advice are that “the court should be wary” and that “such report should be taken with a pinch of salt.” All that Aboki, JCA is saying here is that such report could be slanted in favour of the party who called the forensic Expert and therefore should not be taken as sacrosanct. The statement made by Aboki, JCA in ANPP v. USMAN (supra) is not an authority that in every given situation the report of a Forensic Expert called at the behest of a litigant should be rejected wholesale without proper evaluation. Aboki, JCA himself in ANPP v. USMAN (supra) had infact insisted on the virtue of the trial Judge doing proper evaluation before preferring “the credible evidence of an expert.” The opinion expressed in ANPP v. USMAN (supra) is not a rejection of the time honoured principles of evaluation of evidence before the trial Judge could come to the conclusion to prefer one piece of evidence to the other.
The act of evaluation of evidence is done by the trial court putting the totality of the evidence adduced by the parties on an imaginary scale before it can come to a decision as to which evidence it accepts and which it rejects. The trial court will first put on one side of the scale the evidence adduced by the Plaintiff and then put the evidence adduced by the defence on the other side of the scale and weigh the two together. From there the trial court will see which is heavier, not by the quantum or quantity of witnesses called, but by the quality or probative value of the testimonies of those witnesses. This has been the golden rule laid done by the Supreme Court in MOGAJI v. ODOFIN (1978) 4 SC 91. See also FAGBENRO v. AROBADI (2006) 7 NWLR [pt.978] 174.
The guiding principles of evaluation of evidence which guide every trial court are (1) whether the evidence is admissible; (2) whether the evidence is relevant i.e. whether the facts on which it is founded are pleaded; (3) whether the evidence is credible; (a) whether the evidence is conclusive; and (5) whether the evidence is more probable than that given by the other party. see MOGAJI v. ODOFIN (supra); AKAS INDUSTRIES LTD v. OLUBODE (2004) 4 NWLR [pt.862) 1.
It is trite law that evidence must be based only on facts pleaded by the parties. see OKONKWO V. CO-OPERATIVE & COMMERCIAL BANK NIG PLC (2003) 13 NSCQR 638. I have no doubt, my Lords, that if the Tribunal had been guided by these laudable principles laid down by the Supreme Court and applied by other superior courts it would not have bothered to be guided merely by “sentiments expressed” by the counsel to 5th and 6th Respondents in their replies or written addresses.
The PW.3 was a principal witness of the Appellants at the Tribunal. He is a serving Police officer of the rank of Assistant Superintendent of police.
He was subpoenaed to appear at the Tribunal “to give – evidence of your Forensic Findings on finger impressions on Ballot papers used in the April 9th 2011 National Assembly Election in the Idah Federal Constituency – covering polling units in 9 (nine) wards in Ibaji and Igalamela/Odolu Local Government Area – “The subpoena was issued by a Judge (member of the Tribunal).” The PW.3 is a public officer. The tribunal that subpoenaed him did not find that he was a tainted witness or that he perjured himself in the discharge of his duties to the Tribunal. The Tribunal has not shown on what evidence the PW.3 had ceased to be an independent witness that would enable the Tribunal to hold that they were “unable to accept without reservation or doubt the testimony of PW.3 and Exhibit ‘P18 (1 -5)”.
Proper evaluation of his evidence, if carried out by the Tribunal would have made it manifest to the world the tribunal’s justification for the regard they had of him and his report.
The evidence of the PW.3 was treated under issue 5 at pages 997 – 999. I have thoroughly read the four paragraph discourse culminating in the holding that the evidence of PW.3, including his reports, should not be accepted by the Tribunal.
I have read the briefs of the Respondents on this issue. None came out boldly to say that the Tribunal did any evaluation before it came to the conclusion that the evidence of PW.3 and Exhibits ‘P18 (1 – 5) should be rejected, as it did. Mr. Akubo, SAN, of counsel to 6th Respondent argues that PW.3 did not front load his qualification by documentary proof and that the issue of qualification of an expert is important. That is not the basis of the Tribunal rejecting his evidence and his reports in their entirety.
I have read the transcript of the evidence of the PW.3, including the extensive cross-examinations of this witness; I can not find where he was impugned as to his character or the expertise he claimed. The cross examinations did not put the academic qualifications and the practical experience he claims for his expertise in forensic science of handwriting or fingerprint analyses. I completely do not agree with Mr. Akubo, SAN in his submission that, “the trial Tribunal carefully examined and /or evaluated the evidence before it”, and that the case of ANPP v. USMAN (supra) “applies to this case with equal force.”
The authority of ANPP v. USMAN (supra), relied upon heavily by the Tribunal is distinguishable, as submitted by Mr. Aboje for the Appellants.
The distinguishing facts are as follows: in ANPP v. USMAN the tribunal refused to rely on the evidence of a statistician because statistical analysis does not constitute expert evidence contemplated by section 57(2) of the Evidence Act, 1990 (now section 68(1) of the Evidence Act, 2011) that provides:
When the court has to form an opinion upon a point of foreign law, Customary law or Custom, or of science or art, Or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, customary or custom, or Science or art, or in questions as to handwriting or finger impressions, are admissible.
The adjective “skilled” denotes one or person having enough ability, experience and knowledge to be able to do something well. See OXFORD ADVANCED LEARNER’S DICTIONARY 7th ed. Having a skill does not a necessarily mean or is synonymous with possessing academic qualifications.
The skill or expertise may be acquired by training or practice.
Secondly, in ANPP v. USMAN (supra) the parties merely agreed to tender the written depositions of the so called expert without the “experts” mounting the witness box for cross-examination. It is for this reason that in the report this Court in ANPP v. USMAN stated that the party calling an expert witness has a duty to elicit from him in the witness box, “evidence of the basis of his claim as an expert.” In this case, the PW.3 mounted the witness box and he was cross-examined on the basis of his claim to expertise.
Finally, in ANPP v. USMAN the Tribunal, unlike the instant Tribunal, evaluated the entire evidence of the Petitioners. I had stated earlier that in the Tribunal’s judgment, pages 953 1002 of the Record, the Tribunal merely summarized or restated the facts without evaluating those facts. This practice was seriously criticized by the Supreme Court, as I also do here, in OLAGUNJU v. ADESOYE (2009) 33 WRN 1 at 36. A summary or restatement of evidence by the trial court is not the same thing as evaluation of evidence, which entails assessment of evidence, in order to value or quality to it. See ALHAJI OYEKOLA v. MADAM AJIBADE (2004) 32 WRN 134;
(2004) 17 NWLR [pt.902] 356.
Where the trial court fails to evaluate, or properly evaluate the evidence, before coming to conclusion the appellate court has no other option than to allow the appeal. That is the law restated by the supreme Court in KARIBO & OR v. GREND & ANOR (1992) 3 NWLR [pt.230) 426 at 441; MORENIKEJI & ORS v. ADEGBASIN (2003) 3 SCNJ 105; (2003) 8 NWLR [pt.823] 612. Accordingly, therefore, the issue whether having regards to the entire circumstances of this case, the trial Tribunal was justified in rejecting the evidence of PW.3, Supol Reginald Udunze and by extension the documents (Exhibits P18 (1 5)) tendered by or through him,is hereby resolved in favour of the Appellants against the Respondents.
Following this issue is also the issue whether the Tribunal was right in holding that the Appellants failed to discharge the requisite burden of proof on them. It is beyond doubt that the evidence of PW.3 and Exhibits ‘P18 (1 – 5) are integral or substantial portions of the totality of the evidence the Appellants had to discharge the burden of proving the allegations of malpractices, multiple thumb printing of ballot papers, mutilation of result sheets and false entries therein, etc that the Appellants made in their petition. It is logical and accord with common sense therefore, and without a much ado, that I also resolve this issue in favour of the Appellants. It was submitted for the Appellants that the evidence of PW.1 and PW.4 were intended to prove the allegations in paragraph 19 on which the Respondents lamely joined issues with the Appellants in their replies to the petition and that the Respondents had in effect made admissions against interest. The Tribunal in its judgment did not seem to have considered and property evaluated the testimonies of the PW.1 and PW.4 vis-a-vis the pleadings of the parties and the oral defence offered by the parties.
I have read the Briefs of the Respondents and I can not find therein where they proved that the Tribunal properly evaluated the evidence of PW.1 and PW.4 before it came to conclusion that the Appellants failed to discharge the burden of proof cast on them by law to prove their assertions or allegations. It is only by or through proper evaluation of the totality of the evidence of party that the trial court can come to the conclusion that the party had or had not discharged the burden of proof entitling him to judgment. That is the purport of MOGAJI v. ODOFIN (supra).
The evidence before the trial Tribunal was an admixture of both oral and documentary evidence. Where this Court finds that the trial court has not evaluated or properly evaluated the evidence before it, as in this case; this Court, by dint of section 15 of the Court of Appeal Act, 2004 and Order 4 Rules 3 of the 2011 Rules of this Court, has powers to draw inferences of fact and to give judgment and make any order, which ought to have been given or made. However, where the ascription of probative value to the oral evidence of witness(es) depends on the demeanour of the witness(es), the appellate court is hardly in a good position to do a good job of the evaluation of the testimonies. It is a different matter if the available evidence on the printed record are substantially documentary or where the evidence on both sides are not very hostile.
The evaluation of relevant and material evidence before the trial court and the ascription of probative value to such evidence are basically the primary functions of the trial court, which saw and assessed the witnesses while they testified. Where the trial court unquestionably evaluated the evidence and justifiably appraised the facts, it is not the business of the appellate court, as this Court, to substitute its own views for those of the trial court. See OJOKOLOBO v. ALAMU (1993) 9 NWLR [pt.565] 226; SHA v. KWAN (2000) 5 SC 178; FAGBENRO v. AROBADI (supra).
Appreciating the powers of this Court under section 15 of the Court of Appeal Act and Order 4 Rule 3 of the Court of Appeal Rules 2011 vis-a-vis the basic function of the trial court as regards seriously disputed facts I think it will be in the interest of justice that this matter be remitted to the Tribunal, differently constituted, for retrial. This we can do, my Lords, under Order 4 Rule 9 (1) of the Court of Appeal Rules, 2011 read with section 15 of the Court of Appeal Act and the inherent powers of the Court under section 6 (6) (a) of the 1999 Constitution, as amended. Accordingly, this petition is hereby remitted to the Tribunal, differently constituted as the President of the Court may do in his powers, for retrial. The judgment of the Tribunal delivered on 26th October, 2011, in the petition No EPT/KG/NAHOR/2/2011 is hereby set aside.
I have advisedly refrained from commenting on issues that might prejudge the live issues before the re-constituted Tribunal.
The Appellants are entitled to costs which I have assessed at N50,000.00. The same shall be paid to the Appellants jointly and/or severally against the Respondents jointly and/or severally.
As postscript, I seriously sympathize with the Judges forming the quorum of the trial tribunal. The work load, as they expressly admitted in the judgment at pages 981 – 982 of the Record, was obviously overwhelming and capable of producing diminishing returns. The relevant authorities have to look into this.
ZAINAB A. BULKACHUWA OFR, J.C.A.: I have been privileged to read before now the draft of the judgment just delivered by my learned brother EKO, JCA. It is the reasoning for the judgment we had earlier delivered on 19th December, 2011.
I agree with the reasoning and conclusion reached in over ruling the preliminary objections raised and in allowing the appeal. I adopt them as mine and also abide by the consequential orders including orders as to costs.
JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the lead Judgment of my learned brother EJEMBI EKO, JCA just delivered and I agree entirely with the reasons given therein and the conclusion reached.
It is also my view that the decision of the Tribunal delivered on 26/10/2011 in this Petition ought to be set aside and it is hereby set aside.
The petition is remitted back for retrial before another panel to be constituted by the Honourable Acting President of the Court of Appeal.
I abide by the consequential orders made in the lead Judgment.
Appearances
O.J. Aboje Esq. with Oluchi Umeh, Esq.For Appellant
AND
Emeje Aruwa, esq. with O.L. Uwaifo, Esq. and K.C. Ifekwen, ESQ., for 1st – 4th
Respondents. [The brief was settled by Paul O. Eshiemomoh, Esq.] U.A. Mohammed Esq., for 5th Respondent.
P.A. Akubo, SAN, with P.D. Abalaka, Esq. and Saleh Abdullahi, Esq. for 6th Respondent.For Respondent
