In The Court of Appeal

(Calabar Judicial Division)

On Thursday, the 17th day of November, 2011

Suit No: CA/C/NAEA/248/2011

Before Their Lordships

 Between

 And

ISAIAH OLUFEMI AKEJU, J.C.A (Delivering the Leading Judgment): This appeal is against the judgment of the National and State House of Assembly Election Tribunal Holden at Calabar (hereinafter called the Tribunal) delivered on 29th September, 2011 in respect of Election Petition No. EPT/CR/NA/1/2011, filed by the appellant as a result of his dissatisfaction with the result of the election conducted by the 2nd and 3rd respondents for the House of Representative seat of Akampa/Biase Federal constituency on 9th April, 2011.

The appellant, the 1st respondent and other persons not involved in this appeal contested the election. The appellant was the candidate of the Action congress of Nigeria while the 1st respondent carried the banner of the peoples Democratic Party, and at the conclusion of the election, the 3rd respondent declared the 1st respondent as the winner of the election with 40,252 votes while the appellant was credited with 7,068 votes. The result also showed that other candidates at the election, Mr. Owai Andy Ewelu of the Labour party had 416 votes; Mr. Peter Ajamba of ANIPP scored 353 votes while Mr. Akor Isaac Eghiaruwa of the DFPF had a total of 342 votes. The 3rd respondent therefore announced the 1st respondent as the candidate that was duly returned.

The appellant who felt dissatisfied with the outcome of the election and the return of the 1st respondent filed Election Petition No. EPT/CR/NA/1/2011 at the Tribunal on 28th April, 2011, on the following grounds as stated in paragraphs 38 to 40 of the petition:

"38. The election was invalid by reason of non-compliance the provisions of will Electoral Act 2010 as amended.

39. The 1st respondent was at the time of the election not qualified to contest the election. 

44. The petitioner scored the highest number of lawful votes cast but the 1st respondent was declared the winner."

The Petitioner then sought the following reliefs:

A declaration that the election into the House of Representatives for Akampa and Biase Federal Constituency held on 9th April, 2011 was invalid by reason of non-compliance with the provisions of Electoral Act 2010 as amended.

b. A declaration that the election into the House of Representatives for Akampa and Biase Federal Constituency held on 9th April, 2011 is null and void.

c. An order that a fresh election be conducted into Akampa and Biase Federal Constituency.

d. A declaration that the 1st Respondent was not qualified to contest election into the House of Representatives for Akampa and Biase Federal Constituency.

IN THE ALTERNATIVE

a. A declaration that the petitioner scored the highest number of votes cast in election held on 9th April, 2011 in Akampa and Biase Federal Constituency.

b. A declaration that the petitioner was validly elected in election held on 9th April 2011 in Akampa and Biase Federal Constituency.

c. An order directing the 3rd respondent to issue a Certificate of Return to the petitioner for the election held on 9th April, 2011 in Akampa and Biase Federal Constituency."

See pages 4-5 of the record of appeal.

The petition was served on the parties and the 1st respondent filed a reply on 15th July, 2011 upon the order of the Tribunal extending the time to do so. The 2nd 3rd and 4th respondents however did not file any reply to the petition, their prayers for enlargement of time having been refused by the Tribunal. The petitioner filed a reply to the 1st respondent's reply on 23rd July 2011 and the hearing of the petition commenced on 4th August, 2011. The petitioner testified as PW1 and called two witnesses as PW2 and PW3 while the respondents did not call any witness, but all the parties submitted written addresses which were adopted on 6th September, 2011, after which the Tribunal adjourned for judgment that was delivered on 29th September, 2011 dismissing the petition. See pages 852-8 62 of the record of appeal.

The Tribunal had held as follows inter alia at page 861;

"The burden of proven an election petition is on after, and not before, the petitioner discharges that burden. This is so even where the respondents have not proffered any defence to the petition. The discharge of that burden is done by leading credible evidence in support of pleadings and no matter how well couched pleadings are and however brilliant the submissions of counsel may be they cannot constitution (sic) substitutes to evidence."

And concluding the judgment on page 852, the Tribunal held that: 

"This petition is bereft of any evidence from the initiator of the proceedings, the petitioner which would warrant the court to call upon the respondents to put up a defence. Where evidence, which is the backbone of a trial is completely lacking as in the instant petition, the petition is doomed for failure." 

The appellant felt aggrieved by the judgment of the Tribunal and filed his Notice of Appeal on 11/10/2011 with four grounds of appeal, and in the Appellant's Brief of Argument filed on 21st October, 2011, the appellant's learned counsel, William Ballantyne Esq. formulated a lone issue for determination at page 11 as follows:

"Whether having regard to the provisions of the Electoral Act 2010 (-as amended) and other extant laws, the trial Tribunal did not breach the right to fair hearing of the appellant when it held that the petition had no evidence to support it as it was not accompanied by valid witness statement on oath. This issue is distilled from grounds 1 and 2 of the Notice of Appeal." 

The 1st respondent filed a brief of argument on 25th October, 2011 wherein the learned counsel, Mba E. Ekweni Esq. adopted the above issue raised by the appellant "with slight modification" as follows:

"Whether taking into consideration the circumstances of the petition, the relevant provisions of the Electoral Act, 2010 (as amended) and such other relevant laws, the lower tribunal breached the Appellant's right to fair hearing when it dismissed the petition for lack of evidence?''

In "the 2nd and 3rd Respondents Brief of Argument" filed on 27th October, 2011, and settled by clement Owuenwunor Esq. of counsel, two issues were distilled as follows:

1. Whether the appellant can challenge an interlocutory ruling of the lower Tribunal in an appeal against final judgment without leave of this court.

2. Whether the dismissal of the appellant's petition for want of evidence amounts to a breach of right to fair hearing." 

4th respondent's learned counsel, Nella Andem-Ewa, SAN formulated the following issue for hearing in the brief of argument filed on 25/10/2011:

"whether the Appellant can complain that his right to fair hearing was breached after failing to appeal against the ruling of the Tribunal, dismissing witnesses 2-3 but proceeded to apply for additional witnesses to testify on his behalf."

At the hearing of this appeal on 14th November, 2011, the learned counsel for the appellant, the 1st, the 2nd and 3rd and 4th respondents adopted their respective Briefs of Argument and urged that this appeal be allowed (appellant) or dismissed (respondents).

In addition to his argument in the Brief, the learned counsel for appellant, argued orally that Section 285 of the Constitution of the Federal Republic of Nigeria had been altered, the effect of which alteration is that Election Tribunals now have jurisdiction over all matters whether pre or post election. He referred also to Section 228 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as well as Sections 138 and 87 (9) of Electoral Act 2010 (as amended). 

In his oral argument, learned counsel for the 1st respondent opined that Section 87 (10) of Electoral Act, 2010 (as amended) has clearly provided that the venue for ventilation of any complaint relating to pre-election matters particularly nomination of candidates is not the Election Tribunal. He submitted that parties are bound by their pleadings and facts admitted do not require further proof as laid down in Section 75 of Evidence Act. He said the 1st respondent had joined issues with the appellant in respect of his (appellant's) averments in paragraphs 2-7 of his petition, and invocation of Sections 285, 228 of the Constitution and/or Section 138 of the Electoral Act 2010 (as amended) will be unnecessary in the circumstances of this case. 

The argument of the appellant's learned counsel in his Brief of Argument in relation to the lone issue raised therein is that the petition complied with the provisions of paragraph 5 (1) (b) of the 1st Schedule to the Electoral Act 2010 (as amended), in that written statements on oath of the witnesses were annexed thereto, and the appellant's witnesses properly adopted their written statements on oath which therefore became evidence before the Tribunal. He cited the cases of Udeagha vs. Omegara (2010) 11 NWLR (Pt.1204) 195; Aregbesola vs. Oyinlola (2011) 9 NWLR (pt.1253) 565.

The learned counsel then argued thus at page 13 (3.4): 

"Was the right of fair hearing of the appellant then breached by the trial Tribunal when it failed to ascribe probative value to the evidence adduced by the appellants' witnesses?

The constitutional provision of fair hearing simply requires that parries be heard before a judgment is delivered against them. The appellant was effectively cut out of the judgment seat when the trial Tribunal by its refusal to ascribe any probative value to the evidence adduced by the appellant in proof of his petition. (sic).

Still under this lone issue, the appellant argued that this is a case in which this court should assume jurisdiction as a court of first instance pursuant to Section 15 of the Court of Appeal Act and determine this appeal on its merit. 

According to the learned counsel, the appellant had contended that the 1st respondent was not sponsored by a political party for the election now in contention, and submitted that election is a process and not an event, citing Olrakim & Anor vs. Agbaso & Ors (2010) 6-7 SC 85, and Section 65 (2) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). He cited also the provisions of Section 87 of the Electoral Act 2010(as amended) to support his argument that the 1st respondent was not nominated by the 4th respondent to contest the election. This fact of the 1st respondent not being validly nominated by the 4th respondent to contest the election was pleaded in paragraphs of the petition which averments the 1st respondent did not deny or in any way contradict. He submitted, on the authority of Igbeke v. Emordi (2010) 11 NWLR (Pt. 1204) 1 that the burden of proof on the pleadings is on the party, whether plaintiff or defendant who substantially asserts the affirmative of an issue.

The issue of qualification was also argued by the appellant who submitted that the time to challenge the qualification of a presidential candidate as held in Obasanjo vs. Yusuf (2004) 5 SC (Pt. 1) 27 is after the conduct of the election and announcement of the result.

The appellant also contended that the election he had challenged was invalid by reason of non-compliance with the provisions of Electoral Act 2010 (as amended). This he said he had pleaded in the negative and the burden thereby shifted on the respondents to plead the constitutive activities that will establish without doubt that the elections were conducted in substantial compliance with the provisions of Electoral Act 2010 as amended but the respondents failed to do so.

On the allegations made by the appellant in the petition which were criminal in nature, the learned counsel argued that the court is empowered to severe the criminal averments and deal with the petition on the basis of the surviving averments where the surviving averments can still sustain a ground of the petition, citing Ogboru vs. Uduaghan (2011) 2 NWLR (Pt. 1232) 604;Aregbesola v. Oyinlola (2011) 9 NWLR (Pt. 1253).

The appellant finally contended that in the likely event that this court nullifies the votes recorded for the 1st respondent on account that he was not qualified to contest the election, the lawful votes cast in the elections will be as follows:

"a.     ACN        -    7,068 votes

b.    LP       -    416 votes

c.     CPC       -    342 votes

d.    (sic) ANPP    -    355 votes

f.    PDP       -    Nil 

He urged this court to hold that the appellant scored the highest number of lawful votes cast in the election. 

In his own argument, the learned counsel for first respondent submitted that no issue had been formulated from Ground 3 of the appeal which he urged this court to strike out as abandoned, citing Sunday vs. INBC (2009) 12 NWLR (Pt.1154) 194; Alfred vs. Yakubu (2009) 6 NWLR (Pt. 138) 493.

The learned counsel argued that the period of 21 days within which the appellant can complain against the interlocutory ruling of 4th August, 2011 had since passed and the court should discountenance any argument thereon, citing NEPA vs. Eze (2001) 3 NWLR (Pt. 701) 606; Ogigie vs. Obiyan (1997) 10 NWLR (Pt. 524) 179;Abiola vs. Olawoye (2006) 12 NWLR (Pt. 996) Maduako vs. Onyejiocha (2009) 5 NWLR (Pt.1134) 259. He submitted that it was the appellant that called three witnesses and ended his case and so cannot complain of lack of fair hearing and cannot assert that the petitioner proved the petition by adducing credible evidence since no evidence was placed on record by the appellant in support of his averments in the petition. He submitted that pleadings do not constitute evidence, and cited Kuti vs. Alashe (2005) 17 NWLR (Pt.955) 625; Osigwelem vs. INEC (2011) 9 NWLR (Pt. 1253) 425.

According to learned counsel, the law is that it is he who asserts that bears the burden of proving what he has asserted as settled by Section 135 of Evidence Act Cap. E 14 Laws of the Federation of Nigeria, 2004. He contended that the appellant failed to lead evidence in support of the petition and so failed to proof the same, the effect of which is that the petition was rightly dismissed, citing Imana vs. Robinson (1979) 3 & 4 SC1.

The rule of fair hearing as submitted by the learned counsel on the authority of Kotoye vs. CBN (1939) All NLR 76 is not a technical doctrine but one of substance and does not envisage a standard of justice that is biased in favour of one bf the parties, but one that enjoins the court to be fair to both parties to a dispute. 

On the powers of the Court of Appeal under Section 15 of the Court of Appeal Act, 2004, the learned counsel submitted that an appeal is a rehearing of the case at the trial court as shown on the printed record. It is a review and reassessment of what transpired at the trial court and not an opportunity for the parties to repair their case, or introduce what did not take place at the trial court, citing Mafirnisebi vs. Ehuwa (2007) 2 NWLR (Pt.1018) 385;Adams vs. Umar (2010) All FWLR (Pt. 513) 1289).

The learned counsel contended that the issues raised and argued by the appellant outside the issue formulated did not emanate from evidence before the Tribunal and should be struck out. He submitted that arguments in an appeal cannot be at large but must relate and confined to the issues formulated from the grounds of appeal which must in turn relate to the ratio decidendi of the judgment appealed against, citing NNPC vs. Klifco (Nig) Ltd (2011) 10 NWLR (pt. 1255) 209; VINZ Int'l (Nig) Ltd. Vs. Morohundiya (2009) 11 NWLR (Pt. 1153) 562. 

On the nomination of the 1st respondent by the 4th respondent, the learned counsel submitted that the appellant, a member of a different political party does not have the locus standi to complain as it is entirely an internal affair of the 4th respondent over which a non-member cannot complain, citing Kolawole vs. Foluso (2009) 50 WRN 68; Zaranda vs. Tilde (2008) 10 NWLR (Pt. 1094) 184. 

On the issue of locus standi, the learned counsel cited the following cases: Adesanya vs. President, Federal Republic of Nigeria (2) (1981) 2 SCNLR 358; Thomas vs. Olufosoye (1986) 1 NWLR (Pt. 18) 669; Attorney General of Lagos state vs. Eko Hotel Ltd. (2006) 18 NWLR (pt. 1011) 378; Iwara vs. Itam (2009 17 NWLR (pt. 1170) 337.

The jurisdiction of an Election Tribunal, according to learned counsel is as stated in Section 285 (1) of the constitution of the Federal Republic of Nigeria, 1999 (as amended) and does not cover matters that took place before elections - were held-Doukpolagha vs. George (1992)4 NWLR (pt. 236) 444; Obi-odu vs. Duke (2006) All FWLR (Pt. 337) 537; Jang vs. Dariye (2003) 15 NWLR (pt.843) 459. Enayi vs. Ihuwa (1992) 3 NWLR (pt. 231)548.

He referred to the pleadings of the appellant in paragraphs 2 and 5 at page 1 of the petition to the effect that the 1st respondent was the candidate duly nominated and sponsored by the 4th respondent. He contended that parties are bound by their pleadings, and in the face of those averments the appellant can no longer contest the nomination and sponsorship of the 1st respondent by the 4th respondent to contest the election.

The 2nd and 3rd respondents had in their Brief of Argument submitted that since the appellant did not appeal against the interlocutory decision of the Tribunal by which the written statements on oath of the witnesses were struck out, he cannot incorporate complaints thereon in his final appeal except with the leave of this court since the period allowed for appeals is, by virtue of paragraph 6 of Election Tribunal and Court Practice Directions, 2011 days or 14 days under section 24 (2) (a) of the court of Appeal Act, 2004 which has since lapsed.

The procedure to be followed, as submitted by learned counsel is as stated in Abiola vs. Olawoye (2006) 13 NWLR (Pt. 996) 1; International offshore construction Ltd. vs. SLN Ltd. (2003) 16 NWLR (pt. 845) 177. He urged that the submission of the appellant's counsel on the rejection of the written statements on oath of his witnesses be discountenanced.

The learned counsel contended that the appellant failed woefully to discharge the burden cast on him by Sections 135 (1) and 137 (L) Evidence Act especially that Section 150 Evidence Act establishes a presumption of regularity in favour of the election under contention in this appeal. He cited Chinme vs. Ezea (2009) 2 NWLR (Pt.1125) 263 to submit that there is a presumption that any election declared by a returning officer is authentic and correct and the person who denies its correctness has the burden to rebut it.

He submitted that the appellant failed to meet the standard of proof in an election petition, citing Kolawole vs. Folusho (2009) 8 NWLR (pt. 1143) 338. He submitted also that the appellant failed to tender the documents he purportedly relied upon and this court has no jurisdiction to consider them, citing Abubakar vs. Waziri (2008) 14 NWLR (Pt.1108) 507; Ambgare vs. Sylva (2009) 1 NWLR (Pt.1121)1. 

On the sponsorship of the 1st respondent by the 4th respondent, the learned counsel submitted that the appellant, who himself belonged to a different party has - no locus standi to complain or raise the issue. He cited Kolawole vs. Folusho (supra) at page 399.

The learned counsel cited Ali vs. Osakwe (2009) 14 NWLR (Pt.1160) 75 and submitted that there was no breach of the appellant's right to fair hearing. 

On the appeal to this court to invoke the provisions of Section 15 of Court of Appeal Act, 2004, the learned counsel cited the cases of Gombe vs. P.W. (Nig) Ltd. (1995) 6 NWLR (Pt. 402) 402; Emekwe vs. IMB (Nig) Ltd. (2006) 19 NWLR (pt.1013) 146 and submitted that the appellant's resort to that Section has no basis from the facts of the present case.

The right of the appellant to fair hearing, according to counsel was not breached since he participated at the trial and called witnesses. It was argued further that having failed to file his appeal within the time frame allowed by law, against the interlocutory issue of rejection of witnesses' written statements on oath, the appeal thereon has become incompetent, citing Chime vs. Onyia (2009) All FWLR (Pt.480) 673.

The rejection of the written statements on oath was legitimate because they were based on hearsay evidence without disclosing their source or the name of the informant according to learned counsel who cited Lagos State Governor vs. Ojukwu (1986) 18 NWLR (Pt. 18) 621; Abiola vs. Chief Judge of Kwara State (2008) All FWLR (Pt. 445)340. The statements offended against the mandatory provisions of Sections 77,88 and 89 of the Evidence Act which court must give effect to.

The learned counsel urged court to discountenance all the issues canvassed by the appellant under "Appellant's case" which were based on issues that did not emanate from the judgment of the court and therefore required leave of the court which appellant did not seek and/or obtain. The issues are therefore incompetent. 

The issue of disqualification of 1st respondent, according to learned counsel is an intra-party matter over which the appellant lacks locus standi and which this court lacks jurisdiction to determine as held in PDP vs. Onwe (2011) 4 NWLR (Pt.1236) t66.

I should state that I read also the arguments proffered by the learned Senior Counsel in the Brief filed on behalf of the 4th respondent and I have considered same.

The appellant filed "Appellant's Reply on points of law" on 26th October, 2011 wherein he argued that it would be time saving to incorporate all complaints from interlocutory decisions into those from final judgment in the appeal, citing Aondoaka vs. Ajo (1999) 5 NWLR (Pt. 602) 206. He also argued that paragraph 12 (5) of the 1st Schedule to the Electoral Ac, 2010 (as amended) and other provisions of the Election Tribunal and Court Practice Direction 2011 are mandatory and non compliance with the provisions constitute a violation of the law and not a mere technicality, citing Ladipo vs. Oduyoye (2004) 1 EPR 705; Ojugbele vs. Lamidi (1999) 10 NWLR (Pt. 621) 167; Okereke vs. Yar'Adua (2008) 12 NWLR (Pt. 1100) 95.

The appellant had filed his appeal against the judgment of the Tribunal delivered on 29th September, 2011 which is on pages 852-862 of the record of appeal. The petition of the appellant was dismissed on the ground that it had not been supported by evidence. Indeed the record of appeal shows that the appellant as the petitioner testified before the Tribunal on 4th August, 2011 as the PW1 and called two other witnesses as PW2 and PW3. The written statements on oath of these witnesses were rejected by the Tribunal before they could be adopted, the respondents' counsel having raised objections to the adoption of those statements. The Tribunal delivered rulings separately in respect of each of the PW1, PW2 and PW3 on pages 782-800 of the record of appeal. The learned counsel for the appellant then called no other witness and thereafter submitted a written address which he adopted before the Tribunal adjourned for judgment. There was no appeal against the decisions of the Tribunal in respect of the rejection of the written statements on oath of the witnesses, either separately or incorporated in the instant appeal. It goes without saying therefore that written statements on oath were not put before the Tribunal by the appellant.

The rule of fair hearing requires that the adjudicating authority or court must observe the twin pillars of audi alteram partem - hear the other side, and nemo  judex in causa sua, i.e. no one should be a judge in his own cause. Apart from being a rule of natural justice, the rule of fair hearing is a fundamental right as provided in section 36 (1) of the constitution of the Federal Republic of Nigeria,  1999 (as amended).   Failure to observe this rule of fair hearing in any trial therefore renders such trial null and void. However, the fact to be taken into account in determining whether a court or Tribunal has observed the rule of fair hearing in a trial is not about the eventual outcome of the proceedings. What is rather to be considered is whether a party who is entitled to be heard has been afforded the ample opportunity of being heard. Fair hearing is a matter of the procedure followed by the court and not based on the eventual decision of the Court. See Olufeagba vs. Abdur-Raheem (2010) At FWLR (pt. 512) 1033; Union Bank of Nig. Plc vs. Astra Builders (W/A) Ltd. (2010) All FWLR (pt. 518) 865. I have undertaken a calm study of the record of appeal and I cannot agree with the appellant that the Tribunal failed to observe the rules of fair hearing. The appellant was rather given ample opportunity to state his case. 

It is quite clear that the appellant has argued other issues under this lone issue of fair hearing. The issue of nomination of the 1st respondent by the 4th respondent, the qualification of the 1st respondent and the issue of on-compliance with the provisions of the Electoral Act, 2010 (as amended) have also been argued.

The law is that the issue of nomination as well as sponsorship of candidates for election is within the domain of the political parties. See Adeogun vs. Fasogba (2011) 78 NWLR (Pt. 1250) 427. It was also held in Ezeigwe vs. Nwawulu (2010) All FWLR (Pt.518) 797 that the question of who is a candidate of any political party for an election remains the exclusive preserve of the political parties.

The argument of the appellant that the 1st respondent was not nominated or sponsored by the 4th respondent for the election of 9th April, 2011 is very much defeated by the pleading of the appellant himself who in paragraphs 1, 2 and 5 of the petition averred as follows:

"1 . The Petitioner was a candidate under the platform of the Action Congress of Nigeria in the election into the House of Representatives for Akampa and Biase Federal Constituency held on 9th April, 2011.

2. The 1st respondent was the candidate under the platform of the Peoples Democratic Party in the election into the House of Representative for Akampa and Biase Federal Constituency held on the 9th day of April, 2011. 

5. The 4th Respondent is the party that sponsored the 1st respondent for the election into the House of Representatives for Akampa and Biase Federal Constituency held on 9th day of April, 2011."

The 1st respondent expressly admitted the above facts in his Reply to the Petition and impliedly by the other respondents.

The appellant cannot in law be allowed to resile from the above facts stated by him as the law is elementary that parties as well as the court itself are bound by the pleadings. See Incar (Nig) Ltd. vs. Benson Transport Ltd. (1975) 3 SC 117; Solana vs. Olusanya (1975) 6 SC 55.

Indeed in Dingyadi vs. INEC (2011) All FWLR (pt. 581) 427, the Supreme Court per Adekeye JSC at page 1463 stated the position of nomination, sponsorship and substitution of candidates thus:

"The last bus stop is that issues of nomination, sponsorship and substitution are pre-election matters which by their nature cannot be ventilated before an election petition tribunal as the tribunals are not set up for that purpose."The appellant does not even belong to the 4th respondent and therefore has no locus to complain.

It is the law that the burden of proof in an election petition matter lies on the petitioner who is to adduce cogent evidence in proof of his assertion. See Olufosoye vs. Fakorede (1993) 1 NWLR (Pt. 272) 747. Also where a petitioner alleges that a respondent is not qualified to contest a particular election, the burden is on such a petitioner to establish his allegation. See Buhari vs. INEC (2009) All FWLR (Pt. 459) 419.

By virtue of Sections 135 and 136 Evidence Act, it is the plaintiff in a civil proceedings that has the burden of presenting evidence in proof of the fact in issue since the person who asserts a fact must prove it and it is he (plaintiff) who will fail if no evidence at all is called. See Ajide vs. Kalani (1935) NWLR (Pt. 12) 248.

It is not disputed that the 2nd and 3rd respondents declared the results of the election and announced the 1st respondent as the candidate that won and was duly returned. The law presumes (all be it rebuttable) that the results of an election officially declared by the Electoral Officers are correct, authentic and valid and a person who denies the correctness of the result has the burden of rebutting this presumption. See Nwobodo vs. Onoh (1934) 1 SCNLR 1; Omoboriowo vs. Ajasin (1984) 1 SCNLR 108.

Before I conclude, I have to consider the invitation of this court to exercise the powers under Section 15 of the Court of Appeal Act, 2004 and assume jurisdiction as a Court of first instance. It perhaps needs to be restated here that an appeal is not a new action or a new trial. An appeal is rather a rehearing of the original suit as gleaned from the printed record before the Court upon the complaint against the decision of the trial court. The appellate court therefore is restricted to the issues already determined by the trial court. See Suberu vs. State (2010) All FWLR (Pt. 520) 1263; Balonwu vs. Gov. Anambra State (2010) All FWLR (Pt. 516) 473. 

The powers of this court under Section 15 of Court of Appeal Act must be exercised upon the Peculiarities of individual cases. I find no basis for application of that provision to this appeal.

The Tribunal has found that the appellant did not support the petition with credible evidence, and this Court has no reason to disagree with the findings of the Tribunal. The decision of the Tribunal dismissing the petition is therefore affirmed.

In consequence of the foregoing, I hold that this appeal lacks merit and it is accordingly dismissed.

I make no order as to costs.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother I. Olufemi Akeju, JCA. I am in total agreement with his reasoning and final conclusions.

This appeal locks merit and is hereby dismissed. 

I abide by all the consequential orders in the lead judgment including that as to costs.

JOSEPH TINE TUR, J.C.A.:  I have had the priviledge of reading in advance the judgment of my learned brother, Isaiah Olufemi Akeju (JCA) and I concur. I wish to add the following comments of mine.

The Appellant felt aggrieved by the dismissal of his petition by the Election Tribunal sitting at Calabar, Cross River State on 29th September, 2011 by filing a Notice of Appeal on 11/10/2011 containing four grounds. The lone issue for determination was couched as follows:

"Whether having regard to the provisions of the Electoral Act 2010 (as amended) and other extant laws, the trial Tribunal did not breach the right evidence to support it us it was not accompanied by valid witness statement on oath, This issue is testified from grounds 1 and 2 of the Notice of Appeal."

An issue for determination may arise from many grounds of Appeal but not the other way round. See KALU vs. ODILI (1992) 6 SCNJ (pt.1) 76 at 93.

Argument should be based on an issue formulated for determination by the Appeal court. see KIM vs. THE STATE (1992) 4 SCNJ 81 at 108-109; UDEZE vs CHIDEBE (1990) 1 NWLR (pt.125) 141. Learned counsel formulated a lone issue for determination by this Court that covers only grounds 1 and 2 in the Notice of Appeal. The legal effect is that grounds 3 and 4 not being covered by any issue for determination are deemed abandoned and are accordingly struck out. Arguments canvassed outside the lone issue are hereby ignored by me. This includes all the arguments in the brief respecting the provisions of Section 228, 285 of the Constitution of the Federal Republic of Nigeria 1999 read together with Sections 87(9), (10) and 138 of the Electoral Act 2010 (as amended) etc. An Appeal is any proceeding taken to rectify an erroneous decision of a Court or Tribunal by bringing it before a higher Court or Tribunal. An appellate Court or Tribunal may substitute its own decision against which the Appeal is brought or affirm the decision of the lower Court or Tribunal depending on the facts and circumstances of each case.

The law is settled that findings of fact by the Tribunal disturbed should not be disturbed by an Appeal court or Tribunal except they are either perverse, unsound or not supported by the weight of evidence. In that case, the Appeal or Tribunal examines the grounds and looks at the issues, the reasoning  inferences, and conclusions of the Tribunal or court to arrive at a just decision. See EBBA vs OGODO (1998) 4 SC 84; WOLUCHEM v. GUDI (1981) 5 SC 319; BALOGUN v. AKANJI (1988) 2 SCNJ 104 at 122.

The Tribunal listened to the evidence of the petitioner/appellant and his three witnesses before arriving at the conclusion that the grounds upon which the petition was anchored had not been proved, holding as follows:

"This petition is bereft of any of evidence from the initiator, the proceedings, the petitioner which would warrant the court to call upon the Respondents to put up a defence. Mere evidence, which is the backbone of a trial is completely lacking as in the instant petition, the petition is doomed to failure."

The holding of the Tribunal has support under section 137(1) of the Evidence Act 2004, which reads as follows:  

"137. (1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on their side, regard being had to any presumption that mat arise on the pleadings." 

The petitioner had the first duty of proving the existence of facts to support the grounds upon which the petition was anchored before the burden would shift to the Respondent under section 137(2) and (3) of the Evidence Act supra which reads as follows:

"(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively until all the issues in the pleadings have been dealt with. 

(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence."

The Tribunal found that the evidence adduced by the petitioner and his witnesses was lacking in weight hence did not see how the burden could shift to the Respondents to negative what had not been proved by the Petitioner.

In AKINFOSILE v. IJOSE (1960) 5 FSC 192; Abboit F.J., sitting in the Federal Supreme court held at page 198 that:

"...The person who makes allegations in a pleading is, by the ordinary rules of pleading, bound to produce evidence to substantiate them as part of  his case, and it is not sufficient for him to rely upon the emergence of evidence from the opposite party for the purpose of proving allegations in his own Pleadings. "

His Lordship continued at page 199 of the judgment as follows:

"... I am firmly of the view as above indicated that a Petitioner who alleges in his petition a particular non-compliance avers in his prayer that the non-compliance was substantial, must so satisfy the Court. This the Petitioner failed to do."

The petitioner failed to satisfy the Tribunal there existed any non- compliance with the provisions of the Electoral Act 2010 (as amended) in the conduct of the elections and dismissed the petition. I have read the record. 

Nothing has been urged on this Court to warrant the judgment of the Tribunal being disturbed. I also dismiss the Appeal and abide by the Orders made by my Lord, Isaiah Olufemi Akeju, JCA.

     Appearances