YUSUF SULAIMAN LASUN V. LEO ADEJARE AWOYEMI & ORS.
(2011)LCN/4316(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 23rd day of February, 2011
CA/I/EPT/NA/03/2010
RATIO
REPLY BRIEF: FUNCTION OF REPLY BRIEF
A Respondent’s brief is a reply to the argument in the appellant’s brief. It will be absurd to reply to a reply. A reply brief sought not to be filed except in cases in which the Respondent, in addition to replying to the argument in the appellant’s brief introduces new issues of law outside the appellant’s brief and which the appellant needs to respond to. Appellant cannot use a reply brief to repeat, recast, improve on or adopt the argument in his brief. See Nwali v. State (1991)3 NWLR 663 at 614 Okonji v. Niokanma (1999)12 SCNJ 259 at 277. PER NWALI SYLVESTER NGWUTA, J.C.A.
CROSS-EXAMINATION: AIM OF CROSS-EXAMINATION
The aim of cross-examination is to weaken, neutralize, or demolish the case of the adverse party and to establish or support the cross-examiner’s case by means of the opponent’s witnesses. It is aimed at extracting facts favourable to the cross-examiner’s side. It is to weaken and dilute the strength of opponent’s case. See Ajao v. Alao (1996) 5 NWLR 802 at 826. Agbonifo v. AIWEREOBA (1988) 1 NWLR 325. S.189 (2) of the Evidence Act provides in part “… but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.” By this provision the cross-examiner can ask questions relating to, and extract facts in prove of, the facts he pleaded in the statement of defence. PER NWALI SYLVESTER NGWUTA, J.C.A.
COMPETENT WITNESS: WHO IS A COMPETENT WITNESS TO TESTIFY FOR EITHER SIDE IN AN ELECTION PETITION
It is my view that anyone who has relevant evidence to give and is not disqualified by any law is a competent witness to testify for either side in an election petition. It is immaterial that the witness is not accredited to be at the polling booth at the material time. He could be a passer bye and once he is not disqualified under Secs. 77 and 155 (1) of the Evidence Act he is a competent witness to testify for either side in an election petition. See the Judgment in Aregbesola & ors. v. Oyinlola & ors. CA/I/EPT/GOV/02/2010 (unreported, delivered on 26/11/2010. PER NWALI SYLVESTER NGWUTA, J.C.A.
UNCHALLENGED / UNCONTROVERTED EVIDENCE : POSITION OF THE LAW WHERE THE TRIBUNAL DID NOT FIND THAT THE EVIDENCE LED BY THE WITNESSES WAS CHALLENGED OR CONTROVERTED MATERIALLY
The Tribunal did not find that the evidence led by the witnesses was challenged or controverted materially. It was deemed at law to be admitted. See Bank of the North Ltd & Anr. v. Aliyu (1999) 7 NWLR (Pt. 612) 622 Amoregbe v. Lawani (1980)3-4 SC.108: Ikuomoha v. Oniwava (1990)4 NWLR (Pt.146)617: Alibade v. Mayowa (1980) 9 – 10 SC 1. PER NWALI SYLVESTER NGWUTA, J.C.A.
DOCUMENTARY EVIDENCE: HOW DOCUMENTARY EVIDENCE CAN BE ADMITTED IN COURT PROCEEDINGS
In U.N.I.C. v. U.C.I.C. Ltd. (1999)3 NWLR (Pt.593) 17 this Court held thus “Documentary evidence can be admitted in Court proceedings through any witness by consent or without objection, notwithstanding that their makers were available and not called as witnesses.” Apart from the above the proviso to S.91 (1) of the Evidence Act states “provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead or unfit by reason of his bodily or mental condition to attend as a witness or if he is beyond the seas and if is not reasonable him have been made without success.” PER NWALI SYLVESTER NGWUTA, J.C.A.
JUSTICE
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
CHINWE E. IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
YUSUF SULAIMAN LASUNAppellant(s)
AND
LEO ADEJARE AWOYEMI & ORS.Respondent(s)
NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the National Assembly Election Petition Retrial Tribunal holden at Oshogbo, Osun state.
The National Assembly election was held nation wide on 21st April, 2007. In the election for lrepodun/Olorunda/Osogbo/Orolu Federal Constituency the appellant was sponsored by the Action Congress, one of the many registered political parties in Nigeria. The 1st Respondent was sponsored by the 2nd Respondent – the people’s Democratic Party (PDP), Nigeria’s ruling party then and now. The 3rd Respondent INEC is charged with the conduct of elections for elective positions at the State and the Federal levels.
The 4th – 148th Respondents conducted the said election as the agents of the 3rd Respondent while the 149th to 150th are law enforcement agents who were charged with the duty to maintain Law and order in Osun State during the election. At the conclusion of the said election the 3rd Respondent through its agents returned the 1st Respondent as the winner. The appellant challenged the return of the 1st Respondent as duly elected on diverse grounds, including the assertion that the 1st Respondent was not duly elected by a majority of lawful votes cast at the election. The trial (1st) Tribunal in its Judgment delivered on 12th May, 2008 dismissed the Petition. The appellant appealed the dismissal of his petition to the court. In its Judgment reported as Lasun v. Awoyemi (2009)16 NWLR (Pt.1168) 513 the court allowed the appeal and ordered a retrial of the Petition by a differently Constituted Panel of the Tribunal.
The retrial tribunal composed of Garba J as chairman and Agbattah, Bashir, Aliyu and Obaseki JJ as members started sitting on 4th September 2009. The appellant as petitioner, called 17 witnesses and tendered exhibits, 1st and 2nd Respondent called 9 witnesses and also tendered exhibits.
However none of the 3rd to 148th and 149th to 150th Respondents called any witness at the trial.
In its judgment delivered on 28th May, 2010 the retrial Tribunal dismissed the Petition and upheld the declaration and return of the 1st Respondent as duly elected in the election of 21 April, 2007.
Aggrieved by the said Judgment the appellant filed a notice containing no less than 32 grounds of appeal on 15/6/2010.
In compliance with the rules, and the Practice Direction issued by the Hon. President of the Court, the parties herein, through their respective learned Counsel filed and exchanged briefs of argument.
In the Appellant’s brief of argument 13 issues were set out for the Court to resolve. These are:
“1. Whether the Tribunal was right in refusing to hold that the failure of the 1st – 2nd Respondents to call evidence amounted to abandonment of their pleadings in some areas of the Local Governments in dispute and consequently an admission of allegations in the petition as regards those areas- Ground.
2. Whether the Tribunal was right in refusing to hold that the failure by the 3rd – 148th Respondent and the 149 – 150th Respondents to call evidence amounted to abandonment of their pleading and that through cross-examination the Respondents have challenged the Petitioner’s evidence – Grounds 2, 3 and 5.
3. Whether the decision of the Tribunal that the reports of the Petitioner’s polling agents admitted in evidence had no probative value was erroneous and occasioned a miscarriage of Justice- Ground (sic) 4, 6, 13.
4. Whether the Tribunal was justified in its decision that PW2 did not produce any evidence to show those electorates were not allowed to vote by PDP thugs. Ground 7.
5. Whether the decision of the Tribunal that the evidence of non-counting of votes, non-voting, voting with fake voters cards and impersonation could only have come from a person who is permanently stationed at the polling unit was erroneous and occasioned a miscarriage of Justice. Grounds 10 & 11.
6. Whether the Tribunal’s conclusion that the fact that RW3, RW4 and RW9 did not vote can only affect the weight to be attached to their testimonies but not conclusive proof of leading thugs to commit crime is not erroneous as to occasion a miscarriage of Justice. Ground 12.
7. Whether the decision of the Tribunal that the petitioner did not produce ballot boxes stuffed with ballot papers was not erroneous and did not occasion a miscarriage of Justice. Ground15.
8. Whether the Tribunal did not err in law when it held that the petitioner did not prove his case beyond reasonable doubt and did not link same with the 1st Respondent. Grounds 16 & 25.
9. Whether the decision of the Tribunal that the PW15 possessed no education qualification or skill and that his evidence was hearsay because he was not present at any stage at which the electoral forms documents or materials which formed the basis of his evidence were recorded, prepared or entries therein made is erroneous as to occasion a miscarriage of Justice. Grounds 17, 18, 21, 22.
10. Whether the Tribunal did not err in law when it failed to compare the signature on form EC8A with that at the back of the ballot papers thereby occasioning miscarriage of Justice. Ground19.
11. Whether the Tribunal did not err in law when it failed to find non-compliance despite evidence of non-stamping of ballot papers, signing of form EC8B in Ward1, and Ward 4 by RW1, non – signing of forms EC8A by Presiding Officers and several other irregularities thereby occasioning a miscarriage of Justice. Grounds 20, 26, 27 and 28.
12. Whether the Tribunal was right in its failure to consider the documentary evidence, properly evaluate oral evidence adduced by the petitioner and consider Table (sic) A, B and C in the Petitioner’s address thereby occasioning a miscarriage of Justice. Grounds 14, 23, 24, 25, 26,29 and 30.
13. Whether the Tribunal was right in the circumstances in not annulling the election of the 1st Respondent and not declaring the 1st Petitioner as having been duly elected. Ground 31.
In their joint brief of argument the 1st and 2nd Respondent adopted the issues formulated by the appellant.
The 3rd to 148th Respondent did not deem it fit to file briefs, jointly or severally, and upon the application of the appellant the Court granted an order on 29/10/10 that the appeal be heard and determined on the existing briefs: These are the briefs filed by the appellant, 1st and 2nd respondents and the 149th and 150th Respondents.
In their joint brief of argument the 149th and 150th Respondents formulated a lone issue for the Court to resolve. The issue is “whether by evidence at the lower Tribunal the appellant has been able to prove the allegation made against the 149th and 150th Respondents (Grounds 2, 3, and 5 of the Notice of Appeal)”.
The appellant filed a reply brief which he said is necessitated by some argument in the 1st & 2nd Respondents’ brief. A Respondent’s brief is a reply to the argument in the appellant’s brief. It will be absurd to reply to a reply. A reply brief sought not to be filed except in cases in which the Respondent, in addition to replying to the argument in the appellant’s brief introduces new issues of law outside the appellant’s brief and which the appellant needs to respond to.
Appellant cannot use a reply brief to repeat, recast, improve on or adopt the argument in his brief. See Nwali v. State (1991)3 NWLR 663 at 614 Okonji v. Niokanma (1999)12 SCNJ 259 at 277.
The 1st and 2nd Respondent did not raise new issues in the joint brief and ipso facto the appellant has nothing to reply to by way of a reply brief. The same is true of the brief filed by the 149th to 150th Respondents. The reply briefs filed by the appellant are uncalled for and I will discountenance them in the determination of this appeal.
There are a total of 13 issues raised from the appellant’s 31 grounds of appeal. I deem it necessary to condense the issues with a view to narrowing the issues in controversy in the interest of accuracy clarity and brevity. See Unity Bank Plc. & Anor v. Buhari (2008) 2 SCM 193 Duwin Pharm & Chem co. Ltd v. Beneks Pharm (2008)12 SCM (Pt.1)22. I have scrutinized and pruned the issues and captured their substance in the following 5 issues which can appropriately dispose of the appeal. The issues I have framed are: –
(1) What is the effect of failure of the Respondents 1st – 2nd, (in some wards) 3rd – 148th and 149th – 150th) to call witness to adduce evidence at the trial?
(2) Was the Tribunal not in error when it held that the evidence of PW1 – PW14 had no probative value?
(3) What is the effect of the facts elicited from the RW3, RW4 and RW9 in cross-examination on the alleged use of thugs by the 2nd respondent at the election?
(4) Was the Tribunal not in error when it held that the PW15 possessed no educational qualification or skill and that his evidence was hearsay because he was not present at the stage at which the electoral forms and materials which formed the basis of his evidence were recorded?
(5) Whether or not on the totality of evidence before the Tribunal the appellant proved his case to entitle him to judgment?
I will now proceed to determine the issues. Issue one above is really a merger of issues 1 and 2 argued together by the appellant and 1st – 2nd Respondents in their respective briefs.
In his copious argument on the issue learned Counsel for the Appellant stated strenuously that failure of a defendant to call evidence in support of his pleadings means that the pleadings had been abandoned and that the plaintiff’s case stands unchallenged.
He submitted further that mere cross-examination of the petitioner’s witnesses in this case does not amount to a challenge of the Petitioner’s case since the Petitioner’s witnesses were not shaken or discredited. Learned Counsel referred to the case of the appellant that the agents of the 1st and 2nd Respondents unleashed violence on the electorate, snatched and carried away ballot papers and boxes, stuffed the boxes with ballot papers and engaged in multiple thumb-printing and other electoral malpractices. He pointed out that witnesses called by the 1st and 2nd Respondents gave evidence on 9 out of 141 polling units challenged by the Petitioner and in respect of which he adduced evidence at the trial. Learned counsel submitted that the 1st and 2nd Respondents are deemed to have abandoned their pleading save in respect of the 9 polling units for which they led evidence. He stated that the appellant led evidence in proof of allegations of irregularities and non compliance with the provisions of the Electoral Act against the 3rd – 148th Respondents and connivance in the said mal-practices against the 149th – 150th Respondents.
Since there was no reason given for the Respondents’ refusal to call evidence, learned counsel relied, on Ali Lawan v. Yuma (2006) 2 EPR page 642 at 663 paragraphs F – G and urged the court to resolve the issues raised against the Respondents. He urged the Court to deem the allegations against the Respondents with respect to the 141 polling units less 9 in respect of which the 1st – 2nd Respondent offered evidence as proved against the Respondents.
He relied on New Breed org. Ltd. v. Erhomonsele (2006) 5 NWLR (Pt. 974) 499 at 527. Agbi v. Ogbeh (2005)8 NWLR (Pt. 926) 40 and particularly Leadway Assurance co. Ltd. v. Zeco Nig. Ltd. (2004) 11 NWLR (Pt.884) 316 at 329 wherein the apex Court through Katsina Alu JSC then, now CJN held:-
“Where evidence given by a party to any proceedings was not challenged by the opposite party who had opportunity to do so, the Court of trial has a duty to act on the unchallenged evidence before it”
Relying on Imana v. Robinson (19791 3 – 4 SC I at 8 and Alhaji Muhammed Maigari Dingyadi & Anor. v. Aliyu Magatarada Wamakko & ors (2008)17 NWLR (Pt. 1116) 395 at 431: paras D -E he urged the court to hold that a party that has abandoned his pleadings cannot formulate an issue for consideration. He urged the court to discountenance the replies filed by the 3rd to 148th and 149th to 150th Respondents, arguing that having abandoned their pleadings they cannot be heard to contradict by argument what the appellant proved by evidence.
In his reply learned for the 1st and 2nd Respondents referred to the submission that the failure of a defendant to call evidence in support of his pleadings translates to the abandonment of the pleadings as a general principle of law. He argued that in an election petition wherein allegations of electoral offences such as violence, thuggery, snatching and stuffing of ballot boxes with ballot papers, multiple voting etc are criminal in nature, the appellant had the burden to prove the allegations beyond reasonable doubt, a burden which he said that the appellant did not discharge and afortori the Respondents had no case to rebut. He argued that the authorities relied on by the appellant are not authorities on election matters.
Learned Counsel referred to INEC forms tendered by the appellant and argued that the appellant did not connect the INEC forms with any specific allegation. He relied on Jalingo v. Nyanme (1992) 3 NWLR (Pt.231) P.538. Ojukwu v. Chief Obasanjo (20041 1 EPR 653. He described the evidence of the appellant as very vague shallow, wholly and contradictory. He said that the case of Dingyadi v. Wamako (2008)17 NWLR (Pt. 1116) page 395 does not avail the appellant. He said that contrary to Wamako’s case the Respondent elicited evidence in support of the averment in their pleadings from the appellant’s witnesses in cross-examination. Learned Counsel submitted that Election Petition cannot be proved by default of evidence from respondents or weakness of respondent’s case. He relied on Alawepo v. Saraki (2009) All FWLR (Pt.498) 256 at 310 – 311. He argued that the appellant who called in question the validity of the results announced for Irepodun and Orolu LGA’s did not plead and produce two sets of results to indicate the lawful votes and the false one. He relied on Oio v. Eshue (1999) 8 NWLR (Pt.g81)66. Ngige v. Obi (2006) All FWLR (Pt. 3301 P. 1140. He referred to the evidence of PW16 and PW17 called by the appellant and contended that the appellant’s witnesses swore that the election was conducted in accordance with the provision of the electoral Act 2006.
On ward supervisors counsel said their evidence was discredited under cross-examination. He argued that if the Action Congress Polling Agents were attacked as alleged the matter should have been reported to the police.
Learned counsel argued that a party could testify in support of his pleadings by eliciting evidence from his adversary in cross-examination and such evidence constitutes evidence in support of his pleading. He relied on Akomolafe v. Guardian press Ltd. (2010)3 NWLR (Pt.1 181)338 at 351 and Dagash v. Bulama (2004) 14 NWLR (Pt.892) 144 at 241 (election petition appeal) wherein Ogbuagu JCA (as he then was) said “l wish to state and this is also settled that a party, be he a plaintiff or petitioner or a defendant or respondent is entitled to lead evidence through his own witnesses or by cross-examination of the opponent’s witness in order extract a fact pleaded by either the defence or the plaintiff or petitioner as the case may be. See Bamqboye & ors. v. Olanrewaiu (l991) 4 NWLR (Pt.194) 132 at 155: (1991 15 SCNJ 88.” He urged the court to resolve the issue in favour of the respondents, adding that the evidence extracted under cross-examination in respect of the units in which the Respondent called no witnesses not only sustained their pleadings but also effectively challenged the evidence adduced by the appellant.
Issue 1 Resolution: Appellant’s case is that the 1st and 2nd Respondent who called witnesses in respect of 9 out of the 141 Polling Units challenged in the Petition abandoned their pleadings in respect of the remaining 132 Polling Units. In the same vein the 3rd – 148th Respondents and 149th-150th respondent who called no witness at all abandoned their respective pleading in respect of the 141 Polling Units. Appellant urged the court to accept as unchallenged and uncontroverted his evidence in respect of the Polling Units for which the respondents failed to call evidence. On the facts of this case “failure to call evidence” or “failure to lead evidence” as used by the appellant would mean the failure or neglect of the Respondents to call witnesses to adduce evidence in respective of the Polling Units.
Each set of respondent through their respective counsel, cross-examined the witnesses called by the appellant.
The aim of cross-examination is to weaken, neutralize, or demolish the case of the adverse party and to establish or support the cross-examiner’s case by means of the opponent’s witnesses. It is aimed at extracting facts favourable to the cross-examiner’s side. It is to weaken and dilute the strength of opponent’s case. See Ajao v. Alao (1996) 5 NWLR 802 at 826. Agbonifo v. AIWEREOBA (1988) 1 NWLR 325.
S.189 (2) of the Evidence Act provides in part “… but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.” By this provision the cross-examiner can ask questions relating to, and extract facts in prove of, the facts he pleaded in the statement of defence.
In the opening paragraph of their joint reply the 1st and 2nd Respondents pleaded: “Save and except as hereinafter admitted the 1st and 2nd Respondent (in this reply called the Respondents/deny every material allegation of fact contained in the petition.” See page 94 of the records. See also page 325 of the records for similar general traverse by the 3rd to 148th Respondents. The 149th – 150th Respondents went a step further, thus “Save and except as hereinafter expressly admitted, the 149th & 150th Resopndents (in this (sic) referred to as the Respondents) deny each and every allegation of fact contained in the petition as if each allegation were set out and traversed seriatum” See page 386 of the records. Any fact elicited in cross-examination which weakens, neutralises, dilutes the strength of or demolishes, the evidence adduced by the opponent in support of his pleading supports the denial of the facts pleaded in the statement of claim. It follows therefore that the Respondents cannot be said to have abandoned their pleadings by failure to call witnesses at the trial. They adduced evidence tending to support their case through the witnesses called by the appellant. The position would have been different if the Respondents did not cross-examine the appellant’s witnesses. However it remains to be seen whether or not the facts extracted from the witnesses under cross-examination by the respondents were enough to tilt the scale of Justice to the side of the Respondents.
In their testimonies the PW1 – PW14 adopted their sworn statements on pages 31 to 66 of the records. See pages 690 to 730 of the records for the evidence of PW1 to PW14 in chief and under cross-examination.
Under cross-examination PW1 said he voted at Unit No.4 in the morning before disruption started. He said there was no disruption at the time he revisited the unit or at the time of submission of report by his party’s agent. He said INEC Officials were present in all Units in the morning before disruption started but that most of them ran away in the afternoon. He witnessed the counting only at Unit 004. He said that the law enforcement officers were present but failed to do their duty. He said he reported to them at Unit 008 that ballot papers were being stuffed in ballot boxes but the Police said its was beyond their power. He did not report to any Police Station.
PW2 went round the Units during the election. He confronted INEC Officials on the voting material but they told him that they were told not to disclose the number of voting materials to any body. Polling agent was not allowed to sit where the exercise was being carried out by Presiding Officers. He voted before disruption started PW3 said he noted that about 50 people voted before Hon. Dauda came on the scene and caused disruption, and the Presiding Officer was forced to sign the result sheet.
He did not report election malpractice at the election because Police men were at each Unit.
PW4 said Polling Agent fled the town after the election because of threats by PDP. He ran away and came to town from time to time. INEC Official refused to disclose the number of ballot papers they brought. He saw INEC Official in all Units he visited in the afternoon manipulating the election with PDP stalwarts. Voting was brought to an end in his Unit by Hon. Adeyemo Asimiyu Aberi led PDP thugs who supervised the counting of votes. He described what took place as the “kangaroo election.” 1st Respondent was in his ward and the election officials worked on his behalf. He gave booklets to members of his party which were returned thumb – impressed and stuffed in the ballot box. He retired to a safe distance as he was almost killed when he challenged them. He was not allowed to vote.
One Ademola Joseph, a PDP stalwart, wore a monkey Jacket purporting to be working for INEC.
PW5. He voted at Unit 7 before the election was disrupted by the PDP chieftains. After he voted he moved round to other Units. The election was disrupted and there was no collation. At Unit 4 Elemo one Alhaji Fasasi, the Vice chairman of PDP, with the Presiding officer and other PDP agents engaged in multiple voting.
The same happened in Unit 5. At Unit 7 the incumbent supervisor for works in Irepodun led PDP hoodlums to scare away the electorate and disrupt the election. At unit 8 there was electoral malpractice impersonation, intimidation of voters, mass rigging by PDP people with the help of the Presiding Officer and Police men attached to the Unit. The voters were scared away and intimidated at Unit 9. Same in Units 10 and in Unit .11 there was impersonation. The named Presiding officer on the list was Mr. Afolabi Lukman but Mr. Saka Najeem acted as Presiding Officer and helped in multiple voting. He was present at Unit 6 when Hon. Asimiyu disrupted the election with thugs and stuffed the ballot box with already thumb printed ballot papers. He was emphatic that he was at Unit one to cast his vote when the Presiding officer Ademola Joseph and Lateef ljiban declared in clear terms that the election was meant for PDP and engaged in multiple voting in the presence of fierce looking PDP hoodlums. At Unit 11 he was present when Engr. Rufus Oyegbile came in and with the connivance of the Presiding Officer and the Police attached to the Unit engaged in multiple voting. When he visited Unit 3 at Epa he saw Mr. Fatai Olukotun PDP youth leader of Ward 9 Irepodun and Mr. Peter Akpata engage in multiple voting with the support of the Presiding Officer. He reported the incident to the Police but the Police told him they would not do any thing as it was a do – or die affair.
PW6. He witnessed the activities of the thugs in all the Units. In some Units ballot papers were thumb printed in his presence and in some other Units the PDP stalwarts chased away the electorates and brought out thumb-printed ballot papers from their pockets and stuffed the ballot boxes. In others the hoodlums hijacked the ballot box to unknown location and returned few minutes later with the box full of ballot papers. He said that the election at Unit 6 ended at 1 pm during the commotion and the voters were chassed away. At Unit 5 election ended at 1 .15pm when the incumbent Chairman of Orolu Local Government Dr. Rasaki Adeyemo brought thugs on the scene.
All INEC Officials were present before the disruption.
PW7. He said election was free and fair at Unit three because of the presence of Military Personnel. At Unit 7 the A.C. agent was forced to sign the result by Policemen attached to the Unit. Polling Units were within 5 – 6 minutes walk from each other. He did not report to any Police Station because Policemen were attached to each Unit. PW8, His ward has 8 Units scattered but close together. He visited the Polling Units on foot because they were not far apart.
He visited Units where trouble erupted. The Polling Agent and himself fled the town because of intimidation and threats by PDP. He returned to testify in the petition. There was no need to formally report to the Police as the violence and malpractices took place in full view of the police attached to the Units. He took refuge in Oshogbo but did not disclose that he is a member of the AC as the threats of the PDP spanned the entire Local Governments. After he voted at Unit 2 he saw Dr. Rasaki Oke, Ademola – Akin Alemajule with two Mobile Policemen. There was violence in Unit 2. He did not know the names of the two Mobile Policemen who helped thumb print the ballot papers because he could not go near armed mobile Policemen. He did not report to the Police since the Police were there and saw what happened.
PW9. He said election was held in all 8 Units. He voted and visited all Units.
PW10. He voted before the election was disrupted. He did not report acts of violence to the Police at Police Station because Police at the Units saw what happened and did nothing.
PW11. He and some others voted before the election was disrupted. INEC Officials refused to disclose the number of materials they brought. Policemen were present and witnessed what happened.
PW12. At Unit 2 (Olopomu) some voters held voter’s card for 2003. He made no report at any Police Station because Policemen were present and saw what happened.
PW13. In Polling Unit 1 there was violence. He complained to the Police at the Unit who said they could not do anything as the situation was beyond them. In Unit one votes were not counted, no result was declared as the voting was disrupted by one Hon. Olateju, past Councilor of PDP who came in with his thugs. He said the late king of Olufon fled his home as a result of harassment. He was not molested because he left Ifon after the election. He visited all Units in his ward. INEC Officials were present but refused to disclose the number of material issued to them for the election.
PW14. He visited each of the 9 Units in his ward. Polling agents ran away after the election but submitted their report to him the next day. Some voters used Nigerian ID cards; others used Abiola’s election voter’s cards. Result of the election was not announced on the day of the election, there was no collation centre and the election was inconclusive. Policemen and Soldiers at each Unit saw what happened but they were helpless. He said the Police and the Army collaborated with the PDP and he could not report an enemy to another enemy. He got to the Police Station but he was ordered to go away as the order came from above. He was not allowed to vote.
The witness statements made and adopted by PWI – PW14 were admitted and marked Exhibits 1A-J to 14A – B. Above are extracts from the testimonies of the witnesses under cross-examination by learned counsel for the Respondents. I have reviewed the statement of each witness and I see no material difference between the facts averred and the facts elicited in cross-examination.
On the contrary some of the witnesses such as PW5 reinforced and confirmed their statement. In effect I hold the view that the Respondents did not abandon their pleadings just because the 1st and 2nd Respondent did not call any witness in respect of 132 Unit and the rest of the Respondent did not call any witness in respect of any of the 141 Units. On the other hand the evidence extracted from the appellant’s witnesses in cross-examination is not by itself sufficient to tilt the scale in favour of the Respondents. Be that as it may the Tribunal was right in my humble view when it held that “Counsel to the 3rd-148th and 149th – 150 Respondents did …..” See page 858 of the records. Issue is resolved in favour of the Respondents.
Issue 2 centres on the finding of the trial Tribunal that the evidence of PW1 – PW14 had no probative value. Learned Counsel for the appellant challenged the finding of the Tribunal that the Polling Agents’ reports tendered by PWI – PW4 had no value because the authors of the reports did not testify. It is the appellant’s case that apart from the agents reports tendered by PW1 – PW14 there is evidence that each witness observed the contents of the report he tendered. He referred to paragraph one of each witness’s depositions on oath to the effect that “apart from my personal knowledge of these events when I visited the polling units in the ward. I also received written report from the polling agents. He contended that the results were properly admitted in evidence and ought to be utilized in the light of S. 91(1)(b) & (2) of the Evidence Act which provides that the condition that the maker of the statement shall be called as a witness need not be satisfied. He argued that it would cause an undue delay for the appellant to call polling agent of each of the 150 polling units he is challenging to testify. He said it is clear, and requires no proof that undue delay would be caused if the appellant had to call 150 witnesses in a petition that had lasted for three years out of the 4 year term. He said it was absurd for the tribunal to require proof of undue delay in the circumstances of the case. As regards the position of the Tribunal that the agents should have made reports of the alleged violence at the polling stations against the appellant to the Police, other security agents or even the Press Counsel said the reports of the polling agents and the evidence of the supervisors show that Police men were present and actively connived with the thugs and agents of the 1st and 2nd Respondents in the acts the appellant complained of. Learned Counsel invoked the principle of agency and the case of James v. Mid-Motors (1978) 11 & 12 SC 31 at 08 – 09 and argued that since the agents who prepared the reports were agent of appellant’s party, by the concept of qui facit per alium facit per se, the reports were made by the appellant’s party. He cited the case of Nasr v. Berini (1968) 1 All NLR 274 at 293. With reference to the earlier finding of the Tribunal that the Ward Supervisors were competent witnesses counsel argued that the Tribunal ought to have ascribed clue and appropriate weight to the exhibits which fully supported the oral evidence of the Ward Supervisors. Learned Counsel argued that even if the party did not make the exhibits, the documents were not challenged nor did the respondent impugn their authenticity as to require the maker to be called to testify. He relied on G. Chitex lnd. Ltd. v. O.B.I. (Nig) Ltd. (2005) 14 NWLR (Pt. 945) 392 at 411 where Musdapher JSC held inter alia, that “where a document is challenged and impugned as unauthentic, the maker of the document should be called to support the document, otherwise no weight should be attached to it.” He relied on S. 198(2) of the Evidence Act which provides that “A witness may however give oral evidence of statements made by other person about the contents of the document if such statements are in themselves relevant facts. “He referred to Ayeni & Ors. v. Dada & ors (1978) 11 NSCC 147 at 156 and 160 in his contention that a Court can properly attach much weight to documents notwithstanding that their makers were not called as witnesses to be subjected to cross-examination. He relied also on Okeke v. Obidife (1965) NWLR 113 at 115 wherein the apex court held inter alia……………But in a civil case formal proof of a document can always be waived.”
On his part Learned Counsel of the 1st and 2nd Respondent re-stated the undisputed fact that it is the primary duty of a trial Court to evaluate evidence and ascribe probative value to same, for the trial Court has the opportunity of seeing and hearing the witness and assessing the evidence adduced in proof of issues in contention before it. He relied on Julius Berger Nig. Ltd. v. Nwagwu (Pt.460) 719 at 756 paras B – D. Akunyili v. Ejidike (1986) 5 NWLR (Pt. 449) (no page stated) in support of his contention that the Court ought not to disturb the finding of the Tribunal based on its evaluation of the evidence before it adduced by witnesses whose demeanor it observed. He submitted that the admission of a document does not necessarily mean that the document will be utilized by the trial Court, adding that whether or not the document admitted will be utilized or not will depend on the cogency and contents of the document as would be determined by the trial Court. Learned Counsel emphasized that though a document may be admissible in evidence under the provisions of the Evidence Act such as Section 91(i) (b) (2) the weight to be attached to its contents is another matter, because even a piece of evidence admitted in the cause of proceedings is subject to be tested for credibility, weight, cogency and conclusiveness by the trial Court before it becomes acceptable documentary evidence. He referred to Ayeni v. Dada (1978)3 SG 35 at 61. Relying on Flash Fixed Odds Ltd. v. Akatugha (2001Xsic) NWLR (Pt.717) 46 at 63.
Counsel argued that since the agents’ reports were not tendered by their makers the Tribunal was right in not attaching probative value to them. He relied on Ojukwu v. Governor of Lagos State (1985) 2 NWLR (Pt.10) 806 at 818 in his submission that the reports tendered by PWI – PW14 were proof only of what the witnesses received from the agents and does not relate to the veracity of their contents. Learned Counsel urged that Court not to attach any weight to the agents’ report and to resolve the issue against the appellant’
Issue 2 Resolution: On their own ipse dixit the PW1 – PW14 were not polling agents of their party. They had no INEC accreditation. They were appointed as Ward Supervisors by their party and they did play the role of roving ambassadors for their said party. In addition to adoption of his statement each of PW1 – PW14 tendered the report made to him in writing by the polling agent in his ward. The Tribunal reviewed the cases cited by Learned Counsel for the parties and S. 91(1) of the Evidence Act and came to the conclusion that the reports are not hearsay or inadmissible but that the probative value of the “evidence” will be affected by the absence of the markers.
Then the Tribunal assessed the evidence of the PW1 – PW14 with a view to ascribing probative value thereto and making a finding of fact thereupon. At pages 878 to 879 the Tribunal concluded “It is our view that it is hard to attach weight on the story of these agents, they said they watched all these atrocities without reporting to the constitutional authority, attacked on their lives with guns and still agents accepting it as a normality waiting to be forced to sign the documents without reporting immediately to the Police security agents or even going to the press.” With profound respect to the
Learned Judges of the Tribunal, they did not appreciate that the testimony of each of the PW1 – PW14 has two component parts, one tending to compliment the other, though each component is independent of the other. These are (1) the testimony of each witness of what he observed and heard at the various polling units he visited in the course of his assigned duty as Ward Supervisor and (2) the reports made to him by polling agents in his Ward of what they, the agents, heard and saw at their various polling units during the election. In their written statements each witness averred that “Apart from my personal knowledge of these events when I visited the agents in the polling units in the Ward”.
It was strenuously argued for the respondents to the effect that evidence of on the spot observation and the agents’ report should have come from the agents who were permanently at the units during the election and not from ward supervisors who had no business at the polling units at the material time. However neither the Electoral Act 2006 under which the election was conducted nor any other legislation specified, or excluded any one from, those who can testify to what they observed at any polling unit during elections. It is my view that anyone who has relevant evidence to give and is not disqualified by any law is a competent witness to testify for either side in an election petition. It is immaterial that the witness is not accredited to be at the polling booth at the material time. He could be a passer bye and once he is not disqualified under Secs. 77 and 155 (1) of the Evidence Act he is a competent witness to testify for either side in an election petition. See the Judgment in Aregbesola & ors. v. Oyinlola & ors. CA/I/EPT/GOV/02/2010 (unreported, delivered on 26/11/2010.
Having determined that the Ward Supervisors were competent witnesses the Tribunal erred in not ascribing probative value to their testimonies. The stories they told of which the Tribunal said it was hard to attach any weight were their stories, not stories told them by the polling agents. The finding of the Tribunal resulted from its failure to distinguish between the eye-witness accounts and the agents’ report constituting the testimony of each witness. From the eye-witness account of each witness the polling booth though not at one location were not far apart and while a witness cannot claim omnipresence each witness swore that in the course of the election he visited some or all the polling units in the ward allocated to him to supervise. Some of the witnesses said, in cross-examination, that it was 5 – 6 minutes walk from one polling unit to the next one. The witnesses were not shaken in any material particular in their evidence in chief under cross-examination.
At page 862 of the records the Tribunal held, rightly in my view “We have carefully reflected on the issue drawn upon by the parties. After such a consideration of the cases cited and the evidence led parties are at one that PW1 – PW14 are the A.C. Party Supervisors and this fact is acknowledged by the Tribunal and in their evidence the election ……” The Tribunal rightly relied on S.77 of the Evidence Act as each witness gave evidence of what he saw, heard and perceived at the various polling units in his Ward.
The Tribunal not having made a determination that the evidence was unreliable should have relied on it. The Tribunal did not find that the evidence led by the witnesses was challenged or controverted materially. It was deemed at law to be admitted. See Bank of the North Ltd & Anr. v. Aliyu (1999) 7 NWLR (Pt. 612) 622 Amoregbe v. Lawani (1980)3-4 SC.108: Ikuomoha v. Oniwava (1990)4 NWLR (Pt.146)617: Alibade v. Mayowa (1980) 9 – 10 SC 1.
The Tribunal would not attach weight to the unchallenged evidence of the witness simply because the witnesses did not report what they observed to the Police or the Press. With due respect, the Tribunal failed to consider the evidence of each witness that he did not report to the Police because Police men were present at each unit, saw what happened and in some polling units aided the respondents.
In some case the witness swore that the Police said it was beyond their power and that it was a do or die affair. One of the witnesses who went to report what he saw at a police Station was ordered out of the station on order from above. If the tribunal had evaluated the entire evidence of the PW1 – pw14 it would have arrived at a different conclusion and ascribed full weight to the evidence.
With respect to the reports tendered by PW1 – PW14 the Tribunal, at page 879 of the records said “we went through these Waheed Kasim Exh. A1. None of the agents testified. None has traveled overseas. No evidence was led to show their attendance will cause delay. We also observed that the Supervisors testified only 1 or 2 are dead. No ordinary voter called, no agent of any party among the 6 other contestants called …….”
In U.N.I.C. v. U.C.I.C. Ltd. (1999)3 NWLR (Pt.593) 17 this Court held thus “Documentary evidence can be admitted in Court proceedings through any witness by consent or without objection, notwithstanding that their makers were available and not called as witnesses.” Apart from the above the proviso to S.91 (1) of the Evidence Act states “provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead or unfit by reason of his bodily or mental condition to attend as a witness or if he is beyond the seas and if is not reasonable him have been made without success.”
The Tribunal had evidence that two of the agents were dead, all the agents fled the area for fear of their lives and even a king who was not an agent fled his kingdom.
The proof of a point in issue is not a function of the number of witnesses called on the issue. What matters is the veracity of the evidence led not the number of witnesses called by the one who has the onus to prove the point in issue.
The totality of the evidence of PW1 – PW14, both oral and documentary is neither challenged nor contradicted and not rendered inadmissible by the provisions of any enactment. The Tribunal should have relied on the evidence in arriving at its decision. See PTF v. IFMS Ltd (2002)16 NWLR (pt.794) 586.
Aprofim Eng. Const. Ltd. v. Sidoy. Ltd (2006)13 NWLR (Pt.996) 73.
Though findings of facts and ascription of weight or probative value fall within the exclusive preserve of the trial Court, any Court including appellate Courts, can draw conclusion or inferences from those facts. See Benmax v. Austin Motors co. Ltd. (1955) AC 370 at P.375.
Also an appellate court can interfere and reverse a perverse finding of the trial Court.
The Tribunal was in error when it held that the evidence of PW1 – PW14 consisting of their eye-witness account and reports made to them by the polling agents had no probative value. The issue is resolved in favour of the appellant.
Issue 3 is on the effect of the facts elicited, under cross-examination, from RW3, RW4 and RW9 on the allegation of thuggery and other malpractices bordering on crime.
Learned Counsel for the appellant referred to page 878 of the records where the Tribunal held, inter alia, “…..the fact that RW3, RW 4 and RW9 did not vote can only effect (sic) the weight to be attached to their testimonies but not conclusive proof of leading thugs, (sic) to commit crime.” He referred to the evidence of RW3, RW4 and RW9 that they did not lead thugs to disrupt the voting process but went to the polling units, voted peacefully, went home.
He said that when the witnesses were confronted with voter’s registers for the various polling units their names were either not on the voters’ registers, or were not ticked to show that they voted in the election. He said each of the RW3, RW4 and RW9 lied on oath about his presence at the polling units. He referred to the evidence of RW9 in particular. The witness said he voted but his name was not on the voters’ register for the unit at which he claimed he voted, noting that the voters’ register is the authentic proof that a person voted at a particular unit. He referred to Ghime v. Onyia (2009) 2 NWLR (Pt. 1174) 1 at 44. He said that the testimony of RW9 and the absence of his name on the voters’ register confirmed the allegation of PW13 that RW9 invaded unit 3 wards 8 of Orolu Local Govt. with thugs and disrupted the voting process and scared away voters from the unit. Learned Counsel contended that the evidence of RW3, RW4 and RW9 under cross-examination left the Tribunal with the conclusion that the witnesses lied to cover up their crimes of violence at the polling units or that they voted as they claimed but in an illegal manner as their names were not in the voters’ register and the only one whose name was in the register was not ticked to indicate he lawfully voted. He urged the Court to hold that based on the evidence of RW3, RW4 and RW9 the 3rd – 148th Respondent who offered no evidence at the trial did not conduct the election in compliance with the provisions of the Electoral Act 2006. He urged the Court to resolve the issue in favour of the appellant. In reply Learned Counsel for the Respondents (1st and 2nd) argued that no question put to RW3, RW4 or RW9 could have justified an answer linking the witnesses with a crime. He said that none of the witnesses gave any answer suggesting that he perpetrated the violence alleged by the appellant. Counsel concluded that the allegation of crime was not proved beyond reasonable doubt as required by law.
He urged the Court to resolve the issue against the appellant.
Issue 3 Resolution: Appellant made allegations of electoral malpractices, some of which bordered on crime, against the Respondents. The allegations were denied in the Respondents’ replies, thus setting the stage for the appellant to prove his case on the allegations of criminal acts. He called his witnesses who were cross-examined by learned counsel for the Respondents. 1st and 2nd Respondents called RW3, RW4 and RW9 among others to substantiate their denial of the allegation made against them. Under cross-examination each of the witnesses (RW3, RW4 and RW9) admitted being at their various polling unit during the election. In the case of RW3 Chief Hamusan Moshood Olawale he insisted he voted at Ward 10 Orolu Unit 1 at Iso Pako as he stated in paragraph 2 of his statement. He gave a detailed account of the process he went through before he cast his vote. However when he was shown Exh.S4J, the Register of voters in Ward 10 he said “I examine the booklet that my name is not there at all.” See page 797 of the record. He continued on the same page of the records:
“That my names did not appear in any of the Units in Ward 10 in voters register. I don’t know about it. I voted, I don’t know if its there, the INEC Officers took my voter’s card, I have again look through my name is not there.” Yet he insisted he “voted on that date
RW4 presented a different scenario. His name Michael Adedeji; was said to be fictitous by Learned Counsel Abimbola Esq. who called him. Against the objection of Basiru Esq., Learned Counsel for the appellant the Tribunal allowed the change from the fictitous Michael Adedeji to Michael Adeniyi. Again Counsel applied to amend paragraph 3 of the witness’s statement to read Ward 10 Unit 7 and not Unit 6. Once again against the objection of Learned Counsel for the appellant the order for amendment was granted. This witness, when cross-examined, said he voted on the Election Day at Ward 10 Unit 7 and he described the process of voting. He said “Yes my name was checked and marked on the register,Exhibit 60Dis Register for Ward 10 Unit 7. Atere Area item 101. My name is there as Michael Adeniyi. On my name there is no mark on it. I say it was my voter’s card that was marked not this paper” See page 805 of the records. RW9 is Olateju Afeez (Avis). Cross-examined on the statement he adopted he said he voted at Unit 3 Olufoni Ward 08. He said Exhibit 54H is a certified true copy of the Register of the Ward where he voted. He said “I see Exhibit 54H, I have checked through to see if my name is there, it is not there.” See page 813 of the records.
On the evidence of the RW3, RW4 and RW9 the Tribunal said:
“It should always be remembered these are criminal allegation which need proof beyond reasonable doubt. The fact that RW3, RW4 and RW9 did not vote can only affect (sic) the weight to be attached to their testimonies but not conclusive proof of leading thugs to commit crime.” See page 878 of the records. The Tribunal stated the correct position with regard to proof of criminal element in civil matters. S.138 ‘ (1) of the Evidence Act provides: “lf the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, It must be proved beyond reasonable doubt.” However, proof beyond reasonable doubt does not mean proof beyond shadow of doubt. So if the evidence against the accused is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable” the case is proved beyond reasonable doubt, but nothing short of that will suffice. See Agbo v. State (2006) 6 NWLR (Pt.9771 545 SC Unwagboe v. State (2007)6 NWLR (Pt.1031) 606. It is not the requirement of the law that the crime alleged in “civil proceeding be established to the level of mathematical certainty. Once the evidence offered lift the proof from the level of possibility to that of probability the required standard of proof is attained, especially in election petition.
The witnesses RW3, RW4 and RW9 among others were presented to refute the allegation of use of thugs, impersonation and other criminal acts at various units during the election. RW3 swore that he voted and went further to describe the procedure for voting but when confronted with the relevant voters’ register he could not find his name as a registered voter in the Ward where he claimed to have voted.
RW4 also claimed that he voted and described the procedure followed before he cast his vote. This is the witness who filed his written statement as Michael Adedeji but later changed to Michael Adeniyi. Also he changed his Unit from 6 which is in his statement to 7. His name was in the register but it was not checked to show that he voted at the election.
RW9 claimed to have voted but his name was not listed in the register of the Ward where he claimed he voted.
The legal burden of proof relates to the issue which must be proved to the satisfaction of the Court or Tribunal to sustain the facts alleged. In criminal cases the burden of proof of crime is always on the prosecutor or one who alleges the commission of a crime in a civil proceeding.
However there is another but lighter burden and this is evidential burden, the burden of introducing, adducing or producing evidence on any particular issue. See Ozaki v. State (1990) 1 NWLR (Pt. 124) 92 at 125 SC: Esangbedo v. The State (1989)4 NWLR (Pt. 1131 57 at 80 SC. Each of the witnesses RW3, RW4 and RW9 admitted being at a particular unit to vote and not to lead thugs to commit electoral offences bordering on crime. Each of them lied when he claimed he voted. Two did not see their names on the relevant registers and so could not have voted. One saw his name but it was not marked to show he voted and again he could not have voted at the election. Though the witnesses do not have to prove the negative assertion that they did not lead thugs to the polling both each of them had the evidential burden of raising an issue as to his presence at the polling unit at the material. As argued by Learned Counsel for the appellant the situation is similar to a plea of alibi in which the accused is required not to prove he did not commit the crime but to state and give particulars of where he was at the material time from which it could be concluded that he could not have commit the alleged crime. See Jerome Akpan & Ors. v. state (2002) 12 NWLR (Pt.780) 189 at 203 SC. Gachi & ors v. The State (1965) NWLR 333. Okosun & Ors. v. A – b Bendel State (1985) 3 NWLR (Pt.12) 283 SC.
Since the witnesses were at the various polling units during the election but did not vote as they claimed and on the facts could not have voted they had the evidential burden to merely state the reason for their presence at the Units at the material time.
In my view and in the circumstances the matter has left the realm of possibility to the realm of probability that each of RW3, RW4 and RW9 was at the various polling units for the purpose alleged in the petition. In the circumstance the evidence of the appellant’s witnesses coupled with the evidence extracted from RW3, RW4 and RW9 in cross-examination prove the criminal allegation made by the appellant beyond reasonable doubt. After all the reason for their presence at the polling units during the election in which it turned out that none of them voted or could have lawfully voted is a fact within the exclusive knowledge of the RW3, RW4 and RW9.
Circumstantial evidence is evidence of surrounding circumstances which by their very nature are capable of establishing a proposition such as the allegation of use of thugs by the respondents in the election. See Ebre v. State (2001) 12 NWLR (Pt. 728) 624.
Without a word as to the reason for their presence at the Polling Units, given the fact that they lied in the claim that they went to vote, the inevitable conclusion from the surrounding circumstances is that they were at the Polling Units to commit diverse forms of electoral malpractice including criminal acts. It would have sufficed to cast a doubt to be resolved in their favour if they had claimed for instance that they were at the polling units to watch the election process but they remained mute on the issue. PW1’s evidence, be it noted, that one Muibi Aderemi and Michael Adedeji (changed an order of the Tribunal to Michael Adeniji) stuffed ballot box with illicitly thumb printed ballot papers was not challenged in cross-examination.
This piece of unchallenged evidence not being incredible by its nature should have been relied on by the Tribunal in support of the allegation of criminal acts against the agents of the Respondents. See Omoreshe v. Lawani (1980) 3 – 4 SC 108. Ikuomola v. Oniwaya (1990) 4 NWLR (Pt. 1461 617. Ajibade v. Mayowa (1980) 9 – 10 SC1
On the other hand the evidence from RW3 and RW4 that they voted but their names did not appear in the relevant voter’ registers and RW9 that he voted but though his name appeared on the voters register for his Ward, the name was not ticked to show that he voted and the inference drawn from these facts constitute evidence that the election was not conducted in compliance with the provisions of the Electoral Act 2006, which non-compliance adversely affected the result of the election to the disadvantage of the appellant.
See Joseph Adeleye v. Simeon Oloruntobi & Ors (1992) 2 LREGN 134: NEGU. Hajiya Zainab Suleiman (1992) 2 LRECN 96.
The Tribunal accepted the argument of learned counsel for the 1st and 2nd Respondent that the crimes alleged, even if proved, were not linked with the 1st Respondent who was not at the scene of the crimes at the material times. That may be correct but its corollary is even more compelling in its logicality. A respondent who did not directly or by necessary implication authorise the commission of crimes at election should not derive any benefit by way of votes from the illegal acts of third parties. It will be standing the electoral law on its head to credit a candidate at an election with votes procured by proven acts of electoral malpractice, criminal or otherwise. Once the crime is proved, the Respondent cannot benefit from the votes secured thereby, even when he is not linked or proved to be linked with the perpetrators. An election flawed by the criminal acts of any one remains flawed for all times and purposes.
In any case the Tribunal did not disbelieve the evidence of PW4 that the 1st Respondent was in his ward and the election officials worked on his behalf
I resolve issue 3 in favour of the appellant.
Issue 4 questions the finding of the trial tribunal on the PW15 and his testimony.
Learned Counsel for the appellant referred to, and reproduced, the finding of the tribunal at pages 884 – 885 of the records. He contended that the tribunal did not appreciate the testimony and verifiable findings of the PW15, who, pursuant to the order of the tribunal, inspected the relevant documents at the INEC office. Counsel said that the evidence of PW15, based on his inspection of the electoral documents and materials covered all the wards and polling units challenged by the appellant. He referred to paragraph 7 of the written deposition of the PW15 that in 50 polling units in Irepodun Local Government and 59 polling units in Orulu Local Government, the signatures endorsed at the back of some ballot papers for each unit are different from the signatures endorsed on the relevant forms ECSA (2) for the relevant polling units. He referred to and relied on, Exhibit 15 A – C which is the break down of the findings of the PW15 in Local Govt., ward and polling units. He relied on the break down of the findings of PW15 in other Wards and units. Counsel contended that the PW15 was not shaken in cross-examination as his testimony bordered on physical inspection of INEC documents carried out pursuant to the order of the Tribunal. On the essence of the provision of S. 159(1) of the Electoral Act 2006 he rerred to Aresbesola v. Oyinlola (2009)14 NWLR (Pt.1162) 429 at 478 paragraphs B – D. He referred to page 884 of the records in which he said the Tribunal imported the requirement of expert evidence into the inspection of electoral materials. Learned Counsel conceded that the PW15 never claimed, even under cross-examination that he was an expert but merely inspected the electoral materials as ordered by the tribunal. Learned Counsel impugned the finding of the tribunal at page 883 of the records that “he paraded himself as an expert and does not qualify as an expert as stipulated under Section 57(1) of the Evidence Act.” Learned Counsel emphasised that the PW15 did not purport to prove multiple thumb-printing of ballot papers contrary to what the tribunal ascribed to his evidence but rather gave evidence of general non-compliance such as non-stamping of ballot papers non-signing of results ballot papers issued in excess or shortage of what is stated on forms ECSA etc. He referred to the testimony of PW15 in Chief and under cross-examination that he is a researcher in the Institute of Development and Democratic studies and his experience as Head of Research Project Unit is enough to enable him to carry out physical inspection of electoral materials. He described the assertion by the tribunal that PW15, a graduate with post graduate studies in Journalism, has no educational qualification as unfortunate. Counsel referred to S.108 of Evidence Act and said the Judges would compare signature even though an average judge does not have to be qualified as forensic/biometric expert to carry out his function under S. 108 of the Evidence Act. Further, he argued that bankers do not have to be forensic experts to verify signatures of their customers so as to detect and prevent fraud. Counsel said that S.27 of the Evidence Act which applies to oral evidence as to the happening of an event does not apply to the evidence of comparison of documents or objects for the purpose of discovering deficiencies which a Court or Tribunal with little diligence can discover. Counsel relied on SPPC Ltd v. Adamkwe (2003) 11 NWLR (Pt. 8321 at 598 B – H: SPDC v. Fara (1995) 3 NELR (Pt. 382) 148 to counter the demand of the tribunal that other members of the team that did inspection should have signed the report and stated their academic qualifications. He said there was no need to call each member of the team as the report by one of them is admissible. He said that the report of the witness was based on the materials presented for inspection by and that none of the respondents presented any documentary evidence to controvert the finding of the Pw15’s team. With reference to page 888 of the records Counsel argued that even if there were errors in the report in relation of two units as found by the Tribunal the margin of error is not enough for the Tribunal to reject the totality of the report. Counsel referred to the evidence of Electoral Officers subpoenaed by the appellant who testified as PW16 and PW17 and submitted there was obvious discrepancies between the total numbers of ballot papers used on form EC8A (ii) i.e. exhibits 24 – 38 and the actual quantities brought to Court by the Electoral Officers, He impugned the finding of the Tribunal on the report. In any case Counsel argued, the 1st and 2nd Respondents obtained an order to inspect the materials on 4/9/09 and the process of inspection lasted for 21 days at the end of which the 1st and 2nd respondents filed a witnesses statement purporting to be a report of the inspection but failed to call the witness who inspected and prepared the report to tender same in evidence at the trial. Based on the failure to present the report counsel argued that the testimony of PW15 remained unchallenged and uncontroverted as to the several findings of irregularities in his report. Learned Counsel referred to the INEC Guidelines by which the signature of the Presiding Officer has to be on form EC8A as well as at the back of each ballot paper during accreditation. He submitted that the signature on form EC8A serves as the specimen signature forming the basis of comparison with the signature on the ballot papers and the finding of PW15 is in conformity with S.61 of the Evidence Act, Placing reliance on step 1, paragraph 3.2 at page 21 of the manual for Election Officers 2007 tendered by the appellant and received and marked Exh.59 he submitted that failure to sign and stamp a ballot paper renders it invalid. He submitted that the finding of PW15 in relation to the irregularities as shown in exhibit 20 A – C is the evidence of irregularities as pleaded that no proper election was conducted in accordance with the provisions of one Electoral Act 2006. He urged the Court to accept and rely on the testimony of PW15 as evidence obtained pursuant to S.159 of the Electoral Act 2006, and relied on Aregbesola v. Oyinlola (2009)14 NWLR (Pt.1162) 429 at 478.
In his submission Learned Counsel for the 1st and 2nd Respondent sought to justify the position taken by the Tribunal on the testimony of PW15 as sound and in accord with case law on evidence of those who present or hold out themselves as experts. He submitted that the evidence purportedly given by PW 15″ and contained in paragraphs 3.146 – 3.150 of the appellant brief is self serving and partisan, and further more that there was no showing that the alleged malpractices substantially affected the result of the election. He said that the various arguments of the appellant on the evidence of PW15 are not convincing as the PW15, not being a handwriting expert, can not demonstrate that the signature at the back of any ballot paper is different from that on the relevant form EC8A (2) and the Presiding Officers who signed the forms and ballot papers were not called to confirm or deny their signatures. On the alleged disparity between the ballot papers inspected and the ballot papers recorded in form EC8A (2) he said that the allegation is debunked by Exhibit R1 1 – 7 being the product of joint counting of ballot papers by all parties in open Court. Counsel submitted that even if there is substance in the claim that some ballot papers used for some polling units do not match serial numbers in the distribution list supplied, that fact is not sufficient evidence of malpractices or irregularities to warrant the nullification of the election. He argued that since PW15 was called to give evidence of malpractices and irregularities amounting to non-compliance with the Electoral Act and the manual for Election Officers in the conduct of the election on which the tribunal was invited to form an opinion the PW15 was presented as an expert, a status he does not enjoy under S. 57 (1) of the Evidence Act. He cited and relied on Ude v. Osuji (1990) 5 NWLR (Pt. 151) 488 at 513. On the characterisation of PW15 by the Tribunal as without educational qualification Learned Counsel said what the Tribunal said is more in respect of electoral materials and document and warned his learned colleague for the appellant to stop castigating their Lordship and focus on the merit of the appeal.
He said the tribunal did not mean that a University graduate has no educational qualification. He submitted that contrary to the position taken by the appellant, only a handwriting expert or finger print expert can confirm the similarity or disparity between two signatures. Counsel argued that the Tribunal was right in holding that the evidence elicited from the PW15 in cross-examination rendered his testimony unreliable. Counsel argued that since the appellant failed to lead credible evidence through PW15 there was nothing for the 1st and 2nd Respondent to rebut. He relied on Oyagba v. Seiko (2009) all FWLR (Pt.466) p. 1951 at 1972 Para. D. He said that the appellant simply tendered from EC8A and other forms and ballot papers but no use was made of the exhibits to establish the discrepancies alleged by the appellant. He relied on Amachene v. God-head (2009) All FWLR (Pt.) sic P. 911 at 940. Learned counsel urged the court to uphold the decision of the Tribunal and resolve the issue against the appellant.
Issue 4 resolution: At page 734 of the records PW15 stated inter alia, under cross-examination, thus:
“My secondary School is Lagos State High School, Oyewole, Agege, Lagos State. University of Ibadan – I studied Enqlish Lanquaoe. I went to NUJ where I did post graduate studies in Journalism after I attended various courses among which is Centre for Advanced Studies, a Diploma, Basic research Methodology at Centre for Democracy and Development in Lagos – CDD.
“I obtained my degree in March 1999: I have never worked at any Polytechnic in Nigeria. I have never worked in any University in Nigeria. I have taken oath to speak the truth in Nigeria and i am ready to abide by it. No, I am not a member of any Political Party. I work at the Institute of Development and Democratic Studies as head of Research Rroject Unit (IDDS)”
Of this witness and his testimony the Tribunal at page 884 of the records found that “He possesses no educational qualification, no demonstrated experience or skill, and he was not present at any of the stages at which the electoral forms, document or materials which formed the basis of his evidence were recorded, prepared or entries therein made, in the circumstances his evidence which involved analysis or skill is hearsay and we so hold.”
Learned Counsel for the 1st and 2nd Respondent said that the position taken by the Tribunal on the evidence of PW15 is not only sound but has the support of case law. However he did not cite any case in support of the finding that the PW15 had no educational qualification, skill or experience.
With due respect to eminent Counsel the Court does not need his help with the plain English words used by the Tribunal in its characterisation of the PW15 as lacking in educational qualification, skill and/or experience.
Learned Counsel at paragraph 3.1 13 of his brief said “The educational qualification being referred to by their Lordships of the Lower Tribunal is more in respect of the inspection of the electoral materials and document.”
The Electoral Act 2006 did not stipulate any qualification for those to inspect electoral materials; neither did the order of the Tribunal which authorised the inspection. His comment that “Learned Counsel should therefore stop castigating their Lordship….” is as baseless as it is self-seeking.
At no time did the witness qualify himself as an expert on electoral materials and the order of the Tribunal or the electoral Act did not specify that only experts can inspect and give evidence relating to electoral materials. Most of all the Tribunal was in gross error when it rejected the evidence of PW15 on the document he inspected pursuant to the order of the Tribunal as hearsay. In Jolayemi v. Alaoye (2004)12 NWLR (Pt.882) 322 the Apex Court described hearsay evidence as evidence given by a witness as to what he was told on a fact in issue and not from his personal knowledge. See also Okunuarobo v. Aigbe (2002) 9 NWLR (Pt 771) 29 SC.
PW15 did not give evidence of what any one told him, he gave evidence of his observation of the materials he inspected. The said evidence relating to the inspection of the electoral materials is material and relevant to the issues before the Tribunal.
I resolve issue 4 in favour of the appellant.
Issue 5 is whether or not the appellant, on the totality of the evidence, proved his case before the tribunal to entitle his to Judgment.
Learned counsel for the appellant referred to the written deposition and evidence of PW2 and argued that the Tribunal was in error when it said of the PW2 that “He was busy in the line of voting how can he know if agents were shown electoral materials when election(sic) are supposed to start simultaneously in all polling units.” He said it was possible for the PW2 who said he voted at 10 am to monitor the electoral process as he did not say he was busy voting all day. He said that in view of the evidence of the PW2 that he moved round the wards to monitor the election the Tribunal’s conclusion on the evidence of PW2 is perverse. He urged the Court to hold that the PW2 gave credible evidence of the use of thugs of the PDP who did not allow the electorate to vote. He urged the Court to find corroboration of the PW2’s evidence, if needed, in Exh.2. He said the PW2 gave credible evidence of multiple voting, violence, intimidation of voters, impersonation of voters etc which translated to substantial non-compliance with the electoral Act 2006 and that the witness was unshaken in cross-examination. On the evidence of PW1 – PW14 Counsel said each witness prefaced his testimony with
“apart from my personal knowledge of these events when I visited the polling units in wards, I also received written reports from the polling agents in all polling units in the ward…..” in addition counsel stated many of the witnesses proved under cross-examination that the units they supervised were not far apart and that they visited the units several times over. Under cross-examination, Counsel contended, the testimonies of the petitioner’s witnesses, who were Ward Supervisors, were not impeached, rather the witnesses stood firm and gave additional facts which confirmed their testimonies in chief. Counsel said the testimonies in chief and under cross-examination of the RW3, RW4 and Rw9 gave more credence to the appellant’s case of electoral malpractice perpetrated by and/or in connivance with the Respondents. Counsel referred to the evidence of PW17, a witness subpoenaed at the instance of the appellant to tender electoral materials who confirmed that form EC40C was part of the relevant documents but that the said form could not be found Counsel said it was wrong for the Tribunal to blame the fact that the ballot papers produced by INEC Officials from the custody of INEC were not stuffed in the ballot boxes. Learned counsel for the appellant dealt, at times repeatedly with all aspect of the case, especially the issue of proof reasonable beyond doubt. He concluded that the appellant abundantly established his case at the Tribunal and urged the court to so hold. He urged the court to allow the appeal, set aside the judgment of the Tribunal and grant the appellant’s prayers.
On his part Learned Counsel for the 1st and 2nd respondent vehemently argued that the appellant failed to prove the allegation of crime which formed the bedrock of his petition beyond reasonable doubt. With regards to the evidence of PW1-PW14 Learned Counsel drew a distinction between competency to testify and the weight to be ascribed to the testimony of the competent witness. He argued that in order to prove his case the appellant should have called the polling agents to give first hand account of what happened at the polling stations. Counsel argued to the effect that the reports of the polling agents tendered through PW1 – P14 were admitted in error and the Tribunal rightly refused to attach any weight to them. He relied on Fash Fixed odds v. Akatugha (supra) and contended that no weight can be ascribed to a document tendered by one who is not the author. Learned counsel met the appellant’s case point for point and in conclusion he urged the Court to resolve the issue against the appellant. He urged the Court to dismiss the appeal in it entirely and affirm the judgment of the Tribunal.
Issue 5: Resolution:
The evidence of the PW1 to PW14 consists of eye witness account as well as the report made to the witness by the polling agents he supervised during the election. They were ward supervisors employed by the appellant’s party – ACN. Each of the PW1 – PW14 gave evidence that was not materially impeached in cross-examination.
PW15 was one of the team employed by the appellant to inspect the election materials pursuant to the order of the Tribunal. Among others he has post graduate qualification and experience. He tendered the materials he inspected and made deductions thereupon and testified as to his observations.
However the appellant appeared to have thrown a spanner in the works PW16 and PW17 were each served, at the instance of the appellant, subpoena duces tecum et ad testificandum. Each was to tender electoral materials and give evidence on behalf of the appellant. Each was not called just to tender the electoral materials but was also bound to testify on behalf of the appellant. And each did testify as appellant’s witness, but each gave evidence in direct conflict with evidence so far adduced by the appellant. PW16 testified – to the effect that the claim of the appellant that the election was marred by irregularities and other election malpractices had no factual basis. Each of PW16 and Pw17 is as much appellant’s witness as PW1 – PW15.
By calling INEC to tender the relevant electoral materials and in addition give evidence on his behalf the appellant shot himself in the foot. He made evidential somersault and fell on his own sword. A court faced with two conflicting pieces of evidence, without explanation of the conflict is bound to reject both pieces of evidence. See Ude v. Nwara (1993)2 NWLR (Pt.278)638. A party cannot blow hot and cold. He cannot affirm at one time and at another time deny what he affirmed previously. He cannot approbate and reprobate. In Onafowokan v. State (1987)3 NWLR (Pt.61) 538 at 553 the erudite jurist Oputa JSC, faced with two conflicting pieces of evidence likened the situation to a sculpture of madona with a child and said one cannot separate one from the other without destroying the entire sculpture. The Court cannot pick and choose which of the two conflicting pieces of evidence to ascribe probative value to and which one to discredit. See Onnbogu v. State 1974 SC 1.
Much as the appellant may deserve sympathy; emotions should have no role in judicial determination as they will be cloud both the mind and the issue for determination. A party is at liberty to call anyone available and competent to testify for his side at a trial, but if he resorts to the coercive powers of the Court to bring his adversary to the witness stand as his witness, he calls such witness cum onere. In conclusion I reject the evidence of the appellant for the irreconcilable conflict, for this reason, entirely different from the reasons given by the Tribunal in its Judgment. I dismiss the appeal and affirm the Judgment of the retrial Tribunal, notwithstanding the issues resolved in favour of the appellant.
I order that each party bears its own costs.
CHINWE E. IYIZOBA J.C.A.: I read before now the judgment just delivered by my learned brother, Nwali Sylvester Ngwuta JCA. Upon perusal of the record of appeal and the briefs of argument of the parties, I am of the view that my learned brother painstakingly considered and resolved all the issues in contention in the appeal. I agree with the reasoning contained therein and the conclusions arrived thereat.
Of recent Petitioners in election petitions have taken to calling as witnesses ward supervisors to give evidence of violence, rigging and other malpractices in polling units instead of the polling agents who worked in the relevant polling units. While cases which decided that such ward supervisors are incompetent to testify are decisions given per incuriam as long as they gave eye witness accounts of what they observed, there is no gainsaying the fact that the evidence of a polling agent stationed at a polling unit permanently and who witnessed all that went on in the unit would attract more credit than that of a roving ward supervisor. In the same vein, where there is allegation of violence, the more credible witness to call is the victim of the alleged violence as opposed to a ward supervisor who witnessed the violence. Where also the issue is one of disenfranchisement, the more credible witness is the person who was disenfranchised as opposed to a ward supervisor who witnessed the disenfranchisement. Undoubtedly calling these more material witnesses will entail greater expense and time, but that underscores the great hurdle, the petitioner in an election petition has to cross to succeed in his petition, especially where the election petition is based on allegations bordering on criminal offences. Most of the witnesses called by the appellant in his petition were ward supervisors employed by his party – ACN. I do agree however with the conclusion of my learned brother that their evidence was not materially impeached in cross- examination, the respondents having failed to call evidence in support of their pleadings. The appellant by his own act destroyed his case by serving on pW16 and PW17 subpoena duces tecum et ad testificandum instead of just subpoena duces tecum. As appellant’s witnesses, they gave evidence contradicting the evidence already adduced by the appellant, thus demolishing his entire case. I abide by the orders made by my learned brother in the leading judgment.
MOORE A.A. ADUMEIN, J.C.A.: I had the privilege of reading the draft of the judgment delivered by my learned brother, NGWUTA, JCA. I agree with my learned senior brother that the five issues identified by His Lordship cover the live issues for determination in this appeal.
Issue No.5 identified by my learned is Whether or not the appellant, on the totality of the evidence, proved his case before the tribunal to entitle him to judgment. The issue shall be resolved first.
I agree with my learned brother, NGWUTA, JCA, that “the appellant shot himself in the foot” when he decided to field PW16 (ALHAJA KAYODE ADIGBE) and PW17 (AKINBO SOLA VICTOR) as witnesses to testify on his behalf. As a fact, PW16 and PW17 were the 8th and 5th respondents to the appellant’s election petition (page 15 of the record of appeal). The evidence of PW16 covers pages 767 to 778 of the record of appeal. She was sworn on the Holy Quran and was led in evidence-in-chief by the learned counsel for the petitioner/appellant. Under cross-examination, PW16 confirmed the case of the respondents when she stated inter alia as follows:
“The Election in 2007 was not the 1st Election I conducted. The results in the Election in paragraph 12 of the petition are correct. I went round the Local Government to monitor the Election. Nobody reported to me that Ballot Boxes were snatched or that there were irregularities during the Election”.
(Page 777 of the record of appeal).
It should be noted that PW16 was not re-examined by the appellant nor was she declared a hostile witness.
Paragraph 12 of the petition is to the effect that the result of the election as announced by the Independent National Electoral Commission (INEC) was that the appellant was credited with 39, 180 votes while the 1st respondent was credited with 47, 366 votes (page 18 of the record of appeal). In the instant case, the appellant used PW1-PW15 to build a fairly good case but unwittingly or otherwise invited his paper adversaries-PW16 and PW17 to demolish or destroy his case.
For these reasons and the very comprehensive reasons given in the lead judgment I also dismiss this appeal.
Appeal is dismissed without costs.
>
Appearances
Ajibola Basiru Esq. (with him Dauda Akinloye Esq., And M. Olaoye Esq.)For Appellant
AND
A.A. Abimbola Esq, (with him A. Morenikeji Esq) and A.A. Adejumo Esq.,For Respondent
