SENATOR IBIKUNLE AMOSUN v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2010)LCN/3607(CA)
In The Court of Appeal of Nigeria
On Monday, the 8th day of March, 2010
CA/I/EPT/GOV/01/2009
RATIO
ACTION: WHETHER A PARTY CAN WITHDRAW OR ABANDON ANY PART OR ALL OF HIS CLAIMS
Now generally speaking, a party has and reserves the right to at any stage of the proceedings in a case presented by him before a court or tribunal to withdraw and or abandon any part or all the claims he made therein, before judgment.
The abandonment must be express and precise on what was abandoned by a party and in accordance with the relevant rules of the court or tribunal before he can properly be said to have abandoned the claim in question. There are however situations recognized by law in which a party can be held to have abandoned claims made by him in a case, one of such situations is where a party omits or fails to call evidence in support of pleadings in respect of claims made in a case. HARUNA V. OJUKWU (1991) 1 NWLR (PT.165) 53, EZENNAH V. ATTA (2004) 2 S.C. (PT.II)75. PER MOHAMMED LAWAL GARBA, J.C.A.
ELECTION PETITION: WHEN WILL AN ALTERNATIVE CLAIM ARISE IN AN ELECTION PETITION
in law, the Appellant was entitled to make alternative claims in the petition, he had the duty to choose on which of the alternate reliefs to rely in the proof of his case because they are inconsistent and exclusive of each other and cannot be granted at the same time. The Appellant cannot claim that he won the election by scoring a majority valid votes cast and at the same time seek for the nullification of the election on the facts set out in the abandoned paragraphs of his petition. This is because if the election was void and therefore liable to be nullified, there can be no winner. See OPIA VS. IBRU (1992) 3 NWLR (PT.231) 659 and IGE vs. OLUNLOYO (supra),
In addition, it is also a settled principle of law that where an alternative claim/s is/are made in addition to the main claim/s it is only where or when the main claim/s is /are not granted that the alternative claim/s can arise because the two cannot be granted at the same time.
MICHAEL VS. YUOSUO (2004) 75 NWLR (PT.895) 90, UBN VS. PENNY-MART LTD (7992) 5 NWLR (PT.240) 228 at 241. PER MOHAMMED LAWAL GARBA, J.C.A.
EVIDENCE: DIFFERENCE BETWEEN ADMISSIBILITY AND PROBATIVE VALUE
Admissibility and probative worth or value of any piece of evidence are two different things in law. Whereas admissibility is largely a matter regulated by law, the probative value or weight of a piece of evidence depends on factors which include:- (a) admissibility itself, (b) relevance, (c) credibility, (d) probability, (e) conclusiveness etc. See ANYEGWU V. ONUCHE (2009) 37 NSCQR 109 at 127 N.A.B. V. SHUAIBU (1991) 4 NWLR (PT.786) 450 OMEGA BANK (NIG) PLC V. O.B.C. LTD (2005) 1 SC (1) 49, OSIGWE v. UNIPETROL (2005) ALL FWLR (PT.267) 1525, ONWUKA v. EDIALA (1989) 1 NWLR (PT.96) 182, MOGAJI v. ODOFIN (supra), AGBI V. OGBEH (2006) 11 NWLR (PT.990) 65. PER MOHAMMED LAWAL GARBA, J.C.A.
EVIDENCE: IMPLICATIONS OF DOCUMENTS ADMITTED IN THE ABSENCE OF ORAL EVIDENCE
In the case of NWOLE V. IWUAGWU (supra) at page 341, Aderemi, JCA (Later JSC) had stated the position of the law on such type of documents thus:-
“A party is under obligation to tie his document to facts or evidence or admitted facts in the open court and not through counsel’s address – written or oral. This is because it is not the duty of a court or Tribunal to embark upon cloistered justice by making inquiry into the case outside the court, not even by examination of documents which were in evidence when the documents have not been examined in open court, nor brought out and exposed to test in court or were not things that at least must have been noticed in the open court.”
His Lordship cited the cases of DURIMINIYA V. C.O.P. (1961) NNLR 70 and TERAB V. LAWAN (1992) 3 NWLR (PT.231) 569 for that position of the law which is more potent in this appeal even for the large amount, or number of the documents “dumped” on the Tribunal. The above position stated by Aderemi, JCA is solidly supported and put beyond argument by the Supreme Court in two cases, OBASI BROTHERS LTD. V. MBA SECURITIES (2005) 2 SC (1) 51 at 68 where Kalgo, JSC stated thus:-
“The admission of Exhibits F – Q in evidence at the trial is not a cure to this either because it is well settled that a judge cannot sit down out of court on his own and examine documents to sort out the case of a party. It is the duty of the party to elicit such evidence in court through its witnesses especially as in this case where various documents are involved.”
and the case of ALAO V. AKANO (2005) 4 SC 25 at 36 where it was held that:-
“It must also be noted that several documents were tendered pursuant to the claim. But it must be borne in mind that admitted documents useful as they could be, would not be of much assistance to the court in the absence of oral evidence by persons who can explain their purport.” PER MOHAMMED LAWAL GARBA, J.C.A.
EVIDENCE: WHETHER THE ADDRESS OF COUNSEL CAN AMOUNT TO EVIDENCE
I would emphasise here that the address of counsel no matter how brilliant cannot make up for want of evidence or adequate evidence to prove and establish points or issues in a case because the mere mention of the evidence admitted in the course of that address does not supplant the evidence already given in the court. It does not add to the case of a party in terms of pleadings or evidence already admitted at the trial but is only designed to assist the court by highlighting the essential points or issues to be decided and citing relevant authorities; statutory or judicial decisions of superior courts. BUHARI v. OBASANJO (supra), AZIKE v. ARARUME (2005) ALL FWLR (PT.263) 740 AT 754, BURAIMOH V. BAMGBOSE (1989) 3 NWLR (PT.109) 52, NWANOSIKE V. JOHN HOLT (2006) ALL FWLR (PT.301) 1809, OBODO V. OLUMO (1987) 3 NWLR (PT.59) 11 AT 123. PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
HELEN MORENKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
SENATOR IBIKUNLE AMOSUN Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. RESIDENT ELECTORAL COMMISSIONER/RETURNING OFFICER, OGUN STATE
3. OTUNBA JUSTUS OLUGBENGA DANIEL AND 257 OTHERS Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This appeal is from the decision of the Governorship and Legislative Houses Election Tribunal sitting at Abeokuta, Ogun State contained in the judgment delivered on the 27th August, 2009 in election petition No.EPT/06/GOV/02/2007. That Tribunal would hereafter be named the Tribunal.
The Appellant had presented the aforementioned petition by which he questioned the return of the 3rd Respondent as the duly elected Governor of Ogun State in the Governorship election conducted in the state by the 1st Respondent on the 14th day of April, 2007. The Appellant sponsored for the election by the All Nigerian Peoples Party (ANPP) and the 3rd Respondent sponsored by the Peoples Democratic Party (PDP) were among other candidates who contested or participated in the said election.
The grounds on which the Appellant questioned the election of the 3rd Respondent were not set out in the initial petition filed on the 7/5/07 or the amended petition filed on the 17/7/07 contrary to the requirements of paragraph 4(1)(d) of the First schedule to the Electoral Act, 2006. However in paragraph 37 of the amended petition the Appellant averred thus:-
“37. RELIEFS BEING SOUGHT BY THE PETITIONER
(a) It be determined that the 3rd Respondent did not win April 14th, 2007 Gubernatorial Election in Ogun State in that the 3rd Respondent did not receive the highest number of lawful votes in at least 15 Local Governments of Ogun State.
(b) It be determined that the Petitioner won the majority of lawful votes cast in all the 20 Local Governments Areas of Ogun State in the April 14th, 2007 Gubernatorial Election.
ALTERNATIVELY
(c) It be determined that the Governorship Election of April 14th, 2007 held in Ogun State is null and void, same having being bedeviled by violence, electoral malpractices, ballot stuffing, over voting, ballot box snatching and general non-compliance.
(d) An order nullifying the Governorship, Election held in Ogun State on April 14th, 2007 including the return made thereto.
(e) An order that the Petitioner may ask such further or other(s) as the Tribunal may deem fit to make in the circumstances.”
In partial compliance with the above named paragraph.
The Tribunal in the decision mentioned earlier dismissed the Appellant’s petition for “The petition either by proof beyond reasonable doubt or on preponderance of evidence is not proved as required by law” at page 3430 in Vol.8 of the record of the appeal.
The Appellant was apparently not only thoroughly dissatisfied with but also aggrieved by the said decision and so filed two (2) Notices of Appeal dated the 9/9/2009 containing fifteen (15) grounds of appeal and 16/9/2009 containing sixteen (16) grounds of appeal.
As required by the Practice Directions No.2 and the court of Appeal Rules both of 2007, briefs of argument were filed by learned counsel for the parties to the appeal. The Appellants’ brief was filed on the 9/10/2009 while with the leave of the Court, the 1st, 2nd and 4th – 23rd Respondents’ brief filed on the 13/1/10 as well as the 3rd and 260th Respondents’ Amended brief filed on the 15/1/10 were deemed properly filed on the 18/1/10; the day the appeal was heard. The Appellants’ Amended Reply brief to the 1st, 2nd and 4th – 23rd Respondent’s brief was filed on the 18/1/10, while the Appellants’ Reply brief to the 3rd and 260th Respondents’ was filed on the 21/10/2009.
At the hearing of the appeal, the briefs of arguments were adopted and relied on by the learned counsel for the parties to the appeal as their respective submissions in support of their Positions’
I should state here that at paragraph 1.03 on page 2 of the Appellants’ brief, the Notice of Appeal dated the 9/9/2009 was withdrawn and abandoned by the Appellant.
From the sixteen (16) grounds of appeal contained in the Notice of Appeal dated the 16/9107 and filed on 17/9/07, four (4) issues were distilled and said to be ones that call for determination at paragraph 4,00 on page 12 – 13 of the Appellant’s brief. They are as follows:
“1. Whether the trial Tribunal was right and correct in law in the way and manner it off handedly dealt with the unchallenged, unrebutted and uncontroverted evidence of the PW41 and exhibit U which has its foundation in the electoral documents tendered at the Tribunal and in failing to attach the deserved (or any) weight and effect to the said documents which were admitted without any objection?
2. Whether the trial Tribunal was not in error in the view it took that all the allegations in the petition must be and were not proved beyond reasonable doubt when not all the allegations border on commission of crimes, the allegations were severable and the appellant discharged the onus of proof on him beyond reasonable doubt and on preponderance of evidence.
3. Whether the trial Tribunal was not in error in the way and manner it treated the evidence of the PW1 – PW40 and in proceeding to dismiss the petition in its entirety for want of evidence when in addition to the evidence of the PW1 – PW40 there was avalanche of documents tendered in support of the petition by the appellant.
4. Whether having regard to the totality of the petition and evidence adduced the trial Tribunal could and was right legally and factually in the view it took that the appellant abandoned any aspect of his pleadings other than the paragraphs expressly abandoned by him before the trial Tribunal. ”
In their respective briefs, the Respondents framed issues which are in substance similar to the above issues. That being the position, the appeal would be determined on the issues submitted by the Appellant who is the complainant in the appeal.
Mr. Yusuf O. Ali, SAN, leading Chief Adeniyi Akintola, SAN, Chief Robert Clark, SAN and other learned counsel for the Appellant in his oral emphasis of the issues argued in the Appellants’ brief said the complaint in issue No.1 is on the manner and way the Tribunal dealt with the testimony of PW41. According to him, the witness was never discredited on the record but the Tribunal only stated in its decision that it was not going to rely on his evidence because he was not an expert in election matters. It was his submission that the view of the Tribunal on the witness and Exhibit U was a clear perversion of Section 57(1) of the Evidence Act which did not say that to be an expert, one has to have a degree in the field concerned. Further that the evidence by PW41 was never controverted and that Exhibit U which he prepared had its foundation in the election materials e.g. Forms ECB As, EC8Bs, etc which were admitted as Exhibits forming part of the evidence at the trial.
He contended that the only way to contradict the evidence of an expert witness is to call another expert witness and a court must be circumspect in rejecting it in the absence of evidence contradicting it as was done by the Tribunal. The case of FASAKIN V. SIWOKU (2009) 4 NWLR (PT.1132) 905 at 322 was cited on the submissions and we were urged to resolve the issue in Appellants’ favour.
On issue No.3, learned Senior Counsel said the complaint therein was on the rejection of the evidence of PW1 – 40 by the Tribunal on the ground that they were not INEC accredited polling agents contrary to Section 77 of the Evidence Act. He said the Tribunal manufactured contradictions in the evidence of the witnesses to justify its position and then argued that the fact that a witness gave evidence of what he saw in terms of malpractices even if not a polling agent does not derogate from his testimony once it is cogent, credible, believable and direct like the evidence of the witnesses. Reference was made to the case of LASUN VS. OWOYEMI (2009) 16 NWLR (PT.7768) 573 at 553 – 4 PARAGRAPH A – H and the court was urged to resolve the issue in Appellant’s favour.
Highlighting issue No.2, it was the submission of Ali, SAN, that the evidence of PW1 – 40 covered all the contentious issues joined on the election in question which were not criminal in nature. He said that allegations of electoral malpractices are not in law criminal allegations and that the decision of the Tribunal would have been different if it had appreciated that position of the law. We were urged to adopt the position of the court in Appeal No.CA/I/EPT/FH/27/08, decision of which was delivered on the 22/10/2009. As requested by the court, copies of the unreported decision was made available by the learned senior counsel after the hearing of the appeal. Pages 56 – 58 of the Appellant’s brief were also referred to by him and we were urged to be persuaded and guided thereby in making the order for the declaration of the Appellant as the winner of the election in question.
Finally, we were prayed to allow the appeal.
In his own oral emphasis, Mr. Olayode Delano leading M. Akinrimade, Esq, for the 4th, 2nd and 4th – 23rd Respondents said contrary to the arguments of the Appellant, the evidence of PW41 was discredited and referred to pages 3411 – 3413 in Vol.8 of the record of appeal. He then submitted that it was the Appellants’ duty to demonstrate that PW41 was an expert by qualification and that the subject of his evidence is within the confines of section 57 of the Evidence Act. It was the contention of learned counsel that PW41 did not reveal any qualification to enable him present evidence in court and that the witness conducted all sorts of analysis without showing the basis of the findings.
On issue No.2, it was submitted that the Tribunal could not have acted on the documents admitted without oral evidence connecting them with the issues to which they related and that the Tribunal had no duty to investigate the documents and fish out evidence for a party.
Mr. Delano said on issue No.3 that the allegations made by the Appellant in his petition were criminal in nature and referred to paragraph 11.2 of his brief. According to him, referring to page 26 of his brief, the Appellant had abandoned the allegations of thuggery, violence and intimidation as well as the reliefs for the nullification of the election. In the alternative, he said since the Tribunal had considered all the evidence adduced at the trial of the Appellants’ petition, no miscarriage of justice was occasioned because the Appellant did not demonstrate it.
We were in conclusion urged by him to dismiss the appeal and affirm the decision of the Tribunal.
Professor Taiwo Osipitan, SAN with Tayo Oyetibo, SAN, Kemi Pehinro, SAN, Kunle Kalejaiye, SAN leading other learned counsel for the 3rd and 260th Respondents had said in his oral emphasis that the Appellant had abandoned some reliefs contained in his petition as reflected at page 2205 in Vol.5 of the record of appeal. He therefore submitted that the only live issue in the appeal is whether the Appellant scored the highest number of votes to be declared the winner of the election in question. The learned senior counsel argued that with the abandonment of the reliefs seeking nullification of the election, all arguments thereon are no live issues.
He then said that there were 3210 polling units in Ogun State and that the forty (40) witnesses who testified for the Appellant did not give and could not have given evidence on all the units but only 40 of them.
According to Prof. Osipitan, SAN, it was not possible for the Appellant to have scored a majority of the votes cast at the election based on the evidence given by the witnesses even if he was given all the votes in respect of which they testified.
On issue No.1 in particular he said the law recognizes two types of experts; professional expert and amateur expert and that PW41 did not show and was not shown to be an expert in examination of election materials or analyzing election results. Further that the nature of the evidence given by the witness was not within the ambit of Section 57 since no analysis was mentioned therein and that analysis of evidence was not for an expert but for the court. In addition, it was submitted that the evidence of PW41 was discredited in that he was shown to have an interest to protect as a hired expert. Pages 3398 in Vol.8 of the record of appeal were referred to and we were urged to be wary of interfering with the findings of the Tribunal because it had the opportunity of seeing the demeanour of the witness and that they were not Perverse.
It was also the submissions of the learned senior counsel that the evidence of PW1 – 40 was fully analysed by the Tribunal before coming to the conclusion that it was insufficient to support the Appellants’ case that he emerged as the candidate with the highest number of votes in the election. He then referred to the case of ABUBAKAR V. YAR’ADUA (2009) 5 WRN 7 at 737 on the arguments contained at pages 25 – 31 of his brief that the allegations made by the Appellant in his petition were criminal. We were urged in conclusion to dismiss the appeal.
In response, Ali, SAN for the Appellant stated that the case cited by his learned brother silk is also reported in (2009) 79 NWLR (PT.7720) 7 and that it is not relevant because the Petitioner in the case did not call evidence. He then submitted that issues of science mentioned in Section 57(1) of the Evidence Act includes statistical analysis on which Exhibit U was based. In any case, he argued, even if the witness was not an expert, the Tribunal was wrong to have ignored his evidence, as an ordinary witness who gave direct evidence.
Relying on the case of OKOCHI V. ANIMKWOI (2003) 78 NWLR (PT.857) 7 at 27 Paragraphs F – G, learned senior counsel said that in law it is the quality of the evidence which matters and not quantity and so the Appellant was not required to call a witness for each of the polling units in order to prove his case. Finally he pointed out the scores set out in the Appellants’ petition was not an admission but a fulfillment of the requirement by law. Once again he urged the court to allow the appeal on the whole.
I would like to observe that the oral emphasis or amplifications of the submissions on the issues submitted for determination by the learned counsel represent substantially, the germane points raised and canvassed in the briefs of argument such that a further review of the submissions by way of summary as usual, becomes a mere formality. In order to avoid an unnecessary and tedious repetition of the submissions on the issues canvassed in the respective briefs of argument which put together run into 228 printed pages, I intend to make reference to the relevant portions of the submissions by learned counsel in the determination of the vital issues in the appeal.
My determination of the issues formulated by the learned senior counsel for the Appellant would start with the issue No.4 as set out earlier because its outcome might affect the consideration and determination of the other issues particularly issue No.2. As a reminder, issue 4 is in the following terms:-
“Whether having regard to the totality of the petition and evidence adduced the trial Tribunal could and was right legally and factually in the view it took that the appellant abandoned any aspect of his pleadings other than the paragraphs expressly abandoned by him before the trial Tribunal.”
This issue enured from ground 1 of the Appellants’ Notice of Appeal which attacked the finding of the Tribunal that by paragraph 5.01, page 74, Vol.I and paragraph 3.03, page 27 of Vol.II of the learned counsel’s final address filed at the close of evidence in the trial of the petition, the Appellant had abandoned all the allegations made in paragraphs 3, 8, 9, 13, 15, 19, 20, 22, 23, 24 and 26 to 34 of his petition. In brief, these paragraphs contain various allegations in paragraphs 3, 8, 9, 13 and 15 against the 1st and 2nd Respondents of failure to distribute all ballot papers, non-publication or display of full names of candidates who contested the election etc, in paragraphs 19, 20, 26, 27, 28, 29, 30, 31, 33 and 34 various allegations of intimidation, thuggery, violence, ballot box snatching, stuffing of ballot papers and outright stealing of electoral materials against the 3rd Respondent and people said to be his agents.
Now generally speaking, a party has and reserves the right to at any stage of the proceedings in a case presented by him before a court or tribunal to withdraw and or abandon any part or all the claims he made therein, before judgment.
The abandonment must be express and precise on what was abandoned by a party and in accordance with the relevant rules of the court or tribunal before he can properly be said to have abandoned the claim in question. There are however situations recognized by law in which a party can be held to have abandoned claims made by him in a case, one of such situations is where a party omits or fails to call evidence in support of pleadings in respect of claims made in a case. HARUNA V. OJUKWU (1991) 1 NWLR (PT.165) 53, EZENNAH V. ATTA (2004) 2 S.C. (PT.II)75.
The basis of the Tribunal’s finding that the Appellant had abandoned the aforementioned paragraphs of his petition as stated earlier, is the learned counsels’ final address. The final address is contained from Pages 2135 to 2233 of volume 5 of the record of appeal. Paragraph 5.01 at page 74 of Volume 1 of the final address relied on by the Tribunal is at page 2208 of the record of appeal and as follows: –
“5.01. In Paragraph 37 of the petition, your Petitioner’s items of relief are set forth. Those items as set out in paragraph 37(9) and (b) are now sought while the other items of relief as relates to nullification simpliciter of the 14th April, 2007 Governorship Election of Ogun State are abandoned for the following reasons.”
Paragraph 3.03 of the address also relied on by the Tribunal is at page 216L of the record of appeal and the relevant opening sentence thereof is in the following terms:-
“3.03 (1) The case made out by your Petitioner is contained in his Petition at Paragraphs 14, 35 and 36.”
The submissions of learned senior counsel is that the above statements cannot by any stretch of imagination be equated to mean that the Appellant had abandoned the paragraphs set out by the Tribunal. He said the actual intention of the Appellant in his address was to drive home the point that the 3rd Respondent was not elected by the number of valid votes cast and that he instead won on the basis of valid votes cast at the election. Relying on the case of MASON V. HALLIBURTON ENERGY SERVICES LTD (2007) 2 NWLR (PT.1018) 277 at 234, it was argued that to constitute abandonment, there must have been an intention to desert, surrender, forsake or cede such paragraphs of the petition. According to him, if the Tribunal had quoted the Appellant’s paragraph 5.01 of the final address fully, it would have noted that there was no intention to abandon the said paragraphs. After setting out paragraph 5.01, Learned Senior Counsel argued that if the intention was to abandon the said paragraphs, learned counsel would not have proceeded to call witnesses on them.
The finding of the Tribunal was said not to be borne out by the record and evidence before it and so it was wrong on both state of the pleadings and evidence. The case of F.B.N. PLC V. A.C.B. LTD (2006) 7 NWLR (PT.962) 438 at 487-2 was cited on the need for a court to confine itself to the case presented by the parties.
In addition, it was submitted that the holding that the Appellant had abandoned the said paragraphs impacted negatively on his case and it led to the dismissal of the petition. That the view of the Tribunal truncated the Appellant’s right to a full and fair hearing as protected by taw, placing reliance on OJO V. FRN (2008) 77 NWLR (PT.1099) 467, OLUBODUN v. LAWAN (2008) 17 NWLR (PT.1115) 1.
It was also the case of the Appellant that there can only be an abandonment of pleadings when a party has not led evidence on pleaded facts, citing PROGRESS BANK (NIG) LTD V. UGONNA (NIG) LTD (1996) 3 NWLR (PT.435) 202 at 277. That the Appellant had called evidence in support of the paragraphs said to have been abandoned both oral and documentary and so the finding by the Tribunal was premised on conjectured speculation which a court should not engage in as stated in UWAGBUE V. STATE (2008) 12 NWLR (PT.1102) 621.
We were urged to resolve the issue in Appellants’ favour.
The learned counsel for the 1st, 2nd, 4th – 23rd Respondents’ submissions are to the effect that having expressly withdrawn the reliefs in paragraph 37(c) and (d) of his petition which sought for nullification of the election, it followed that the paragraphs of the petition which were introduced in support or justification of the said reliefs became redundant and the Tribunal was right in its view that the said paragraphs were abandoned. Furthermore, it was contended by him that it was in support of the abandonment that of the various paragraphs of the petition and in order to avoid the onus of proof beyond reasonable doubt that the Appellant argued the doctrine of severance of pleadings.
Alternatively, it was submitted by learned counsel that even if the finding of the Tribunal was in error, the error has not been shown to have occasioned a miscarriage of justice. Civil Procedure in Nigeria at page 806 by Fidelis Nwadialo was cited on the point.
The paragraphs said to have been abandoned were then analysed by learned counsel who concluded that the analysis reveals that the averments therein were not material for the determination of the petition. He said the Tribunal did indeed consider all the oral and documentary evidence adduced by the Appellant extensively in respect of all the allegations in the petition.
The submissions of the learned senior counsel for the 3rd and 260th Respondents are that it is trite that the reliefs claimed in an election petition must relate to the grounds of the petition and specific paragraphs in the petition and so cannot be claimed in vacuo. He relied on the case of HASHIDU V. GOJE 2 EPR, 790 AT 836 (the full citation is (2006) 2 EPR 789) and argued that since the reliefs in paragraph 37(c) and (d) of the petition were abandoned, all the paragraphs in support thereof in the petition are equally deemed abandoned. Further that the Appellant cannot abandon the reliefs and retain the paragraphs relevant to them as that will be blowing hot and cord or approbating and reprobating an attitude condemned by the courts on the authority of OJUKWU vs. OBASANJO 1 EPR 626 (2004) 1 EPR, 626) at 652.
It was also submitted that having abandoned the reliefs, the Appellant clearly admitted abandoning all the paragraphs relevant to those refiefs and is estopped from challenging the Tribunal’s finding that the said paragraphs were abandoned.
In the alternative, submissions similar to the ones by the learned counsel for the 1st, 2nd and 4th & 23rd Respondents were made on the issue and it was contended that it is not enough for the Appellant to show that the Tribunal was wrong on an issue but must show that the error resulted in substantial miscarriage of justice. The cases of GARKO vs. STATE (2006) 6 NWLR (PT.977) 524 at 544, WALI vs. BAFARAWA (2004) 16 NWLR (PT.898) 7 at 48 and FATOBA VS. OGUN DAHUNSI (2003) 4 NWLR (PT.809) 323 at 347 were cited in support of the alternative submissions. Learned senior counsel also argued that the mere fact that witnesses were called in support of the allegations in the paragraphs is no reason for holding that they were not abandoned since the reliefs which they support were abandoned.
In his reaction, learned senior counsel for the Appellant submitted that the case of OJUKWU VS. OBASANJO (supra) did not support the proposition that abandonment of some reliefs translates to abandonment of paragraphs of the petition.
Without the need to waste much verbiage, I would state that the learned counsel for all the Respondents are right in the submissions that a party cannot claim a relief/reliefs in vacuo and that any reliefs claimed in a case must relate to, arise from or be based on the facts set out in the pleadings of the party. The facts averred in the pleadings are the foundation from which any relief/reliefs in a case must be built and based otherwise the belief/beliefs would have no legs to stand in law. Specific reliefs cannot therefore be claimed without the relevant facts in the pleadings which ground them.
In this regard where such specific reliefs premised on particular facts set out in the pleadings of a party are expressly abandoned, the abandonment would of necessity affect the facts from which they were founded. This is because such reliefs could no longer be granted by the court even if evidence was adduced in respect of the facts supporting them since they were abandoned and therefore not claimed by the party. MUSTAPHA VS. BITIAMA (1999) 3 NWLR (PT.595) 376, CHIANSON VS. IGBA (2004) ALL FWLR (PT.224) 7998 at 2027, IGE VS. OLUNLOYO (1984) 7 SC 258. In the present appeal, the reliefs in paragraph 37(c) & (d) of the Appellants’ petition which were expressly abandoned by the learned counsel in the final address are in relation to and founded on the facts asserted in the pleadings in respect of the allegations of violence, thuggery, ballot snatching, stuffing of ballot papers etc. all of which were asserted to be malpractices which amounted to non-compliance with the Electoral Act proof which would have warranted or justified the grant of the reliefs by the Tribunal. With the abandonment of the reliefs even though evidence was called by the Appellant in support of the allegations in the pleadings upon which they were based, the Tribunal could no longer grant the abandoned reliefs because they were not claimed by the Appellant any more. In the circumstances, the Tribunal was entitled and therefore right to have found that the relevant paragraphs of the Appellants’ pleadings which formed the basis upon which the abandoned reliefs were premised, were by necessary and reasonable implication, deemed and abandoned by the Appellant. Infact the intention to abandon the said paragraphs of the Appellant’s petition was made very clear by the portion of the learned counsel’s final address relied on by the Tribunal and it only amounted to an after thought to attempt to resile from such disclosed intention. I must say that the Appellant had no option in respect of the reliefs claimed in his petition because the abandoned reliefs were claimed in the alternative. Though in law, the Appellant was entitled to make alternative claims in the petition, he had the duty to choose on which of the alternate reliefs to rely in the proof of his case because they are inconsistent and exclusive of each other and cannot be granted at the same time. The Appellant cannot claim that he won the election by scoring a majority valid votes cast and at the same time seek for the nullification of the election on the facts set out in the abandoned paragraphs of his petition. This is because if the election was void and therefore liable to be nullified, there can be no winner. See OPIA VS. IBRU (1992) 3 NWLR (PT.231) 659 and IGE vs. OLUNLOYO (supra),
In addition, it is also a settled principle of law that where an alternative claim/s is/are made in addition to the main claim/s it is only where or when the main claim/s is /are not granted that the alternative claim/s can arise because the two cannot be granted at the same time.
MICHAEL VS. YUOSUO (2004) 75 NWLR (PT.895) 90, UBN VS. PENNY-MART LTD (7992) 5 NWLR (PT.240) 228 at 241.
In the result, the facts and circumstances of the Appellant’s pleadings, amply, justified and warranted the funding that the abandonment of the alternative reliefs in paragraphs 37(c) and (d) of the petition effectively translated and amounted to the abandonment of the pleadings contained in paragraphs 3, 8, 9, 13, 15, 19, 20, 26, 27, 28, 29, 30, 31, 33 and 34 which contained the allegations of the facts on which the reliefs were founded and based. With the express abandonment of the reliefs, the said paragraphs were rendered hollow and redundant in the Appellant’s case. The Tribunal was consequently right in its funding on the issue which I accordingly resolve positively and against the Appellant.
I would next consider the Appellant’s issue No. 2 which is:-
“whether the Tribunal was not in error in the view it took that all the allegations in the petition must be and have not proved beyond reasonable doubt when not all the allegations border on commission of crimes, the allegations were severable and the Appellant discharged the onus of proof on him beyond reasonable doubt and on preponderance of evidence.”
Learned senior counsel for the Appellant had submitted on the issue that by paragraph 14 of the amended petition, the Appellant had, averred that the election in question was conducted in clear contravention of the Electoral Act, 2006 and that the votes casts in some named Local Governments Areas, were not in accordance with the law, not counted by the presiding officers. He then set out portions of the evidence of PW1, PW2, PW4, PW10, PW11, PW17,PW20, PW27, PW28, PW29, PW30, PW31 AND PW33 which according to him, confirmed the averments in paragraphs 14, 35 and 36 of the petition and discharged of the burden of proof beyond reasonable doubt with respect to the criminal allegations of violence, snatching of ballot boxes and or rigging of elections, Further that the allegations of over voting, non voting, failure to count votes and non compliance with the Electoral Act were proved on the preponderance of evidence by the evidence of the witnesses as well as the Forms EC8A, EC8B, EC8C, EC8D, EC8E and EC25E which speak for themselves and presumed genuine on the authority of section 114 of the Evidence Act and IRP (NIG) LTD VS. OVIAWE (1992) 4 NWLR (PT.183) 119, ODUBEKO VS. FOWLER (1993) 7 NWLR (PT.308) 637 at 655 and 659 among other cases cited in the brief.
It was submitted that it is now settled that in an election petition, once electoral forms are tendered, the Tribunal or court is enjoined to scrutinize them to determine the case without specifically calling any witness to speak to the forms. The statements of Aikawa, JCA in TERAB VS. LAWAN (1992) 3 NWLR (PT.237) 569 and Bulkachuwa, JCA in KINGIBE VS. MAINA (2004) FWLR (PT.797) 7555 at 7589 – 90 as well the case of CONCORD PRESS VS. OLUTOBA (1999) 9 NWLR (620) 578 at 590 were relied on for the submission. That the Appellant had demonstrated the documents by oral evidence of the above named witnesses, PW41 and Exhibit ‘U’. The cases of SAIDU VS. ABUBAKAR (2008) 12 NWLR (PT.1100) 201 at 298 and 302, ANPP vs. USMAN (2008) 12 NWLR (PT.1100) 1 at 89, ARABAMBI vs. ADVANCE BEVERAGES LTD (2005) 12 SCNJ 331 at 356 inter alia, were cited on the point that, once a document is received in evidence and so marked, it becomes evidence before the court and should be allowed to speak for itself and should be considered by the court.
On the burden of proof, learned senior counsel said it is not static and is dependent on who would lose if no further evidence is adduced, relying on MAXIMUM INSURANCE CO. LTD US. OMONIYI (1994) 3 NWLR (PT.331) 178 at 192. That in election petition, the first burden is on the petitioner but where he offers evidence with regard to his allegations of non compliance with the provisions of the Electoral Act, a respondent has a duty to offer credible evidence as required by section 146(1) of the Act. It was further submitted by him that the burden of proof shifts from one side to the other depending on the state of the pleadings and the evidence in support thereof by the parties. BUHARI vs. INEC (2008) 19 NWLR (PT.1120) 246 at 350 + ADEGOKE VS. ADIBI (1992) 5 NWLR (PT. 242) 470 at 423, ONITADE VS. OYEDEMI (1995) 5 NWLR (PT.60) 54 at 67 were cited as authorities. He then argued that the conclusion of the Tribunal does not represent the true position of the law as it put a greater burden on the Appellant.
In addition, it was submitted that proof beyond reasonable doubt, on the authorities of AIALEZI VS. THE STATE (1993) 2 NWLR (PT.273) 7 at 13, STATE VS. AKPABIO (1993) 4 NWLR (PT.286) 204 at 224 – s, AYOGU VS. NNAMANI (2006) 1 NWLR (PT.987) 760 at 794 and LORI VS. STATE (1980) 77 SC 87 at 99, is not tantamount to proof beyond all shadow of doubt.
According to Mr. Ali, SAN, the Appellant by credible, reliable and positive evidence both oral and documentary, succeeded in proving beyond reasonable doubt all the criminal allegations establishing the various electoral malpractices committed by the Respondents and named individuals. Specifically, he referred to Exhibits Q1936 and Q1940; Registers of polling unit 002 which show that the 3rd Respondent registered and voted twice in the election and stressed that non of the individuals named were called to deny the allegations. It was contended that the evidence of PW1, 2, 6 – 8, 10 – 16, 26 – 29, 31, 35, 39 and 40 remain credible and unassailable and so there was no factual reason for the Tribunal to hold that the petition was not proved beyond reasonable doubt as required by law. The cases of ONOH VS. OKEY (1999) 5 NWLR (PT.602) 240 at 248 and NWOBODO VS. ONOH (1984) 7 SCNLR 7, (7984) 75 NSCC J were cited for support and it was concluded on the point that the Appellant had proved the allegations beyond reasonable doubt.
It was then argued that the entire petition of the Appellant was not anchored entirely on criminal allegations since facts were pleaded on non-compliance with the Electoral Act, including over voting, non-counting of votes which do not require proof beyond reasonable doubt and enough to support the reliefs sought. Further more’ that proof of non-compliance and certain irregularities in an election petition is by preponderance of evidence or balance of probability which was explained in many cases that include IBIYEYE V. FOJULE (2006) ALL FWLR (PT.302) 156, YAKUBU v. JENROYE (2005) ALL FWLR (PT. 283) 784, That the Appellant could in law even severe the pleadings and abandon the criminal allegations in the light of the copious evidence adduced which support the grant of the reliefs on non-compliance. The case of NWOBODO V. ONOH (1984) 75 NSCC 7 at 76 was cited on severance of pleadings in election petition and the Statement of Sanusi, JCA in the case of CHUKWUMA v. ANYAKORA (2006) ALL FWLR (PT.302) 112 at 137 on the manner of proof of wrong doing in erection petition.
It was also submitted that the Tribunal failed to appreciate the case of the Appellant when it held that he had the duty to produce two sets of results and it is not the law that a petitioner who claims to have won by majority of lawful votes has a duty to present two sets of results. That the duty is only imposed where a petitioner alleges falsification of results as determined in NWOBODO v. ONOH, OMOBORIOWO v. AJASIN and YUSUF V. OBASANJO (all supra). It was the further submission of learned senior counsel that the law only imposes a duty on a petitioner who claims that he won by a majority of lawful votes to show by evidence the areas where there were noncompliance and the votes which were wrongly accredited to the candidate declared to have won. These votes will then be deducted from the votes from the INEC results to arrive at the conclusion of who scored the highest number of lawful votes as between the petitioner and the person declared to have won the election. That in the present appeal, the Tribunal had the duty to engage in the arithmetical computation of the lawful votes for the affected candidates at the election and if it failed to discharge it, this Court was empowered to do so by virtue of Sections 179(2) of the 1999 Constitution and 147(2) of the Electoral Act, 2006.
It was then submitted that from the tables set out in the brief, it is clear that the Appellant has the highest number of lawful votes cast at the election in dispute and had satisfied the constitutional requirements in respect of Local Government Areas. SAM V. EKPELU (2000) 7 NWLR (PT.642) 582 at 596, ADUN V. OSUNDE (2003) 70 NWLR (PT.847) 643 at 666-7 among other cases were cited on the right and duty of the Tribunal to do the calculation and collation of the election results and we were finally urged to resolve the issue in Appellants’ favour.
The issue was argued by the learned counsel for the 1st, 2nd and 4th – 23rd Respondents in his issues 2 and No.3 in which he also argued the Appellant’s issue No.3.
On the standard of proof, it was submitted by him that the Tribunal did not apply a higher standard of proof than was applicable to the Appellant’s case and that the standard required for allegations of malpractices depends on the nature of the allegations. That all the allegations made in the Appellant’s petition were criminal in nature and required proof beyond reasonable doubt. In particular, learned counsel contended that the allegations in paragraphs 19, 20, 26, 27, 28, 29, 30, 32 and 33 are of crimes under sections 125(j), 136(j),(4) and 138(a)(b) and (c) of the Electoral Act and require to be proved beyond reasonable doubt on the authority of AYOGU v. NNAMANI (supra). He then said that the Tribunal had set out the contradictions in the evidence of the Appellant’s witnesses and was in the best position to observe their demeanour in order to come to a proper assessment of their veracity and reliability. That an appellate court without the benefit of that position, will not save in exceptional circumstances, interfere with the findings of a trial tribunal or court. Reliance was placed on IGE v. AKOJU (1994) 4 NWLR (PT.340) 535 at 543 for the position.
Learned counsel also argued that it was incumbent on the Appellant to put before this court sufficient and cogent material to demonstrate that the findings of the Tribunal cannot be supported before inviting the court to overturn them. This, according to him, was not done by the Appellant. He said it was a misconception to argue that all that the Appellant was required to do was to tender documents in evidence without oral evidence in support and expect the Tribunal to assess them in chambers and thereafter deliver a verdict as to the validity or otherwise of an election. That the phrase “the document speaks for itself” relied on by the Appellant is merely a colloquial statement of Section 91 of the Evidence Act which excludes oral evidence being presented to contradict the contents of a document and which does not mean proof of the document.
It was submitted that in so far as electoral forms are the results declared by INEC, the Appellant by tendering them is in fact supporting the validity of the results contained therein and if he alleged any irregularities in them, he had to particularize them and call oral evidence which will link the documents with such irregularities. Further that the Appellant did not particularize any allegations in his pleadings which would give direction as to what the Tribunal would be searching in its hollowed chambers and that the Tribunal was right to refuse to turn itself into an investigatory body and embark on proving the case of the Appellant for him. The cases of JALINGO v. NYAME (1992) 3 NWLR (PT.231) 534 DAUDA V. ALIRU (1999) 5 NWLR (PT.601) 94 at 99 and ADEBANJO V. BROWN (1990) 3 NWLR (PT.141) 667 at 675 were retied on by learned counsel as supporting his submission and he added that for that reason, Section 15 of the Court of Appeal Act is not applicable. He also argued that Exhibit ‘U’ had no value because the table and the cross reference made by the Appellant were not known or disclosed and not evidence before the Tribunal as the table only surfaced during final address.
The submissions by the learned Senior Counsel for the 3rd and 260th Respondents on the issue are that the Tribunal was right that from the evidence adduced, the case put forward by the Appellant was interwoven such that it was not possible to severe the criminal from the non criminal allegations. That the evidence of the witnesses called by the Appellant in support of irregularities and non compliance are of criminal nature since it related to outright manufacture of election results in areas where it was alleged that election did not take place or disrupted, kidnapping of INEC officials by thugs, ballot box snatching and stuffing. In addition, it was submitted that the Appellant failed to prove that the perpetrators of the alleged, crimes acted at the material time, as agents of the 3rd Respondent with his knowledge and consent. According to him, failure to prove a nexus between the 3rd Respondent and the alleged perpetrators of the crimes also accounted for the dismissal of the petition. Section 161(6) of the Electoral Act, 2006 and the case of NWOLE V. IWU AGWU (2005) 16 NWLR (PT.925) 543 at 568 were referred to. It was his further submission that where there are allegations of widespread non-compliance if the allegations were proved the remedy is to nullify the results either for the whole election or in the areas where irregularities occurred. That in the present appeal since the Appellant had abandoned the relief for nullification of the election, he is estopped from impeaching the election result on ground of violence and thuggery, placing reliance on AYALOGILN V. AGU (2002) 3 NWLR (PT.753) 768 at 783, Also that the Appellant did not prove that but for the various alleged non compliance, he would have won the election thereby showing that the election result was substantially affected and so his petition was rightly dismissed. MALACHI V. IBOM (2004) 16 NWLR (PT.900) 614 and IHUTE V. INEC (1999) 4 NWLR(PT.599) 360 at 363 were relied on.
In addition, it was contended that the Appellant had a duty to plead and tender two (2) sets of result but failed to do so and the Tribunal was right to dismiss the petition on the authority OJO V. ESHOLE (1999) 5 NWLR (PT.603) 44 at 52 EZEAZODOSIAKO V. OKEKE (2005) 16 NWLR (PT.952) 612 and KALU V. UZOR (2006) 1 NWLR (PT.987) 66 at 703.
The learned senior counsel finally said the Appellant had failed to discharge the burden of proof and we were urged to resolve the issue in favour of the Respondents.
In his reply to the submissions by the learned counsel for the 1st, 2nd and 4th – 23rd Respondents, learned Senior counsel for the Appellant said that section 91 of the Evidence Act was wrongly sought to be relied on since parties are bound by their pleadings in which the origin of the electoral documents was not joined as an issue therein.
There was no response in respect of the submissions for the 3rd and 260th Respondents on the issue.
From the respective submissions by the learned counsel on the issue it is clear that it centres on these points canvassed therein;
(1) on the standard of proof required by law of the Appellant to prove the allegations contained in paragraphs 14, 35 and 36 of the petition.
(2) severability of the criminal allegations from the allegations which are not criminal in nature.
(3) discharge of the burden of proof by the Appellant on the evidence adduced.
Restatements of established principles of law on these points would provide a firm pedestal on or from which they could be determined.
Learned counsel are one on the position of the law that allegations of a crime or of a criminal nature made in election petitions are to be proved beyond reasonable doubt.
In other words, the standard of proof required by law for allegations of a crime in an election petition is beyond reasonable doubt. In addition to the authorities cited by learned counsel on the position, see ADEDEJI V.KOLAWOLE (2006) 2 EPR 70 at 86 and 93, JANG v.DARIYE (2004) FWLR (PT.194) 472 at 432 – 3, IBRAHIM V. SHAGARI (2007) 99 at 708, JULES V. AJANI (1980) 5 -7 SC 96 at 115 – 6.
Similarly proof on the preponderance of evidence or balance of probabilities is the standard required by law in respect of allegations or pleadings which do not involve the commission of a crime in election petitions which for that purpose are treated as civil actions. AKANNI V. ADEJIPE (2004) ALL FWLR (PT.218) 822 NWABUOKU V. OTIH (1991) 7 NWLR (PT.109) 352 MAGAJI V. ODOFIN (1978) 3 – 4 SC 94 at 95. The burden of proof whether on the preponderance of evidence or beyond reasonable doubt in election petitions is on the party who asserts or makes allegations of a criminal nature. The burden on the preponderance of evidence simply means the duty of introducing admissible, credible and sufficient evidence which prima facie establish the operative facts upon which a party relies in making his claim/s. This is also called the evidential burden which in civil cases’ is not static but depends on the state of the pleadings. However the initial burden of proof in election petitions lies on the Petitioner because it is he who usually makes allegations or assertions against the Respondents. AWUSE V. ODILI (2005) ALL FWLR (PT.261) 248, ONIFADE V. OYEDEMI (1999) 5 NWLR (PT.601) 54/ ALADI V. AJIBOLA (2004) 76 NWLR (PT.898) 9L BUHARI V. OBASANJO (2005) 13 NWLR (PT.941) 1 and sections 735 – 737 of the Evidence Act,
The burden of proof beyond reasonable doubt does not mean proof beyond all iota, shreds or shadow of doubt or proof to the hilt. It is not proof that requires absolute certainty but which excludes every reasonable or possible doubt. In MILLER V. MINISTER OF PENSIONS (1947) 2 ALL E.R, 372 at 373, the erudite and proficient Denning, J (as he then was) put it thus:-
*It need not reach certainty, but it must carry a high of probability, Proof beyond reasonable doubt does not mean proof beyond shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of ii is possible, but not in the least probable, the case is proved beyond reasonable doubt but nothing short of that will suffice”‘
The above principle is what was incorporated in Section 138 of the Evidence Act and recognised as part of our judicial requirements by the courts as established in many cases including:- NASIRU v. STATE (1999) 2 NWLR (PT.589) 87 at 89, AKALEZI V. STATE (1993) 2 NWLR (PT.275) 1 AT 13, SHANDE V. STATE (2005) ALL FWLR (PT.279) 1342 at 1351 – 8. The same principle has also become part of the law that govern election petition proceedings as was settled in many election petition appeals such as AWUSE V. ODILI (supra), OFODILE V. CHINWUBA (1993) 1 NWLR (PT.268) 151, JANG V. DARIYE (supra), AZIKE v. ARARUME (2005) ALL FWLR (PT.263) 740 at BUHARI V. OBASANJO (supra) also reported in (2005) ALL FWLR (PT.273) 1 at 199,
Another now known principle of law in election petitions is that on severance of pleadings which contain allegations that amount to those of crimes from those that do not. The principle of severance is one of procedure which allows or permits the survival of pleadings upon or after the excision’ cutting off, or removal of some averments for any reason to secure the continuance of an action. Election petitions being considered as civil matters for the purposes of proof the principle is that if in any civil proceedings the averments alleging a crime or crimes are severable from others and if after such Severance there still remain averments in the plaintiffs’ pleadings on which he can succeed against the Respondent, any or some of them, then the alleged crime/s would not be directly in issue in the other pleadings which are capable of sustaining the action. In MILITARY GOVERNOR OF IMO STATE V. NWAUWA (1997) 2 NWLR (PT.490) 675 at 708, Iguh, JSC put it succinctly as follows:-
“The law is settled that where a plaintiff makes an allegation of crime in his pleadings but nonetheless can succeed in his claim without proving the crime it cannot be said that the alleged crime was in issue or directly in issue.”
The principle was applied in NWAUKWERE V. ADEWUNMI (1967) NMLR 45, NWOBODO V. ONOH (supra) and OMOBORIOWO v. AJASIN (Supra) which were election matters and it was held that a petition can be sustained by pleadings which do not make allegations of a crime even where the criminal allegation failed or were not proved as required by law.
The above should be sufficient restatements of the principles of law on the points which I identified above and I would proceed with their application to the Appellant’s petition and this appeal.
I should start with the doctrine of severance of pleadings. The position of the learned Senior Counsel for the Appellant it may be recalled, is that the pleadings of the Appellant’s petition containing allegations of crimes are severable from the others, which can sustain the petition.
In the determination of the point, it needs to be remembered that my resolution of the Appellant’s issue No.4 earlier to the effect that he had abandoned the named paragraphs of the petition from which the reliefs in paragraph 37(c) and (d) were derived, would narrow the point to the pleadings which are left and relied on by the Appellant to make a case for the grant of the reliefs in paragraph 37(a) and (b) of the petition. Once again, the relief are as follows:-
“(a) It be determined that the 3rd Respondent did not win April 14th, 2007 Gubernatorial Election in Ogun State in that the 3rd Respondent did not receive the highest number of lawful votes in at least 15 Local Governments of Ogun State.
(b) It be determined that the Petitioner won the majority of lawful votes cast in all the 20 Local Governments Areas of Ogun State in the April 14th, 2007 Gubernatorial Election.”
In the final address by the learned counsel for the Appellant/Petitioner before Tribunal the relevant portion of which was set out before now in the judgment, the Appellant stated unequivocally that the above reliefs were predicated on the pleadings in paragraphs 14, 35 and 36 of his petition which represented the case put forward by him. For emphasis this is what the learned counsel said in the said address:-
“In Paragraph 37 of the Petition Your Petitioner’s items of relief are set forth. Those items as set out in Paragraph 37(a) and (b) are now sought while the other reliefs as relates to nullification simpliciter of the 14th April, 2007 Governorship Election of Ogun State are abandoned…”
Furthermore he said that:-
“the case made out by your petitioner is contained in his petition at Paragraphs 14, 35 and 36.”
From the above express and unambiguous statements by the learned counsel it cannot seriously be disputed that what the Tribunal was invited to determine from the evidence adduced in support of paragraphs 14,35 and 36, was whether the Appellant had discharged the burden of proof as required by raw for the grant of the refiefs in paragraph 37(a) and (b), having abandoned the refiefs in 37(c) and (d) of the pleadings. Consequently, paragraphs 74, 35 and 36 of the Appellant’s petition were put forward as representing the case on which the reliefs sought were founded and based. It is therefore these paragraphs that need to be considered in the appreciation of the principle of severance to the Appellant’s petition. I need to set out the paragraphs for a full appreciation of their import. They are as follows:-
“14. your petitioner avers that the Gubernatorial and House of Assembly in Ogun State were conducted in such manner that the votes case by the electorates at the majority of the polling units in Abeokuta North Local-Area, Abeokuta south Local Government, Ado-Odo Ota Local Government, Egbado North Local Government, Egbado South Local Government, Ifo Local Government, Ewekoro Local Government Area, Ijebu East Local Area, Ijebu North Local Government Area, Ijebu-Ode Local Government Area, Ikenne Local Government Area, Imeko Afon Local Government Area, Ipokia Local Government Area, Obafemi Owode Local Government Area, Odeda Local Government Area, Odogbolu Local Government Area, Ogun Waterside Local Government Area Remo N6rth Local Government Area and Sagamu Local Government Area were not counted by the Presiding officers at the polling units/stations and in the presence of the Petitioner Agents as required by Law.
35. Your Petitioner shall at the hearing of this petition rely on Form EC8A, EC8B, EC8C, EC8D, EC8D and all other relevant documents relating to the April 14th, 2007 Gubernatorial Election in Ogun State and in particular, we rely on all ballot papers and their counterfoils during the said election, INEC Guideline and Manual and every other documents used for the election in all 20 Local Governments of Ogun State in all the 236 Wards and 3,210 polling units in Ogun State. The petitioner shall contend at the trial of this petition that the 3rd Respondent was not duly elected by the majority of lawful votes cast at the election having scored no valid votes in all the wards where electoral malpractices took place where ballot boxes were stuffed with already thumb printed ballot papers, where ballot boxes were snatched, where over voting took place and where violence prevented the electorates to exercise their voting rights especially in Abeokuta South Local Government, Abeokuta North Local Government, Odeda Local Government, Ewekoro Local Government, Ifo Local Government, Obafemi Owode Local Government, Ado-Odo Ota Local Government, Ijebu North Local Government, Ijebu Waterside Local Government, Egbado North Local Government, Egbado South Local Government, Odogbolu Local Government, Imeko Afon Local Government, Ijebu East Local Government to mention just 17 Local Governments where the 3rd Respondent failed to win or score any valid vote.
The Petitioner shall rely on all letters, documents, video and audio cassettes, newspapers, Handsets and photographs at the hearing of this petition.
36. The Petitioner will also lead evidence at the trial to show how the 1st, 2nd 4th to 259th Respondents manipulated the electoral processes to rig election in all the 20 Local Governments of Ogun State in favour of the 3rd Respondent.”
In brief and simple language, the allegation in paragraph 14 above is that votes cast at the election in majority of the polling units in the 19 Local Government Areas named therein were not counted by the presiding officers in the presence of the Appellants’ agents. The allegation is against the conduct of presiding officers at the election.
The allegations in paragraph 35 are that the 3rd Respondent was not duly elected by the majority of lawful votes cast at the election having scored no valid votes in all the wards where electoral malpractices took place, where ballot boxes were snatched, where ballot boxes were stuffed with already thumb printed ballot papers, where over voting took place and where violence prevented voters from exercising their right to vote.
Paragraph 36 on its part though not a direct assertion or averment of facts, says the Appellant will lead evidence at the trial of his petition to show that the 1st, 2nd, 4th – 259th Respondents manipulated the electoral processes to rig election in all the 20 Local Government Areas in favour of the 3rd Respondent.
It may however be recalled that in the ruling of the Tribunal on the 2515/09 paragraphs 14 and 36 were struck out among others for being found to be allegations of a criminal nature against residing officers who were not joined as parties to the petition. This is what the Tribunal said in respect of the said paragraph:-
“Having perused the petition we found out that wield (sic) criminal allegations of non counting of ballot papers at polling units, thumb printing and stuffing of ballot papers into ballot boxes and snatching of ballot boxes have been made which are directed to the presiding officers at the various polling units without having been properly joined in the petition in accordance with Section 144(2) of the Electoral Act. These allegations appeared clearly in paragraphs 14, 16, 17, 18, 31 and 36 of the amended petition. The paragraphs are hereby struck out.”
The enormous legal consequence of the above finding and decision of the Tribunal is now elementary in judicial procedure and practice. In plain terms, it is that the said paragraphs no longer formed part of the case put forward in the pleadings contained in the Appellants’ petition and could not be relied on in either proof of his case or as grounds for seeking any reliefs from the Tribunal. See DINGYADI v. WAMAKKO (2008) 77 NWLR (PT.1116) 395.
The decision of the Tribunal remains effective in the absence of a competent order varying or setting it aside or a valid pending appeal against it. The parties are consequently bound by it and cannot be heard to deny or impugn it. EZEOTAFOR V. EZETLO (1999) 6 SC (II) 1, BABATUNDE V. OLATUNJI (2002) 2 NWLR (PT.646) 552 OJO V. INEC (2008) 73 NWLR (PT.1105) 577.
For completeness of the record, the Appellant had withdrawn the interlocutory appeal he filed against the said ruling at the hearing of this appeal. Accordingly the Notice of Appeal as well as all other processes filed in respect of the interlocutory appeal were struck out by the court on the 18/01/2010 before the oral hearing of the appeal.
With above position, paragraphs 14 and 36 of the Appellants’ pleadings were not part of the case put forward by him and so he could not have properly adduced evidence in support thereof and even if he purportedly did so, the evidence would go to no issue in the absence of pleadings. OSENI v. DAWODU (1994) 4 SCNJ (II) 192 BAMIGBOYE V. OLANREWAJU (1997) 3 LRCN 897 at 913, DODO V. SOLANKE (2006) 9 NWLR (PT.986) 442 OSAYANDE V. ETUK (2008) 1 NWLR (PT.1068) 211, BUHARI V. INEC (2008) 4 NWLR (PT.1078) 546 at 629.
Since paragraphs 14 and 36 of the pleadings were not part of the case put forward by the Appellant, they could not have been the basis for the grant of the reliefs sought in paragraph 37(a) and (b) of the petition. Furthermore, because the decision on them by the Tribunal subsists, they and the evidence adduced in support thereof cannot properly be considered and made use of in this appeal. They remain struck out, the evidence in support thereof gone with them and therefore dead for the purposes of this appeal. I say no more on them. See BUHARI V. OBASANJO (2005) 73 NWLR (PT.947) 1, LAWAL V. U.T.C. PLC (2005) 73 NWLR (PT.943) 601.
We are left with the allegations in paragraph 35 of the pleadings the pith of which is that the 3rd Respondent did not score valid votes in all the wards in the 17 Local Government Areas named because of the alleged electoral malpractices of violence, ballot boxes snatching, stuffing of ballot papers and non conduct of election. Undoubtedly the allegation centres on the malpractices specifically enumerated therein which by the provisions of the Electoral Act, 2006 are made criminal offences punishable with fines and imprisonment. Section 125(1)(h)(i) and (j) of the Act makes stuffing of ballot papers, interference with ballot boxes offences which are punishable under subsection (2). Section 136(f) and (j) make any conduct likely to intimidate voters and snatching or destroying any election materials offences punishable under Subsections (3) and (4). Section 138(a)(b) and (c) makes violence of any nature offences punishable with fines or imprisonment.
The crux of the allegations in paragraph 35 is therefore rooted in the alleged facts which are criminal in nature. As a result even though malpractices were alleged in the paragraph, the facts upon which the electoral malpractices were based are criminal in nature and imbued with criminal elements. In this regard, there is nothing to severe from the allegations contained in the paragraph since it is essentially and substantially one founded on facts that alleged commission of crimes which as required by law is to be proved beyond reasonable doubt.
Now apart from paragraph 35 of the pleadings which other paragraphs of the pleadings remain live and can be relied upon for the relief sought in paragraph 37(a) and (b) and which can be severed in the Appellant’s petition?
In answering this question, it would be borne in mind that paragraphs 3, 8, 9, 13, 15, 19, 20, 22, 23, 24, 26, 27, 28, 29, 30, 31, 33 and 34 were found to have been abandoned while paragraphs 14, 17, 18 and 36 were struck out by the Tribunal as stated earlier. The paragraphs left then are 1, 2, 4, 5, 6, 7, 10, 11, 12, 21 and 25. It is expedient to set out these paragraphs save for paragraph 11 which set out the election code numbers for the 20 Local Government Areas in Ogun State and paragraph 25 which sets out the list of witnesses to be called by the Appellant.
The other paragraphs are as follows:-
“1. Your Petitioner Senator Ibikunle Amosun is a person who voted, had the right to vote, was a Candidate, had the right to be returned or elected at the above election.
2. Your Petitioner herein state that the election was held on 14th April, 2007 when he, Senator Ibikunle Amosun and Otunba Justus Olugbenga Daniel together with others were Candidates at the said election. Otunba Justus Olugbenga Daniel was credited with 426,132 number of votes as against Senator Ibikunle Amosun’s 135,149 with Otunba Justus Olugbenga Daniel being returned as having been only elected as Governor of Ogun State of Nigeria.
4. The Second Respondent is the Resident Electoral Commissioner for Ogun State and also double as a Returning Officer for the April 14th, 2007 Governorship and State Assembly Elections in Ogun State, the 2nd Respondent also returned the 3rd Respondent as the Governor Elect of Ogun State.
5. The 3rd Respondent as stated above was a Candidate in the April 14th, 2007 Governorship Election in Ogun State. The 4th to 23rd Respondents are the Electoral Officers for their respective Local Government Areas in Ogun State and also served as Returning Officers in their respective Local Governments during the 14th April, 2007 Governorship and State Assembly Elections in Ogun State.
6. The 24th to 259th Respondents served as Presiding Officers in their respective Polling Units and Wards in the Local Government stated against their names during the April 14th, 2007 Gubernatorial Election in Ogun State.
7. The Petitioner herein avers that the are 20 Local Governments, 236 Wards and 3,210 Polling Units in Ogun state in which election were purportedly held by the 1st and 2nd Respondents on the 14th April, 2007.
10. Your Petitioner avers that prior to the Gubernatorial Election of April 14th, 2007, the 1st and 2nd Respondents issued manual for election titled ‘Manual for Election official 2007’. Your Petitioner will find on the said manual at the trial of the petition. Notice is hereby given to the 1st to 2nd Respondents and 4th to 259th Respondents to produce same.
12. Your Petitioner avers that by the manual for election issued by INEC as pleaded above and the provisions of the Electoral Act, 2006, the 1st and 2nd Respondents therein are to establish polling stations sufficient in each registration areas, distribute ballot papers through the Electoral officers at the Local Government down to the Returning officers at the Wards and such distribution of the ballot papers must be in the presence of the polling agent of the contesting political Parties.
21. The Petitioner avers that the INEC Code of Ogun State for the Gubernatorial Election for the April 14, 2007, was 030, the Petitioner hereby plead the Independent National Electoral Commission summary of results from Local Government Areas and Notice is hereby given to the 1st and 2nd Respondents to produce same at the trial of this petition. Notice is also given to the 1st and 2nd Respondents as well as the 4th to 259th Respondents to produce before this Honourable Tribunal all the results sheets otherwise known as Form EC8A and Form EC8B before this Honourable Tribunal at trial of the petition.”
As can easily be observed, paragraphs 1, 2, 4, 5 and 7 merely stated facts about the position of the parties to the petition as well as to the holding of the election in dispute.
“Manual for Election Official 2007” was pleaded in paragraph 10 while in paragraph 12, the failure by the 1st and 2nd Respondents to establish sufficient polling stations and distribute ballot papers in the presence of polling agents of political parties was averred. In paragraph 21, the INEC Code number for Ogun State 030 and INEC summary of results from Local Government Areas were pleaded.
The import of these paragraphs along with paragraph 35 is clearly that the disputed election was not conducted in accordance with the provisions of the law. In other words, that the election was not conducted in compliance with the Electoral Act and the “Manual of Election 2007.” The genuine allegations contained in the paragraphs are on noncompliance with the Electoral Act, 2006 in the conduct of the questioned election.
The question that arises then is, can the said paragraphs form the basis or grounds which would support the reliefs sought in paragraph 37(a) and (b) of the petition? Put another way, would allegations of non-compliance based on electoral malpractices such as violence, ballot box snatching and stuffing, non holding of election etc, ground the relief that the candidate making the allegations in the election be returned as the person who scored the majority of lawful votes cast at the election?
The only answer to the above question is that for the allegations for the above electoral malpractices which amounted to non-compliance to affect the election, they must be proved beyond reasonable doubt being criminal in nature as demonstrated earlier. To that extent, crime is the heart and blood that give life to the allegations and so cannot be severed from the Appellant’s case for the purposes of the reliefs sought in paragraph 37(a) and (b).
In the final result, my finding for the above reasons is that the principle of severance is not applicable to the Appellant’s pleadings because if the allegations of facts which have criminal elements in them are taken away, no facts capable of sustaining the Appellant’s case would be left.
The next point that I turn my consideration to is on the standard of proof required to prove the allegations now left as the balance of the case put forward by the Appellant in the paragraphs found to be the one outstanding. I have stated above that the life and back bone of the paragraphs are allegations which border on crimes and so the standard of proof required for them is that beyond reasonable doubt as judicially defined in the cases cited.
I would leave the point here and return to the issues 1 and 3 to consider the complaint on the assessment of the evidence by the Lower Tribunal before finally determining whether or not the Appellant had successfully discharged the burden of proof beyond reasonable doubt.
As a reminder, the issue 1 is the following terms:-
“1. Whether the trial Tribunal was right and correct in law in the way and manner it off handedly dealt with the unchallenged, unrebutted and uncontroverted evidence of the PW41 and exhibit U which has its foundation in the electoral documents tendered at the Tribunal and in failing to attach the deserved (or any) weight and effect to the said documents which were admitted without any objection?
Specifically relying on paragraph 36 of the amended petition, the learned Senior Counsel for the Appellant opened his submissions on the issue by saying that the Appellant had pleaded copious facts bordering on electoral malpractices, non compliance with the provisions of the Electoral Act and the Manual issued for the conduct of the election in Ogun State. That the Appellant had called PW41 who adopted his written statement on oath to which was annexed an appendix A tendered later as Exhibit u in evidence at the trial of the Appellant’s petition. According to him, PW41 laid bare before the Lower Tribunal his background qualification and experience which showed unequivocally that he is an independent information technology expert and gave a full account of the scope of his work and presented the summary of his findings in Exhibit ‘U’. Further, that the witness had stated that he examined various polling and electoral documents used or claimed to have been used for 2007 polling units in 225 wards of 19 Local Government Areas of Ogun State for the election in dispute. That the witness itemized the primary polling and electoral documents which he used as INEC forms as EC8A, EC8B, EC8C, EC8D and EC8E, voters registers for the polling units, inventory of distribution of EC8 forms list of INEC presiding officers and Directories of polling stations. The witness was said to have identified Exhibits H1 – H107, Q1 – Q5, 260, A – D 117, F – F120, K – P54, R, R1 – 257, R258 – R515, S23 – S501, R259 – R1104, RR258 – RR516, R1105, R1326, T – T1, T2 -T2040, G1 – G19 and 51 – 522 as part of the documents used in arriving at the conclusion in Exhibit U. Furthermore, it was submitted that based on his examination and analysis of the documents, the witness gave evidence of non-accreditation of voters on the register where results were returned for the affected polling units, he demonstrated overwhelming evidence of over-voting in certain polling units and multiple voting in specified others and also evidence of falsification or writing of imaginary results in specified polling units. With some emphasis and force, the learned Senior Counsel submitted that the damning revelation in the evidence of PW41 is to the effect that there were substantial irregularities vitiating the result in the total of 1,042 polling units in 95 wards across 19 Local Government Areas of the State and that he also demonstrated in Exhibit U incidences of non compliance as set down in the Manual for Electoral officers, 2007; Exhibit E and the law. It was contended by him that the Respondents failed to call evidence to rebut the content of Exhibit U or challenge it and so ought to have been accorded its due weight.
Learned Senior counsel then argued that the reasons given by the Lower Tribunal were untenable since Exhibit U was admitted in evidence without objection and that over voting being a specie of non-compliance or irregularity that vitiates an election, had been pleaded. The case of INEC v. OSHIOMOLE (2009) 4 NWLR (PT.7732) 607 at 663 – 4 was cited on the duty of the Tribunal to consider Exhibit U as legitimate evidence before it while the case of AJADI V. AJIBOLA (2004) 76 NWLR (PT.898) 97 at 770 was relied on the point that the Appellant was not required in law to plead evidence of over voting. The learned Senior Counsel appeared to be miffed by the statement of the Tribunal that PW41 did not possess any qualification with respect to election matters before any tribunal in Nigeria nor an expert on election matters by saying that the view smacks of lack of appreciation of the scope and purport of the testimony of the witness who never claimed to be an expert on election matters, but who on the record had attended the pre-2007 elections training programme conducted by INEC concerning the polls. It was the further submission of learned Senior Counsel, making reference to the evidence of the witness under cross examination at pages 3292, 3294 – 3299 of the record of appeal, that PW41 was straight forward, truthful and unbiased contrary to the view of the Tribunal on his demeanour. We were then urged by him to reverse the negative findings made by the Lower Tribunal on the evidence of PW41 and Exhibit U, mindful of the position of the law that assessment of evidence of a witness and ascription of probative value is a matter ordinarily within the precinct of a trial court. That where the trial court failed to utilize the advantage of seeing and hearing a witness, this court would intervene. It was further submitted that by virtue of S.57(1) of the Evidence Act, the evidence of expert with special skill is imperative and that since the evidence of PW41 was not impugned, the Tribunal had no alternative than to believe and act on it due to his expertise, neutrality, experience and quality of Exhibit U. Reliance was placed on SEIMOGRAPH SERVICE LTD V. OGBENI (1976) 4 sc 85, OYAKIRE V. OBASEKI (1956) 7 NWLR (PT.79) 735 at 742, UTB V. AWAZINGANA ENTERPRISES LTD (1994) 6 NWLR (PT.348) 56 at 78 among other cases on evidence of an – expert and the duty of the court to accept and act on same where it was not controverted or challenged. The case of SPDC V. ADAMKWE (2003) 11 NWLR (PT.833) 533 at 599 was cited on who can be regarded as an expert and that academic qualification is not required but needs to satisfy the court that he has acquired sufficient expertise in the field in which he is called upon to give expert evidence.
It was therefore submitted that academic qualification used by the Tribunal to reject the evidence of PW41 was of no moment in the assessment of his evidence. The case of ADELEKE V. IYANDA (2007) 3 NWLR (PT.729) 7 at 20 was referred to on the duty of the court to assess evidence, give it probative value and make findings of fact thereon. Learned Senior Counsel then concluded on the point that the Tribunal in reaching its conclusion on the expert evidence took a very narrow and restrictive view of the provisions of sections 57 – 62 of the Evidence Act. We were once again invited to assess the evidence of PW41 because according to him, the Tribunal had failed to do so, relying on a further authority of FAGBENRO vs. AROBADI (2006) 7 NWLR (PT.978) 172 at 193.
Learned senior counsel then turned to the documents admitted from the bar or through subpoena duces tecum without objection from the Respondents. These documents were electoral forms and other documents which were admitted as Exhibits A – A15, B – B15, C – C10, D – D11, F- F9, K- K11, L – 110, M – M12, N – N9, P – P13 and P14 -54 among others.
He said the view of the Tribunal that it could not go through them in the recess of its chambers as that would amount to descending into the arena, is contrary to the law as it can examine the documents in chambers to determine whether there were irregularities or not. Reliance was placed by learned senior counsel on the case of CHUKWUMA VS. ANYAKORA (2006) ALL FWLR (PT.302) 727 at 747 and in addition, relying on TERAB VS. IAWAN (1992) 3 NWLR (Pt.231) 569 at 592 and KINGIBE VS. MAINA (2004) FWLR (Pt.191) 1555 at 1589, he said the law is settled that in election petition, once electoral forms are tendered, the tribunal or court is entitled and in fact enjoined to scrutinize them to determine the case without specifically calling any witness to speak to the forms.
It was contended that if the evidence of the Appellant’s witnesses was placed on the imaginary scale with that of the Respondent’s witnesses, this court would come to the irresistible conclusion that the Appellant’s evidence out weighted that of the Respondents and the cases of ARABAMBI VS. ADVANCE BEV. IND. LTD (2005) 19 NWLR (PT.959) SAIDU VS. ABUBAKAR (2008) 12 NWLR (PT.1700) 207 inter alia were cited on the submission.
It was further submitted that in the cases of ACB VS. NWOSIKA (1996) 4 NWLR (PT.443) 470 at 482, and other cases cited in the Appellant’s brief it was held that photocopy of a certified true copy of public documents enjoys the same weight like it and that, it needs no further certification once it is clear that the document of which it is a copy is an authentic as decided in the case of DANIEL TAYAR TRANS. ENT. CO. VS. BUSARI (2007) NWLR (PT.695) 482 at 489 – 90.
It was then argued’ that the Tribunal was therefore wrong to have diminished the weight of the documents on the untenable ground that they are photocopies and that Exhibits T2 -T2040, C133 – C306, A16 – A166, 816 – 8166, C11 – C132 and D12 – D117 were affected by the wrong view of the Tribunal. According to learned senior counsel the Tribunal went on a frolic and indulged in gross speculation to reach its findings since there was no evidence on record about the deploring of sophisticated technology and photo trick to manipulate the said Exhibits. That it was not within the province of the Tribunal to indulge in speculation to reach a decision adverse to a party’s interest on the authority of ADEFULU VS. OKULAJA (1996) 9 NWLR (PT.475) 668 at 675 & O.B.M.C. LTD v. M.B.A.S. LTD (2005) ALL FWLR (PT.261) 216 at 234.
Also that the Appellant was adversely affected by the speculation of the Tribunal and had suffered a grave miscarriage of justice which calls for the intervention of this Court by giving the Exhibits their deserved weight.
The Tribunal was further said to have lost sight of the nature of certified true copies of public documents which by the provisions of section 112 of the Evidence Act constitute proof of the contents thereof.
On a final note, the court was prayed to hold that the Tribunal did not properly treat the unchallenged and uncontroverted evidence of PW41 and Exhibit U and was wrong to have refuse to attach weight to documents tendered as Exhibits before it. As a parting shot on the issue, the manner or Way this Court should assess the evidence of the Appellant was stated by the learned senior counsel relying on AJADI Vs. AJIBOLA (supra) AGAGU v. MIMIKO (2009) 7 NWLR (PT.1140) 342 at 427; NGIGE VS. OBI (supra)said to have held that the use of chart or table is Permissible.
On his part Mr. Delano learned counsel for the 1st, 2nd, 4th – 23rd Respondents, after setting out the provisions of section 57(1) of the Evidence and a portion of section 57(2) submitted on the issue that there are two (2) basic criteria for the admission of expert evidence. He said the first relates to the subject matter in respect of which the evidence is being given while the second relates to the person qualified to give the evidence.
On the subject matter of expert evidence, he said it had been considered in ANPP vs. USMAN (2008) 2 NWLR (PT.1100) 1 where the court held inter alia that statistical analysis does not fall within the items contemplated under section 57(1) of the Evidence Act requiring the Tribunal or Court to form an opinion.
It was also submitted by learned counsel that by virtue of section 57 (2) of the Evidence Act, persons skilled in matters mentioned in subsection (1) are regarded as expert and cited the case of AZU v. THE STATE (1993) SCNJ (Pt.1) 157 where the Supreme court held that to qualify as an expert, d witness must be specially skilled in the field in which he is giving evidence.
Further that the question of whether or not a witness can be regarded as an expert is a question for the judge to decide based on the legal evidence before him and the test must always be the knowledge and experience of the particular witness. Relying on WAMBIA & SAMBO VS. KANO N.A. (1965) NMLR 15 and FASZUGBA Vs. INSPECTOR GENERAL OF POLICE (1964) 2 ALL NLR 15 he said a witness must first of ll state his qualification, training, experiences and the nature and duty of his office as they relate to the subject of his evidence’ It was then submitted that from the introduction to his statement on oath and a perusal of Exhibit U, would clearly show that the entire activities of pw41 was to deliver a statistical analysis of the electoral forms and documents from which he listed a number of purported irregularities and form the opinion that in 1042 polling units, in 195 wards of 19 Local Government Areas did not comply with the procedure outlined in the manual for election officials 2007 and the law. That the witness under cross-examination at page 3394 of the record of appeal had said his report details both the areas where he analysed and observed compliances and non-compliances.
Learned counsel then asked the question whether the activities of PW41 as to compliance or non compliance with the electoral law can be regarded as being within the subject matter of an expert opinion. He answered that it does not come within the ambit of section 57(1) of the Evidence Act and so irrelevant because no person is more qualified than the court itself to give an opinion on a matter of law which the evidence touches on. It was contended that PW41 did not demonstrate any special skill to put him in the class of an expert for the fact that he lacked the requisite qualification and expertise in election matters the subject of which he was called to give evidence. That the requisite materials which the court uses in a determination of level of expertise of a witness were not before the Tribunal particularly when PW41 admitted under cross examination at page 3412 of the record of appeal that he had no degree in examination of election materials, that his training has nothing to do with analysis of election materials and that he had never before 2007 testified in any election tribunal as an expert. The Tribunal was said to be right in its finding that PW41 did not demonstrate any skill in the field of election to be believed to be an expert in respect of the subject matter he was called to give evidence.
In addition it was the submission of learned counsel that the Tribunal quite properly exercised its function of observing the demeanour of witnesses before it because it had highlighted the inconsistencies in the evidence of PW41 before concluding that the evidence was incredible and badly challenged during cross-examination. He specifically referred to pages 3412 – 3413 of the record of appeal where PW41 stated that he did not know the total votes for the parties in the 1041 polling units he analysed and did not know the total votes scored either by the Appellant, the 3rd Respondent or the AC in those polling units. Also that PW41 took the illegal votes out in his analysis but did not know the number of those illegal votes and did not indicate them in his statement on oath. It was the further argument of learned counsel that the Tribunal which saw, heard and assessed the witness was right in its ascription of value to his evidence and the court was urged not to disturb the findings, relying on OMAYE V. OMAGU (2008) 7 NWLR (PT.1087) 477 at 510. Similarly he said PW41 admitted that he received advise from an independent lawyer on the opinion as to actions which constituted irregularities and therefore the Tribunal was right to hold the evidence to be hearsay as it was not direct as required by Section 77 of the Evidence Act. That PW41 admitted that he did not provide any details or particulars of the irregularities purportedly found in the 1042 polling units in his written deposition or in Exhibit U under cross examination and so the Tribunal rightly refused to rely on the report of the witness.
For the 3rd and 260th Respondents, the learned Senior Counsel had made similar submissions to the ones summarized above for the 1st, 2nd and 4th 23rd Respondents. In addition, he pointed out that the Tribunal’s finding that PW41 was not shown to be an expert in the field he came to testify and on his demeanour are sufficient to render his evidence worthless and that it is trite where the decision of a trial court centres on the credibility of a witness, the appellate court will seldom interfere with such finding. The cases of MOHAMMED V. MOHAMMED (2008) 6 NWLR (PT.1082) 73 at 86 and KWARRA V. INNOCENT (2009) 7 NWLR (PT.1121) 179 at 230 were cited on the submission. Making reference to page 3414 of the record of appeal, it was submitted that one reason for rejecting the evidence of PW41 was his failure to reveal the methods by which he reached his conclusions and so the scientific criteria for testing the accuracy of the conclusions were not furnished to enable the Tribunal determine the application of the evidence to the facts.
In the alternative, it was submitted by the learned senior counsel that the Tribunal rightly rejected the evidence of PW41 which was purely statistical not scientific and that it was based on hearsay which is consequently outside the scope of Section 57(1) and 66 of the Evidence Act, the provisions of which were set out. That an expert can only give evidence of his opinion on a fact in issue and is not at liberty to make conclusions such as to whether election was conducted in accordance with the Electoral Act which would be rejected by the tribunal or court. The cases of ELUKPO V. F.H.A. (1991) 3 NWLR (PT.179) 322 at 334, U.B,N, V. ISHOLA (2001) 15 NWLR (PT.735) 47 at 75 in addition to another were cited on the law in respect of hearsay evidence.
Furthermore that the evidence of PW41 was battered and shattered under cross-examination such that the burden of proof remain with the Appellant and did not shift to the Respondents. Reliance was placed on FAYEMI V. ONI (2009) 7 NWLR (PT.1140) 223 at 276 – 7 and ELF (NIG) LTD. V. SILO (1994) 6 NWLR (PT.350) 258 at 272 and it was finally submitted that the fact that the evidence of an expert was not challenged is no reason for admitting and acting on it hook, line and sinker since where it is conclusionary or is an affront to common sense or contrary to usage of mankind, it it will be rejected. The cases of NGIGE V. OBI (supra) and AINA V. JINADU (1992) 4 NWLR (PT.233) 91 at 107 were cited on the position.
In another vein, it was contended that PW41 was a commissioned expert whose evidence should be treated with caution as was stated in FAYEMI V. ONI (supra) at page 277.
Turning to the electoral forms and documents admitted from the bar and through subpoena, it was pointed out that no oral evidence was called to link them with the facts alleged in the Appellants’ petition and so the Tribunal was right not to have scrutinized them in chambers to make a case for the Appellant. The cases of JALINGO v. NYAME (1992) 2 NWLR (PT.231) 538, ABUBAKAR V. YAR’ADUA (2008) 8 MJSC 1 and DOUKPLOLAGHA V. ALAMIEYESIGBA (1999) 6 NWLR (PT.607) 502 at 572 among others were relied on for the submission and it was further argued that the Appellants’ refused to tender the certified copies of the documents obtained from INEC because if they were produced they would have been unfavourable to him on the authority of AGBALLAH V. CHIME (2009) 7 NWLR (PT.1122) 373 at 435.
Learned Senior Counsel then said that it is not every error of a trial court that will result in the reversal of its decision, but the Appellant must show that the error occasioned substantial miscarriage of justice which he failed to do in the present appeal. He said the decision of the Tribunal is therefore not liable to be set aside, relying on AMAYO V. ERINWINGBOVO (2006) 11 NWLR (PT.992) 669 at 689 one of the cases cited on the point.
In his response in the amended appellants’ Reply to the 1st, 2nd and 4th 23rd Respondents, the learned Senior Counsel for the Appellant said the evidence of PW41 as required by law stated in A.G. ENUGU STATE v. AVOP PLC (1995) 6 NWLR (PT.399) 90 at 120 – 1, is to be considered as a whole and not disjointedly as was said to have been done by the Respondents in their briefs. In addition, it was submitted by him that given the circumstances of this case, the case of ANPP V. USMAN is not applicable.
I would commence a consideration of issue 1 by observing that the form in which the issue was couched suggests that the complaint therein is on the way, manner or procedure or style adopted and used by the Tribunal in the assessment of the evidence of PW41 and Exhibit U in particular. In this regard it must be noted that the law does not prescribe any specific or particular procedure or style which must be adopted or used by a trial court or tribunal in the discharge of its primary duty of assessment or evaluation of the evidence adduced before it and ascribing the deserved probative value thereto in order to arrive at its decisions on the issues canvassed by the parties.
The manner, way, method, style or procedure for such assessment or evaluation of evidence is not rigid or fixed but is entirely at the discretion of the trial court or tribunal which like all other judicial discretions, is only subject to being exercised judicially and judiciously. See SOLOLA v. THE STATE (2005) ALL FWLR (PT.269) 1757 at 1771 (2005) 5 SC (1) 135, IGOGO v. STATE (1999) 14 NWLR (PT.637) 1. Acting judicially simply imports the consideration of the interests of both sides in a case and weighing them in line with established principles of law in order to arrive at a just decision. To act judiciously on its part means proceeding from or showing sound judgment marked by discretion, wisdom and good sense. ERONINI v. IHEUKO (1989) 2 NWLR (PT.101) 40 at 60 – 61, ACB V. NNAMANI (1991) 4 NWLR (PT.786) 486, ENAKHIMION V. EDO TRANSPORT SERVICES (2006) ALL FWLR (PT.334) 7882.
Once a trial court or tribunal is shown on the record to have evaluated the evidence in line with the established principles of law and justice, by placing it on the imaginary scale of justice, no matter the style, manner or procedure used, the evaluation would be proper and this Court would have no justification to interfere with such a method merely because it would have used a different manner in the evaluation or assessment of the evidence. It is not the function of this Court to retry a case on the notes of evidence and make a practice of routinely setting aside the decision of a trial court or tribunal merely because a particular procedure which was otherwise proper and not another was used or adopted in the evaluation of the evidence. The court can only interfere where it is demonstrated that a trial court wrongly assessed or evaluated the probative value of the disputed evidence.
ONIFADE V. OLAYIWOLA (1990) 7 NWLR (PT.161) 130, KALU v. ODILI (1992) 5 NWLR (pt.240) 130, LAYINKA v. MAKINDE (2002) 10 NWLR (Pt.775) 358 at 375, JUSTICE PARTY v. INEC (2006) ALL FWLR (pt.339) 907.
In the above premises, the Tribunal was not bound to adopt or use any particular or rigid procedure in the assessment of the evidence of PW41 and Exhibit U so long as the evaluation was done in line with the recognised and accepted principles of law established in the above cases.
The issue in its terms suggests that the Tribunal off handedly dealt with the evidence of PW41 and Exhibit U which means the Tribunal did not properly deal with the evidence in detail in its evaluation and as seen earlier, the submissions by the learned Senior Counsel on it are to the effect that the Tribunal did not properly evaluate the evidence in line with established principles of law on the said evidence. In the evaluation or assessment of the evidence of PW41 and Exhibit U, the case put forward by the Appellant must be borne’ in mind as to what it sought to establish or prove.
The general complaint of the Appellant on the assessment of the evidence of PW41 and Exhibit U is that the reasons given by the Tribunal for refusing to attach probative value due to it were not tenable in law and so the evaluation was not proper and therefore wrong. I would consider the complaint in respect of each reason in the order set out in the Appellants’ brief.
The first reason attacked by the learned senior counsel was that PW41 failed to identify the polling units at which he said over voting took place. He did not show that the witness had identified the said polling units but only said that Exhibit U was admitted without objection by the Tribunal and that over voting was a specie of non compliance which had been pleaded. In this regard all that needs be said is that the fact that EXHIBIT U was admitted in evidence does not automatically confer on it any credibility that would attract probative value as a matter of course.
Admissibility and probative worth or value of any piece of evidence are two different things in law. Whereas admissibility is largely a matter regulated by law, the probative value or weight of a piece of evidence depends on factors which include:- (a) admissibility itself, (b) relevance, (c) credibility, (d) probability, (e) conclusiveness etc. See ANYEGWU V. ONUCHE (2009) 37 NSCQR 109 at 127 N.A.B. V. SHUAIBU (1991) 4 NWLR (PT.786) 450 OMEGA BANK (NIG) PLC V. O.B.C. LTD (2005) 1 SC (1) 49, OSIGWE v. UNIPETROL (2005) ALL FWLR (PT.267) 1525, ONWUKA v. EDIALA (1989) 1 NWLR (PT.96) 182, MOGAJI v. ODOFIN (supra), AGBI V. OGBEH (2006) 11 NWLR (PT.990) 65. As a result even though Exhibit u in particular was admitted in evidence, its weight and value depended on its credibility and probability and conclusiveness on the facts pleaded by the Appellant in support of his case. And contrary to the submissions that the Tribunal abdicated its responsibility by failing to consider Exhibit U, the judgment of the Tribunal clearly bore the fact that the Exhibit u was considered and extensively evaluated by the Tribunal before deciding to reject it. For instance at page 3412 and 3413 of the record of appeal the Tribunal had stated that Exhibit u had shown that Pw41 had deducted votes he called illegal votes the number of which he did not know and he did not indicate on it. It had also shown how the said Exhibit U was made up of hearsay evidence and was in the nature of statistical analysis of votes cast at an election which did not fall within the items contemplated under Section 57(1) of the Evidence Act. In view of these statements by the Tribunal on the Exhibit ‘U’ it cannot be correct, with respect to the learned senior counsel to say that the Tribunal did not consider the Exhibit in its findings. The Tribunal did not turn a blind eye to the Exhibit or off handedly treated it simply because it refused to ascribe value to it after assessing it. It is one thing to fail to consider a piece of evidence at all by a trial court or tribunal and quite another not to ascribe probative value to it after such a consideration by way of proper assessment or evaluation; While the court in the first instance had a duty to generally consider admissible evidence admitted in the proceedings, that evidence is not automatically entitled to probative value by the mere fact of admission.
Next is the submission that the absence of pleadings on the polling units where over voting was alleged was justified as the Appellant was not required to plead evidence. With due respect, the vital point missed or avoided here, either deliberately or otherwise, is that in the allegations of irregularities and non-compliance which can take on varied forms, it is not sufficient to allege a particular form without providing the essential particulars of facts from which the allegations were derived.. In the paragraph 35 of the Appellant’s amended petition which I have set out before now and on which his case was predicated, there was only a blanket allegation that over voting took place in the 17 Local Government Areas named therein.
Nowhere in that paragraph was any particular ward or polling unit set out as the places where over voting took place. In the absence of such vital facts in the pleadings any evidence of over voting oral or documentary would go to no issue as it is outside the pleadings and so at variance with it. HARUNA V. MODIBBO (2006) 2 EPR 664 at 710 – 711. In OJUKWU v. OBASANJO (2004) 1 EPR 626 at 652. The places specifically at which the alleged over voting took place are matters of facts and not evidence and should have been included in the pleadings of the Appellant so as to give notice to the Respondents of the precise case put forward by him. The Tribunal cannot therefore be seriously faulted on the reason that the evidence of over voting in 66 polling units was not supported by pleadings. In BUHARI v. OBASANJO (supra) at page 129 – 130, it was held by Supreme Court that:-
“In civil matters in superior courts of record, all facts a Party relies upon must be pleaded clearly in numbered Paragraphs. The same applies to election Petitions so that the paragraphs set out for his Petition.”
A trial court or tribunal may receive evidence during the course of trial but where it discovers later that some pieces of the evidence earlier admitted were on facts not pleaded, it has a duty to strike out such evidence and discountenance them in the determination of the case by refusing to attach any weight to such pieces of evidence. GEORGE v. DOMINION FLOUR MILLS LTD (1963) 1 SCNLR 117 BUHARI V. OBASANJO (supra).
That is precisely what the Tribunal did in respect of the evidence on the over voting in the 66 named polling units since the particulars of the facts were not pleaded on them.
Next reason for disbelieving the evidence of Pw41 was that he was not an expert on election matters.
Now as rightly submitted by learned counsel, Section 57(1) and (2) of the Evidence Act make opinions of persons specially skilled in the items listed therein relevant upon a point when the court has to form an opinion on the point. Such persons are called experts in subsection 2 and in the case of OLAYIWOLA V. FEDERAL REPUBLIC OF NIGERIA (2006) ALL FWLR (PT.305) 667 at 695, the court had described who an expert is as follows:-
“An expert under section 58 of the Evidence Act, (Section 57) Laws of the Federation of Nigeria, 1990 may be described as any person specially skilled in a particular field in which he had been invited to testify. Whether any person will pass as an expert or not is a matter of law to be decided by the Judge.
…..There is no provision that the special skill attributable to an expert must be acquired through formal education professionally or otherwise. It is enough that the person claiming to be an expert
has the skill that he professes or asserts to have.”
The court went further to state the guideline for the determination of competence of an expert witness thus:-
“It is not only the general nature, but also the precise character of the question upon which expert evidence is required, that have to be taken into account when deciding whether the qualifications of a person entitles him to be regarded as a competent expert witness.”
The cases of AIGBADION V. STATE (1999) 7 NWLR (PT.586) 284 and AJANI V. COMPTROLLER OF CUSTOMS (1952) 14 WACA were cited by the court for the above statements of the law.
Section 57(1) and (2) from which the principles of law evolved have the following provisions:-
“57. (1) When the court has to form an opinion upon a point of foreign law, native 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, native law or custom, or science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts.
(2) Such persons are called experts.”
Put in simple terms for a person to qualify as an expert under these provisions the court must be satisfied that he is specially skilled in the subject, issue or point on which he is called to testify and on which the court has to form an opinion. It is clear that by the provisions of subsection 1, the only qualification required of an expert is the special skill in the subject or on the issue or point upon which he was called to give opinion by way of evidence to assist the court to form its own judicial determinative opinion on the subject, issue or point in contest before it. By and large, the special skill required would depend on the training, practical experience of such a nature that amounts to an expertise and in-depth knowledge demonstrated by a thorough understanding of the subject of the evidence. Depending on the subject of the evidence, a formal education or qualification may not be necessary for a person to acquire the special skill that would make him an expert under Section 57(1) as stated in cases cited above.
Furthermore from the language and tenor of the provisions, the duty to determine whether or not a person is specially skilled in the subject or on the point on which the court is to form an opinion is that of the court that is to be assisted by the evidence in order to form its opinion. AZU V. STATE (supra), SHELL PETROLEUM NIG. U. OTOKO (supra). – As a result it is the person called to give evidence on the subject or point that owes or bears the burden of satisfying the court that he possesses such special skill in the subject of the evidence to qualify to be regarded as an expert whose opinion would be of an effective assistance to the court.
The qualification of a person as an expert to be determined by the court is a condition precedent for the admissibility of his evidence as expert evidence. Where a person fails to convince the court of his qualification as an expert by inability to demonstrate that he had acquired and possessed the knowledge, special experience and expertise in the subject of his evidence, then his evidence cannot be admitted as an expert evidence under Section 57(1) of the Evidence Act. UDE V. OSUJI (1990) 5 NWLR (PT.151) 488 at 573.
Once the court comes to the conclusion that a witness called to testify or give evidence on a particular point, issue or subject on which it has to form an opinion, is an expert for being specially skilled thereon as envisaged by the provisions of Section 57(1) of the Evidence Act, the law requires it to treat such evidence with respect and candour.
See UTB V. AWANZI GANA ENTERPRISES (1994) 6 NWLR (PT.348) 56 at 62, AMU V. AMU (2000) 7 NWLR (PT.663)164, 174 NICON V. NZE (2004) 15 NWLR (PT.896) 245 at 264 – 5.
The law is also settled that where such expert evidence is unchallenged and uncontroverted and not discredited by way of cross examination, a court or tribunal is bound to accept and act on it. SEISMOGRAPH SERVICES NIGERIA LTD V. OSENI (1976) 1 NMLR 290, SEISMOGRAPH SERVICES v. AKPOROVO (1974) 6 SC 115 at 136. Salami, JCA (now PCA) put it bluntly in the case of ADELAKUN v. ORUKU (2006) ALL FWLR (pt.308) 1360 at 1373 when he stated thus:-
“A court is, however, bound to accept and act on expert evidence if available and is unchallenged and uncontradicted.”
But this principle of law is not limited to expert evidence but equally applicable to the unchallenged and uncontroverted evidence which was not discredited under cross examination of a witness who testifies in a given case. see OMOREGBE V. LAWANI (1980) 3 -4 SC 108, OKEKE V. AONDOAKAA (2000) 9 NWLR (PT.673) 501 at 516, EGOM V. ENO (2008) 12 NWLR (PT.1098) 320.
However, where the court or tribunal is not satisfied that a witness is possessed of sufficient knowledge, training, experience and expertise on the subject of his evidence to qualify as a person specially skilled therein, then such witness cannot in law be regarded as an expert for the purpose of the subject, issue or point on which the court or tribunal has to form an opinion as contemplated by the provisions of Section 57(1).
In addition even where a person was determined to be an expert witness if his evidence is not in accord with common Sense or inconsistent with normal happenings, the court or tribunal is not bound to accept it but has a duty to reject it. AMU V. AMU (supra) ADELAKUN V. ORUKU (supra), CHUKWU CONSTRUCTION CO. LTD. V. UWECHIA (2000) 2 NWLR (PT.643) 92 AT 98.
In the present appeal, PW41 was called and presented by the Appellant to the Tribunal as an expert witness to give evidence on the allegations of malpractices and noncompliance with the electoral law in the conduct of the election in dispute. The subject on which the witness was presented to the Tribunal to give evidence were malpractices or irregularities which amount to non compliance with the Electoral Act, 2006 and the Manual for Election Officials 2007 in the conduct of the election and on which the Tribunal was invited by the Appellant to form an opinion and determine.
The witness therefore had to demonstrate to the Tribunal that he possessed the necessary sufficient knowledge, training, experience and expertise in the detection of malpractices, irregularities which amount to non-compliance with the relevant law and Regulations in the conduct of elections which would qualify him as a person specially skilled thereon and whose evidence would be of any assistance to it in the determination of the allegations/assertions.
The Tribunal for the reasons set out in its judgment was not satisfied that pw41 was a person specially skilled in the subject of his evidence as to qualify as an expert witness whose opinion would be of any assistance to it in the determination of the allegations made by the Appellant. As highlighted in the submission of the learned counsel on the point, the reasons include that the witness had admitted under cross examination that he had no training on examination of election materials or documents for the purpose of identifying electoral malpractices or irregularities and that he had never testified before as an expert on election documents or materials. The witness had also never worked with INEC or as an official in the conduct of any election and that he did not provide the basis for his opinion.
After setting out the instances of the evidence of PW41 under cross examination, the Tribunal in its judgment at Page 3412 concluded thus:-
“In view of the foregoing we are in agreement with the submissions of learned Counsel for the Respondents that PW41 possesses nor demonstrates experience and qualification in the field of electoral matters as to make his opinion evidence relevant and admissible. see ANPP V. USMAN (supra) at pages 270 – 278. – the so called (PW41) did not demonstrate any skill in the field of election before us. His evidence was rendered incredible and badly challenged through cross examination.”
The import of the above finding by the Tribunal is that pw41 did not demonstrate to its satisfaction that he had the training, sufficient knowledge, experience and expertise in the subject or on the point he testified to qualify him as a person specially skilled to be regarded as an expert whose opinion would be of any assistance to it in the determination of the allegations of malpractices and non compliance in the conduct of the disputed election. It should be noted that the pith of PW41’s evidence was that there was over voting as a specie of irregularities or malpractices in the 1042 polling units results of which he examined. Can his evidence be seriously said to be of a person specially skilled in the subject of over voting on which the Tribunal had to decide as an aspect of malpractices and non compliance if he admittedly had no training, sufficient knowledge, experience and expertise in the conduct of elections and examination of electoral documents or materials? The absence of such indices no matter what other formal training, knowledge and experience or qualification in other fields a person possesses, he would lack the requisite special skill envisaged by the provisions of section 57(1) to be regarded or even called an expert for the purpose of the subject of malpractices and non-compliance in the conduct of elections.
Moreover, a court or tribunal in the determination of an issue of over voting in any elections does not need any expert opinion since it can easily be decided by the relevant electoral documents and the oral evidence connecting them to specified places where the alleged over voting took place. The Register of Voters indicating the number of voters accredited for the election and the result sheets particularly at the polling units; i.e. INEC forms EC8A indicating the number of votes recorded to have been cast and scored by the candidates/political parties along with the oral evidence of people who saw it and established the nexus with the documents would easily and clearly enable the Tribunal to form an opinion as to whether there was indeed over voting or not. The process is one of practical terms in the discharge of the primary function of the Tribunal and does not involve any of the items listed in Section 57(1) of the Evidence Act to make the opinion of a third person relevant in the circumstances. See R. V. TURNER (1975) 1 ALL E.R. 70 at 74 D – E.
In any case, the Appellant merely made general averment in paragraph 35 that there was over voting in 17 Local Government Areas where it was alleged therefore the 3rd Respondent did not score any lawful vote and the Tribunal for the reasons summarized earlier had found that pw41 did not satisfy it by his testimony, that he is an expert in the field he came to testify. In addition, the Tribunal also found as follows at page 3413 of the record of appeal:-
“It is clear that PW41 was not only shown not to be an expert in the field he came to testify, the demeanor he exhibited also rendered him as untruthful witness.”
Being at the vantage and exclusive position to see and hear PW41 give answers to questions put him throughout his testimony thereby observing the subtle but influencing nuances of the witness, this court is in no position to fault the above finding on the demeanor of PW41 which created the impression stated by the Tribunal. LAYINKA V. MAKINDE (2002) 10 NWLR (PT.775) 358 at 374 – 5, NWOKORO V. ONUMA (1999) 12 NWLR (PT.631) 342, EVA V. QUDUS (2001) 75 NWLR (PT.737) 587.
The learned Senior Counsel for the Appellant has not demonstrated why the above finding on the demeanor of the witness or the finding that PW41 was not an expert in the field he gave evidence; i.e. electoral malpractices or irregularities, were wrong. He just does not agree with them for reasons which do not appear and sound cogent in the circumstances of this appeal. I am of the firm view that the Tribunal properly assessed or evaluated the evidence of PW41 and Exhibit U and came to the right conclusions thereon.
This Court has no business to interfere with the evaluation of the evidence since on the established principles of law, no reasons exist to warrant or justify such interference. NNEJI V. CHUKWU (1996) 10 NWLR (PT.478) 265, OLUKOGA V. FATUNDE (1996) 7 NWLR (PT.462) 516, AJIBOYE V. ISHOLA (2006) 13 NWLR (PT.998) 628, NGIGE V. OBI (supra), ADM, GENERAL, DELTA STATE v. OGOGO (2006) 2 NWLR (PT.964) 366. The learned Senior Counsel for the Appellant had in his oral emphasis said that even if PW41 was not an expert, the Tribunal was wrong to have rejected his evidence as an ordinary witness because according to him it was direct and unchallenged. It may be recalled that I had earlier stated that the pith of the evidence of PW41 was on the proof of over voting and or falsification of results by inflation or alteration. The witness did not say that he took part or participated in the conduct of the disputed election or that he was present at any of the stages at which the electoral forms, documents or materials which formed the basis of his evidence, were recorded, prepared or entries thereon made. In the circumstances his evidence cannot be said to be direct since he was not a person who saw or witnessed the election and process by which and whom the documents, forms or materials were made as required under Section 77 of the Evidence Act. His opinion from the examination of the documents is merely subjective and inadmissible as oral evidence to contradict the contents of the forms, documents or materials admitted in evidence. LEWIS v. UBA (2006) 1 NWLR (PT.962) 546, MADU v. MADU (2008) 6 NWLR (PT.1083) 296 The next point canvassed by the learned Senior Counsel for the Appellant under the issue is that the Tribunal was in error in refusing to accredit the documents admitted in evidence.
On the submission by him that a court has a duty to consider in its decision evidence admitted in a trial whether oral or documentary is correct as a general statement of the principle law. Because the law requires that decision/s of a court of law or tribunal should be based and predicated on the legally admissible evidence admitted and placed before it. The court/tribunal has a duty to properly consider any such evidence by way of assessment or evaluation. ABUBAKAR V. MANULU (2001) 8 NWLR (PT.716) 717 NKWOCHA V. MTN (2008) 11 NWLR (Pt.1099) 439.
I should point out however that the duty of a trial court to consider, evaluate or assess any piece of evidence, documents in particular does not mean automatic ascription of weight or probative value to such documents. NWABUOKU v. ONWORDI (2006) ALL FWLR (Pt.331) 1236 at 1251. To attract weight and value, there must be specific facts in the pleadings of the party who tendered them in support of which they were admitted and the oral evidence of witnesses which provides the vital nexus or connection between the two. Where the facts in respect of which the documents were tendered and admitted are conspicuously absent from the pleadings on which a party’s case was predicated or where the oral evidence to establish the necessary nexus between the facts and the documents is absent then the court/tribunal would not or better still, cannot be in any proper position to ascribe any evidential probative worth, value or weight to the documents. This is because it is not and has never been the function of a court of law or tribunal by its own ingenuity or exercise to imagine or speculate on or to supply evidence or work out the mathematics of arriving at an answer on an issue which only evidence tested under cross examination could supply. The duty has always been on a party to provide sufficient and credible evidence in support of a case he puts forward for determination by a court/tribunal which as an impartial arbiter would not go out of its sacred seat of even justice to assist him in providing. OKOYA v. SANTILI (1994) 4 SCNJ 333 at 381. HARUNA v. MODIBBO (2006) 2 EPR 664 at 706.
Speaking generally the established position of the law is that documentary evidence is best evidence but the caveat is that there must be evidence of the purport for which the documents were admitted in supporting the issue canvassed in a party’s case otherwise the document though in evidence would lack the credibility to be accorded any probative value NWOLE V. IWUAGBWU (2006) ALL FWLR (PT.316) 325, ESIOGU V. ONYEAGUOCHA (2006) ALL FWLR (PT.317) 467, ONWABUOKU V. ONWORDI (SUPRA) AT PAGES 1251 & 2.
In the present appeal, it is not in dispute that the documents the learned senior counsel for the Appellant said the Tribunal failed to ascribe weight to were INEC forms and electoral materials used in the conduct of the disputed election. Not in dispute also are the facts that all the documents were tendered from the bar and produced through subpoena and that no oral evidence was adduced in respect of all of them to link them with any of various forms of malpractices or irregularities alleged generally by the Appellant which are said by learned Senior Counsel to be species of non compliance. To use the phrase now getting some notoriety in election petitions, the documents were therefore “dumped” on the Tribunal without more apart from the final address of counsel in which they were referred to as proof of the various species of non-compliance alleged. In the case of NWOLE V. IWUAGWU (supra) at page 341, Aderemi, JCA (Later JSC) had stated the position of the law on such type of documents thus:-
“A party is under obligation to tie his document to facts or evidence or admitted facts in the open court and not through counsel’s address – written or oral. This is because it is not the duty of a court or Tribunal to embark upon cloistered justice by making inquiry into the case outside the court, not even by examination of documents which were in evidence when the documents have not been examined in open court, nor brought out and exposed to test in court or were not things that at least must have been noticed in the open court.”
His Lordship cited the cases of DURIMINIYA V. C.O.P. (1961) NNLR 70 and TERAB V. LAWAN (1992) 3 NWLR (PT.231) 569 for that position of the law which is more potent in this appeal even for the large amount, or number of the documents “dumped” on the Tribunal. The above position stated by Aderemi, JCA is solidly supported and put beyond argument by the Supreme Court in two cases, OBASI BROTHERS LTD. V. MBA SECURITIES (2005) 2 SC (1) 51 at 68 where Kalgo, JSC stated thus:-
“The admission of Exhibits F – Q in evidence at the trial is not a cure to this either because it is well settled that a judge cannot sit down out of court on his own and examine documents to sort out the case of a party. It is the duty of the party to elicit such evidence in court through its witnesses especially as in this case where various documents are involved.”
and the case of ALAO V. AKANO (2005) 4 SC 25 at 36 where it was held that:-
“It must also be noted that several documents were tendered pursuant to the claim. But it must be borne in mind that admitted documents useful as they could be, would not be of much assistance to the court in the absence of oral evidence by persons who can explain their purport.”
I would venture to say that it would have been an impossible and therefore an unviable task for the Tribunal to have attempted to fish and weave through such documents and then tie them to the various general allegations of malpractices and irregularities in proof of non compliance with the Electoral Act, 2006 and the Manual for Election Officials, 2007. The Tribunal would have been lost in the heap of the documents for its eyes would have been blinded by the dust of the arena of conflict between the parties in the attempt to make out the Appellant’s case which only tested evidence was capable of proving.
By the position of the law, the Tribunal rightly refused to be lured in abandoning its exalted position of the judex. Since the Appellant failed to adduce the necessary and fundamental oral evidence to link or connect the documents to any of the specie of the non compliance he alleged the Tribunal rightly refused to accord them any probative value in the recess of its chambers in order to find the proof the Appellant was under a legal duty to produce or provide in support of his case. see JALINGO V. NYAME (1992) 3 NWLR (PT.237) 538.
I would emphasise here that the address of counsel no matter how brilliant cannot make up for want of evidence or adequate evidence to prove and establish points or issues in a case because the mere mention of the evidence admitted in the course of that address does not supplant the evidence already given in the court. It does not add to the case of a party in terms of pleadings or evidence already admitted at the trial but is only designed to assist the court by highlighting the essential points or issues to be decided and citing relevant authorities; statutory or judicial decisions of superior courts. BUHARI v. OBASANJO (supra), AZIKE v. ARARUME (2005) ALL FWLR (PT.263) 740 AT 754, BURAIMOH V. BAMGBOSE (1989) 3 NWLR (PT.109) 52, NWANOSIKE V. JOHN HOLT (2006) ALL FWLR (PT.301) 1809, OBODO V. OLUMO (1987) 3 NWLR (PT.59) 11 AT 123.
Because the Appellant admittedly failed or omitted to call the essential oral evidence to provide the crucial link between the documents and any part of his case in respect of which they were admitted in evidence, the Tribunal cannot legally be faulted for its failure to undertake a private scrutiny outside the open court to furnish out the evidence which the Appellant failed to adduce at the trial. The Tribunal was in the result right not to have ascribed any probative value to the documents in its evaluation or assessment of the evidence adduced by the Appellant in proof of his Petition.
Since the decision by the Tribunal was right in law not to ascribe weight to the documents in the absence of evidence to tie them to the facts of the Appellants’ case, the issue of miscarriage of justice does not arise from such findings.
I would however agree with the learned senior counsel for the Appellant, because he is right in law that photocopies of certified true copies of public documents are admissible in evidence on the authority of the cases cited by him on the point. See also MAGALI v. NIGERIA ARMY (2008) 8 NWLR (PT.1089) 338. In addition in appropriate circumstances such photocopies would enjoy the same weight as certified true copies but in the Appellants’ case these documents were infected by same fatal virus of want of the vital evidence to connect them to any of the various allegations made of malpractices and irregularities. It may be recalled that the allegations include non-counting of votes, multiple registration, over voting, ballot box snatching, stuffing of ballot papers’ non holding of elections, violence etc. How could the Tribunal be expected to embark on the search for evidence from these documents in order to link them to these various allegations in order to find proof for the Appellant? Be that as it may, the learned Senior Counsel had at the last sentence of paragraph 5.38 which is at page 50 of his brief of argument conceded as follows:-
“In any event the certified copies (i.e. photocopies thereof) contributed less than 10% of the total number of that clan of documents tendered.”
The consequence of the above concession by him is that the photocopies of the certified true copies of the documents which the Tribunal did not attach weight to on ground of their being photocopies only formed a negligible part of all the documents tendered by the Appellant. As a result no miscarriage can seriously be said to have been occasioned by the Tribunals’ findings on them in relation to the proof of the Appellants’ petition.
Learned Senior Counsel had also attacked the finding of the Tribunal on the documents contending that it lost sight of Section 112 of the Evidence Act, set out by him under which mere production of the documents constitutes proof of the contents thereof. All I would say on the submission is that it is not favourable to the Appellant because if the contents of documents’ were proved by their mere production it then means that all the information and entries contained therein were proved as the correct position of what they represented. The Appellant can then not be heard to say that the contents of the documents were not correct or proved. I need not say more on it. On the whole, this issue for all the reasons set out earlier is resolved against the Appellant for lacking in merit.
The last issue in the appeal is issue 3 which questions whether the trial Tribunal was not in error in the way and manner it treated the evidence of PW1 – PW40 and proceeding to dismiss the Appellant’s petition for want of evidence wherein addition there was avalance of documents tendered in support of the petition.
As can clearly be seen, this issue is interwoven with some points raised in issues 1 and 2 on whether or not the Appellant had on the evidence adduced by him discharged the burden of proof placed on him by law. It may be remembered that my finding on the standard of proof required by law for the allegations of facts which are criminal in nature and to which the principle of severance of pleadings does not apply, is one of proof beyond reasonable doubt.
It was submitted on this issue that the Tribunal with a stroke of the pen dismissed the testimonies of majority of the witnesses because they were said to have acted as polling agent without accreditation by INEC.
It was contended for the Appellant that there is nothing in the Electoral Act, 2006 or in the Manual for Election officials, 2007 that made it mandatory for party agents to be accredited by the INEC. Section 46 of the Electoral Act was set out and it was submitted relying on IDIKA V. UZOUKWU (2008) 9 NWLR (PT. 1091) 34 and AGBAJE v. FASHOLA (2008) 16 NWLR (pt.1082) 90, that where the provisions of a statute are clear, plain and unambiguous, it is the duty of the court or tribunal to interpret same simpliciter without reading into it such implications external to the provisions as was said to have done by the tribunal in the instant case. Besides, it was also submitted that the issue of non accreditation of Appellant’s party agents was not pleaded by any of the parties and that it is settled law that pieces of evidence extracted from witnesses under cross examinations goes to no issue unless pleaded. Further that no law prohibits any person or party official from giving or relating his eye witness account even if relates to any other place or polling unit other than where the polling agent or party official voted since it is trite that an unlawfully obtained evidence is admissible in law. The case of SADAU V. THE STATE (1969) NMLR 208 was cited as authority for the submission and it was argued that even if the presence of the witnesses at the polling units to which their testimonies relate was unlawful, their evidence was still admissible and credible unless otherwise established.
Furthermore, that the Tribunal was to discredit the evidence of the witnesses for the mere fact that they belong to the same political party with the Appellant because no rule of law precludes members of a political party from giving evidence of what they witnessed in an election even if it involves their party. In addition, by the provisions of Section 155 of the Evidence Act, (Set out in the brief) the witnesses remain competent notwithstanding that they belong to the same political party with the Appellant. According to learned senior counsel none of the reasons given by the Tribunal to discredit, ignore or discountenance the evidence of the witnesses is justifiable in law.
It was also argued that the evidence of the witnesses was not contradicted under cross examination but rather established the alleged malpractices in the conduct of the disputed election by persons identified to be PDP chieftains and members. In particular, the evidence of PW9, PW11, PW17 and PW 22 was never discredited or contradictory but was wrongly evaluated by the Tribunal who was said to have misused the opportunity and abdicated its duty to properly evaluate the evidence of the Appellant’s witnesses.
We were once again invited to intervene by reevaluating the evidence citing WALI V. BAFARAWA (2004) 16 NWLR (PT.898) 1 at 47 – 8 and BASIL V. FAJEBE 6 NSCQR 269 and 287 in urging us to resolve the issue in Appellant’s favour.
The learned counsel for the 1st, 2nd and 4th 23rd Respondents had submitted that the Appellant had failed to demonstrate that the findings of the Tribunal on the credibility of the Appellant’s witnesses are unsubstantiated. He said the Tribunal did not discountenance the evidence of the witnesses but evaluated and assessed it and found that it was unreliable.
On accreditation by INEC, after setting out paragraph 1.4.1 of Chapter 1 of the Manual for Election Officials, 2007 and Section 46(1) of the Electoral Act, 2006, it was submitted by him that these provisions clearly show that accreditation is a requirement for party agents to attend at polling units during elections.
Relying on Section 91(3) of the Evidence Act, the learned counsel said that the position of the law is on the need for neutrality of witnesses and the need not to have any motivation than to speak the truth. That a petitioner in an election petition must call neutral persons such as policemen, election observers or agents of other parties as opposed to his own agents in proof of allegations contained in his petition. He relied on OGU V. EKWEREMADU (supra) at 255 and submitted that the witnesses are persons interested in the outcome of the Appellant’s petition and who for that reason are attracted by other reason than the truth in ensuring that the Appellant succeeded. That the evidence failed to show substantial non compliance with the Electoral Act and so the Tribunal rightly evaluated the evidence of the witnesses called by the Appellant.
It was submitted further that the evidence of the witnesses even if believed is not sufficient to demonstrate that the elections in 3200 polling units in Ogun State were not conducted in substantial compliance since according to learned counsel, their number does not even represent up to 1% (one percent) of the polling units.
The learned Senior Counsel for 3rd and 260th Respondents on his part submitted on the issue that the case of SADAU V. STATE (supra) cannot apply because it is not an election petition case and pointed out that the Electoral Act specifically forbids movement of people and polling agents to other places during election in order to prevent malpractices. A witness who therefore confessed to breaching the Electoral Act would not be allowed to give evidence to favour or profit his master as the law is that if an act is ultra vires, then the beneficiary of the act cannot acquire any right or advantage by virtue of that act which is ultra vires. Further that no person can legitimately act as agent in and invariably give evidence in respect of more than one polling unit. Reliance was placed on IDADEOLA V. OSHOWOLE (1987) 3 NWLR (PT.59) 78 at 28, INIAMA V. AKPABIO (supra) at 335, BUHARI V. INEC (supra) also reported in (2008) 72 MJSC 326 at 327. According to him, the witnesses gave evidence of non compliance in less than 50 polling units out of 3,210 polling units in the State and that there was no oral evidence of the number of voters and votes cast at the said polling units and so even if believed the evidence did not show that the non compliance substantially affected the result of the election. That the Tribunal was in the circumstance right in dismissing the Appellant’s petition on the authority of BUHARI V. OBASANJO (supra) at 101 paragraphs A-C, MALACHI V. IBOM (2004) 16 NWLR (PT.100) 674.
Learned Senior Counsel conceded that the Appellant’s witnesses are competent witnesses under Section 155 of the Evidence Act but being members of the Appellant’s political party who are interested in the outcome of the petition; they gave self serving evidence which the Tribunal rightly rejected. Relying on Section 92 of the Evidence Act and UTB V. AWAZI GANA (1994) 6 NWLR (PT.348) 56 he said that the competence of a witness’ given evidence is quite different from the weight to be attached to such evidence and the Tribunal acted within the limits of the law when it refused to attach any weight to the evidence of the Appellant’s witnesses. We were urged to resolve the issue in favour of the Respondents.
In the Appellant’s Amended Reply brief to the 1st, 2nd and 4th-23rd Respondents’ brief, it was argued that the interpretation of Section 46(1) of the Electoral Act, 2006 by Respondents is self serving and it was maintained that there is no requirement for accreditation for polling agents. Also that the case of OGU V. EKWEREMADU (supra) was cited out of con as there was no compelling reason to look for witnesses from the Appellant’s opponents.
In the Appellants’ Reply to the 3rd and 260th Respondents’ brief it was said that the cases of INIAMA V. AKPABIO and BUHARI V. INEC were wrongly cited as what was decided therein was that a witness can only testify as to what he saw and not what he was told.
As seen above, the first point raised by the learned senior counsel for the Appellant on the issue is the requirement of INEC accreditation for polling agents which he insisted does not exist in either the Electoral Act or the Manual for Election Officials, 2007. Section 46(1) of the Electoral Act makes the following provisions on polling agents:-
“46.-(1) Each Political Party may by notice in writing addressed to the Electoral Officer of the Local Government or Area council appoint a person (in this Act referred to as a “Polling Agent”) to attend at each polling unit in the Local Government or Area Council for which it has candidate and the notice shall set out the name and address of the polling agent and be given to the Electoral Officer at least 7 (Seven) days before the date fixed for the election.
PROVIDED that no person presently serving ad Chairman or member of a Local Government or Area council, commissioner of a state, Deputy Governor, or Governor of a State, Minister or any other person holding political office under any tier of Government and who has not resigned his appointment at least three (3) months before the election shall serve as a polling agent of any political party, either at the polling station or at any centre designated for collation of results of an election.”
These provisions are quite clear and unambiguous and their plain purport is that each political party by the use of the word “may”, was given the discretion or choice or option to address a letter to the Electoral Officer of the Local Government or Area Council appointing a person as a polling agent to attend at each polling unit in the Local Government or Area Council. The letter shall set out the name and address of the polling agent and be given to the Electoral Officer at least seven (7) days before the date fixed for the election. Because like I pointed out above, a political party was given the option to appoint and then notify the Electoral Officer within the time prescribed therein, the duty to show that it had indeed chosen that option rests on each political party where/when proof is required of such appointment in accordance with the provisions. Where there is such proof, then the political party would have met the requirements of the provisions and the duff would then shift to the Electoral Officer in the Local Government or Area Council to notify all polling units/stations in respect of which the appointments were made to enable the polling agents so appointed to attend the polling units to which they were appointed by the political party concerned. This later requirement was made necessary by the provisions of Section 62(1) of the Electoral Act which provides thus:-
“62.-(1) The Presiding Officer shall regulate the admission of voters to the polling station and shall exclude all persons other than the candidates, polling agents, poll clerks and persons lawfully entitled to be admitted including accredited observers, and the Presiding Officer shall keep order and comply with the requirements of this Act at the Polling station.”
Once again, the provisions are simple and straight forward for they confer on the Presiding Officer the power and authority to regulate admission at the polling station and to exclude all persons other than the candidates, polling agents, poll clerks and persons lawfully entitled to be admitted including accredited observers. By these provisions therefore until a person was recognised and identified by the Presiding Officer at a polling station as one of the persons named therein, such person would not be lawfully entitled to admission at the said polling station. In otherwords, until the Presiding Officer officially identify and recognised a person as one of the persons named in the provisions, such a person cannot be entitled to lawful admission at the polling station for the purpose of an election. This position was stated in paragraph 1.4 of Chapter 1 of the Manual for Election official, 2007 made pursuant to Section 161 of the Electoral Act, 2006, which made the following provisions:-
“1.4. The following categories of persons shall be allowed full access to the polling stations and collation centres:-
Voters
INEC officials on election duties
Security agents
Accredited polling/party agents
Accredited journalists
Accredited domestic and international observers.”
The combined or community effect of the provisions of sections 46(1), 62(1) and paragraph 1.4 of the Manual above is to require that for the purpose of admission at a polling station as a party or polling agent, a person has to be officially recognised and identified by the presiding officer as such before he can lawfully be allowed access or admitted at the polling station. Before the Presiding officer can officially recognise or identify a person as a polling agent, he must have the notice of the appointment by the political party concerned either through the letter of appointment from the Electoral officer or the person so appointed himself. In effect under the above provisions, for a person to be lawfully admitted at a polling station as a polling agent of a political party, the person has to be accredited by the Presiding Officer through recognition or identification of his appointment as such agent. It cannot be disputed that for the purpose of an election, a Presiding Officer of a polling station is an INEC official.
“Accredited” was defined in Oxford Advanced Learners Dictionary, 7th Edition by A.S. Hornby at page 10 to mean “of a person, officially recognised as somebody with official permission to be something.”
The INEC accreditation required of a polling agent for the purpose of admission or access to the polling station therefore, is the recognition by the Presiding Officer of the appointment of a person as such which would officially vest such a person with the permission and the right to lawful admission at the polling station. Consequently until such recognition by the Presiding Officer, a person cannot properly claim to be a polling agent who would be entitled to lawful access and admission at a polling station.
However, for the purpose of giving oral evidence of what happened at a polling station, a person does not have to be an INEC accredited polling agent, depending on the nature of the event on which he testifies before he becomes a competent witness.
By the provisions of section 77 of the Evidence Act, direct oral evidence of a person who saw, heard or perceived the facts of an event or happening is admissible in evidence and such a person is a competent witness for the purpose of such event or happening. AFOLAYAN V. OGUNRINDE (1986) 3 NWLR (PT.26) 29, UTEH V. STATE (1992) 2 NWLR (PT.223) 257 at 277, ANYANWU V. MBARA (1992) 5 NWLR (PT.242) 386 at 402.
For instance, for the purpose of proving the allegation that there was violence or disruption of an election at a polling station, a person needs not be a polling agent or even a person entitled to lawful access to such polling station before he can give direct oral evidence what he actually saw or heard at the polling station. But to be in a proper position to give direct evidence on allegations of for instance over voting, non counting of votes, double registration and multiple voting, non-holding of election, etc, a person requires to show that he had and was in fact present at the polling station as provided for by both the Electoral Act and the Manual for Electoral officials that he was one of the people who was lawfully present at the polling station at the material time. It cannot be otherwise because it is an offence for a person to loiter within a distance of 300 metres of a polling station without lawful excuse if he is not a person entitled to admission at such polling station under the provisions of section 136(1)(i) of the Electoral Act, 2006.
In this regard, the Tribunal in this appeal would be entitled to refuse to accord weight to evidence of the witnesses called by the Appellant who were not shown to be people lawfully present at the places in respect of which they testified in proof of the general allegations of malpractices such as snatching of ballot boxes, stuffing of ballot papers, multiples voting non-counting of votes or non holding of election. Once more, the proof required of these species of malpractices and non-compliance is that of beyond reasonable doubt.
According to the learned senior counsel for the Appellant the burden of proof beyond reasonable doubt was discharged by the Appellant through the evidence of PW1, PW2, PW4, PW8, PW9, PW10, PW11, PW17, PW20, PW21, PW28, PW29, PW30, PW31 and PW33 which confirmed the averments in paragraphs 14, 35 and 36 of the amended petition. With earlier finding on paragraphs 14 and 36, we are here concerned once again with only paragraph 35 that is left as balance of the Appellants’ case. In brief, the evidence of PW1, PW2, PW5, PW9, PW10 and PW31 was to the effect that election did not hold at the polling units they went to vote at, the evidence of PW4, 11, 17, 20, 21 and 33 was that there was violence at the polling units where they went to cast their votes while the evidence of PW28 was to the effect that the votes cast at Akinbade polling unit were not counted because the process was disrupted by PDP thugs.
The evidence of PW29 was that the ballot box at polling unit 013 was stuffed with ballot papers by PDP thugs while PW30 said under cross examination that he was forced to sign the result at the collation centre. However these various pieces of evidence as can clearly be observed related to the polling units at which the said witness went to cast votes at the election, fifteen (15) in all. My view is that the viva voce testimonies of these witnesses who are shown by both their statements on oath and under cross examination to be members of the appellants’ party and therefore people who are deeply interested in the success of the petition, lack the credibility to meet the standard of proof of the allegations of violence, snatching of ballot boxes, stuffing of ballot papers etc beyond reasonable doubt.
I agree with the learned Senior Counsel for the Appellant that no rule of law says that members of the same political party cannot give evidence in an election petition filed by a member of the party. However by virtue of the provision of Section 92(1) of the Evidence Act, in estimating the weight to be attached to the evidence of such witnesses, the issue or question as to whether or not they had any incentive to conceal or misrepresent the facts is a relevant consideration. In other words, the fact that such witnesses are people apparently interested in the outcome of the petition is a vital factor to be considered in estimating the weight to be attached to their evidence because of the temptation to depart from the truth in favour of their party member. Section 92(1) provides thus:-
“92.(1) In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of statement had any incentive to conceal or misrepresent facts.”
In this appeal the appellant’s witnesses were all by their own admission not only from the same political party with the Appellant, but also people who said they went round wards and polling units to monitor the election for their party and the Appellant. They are therefore people with personal and political interest and incentives in the success of the Appellant’s petition and very deeply interested in the outcome of the petition. In the circumstances, the Tribunal rightly used their positions as people who had other incentive and motive in their evidence than telling him truth, the whole truth and nothing but the truth about the conduct of the election which their candidate lost.
It should be noted that because these allegations are electoral malpractices which amount to non-compliance’ the burden on the Appellant is even heavier because the law not only requires him to prove them beyond reasonable doubt but also that they substantially affected the result of the election. The duty in law is not only one of proof of noncompliance in the alleged malpractices, but also of further proof that the non-compliance substantially affected the conduct as well as the result of the election in question.
BUHARI V. OBASANJO (2005) 13 NWLR (PT.947) 1 at 222, NNAJI V. AGBO (2006) ALL FWLR (PT.305) 736 at 760, BUHARI V. INEC (2008) 19 NWLR (PT.1120) 246, INIAMA V. AKPABIO (2008) 17 NWLR (PT.1116) 225.
In the first arm of the burden of proof on the Appellant, the evidence of those witnesses in addition to the want of sufficient credibility, it was also shaken during cross examination such that a substantial portion thereof was shown to be contradictory to the Sworn statement of Some of the witnesses on material points. This was amply demonstrated by the Lower tribunal in its judgment particularly at pages 3399, 3400, 3401 – 3404 of the record of appeal, examples of which include the following:-
“PW3 made serious allegations in paragraph 11 of his deposition but under cross-examination he said he was at Ayede being detained by thugs when those people mentioned in paragraph 11 were shot. That it was after he returned that he saw it. Again it was his agents that told him. PW5 said he was a ward chairman and that he vowed to deliver the ward to ANPP and cannot read and write in English when asked to read paragraph 7 of his deposition. He said he never worked in any Local Government Area but later said he was a revenue collector in the motor park at Odogbolu Local Government, PW6 said he did not witness what happened at polling booth pertaining to stealing of ballot boxes was called by his agent, He said he was not moving from one polling unit to another but visited 5 polling units, PW7 said he did not witness counting of votes at the polling units but later said the votes cast at Moslem School were not counted and it is not possible for two agents to sign it.
PW12 in paragraph 4 of his deposition said most of the Agents were ANPP members wearing different party logo and are personally known to him. However under cross-examination PW12 said he could not remember the parties logos the agents were wearing and could not remember their names. Furthermore he claimed under paragraph 5 of his deposition that thugs came with guns and cutlasses but could not tell the Tribunal who set them as other candidates other than the Petitioner and the 3rd Respondent took part in the election. The witness further said under cross-examination that he was present at the conclusion of voting. It is not true to say that 319 votes cast were counted by INEC. He again said 319 voters voted. PW13 said he voted at Iraye lower polling unit and it was the last unit he visited during his monitoring of the election at 9:30 a.m. and turned round to say that he saw thugs at Osoribiya polling unit and that he voted before coming to Osoribiya. He went to Clamentina and Ibido polling unit and got to Town Hall to 1:00p.m. He did not meet voters at Town Hall polling unit only PDP thugs and their agents but later said he was present when the voters were chased away at Town Hall polling units, PW14 said he was ANPP polling agent at Oke-Aje polling unit but went ahead to testify to the effect that the election in the whole ward was not free and fair. Furthermore the witness said he was sent away by the INEC official in paragraph 2 of his deposition but proceeded to give evidence of what transpired in the polling unit in paragraphs 3 – 10 of the same deposition without explaining how he came about the facts he deposed to in those paragraphs after being sent away, PW15 who claimed to be a ward Returning Officer testified to the effect that he was at Simawa polling unit until the conclusion of voting and he escaped a gun shot and when he went together with his chairman to police station to report thy met the police officers thumb printing ballot papers but when asked further he said he did not put this allegation in his deposition. The witness said he just completed his HND preparing to go for NYSC but cannot disclose the name of the School he finished from so that his NYSC call up letter is not stopped. The witness further said he was not aware that his brother contested the outcome of the House of Assembly election he lost before the Tribunal but later admitted giving evidence in the same case before the Tribunal. PW16 said ballot papers were thumb printed but did not give the particulars of those ballot papers in whose favour they were thumb printed. The witness said he was not armed under cross-examination but in paragraph 7 of his evidence in chief he said they fought and defeated the armed thugs. Under cross-examination the witness again said he did not engage in the fight. In paragraph 6 he said the thugs took away two ballot boxes in a vehicle but under cross-examination he said it was only one ballot box thugs took away. PW18 in paragraph 5 of his evidence in chief said His Royal Highness Oba Moyeajeso of Itele was the one who intervened to prevent the thugs from being taken away but under cross-examination he denied saying that Oba Moyeajeso did not allow the thugs to be taken away. The witness said Tunde was armed with a gun even though he did not say so in his deposition. He said it was the people who were intimidated by the Baales that called him from where he was and complained to him and later said it was one person that called him. PW19 when shown paragraph 7 of his deposition under cross-examination, he said he was not the party agent for all those wards mentioned in the paragraph. When referred to paragraph 13 of his deposition the witness stated that he had no evidence to show but the agent to the ward is responsible directly and he phoned the witness to inform him of the happening and it was based on that information that he wrote it in the paragraph. He said he was not in any ward during the election in the Local Government but was informed about what transpired in the wards by his agents and his report covered the information. He was stationed at the Local Government Collation Centre. He said INEC did not announce any result for his Local Government because he left before they announced the result.
PW21 said although voting was disrupted by thugs about 300 people voted at the polling unit. She also said even though the thugs were shooting guns and weilding machetes and all other voters run away but she waited and struggle with them. The witness in one break said she was matcheted by the thugs and in another breath she said she was not matcheted.
PW28 said under cross-examination that he is not a civil servant but a trader in provisions. On further cross-examination, the same witness admitted that he is a civil servant at Psychiatric Hospital, Aro. He further said he was not happy with the result announced by INEC with respect to Akingbade polling unit as it was fake but when shown exhibit P53 for the polling unit he discovered that no votes were recorded. PW29 in paragraph 1 of her deposition said she was ANPP Returning Officer however under cross-examination she said she was a supervisor. The witness said her deposition was restricted to unit 013 but can still say what happened in other units. She did not know the number of ballot papers stuffed into the ballot box by Mr. Lateef. She was not given the ballot papers to examine but can say the party in whose favour the ballot papers were thumb printed because the people who followed Lateef are PDP. She further said she saw them thumb printing the second ballot paper in the house of Ayo Akanbi and she piped through the window before the thugs sent her away. She shouted on seeing this and when the thugs wanted to beat her Mr. Ayo told them not to touch her as they are cousins. She admitted however not mentioning all these in her deposition. PW30 said he visited all the polling units in the ward for distribution of Electoral Materials but visited only 4 polling units out of 15 during the election and still said the election of 14/1/07 was marred with irregularities. He said he did not say in his deposition that he visited all the polling units. PW31 said in his deposition he reported the incident to the Divisional Police Officer at Itori Police Station but when asked under cross-examination he said he had no evidence to show that he reported the incident to the police station because he was sent away. The same witness said he cannot read and write in English but his deposition was written in English saying that it was the lawyer who interpreted it to him without any illiterate jurat on it.”
The evidence of the witnesses is clearly deficient, wobbly, utterly hollow, skimpy or shallow to be capable of excluding reasonable doubt in the proof of the allegations of violence, ballot box snatching, stuffing of ballot papers etc that the Appellant’s case is predicated on. I must state that such type of weak evidence would be so wanting in substantiality that even when not challenged it cannot ground a finding of the commission of the crimes contained in the Appellant’s petition. I am aware of the law that ordinarily, unchallenged evidence is to be believed and accepted by the court, but it is also the law that even such type of evidence needs to be credible and sufficient to prove beyond reasonable doubt in case of crimes or preponderates in support of the facts pleaded in civil actions. Otherwise such evidence would prove nothing for being empty in content and substance thereby falling below every standard of proof required by law. INIAMA V. AKPABIO (supra), AFRIBANK NIGERIA LTD. V. M. ENTERPRISES LTD. (2008) 12 NWLR (PT.1098) 223, MICHAEL YOUSUO (2004) 15 NWLR (PT.895) 90.
In the case of ADELAKUN V. ORUKU (supra) Salami JCA, (now PCA) restated the position of the law as follows at page 1373:-
“The proposition that when evidence is unchallenged and uncontroverted it must be accepted in proof of the issue in contest is applied only when the evidence itself is credible.”
In this appeal as has been shown above, the evidence of these witnesses was effectively battered such that its credibility had been shattered under cross-examination leaving it barren for the purposes of proof of the allegations made by the Appellant in the paragraph of the petition. In the circumstances, the evidence of the witnesses did not meet the standard of proof beyond reasonable doubt of the allegations contained in the paragraph.
Because I have earlier found that the allegations in the paragraph are criminal in nature, there is no need for a detailed consideration of whether the evidence preponderates in support of them for the discharge of the burden of proof on the balance of probabilities.
But above apart, I would like to point out that even if the Appellant had succeeded in proving the allegations in the paragraph beyond reasonable doubt as required by law, the consequence thereof would not or cannot support, warrant or justify the grant of the reliefs claimed in paragraph 37(a) and (b) of the petition. This is because the legal consequence of proof of irregularities such as those alleged in the petition which in turn amount to non-compliance with the Electoral act is that the election results in the affected areas would be cancelled or annulled and the entire result for the whole State would also be annulled if it was established that the non compliance did in fact substantially affect the overall result of the election in the State. NNACHI V. IBOM (2004) 16 NWLR (PT.900) 614, BIYU V. IBRAHIM (2006) 8 NWLR (PT.987) 1, BUHARI V. INEC (2008) 4 NWLR (PT.1078) 546.
Consequently in order to prove the non-compliance alleged in the petition that would affect the result of the election, the Appellant had the twin duties of first proving the allegations beyond reasonable doubt and then go ahead to also establish by same evidence that the non-compliance proved had substantially affected the result of the election. Once the first arm of the burden of proof of non-compliance; i.e. proof beyond reasonable doubt fails, the allegations would automatically fail and the election result in respect of which they were made would remain unaffected by them.
The Appellant in paragraph 35 merely made general and blanket allegations of malpractices of stuffing of ballot papers, snatching of ballot boxes, over voting and violence in all the wards in 17 Local Government Areas named therein and that the 3rd Respondent failed to win or score any valid vote without adducing the necessary credible and sufficient evidence to prove them as required by law. One then wanders which results for those wards in the 17 Local Government Areas would be used to determine that the Appellant won the majority of lawful votes cast in all the 20 Local Government Areas of Ogun State as claimed in paragraph 37(b) of the petition even if he had otherwise succeeded in proving the said allegations.
In fact, a Petitioner relying on allegations of electoral practices such as the ones in paragraph 35 of the Appellant’s petition as the basis for questioning an election cannot claim and would not be entitled to be returned as the winner of election the regularity of which he is challenging. The Appellant cannot challenge the regularity of the election in 17 out of 20 Local government Areas of Ogun State and at the same time claim that he won the majority of lawful votes casts in the 20 Local Government Areas for the purpose of being returned as the winner of the said election. DINGYADI V. WAMAKKO (supra),
Moreover, the law is that even where such malpractices are proved, the Appellant still owed the duty to establish by evidence that the person returned as elected; the 3rd Respondent in this appeal was directly responsible for them either by sanctioning them or that the people who perpetrated the malpractices are his agents acting on his instructions or authority in order for the outcome to affect his return. In otherwords, for the 3rd Respondent’s election return to be affected by the consequences of such malpractices, a nexus between the people who committed them and the 3rd Respondent had to be established by cogent evidence. AJADI v. AJIBOLA (2004) 16 NWLR (PT.898) 91 at 169 – 4, EBEBE V. EZENDUKA (1998) 7 NWLR (PT.556) 74, OGU V. EKWEREMADU (2006) 7 NWLR (PT.967) 255.
This Court per Nasir, PCA (then) in the case of OYEGUN V. IGBINEDION (1992) 2 NWLR (PT.226) 747 stated the law thus:-
“That for one to be held responsible for the acts of another, it has to be proved by credible evidence that the person was the agent of the other and was acting on special or general authority of that other that is the presumed principal. In that circumstance, the petitioner must prove by concrete evidence that the respondent who is alleged to have benefited therefrom had knowledge of what took place.”
From these authorities it is clear therefore that an elected candidate cannot have his election nullified on the ground of irregularities or malpractices committed in the process of the election unless it can be proved that the candidate expressly or impliedly authorised them. It is also immaterial that the alleged malpractices are very serious if there was no evidence to connect them to or with the person return as elected. The Supreme Court in BUHARI v. OBASANJO (supra) at 158 had held that since there was no scintilla of evidence to connect the 1st and 2nd Respondents with the findings of the Tribunal on acts of violence, murders and other nefarious activities, their election cannot be affected.
Like I have stated before now, even where a petitioner fully discharges the burden of proof in respect of malpractices and non-compliance which are relied on to challenge an election for the election of the person returned to be affected on the grounds of such non-compliance which involved malpractices or irregularities which are criminal in nature, as in the present appeal, he has the further burden of adducing sufficient and credible evidence to link or connect the person with such irregularities or malpractices.
Throughout the gamut of the evidence adduced by the Appellant at the trial of his petition both oral and documentary, there was nowhere it was even suggested let alone proved that the 3rd Respondent authorized either directly or by cogent implication, the alleged acts of irregularities or malpractices on the conduct of the election in dispute. All the Appellant’s witnesses said was that PDP agents and thugs perpetrated all the malpractices at the polling units named in their respective evidence. None of them stated that the 3rd Respondent had anything to do with such people for the purposes of the election because though he was sponsored for the election by the PDP, in law he is different from the party for the purpose of proof of the criminal acts alleged to have been committed by PDP agents during the conduct of the election.
In the result, my finding on the issue is that the Tribunal properly and correctly considered, treated and assessed the evidence of Appellant’s witnesses PW1 – PW40 in its determination of whether he had proved his petition as required by law. The Tribunal consequently did not err and was not in error in the manner and way it treated the evidence of the said witnesses.
The issue is answered in the negative, thereby resolved against the Appellant once more for lacking in merit.
Perhaps I should also point out that by the relief sought in paragraph 37(a) of his amended petition; that it be determined that the 3rd Respondent did not receive the highest number of lawful votes in at least 15 Local Governments of Ogun State he is directly challenging the results declared by INEC in those Local Governments which were used to declare and return the 3rd Respondent as the winner of the election. However there are no specific pleadings of facts left on the Appellant’s petition which would or can support the case of the Appellant even if he adduced evidence at the trial because as shown earlier, the law is that evidence not supported by pleadings goes to no issue.
Furthermore, because the relief is a challenge on the correctness and genuity of the results declared by INEC and recorded in the documents tendered by the Appellant, he was directly alleging falsity of the said results and therefore was in law required to produce two sets of results indicating the genuine and false ones by credible evidence. OJO V. ESOHE (1999) 5 NWLR (PT.603) 444, KALU V. UZOR (2006) 8 NWLR (PT.987) 60 INIAMA V. AKPABIO (supra) WALI V. BAFARAWA (2004) 16 NWLR (pt.898) 1, ATIKPEKPE V. JOE (1999) 6 NWLR (PT.607) 428, NWOBODO V. ONOH (supra).
The allegations by the Appellant that elections were disrupted, not held or votes not counted are ways of alleging that the results used in the declaration and return of the 3rd Respondent are false or inflated with non existent votes and there should be in existence two results one of which could be stigmatised as false and the one as genuine. See ADUN V. OSUNDE (2003) 16 NWLR (PT.847) 643. The appellant did not discharge that duty at the trial of his petition. Furthermore, the evidence adduced in support of allegations challenging the figures or scores of candidates at an election should come directly from the officers who were on the field where the votes were counted or collated and so evidence from persons who received the figures or scores from them would be hearsay and therefore inadmissible. BUHARI V. OBASANJO (supra),
Similarly, by their very peculiar nature, election cases require that the evidence alleging election malpractices or irregularities must not only be precise and definite, but must also be certain and unequivocal. Mere general allegations without more as were made in the Appellants’ balance of pleadings and the testimonies of the witnesses, are not sufficient proof beyond reasonable doubt of malpractices that of a criminal nature or character.
In the final result, after resolving all the four (4) issues submitted for determination in the appeal against the Appellant, the appeal is left without any merits and so must fail. It does.
Before concluding the judgment I would like to thank the learned counsel for their complete and exemplary cooperation in the hearing of the appeal. In addition, the briefs of argument filed by the learned counsel were well researched and loaded with intellectually interesting arguments which the court found quite helpful in its determination of the issues canvassed in the appeal.
This appeal for lacking in merits is hereby dismissed.
The decision of the Tribunal dismissing the Appellant’s petition for failure of proof beyond reasonable doubt as required by law is affirmed. For the avoidance of doubt, the return of the 3rd Respondent as the winner of the Governorship Election conducted on the 14th of April, 2007 in Ogun State by the 1st Respondent is also hereby affirmed.
The parties shall bear their respective costs of prosecuting the appeal.
TIJJANI ABDULLAHI, J.C.A: I agree
HELEN MORONKEJI OGUNWUMIJU, J.C.A: I have read the judgment just delivered by my learned brother Mohammed Lawal Garba JCA. I agree with his reasoning and conclusion. I wish to odd few words of my own. This is on appeal against the judgment of the Governorship and Legislative Houses Election Petition Tribunal sitting in Abeokuta, Ogun State delivered on 27/8/09 dismissing the petition filed by the Appellant.
Fuller details of the contents of this appeal have been given in the lead judgment. I will also adopt the appellant’s issues for determination and set them hereunder for ease of reference:
1. whether the trial Tribunal was right and correct in low in the way and manner it off handedly death with the unchallenged, unrebutted and uncontroverted evidence of the PW41 and exhibit U which has its foundation in the electoral documents tendered of the Tribunal and in foiling to attach the deserved (or any) weight and effect to the said documents which were admitted without any objection.
2. Whether the trial Tribunal was not in error in the view it took that all the allegations in the petition must be and were not proved beyond reasonable doubt when not all the allegations border on commission of crimes, the allegations were severable and the appellant discharge the onus of proof and on the preponderance of evidence.
3. Whether the trial Tribunal was not in error in the way and manner it treated the evidence of the PW1-PW40 and in proceeding to dismiss the petition in its entirety for want of evidence when in addition to the evidence of the PW1-PW40 there was avalanche of documents tendered in support of the petition by the appellant.
4. Whether having regard to the totality of the petition and evidence adduced the trial Tribunal could and was right legally and factually in the view it took that the appellant abandoned any aspect of his pleadings other than the paragraphs expressly abandoned by him before the trial Tribunal.
The Appellant claimed in paragraph 37 of the amended petition the following reliefs:
“(a) It be determined that the 3rd Respondent did not win April 14th, 2007 Gubernatorial Election in Ogun State in that the 3rd Respondent did not receive the highest number of lawful votes in of least 15 Local Governments of Ogun State.
(b) It be determined that the Petitioner won the majority of lawful votes cost in all the 20 Local Government Areas of Ogun State in the April 12th, 2007 Gubernatorial Election.
ALTERNATIVELY
(c) It be determined that the Governorship Election of April 14th, 2007 held in Ogun State is null and void, some having been bedeviled by violence, electoral malpractices, ballot stuffing, over voting, ballot box snatching and general non-compliance,
(d) An order nullifying the Governorship Election held in Ogun State in April 14th, 2007 including the return mode thereto.
(e) An order that the Petitioner may ask such further order (s) as the Tribunal may deem fit to make in the circumstances.”
I agree with the reasoning of my learned brother in respect of issue 4 that those provisions relating to the reliefs in paragraphs 37 (c) and (d) have been abandoned. As the lead judgment did, I will deal with issue 4 first as settling it gives a clearer picture of the case. Paragraphs 22-24 plead the Form EC8A of several polling units, given to the Appellant’s agents. Paragraphs 26-34 contain serious allegations of electoral offences and malpractices against persons in specific areas including specific polling units and asserted that evidence would be led in respect of invalid ballot papers etc. Now paragraph 35 in my view went on to encapsulate all these complaints contained particularly in paragraphs 26-34 and it was considered by the Tribunal. Let us see paragraph 35:
“Your petitioner shall of the hearing of this petition rely on Form EC8A, EC8B, EC8D, EC8D (sic) and all other relevant documents relating to the April 14th, 2007 Gubernatorial Election in Ogun State and in particular, we rely on all ballot papers and their counterfoil during the said election, INEC guideline and Manual and every other documents used for the election in all 20 Local Governments of Ogun State in all the words and 3,210 polling units in Ogun State. The petitioner shall contend of the trial of this petition that the 3rd Respondent was not duly elected by the majority of lawful votes cast of the election having scored no valid votes in all the words where electoral malpractices took place, where ballot boxes were stuffed with already thumb-printed ballot papers, where ballot boxes were snatched, where over voting took place and where violence prevented the electorates to exercise their voting rights especially in Abeokuta South Local Government, Abeokuta North Local Government, Odeda Local Government, Ewekoro Local Government, Ifo Local Government, Obafemi Owode Local Government, Ado-Odo Local Government, Ijebu – Ode Local Government, Sagamu Local Government, Ikenne Local Government, Ijebu North Local Government, Ijebu Waterside Local Government, Egbodo North Local Government, Egbodo South Local Government, Odogbolu Local Government, Imeko Afon Local Government, Ijebu East Local Government, to mention just 17 Local Governments where the 3rd Respondent failed lo win or score any valid vote. The petitioner shall rely on all letters, documents, video and audio cassettes, newspapers, handsets and photographs at the hearing of this petition.”
The Tribunal from pg. 3398 of the records set out these allegations, identified the standard of proof required and then proceeded to consider the evidence both oral and documentary adduced by the appellant. It would have been a different matter altogether if the evidence adduced by the Appellant in support had been ignored. They were considered then rejected for reasons given by the Tribunal. I am of the view that the fact that Tribunal took full cognizance of paragraph 35 and the fact that all the oral and documentary evidence adduced in support were fully considered in the judgment shows that there has been no miscarriage of justice. Error or mistake contained in the judgment of the lower court will result in setting the decision aside when it has occasioned miscarriage of justice. See Osayemwenre v. Osayende Erinwingowo (2006) 5 SCNJ 1. In my view no miscarriage of justice was occasioned by the deemed abandonment of those paragraphs of the petition.
This issue is resolved in favour of the Respondents we must remember that paragraph 14 complaining that votes cost by the electorate of majority of the polling units enumerated therein were not counted by the Presiding Officers of the polling units in the presence of party agents as required by law had already been struck out on 25/5/09 by the Tribunal.
Also paragraph 36 of the petition had been struck out on 25/5/09 by the Tribunal: This paragraph states that the petitioner will lead evidence to show how the 1st, 2nd, 4th -259th Respondents manipulated the electoral process to rig the election in all the 30 Local governments in favour of the 3rd Respondent. Paragraphs 1, 2, 4, 5, 6, 7, 10, 11, 12, 21 and 25 of the petition are formal facts which have been admitted by the Respondents.
We are now left to consider paragraph 35 of the petition in considering the remaining issues.
ISSUE 1
On this issue counsel argued that the Tribunal was wrong in its refusal to accord any weight to what he claimed to be the unchallenged, unrebutted and uncontroverted evidence of PW41, Exhibit U and other documents tendered by the Appellant.
PW41 had given evidence that he examined documents used in 225 words of the 19 Local government areas of Ogun State and his analysis of the documents was that there were substantial irregularities vitiating the result in a total of 1,042 polling units in 195 words across 19 Local governments of the State.
The Appellant relied heavily on the evidence of PW41 and Exh. U. The Appellant complained that the Tribunal did not give proper consideration of the evidence of PW41 because PW41 was not accepted as an expert by the Tribunal. The major complaint is that the Tribunal did not consider Exh. U prepared by PW41 and therefore had abdicated its duties contrary to the admonition in INEC V. OSHIOHMOLE (2009) 4 NWLR PT.1132 Pt.607 at 663-664.
The subject matter of the evidence which was a statistical analysis of the various forms and documents used of the various points during the election process has been held not to fall within the purview of S.57 of the Evidence Act. It is clear that PW41 having subjected the various types of Electoral materials data to mathematical analysis, thereafter concluded that there had occurred substantial irregularities in the elector or process in specified “1042 polling units in 195 words of 19 Local Government Areas…” PW41 gave on opinion to the effect that there was non-compliance. He based his opinion on his study of the Manual for Election and the advice of his counsel. His evidence was as to compliance with the Electoral Act. Non-compliance in my humble view is a matter of law and there is no better judge of non-compliance than the court itself seized with the duty to make such a finding. The petitioner would have been better served if the witness (not as an expert) had merely tendered the statutory documents utilized and drawn the attention of the court to the various portions of the statutory documents which betrayed these electoral lapses. The court would then be asked to draw its own conclusions. The Tribunal or court can then engage in the calculation and collation of election results.
The conclusion as to the mode of conduct of the election – whether fair or unfair, whether well or badly conducted can only be formed by the law courts based on the legal evidence before it. A scientific expert who presumably the PW41 purports to be, can only form opinion on scientific issues i.e. finger-prints, on the ballot papers etc, The power to add or subtract what constitutes “invalid” from “valid” votes is not that of on extraneous person, but that of the court which determines the validity or otherwise of the votes cast.
I agree with the argument of the 1st, 2nd, 4th-23rd Respondents, counsel that the opinion of PW41 does not fall within the purview of S.57 of the Evidence Act which provides for the acceptance in evidence of the opinion of experts. The “subject matter” of the “opinion” rendered by the “expert” has been subject of judicial interpretation. I have read ANPP v. USMAN (2008) 2 NWLR Pt. 1100 pg. 1 where Aboki JCA made a thorough exposition of the law on this matter. I agree with his reasoning and conclusion that on analysis of the votes cast at the election, and a conclusion drawn therefrom is not beyond the knowledge of a mind untrained in mathematics. This court had used tables prepared by counsel or the court to arrive at conclusions in some election matters. See INEC V. OSHIOMHOLE (supra) and AGAGU V. MIMIKO (2009) 7 NWLR Pt.1140 PG.342. In ANPP V. USMAN (2008) supra, this court held as follows:
“In the present case, the matter being inquired into by the experts i.e. the witnesses of the petitioner and that of the 1st respondent is on electoral matter. The question is whether the 1st respondent was not duly elected by a majority of lawful votes cast at the election. The opinion provided by both Mohammed Nasiru Sarki for the petitioner/appellant and Professor Muhammad Bello and Dr. Shehu Usman Gulube for the Respondents respectively are in the nature of statistical analysis of votes cast in Kebbi State. I am in no doubt that statistical analysis does not fall within the items contemplated under section 57 (1) of the Evidence Act requiring the Tribunal or court to form an opinion from the parties nor does it require a statistical analysis of on expert to enable it determine whether a candidate has been duly elected by a majority of lawful votes of the election.”
I agree that the finding of the Tribunal was unassailable when it held of page 3414 of the record that:
“…PW41 of paragraph 3 (iii) of his deposition expressed his opinion that the election in 1042 polling units of 195 words of 19 Local Government Areas did not comply with the procedure outlined in the manual and the law. This expression of opinion is certainly not one of those opinions contemplated by Section 57 – 65 of the Evidence Act. It is also evident that the evidence of PW41 and his report in Exh, U are more in the nature of statistical analysis of votes cast in election which also does not fall within the items contemplated under Section 57 (1) of the Evidence Act…”
The Appellant’s counsel argued that the Tribunal held a narrow and restrictive view of s.57-62 of the Evidence Act and that PW41 needs not obtain a degree or qualification in election matters before he can give evidence on the conduct of the election. I quite agree with this view. Generally an “expert” needs not have a degree before he can render an opinion’ The Evidence Act talks about qualification. The qualification envisaged depends on the circumstances of each case. A medical doctor surely needs to give evidence of the academic qualifications. A person learned in Yoruba customary law or Islamic law may not have a western education but may be accepted as qualified to give evidence. In an election petition if the expert opinion is limited to the addition and subtraction of votes already declared by the courts to be valid or invalid, then it will be acceptable.
On whether the witness was an expert within the meaning of S.57 of the Evidence Act, I agree that PW41 could not have given opinion as an expert in election matters, his expertise being limited only to the area of statistical analysis. To base Exh. U on his opinion founded on the evidence of party agents, his own and his lawyer’s interpretation of what constitutes valid and invalid votes was also erroneous. See J. E. ELUKPO & SONS LTD. v. F.H.A. (1991) 3 NWLR (Pt.179) Pg. 322 Paras A-B:
“The legal position is that if what purports to be on expert report is, in fact, hearsay evidence or was, on a particular point, based on hearsay evidence, it can be perfectly rejected. Expert evidence, if admitted and it is unchallenged by way of cross-examination or contradictory evidence, does not become inevitably acceptable merely because it is an expert evidence which has not been contradicted or challenged. It should be accepted only if there is no good reason to reject it, and, in the process of scrutinizing it, could be rejected if there is reason to do so.”
Apart from the legal flows inherent in the evidence of PW41 as on expert for the petitioner, let us look at the credibility of the witness. I have read the oral evidence of this witness contained on pages 3290-3299 of the record. I agree with learned senior counsel for the 3rd & 36th Respondents that the evidence of PW41 was totally discredited under cross-examination. On page 3399 of the record, this witness stated –
“I analysed the result of the 1042 polling units but I don’t have the total votes of the parties in those polling units, I don’t know the total scored by the 3rd Respondent in those 1042 polling units. I don’t know the total votes of AC.”
Then how on earth did he come by the statistics on which he based his opinion? I don’t agree that this witness was quoted out of con by the Tribunal. The totality of his evidence under cross-examination showed that he could not properly explain how he arrived at his opinion. On page 3412 of the record, the Tribunal held that “it is clear that PW41 was not only shown not to be on expert in the field be come to testify, the demeanor he exhibited also rendered him as untruthful witness.”
I quite agree with the Tribunal when it held on page 3414 of the record as follows:
“Even in a situation where PW41 qualifies as on expert it is clear that in the case on hand he omitted to reveal the vital requirements of making his evidence valuable because he did not reveal the methods by which he reached his conclusions, even with respect to allegation of over-voting. Even in the information and the algorithm which he claimed to have fed and applied to the computer when asked during cross-examination not been stated in the deposition or the report. In the circumstance scientific criteria for testing the accuracy of the conclusions by PW41 has not been furnished to enable our independent judgment by the application of those criteria to the fact proved in evidence.”
It stands to reason that if the Tribunal could not accept PW41 as an expert, even if they admitted Exh, U they are not bound to rely on the said Exh. U having found that the maker of Exh. U was unacceptable in law and in fact. The Tribunal’s judgment pages 61-66 that is pages 3410-3415 of the record contains copious findings in respect of PW41 and Exh, U.
On my own part, I didn’t need to see his face or demeanor to know that he was not a credible witness. His lack of cohesion and lack of understanding of what was involved is gleaned from what is apparent on the face of the record. The Tribunal made findings to the effect that PW41 was not an expert and that his demeanour showed him to be an untruthful witness.
Those findings of fact can only be set aside if found Perverse. It is my humble view, that there is sufficient evidence on the record to support them.
See ISA ONU & ORS. V. IBRAHIM IDU & ORS. (2006) 6 SCNJ 23; AMADI V. ORISAKWE (2005) 1 SCNT 20: IMAM V. SHERIFF (2005) 4 NWLR PT.914 P9.80 at P9.183. I want to touch on the other issue vociferously argued by the Appellant. That is the issue of the weight given by the Tribunal to the documentary evidence tendered before and admitted by the Tribunal. The petitioner had tendered Exh, A-A15, B-B15, C-C10, D-D11, F-F9, K-K11, L-L10, M-M12, N-N9, P-P13, P, P14-57 etc. Appellant argued that the Tribunal was wrong in refusing to ascribe any probative value to the documents for the reason that they were dumped on the Tribunal and that the Tribunal was not at liberty to examine the documents with a view to making findings of fact from them. He cited this court in CHUKWUMA V. ANYAKORA (2006) ALL FWLR PT.302 PG.121 at 141; TERAB V. LAWAN (1992) 3 NWLR Pt.231 Pg.569 at 592; KINGIBE V. MAINA (2004) FWLR Pt.191 Pg.1555; SAIDU V. ABUBAKAR (2008) 12 NWLR Pt.1100 Pg.201, etc. Counsel argued that the refusal of the tribunal to consider the documents tendered before it had occasioned miscarriage of justice because the decision would have been different if the Tribunal had acted correctly by giving effect to the contents of the documentary exhibits. I must agree with the learned Appellant’s counsel that one of the reasons given by the Tribunal for refusing to examine the photocopies of the certified True Copies to wit: that they were photocopies and might have been tampered with is untenable. No such accusation came from the respondents and it was not open to the Tribunal to engage in such speculation. Secondly, it has been established that a photocopy of a certified True Copy is admissible. (1) ACB V. NWODIKA (1996) 4 NWLR Pt. 443 Pg. 478; (2) IMB NIG. LTD. V. DABIRI (1998) 1 NWLR Pt. 533 Pg. 284 at 297; (3) DANIEL TAYAR TRANSPORT ENTERPRISES V. ALH. LIADI BUSARI (2001) 1 NWLR Pt. 695 Pg. 482-490; (4) IHEONU V. OBIUKWU (1994) 12 NWLR Pt. 322 Pg.601-603.
However, the major reason why the tribunals refused to lend credence to the contents of the exhibits are contained at page 3415-3417 where the tribunal held that it could not accede to the request of Appellant’s counsel to make findings on the documents based on the Appellant’s argument that the documents speak for themselves. The tribunal held that in so far as the documents were only tendered and left unexplained having not been related to any part of the Appellant’s case, either through witnesses or during address, they were regarded as being merely dumped on the tribunal. I have read the record of proceedings in this case. There is no doubt that at no time did the Appellant make any effort to link specific documents tendered from the bar with the pleading and the oral evidence before the court.
The appellant put his position as follows in paragraph 6.22 of his brief before this court:
“Without more, if the appellant had stopped at mere tendering the various electoral forms they are deemed to have eloquently spoken about the various polling units, wards and the Local Governments for which they were rendered.”
Is that the position of the law? Let us examine the authorities cited by Appellant’s counsel in support. In TERAB v. LAWAN, on election petition, this court held that all the various forms used during election petitions are statutory forms and when tendered give full and conclusive information in respect of what transpired af a polling unit. A petitioner who tendered them has given the relevant evidence which is discoverable from the forms. BULKACHUWA JCA in KINGIBE V. MAINA held at pg. 1589- 1590 of the FWLR that-
“By tendering them (Form EC8A) the appellant has in effect adduced evidence on what happened at the said polling units. I will accordingly singly examine (sic) them to see if as alleged by the appellant there were electoral malpractices, irregularities or over balloting at the said polling units.”
In both cases there was no inference that no effort was made by the party concerned to connect the dots between the documents he tendered and specific allegations in his pleadings. In INEC V. OSHIOMHOLE (2009) 4 NWLR Pt. 112 Pg.607 at pg.663-664. In that case, the controverted Exh.105 was prepared and tendered by PW47 and this court held that the Tribunal could not turn a blind eye to such evidence before it.
In AGAGU V. MIMIKO supra at pg.403 this court held that a court is entitled to examine and evaluate documentary evidence tendered before it. There was proof on the record that the pieces of documentary evidence (ballot papers) examined and evaluated in chambers by the Tribunal were tied in open court by evidence to each unit, ward and Local government from which they emanated.
Therefore it is my respectful view that it is not enough to as it were “dump” a large volume of documents on the Tribunal, the appellant must by evidence say precisely what the documentary evidence was supposed to be in aid of or to prove. In Jalingo v. Nyame (1992) 3 NWLR Part 231 Page 538
“It is the law that a party relying on documents in proof of his case must specifically relate each of such documents to that part of his case in respect of which the document is being tendered. The court cannot assume the duty of tying each bundle of documentary exhibits to a specific aspect of the case for a party where that party has not himself done so”.
In Sauda V. Aliru (1999) 5 NWLR Part 601 94 at 99 this Court held.
“The only way a petitioner can question the lawfulness of the votes cast at an election is to tender in evidence all the forms used and all witnesses to testify as to the misapplication of the votes scored by individuals.”
For example, if a petitioner wants to prove over-voting, he needs a witness to State where the over-voting took place. The documentary evidence of over-voting will be the voter’s register showing accreditation and the Form EC8A. Those pieces of documentary evidence can be tendered from the bar during pretrial or during the course of trial. The witness giving oral evidences would refer to the specific exhibit already tendered to cement the case.
The petitioner has a duty to tie the documentary evidence to the facts pleaded through a witness-particularly a lead witness or during cross-examination of a Respondent’s witness. Anything short of that would be taken as “dumping” the evidence on the Tribunal in which case the Tribunal is not obliged to sift through the documents to get the facts of precisely which documentary evidence proved which allegation. The Appellant has to relate each document with his complaints. This was not done. This issue has to be resolved against the appellant.
On Issue 2 There is no doubt and I agree with the Tribunal that allegation of violence, rigging and other malpractices which are criminal in nature must be even in election matters proved beyond reasonable doubt. However, the law is settled that the petitioner who makes criminal allegations in an election petition but claims he won the majority of lawful votes in the election is entitled to relief even when he fails to prove the crimes alleged beyond reasonable doubt, as long as he succeeds in proving civil allegations, which amount to non-compliance with the Act. See OMOBORIOWO v. AJASIN (1984) 1 SCNLR Pg. 108 at 152-15: AGAGU v. MIMIKO (2009) 7 NWLR Pt. 1140 Pg.342 at pg.401 FAYEMI V. ONI (2009)7 NWLR Pt.140 Pg.223 of 289-290.
I will not go into the exercise of whether pleadings can be severed or not. That has been settled by the Supreme Court in Omoboriowo v. Ajasin. It has been brilliantly explained in the lead judgment. The Electoral Act 2006, in Part VIII created electoral offences. These offences must be proved beyond reasonable doubt. The part of Paragraph 35 which amounted to criminal offences must be proved beyond reasonable doubt. Ballot box stuffing with already thumb-printed ballot papers, ballot box snatching over-voting and violence which prevents the electorate from costing their votes is offences. I agree with the reasoning in the lead judgment that these allegations were not proved beyond reasonable doubt.
There was a big lacuna in the Appellant’s case before the Tribunal. The Appellant did not engage in the vital task of showing the Tribunal by credible evidence specific areas where the 3rd Respondent won a majority and he wants those votes cancelled and deducted from the votes of both parties due to electoral malpractices. The appellant did not show specifically through credible evidence where results have been inflated or wrongly computed so that votes wrongly excluded may be added to the scores of the affected candidate. See NGIGE V. OBI (2006) ALL FWLR Pt. 330 Pg. 1140; and AGAGU V. MIMIKO (supra) at 439-440 Pg 21-22. Also in Buhari V. Obasanjo (2005) 13 NWLR Pt. 941 pg. 191 Belgore JSC held thus:
“It is manifest that an election by virtue of s.135 (1) of the Act shall not be invalidated by mere reason that it was not conducted substantially in accordance with the provisions of the Act, it must be shown clearly by evidence that the non-substantially has affected the result of the election. Election and its victory is like soccer and goals scored. The petitioner must not only show substantial non-compliance but also the figure i.e. votes that the compliance attracted or omitted. The elementary evidential burden of the person asserting must prove, has not been derogated from by s.35 (1)”
This issue is also resolved against the appellant.
The Tribunal discountenanced the evidence of PW8, 11, 12, 14, 16, 28, 32, 35, 39, 40, 2, 6, 26, 30, 36, 37, 38, 18, 7, 10, 14, 15, and 29 at pg 3406 and that of P.W. 20, 21, 5, 4, 3, 9, 25 and 36 on pg 3407 of the record. The Tribunal held that some of the witnesses were unaccredited agents of the Appellant’s party and that it cannot give any probative value to their testimony. With the greatest respect, I think that the Tribunal directed itself in error. By virtue of S. 46 (1) of the Electoral Act 2006, each political party may by notice in writing addressed to the Electoral Officer of the Local Government or Area council appoint a person referred to as a polling agent in the Act, to attend of each polling unit in the Local government or area council for which it has a candidate and the notice shall set out the name and address of the polling agent. Thus, the polling unit on Election Day is not open to sundry political party members but only to INEC officials, accredited voters and accredited agents of political parties who monitor the electoral process on behalf of their party. The agent gets to the polling unit and introduces himself to the INEC official as the party agent whose name had been sent by his party to the Electoral officer of the Local Government. If his name had been sent by his political party, the INEC official must accredit him to perform the duties under S.46 (1) of the Electoral Act. In my humble view the Tribunal was not explicit as to how it arrived of the conclusion that the witnesses were unaccredited agents of the Appellant. Also issues where not joined by the parties on this point.
As to who can give evidence of what transpired of any polling unit, I think that anyone who satisfies the requirement of the combined effects of S. 77 and S. 155 (1) of the Evidence Act that is anyone who witnessed (saw, perceived or heard) the event is qualified to give evidence during trial, be it a relation of any of the parties, a bye stander, voter, party agent, INEC official etc. The Electoral Act contains no special provisions on evidence and is therefore governed by the Evidence Act. I cannot agree that party agents or members of the political party cannot give evidence of what they saw or heard. It would be a ridiculous interpretation of S.91 (3) of the Evidence Act to exclude witness statements on oath made pursuant to the Practice Directions simply because they were made by party members. Excluding them from giving evidence defeats their purpose of the polling stations and the collation centres. See Lasun V. Awoyemi (2009) 16 NWLR Pt. 1168 Pg.513.
The Tribunal gave their reasons for failure to believe the Appellant’s witnesses. They are: 1. some were not accredited 2. Some were thugs 3. Some were members of the Appellant’s political party. 4. Their evidence after being subjected to rigorous cross examination showed contradictions and showed that they were hearsay and thus manifestly unreliable.
I am of the humble view and I agree with learned Appellant’s counsel that reasons 1, 2 and 3 given by the Tribunal for not giving any probative value or disbelieving the evidence of those witnesses are untenable in law. How did they come about their conclusion regarding the character of the witnesses? It is well settled that being a relation to a party is no bar to giving evidence for that party. I have already expressed my opinion on their reasons 1, 2, 3, above. In respect of reason 4, the Tribunal went further in its judgment to consider and analyse the evidence of some witnesses in order to make o finding as to their credibility. I have read the record. It is difficult to quarrel with the assessment made by the Tribunal of the demeanour and credibility of this category of witnesses. For my part I cannot find anything perverse in the assessment and conclusion of members of the Tribunal who sow and heard the witness on oath in relation to the issue of contradictions, reliance on hearsay manifested in the testimony of those witnesses.
The next question is whether the exclusion of the evidence of these witnesses materially affected the outcome of the petition. As I said earlier, we are left to decide this Appeal on the pleading in paragraph 35 of the petition. We are to grant the relief in paragraphs 37(a) & (b) of the petition and the prayer before this Court. We have been asked to upturn the judgment of the trial Tribunal and make an order returning the Appellant as the duly elected Governor of Ogun State. PW1-40 the witnesses whose evidence were not countenanced or given any probative value or was disbelieved by the Tribunal all gave evidence to prove violence electoral malpractices, ballot stuffing, over voting ballot box snatching etc. Let us even accept and believe for the purposes argument all the evidence of these witnesses. In order to arrive at the conclusion that the Appellant won the election by o majority of lawful votes, we must be convinced that after subtraction of invalid votes, addition of valid votes for both parties, the Appellant scored the highest number of votes in two thirds of the Local Governments in Ogun State. The evidence of PW1 – PW40 cannot in any way be used in aid of arriving of such a conclusion. They would have been useful to prove that there was such violence, rigging etc, which could have persuaded the court to nullify the whore erection but were not sufficient to prove that the Appellant won the election.
The Appellant made an elaborate tabulation or chart showing how he won the highest votes. This table is based on the conclusions of P.W.41 and the contents of Exh. U. Both have been shown not to aid the case of the Appellant. There must be cogent evidence of how these electoral offences and malpractices substantially affected the result of the election. The Appellant put all his eggs in one bosket by relying on PW 41 to make his case. The error of that tactic has already been stated above.
None of the witnesses tied any of the documentary evidence on which the court could base its calculation of the votes of each candidate with any of the incidents of over-voting, multiple voting, number of illegal votes etc. It is always a big problem when allegations of electoral malpractices are not proved by a fusion of particularized pleadings supported by both oral and documentary evidence. This constitutes a huge lacuna in the case of the Appellant. This court cannot arrive of the conclusion that the Appellant won the election. There is no legal evidence on the record to form such on opinion.
It is my humble view that the totality of the Appellant’s case before the tribunal and the arguments proferred by the appellant before this court cannot support on overturn of the decision of the lower court or a grant of the relief sought before this court. In the circumstances, this appeal fails and it is hereby dismissed.
ADZIRA GANA MSHELIM, J.C.A.: I read before now the lead Judgment of my learned brother Garba, J.C.A. just delivered. I entirely agree with the reasoning and conclusion arrived thereat. My learned brother had exhaustively treated all the issues raised by the appellant for determination in this appeal. For the same reasons stated in the lead Judgment which I adopt same as mine, I too dismiss the appeal as lacking in merit. I abide by all other consequential orders made therein, cost inclusive.
ADAMU JAURO, J.C.A.: I have had the advantage of reading in advance the lead judgment just delivered by my learned brother, M. L. Garba, J.C.A. I am in complete agreement with the reasoning and conclusions contained therein, which I also adopt as mine.
The appeal is lacking in merit and is hereby dismissed.
The return of the 3rd Respondent as the winner of the Governorship Election for Ogun State held on 14th April, 2007 is hereby affirmed.
The parties are to bear the respective costs of prosecuting the appeal.
Appearances
Yusuf M. Ali, SAN, Chief A. Akintola, SAN, Chief R. Clerk, SAN, B. Aladegobi, Dr. W. Egbewote, Chief Yomi Aliyu, Chief R. Famuyibo, Hassan Fajimite, J. O. Odugbela, F.A. Awofolaju (Ms) K. K. Eleja, Ahmed Akanbi, N. N. Adegboge, T. Akintade, E. Okocha (Mrs) Ismail Ajibade, A. O. Akinwande, Yinka Fajimiroye, Dayo Agbola (Mrs) Kunle Adeola, O. Eabose, M. A. Taiwo, and T. A. Akinsola.For Appellant
AND
Olayode O. Delano with M. Akinmade
Professor T. Osipitan, SAN, Tayo Oyetibo, SAN, Chief Kemi pinhero, SAN, O. Kunle Kalejaiye, SAN, Dr. A. Onigbide, Buge Shobanjo, O. J. Akinwale, Bayo Ilori and John Aga.For Respondent
