SENATOR JULIUS ALI UCHA & ANOR v. CHIEF MARTIN NWANCHO ELECHI & ORS
(2012)LCN/5092(CA)
In The Court of Appeal of Nigeria
On Saturday, the 7th day of January, 2012
CA/E/EPT/60/11
RATIO
HONOURED LEGAL PRINCIPLE ON THE FIXATION OF THE BURDEN OF PROOF IN ELECTION PETITIONS
In Buhari V. INEC (2008) 19 NWLR (Pt. 1120) 246 at 350 para. E; Tobi, J.S.C enunciated and restated the time honoured legal principle on the fixation of the burden of proof in election petitions on the petitioner who is duty bound to prove the affirmative of his allegations as it is he who would lose if no evidence is elicited to establish the grounds upon which his petition is predicated. PER. IGNATIUS IGWE AGUBE, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
ALI ABUKAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
Between
1. SENATOR JULIUS ALI UCHA
2. ALL NIGERIA PEOPLES PARTY (ANPP) – Appellant(s)
AND
1. CHIEF MARTIN NWANCHO ELECHI
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & 1772 ORS – Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Governorship Election Petition Tribunal sitting at Ebonyi State on the 11th day of November 2011.
The facts that led to this appeal are as follows:
The 1st Petitioner, now the Appellant and the 1st Respondent contested in the governorship election held in Ebonyi State on the 26th of April, 2011. The 1st Respondent was declared winner by the 3rd Respondent. The Petitioners then filed a petition at the Tribunal to challenge the result of the Election on the following grounds:
1. That the election and return of the 1st Respondent was invalid by reason of corrupt practices/non-compliance with the provisions and principles of the Electoral Act, 2010 (as amended) and Manual for Electoral Officials 2011 and Guidelines.
2. That the 1st Respondent was not duly elected by the majority of lawful and valid votes cast at the said election.
3. That the 1st Petitioner was the person that scored the majority of lawful votes cast at the said election and ought to have been returned by the 3rd to 5th Respondents as the winner of the election.
Issues were joined by the parties and upon conclusion of hearing, final addresses were exchanged. Based on the arguments contained in the final addresses and the assessment of evidence, the Tribunal gave judgment against the Petitioners.
The Petitioners being dissatisfied with the judgment has brought this appeal. At the hearing of the appeal, the appellant filed amended brief to which the Respondent filed Respondents amended brief. Also at the hearing the 2nd Respondent’s counsel Mr. Ofodile Okafor SAN withdrew the notice of objection and arguments thereon which was thereafter struck out in the brief settled by Ricky Turfa SAN Onikoko SAN and Jolauro.
The Appellants’ counsel identified 6 issues for determination as follows:
1. Whether the Honourable Tribunal reached a perverse judgment when upon finding rightly that the evidence of the respondents’ witnesses were worthless, they refused to rely on the Petitioners’ unreproached evidence and determine their case on the basis of minimal proof? (Distilled from ground 1 of the Notice of Appeal)
2. Whether the Honourable Tribunal properly evaluated the evidence adduced by the Petitioners in proof of the allegation of non-compliance with the electoral act and manual for election officials 2011 in the conduct of the Ebonyi State Governorship Election in Afikpo North Local Government, Abakaliki Local Government, Afikpo South Local Government, Ebonyi Local Government, Ezza North Local Government, Ezza South Local Government, Ikwo Local Government, Ivo Local Government, Izzi Local Government, Ohaozora Local Government, Ohaukwu Local Government and Onicha Local Government, Ebonyi State, in coming to a decision that the Petition was not proved in respect of same? (Distilled from grounds 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 21, 22 and 25 of the Notice of Appeal).
3. Whether the Honourable Tribunal was wrong in treating and discountenancing the copious and uncontroverted documentary evidence adduced by the Petitioners, on the basis that they were dumped on the Tribunal notwithstanding that each was a statutory form tendered individually, admitted as exhibits through a witness and thereafter related to the affected areas during hearing of the petition and some witnesses cross-examined in respect thereof? (Distilled from grounds 2, 3, 19 & 20 of the Notice of Appeal.
4. Whether the Honourable Tribunal was wrong when they refused to rely on the favourable evidence elicited from the respondents’ witnesses in the course of cross-examination by the Petitioners and thereby reckoned without such evidence in holding that the Petitioners’ claims were not proved? (Distilled from grounds 5, 18 & 21 of the Notice of Appeal).
5. Whether having regards to the printed records, the Honourable Members of the tribunal reached a perverse decision when they made the adverse finding of fact that the Petitioners’ witness admitted during hearing that the election was conducted in substantial compliance with the Electoral Guidelines but such could not been gleaned from the record? (Distilled from ground 14 of the Notice of Appeal).
6. Whether the Honourable Members of the tribunal were wrong when they held that the Petitioners failed to tender any result sheet in proof of the tabulation in his petition? (Distilled from ground 24).
The 1st Respondent’s counsel in the brief settled by J.O. Ibik SAN identified six issues for determination very similar in content but more concise than the Appellants’ issues. They are in paragraph 3.1 of the brief.
The 2nd Respondent identified at paragraph 3.0 of the brief settled by G. Ofodile-Okafor SAN six issues for determination couched in different form accentuating different grounds of appeal. Dr. Amaechi Nwaiwu in paragraph 7.1 in the brief settled on behalf of the 3rd- 1775th Respondents also couched the six issues submitted for determination in a different form accentuating different complaints in the grounds of appeal.
I will for the purposes of this appeal adopt the issues as distilled by the learned senior counsel for the Appellant as they seem to me to address more particularly the complaints raised by the grounds of appeal.
ISSUE ONE
The Appellants’ counsel contended that the judgment of the Honourable Tribunal was perverse and unfounded as it was based on wrongful evaluation and assessment of relevant evidence before it.
He further contended that the judgment was not supported by any evidence on the record. He alleged that the election and return of the 1st Respondent was invalid by reason of corrupt practices/non-compliance with the provisions and principles of the Electoral Act, 2010 as amended and the Manual for election officials 2011 and that the Tribunal should have held as such on the correct evaluation of the evidence before it.
Learned counsel stated that at the Tribunal, the Appellant called 118 witnesses including the 1st Appellant, a finger print expert and polling units’ agent who gave eye witness accounts and that the Tribunal did not fault the evidence given by these witnesses for want of credibility. He also claimed that the Appellants tendered a total of 145 exhibits which were electoral documents duly obtained from and certified by INEC upon court-ordered inspection. He stated that on the other hand, none of the Respondents tendered any electoral document to challenge or contradict the enormous documentary evidence adduced by the Petitioners. He further claimed that all the witnesses called by the Respondents were discountenanced by the Tribunal for bizarre incompetence. He referred to the Tribunal’s judgment at page 3182 Volume 6 of the record of appeal. He submitted that despite all these, the Tribunal still gave judgment in favour of the Respondents. He argued that after the Tribunal had resolved against the Respondents the question of credibility of their witnesses, all that was left for it to do was evaluate the largely unchallenged documentary evidence tendered and the uncontradicted supporting oral evidence of the Appellants’ witnesses in relation to the conduct of the said gubernatorial election. He claimed that the Tribunal failed to do this and instead wrongfully came to the conclusion that the Appellants had not proved their case. He cited WACHUKU VS. ONWUNWANE (2011) 14 NWLR (Pt. 1266) 1 SC 39 per RHODES-VIVOUR JSC.
He further asserted that the Tribunal failed to advert their minds to the consequence of rejection of the Respondents’ witnesses’ testimonies coupled with the failure of the Respondents to tender any contrary electoral results than those admitted through the Appellants’ witnesses, which made the petition unchallenged and the Appellants’ case considered on minimal proof. He cited SPDC (NIG) LTD V. EDAMIKE & ORS (2009) ALL FWLR Pt. 489 Pg. 40 at 435 (Not properly cited); NIGERIA V. ANYIM (2009) ALL FWLR Pt. 488 P9.378 at 395.
He commended to this Honourable Court the Appellants’ proof of substantial non-compliance which is essentially based on documentary evidence consisting of certified true copies of Forms EC8A and voters registers of affected areas of the elections in issue, all tendered through PW115 (the 1st Appellant) and marked as Exhibits P1-P145. He referred to pages 2734-2755 of the Records. He stated that Election materials, by virtue of paragraphs 2.2 and 2.3 of the INEC manual can be categorizd into sensitive and non-sensitive materials and that Forms EC8A and voters’ registers are classified as sensitive election materials. He claimed that many of the election materials used by the 3rd Respondent in the conduct of the election particularly Forms EC8A were not stamped and/or signed by the presiding officers as against the mandatory requirement of the law. He argued that this constitutes a violation of sections 73-75 of the Electoral Act and article 5.4. step 8 of the INEC manual, He cited FAYEMI & ORS V. ONI (2009) (2010) 17 NWLR Pt. 1222 Pg. 326 at 392.
He submitted that the non compliance in accreditation of votes and the manifest anomalies on Form EC8A showed substantial non-compliance. He conceded that an election result is presumed authentic until contrary evidence is adduced to show its irregularity. He however stated that this presumption of regularity of an election cannot stand compelling documentary evidence falsifying its authenticity and that the Tribunal was wrong to hold otherwise.
He then argued that the tribunal having agreed that there were irregularities evident on election documents tendered, it was a grave misdirection for it to rely on the rebuttal presumption of authenticity/correctness in refusing to declare the election invalid. He claimed that a document is only presumed regular when it appears so on its face. Any apparent material irregularity on the face of the document detracts from a favourable presumption and warrants explanation from the party relying on the presumption. He cited DAKOLO VS. REWANE-DAKOLO (2011) 16 NWLR (Pt.1272) 22 SC 48. He argued that since there was no explanation from the Respondents as to the apparent irregularities and the oral testimonies of the Respondents’ witnesses had been discredited, the Tribunal was wrong to have nevertheless resolved the issue based on presumption of regularity. He finally submitted that the unchallenged documentary evidence which bear patent irregularities on them which were duly tendered and admitted makes the invocation of presumption of regularity of the election inapplicable. He cited UKPO V. NNAJI (2010) NWLR Pt. 1174 Pg. 175 at 207.
He argued that the inexorable consequence of the findings of the Tribunal is that since the contents of the exhibits tendered by the Appellants corroborated their case whereas the discredited Respondents’ witnesses did not tender any alternative electoral documents, the evidence of the Appellant should be treated as undisputed evidence which measures up to the standard of proof. He cited NSITFMB V. NIG. LTD (2010) 13 NWLR Pt. 1211 Pg.307 at 332; NASIR V. CSC KANO STATE (2011) 6 NWLR Pt. 1190 Pg. 267.
He stated that a trial court or Tribunal is said to have reached a perverse decision where, inter alia, its finding is shown to have been reached in clear disregard of a settled position of law, or where the undisputed evidence on the printed record do not support the finding. He cited NEPA V. OSOSANYA (2004) 1 SC Pt. 1 Pg. 159; OKEDION V. FEDERAL AIRPORT AUTHORITY OF NIGERIA (2008) ALL FWLR Pt 441 Pg. 914 at 936.
He said in such a situation, the Tribunal loses the privilege of being the master of the evidence. He stated that the Court of Appeal is then entitled to review and reverse the perverse finding of the Tribunal and substitute therefore its own that meets the merit and justice of the case. He claimed that substantial error is apparent on the face of the judgment of the Tribunal and as such is perverse because it resulted from wrong approach to the evidence and wrong application of relevant principles of law. He cited MOMOH VS. UMORU (2011) 15 NWLR (Pt 1270) 217.
He then urged this Honourable court to invoke its power of rehearing and hold that the Appellants have made out an unanswerable case as to entitle them to the reliefs sought in the instant appeal. He cited ABBE V. ALEX (1999) 14 NWLR Pt. 637 SC 161.
Learned counsel for the 1st Respondent argued in respect of issue 1 by Appellant’s counsel that the Appellant’s counsel’s complaint in ground 1 of the notice of appeal contained false and erroneous material which does not emanate from the records of the Tribunal and should be struck out. He asserted that it is clear from the judgment at page 3179 line 15 to page 3182 line 15 of Vol. 6 of the record that the Tribunal disbelieved some of the Respondents’ witnesses but not all since the 2nd and 3rd Respondents’ testimony were not indicted at all. The Tribunal also stated that the Petitioner must not rely on the weakness of the Respondent’s case but must proof of its own case.
Counsel argued that no ground of appeal challenged the finding of fact by the Tribunal on page 3217 on vol. 6 of the record to the effect that the Appellants have failed to prove corrupt practices by the Respondents to invalidate the election.
Learned counsel also argued that it is false for the Appellants to import the issue of the forensically analyzed ballot papers by the forensic expert into this appeal as the Appellants had unsuccessfully appealed against the ruling of the Tribunal rejecting the opinion evidence of P.W 117 vide the judgment of this court on 21st October 2011 delivered in CA/E/EPT/27/2011 between Senator Julius Ali Ucha v. Chief Martin Elechi. Learned 1st Respondent’s counsel argued that the judgment of the Court of Appeal upholding the rejection of the 5 volumes of forensic report by the forensic expert has not been appealed against and this establishes issue estoppels binding on the parties and their privies.
Learned senior counsel argued that since all other Respondents were satisfied with the result of the election as tendered by P.W. 115, there was no need for them to tender another set of results.
Senior counsel argued that from page 3174 to 3212 of vol. 6 of the record, the Tribunal evaluated the evidence of the parties particularly the evidence of the two Respondent’s witnesses at page 3213 and 3217 of the record. Senior counsel submitted that a finding of fact must not be set aside unless found to be perverse.
Senior counsel argued that since the electoral documents were tendered by the Appellant as P.W. 115 in bundles, at the tail end of the Appellants’ case, the complaint that the court failed in its duty to examine in detail the said documents is totally without merit as they were dumped on the Tribunal which the Tribunal cannot allow.
He cited Onibudo v. Akwu (1982) 7 SC 60, Terab v. Lawan (1992) 3 NWLR pt. 231 page 569, Nteogwule v. Otue (2001) 16 NWLR pt. 738 page 58, Alao v. Akano (2005) 11 NWLR pt. 935 page 160 at 178.
Learned senior counsel for the 2nd Respondent did not make a direct answer in his brief to the arguments of learned Appellant’s counsel on this issue as couched and argued.
Learned counsel for the 3rd – 1775th Respondents submitted on issue 1 as couched by the Appellant’s counsel that the Appellants’ case could not have been decided on minimal proof because the observation of the Tribunal that the evidence of the Respondents’ witnesses was worthless did not confer any benefit on the Appellants as the onus of proof is fixed and does not shift on the Respondent’s counsel argued that the Appellants failed to discharge the burden of proof of the platter of criminal allegations beyond reasonable doubt and the proof of non compliance on the preponderance of evidence and balance of probabilities. He cited BUHARI V. OBASANJO (2005) 13 NWLR Pt. 941 Pg. 1 at 209, HARUNA V. MADIBO (2004) 16 NWLR Pt. 900 Pg. 487 at 545; ABUBAKAR V. YAR’ADUA (2008) 19 NWLR Pt. 1120 at 143.
I agree with learned counsel for the 1st and 3rd – 1775 Respondents and it is unimaginable but firm view that it is now settled beyond peradventure that the onus of proof in an election petition is squarely on the petitioner. At the close of pleadings, the onus is fixed on the petitioner after taking into consideration all legal presumptions, see BUHARI V. OBASANJO Supra. Much ado has been made by the Appellants on the fact that the Tribunal discredited the evidence in chief of majority of the Respondents’ witnesses. However, the weakness of the Respondents’ case cannot … to the benefit of the Appellant. Even if the Respondent did not call any evidence in rebuttal, the evidence of the Appellant must be so much that would prove the claims and justify the reliefs sought before the court.
The appeal is in my view arguing a wrong premise in insisting that the Tribunal should have accepted only minimal proof of allegation of non-compliance with the Electoral Act. This issue is resolved in favour of the Respondents.
ISSUE TWO
On this issue, Learned Appellants’ counsel argued that having adduced abundant and overwhelming evidence in the nature of oral, documentary and expert evidence to establish their claim on the ground of non-compliance in the 13 local government areas complained of, the Tribunal was wrong in its evaluation of their evidence against the Respondents’ evidence. He claimed that the error consist in the Tribunal’s refusal to countenance vital and properly adduced evidence and wrongful assessment of further evidence in respect of the 13 Local Government Areas complained of and thereafter perversely resolving same against the Appellants.
He submitted that the Appellant’s complaints against the results of the election of the 13 Local Government areas of Ebonyi State were on the grounds that the elections were invalid for:
1. Corrupt practices; and
2. Non-compliance with the provisions of the Electoral Act 2010 (as amended) and Manual for Electoral Officials, 2011.
He then stated that the Appellants had made a conscious effort to effectively the abandon ground of corrupt practices and sufficiently proved their case on the ground of non-compliance. He argued that this was enough on the authority of AGAGU V. MIMIKO (2009) 7 NWLR Pt. 1140 Pg. 342. He further argued that having regards to the overwhelming evidence of non-compliance adduced by the Appellant, the Tribunal was wrong in resolving the issue against the Appellants.
He claimed that the Appellants complained about the substantial non-compliance with the Electoral Act and Electoral Guidelines in their pleadings before the Tribunal. He listed the following as some of the anomalous non-compliance:
1. Recording of votes for parties, even when no voters were on queue at the time of commencing balloting as depicted in the Form EC8As.
2. Ascribing votes to candidate where there had been no accreditation of voters at all as depicted in the Form EC8As.
3. Ascribing valid votes to candidates based on results that were not authenticated by presiding officers with the presiding officers’ signatures and official stamp and in some cases with no signature as depicted in the Form EC8As.
4. Ascribing valid votes to candidates based on results that were authenticated by person purporting to be presiding officers other than the officially designated presiding officers in the INEC staff list provided to parties before the date of the election as depicted in the Form EC8As.
5. Ascribing votes arbitrarily to the 1st Respondent in such a way that the numbers of accredited voters was less than the number of people who voted.
6. Ascribing valid votes to the 1st Respondent in polling booths where there was no voting at all
7. Multiple voting and
8. Arbitrary lack of ballot papers to cover up for the arbitrary recording of valid votes for the 1st Respondent.
Learned counsel stated that after clearly pleading these fundamental anomalies, the Appellants called 118 witnesses and tendered polling units’ results in proof of the invalid results as well as the EC8AS, EC8Cs, EC8Ds and voters’ registers for both the Gubernatorial and House of Assembly elections. He adduced that almost all the witnesses called by the three Respondents were discredited by the Tribunal.
He argued that instead of the Tribunal to evaluate the gamut of evidence tendered by PW115 (1st Appellant) in proof of the anomalies, the Tribunal held that PW115 evidence constituted hearsay evidence because according to the Tribunal, the evidence was elicited from the party’s agents (See page 3175 of the records).
He drew the court’s attention to page 2743 of the record where during cross-examination, PW115 was confronted with the question of whether the facts linking the documents with the polling units were direct evidence and he said:
“It is correct, we received all information which we believed and later found to be true.”
He contended that a hasty perusal of this answer was what led the Tribunal to wrongly conclude that the evidence given by PW115 is hearsay. He argued that a careful insight would reveal that apart from gathering information from the parties’ agents, the witness took steps to confirm the authenticity of the information gathered and as such his testimony cannot be referred to as hearsay. He further contended that the testimony of PW115 in respect of anomalies in Abakaliki Local Government Area is mostly documentary evidence and as such does not require any further oral evidence to prove it. He cited AIKI V. IDOWU (2006) 9 NWLR Pg. 47 at 65. He then submitted that it was wrong for the Tribunal to reject such documentary evidence and to rely on the oral evidence adduced by the Respondents’ witnesses. Counsel also claimed that in respect of Afikpo North Local government area, the Appellants had tendered Form EC8AS and voters’ registers of same, admitted as exhibits P 97 and P 112 B respectively. He stated that these documents reflect the anomalies complained of. He argued that the Tribunal discountenanced both exhibits by not considering them at all in the course of assessing evidence in respect of Afikpo North local government area. He claimed that in respect of Afikpo South and Ebonyi local governments that the Tribunal’s judgment was similarly perverse. He drew the court’s attention to the evidence of PW38 which was adduced to show that the conduct of the election was not in compliance with the Electoral Act and other regulations because accreditation and voting in some of the polling units particularly Code 011 polling unit lasted till 8 pm. He argued that it was wrong for the Tribunal to hold that even though there were irregularities, the Appellants failed to show how substantial these irregularities are. He submitted that this reasoning is not cognizable in law as the test for substantiality of irregularities or non-compliance is as against the entire election process challenged and not a particular polling unit as held by the Tribunal.
He contended that the Tribunal in its Judgment on page 56 held that the Appellants’ had not established their case on the ground of corrupt practices, but was silent on the issue of non-compliance. He argued that the Appellants did not only make averments as regards corrupt practices in respect of Ebonyi and Afrkpo South local governments and that they had also complained of non-compliance with the Electoral Act as well as the other regulations. He then argued that it was wrong of the Tribunal to overlook the issue of non-compliance which should be proven on a balance of probability as opposed to the issue of corrupt practices which should be proven beyond reasonable doubt. He submitted that Exhibits P96 and P112 (D) clearly establish the act of non-compliance complained about by the Appellants and that the Tribunal was wrong in not countenancing it.
He further asserted the above argument in respect of Ezza North, Ezza South and Ikwo local government areas (See page 20, paras 5.45 – 5.51 of the Appellant’s brief)
With regards to the remaining 6 local government areas (see para 5.53), the Appellant argued that the Tribunal did not reconcile the evidence of the identified witnesses (See pages 3198 – 3223 of the Records and paras 5.54 – 5.56) with the relevant documentary evidence tendered by PW115 since these witnesses were polling agents for the 2nd Appellants who were called to adduce oral evidence to substantiate the anomalies identified in respect of these local governments as evidenced in the Forms EC8AS and voters registers tendered by PW115. He submitted that all evidence led by a part in proof of specific allegation must be considered holistically; including evidence from opponents that support that case. All such evidence are thus placed on one side of the imaginary scale viz-a-viz that led by the adverse party in rebuttal to determine on balance of probability, which weighs heavier. He cited MOGAJI v. ODOFIN (1978) 4 SC 91. He contended that as there was not credible evidence to weigh against the oral and documentary evidence from Appellants, this Honourable court should hold that the evidence being unrebutted and not being unreasonable, was wrongly dismissed by the Tribunal.
He added that the allegation of non-compliance with the Electoral Act and other regulations are best proved by documentary evidence. He cited OBIAZIKWOR V. OBIAZIKWOR (2008) 8 NWLR Pt. 1090 Pg. 55 at 566; FAYEMI V. ONI (2009) 7 NWLR Pt. 1140 Pg. 223 at 291; AKINBISADE VS THE STATE (2006) 17 NWLR Pt. 1007 184 SC. He stated that by virtue of Section 139 (i) of the Electoral Act 2010 as amended, an election is liable to be nullified where the Petitioner can show from evidence that there was substantial non-compliance with the laws regulating the election and the said non-compliance has substantially affected the election result to justify nullification. He then argued that there is no contention that the allegation of non-compliance proved by the Appellant is substantial and that it is obviously fatal, due regard being had to the proportion of the affected areas in relation to the whole election (There are only 13 local government areas in the state). He cited CHIME V. EZEA (2009) 34 WRM Pg. 39 at 115; ALH. YUSUF IBRAHIM NA-BATURE V. ALH. ISA ALIYU MAHUTA & ORS (1992) 9 NWLR Pt. 263 Pg. 85 at 104.
Learned counsel then urged this Honourable court to reverse the Tribunal’s findings by evoking section 15 of the Court of Appeal Act 2004 and resolve same in the Appellants’ favour. He cited TAKUBU ABDULHAMID KWARARRA V. LAGI INNOCENT & 40 ORS (2009) ALL FWLR Pt.460 Pg. 719 at 756. He added that since the evaluation of evidence by the tribunal was carried out by excluding vital documentary evidence while relying on oral evidence by the Respondents and the assessment of the remainder of the evidence was done with a view to determine whether or not corrupt practices where proved rather than substantial non-compliance, the Tribunal’s judgment was perverse. He urged the court to so hold. He cited EFUNWAPE OKULATE & ORS V. GBADAMOSI AWOSANYA & ORS (2000) 2 NWLR pt. 646 Pg. 530 at 546
On this issue learned senior counsel for the 1st Respondent argued that since the Tribunal painstakingly evaluated evidence from one Local Government Area to another in its judgment, which the Appellants complained as insufficient, the 1st Respondent would re-emphasize the ratio of the Tribunal in respect of each local government.
The 1st Respondent counsel then proceeded in paragraphs 7.4, 7.6, 7.7, 7.8, 7.9, 7.10, 7.12, 7,13, 7.16, 7.17, 7.20, 7.23, 7.25, 7.26, 7.28, of the brief in defense of this appeal to crystallize some of the reasoning of the Tribunal for rejecting the petition of the appellant. He argued that none of the Appellants’ witnesses tendered any documentary evidence in proof of the allegations of non compliance except the Appellant as P.W. 115. Counsel argued that for the Appellant to win on the issue of non compliance, he must prove how the non compliance affected the outcome of the election to his detriment.
Learned senior counsel for the 2nd Respondents argued that since there are 13 local governments in Ebonyi state, divided into 171 wards and 1785 polling units. In the Appellant’s table set out in paragraph 12(vii) of the Petition they complained about 531 polling units. Thereafter the complained of some other 38 wards scattered in 11 of the 13 L.G.A. without specifying the names and nos of such units.
Counsel further argued that on the pleadings alone the Appellants’ case complains about 210 polling units out of the 1785 and that even if the 210 polling units were voided it would not significantly or substantially offset the result of the election in the 1575 polling units. Counsel urged the court to hold that any proved non compliance was not substantial enough to invalidate the result in the affected local governments.
Learned counsel for the 3rd – 1775 Respondents argued that the Tribunal at volume 6 page 3174 to 3226 of the record properly and carefully evaluated the evidence at local government where the polling units were contested. The tribunal carefully and meticulously examined the pleadings led, the pleading abandoned and for which no evidence was led. Majority of the pleadings were on criminal allegations not proved. The pleadings on non-compliance with the provision of the Electoral Act 2010 as amended were not proved as shown at volume 6 pages 3174 to 3226 of the record of Appeal. The reasons advanced by the tribunal for arriving at the conclusion that non-compliance was not proved was unassailable and cannot be faulted.
He argued that the cases of AGAGU V. MIMIKO cited by Appellants counsel are inapplicable to the facts of this case. He argued that in this case even if all the criminal allegations are severed from the petition, what remains as proof of non-compliance cannot sustain the petition as the Appellant did not adequately plead and prove sufficient instances of non-compliance. He cited BUHARI V. INEC (2008) 19 NWLR Pt. 1120 Pg. 246 at 435, AKINFOSILE V. AJOSE (1960) SCMLR 447, AWOLOWO V. SHAGARI (1979) 6-9 SC 51.
Let me say that Tribunal at page 3163-3164 Vol. 6 held as follows:
“It is to be further noted that in totality, as can be garnered from the averments in the Petition, particularly the tables contained in paragraphs 12 (vii) thereof, that the Petitioners have questioned the results of the election, declared by the 3rd Respondents, in not less than 531 Polling Units out of the 1785 Polling Units, scattered throughout the 13 Local Government Areas of the State”.
The tribunal then made a finding that the Appellants as petitioners were satisfied with the result as declared by the 3rd Respondent with respect to the other polling units not specifically challenged in the petition and as such have not joined issues with the Respondents with respect thereto, The Tribunal then refused to concern itself with polling units where the parties had not joined issues.
I must reiterate that this issue turns on whether the Tribunal was right in holding that the Appellants proved allegations of irregularities and non-compliance substantial enough to invalidate the results in the affected local governments. I agree that where non compliance would give obvious advantage to one of the parties to the election, such non compliance must be adjudged as substantial.
To prove the allegations of non compliance the Appellant through PW115 tendered two bundles of ballot papers Exh 143 to prove that they did not represent the true finger print of registered voters as captured on the Direct Data Capture machine. However, the evidence of the forensic expert called by the Appellant had been rejected and the rejection confirmed by this court so that Exh 143 has become irrelevant.
I agree with paragraph 6.1.33 of the 2nd Respondents brief that even if it is proved that some ballot papers were not duly stamped and signed before they were issued to eligible voters contrary to the election manual, such omission cannot per se lead to an invalidation of the election. S. 138(2) of the Electoral Act 2010 provided as follows:
“An act or omission which may be contrary to an instruction or directive of the commission or an officer appointed for the purpose of the election but which is not contrary to the Act shall not of itself be a ground for questioning the election”.
The substance of paragraph 12 of the petition had to do with non compliance where the Appellant put 215,929 votes in controversy as the total of contested votes. From Pg. 93-126 of the record, the appellant submitted tables 29-42 to show what he alleged to be the true results of votes cast. In his table 28 at Pg. 140 of the record he showed that in the result declared, PDC scored 287,217 votes while ANPP scored 125,248 votes. From paragraphs 12-28 of the petition, paragraph 12 appears to be an admixture of allegations of violence which had been abandoned and non compliance. Paragraphs 13, 16, 17, 18, 19 made general allegations of non compliance. Paragraphs 15, 20, 21-28 were allegations of criminal offences. Being tacitly withdrawn and deemed abandoned by the Appellants, the allegations of criminal activities in the petition are hereby struck out. We are left with allegations of general and specific non compliance. No case can be made of general non compliance, but let us examine the evidence to see if cases of specific non compliance has been proved. Suffice it to say that in my humble view, the evidence led did not prove on a balance of probabilities the alleged non compliance. The Exh tendered by PW115 were not tied to specific instances of non compliance. It was the duty of petitioners’ counsel to have led the petitioner through the Exhibits by relating the instances of non compliance so that the numbers could be ascertainable. Politics and as we know specifically election is a game of numbers. Each vote counts and each vote should be counted. The physical evidence tendered by the petitioner to prove non compliance must be related to the polling units and subtracted. A specific exhibit to prove non compliance must be related to some figures the petitioner wants us to deduct from the votes of the parties or to void or to add to the vote of either part.
For example we conducted a physical examination of the exhibits in respect of Ezza North ward 9. The voters register was tendered as Exh P112 on 9/9/11. The result was tendered as Exh P118 in Form EC8A. The Appellant tendered the House of Assembly results of the election conducted contemporaneously with the Governorship election. No attempt was made by the Appellant to compare the results issued in one exhibit with the other and to highlight specific discrepancies which would prove non compliance.
Furthermore in Exh P 108 tendered on 9/9/11 which is in respect of results in form EC8B for Ezza South ward 06 particularly Abaji village square unit 001, we compared the voter’s register and voting pattern in the Governorship election with the Exh P119 the State Assembly results and found that for the same unit 001 the votes were similar and there was no evidence of non compliance. So also a comparison of Exh 108 and Exh 119.
The point being made here is that instead of the bland table or chart made by the Appellant’s counsel at the Tribunal, the chart should have related the specific exhibits to the number of votes affected by the non compliance.
In essence one has to agree with the Tribunal and learned counsel for the Respondents that the documentary exhibits which is the basis of the Appellants’ case was effectively dumped on the Tribunal. PW 115 in my humble view did not make any coherent or conclusive case out of the said Exhibits and neither did the Appellant counsel in his address at the Tribunal. It would be a complete fallacy to say that the documents must speak for themselves merely because they were admissible and admitted as exhibits. It is the law that to prove substantial non compliance that would void an election, the petitioner must prove that the non compliance disenfranchised a particular number of his voters, the number of votes he could have secured but for this default and how the number of votes affected the outcome of the election. One appreciates the figures generated by the Appellant in the Appellant petition and address before the Tribunal, however it is not enough to generate figures without cogent proof by physical evidence.
The Tribunal’s judgment at page 3223 of the record held as follows:
“Rather, the Petitioners referred some of the witnesses of the 3rd Respondent to some irregularities evident in some of the exhibits, ranging from non-stamping and signing of some ballot paper to non-signing of the Form EC8As by the polling agents of the 2nd respondents (sic), but failed to show how these irregularities have negatively affected the outcome of the elections.”
To my mind, the issue of S. 139(1) of the Electoral Act has not even arisen since it arises after acts of non compliance have been proved. The second issue is resolved against the Appellant.
ISSUE THREE
On this issue, the Appellants’ counsel stated that the copious documents, that is, certified true copies of Form EC8As and voters registers for the affected areas, tendered by the Appellants were obtained through a court ordered inspection and were tendered through the PW115. He argued that the there is no factual or legal basis for the Tribunal’s statement that the documents were dumped on it with no effort made to relate the said documents to specific aspects or their case, since the said documents were admitted as exhibits and assigned exhibit numbers as they were being individually tendered.
He referred to the Tribunal’s statement at pages 3232 as erroneous (See para 6.04 of Appellant’s brief). He contended that there is no legal requirement that the result of election produced and certified by INEC must be confirmed by polling agents before the Tribunal can act on them. He argued that both counsel and the Tribunal are entitled to use charts and tables to demonstrate and relate evidence already tendered before the Tribunal. He cited AGAGU V. MIMIKO (Supra) at 427. He also contended that quite contrary to the Tribunal’s assertion in the judgment, PW115 gave evidence as contained in his witness statement on oath which he adopted before the Tribunal and in respect of which he was cross examined by all the Respondents. He was also cross-examined on the copious documents tendered by him in the course of his oral examination-in-chief. He cited instances where PW115 was cross examined on the documents (See para.6.11). He also cited instances where some of the respondent’s witnesses were cross examined on some of the documents as well (See paras 6.12-6.19).
He then concluded that having regard to the limited period within which each side could present its case and also that the documents to prosecute the Appellants’ case were procured on court ordered inspection and were tendered without objection from the Respondents, it was wrong for the Tribunal not to have relied on the documents in proof of the allegation of non-compliance. He cited AREGBESOLA V. OYINLOLA (2009) 14 NWLR Pt. 1162 Pg. 429 at 478
This issue as argued by the 1st Respondent counsel answered the issue as raised and adumbrated by learned Appellant counsel. Counsel argued that the argument in paragraph 6.05 of the Appellant’s brief is alien to the manifest holding of the Tribunal. Counsel objected to the assertion of the Appellant that P.W. 115 tendered documentary evidence individually and marked individually polling unit by polling unit. Counsel argued that the Tribunal was justified to have refused to countenance the result tendered by the Appellant as P.W. 115 moreso as the makers of the document were not in court to explain their purport and how they adversely affected the result of the election. Counsel further argued that the issue in paragraph 6.21 and 6.23 of the Appellant’s brief is inappropriate having been caught by issue estoppel. In essence, learned senior counsel argued all the points hitherto argued under issues 1 and 2. On this issue, 2nd Respondent’s counsel argued that at no point did the Tribunal discountenance the documents tendered by the Appellants in proof of their allegation. The Tribunal simply frowned at the Appellant’s inability to establish the relevance of the documents to their case. He submitted that it is not the duty of the court to tie up documentary evidence with the case made up by the party if the party had not done so himself. He cited AUDU V INEC (2010) 13 NWLR Pt. 121 Pg. 456 at 520
Learned senior counsel for the 3rd – 1775 Respondents on his own part submitted that contrary to the submissions of the Appellants at pages 25 to 28 of the Appellants brief, the tribunal was right when it held that the documents tendered by the 1st petitioner were not related to either pleaded facts or his evidence-in-chief. He also failed to show from polling unit to polling unit, how the votes recorded for the 1st respondent that summed up to the number given in the foregoing, were unlawful or void votes resulting from non-compliance with the Electoral Act or INEC manual 2011. Also non of the witnesses for the petitioners who claimed to have worked for the petitioners as polling unit agents, were referred to any of these documents of Form EC8A to establish the case of the petitioners. I have always been sceptical of allegation of dumping of documents by trial Tribunal and have most times seen it as a way to avoid proper evaluation of documentary evidence proffered by a party. However, let us look at the circumstances of this case. Before the Exhibits were tendered, 114 witnesses had testified on behalf of the Appellant and none of them made reference to or was questioned in relation to the said exhibits.
The charts contained in the appellant’s counsel final address were not tested before the Tribunal. The Appellant did not show that the figures were a result of careful examination and comparison of Exh P95-111 in open court. The Tribunal held on Pg. 3208 of vol 6 of the record as follows:
“Other than pleading these documents the 1st Petitioner who tendered the documents failed to relate the documents either to the pleaded facts or his evidence-in-chief. He also failed to show, from polling unit to polling unit, how the votes recorded for the 1st Respondent that summed up to the number given in the foregoing, were unlawful or void votes, resulting from non-compliance with the Electoral Act or INEC Manual 2011. In the same vein, non of the witnesses for the petitioners, who claimed to have worked for the Petitioner as polling Unit agents, were referred to any of these documents (SIC) of Form EC8A, to establish the case for the petitioners.”
In the circumstances of this case the Appellant had the burden in my humble view of specifically relating or linking each of the documents to specific parts of their case. It would be wrong in our adversarial system of jurisprudence for the Tribunal to assume the partisan responsibility of tying each of the documents in the bundles tendered to the figures generated by the Appellant when the Appellant failed to do so himself. If the charts had been properly correlated with the figures of non compliance in the exhibits tendered by the Appellants there would not have been any justifiable reason not to follow the cases of AGAGU V. MIMIKO Supra and use them as a guide to know who scored what votes at the questioned election. This issue is resolved against the Appellant.
ISSUE FOUR
On this issue, the learned Appellants’ counsel stated that the respondents and the Appellants joined issues at the Tribunal with respect to the averments of non-compliance contained in the Petition. He stated that issues having been joined, the stage was set for the Appellants to fully demonstrate before the Tribunal how the election was flawed by reason of the said non-compliance. He cited UNITY BANK PLC V. BOUARI (2008) ALL FWLR Pt. 416 Pg. 1825 at 18251; DABUP V. KOL (1993) 3 NWLR Pt. 254 at 270; OBOT V.CBN (1993) 8 NWLR Pt. 310 Pg. 140 at 162.
He asserted that on cross-examination of the respondent’s witnesses, serious discrepancies and anomalies in the documents tendered in evidence through PW115 were actually exposed, which undeniably proved the Appellants’ allegation of non- compliance. He claimed that the Tribunal however failed to act on the favourable evidence elicited from the Respondents’ witnesses on the basis that the witnesses were not the makers of the documents and so could not be cross-examined on them (See page 3183 of the record). He argued that the Tribunal was wrong in so holding because even though the documents with respect to which the Respondents’ witnesses were cross-examined were tendered through Petitioners’ witnesses, they had become properly admitted in evidence and were liable to be utilized by any of the parties in proving their respective cases. He further argued that since the Respondents had chosen to defend the result of the election, they cannot escape being cross examined on the properly admitted documents. He cited DAGGASH v. BULAMA (2004) 14 NWLR Pt. 892 Pg. 144 at 241; GAJI v. PAYE (2003) 8 NWLR Pt. 823 Pg. 583 at 603-604; BAMGBOYE 7 ORS v. OHENWAJU (1991) 4 NWLR Pt. 184 pg. 132 at 155.
Counsel also stated that the Tribunal had in its judgment observed that the evidence elicited from the Respondents’ witnesses could be helpful to the Appellants’ case (See pages 3193, 3195, 3197 & 3212 of the Records). He also claimed that counsel to the Respondents also cross-examined PW115 on the documents contrary to the Tribunal’s assertion.
He urged this court to hold that the Tribunal was wrong to have held, after acknowledging that the cross-examination of the 3rd Respondent’s witnesses by the Appellants disclosed manifest irregularities, that those irregularities did not substantially affect the results of the election and that the Tribunal occasioned a grave miscarriage of justice to the Appellants by rejecting the favourable evidence elicited by the Appellants during the cross-examination of the respondents’ witnesses.
Learned senior counsel for the 1st Respondent argued that having regard to the state of the pleadings between the parties with particular reference to paragraph 12 vii and the TABLES thereto annexed at pages 18 to 63 of vol. 1 of the Record where in the Petitioners listed the Polling Units in the specified wards of the 13 Local Government Area of Ebonyi State and also the number of votes allegedly contested by the Petitioners and the respective averments in the Respondents’ replies joining issues thereon, it was incumbent on the Appellants to prove their claim on the balance of probabilities. Senior counsel argued that P.W. 115 did not demonstrate in open court the particular exhibits that Appellant relied upon to prove their case that the 1st Appellant obtained the majority of lawful votes as claimed. More importantly, counsel argued that it is patient on the record that the Appellants did not demonstrate by reference to documentary evidence before the lower tribunal the unlawful votes which they alleged were ascribed to the 1st Respondent. The 1st Respondent did not take up the other issues five and six by the Appellant since they essentially are repetition of the substance of the previous issues argued, the lack of reply is of no moment. Learned senior counsel for the 2nd Respondent did not make any reply to the appellant’s argument on this issue. Learned Senior counsel for the 3rd – 1775 Respondents argued that even if evidence were elicited under cross examination which is favourable to the Appellant, such evidence does not mean that the Appellant have discharged the burden of proof on them. He also submitted that such evidence to be of any relevance must have been pleaded and urged the court to hold that the evidence was not so pleaded.
The complaint being raised by the Appellants on this issue is that the Tribunal held at Pg. 3183 of the record that since the witnesses of the 2nd Respondent did not act as presiding officers, they could not competently give evidence as regards instances of non compliances as shown on the fact of the documents tendered by the Appellants and could not be cross examined by them. I do not agree with the arguments of learned Respondents counsel on this point and so with the opinion of the Tribunal. Where issues have been joined by a party on certain facts and pleadings settled, either party can lead evidence or cross examine on the facts in issue. The Appellant argument on paragraph 7.08 and 7.10 of the brief is unarguable sound in law. See DOGGASH v. BULAMA (2004) 14 NWLR Pt. 892 Pg. 144 at 241.
The documents were properly before the Tribunal and the 2nd Respondents witnesses were its agents who certified them as genuine. I am strongly of the view that it is not only the person who tendered a CTC of a public document that can be cross examined on it. However, the argument of learned Appellant counsel that he could not call as a witness any of the presiding officers because they had been sued is misconceived. They are competent parties and thus competent witnesses for either part to the petition. They may be hostile witnesses for the Appellant and the court may be asked to declare them so. In any event the impact of the said information elecited under cross examination from the Respondents’ witnesses by learned senior counsel for the appellant is completely lost on me. The Appellant brief’s however did not state the quantum of irregularities elicited from the Respondents’ witnesses and how it affected the scores of the candidate at the election. This issue in substance is resolved in favour of the Appellant but for practical purposes has not impacted on the prayers sought before this court.
ISSUE FIVE
With regards to this issue, the learned counsel to the Appellant asserted that the Appellant, in proof of the allegation of non-compliance with the provisions of the Electoral Act 2010 as amended and the Manual for Election Officials 2011 in respect of Ivo local government area of Ebonyi State, called 7 witnesses. He claimed that the witnesses adopted their statements on oath and were cross examined on them. The cross examination of the witnesses can be found at pages 2480-2492.
He submitted that having painstakingly gone through the records of appeal, none of the 7 witnesses called conceded the election questioned in the Petition was conducted in compliance with the provisions and principles of the Electoral Act and the guidelines. He noted that all the efforts of Respondents’ counsel to lead them to contradict themselves failed. He argued that the Tribunal’s finding that the Petitioners’ witnesses admitted under cross-examination that the election was conducted in compliance with electoral guidelines was completely baseless and unsupported by facts.
He further asserted that the courts or Tribunals have the judicial duty to confine themselves to the issues raised before it. He cited SANNI V. ADEMILUYI (2003) 3 NWLR Pt. 381 at 395. He stated that the court or tribunal in any adjudicatory process should not make a case for any of the parties. He cited ADEOTUN OLODEJI (NIG) LTD V. NB PLC (2007) 5 NWLT (PT. 1027) 415 at 441; PASCUTTO v. ADECENTRO (NIG) LTD (1997) 11 NWLR Pt. 529 Pg. 467 at 481.
He then urged the court to set aside the finding of the Tribunal as stated above as it isn’t contained in the record of appeal. The 5th issue as adumbrated by learned senior counsel for the Appellant was not replied to by any of the learned senior counsel for the Respondents. Suffice it to say that where a conclusion is not borne out by the record, it is deemed to be perverse. Having not made a rebuttal or answer to that issue, the Respondents are deemed to have admitted same. Thus the observation of the Tribunal at Pg. 69 of the judgment and Pg. 3202 of the transmitted record is perverse and is hereby held to be so. This issue is resolved in favour of the Appellant.
ISSUE SIX
The Appellants’ counsel claimed that the Appellants has pleaded at the Tribunal that some votes were unlawfully credited to the 1st Respondent and that if these votes are deducted from the scores credited to the 1st Respondent, the Appellant would have ended up with the majority of votes cast. He claimed that in proof of these averments, the Appellants had, through PW115 tendered several Forms ECBAs, used and unused ballot papers of the complained units and these were admitted without objection and marked as exhibits P95 – P107. He also claimed that the Appellants through their expert witness PW117 also tendered ballot papers in the affected areas which was inspected by him and these were also admitted and marked as exhibits P143 P144. He asserted that PW115’s evidence was not discredited and PW117 was not cross examined by the Respondents at all.
He then submitted that not only did the Appellants lead credible evidence in support of the averment that scores were unlawfully credited to the 1st Respondent, the evidence led by the Appellants was largely uncontroverted and as such the Tribunal’s statement at page 3227 of the records that the Appellants were alleging falsification of results and as such should have produced two sets of result, one being the false result and the other being the genuine version was misconceived. He argued that there is a difference between allegation of falsification of votes and allegation of votes being unlawfully credited to a respondent. He claimed that the former has to do with a claim that the results were altered from the original form to favour a Respondent while the latter is a claim that certain votes credited to a Respondent ought not to have been credited to him for some reasons. He added that the Tribunal therefore erred when they placed an additional burden on the Appellants to produce 2 sets of results. He concluded that the tabulation made by the Appellants gave a detailed account of areas complained about unit by unit based on the documentary evidence tendered.
The issue in my humble view is a repetition of the previous issues couched in different words. However, the problem is that the evidence in relation thereto is nebulous. Learned Appellant counsel was at great pains to make the distinction that the allegation is not one of falsification of result but of meant for him being credited to the 1st Respondent. How can that be achieved if not by falsification of votes and results? How can that allegation be proved without proving wrong collation of votes? The distinction being made is between six and half a dozen. The Appellant alleging that votes were wrongly credited to his opponent must tender CTC of Form EC8A showing the base of the pyramid of voting and how the figures he won in these sets of results if he accepted them were at a point wrongly credited to another candidate. I find no merit in the Appellant’s argument on this issue and it is hereby resolved against the Appellant.
An appeal is by way of rehearing. The Appellant is obliged to restate the crux of the case at the lower court in detail so as to enable the court review the totality of the cogent evidence available before the lower court. That is the only way the appellate court can properly evaluate the evidence available by the lower court and came to a finding thereon. The brief was replete with various general complaints against the judgment of the Tribunal. The very case made out before the Tribunal was not brought forth for a review. How the findings led to a miscarriage of justice was not shown. How we can grant the reliefs sought by the notice of appeal when they were not properly addressed. Throughout the length and breath of the brief, the specific figures in controversy before the Tribunal were not mentioned except the cursory references in Para 7.33 at Pg. 32 of the Appellants brief to the chart repared in the final written addresses of the petitioner before the Tribunal. There is no doubt in my mind that not only did the appellant not prove the substantial non compliance, the solitary and few examples of non compliance he elicited from the testimony of the Respondents’ witnesses are not material enough to offset the result of the election. The appeal is unmeritorious and it is hereby dismissed. The judgment of the Tribunal is hereby affirmed. No order as to costs.
A. A. B. GUMEL, J.C.A.: I have had the Privilege of reading before now the lead judgment just delivered by my learned brother, OGUNWUMIJU, JCA.
I fully agree with all his reasonings and conclusions. This appeal lacks merit. It is accordingly dismissed by me too.
IGNATIUS IGWE AGUBE, J.C.A.: I have been privileged to read in advance the erudite judgment just rendered by my learned brother OGUNWUMIJU, JCA and am in total agreement with my Lord that this appeal lacks merit and should be dismissed.
It is not enough to allege non-compliance, corrupt practices and sundry criminal violations of the Electoral Act and the Manual for Electoral Officers in a petition. By virtue of Sections 131 and 132 of the Evidence Act 2011; the petitioner must go further to elicit cogent and convincing evidence to establish such allegations to the satisfaction of the Tribunal or Court.
In Buhari V. INEC (2008) 19 NWLR (Pt. 1120) 246 at 350 para. E; Tobi, J.S.C enunciated and restated the time honoured legal principle on the fixation of the burden of proof in election petitions on the petitioner who is duty bound to prove the affirmative of his allegations as it is he who would lose if no evidence is elicited to establish the grounds upon which his petition is predicated. Where as in this case, there are allegations of corrupt practices and non-compliance, the onus was on the Appellants to prove the criminal allegations beyond reasonable doubt and those of non-compliance on the balance of probability respectively, otherwise his petition ought to be dismissed.
In the petition at hand, the Tribunal below having heard the parties and their witnesses and carried out a diligent and dispassionate evaluation of their evidence as well as weighed same on the imaginary scale of justice; their Lordships rightly came to the conclusion that the appellants merely dumped the results and other electoral materials before the Tribunal without speaking to them.
Accordingly, having not discharged the primary burden of proof, the onus of rebuttal did not even shift to the Respondents. See OMORINBOLA V. MILITARY GOVERNOR OF ONDO STATE (1995) 9 NWLR (Pt. 418) 201; OGBU v. WOKOMA (2005) 14 NWLR (pt 944) 118, ADIGHIJIE V. NWAOGU (2010) 12 NWLR (Pt. 1209) 409 at 464 Para A-C 480.
Apart from the above, the Appellants never showed how these allegations of corruption and non-compliance affected the outcome of the election or impacted upon them negatively so as to warrant judgment being entered in their favour.
From the foregoing, and the more elaborate analysis and reasons advanced by my noble Lord in the lead judgment, I hold that the judgment of the lower tribunal is unassailable and is accordingly affirmed.
I abide by all the consequential orders as made by my Lord including costs.
Appearances
Ricky Tarfa (SAN) with him A. J. Owonikoko (SAN), O. O. Jolawo Esq., M. S. Ibrahim Esq., B. Adulaju Esq. F. C. Ani Esq.For Appellant
AND
Dr. J. O. Ibik (SAN) with him C. C. Echetehu (Miss), O. J. Ibik Esq., V. O. Amilo Esq, C. M. Eze Esq., M. V. C. Ozioko Esq for 1st Respondent
G. O. Ofordile Okafor (SAN) with him O. A. Ani Esq. Esq. C. E. Asogwa Esq. for 2nd Respondents
Dr. Amechi Nwaiwu (SAN) with M. Ngmuocha Esq for 3rd RespondentsFor Respondent
