Felix Nbanefo Nwoko vs Sen.patrick Osakwe Anor CA-b-ept-206
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Transcript of Felix Nbanefo Nwoko vs Sen.patrick Osakwe Anor CA-b-ept-206
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After adoption of written addresses the Honourable Chairman and
members of the tribunal gave judgment on the 28th
day of May 2008
dismissing the petition.
The relevant part of the judgment reads thus I quote -
"From these pieces of evidence given by the Petitioner and his
witnesses, it is crystal clear that this evidence is at variance with
the pleadings of the Petitioner highlighted above. And where
such is established as in the instant case, the evidence will be
regarded as of no value and liable to be discountenanced. On
this see the case of OKOLO VS. DOKOLO (2006) ALL
FWLR (PT.336) 201, where the Supreme Court held inter alia
that:
"If the evidence is at variance with the pleadings,
such evidence will have no value. It will be
discountenanced because it is contrary to the issues
joined and therefore goes to no issue worthy of'd . "conSl eratlOn .
We further observe that these pieces of evidence vitiates
proceedings because of the material contradictions contained
therein. This is the position of the law expressed by the Court
of Appeal, per Abba-Aji JCA, in the case of ADMIN
GENERAL AND PUBLIC TRUSTEES, DELTA STATE VS.
OGOGO (2006) ALL FWLR (PT 293) 256 where it was held
thus:
"F or contradiction in evidence of witnesses to
vitiate a court proceedings, it must be material
contradiction which strikes at the basis of the case
and sufficient to raise doubt in the mind of thecourt and not merely trivial."
It should be noted that the basis upon which the declaration of
the 15t Respondent as winner of the Delta North Senatorial
District election of 29/4/07, is the result declared by INEC, and
it is the same results that are being attacked by the Petitioner
who and his other witnesses decided to portray themselves to
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the Tribunal as double-faced, blowing cold and hot water at the
same time. This goes to show that the witnesses do not have
mind of the court, not only in relation to the alleged fabrication
of results, but also in relation to the entire evidence adduced by
the Petitioner, regard being had to the nature of the onus placedon him by law in proving his case.
On the issue of postponement which is covered by paragraphs
11,12,13,14 and 15 of the petition, it is trite law that change of
the voting period of election does not constitute non-
compliance with any provision of the Electoral Act 2006. See
the case ofBUHARl VS. !NEC (supra) where it was held that:
"Section 28 of the Electoral Act provides thatnothing in any particular election under the Act
should take place at the same day and time
throughout the Federation. Section 26 provides
that Independent Electoral Commission shall
appoint the date on which the election to the
officer of the President and Vice-President shall
hold. While Section 27(1) of the same Act
provides that the commission can postpone the
Presidential Election and other elections set out in
Section 26 for reasons set out in Section 27, and
the postponement may relate to either the whole
country or a part of the country as may be
determined by the commission. A Community
readings of those Sections shows clearly that the
1st Respondent can fix the date and time for the
Presidential election and change same. Moreover,
a change of voting period of election throughout
the Federation do not constitute a non-compliance
with any provision of the Electoral Act. It couldonly be said to constitute an amendment to the
manual for the elections officials for 2007".
With this position of the law in mind, the 2nd
_20th
respondents
can only be said to be acting in good faith and within the ambit
of the law when they postponed any election, unless contrary
intention is established. In the instant case, the Petitioner going
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by the evidence he adduced has not been able to establish lack
of good faith when regard is had to the nature of the evidence
which, to out mind, fell short of the required standard.
In view of all that has been said above, the petitioner has notbeen able to make out a case against the Respondents
warranting any rebuttal. The serious nature of the allegations of
non-conduct of elections and the burden of proof placed on the
Petitioner is very weighty and cannot be discharged by merely
bringing witnesses to say that they spent the whole day in those
wards and that there was no voting. In this regard see the case
of PRINCE CHIJIOKE V. NNAJI VS. PRINCE GODDY
AGBO &ANOR (2006) EPR VOL.2 867, where the Court of
Appeal held thus:
"No doubt the allegation of the Petition that
elections did not hold in 17 wards out of the 26
wards in the constituency is a very serious one and
the burden of proof on the Petitioner is very
weighty and it is not what he can so easily
discharge by only bringing people to say that they
spent the whole day in those wards and that there
was no voting and the burden of proof will then be
shifted to the respondents to show that there was
voting, accreditation, counting of cotes and the
announcement and tendering the voters' register
which is a public document which the petitioner is
expected to subpoena the Electoral Commissioner
to produce so that he could prove his case. If this
is the case, anyone can easily raise such a ground
in his petition and then sit back and leave the
Respondents to struggle it out and show that there
was an election".
In the above case, the effect of section 150 of the Evidence Act
as it applies to cases similar to the instant case was highlighted
as follows:
"In the instant case, by virtue of section 150 of the
Evidence Act there is presumption that elections
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were duly conducted in all the wards including the
disputed areas and that all the conditions for valid
elections were duly met, it is therefore incumbent
on the Petitioner to call the voters to show that
they did not vote in the disputed wards on the saiddate because there were no electoral officials
present and that no voting counting or
announcement of results took place in the disputed
wards on that day".
Generally, a defendant is not bound by law to call witnesses to
establish his defence where a prima facie case has not been
proved by plaintiff. This position was pronounced in the case
of ARABAMBI VS. ADVANCED BEVERAGES IND. LTD(2006) ALL FWLR (Pt. 295) 581, where it was held that:
"A defendant is not bound by law to call witnesses
to establish his defence where a prima-facie case
has not been proved by plaintiff, but that position
is valid only if prima facie case has not been
established by the party in whose favour judgment
will be given if he fails to adduce.d "eVl ence .
In line with the authorities cited above, we do not deem it
necessary to delve into the merit or demerit of evidence
adduced by the Respondents in defence of their case.
From the foregoing, it is our candid view that the Petitioner has
failed to establish his case as required by law. Accordingly,
this petition is hereby dismissed. No order as to cost".
It is against this judgment that the Appellant filed 12 grounds of Appeal
quoted hereunder without particulars.
GROUND ONE (1) ERROR-IN-LA W
Learned Chairman and Members of the trial tribunal erred in law
when they claimed the invitation to examine and scrutinize the
contents of exhibits 2-22 and 24 on the ground that the request runs
counter to the provisions of paragraph 4 of the Practice
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GROUNDS TWO (2) ERROR-IN-LA W
Learned Chairman and Members of the tribunal erred in law and
occasioned a miscarriage of justice when they discountenanced the
appellant in invitation to examine the signatures on the exhibits
purportedly prepared by the 3rd_17th Respondents with theirsignatures in their written statements on oath in order to determine
their authenticity as baseless on the authority of onwudinjo v. Dimobi
(2006) 1 NWLR (Pt.961) 318.
GROUND THREE (3) MISDIRECTION-IN-LA W
The trial tribunal misdirected itself in law when it held that
"Any issues connected to exhibit 39 is to our mind not of moment,
regard being had to the fact that such issues are hinged on nomination
of candidates which this court has already disposed of vide our ruling
of 12/12/07 and as such makes the tribunal functus officio over the
matter; for this reason the submissions are hereby discountenanced
accordingly"
GROUND FOUR (4) MISDIRECTION-IN-LAW
The Honourable Chairman and Members of the tribunal misdirected
themselves in law and thereby occasioned a miscarriage of justice
when they held as follows -
"Based on the various allegations contained in the petition of the
petitioner, coupled with the above laid down principles of lawapplicable thereto, it is our candid view that the complaint of the
petitioner over the conduct of the election in respect of Delta North
Senatorial District are criminal in nature and as such the standard of
proof required is proof beyond reasonable doubt".
GROUND FIVE (5) MISDIRECTION-IN-LA W
The Honourable Chairman and Members of the tribunal misdirected
themselves in law and thereby occasioned a miscarriage of justice
when they struck out paragraphs 8a, band f of the petition on the
ground that they constitute pre election issues over which they haveno jurisdiction.
GROUND SIX (6) ERROOR-IN-LA W
The learned trial Chairman and Members of the tribunal erred in law
and occasioned a miscarriage of justice when they held the evidence of
PW2-PW6 were hearsay and as such neither reliable nor admissible
and goes to no issue.
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GROUND SEVEN (7) ERROR-IN-LA W
The learned trial Chairman and Members of the tribunal erred in law
when they held that the pieces of evidence given by the petitioner and
his witnesses are at variance with this pleadings on fabrication of
results per paragraphs 21 and 24 of the petition and contain materialcontradictions.
GROUND EIGHT (8) ERROR-IN-LA W
The learned trial Chairman and Members of the tribunal erred in law
and occasioned a miscarriage of justice when they held as follows -
"It should be noted that the basis upon which the declaration of the 1st
Respondent as winner of the Delta North Senatorial District election
of 29/4/07 is the result declared by INEC, and it is the same results
that are being attacked by the petitioner who (SIC) and his other
witnesses decided to portray themselves to the tribunal as double
faced, blowing cold and hot water at the same time. This goes to show
that the witnesses do not have one particular direction to face.
Indeed, this will undoubtedly cast serious doubt in the mind of the
court not only in relation to the alleged fabrication of results but also
in relation to the entire evidence adduced by the petitioner regard
being had to the nature of the onus placed on him by law on proving
his case"
GROUND NINE (9) ERROR-IN-LA W
The Honourable Chairman and Members of the tribunal erred in law
when they after stating that change of voting period of election does
not constitute non-compliance with any provisions of the Electoral Act
2006 per the case of Buhari v. INEC (supra) held follows:
"With this position of the law in mind, the 2nd.20
thRespondents can
only be said to be acting in good faith and within the ambit of the law
when they postponed any election, unless contrary intention is
established. In the instant case, the petitioner going by the evidence
he adduced had not been able to establish lack of good faith when
regard is had to the nature of the evidence which to our mind fellshort of the required standard".
GROUND TEN (10) ERROR-IN-LA W
The Honourable Chairman and Members of the tribunal erred in law
and occasioned a miscarriage of justice when they held that the
petitioner had not been able to make out case against the
Respondents warranting a rebuttal.
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GROUND ELEVEN (11) ERROR-IN-LA W
The learned trial Chairman and Members of the tribunal erred in law
when they dismissed the petition on their candid view that the
petitioner failed to establish his case required by law.
GROUND TWELVE (12)
The judgment is clearly against the weight of evidence.
In line with the practice in the Court of Appeal briefs were filed and
exchanged by parties. When the appeal came up for hearing on the 28th
day
of April, 2009 Mr. G.C. Igbokwe learned counsel to the Appellant leading
other counsel identified the Appellant's brief dated and filed on 21/308 and areply brief dated and filed on 25/3/09. He adopted the briefs and relied on
the argument therein as his arguments in favour of the Appellant and urged
this court to allow the appeal.
Mr. Ohwovoriole leading counsel to the 1st Respondent identified his reply
brief attached to a motion dated 25/3/09. He adopted the brief as his
argument and referred the court to page 6 of his brief where he argued a
Preliminary objection.
He adopted and relied on the brief and urged the court to uphold his
preliminary objection and also dismiss the appeal. The learned counsel to
the 2nd_20th Respondents Mr. Ovraweah adopted his brief of 2nd
_20th
Respondents dated 6/2/09 and deemed filed on 25/3/09 also urging this court
to dismiss the appeal.
In his notice of Preliminary Objection the 1st Respondent has this to
say;
(I)That Ground 5 of the Appellant Notice of Appeal is
invalid and(2) That Issue one for determination formulated by the
Appellant is incompetent and liable to be struck out.
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The grounds relied upon by him are that:
(1) Ground 5 of the Appellant's Notice of Appeal does not
arise from the judgment appealed against by the
Appellant.
(2) Ground of the Appellant's Notice of Appeal is against an
earlier interlocutory Ruling delivered during the trial by
the tribunal
(3) Ground 5 of the Appellant's Notice of Appeal was filed
without leave of this Honourable Court.
(4) Issue one for determination formulated by the Appellantis incompetent.
(5) Issue one for determination formulated by the Appellant
is derived from the invalid Ground (5) of the Appellant
Notice of appeal.
Ground 5 of the Notice and grounds of appeal complained of reads thus I
quote -
Ground (5) Misdirection in Law
"Hon Chairman and Member of the tribunal misdirected
themselves in law thereby occasion a miscarriage of justice
when they struck out paragraph 8(a) (b) of the petition on
the ground that they constitute pre-election issues over
which they have no jurisdiction"
In support of his objection the 1st Respondent argued that-
Significantly, the Appellant did not appeal against the ruling of
the tribunal striking out the aforesaid averments in Paragraph
8(a), (b) and (f) of the Petition which relate to pre-election
matters within the 14 days period prescribed by section 24(2) of
the Court of Appeal Act 2004 for appeals to be lodged against
interlocutory rulings.
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In UMANAH f/ : ATTAH (2006) 17 NWLR (PT 1009) 503 at
536, Paragraphs C-E the Supreme Court held that where a
party fails to appeal against a finding or decision of a Court or
Tribunal, he is deemed by law to have accepted that decision.
Submit that the Appellant in the instant case is deemed to haveaccepted the ruling of the tribunal by which the averments in
paragraph 8(a), (b) and (f) of the petition relating to pre-
election matters were struck out. He is therefore estopped from
raising a complaint against the said ruling at this stage without
first seeking and obtaining leave of Court.
In JSC SERVICE LTD f/ : G.e. LTD (2006) 6NWLR (PT 977)
481 AT 505-506, Paragraphs G-A, the Court of Appeal held
that an Appellant who is desirous of incorporating Grounds ofappeal against interlocutory decisions in a notice of appeal
against the final decision of the court must first seek and obtain
the leave of court to appeal out of time; otherwise the Grounds
of appeal against the interlocutory decision would be
incompetent and liable to be struck out.
In the instant case, despite his failure and or refusal to appeal
against the interlocutory ruling dated 1ih
December, 2007
within the prescribed time as required by section 24(2) of the
Court of Appeal Act, 2004, the Appellant incorporated ground
five of his appeal complaining against the earlier interlocutory
ruling into his Notice of Appeal against the final judgment of
the lower tribunal delivered on 28th
May, 2008 without seeking
and obtaining leave of court.
He submitted that Ground 5 of the Notice of Appeal is
incompetent and liable to be struck out, for failure of the
Appellant to seek leave of court. See also OGBORU f/ :
IBORU (2004) 7 NWLR (PT871) 192.
ISSUE DISTILLED FROM INCOMPETENT GROUND 5 OF
THE NOTICE OF APPEAL LIABLE TO BE STRUCK OUT:
He submitted that Issue One formulated from Grounds 3 & 5
and argued by the Appellant having been distilled inter alia
from an incompetent Ground of Appeal i.e. Ground 5 is liable
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to be struck out. In A GBAKA V. AMADI (1998) II NWLR
(PT572) 16 at 24 E-G, the Supreme Court coram Ogwuegbu
JSC affirmed that:
" ... .... When a Ground of appeal is incompetent,any issue for determination based on the
incompetent Ground goes to no issue and should
be struck out as incompetent. It automatically
collapses when the Ground of appeal ceases to
exist ... JJ
ISSUES FORMULATED FROM ADMIXTURE OF BOTH
COMPETENT AND INCOMPETENT GROUNDS OF APPEAL ARE
LIABLE TO BE STRUCK OUT:
He further submitted that the situation cannot be remedied by
the fact that the Appellant purports to have distilled the said
Issue One from Grounds 3 and 5. Issues formulated from both
competent and incompetent Grounds of Appeal are liable to be
struck out. It is not the duty of this Honourable Court to
perform a surgical or judicial operation on argument
canvassed in respect of the competent Grounds of appeal by
separating the argument in respect of the incompetent Grounds
of appeal. See OBI-ODU Ii: DUKE (2006) 1 NWLR (Pt.961)
375 at 409, Paragraphs C-F and NGIGE J I : OBI (2006) 14
NWLR (Pt.999) 1 at165, Paragraphs D-H.
IN AYALOGU V. AGU (1989) 1 NWLR (Pt.532) 129 at 142,
Paragraphs H-A this Court also held that where an issue for
determination encompasses an offensive or incompetent
Ground of appeal, as in the instant appeal, the submissions on
that issue go to no issue and ought to be expunged.
It is therefore our submission that Issue (1) in the Appeal's
Brief of Argument is inextricably tied to arguments derived
from the incompetent Ground5 of the Notice of Appeal and
therefore the issue is tainted with the virus of incompetence.
We urge this Honourable Court to discountenance Issue on
formulated by the Appellants and the arguments adduced
thereto in the Appellant's Brief of argument.
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. .
In his reply the Appellant argued that the Preliminary Objection is
incompetent because both Respondent adopted the issues formulated by the
Appellant including Issue 1 which was distilled from Ground 5. He said that
they did not file cross-appeal. He said having adopted the issues formulated
from the grounds of appeal by the Appellant, the Respondent can not deal
with them in an inconsistent manner relying on the following cases IDIKA
V. ESIRI 1988 2 NWLR (Pt. 79) 563; EZE v. FRN 1987 1 NWLR (Pt
51) 506; EBO V. NTA 1996 4 NWLR (Pt 442) 314; CHIMA V. THE
STATE 1996 6 NWLR (Pt. 455) 465. He also argued that the law is andhas always been that when interlocutory decisions are made they are deemed
to be incorporated in the main and final judgment and be appealable upon as
a decision contained in the final judgment especially on issues on
jurisdiction and election petition. He also submitted that the Ground 5 and
Issue 1 being challenged border clearly on jurisdiction. He said that the
objection be dismissed.The 2nd_20th Respondent have no Preliminary objection. I must say
that the premises on which the objection is based is misconceived.
By virtue of Order 3 rule 22 of the Court of Appeal Rules a party who
is dissatisfied with a judgment and who appeals against if may raise a
complaint against any interlocutory order made by the trial court or tribunal
even though he has not appealed against that interlocutory order when it was
made. Thus a ground of appeal from a final judgment in an election petition
incorporating a complaint against an interlocutory decision given in the
course of a trial is competent. See UMANA V ATT AH (2004) 7 NWLR
(Pt 871) 63; AONDOAKAA V. AYO (1999) 5 NWLR (Pt 602) 206;
MADUAKO V. ONYEJOCHA (2009) 5 NWLR (Pt 1134) 259 at 276 C-
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.
E. Therefore the preliminary objective based on that premIse IS
misconceived and it is dismissed.
Looking at ground five quoted inter alia it is based on the issue of
qualification. In the particular of error the Appellant says, I quote:
" Issue of qualification of candidates are not pre
election matters over which the tribunal does not
have jurisdiction. The said paragraph concerns the
fundamental issue of whether or not the rt
Respondent was indeed a candidate at the election. "
The question is did the issue of qualification or eligibility arise from
the judgment? The answer is no. At page 595 of the Record, the tribunal
referred to the written address of the Appellant wherein he wrote as follows:
"For the avoidance of doubt the petition seeks to
abandon the issues of the rt Respondent'sdisqualification based on the grounds of bankruptcy,
membership of secret cult and criminal
From what one can deduct from the stance of the petition that the
issue of qualification is totally abandoned. However, having held that it is
abandoned. Let me quote the remaining part of paragraph 8 (a) and (b) of
the petition. I quote:
"The rt .Respondent was a full fledged card carrying
member of another party, the People Democratic Party as
a February 2007 where he contested the primaries, lost
and was challenging his defeat by PDP. He was only
expelledfrom PDP on 2i
h
May for Anti-party activities.
The rt Respondent's name was consequently not in the 2nd
Respondent's SENATE VERIFICATION REPORT of
Substituted candidates as a 20/02/07 therefore making him
an invalid candidate or no candidate at all for the said
election. "
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. .
The contents of this paragraph are clearly not matters for the tribunal
to decide I agree with them that paragraphs 8 (a) and (b) of the petition are
pre- election matters over which the tribunal had no jurisdiction.
Therefore, Grounds 3 and 5 and issue I distilled therefrom are of no
moment and therefore resolved against the Appellant.
ISSUES 2, 3 and 4 as distilled by the Appellant and argued by the
Respondent are as follows:
From the totality of pleadings and evidence led at the trial on
postponements of the election, whether the Appellant had
established non compliance with the provisions of the
Electoral Act sufficient to vitiate the purported electionand return of the 1st Respondent (Ground 9)
Whether the Honourable tribunal was right to refrain from
evaluating the documentary evidence (particularly exhibits 2-22
and 24-33) adduced at the trial in order to ascribe probative
value to them (grounds 1 and 2).
Upon a careful and dispassionate evaluation of the entire
pleadings and evidence led at the trial whether the Honourable
tribunal was right in holding that the Appellant did not make
out a case within the requisite stand against the Respondentswarranting a rebuttal (Grounds 4,6,7,8,10,11 and 12)
I must confess that I cannot see any reason why the three Issues
cannot be treated as one which is; the evaluation of evidence documentary or
oral when the judgment is based on only one issue which is 'that the election
when narred by manifest irregularities, corrupt practices and non-compliance
with the provision of the Electoral Act 2006 with the resultant effect that
there was no election at all in the Delta North Senatorial District.
The Tribunal concluded that the Petitioner had failed to establish his
case as required by law.
On Issue NO.2 the Appellant submitted that the issue of unwarranted
postponements of the election from 21/4/07 originally fixed for the election
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to 26/4/07 then to 28/4/07 and finally to 29/4/07. He argued that the
Respondents were not contesting the averment. The Appellant relied on the
case of BUHARI V. INEC AND SECTION 27(1) OF THE
ELECTORAL ACT 2006.
He submitted that it has been clearly established by the Appellant in
that the proof came in the circumstance of the Respondent not controverting
the allegation of the Petitioner nor the Respondent calling any witness. He
relied on AKANNI V. ODEJIDE (2004) ALL FWLR (PT 218) 827 at
page 857 C - E and other cases.
He submitted that if the tribunal had adverted its mind to
Respondent's for the proper standard in view of the totality of pleadings and
evidence and all the circumstances of it would certainly have cone to the
inevitable conclusion that the Appellant had proved non-compliance with S.
27 of the Electoral Act which non-compliance certainly affected the
outcome of the purported election and must vitiate the return thereon. He
urged the court to resolve the issue in favour of the Appellant. The 1st
Respondent in answer to Issue 2 argued that for the totality of pleading and
evidence led at the trial on the postponement of the elections, the Appellant
was in error. He argued that the INEC has the power to postpone election.
He said not a single witness testified that they had no notice of the election
held on 29/4/07 rather they testified that election did hold on that day. He
said: He argued that it was not PLEALDED or show how the provision of
the aforsaid Section were breached. Relying on BUHARI V. INEC (2008)
4NWLR (pt 1028) 546 at 660 B-H.
Address of counsel cannot be substituted for evidence. BAYO V.
NJIDA (2004) 8 NWLR (Pt 876 at 544. He urged the court to resolve issue
2 in favour of the 1st Respondent.
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The 2nd - 20th Respondents argued that the Appellant has failed to
show the manner in which the postponement of the date of election
constituted non-compliance when publicity was given to the postponement
and the publicity was effectual. Infact the Appellant admitted that is was
announced on the State Radio. They argued that the burden of proving how
the postponement affected the outcome of his election.
The Appellant had the burden to show how the postponement
adversely affected him. They urge the court to resolve this issue against the
Appellant. By virtue of Section 27 of the Electoral Act 2006, where a date
had been fixed for the holding of an election there is reason to believe that a
serious breach of the peace is likely to occur if the election is proceeded with
on that day or it is impossible to conduct the election as a result of natural
disaster or other emergencies, the commission may postpone the election
and shall appoint another date for the holding of the postponed election.
!NEe has a right to postpone elections.
See BUHARI SUPRA (2009) (pt 1130) NWLR 116. See also
APGA V. OHAKIM. It is in evidence that there are other contestants
including the 1st Respondent, the postponement generally affected all
candidates. From the totality of evidence adduced in the petition, there is no
valid reason why this issue should be resolved in favor of the Appellant as
he did not show how he suffered any setback in the election conducted on
29/4/07. The issue is therefore resolved against him.On Issue 3 the Appellant argued that the tribunal refrained from evaluating
the documentary evidence (Exhibits 2-22 and 24-33) adduced at the trial in
order to ascribe probative value to them.
The Appellant argued that his case at the tribunal was that there was
no election and that votes accredited to the 1st Respondent by the 2nd
- 20th
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Respondents were fabricated and to prove this certain documents mainly
statutory election forms were tendered (underlined mine for emphasis). He
argued that the Appellant urged the tribunal to compare the signature of the
makers of Exhibits. The tribunal misinterpreted paragraph 4 of the Practice
Direction. He argued that documentary evidence is the best evidence.
CITY AGBARAH V. MIMRA 2 NWLR (Pt. 1071) 378. He submitted
that the tribunal below was clearly in error in declining to evaluate and
consider the documentary evidence duly tendered and admitted without
objection when the exhibits in the instant case are capable on their own of
resolving the issue raised by the Petitioner. He relied on the case of
OMIGURE V. EMETUNBA (2008) 9 NWLR (pt 1092) 371 at 414 D-F
and SHELL DEVELOPMENT COMPANY LIMITED V. OFOKO
(1990) 6 NWLR (Pt 159) 693. He called on this court to exercise its power
under Section 16 of the Court of Appeal Act.
Let me say that the brief of the Appellant at page 18-22 seems to me
to be evidence rather than argument in favor of the appeal. He however
urged the court to resolve Issue 3 in his favor. The 1st Respondent in his
argument said that it is the duty of the Petitioner relying on Documents in
proof of his case to relate same to specific aspects of his case. He relied on
the case of INIAMA V. AKP ABIO 17 NWLR (pt 1116) 225 and EJOGU
V. ONYEGUOCHA (2006) ALL FWLR (p. 317) 467 at 490.
He concluded that a Petitioner must go beyond merely tendering the
documents and he must lead evidence of what he intends to use the exhibit
to establish. On this issue the 2nd - 20th
Respondents argued vehemently in
line with the 1st Respondent's submission and recommended the case of
EJOGUN V. UCHE ONYEAGUOCHA & ORS (2006) ALL FWLR (pt
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317) 467 at 490. He also urge the court to resolve the issue against the
Appellant.
In the case of INIAMA V. AKPABIO (2008) 17 NWLR
(Pt.1116) 225, the Appellant tendered bundles of documents butthere was no evidence to link any of them to the case of the
Appellant as presented. The Court of Appellant held that the
documents were worthless. The Court held further that a party
relying on documents in proof of his case must specifically
relate each of such documents to that part of his case in respect
of which the document is being tendered. It is not the duty of
the court to tie each of a bundle of documentary exhibits to
specific aspects of the case for a party when that party has not
done so himself. The foundation of the principle is that it is aninfraction of fair hearing for the court to do in the recess of its
chambers what a party has not himself done in advancement of
his case in open court. It is only after the link has been made
that the court is entitled to retire to chambers and examine the
documents carefully in light of the evidence led in respect
thereof and determine if the party alleging has made out a case.
GALADIMA JCA at 299, Paragraphs D-F stated as follows:
" .... Where a party (Appellants in the circumstances of
this case) has the burden of specifically relating or
linking each of the document to specific parts of their
case, it is inconceivable to argue that several bags or
bundles of documents that 'metamorphosed' into
exhibits 4-32(b) could just be dumped on the tribunal to
sort them out. Even if the Appellant's case is built on
affidavit evidence, the court can neither be saddled with
nor can it suo moto assume the partisan responsibility
of tying each of such huge bundle of documentary
evidence to specific aspects to the Appellant's case of
malpractices alleged in pleadings when they have notdone so themselves .... "
FABIYI, JCA in EJIOGU V. ONYEGUOCHA (2006) All FWLR (P.317) 467
at 490 stated as follows:-
"... The Appellant complained that there were
mutilations on the face of certain forms tendered by
Him. But the exhibits were not demonstrated before the
tribunal. A party relying on a document in proof of his
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case must specifically relate each of such documents to
that part of his case in respect of which the document is
being tendered. Such a duty should not be left to the
court in the recess of its chambers.
A party is under obligation to tie his document to facts
or evidence in the open court, not through counsels'
address: it is not part of the duty of a court to embark
upon cloistered justice by making enquiry into the case
outside the court, not even by examinations of
documents which were in evidence when such
documents had not been examined in the open court ... "
See also DR. STEPHEN ONWEJE V. MR. OTSE OTOKA & 6 ORS. (1999) 4
NWLR (Pt.600) 518, where this court reiterated the hallowed principle that a
petitioner must go beyond merely tendering the documents and he must lead
evidence of what he intends to use the exhibits to establish.
A court must Act on materials placed before it, III this case the
Appellant did not place any material before the tribunal, the exhibit referred
to were tendered without linking any to any piece of allegation made against
the Respondents. The evidence falls short of standard of proof placed on the
petitioner.
An appellate court can exercise the power to re-evaluate evidence. An
appeal court can do so where the trial court fails or neglects or refuses to do
so or does it in an improper way. The appeal court can embark on such re-
evaluation where for instance-
(a) the trial courts evaluation is clearly perverse
(b) the trial court drew wrong conclusion from the totality
of the evidence
(c ) The trial court applied wrong principle of law to
accepted facts in the case.
In other words it is not every circumstance that an appeal court will
have the liberty or re-assessing or re-evaluating evidence tendered before a
trial court. The duty of evaluating evidence belongs to the trial court. See
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ANYEGWU V. ONUCHE (2009) 3 NWLR Pt 1129, 659 Pp.675-676.
This issue is therefore resolved against the Appellant.
On Issue 4 The Petitioner complained that no careful or compassionate
evaluation of the entire pleadings and evidence led at the trial and quarried
whether the tribunal was not wrong in coming to the conclusion that the
Appellant did not make a case.
He submitted that the tribunal was wrong in law and in fact the way
and manner it evaluated the pleadings and evidence of the Appellant. He
argued that the tribunal applied a wrong standard of proof. The Appellant
called maid the case of OMOBORIOWO V. AJASIN (2003) 50 WRN
132. He argued that the allegation of crime did not form the bases of the
Appellants case and that the tribunal should have decided the case on the
balance of probabilities and or preponderance of evidence. He supported his
argument with authorities including AJADI V. AJIBOLA. He submitted
that Election petition cases require proof on the balance of probability or on
the preponderance of evidence on the part of the petitioner - such a burden
can be discharged by the evidence of a single witness without the need for
any corroboration. The petitioner in his argument put the proof that the
elections were held on the Respondents.
In conclusion he urged the court to allow the appeal, and set aside the
judgment of the lower tribunal, hold that the Appellants petition succeeds
nullify the elections order fresh election and disqualify the 1st Respondentfrom the said election. The 1st Respondent replied that it is settled that the
burden of proof is on the party that makes the positive assertion in respect of
a fact or event refer to S. 135 of Evidence Act. He argued that the only point
of Appellant's petition that the court tried was the criminal allegation and
that the evidence proffered by the Appellant in proof of criminal allegation
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was abysmal and without much ado the Appellant abandoned his bundle of
criminal allegation. He submitted that at all time the Appellant fail to
discharge the burden of proof which vested on him to prove his claim that
election did not hold. He referred to INEC v. RAY (2004) 14 NWLR
(Pt.892) 99 at 122.
He submitted that the tribunal evaluated the evidence adduced by the
Appellant's witness and held that the Appellant did not made a case. He
urged the court to dismiss the appeal of the Appellant and the ground.
The 2nd _20th Respondents argued that this issue formulated by the
Appellant is grossly misconceived and ought to be refused. He argued that
points canvassed by the Appellant had been abandoned. He argued that
allegation of the Appellant were criminal in nature as contained in section
124-138 of the Electoral Act 2006. He argued that none of the witnesses
tendered a voters card none of them was shown the result sheets. The 2nd
_
20th Respondent relied on the much battered case of BUHARI V. INEC
(supra) where it was held that the standard of proof in criminal allegation is
one of proof beyond reasonable doubt, same has been codified in Section
138 (1) & (2) of the Evidence Act. It needs not be pointed out that where a
petitioner, as in this case alleges electoral malpractices he has a duty to
prove the malpractice alleged and show that same affected the result of
election.
He submitted that the Appellant can not reduce the standard of proof.
He fully relied on BUHARI V. OBASANJO (2005) 13 NWLR (Pt.941) 1
at page 269 F-H where the Supreme Court held as follows:
"A plaintiff is entitled to lead evidence on a point in the
defendants pleading consistent with this principle is that
evidence elicited during is not inadmissible merely because
such evidence is not supported by the pleadings of the party
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eliciting the evidence. It suffices if the evidence is pleaded by a
party to the suit".
Without hesitation and much ado I agree with this authority and I am
fully bound by it. The 2nd _20th Respondent urged the court to dismiss the
appeal as lacking in merit. The Appellant is confused as to what his case
was. Was it that election did not hold at all or that the election was marred
by manifest irregularities, corrupt practices etc.
If there was no election how does corrupt practices and manifest
irregularities and non compliance come into the petition. As you lay your
bed so you lie on it.
It is now trite law that the burden of proof is on the petitioner who
alleges that election did not hold to lead evidence on all material facts
required to prove or make out a case or rebuttals by the other party. See
INEC V. RAY (2004) 14 NWLR (Pt.892) 92 at 122.
In BUHARI V. OBASANJO (2005) 13 NWLR (Pt .941) Page 1 at
209 the Supreme Court held as follows:
"Manipulation or alteration results is a criminal offence and the proof
required is high that is beyond reasonable doubt etc".
From the available records the lower tribunal was right to dismiss this
petition on the basis that the Petitioner had failed woefully to discharge the
onus of proof placed on him. His case was so weak that the Respondent
need not go beyond the limit they went.
The Supreme Court in the case of ANYEGWU V. ONUCHE (2009)
37 NSCCR 109 at 127 has this to say on what may influence a court in
ascribing Probative value to Evidence before it is the quality of the evidence
or document tendered. In achieving that, the trial judge has to have regard to
among other things the following -
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(1) Admissibility of the evidence
(2) Relevancy of the evidence
(3) Credibility of the evidence
(4) Conclusivity of the evidence
(5) Probability of the evidence in the sense that it is more
probable than the evidence of the other party and
(6) Finally after having satisfied himself that all the
above had been complied with, he shall now apply to
the to the situation presented in the case before him so
as to arrive at a conclusion in one way or the other.
This assignment is an exclusive preserve of the trial court.
It is settled principle of law that where a trial court has carried out its
assignment satisfactorily, an appeal court shall be left with no option but to
affirm such decision, to do otherwise will institutionalize what the
Appellant is complaining of that is miscarriage of justice Per LT.
Muhammad JSC at page 126 of Anyegwu's case supra.
In the light of above consideration the judgment of the lower tribunal
dismissing the Appellant's petition is affirmed.
The appeal of the Appellant is unmeritorious and it IS hereby
dismissed. Cost ofW30,OOO are awarded to the 1st Respondent.
COUNSEL
G.e. IGBOKWE ESQ for the Appellant with him MRS. ECHEBIMA,
D. ADODO ESQ, T.A. EMIRWA ESQ and F.T. EZEOKANORESQ.
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E.G. OHWOVORIELE ESQ with him A. ALOFOJE ESQ
for the 1st
Respondent.
O. OVRA W AH ESQ for the 2nd
_20th
Respondents with him are
M .. AGBIE ESQ and U.S. AMADI ESQ.
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APPEAL NO. CAIB/EPT/206/2008
JUDGMENT
{DELIVERED BY ALI ABUBAKAR BABANDI GUMEL, JCA}
I have had the privilege of reading in draft the judgment just
delivered by my learned brother SHOREMI, JCA.
I agree that this appeal lacks merit and it ought to be dis issed.
I also dismiss same and abide by the consequential order for
the lead judgment.
ALI ABUBAKAR BABANDI GUMEL,
JUSTICE, COURT OF APPEAL.
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APPEAL NO.CA/B/EPT/206/2008
CONTRIBUTION
{DELIVERED BY CHIOMA EGONDU NWOSU-IHEME (Ph.D), JCA}
Iagree.
CHIOMA EGONDU NWOSU-IHEME (Ph.D)
JUSTICE, COURT OF APPEAL