SUNDAY UGWA & ANOR. v. HON. OJI LEKWAUWA & ANOR.
(2011)LCN/4498(CA)
In The Court of Appeal of Nigeria
On Monday, the 18th day of April, 2011
CA/PH/EPT/230/2008 (2)
RATIO
ELECTION PETITION: STANDARD OF PROOF REQUIRED IN PROVING ALLEGATIONS OF THUGGERY, VIOLENCE AND HIJACKING OF ELECTION MATERIALS
It is trite law that allegations of thuggery, violence and hijacking of election materials are criminal allegations, which must be proved beyond reasonable doubt. Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1; Nwobodo v. Onoh (1984) 1 SC 1. PER OWOADE, J.C.A.
ELECTION RESULT: EFFECT OF A PUBLISHED ELECTION RESULT BY INEC
The strength of the unimpeached certified true copies of the Form EC8 A (1) series coupled with the duplicate originals tendered by the appellants could be imagined from the dictum of Aderemi, JCA (as he then was) in the case of Ngige v. Obi (2006) 14 NWLR (Pt. 999) 1 at 197 to the effect that: “I shall also liken the publication of election results through a document or documents signed by its accredited officers as a “valid sealed instrument”. The moment INEC published the result of election, it is estopped, forever from denying the authenticity the genuineness and the truth of all therein contained in the document voluntarily released by it (INEC) relating to the information or figures pertaining to the results. The estoppel subsumed in the release of the sheet or sheets containing the results is a conclusive admission, or if I may put it in another way, something which the law treats, in absolute terms, as equivalent to an admission.” Relatedly, in the case of INEC v. Ray (2004) 14 NWLR (Pt. 892) 92 at 131; Ogunbiyi, JCA applied the decision of the Supreme Court in Nwobodo v. Onoh (supra) at 31 to say that: “The results tendered by the petitioner/1st respondent and his witnesses were agents carbon copies and same were therefore admitted as primary evidence (Duplicate Originals) of the contents of the said results. The authorities of Nwobodo v. Onoh, Anyaegbu v. Ozor and Nnadi v. Ezike (supra) were all relevant in support. It is also trite law that the primary evidence of the results of the election are Form EC8 A (statement of results of poll from polling election). The case of Remi v. Sunday at P. 107 per Salami, JCA and Nwobodo v. Onoh (supra) are relevant in substantiation.” PER OWOADE, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEJUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
1. SUNDAY UGWA
2. PEOPLES DEMOCRATIC PARTY (PDP) – Appellant(s)
AND
1. HON. OJI LEKWAUWA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & 108 ORS. – Respondent(s)
OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Abia State Governorship/Legislative Houses Election Tribunal delivered on 23/1/2008 in respect of Petition No. ABS/SHA/EPT/22/2007.
The State House of Assembly Election in Bende North Constituency in Abia State took place on the 14th day of April, 2007.
At the said election, the 1st appellant was the candidate of the 2nd appellant (PDP) the 1st respondent was the candidate of the 2nd respondent (PPA). Both the 1st appellant and 1st respondent including candidates of other Political Parties contested the said election. At the end of the election, the 1st respondent was declared the winner of the election. The 1st respondent was declared and returned by the 2nd – 5th respondents as winner with 10, 098 votes against 1294 credited to the appellants.
Dissatisfied with the result of the election the petitioners/appellants brought a petition at the Abia State Governorship/Legislative Houses Election Tribunal, challenging the return and declaration of the 1st respondent as the winner of the election by the 2nd to 110th respondents.
In the amended petition of the appellant filed on 28th July 2003, the petition was brought on the following grounds:
(i) That the 1st respondent was not duly or validly elected or returned by majority of lawful valid votes cast at the questioned election of 14th April 2007 having not scored or polled the highest number of majority of lawfully valid votes cast at the election.
(ii) That the declaration, election, or return of the 1st respondent is undue and invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act 2006 as amended.
From the pleadings of the parties, issues were more particularly joined on the state of the collation of election results in:
(a) Amankalu/Akaliufu/Alayi Ward
(b) Ugwueke/Ezeukwu Ward
(c) Item Ward A
(d) Item Ward C
The petitioner/appellant states that no result was collated in Amankalu/Akaliufu/Alayi Ward and no Form EC8 B (1) was given out because of violence perpetrated by the 1st respondent. He also states that no result was collated in Ugwueke/Ezeukwu Ward as one Chief Ukwu Rocks Emma after the election took the INEC ad-hoc staff who conducted the election away.
The respondents denied the above assertions and pleaded that elections held and that the results in those two wards were duly collated.
In respect of Items Wards A and C, the 1st respondent pleaded that the collation officers in those Wards failed to appear because of the activities of petitioner’s thugs in those areas. The 2nd – 110th respondents said the collation officers in those two Wards did not show up until the announcement of results by the Constituency Returning Officer.
The appellant on the other hand pleaded and relied on Forms EC8 A (1) given to their agents in Igbere A, Igbere B. Item A, Item B and Item C Wards. After full hearing of the petition, the Honourable Tribunal found the petition to be lacking in merit.
The Tribunal held that the petitioners/appellants failed to prove the allegations contained in the petition and did not rebut the presumption of law as to the authenticity of results for the Wards as declared by INEC. Not being satisfied with the decision of the Honourable Tribunal, the appellants then brought this appeal challenging the Judgment of the Tribunal.
The Notice of Appeal of the appellants containing six grounds of appeal with particulars of errors and the reliefs sought from the Court of Appeal as contained from pages 613 to 618 of the record is reproduced below for ease of reference.
GROUNDS OF APPEAL
GROUND ONE
ERROR IN LAW
The Election Tribunal erred in law when it held that “the petitioner has failed to prove the aforesaid corrupt practices and illegality in the conduct of the questioned election” and thereby came to a wrong decision, which occasioned a miscarriage of justice.
PARTICULARS OF ERROR:
1. The appellants complained of corrupt practices and or non-compliance with the Electoral Act, 2006 in respect of Amankalu/Akoliufu Alayi Ward and Ugwueke/Ezeukwu Ward
2. The combined effect of Sections 43 and 47(c) of the Electoral Act, 2006 is that it is only INEC that creates polling stations by name, therefore any result which does not reflect the polling unit name given by INEC is illegal.
3. There was before the Tribunal evidence that the 1st respondent voted at Polling Unit 004, which officially is Amankalu Primary School and which unit result tendered in evidence as Exhibit BB3 clearly showed that the name of the Unit was marked “OBUCHIE” which is the name the 1st respondent gave under cross examination as his compound and abode.
4. The Tribunal accepted that all the units results from Amankalu/Akoliufu Alayi Ward tendered in evidence by the 1st respondent as Exhibits BB – BB17, were tainted for non-compliance with the Manual for Election Officials, 2007, a subsidiary legislation made pursuant to Section 161 of the Electoral Act, 2006.
5. Out of the 12 polling units in Ugwueke/Ezeukwu Ward, the 2nd respondent could only account for 9 units which were tendered as Exhibit AA – AA8, while results were entered for all 12 units in the Ward Summary of Results tendered as Exhibits R1 and DD3, which was used in the collation of Exhibit S.
6. The Tribunal accepted also that 7 out of the 9 unit results tendered in Ugwueke/Ezeukwu Ward were tainted for non-compliance.
GROUND TWO
ERROR IN LAW
The Election Tribunal erred in law by failing to collate the result of Item “A” and Item “C” Wards which were unlawfully excluded in the collation of the Constituency Result, which if collated would have given the 1st appellant a clear majority of the valid and lawful votes at the questioned election. The failure occasioned a miscarriage of justice.
PARTICULARS OF ERROR:
1. The appellants pleaded and tendered the agent copies of the unit results for Item “A” and Item “C” which were further authenticated by production and tendering of INEC certified copies of the said unit results.
2. The 4th respondent totally excluded Item “A” Ward result in the Summary of Constituency Result tendered as exhibit S, which was used in the declaration of the 1st respondent while Item “C” Ward result was simulated as the figure entered in exhibit S did not add up to the total score of the parties as contained in the exhibits tendered by both the appellants and the 1st respondent.
3. The results tendered by the appellants were authenticated by the certified copies issued by INEC while the 1st respondent tendered only certified copies without tendering the agent copies pleaded in the 1st respondent reply.
4. The Tribunal ought to have added the results of Item “A” and Item “C” Wards as tendered by the appellants to determine who scored majority of lawful and valid votes at the questioned election.
5. The Tribunal failed to make any pronouncement as regards the collation of the results of the two Wards which were put in issue before deciding on the majority of lawful votes scored by the parties.
GROUND THREE
ERROR IN LAW
The Election Tribunal erred in law and thereby came to a wrong conclusion which occasioned a miscarriage of justice when it held that: “As the INEC declared the 1st respondent as the winner with 10,098 votes against the 1,294 of the 1st respondent (sic), we subtract the tainted votes from the aforesaid INEC result. That is when we noted that the respondent will end up with 294 lawful votes and the petitioner with minus 802 votes. This we hold as untenable and state that in the absence of any cogent and verifiable reason the return of the 1st respondent as the winner of the questioned election ought to be upheld as the petitioner has failed to rebut the presumption of genuineness of the result declared by the INEC”.
PARTICULARS OF ERROR:
1. The said declaration of the 1st respondent as winner of the questioned election was based mainly on the collated results of five (5) Wards namely, Amankalu/Akoliufu Alayi, Igbere “A” Igbere “B”, Ugwueke/Ezeukwu and Item “B” plus a simulated result of Item “C”, which did not pass any test of authenticity either by aggregate score of the unit results for Item “C” tendered in evidence by the appellants or the 1st respondent.
2. The analysis in Schedule “C” of the appellants’ counsel’s address on which the Tribunal based its judgment included results tendered by the 1st respondent in respect of Item “A” and Item “C” Wards, which were not represented in the result used for the declaration of the 1st respondent and whose genuineness the appellants made out a rebuttal evidence but on which the Tribunal failed to make any finding.
3. The Tribunal ought to have subtracted the tainted results from the Wards used in the collation of the declared result and then determined the authentic and preferred results for Item “A” and Item “C” Wards on which the parties joined issues before concluding on the overall genuineness of the result declared by the INEC.
4. The Tribunal was under a duty to collate the result of Item “A” and Item “C” Wards which were unlawfully excluded before reaching a decision on who score majority of the lawful votes.
5. The Tribunal accepted that unit result used in the declaration of the 1st respondent were tainted as tabulated in the judgement.
GROUND FOUR
ERROR IN LAW
The Election Tribunal erred in law by non evaluation or improper evaluation of the evidence before it, which affected its conclusions and it thereby came to the wrong decision that the 1st respondent had a majority of the lawful votes cast at the Questioned Election, which occasioned a miscarriage of justice.
PARTICULARS OF ERROR:
1. A proper evaluation of the evidence would have shown that the results of Item “A” and Item “C” Wards were unlawfully excluded from the result used in the declaration of the Constituency result.
2. A proper evaluation of the evidence would have shown that the appellants unit results for Item “A” and item “C” Wards were preferable and ought to be accepted and used in the collation of the Constituency result rather than that of the 1st respondent from the state of the pleadings and evidence.
3. A proper evaluation would have shown that an anomaly of the type accepted by the Tribunal for other unit results existed in Unit 012 of Igbere “A” Ward – Exhibit Z4, which was highlighted in page 6 of Schedule “C” of the Appellants’ Counsel Address, but from the figure of tainted votes accepted by the Tribunal in the Ward, was passed as untainted.
GROUND FIVE
ERROR IN LAW
The Election Tribunal erred in law by falling to collate the Constituency result from the unit results – Form EC8A(i)s tendered in evidence and available to it before subtracting the total tainted votes from the declared result which included unit results that were never tendered in evidence by the respondents as existing and this occasioned a miscarriage of justice.
PARTICULARAS OF ERROR:
1. The declaration and return of the 1st respondent as winner was based on the collated results from the various Wards as collated in Exhibit S – Form EC8 C (i).
2. The 1st respondent tendered and relied on the Unit results of the five Wards that were collated as constituting the foundation or base of his return.
3. Results were entered for Unit 012 of Amankalu/Akoliufu Alayi ward, Units 002, 005 and 010 of Ugwueke/Ezeukwu Ward and Unit 013 – Igbere “A” ward in Forms EC8B(i) Exhibits R, R1 and R2 respectively but the unit results were not tendered in evidence or otherwise made available by INEC.
4. The Tribunal ought to have collated the unit results before it and used it as basis to determine the majority of lawful votes after excluding the tainted votes instead of using the figures declared by the 4th Respondent, which has been shown from evidence as not supported by the foundation – booth results.
5. Tribunal is under a duty to collate the result of the election once it is seized with all the lawful units or other results on proof of wrong or improper collation as shown by the Appellants.
6. The failure to collate the unit results which were tendered and available denied the Tribunal of the opportunity of determining as between the 1st Appellant and the 1st Respondent who scored the majority of valid and lawfully votes and this occasioned a miscarriage of justice.
GROUND SIX
The judgment is against the weight of evidence
FURTHER GROUNDS WILL BE FILED ON RECEIPT OF THE RECORD OF PROCEEDINGS.
RELIEFS SOUGHT FROM THE COURT OF APPEAL
(a) To set aside the decision of the Tribunal;
(b) That the 1st respondent (Hon. Oji Lekwauwa) was not duly elected or duly returned by the 2nd – 5th respondents.
(c) That the election in Amankalu/Akoliufu Alayi Ward and Ugwueke/Ezeukwu Ward was invalid by reason of corrupt practices and or non-compliance with the provisions of the Electoral Act.
(d) That the 1st respondent (Hon. Oji Lekwauwa) did not score majority of the lawful valid votes cast in the election and therefore ought not to have been declared elected or returned by the 2nd – 5th respondents.
(e) That the 1st appellant was duly and validly elected by majority of the valid lawful votes cast in the election and therefore ought to have been returned as duly elected by the 2nd – 5th respondent.
(f) An order declaring the 1st appellant as validly and duly elected or returned having scored majority of the lawful valid votes case of the election.
The relevant briefs of argument for this appeal are as follows:
1. Appellants brief of argument dated 5/5/2008 and filed on the same date – settled by Nwabu M. Nwosu, Esq.
2. 1st Respondent’s amended brief of argument dated 31/1/2011 and filed on 2/02/2011 – settled by Chief U.N. Udechukwu, SAN.
3. 2nd – 110th respondents brief of argument dated 22/5/2008 and filed on 23/5/2008 – settled by P. O. Okorie, Esq and Sunday Nwigboke, Esq.
4. Appellants amended reply brief to the 1st respondent’s amended brief of argument dated 20/2/2011 and filed on 21/2/2011 – settled by Nwabu M. Nwosu, Esq.
5. Appellants reply brief to the 2nd – 110th respondents brief of argument dated 24/7/2008 and filed on 25/7/2008 – settled by Nwabu M. Nwosu, Esq.
The appellants nominated four (4) issues for determination as follows:
1. Considering the finding of fact by the Tribunal with regard to act of non-compliance which substantially affected the result of the election in Amankalu/Akoliufu/Alayi and Ugwueke/Ezeukwu Wards, whether the trial Tribunal was not wrong in holding that the Petitioner failed to prove illegality in the conduct of the election and thereby occasioned a miscarriage of justice. (Ground 1)
2. Whether in view of the pleadings and evidence, that the results for Item ‘A’ and ‘C’ Wards were not wrongfully excluded from the collated constituency result, and if the trial Tribunal was not duty bound to collate those results in order to determine who scored majority of lawful votes, failure of which occasioned a miscarriage of justice? (Grounds 2 and 3).
3. Having regard to the pleading, evidence and finding of fact made by the trial Tribunal, whether the trial Tribunal was not in error which occasioned miscarriage of justice when it held that “the return of the 1st Respondent …… ought to be upheld as the petitioner has failed to rebut the presumption (Grounds 4 and 5)”
4. Whether having regard to the facts and circumstances of the entire petition whether the appellant was not entitled to be returned as duly elected having scored majority of lawful votes (Ground 6)
The 1st Respondent formulated two(2) issues for determination:
(i) Whether the Tribunal below was right when it held that the petitioners had failed to prove that the declaration, election or return of the 1st respondent is undue and invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act 2006 as amended.
(ii) Whether the Tribunal below was right when it held that the petitioners had failed to prove that the 1st respondent was not duly or validly elected or returned by majority of lawful votes cast at the questioned election.
The 2nd – 110th respondents formulated three (3) issues for determination:
“1. Whether the trial Tribunal was right in holding that the petitioners/appellants failed to prove the allegations of corrupt practices and illegality as to warrant the nullification of the result of the election in Amankalu/Akoliufu Ward and Ugwueke/Ezeukwu Ward (Ground one)
2. Whether the Honourable Tribunal ignored the results of Item Ward A and Ward C in upholding the declaration of the 1st respondent as having scored the majority of lawful votes cast; if so, whether the Tribunal was right to have done so going by the evidence adduced before it (Ground two)
3. Whether having regard to the totality of the evidence adduced by the petitioners/appellants whether the petitioners/appellants proved their case as to be entitled to the reliefs sought for. (Grounds three, four and five).
In this appeal, the submission of the appellants shall be treated on one side while those of the 1st respondent and the 2nd – 110th respondents shall be treated together as those of the ‘respondents’. This is because of the shared interest in the cases of the 1st respondent and the 2nd – 110th respondents.
The gist of the appellants submission on issue no. 1 is that one of the reliefs claimed by the appellants in Paragraph 27 of the amended petition is:
“(b) That the election in Amankalu/Akoliufu Alayi Ward and Ugwueke/Ezeukwu Ward was invalid by reason of corrupt practices and or non-compliance with the provisions of the Electoral Act.”
That, the finding of fact made by the Tribunal shows that there was substantial non- compliance at Amankalu/Akoliufu Alayi and Ugwueke/Ezeukwu Wards at the questioned election. The trial Tribunal was therefore in error when it failed to invalidate the election in those Wards if not for corrupt practices but for non-compliance with the provisions of the Electoral Act, 2006, being the relief sought by the appellants which the Tribunal found proved.
The respondents denied any findings of fact in favour of the appellants by the Tribunal. They reviewed the evidence of the appellant as PW1 and his only other witness Marshall Okorie as PW2. Respondents submitted that the evidence of PW1 regarding the use of armed thugs to hijack election materials to the house of the 1st respondent where results were produced was found to be inadmissible hearsay evidence, that the evidence of PW2 was equally found to be unreliable in relation to the Ugwueke/Ezeukwu Ward and that the totality of the evidence Act by the appellants could not sustain the required burden of proof in an allegation of a criminal offence in civil matters as dictated by Section 138 (1) of the Evidence Act.
Truly, from the record, the evidence of PW2 as to the events that took place on the day of election in Amankalu/Akoliufu/Alayi Ward was hearsay evidence of agents of the appellants at the polling units who were not called as witnesses at the trial. The evidence of PW2 was not just found to be unreliable but was also sufficiently countered by the evidence of the respondents witnesses on the events that took place at Ugwueke/Ezeukwu Wards on the day of election.
In those circumstances, the Tribunal was perfectly right to have held in respect of the appellants allegations of violence, corrupt practices and non-compliance in both Amankalu/Akoliufu/Alayi and Ugwueke/Ezeukwu Wards that the allegations were not proved, that they ought to be proved beyond reasonable doubt and that there was no evidence of the involvement of the 1st respondent even if there were disruptions and or violence in those Wards.
It is trite law that allegations of thuggery, violence and hijacking of election materials are criminal allegations, which must be proved beyond reasonable doubt. Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1; Nwobodo v. Onoh (1984) 1 SC 1.
Issue No. 1 is resolved against the appellants.
On the second issue, learned counsel for the appellants submitted that the appellants duly pleaded, listed and attached copies of the results issued to their agents in Item ‘A’ Ward and Item ‘C’ Ward. They were tendered in evidence as Exhibits D, D1 – D15 and Exhibit F, F1 – F7 respectively, that, the appellants were also issued certified copies of these unit results by the 2nd respondent and they were tendered in evidence without objection as Exhibit M, M – M14 and Exhibit Q, Q1 – Q7 respectively.
Appellant’s counsel referred to the cases of Nwobodo v. Onoh (1984) 1 SCNLR 1 at 31, INEC VS. RAY (2004) 14 NWLR (Pt. 892) 92 at 131; Kingibe v. Maina (2004) FWLR (Pt. 191) 1555 at 1589 and submitted that it is trite law that the primary evidence of the results of the election are forms EC8A (statement of results of Poll from polling election) and that by the tendering and admission of those documents in evidence, the appellants conclusively discharged the burden placed on them to prove that those results exist and the product of the questioned elections.
Counsel submitted that the certification and issuing of the certified unit results for Item ‘A’ and Item ‘C’ Wards – exhibits “M” and “Q” series, meant that INEC has published those results, it amounts to a conclusive admission, they can no longer deny their existence. In fact, said counsel, they are estopped from denying the authenticity and genuineness and truth of all therein contained.
Counsel referred, on the above to the case of Ngige v. Obi (2006) 14 NWRL (Pt. 999) 1 at 197 and submitted further that the 1st respondent tendered only certified copies of unit results for Item ‘A’ and ‘C’ Wards. Exhibits X, XI – X14, and Exhibit CC, CC1 – CC7. That, the results tendered by the 1st respondent though certified copies are radically different from the result of the same unit tendered by the appellants. The 1st respondent in paragraphs 22, 23 and 27 of the respondent’s reply variously pleaded agent copies that is duplicate originals of Forms EC8 A (1) for the two Wards – Item ‘A’ and Item ‘C’, failed to tender the agent copies but preferred to tender purported certified copies of the result.
Counsel noted that INEC the 2nd – 110th respondents did not tender any document despite averring that they have all the unit results for the constituency. The situation, said counsel, is that there are three set of results each purporting to be the real or actual result for item ‘A’ and Item ‘C’ Wards. The question, according to counsel is which of the two between the appellants and the 1st respondent is to be believed.
Counsel submitted that the state of the pleadings of the respondents showed that they have all that were required to prove the falsity or otherwise of Exhibit D, D – D15 and J, J1 – J7 for Item ‘A’ and ‘C’ Wards, but the respondents failed to offer any scintilla of evidence in this regard.
First, said counsel, the 1st respondent, who started the allegation of falsification against the appellants results did not tender his agent copies. He did not call the polling agents who were at the polling booths when the votes were counted and results declared to testify so as to stigmatise the appellant’s results for these Wards. The only witness who claimed to be a polling agent is RW3 – Madam Love Alaezi. Her statement was tendered as Exhibit LL.
Counsel submitted that RW3 neither identified the booth result of Unit 002 during her evidence nor stated the scores of the parties in Exhibit LL. Furthermore, said counsel, the most significant aspect of Exhibit LL is that parties which admittedly did not contest the election such as CPS, RPN, NPC, NDP, APS, FRESH, and DNPP were allotted votes. The serial number of Exhibit LL was the same as Exhibit X8.
Counsel submitted that in paragraphs 5 and 6 of Exhibit LL, RW3 stated unequivocally that there was collation at the Ward and further that PPA won but under cross-examination, she denied this aspect of her evidence in Chief as contained in Exhibit LL.
Counsel submitted that the evidence of PW3 and the result of the unit in which she worked as the 1st respondent’s agent demonstrated manifest irregularity and non-compliance with the Electoral Act.
That, it showed the abuse to which the respondents subjected the electoral process. Exhibit X, said counsel was consistent with a simulated result because parties that neither fielded candidates nor contested election were allocated votes.
Counsel submitted that the 2nd – 110th respondents failed to proffer any iota evidence to rebut the evidence of the appellants. None of the presiding officers who made the result testified. These respondents did not tender the original copies of the booth results which they have in their custody. They did not tender the list of electoral materials including polling unit result sheets and the serial numbers, which would have proved the falsity of the appellants results for the Item ‘A’ and Item ‘C’ Wards.
Counsel referred to the cases of Awoshile v. Sotunmbo (1986) 3 NWLR (Pt. 29) 471 at 487, Agbi v. Ogbeh 26 NSCQR (Pt. 2) 1257 at 1298 – 1299, Adun v. Osunde (2003) 16 NWLR (Pt. 847) 643 at 667 and submitted that a situation where witnesses who could give credible evidence in proof of a particular matter were left out, as in the instant case, the court is entitled to invoke the provisions of Section 149 (d) of the Evidence Act to the effect that evidence which could be and is not produced would, if produced, be unfavorable to the person who with holds it.
Appellant’s counsel submitted that the moment the appellants tendered their agent copies of the booth results, supported by the certified copies issued by the 2nd respondents – INEC followed by the cross-examination of the 1st appellant on the certified copies, the authenticity of the results tendered by the appellants in respect of Item ‘A’ Ward and Item ‘C’ Ward is conclusive. On this, counsel referred to the case of Arabambi v. Advance Beverages Ltd. (2005) 12 SC (Pt. 1) 60 at 76 – 77.
Counsel submitted that having shown the authenticity of the result tendered by the appellants, those result ought to have been ascribed their proper probative value by the Tribunal which was under a duty to collate them, on proof that they were not collated by the Returning Officer or indeed any of them.
Counsel submitted that the 1st respondent averred that the results for Item ‘A’ and Item ‘C’ Wards were cancelled by the 2nd – 6th respondents “due to cases of violence and irregularities experienced there …”
That the 2nd – 110th respondents on their part did not aver any cancellation of these results i.e. Item ‘A’ and ‘C’ Wards. They merely said that the “results for the polling units in those Wards were received by the 2nd respondent after the constituency had collated and declared the final result of the election. It is further their case that the presiding officers of the two Wards submitted the results the next day after the declaration of the final result of the election.
Appellant’s counsel submitted that the above position of the respondent cannot stand in the light of the content of Exhibit S – Form EC8 C (1) – Summary of Constituency Result for Bende North State Constituency. The position which the respondents have stated in their pleadings and evidence, said counsel is that the result of Item ‘A’ and ‘C’ Wards were not seen by the Constituency Returning Officer. However, the Summary of Constituency Results – Form EC8 C – Exhibit S shows otherwise. From the position adopted by the respondents, any data to the contrary in Exhibit S vitiates its presumption of authenticity or genuineness. That Exhibit S shows a simulation of collation of Item ‘C’ Ward result.
Counsel submitted that the contradictory position of the two sets of respondents make their evidence on this issue most unreliable.
Counsel submitted that the 1st respondent – RW1 and the 5th Respondents – RW4 were both led under cross-examination to admit at least, on the partial collation of Item ‘C’ Ward result. That, given the scenario in the inconsistencies in the pleadings and evidence of the respondents, the court cannot begin to pick and chose what to believe in the circumstances.
Counsel referred to the case of Onubogu v. The State (1974) 9 SC 1, and said it is safer to disbelieve the evidence of the respondents in toto and accept wholesale the evidence of the appellants as exhibited through the appellants version of the said results.
Counsel submitted that from the state of pleadings and evidence adduced it is no longer beyond doubt that:
(1) The unit results tendered in evidence by the appellants for Item ‘A’ and Item ‘C’ Ward are the authentic results produced by the election since the respondents failed to impeach their authenticity.
(2) That the results were wrongfully excluded in the collation of the constituency results.
(3) The results are available
On the power of the Tribunal to review the declaration of scores of candidates, counsel referred to the provision of Section 69 (c) of the Electoral Act, 2006 and submitted relying on the cases of Adun v. Osunde (2003) 16 NWLR (Pt. 847) 643 at 666 – 667, Sam v. Ekpelu (2000) 1 NWLR (Pt. 642) 582 at 596 that the power of review under Section 69 (c) of the Electoral Act includes the power to compute or collate result that has been wrongly computed.
Counsel suggested that the collation of the result of Bende North State Constituency including Item ‘A’ and Item ‘C’ Wards between the appellant and the 1st respondent will be as demonstrated in Table ‘C’ page 22 of the appellants amended brief of argument. (Therein, the total valid votes for PDP is 11,881 and PPA – 10,704).
The first reaction to appellant’s Issue No. 2 as could be gathered from the responses of the two sets of respondents is that on the issue of valid votes cast at the questioned election, the pleadings of the appellants is at variance with their contention in their written submissions at the court below and before this Honourable Court. That, in paragraph 17 of their petition they claimed the following scores:
(i) PDP 11231, PPA 5061
But in their counsel’s address they embedded a chart showing PDP 11299, PPA 5063 and that before this court, the appellants now canvass a total valid votes ratio of PDP 11,881 and PPA 10,704.
Respondents referred to the case of Adetona v. Edet (2004) 16 NWLR (Pt. 899) 338 at 360 and submitted that a party must be consistent in stating his case. That, where the pleadings are inconsistent with the evidence, surely it cannot be said that the petitioners have proved their case.
Respondents also submitted that it is noteworthy that the petitioners did not make any case of wrongful exclusion of votes; neither did they give any evidence in relation to any particular result pointing out any taint or irregularity on the face of it. The Petitioners, according to counsel to the respondents failed to call any witness to testify on the documents tendered by them during pre-hearing. None of the agents whom the petitioners alleged received their agent copies were called to testify so as to afford the two sets of respondents an opportunity to cross-examine them on the said documents.
Counsel to the respondents submitted that PW1 and PW2 in their statements on oath failed also to lead evidence on the said unit results for Item Ward A and Ward C. That, the implication of the appellant’s failure to lead evidence let alone credible one on the result of Item Ward A and Ward C when both parties joined issues as to its genuineness or otherwise is that the averments in the petition on that issue has been abandoned. After referring to the case of Shell Dev. Co. Ltd. v. Otoko (1996) 6 NWLR (Pt. 159) 693 and N.A.S.L. v. U.B.A (2005) 23 NSCOR, 127 at 131, respondents counsel submitted further that a careful look at the evidence of PW1 and PW2, that is exhibits “GG” and “HH” will reveal that none of the documents tendered by the appellants had a bearing on the evidence of these witnesses. According to respondents, neither PW1 nor PW2 received these documents either from the Presiding Officers or from their agents. The two sets of respondents concluded jointly and severally that from the state of pleadings and evidence of the appellants, the attempt in the address of appellant’s counsel to analyse various charts without demonstrating his valid results through evidence tantamount to asking the court to ‘investigate’ the matter before it.
Respondents counsel relied first on the cases of Wilcox v. The Queen (1961) 2 NCNLR 296, and Duruminiya v. C. O. P (1961) NRNLR 70 to show that a trial is not an investigation and second on the case of UBN v. Ayodore (2007) 30 NSCQR 1 at 43 as authority for the view that counsel’s address can not take the place of evidence.
The 1st set of respondent in particular submitted that having regard to the pleadings and evidence of the appellants, the conclusion reached by the Tribunal at pages 607 – 608 of the record that the result of appellants counsel analysis of tainted votes is ‘mind boggling’ and unattainable as the respondent will end up with 296 lawful votes and the Petitioner with minus 802 votes cannot be faulted when not one single witness for the appellants was called to testify with respect to the claim made by the appellants that the results of Item A and Item C Wards were wrongfully excluded.
Learned counsel to the appellants in his amended reply brief to the 1st set of respondent reacted to the allegation of inconsistencies in the figures presented as valid votes in the petition and the addresses of counsel as contained in paragraph 5.01 to 5.06 of the 1st respondent’s amended brief.
First, that by Sections 69 (c) and 147 (2) of the Electoral Act, the mandate of the trial Tribunal is to declare the candidate with the majority of lawful votes. And, that, there is no gainsaying the fact that the final score is based on the aggregate of the votes contained in Form EC8 A (1) produced at the questioned election, tendered and admitted as exhibits.
Appellants counsel reiterated that apart from the agent copies front-loaded by the appellants B, C, D, E7 and F series, the appellants also obtained the certified true copies of all the Form EC8 A (1) produced at the election from the 2nd respondent and tendered them as Exhibits H, J, K, L, M, N and Q series.
In further reply in his reply brief, learned counsel for the appellants submitted that since it was a live issue in the petition that the 1st appellant won majority of valid votes at the questioned election, all the appellants need do to prove their petition was to tender the results produced at the election, which they did. The trial Tribunal will then in the exercise of its mandate under Section 69 (c) and 147 (2) of the Electoral Act declare as appropriate. The appellants, said counsel, discharged the onus placed on them by law.
Appellant counsel submitted that the case of Adetona v. Edet (supra) relied on in particular by the 1st respondent is distinguishable from the facts and circumstances of the instant case. First, it is not an election matter. Secondly, it is not on all fours with the situation and does not avail the 1st Respondent in the circumstance.
Learned counsel for the appellants also responded to the two sets of respondents on the findings (perhaps observations) of the Tribunal on the analysis of tainted votes by the appellants.
On this, counsel represented the appellants position/figures as shown on pages 549 – 571 of the record and the Tribunal’s computation as shown on page 608 of the record and submitted that the figures found by the Tribunal and those nominated by the appellants are radically different. That, in the light of the differences in figure, it cannot be seriously contended as the 1st respondent has done that the trial Tribunal did not make any finding of fact at page 608 of the record or that the said finding did not influence the conclusion/judgment of the trial Tribunal.
However, the respondents, said appellants counsel cannot be heard at this stage challenging the glaring finding of the trial Tribunal on the number of tainted votes without a cross-appeal or respondents notice filed by any of the respondents on the said findings.
In further reaction to the respondents on the issue of the appellants having not called any of his agents to speak to the results in Item ‘A’ and ‘C’ Wards, learned counsel for the appellants submitted in reply that the respondents failed to appreciate the status of election result Forms. That, there were no results hitherto used to declare results in Item “A” and “C” Wards to which appellants alleged falsification, in which case appellants would have required proof to stigmatize results declared by INEC. In such a situation, the appellants would have been required to call agents to testify in line with the authorities of Nwobodo v. Onoh (1984) 1 S.C. 1, Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 and those line of cases. But, that, in the instant case, the documents were tendered as duplicate originals to prove the results of the election in Item “A” and Item “C”. They were supported by counterpart results in exhibits M and Q series certified and issued by INEC.
Counsel submitted that unlike the situation in the case of Shell Petroleum Development Co., Ltd., v. Otoko & 6 Ors. (supra) relied on more especially by the 2nd set of respondents, the tendering and admission of the result Forms for Item ‘A’ and Item ‘C’ Wards accord with the provisions of Section 92, 93 and 94 of the Evidence Act and were properly before the Tribunal. What was in issue, said counsel were the contents of the documents. That the content of election forms are not the expert opinion of a presiding officer or a polling station agent of a party but are rather certified content of activity at a given polling station given in a prescribed form.
On this, he referred to the case of Kingibe v. Maina (2004) FWLR (Pt. 191) 1555 and Section 92 (1) of the Evidence Act. Appellants counsel submitted that the SPDC v. Otoko case (supra) on the other hand was not an election petition case. That, it was an oil spillage case bothering on the proof of negligence. And, that the issue was the weight or probative value to be attached to a documented expert opinion tendered in evidence without calling the maker, that is the expert as a witness.
Finally, on this issue the appellants in reply referred to pages 19 – 20 of the record and said that contrary to the submissions of the respondents that the 1st appellant through PW1 led credible evidence on the unit results of Item ‘A’ and Item ‘C’ Wards.
In deciding Issue No. 2, it is obvious that the respondents do not seem in fact to have proper understanding of the case presented by the appellants to the lower court. The appellants pleaded in the main that when the majority of valid and lawful votes in all the Wards of the Bende North Constituency for the Abia State House of Assembly for the 14th April, 2007 are taken into consideration, he stands as the winner by majority votes over and above the 1st respondent. The two sets of respondents on the other hand gave contradictory pleadings and evidence in between themselves as to status of the results of Item “A” and “C” Wards. While, the 1st respondent claimed that the results in those Wards could not be collated because of violence, the 2nd – 110th respondents said that the results in the Wards arrived late only after the final results of the election had been declared.
The appellants pleaded, listed and attached copies of the unit results issued to their agents in Items ‘A’ and ‘C’ Wards. They were tendered in evidence as Exhibits D, D1 – D15 and Exhibits F, F1 – F7 respectively. The appellants also were issued certified copies of these unit results by the 2nd respondent which were tendered in evidence as Exhibits Q, Q1 – Q7.
The 1st respondent in paragraphs 22, 23 and 27 of his respondent’s reply variously pleaded agent copies of Forms EC8 A (1) for Item ‘A’ and Item ‘C’ Wards but tendered only certified copies of unit results for the Wards, which copies are radically different from certified copies of the results of the same units tendered by appellants. Paragraphs 22, 23 and 27 of the 1st respondents’ reply read as follows:
22. The 1st respondent denies paragraph 18 and the 1st respondent further avers that the votes cast and recorded in Form EC8 A (1) duplicates given to party agents where present and duly announced when correctly added up represent the votes/scores declared and recorded in Forms EC8 C (1) and EC8 D (1) used for the return of the 1st respondent. The votes used for the return of the 1st respondent were lawful and correct and were lawfully credited to him and in substantial compliance with the provisions of the Electoral Act.
23. The 1st respondent pleads and shall at the trial lead evidence to show that the results sheets relied upon by the petitioner are a forgery in particular the 1st respondent pleads and shall lead evidence to show that the said Forms EC8 A (1) were not issued or signed by the presiding officers at the said elections.
27. The 1st respondent shall at the trial lead evidence to show:
(i) That any Form EC8 A (1) purportedly given to the petitioners agents which contains figures or scores and endorsements different either in character, form or substance from those contained in the duplicate copies of Form EC8 A (1) given to the party agents by the presiding officers in the course of the election at the polling station units (EC8 A (1) inclusive) are irregular, false, altered and fabricated and not the true lawful valid and genuine results/votes cast at the election.
(ii) That any Form EC8 B (1) which contains summary of Ward result which is inconsistent with or different from the scores of candidates as contained in the booth polling stations, minor error of miscalculation excepted, are false, altered and fabricated and not the true reflection of the lawful and genuine results of the election.
Now, in the instant case, to be sure that the parties indeed joined issues on the authenticity of election documents as well as the exclusion of votes recorded in Forms EC8 A (1) given to party agents in respect of Item ‘A’ and Item ‘C’ Wards, paragraphs 1, 2, 9 and 11 amongst others of the Petitioners Reply to the 1st respondent’s Reply are relevant. They are reproduced as follows:
1. The petitioners in reply to paragraph 4 of the 1st respondent’s reply which are denied aver that the votes cast in the polling stations and recorded in Forms EC8 A (1) given to party agents and the securing agents and/or announced in the presence of party agents and observer groups, when correctly added up, are different from the votes/scores declared or announced and or recorded in Forms EC8B (1), EC8C (1) and EC8D (1) said to have been used for the declaration or return of the 1st respondent by the 2nd – 5th respondents or any of them and, which said votes/scores in Forms EC8 B (1), EC8 C (1) and EC8 D (1), did not reflect the total number of valid votes cast as recorded in Forms EC8 A (1) or did not reflect or not consistent with the actual lawful votes cast for each of the parties in respect of each of the polling stations and Wards in Bende North State constituency on the date of the election and, which votes therefore ought to be discountenanced from the figures or scores unlawfully credited to the 1st respondents, same having been wrongfully credited to the 1st respondent contrary to the provisions of the Electoral Act. Notice is hereby given to the respondents to produce proof of collection and receipt of Forms EC8 B (1) and EC8 C (1) by the petitioner as alleged by the respondents.
2. In response to paragraph 7 of the 1st respondent’s reply, which is denied the petitioners aver that elections were held in all the units of Item ‘A’ and ‘C’ Wards. The petitioner in further reply thereto state as follows:
(a) That election duly held in Item A ward and Form EC8 A (1) were filled by the Presiding Officers and copies issued to parties agents when the supervisory Presiding Officer who hide in the residence of one Emmanuel Igwe, a PPA member in Amaokwe Item appeared after his plans of getting the Presiding Officers to leave for Bende Local Government Headquarters without duly writing the results was frustrated by the insistence of the parties agents, excepting the PPA agents, not to leave without proper copies of results despite the attempt by a PPA chieftain one Chief I. C. Ogwo to sprint the presiding officers out of the Ward which would have afforded them the opportunity to manipulate the results in favour of the 1st respondent as in other wards.
(b) That election duly held in Item C Ward and Form EC8 A (1) was filled by the presiding officers and copies issued to parties agents but the Ward collation officer failed to appear to collate the results at the Ward collation centre so as was the norm on that day, the Supervisory Presiding Officer took the presiding officers with him to Bende Local Government headquarters so no Form EC8 B (1) was issued at Ward C.
9. The petitioners at the trial will contend that if all the votes denied the petitioners by the juggling, manipulation, alteration and mutilations including votes in Item A Ward and Item C Ward are added to 1st petitioner, the 1st petitioner will have an overwhelming majority.
11. The petitioner deny paragraph 29 of the 1st respondent’s reply and state that all the other collation were done at Bende Local Government Headquarters whereat the respondents refused to collate and or use the results for Item A and C Wards because they would have given the 1st petitioner an overwhelming majority over the 1st respondent.
By the state of pleadings of the parties to this case and the issues joined, I do not have any doubts that the respondents were not only obliged to proof the falsity of the results especially the EC8 A (1) series tendered by the apellants which they have alleged to be forgeries and more particularly rebut the presumption of the certified copies of the Forms EC8 A (1) series in respect of Item A and Item C Wards issued to the appellants by the respondents themselves and which tallied with the duplicate originals that is agent copies of the same Forms also tendered by the appellants. Here lies the crux of the matter in issue No. 2 and indeed the kernel of any meaningful decision between the parties in this case.
The respondents, more especially the 1st respondent failed to offer any evidence to stigmatize the appellants results especially the certified copies of the Forms EC8 A (1) series despite his allegations in paragraph 22, 23 and 27 of the 1st respondent reply.
Rather than any form of proof of the allegations directly and indirectly levied against the appellants results in the respondents pleadings, the respondents lied against themselves by the production and tendering of Exhibit S.
The position which the respondents have stated in their pleadings and evidence, is that the result of Item ‘A’ and ‘C’ Wards were not seen by the Constituency Returning Officer before the declaration of results of the election. However, the Summary of Constituency Results Form EC8 C – Exhibit S tendered by the respondents show otherwise.
Learned counsel for the appellants was therefore right when he said that from the position adopted by the respondents any data contrary in exhibit S vitiates its presumption of authenticity or genuiness. That, exhibit S shows simulation of collation for Item ‘C’ Ward result and, that in view of the respondents position in their pleadings and oath, it is only logical to conclude that there was conscious attempt to exclude the result of the two Wards from collation.
Another important point in relation to Issue No. 2 is the allegation by the respondents that the documentary evidence tendered by the appellants and admitted by the Tribunal was not demonstrated in evidence, in the sense that the appellants did not speak on the documents and that they, the respondents did not have an opportunity to cross-examine, especially on the authenticity of the Forms EC8 A (1) series in respect of Item ‘A’ and Item ‘C’ Wards. Again, the above allegation by the respondents is baseless.
First, the 1st appellant as PW1 witnessed in his written statement on oath at pages 19 – 20 of the record in paragraphs 6 and 8 as follows:
6. That from the lawful and valid results as contained in Form EC8 A (1) received from the PDP agents in Item Ward A, Item Ward B, Item Ward C, Igbere A Ward and Igbere B Ward, I polled a majority of the lawful valid votes having received a total of 11, 231 votes ad against Hon. Oji Lekwauwa’s 5060 votes.
8. That my party, People Democratic Party agents at all units and Wards in Bende North Constituency where election were lawfully and validly conducted forwarded results contained in Form EC8 A (1) to my party.
Secondly, the cross-examination of PW1 at pages 435 to 438 of the record not only show that the two sets of respondents had the opportunity to cross-examine the appellants generally but also specifically on the documents tendered by the appellants including the certified true copies of the EC8 A (1) series for Item Ward A and Item Ward C. An example could be found at pages 437 – 438 of the record.
“Nwagba: for the 2nd – 110th respondents on cross-examination
PW1: Yes I obtained the certified true copy of Form EC8 A of Item C on 2nd October 2007, yes the same date on Q1 to Q7, also the result of Item Ward A, exhibit M, M1 to M14. I visited the office of the Administrative Secretary of INEC on that date
Nwagba: Who gave you the documents?
PW1: It was the Administrative Secretary who gave them to me.
Nwagba: There were electoral malpractices in Item A and Item C.
PW1: It is not true?
Nwagba: That will be all.
Before then, at pages 436 – 437 of the record PW1 had a similar encounter with the counsel to the 1st respondent. It went thus:
Faotu: You also claimed that you won majority of lawful votes
PW1: Yes
Faotu: The documents you tendered particularly exhibit D and N are your proof that you scored majority of lawful votes in Item A.
PW1: They are part of the proof.
Faotu: Any other documents for Item A?
PW1: These are the ones
Faotu: You also attached Form EC8 A in respect of Item A to your petition. The documents you brought are contradictory and manufactured by you.
PW1: It is not true.
Faotu: Look at exhibit N – Item Ward A Amapo Central School, it does not bear the name of any party agent.
PW1: A close look at the exhibit you will see a mark only.
Faotu: Have a look at exhibit D – Senate is cancelled while it is not cancelled at the one attached to your petition.
PW1: It is not true.
Faotu: Have a look at exhibit M1 for Amofe market square, it is the same polling unit as exhibit G2.
PW1: Yes.
Faotu: Look for the stamp of the presiding officer on exhibit M1 and G2 – on M1 it is after the 1st na while exhibit G2 it is on the letter 2, the position are different.
PW1: It is the same.
Nwosu: There are two different documents on original and duplicate stamped differently, so let him go ahead.
Faotu: This is the document you attached to your petition certified true copy of it, the position of stamp is different from the other two.
PW1: It is the same.
(Faotu) – Have a look at exhibit G4 it covers the same thing as exhibit M3 the position of stamp is different from the one attached to your petition.
PW1: It is the same.
Tribunal: This Tribunal stops you on this line of questioning, you can use these documents for other wards units; otherwise we may not rise today.
The documents are before this Tribunal in evidence you can comment in your address.”
After these revelations in favour of the appellants, what remains to be decided in relation to Issue No. 2 is whether the lower Tribunal was justified to have glossed over the contentions of the parties in relation to the authentic certified true copies of the Forms EC8 A (1) series in relation to Item A Ward and Item C Ward.
Instead of deciding this point on which the parties had joined issue and indeed on which the decision on the case itself rests, the lower Tribunal preferred to go on a voyage of its own by coming out with a rather misleading figure on the analysis of tainted votes based on the respondents results as contained in the address by the counsel for the petitioners/appellants.
It was this unnecessary expedition of the Tribunal, with the greatest respect, that led to the finding/observation/remarks contained in page 608 of the record.
Unfortunately in this appeal counsel to both parties for reasons known only to them find it difficult to accept that the remarks at page 608 were indeed Obiter. The said remarks of the trial Tribunal emanated from the address of counsel, it had no foundation in the pleadings and evidence of the parties and did not reflect on the real issues which the parties submitted for adjudication.
The pertinent question which the lower Tribunal failed to resolve is this, which of the primary results of election contained in two different and unreconciliable series of Forms EC8 A (1) in between the appellants and the respondents in respect of Item A and Item C Wards is to be preferred.
In this important respect, I do agree with the learned counsel for the appellants that from the state of pleadings and evidence adduced by the parties, it is beyond doubt that:
1. The unit results tendered in evidence by the appellants for Item A and Item C Wards are the authentic results produced by the election because the respondents failed to impeach their authenticity.
2. That the result were wrongfully excluded in the collation of the constituency results.
3. The results are available.
The strength of the unimpeached certified true copies of the Form EC8 A (1) series coupled with the duplicate originals tendered by the appellants could be imagined from the dictum of Aderemi, JCA (as he then was) in the case of Ngige v. Obi (2006) 14 NWLR (Pt. 999) 1 at 197 to the effect that:
“I shall also liken the publication of election results through a document or documents signed by its accredited officers as a “valid sealed instrument”. The moment INEC published the result of election, it is estopped, forever from denying the authenticity the genuineness and the truth of all therein contained in the document voluntarily released by it (INEC) relating to the information or figures pertaining to the results. The estoppel subsumed in the release of the sheet or sheets containing the results is a conclusive admission, or if I may put it in another way, something which the law treats, in absolute terms, as equivalent to an admission.”
Relatedly, in the case of INEC v. Ray (2004) 14 NWLR (Pt. 892) 92 at 131; Ogunbiyi, JCA applied the decision of the Supreme Court in Nwobodo v. Onoh (supra) at 31 to say that:
“The results tendered by the petitioner/1st respondent and his witnesses were agents carbon copies and same were therefore admitted as primary evidence (Duplicate Originals) of the contents of the said results. The authorities of Nwobodo v. Onoh, Anyaegbu v. Ozor and Nnadi v. Ezike (supra) were all relevant in support. It is also trite law that the primary evidence of the results of the election are Form EC8 A (statement of results of poll from polling election). The case of Remi v. Sunday at P. 107 per Salami, JCA and Nwobodo v. Onoh (supra) are relevant in substantiation.”
The above authorities are fully applicable to the circumstances of the appellants in this case.
Issue No. 2 is resolved in favour of the appellants.
On Issue No. 3, learned counsel for the appellants submitted that the case made and proved before the trial Tribunal was that the result declared by INEC as basis for the return of the 1st respondent was based on the result of 5 Wards namely:
(1) Amankalu/Akoliufu Alayi
(2) Ugwueke/Ezeukwu
(3) Igbere “A”
(4) Igbere”B”
(5) Item “B” and
(6) Simulated result for Item “C” – exhibit S
Counsel submitted that the obfuscated conclusion arrived at by the trial Tribunal at page 608 was due to the error of subtracting the figures that were demonstrated to be tainted in the Item ‘A’ and Item ‘C’ Wards from the booth results tendered by the 1st respondent which have been shown to have no presumption of genuineness in the light of the unimpeached comparative result tendered by the appellants.
The appellants, said counsel, supported the evidence of the respondents to show that not all the results which were the product of the election, especially particular reference to Item ‘A’ and Item ‘C’ Wards were used in the collation of the constituency election. That, there is no legally acceptable reason for the non-inclusion of those results for Item A and Item C Wards in the Constituency collated result.
Counsel submitted that if the trial Tribunal had calculated the scores properly vis-a’ -vis the evidence presented, it would not have come to the conclusion as to genuineness of exhibit S Form EC8 E (1) or exhibit EE – Form EC8 E (1), the Declaration of Result of Assembly Election for Bende North State Constituency made on the basis of the information contained in exhibit S.
Finally, on this, counsel submitted that a proper calculation based on the result of the Bende North State Constituency including Item A and Item C Wards show the final result as in table C, paragraph 5.42 of the appellants Brief of Argument as PDP – 11,881, and PPA – 10,704.
In response to appellants Issue No. 3, the respondents more especially through the 2nd – 110th respondents started from the premise that both the appellants and respondents were in agreement with the results declared by INEC in Item B Ward, Igbere Ward A and Igbere Ward B. And, that both parties joined issues on the actual unit results for item Ward A and Item Ward C.
Counsel for the respondents submitted that the appellants failed to lead credible and admissible evidence before the Tribunal in proof of their case and therefore the Honourable Tribunal was right in observing that the appellants were not able to discharge the burden placed on them and thereby failed to rebut the presumption of genuineness of results declared by INEC.
Respondents counsel further submitted that having included both Item A and C results in Schedule C and also on its own accepted as valid and untainted four polling units results, the appellants are estopped from alleging that the Tribunal ought to have on their own excluded Item Ward A and C results in the Schedule C and then include their own set of results for Item A and C in its calculation.
Finally, respondents concluded that the submission of counsel on this score is misconceived as the Tribunal never made any finding of fact that 1st respondents results were tainted and invalid.
Issue No. 3 is intricately connected with the decision, which I reached on Issue No. 2. It is clear that the calculations suggested by the appellants from the 1st respondent’s results (Schedule C) contained in the final address of appellant’s counsel, which was arithmetically misapplied by the Tribunal led to the Tribunal’s conclusion first, that the appellants failed to prove their case, second, that the appellants failed to rebut the presumption of genuineness of results tendered by INEC and finally that the 1st respondent scored majority votes in the Bende North State of Assembly Election.
My decision on Issue No. 2 has shown that the said finding/observation of the Tribunal contained at page 608 of the record is at best an Obiter dictum and the conclusion therein perverse.
This is because the pleadings and evidence of the parties, outside of the address of the learned counsel for the appellants which brought about the unnecessary digress, did not address any of such issues as in Schedule C of the appellant’s counsel address.
I have also concluded in Issue No. 2 that the results of Item A and Item C Wards furnished by the appellants were wrongly excluded from the final computation of votes for the Bende North State of Assembly Election.
As a result of the above, the lower Tribunal was in error to have held that “the return of the 1st respondent ought to be upheld as the petitioner has failed to rebut the presumption of genuineness of the result declared by INEC” Issue No. 3 is resolved in favour of the appellants.
Appellants Issue No. 4, that is who has between the appellants and the 1st respondent scored the majority of lawful votes, is subsumed in Issue No.3. The proper arithmetical calculation of the result of Bende North State Constituency including Item A and Item C Wards in between the appellant and the 1st respondent would now be as shown in Table C at page 22 of the appellants brief reproduced below:
TABLE C
COMPLETE COLLATION OF WARDS RESULTS OF BENDE NORTH STATE CONSTITUENCY (INCLUDING ITEM “A” & ITEM “C” WARDS)
S/N NAME OF WARD(S) PDP PPA
1 TOTAL FIGURE ALREADY DECLARED
COVERING 5 WARDS VIZ:
(a) Igbere Ward A
(b) Igbere Ward B
(c) Amankalu/Akoliufu Alayi Ward
(d) Ugwueke/Ezeukwu Ward 1, 294 10,098
(e) Item Ward B
2. ADD:
ITEM WARD A RESULT (see Table A above) 7,544 418
3. ITEM WARD C RESULT (see Table B above) 3,128 274
Sub-Total valid votes *11,966 10,790
Subtract The Simulated Scores Credited To
Item “C” Ward in Exhibit S 85 86
TOTAL VAVLID VOTES 11,881 10,704
By the total figure of the 5 Wards already declared plus the results in Item A and C wards minus the simulated scores credited to item C Ward in exhibit S, the total valid votes would be PDP – 11,881, PPA – 10,704.
Issue No. 1 in this appeal was decided against the appellants, the other issues are in favour of the appellants.
The appeal is allowed in part. The decision of the Tribunal affirming the declaration or return of the 1st respondent as the winner with the majority of lawful votes is hereby set aside. In its stead, it is hereby declared that the 1st appellant ought to be returned and he is hereby declared as the person with the majority of lawful votes from the election to the Abia State House of Assembly conducted on 14th April, 2007 in Bende North State Constituency of Abia State. I hereby order 1st respondent to pay costs of N60,000.00 to the 1st appellant.
ABDUL-KADIR, J.C.A.: I agree
OGUNWUMIJU, J.C.A.: I have read hitherto the judgment just delivered by my learned brother M. A. OWOADE, J.C.A. and I agree with his conclusions. It is clear that INEC was less than efficient and candidate in the collation of the results. Both parties had two different sets of irreconcilable series of form EC8 A (1) which were unit results in respect of wards A and C. The unit results which were available at the time of collation and tendered in evidence by the appellants in respect of ward A and C were the authentic results being duely certified by INEC, whereas the respondents failed to impeach their authencity. These results were wrongfully exclusided during the collation of results and this adversely affected the overall votes credited to the appellant. A proper arithmetic calculation of the result of Bende North State Constituency which includes wards A and C shows that as between the appellant and the 1st respondent, the appellant won the majority of lawful votes cast at the election. I allow the appeal in part and abide by the conclusions and consequential orders made by my learned brother.
Appearances
N. M. Nwosu Esq.For Appellant
AND
Chief U. N. Udechukwu, SAN with O. O. Adeleye and S. C. Ifeakor, Esq., for the 1st Respondent
O. Okorie and Sunday Nwigboke for the 2nd – 110th Respondents.For Respondent
