IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON SATURDAY, THE 16TH DAY OF DECEMBER, 2023
BEFORE THEIR LORDSHIPS:
O.E. WILLIAMS-DAWODU JUSTICE, COURT OF APPEAL
MUHAMMAD I. SIRAJO JUSTICE, COURT OF APPEAL
ABDUL-AZEEZ WAZIRI JUSTICE, COURT OF APPEAL
APPEAL NO: CA/AW/EP/HR/AN/30/2023
BETWEEN:
AND
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
In the judgment of the National and State Houses of Assembly Election Petition Tribunal (trial Tribunal) sitting in Awka, Anambra State, delivered on 20th October, 2023, the election of the 1st Respondent as Member, House of Representatives, Ogbaru Federal Constituency of Anambra State in the general election that held on 25th February, 2023 and the supplementary election of 15th April, 2023, was affirmed, while the petition of the Appellants filed against the declaration and return of the 1st Respondent by the 3rd Respondent was dismissed for lacking in merit.
The Appellants were dissatisfied with the said declaration of the 1st Respondent as the duly elected member of the House of Representatives. As stated earlier, the 1st Appellant, together with his sponsor-party, the 2nd Appellant, filed a petition on 5th May, 2023, to challenge the said declaration of the 1st Respondent before the National and State Houses of Assembly Election Petition Tribunal sitting in Awka, Anambra State (the trial Tribunal), claiming the following reliefs:
(1) A declaration of court that the 3rd Respondent having already collated and declared the score of the Petitioners in the inconclusive election held on 25/2/2023 to elect the member to represent Ogbaru Federal Constituency at the National Assembly to be as 8911, was bound to and had no justification or powers to alter the same to any other score than the aforementioned 8911 votes, only the Honourable tribunal has the powers.
(11) A further Declaration of court that in the circumstances of the present case, that only this tribunal has the powers to have altered or changed the figures contained on the face of the Form EC8C (Il) dated 27/2/2023 and not the 3rd Respondent or any of her officers.
(ili) A Declaration of the honourable tribunal that the 3rd Respondent had acted illegally and wrongfully in ascribing a figure of 8769 instead of 8911 to the Petitioners as their score after the inconclusive election of 25/2/2023 and also ascribing to the 1st and 2nd Respondents a figure or score of 10466 instead of 10399 contained in the Form EC8C (Il) dated 27/2/2023.
(iv) A Declaration of court that the 3rd Respondent was acting "Inter partes" while reviewing or changing the Petitioners' and 1st and 2nd Respondents' scores in the 25/2/2023 inconclusive election to the Ogbaru Federal Constituency Anambra State, from 8911 to 8769 for the Petitioners and from 10339 to 10466 for the 1st and 2nd Respondents, and ought to have given the Petitioners a hearing on the matter before reaching those obnoxious decisions.
(v) A declaration of court that in failing to give the petitioners such a hearing or opportunity to be heard before changing the Petitioners' scores and the 1st and 2nd Respondents' scores to the detriment of the Petitioners had occasioned a breach of the right of the 1st Petitioner to fair hearing under Section 36 of the 1999 Constitution of Nigeria (As Amended) and that the review therefore came to naught and cannot stand.
(vi) A declaration of court that the Petitioners had won the election to the Ogbaru Federal Constituency which commenced on 25/2/2023 but was concluded on 15/4/2023 with a majority of the lawful votes of 10,761 to the 1st and 2nd Respondents 10,730 votes.
(vii) An order of the tribunal nullifying the declaration of result and return made in favour of the 1st and 2nd Respondents that they won the election with 10,895 votes, and in his stead a declaration of court that the 1st and 2nd Petitioners had won the election and are entitled to the perquisites, rights, privileges that attach to the position of member of the National Assembly representing Ogbaru Federal Constituency.
(viii) A declaration of court that the 1st Respondent was not even qualified to contest in the election being that his name cannot be found in any register of members of the 2nd Respondent to be kept with the 3rd Respondent and it also being that there were no congresses or proper primaries of the 2nd Respondent before the 2023 general election.
The learned trial Judges of the Tribunal, at the close of the trial, delivered their considered judgment on 20th October, 2023; as reproduced at pages 921-1017 of the Record of Appeal, wherein the Tribunal found the petition as lacking in merit and consequently dismissed it. The Appellants were further aggrieved by the decision of the Tribunal and had initiated the instant appeal vide a 15-ground Notice of Appeal, dated and filed on 11th November, 2023, and reproduced at pages 1018-1037 of the Record of Appeal.
The Appellants, in line with the Rules of this Court, filed the Appellants’ Brief of Argument on 22nd November, 2023, incorporating five (5) issues for determination in the appeal, to wit;
The 1st Respondent, in response to the Appellants’ submission, filed the 1st Respondent’s Brief of Argument on 27th November, 2023. Four (4) issues were set down for determination in the Brief as follows;
In the same vein, the 2nd Respondent filed its Brief of Argument on 27th November, 2023, where two (2) issues were donated for determination in the appeal, the issues are:
Last of the rung, was the 3rd Respondent who also filed its Brief of Argument on 27th November, 2023 with two (2) issues identified for determination in the appeal, the issues being:
The Appellant filed Reply Briefs to the Briefs of all the Respondents.
The 1st Respondent also filed a Motion on Notice on the same 27th November, 2023, wherein he sought the following reliefs;
The application was premised on 7 grounds as set down on the face of the motion paper, to wit;
(a) The 2nd Respondent did not submit register of its members to the 3rd Respondent not later than 30 days before the date of the 2nd Respondent's primary elections, congresses or convention.
(b) The 2nd Respondent did not hold any form of congresses at all before its "primaries" that led to the 2023 general election.
(a) The 1st Respondent was a member of the All Progressives Congress (APC) and has not resigned his membership of APC
(b) The 1st Respondent was not a member of Labour Party or that the 1st Respondent was not sponsored by Labour Party as its candidate in the election.
The application was supported by a 3-paragraph affidavit deposed to by the 1st Respondent and a written address. The Appellants responded to the argument canvassed in the motion filed by the 1st Respondent, vide the Appellants’ reply filed on 30th November, 2023, consequent to which the 1st Respondent filed a written address in reply to the said Appellants’ reply.
The 1st Respondent, in the written address annexed to the motion paper, argued that the issue of the qualification of the 1st Respondent was not made a ground of the petition filed by the Appellant at the Tribunal. It was contended that the Appellants, at paragraphs 16 and 17 of the Appellants’ petition, only made reference to non-submission of the 2nd Respondent’s register of members to 3rd Respondent in breach of the Electoral Act, 2022 and also non holding of the congresses by the 2nd Respondent before its primary elections. It was the 1st Respondent’s contention that nowhere in the petition was the issue of his qualification based on non-resignation of membership of the All-Progressives Congress, raised. Neither was it in issue at the Tribunal that the 1st Respondent was not a member of the 2nd Respondent-party. It was contended that the Appellants only elicited evidence at the cross examination of the 1st Respondent at trial, which the Appellants were relying on without pleading same before the Tribunal, reliance was placed on the decision in Okwejiminor v. Gbakeji (2008) 5 NWLR$ (Pt.1079) 172 @ 196-197. It was contended that the pronouncement of the Tribunal on the issue of the 1st Respondent’s membership of APC, letter of resignation from the APC and the membership of the Labour Party, was an orbiter of the learned Judges of the Tribunal. Reliance was placed on the decisions in Amadi v. Wopala (2022) 191 (Pt.1811) 359 @ 370 and Onafowokan v Wema Bank Plc (2011) 12 NWLR (Pt.1260) 24 @ 56-57 to submit that the said pronouncement cannot be appealed against. The Court was urged to strike out ground 13 and issue 1 of the Appellants’ Brief of Argument distilled therefrom for being incompetent. Decisions in Ikpeazu v Otti (2010) 8 NWLR (Pt 1513) 38 @ 95; Visafone Comm. Ltd v. MCSN Ltd/Gte (2013) 5 NWLR (Pt 1347) 250 @ 277 were referred to in praying the Court to grant the application.
In response to the submission of the 1st Respondent, the Appellants argued that ground 13 of the grounds of appeal together with the issue raised therefrom, are competent. It was contended that by the averment in paragraph 18 (viii) of the petition, the issue of the 1st Respondent’s membership of the 2nd Respondent party, amongst others was expressly pleaded. It was argued that the Appellant, having raised the issue of the 1st Respondent’s membership of the 2nd Respondent-party, the issue of qualification of the 1st Respondent, vide section 65(2)(b) of the Constitution to contest the election was made an issue, and that the 1st Respondent testified that he was not a member of the 2nd Respondent. It was the Appellants’ contention that the Tribunal’s finding concerning the 1st Respondent’s qualification to contest the election was not appealed against. While relying on the decisions in Odiase v. Agho & Ors (1972) 1 ANLR 170 @ 176; Malifonwu v. Egbuji (1982) 9 SC 145 @ 165; Biariko v. Edeh-Ogwuile (2001) 4 SC (Pt 11) 96 @ 116, the Appellants submitted that the issues were joined by the parties at the Tribunal. It was stated that the pronouncement of the Tribunal was not obiter but rather ratio decidendi which the Respondents failed to appeal against. It was submitted on the strength of the decision in Achiakpa & Anor vs. Nduka & Ors (2001) LPELR-64(SC); Olurin & Ors vs. Sangolana & Ors (2021) LPELR-56280(CA); L.M Erricson Nig Ltd vs. Aqua Oil Nig Ltd (2011) LPELR-8807(CA), that the decision of the Tribunal is binding on the parties till same is set aside on appeal.
The Appellants reiterated that both ground 13 of the grounds of appeal together with issue 1 distilled from it are competent and urged the Court to dismiss the 1st Respondent’s objection to ground 13 and issue 1 drawn from it.
In attempting to resolve this issue of the competence of ground 13 of the Grounds of Appeal as well as the issue attached thereto, it must be stated that the purpose of particulars of a ground of appeal is to furnish both the Respondent and the Court with adequate or sufficient information as to the nature or content of the error of law or misdirection alleged in the ground of appeal. This will allow the Respondent, who is at the receiving end, meet the case of the Appellant as well as to position the Court to determine the nature of the error of misdirection complained of. See: Minister of Petroleum & Mineral Resource & Anor vs. EXPO-Shipping Line (Nig) Ltd (2010) 12 NWLR (Pt.1208) 261 (SC).
I have carefully looked through the submission of the parties in the instant application, vis-à-vis the grounds upon which the Appellants premised their petition. I am not convinced that the Appellants succinctly captured the issue of the 1st Respondent’s qualification to contest the election into the office of Member, House of Representatives for Ogbaru Federal Constituency in the February 25th, 2023, general election and the subsequent supplementary election. Another careful perusal of the Record before the Court shows that nowhere was the ground of the petition filed by the Appellant at the Tribunal premised on the qualification of the 1st Respondent based on his failure to resign his membership of the All-Progressives Congress. I am in agreement with counsel for the 1st Respondent that it was not in issue at the Tribunal that the 1st Respondent was not a bona fide member of the Labour Party, 2nd Respondent-party herein. The position of the law as to the essence of a ground of appeal remains clear that they are basically the reasons why the decision is considered by the aggrieved party to be wrong; it has as its purpose, duty to narrow down and emphasize for attack, the basis of the reasoning of the decision of Court being challenged. See: Ejowhomu vs. Edok-Eter Ltd. (1986) 5 NWLR (Pt.39) 1; Aqua Ltd. vs. Ondo State Sports Council (1988) 4 NWLR (Pt.91) 622. Having so stated, the Appellants are duty bound to highlight succinctly and clearly the reason for their grievance with the decision being appealed against which in my opinion similarly affect their grounds in the Petition. If the qualification of the 1st Respondent based on his membership status of either or both of the APC and/or Labour Party, is of importance to the petition of the Appellants, same ought to be clearly made a ground of the Petition. I agree with the Respondent and it is my view that the Appellants’ conduct of concealing the all-important ground under paragraphs 16 and 17 of the Petition, just to turn back to elicit same at the trial, under cross-examination, is such a queer practice. A soldier goes to war with all his arsenal intact. The Appellants are precluded from relying on evidence elicited under cross examination which is based on an un-pleaded fact. It is trite that any evidence based on un-pleaded facts, even when elicited under cross-examination goes to no issue and ought to be discountenanced. See Udofia vs. Akwa Ibom State Civil Service Commission & Ors. (2011) LPELR-4055 (CA); Chukwurah vs. Shell Petroleum (1993) 4 NWLR (Pt. 289) 512: Okwejiminor vs. Gbakeji (2008) 5 NWLR (Pt. 1079) 172 @ 208 paras B–C, cited supra. I am not convinced by the argument canvassed by the Appellants and I hereby discountenance same. I find merit in the application and inclined to allow it. In consequence therefore, ground 13 of the Appellants’ Notice of Appeal together with issue 1 in the Appellants’ Brief of Argument, which was distilled from the ill-fated ground 13, are hereby struck out.
SUBMISSION OF PARTIES ON THE ISSUES FOR DETERMINATION IN THE APPEAL
Having struck out the Appellants’ issue 1, I will commence the review of counsel’s submission with issue 2 in the Appellants’ Brief of Argument. Learned counsel argued that the 3rd Respondent, after the conduct of the election on 15th April, 2023, credited inexplicable votes to the scores of the 1st Appellant and the 1st Respondent, contrary to the votes obtained by them in the election of 25th February, 2023. That while the Appellant scored 8911 votes, the 1st Respondent got 10,399 votes after the inconclusive election of 25th February, 2023, but the 3rd Respondent credited the 1st Appellant with 8,769 votes and inflated the votes of the 1st Respondent to 10,466. Appellants’ counsel cited the provision of sections 60 (1) (2) and 137 of the Electoral Act, 2022 to submit that the conduct of the 3rd Respondent in this manner amount to a breach of the Electoral Act. The Appellants chronicled many of the conducts complained about from the various polling units in the area, while citing the decisions in Otito vs. Odidi (2010) LRECN 189 @ 195 RATIO 9; Idehenre vs. Omiyi (2010) LRECN 460 @ 465-466 Ratio 10, to submit that the such breach ought to be reverted. It was argued that the Appellants had successfully punctured the rationality of Exhibit EC8A (II) series. The Court was urged to resolve the issue in favour of the Appellants.
In arguing issue 3 of the Appellants’ Brief, learned counsel for the Appellants contended that the Appellants scored majority of the lawful votes cast in the election and are therefore entitled to be declared as the winners in the election. It was averred that the 3rd Respondent kept the truth away from the Court to the effect that the declared final votes in the election were unlawful in that election did not take place in 7 polling units.
On the competence of the Appellants’ Reply to the 3rd Respondent’s Reply to the Petition, it was contended that the Appellants’ Reply, as Petitioners, to the 3rd Respondent’s Reply to the Appellants’ Petition, was competently filed before the Tribunal. Counsel cited the decision in Turaki vs. Sankara (2011) 3 LRECN 104 111 Ratio 12 to submit that there exist new issues in the 3rd Respondent’s Reply to the Petition, to which the Appellants were bound to reply. Counsel also cited the decision in Chime v. Onyia (2009) 2 NWLR (Pt 1124) 1 @ 20 to submit that the trial Tribunal ought not to have shut the Appellants out of their right to be fairly heard. The Court was urged to resolve issue 3 in favour of the Appellants.
Issue 4. The Tribunal, in its decision, expunged from the Record Exhibit A3 for non-compliance with section 84 (2) of the Evidence Act, 2011. It was the Appellants’ contention that the certificate of compliance was duly filed and served. While relying on the decision in Castle vs. Cross (1984) 1 WLR 1372 @ 1377; United States vs. Bonallo 858 f. 201427, 1436 (Circuit Court of Appeals 1988) and Dickson vs. Sylva, (2017) 8 NWLR (Pt 1567) 167, counsel submitted that the Tribunal wrongly excluded Exhibit A3 on the ground that the certificate was not tendered in evidence and thereby denied the Appellants the opportunity of calling oral evidence to support documentary evidence which showed that 757 of the 10,857 votes declared for the 1st Respondent were illegal votes and 230 of the 10,619 votes of the 1st Appellant were also illegal votes. The Court was urged to resolve the issue in favour of the Appellants.
On issue 5, which borders on the issue of prove, counsel argued that the Appellants proved their case upon preponderance of evidence. He referred to decisions in Dangana & Anor vs. Usman & Ors (2013) 6 NWLR (Pt.1349) 50; Wambai vs. Donatus & Ors (2014) 14 NWLR (Pt.1427); 223; Fayemi vs. Oni (2019) LPELR 49291 (SC); Osagie vs. Enoghama (2022) LPELR 58903 (SC); Lawrence vs. Elumelu & 0RS. Unreported Court of Appeal Judgment in CA/AS/EP/HR/DL/06/2023 delivered on 14/9/2023; Anazonwu vs. Onubogu & Ors, (2023) LPELR 59794 (CA), PDP vs. Lucky Ayedatina & Ors (2015) LPELR 41800 (CA) and submitted that the Tribunal was wrong when it held that the Appellants did not prove their case to be entitled to judgment. The other argument of counsel on this issue which touches the question of qualification of the 1st Respondent to contest the election cannot be reviewed in view of my decision striking out issue 1. Most of the arguments of counsel under this issue are repetition of the arguments on the preceding issues 1-4. The Court was urged to resolve the issue in favour of the Appellants and allow the appeal.
In his response to the foregoing Appellants’ submission, counsel for the 1st Respondent stated that the Tribunal was right when it struck out the Appellants’ Reply to the 3rd Respondent’s Reply to the Appellants’ petition together with the Statement on Oath of the PW4, PW5, PW6 and PW11 filed with the said Appellants Reply. It was also contended that the evidence of the PW4, PW5, PW6 and PW11, which was discountenanced by the Tribunal, would not have advanced the case of the Appellants, even if allowed. Counsel cited the provision of paragraphs 14 (1) and (2) (ii); 16 (1) (a) and (b) of the First Schedule to the Electoral Act, 2022 and the decision in Sylva vs. INEC, supra, and submitted that the said Reply was in breach of the statutory provisions cited as there was no new issue to which the said Reply was to address. Court was urged to affirm the decision of the Tribunal striking out the Petitioner's Reply to the 3rd Respondents Reply and the Statements on Oath of the PW4, PW5, PW6 and PW11 filed with the said Appellants/Petitioners Reply for contravening paragraphs 14 (1) and (2) (iii); 16 (1) (a) and (b) of the First Schedule to the Electoral Act, 2022.
Learned counsel further contended that the Tribunal rightly held that the evidence of the PW4, PW5, PW6 and PW11 did not advance the case of the Appellants as their evidence merely supported the official result of the election that supplementary election being challenged. Counsel urged the Court to so hold and resolve the issue in favour of the Respondents.
Under his issue 3, learned counsel for the 1st Respondent submitted that the Tribunal rightly rejected Exhibit A3 being computer-generated evidence. Counsel admitted that the Appellants did file a Certificate of Compliance separately, but same was neither referred to in the Statement on Oath of any of the witnesses of the Appellants nor was it tendered at the trial. Counsel referred to the provision of section 84(4) of the Evidence Act 2011 and the decision in Kubor v. Dickson, supra, in support of the assertion. It was argued that the Appellants was duty bound to plead, tender and link the Certificate of Compliance as well as other documents tendered at the Tribunal. The decisions in Ashiru vs. INEC (2020) 16 NWLR (Pt. 1751) 416, Inainfe vs. Dakukoru (2021) 2 NWLR (Pt. 1761) 477 @ 494-495 were cited to submit that the Exhibit A3 is not legally admissible evidence. The Court was urged to resolve the issue in favour of the Respondents.
On issue 4, premised on the decision of the Tribunal that the Appellants failed to provide cogent evidence in proof of their pleading that exhibit A3 and not exhibit C8 is the authentic result of the main election of February 25, 2023 being contested at the Tribunal, counsel submitted that from the pleading of the Appellants, proof of the authenticity of Exhibit A3, held to be inadmissible in evidence, was crucial for the success of the Appellants claims. It was argued that exhibit A3, being documentary evidence, would not permit oral evidence of its content. Counsel submitted vide the decision in Okunade vs. Olawale (2014) 10 NWLR (Pt.1415), 207 @ 273 that the Tribunal was right not to have ascribed probative value of such oral evidence on exhibit A3, iterating that the decision of the Tribunal on the exhibit can only be set aside if found to be perverse, which the Appellants reportedly failed to establish, citing in support the decision in Iwuoha vs. NIPOST Ltd (2003) 8 NWLR (Pt.822) 308 @ 343 (G-H).
Counsel relied on the provision of section 135 (3) of the Electoral Act, 2022 and submitted that the Tribunal rightly discountenanced the contention that the disparity between the date of Exhibit C8 and the Forms EC8B (II) used to prepare Exhibit C8, invalidated Exhibit C8, and that the presumption of rationality inures to the 3rd Respondent advantage that the conduct of the election was proper on the strength of section 168 of the Evidence Act, 2011.
On the issue of non-holding of election in some selected units, counsel argued vide decisions in Udom vs. Umana (No. 1) (2016) 12 NWLR (Pt.1526) 179 @ 252-253; Ngige vs. INEC (2015) 1 NWLR (Pt.1440) 281 @ 326, F paras. A-C, that the Appellants failed to place before the Tribunal evidence of the disenfranchised people. It was submitted that Exhibit A1, the Form EC8A (II) was rendered redundant with no evidence linking them to the aspects of the Appellants case to which the document relates. The decision in Udom vs. Umana (No. 1) (2016) 12 NWLR (Pt. 1526) 179 @ 244 and Terab vs. Lawan (1992) 3 NWLR (Pt. 231) 569 @ 590 were also referred to in submitting that the Tribunal was right to hold that the Appellants failed to prove their case as pleaded with credible and admissible evidence.
The Appellants filed a Reply to the 1st Respondent’s Brief which in my opinion constitute a mere rehash of the Appellants’ argument, which I shall do well to discountenance same. See: Mozie & Ors vs. Mbamalu (2006) LPELR-1922 (SC)
The 2nd Respondent on issue 1 of its Brief of Argument, canvassed a strong argument, in the same measure as the 1st Respondent to the effect that the Tribunal was right when it held that the Appellants failed to prove their petition and dismissed same on merit. Leaned counsel for the 2nd Respondent argued vide the decision in Agbanobi vs. Agbanobi (2022) LPELR-58430 (CA) that the Appellants were duty bound to prove their petition with credible evidence and not to capitalize on the weakness of the Respondents’ case. Counsel averred that the Appellants did fail to discharge the burden, citing the provisions of section 133 and 134 of the Evidence Act, 2011 and the decisions in Abubakar vs. INEC (2022) 8 NWLR (Pt.1833) 463; Kwajafa vs. BON Hotel (2014) LPELR-1727 (SC).
It was also argued that the decision of the Tribunal that rejected in evidence Exhibit A3 tendered by the Appellants, could not be faulted, arguing that the documents lacked evidential value. He relied on the provisions of sections 88, 89, 90(1)(c), 102, 104 and 105 of the Evidence Act, 2011 and the decisions in Kabau vs. Rilwanu (2014) 4 NWLR (Pt.1397) 284 @ 317; Gagara vs. Yadzimai (2022) LCN/16709 (CA) and Oyeniyi & Ors vs. Bukoye & Ors (2013) LPELR (CA); Egbe vs. Nigerian Army (2020) LPELR-50370 (CA).
Counsel to the 2nd Respondent canvassed same argument as that of the 1st Respondent on the issue of inconsistency of dates in Exhibits B1 and C8 as in the admissibility of exhibit A3. The Court was prayed to resolve the issue in favour of the Respondents and against the Appellants.
It must be noted that, same as in the Appellants’ and 1st Respondents’ Briefs of Argument, issue distilled from the expunged Ground 13 of the Appellants’ Notice of Appeal, together with the submissions thereon, is being discountenanced by the Court.
In the 3rd Respondent’s Brief wherein 2 issues were distilled, only issue 1 survived after expunging the issue distilled from ground 13 of the Notice of Appeal together with the argument therefrom.
In arguing the surviving issue and in response to the Appellants’ contention in their Brief of Argument, learned counsel for the 3rd Respondent argued that the Tribunal was right in its findings that the Appellants could not rebut the presumptions of authenticity and correctness of the officially collated results of the constituency tendered as Exhibit C8. It was the 3rd Respondent’s submission that the Tribunal was right in expunging Exhibit A3 in line with the provision of section 84 of the Evidence Act, 2011. The following decisions were cited and relied on in support; Usman vs. Sani (2019) LPELR-48897, Jubrin vs. F.R.N (2018) LPELR-43998.
Counsel contended that Exhibit A3 being computer-generated evidence was bound to be tendered in evidence along with the mandatory certifications to be contained in the written deposition and/or a certification duly signed and showing the full compliance with the mandatory requirements of section 84 of the Evidence Act 2011 (as Amended). That the Appellants having failed to do so, the said Exhibit A3 without the mandatory certifications is inadmissible under section 84 of the Evidence Act. It was further argued that the law was trite that a frontloaded document that was not tendered in evidence is deemed abandoned and the Court is not bound to rely on same, citing in support the decisions in Obu & Anor vs. Okigwe & Ors (2018) LPELR- 43938 (CA); Kaduna South Local Govt & Ors vs. Gaya (2014) LPELR-41140 (CA) and Oparaji & Ors vs. Ohanu & Ors (1999) LPELR- 2747 (SC)
It was submitted that the decision of the Tribunal that Exhibit A3 had no probative value was sound and goes to the root of the Appellants’ case. Counsel contended that there is no appeal on the said finding, relying on decisions in Daboh vs. Abdulahi (2005) LPELR; Oshodi v. Eyifunmi (2000) LPELR-2805 SC., Mfa vs. Inongha (2014) LPELR-22010 SC, Leventis Tech vs. Petrojessica (1999) 6 NWLR (Pt 605) 45.
Same argument as the 1st and 2nd Respondents was also maintained in the 3rd Respondent’s Brief, especially on the issue of admissibility of exhibit A3 and the rationality of the conduct of the election by the 3rd Respondent, amongst others. The Court shall also adopt the earlier review of the said submission on the said issues.
RESOLUTION OF THE APPEAL
In resolving this appeal, I will adopt the issues formulated by the Appellants, the undisputed proponents of the appeal, save issue 1 which has been struck out in the resolution of the motion filed by the 1st Respondent. I will therefore start with issue 2.
ISSUE 2.
Whether the learned tribunal had acted correctly in attaching probative value to exhibit C8 especially in view of the proof provided by the Form EC8B (II) series and EC8A (II) series tendered as Exhibits before the tribunal which showed that 757 votes credited to the 1st Respondent in the said Exhibit C8 were unlawful and unearned.
This issue questions the trial Tribunal’s reliance on Exhibit C8 despite the presence of Exhibits EC8A (II) and EC8B (II) series tendered before the Tribunal, which, according to the Appellants, shows that 757 votes credited to the Appellants in Exhibit C8 were unlawful and unearned. For the avoidance of doubt, Exhibit C8 is a bundle of INEC documents which contained the certified true copies of BVAS Report, receipts evidencing payment for certification and other results of the election, including the collated results in Form EC8C (II) for Ogbia State Constituency II, that is, the Form for collation of the Constituency result from Form EC8B (II), the results from Registration Areas in the Constituency. The Form EC8C (II) contains the results of the election conducted on 25/02/2023. The said Exhibit was tendered by the 1st Respondent while testifying as RW10. See pages 908-912 of the Record. In the said Exhibit C8, the 1st Appellant scored 8,769 votes while the 1st Respondent scored 10,466 votes. A supplementary election was conducted in some polling units of the Constituency on 15/04/2023 during which the 1st Appellant got 391 votes while the 1st Respondent got 1850 votes. The result of the supplementary election was not challenged before the Tribunal and therefore is not an issue before this Court.
The grouse of the Appellants here is that election did not hold in 7 named polling units yet results were prepared for the said units and entered into the Form EC8C (II) which forms part of Exhibit C8. They argued that if the Tribunal had properly evaluated Exhibit C8, it would not have accorded it probative value. In an attempt to rebut the content of Exhibit C8 (a certified true copy of the collated results of the election of 25/02/2023), the Appellants tendered Exhibit A3, a snapshot of the collated result (Form EC8C (II)) during the inconclusive election of 25/02/2023 dated 27/02/2023. That the snapshot was made on 27/02/2023 by all the Agents of the political parties who were invited by the Collation Officer to take the short with their mobile phones after the election was declared inconclusive. Exhibit A3 tendered by the Appellants was rejected by the trial Tribunal while upholding Exhibit C8 to be the authentic collated results for the election of 25/02/2023. The rightness or otherwise of the Tribunal’s decision to reject Exhibit A3 is one of the issues to be determined in my consideration of issue 4.
The question here is whether the Appellants have succeeded through the Forms EC8A (II) and EC8B (II) series in dislodging the presumption of correctness of election result as declared by the 3rd Respondent in Exhibit C8 through the Forms EC8A (II) and EC8B (II) series tendered by them. In other words, whether the Appellants have demonstrated that the contents of Exhibit C8 is incorrect and that the 1st Respondent was credited with 757 illegal votes in Exhibit C8. The law is firmly settled that where an electoral umpire declares and certifies an election result, there is a presumption that the said result is correct and the processes leading to the declaration were regularly followed. The presumption is a rebuttable one though. See Omoboriowo & Ors vs. Ajasin (1984) LPELR-2643 (SC); Buhari vs. INEC & Ors (2008) LPELR-814 (SC); CPC vs. INEC & Ors (2011) LPELR-8257 (SC); Nyesom vs. Peterside & Ors (2016) LPELR-40036 (SC). The burden is on the person who denies the correctness and authenticity of the declaration and return to rebut same.
The Appellants pleaded in their Reply to the Reply of the 1st Respondent in paragraph 7 thereof, that election did not hold in CPS
Iyiowa/Odekpe/Ohita ward, St Vincent, Iyiowa/Odekpe/Ohita, Ibekwe polling unit Iyiowa/Odekpe/Ohita, show Light II in Okpoko Ward V, Mkpikpa Layout II in Okpoko Ward V, Amazu Motors II in Okpoko Ward V and Mkpikpa Layout V in Okpoko Ward V on 25/02/2023. In other words, that election did not hold in 7 polling units, yet inexplicable figures were generated and added to the final result of the election. In attempting to proof this allegation, the Appellants tendered the Forms EC8A (II) and EC8B (II) series through the 1st Appellant when he testified as PW1. Apart from the evidence of PW1, which is not direct evidence of what transpired in any of the 7 polling units, the only polling Agent of the Appellants who testified that election did not take place in his polling unit, is Wilfred Williams, who testified as PW3. His witness statement deposed to on 09/06/ was frontloaded along with the Appellants’ Reply to the Reply of the 3rd Respondent. That Reply, together with the witness statement on oath of PW3 and other witnesses were expunged by the trial Tribunal. The said witness statement on oath was deposed to more than 50 days after the declaration of result of the election and 35 days after the filing of the Petition. By the combined effect of section 285 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), section 132 (7) of the Electoral Act, 2022 and paragraph 4 (5) of the First Schedule to the Electoral Act, the witness statement of PW3 filed on 09/06/2023 is invalid for contravening the provision of the Constitution and relevant Statute. Apart from PW3, no other polling Agent of the Petitioners was called to give evidence as to the non-holding of election in the affected 7 polling units. The law is settled that only Polling Agents or Polling Officers present in a polling unit can give evidence of non-holding of election in their polling units. In Buhari v. INEC (supra), the Supreme Court stated the requirements of the desired witnesses as thus;
“.. .. who saw it all on the day of election, not those who pick the evidence from an eye witness. No, they must be eye witnesses too. Both (the electoral) Forms and witnesses are vital for contesting the legality or lawfulness of the votes cast and the subsequent result of the election. One cannot be substitute for the other…”
The apex court added thus:
“.. it is not enough for the petitioner to tender only the documents. It is incumbent on him to lead evidence in respect of the wrongdoings or irregularities which affected substantially, the result of the election.”
Therefore, the evidence of the 1st Petitioner/Appellant and his Collation Agents that election did not take place in 7 polling units on 25/02/2023, not being direct evidence of polling Agents, cannot dislodge the presumption of the correctness of the result as officially declared in Exhibit C8. In consequence, I resolve issue 2 against the Appellants.
ISSUE 3
Whether the learned judges of the tribunal had acted correctly in expunging the evidence of PW3, PW4, PW5, PW6 and PW11 from its record and in striking out the petitioner’s reply to the reply of the 3rd Respondent”
The witness statement on oath of PW3, PW4, PW5, PW6 and PW11 were not originally frontloaded with the Petition filed on 05/05/2023, rather they were annexed to the Petitioners’ Reply to the Reply of the 3rd Respondent filed on 09/06/2023. In the said Reply, the Appellants, in response to the 3rd Respondent’s Reply to the Petition denying the Petitioners averments and putting them to the strictest proof same, averred, for the first time, that election did not hold in 7 polling units named therein. This averment was not contained in the original petition even though the Appellants were in possession of the results from their Agents since the declaration of the election as inconclusive on 27/02/2023. Upon considering the Reply of the 3rd Respondent to the Petition, the trial Tribunal held that there were no new facts in the Reply to warrant a further Reply by the Appellants. It is this decision that is being attacked under this issue.
Circumstances under which a Petitioner can file a Reply to a Respondent’s Reply to his Petition are provided for under paragraph 12 of the First Schedule to the Electoral Act, i.e., where a Respondent denies the Petition, he is required to file a Reply clearly and distinctly disproving the claim of the Petitioner. By so doing issues would now be joined in the Petition for trial. Where, however, a Respondent introduces new issues outside his response to the issues in the Petition, the Petitioner shall be entitled to file a Reply – paragraph 16 of the first Schedule. The right of a Petitioner to file a Reply shall, however, not be a license for the Petitioner to amend his Petition by introducing a new issue that was hitherto not in the Petition, as doing so is clearly prohibited by paragraphs 14 and 16(1) of the First Schedule to the Electoral Act. See Oni & Anor vs. Oyebanji & Ors (2023) LPELR-60699 (SC); APC vs. PDP & Ors (2015) LPELR-24587 (SC); Ogboru & Anor vs. Okowa & Ors (2016) LPELR-48350 (SC).
As stated earlier, nowhere in the entire gamut of the Petition, did the Appellants plead the fact that election did not hold in 7 polling units on 25/02/2023. This is a fact that ought to be pleaded to enable the Respondents respond appropriately. The law does not allow the Appellants to ambush the Respondents by subtly introducing new issues in their Reply, thereby amending the Petition through the back door. They cannot now use the instrumentality of a Reply to amend their Petition after the expiry of 21 days allowed for filing a Petition from the date of declaration of result. I hold that the Tribunal was on sound footing when it struck out the Petitioners’ Reply to the Reply of the 3rd Respondent as there is nothing new in the 3rd Respondent’s Reply to warrant a Reply by the Petitioners/Appellants. In the result, I resolve issue 3 against the Appellant.
ISSUE 4
Whether the learned judges of the tribunal had acted correctly in expunging Exhibit A3 from its record because the certificate of compliance with section 84(2) of the Evidence Act was not tendered as an exhibit before the tribunal.
Exhibit A3 is a snapshot (copy) of the collated results, i.e., Form EC8C (II) taken during the inconclusive election of 25/02/2023 dated 27/02/2023. The snapshot, according to the Appellants, was taken on 27/02/2023 by all the Agents of the political parties who were invited by the Collation Officer to take photograph of the collated result with their mobile phones after the election was declared inconclusive, as no copy of the collated result was given to them. Exhibit A3 was tendered by the Appellants and admitted provisionally pending the resolution of objection to its admissibility by the Respondents. In the course of its judgment, the trial Tribunal expunged Exhibit A3 for non-compliance with the provisions of section 84 of the Evidence Act. The Appellants challenged this decision on the ground that the Certificate of Compliance, which was the bone of contention, was filed before the Tribunal and served on the parties, and that the filing of the said Certificate suffices. There is no doubt that Exhibit A3, a photograph of the Form EC8C (II), snaped by the Appellants’ collation Agent before same was printed and tendered before the Tribunal, is electronically-generated evidence, whose admissibility is governed by section 84 of the Evidence Act. This much, the parties to this appeal are agreed. The parties are also agreed that for this type of evidence to be admissible, a Certificate of Compliance with the provisions of section 84 (2) of the Evidence Act ought to be given as a condition precedent to the admissibility of Exhibit A3. There is also no dispute that a Certificate of Compliance duly signed by PW2, the Collation Agent of the Appellants, was filed at the Registry of the Tribunal and served on the parties. The point of disagreement is whether the Certificate of Compliance ought to be tendered in evidence along with the electronically generated evidence or merely filing it at the Registry of the Tribunal will suffice. Learned counsel for the Appellants was of the view that the Tribunal ought to have taken cognizance of the Certificate of Compliance in its file and admit Exhibit A3 instead of expunging it.
Now section 84 (2) of the Evidence Act listed the conditions that must be satisfied before electronically generated evidence can be admissible. I need not list the conditions as that is not the crux of the issue in contention. The same Evidence Act in section 84 (4) provides that where the conditions in subsection (2) are satisfied, a Certificate indicating the satisfaction of the said conditions shall be evidence of the matter stated in the Certificate. For the avoidance of any doubt, section 84 (4) of the Evidence Act provides:
In any proceeding where it is desired to give a statement in evidence by virtue of this section a certificate-
(a) identifying the document containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer. (i) dealing with any of the matters to which the conditions mentioned in subsection (2) above relate; and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate; and for the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (Underlining for emphasis).
The question now is – how can a Court consider the Certificate of Compliance as evidence of the matters stated therein when the Certificate has not been tendered in evidence? Is the Court expected to return to the recess of its Chambers to scrutinize the casefile with a view to finding whether or not the Certificate of Compliance with the conditions stated in section 84 (2) of the Evidence Act has indeed been filed and has in itself complied with the requirements of the law? The answer to this poser is an emphatic No. It is not the duty of the Court to strengthen the case of any of the parties before it as doing so could violate the constitutional right to fair hearing of the other party as well as undermine and compromise the enviable status of the Court as an impartial arbiter. See Ucha vs. Elechi (2012) 13 NWLR (Pt.1317) 330. When the law requires a party tendering electronically generated evidence to give Certificate stating that in the production of the said evidence, the conditions listed in section 84 (2) of the Evidence Act have been complied with, it does not imply that the Certificate of Compliance shall merely be filed in the Court’s Registry. What the law requires is that the electronically generated evidence shall be tendered in evidence along with the Certificate, if the Certificate was given in writing as in this case. This is common sense, as it is the content of the Certificate of Compliance that may or may not qualify the electronically generated evidence for admissibility. Without the Certificate of Compliance being tendered in evidence, the foundation for the admissibility of Exhibit A3, has not been laid. There was nothing before the trial Tribunal to show that the conditions for the admissibility of Exhibit A3 as laid down in section 84 (2) of the Evidence Act have been fulfilled or satisfied. The trial Tribunal was therefore right in rejecting Exhibit A3. This issue is accordingly resolved against the Appellant.
ISSUE 5
Whether the learned tribunal had acted correctly in finding as it did that the Appellant did not prove their case to be entitled to the judgment of the court
I will start the resolution of this issue by observing that the Appellants have, in their Petition before the trial Tribunal, copied at pages 1-30 of the Record of Appeal, failed to state clearly and explicitly the grounds upon which the Petition was Predicated as required by paragraph 4(1)(d) of the First Schedule to the Electoral Act. However, since issues have not been joined by the parties on this fundamental flaw, though an issue of law, I will say no more on this, in order not to breach the parties’ right to fair hearing. Notwithstanding this lacuna, however, a calm reading of the entire Petition will reveal that the Petition was based on three grounds, namely; non-qualification of the 1st Respondent to contest the election, non-compliance with the provisions of the Electoral Act, 2022 and that the 1st Respondent did not score the majority of lawful votes cast at the election. Having resolved the ground of qualification in my Ruling on the motion on notice filed by the 1st Respondent, the only competent grounds left are the grounds of non-compliance with the provisions of the Electoral Act and the ground that the 1st Respondent did not score majority of lawful votes.
It is trite that the standard of proof required of any Petitioner who alleges non-compliance with the statutory provisions in the conduct of an election in certain polling units must prove same on the scale of preponderance of credible and admissible evidence or on the balance of probabilities similar to what is obtainable in any civil matter. The law in this circumstance, placed a primary burden on the Appellants; as the Petitioners in the trial Tribunal, to lead credible evidence with a view to establishing the existence of the assertions in their Petition, so as to shift the evidential burden to the Respondents, who will then be obligated to disprove the established facts of the Appellants by preponderance of credible evidence. See: Oyetola v INEC (2023) LPELR-60392 (SC).
By their allegation that the 1st Respondent was not elected by majority of lawful votes cast at the election conducted by the 3rd Respondent, the Appellants have opened themselves to the obligation of; (a)- tendering all relevant documents, and also (b) calling competent witnesses to adduce oral evidence in linking the documents to their allegations in order to clearly demonstrate that the elected candidate, truly, did not win the majority of the lawful votes cast at the election. The relevant documents include Voters Registers; Electoral Forms, including EC8A (II); Accreditation Registers (now replaced with the BVAS or report of accreditation from BVAS) and any other documents used in the conduct of the election. Also, the witnesses called must testify to the alleged illegality or unlawfulness of the votes cast and how the proved unlawfulness substantially affected the result of the election. See: Oyetola v INEC (supra); Buhari v. INEC (supra).
The Appellants in this appeal, by their allegation that the 2nd Respondent was not duly elected by majority of lawful votes cast at the election, must;
(i) place two sets of results; one being the official votes announced by the electoral body which they consider to be unlawful and the other being the result they believe to be correct;
(ii) tender in evidence all the necessary forms at the election; voters register and the BVAS report of accreditation/machine;
(iii) call witnesses who have capacity to give positive, direct and credible evidence to prove how votes were misappropriated at the election;
(iv) prove that the illegality and/or unlawfulness affected the result of the election substantially - Oyetola v. INEC (supra); Faleke v. INEC (2016) 18 NWLR (Pt.1543).
These witnesses may either be polling unit Agents of the political parties fielded in the election; Presiding Officers of the polling units under focus; or any person, who must be present at the polling units and who observed the either the inaccurate counting of votes, misappropriation of votes and indiscriminate allocation of votes, amongst other breaches. Such witnesses must be able to give direct, cogent and credible evidence, rather than hearsay evidence. See: Buhari v. Obasanjo (supra).
Upon taken another calmer look at the pleadings and evidence of the parties, together with the decision of the trial Tribunal on the Appellants’ Petition, I ask myself the question whether the Appellants were able to meet and/or discharge the foregoing strict line of duty imposed upon them by law.
It is not in doubt the Appellants pleaded two set of results, the official results, which they considered wrong, and their own computed figures. The Appellants have also tendered all the necessary and relevant Electoral Forms. However, it is in the area of evidence that the Appellants fell short of the legal requirements. For example, in attempting to prove that election did not hold in 7 polling units, the Appellants called Collation Agents and the 1st Petitioner to testify. These set of witnesses were not at the affected polling units and so their evidence was not direct but hearsay. What is more, even the Appellants’ pleading that election did not hold in 7 polling units was an afterthought as same was not pleaded in the Petition but in a Reply filed on 09/06/2023, more than 50 days after the declaration of the result of the election. The said pleading was properly struck out as it constituted an attempt by the Appellants to amend their Petition after the expiration of 21 days from the date of declaration of result.
Further to the above, the Appellants have also failed to dislodge the presumption of correctness and authenticity of the officially declared result as contained in Exhibit C8, as their own version of the result (Exhibit A3), being electronically generated evidence, was inadmissible and therefore rejected for reasons stated in my decision under issue 4 supra.
Finally, the Appellants also urged the Court to take a careful look at the Exhibits tendered (Electoral Forms) and scrutinize them in order to arrive at a just decision, relying on the provision of section 137 of the Electoral Act, 2022, when no competent and credible witness demonstrated the alleged non-compliance in his witness deposition. This Court was confronted with a similar argument in the case of Ibrahim Sirajo Tanko & Anor vs. INEC & Ors, Unreported, Appeal No. CA/J/EP/BA/SEN/20/2023. In a considered judgment delivered by me on 27/10/2023, I held, on the implication of section 137 of the Electoral Act in proof of election petition, thus:
The Petitioners/Appellants have made very heavy weather of the provisions of section 137 of the Electoral Act. Let me state unequivocally that despite the sui generis nature of election petition, section 137 of the Electoral Act does not and cannot relieve a Petitioner of the burden of proving his petition to the satisfaction of the Tribunal as required by law. That section does not also relieve a Petitioner of the duty of tying each piece or bundle of documentary evidence to specific aspect of his petition as made out in the pleading. All that the section connote is that instead of calling a host of witnesses to speak to each document tendered as was hitherto the case, a Petitioner can call a single witness or few witnesses to speak to all the documents tendered, if that is possible. But this can only be achieved if the single witness or few witnesses had, in their front-loaded written depositions, made reference to the document or documents and related it or them to the specific non-compliance alleged in the petition. Where that is not already done at the time of filing the petition, a documentary exhibit tendered from the Bar without specific evidence led in proof of its purport, is not worth the paper on which it was written. It still remains the law that documents do not speak for themselves, and I hold the view that section 137 of the Electoral Act has not abrogated the provisions of the Evidence Act to that effect. Even where the allegation of the Petitioner relates to non-compliance, the Petitioner must, through his evidence, expatiate on the nature of the non-compliance and its effect on the declared result of the election. A Petitioner cannot under the guise of section 137 of the Electoral Act dump documents on the Tribunal without more and expect the Tribunal to scrutinize them in the recess of its Chambers in order to decipher the non-compliance complained of. That is not the function of the Court. It will amount to descending into the arena of litigation for the Tribunal to condescend to that level with the attendant miscarriage of justice. I am not unmindful of the qualification for the application of section 137 of the Electoral Act, that the non-compliance must be manifestly disclosed on the face of the document. That notwithstanding, the Petitioner must, first of all, lead evidence of the alleged manifest non-compliance with the Electoral Act through its witness(es) before the Tribunal will look at the documents to see if the non-compliance is manifest thereon. But where no evidence is led, it will not be the duty of the Tribunal to scrutinize the documents for the Petitioner. Section 137 of the Electoral Act is not intended to transfer the age-long constitutional duty of a Claimant or Petitioner to prove his assertion by credible evidence, to the Court, as that will go against the letters and spirit of our Constitution and the rule of natural justice.
I adopt the above dictum in holding that the Appellants have failed to prove their Petition by credible evidence and the trial Tribunal was right in so holding. I resolve issue 5 against the Appellants.
Having resolved all the issues in this appeal against the Appellants, the appeal is hereby dismissed. Judgment of the trial Tribunal delivered on 20th October, 2023, which affirmed the election of the 1st Respondent, Ogene Victor Afamefuna as Member, House of Representatives, representing Ogbaru Federal Constituency, is hereby affirmed.
I make no order as to cost.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
K.C Olemeforo with N. Aroh for the Appellants.
G.B. Obi, SAN, with N. Ogbunankwo for the 1st Respondent.
Ekene E. Ude for the 2nd Respondent.
G.C. Igbokwe, SAN, with D.N. Ezika for the 3rd Respondent.
