ZERIBE EZEANUA v. CHUKWUKA ONYEMA & ORS
(2010)LCN/4205(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 16th day of June, 2010
CA/E/EPT/71/2008
RATIO
PRELIMINARY OBJECTION: WHETHER PRELIMINARY OBJECTION IN AN APPEAL SHOULD FIRST BE DEALT WITH, BEFORE TREATING THE SUBSTANTIVE APPEAL
it has been decided in several authorities of this court and of the apex court too numerous to be mentioned here, that Preliminary Objection in an appeal should first be dealt with, before treating the substantive appeal. PER AMIRU SANUSI, J.C.A.
CONSEQUENCE OF NOT FORMULATING AN ISSUE(S) FOR DETERMINATION FROM A GROUND OR GROUNDS OF APPEAL ON SUCH GROUND OR GROUNDS OF APPEAL
It is well settled law that where no issue(s) is raised on a ground or grounds of appeal such ground or grounds of appeal are deemed abandoned. See Bendel vs Aideyen (1989) 4 NWLR (Pt 118) 646 at 665; Onuoha vs Nwabueze (2001) 48 WLRN 84 and it is equally trite that issue for determination must be raised within the purview of the ground(s) of appeal. See Owosago vs Adebanjo (1988) 4 MWLR (Pt 88) 275 at 2803; Eze vs Federal Republic of Nigeria (1987) 1 NWLR (Pt 51) 506 at 521/522. Any issue not formulated from ground or grounds of appeal such ground or grounds of appeal is/are liable to be struck out as it is/they are deemed to have been abandoned. See Okwe-junior vs Itakeji (2008) 5 MWLR (Pt 1079) 172. Similarly, where a ground of appeal is not covered by an issue for determination set out in the brief of argument such ground of appeal is also deemed to have been abandoned and also should be struck out. See Ngiaere vs Mothercat Ltd (1999) 13 NWLR (Pt. 636) 626; Ugo vs Obiekwe & Anor (1989) 2 NWLR (Pt 99) 566; Sha (Jnr) vs Kwan (2000) 8 NWLR (Pt 670) 685; Alh Animashaun vs University College Hospital (1996) 10 NWLR (Pt 476) 65 or (1996) 12 SCNJ 179; Nkedo & Ors vs Ofoiano & Anor (1997) 5 NWLR (Pt 503) 31 or (1997) 5 SCNJ 23; Godwin vs The Ife Christ Apostolic Church & Ors (1998) 12 SC 1 or (1998) 12 SCNJ 213 and many other cases. PER AMIRU SANUSI, J.C.A.
REPLY BRIEF: PURPOSE OF A REPLY BRIEF
It is trite law that Appellant Reply brief is always targeted at, meant or used to only meet fresh or new argument raised in the Respondent’s brief of argument. Reply Brief should not be aimed at fine- tuning or further arguing or expatiation of issue(s) or raising additional points or argument on the arguments advanced earlier in the Appellant’s main brief. PER AMIRU SANUSI, J.C.A.
PROOF OF ALLEGATIONS: EFFECT OF THE FAILURE OF A PETITIONER WHO MAKES SOME WIDE RANGE OF ALLEGATIONS OF FACTS TO PROVE SUCH ALLEGATIONS AND THE POSITION OF THE LAW WHERE SUCH PETITIONER SUCCESSFULLY DISCHARGED THE BURDEN PLACED ON HIM BY LAW
By virtue of the provisions of Sections 136 and 137 of the Evidence Act, the person who asserts has the onus to prove. Where a Petitioner makes some wide range of allegations of facts, fails to prove such allegations then the court or tribunal has the right to throw away his case on those facts. See Kalgo vs Kalgo (1999) 6 NLR (Pt 608) 639; Eboh vs Oguejiofor (supra). It needs to be stressed here also, that where the allegations leveled by the Petitioner border on criminal offence or offences, the standard of proof of such criminal act(s) or electoral offences is beyond reasonable doubt. See Ezeduwo vs BVEC (1999) 3 NWLR (Ft 594) 215, Wulgo vs Bukar (1999) 3 NWLR (Pt 596) 539. The burden of proof of such allegation is always on the asserter eg. the Plaintiff or Petitioner in election matters. This, he can only do, through calling or by adducing credible evidence. If he fails to do so, his case would obviously fail. But on the other hand if he succeeds in leading credible and admissible evidence to prove his pleaded facts, then he can be said to have discharged the burden placed on him by law. Thereupon, the burden then shifts to his adversary i.e defendant or respondent in election matters, who will then lead evidence to prove that the facts established by evidence adduced would not on the preponderance of evidence result in giving judgment in favour of his adversary i.e plaintiff or the petitioner in election matters. See Adegoke vs Adibi (1992) 5 NWLR (Pt 242) 410, Buhari vs Obasanjo (supra); Nwobodo vs Onoh (supra) PER AMIRU SANUSI, J.C.A.
ESSENCE OF ACCREDITATION OF VOTERS IN AN ELECTION PROCESS
Accreditation is a prerequisite of voting. This is because where votes and voters register are not marked and there was no accreditation and yet votes are returned for a particular voting unit, it can safely be concluded that such votes were obtained through faulty or suspicious process and will be regarded as invalid votes. Again where voters register had no marking but Form EC8A or EC8AI are produced showing some scores, such scores must be excluded from the votes scored or entered in favour of the candidate for being invalid votes. Thus, the production of voter’s card through a witness is sine quo non in proof of irregularity or otherwise in an election process. PER AMIRU SANUSI, J.C.A.
ALLEGATION OF NON-VOTING IN A PARTICULAR AREA: HOW A PETITIONER MUST PROVE AN ALLEGATION OF NON-VOTING IN A PARTICULAR AREA
in order to prove allegation of irregularity in election, especially where a petitioner alleges non-voting in a particular area, the best evidence to lead in proof of such allegation is that the petitioner must call a registered voter in the disputed areas or wards to show that they did not vote in the particular booth on the election date because there were no election officials and that no voting took place there but counting or announcement of results took place in the said wards on that day. This is necessary because by the provisions of Section 150 of the Evidence Act there is a presumption (albeit a rebuttable one) that election took place everywhere on the election day. See Nweke vs Ejims (supra); Nnaji vs Agbo (supra); Onoyom vs Egari (1999) 5 NWLR (Pt 603) 415, Buhari vs Obasanjo (supra). PER AMIRU SANUSI, J.C.A.
ALLEGATIONS OF NON-COMPLIANCE WITH ELECTORAL ACT : DUTY PLACED ON A PETITIONER WHO CHOOSES TO MAKE ALLEGATIONS OF NON-COMPLIANCE WITH ELECTORAL ACT AS A GROUND OF HIS PETITION
It is even trite law and it is well settled too, that where a petitioner chooses to make allegations of non-compliance with Electoral Act as a ground of his petition, he is duty bound to prove through credible, cogent and compelling evidence, that the alleged non-compliance was substantial and that it had or could in fact, affect the result of the election to his disadvantage. PER AMIRU SANUSI, J.C.A.
Before Their Lordships
AMIRU SANUSIJustice of The Court of Appeal of Nigeria
OLUKAYODE ARIWOOLAJustice of The Court of Appeal of Nigeria
AYOBODE O. LOKULO-SODIPEJustice of The Court of Appeal of Nigeria
Between
ZERIBE EZEANUAAppellant(s)
AND
1. CHUKWUKA ONYEMA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. RESIDENT ELECTORAL COMMISSION ANAMBRA STATE
4. ELECTORAL OFFICER OGBARU LOCAL GOVERNMENT AREA
5. RETURNING OFFICER OGBARU GOVERNMENT AREA
6. ASSISTANT ELECTORAL OFFICER OGBARU LOCAL GOVERNMENT AREA
7. HOPE OKWUOSA RETURNING OFFICER ATANI 1
8. EMMANUEL OBI RETURNING OFFICER OGWU IKPELE
9. RETURNING OFFICER OKPOKO 1
10. RETURNING OFFICER OKPOKO V
11. RETURNING OFFICER OKPOKO VI
12. SUPERVISORY PRESIDING OFFICER ATANI WARD II CHUKWUNYELU ONWUASOIGWE
13. SUPERVISORY PRESIDING OFFICER OCHUCHE/UMUODU/OGBAKUBA WARD
14. SUPERVISORY PRESIDING OFFICER OKPOKO WARD V. KINGSLEY AGBARAKWE
15. RETURNING OFFICER UMUNANKWO MPUTU WARD
16. SUPERVISORY PRESIDING OFFICER IYIOWA ODEKPE WARD
17. SUPERVISORY PRESIDING OFFICER OSSOMALA WARD TOBIA MADUAKOR
18. SOMTOCHUKWU UDEZE
19. DIVISIONAL POLICE OFFICER (DPO) OKPOKO
20. TRANSITIONAL CHAIRMAN, OGBARU L.G.A.Respondent(s)
AMIRU SANUSI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the National Assembly/Governorship and Legislative Houses Election Tribunal, Anambra State sitting at Awka, (hereinafter referred to as “the tribunal”) delivered on 10th May 2008 on Petition No. EPT/AN/NAE/HR/26/2007 filed by the appellant against the Respondents. In the said judgment the tribunal dismissed the Petitioner’s (now Appellant’s) Petition. Aggrieved by the decision of the tribunal dismissing the petition, the appellant appealed to this court vide a Notice of Appeal dated 30th May 2008 containing five grounds of appeal which are reproduced hereunder for ease of reference:-
The Learned Trial Tribunal erred in law in the application of the decisions of the Court of Appeal in Nweke v Ejims (1999) 11 NWLR (Pt 625)39; Nnaji V. Agbo 2 EPR 867 and Supreme Court decision in Buhari V. Obasanjo (2005) 13 NWLR (PT. 941) Page 1.
PARTICULARS OF ERROR
a. The trial Tribunal purportedly relying on the above decision held that the petitioner ought to have issued a subpoena on INEC when it failed to produce the register of voters upon the service of notice to produce.
b. It also held that the petitioner must produce register of voters in order to prove that there was no voting.
c. The Court of Appeal and Supreme Court in the above cases did not make such pronouncement.
GROUND TWO MISDIRECTION
The Learned Trial Tribunal misdirected itself and came to a wrong decision when it held that “we found it incredible and unbelievable that the DPO escorted the materials to Okpoko only to get there and said it was too late to distribute the materials and that he could not guarantee the security of the materials and then heeded back to Atani”.
PARTICULARS OF MISDIRECTION
a. The petitioner’s evidence that the DPO had to return back to Atani when he found it was too late for election was not controverted
b. The respondent did not call the DPO to discredit this piece of evidence,
c. There is nothing incredible in the line of evidence given by the petitioner involving the DPO.
GROUND THREE MISDIRECTION
The Learned Trial Tribunal misdirected itself and thereby came to a wrong decision when it held that: “it is unbelievable that the Electoral Officer postponed the election without consultation with his Superior Officers as there is no such evidence before us. Secondly, the circumstances under which an election could be postponed are clearly stated in Section 27(1) Election Act.”
PARTICULARS OF MISDIRECTION
a. There was no evidence before the Tribunal on whether or not consultation was not made by the Electoral Officer with Superior Officers before the election was postponed.
b. There is nothing in Section 27 of the Electoral Act that compels the Electoral Officer to secure the consent of his Superior Officers before canceling election where there was good ground for such cancellation.
c. The Tribunal accepted that election did not hold in ward 2 Okpoko.
GROUND FOUR – MISDIRECTION
The Learned Trial Tribunal misdirected itself and thereby came to a wrong decision when it held that: “he, however admitted that his agent returned some results from the field. He did not tender any of the result returned by his agents and did not tell this Tribunal how many result sheets were returned. We hereby hold that the admission of the petitioner is a clear confirmation that the materials including result sheets were distributed to the polling units, election were conducted and results returned except in Okpoko ward 2.”
PARTICULARS OF MISDIRECTION
a. The appellant pleaded specifically the areas where election took place and result sheets released.
b. The result sheets from these areas were pleaded.
c. The non-tendering of these result sheets cannot reasonable sustain the decision of the Tribunal that it amounts to admission that election took place in all the units except Okpoko ward 2.
GROUND FIVE – ERROR IN LAW
The Learned Trial Tribunal erred in law when it refused to apply the decision in Chukwuma Vs Anyakora (2006) All FWLR (pt. 302) 121.
PARTICULARS OF ERROR
a. The appellant never saw the alleged result declared by the 2nd-20th respondents until they were attached to their replies.
b. The only opportunity to attack the said result occurred when the respondents attached them to their replies.
c. The particulars of the similarities in the handwritings were sufficiently proffered by the petitioner to enable the Tribunal scrutinize them.
The facts which gave rise to the present appeal are summarized as follows: The Appellant who was the Petitioner at the tribunal, was nominated and sponsored by the All Progressive Grand Alliance (APGA) Party to contest on its platform, the election into the Federal House of Representatives for Ogbaru I Federal Constituency which was held on 21/4/2007. The 1st Respondent herein, also contested the same election and in the same constituency under the sponsorship of Peoples Democratic Party (PDP) and was declared and returned as duly elected by the 2nd Respondent, INEC, which is the statutory body charged with the responsibility of the preparation and conduct of such and other elections in the country. The 2nd to 17th Respondents were officers of the 2nd Respondent. The 17th Respondent was the Divisional Police Officer in charge of Okpoko Police Station while the 20th Respondent was the Transitional Chairman Ogbaru Local Government Area. The grounds of the Petitioner’s petition at the tribunal are that the election was invalid by reason of corrupt practices and or gross non-compliance with the provisions of the Electoral Act 2006 and also that 1st Respondent was not duly elected by majority of lawful votes cast at the said election.
The Petitioners/Appellants other claim at the tribunal is that the 1st Respondent arrived with the 2nd Respondent (INEC) officials and planned to disenfranchise the voters of the Ogbaru I Constituency and thereby denied them the opportunity to vote or have their votes counted. He said out of 123,000 voters for the Federal Constituency, Ogbaru I had 72,000 registered voters, that is to say about 60% as against Ogbaru II Constituency which had only 51,000 registered voters representing 40%. He said on the day of the election i.e 21/4/2007, election materials arrived too late at the Ogbaru I Federal Constituency leading to late commencement of the election and that the election did not even hold in many wards and also even in the wards where it took place, voting did not last for up to two hours so that many voters did not even have the opportunity of voting on that day. He said he reported such anomaly to the Electoral Officer and suggested that the election be postponed to another day but such suggestion was ignored.
The Appellant/Petitioner also complained that election materials for Ogbaru I Constituency were taken to Okpoko Police Station where all the candidates met with the Electoral Officers who assured that another scheduled date of the election would be announced later. He said to his utter dismay, results of the election were declared and the 1st Respondent was declared or returned as the winner inspite of the fact that election did not take place entirely in Ogbaru I constituency and other parts of the constituency and also in Ogbaru II and even where it held it was marred by gross malpractices, intimidation and distortion of facts.
Based on the allegations summarized supra, the Petitioner prayed the tribunal to determine the followings:-
(i) that no election for the Federal House of Representative was conducted in the entire Ogbaru I Constituency comprising these wards: Okpoko I, Okpoko II, Okpoko III, Okpoko IV, Okpoko V and Okpoko VI on the election day.
(ii) that no election for the House of Representatives was conducted in these wards:- Ogbaru II Constituency; Atani II, Ochuche Ogbakube Ogwu-Aniocha, Ogwu on 21/4/2007 or at any date at all.
(iii) that the 1st Respondent was not duly elected and returned and that his election was invalid, null and void
(iv) An order nullifying or setting aside the result of the said election.
(v) An order directing the 2nd Respondent to conduct election for the Federal House of Representatives seat in Ogbaru Federal Constituency.
On his part, the 1st Respondent in his Reply to the Petition at the tribunal, maintained that election for Ogbaru I Federal Constituency of Anambra State was held on 21/4/2007 and that it was conducted in substantial compliance with the Provisions of Electoral Act 2006. He also denied that there was any corrupt practices which vitiated or substantially affected the result of the election. He also claimed that election materials were not distributed rapidly and that voters voted and left for their respective homes adding that no stakeholder suggested the postponement of the election as there was no need for that. He said election was duly conducted in Ogbaru Federal Constituency on 21/4/2007 at the end of which the 1st Respondent emerged winner of the said election and was so declared and returned having scored the majority of lawful votes cast at the election. He thus denied all of the averment of the Petitioner in his petition.
Also on their part, the 2nd to 17th Respondents filed a Joint Reply and maintained that election duly took place on 21/4/2007 in Ogbaru Federal Constituency in substantial compliance with the Electoral Act 2006 and they also denied that there was any corrupt practices which vitiated the election. They also averred that election materials were distributed timeously to all the wards in the constituency before the election commenced and that after the conclusion of the election, the 1st Respondent who scored majority of lawful votes cast at the election was declared winner of same.
It is worthy of note that the Petitioner had filed a Petitioner’s Reply to the 1st Respondent’s Reply as well as to the 2nd to 17th Respondents’ Reply. At the pre trial session held on 22/10/2007, paragraphs 2 to 25 of the Petitioner’s Reply to the 1st Respondent’s Reply were struck out along with the additional statements on oath of witnesses which accompanied the said Reply. Similarly, on 2/11/2007 the tribunal vide its considered ruling also struck out paragraph 2-16 of the Petitioner’s Reply to the 2nd to 17th Respondents’ joint reply also along side with the statements on oath of witnesses that accompanied such Petitioner’s Reply.
At the trial proper, the Petitioner now appellant called nine witnesses including himself to testify in his Petition. The 1st Respondent called eight witnesses including himself and tendered some documentary exhibits. The 2nd to 17th Respondents called five witnesses and tendered some documents in evidence too. At the conclusion of the proceedings, the tribunal in its considered judgment dismissed the Petitioner’s petition for want of proof of the allegations made in the grounds of his petition, Dissatisfied with the decision of the tribunal, the Petitioner appealed to this court on the five grounds of appeal set out supra.
Parties filed and exchanged their respective briefs of argument in accordance with the rules and practice in this penultimate court. While the Appellant’s Brief of Argument dated 18/9/2008 was filed on 19/9/2008. The 1st Respondent’s Brief of Argument of the 2nd to 17th respondents dated 29/10/2008 was filed on 31/10/2008. The Joint Brief of Argument dated 2/10/2008 was filed on the same date. No Briefs of Argument were filed on behalf of the 18th Respondent and 20th Respondent, even though the Briefs of the Appellant, 1st Respondent and 2nd to 17th Respondents were served on them, they did not also participate on the hearing of the appeal before us on 23/3/2010.
In his Brief of Argument; the Appellant identified two issues for determination even though he failed to specifically state to which of the ground or grounds each of them is tied. The two issues are –
1) Whether the trial tribunal was right in holding that the Appellant woefully failed to discharge the burden of proof placed on him by law?
2) Whether on the particular circumstances of this petition, the tribunal was right in its application of the principles enunciated in the previous decisions of NWEKE VS EJIMS (1999) 11 NWLR (Pt 625) 39; NNAJI VS AGBO 2 EPR 867 and the Supreme Court decision in BUHARI VS OBASANJO (2005) 13 NWLR (Pt 941)?
It is noteworthy that the Appellant had on 27/11/2008 filed a process which he captioned “Appellants Reply on Points of Law to the 1st Respondent’s Brief dated 25/11/2008. He also on 15/10/2008 filed another process dated 14/10/2008 which he also titled as “Appellant’s Reply on Points of Law to 2nd to 20th (sic) Respondents Brief of Argument.’ One would have thought that he was referring to the brief filed by 2nd to 17th Respondents and not up to 20th Respondents, since as I said earlier 18th to 20th Respondents did not file any brief. I will later comment on these latter briefs of argument.
The first Respondent’s counsel having been served with the Appellant’s brief also filed a brief of Argument on behalf of his client on 31/10/2008 dated 29/10/2008. Therein, two issues were also identified for the determination of the appeal. The issues read thus-
a) Whether the tribunal properly applied the requisite in the proof of irregularity at an election (Ground I).
b) Whether the tribunal duly evaluated the evidence led in respect of the alleged non-holding of election in the Constituency. (Grounds II, II and IV).
Similarly, the 2nd to 17th Respondents in their Joint brief of argument proposed two issues for the determination of the appeal which are set out hereunder –
(i) Whether the trial tribunal was right in holding that the Appellant woefully failed to discharge the burden of proof placed on him by law
(ii) Whether in the peculiar circumstances of this petition. The tribunal was right in its application of the principles enunciated in the previous decisions of Nweke vs Ejims (1999) 1 NWLR (Pt 623) 39; Nneji vs Agbo 2 ERR 867 and Supreme Court decision in Buhari vs Obasanjo (2005) 13 NWLR (Pt 941).
These issues stated in the Joint brief have same wordings with those identified by the Appellant. They can therefore be said to have simply adopted the issues proposed by the Appellant.
Perhaps I need to stress here that at this stage, that the learned counsel for the 1st Respondent filed Preliminary Objection on 10/11/2008 and dated 15/10/2008. At the hearing of the appeal he argued his objection and informed this court that he argued same in his brief of argument. Since it has been decided in several authorities of this court and of the apex court too numerous to be mentioned here, that Preliminary Objection in an appeal should first be dealt with, before treating the substantive appeal. I shall first of all consider the objection by the Senior learned counsel for 1st Respondent before dealing with the appeal proper.
Arguing his Preliminary Objection the learned Senior Counsel for the 1st Respondent submitted that the Appellant did not present argument in respect of the fourth ground of appeal and as such the said ground of appeal should be deemed as having been abandoned by the Appellant. Reliance is placed on the decision in Nwugha vs Nwale (1992) 2 NWLR (Pt 225) 610 at 618. Expatiating on this, the learned silk submitted that the Appellant complained that the tribunal failed to properly evaluate the evidence led to support his complaints that:
(i) late arrival of election materials
(ii) that the Electoral Officer and other contestants held meeting at the INEC office and agreed to postpone the election and
(iii) that the results of election of Atani Ward were written in the home of 18th Respondent adding that these allegations were not controverted by the Respondents who failed to cross examine him and his witnesses and as such the should be deemed to have accepted those complaints.
The learned 1st Respondent’s senior counsel’s response on this is that there is nowhere in the Appellant’s brief where the Appellant proffered any argument on Ground No. 4 where such complaints were made. He remarked that by not arguing the point he raised on the forth ground, the Appellant is deemed to have abandoned it and as a corollary such ground should be struck out as having been abandoned. See the cases of Nwughe vs Nwale (supra); Henry Stephens Eng. Ltd vs Complete Home Ent. Nig. Ltd. (1987) 1 NWLR (Pt 47) 40 at 48; Chukwuogor vs Obuora (1987) 3 MWLR (Pt. 61) 454 at 479 and Melwani vs Feed Nalun at 592.
With regard to Ground of appeal No. 5, the 1st Respondent’s senior counsel submitted that the Appellant did not formulate any issue on the said ground of appeal and that he also did not proffer any argument on it and therefore the Appellant is deemed to have also abandoned it and the said ground is liable to be struck out. He urged that the ground 5 should also be struck out. On this submission, reliance was placed on the cases of Onuoha vs Nwabuew (2000) 48 WRN 84 at 91; Pacers Multi-Dynamics Ltd. vs MV Dunang Sisters (2000) 3 NWLR (Pt 648) 341; Odutola vs Kayode (1994) 3 NWLR (Pt 324)1 at 20.
In his response to the Preliminary Objection of the 1st Respondent vide the Appellant’s Reply on Point of Law to the 1st Respondent’s Brief dated 25/11/2008 but filed on 27/11/2008, the Appellant submitted that this court and the apex court have condemned proliferation of issues for determination. He stated that close study of his brief of argument revealed that the Appellant did not abandon any of the grounds of appeal he filed but rather, all the grounds of appeal he filed were encapsulated in the issues for determination he proposed and argued in his brief of argument. While urging that the Preliminary Objection filed and argued by the 1st Respondent be discountenanced, he opined that such objection is diversionary.
My Lords, now permit me to closely examine the two grounds of appeal now being challenged in the Preliminary Objection by the 1st respondent. Starting with ground number four, it is in my considered opinion that a close and dispassionate perusal of the said ground clearly shows that it simply relates to the evaluation of evidence by the tribunal particularly where it held that the non-tendering of the result sheets amounted to a decision that election were held in all the units except Okpuko Ward 2. This and other findings of the tribunal were the complaints of the appellant on this ground of appeal. Also the fifth ground of appeal had no much difference with the fourth ground on its purport. It also had relation to the evaluation of evidence tendered at the trial by the tribunal especially on its alleged refusal to apply the principle laid down on the decision of Chukwuma v Anyakoro (Supra). It is well settled law that where no issue(s) is raised on a ground or grounds of appeal such ground or grounds of appeal are deemed abandoned. See Bendel vs Aideyen (1989) 4 NWLR (Pt 118) 646 at 665; Onuoha vs Nwabueze (2001) 48 WLRN 84 and it is equally trite that issue for determination must be raised within the purview of the ground(s) of appeal. See Owosago vs Adebanjo (1988) 4 MWLR (Pt 88) 275 at 2803; Eze vs Federal Republic of Nigeria (1987) 1 NWLR (Pt 51) 506 at 521/522. Any issue not formulated from ground or grounds of appeal such ground or grounds of appeal is/are liable to be struck out as it is/they are deemed to have been abandoned. See Okwe-junior vs Itakeji (2008) 5 MWLR (Pt 1079) 172. Similarly, where a ground of appeal is not covered by an issue for determination set out in the brief of argument such ground of appeal is also deemed to have been abandoned and also should be struck out. See Ngiaere vs Mothercat Ltd (1999) 13 NWLR (Pt. 636) 626; Ugo vs Obiekwe & Anor (1989) 2 NWLR (Pt 99) 566; Sha (Jnr) vs Kwan (2000) 8 NWLR (Pt 670) 685; Alh Animashaun vs University College Hospital (1996) 10 NWLR (Pt 476) 65 or (1996) 12 SCNJ 179; Nkedo & Ors vs Ofoiano & Anor (1997) 5 NWLR (Pt 503) 31 or (1997) 5 SCNJ 23; Godwin vs The Ife Christ Apostolic Church & Ors (1998) 12 SC 1 or (1998) 12 SCNJ 213 and many other cases.
As I said supra, both grounds 4 and 5 in the Notice of Appeal filed by the appellant relate to evaluation of evidence or proof of the case. They also partly relate to whether the tribunal was right: in its judgment that he (as the petitioner) failed to prove his petition before it through credible evidence. The two issues formulated by the appellant for the determination of the appeal are centred on burden of proof placed on him by the law and on evaluation of evidence by the tribunal as enunciated in the cases cited in the 2nd issue for determination, which were relied on by the tribunal. To my mind therefore, it will not be correct to say that the said issues have no bearing whatsoever with the fourth and fifth grounds of appeal. I am of the firm view that the two grounds can be said to have been incorporated, encapsulated or subsumed by the two issues for determination even though the appellant failed to marry the issues to his grounds of appeal in his brief of argument as explicitly done by the learned senior counsel for the first Respondent who beautifully did same in his Brief of Argument.
For the foregoing reasons, I am unable to agree with the 1st Respondent’s senior counsel that no issue was proposed or raised from the said two grounds of appeal or that no argument was proffered on any or both of them. The said two grounds are adequately covered by the two issues for determination raised in the appellant’s brief and are therefore competent and sustainable. I will therefore refuse to discountenance or strike them out. The Preliminary Objection lacks merit and I accordingly over rule it.
Having now dealt with the Preliminary Objection, I shall consider the appeal proper. A cursory look at the issues raised by the appellant and the Respondents clearly show that they are not dissimilar. In fact, issues raised in the two briefs of the parties are similar though differently couched. Both of them centre on burden of proof and on evaluation of evidence. The appeal will be considered on the issues raised in the appellant’s brief in view of their elegance. The two issues will also be considered together.
The Appellant submitted that at the trial he testified as PW 9 wherein he adopted his deposition which he complained about the arrival of election materials on 21/4/2007 at 3.35pm at Atani INEC Local Government Headquarters and also that the materials meant for Ogbaru I Constituency got to Okpoko Police Station at about 6.45 pm and by 8.30 pm the election could not hold. He said he also deposed that Electoral Officer at INEC office at Atani did hold meeting with all contestants and it was agreed at that meeting that the election be postponed till a later date. He said these pieces of evidence were corroborated by his other witnesses and such evidence were not challenged or contradicted by the respondents. In a further submission, the Appellant posited that the 18th Respondent who was one of the agents of the 1st Respondent in whose house he said that the results of Atani Ward II were written, did not defend the allegations made against him denying his allegation. He argued that facts not specifically denied are deemed to have been admitted. See National Investment Properties Ltd vs Thompson (1969) NRNLR 99; Alh. Muhammed Sanusi Daggash vs Hajia Fati Ibrahim Bulama & Ore (2004) 14 NWLR (Pt 892) 144 at 234. On his allegation that a meeting was held between the Electoral Officer and parties candidate (minus the 1st Respondent) where it was agreed that election did not hold in the six wards of Ogbaru I state Constituency (Okpoko), he said he was not cross examined on such allegation that the Electoral Officer moved the election materials to the 1st Respondents house where the results were written and therefore it is deemed to have been accepted. See Hon. Kress Njikwuemani vs Engr Victor Ochei & Ors (2004) 15 NWLR (Pt 895) 196 AT 226; Issac Gaji vs Emmanuel D. Paye 14 NSC QR (Pt 1) 614 at 629; Oforlate vs The State (2000) 14 NWLR (Pt 892) 144 at 240; MIA & Sons vs FHA (1991) 8 NWLR (Pt 209) 295 at 313; Azeez vs The State (1986) 2 NWLR (Pt 23) 541; AG Oyo State & Anor vs Fairlakes Hotels Ltd (1985) 5 NWLR (Pt 92) 1.
On the second issue, it was the submission of the learned counsel for the Appellant that the 3rd to 5th Respondents were served with notice to produce and certification of materials used in the conduct of the election of 21/4/2007 but they failed to do so. He said the tribunal was therefore wrong when it held that it was the duty of the Appellant to produce the voters register and that the Respondents’ failure so to do, that such failure on the Respondents to produce could not lead to the invocation of Section 149(d) of the Evidence Act. He said the tribunal was wrong to have relied on the decision of Buhari vs Obasanjo (supra) on this, as that case was decided under the old rules of Practice and procedure unlike in the instant or current procedure where depositions are accompanied by depositions of intending witnesses while filing petitions thereby placing all necessary evidence on the table oft he tribunal. He said the three cases relied on by the tribunal are inapplicable to the present position or circumstance of this case. He also argued that in Buhari vs Obasanjo’s case (supra) what were in issue were results which appeared to be in the possession of the Appellant and which he could have given secondary evidence where the Respondents refused to produce them on notice, but in the instant case he (the Appellant) was not in possession of the voters registers and other classified documents in the custody of the Respondents needed by the petitioner to prove his case. He said unlike in Buhari vs Obasanjo’s case, he was not in position to adduce secondary evidence, adding that Section 94 of the Evidence Act presupposes a situation where the person making the demand is in possession of secondary evidence of the document demanded.
In a further submission, the Appellant argued that the tribunal at the trial upheld the Respondent’s Counsel’s objection against his tendering video recording of the state of Voters Registers recorded by him at the INEC office after the election on the ground that Voter’s Register being a public document only certified copy of it was admissible. He said by the tribunal’s stance on that, he was denied the opportunity of presenting what could have been a secondary evidence of the Voter’s Register to prove that election did not take place in the whole of Ogbaru I State Constituency and in most places in Ogbaru II Constituency. He said in the circumstance he was expected to do the impossible which the law always frowns at. The learned Appellant’s counsel also submitted that right from the on set, the Respondents knew that they would be required to produce the originals of the documents adding that by Section 98 of Evidence Act, even Notice to produce can be dispensed with, where from the nature of the case the adverse party knew he would be required to produce the original as in the instant case with regard to the Voters Register, right, from 18/6/2007 when the notice was served on them and from the circumstances of the matter. He finally concluded his argument by submitting that the tribunal wrongly relied on the three cases mentioned supra and that such error occasioned a miscarriage of justice on him.
Replying, the learned counsel for the 1st Respondent submitted that by virtue of the provisions of Sections 135, 136 and 137 of the Evidence Act the Appellant as Petitioner at the tribunal and as the person who asserted the existence of facts in his petition had the burden to take such facts by leading credible evidence, failure of which his petition must fail and be dismissed. He said such burden shifts to the Respondent if he proved such facts. See Adegoke vs Adibi (1992) 5 NWLR (Pt. 242) 410; Buhari vs Obasanjo (supra). He also submitted that where the allegation supporting the petition is purely on civil matter, the standard of proof is on preponderance of evidence, but if the allegation are criminal in nature then the standard is one of proof beyond reasonable doubt See Nwobodo vs Onoh (1984) 1 CNLR 1. The learned silk for the 1st Respondent submitted that in this instant case the Appellant claimed that voting did not take place in the entire Ogbaru I Constituency comprising Okpoko Ward 1 to Okpoko Ward 6 and that skeletal election held in some areas in Ogbaru II Constituency. He said to prove this allegation the Appellant is alleging some irregularities in election process and therefore must prove some basic rules which he failed so to do. See Nnaji vs Agbo (2006) 2 EPR 867 at 890, 891. Onoyom vs Egari (1999) 5 (Pt 603) 415; Nweke vs Ejims (supra); Buhari vs Obasanjo (supra).
The learned silk further submitted that the Appellant called no witness who tendered his voters card which could be compared with the voter’s registers in order to establish that he was registered to vote. Also no witness was called who was an agent at the polling booth where votes were counted and recorded in the results forms. See Hashidu vs Goje (2003) 15 MWLR (Pt 843) 352 at 393. He further argued that the Appellant did not establish how and why Buhari vs Obasanjo’s case and other cases relied on by the tribunal were not relevant adding that those decisions were endorsed by this court in case decided under the present dispensation. See Buhari vs INEC (2008) NWLR (Pt 1078), Abubakar vs Yar’adua (2008) NWLR (Pt 1078); Sullivan Chime vs Barr. Okey Ezeh & Ors unreported decision of Enugu Division of this Court delivered on 11/7/2008 in Appeal No. CA/E/EPT/19/2008.
Then on the Appellant’s submission on the alleged failure by the tribunal to properly evaluate the evidence he led on late arrival of election materials, the alleged agreement between the Electoral Officer and other contestants of postponement of the election and his allegation that election results for Atani Ward II were written in the house of 18th Respondent who he said failed to defend the petition all of which he said the evidence he led in their proof were not challenged, the learned 1st Respondent’s senior counsel submitted that evidence abound that result sheets were duly returned in all wards in the Constituency except Okpoko Ward 2, adding that it is not true for the Appellant: to say that his evidence on the alleged late arrival of election materials was not challenged. He referred to a portion of the record where the Appellant contradicted what he stated in his statement on oath with regard to the alleged late arrival of election materials. See Oluma vs Onyema (1996) 1 NWLR (Pt 443) 449 at 457; Mogaji vs Cadbury. (Nig) Ltd (1985) 2 NWLR (Pt 7) 393; Onubogu vs. State (1974) 9 SC 1; Esangbeda v. The State (1989) 4 NWLR (Pt. 113) 57. The learned silk further submitted that all the cases cited and relied on by the Appellant on the consequences of alleged failure to cross-examine him are inapplicable and irrelevant adding that the tribunal had duly analysed the entire evidence of the Respondents witnesses and ascribed probative value to them as well as the result sheets tendered. See Oyegoke vs truguma (2002) 5 NWLR (Pt 760) 437 at 443; Gkwara vs Gkwara (1997) 11 NWLR (Pt 527) 160; Ojukwu vs Kalne (1997) 19 NWLR (Pt 522) 613.
Again on the issue raised by the Appellant that meeting was held with all candidates where it was decided that the election be postponed, the learned 1st Respondent’s counsel submitted that PW 2A who testified on that admitted that he was not present when the postponement was agreed upon. He said PWs 5A, 7A and 8A were discredited while RW 15A in whose office the meeting allegedly took place was not examined on that issue by the Appellant when he testified. See Gaji vs Paye (supra) Amadi vs Nwosu (1992) 5 NWLR (Pt 241) 273 at 284.
In a further submission on this, the 1st Respondent’s counsel observed that the Appellant did not produce copy of any letter in which he claimed he made a request for the postponement of the election or any document to confirm or support the assertion that the alleged postponement of election was agreed upon. With regard to the allegation by the Appellant that the results in Atani II Ward was written in the home of 18th Respondent, the 1st Respondent’s senior counsel submitted that such allegation even amounts to criminal offence of forgery which the Appellant must prove beyond reasonable doubt. See Section 138(1) of Evidence Act; Famurori vs Agbeke (1991) 5 NWLR (Pt 189) 1 at 13; Folari vs Cole (1990) 2 NWLR (Pt 133) 445 at 454, He therefore argued that the silence of the 18th Respondent could not be regarded as an admission since it is the Appellant’s duty as his accuser to prove his guilt which he failed so to do. He argued further that even if the standard of proof of that allegation is that on balance of probabilities, it is trite law that in election petition where allegation is made that registered voters did not cast their votes, the allegation must be proved by concrete evidence. See Rotimi vs Faforji (1999) 6 NWLR (Pt. 606) 305 Okoji vs Ngwu (1992) 9 NWLR (Pt. 263) 13 Uwaifo vs Uwaifo (2004)3 NWLR (Pt.913) 475, Ojo vs. Azama (2007) 4 NWLR (Pt 702) 57. He said the Appellant did not call any direct evidence on what actually happened at 18th Respondent’s chouse where he said the results were recorded as he himself in his testimony stated under Gross examination that he was not there to see what had happened. This therefore falls short of what is required by Section 77 (1) (a) of the Evidence Act on oral evidence which must be direct and positive. See also Ojo vs Gharoro (1999) 8 NWLR (Pt 615) 3746-, Yahaya vs Oparunde (1997) 10 NWLR (Pt 523) 126 at 133.
He said on this allegation, the Appellant simply relied on what he was told which is hearsay evidence which no reasonable court can act or rely on. Therefore, having failed to prove this allegation, it is deemed to have been abandoned and in that case there is no duty on the Respondents at all, to offer or produce any rebuttal evidence.
Replying to the Appellant’s arguments on these two issues, the learned counsel for the 2nd to 17th Respondents submitted in his joint brief of arguments that both his client and the 1st Respondent have denied all the allegations in the petition in their respective Replies and in the testimonies of the witnesses they called at the trial and such denials are complete. See Sheikh Ahmed EI-Tijani vs Ibrahim Saidu & Ors (1993) 1 NWLR (Pt 268) 246 at 258/259 – 260. He referred to the Respondent’s denial of the allegation of writing results of election in the 18th Respondent’s house adding that such denials can not be said to amount to admission in law as insinuated by the Appellant in his Brief of Argument. He said before a court decides whether there is an admission in statement of defence or Reply to a petition or not in an averment, it must consider the entire pleadings of the parties as a whole. See the cases of AG Anambra State vs Onuselogu Engr. Ltd. (1987) 4 NWLR (Pt.66) 547. Titiloye vs Olupo (1991) 7 NWLR (Pt 205) 519; Ugochukwu vs Cooperative & Commerce Bank Ltd (1996) 6 NWLR (Pt 456) 52; Buhari v. Obasanjo (supra), Ngige vs Obi (2006) 14 NWLR (Pt. 998) 1 at 117. He also submitted that for an admission to be relevant, it must be gone that is, clear, unequivocal and not based on any misapprehension. He posited that where a defendant failed to specifically deny a statement in a Statement of Claim, such fact not denied should be deemed to have been established, without the need to call any evidence in proof of same. See Samson Ajibade vs Mayowa & Anor (1978) 9-10 SC 1 at 6; Eko Odume & Ors vs Ume Nwachi & Ors (1964) 1 All NLR 329; Akintola vs Braimoh Balogun (2000) 1 NWLR (Pt. 642) 532 at 545. The learned, counsel referred to the testimony of the Appellant where he, during cross examination, stated that he did not visit the 18th Respondent’s house where the results were allegedly written and agreed that his evidence on that was hearsay and thus inadmissible under Section 77 of Evidence Act as it was not direct and positive by a person who saw what was alleged to have taken place happening. He added that such evidence could thus not be believed or accepted by the tribunal as it was unreliable.
See, Asuquo v. State (1975) 9-11 SC.
On the tribunal’s resolve to apply the principles enunciated in the cases of Nweke vs Ejima (supra), Nnaji vs Agbo (supra) and Buhari vs Obasanjo (supra), he argued that the Appellant failed to establish his allegations of invalid election by corrupt practices or gross non compliance with the provisions of the Electoral Act 2006 or that the 1st Respondent was not elected by a majority of lawful votes cast at the election. He said all the witnesses called by the Petitioner/Appellant did, not substantiate those allegations of non voting, corrupt practices, irregularity or forgery of votes at ballot boxes he alleged the 18th Respondent did. See ANPP vs Usman (2008) 12 NWLR (Pt 1100) 22. Haruna vs Moclibbo (2004) 16 NWLR (Pt 900) 487 at 551/552. In yet another submission the learned counsel submitted that the facts in this case are similar with those in the case of Nnaji vs Agbo (supra) as in this case the Petitioner also alleged that elections were not held in some areas and in few areas where it took place there were irregularities hence the 1st Respondent did not secure majority of lawful votes to be declared winner of the said election. He said in this situation, in order to prove such allegation, the Petitioner/Appellant must call the voters to show that they did not vote in the disputed areas on the said election, dates because there were no electoral, officials present and that voting, counting or announcement of results took place in the disputed wards on that day. This the Appellant failed to do. See Onoyom vs Egari (1999) 5 NWLR (Pt 603) 416 at 425.
With reference to the case of Nweke vs Ejims (supra) it was submitted that the tribunal rightly applied that case to the instant situation and decided that the 1st Respondent was the winner of the election. Similarly the learned counsel submitted that in this case as in Buhari vs Obasanjo’s case, the Appellant predicated his Petition on corrupt practices and non-compliance with Electoral Act. He said in this instant case like in Buhari’s case, the Appellant failed to prove his allegations even though he had the burden to do so. He said this case and Buhari vs Obasanjo’s case have similar facts as both of them border squarely on burden of proof hence the tribunal rightly applied the decision in Buhari’s case in order to determine this instant case.
I have closely perused the Appellant’s Reply Brief to the 1st Respondent dated 25/11/2008 and filed on 27/11/2008 and observed that in the said Reply Brief it was only in the last paragraph of the brief where he replied to the Preliminary objection, all the other arguments are mere repetition or further expatiation of what the Appellant argued in his main brief. It is trite law that Appellant Reply brief is always targeted at, meant or used to only meet fresh or new argument raised in the Respondent’s brief of argument. Reply Brief should not be aimed at fine- tuning or further arguing or expatiation of issue(s) or raising additional points or argument on the arguments advanced earlier in the Appellant’s main brief. The fresh arguments raised in the said brief are hereby discountenanced and discarded by me. They are of no moment.
The Petitioner’s (now appellant’s) petition before the tribunal is virtually hinged on two grounds, namely –
(a) That the election is invalid by reason of corrupt practices and gross non compliance with the provisions of the Electoral Act 2006
(b) That the 1st Respondent was not duly elected by majority of lawful votes cast at the election.
By way of expatiation the Petitioner (now appellant) stated or claimed that the 1st Respondent was not elected by a majority of lawful votes cast at the disputed election. He also claimed that the 1st Respondent connived with INEC (2nd Respondent to disenfranchise 72,000 voters in Ogbaru I Constituency (Okpoko) who were not chanced to vote and have their votes counted. This also applied to other voters in Ogbaru II where voting materials were alleged to have arrived late; as such election did not hold in those areas. This according to him led him to complain in writing to the Electoral Officer and suggested that the election in those areas be postponed but that suggestion, was not accepted. He also claimed that results were announced or declared in Ogbaru I Constituency and other places where according to him election did not take place at all.
As I posited above, the Petitioner in order to establish this catalogue of allegations before the tribunal, called nine witnesses including himself to testify. As can be discerned from some of the grounds of the Petitioner it can be said that it was bordered on irregularity in the conduct of the said election and electoral malpractices and of course, non-compliance with the provisions of the Act. By virtue of the provisions of Sections 136 and 137 of the Evidence Act, the person who asserts has the onus to prove. Where a Petitioner makes some wide range of allegations of facts, fails to prove such allegations then the court or tribunal has the right to throw away his case on those facts. See Kalgo vs Kalgo (1999) 6 NLR (Pt 608) 639; Eboh vs Oguejiofor (supra). It needs to be stressed here also, that where the allegations leveled by the Petitioner border on criminal offence or offences, the standard of proof of such criminal act(s) or electoral offences is beyond reasonable doubt. See Ezeduwo vs BVEC (1999) 3 NWLR (Ft 594) 215, Wulgo vs Bukar (1999) 3 NWLR (Pt 596) 539. The burden of proof of such allegation is always on the asserter eg. the Plaintiff or Petitioner in election matters. This, he can only do, through calling or by adducing credible evidence. If he fails to do so, his case would obviously fail. But on the other hand if he succeeds in leading credible and admissible evidence to prove his pleaded facts, then he can be said to have discharged the burden placed on him by law. Thereupon, the burden then shifts to his adversary i.e defendant or respondent in election matters, who will then lead evidence to prove that the facts established by evidence adduced would not on the preponderance of evidence result in giving judgment in favour of his adversary i.e plaintiff or the petitioner in election matters. See Adegoke vs Adibi (1992) 5 NWLR (Pt 242) 410, Buhari vs Obasanjo (supra); Nwobodo vs Onoh (supra)
Now in this instant appeal, let us consider the evidence adduced by the Petitioner at the tribunal now Appellant in proof of the series of allegations he made and see whether such evidence were credible enough to entitle him to judgment. Or to put in another way, to see whether from the evidence led or adduced by him, he had satisfactorily proved irregularities in the conduct of the election, corrupt practices, non-compliance with the provisions of the Electoral Act, non voting in some of the wards mentioned or forgery of votes at the house of 18th Respondent.
Starting with the allegation of non voting in Ogbaru I Constituency which covers Okpoko Wards 1 – 6 and part of Ogbaru II Constituency. PW I testified that voting did not take place in Ogwuikpale Ward, which is one out of 16 Polling units. He did not say he visited any of the Polling booths on the election day. He admitted that he was told that people did not vote at 3.40 pm. No evidence was therefore led by the Appellant regarding the remaining 16 wards in this constituency. PW 2 who testified on Ogbaru Local Government said he did not know the number of wards in the area and admitted that he did not visit the polling booths on that day even though, he said election, materials were not distributed to those polling booths. He denied knowing the DPO or visiting his office on that day. Therefore, his evidence in his statement of Oath about his alleged discussions with the DPO in the latter’s office could not be true, and deserves to be ignored. He denied discussing anything with DPO and he said it was his party’s candidate who did so. He admitted that what he stated in his statement on oath on what happened at the Police Station was what his candidate told him. PW3 claimed that election did not take place in Ogbaru I Constituency but did not say in which of the wards election did not hold. In one breath he stated that he did not know the polling booths or their locations in Okpoko. He was silent on any discussion in DPO’s office too. PW4 who claims to be a registered voter, tendered his voters card which he claimed to have used for the election on 21/4/2007 but when asked he collected it he said he did so in 2008. He appeared to be an impersonator. PW 5 stated that no election took place in Okpoko Ward II and in the entire Ogbaru I Constituency. In one breath he said he did not know the number of polling booths in Ogbaru Local Government Area. PW6 was withdrawn by the Petitioner after giving his particulars at the trial. He said he stayed at the Custom’s Barracks till 7pm hence could not know what took place in other polling units of the Area. PW7 claimed to be a Presiding Officer for Polling Booth No. 003 also known as AK Para Polling Unit in Okpoko Ward II. He later admitted that no polling booth with such name or number existed. His testimony clashed with that of PW5 on their address of abode i.e No, 1 St. Leoanga Street, Okpoko, as he claimed that PW5 lied when he said he also lived there. PW8 who claimed to be INEC Ad hoc staff did not substantiate that fact and he falsely claimed that he was served a subpoena before making his statement on oaths.
The Appellant testified as PW9 and last petitioners’ witness. His testimony is predicted on lies, half truth and in some cases based on hearsay. For instance, the Appellant that all he said in his statement on oath on what he did in INEC office at Atani I between 7 am to 3.45 pm such as suggesting to INEC officers to postpone the election were done by his agents and not by him.
It is instructive to note that as Petitioner, the as Petitioner, the Appellant and his witnesses did not lead credible evidence to prove the alleged non holding of election in Ogbaru I and part of Ogbaru II. No witness was called by the Appellant to tender his voters card for purpose of comparison by the tribunal with the voters register so as to ascertain whether he was registered to vote. It is the practice that in the process of election, accreditation process must be done before the election, which entails the stamping of voters card and the marking of the voters register. Accreditation is a prerequisite of voting. This is because where votes and voters register are not marked and there was no accreditation and yet votes are returned for a particular voting unit, it can safely be concluded that such votes were obtained through faulty or suspicious process and will be regarded as invalid votes. Again where voters register had no marking but Form EC8A or EC8AI are produced showing some scores, such scores must be excluded from the votes scored or entered in favour of the candidate for being invalid votes. Thus, the production of voter’s card through a witness is sine quo non in proof of irregularity or otherwise in an election process. Therefore, in order to prove allegation of irregularity in election, especially where a petitioner alleges non-voting in a particular area, the best evidence to lead in proof of such allegation is that the petitioner must call a registered voter in the disputed areas or wards to show that they did not vote in the particular booth on the election date because there were no election officials and that no voting took place there but counting or announcement of results took place in the said wards on that day. This is necessary because by the provisions of Section 150 of the Evidence Act there is a presumption (albeit a rebuttable one) that election took place everywhere on the election day. See Nweke vs Ejims (supra); Nnaji vs Agbo (supra); Onoyom vs Egari (1999) 5 NWLR (Pt 603) 415, Buhari vs Obasanjo (supra). Again, the Appellant herein did not call any of his agents at the booths where votes were counted and recorded in the result forms. All the witnesses called by him were not even sure of the locations or identity of the booth in the wards. Some of them did not even say they were in any of the polling booths where they alleged elections did not take place and most of them also including the Petitioner himself, relied on what they were told or what they heard from other people. To my mind, the correct, best, qualitative and not credible evidence that the Appellant as Petitioner should have called to proof these allegations are those from his agents who received the forms from electoral officials or polling officers and who were present when the electoral officials prepared and signed the forms in which the disputed results were recorded. This was never the case here. The Appellant/Petitioner herein alleged that no election was held in some areas and that there were malpractices. He however did not lead evidence to establish those allegations even though, as I said supra, the burden was on him to prove such allegations. The burden of doing that could not shift at that stage since no credible evidence was led in proof of those allegations. It is even trite law and it is well settled too, that where a petitioner chooses to make allegations of non-compliance with Electoral Act as a ground of his petition, he is duty bound to prove through credible, cogent and compelling evidence, that the alleged non-compliance was substantial and that it had or could in fact, affect the result of the election to his disadvantage. This, I am afraid, the Petitioner/Appellant failed to do hence the tribunal was right in holding as it did, that the Petition was not proved by the Appellant before it dismissed it.
It is noted by me that the learned counsel for the Appellant queried the tribunal’s resolve to apply the cases of Nweke vs. Ezema (supra); Nnaji vs Agbo (supra) and Befaari vs Obasanjo (supra). By his submission, the learned counsel opined that the tribunal was in gross error in applying such cases for the following reasons.
(i) That the cases mentioned supra were not decided under the Electoral Act 2006 where the filing of Statement on Oath had been introduced
(ii) That in the instant case no order was made for the production and certification of voters registers;
(iii) Unlike in those cases result of election were not in the custody of the appellant;
(iv) That in the instant case the tribunal ruled that only certified copies of voters register were admissible being public document and that his attempt to tender video tapes to show the state of the register of voters was rejected.
I have gone through the three cases relied on by the tribunal. The facts in those cases which led to the reliance on them by the tribunal are apt and relevant to the surrounding circumstances of this case too and are therefore applicable. The three reasons given by the Appellant in objection to their application and reliance on them by the tribunal are in my view porous and unconvincing. In the first place though it may be true that they were not decided under the present dispensation to say that because of that, they are irrelevant to the instant appeal is to say the least naive and myopic. In fact the new system of front loading makes it even easier that in the old dispensation with regard to the register of voter which was not front loaded by the petitioner. That notwithstanding, the Appellant could still initiate the process of compelling the, production of the registers. At least the Appellant might have used same process to produce the voters card of his witnesses who claimed they could not vote as well as the other documents he front loaded. With regard to the rejection of his video tape in evidence by the tribunal, I think that is in line with provisions of Sections 109, 111 and 97 of the Evidence Act which insist that only certified copies of public documents are admissible in evidence. See Nzekwii vs Nzekwii (1989) 2 NWLR (Pt. 104) 373; Umogbai vs Ayenibiobe (2002) FWLR (Pt 132) 192 at 198. As regards the contention of the Appellant that the results were not in his custody, I think nothing still prevents the Petitioner/Appellant from compelling INEC to produce the results even if he can not front load them.
Thus, to my mind, the Appellant failed to show cogent reason why the three cases relied on by the tribunal were irrelevant and inapplicable to the situation in the instant case. It is even noted by me, that some of the said decisions were even applied in some decisions of this court during the present dispensation or in some cases decided under the Electoral Act 2006. Some of these decisions include Abubakar vs Yar’Adua (2008) NWLR (Ft 107*) and Buiari vs INEC (2008) NWLR (Pt 1078).
It must be emphasized here and it is trite law too, that by virtue of the provisions of Sections 115, 148 and 149 of the Evidence Act, there is a rebuttable presumption that the result of any election declared by returning officer is correct and authentic and the burden is always on the person who denies the correctness of the return to rebut such presumption. See Abibo vs Tanimo (1999) 4 NWLR (Pt 599) 334. In the petition before the tribunal the Appellant failed to lead credible evidence to prove his allegations. The tribunal was therefore right in holding that the Appellant failed to prove the burden of proving his allegations in his, petition before it.
I have stated earlier in this judgment and I will repeat here, that the burden of proof in election cases is governed by the provisions of Sections 135 to 139 of the Evidence Act. He who asserts must prove. By Section 135 of the Evidence Act, whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist. In the case of Jang v. Dariye (2003) 15 NWLR (Pt 843) 436 at 467 this court held thus-
“A plaintiff must succeed in the preponderance of the evidence led and/or on the strength of his own case, not on the weakness of the defence evidence he finds in the evidence of the defence facts which strengthens his case”
See also Ajadi v. Ajibola (2004) 16 NWLR (Pt 898) 91. The Supreme Court re-emphasised on this principle in the recent case of Sokwo vs Okpongbo (2008) 7 NWLR (Pt 1086) 342 as on page 362, it stated as follows:
“It behooves on a party to give testimony in support of his pleading if he wants to succeed in his case. It is a cardinal principle of law that he who asserts must prove his case with credible and unchallenged evidence. In civil cases, a party who wishes to succeed in obtaining judgment in his favour must adduce such evidence for such cases are decided on preponderance of evidence and balance of probability.”
Permit me to stress here, that the requirement of proof in civil case or in election petition to discharge burden on him to prove his case on preponderance of evidence can not be waived. Where a petitioner, as in this case, failed to discharge the burden which squarely lie on him to prove his case, then proper judgment will ultimately be given in favour of the respondent. See Ayeni vs Adesino (2007) 7 NWLR (Pt 1033) 233 at 265. It is my resolution therefore that in the light of the evidence adduced by the Petitioner at the tribunal, I am of the firm view that the Petitioner now Appellant, had failed woefully to prove his case and the tribunal was also right when it arrived at its conclusion that he failed to discharge the burden on him and ultimately dismissed his petition.
It is worthy of note that the learned Appellant’s counsel complained on the tribunal’s resolve to apply the principles enunciated in the cases of Nnaji vs Agbo (supra) Nweke vs Ejims (supra) and “the supreme Court’s decision in Buhari vs Obasanjo (supra), I partly dealt with this point earlier in this discourse. In any case, to my mind, the three cases had to do with evaluation of evidence and/or burden of proof vis a vis the type of evidence/witness a petitioner would be required to lead in proof of his allegations before it, I shall briefly comment in the three cases cited above even at the expense of being repetitive. It is noted by me that it is part of the complaints of the Petitioner and even a ground in his petition that elections were not held in some named areas of his constituency. He did not call any voter or voters to tell the tribunal or testify that they were at the polling booths in the unit and yet have not voted there, perhaps due to absence of election officials or materials. No voter’s card was used or voters register was tendered for purposes of comparison by the tribunal. In Nnaji’s case the petitioner fell into similar trap hence the tribunal held that he failed to prove what he asserted. In this instant case the PW 1 called by the Petitioner/Appellant claimed that no election took place in Ogwuikpele ward. No evidence that he visited any ward at all. PW 2 did not disclose any ward that he visited, ft is the same with PWs 3, 5, 7, 8 and even PW 9 the Petitioner himself, whose testimony was largely hearsay. I think in view of the similarity of the two scenario in the situations of the two cases the tribunal could not be faulted in applying the principles enunciated in Nnaji’s case to the situation in the instant case before it.
As regards the other two cases of Nweke vs Ejims (supra) and Buhari vs Obasanjo (supra), I have earlier stated his grouse on the tribunal’s application of the principles enunciated in these two cases and had given reasons counter to those given in the petition on their applicability or otherwise to the instant situation. For purpose of emphasis, the reasons given by the Petitioner/Appellant on his inability or would it be failure to tender the voters register etcetera, are porous and untenable. He had better and simpler opportunity to produce them in the present dispensation as provided by the new Practice direction and the electoral law i.e. Electoral Act 2006 even more than in the old dispensation under Electoral Act 2003 under which Buhari vs Obasanjo’s case was decided. Contrary to the Appellant’s stance that the results of the election were not in his custody for him to be able to tender same in evidence, I think that is a lame excuse, since with the innovation of front loading under the new dispensation could avail or facilitate his production of all the vital documents and tender them in evidence if he had exercised little or more diligence. The tribunal registry could also have assisted him to produce or copy and certify the documents, especially results sheets already supplied by INEC (the 2nd Respondent). It is also pertinent to re-state here that Buhari’s case had been applied by this court subsequently in cases decided under the present dispensation under the Electoral Act 2006. See Abubakar vs Yar Adua (2008) NWLR (Pt 1078) and a host of other recent decisions.
Now let me deal with the issue of evaluation of evidence made by the tribunal, it can be discerned from the Petitioner’s petition that his grouse or complaints are (1) late arrival of election materials (2) the alleged reneguing of the alleged decision to postpone the election by the Electoral Officer at INEC office and (3) that election results of Atani ward were written in 18th Respondent’s house. The Appellant insisted that the evidence he led in proof of these allegations were neither contradicted nor challenged. On the alleged late supply of election materials, the Appellant as petitioner in his statement on oath is to the effect that he was at INEC office Atani from 7.00 am to 3 pm. But under cross examination he stated that he arrived at INEC office Atani at 3.45 pm along with the Electoral Officer and it was that time that the election materials were distributed. Later during cross examination he ate his words to say that he was never at Atani INEC Office before 3.45 pm and that what he told the tribunal about what happened in INEC office was narrated to him by his, agents. He even said that whoever stated that he was at INEC office Atani by 7 am was not telling the truth. The evidence given by his other witness on this issue was not better than his, as they also contradicted themselves. Their evidence was even worse than his. On the other hand the testimony in the statement on oath by the Respondents through RW15A and under cross examination was to the effect that election materials were distributed to all the wards and elections were held except in one ward. The tribunal accepted as true and ruled rightly too in my view, the evidence of RW 15A on the fact that lie was never confronted on any alleged meeting in his office directing materials to be returned to Atani or that election was held there and results recorded or produced, as such evidence was not contradicted with regard to a meeting where it was agreed that election be postponed as alleged by the Petitioner/Appellant. PW 2 called by the Petitioner, denied being present at the meeting. The other witnesses called by the Petitioner/Appellant namely PWs 4, 5, 7 and 8 who testified on the alleged meeting and alleged resolution to postpone the election, contradicted themselves materially on that issue hence the tribunal rightly discarded their testimonies in view of the apparent contradictions and also because an Electoral officer could not have out rightly ordered the postponement of any election without approval of his superior officers. In any case, RW 15A was not cross examined on that piece of evidence hence his testimony is deemed to have been accepted. See Gayi vs Paye (supra). Again, the Appellant did not even tender the letter of protest or request of postponement he allegedly wrote and submitted to the INEC officials, even though in his own testimony he stated that it was delivered by his agent. The Appellant also alleged that results of election in Atani II ward were written in 18th Respondent’s home, that allegation has criminal flavour and amounts to forgery which must be proved by the Petitioner even though he argued that failure to call 18th Respondent is admission on the part of the Respondents. To my mind, the allegation of production of results in somebody’s house is a criminal allegation which must be proved beyond reasonable doubt by the Petitioner who made such assertion. It is trite law that where a commission of criminal offence is alleged in a petition, the Petitioner or asserter must prove it beyond reasonable doubt. See Ezedwo vs INEC (1999) 3 NWLR (Pt 5954) 8 215; Debar vs Zagi (1999) 5 NWLR (Pf 601) 114; Wulgo vs Bukar (1999) 3 NWLR (Pt 596) 539. In the instant case, the Appellant did not discharge such burden and the tribunal had correctly evaluated the evidence before it in concluding that the allegations were not proved. I too do not share the Appellant’s opinion that the silence of the 18th Respondent on the allegation could be taken as admission of the alleged fact that results were recorded in his home. Since he (the Appellant) himself under cross examination, confirmed that he was not in the house of Somtochukwu Udeze, the 18th Respondent to witness what had happened, adding that election materials for Ogbaru I Constituency were actually distributed.
It is my considered view that the tribunal had duly considered the entire evidence adduced in the case by the parities and had duly evaluated same before arriving at its conclusion dismissing the petition of the Petitioner for his failure to prove, it. It properly evaluated the entire evidence. It is trite law that where evaluation of evidence is properly done by a trial court or tribunal, an appellate court can not re-evaluate it acting under Section 15 of the Court of Appeal Act 2004. See the case of B. Mantag Nig. Ltd. vs M/S O.L. Ltd (2007) 14 NWLR (Pt. 1053) 109 at 139. Evaluation of evidence and the ascription of probative value to it as I understand them are primarily within the precincts of the function of the trial court which had the opportunity of seeing, hearing and watching the behaviour of the witness or- witnesses when testifying before it.
Where a court unquestionably evaluates the evidence and assesses the facts, all that an appellate court is to do in that situation on appeal is simply to verify it, if there is evidence on record to support the findings of the trial or lower court which the latter court could have acted on. Once the record shows that credible evidence abound which the trial court based its findings on, then the appellate court can not interfere or disturb such findings. In as much as there is proper evaluation before a finding of fact is made by a trial court then the trial court has performed its primary duty or function, hence the appellate court is duty bound to respect and uphold the findings and should avoid disturbing it. In the instant case, the evaluation of the evidence by the tribunal is proper and perfect, as such would not warrant any interference by this court. See Golday Co Ltd. vs. CDB Plc (2003) 5 NWLR (Pt.814) 586; Ezekwesili vs Agbapunwu (2003) 9 NWLR (Pt: 825) 337. The resultant effect of my discourse above is that the two issues raised by the Appellant which I considered together supra are resolved against him.
On the whole, the appeal is in my view, unmeritorious and therefore fails. It is accordingly dismissed by me. The decision of the National Assembly and Legislative Houses Election Tribunal, Awka delivered on 10th of May 2008 in Petition No. EPT/AN/NAE/HR/26/2007 is hereby affirmed. Cost assessed at N300,000.00 is awarded against the Appellant to the 1st Respondent only.
OLUKAYODDE ARIWOOLA, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, SANUSI JCA, His Lordship dealt with all, the salient issues raised in the appeal. I am in entire agreement with the reasoning therein and the conclusion arrived thereat.
I abide by the consequential orders in the said lead Judgment including the order on costs.
AYOBODE O. LOKULO-SODIPE, J.C.A.: I have the privilege of reading in advance the Judgment of my learned brother, AMIRU SANUSI, JCA. I am in complete agreement with His Lordship’s reasoning and conclusions. I have nothing to add. I also abide by all orders made by my learned brother in the Judgment including the order as to costs.
Appearances
B.S. Nwankwo EsqFor Appellant
AND
Dr. Ohyeehi Ikpeazu SAN with Ben Osake
O. Osaze Uzzi with S.O. Ibrahim, N. Frank Megwa Mrs and O. IkorohaFor Respondent
