The supreme court judgment upholding the election petition of Hope Uzodinma and installing him as the elected governor of Imo state on Tuesday, January 14, 2020, has been very controversial, especially as the full text of the verdict is yet to be made public.
However, reproduced below is the dissenting judgment given by Frederick Oho at the court of appeal on November 19, 2019.
Although the five-person panel dismissed Uzodinma’s appeal, there are strong indications that Oho’s dissenting judgment formed the basis of the supreme court pronouncement that led to the removal of Emeka Ihedioha as governor and the swearing-in of Uzodinma in his stead.
WHAT WAS THE ISSUE?
In the March 9, 2019 governorship election, the Independent National Electoral Commission (INEC) declared the final scores as follows: Ihedioha (PDP) 273,404 (winner), Uche Nwosu (AA) 190,364, Ifeanyi Ararume (APGA) 114,676 and Uzodinma (APC) 96,458.
Uzodinma then approached the election petitions tribunal to argue that the results from 388 polling units were excluded from collation.He argued that the exclusion of his scores from the 388 polling units denied the him a total 213,695 votes due to him from scores contained in Forms EC8A (result sheets) issued at the polling units.
He argued that Iheodioha scored only 1,903 votes in those units.
Uzodinma’s lawyers got the tribunal to subpoena Rabiu Hassaini, the deputy commissioner of police (DCP) who supervised the security of the elections and is by law entitled to “duplicate originals” of the result sheets.
The tribunal accepted the “duplicate originals” as evidence but said Hassaini did not prove that he had the authority of the inspector general of police to testify before the tribunal and therefore rejected his testimony.
Uzodinma then headed for the court of appeal, where four of the judges ruled against him.
But Oho dissented and held that (1) the Forms EC8A from the 388 units were wrongfully excluded (2) Iheodioha’s lawyers did not prove that the results sheets were forged (3) the DCP got the subpoena through the office of the IGP and needed not be asked to prove that he had the IGP’s consent to testify.
Oho ruled: “It is also clear on the record that after the Appellants had explicitly set out in the Petition a schedule of all the polling unit results, which were allegedly excluded from collation at ward level by the 3rd Respondent (INEC), they led evidence through several witnesses to prove their case as contained in the Petition, by showing that, if those excluded votes scored by the 1st Appellant and those scored by the 1st Respondent (Ihedioha) in the 388 polling units are added to their respective scores of 96,458 and 258,259 votes, as declared by the 3rd Respondent (INEC), the outcome will show that the 1st Appellant (Uzodinma) won the Governorship election held in Imo State on the 9th of March, 2019 as the 1st Appellant’s votes will amount to a total of 310,153 votes whiles the 1st Respondent’s score will be a total of 260,162 votes.”
THE FULL TEXT
IN THE COURT OF APPEAL ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA ON TUESDAY THE 19th DAY OF NOVEMBER, 2019
BEFORE THEIR LORDSHIPS
OYEBISI F. OMOLEYE/JUSTICE, COURT OF APPEAL
STEPHEN J. ADAH/JUSTICE, COURT OF APPEAL
FREDERICK O. OHO/JUSTICE, COURT OF APPEAL
BALKISU B. ALIYU/JUSTICE, COURT OF APPEAL
ABUBAKAR M. LAMIDO/JUSTICE, COURT OF APPEAL
APPEAL NO: CA/OW/EPT/GOV/5/2019
BETWEEN APPELLANTS:
1. SENATOR HOPE UZODINMA
2. ALL PROGRESSIVE CONGRESS (APC)
AND RESPONDENTS:
1. RT. HON. EMEKA IHEDIOHA
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
DISSENTING JUDGMENT (DELIVERED BY FREDERICK O. OHO, JCA)
This Appeal and Cross Appeal is a fallout of the Judgment of the Governorship Election Tribunal (hereinafter referred to as “the tribunal”) sitting at Owerri Imo State, Nigeria and delivered on the 21st September, 2019 dismissing the Appellants’ Petition and upholding the election and return of the 1st Respondent by the 3rd Respondent as the Governor of Imo State following the Governorship Election conducted by the 3rd Respondent on the 9th March, 2019. The 1st Appellant and the 1st Respondent were the candidates of the 1st Appellant and the 2nd Respondent respectively, in the said election. There were sixty-eight (68) other candidates who also participated in the election.
Dissatisfied with the declaration and return of the 1st Respondent in the said election, the Appellants on 30th March, 2019 presented a petition questioning the said return on two main grounds namely, that:
1. The 1st Respondent was not validly elected by majority of lawful votes cast and;
2. The declaration and return of the 1st Respondent is invalid by reason of non- compliance with the Electoral Act. The reliefs Claimed in the Petition include nullification of the 1st Respondent and declaration of the 1st Appellant as the winner of the said election. (See pages 33-35 of Vol. 1 of the record).
Dissatisfied once again with the said judgment of the tribunal, the Appellants have appealed to this Court vide Notice of Appeal filed on 10thday of October, 2019. The said Notice of Appeal is at pages 3077 – 3114 of the Record of Appeal (thereinafter referred to as “the record”) while the judgment, the subject of this Appeal is at pages 2919 – 3064 of Vol. 4 of the record.
The gravamen of the case of the Appellants in a nutshell is that election held in the 27 Local Government Areas of Imo State; the 305 Electoral Wards and 3,523 polling units and that at the conclusion of the election, the 3rd Respondent collated results from 2,883 polling units; excluded results from 388 polling units and cancelled election results in 252 polling units. In addition, that the Appellants scored overwhelming majority in the 388 polling units, the result whereof the 3rd Respondent excluded from ward collation results (Forms EC8B) tendered as Exhibits in this case. It is also the case of the Appellants that the total votes due to the Appellants but unlawfully excluded from the polling units listed at pages 9 -27 of Vol. 1 of the Record is 213,695, while the 1st Respondent is entitled to 1,903 votes from the same 388 polling units.
Part of the case of the Appellants also is ‘that the 273,404 votes credited to the 1st Respondent from the result collated from 2,883 polling units across 27 Local Government Areas set out at pages 6 – 7 of Vol. 1 of the record of the Petition, is fraught with arithmetical errors and that a re-computation of same, based on polling unit results given to party agents (which results were tendered by the 1st Respondent), show that the actual score due to the 1st Respondent from the result declared in the 27 Local Government Areas of the State is 216,271 and not 273,404 wrongly declared by the 3rd Respondent and that it is upon this incorrect figure that the 1st Respondent was returned.
Apart from these, the Appellants also pleaded that not only did the 1stRespondent not score the majority of the lawful votes cast at the election, but also that he did not satisfy the mandatory Constitutional threshold requirement of spread across the state in that he did not score at least one-quarter of the total votes cast in two-thirds of the Local Government Areas of Imo State. (See page 5 of Vol. 1 of the record). There were other instances of non-compliance and irregularities pleaded by the Appellants. In response to this Petition, the Respondents separately filed their Replies to the Petition.
In seeking to prove their petition, the Appellants called 54 witnesses and tendered series of Forms EC8A, EC8B, EC8C, EC8D, and EC8E among other documents, while the 1stRespondent in his defence, tendered CTC of Forms, EC8A, EC8B, EC8C, and EC8D, and called four witnesses namely; RW1, RW2, RW3 and RW4. The 2nd Respondent called one witness, RW5, the INEC Officer in charge of logistics during the election.
ISSUES FOR DETERMINATION:
The Appellants nominated a total of five (5) issues for the determination of this Appeal thus;
1. Whether the tribunal was right when it expunged the evidence of PW54 and Exhibits PPP1-PPP366 tendered by him on the ground that he lacked the “competence” and “authority” to testify and tender the said exhibits. (Grounds 1, 2 & 3)
2. Whether the trial tribunal did not misconceive Appellants’ case on the pleadings when it held that the Appellants ought to have called polling unit agents “to testify as to the fact that election did take place in their respective polling units…” and the misconception accounted for the tribunal’s conclusion that the Appellants failed to discharge the burden of proof of their entitlement to the relief sought in the Petition.(Grounds 4, 6, 7, 8, 9, 10, 13, 14, 15, 16, 17,19, 20,21, 23, 24, 26, 29, 30, 31 & 32)
3. Was the trial tribunal not in, grave error which occasioned a miscarriage of justice when it suomotu referred to Petition Nos. EPT/GOV/IM/02/2019 and EPT/GOV/IM/03/2019 not placed before it and drew adverse inference against the Appellants without hearing them and whether the tribunal was not wrong in its failure to consider issues properly raised and argued by the Appellants thus presenting an appropriate occasion for the Court of Appeal to invoke and exercise its powers under Section 15 of the Court of Appeal Act. (Grounds 18 & 22)
4. Whether the trial tribunal was not in a grave error which occasioned a miscarriage of justice when it expunged the evidence adduced by PW11 and PW51 when not being a final court, the tribunal ought to have considered their evidence on the merit in the event of its decision being reversed on an appeal. (Grounds 5, 11, 12 & 28).
5. Whether the tribunal was right when it held that the Appellants did not establish their entitlement to the relief sought in the petition.(Grounds 25 & 27)
On the part of the 1st Respondent, a total of three (3) issues were nominated for the determination of this Appeal thus:
1. Was the lower tribunal correct to in its decision and classification of the oral and documentary evidence proffered by the PW11, PW51 and PW54? (Grounds 1, 2, 3, 5, 11, 12 and 28).
2. Whether the lower tribunal was not right in its decision on the need for the Appellants to have called polling units agents so as to succeed in the proof of the basis of the Petition? (Grounds 4, 6, 7, 8, 9, 10, 13, 14, 15, 16, 17, 19, 20, 21, 23, 24, 26, 29, 30, 31 and 32)
3. Considering the entire circumstances and facts at the lower tribunal, whether the said tribunal rightly came to the conclusion that the Petitioners did not establish entitlement to the reliefs sought in the Petition. (Grounds 18, 22, 25 and 27).
On the part of the 2nd Respondent three (3) issues were also nominated for the determination of this Appeal thus:
1. Whether the learned justices of the tribunal below were not right in law when they discountenanced and expunged from the records of the Courts the evidence of the PW11, PW51 and PW54 together with documents tendered by them as constituting hearsay and inadmissible. (Grounds 1, 2, 3, 5, 7 and 8)?
2. Whether the Appellants established their case as required by law before the tribunal below to entitle them to judgment (Grounds 6, 7, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 25, 27, 29, 30, 31, 32, 33)?
3. Whether the justices of the tribunal below were wrong in law where in determining the veracity and authenticity or otherwise of the case presented by the Appellants on the issue of exclusion of results from 388 polling units by the 3rd Respondent(Grounds 4, 12, 22 and 26)?
The 3rd Respondent on its part nominated a total of four (4) issues for the determination of this Appeal as follows:
1. Whether from the state of the law, the trial tribunal was right when it expunged the evidence of PW11, PW51 and PW54 respectively and refused to ascribe any probative value to the evidence of the PW11 and PW51 and Exhibits PPP1- PPP366 tendered by the PW54? (Grounds 1, 2, 3, 5, 11, 12 and 28).
2. Whether the tribunal was right when it held that the Appellants’ ought to have called polling unit agents to testify as to the fact that the election did not take place in their respective polling units? (Grounds 4, 6, 7, 8, 9, 10, 13, 14, 15, 16, 17, 19, 20, 23, 24, 26, 29, 30, 31 and 32.
3. Whether the reference to Petition Nos. EPT/GOV/IM/02/2019 and EPT/GOV/IM/03/2019 by the trial tribunal led to any miscarriage of Justice? (Grounds 18 and 22)
4. Whether the tribunal was right in holding that the Appellants were not entitled to any of the reliefs contained in paragraphs 34 and 35 of the Petition? (Grounds 25 and 27).
A careful perusal of the issues nominated across board for the determination of this Appeal by learned Counsel for the parties shows clearly that except for a few instances of differences in semantics, the entire issues are similar and revolve around the vexed question of the alleged wrongful exclusion of result of 388 polling units and also the vexed question of the alleged wrongful expurgation of the evidence of the PW11, PW51 and PW54 along with Exhibits PPP1-PPP366 tendered by the PW54. That being the position, this Appeal shall therefore be determined on the basis of the issues nominated by the Appellants.
It is important at this stage to take on the objection raised to the hearing of this Appeal following the application made by learned Senior Counsel of the 1st Respondent Onyechi Ikpeazu, SAN shortly before the hearing of this Appeal. Learned Counsel had observed that at page 3071A of the records, volume 4 the Appellants had filed a Notice of Withdrawal of an earlier Notice of Appeal which they filed on the 23rd day of September, 2019 at pages 3065 to 3071. Learned Counsel had contended that the consequences for so doing is that the Appeal becomes liable to be dismissed pursuant to Order 11 Rules 4 and 5 of the Court of Appeal Rules, 2016. Counsel therefore urged this Court to go ahead and dismiss this Appeal.
In his answer in opposition of the oral application made by 1st Respondent’s Counsel, D. O. Dodo, SAN drew Court’s attention page 3077 where the extant Notice of Appeal containing 33 Grounds have been pasted. He said that the extant Notice of Appeal was filed on the 10th day of October, 2019 and that presently there is no Notice of Withdrawal filed. He urged this Court to hear this Appeal on its merit.
Following the filing of a Notice of withdrawal by the Appellant, the appropriate order that such an action would have attracted is an outright dismissal pursuant to the extant Rules of this Court. However, after the withdrawal of the earlier Notice of Appeal and the subsequent filing of a fresh one on the 10th day of October, 2019 and the filing of briefs of argument by the Appellant and as well as the Respondents, there is a clear waiver of the rights of parties especially the Respondents who now deem it fit to take objections. In simple everyday language, waiver means the abandonment of one’s right or entitlement by condoning the breach or non- compliance with that right or entitlement in law. Waiver can either be expressed or implied See: EKE vs. ARPU (2010) ALL FWLR (PT.510) 640 AT 655-656 PARAGRAPHS F-B. The apex Court in considering the principle of Waiver in the case of AMAECHI vs. INEC (2008) 5 NWLR (PT 1080) 227 @ 449 C-D held inter alia that the Principle of Waiver:
“…is to the effect that where an action was commenced by any irregular procedure and a Defendant took steps to participate in the proceedings…he cannot later be heard to complain of the irregularity as a person will not be allowed to complain against an irregularity which he himself has accepted, waived or acquiesced”. Again in AGBAKOBA vs. INEC (2008) 18 NWLR (PT.1119) 489 @ 537-538 H-A, the Supreme Court held as follows:-“Where an action has been commenced by a procedure which is irregular; a party who took active part in the proceeding without raising a formal complaint to the irregular procedure cannot be heard later to apply to set aside the action on the ground of irregularity he acquiesced in”.
Arising from the foregoing, the oral application made by learned 1st Respondent’s Counsel fails and it is hereby refused. Appeal shall therefore be heard on its merit.
SUBMISSIONS OF COUNSEL: APPELLANTS:
ISSUE ONE:
Issue no. 1 is argued at pages 3-10 of the Appellants’ brief of argument to the effect that the tribunal erred in law when it expunged the evidence of PW54 and Exhibits PPP1-PPP366 tendered by him on the ground that he lacked the “competence” and “authority” to testify and tender the said exhibits. Under this issue, the Appellants challenged the portion of the judgment appealed against in which the tribunal reversed its ruling of 31stJuly, 2019 in which it had held that PW54 was competent to give evidence and tender the documents listed in the subpoena (Exhibits NNN1 – NNN18) served on him. The issue also questions the decision of the tribunal expunging the oral and documentary evidence of the said PW54 on the grounds that he had no competence and authority to give evidence and tender the documents tendered by him as he was on a frolic of his own.
Learned Appellant’s Counsel and SAN drew attention to the facts on printed record, which shows that the Appellants, in their bid to establish their case on 20th June, 2019, made an application to the tribunal for the issuance of subpoena on one DCP Rabiu Hussaini AP/No. 36579 of DC DOPS ZN4 Makurdi, Benue State, to be served on him through the office of the Inspector General of Police and that the subpoena commanded the said DCP. Rabiu Hussaini to give evidence on behalf of the Appellants and also to bring with him and tender all Forms EC8A, particularly those used in the polling units listed in the schedule thereto amongst other documents connected with the election in the custody of the Police. (See Pages 2273-2290 of Vol. 3 of the Record for the Appellants’ application for subpoena and the issued subpoena).
Counsel submitted that in obedience to the command of the trial tribunal, PW54 appeared in Court on the 31st July, 2019 and that the Respondents took objection to the competence of the PW54 to give evidence in the Petition notwithstanding the position of the law on the matter. According to Counsel, the tribunal took argument on the objection and in a well-considered decision, overruled the Respondents. (See pages 2601-2609 of Vol. 4 of the Record). This Court was told that pursuant to the said ruling, the PW54 gave evidence to the effect that he is a Police Officer and the Deputy Commissioner of Police in charge of Operations Imo State Police Command and that he was in Imo State on the 9th of March, 2019 when the election was conducted. He said that as a Deputy Commissioner of Police in charge of Operations, he set up general operations order for the conduct of the election. The witness also said that the operation order entails the general working capacity of the police officers who were deployed to various polling units, according to the operation order in all the polling units as provided by INEC. He said that he was issued a subpoena to produce documents and also to give evidence. (See pages 2596-2597 of the Vol. 4 of the Record)
Learned Counsel brought to this Court’s attention the fact that the tribunal admitted a copy of the subpoena tendered by PW54 and marked same as Exhibit NNN1-NNN18, whereupon the PW54, further testified that in Exhibits NNN1 to NNN18, he was asked to produce 388 Forms EC8As received by police officers who were posted to the said polling units. He told the tribunal that he had some of the Forms and not all 388 Forms. He also said that the Forms he brought, he ticked in Exhibits NNN1 to NNN18 and that the total number he brought was 368 as he could not lay his hands on the other 20 Forms. (See pages 2.597-2.598 Vol. 4 of the Record).
Learned Counsel told Court that the Forms were admitted in evidence and marked as Exhibits PPP1 – PPP366. (See page 2598 of Vol. 4 of the Record) and that although the PW54 was rigorously cross-examined by Counsel to the Respondents, no one questioned the identity of PW54 which was well-spelt out in Exhibits NNN1 – NNN18. But to his surprise in its judgment, the trial tribunal made a U-turn with respect to the evidence adduced by PW54 when it held as follows:
“We find no difficulty in concluding that PW54 has no authority whatsoever to have testified and tender, the said Forms EC8A, Exhibits PPP1 to PPP366. At least this tribunal did not see any evidence of such an authority. It is the view of this tribunal that PW54 DCP Rabiu Hussaini was definitely on a frolic of his own when he testified before this tribunal and tendered Exhibits PPP1 to PPP366.” (See page 3039 of Vol. 4 of the Record).
Learned Counsel submitted that it was at this stage that the tribunal then proceeded to expunge the evidence of PW54, including Exhibits PPP1 – PPP 366 as having been “wrongly” admitted in evidence thereby reversing its earlier ruling of 31st July, 2019 in which it held that PW54 was competent to testify and would be allowed to testify “in the interest of justice.” According to learned Counsel, the trial tribunal reached this decision on the erroneous ground that the “subpoena on the strength of which, PW54 testified and tendered Exhibits PPP1 – PPP366 was addressed to the Inspector General of Police in Abuja” and that, “There is no indication that the said document was received by the office of the Inspector General of Police in Abuja where it was addressed to as there is no stamp or signature or name of any person who received it there.” (See pages 3038 of Vol. 4 of the Record). Against the backdrop of this position, Counsel submitted that the aforesaid reasoning and conclusion is against the hard facts on the record as it is not correct that the subpoenaed exhibits NNN1 – NNN18 was addressed to the Inspector General of Police rather, and on the contrary and as shown clearly on the face of the document, it was addressed “to DCP Rabiu Hussaini AP/NO/36579 DCDOPS ZN4 Makurdi Benue State” (See pages 22.73 of Vol. 3 of the Record). It was further submitted that at page 2572 volume 4 of the record is a copy of the subpoena duly stamped, received and dated 24th June, 2019 indicating that it was received in the office of the Inspector General of Police as well and that the tribunal was therefore not correct to have held that: “There is no indication that the said document was received by the office of the Inspector General of Police in Abuja…” (See page3038 of Vol. 4 of the record).
Counsel also submitted that in assuming, but without conceding that the subpoena was handed over directly to the PW54, to whom it was addressed without doing so through the office of the Inspector General of Police as earlier conceived, such procedure will not vitiate the service on PW54, who is the only person that can complain of improper service in the first instance. Counsel argued that the purpose of serving any Court process including subpoena, is to notify the person to whom the command is directed, of the command contained in the process and for that person to act as directed by the authority issuing the process. He said that the command is obeyed once the person commanded appears in Court as was done by PW54 in this case.
Learned Counsel also contended that in its ruling of 31st July, 2019, the tribunal held that PW54 was competent to give evidence on the basis of the subpoena served on him. Counsel also referred to page 120 of the tribunal’s judgment, where the tribunal acknowledged the identity of PW54 as clearly defined in the Exhibits NNN1
– NNN18 when it held: “It is to be noted that PW54 Deputy Commissioner of Police Rabiu Hassaini was subpoenaed to tender documents Forms EC8A given to the police that were posted to the various polling units during the 9th of March, 2019 Governorship Election in Imo State. The said subpoena that was tendered in evidence through PW54 and was admitted as ‘Exhibits NNN1 to NNN18…” (See page 3038 of Vol. 4 of the Record).
Given the above clear description of PW54 by the tribunal, Counsel argued that the tribunal cannot be right to now hold that the identity of the PW54 was in issue. He also contended that the tribunal also erred in elevating the absence of the authority of the IGP for PW54 to testify above the lower tribunal’s own command contained in the said subpoena, i.e. Exhibits NNN1- NNN18.
Learned Counsel pointed out that, in addition to the name, rank and address of PW54 clearly set out in Exhibits NNN1-NNN18, PW54’s Force Number is also disclosed as “AP/NO/36579” (See page 2273 of Vol. 3 of the Record) and that he was never cross-examined on the aforesaid particulars; that the Respondents also did not call any witness to challenge the testimony of PW54 as to his personal particulars as supplied on oath to the tribunal. According to Counsel, the tribunal surprisingly ignored the unchallenged evidence on the identity of the PW54 placed before it and opted to act on speculations.
Counsel further contended that the tribunal failed to appreciate that relevancy is the primary consideration in the determination of admissibility especially in the instant case, where parties agreed on the holding of an election but differ on the issue of exclusion and the authenticity of the results relied upon by the Appellants. In such a situation, he said that copies of the results given to the Police represent the in-built mechanism in our electoral law for discovering where the truth lies.
According to learned Counsel, it is now settled law that “… because election matters are sui generis, election result forms given to police officers are admissible in evidence notwithstanding that they were not the makers of such documents and it did not matter whether such documents were sought to be tendered by policemen other than the actual policemen that were given copies of such results …” See the cases of UCHE vs. IGWE & ORS, (2012) LPELR – 14439 PAGES 36-37; NNADI vs. EZIKE (1999) 10 NWLR (PT. 622) 229; OMOBORIOWO vs. AJASIN (1984) 1 SCNLR 10 and ADEBAYO vs. MAIYAKI (1991) 1 LRECN 1.
Specifically, Counsel argued that the evidential value of copies of election results given to police officers during election was underscored by this Court in NNADI vs. EZIKE (1999) 10 NWLR (Pt. 622) 229 at 238 paras D-G.
It was further contended that Paragraph 33 of Schedule 4 of Decree NO. 5 of 1999 is in pari-materia with Section 63(3) of the Electoral Act 2010 (as amended) and paragraph 22(c) (vi) of INEC Guidelines for 2019 General Elections. Section 63(3) of the Electoral Act 2010, provides:
“63(3); The Presiding Officer shall give to the polling agents and police officer, where available a copy each of the completed forms after it has been duly signed as provided in subsection (2) of this section.”
Learned Counsel also contended that in this case where the tribunal had admitted and marked as exhibits election returns from the 388 polling units in issue, and later expunged them at judgment stage notwithstanding that the documents are relevant and admissible, the tribunal acted out of order. He argued that the power of a trial Court; to expunge or reject evidence at judgment stage is limited to legally inadmissible evidence. See the case of IGBODIM vs. OBIANKE (1976) 9 – 10, SC 108, 118 on the subject. Counsel also urged this Court to invoke its powers under Section 15 of the Court of Appeal Act to determine the issues which the tribunal failed to consider and resolve same as if this Court were sitting as a Court of first instance and resolve issue no. 1 in Appellants’ favour.
ISSUE TWO:
Issue two is argued at pages 10-20 of the Appellants’ brief of argument to the effect that the tribunal misconceived Appellants’ case on the pleadings when it held that the Appellants ought to have called polling unit agents to testify as to the fact that election did not take place in their respective polling units and that the misconception accounted for the tribunal’s conclusion that the Appellants failed to discharge the burden of proof of their entitlement to the reliefs sought in the Petition. Learned Appellants’ Counsel, in his submission disclosed that the Appellants’ case and as pleaded in paragraphs 19, 20, 21, 22, 23 and 24 of the Petition is hinged on the exclusion of the Appellants’ scores from 388 polling units, thus denying the Appellants of 213,695 votes due to them from scores contained in the Forms EC8A issued in the said 388 polling units while the 1stRespondent only scored 1,903 votes. According to Counsel, from the replies made by the Respondents, the substance of their defenses is as follows:
1. The 3rd Respondent did not reduce, omit or exclude the results of the Appellants from the 388 polling units from collation at the Ward, Local Government or State collation level.
2. The result sheets (Form EC8As) from the 388 polling units, which the Appellants are relying upon are false result sheets. In other words, the result sheets are forged.
Against the backdrop of the foregoing, Counsel contended that based on the state of pleadings of the parties, it is clear that while the Appellants have the burden of proving the reduction, omission or exclusion of their results from collation, the Respondents, on the other hand, have the burden of proving that the 388 polling unit result sheets relied upon by the Appellants are forged. It was further contended by Counsel, that Forgery is a criminal offence therefore an allegation of forgery must be proved beyond reasonable doubt. See Section 135 of the Evidence Act, 2011; OKEKE vs. EZE (2013) LPELR – 22455 (CA) AT 36 – 37; APC vs. PDP (2015) 15 NWLR (PT. 1481) 1.
According to Counsel, once again, it is clear that the Respondents in their Replies, denied the existence of un-collated 388 polling units’ results, which the Appellants asserted were omitted from the collated result. He however drew attention to the fact that at the trial, the Appellants put Form EC8A issued in the said 388 polling units in issue, while the Respondents did not at the hearing adduce any evidence in proof of the allegation of forgery of the said 388 polling units. See the case of ADELAJA vs. FANOIKI [1990] 2 NWLR (PT. 131) 137 @ 153, paras B – D on the issue.
It was in addition also submitted that the Respondents in the instant case also failed to comply with the provisions of Paragraph 12(2) and 15 of the First Schedule to the Electoral Act by pleading what they claimed to be the “genuine” results to enable the tribunal compare the two sets of results for the purpose of determining which of the two sets of results is the authentic result from the 388 polling units.
Learned Counsel in this instance, took the opportunity to expatiate on the fact that given the state of pleadings, issue between the parties was only joined on whether or not the Respondents excluded scores due to the Appellants from 388 polling units and not on whether election took place in those units and that the presumption under Section 168(1) of the Evidence Act, 2011 remains unchallenged in this case. It was against this position that Counsel also submitted that the tribunal was therefore in a grave misconception of the dispute it was invited to resolve between the parties when it held: “So how can the Petitioners prove this unlawful exclusion of results in the said 388 polling units … if the polling units’ agents of the stated polling units were not called to testify as to the facts that election did take place in their respective polling units…” Based on the foregoing, Counsel argued that the tribunal misconceived Appellants’ case as one questioning the holding of election at unit levels, whereas Appellants’ case did not challenge the holding of election at units while the Respondents also did not make non-holding of election an issue in their respective Replies.
The issue therefore joined between the parties was on exclusion of unit results (Form EC8A) from Ward Collated Results (Form EC8B). As far as Counsel was concerned proof was only required of what is in issue and not otherwise. For the reason therefore that pleadings are the pillars upon which a party’s case is founded, Counsel submitted that parties, as well as the Courts are bound by the ‘parties’ pleadings and neither the Court nor the parties can go outside the pleadings. See ANYAFULU & ORS vs. MEKA & ORS (2014) LPELR- 22336.
It was also contended that apart from the fact that issues were joined on the issue of exclusion of Appellants’ scores, the tribunal of a fact, agreed at page 113 of its judgment that: “It is to be noted that as per the Petition of the Petitioner their main grouse is that the 1st Respondent was not validly elected by the majority of lawful votes cast … and by the pleading of the Petitioners the said non-compliance arose as a result of the action of the 3rd Respondent by unlawfully excluding polling unit results in the areas where the Petitioners recorded very high number of votes.” (See page 3031 volume 4 of the record).
The further contention of Counsel is that the tribunal went off the track when in the paragraph following the above quoted part of its judgment it queried: “So how can the Petitioners prove this unlawful exclusion of results in the said 388 polling units … if the polling unit agents of the stated polling units were not called to testify as to the fact that election did take place in their respective polling units …” (See page 3031 of Vol. 4 of the Record). The argument posited by Counsel in response to this position is that all that is required of a Petitioner who alleges wrongful computation, exclusion and cancellation is to produce and tender the results in Form EC8A, showing their exclusion from Form EC8B. In support of this contention, Counsel cited the cases of UDUMA vs. ARUNSI (2012) 7 NWLR (Pt. 1298) 55 at 113, Paras. E-F; ADUN vs. OSUNDE (2003) 16 NWLR (Pt. 847) 643 at 666.
Counsel submitted that where, as in the present case a Petitioner tenders in evidence excluded polling Unit results, the tribunal seised of the Petition is empowered to and as a matter of law, under a duty to add the scores in the excluded results to the total votes of the affected candidate. Counsel cited the case of SAM vs. EKPELU (2000) 1 NWLR where this Court emphasized the position of the law.
The further contention of Counsel is that where a Court of law misconstrues the nature of the issues thrown up by a parties’ action, it will in all probability arrive at a wrong conclusion. See LADEJOBI & 2 ORS vs. OGUNTAYO & 9 ORS (2004) 9 – 12 SCM (PT. 1) 109. In UDENGWU vs. UZUEGBU (2003) 13 NWLR (PT. 836) 136 AT 151 – 152 PARAS. G – D.
The further argument here on the issue is that had the tribunal properly appreciated the issues joined between the parties, it would have been clear to it that a complaint of exclusion of results is proved by the: (1) tendering of forms EC8A which were excluded; (2) tendering of Forms EC8B from which the results in Form EC8A were excluded: (3) testimony of PW1 – PW54 and; (4) positive evidence elicited from the Respondents’ witnesses RW1– RW5. He also argued that the tribunal would also have been guided by the decision in NWOBODO vs. ONOH (supra); OMOBORIOWO vs. AJASIN (supra); UDUMA vs. ARUNSI (supra) and especially the more recent decision of this Court in SEKIBO vs. UCHENDU (supra), where it was the Petitioner who tendered polling unit results from 1,632 polling units.
The contention of Counsel as a result is that where the decision of a trial Court is shown, as in the instant case to be perverse, it becomes a bounden duty of the Appellate Court to allow the Appeal and set aside the perverse decision of the lower Court, See UDENGWU vs. UZUEGBU (supra) and LADEJOBI vs. OGUNTAYO (supra).
Based on the foregoing, Learned Counsel urged this Court to reverse:
1. the decision of the lower tribunal expunging the oral and documentary evidence of the Appellants’ witnesses;
2. that aspect of the decision of the lower tribunal in which it misconstrued Appellants’ case as one requiring proof of holding of election at the polling unit;
3. that aspect of its decision in which it held that the Appellants did not discharge the burden of proof;
4. that aspect of the judgment of the tribunal in which it dismissed the Petition as having not been proven.
In the premise of the above, Counsel urged this Court to resolve this issue in the Appellants’ favour.
ISSUE THREE:
Issue no. 3 is argued at pages 20-27 of the Appellant’s brief of argument to the effect that the tribunal was in grave error which occasioned a miscarriage of justice when it suo motu referred to Petition Nos; EPT/GOV/IM/02/2019 and EPT/GOV/IM/03/2019 not placed before it and drew adverse inference against the Appellants without hearing them. The submission of Counsel is that the fact that non-collation of results was not raised in the two other petitions is extraneous to the instant Petition as these two other Petitions had no bearing whatsoever with the facts pleaded and evidence led in the instant Petition. Moreover, Counsel further submitted that the said issue was raised suomotu by the tribunal in its judgment and applied to the disadvantage of the Appellants without affording them the opportunity of a hearing, thereby breaching their Constitutional rights to fair hearing.
Against this position, it was contended that where a Court raises an issue suomotu, it must afford parties the opportunity of being heard on them. See the case of OKAFOR vs. B.D.U., JOS BRANCH (2017) 5 NWLR (PT. 1559) 385 at 415 paras C-G. It was further contended that none of the parties raised the facts alluded to by the trial tribunal and that the rule governing the procedure a Court should follow when it raises an issue suomotu before resolving it are well settled. See Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Counsel also contended that any decision based on an issue raised suomotu without hearing the parties is a nullity and thus liable to be set aside by an Appellate Court.
ISSUE FOUR:
Issue no. 4 is argued at pages 27-32 of the Appellants’ brief of argument to the effect that the tribunal erred in law and that this occasioned a miscarriage of justice when it expunged the evidence adduced by PW11 and PW51 when not being a final Court as the tribunal ought to have considered their evidence on the merit in the event of its decision being reversed on Appeal. In arguing this issue, learned Counsel disclosed that in order to establish the case of exclusion of results from 388 polling units, the Appellants called, amongst other witnesses the PW11 (the 1stAppellant) and PW51 (Appellants’ State Collation Agent); but that the tribunal under the erroneous belief that it was invited to resolve a dispute over the conduct of election at polling units, held that PW11 and PW51 were not competent to give evidence on what transpired during the election at the polling units. According to learned Counsel, the evidence of the said PW11 and PW51 were accordingly treated as laced with hearsay and struck out both the oral and documentary evidence adduced by them, relying on KAKIH vs. PDP(Supra). (See page 3033-3036 of Vol. 4 of the Record).
According to learned Counsel, it was on the premises of the said misconception that the tribunal held at page 111 of its judgment (see page 3029 of Vol. 4 of the Record) that the proper persons to have tendered the polling unit results Form EC8A and speak to them were the polling unit agents who accordingly were, the eye witnesses to what transpired at such polling unit. Counsel further disclosed that the tribunal reached a similar conclusion with regards to PW51 at page 117 of the judgment (See page 3035 of vol. 4 of the Record). Arising from this position, Counsel argued that the Forms EC8A tendered by these witnesses were “duplicate originals” handed over to them by the agents who received them, while the Forms EC8B, EC8C, EC8D and EC8E are certified true copies given to them by the 3rd Respondent on their application and upon the payment of the appropriate fees.
What Counsel strove to establish here was that the view the tribunal expressed concerning the testimonies of PW11 and PW51 derived from its erroneous belief that these witnesses were called to give evidence on what transpired at the polling unit level during the conduct of the election and that this misconception by the trial tribunal is contrary to the case made out in Appellants’ pleading. The point made by learned Counsel in his arguments is that the substance of the Respondents’ defence was that the results the Appellants pleaded were excluded did not exist, and that the 3rd Respondent collated all results available and due to the Appellants. It was for this reason, Counsel argued that the Forms EC8A and EC8B for the affected units and wards were pleaded and tendered to prove their existence and their exclusion.
Learned Counsel also argued that where the defence is that certain documents do not exist, the proof of the existence of the document would be conclusive as to their validity except where the person(s) challenging the existence of the document is/are able to show further that the documents so proved to exist are a forgery. He further argued that in such circumstances the onus of such proof rests on him who alleges. See ADELAJA vs. FANOIKI (1990) 2 NWLR (PT. 131) 137, 151 PARAS. B – D; See also ANDREW vs. INEC (2018) 19 NWLR (PT. 1625) 507 AT 557 – 558 PARAS. H – A.
Learned Appellants’ Counsel also disclosed that all the documents tendered through PW11 and PW51 are public documents (original and certified true copies of election result forms). He contended that the 1st Appellant (PW11) and PW51 (the Appellants’ State Collation Agent) are no doubt entitled to tender them to prove their existence and their exclusion given the state of the pleadings in this case. He further contended that in a case founded on exclusion of results, a candidate whose results have been excluded is in a position to tender the excluded results. Counsel cited what he called the locus classicus on cases bordering on exclusion of election result, i.e., OMOBORIOWO vs. AJASIN (1984) 1 SCNLR 108, where it was the Local Government Collation Agents and security agents that tendered and spoke to the results to prove exclusion. He also cited the case of NWOBODO vs. ONOH (1984) 1 SCNLR 1 where the same procedure was adopted and accepted and in the more recent case of SEKIBO vs. UCHENDU (Unreported) (supra), where it was the candidate who tendered 1,632 polling unit’s results excluded from collation.
It was also contended that from the decisions of the cases aforementioned, the basis on which the Courts admitted excluded election results from Collation Agents, security agents and candidates are:
1. Because those documents were relevant and;
2. That the purpose for which those documents were tendered was to prove exclusion.
See the cases of OGBUANYINYA vs. OKUDO (NO.2) (1979) 6 – 9 SC 32; OGBE vs. ASADE (2010) ALL FWLR (PT. 510) AT 633 PARAS. C – G; IGBODIM & ORS vs. OBIANKE & 2 ORS. (1976) 9 – 10, SC 108 at 118; AJA vs. ODIN (2011) 5 NWLR (Pt. 1241) 509 at 532 – 533 paras C – C; AREGBESOLA vs. OYINLOLA (2011) 9 NWLR (Pt. 1253) at pages 587 – 588 paras H – E;
By expurgating the testimonies of the PW11 and PW51, Counsel argued that it adversely affected the case of the Appellants, coming as it were against the backdrop of the fact that the tribunal also inexplicably expunged, counterpart election results of the 388 polling units in issue tendered by the Police through PW54. According to Counsel, such arbitrary expurgation of admissible documentary evidence denied the Appellants a fair hearing. See AREGBESOLA vs. OYINLOLA (Supra); OLUFEMI vs. AYO (2010) ALL FWLR (PT. 526) 547 AT 591 PARAS. C – D; NAGOGO vs. CPC (2013) ALL FWLR (PT. 685) 272 AT 307 PARAGRAPH C. Based on the foregoing submissions and legal authorities, Counsel urged this Court to resolve this issue in the Appellants’ favour.
ISSUE FIVE:
Issue no. 5 is argued at pages 33-38 of the Appellants’ brief of argument to the effect that the tribunal erred when it held that the Appellants did not establish their entitlement to the reliefs sought in the petition. It was contended that from the state of pleadings of the parties, it is clear that while the Appellants had the burden of proving the reduction, omission or exclusion of their results from collation, which they succeeded in doing, the Respondents on the other hand had the burden of proving that the 388 polling unit result sheets relied upon by the Appellants are forged. It was also contended that while the Respondents who alleged forgery, a criminal offence failed to adduce any scintilla of evidence in proof of the allegation, it was not the same thing for the Appellants who discharged the burden placed on them.
Apart from this, Counsel pointed out here that at the hearing of the Petition, the Respondents failed to comply with the provisions of paragraph 12 (2) and 15 of the First Schedule to the Electoral Act by pleading what they claimed to be the “genuine” results to enable the Tribunal compare the two sets of results for the purpose of determining which of the two sets of results was the authentic result from the 388 polling units. Counsel added that the consequence of neglect to or failure to comply with the provisions of paragraph 12(2) and 15 of the First Schedule to the Electoral Act, 2010 is that the 388 polling unit results tendered by the Appellants are deemed not challenged. See AGAGU & ORS vs. MIMIKO & ORS (2009) LPELR 21149 (CA); HASSAN vs. TUMU [1999] 10 NWLR (PT. 624) 700, 710 and 712. Counsel urged this Court to set aside the tribunal’s findings and resolve issue 5 in favour of the Appellants.
1st RESPONDENT: ISSUE ONE:
The 1st Respondent’s issue no. 1 is argued at pages 7-18 of the 1st Respondent’s brief of argument to the effect that the tribunal was correct in its decision and classification of the oral and documentary evidence proffered by the PW11, PW51 and PW54, especially the evidence of the PW11 and PW51, which the tribunal dubbed as hearsay evidence shortly before expunging them from the records of the tribunal. Learned Counsel cited the cases of BUHARI vs. INEC (2009) 19 NWLR (PT. 1120) 381 – 382; SHITTU vs. FASHAWE (2005) 4 NWLR (PT. 946) 671 AT 690 and OKECHUKWU vs. INEC (2014) 17 NWLR (PT. 1436) 255 and a host of other cases in support. The contention of Counsel is that in so far as the PW11 and PW51 were alien to the making of the Forms tendered by them, the documents remain inadmissible and that they were rightly rejected by the tribunal.
In the case of the evidence of the PW54, learned 1st Respondent’s Counsel also contended that his evidence given by the said PW54 was of no utility value to the Petitioner’s case since he stated that he was neither present when the documents he tendered where made nor did he demonstrate any of the 366 results tendered by him but rather dumped them in bulk. Against this position, Counsel further contended that the PW54, by virtue of having dumped the said results could not be said to have proven issuance of the results on a Poling Unit by Poling Unit basis and consequently failing to prove exclusion of votes duly cast.
Counsel urged this Court to resolve this issue in favour of the 1st Respondent by revalidating the tribunal’s classification of the oral and documentary evidence proffered by PW11 and PW51 as hearsay evidence and as well as discountenancing of the evidence of the PW54 and the suspect circumstances surrounding his evidence.
ISSUE TWO:
Issue no. 2 of the 1st Respondent is argued at pages 18-29 of the 1st Respondent’s brief of argument to the effect that the tribunal was right in its decision on the need for the Appellants to have called Polling Unit Agents so as to succeed in proving the basis of the Petition. Learned Counsel prefaced the arguments of this issue on the fact that there is no challenge to the finding of the tribunal that the polling unit agents called by the Petitioners were terribly discredited under cross examination that no reasonable tribunal would rely on their testimonies. See AKERE & ORS vs. THE GOVERNOR OF OYO STATE (2012) LPELR -7806.
Against the foregoing, Counsel contended that the central reference point of the Appellants’ relief at the tribunal is/are that “votes due to the Petitioners from 388 Polling Units” were wrongly excluded from the score ascribed to the Petitioners thereby giving the 1st and 2nd Respondents scores of undue advantage against the Appellant. The further contention of Counsel is that having specifically formulated their case around votes due from Polling Units, Appellants are estopped from taking a contrary stance that Polling Unit agents are not central or important to their claim. According to Counsel such a move if allowed will succeed in de-emphasizing the need for Polling Unit agents, whilst the pleadings are explicit about votes from polling Units and that this will amount to approbating in the pleadings and re-probating in their brief.
Counsel hinged the success of establishing that the results of 388 Polling Units were excluded on the indispensability of the evidence of Polling Units agents and contended that Appellate Courts in Nigeria have been consistent on the centrality and indispensability of Polling Unit agents in the proof of Petitions of this nature where allegations emanate from and encapsulate events that occurred at the Polling Units. See ADEWALE vs. OLAIFA (2012) 17 NWLR (PT. 1330) 478 AT 512; NWOBASI vs. OGBAGA (2015) LPELR – 40669. As far as Counsel is concerned the tribunal was right in reaching the conclusion it reached that the Petitioners could not have proven their case if the Polling Unit agents of the stated polling units were not called to testify as to the fact that the election did take place in their respective polling units and results in Form EC8A produced which eventually was excluded at the ward collation.
Arising from this position, Counsel urged this Court to discountenance all arguments advanced by the Appellants, which said arguments are premised on alleged misconceptions by the tribunal in respect of placement of the burden of proof and that the reliance on the cases of OMOBORIOWO vs. AJASIN (Supra) and OKOYE vs. CHARLES (Supra) are of no utilitarian value to the Appellant’s Case. Counsel finally urged this Court to resolve this issue in favour of Respondents.
ISSUE THREE:
Issue no. 3 of the 1st Respondent is argued at pages 29-38 of the 1st Respondent’s brief of argument to the effect that the tribunal was right in deciding that the Petitioners did not establish entitlements to the reliefs sought in the Petition. In arguing this issue, Counsel adopted his submissions made in issues one and two of his brief of argument. Counsel contended that the Appellants did not prove by credible evidence that they scored 310,153 votes and that the Respondent’s score should be reduced from 273,404 votes to 260,162 votes. According to Counsel the proof of these specifically pleaded figures by cogent and credible evidence is the unavoidable burden that Appellants created in their pleadings.
On the issue of the tribunal raising suomotu, by making references to other petitions not before the Court and on the basis of which it arrived at its decision, Counsel submitted that apart from the fact that the tribunal is duty bound to take judicial notice of other judgments, that the Court’s attention is drawn to the fact that the lower tribunal’s reference to these other Petitions was done at page 134 of the judgment appearing at page 3052 volume 4 of the record, at which point the Petition had already been dismissed. Counsel urged this Court to resolve this issue in favour of the 1st Respondent and to dismiss this Appeal.
2nd RESPONDENT: ISSUE ONE:
Issue no. 1 of the 2nd Respondent is argued at pages 6-17 of the 2nd Respondent’s brief of argument to the effect that the trial tribunal was right in law when they discountenanced and expunged from the records of the tribunal evidence of the PW11, PW51 and PW54 together with the documents tendered by them as constituting hearsay and inadmissible evidence. The substance of the arguments made by learned Counsel for the 3rd Respondent is identical with those made by learned Counsel for the 1st and 2nd Respondents including the authorities cited and it would therefore be unnecessary to repeat the 3rd Respondent’s submissions in this judgment. Counsel however, all said and done urged this Court to resolve this issue in favour of the Respondents.
ISSUE TWO:
Issue no. 2 addresses the question of whether the Appellants established their case as required by law before the tribunal to entitle them to judgment. This issue is argued at pages 17-30 of the 3rd Respondent’s brief of argument. Once again, the need to reproduce the arguments of Learned 2nd Respondent’s Counsel is clearly unnecessary, same arguments, submissions and authorities having been made by learned Counsel to the 1st Respondent. As usual Counsel urged this Court to resolve this issue in favour of the Respondents.
ISSUE THREE:
Issue no. 3 of the 2nd Respondent is argued at pages 30-37 of the 2nd Respondent’s brief of argument to the effect that the justices of the tribunal were not wrong in law in determining the veracity and authenticity or otherwise of the case presented by the Appellants on the issue of exclusion of results from 388 polling units by the 3rd Respondent. Learned Counsel also urged this Court to resolve this issue in favour of the Respondents and to dismiss this Appeal and affirm the judgment of the trial Tribunal.
3rd RESPONDENT:
ISSUES ONE and TWO:
Issue one of the 3rd Respondents is argued at pages 4-24 of the 3rd Respondent’s brief of argument to the effect that the tribunal was right when it expunged the evidence of the PW11, PW51 and PW54 from its records and refused to ascribe any probative value to the evidence of the PW11 and PW51 and Exhibits PPP1-PPP366 tendered by the PW54.
In respect of the evidence of the PW54, Counsel submitted that he was a subpoenaed witness, one DCP Rabiu Hussaini who testified on the strength of the subpoena admitted as Exhibit NNN1 to NNN366. Counsel however, quickly drew attention to the fact that the subpoena was not directed at him but to the Inspector General of Police in Abuja. In addition, that the PW54 was neither the maker of the documents which he tendered as Exhibits PPP1 to PPP366 and that for this reason, all the documents he tendered are incompetent and inadmissible.
In the case of the evidence of the PW11, who also doubles as the 1st Appellant herein, tendered in the course of his testimony an avalanche of documentary exhibits being Forms EC8A, EC8B and EC8C for a total of 26 Local Government Areas including the Regulations and Guidelines for the conduct of the elections and receipts for the payment of CTC dated 9th July, 2019. The contention of Counsel is that even though the PW11 under cross examination admitted that he had Polling Unit Agents in all the Polling Units during the elections of the 9th day of March, 2019; the Polling Unit results including all the pink copies which he tendered were all handed over to him by the various polling unit agents which he had in all the polling units during the Election. According to Counsel this goes to show that all the evidence given by him in respect of the election and relating to polling unit results amounts to hearsay evidence, which is inadmissible before the tribunal and therefore, rightly expunged by the tribunal.
Counsel also argued that the same thing applies to the evidence of the PW51 who was clear as to the fact that he was not present in all the 388 polling units on the day of the election. Counsel buttressed his arguments with the decision in the cases of OKECHUKWU vs. INEC (Supra); PDP vs. INEC (Supra); ABUBAKAR vs. YAR’ ADUA (Supra) and a host of other cases. Counsel urged this Court to resolve this issue in favour of the 3rd Respondent.
ISSUE THREE:
Issue no. 3 of the 3rd Respondent is argued at pages 24-27 of the 3rd Respondents brief of argument to the effect that the tribunal’s reference to Petitions Nos. EPT/GOV/IM/02/2019 and EPT/GOV./IM/03/2019 did not occasion a miscarriage of justice. As far as Counsel was concerned the tribunal merely made an observation with respect to the same election held on the 9th March, 2019 and no more and the said observation occasioned no miscarriage of justice.
ISSUE FOUR:
Issue no. 4 of the 3rd Respondent is argued at pages 27-31 of the 3rd Respondent’s brief of argument to the effect that the tribunal was right in holding that the Appellants were not entitled to any of the reliefs contained in paragraphs 34 and 35 of the Petition. Counsel contended that the Appellants having stated that their reliefs are mainly declaratory, it only means that the burden of proof placed on the Petitioners is to be proved on the balance of probability and that the discharge of this burden remains sacrosanct as it is a burden that must be discharged by cogent and admissible evidence which the Appellants have failed to do. It was further contended that in the instant Appeal the Appellants did not call any credible evidence in proof of their entitlements to the reliefs under a situation where the evidence of the PW11, PW51 and PW54 are hearsay evidence since the said witnesses were neither polling unit nor ward agents who witnessed the occurrence of the fact they testified about. Counsel cited a plethora of cases and urged this Court to resolve issue 4 in favour of the Respondents and dismiss this Appeal.
RESOLUTION OF APPEAL
This dissenting judgment turns principally on the question of whether under Nigeria’s Electoral jurisprudence there is a marked difference between a complaint which is hinged on “Unlawful Exclusion of Electoral Results” and a complaint made, which is anchored on the “Failure of Election to take place in a given Polling Unit”. This dissenting judgment has become necessary in view of the enormousness of the Appellants’ complaints and the position of significance it holds for the nation’s Electoral Jurisprudence, impinging as it were on an area that requires further judicial light to be shed. The complaint, as far as the Appellants are concerned is principally centered on the question of “Unlawful Exclusion of Electoral Results” and for which issues were clearly joined between the parties and NOT on the question of “Failure of Elections to take place in a number of Polling Units”, which the trial Tribunal used in resolving the matter at that level.
For the avoidance of any doubts, it has become necessary to reproduce excerpts of the printed record showing details of the Appellants’ complaints at the tribunal as laid out in paragraphs 18, 19, 20, 21 (including the table spanning pages 9 – 27) 22, 23, 25, 26, 28(1), 35, 39(3)(i), 39(3)ii, 39(3)iii, 39(3)iv, (39)(3)v, 39(3)vi, 39(3)vii of the Petition. A close perusal of the averments contained therein shows that the case of the Appellants, as pleaded in paragraphs 19, 20, 21, 22, 23 and 24 of the Petition is that the exclusion of the Appellants’ scores from 388 polling units denied the Appellants of a total 213,695 votes due to them from scores contained in Forms EC8A issued in the 388 polling units while the 1st Respondent only scored 1,903 votes.
It would be recalled that the Appellants did set out at pages 9 – 27 of the Petition the particulars of the 388 polling units showing the results which were excluded from Form EC8B and the scores of the Appellants and the 1st Respondent which were left out. (See pages 9-27 of Vol. 1 of the Record). Furthermore, paragraphs 23 and 24 of the Petition are for ease of reference, reproduced hereunder:
“23. Total votes of the Petitioners from unlawfully excluded polling units is 213,695 while the total votes of the 1st Respondent from the same units is 1,903.
“24. When the votes from the excluded units are added to the 1st Petitioner and 1st Respondent, the total score will be 310,153 for the 1st Petitioner…”
In an earlier paragraph 20 of the Petition, the Appellants had pleaded thus:
“20. The 3rd Respondent unlawfully excluded the polling unit results in units where election were properly conducted and results issued by the presiding officers to the Petitioners’ agents. The Petitioners plead and shall rely on the duplicate copies of the polling unit results (Form EC8A) given to their agents. The 3rd Respondent is hereby given notice to produce the original of the results at the trial”.
(See page 8 of Vol. 1 of the Record):
In response to the above averment in the Petition the 1st Respondent in paragraphs 8(i) and (ii) of its Reply to the petition pleaded thus:
“8 (i) The 3rd Respondent did not in the process of the collation at the Ward, Local Government and Constituency Collation Centers, incorrectly state the votes of the 1st Respondent and reduce the votes of the Petitioners by excluding results from Polling Units where the Petitioners scored “overwhelming majority of the votes cast”, as alleged or at all. Petitioners have embarked on a scheme to introduce false result sheets into the result of the election. They are thus put to the strictest proof of the origin of the result, the existence of the Polling Units as well as the distribution of election materials to those purported Polling Units;
(ii) 3rd Respondent did not exclude any valid result sheets from the computation of the result of the elections as all competent result sheets, which emanated from all the recognized polling units were collated in the process.” (See pages 993 – 994 of volume 2 of the Record).
On the part of the 2nd Respondent in paragraphs 13 and 14 of its Reply to the Petition, pleaded as follows:
“13. In specific reaction to paragraphs 18, 19, 20, 21, 22, 23, 24, 25 and 26 of the petition the 2nd Respondent denies that the 3rd Respondent incorrectly stated the votes of the 1st Respondent and/or reducing the fictional votes scored by the Petitioners. The 2nd Respondent further deny that the petitioners polled overwhelming majority of the votes cast at the said election.
14. The 2nd Respondent further states that the 3rd Respondent did not exclude any valid result sheet from the computation of the result of the election which emanated from all polling units collated. (See page 890 of Vol. 2 of the Record).
The 3rd Respondent, which conducted the election, pleaded in paragraph 7 (a) to (e) of its Reply to the Petition:
a. The 3rd Respondent did not incorrectly state the votes of the 1stRespondent in the course of collation of results at the Ward, Local Government and State levels as alleged or at all;
b. The 3rd Respondent did not reduce any alleged votes of the Petitioners by excluding results from polling units where the Petitioners allegedly scored overwhelming majority of votes cast;
c. The 3rd Respondent did not omit to record and reckon with votes due to the Petitioners as alleged or at all from any tables set out in the said Petition and such table showing results are fictitious and suborned;
d. The 3rd Respondent did not unlawfully exclude the polling unit results in areas where Petitioners recorded high number of votes as alleged or at all;
e. The 3rd Respondent did not unlawfully exclude the polling unit results in units where elections were properly conducted and results issued by any presiding officer to the Petitioner’s agents as alleged or at all.” (See pages 965 – 966 Volume 2 of the record).
Against the backdrop of the foregoing, what is rather clear from the state of pleadings of the parties is that issues were joined on the issue of “Unlawful Exclusion of Electoral Results” and NOT on the issue of non-voting or failure to vote at any given polling unit(s). In addition, and from the replies of the Respondents as set out here above their defence to the allegation of Unlawful exclusion of results is as follows:
1. The 3rd Respondent did not reduce, omit or exclude the results of the Appellants from the 388 polling units from collation at the Ward, Local Government or State collation level.
2. The result sheets (Form EC8As) from the 388 polling units, which the Appellants are relying upon are false result sheets. In other words, the result sheets are forged.
Based on the foregoing, what is rather clear from the state of pleadings of the parties, is that while the Appellants on the one hand, have the burden of proving the reduction, omission or exclusion of their results from collation, the Respondents on the other hand, have the burden of proving that the 388 polling unit result sheets relied upon by the Appellants are forged, having so clearly alleged the crime of forgery, which is required to be proved beyond reasonable doubt. See Section 135 of the Evidence Act, 2011. Case law on this subject is in their legions.
Apart from the foregoing, it is also clear that the Respondents in their Replies denied the existence of an un-collated 388 polling units’ results, which the Appellants asserted were omitted from the collated results; but what did the Appellants as Petitioners at the tribunal had to do? At the trial, the Appellants put Form EC8A issued in the said 388 polling units in issue and the Respondents did not at the hearing adduce any evidence in proof of the allegation of forgery of the said 388 polling units. In ADELAJA vs. FANOKI (1990) 2 NWLR (PT. 131) 137 @ 153, paras B – D, the apex Court, per KARIBI-WHYTE, JSC, held thus:
“…Where the complaint is that no such document exists, the proof of the existence of the document will be conclusive as to its validity, except where the person challenging the existence of the document is able to show further that the document so proved to exist is a forgery. In such a circumstance, it is well settled that the onus of such proof rests on he who alleges. See Section 137(2) Evidence Act. In such a case since a crime is alleged, the burden is on him who alleges to prove it beyond reasonable doubt. 1st Respondent having not led evidence to show that Exhibit “A” is a forgery has not discharged the burden of proof to show that Exhibit “A” is a forgery.”
Apart from the issue of failure to prove forgery, the Respondents in addition failed to comply with the provisions of Paragraph 12(2) and 15 of the First Schedule to the Electoral Act, 2010 by pleading what they claimed to be the “genuine” results to enable the tribunal compare the two sets of results for the purpose of determining, which of the two is the authentic result from the 388 polling units. For the avoidance of any doubt, Paragraphs 12(2) and 15 of the First Schedule to the Electoral Act, 2010, provide thus:
“12 (2): Whether the respondent in an election petition, complaining of undue return and claiming the seat or office for the petitioner intends to prove that the claim is incorrect or false, the respondent in his reply shall set out the facts and figures clearly and distinctly disproving the claim of the petitioners.
15: When a petitioner claims the seat alleging that he has the highest number of valid votes cast at the election, the party defending the election or return at the election shall set out clearly in his reply the particulars of the votes, if any, which he objects to and the reasons for his objection against such votes, showing how he intends to prove at the hearing that the petitioner is not entitled to succeed.”
In a nutshell, what paragraph 12(2) demands of a Respondent, is much more than the Reply merely joining issues with the Petitioner. It requires averring to additional facts and so does paragraph 15, which requires that a Respondent shall specifically state as follows:
(i) the particulars of votes he objects to;
(ii) the reason or reasons for his objection against such votes; and
(iii) show how he intends to establish at the trial that the Petitioner was not entitled to succeed or be returned.
Given the above state of pleadings and the fact that issue was only joined on whether or not the Respondents excluded scores due to the Appellants from 388 polling units and not on whether election took place in those units, there is no gainsaying the fact that the trial tribunal was in a grave misconception of the dispute it was invited to resolve between the parties when it held:
“So how can the Petitioners prove this unlawful exclusion of results in the said 388 polling units … if the polling units’ agents of the stated polling units were not called to testify as to the facts that election did take place in their respective polling units …”
(Under lined, mine for emphasis).
From the above passage, to suggest that the tribunal did not misconceived Appellants’ case as one questioning the holding of election at unit levels is to merely beg the question. Based on the state of pleadings before the tribunal, it is at once clear that the Appellants’ case did not challenge the holding of election or otherwise at units and that Respondents did not also make non-holding of election an issue in their respective Replies; but rather that the issue joined was on exclusion of unit results (Form EC8A) from Ward Collated Results (Form EC8B) and for which proof was only required of what is in issue and not otherwise. See the case of YAKASSAI vs. INCAR MOTORS (NIG) LTD (1975) LPELR-3509 (SC) where the apex Court had this to say on the subject:
“The law is that in all civil matters where pleadings are filed, the Court should only consider matters in respect of which issues have been joined by the parties in their pleadings. We think that unless the pleadings are amended it is not open to the Court to introduce fresh issues, which do not arise from the pleadings, as that course of action would tend to defeat the very purpose for which pleadings are requested in civil matters.”
The trite position of the law is that pleadings are the pillars upon which a party’s case is founded and they form the parameters of a party’s case at the trial Court. Parties, as well as the Courts are bound by the parties’ pleadings and neither the Court nor the parties can go outside the pleadings. See the case of ANYAFULU & ORS vs. MEKA & ORS (2014) LPELR- 22336, where the apex Court, once again per KEKERE-EKUN, JSC Pp. 34 – 35; paras. E – A, had this to say:
“Litigation is fought on pleadings. They are the pillars upon which a party’s case is founded. Not only do they give the other side notice of the case they are to meet at the trial, they also define the parameters of the case. In other words, parties are bound by their pleadings…See: Nwokorobia vs. Nwogu (2009) 10 NWLR (1150) 553; Shell B. P. vs. Abedi (1974) 1 SC 23; Ebosie vs. Phil-Ebosie (1976) 7 SC 119; George vs. Dominion Flour Mill Ltd. (1963) 1 ALL NLR 71.”
Again, in OYEWUSI & ORS vs. OLAGBAMI & ORS (2018) LPELR- 44906, per KEKERE-EKUN, JSC Pp, 27 – 28, paras. F – B, the Supreme Court held as follows:
“Another important principle of law is that both the parties and the Court are bound by the pleadings filed in a particular suit. The parties cannot go outside their pleadings to introduce evidence nor can the Court go outside the pleadings to decide the issues in controversy in the matter. It is equally trite that evidence given on facts not pleaded goes to no issue.”
Against the background of the foregoing, it is rather clear as borne out of the record that the major component of the case made out by the Appellants in their Petition at the tribunal and by which the Petition proceeded to trial was that a total number of 213,695 votes validly scored by the 1st Appellant in a total of 388 polling units were unlawfully excluded by the 3rd Respondent at the point of collation of polling unit results at the ward and Local Government Collation Centers, which took place at the Local Government Collation Centre. See paragraphs 18-28 of the Petition, at pages 7 – 28 of Volume 1 of the Record of Appeal, particularly at paragraph 20 of the Petition, page 5 of the record of Appeal.
It is also clear on the record that after the Appellants had explicitly set out in the Petition a schedule of all the polling unit results, which were allegedly excluded from collation at ward level by the 3rd Respondent, they led evidence through several witnesses to prove their case as contained in the Petition, by showing that, if those excluded votes scored by the 1st Appellant and those scored by the 1st Respondent in the 388 polling units are added to their respective scores of 96,458 and 258,259 votes, as declared by the 3rd Respondent, the outcome will show that the 1st Appellant won the Governorship election held in Imo State on the 9th of March, 2019 as the 1st Appellant’s votes will amount to a total of 310,153 votes whiles the 1st Respondent’s score will be a total of 260,162 votes.
As it is clear from the record the Appellants at the hearing, tendered in evidence, Forms EC8A of the 388 polling units in issue along with other pieces evidence. In agreement with learned Counsel for the Appellants the law is settled that the primary evidence of the holding of an election is the production of the result in Form EC8A as declared by INEC. See the decision of this Court in UGWA & ANOR vs. LEKWAUWA & ANOR (2011) LPELR- 4994, per OWOADE, JCA Pp. 49 – 51, para. B, held as follows:
“… It is also trite law that the primary evidence of the results of the election are Form EC8A (statement of results of poll from polling election): The case of Remi v. Sunday at P. 107 per Salami, JCA and Nwobodo v. Onoh (supra) are relevant in substantiation. The above authorities are fully applicable to the circumstances of the Appellants in this case.”
What is rather the surprise in the actions of the tribunal is that apart from the fact that issue was joined between the parties on the complaint of exclusion of Appellants’ score, the trial tribunal of a fact agreed at page 113 of its judgment that:
“It is to be noted that as per the Petition of the Petitioner their main grouse is that the 1stRespondent was not validly elected by the majority of lawful votes cast…and by the pleading of the Petitioners the said non-compliance arose as a result of the action of the 3rdRespondent by unlawfully excluding polling unit results in the areas where the Petitioners recorded very high number of votes.” (See page 3031 volume 4 of the record).
The contention of the learned Appellants’ Counsel, which I find unable to disagree with is his accurate pinpointing of the exact stage that the tribunal veered off its tracks, when in the paragraph following the above quoted part of its judgment it queried:
“So how can the Petitioners prove this unlawful exclusion of results in the said 388 polling units … if the polling unit agents of the stated polling units were not called to testify as to the fact that election did take place in their respective polling units …” (See page 3031 of Vol. 4 of the Record).
In seeking to establish an allegation of wrongful computation, exclusion and cancellation of results, all that is required of a Petitioner who so alleges is to produce and tender the results in Form EC8A, showing their exclusion from Form EC8B. See the decision of this Court in UDUMA vs. ARUNSI (2012) 7 NWLR (PT. 1298) 55 AT 113, Paras. E-F, where the Court held as follows:
“…In my view, the strict proof of whether an omission of the Respondent’s score occurred had been satisfied by the Respondent’s production of exhibits A1-A8…results from Units 010 – 018 of Etiti Ward, Nkporo. No other results showing different figures were tendered before the Tribunal…”
Learned Appellants’ Counsel also cited the case of ADUN vs. OSUNDE (2003) 16 NWLR (PT. 847) 643 at 666, delivered by this Court and where the power of the tribunal to add results wrongfully excluded to the votes of the Petitioner were emphasized when the Court held thus:
“The Tribunal, I must admit, has a right and indeed a duty to compute or collate results where they have been inflated/or wrongfully computed … The Tribunal again has power to even add the votes found to have been wrongfully excluded to the score by the affected candidates…” See also the case of OKOREAFFIA & ANOR vs. AGWU & ORS (2010) LPELR- 4708 (CA) Page 47 Paras. D-F, where this Court once again held thus:
“Where the outcome of an Election is challenged on the grounds that the winner did not have the majority of lawful votes, the task of the Tribunal is to determine the actual results and add them up. The duty involves computing the results once there are allegations of inflation or/and wrong computation.”
The settled position of the law where, as in the present case, a Petitioner tenders in evidence excluded polling Unit results is that the tribunal seised of the matter is empowered to, and as a matter of law under a duty to add the scores in the excluded results to the total votes of the affected candidate. See the case of SAM vs. EKPELU (1999) LPELR-6560 (CA) where this Court per IKONGBEH, JCA (as he then was), had this to say on the subject:
“On the so called Issue 3 my answer is that the tribunal did not convert itself into a collating Officer. It was not collating results. It was exercising its jurisdiction and powers of determining the question whether or not either the Petitioner/1st Respondent…was validly elected. It has powers under Section 81(a) of Decree 16 of 1988 to do this. It has further powers under section 87(2) of Decree 16. Under this latter provision, if it determines that the candidate who was returned did not score the majority of lawful votes cast at the election it shall declare the candidate with the majority of valid votes as elected. Now, what should the tribunal have done when it found that there were valid votes that the returning officer should have, but did not credit to the candidates, especially in a situation such as this, where the Petitioner/1st Respondent had complained about the exclusion of the votes? Should it have thrown up its hands in helplessness and simply referred the matter to the collation or returning officer for fresh collation of votes? In my view, NO. The tribunal did the right thing by adding the votes found to have been wrongly excluded to the score of the affected candidate. The mandate it has under section 87(2) is to declare the candidate with the majority of valid votes…”
In the instant Appeal, having been so clearly demonstrated that the trial tribunal misconstrued the issues thrown up by the Appellants’ Petition, what then becomes of the position where a Court or tribunal is said to have misconstrued the nature of what it is called upon to decide? The inescapable answer is that it will in all probability arrive at a wrong conclusion. See LADEJOBI & 2 ORS vs. OGUNTAYO & 9 ORS (2004) 9 – 12 SCM (PT. 1) 109; In UDENGWU vs. UZUEGBU (2003) 13 NWLR (PT. 836) 136 AT 151 – 152 PARAS. G – D, the Supreme Court per UWAIFO, JSC had this to say on the subject:
“It is obvious that the learned trial Judge completely went wrong, with due respect, in his approach to the resolution of the dispute placed before him by the parties; This is because he seemed to have misconceived the issues joined. The result was that he did not consider and make relevant findings on the evidence throughout the judgment. This led to a miscarriage of justice. A judgment of the Court must demonstrate that the Court understood the case before it and elicit an open and full consideration of the issues properly raised by the parties on their pleadings as supported by evidence. The conclusions reached ought to reflect and justify such an exercise: see Polycarp Ojogbue vs. Ajie Nnubis (1972)1 All NLR (Pt.2) 226 at231; Kalio vs. Woluchem (1985) 1 NWLR (Pt. 4) 610 at 622.
Once a Court has misapprehended the nature of the case in respect of which it is required to give a dispassionate and rational decision, the chances are that the decision otherwise reached will be perverse. This is because when an adjudicator fails to discern the real question which he is to consider and decide or answer, his reasoning will inevitably be addressed to a collateral matter which is irrelevant, or to an aspect which substantially formed the basis of its decision; or went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case; or committed various errors that faulted the case beyond redemption. The hallmark is invariably, in all this, a miscarriage of justice, and the decision must be set aside on appeal: see Atolagbe vs. Shorun (1985) 1 NWLR (Pt. 2) 360; Adimora vs. Ajufo (1988) 3 NWLR (Pt. 80) 1; Agbomeji vs. Bakare (1998) 9 NWLR (pt. 564) 1; Odiba vs. Azege (1998) 9 NWLR (Pt. 566) 370.”
To therefore suggest at this stage that the tribunal clearly went off mark in the handling of the Appellant’s Petition by misconceiving and misconstruing the case put forward before it, is to restate the obvious. It will be recalled that no issue was joined in the pleadings to rebut the presumption under Section 168(1) of the Evidence Act. The result of the tribunal’s misconception went beyond its misconstruing of the Appellants’ Case and was even apparent in the cases it relied upon to arrive at the conclusion that the Appellants did not discharge the burden on them. Such good, well decided cases as GUNDIRI vs. NYAKO (2014)2 NWLR (PT. 1391) 211 AT 244; BUHARI vs. OBASANJO (2003) 12 NWLR (PT. 941) 1; INEC vs.ANTHONY (2010) 7 NWLR (PT. 1245) 1, 18 – 19; OKE vs. MIMIKO (2014)1 NWLR (PT. 1388) 332 AT 376; OKECHUKWU vs. INEC (2014) 17 NWLR (PT.1436) 255 AT 299, relied upon by the trial tribunal, do not apply to the facts of the instant case as all the Petitioners in those cases made allegations of non- compliance and corrupt practices in relation to the conduct of elections at the disputed polling units. None was on exclusion of results already issued at polling units. It is for this reason that the decision of the Courts in these cases that the Petitioners needed to call polling units’ agents were therefore consistent with the issues joined in their pleadings. The tribunal in the instant case therefore erred massively when it relied on the above authorities to hold that the Appellants herein, whose claim was on exclusion of results at the collation centers, ought to have called polling agents or voters to prove their Petition.
I therefore have no hesitations whatsoever, in agreeing with learned Appellants’ Counsel when he submitted following a long line of cases that a case is only an authority for what it actually decides. See PDP vs. INEC (2018) LPELR-4373 SC., 19 paras. A – B, per RHODES VIVOUR, JSC it was held:
“I must remind Counsel that a case is authority for what it decides. Relying on a case without relating to the facts that induced it will amount to citing the case out of the proper context. The whole purpose of citing a case is for the law on it to be known.”
It is appropriate to understand, though erroneously that all the Respondents did in this case was to cite cases which were decided based on allegations that election did not hold or did not properly hold at polling units as authority for Appellants’ complaint that election results issued from the polling units were not collated during ward collation which took place at local government collation centre. Regrettably, the trial tribunal fell into the error of relying on these authorities, which were cited out of the milieu of the facts that informed the decisions in them. It is clear that it was the tribunal’s misapprehension of the nature of the case before it that led it to the perverse decision in which it:
1. Expunged oral and documentary evidence put forward by the Appellants’ witnesses especially PW11 – PW54;
2. Held that the Appellants did not discharge the burden of proof placed on them by the Petition;
3. Held that the Appellants did not establish their entitlement to the reliefs sought in the Petition;
4. Reached the decision dismissing the Petition.
Against the backdrop of the forgoing, it would be appropriate to note that had the tribunal properly appreciated the issue joined between the parties, it would have been clear to it that a complaint of exclusion of results is proved by the:
1. Tendering of Forms EC8A, which were excluded;
2. Tendering of Forms EC8B from which the results in Form EC8A were excluded:
3. Testimony of PW1 – PW54 and;
4. Positive evidence elicited from the Respondents’ witnesses RW1– RW5.
The trial tribunal would also have been guided by the decision in NWOBODO vs. ONOH (Supra); OMOBORIOWO vs. AJASIN (Supra); UDUMA vs. ARUNSI (Supra) and especially the more recent decision of this Court in SEKIBO vs. UCHENDU (Supra), where it was the Petitioner who tendered polling unit results from 1,632 polling units. It is settled law that where the decision of a trial Court is shown, as in the instant case to be perverse, it becomes a bounden duty of the Appellate Court to allow the Appeal and set aside the perverse decision. See UDENGWU vs. UZUEGBU (Supra) and LADEJOBI vs. OGUNTAYO (Supra).
The pertinent question that should, perhaps, next be addressed in this judgment is whether the Appellants as Petitioners discharged the burden of proof placed on them by law in this case? It would be recalled that at page 134 of the judgment of the tribunal, it was held thus:
“From the above, we are of the view that the Petitioners have not by the evidence they adduced before this tribunal; discharge the heavy burden place (sic) upon them by the law to be entitled to the reliefs they sought in this Petition.”
It may, perhaps, on the issue of who bears what burden of proof or what weight is to be borne by the other, be necessary to begin right from first principles.
The position remains that under Section 133(1) of the Evidence Act, 2011 the burden of first proving the existence or non-existence of a fact lies on the party against who the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. Under Section 136(1) of the Evidence Act, (Supra) the burden of proof as the case proceeds may shift from one side to the other. The law is now settled that the burden of proof is fixed on the pleadings. See OKOYE vs. NWANKWO (2014) 15 NWLR (PT. 1429) 93. It follows from the foregoing, that what a claimant bears the burden to prove, is the fact-in-issue between the parties, i.e. facts asserted by a party and denied by the other. In other words, a party does not bear the burden to prove any issue not joined between the disputants.
The question that then begs to be answered at this juncture is what were the issues joined between the parties before the tribunal that required to be proved? The answer to this question is as constant as the proverbial Northern Star; the recurring and irrepressible issue of whether or not the 3rd Respondent excluded the election results from 388 polling units and the effect on the overall result is what the Appellants were required to prove. It was to discharge this burden that the Appellants tendered:
1. Form EC8A for the 388 polling units given to the Appellants’ agent.
2. Form EC8B (Ward Collation Result), which shows clearly that results in respect of 388 polling units were not collated;
3. Forms EC8C, EC8D and EC8E to show the effect of the excluded results on the overall result; and
4. Form EC8A given to Police Officers deployed to the 388 polling units in issue. It will once again be recalled that the Appellants also called 54 witnesses; PW1 – PW54 who gave evidence in proof of the averment on exclusion of results. PW12 – PW34 gave evidence as to how the polling unit results were excluded from the ward collated results in the Local Government Areas in question. There is no doubt going by the contents of the printed records, the evidence stated above, a case of exclusion of results was made out requiring the Respondents to justify the exclusion, failing which the Appellants was entitled to judgment.
Rather than consider and resolve the issue of exclusion thrown up by the pleadings and thus calling for the tribunal’s determination the tribunal once again misconceived Appellants’ case when it held at page 128 of its judgment as follows:
“…We are of the view that it is only after the issue of holding of election is determined that the issue of exclusion of results can arise at the ward collation centre…”
Here is a case in which the issue of whether an Election held or not was never raised between the parties. Rather, what was raised is the issue of Unlawful Exclusion of poll results. Apart from the fact that there was no issue of failure to hold election between the parties, given the state of pleadings, there is a presumption under Section 168(1) of the Evidence Act that elections held in all the polling units on the election day.
On the question of whether the tribunal was right when it not only rejected the evidence of the PW54, but also expunged the exhibits tendered through the said PW54, on the grounds that he had no competence and authority to give evidence and tender the documents tendered by him and that he was “on a frolic of his own”, the need to begin by visiting the facts on the record may be apposite at this stage. As far as the evidence of PW54 is concerned, it all began on the 20thJune, 2019, when the Appellants made an application to the tribunal for the issuance of subpoena on one DCP Rabiu Hussaini AP/No. 36579 of DC DOPS ZN4 Makurdi, Benue State, to be served on him through the office of the Inspector General of Police. The subpoena commanded the said DCP. Rabiu Hussaini to give evidence on behalf of the Appellants and also to bring with him and tender all Forms EC8A, particularly those used in the polling units listed in the schedule thereto amongst other documents connected with the election in the custody of the Police. (See Pages 2273-2290 of Vol. 3 of the Record for the Appellants’ application for subpoena and the issued subpoena).
In obedience to the command of the trial tribunal, PW54 appeared before the tribunal on 31st July, 2019. The Respondents, of course took objection to the competence of PW54 to give evidence in the Petition. The trial tribunal took argument on the objection and in a well-considered ruling of the same date overruled the Respondents’ objections. (See pages 2601-2609 of Vol. 4 of the Record). The Respondents herein appealed against the tribunal’s ruling on the issue. (See the relevant Notice of Appeal at pages 2610-2615 of the Record). Pursuant to the tribunal’s ruling, the PW54 gave his evidence. (See pages 2596-2597 of Vol. 4 of the Record). In the course of his testimony, the tribunal admitted a copy of the subpoena tendered and marked same as Exhibit NNN1-NNN18. He also produced in addition, 368 Forms out of the excluded 388 Forms as he could not lay his hands on the other 20 Forms. (See pages 2.597-2.598 Vol. 4 of the Record).
The above 368 Forms tendered were admitted in evidence and marked as Exhibits PPP1 – PPP366. (See page 2598 of Vol.4 of the Record). The witness finally, in-chief testified that upon the receipt of the subpoena through the DIG Zone 4, he proceeded to Owerri to brief the Commissioner of Police on whose authority his successor-in-office i.e. the current DC Operations Imo State released Exhibits PPP1 – PPP366 to him. (See Page 2598 of Vol. 4 of the Record).
A careful look at the record shows that PW54 was rigorously cross-examined by Counsel to the Respondents, but that no one questioned his identity, which was well- spelt out in Exhibits NNN1 – NNN18. However, to the surprise of the Appellants, in its judgment under appeal, the trial tribunal made a volte face with respect to the evidence of the PW54 when it held as follows:
“We find no difficulty in concluding that PW54 has no authority whatsoever to have testified and tender the said Forms EC8A, Exhibits PPP1 to PPP366. At least this tribunal did not see any evidence of such an authority. It is the view of this tribunal that PW54 DCP Rabiu Hussaini was definitely on frolic of his own when he testified before this tribunal and tendered Exhibits PPP1 to PPP366.” (See page 3039 of Vol. 4 of the Record).
The trial tribunal thereafter expunged the PW54’s evidence including Exhibits PPP1 – PPP366 as having been “wrongly” admitted in evidence. it will be recalled that the tribunal took this decision, on the ground that the “subpoena on the strength of which PW54 testified and tendered Exhibits PPP1 – PPP366 was addressed to the Inspector General of Police in Abuja and that, there is no indication that the said document was received by the office of the Inspector General of Police in Abuja where it was addressed to as there is no stamp or signature or name of any person who received it there. (See pages 3038 of Vol. 4 of the Record). But at page 2572 volume 4 of the record is a copy of the subpoena duly stamped, received and dated 24thJune, 2019 indicating that it was received in the office of the Inspector General of Police. In addition, having seen on the face of the subpoena that it was addressed “to DCP Rabiu Hussaini AP/NO/36579 DCDOPS ZN4 Makurdi Benue State” (See pages 22.73 of Vol. 3 of the Record) and not the Inspector General of Police, I still cannot understand what the Hullabaloo by the tribunal was all about concerning the identity of the PW54 or authority under which he was appearing before the tribunal to give evidence. If all the qualms raised by the tribunal had anything to do with the manner by which the subpoena reached the hands of the PW54, the reason for the concern expressed by the tribunal are rather hazy. Here is a situation in which the tribunal had issued a subpoena on a witness to appear in Court and yet awaits the consent of the Inspector General of Police before the witness a Senior Police Officer could be released to appear in Court. What if the Police Chief had ordered otherwise?
The attitude of this Court on the issue is that a witness who testified upon a subpoena validly issued on him by the authority of a Court or a tribunal as in the instant case cannot be said to have no authority whatsoever to testify and tender the Form EC8A, which he was commanded to produce and tender. It is however, regrettable to note that some of the deficits in terms respect and recognition, which the nation’s judiciary presently suffers are self inflicted to say the least. The failure of the tribunal to appreciate that a subpoena issued on the authority of the tribunal in the name of the President of the Federal Republic of Nigeria cannot be subordinated to the imagined authority of the Inspector General of Police is unfortunate. Again, rather than bother with the identity or authority by which the said PW54 had appeared before the tribunal to testify, this Court would have rather the tribunal bothered about the authenticity of the documents the said PW54 had come to tender and to testify about as therein lies the integrity of the whole matter on trial.
I am in agreement therefore, with learned Appellant’s Counsel that the trial tribunal failed to guide itself by the relevant provisions of the Evidence Act on competence and compellability as in Section 175(1) of the Evidence Act, 2011 which provides thus:
“All persons shall be competent to testify, unless the Court considers that they are prevented from understanding the question put to them, or from giving rational answers to those questions, by reason of tender years, extreme old age disease, whether of body or mind or any other cause of the same kind.”
I am also in agreement that none of the disqualifying grounds in Section 175(1) above is applicable to the PW54. Consequently the decision of the trial tribunal that PW54 was incompetent to testify cannot find accommodation in Section 175(1) or any other law for that matter.
Apart from these, the tribunal by so doing, failed to appreciate that relevancy is the primary consideration in the determination of admissibility. Here is a situation in which parties had participated in an election and now have cause to differ on the issue of exclusion and the authenticity of the results relied upon. To save the day, especially as it relates to the question of authenticity, case law now recognizes that copies of the results given to the Police represent an inbuilt mechanism under Nigeria’s Electoral jurisprudence for discovering where the truth lies. See the case of UCHE vs. IGWE & ORS (2012) LPELR – 14439 Pages 36-37 where this Court had this to say on the subject;
“…because election matters are sui generis, election result Forms given to Police Officers are admissible in evidence notwithstanding that they were not the makers of such documents and it did not matter whether such documents were sought to be tendered by Policemen other than the actual Policemen that were given copies of such results…”
See also the cases of NNADI vs. EZIKE (1999) 10 NWLR (PT. 622) 229 decided on the authority of the cases of OMOBORIOWO vs. AJASIN (1984) 1 SCNLR 10 and ADEBAYO vs. MAIYAKI (1991) 1 LRECN 1. The evidential value of copies of election results given to Police Officers during election was underscored by this Court in NNADI vs. EZIKE (1999) 10 NWLR (PT. 622) 229 at 238 paras D-G where it was held:
“In my considered view, Forms given to Police Security cum observers at the polling booth as directed by the provisions of paragraph 34 of Schedule 4 to Decree No. 5 of 1999, constitute an internal solid in-built control mechanism or measure designed to unravel unlawful cancellations, alterations, mutilations and jogging of figures during elections. I agree completely with J.H.C. Okolo, Senior Counsel for the Petitioner, that such result as produced by the Police are the best and tenable available source to test the veracity of the party’s contentions on the issue of what in fact were the actual scores made by the contending parties. To jettison the Forms given to the Police under any guise is like throwing discretion to the winds as it were…”
It will be important to note that Paragraph 33 of Schedule 4 of Decree NO.5 of 1999 is in pari-materia with Section 63(3) of the Electoral Act 2010 (as amended) and paragraph 22(c) (vi) of INEC Guidelines for 2019 General Elections. The said Section 63(3) of the Electoral Act 2010 provides thus:
“63(3): The Presiding Officer shall give to the polling agents and police officer, where available a copy each of the completed forms after it has been duly signed as provided in subsection (2) of this section.”
It is beyond argument or debate that the Petition and the Replies to the Petition were basically grounded on Form EC8A all the parties pleaded and listed the polling unit results. They are therefore relevant to the resolution of the issues in dispute in the Petition. The police copies are particularly relevant and admissible where as in this case, the Respondents raised the issue of the authenticity of the results in their pleadings. The copies given to the police are in those circumstances relevant and tenable to test the veracity of the parties’ contention on the issue of what in fact transpired.
Once again in the case of NNADI vs. EZIKE (Supra), the importance of Police copies of election results has received a boost and its prominence highlighted when this Court had this to say on the subject:
“The tribunal had a duty to do even justice between the parties; shun of all unnecessary technicalities. The tribunal should have aimed at doing substantial justice to unearth the truth of the matter. This should have indeed, impelled the admissibility of those returns as necessary and indispensable tool in the process of its determination even if the returns were not pleaded. I strongly feel that the trial tribunal goofed in rejecting the Police returns. I don’t want to say that it committed a serious blunder. The rejection of Police returns is completely out of order. And so for the purpose of this appeal I shall deal with them as returns 1 – 56 both inclusive. I according rectify the trial tribunal’s error. See the case of NAB Ltd vs. Shuaibu (1991) 14 NWLR (Pt. 186) 450 vide Order 1 r 20 subparagraph 4 of the Court of Appeal Rules 1981: ‘The Court shall have power to draw inference of facts and to give any judgment and make any order which ought to have been given or made and or make such further or other orders as the case may require; including any order as to cost…I shall now look at the effect of the wrong rejection Returns 1 -56 both inclusive. In deed to balance them with returns tendered by the Petitioners on the one hand and those tendered by the Respondents on the other hand.”
Against the background of the foregoing, I cannot help but to be in agreement with Appellants’ Counsel that the learned tribunal was clearly out of order in rejecting the evidence of the PW54 and as well as in expunging the documentary exhibits tendered by him upon some non-existent reasons.
In respect of the evidence of the PW11 and PW51, it will be recalled that the Appellant had sought to establish the case of exclusion of results from 388 polling units by calling amongst other witnesses, the PW11 (the 1stAppellant) and the PW51 (Appellants’ State Collation Agent). Like the proverbial fruits of the poisoned tree, the tribunal once again and under the erroneous belief that it was being invited to resolve a dispute over the conduct of election at polling units, held that the PW11 and PW51 were not competent to give evidence on what transpired during the election at the polling units, which they did not personally attend.
The tribunal therefore wasted no time in treating their evidence as tainted with the hearsay virus and got it all struck out, both the oral and documentary evidence adduced by them, whilst relying on KAKIH vs. PDP. (See page 3033-3036 of Vol. 4 of the Record). Based on the premises of the tribunal’s misconception that it was being invited to resolve disputes which occurred at the Polling units, the tribunal held at page 111 of its judgment (see page 3029 of Vol. 4 of the Record) that:
“…The proper persons to have tendered the polling unit results Form EC8A and speaks (sic) to them were the polling unit agents who accordingly were, the eye witnesses to what transpired at such polling unit. We are therefore in agreement with the counsel to the 1st Respondent that PW11 is not the appropriate person to have tendered Forms EC8A … as he was not the maker of such polling unit results.”
It is important, perhaps, to note that the Forms EC8A tendered by these witnesses (PW11 and PW54) were duplicate originals (Counterparts) handed over to them by the agents who received them, while the Forms EC8B, EC8C, EC8D and EC8E are certified true copies given to them by the 3rd Respondent on their application and upon the payment of the appropriate fees. So that the view expressed by the tribunal concerning the testimonies of the PW11 and the PW51, which derived from the erroneous belief that the witnesses were called to give evidence on what transpired at the polling unit level during the conduct of the election does not hold any water. Once again, this misconception by the trial tribunal is contrary to the case made out in Appellants’ pleading.
The settled position of the law in a case founded on exclusion of results is that a candidate whose results have been excluded is in a position to tender the excluded results. In the case of OMOBORIOWO vs. AJASIN (1984) 1 SCNLR 108, which learned Appellants’ Counsel have rightly referred to as the Locus Classicus on cases bordering on exclusion of election result, it was the Local Government Collation Agents and Security agents that tendered and spoke to the results to prove exclusion. The same procedure was adopted and accepted in NWOBODO vs. ONOH (Supra). See the more recent case of SEKIBO vs. UCHENDU (Unreported) (Supra), where it was the candidate who tendered 1,632 polling unit’s results excluded from collation. In the light of the foregoing, I thereby find and hold that:
1. Forms EC8A, EC8B, EC8C, EC8D and EC8E (original and CTC) tendered through PW11 being documents pleaded and relevant were rightly admitted;
2. Having been rightly admitted and marked as Exhibits, were wrongly excluded; and
3. Exclusion of the testimony arid documents tendered by PW11 and PW51; definitely occasioned a miscarriage of justice.
On the issue of the tribunal referring suomotu to Petition Nos:
EPT/GOV/IM/02/2019 and EPT/GOV/IM/03/2019 not placed before it and drawing adverse inference against the Appellants without hearing the parties rather than considering the issues properly raised and argued by the parties, on the merit clearly occasioned a miscarriage of justice. It is instructive to note that non-collation of results was not raised in the two other petitions and that this makes it extraneous to the instant Petition. Again the two extraneous Petitions had no bearing whatsoever with the facts pleaded and evidence led in the instant Petition. Moreover, the said issue was raised suomotu by the tribunal in its judgment and applied to the disadvantage of the Appellants without affording them the opportunity of a hearing, thereby breaching their Constitutional rights to fair hearing.
The settled position of the law is that where a Court raises an issue suomotu, it must afford parties the opportunity of being heard on them. The rationale was amplified in the case of OKAFOR vs. B.D.U., JOS BRANCH (2017) 5 NWLR (Pt. 1559) 385 at 415 paras C-G, where it was held:
“This is because a court is bound to confine itself to the case presented and the issues raised by the parties. It has no business considering an issue not properly brought before it. Where a Court sees fit to take a point suomotu, the parties must be given an opportunity to address it before a decision on the point is made. Failure to adhere to these guidelines could occasion a miscarriage of justice, as it runs counter to the impartial status and stance expected of a Judge.”
It is important to note that none of the parties raised the facts alluded to by the tribunal in the above passage. The rule governing the procedure a court should follow when it raises an issue suomotu before resolving it are well settled. It is a fundamental requirement that before resolving such issue one way or the other, the Court must hear the parties, particularly the party to be affected by the resolution of the issue. See Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). It is also settled that any decision based on an issue raised suomotu without hearing the parties is nullity and thus liable to be set aside by an Appellate Court. In this case where the issue raised was to provide a ground or premise that there was no exclusion of Appellants’ scores from the results as pleaded the decision flowing from the issue raised suomotu is liable to be set aside and it is accordingly set aside.
In the final analysis, where as in the instant case the trial tribunal is clearly shown from inception to have misconceived the case put forward by the Appellants and misplaced the burden of proof amongst a host of other things, the inescapable conclusion is that the decision reached is perverse and occasioned a miscarriage of justice. In EDILSON (NIG.) LTD vs. UBA PLC (2017) 18 NWLR (PT. 1596) 74, 105 – 106 PARAS. H – A, the Court held that:
“… A decision is said to be perverse:
(a) When it runs counter to the evidence; or
(b) Where it has been shown that the trial Court took into account matters which it ought not to have taken into account or shut it eyes to the obvious; or
(c) When it has occasioned a miscarriage of justice.”
The settled position of the law is that where an Appellate Court is faced with a judgment, as in the instant case that is obviously perverse, the Appellate Court can and in fact has a duty to examine the grounds on which the conclusions and inferences of the Court below were based and if convinced that these were erroneous, an Appellate Court will be justified in re-evaluating the evidence and taking a different view.
Against the backdrop of the foregoing, the case for the Appellants as set out in the Petition is that 1st Appellant scored majority of the lawful votes cast at the election into the office of the Governor of Imo State, held on 9th March, 2019, but that the 3rd Respondent, at the Ward, Local Government and State collation levels, reduced his votes by omitting or excluding (from collation at the ward level) his 213,695 votes contained in the polling unit results (Form EC8As) from 388 polling units, where he scored very high votes. The particulars of the 388 polling units are contained in the Petition. (See pages 9 – 27 of volume 1 of the record). The Appellants further asserted that, if the 3rd Respondent had added the omitted or excluded votes of 213,695 to the score of 96,458 ascribed to them, the 1st Appellant’s total score would have been 310,153 which is higher than 273,404, which the 3rd Respondent used in declaring and returning the 1stRespondent as the winner of the election.
A careful perusal of the Respondents’ Replies to the Petition reveals the following as their defence to the Petition:
(i) The 3rd Respondent did not reduce, omit or exclude the results of the Appellants from the 388 polling units from collation at the ward, Local Government or State collation level.
(ii) The result sheets (Form EC8As) from the 388 polling units, which the Appellants were relying upon are false result sheets.
It is clear that from the state of the pleadings of the parties, while the Appellants had the burden of proving the reduction, omission or exclusion of their results from collation, the Respondents had the burden of proving that the 388 polling unit result sheets relied upon by the Appellants are forged. From the printed records, to therefore suggest that the Appellants succeeded to the hilt in discharging the burden of proof placed on them with regards to the exclusion of results, is to state the obvious. This is against the backdrop of the fact that the Respondents who alleged forgery, a criminal offence, woefully failed to adduce any scintilla of evidence in proof of the allegation. As if this was not enough, at the hearing of the Petition, the Respondents failed to comply with the provisions of paragraph 12 (2) and 15 of the First Schedule to the Electoral Act by pleading what they claimed to be the “genuine” results to enable the Tribunal compare the two sets of results for the purpose of determining, which of the two sets of results was the authentic result from the 388 polling units, since the Respondents disputed the authenticity of the results tendered before the tribunal.
The consequence of neglect to, or failure to comply with the provisions of paragraphs 12(2) and 15 of the First Schedule to the Electoral Act, 2010 is that the 388 polling unit results tendered by the Appellants are deemed not challenged or controverted. See AGAGU & ORS vs. MIMIKO & ORS (2009) LPELR 21149 (CA); HASSAN vs. TUMU [1999] 10 NWLR (PT. 624) 700, 710, and 712.
Having taken a very careful consideration of the state of pleadings of the parties, the evidence adduced before the tribunal, it is clear that for the Appellants succeeded in establishing their entitlement to the main reliefs sought in their Petition and I so hold. This Appeal hereby succeeds per force and it is accordingly allowed.
2nd RESPONDENT’S CROSS APPEAL
The 2nd Respondent, now Cross Appellant filed a Notice of Cross Appeal on the 5th day of October, 2019 challenging an aspect of the lower tribunal’s judgment delivered on the 21st day of September, 2019. Two (2) issues were distilled for the determination of this Cross Appeal by the Cross Appellant as follows:
ISSUES FOR DETERMINATION:
1. Whether by the provisions of Section 179(3) and (4) of the Constitution the Appellant/1st Respondent who did not come 2nd in the Election is vested with any right to challenge the election on the ground of want of geographical spread or non compliance with the provisions of section 179 of the Constitution? (Ground one).
2. Whether the Hon. Justices of the Tribunal below were not wrong in law when they held that failure to join the candidates who came 2nd and 3rd in the questioned election as necessary parties did not render the Petition of the Appellant incompetent? (Ground two).
On the part of the 1st and 2nd Cross Respondents two issues were equally distilled for the determination of this Appeal as follows:
1. Whether having regard to the facts of the petition giving rise to this Cross Appeal, and the state of election law in Nigeria, the lower tribunal was not right in holding that the 1st and 2nd Cross Respondents had the locus standi to present their petition against the declaration and return of the 3rd Cross Respondent as the winner of the 9th March, 2019 Governorship Election of Imo State? (Ground one).
2. Whether having regard to the facts of the Petition giving rise to this Cross Appeal and the state of election law in Nigeria, the lower tribunal was not right in holding that non-joinder of Mr. Nwosu Uche and his political party the Action Alliance (AC) as well as Senator Ifeanyi Godwin Ararume and his political party, the All Progressive Grand Alliance (APGA) is not fatal to the petition.(Ground two).
SUBMISSION OF COUNSEL: CROSS APPELLANT:
ISSUE ONE:
The substance of issue one is that the Appellant /1st Respondent who did not come 2nd in the Election is not vested with any right to challenge the election on the ground of want of geographical spread or non compliance with the provisions of section 179 of the Constitution as he had no locus standi to challenge the election of the 3rd Respondent on that point.
The argument of Counsel is that from the provision of section 179 of the Constitution, it is clear that where the candidate who polled the highest number of votes at the election could not obtain constitutional geographical spread of not less than one quarter of all the votes cast in the two-thirds of all the Local Government Areas in the state, there shall be a run-off election between the said candidate and the candidate who came second. The Appellant/1st Respondent having not come 2nd but a distant 4th, Counsel submitted that he had no locus standi to challenge the victory of the 3rd Respondent on the issue of geographical spread. Counsel urged this Court to resolve this issue in favour of the Cross Appellant.
ISSUE TWO:
On the question of failure to join the candidates who came 2nd and 3rd in the questioned election as necessary parties, Counsel argued that the issues raised in the main Appeal cannot be effectively and exhaustively resolved without the presence of the other candidates since the Appellant took 4th position in the election. In addition, Counsel argued that the other candidates not joined are interested parties in the subject matter of the election as the persons who scored 2nd and 3rd need to state to their own cases before the Court can completely and exhaustively resolve the issue.
1st AND 2nd CROSS RESPONDENTS: ISSUE ONE:
The contention of learned Counsel is that under the state of election law in Nigeria, the lower tribunal was right in holding that the 1st and 2nd Cross Respondents had the locus standi to present their petition against the declaration and return of the 3rd Cross Respondent as the winner of the 9th March, 2019 Governorship Election of Imo State. According to Counsel what was not disputed at the tribunal was that the 1st Cross Respondent was a candidate in the 9th day of March, 2019 election while the 2nd Cross Respondent sponsored the 1st Cross Respondent for the election. Again, that the 1st and 2nd Cross Respondents jointly presented the petition which challenges the outcome of the said election. He said that it is on the basis of this, that the decision of the trial tribunal cannot be faulted. Counsel urged this Court to resolve this issue in favour of the 1st and 2nd Cross Respondents.
ISSUE TWO:
In arguing this issue, learned Counsel drew attention to the fact that the trial tribunal the 1st and 2nd Respondent’s case was that was that the if the valid votes in the election had been reckoned with it was the 1st Cross Respondent who scored 310,153 votes that came 1st and ought to have been returned elected as against the 3rd Cross Respondent who scored 260,162 votes. He said that at the trial tribunal the petition challenged the return of the 3rd Respondent and the decision 4th Respondent who returned the 3rd Respondent despite the fact that he did not score the highest votes in the election. Counsel stated the 1st and 2nd Cross Respondent, in their petition made no allegation whatsoever against Mr. Nwosu Uche and Senator Ifeanyi Godwin Ararume, who respectively came 2nd and 3rd and therefore lost the election. Learned Counsel further contended that at the trial Tribunal non-joinder of Mr. Nwosu Uche and Senator Ifeanyi Godwin Ararume was challenged when it was contended that the failure to join them who came 2nd and 3rd respectively in the election result rendered the Petition incompetent. As far as Counsel is concerned the duo of Mr. Nwosu Uche and Senator Ifeanyi Godwin Ararume are not necessary parties to the Petition and in whose absence the petition cannot be effectively, efficiently and completely tried and determined. Counsel contended that Section 137(2) of the Electoral Act defines who a Respondent is in an election petition as one whose election is complained of. He urged this Court to resolve this issue in favour of the 1st and 2nd Cross Respondents.
RESOLUTION OF CROSS APPEAL
On the 28th day of October, 2019 the 1st and 2nd Cross Respondents filed a motion urging this Court to dismiss the Cross Appellant/Respondent’s Notice of Cross Appeal filed on the 5th day of October, 2019 for failure on the part of the Cross Appellant/Respondent to compile and transmit record of Appeal within the 10 days period allowed by the Election Tribunal and Court Practice Directions, 2011. According to Counsel the time for the Cross Appellant to compile and transmit the said record of Appeal lapsed on the 14th day of October, 2019.
In opposition of the grant of this motion, learned Cross Appellant/Respondent Counsel filed a counter affidavit of 12 paragraphs to which a written address in support is annexed. The counter affidavit was filed on the 30th day of October, 2019. He relied on all paragraphs of the Counter affidavit particularly paragraphs 5, 6, 7 and 8. It was the submission of Counsel that on the 5th day of October, 2019 after the Cross Appellant/1st Respondent Cross Appealed, he immediately fulfilled the conditions of appeal and paid for the compilation of the records of Appeal. Court submitted that this can be seen from the records transmitted which show ex facie that the records were duly complied and certified on the 12th October, 2019 within seven (7) days of the filing of their Notice of Appeal.
Having taken a careful consideration of the motion filed by the 1st and 2nd Respondents urging this Court to strike out the Notice of Cross Appeal of the Cross Appellant/1st Respondent; and having taken a careful consideration also of the counter affidavit and the submissions made by learned Cross Appellant’s Counsel, it is rather glaring even on the face of the records that the Cross Appellant/1st Respondent took steps within seven (7) of the filing of his Notice of Cross Appeal to compile and transmit records of Cross Appeal contrary to the assertions of the 1st and 2nd Cross Respondents. This being the position, this motion filed on the said 28th day of October, 2019 is moribund to say the least and it is accordingly dismissed.
In connection with the Cross Appeal proper and particularly as it relates to the question of right of action or locus standi, the proper section of the law to turn to is Section 137 of the Electoral Act, 2010 (as amended), which requires that a person challenging the outcome of an Election must either have been a candidate in the Election or a Political Party, which participated in the Election. See the case of KAMIL vs. INEC (2010) 1 NWLR (PT. 1174) 125, 142 where this Court had this to say on the subject;
“Now it is no more in dispute that there are numerous decided authorities of Superior Courts that once a Petitioner has expressly stated that he was a candidate in the election, that is enough that he has established his right to present the petition or he has established his locus standi in the petition.”
See also the case also of OKONKWO vs. NGIGE (2006) 8 NWLR (PT. 981) 119. Section 137(1) of the Electoral Act, 2010 as amended which prescribes the categories of persons who may present an Electoral Petition also resolves the problem of who has the requisite locus standi to bring or present an Election Petition to Court. The categories are spelt out as follow:
1. A candidate at an Election
2. A political Party which sponsored candidate for the election.
See also the case of BUHARI vs. OBASANJO (2005) 13 NWLR (PT. 941) 1. It will be recalled that in the Petition that gave rise to this Cross Appeal, the pleadings of the Petitioner/1st Respondent herein disclose that the 1st Cross Respondent is a candidate who participated in the Elections of the 9th day of May, 2019 and that he was sponsored by the 2nd Respondent, thus coming within the ambit of the law as prescribed by Section 137(1) of the Electoral Act, 2010 as amended. To this end, this Cross Appeal is moribund having failed woefully. It is accordingly dismissed.
IT IS HEREBY ORDERED AS FOLLOWS:
1. The main Appeal succeeds and it is accordingly allowed.
2. The Cross Appeal fails and it is accordingly dismissed.
3. Cost of N1,000,000.00 is awarded against the Cross Appellant in favour of the 1st and 2nd Cross Respondents.
IT IS HEREBY FURTHER ORDERED AS FOLLOWS:
1. A DECLARATION that the 1st Appellant and not the 1st Respondent won the majority of lawful votes cast at the election and secured the required Constitutional spread.
2. AN ORDER adding to the 1stAppellant’s score, the scores from the 388 polling units wrongly excluded.
3. AN ORDER setting aside the return and declaration of the 1st Respondent as the winner of the election and declaring the 1st Appellant duly elected.
4. AN ORDER entering judgment in favour of the Appellants in terms of the reliefs sought in the Petition.
5. Cost of N1,000,000.00 is awarded in favour of the Appellants against the 1st Respondent.
Legal Representations:
1. D. O. Dodo, SAN with Chief Olusola Oke, SAN; Nasir Abdu Daugiri, SAN; Abdul Ibrahim, SAN; Chief A. O. Ajana, SAN; and C. O. Akaolisa Esq., for the Appellants.
2. Dr. Onyechi Ikpeazu, SAN with J. T. U. Nnodum, SAN; Bode Olanipekun, SAN; Chidi Nwuke, Esq., and A. S. Ogujiofor Esq., for the 1st Respondent.
3. K. C. O. Njemanze, SAN with Emeka Etiaba, SAN; L. A. Njemanze, Esq., S. A. Anyalebechi, Esq., N. C. Orakwe, Esq., and D. A. Essien for the 2nd Respondent.
4. Aham Ejelam, SAN with C. O. Ahumibe, Esq., for the 3rd Respondent.
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