(Enugu Judicial Division)
On Saturday, the 7th day of January, 2012
Suit No: CA/E/EPT/63/2011
Before Their Lordships
HELEN MORONKEJI OGUNWUMIJU....... Justice, Court of Appeal
ALI ABUBAKAR BABANDI GUMEL....... Justice, Court of Appeal
IGNATIUS IGWE AGUBE....... Justice, Court of Appeal
1. MR. JOHN EBEH UZU
2. ALL NIGERIA PEOPLE PARTY Appellants
1. ANTHONY IKECHUKWU OGBU
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & 34 OTHERS Respondents
IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): On the 7th day of January, 2012, we had cause to pronounce the judgment on the Appellants' appeal and allowed same on all Grounds. We also ordered that the election and return of the 1st Respondent be cancelled and his Certificate of Return withdrawn by the 3rdRespondent to enable fresh election to be conducted in the entire Ishielu North State Constituency of Ebonyi State within 90 days.
We also promised to give our reasons for the pronouncement in due course. We shall now proceed to give our said reasons in so holdingthat the Appellants' Appeal succeeded and the consequential ordersmade on the date of the pronouncement of the judgment.
It would be recalled that by their petition dated 16th May, 2011 and filed on 17th May, 2011, the Appellants then petitioners challenged the election and return of the 1st Respondent as the duly elected member into the Ebonyi State House of Assembly, to represent the Ishielu North State Constituency. The petition was predicated on three
Grounds to wit:
1. That the 1st Respondent is not duly elected by the majority of lawful votes cast at the election.
2. That the 1st petitioner is the person that scored the majority of lawful votes cast at the election and ought to have been returned by the 3rd, 4th, 5th Respondents.
3. That the election and return of the 1st Respondent is invalid by reason of corrupt practices and/ or non-compliance with the provisions and principles of the Electoral Act, 2010 (as amended) and the manual for Election officials 2011 p. 5 of the Record.
The Appellants also sought for the grant of the reliefs set down hereunder as follows:-
"WHEREFORE your petitioners pray that:
i. It may be determined and this declared that the 1st Respondent Hon. Anthony IkechukwuOgbu was not duly elected or returned by majority of lawful votes of the Ishielu North Constituency Election held on Tuesday the 26th day of April, 2011.
ii. That it may be determined and thus declared that the said or questioned election and the return of the 1st Respondent Hon. Anthony IkeckukwuOgbu based on the results from the polling units and wards in Ogbeagu, Amazu, UmuhualiNkalagu and Iyonu of Ishielu North Constituency complained of and questioned by your petitioners be voided by acts which clearly violated and breached the principles and provisions of the Electoral Act 2010 (as amended) and INEC manual for Election Officials, 2011.
iii. That 1st Petitioner having scored majority of the lawful and valid votes cast be declared the winner of theIshielu North Constituency of the Ebonyi State House of Assembly Election held on the 26th day of April, 2011.
iv. That it may be determined that going by the lawful votes at the said election, your 1st Petitioner ought to have been returned and should be returned as the winner in theIshielu North Constituency for Ebonyi State House of Assembly held on 26th April, 2011.
v. In addition and/or alternatively, your petitioner be declared as the winner of the said election judging by the result obtained afterthe physical recount and re-examination and/or forensic/biometric testconducted before the tribunal of votes from the affected oraforementioned polling units, and wards.
vi. In further alternative to prayers (iii) and (iv) supra that the election in the Local Government Area, wards and polling units and/or centres questioned your Petitioners (sic) be voided or set aside and fresh election ordered in the wards and polling units complained of or questioned or by your petitioners.
vii. And for such order or further orders as the Honourable Tribunal may deem fit to make in the circumstances". See pp. 18- 19 of the Records.
The 1st, 2nd and 3rd to 37th Respondents filed their respective replies to the said petition and at the hearing the petitioner called 17 witnesses and tendered some documents. The 1st Respondent in rebuttal of the allegation against his election testified and called 11 other persons as witnesses. The 2nd Respondent on the other hand, called 2 witnesses while the 3rd to 37th Respondents called 2 witnesses. At the end of the hearing the trial Tribunal delivered its judgment on 12th November, 2011, wherein it dismissed the petition which is now the subject of this appeal. As had earlier been stated, following the exchange of briefs by the respective counsel for the parties, C.C Okaa Esq. the learned counsel for the Appellants formulated three issues for determination couched in the following terms: Appellants' Issues
i. whether the Tribunal was right on the approach it adopted with regard to the case of the parties, the evident led, it evaluation and conclusion reached in their holding thereby that the presumptions of regularity that inures in favour of the results in the disputed polling units were not rebutted.
ii. Whether the Tribunal was right to nullify the election in the disputed 31 polling units.
iii. Whether the case of the Appellants ought not to have succeeded to warrant the nullification of the 1st Respondent election and for the declaration of the 1st Appellant as the winner of the election.
H.O. Eya Esq. and M.V.C. Ozioko Esq. who settled the brief of the 1stand 2nd Respondents on his part, formulated a sole issue which is:
Whether upon the pleadings, evidence and the circumstances of the petition, the tribunal did properly evaluate the evidence oral and documentary and therefore arrived at a just decision.
For the 3rd to 37th Respondents, Ibeh A. Ikwechegh Esq., and Mathew UgwuochaEsq; of counsel also distilled three issues as calling for determination in this appeal as reproduced hereunder:
1. Whether in the light of pleadings and evidence adduced before it the learned trial tribunal was right in its final judgment?
2. Whether the election for IshieluNorth Constituency held on 26thApril, 2011 was conducted in substantial compliance with the Electoral Act, 2010 as amended and the Manual for Election Officials 2011?
3. Whether the Court of Appeal cannot interfere with the decision of a trial court which is not perverse or occasioned miscarriage ofjustice?
WHETHER THE TRIBUNAL WAS RIGHT ON THE APPROACH IT ADOPTED WITH REGARD TO THE CASE OF THE PARTIES, THE EVIDENCE LED, ITS EVALUATION AND CONCLUSION REACHED IN THEIR HOLDING THEREBY THAT THE PRESUMPTIONS OF REGULARITY THAT INURES IN FAVOUR OF THE RESULTS IN THE DISPUTED POLLING UNITS WERE NOT REBUTTED.
Arguing this Issue, MrOkaa the learned counsel to Appellant; by way of general proposition contended that rebuttable presumption inures in favour of the correctness and authenticity of the results declared by the 3rd Respondent as has been settled by a plethora of authorities a few of which are Nwobodo v. Onoh(1984) 1 SCNLR 1; Omoboriowo v. Ajasin (1984) 7 SCNLR 108; and Buhari v. Obasanjo (2005) 13 NWLR (pt.941); which authorities are however clear that the said presumption of correctness is rebuttable by credible and cogent evidence. He then posed the question whether cogent and credible evidence had been led to rebut the said presumption contrary to the decision of the Tribunal below at page 491 of record?
The learned counsel then argued that the case of the Petitioners as pleaded in the petition was that election in Ishielu North State Constituency was characterized by electoral due process deficit as the results upon which the 1st Respondent was returned was not a true reflection of the actual lawful votes cast or of what happened at the polling units complained of and questioned by the petitioner as they did not emerge from accredited voters in the ordinary course of the voting process and that the Appellants founded their case almost entirely on the result sheets, voters registers and ballot papers used for the election and tendered Certified True Copies of the documents and called witnesses who gave evidence that the election was characterized by irregularities and substantial non-compliance.
He recalled that the questioned election was conducted by the 3rd to 34 Respondents just like the 1st and 2nd Respondents asserted positively that the election was freely and fairly conducted in the questioned polling units. At the trial the 3rd - 346 Respondents who conducted the elections called two supervisory presiding officers who admitted under cross examination that they were not in any of the polling units, did not accredit voters, did not issue ballot papers or recorded the scores in any of the INEC Form.
Learned counsel maintained that despite the assertion of the 3rd - 37th Respondents that elections in the questioned poling units were conducted fairly and that the results were a product of due elections, none of the Presiding Officers who were in charge of the said polling units on the day of the elections and who were parties to theproceedings came forward to testify to justify, explain or support theresults. The Tribunal below, he noted, in the absence of the PresidingOfficers' evidence in the mistaken and erroneous belief as to where the initial evidential burden lies curiously ruled at page 489 records thus.
"Regard been had to what we have said above complied (coupled) with the effect that the 17 witnesses had (called) by the petitioner in respect of 55 polling units in Five (5) wards did not lead evidence on non-compliance with the purse (provision) of the Act and Manual for Electoral Act, 2011 (2010) the evidence of R14 and RW15 as to freeness and fairness and substantial compliance to the provisions of the Electoral Act and Manuals strengthen the cen (case) for the Respondents".
By the above conclusion, it was submitted that it is apparent that the Tribunal did not properly appreciate the case of the parties and the issues thrown up in the petition especially where the evidential burden lay.
Learned counsel then went on to appraise the respective cases of the parties which according to him will show that the issues thrown up in this petition is not such that the evidence of RW14 and RW15 Supervisory Presiding Officers who did not conduct the questioned election can either justify, explain or support. He relied on the cases of Agagu v. Mimiko, Ukpo v. Imoke; Igbeke v. Emordi; (2010) 27 WRN 76 and Fayemi v. Oni (2011) ALL FWLR (Pt.554) 1 50 - 51 H-C; to further submit that the settled position of the law is that it is the Respondent especially the 3rd - 37th Respondents who conducted the election and positively asserted the due conduct who had the burden to introduce evidence. Still on the burden of proof in this case, learned counsel relied on Fayemi v. Oni (2011) ALL FWLR (Pt. 554) 1 50 51 H-C which authority quoted the dictum of Abdullahi PCA in the Court of Appeal decision in Agagu v. Mimiko (supra).
Further references were made to the cases of Amgbare v. Sylva (2009) 1 WNRL (Pt 1121) 1 at 60; Ukpo v. Imoke (2009) 1 NWLR (pt.1121) 90 at 143; Hon. UbaIgbeke v. Senator Joy Emordi&Ors. and Ogboru v. Uduaghan Per DogbanMensem at 700 G-H 308; to further submit that the burden was on the respondents especially the 3rd - 34th Respondents who conducted the election and asserted the due conduct to introduce evidence credible enough to show that elections were indeed conductedin accordance with the provision of the Electoral Act, 2010 and the Manual for Electoral Official.
He maintained that the evidential burden of introducing credible evidence that the Election was fairly conducted which will lead to the presumption of correctness will only arise when the proponent in the instant petition the Respondents especially the 3rd - 34th had discharged the evidential burden which is a precondition to its invocation and that the burden was on the 3rd -34th Respondents to adduce facts upon which to anchor the presumption. In Ogboru v. Uduaghan (supra) this Court held.
The learned counsel for the Appellants drew our attention to the 3rdto 34th Respondents Reply to the petition wherein they averred that inall the polling units in the 6 wards ofIshielu North Constituency the election was free and fair and conducted in substantial compliance with the Electoral Act 2010 [as amended]. Paragraph 3 at page 189 of the records and pages 193-194 thereof were referred to in submitting that in the absence of any scintilla of evidence from the Respondents especially the 3rd to 34th Respondents (the 1st and 2nd Respondents not being the makers of the results) upon which to anchor the presumption of regularity and correctness, the Appellants produced and tendered the result sheets, voters register and ballot papers which on physical examination showed that they were flawed and were not products of a duly conducted election.
Yet according to learned counsel the 3rd -34th Respondents again failed to call the makers of the documents the presiding officers who made them to justify, explain or support the impugned documents. Placing reliance on G. Chitex Ind. Ltd v. O. B. I. Nigeria Ltd (2005) D 14 NWLR (pt.945) 392 at 411; and Aregbesola v. Oyinlola (supra); he asserted that it is quite elementary that when the authenticity of a document is challenged, the makers ought to be called to support the document otherwise no probative value would be given to it, adding that having not led evidence in support of any of their averments to challenge the evidence tendered by the Appellants that the results were not the public of a dully conducted election, the facts laid before the tribunal are unchallenged and uncontroverted.
Learned counsel contended that the Tribunal wrongfully held that despite the failure of the Respondents to discharge the evidential burden; their failure to provide facts upon which to anchor the presumption and despite the failure to call the makers of the documents to justify the manifest irregularities graphically shown in the documents tendered, the result enjoyed a presumption of correctness.
EVIDENCE LED BY THE PARTIES AND ITS EVALUATION, IMPROPER EVALUATION AND NON EVALUATION: Learned counsel for the Appellants went on to address on the evidence led by the parties pointing out that it is not disputed that the questioned election was conducted by the 3rd to 37thRespondents in respect of the polling units. He further noted that the Presiding Officers by virtue of Sections 63(1) (2,) (3), (a) and 65 of the Electoral Act, 2010 and Chapters 3 and 4 of the Manual for Election Officials, conducted the Elections, recorded the scores in all the INEC Forms. He explained that the Appellants in their petition complained that no election was conducted in the questioned polling units as no accreditation, voting or recording of results took place.
The learned counsel then posited in the first place that despite the unchallenged evidence of PW17 /1st Petitioner at page 489 of the records, the Tribunal held that the witness did not explain to the court as to how he arrived at the table/chart during the physical examination of electoral materials. On the evidence relating to theresult sheets and the ballot papers scanned by experts retained by theAppellants who analysed the scanned ballot papers and deposed to factsas to his findings that 2,624 of the finger impressions on ballot papers inspected in 28 polling units in the five 5 wards were thumb printed by 23 individuals; learned counsel argued that the tribunal findings at page 267-270 of the records to the contrary were perverse for reasons stated in paragraphs 3.27 pages 12 to 13 of the Appellants' briefs.
The Tribunal below, learned counsel noted, despite the written deposition of the expert witness who opted to give evidence and to be cross- examined, ruled that no forensic report was tendered before the tribunal and that even though the learned counsel submitted that the 1st petitioner also deposed to additional Witness Statement, the Tribunal below held that the documents were dumped in the Tribunal. Relying on INEC v. Oshiomole (2009) 4 NWLR (Pt 1132) 607. 663-664 and Awuse v. Odili (2005) 16 NWLR (pt. 952) 416; it was contended that the tribunal below duly acknowledged the analysis of the defects as stated at page 464 of the records.
Still on the evidence before the Tribunal, the learned counsel argued that the Respondents especially the 3rd - 34th Respondents in their replies asserted that elections were conducted properly devoid of violence, irregularities and diversion of Election materials but failed to call as witnesses those who were in charge of the conduct of the Election, rather they called RW14 and RW15 who had little to do with the elections. The Petitioners he maintained, gave oral evidence of the physical examination of the voters register and result sheets and ballot papers and pinpointed the inconsistent entries, discrepancies and manifest irregularities, the Presiding Officers who made them refused to give evidence despite their having been made parties in the petition.
He referred us to the pleadings of the Appellants in paragraphs 10(I), (III) (IV), (V) of the Petition on the procedure for elections which procedure was admitted by the Respondents in paragraph 4 of the 1stand 2nd Respondents' Reply and paragraph 1 of the 3rd to 34thRespondents Reply at page 189 of the Records and further to the Appellants disputed results as announced in 11 polling units of Nkalagu ward 9; polling units of Obeagu ward; 5 polling units of Umuhali ward; 3 polling units of Amaezu and 3 polling units of Iyionuward a total of 31 polling units of 5 wards.
According to him, Appellants relied almost entirely on the electoral documents viz result sheets, voters register and ballot papers used for the election and tendered Certified True Copies and also called witnesses who gave evidence of diversion of electoral materials, no accreditation, writing of results outside the designated 31 polling units voters register not marked while scores were recorded forcandidates.
He related how:
(1). PW1"- PW17 voters and polling agents of the Appellants gave eye witness testimonies that no proper election was conducted which testimonies were never shaken during cross examination as can begleaned from pages 402-428 and the Tribunal's summary at page 453-464Records.
(2). The Appellant having averred that no election took place in any of the questioned polling units was granted leave by the Tribunal to inspect the electoral material from the disputed polling units andthey inspected, scanned and obtained certified true copies of the polling units
(3). The Appellants despite having averred that there was no proper election at the 31 questioned polling units with the leave of the Tribunal inspected the electoral material used for the election to wit: the result Forms EC8A(i); the Register of voters and the ballot papers and obtained Certified True Copies of each of these documents.
(4). The 1st Appellant examined and analysed the electoral documents and meticulously and methodically pinpointed the patent defects and manifest substantial irregularities thereby chronicling the patent defects, contradictions, inconsistencies in the electoral documents obtained, examined and analysedand chronicled and x-rayed them polling unit by unit in PW17 (1st Appellant) additional written statement on oath.
(5). The Appellants also tendered the CTC'S of the electoral documents at the trial and they were all admitted as Exhibits P2-P104 without objection. See pages 420-423 Records.
(6) The Appellants compared the figures recorded as accredited voters and voters who voted in the result sheets and the figures marked/ticked in the voters register as accredited and voted as provided by Section 49 (1) and (2) of the Electoral Act, 2010 and chapter 3 bullet 3.2 step (I), (II) and (III) of the Manual for Electoral Officers 2011.
(7). In all the 31 polling units where the INEC made the electoral materials available and were examined and analysed the voters register and the results were compared, and the figures in both documents were markedly different. The written deposition of John EbehUzu appearing at pages 281-396 of the Records refers. Despite the unchallenged evidence of PW17 above, the Tribunal below at page 489 of the records held that "PW17 who is the 1st petitioner himself did not explain for the court as how he arrived at the table during the physical examination of the Electoral materials".
(9). The 1st Petitioner in his Additional written deposition at paragraphs 3, 4 and 5 explained the procedure/process which were to be followed in a dully conducted election and clearly and graphically demonstrated that the entries in the voters register and result Form neither tallied nor were the said Forms stamped or signed. Pages 281-282 of the Records refer.
(10), That in one particular pathetic case of OkpaluObeagu unit 003, two different results were generated, stamped and signed but not dated by the same Presiding Officer with all the parties scoring zero yet 240 was recorded as valid votes. Two of the result sheets bore same serial numbers with the result Form used at Eke Obeagu Code 082.
(11). Ohualiplay ground 001 Obeagu ward, had three different result sheets with two of them bearing same serial numbers.
(12) In Eke Obeagu playground Code 002, three different result sheets
were generated, stamped but not signed by the Presiding Officer, same as in Ogbeje playground 004, where 3 different results were generated, stamped but none was signed nor dated by the Presiding Officer all bore the same serial number with Ohuali playground unit result code 001, same in EgedegeObeagu playground unit result code 007 which had 3 different result sheets with same serial numbers, none of which was stamped, dated or signed.
(13) Forms EC8A Exhibit P56-P59 for Iyionu Community School I, Code 002 was mutilated while that of Iyionu Community School III Code 003 exhibit P1- P5 neither bore any stamp or date nor was it signed. From the foregoing, he submitted that the tribunal had a duty to assess and evaluate PW16's evidence for whatever it is worth as the law is settled that it is the totality of the evidence that has to be evaluated. Moreover, since the ballot papers tendered in evidence were admitted without objection, the tribunal was bound to assess and evaluate the ballot papers as they were in evidence. See INEC v. Oshiomole (2009) 4 NWLR (Pt 1132) 607 at 663-664, Awuse v. Odili(2005) 16 NWLR (pt.952) 416.
The learned counsel on the whole asserted that the Tribunal Judges having duly acknowledged the analysis on the deposition and documents analysed as evidence in a volte face refused to assess or evaluate the oral and documentary evidence when they held as they did at page 488-489 of the Records. Accordingly, it was submitted that the refusal of the tribunal to assess and evaluate the oral evidence of PW17, the result sheets, voters register and ballot papers tendered before it was wrong and perverse and had occasioned a miscarriage of justice for the following reasons.
(i) The Tribunal having agreed that there were a lot of irregularities and defects found in the entries in the voter registers, result Form and ballot papers analyzed in the deposition of PW17 was wrong to have somersaulted to hold that the PW17 did, not "Explain for the court as to how he arrived at the table made during the physical examination of the electoral materials" or that the documents were dumped.
(ii) It is trite law that by the front loading system and by virtue of Paragraph 41(1) and (3) of the 1st Schedule to the Electoral Act, 2010; facts are proved by written deposition and no oral examination of a witness during his evidence in chief is allowed and that PW16 and PW17 having adopted their depositions can only be cross examined by the Respondents.
[iii) under the front loading requirement, a witness' deposition once adopted becomes effective as his evidence in chief of such a witness. Agagu v. Mimiko (2010) 32 WRN 10, Aregbesola v. Oyinlola (2010) 1 WRN 33 at 149, refer.
(iv) The result sheets, voters register in and ballot papers were tendered in evidence and admitted as exhibits and it is trite law that:
"Documentary evidence tendered in the course of proceedings before the trial court are not tendered for the fun-of it. They are tendered by the party with the expectation that the trial court would consider same and come up with meaningful determination for the purpose they were tendered,... interest of justice therefore demands that they beconsidered and looked into, evaluated by the trial court which is also expected to draw conclusion on them" Per Sanusi JCA; Okafor v. Anyakora (2006) ALL FWLR (Pt. 302) 121 at 141, F - G. and INEC v. Oshiomore (supra), Aregbesora v. Oyinlola (supra).
(v)The result sheets, voters register and ballot papers all of which were documents used at the questioned election are not only the most reliable, if not the best evidence in resolving election matters. Aregbesolo v. Oyinlola (2004) 14 NWLR (Pt.1162) 429, per Omage JCA refers.
"I have observed that in election cases, oral evidence and/or the demeanour of witnesses are not important and decisive in setting the issues as documentary evidence tendered. Documents used in an election and all documents containing facts relevant to the issues in a petition are the best form of evidence of resolving election matter. Ogbe v. SuleAsade (2010) ALL FWLR (pt. 510) 612 at 632, Per Eneh JSC para F, "The law I must state had accorded a measure of primacy to documentary evidence as against oral evidence".
(vi) In Awuse v. Odili (2005) 16 NWLR (Pt.952) 416 at 510 "... Under the provision of Section 91(1) of the Evidence Act, the Tribunal had the duty to evaluate the probative value of every documentary evidence tendered before it"
(vii) The Appellants also confronted the witnesses of the Respondents who gave evidence that the election was free and fair and that there was accreditation and recording of results. The witnesses admitted that their names were not ticked to indicate that they were accredited or that they voted.
(viii) From the printed records, the testimony of the 1st Appellant PW17 as contained in the additional written deposition was not challenged on cross examination and the Tribunal below was not only entitled but were in fact bound to act on the unchallenged evidence and nullify the elections in the polling units. S. P. D.C. Nig. Ltd v. Edamke&Ors (2009) ALL FWLR (Pt. 489) 400 at 435 and BCC Nigeria v. Anyim (2009) ALL FWLR (Pt. 488) 378 at 395 B-D; referred.
(ix) The law is that it is the totality of the evidence that has to be evaluated and assessed together. A judge cannot pick and chose the evidence to See Aregbesola v. Oyinlola (supra) at, 106, Wali v. Bafarawa v. (2004) 16 NWLR (Pt.898) 1 at 47 per Obadina JCA he assessed and evaluated. thus:
"The law is that the totality evidence has to be evaluated and assessed together and that the judge cannot pick the evidence to be assessed".
For the foregoing reasons, he complained that the Tribunal neither evaluated the oral evidence of PW16 nor that of PW17 nor did the Trial Tribunal also assess or evaluate the result sheets, voters registers and ballot papers tendered before it and admitted as evidence; adding that from all the parameters, the Appellants led sufficient oral and documentary evidence that assailed the results from all the disputed
31 polling units on which parties joined issues that should have led to the success of the Petition, but quite curiously the Trial Tribunal members in the judgment appearing at page 488 of the Records held as they did.
From the holding above at the said page 488 of the Record of the proceedings, learned counsel contended that a holistic reading thereof clearly showed that the trial Tribunal misapprehended the issues before them and the evidence led therein. He maintained that all the oral and documentary evidence taken together support the case of the petitioners that no election known to law took place in the questioned polling units as section 49(2) of the Electoral Act, 2010 and chapters 3 and 4 of the Manual mandatorily provide the procedures to be carried out in a properly conducted election which he reproduced at page 17 of the Appellants brief thus:
"49(2) the Presiding Officer shall name on being satisfied that the names of the person is on the register of voters issue him a ballot paper and indicate on the Register that the person has voted"
"Chapter 3 bullet 3.2 of the Manuals provides as follows:
Step 2: Examine the voters' card to ascertain that the photo on the voters card is that of the voter and that the polling station details are correct for that polling station.
Step 3: Check the register of voters to confirm that the voters name, photo and voters identification number (VIN) is contained on the voters card is in the register of voters.
step 4: Tick to the left of the name of the voter, if the person's name is on the register.
Chapter 4 VOTING
Step 1: Invite the voters to queue to approach the poll clerk in an orderly manner.
Step 2: on presentation of the voter card, the poll clerk shall
i. check on the appropriate cuticle of the left thumb nail
ii. On being satisfied that persons before him/her has been dullyaccredited tick the register of voters on the right side of the voters name indicating that he/she had voted.
iii. Apply indelible ink on the cuticle of the voters right thumb nail."
He then urged us to be persuaded by the decision in Ajadi v. Ajibola(2004) 16 NWLR (pt.898) 91 at 182-183 and also Fayemi v. Oni (supra) at 58; in that, in all the 31 polling units complained of, the constituents of election namely Accreditation, voting and stamping and signing of the ballot papers using a single serial numbered resultForms to record the results was lacking.
On the issue of non compliance, it was further submitted that it is a question of fact and it is the degree of the non-compliance and documentary evidence tendered that will show what constitutes noncompliance.
The case of Na-Buture v. Mahuta (1992) 9 NWLR (pt. 263) 85 at 104 was cited in support of the legal proposition that the noncompliance in accreditation of voters and those who voted and the manifest anomalies of Form EC8A(i), voters register and ballot papers showed grave irregularities in the conduct of the election which the Tribunal failed to evaluate.
On the effect of the unchallenged documentary evidence and presumption of regularity of results learned counsel relied on the cases of Dakolov. Dakolo (2011) 16 NWLR (Pt.1272) 22 at 48 para. E, and Ukpo v. Ngaji(2010) NWLR (Pt. 1174) 175 at 207; to submit that although an election result is presumed correct and authentic until contrary evidence is adduced to show its irregularity, the presumption of regularity of an election results cannot stand compelling documentary evidence falsifying its correctness and authenticity. Furthermore, it is trite that a document is presumed regular only when it appears so on its face.
Any apparent material irregularity on the face of the document detracts from a favourable presumption because the irregularity defeats the presumption.
In the light of the foregoing he posited that the unchallenged documentary evidence i.e. election results in Form EC8A(i), voters register and ballot papers which bore patent irregularities fully set out in the evidence of PW17 and the documents itself which was duly tendered and admitted without objection makes the invocation of presumption of regularity of the results of the said election inapplicable.
On when a tribunal is said to have reached a perverse decision he placed reliance on the case of Daridany v. The State (1994) 1 NWLR (Pt.320) 250 at 260 and MISSR v. Ibrahim (1975) 9 S.C SS where it was held inter alia that it is where the finding is shown to have been reached in clear disregard of settled position of the law, or where the undisputed evidence on record do not support this finding.
In the instant petition, the learned counsel insisted that the Tribunal wrongly approached the evidence led by the Appellants/Petitioners and also did not properly or at all evaluate the overwhelming unchallenged oral and documentary evidence of inexplicable and unexplained patent irregularities on the result sheets, voter register and ballot papers placed before it by the petitioners.
He conceded that it is the primary duty of a trial tribunal which has seen, heard and assessed the witnesses and evidence to evaluate the evidence and ascribe probative value and that as a general rule, whenthe question by a trial court does not involve the credibility ofwitnesses but the complaints is against non evaluation, or improperevaluation or appraisal of all the evidence tendered before the trialcourt, the matter becomes at large for the appellate Court or better put in such a situation an appellate court is in as good a position as the trial court to evaluate the evidence. Kamaldeen T. Fagbenro NSCQR 627 at 649, Ebba v. Ogodo (1984) 1 SCNLR 372 referred.
He finally urged us to invoke our power of re-hearing in the circumstance to uphold the Appellants evidence as unchallenged, un-discredited and entitled to be accepted to establish the case of the Petitioners/Appellants on substantial non-compliance in the conduct of the election in the affected polling units.
ISSUE 2 WHETHER THE TRIBUNAL WAS RIGHT IN REFUSING TO NULLIFY THE ELECTION IN THE DISPUTED 31 POLLING UNITS?
On this issue, learned counsel relied on the arguments earliercanvassed on Issue No. 1 submitting that the results of the election in 31 polling units complained of are not the outcome of a due electoral process and that no election known to law took place in the questioned polling units.
He conceded that the burden is on the appellant to demonstrate to the court that the defect x-rayed in the impugned results are substantial enough to affect the election in the questioned polling units as provided by Section 139 (1) of the Electoral Act, 2010 which states thus:
"An election shall not be liable to be invalidated by reason of noncompliance with the provisions of the Act it appeared to the Election Tribunal or court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did affect substantially result the of the election".
He argued that the petitioner in the petition made the issue of the substantial non-compliance a ground in the petition as the grounds for questioning the election set out at page 5 of the Records.
Counsel further submitted that the Appellants were able to show through the voters register and the result in the 31 complained polling units that all the processes denoting elections to wit accreditation, voting, recording of results in all INEC Forms and collation of results as provided by section 49(1), (2), Chapter 3 and 4 of the Manual did not take place. Learned counsel claimed that the Appellants have been able to show that the result sheets were mutilated, majority of which were neither signed nor dated, result sheets of two or more polling units had same serial number which is not supposed to be.
Moreover: (1) The Appellants were able to show having tendered the ballot papers, that contrary to the mandatory provisions of chapter 4 bullet 4:21 of the Manual for Electoral officials, that ballot papers not stamped nor signed were counted as valid votes in favour of the 1st Respondent. Ajadi v. Ajibola (supra) 166 Per Adekeye JCA (nowJ.S.C.) referred. (II) The Appellants were able to show in acomparative analysis that the figures recorded in the result sheets in the questioned polling units were markedly different with the figures of voters marked/ticked as accredited and voted in the register of voters.
He further argued that where there is no accreditation and no voting, the results of the election cannot be sustained. The marking of the voters register in the 2011 election as provided by Section 49(1) and 2 and Chapters 3 and 4 of the Manual is the only ascertainable method of proving that accreditation and voting took place. For this submission and other aspects of due process of election particularly on the marking of the voters register, accreditation, ballot papers, he relied on Nweke v. Ejims (supra); Ajadi v. Ajibola (2004) 16 NWLR (Pt.898) 91 at 182; Ogboru v. Uduaghan (supra) at 706; and Terab v. Lawan (1999) 3 NWLR (pt.231) 5 569 at 569; to further submit that RW5 - was confronted with the voters register Exhibit P52, and he admitted that there was only one tick in the left side of his picture. Page 434 of the Records refers.
He referred to the admissions of the RW9 and RW11/the 1stRespondent and the inability of the 13th to 37th Respondents to call Presiding Officers who used the voters register, ballot papers and result sheets whose authenticity were challenged and impugned to explain or justify the impugned documents and having not called evidence to support their pleadings or challenge the evidence of the Petitioners, to submit that the Tribunal was wrong in not holding that the 3rd -37th Respondents accepted the facts as adduced by the petitioners. Imana v. Robinson (1979) 3-4 SC 1 at 8; referred.
Learned counsel reiterated that the non compliance in accreditation of voters and the manifest anomalies in forms EC8A(i) showed grave irregularities in the conduct of the election and that the presumption of regularity and correctness of the result were eviscerated by the compelling documentary evidence falsifying their authenticity.
In concluding his arguments on this issue, he submitted that the defects, discrepancies, mutilations, multiple result sheets unstamped and unsigned ballot papers tendered were on their own enough to warrant the nullification of the election in the 31 polling units, as the PW17's analysis of the Exhibits before the Tribunal stood un-contradicted and it is trite law that a court is entitled to rely and act on the uncontroverted or uncontradicted evidence of a plaintiff or his witnesses. In such a situation, he urged, there is nothing to put or weigh in the imaginary or proverbial scale; as the onus of proof is naturally discharged on a minimum of proof. Shell Petroleum Dev. Co. Ltd. v. TigbaraEdamkue (2004) 47 WRN 1 at 31; Amadasun v. Ativie (2010) ALL FWLR (pt505) 728, 751, Ogboru v. Uduaghan (supra); Ajadi v. Ajiboloa(supra); Nweke v. Ejims (supra) were all cited in contending that the Tribunal below was wrong in refusing to nullify the election in the disputed 31 polling units.
ISSUE 3 WHETHER THE CASE OF THE APPELLANTS OUGHT NOT TO HAVE SUCCEEDED TO WARRANT THE NUTLIFICATION OF THE 1ST RESPONDENT ELECTION AND FORTHE DECLARATION OF THE 1ST APPELLANT AS THE WINNER OF THE ELECTION?
On this last issue learned counsel for the appellant further adopted the arguments proffered in respect of issues one and two of the Appellants, Brief that:
i. By the unchallenged evidence of the 1st Petitioner and his witnesses that accreditation and voting as provided by Section 49 (1) and (2) of the Electoral Act, 2010 and chapters 3 and 4 of the Manual for Electoral Officials, 2011 did not take place in any of the 31 questioned polling units.
ii. That the results/scores generated from the said polling units where accreditation and voting did not take place is not an outcome of a due electoral process and ought to be excluded from the votes of candidates.
iii. That the presumption of regularity which ordinarily should enurein favour of the results of the election in respect of the disputed polling units had been rebutted by the compelling documentary evidence falsifying its authenticity figure for figure.
iv. That the results purportedly generated were at variance with the contents of the voters register which by virtue of section 49(1) and
(2) Of the Electoral Act, chapters 3 and 4 of the Manual for Election Officials ordinarily would have been in the same page figure for figure.
v. Result sheets of one polling unit were deployed to rig elections in other polling units contrary to the provisions of the Manual for Electoral Officials.
vi. Ballot papers were unstamped, unsigned and undated.
vii. On account of the above outlined irregularities and more, there have been substantial non-compliance with the provisions of the Electoral Act and the non-compliance has impacted on the election.
Learned counsel for the Appellants rehashed the earlier contention that the Appellants are disputing 31- polling units made up of (1) Nkalagu - 11 polling units, (2) Obeagu - 9 polling units, (3) Umuhuali - 5 polling units,  Amaezu - 3 polling units and Iyonu - 3 polling units.
He admitted that the Appellants are not contesting and are not disputing the results in the following 24 polling units which were not mentioned. To this end, he hinted, the election is being challenged only in respect of 31 poling units leaving the election in 24 polling units undisturbed; the petition was predicated on three grounds one of which was that the 1st petitioner is the person that scored the majority of lawful votes cast at the election and ought to have been returned by the 3rd, 4th and 5th Respondents. Page 5 of the Records
Learned counsel then posed the question as to who scored majority of lawful votes cast at the election as between the 1st Appellant and the 1st Respondent in the event the election in the 31 polling units are nullified which he answered by alluding to the fact that the appellants at the trial tendered the polling units result Forms EC8A(i) of the 31 polling units and they were admitted without objection as Exhibit P2 -P35 for Obeagu ward; P2 -P10, for Iyionu ward - P11 -P14, for Nkalagu P15- P25, Amaezu ward P26-P28 and Umuhuali
Ward P29 - P35.
Also admitted were Forms EC8A(i) for Iyonu ward P36, Amaezu Ward P37, Obeagu Ward P38, Nkalagu Ward Exhibit P39 and Umuhuali Ward P40. Form EC8E(i) for Ishielu North Constituency as Exhibit P41. See pages 421-
He placed reliance on Ngige v. Obi (2006) 14 NWLR (pt. 999) 1 at 233; a decision of the full panel of the court of Appeal to buttress his submission further on this score that the malpractices, defects and other incidents which occurred in the instant petition is sufficient to nullify the elections in the 31 questioned polling units, and we
were urged to proceed to nullify the election in the 31 polling units after which we are still entitled to look at the undisputed results as between the parties to know which of them scored the majority of lawful votes.
Learned Counsel invited us to embark upon a mathematical process of removing the invalid votes upon deducting the scores of the candidates which were not obtained from due process and hold that the result that will be left undisputed would be as shown at page 25 of the Appellants, Brief.
In the light of the above table, learned counsel claimed that it is the 1st Appellant and not the 1st Respondent that scored the majority of lawful votes and that by virtue of section 140(3) of the Electoral
Act, 2010; the 1st Appellant be declared as the candidate who as between himself and the 1st Respondent scored the majority of lawful votes and therefore emerged the winner of the election.
Concluding his arguments, learned counsel prayed that in the event of our not been minded to grant the relief of return as prayed above, we should grant the alternative prayer number 6 in the petition for an order for fresh election in the 31 polling units in the five (5) wards complained of in respect of the election for the representative of Ishielu North State Constituency in the Ebonyi State House of Assembly.
1st AND 2nd RESPONDENTS' ARGUMENT ON THE SOLE ISSUE. In his argument on the sole issue formulated for determination, the learned counsel for the 1st and 2nd Respondents referred us to the facts averred in support of the Grounds of the Appellants' petition which he reproduced in part and because, according to him, the learned counsel for the Appellant misrepresented facts in the pleadings in support of the petition.
Learned counsel referred us to pages 15 and 16 of the Records where the petitioner stated his grouse on the conduct of the election at the polling units to include:
(a)That ballot papers were stuffed in the ballot boxes.
(b) That results were not signed by Presiding Officers
(c) That results were obtained by intimidation and/or snatching,
(d) Irregularities ranging from snatching of ballot papers, thumb printing of ballot papers by persons who did not register and multiple thumb printing, repeated voting, threat of violence, intimidation, hijack and diversion of electoral materials, collusion with security agents and electoral officers.
Learned counsel argued that it was expected that the petitioner would lead evidence to substantiate all those allegations made against the election in the highlighted polling units in the 5 wards of Nkalagu, Obeagu, Umuhuali, Amezu, and Iyonu. He then went on to the analysis of the testimonies of the witnesses called by the Petitioner in the said five wards and submitted that the petitioners' witnesses who testified as PW8, PW12 and PW13 could not link their evidence to any particular polling units in the wards.
On the approach of the tribunal to the evidence on the burden of proof which the learned counsel for the Appellants in the brief of the Appellants alleged that the Tribunal did not appreciate, the learned counsel for the 1st and 2nd Respondents alluded to the holdings of the Tribunal on the two issues for determination and referred us to page 481 of the Records to submit that the Tribunal posited that the allegation that the election into the House of Assembly seat for Ishielu North Constituency was characterized by violence, corrupt practices, electoral irregularities, thuggery multiple thumb printing of ballot papers, voter intimidation, threats, diversion of electoral materials, rigging, collusion with electoral officials, snatching and stuffing of ballot boxes fall squarely with the domain of criminal law, and for the purpose of election such acts have been further criminalized and made express provisions in the Electoral Act, 2010 (as amended).
He further alluded to the further finding of the Tribunal that the standard of proof of such allegations is beyond reasonable doubt.
On the contention of the learned Counsel for the Appellants that election in Ishielu North State Constituency was characterized by electoral due process deficit as the results upon which the 1st Respondent was returned was not a true reflection of the actual lawful votes cast or what happened at the polling units complained of and questioned by the petitioner as they did not emerge from accredited voters in the ordinary course of the voting process (paragraph 3.02 of the Petitioners' petition); it was submitted that it is a wrong comprehension of the petitioners' case.
He argued further that the gamut of the pleadings and evidence of the Petitioners was tailored towards establishing that election in 33 polling units of the 5 Wards was marred by irregularities and corrupt practices, and specific note was made of ballot paper/ballot box snatching, multiple thumb printing; threat of violence; thuggery and intimidation etc but as was highlighted above, the witnesses put forward by the petitioners were in want of the credible, cogent and strong evidence capable of and required to establish such allegations.
Referring to sections 135(i), 136 of the Evidence Act and also Iho v. Wombo (2011) ALL FWLR (Pt.591) 1514 at pp.1537 - 1538; on the encapsulated meaning of the provisions of section 132 (3) (a); 135 and 138 of the Evidence Act (cap. 112); Ogu v. Ekweremadu (2005) ALL FWLR (pt.260) at 23; Nwobodo v. Onoh (1984) 1 S.C.1; Orji v. Ohuabunwa (2007) ALL FWLR (Pt.351) 1531 at 1532 - 1533; on proof of corrupt practices and irregularities in election matters; Buhari v. Obasanjo (2005) 2 NWLR (pt. 910) 241 and Haruna v. Modibbo (2004) 16 NWLR (pt. 900), 487; (2004) ALL FWLR (pt.238) 740;
On the allegation of ballot box stuffing with ballot papers intimidation, and harassment of voters were cited to reiterate that all these allegations are electoral criminal offences; so does interfering with a voter casting his vote at an election amount to harassing the voter and intimidating him and punishable on conviction to imprisonment, fine or both. The proof of these criminal acts he also maintained is beyond reasonable doubt and not on the balance of probabilities.
Learned Counsel for the 1st and 2nd Respondent further posited also that it would seem that the Appellants' counsel did not very well appreciate the case of the Petitioners, and therefore advanced the argument at paragraph 3.03 of his brief. As for the documents tendered to advance the Petitioner's case the Respondents counsel was of the view that documents do not hang in the air, but must be grafted or placed/linked with the facts pleaded and the nature of evidence required in that regard is not just tendering documents. The documents, he noted, must be "spoken" to give them life, if need be, brought out and physically and individually inspected and counted as done in the case of Agagu v. Mimiko (2009) ALL FWLR (pt. 462) 1122.
In respect of the voters Registers, it was the learned counsel for the Respondent's submission that they were intended to buttress some facts pleaded in the petition but that none of the witnesses for the petitioners pointed out on the Register the irregularities alleged; nor did any of them show the tribunal which one or how many were subject to multiple thumb printing or were stuffed inside the ballot boxes. Learned Counsel also asserted that there was failure on the part of the petitioner's witnesses or themselves to single out and align or tie the documents to the case in question. The case of Amachree v. Goodhead (2009) ALL FWLR (pt.461) 911, which according to learned counsel brought out the principle admirably was then relied upon on the duty of a party relying on documentary evidence to tie them to the case for which the documentary evidence is being tied.
He insisted that even the PW16 who introduced himself as a Forensic Expert did nothing more than adopting his written statement on oath and did not indicate that he made a Report on his examination of ballot papers.
He did not eventually tender the Report that could have assisted the Tribunal in the assignment intended by the petitioners when at paragraph 14(v) of the petition they prayed that:
"in addition ... judging by the result obtained after the physical recount and re-examination and/or forensic/biometric test conducted before the Tribunal of votes from the affected or aforementioned polling units and wards".
The learned Counsel for the Respondents still on the evidence of the Forensic Expert asserted that the opinion of an expert does not automatically become an evidence acceptable the court willy- nilly merely on the strength of the expert expressing himself as such. For this submission he placed reliance on the cases of Ize-Ayamu v. Alonge (2007) ALL FWLR (Pt.371) 7570 at p. 1594; Ngige v. Obi (2006) ALL FWLR (pt 330) 1041 and section 68 of the Evidence Act, 2011. In the instant case, learned Counsel further observed; the witness who intended to be considered as an expert merely adopted his written statement and nothing more, and did not demonstrate how the ballot papers were thumb printed multiply etc.
On the submission by the learned Counsel for the Appellant in paragraph 3.08 of the Appellants' Brief that the burden was on the Respondents to introduce evidence credible enough that the election was conducted in accordance with the provisions of the Electoral Act, 2010 and the Manual for Electoral Officials; learned Counsel referred us to Section 134 of the Evidence Act and submitted that it is for the Appellants who copiously pleaded non-compliance, irregularities of diverse forms who should lead evidence in proof thereof.
The tribunal, according to learned Counsel for the 1st and 2nd Respondents found that Appellants did not discharge that burden, for after all, there is a presumption of correctness, genuineness and authenticity of results of the election; as was decided in the cases of Omoboriowo v. Ajasin (1984) 1 SCNLR 108; Yusuf v. Obasanjo (2008) ALL FWLR (pt 294) 387 at p. 460 and Maduabum v. Nwosu (2010) 13 NWLR (pt. 1212) 623. In the light of the above cited cases, he took the view that the cases of Fayemi v. Oni and OgboruUduaghan were cited by the learned Counsel for the Appellants out of context as the facts of those cases are different from the instant case and we were urged to so hold Arguing still further submit that on the burden of proof, the learned Counsel contended that from the totality of the evidence adduced upon the facts pleaded; the Appellant did not discharge the burden incumbent on them and the law is that a petitioner must succeed on the strength of his case, for which they cited Ajimobi v. INEC (2009) ALL FWWR (pt.477) 91 at P. 107.
On the chart drawn by the 1st Petitioner it was further contended that same was not enough to speak to the documents, nay exhibits which were tendered in bundles by the Petitioners. The finding of the Tribunal, he further added, that PW17 who is the 1st Petitioner himself did not explain to the court as to how he arrived at the table during the physical examination of the electoral materials; cannot be faulted as what was done outside the court cannot be taken to be a demonstration before the Court/Tribunal as to how the figures were arrived at. The above scenario notwithstanding he posed the question whether the charts support the allegation of grave irregularities, corrupt practices, thuggery, multiple thumb printing and ballot box stuffing which were the basis for the petition which he answered with the assertion that there were no attempts by the 1st Petitioner to tie the documents/exhibits to his case during the course of evidence at the trial.
What he (Petitioner) did, according to learned Counsel, was to draw a chart or graphic tabulation schedule, wherein he purportedly did or undertook a 'forensic analysis' of the exhibits and the counsel for the Appellants toed the same line whereby in the brief of the Appellants he had incorporated a clearly "field work" in the Court/Tribunal. In the circumstance the 1st and 2nd Respondent placed reliance on Alao v. Akano (2005) 11 NWLR (pt. 935) 160 at P. 178 per Ejiwunmi JSC (of the blessed memory) to posit again that the Appellants did not demonstrate how many ballot papers did not meet the standard of due electoral process as alleged by them in each of the polling units in each of the 5 Wards and that they also should have shown in the Registers that they were not ticked or irregularly ticked.
Without clearly pointing out all these, it was submitted that it is erroneous for the Appellants' Counsel to submit that RW9 signed three different result sheets, i.e FORMS EC8B(i). He then referred us to written address for the 1st and 2nd Respondents before the Tribunal at page 313 of the Records, where he did point out that what were taken as 3 results were in fact one result on the issue of improper evaluation evidence, oral and documentary by the tribunal as raised by the appellants which according to them resulted in a wrong or perverse decision; the learned Counsel for the 1st and 2nd Respondents drew our attention to the findings of the Tribunal at page 464 and 491 of the Records having considered the evidence of the 1st Petitioner, as to whether the (1st) Respondent (sic) scored the majority of lawful votes cast at the election and was rightfully returned winner of the election in accordance with the Act. He submitted therefore that the tribunal just quoted in part the content of the 1st Petitioner's statement on oath, which does not constitute the finding of the tribunal; and it is therefore unfair for the learned counsel to argue that the tribunal made the finding that:
"There were discrepancies and irregularity in the entries on exhibit P2-P44, P45-P7(4) and P75 -104". Paragraph 3.29 (p.13) of the brief.
According to the learned Counsel to the 1st Respondent, what the Tribunal did was to consider and evaluate the above statement on oath against the prism of the pleadings and reasoned thus:
"After all said and done the petitioner later admitted in paragraph 10 of the statement on oath." that result which the 1st Respondent was declared and retread (declared) winner of the election does reflect the actual votes cast".
The tribunal, he added, did not accede to the request of the counsel for the 1st and 2nd Respondents to dismiss the petition on the strength of the above admission on oath by the 1st Petitioner, instead, the Tribunal set out the records properly at page 491 of the Records; and then concluded that by the non tendering of other results to dislodge the one already declared by INEC upon which the 1st Respondent was returned having regard to the presumption of genuineness and regularity of the already declared result, the Petitioners failed to prove their case on the authority of Agbaje v. Fashola (2008) ALL FWLR (pt 443) 1302 at p.1352.
Learned posed the rhetorical questions whether the above findings and conclusions were not a product of proper evaluation of the evidence adduced and consideration of the facts pleaded by the petitioners and the implication of a prayer by the petitioner that the Respondent was not elected by majority of lawful votes cast? He invited us to the case of Adegbuyi v. Mustapha (2010) ALL FWLR (pt.532) 1753 at p. 1797 where the answer was provided.
Drawing attention to the final holding of the Tribunal that the petition lacked merit and the affirmation of the election and return of the 1st Respondent as the duly elected member of Ebonyi State House of Assembly representing Ishielu North Constituency at the election held on the 26th day of April, 2011; he again asked whether that judgment can he faulted which he answered in the negative. He concluded his argument on the sole issue by submitting that even if there were defects in the conduct of the election; by section 139(1) of the Electoral Act, 2010; the 1st Respondent's return cannot be invalidated. We were then urged to dismiss the Appellants' Appeal and uphold the judgment of the Tribunal.
3rd TO 37th RESPONDENTS' ARGUMENT
As had been stated earlier, the learned Counsel for the 3rd to 37th Respondents distilled three Issues for determination in this Appeal which had also been reproduced.
ISSUE NUMBER 1(ONE): On the first Issue which is:
Whether in the light of pleadings and evidence adduced before it, the learned trial tribunal was right in its final judgment in the petition; the learned Counsel for the 3rd -37th Respondents posed three questions which according to him should agitate our minds thus:
In the light of pleadings and evidence adduced by parties to this petition;
(a)Whether the trial tribunal properly evaluated the evidence of witnesses on the balance of probabilities and/or reasonable doubt as the case may be or otherwise?
(b) Whether the two Parties were given equal opportunities of presenting their case without any or one side being shut out?
(c) Whether the petitioners were unable to prove the alleged corrupt practices and/or non-compliance with the Election Act substantially enough to warrant cancellation of the election or swaying the trial tribunal to hold otherwise?
Learned Counsel pointed to the contention of the petitioners in the petition which is that the election was invalid by reason of alleged malpractices/corrupt practices or non-compliance with the provisions of the Election Act. He observed that allegations were leveled against some unnamed poll officials and some named individuals in some polling units in Iyonu, Umuhuali, Nkalagu, Amaezu and Nkalaha wards but that at the trial, these spurious allegations turned out to be mere hoax as they were not substantiated by the scanty evidence of the petitioner's witnesses which could not stand the test of cross-examination.
He then argued that it is trite law that where the two sides of the dispute are given equal opportunities to present their case without hindrance, and the trial court properly evaluated and ascribed probative value to evidence of witnesses according to their merit, the court is more likely to arrive at a fair and balanced decision that will be impartial and not occasion miscarriage of justice. Aregbesola v. Oyinlola (2011) 9 NWLR pt. 1253, P.458 where this court held that for evidence to be properly evaluated by a trial court, it must be balanced and the sides must be given equal opportunity to put their cards on the table on equal footing; was cited in support of that proposition of the law. In a nutshell, this decision circumscribes the adjudicatory function of a trial judge/tribunal; he further noted.
In the instant appeal, the learned Counsel submitted; the trial tribunal did just that because all parties were offered equal opportunity to ventilate their grievances by filing the relevant processes and calling witnesses of their choice in prove of their respective cases. He further submitted that it is on record that witnesses like John Idenyi, Okoha Emmanuel and Nwokporo Sunday who were registered voters from some polling units in the six wards complained of in this petition testified that the election was free and fair in their various polling units. Furthermore, the 1st Appellant is in agreement that the 1st Respondent scored the majority of votes cast at the election but that the grouse of the petitioners/appellants is that the votes were invalid having being allegedly obtained through process that did not comply with the Electoral Act, 2010 as amended.
Learned Counsel was of the view that is the alleged corrupt practices and/or non-compliance were not substantiated by evidence during the entire proceedings. It was also submitted that at the end of the trial, the tribunal assessed the evidence before it, ascribed value to it before its final judgment. Placing reliance on Mogaji v. Odofin (1978) 3-4 SC. 91; Eze v. Okoloagu (2010) 3 NWLR Pt.1180, 183 Aregbesole v. Oyinlola supra; learned Counsel posited that civil cases like petition are to be decided on balance of probabilities and the weight attached to any piece of evidence by the trial court is determined by the quality of such evidence or probative value. He took the view that a fair and balanced judgment must be anchored on proper assessment of evidence from both sides and this was manifestly seen in the entire proceedings of the trial tribunal.
Drawing inspiration from the dictum in Hashidu v. Goje (2006) EPR 789 on the duty of a trial court to decide where the scale preponderates by qualitative evidence having placed the evidence elicited by the parties on the imaginary scale of justice; he further submitted that it is the primary function of the trial tribunal to evaluate evidence and ascribe probative value to any piece of evidence it feels merits value. The jurisdiction underpinning of this is premised on the fact that it is the trial court that heard the case, listened to witnesses and saw the demeanour of witnesses.
Kwara v. Innocent (2009) 1 NWLR Pt.1121, 179 and Agbaje v. Fashola (2008) 6 NWLR, pt 1082, p. 90; Onwudinjo v. Dimobi (2006) 1 NWLR ( Pt.96)318, and Chime v. Ezea (2009) 2 NWLR (1125), p. 263; were further referred to in submitting that in the instant appeal, where a trial court properly evaluated evidence and ascribed probative value to it, the appellate court cannot interfere with the findings of the lower court except where such findings is perverse or occasioned miscarriage of justice. In the instant appeal, the records before this Court show that evidence were properly evaluated at the trial tribunal and all parties were given equal opportunities to present their cases and unless otherwise proved, the decision of the lower tribunal stand on firm ground based on the evidence adduced before it. Igbeke v. Joy Emordi (2010) 11 NWLR, pt.1204; refer.
It was also his position that from the totality of evidence adduced and evaluated before the trial tribunal, the scale of justice clearly tilts in favour of the respondents since the trial tribunal found that the election was conducted in substantial compliance with the Electoral Act, 2010. Buhari v. INEC and Section 139(1) Election Act 2010 as amended were cited to aurge that the trial tribunal was right in its final judgment based on the evidence and pleadings before it and we were urged to resolve this issue against the Appellants.
Learned counsel pointed out that Buhari v. Yusuf (2005), Buhari v. INEC, Omoboriowo v. Ajasin, Nwobodo v. OnohAgagu v. Mimiko, Ogboru v. Uduaghan, Feyemi v. Oni, Ukpo v. Imoke, Amagbre v. Sylva, Igbeke v. Emordi, Aregbesola v. Oyinlala and a host of other cases cited by the learned counsel for the petitioners/appellants in the Appellants brief of argument actually enures to the benefit of the respondents particularly the 3rd to 37th Respondents, since the court is consistent in the different decisions that the onus or burden of proof does not shift to the other party i.e the respondents until the petitioners discharge that primary legal burden cast on them. i.e "He who assert must prove".
Sections 131, 132, 133 135 and 136 (1) of the Evidence Act 2011; which categorically provide for the standard and burden of proving civil and/or criminal allegations were then cited to submit that the respondents specifically rebutted the assertion that different results were generated at Okpalu; Obeagu unit 003, Umuhuali unit 001 and Eke Obeaguplay ground 002. The alleged different results was neither collated nor included in the final result of the election.
Referring specifically to the provision of section 131(i) of the Evidence Act; to the effect that:
"Whoever desires any court to give judgment as to any legal rights or liability dependent on the existence of facts which he asserts must prove that those facts exist;" he contended that it is only when the allegations are proved by the asserting party that the onus of proof shifts to the defending party. The Appellants, he insisted did not do enough to prove the allegations made beyond asserting it in pleadings; hence the onus of proof did not shift to the Respondents.
He rounded his argument on this with the submission that based on the evidence adduced before it, it can safely be argued that the trial tribunal properly evaluated the evidence before it by placing it on the imaginary scale of justice, funnelled down and filtered the piece of evidence from both sides and ascribed probative value accordingly before arriving at its decision. He then urged us to resolve this Issue against the appellants.
Whether the election for Ishielu North State Constituency held on 26th April, 2011 was concluded in substantial compliance with the Electoral Act 2010, as amended.
On this Issue the learned Counsel for the 3rd- 37th Respondents submitted that the law is settled to the effect that proof of any material allegation of non-compliance with the Electoral Act must conform with the standard of proof in our Law of Evidence to wit: he who asserts must prove.
On the authorities of Nwobodo v. Onoh (1984) 1 SCNLR 1, Ajadi v. Ajibola (2004) 16 NWLR Pt.878, Pt.91, Irem v. Ibom (2004) 16 NWLR pt.900 614 and generally Sections 131-136 of the Evidence Act 2011; proof of fact of non-compliance, he added is beyond reasonable doubt if the allegation is criminal in nature or balance of probabilities where the allegations are mere civil. He contended that the sundry allegations of bribery of officials and/or voters, corrupt practices, electoral malpractices and non-compliance contained in the petition were not proved before the trial tribunal. Learned Counsel recalled that it is on record that most of the petitioners' witnesses were agents of the 2nd Appellant with specific interest in the matter that hardly were ordinary neutral voters fielded as witnesses by the petitioners. The 3rd to 37th Respondents' and other respondents' witnesses, he maintained, stated unequivocally that they observed the normal election process of accreditation, voting, sorting, counting of ballots and announcement of result fully undergone in the said election. According to learned Counsel, the petitioners merely in their pleadings asserted the contrary but did not lead any evidence to substantiate their claims and the learned trial tribunal could not have held otherwise.
Still on the allegations of non-compliance, he submitted that where the petitioner alleges non-compliance in his petition, he must not only prove that such non-compliance occurred, but must also prove that the alleged and proved non-compliance substantially affected the overall result of the election and negatively affected the result or that that result would have been different but for the proved non-compliance. Awolowo v. Shagari (1979) 6 SC 51 at 113, Ojukwu v. Onwudiwe (1984) SCNLR 247 at 306 and Buhari v. Obasanjo (2005) 13 NWLR Pt. 941 P.1 at 191; per Belgore JSC (as he then was) refer.
Learned Counsel maintained that Pleadings do not constitute evidence for; in order to prove these allegations; the petitioners must first adduce primary evidence and contradict the result of the election - that is the best evidence rule. Ukpo v. Imoke (2009) 1 NWLR ( pt. 1121) 90 and Agagu v. Mimiko (2009) 1 NWLR Pt. 1140, 343; were cited to submit that the petitioners did not do this in the instant petition.
He argued further still on this point that evidence adduced by the petitioners witnesses as can be gleaned from the record shows that the petitioners' scanty evidence did little or nothing to shake the credibility of the election let alone establish any act of the Respondents that amounted to substantial non-compliance with any provision of the Electoral Act.
He also added that the submissions of counsel no matter how elegantly couched cannot take the place of counsel said in address if such is not backed with concrete, cogent and convincing evidence because where, as in the instant appeal, the petitioners failed to lead credible evidence to prove their case, the tribunal cannot be sent to a voyage of speculation in order to substantiate for the petitioner its claims. Fayemi v. Oni (2010) 17 NWLR (Pt.1222) P. 326 was relied upon to contend that by the evidence before the learned trial tribunal, no official of the 3rd Respondent who conducted the election was found wanting or acted contrary to the law in the course of carrying out their duty as poll officials; hence the acts of the poll officials including the act of announcing the result is valid in the light of section 139(1) of the Electoral Act, 2010. The evidence of the Oswald Agwu and Chinwetalu Eaglet who were 3rd Respondent's witnesses were not shaken during cross-examination as their said evidence and those of other Respondents' witnesses were firm and consistent to the effect that the election was free and fair and conducted in substantial compliance with the Electoral Act, 2010 (as amended); which Act does not envisage absolute compliance from poll officials but substantial compliance. For this submission, he relied on the provisions of Section 139(1) of the Electoral Act 2010 (as amended). Learned counsel insisted that since in arriving at its final verdict, the trial tribunal after evaluating the evidence of both sides, preferred the evidence of the Respondents, it further buttresses unequivocally that the election for Ishielu North Constituency held on 26th April, 2010 was conducted in substantial compliance with the Electoral Act, 2010 (as amended) and cannot be invalidated for reason of non-compliance; the essential requirement of the law being substantial and not absolute compliance. Thus, it was submitted, the learned trial tribunal was right to hold that the presumption of correctness of the result as announced by the returning officer was correct and authentic and was not rebutted. Still on the issue of the correctness and authenticity of the results disputed, learned counsel also placed the onus of rebutting the presumption of correctness of the result emanating from the election on the petitioners; submitting that from the totality of evidence adduced before the tribunal, it is clear that the petitioners failed woefully to discharge this legal burden of proof. Thus it is not in contention that the constituent elements of election were present and the process diligently carried out in the 31 disputed poling units and indeed all polling units in Ishielu North State Constituency held on the 26th April, 2011 election.
Where the petitioner as in the instant petition, alleges that the said election was not conducted in substantial compliance with the Electoral Act, the petitioner must satisfy the court with facts and figures, deduced from both pleadings and evidence that the result of the election would have been otherwise but for the alleged and proved non-compliance; he further submitted relying on the dictum of Belgore JSC (as he then was) in Buhari v. Obasanjo (supra).
Learned counsel reiterated that the petitioners failed to adduce evidence to establish the number of votes attracted by the alleged noncompliance and produce alternative result which ought to have been the true result of the election in consonance with their allegation. According to him, it is trite that only a party who will fail if no further evidence is adduced must call a particular witness to prove his/her allegation. The fact that some poll officials were not called as witnesses to state their position in the alleged non-compliance was also fatal to the petition, as those who gave evidence for the Respondents stated that the election was held in free and fair atmosphere in substantial compliance with the Electoral Act 2010; he further submitted.
In urging us to discountenance the argument on Issues 2 and 3 of the Appellants' Brief of Argument at pages 20-27 thereof it was submitted that only a party who asserts the existence or non-existence of a particular fact must prove it; and in doing so, it is that party that determines which particular witness to call in proof of its case. In the instant appeal, it was the petitioners who asserted that election was not held in the way it ought to be held that bears the burden of calling particular witnesses they feel should be necessary and indispensable to their case including INEC Officials to call those persons and not 3rd to 37th respondents. These officials could be subpoenaed on application of the petitioners or called by the court suomotu if the court feels they are vital and indispensable in the just determination of the case.
Relying on the recent case of Ezeanuna v. Onyema (2011) 13 NWLR, (Pt. 1263)?
He finally submitted on this issue that it is manifestly clear from the record of proceedings that the Petitioners/Appellants did not adduce enough or credible evidence to sway the mind of the learned lower tribunal Judges to find in their favour. He then urged us to so hold and resolve this issue in favour of the Respondent and dismiss the appeal with substantial cost.
On this issue which is whether the Court of Appeal can interfere with the decision of a trial court which is not perverse or occasioned miscarriage of justice; learned counsel for the 3rd to 37th Respondents asserted that it is settled law that the Appellate Court does not interfere with the decision of the trial court once such decision is founded on proper evaluation of evidence and the decision did not pervert justice. To buttress the above submission, he relied on the cases of Woluchem v. Gidi (1981) 5 SC 291 and Ezekwesili v. Agbapuonwu (2003) FWLR, (Pt.1620) at 2016. As far as this Appeal is concerned, the learned counsel submitted that the Tribunal painstakingly applied the principles guiding evaluation of evidence as enunciated by the Supreme Court per Tobi JSC in Buhari v. INEC (2008) 19 NWLR (Pt.246) at 409- 412 before arriving at their final decision dismissing the appeal which principles are:
i. The trial judge gives equal strength to the case of the parties in evaluating the evidence to void bias or likelihood of bias.
ii. The trial judge may star with the evidence of either the plaintiff of the defendant.
iii. The trial must take cognizance of hearsay evidence and evidence that violates the Evidence Act or any law and reject or expunge it.
iv. The trial judge must concern himself with issues joined by the parties which are live issues which will determine the case on its merit.
v. The decision arrived at after evaluation of evidence should not cast doubt in the eye of the appellate court that the trial judge hear the evidence from the first to the last word.
vi. The trial judge must take cognizance of the demeanour of witnesses in the course of listening and evaluation of evidence.
vii. Believing or disbelieving one evidence or the other of either party by the judge must be based on what is on the record.
viii. The trial judge must weigh the totality of evidence of witnesses on an imaginary scale and where the pendulum tilts in favour has the judgment.
ix. In other to arrive at a proper evaluation of evidence, the trial judge must consider evidence of all witnesses. He cannot pick and choose some witness' evidence and ignore others.
Learned counsel submitted that any decision of a trial court or tribunal founded on these firm grounds can only mean that the trial was safely conducted fairly and on the principle of justice as in the instant appeal. Buhari v. INEC (supra) refers.
In conclusion he urged us to dismiss the Appeal with substantial cost on the following among other reasons:
1. The decision of the trial tribunal complained of by the appellants was based on proper evaluation of evidence applying the requisite principles of fair hearing and natural justice.
2. The Petitioners/Appellants in their brief or argument have failed to prove that the decision of the trial tribunal has occasioned any miscarriage of justice or that the judgment is perverse.
3. The election complained of was, as proved by evidence conducted in substantial compliance with the Electoral Act 2010 (as amended) and the Manual for Election Officials 2011 and the trial tribunal was right in holding that the presumption of genuineness and correctness of the result of the election was not rebutted or shaken by evidence.
4. The Appellate Court cannot interfere with the decision of the trial court which was based on proper evaluation of evidence, was not perverse and did not occasion miscarriage of justice.
RESOLUTION OF ISSUES.
I have taken time to reproduce almost verbatim the copious submissions of counsel on all the issues formulated in their respective Briefs. In the determination of this Appeal, I intend to adopt the three Issues formulated by the learned counsel for the Appellants in their Brief of Argument and in so doing in respect of Issue 1 on whether the Tribunal was right on the approach it adopted with regard to the case of the parties, the evidence led, its evaluation and conclusion reached in their holding thereby that the presumption of regularity that inures in favour of the results in the disputed polling units were not rebutted; it must be conceded as rightly argued by the all the respective learned counsel, that there is rebuttable presumption in favour of the correctness and authenticity of results declared by the 3rd Respondent and its Agents who are the statutory organs charged with the conduct of the disputed elections which is the subject of this Appeal. See Nwobodo v. Onoh (1984) 1 SCNLR 1: Omoboriowo v. Ajasin (1984) 1 SCNLR 108; Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1; Adighije v. Nwaogu (2010) 12 NWLR (pt.1209 ) 419 at 463 paras. A-B; Udeagha v. Omegara (2010) 11 NWLR (pt. 1204) 168 at 209 paras. F-G; Mohammed v.Mohammed (2008) 6 NWLR (pt.1082) 73 and Ogu v. Ekweremadu (2006) 1 NWLR (pt. 961) 255.
There are also authorities galore on the principle that the Presumption of correctness and authenticity of results declared by INEC (the 3rd Respondent herein) can only be rebutted by credible and cogent evidence elicited by the Petitioners/Appellants as in our instant case who had alleged in their pleadings that the election in Ishielu North State Constituency of Ebonyi State was characterized by electoral due process deficit as the results upon which the 1st Respondent was returned, was not a true reflection of the actual lawful votes cast or of what happened at the polling units complained of and questioned by the petitioner as they did not emerge from accredited voters in the ordinary course of the voting process.
In other words, since they sought to impugn the results declared by INEC as being incorrect or unauthentic for the various reasons stated in a paragraphs 8 (d), 9(c); 10; 10 (1) to 10 (D)i; (E)i-v; 11(a)-(I ); and 12(i)-(v) at pages 4 to 15 of the Records which contain the Petitioners/Appellants' Petition; and from all that can be gathered, they questioned the conduct of the election in 31 polling units of the five Wards of Nkalagu, Obeagu, Umuhuali, Amaezu and Iyonu on grounds of electoral malpractices and non-compliance with Electoral Act, 2010 (as Amended) and the Manual for Electoral Officials, 2011; the onus was therefore on them to elicit evidence to rebut the presumption of authenticity or correctness of the result of the election conducted in the disputed polling units in the wards afore-enumerated.
See Hashidu v. Goje (2003) 15 NWLR (pt.843) 352; Ughamadu v. Ndibe (2010) 46 W.R.N. 55 at 99; Jalingo v. Nyame (1992) 3 NWLR (pt.231)538; Nwobodo v. Onoh (1984) 1 SCNLR 1: Omoboriowo v. Ajasin (1984) 1 SCNLR 108; and Buhari v. Obasanjo (2005) 13 NWLR (Pt.941) 1.
From the averments in paragraphs 8 (d), 9(c); 10; 10 (I) to 10 (D)i; (E)i-v; 11(a)-(i ); and 12(i)-(v) paragraphs of the Petition as above highlighted, the Petitioners alleged that the election into the Ishielu State Constituency of Ebonyi State was predominantly marred and characterised by irregularities and corrupt practices/substantial non-compliance. It is also clear that with some of the specific allegations of ballot paper stuffing, ballot box snatching; multiple thumb-printing; threat of violence; thuggery; intimidation and so on which have been criminalized by Sections 117 through 131 of the Electoral Act 2010 (as amended); allegations of both criminal and civil nature have been made against the Respondents.
Therefore, by the provisions of Sections 131(1) and (2) and 132 of the Evidence Act Cap. HB. 214, Laws of the Federation of Nigeria, 2011; it was incumbent upon the Appellants to introduce evidence in proof of their allegations more so, as they seek for declaratory reliefs in their paragraph 14[i] - [iii] and [v] of their petition. This is because in the first place, the Petitioners/Appellants were the ones who asserted that the election was conducted in deficit of due process and they would fail if no evidence were given at all on either side of the dispute. As has been rightly argued by the learned counsel for the Respondents, the allegations of ballot paper stuffing, ballot box snatching; multiple thumb-printing; threat of violence; thuggery; intimidation being criminal in nature, ought to have been proven in accordance with Section 135(1) of the Evidence Act which provides thus;
"If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt".
See Nwobodo v. Onoh (1984) 1 SCNLR 1; Dantiye v. Kanya (2009) 4 NWLR (Pt. 1130) 13 at 33; Abubakar v. Yar'adua (2009) ALL FWLR 1 at 129-130 paras H-B; Dantiye v. Kanya (2009) 4 NWLR (Pt 1130) 13 at 33; Haruna v. Modibo (2004) 16 NWLR (Pt.900) 487; Prof, Eric Opia v. Chief Alex Ibru (1992) 3 NWLR (pt.321) 658; Eboh v. Ogujiofor (1999) 3 NWLR (Pt.595) 419; Anazodo v. Audu (1999) 4 NWLR (Pt. 600)530; Ezeduwo v. INEC (1999) 3 NWLR (Pt. 594) 215 and Oyegun v. Igbinedion (1992) 2 NWLR (Pt.226) 274;
It is pertinent to add that the burden of proof of these criminal allegations did not and it never shifted but remained on the Petitioner until fully discharged. Nsirim v. Nsirim (1995) 9 NWLR (pt 418) 11 and U.B.N Ltd v. Odusote Bookshops Ltd. (1995) 9 NWLR (Pt. 421) 558 refer. See further section 135 (2) and (3) of the Act which is to the effect that the burden of proving that any person has been guilty of a crime or wrongful act is, subject to section 139 of the Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. Furthermore, where the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted to the defendant.
As for the other allegations of non-compliance with the Electoral Act and Manual for Electoral Officials, 2011; more particularly contained in paragraphs 11, 12(ii), (iii) parts of [iv] and [v] of the petition, which complain of arbitrary allocation of figures to political parties; discrepancies in results entered in the respective result sheets; mutilation of result sheets and figures; non-entry of results for most of the political parties that contested the election; non-accreditation of voters; non-signing and stamping of result sheets by the Presiding Officers which were purely of civil nature; they ought to be proved in accordance with Section 134 of the Evidence Act which stipulates that:-
"The burden of proof shall be discharged on the balance of probabilities in all civil proceedings". See also the provisions of Section 133(1) and (2) of the Act.
The provisions of Sections 131-134 of the Evidence Act have been judicially interpreted in Awuse v. Odili (2005) 16 NWLR (pt.952) Onifade v. Oyeyemi (1999) 5 NWLR (Pt.601) 54; Agagu v. Mimiko (2009) 7 NWLR (pt.1140) 342, at 387; Ojukwu v. Yar'Adua (2009) 12 NWLR (pt.1154) 50 at 188 and Ukpo v. Imoke (2009) 1 NWLR (pt.1121) 90 at 143 paras. C-H 144, para 1b; and the bottom line of all these decisions is a re-statement of the cardinal principle of law on the burden of proof that he who asserts must prove and since the Petitioners made allegations of civil nature, the burden was on them to prove these allegations on the preponderance of evidence or balance of probabilities.
Thus, unlike the allegations which were basically criminal in nature, the burden of proof in respect of the civil wrongs above highlighted, was not static but oscillated successively between the parties until all the issues in the pleadings were settled. see Ajadi v. Ajibola (2004) 16 NWLR (pt.898) 91 at 195-196; Adun v. Osunde (2003) 16 NWLR (pt. 847) 643 at 664 and Agagu v. Mimiko (2009) 7 NWLR (pt.1140) 342 at 432-433.
Again, the point must be stressed as aptly submitted by the learned counsel to the 1st and 2nd Respondents that in view of the reliefs sought by the Petitioners/Appellants which were mainly declaratory in nature, the Petitioners had to succeed on the strength of their case and not necessarily on the weakness of the Respondents' case. Thus, even where the evidence of the Petitioners in proof of their case was unchallenged, it was still incumbent on them to satisfy the Tribunal on minimal proof. Lamie v. Opius Ltd. (2006) 18 NWLR (Pt.958) 438; Nzeribe v. Dave Co. Ltd. (1994) 8 NWLR (pt.361) 124 and Ukpo v. Imoke (supra) at 144 paras B-D.
Now, it would be recalled that the learned counsel for the Appellants had posed the question as to whether the Appellants elicited cogent and credible evidence to rebut the presumption of correctness and authenticity of the result of the questioned election contrary to the decision of the Tribunal at page 141 of the Records, which I hereby adopt. In attempting to answer this question, it is only appropriate to resort to the totality of the oral and documentary evidence elicited and tendered by the Appellants in proof of their case viz-a-viz those elicited by the Respondents in rebuttal so as to cast doubt on the case of the Appellants or displace/tilt the balance of the imaginary scale of justice against them thereby warranting the dismissal of the Appellant's case by the Learned Judges of the Tribunal?
We have already noted that the 1st Petitioner testified and called 16 other witnesses. The said witnesses adopted their respective Witness Statements on Oath. Beginning from the evidence of the PW1 OgbuIfeanyi: who was an ANNP agent at the Jioke polling unit, Obeagu Ward at the election conducted on the 26th April, 2011; he testified that there were multiple thumb-printing by supporters of the PDP at Jioke polling unit led by Ede Prince, Olinya Richard, EbeEjike, OlinyaIfeanyi, Eze Emmanuel who also shared N500 and N200 to the voters on queue; canvassed votes at the polling booth by wearing PDP T-shirts and telling voters where to vote. They were also alleged to have used the ballot papers round to show the voters where to thumb-print the column for umbrella. The witness further testified that the INEC did not disclose the agents of the political parties and the number of accredited voters as the PDP agents maintained that it was immaterial; that after the election the said PDP agents ran away with result sheets and the remaining ballot papers and as such, no result was declared at the Jioke polling unit after the election.
Under cross-examination by Ulasi SAN the witness replied that he did not know the number of ballot papers brought to his polling unit and that he did not also know how many ballot papers were thumb-printed by the agents of the PDP aforementioned. He admitted casting his vote but denied receiving money before voting. Under cross-examination by Ugwuocha Esq., he stated that although election took place in his polling unit he did not hear INEC announce the result or their officials announce the number of accredited voters. The witness was not cross-examined by the learned counsel for the 1st Respondent.
PW2 Ugwu Monday: stated that he was an accredited voter at Amagu poling unit in Umuhali ward. He informed the Tribunal that he witnessed how one PDP member thumb-printed so many ballot papers in favour of his party the PDP and that members of the PDP manipulated and rigged the election in that polling unit, as the multiple thumb printed ballot papers were counted and it no doubt affected the overall outcome of the election.
Learned counsel for the 1st Respondent did not also cross-examine the witness. As for the 2nd Respondent, Ulasi SAN merely asked the witness ridiculous questions as to whether his name was ANPP or PDP inspite of the weighty evidence of the Electoral Malpractices made against the 1st and 2nd Respondents, so also was the question by UgwuochaEsq, for the 3rd to 37th Respondents as to whether INEC officials in the witness, polling unit wore tag bearing INEC which he admitted adding that the tags did not include the names of the officials.
PW3 Omeanu Chika: and the ANPP agent at NdiaguAzuora claimed that the process of election in his polling unit was completely wrong and did not comply with the Electoral Act, 2010 as the Presiding Officer was influenced by one IfeanyiOdanwu the co-ordinator for Ishielu North Development centre and PDP chieftain to release some of the ballot papers to PDP members named as Kenneth Nnaji and Peter Onu who went away with the ballot papers and later brought them back after thumb-printing them in favour of the PDP.
He protested and raised alarm against the unlawful activities of the PDP but the same IfeanyiOdanwu brought mobile policemen and soldiers who chased the voters away from the polling booth.
Under-cross examination by Ugwuocha, Esq, he stated that he voted and some voters stayed behind even when the soldiers chased them away. He could neither tell the name of the Presiding officer and/or polls clerk as their names were not disclosed to them. He was not also cross-examined by Ulasi, SAN.
PW4 OgbuOnyebuchi: in his evidence in chief alleged that he was an ANPP agent at Amaezu Primary school in Amaezu ward, and that after accreditation; the voters were lined up in readiness for voting. He further stated that before voting commenced, the PDP member led by one Edward Odanwu a PDP chieftain and the coordinator of Ishielu North Development centre using the security officials as a major tool intimidated the voters most of whom were ANPP members and then indulged in multiple thumb- printing of ballot papers in favour of the PDP.
Under cross-examination by Ulasi, SAN he replied that he did not know the number of ballot papers thumb-printed in his polling unit nor did he know the number of ballot papers thumb-printed by Edward Odanwu.
He was not cross examined by Ugwuocha, Esq.
PW5 was Emeokoro Marcel who testified that he was the ANPP agent for NduloImohaNkalagu in Nkalagu ward. He alleged that during accreditation of voters, the coordinator of Ishielu west Development centre Hon. Mrs. AmakaEme manipulated the process by forcing some of the PDP members to act as INEC officials by the handling of the electoral materials (Voter Register, ink pen etc) and verifying voter's particulars; even as the INEC officials were there trying to do their job. He (the PW5) complained bitterly about that but all to no avail.
He further alleged that the above mentioned PDP chieftain Hon. Mrs. AmakaEme also shared money to the tune of N200 each to most of the voters who were already on the queue to cast their vote. He further informed the tribunal that he summoned courage to ask the Ishielu west coordinator to go to her polling unit and allow the voters to vote freely but she refused justifying her ignominy and unlawful activities on the ground that she was the chief security officer of the Development centre. The witness stated further that some PDP chieftains including the said Hon. AmakaEme, Hon. Cletus Ogbugo and Patrick Eme imported into the polling units some voter cards and shared them among PDP members and some other voters and they were allowed to vote with the cards.
According to him, the attempt to vote twice by one PDP chieftain and the resistance by political parties other PDP sparked off crisis and brought the election in the polling unit to an end. He informed the tribunal that despite all that, result was still generated from the polling unit and with the instrumentality of the security agents he was forced to sign the result. The result is completely unacceptable.
These very damaging pieces of evidence were not contradicted as the Respondents' counsels failed to cross-examine the witness.
PW6 Isaac Odoh: in his evidence in chief claimed that he worked as ANPP agent at Amangwu Play Ground; that the Electoral Materials meant for Amangwu playground polling unit was hijacked at the collation centre by ObinnaOgba - the former PDP State chairman with his Jeep car. That he diverted the whole electoral materials to his house and never allowed anybody including the INEC officials and the police officers or even other agent's access to the compound. The witness averred that the said Obinna multiple thumb-printed the ballot papers in his house with his PDP boys.
Obia Friday, Monday Olukwu and one Kporunto were the PDP boys who allegedly assisted Obinna in snatching and multiple thumb-printing of the ballot papers in his compound. He further alleged that he and other voters who were denied of their voting right went to the collation centre and reported to the supervisory Presiding officer and Returning officers.
Under cross-examination he stated that there were two polling units thereat and they are called Onubuaja I and II polling units as written there; that the distance between ObinnaOgba's house and the polling units was about 2 poles; that he did not enter the house of ObinnaOgba but he looked through and saw what was going on, because the thumb-printing was taking place in Obinna's House and that he could not say the exact number of ballot papers thumb-printed by ObinnaOgba and his boys. Also he did not know the name of the ward collation Agent but maintained that the supervisory Presiding Officer refused to tell them his name and they did not see any Returning Officer at the collation centre but rather they saw the supervisory officer who refused to tell them his name. Finally, the witness stated that what he told the court was not lies.
PW7 Nnaji Friday: in his evidence in chief stated that he worked as ANPP agent at Amangwu playground and that the electoral materials meant for Amangwu playground were hijacked by ObinnaOgba former state chairman of PDP with his Jeep car. The said Obinna diverted the whole electoral materials to his house which was not the polling unit and never allowed anybody including the INEC officials, the police officers and other parry agents access into this compound. He multiply thumb printed the ballot papers with his PDP boys in his house. He mentioned Obia Friday, Monday Ojukwu and one Kporunto as the PDP boys who assisted Obinna to snatch the election materials which were later thumb printed in his house. He and other voters who were denied of their voting right went to the collation centre and reported to the INEC supervisory Presiding Officer and Returning Officers.
On Cross-Examination by Ulasi, SAN, he stated that there were (2) two polling units there which names are: Onuagabara playground unit and Amangwu Primary School polling unit. He stated further that he was the ANPP polling unit Agent for Onuagabara and the other polling unit agent was Isaac Odoh and that the distance between the two polling units is about 200 metres- The witness was not cross examined by Ugwuocha Esq. The PW8 Olinya Pius: In his evidence in chief, stated that he was an accredited agent of ANPP and that materials for the election arrived at the polling unit at 10:45 am- Accreditation was said to have started and ended at 12:30 with voting commencing thereafter. He added that Mr. Casmir Nnamchi, the PDP ward collation Agent offered him money which he refused. While voting was on, the said Mr. Casmir Nnamchi and other PDP supporters felt that the ANPP candidate was wining and they snatched and took away the ballot box with votes already cast by voters and the remaining booklets of ballot papers and ran into an unknown destination.
He further testified that he did not see the result sheet let alone signing it and that Mr. Casmir Nnamchi used his motorbike to carry away the ballot box.
Upon being cross-examined by Ulasi, SAN, the witness stated that they were not allowed to know the number of accredited voters and that he did not know the number of ANPP members that voted before the snatching of the ballot box but what he knew was that he did know the number of PDP voters that had voted before the snatching of the ballot box.
He was not cross examined by the Ugwuocha Esq. PW9 ChukwuAzubuike: in his evidence in chief stated that he was an agent of ANPP in Amagu play ground polling units in Umuhali ward that there was accreditation proper and voting commenced as at when due. He stated further that Mr. UdokuOkechukwu a PDP supporter was sharing N200 and N500 respectively to voters and voters for Eke Market square were also induced by Engr. James Udoku, a chieftain of the PDP in Ishielu L.G.A. to also vote in their witness' polling unit which they did. The remaining ballot papers after voting were thumb printed for PDP by OkechukwuUdoka, Engr. James Udoku and others.
On cross-examination, PW9 stated that he did not know the number of people that voted in his polling unit as many people came to vote from Eke Market Square. He also did not know the number of ballot papers that were thumb-printed but he stood in his ground and confirmed his evidence in chief without any equivocation and contradiction. He stated that so many people came from Eva to Amagu play ground to vote event when they did not register there.
PW10 Nwankwo Friday: testified that he was the ANPP accredited ward collation agent at Iyionu ward and that the three Electoral Officers with the materials arrived at the collation centre at about 8:30 am, while the distribution of materials and movement to polling units were completed at about 9:30 am. According to him accreditation started at about 10:00 am and continued simultaneously with voting till 4:00 pm and that one Mr. Cyril Ani was involved in multiple thumb-printing along with other identified persons. The said Cyril was also directing people to vote for PDP after chasing their ANPP agent Mr. Oke Daniel away and the said agent was subsequently intimidated into signing as an ANPP agent to give credence to the rigged the election.
Under cross examination by Ulasi, SAN, he stated that he was ward collation agent and not an agent at the polling unit. He added that there was voting at the ward collation centre but would neither know the number of accredited voters nor the number of people that voted at the collation centre.
PW 11 John Obasi: in his evidence in chief stated that he was an agent of the 1st Petitioner at Nigercem polling unit 014 Umuhuali ward.
That accreditation and voting was not done in a peaceful way as there was a lot of violence in the polling unit even when votes were being counted.
That EmekaOjemba and ChibuikeOdeh who are PDP supporters were canvassing for votes and sharing money to the Electorates. That after voting had ended EmekaEgemba and ChibuikeOdu ran into the village and called out many voters to come back and vote the second time. That people like Odanwu Chika, Mary Omeanu and others did the double multiple voting.
Under cross examination by Ulasi, SAN, he replied that 1st Respondent did not tell him that he asked EmekaEgemba and ChibuikeOduh to come to vote for him. Under cross examination by ObiahuEsq, he replied that he did not know the number of voters who voted repeatedly but they were many. He could also not tell the number of accredited voters on further cross examination but added that he left his polling unit because of the irregularities going on thereat and could have known the scores of the candidates.
PW12 OgbuChinenye: in her evidence in chief, stated that she was a voter at Amaezu Primary School Ishielu L.G.A where there was accredition of voters. After accreditatio, PDP supporters came and carried away all voting or electoral materials and went to Simon Igwe's Compound and did multiple thumb printing. He alleged also that there was no voting at the polling unit.
The witness was not cross examined by any of the Learned Counsel for the Respondents which presupposed that her evidence was not contradicted and should have been deemed admitted by the Respondents.
PW 13 Celina Omebe: in her evidence in chief, claimed that she was a voter at Amaezu Primary School, Iyieke in Amaezu ward of Ishielu L.G.A that she was an accredited voter at the above polling unit. That accreditation was briefly done but was stopped by the INEC Officials claiming that there was no time. That after that the ballot box was snatched away and taken to unknown destination. That the result they produced was not signed by anybody or agent of other political parties. The witness was not contradicted as none of the opponent lawyer posed a question to her. PW14 OgenyiEnwo: in his evidence in chief averred that he was an agent of ANPP at Ohuali polling unit Obeagu ward. That one Hon. ObinnaNwachukwu, the Chairman of Ishielu L.G.A. came into the polling unit and gave out N50, 000 to the INEC Officials and collected some ballot papers to his house. That after multiple thumb-printing the ballot papers which he brought back and got them stuffed into the ballot box. That even the wrong thumb printed ballot papers were counted in favour of PDP. That he refused to sign the result sheet in protest of the irregularities being perpetrated by Hon. Nwachukwu and his cohorts.
On cross examination, he stated that Hon. ObinnaNwachukwu gave N50,000 to all the INEC Officials. He added that he did not know the names of those INEC Officials. He further claimed that the particular INEC Official who collected the said amount was male maintaining that many ballot papers were multiple thumbs printed and stuffed into the ballot box and that he did not count them but that they were many in number.
PW15 : Ukwu Susan: adopted her statement on oath which was to effect that she was an APGA agent at Ameta Polling Unit Umuhuali Ward. She stated that there was accreditation and voting and that before voting took place there was an announcement by Barr. Ali Onwa that anybody who was not from Ameta polling unit should leave. She refused to leave the polling unit and she was beaten up and threatened with gun shot and thereafter there was multiple voting and money was shared by Peter Onali, James Udoku and NgoziEze. Inspite of these weighty and damaging allegations of electoral malpractices, she was not cross examined by any of the learned counsel for the Respondents. The learned Judges of the Tribunal should therefore have deemed her evidence as admitted by the Respondents. PW16: REGINALD UDUNZE Assistant Superintendent of Police and Forensic Expert State C.I.D, Owerri, told the tribunal that on 12th August, 2011; he received directive from the Commissioner of Police Imo State requesting him to examine, compare and to state if there were multiple finger impressions between any of the ballot papers grouped and marked A1-E2 totalling 4,004. This was sequel to the letter to the Commissioner from the firm of N. U. Okoro and Co. learned counsel for the Appellants who forwarded ballot papers emanating from the election to the Ebonyi State House of Assembly for Ishielu North State Constituency now the subject of this Appeal; as supplied the Appellants by INEC.
The witness further stated that he collected samples from 28 polling units of 5 wards namely Nkalagu, Obeagu, Amaezu, Umuhuali and Iyionu wards- He said, the examination and comparison with the aid of T-Satellite Multi-Media computers and DCP150c/Samsung SCX4200 scanning Machines revealed that out of the 4,004 ballot papers from 28 units and 5 wards:
(a) A total of 530 finger impressions on the ballot papers were found to be smudged and smeared, that lacked details of friction ridge, characteristic of identification and were discarded.
(b) A total of 3,474 finger impressions were found to possess good friction ridge characteristic details of identification.
(c) A total of 850 of the finger impressions on the ballot papers grouped and marked A1-E2 were found to have been thumb-printed each by one person as designated by INEC; and
(d) The total of 2, 624 of the finger impressions on the ballot papers from 28 polling units of the 5 wards were found to have the same characteristic details of identification of an individual finger producing multiple impressions and between the ballot papers.
From the foregoing, it was therefore his findings that ballot papers totalling 2,624 among the ones inspected and collected from 28 polling units of the 5 wards of Ishielu North Constituency grouped and marked A1- E2 were thumb printed by 231 individuals thereby producing multiple impressions of individual fingers. He added that the comparative chart attached and marked A and B respectively were extracted from the 2,624 samples of finger impressions thumb-printed by same individuals on different ballot papers producing multiple finger impressions in between the ballot papers at various units. The chart, he further explained is an example of what occurred in most of the 30 polling units of the 5 wards inspected, examined and compared.
The witness further explained that dactylographic of a finger print is the reproduction on a smooth surface of the pattern or design formed by the ridges on the inside of the end joint of a finger or thumb and that:
a. No two finger prints of two different persons have been found to be identical in the world, even of the same person or identical twins.
b. It is possible to identify an individual with just one finger impression which implies that a finger impression represents one individual.
c. The individuality of finger print is not determined by its general pattern or shape, but by careful study of its ridged characteristic also known as a Munitiae which universal characteristic is a prime factor in establishing a standard of identification.
d. Two finger prints must have likeness of general pattern types before their identity can be proclaimed, that is they both must be of the pattern type i.e both be arche, both be loop, both be whorl.
e. It is obvious that when two prints are of different pattern types, they could not possibly have been made by the same finger.
f. When two finger prints that are identical are compared, they exhibit characteristic details that not only are identical but have the same relative location to one another in print as illustrated in the chart attached to his report.
The witness then exhibited the Comparative Chart as part of his Report to demonstrate his findings before the election tribunal and informed the tribunal that after examination and comparison of the documents, he wrote a Report which is exhibited along with his statement on oath and documents enumerated in paragraph 10 of the statement.
As can be gleaned from pages 267 -279 of the Record of Proceedings, his said Statement on Oath along with the letter from the learned counsel for the Appellant to the Commissioner of Police Imo State, the
Order from the Tribunal directing INEC to allow the Petitioners, their counsel and their Forensic Experts to inspect, scan and/or take copies of the ballot papers and other documents including the result sheets for the election in the constituency in question; the Forensic Report dated August, 2011; the letter from the Assistant Commissioner of Police State CID Owerri, Imo State forwarding the Report, the Comparative Chart and Specimen ballot papers were duly annexed. Inspite of the copious analytical expert evidence given on the questioned documents by the witness, Ulasi SAN learned counsel for the
1st and 2nd Respondents merely asked him whether he examined a total of 4,004 ballot papers, which question the witness of course answered in definite affirmative. Mr. Obiahu for the 3rd to 37th Respondents, swallowed the evidence of the witness line hook and sinker as he did not bother himself to cross-examine the witness.
PW17 John EbehUzu: in his evidence in chief, stated that he was the candidate of ANPP for Ishielu North Constituency for the April 26th, 2011 Ebonyi State House of Assembly election; who scored majority of lawful votes in the said election and that the 2nd Petitioner is a registered political party that sponsored him in the said election of April 26th, 2011.
He stated that four political parties fielded candidates in the said election namely: ANPP, APGA, ACN and PDP. That at the end of the election the under listed candidates of the above named political parties had the following votes credited to them (a) John EbeUzu (ANPP) 3,849 votes (b) Anthony IkechulrwuOgbu (PDP) 5,629 votes (c) Hon. Christian Omeri (APGA) 784 (d) Barr. Fredrick Nnaji (ACN) 608.
That at the end of the election 3rd-5th Respondent declared and returned the 1st Respondent winner of the election. That the 1st and 2nd Petitioner were the duly elected candidate and political party respectively having scored majority of valid votes cast at the said election.
The witness further averred thus:
1. That the election in all the polling units in Obeagu ward excepting EzzaObeagu Comm. School, NdiAguAzuOra Hall and Amaezu Prim. Iyieke of Amaezu ward, Over rail, Nigercem Nursery, Nigercem Parents, Amagu play Ground, Amokwe Play Ground, Eke Market Stall and Ameta Play Ground of Umuhali ward, OgbodoUmuyita Comm. School of Iyonu ward and all the polling units in Nkalagu ward were marred by reason of corrupt practice and non compliance with the provisions of the Electoral Act, 2010 (as amended).
2. That the result with which the 1st Respondent was declared and returned winner of the election does not reflect the actual vote cast.
3. That the 1st Respondent employed government machinery and the military to harass, beat and intimidate ANPP voters during themelection.
4. That the Petitioner is challenging the results in the 5 wardsmnamely: Nkalagu, ObeAgu, Umuhali, Amaezu and Iyonu ward.
5. That the aforementioned wards and polling units witnessed:
a. A high level case of diversion of election materials and the deployment of few individuals to engage in multiple thumb printing of the ballots papers for the 1st and 2nd Respondents in all of the wards and 20 polling units.
b. Unleashing of orgies of violence by agents of the 1st and 2nd Respondents by the beating up, intimidation and frightening of my agents and supporters and driving many of them away from the various polling units
6. That six polling units in Nkalagu ward where the former Chairman of Ishielu Local Government Area and also a strong member of the 2nd Respondent by name Onwa Ali Onwa, election did not take place rather, Onwa Ali Onwa bribed the armed policemen and soldiers who took away the electoral materials to an unknown destination, thumb printed ballot papers for the 1st Respondent.
7. The witness then pleaded a Petition "Titled Electoral Irregularity written by Victor Unoke and addressed to the Electoral Officer Ishielu L.G.A. complaining about how Onwa Ali Onwa intimidated the voters and rigged the election at Ameta Play Ground polling unit with code 006. He further related how Chief ObinnaOgba, a former leader of PDP in the State bribed INEC staff in his polling units in Obeagwu ward and the said INEC staff released the electoral materials to thugs hired by the said ObinnaOgba who hijacked them and thumb printed and later returned to stuff the ballot boxes with the multiple thumb printed ballot papers.
He further gave evidence of ballot box snatching and multiple thumb printing in favour of the 1st and 2nd Respondents against Edward Odanwu, co-ordinator of Ishielu North Development Centre in Ebonyi State, Ede Princewill; Olinya Richard; EbeEjike; Ifeanyi and Eze Emmanuel and non accreditation of voters by the Presiding Officer and poll Clerk at NdiAguAzuOra polling unit in Amaezu for purported lack of time. At the same AzuOra polling unit, PDP stalwarts were said to have stormed the venue in a violent manner and carried all the electoral materials to one Simon Igwe's Compound and engaged in massive thumb printing of ballot papers. He finally sought for the reliefs as contained in the Appellant's petition. It would be recalled that by a motion dated 15th of August, 2011 and granted on the 24th of August, 2011, the Appellants were granted leave to file and make use of two additional Written Statements on Oath one of which was made by PW17. Sequel to the said motion and the order, granting the Appellants leave to inspect, scan and/or make copies of electoral materials used in the conduct of the questioned election, the Appellants were issued certified true copies of ballot papers, voters registers and results sheets by INEC. Thus the PW17/1st Petitioner/Appellant testified to this fact in his witness statement that spans pages 280 to 300 of theRecords and listed the electoral materials given him to include:
a. The Voters Register for all the polling units in the wards of the Constituency;
b. Ballot papers cast at the election in all the polling units of the Constituency;
c. Stumps of ballot papers and bags used for the election; and
d. Forms EC8A(i), EC8B(i), EC8C(i) and EC8E(i).
The witness then went ahead to describe the processes of election as enshrined in the Manual for Electoral Officials including how the voters register should be marked in the boxes provided therein during accreditation and voting and how the stamp and signature of polling officials are to be placed at the bottom of a ballot paper used for voting in all elections. He testified further and listed the wards and their respective polling units, where they discovered a lot of irregularities, discrepancies and defects found in the entries in the voters' register viz-a-viz the entries in the result forms and the ballot papers for the respective polling units as follows: NKALAGU WARD- 11 polling units as enumerated in pages 281 - 282, OBEAGWU WARD-9 polling units; UMUHUALI WARD-4 polling units; AMAEZU WARD- 3 polling units and IYONU WARD- 3 polling units all enumerated in page 282 of the Records. He went on to carry out a classical ward by ward analysis where massive acts of corrupt practices and noncompliance with the provisions of the Electoral Act were discovered in the entries in the voters' register viz-a-viz the entries in the Forms and the ballot papers for the respective polling units. See page 283 to 307 of the Records.
In conclusion of his evidence the witness stated that he had carefully studied the Form EC8B(i) (Collation of Results From the Polls at the Ward Level) for the said five wards and discovered that the number of rejected ballots recorded as against the total votes cast in each of the units are so negligible that they are far lower than the high average recorded nationally in that election including other units and in the wards in the constituency. He also called on the tribunal to have a careful consideration of the contradictions and anomalies observed from the inspection in other to guide it to do justice to the petition. He concluded that having observed this act of massive corrupt practices, he still maintained that the result from all the 30 polling units of the 5 wards were not an expression of the natural will of the electorates in the constituency, but a manipulation by the Respondents in collusion with each other. He relied on certified true copies of the voters register, the result Forms EC8A(i), EC8B(1), the ballot papers and other electoral materials to support their case.
On the 25th day of August, 2011, when he testified before the tribunal, he adopted his witness statements made on the 17th of May, 2011 and 22nd of August, 2011- respectively as his evidence in chief and referred to the documents he mentioned in his said statement.
Accordingly, the Forms EC8A(1) for Obeagu ward were admitted and marked Exhibits P2 to P1-0; P11 to P14 for Iyonu ward; P15 to P25 for Nkalagu ward; P26 to P28 for Amaezu ward; P29 to P35 for Umuhuali ward.
The Forms EC8B(1) for Iyonu ward was further admitted and marked Exhibits P36; for Amaezu ward P37; for Obeagu ward P38; for Nkalagu ward P39 and for Umuhuali ward Exhibit P40 while Exhibit EC8E(i) the constituency result for the Ishielu North Constituency was admitted and marked Exhibit P41.
The Voters Register for the polling units in Amaezu ward were admitted as Exhibits P42 to P44; for Nkalagu ward Exhibits p45 to p55; for Iyonu ward Exhibits P56 to P59; Obeagu ward P60 to p6B and Umuhuali ward Exhibits P69 to P76 while the Ballot Papers for Iyonu ward were admitted as Exhibits P77 and P78; for Obeagu ward Exhibit P79 to P83; for Amaezu ward P84 to P86; for Nkalagu ward P99-P101 and Umuhuali ward P102-P104- Additional ballot papers were also tendered for Obeagu and marked Exhibits P84 to P86. It should be noted that all these documents were tendered and admitted without any objection from the Respondent counsel.
Under cross-examination by Eya Esq. for the 1st and 2nd Respondents, the witness replied that he did not know the number of votes cast in his constituency nor the number of invalid. On further cross-examination he asserted that he did not visit any polling unit in the five wards as all his agents were thereat. He also did not know the Police Officer referred to in paragraph 23 of his Witness Statement, but added that his agent knows him. He finally stated that Onwa Ali Onwa.
RW1 EMMANUEL OGBUABOR: In his evidence in chief stated that he was an accredited agent for ObodoNdiaguAgbara polling unit (code 010) in Nkalagu Ward. He claimed he observed a peaceful, free and fair election.
Was the only PDP agent in his polling station. Claimed he did not see nor was there sharing of money by the agents or supporters of the 2nd Respondent.
Under Cross Examination, he claimed that all persons that came to the polling station were accredited but could not remember whether the same person voted. He did not know what transpired on the polling unit. On further cross examination by Okaa, Esq, he confirmed the allegation of unsigned and unstamped result sheet when he replied: "I don't know whether I signed the result sheet. I don't know whether the Presiding Officer signed the result sheet, Exhibit P24". Upon being confronted with Exhibit PW24, he now admitted that neither he nor the Presiding Officer signed the result sheet.
RW2 EZE EJIKE: In his evidence in chief he was the PDP agent for Akpochi polling unit 009 in Obeagu ward. He further claimed he observed a peaceful conduct of the election and that it was free and fair. And all the electoral process took place without any hitch. He denied witnessing sharing of money, canvassing for votes; diversion or preparation of election materials; and inducement of INEC Officials or Policemen by the agents or supporters of 2nd Respondent during the election. He expressed belief that the result of the Election collated in Obeagu Ward was correct.
Under cross Examination by Okaa, Esq., he also menstruated that the result sheet were arbitrarily prepared and vote allotted indiscriminately or that the result sheets were unsigned when he was confronted with Exhibit P9 and he answered thus:
"I have the result sheets, Exhibit 9, I cannot remember whether I signed it. I saw the result sheets on the day of the election. I have forgotten whether or not I signed it". From all indications it is clear as noted by learned counsel for Appellants that, this witness like RW1 did not partake in the conduct election of 26th April, 2011 at Akpochi polling unit 009 in Obeagu Ward of Ishielu Constituency as purported in his statement on oath.
RW3: MRS. NGOZI NNAJI: Stated in her evidence in chief that she was the PDP agent for Amagu playground polling unit code 015 Umuhuali.
Her testimony was a replication those of RW1 and RW2 except for the names and polling units and wards. She also claimed she observed a free and fair election.
But under Cross Examination she also claimed that she went to the polling unit by 8:00am and left by 4:00 pm. she admitted that all she said about the result collated in umuhuali was free and fair was hear say. She manned. She claimed she observed that Presiding Officer signed, stamped and dated the result sheet Exhibit2g; even when the said exhibit was not stamped and dated. She was therefore ordered by the court to sign her two signatures thrice which signatures were in all respect different from the one she claimed to have signed on Exhibit P29.
RW4 IDENYI DAMIAN: In his evidence chief stated that he was PDP agent in Jioke polling unit (code 005) in Obeagu ward. He gave evidence about the correctness, freeness and fairness of the result collated in Obeagu ward. He also testified above the other agent of the 2nd Respondent, evidence in chief self contradictory.
Under cross Examination, he told the tribunal that he did not go to any other place other than his polling unit. As rightly noted by learned counsel for the Appellants, his claim that he was the agent of PDP in that unit was perforated and contradicted, when his claim that he wrote his name and signed the result form EC8A(i) Exh. P6 (Jioke unit 005) for Obeagu ward was found to be false. His name was neither there nor his signature. The result sheet was rather signed by another person, one DemianOlinya whom he was impersonating. The witness, under further cross examination demonstrated ignorance of electoral procedure at polling unit where he claimed he was the PDP agent, as he did not know who stood last on the queue during accreditation; whereas, the Election Manual provides clearly that the polls clerk or security agent should stand behind the last accredited voter to avoid any one joining the queue after accreditation. It was further observed that the witness who purported to have voted at that unit was not even registered thereat as his name was conspicuously absent from the voters register of the unit.
RW5 OKOHA EMMANUEL (ISNC): In his evidence in chief claiming he was a voter at Akiyiato town hall polling unit. He claimed he was accredited and that he voted at the said election. He did not know the ward or registration area where his polling unit belong and did not state it in his evidence in chief. He stated that he knows one Mrs. AmakaEne as the coordinator of Ishielu west Development and that she did not share money nor canvass for votes but failed to tell the tribunal the polling unit the said Amaka 'Ene' was registered.
Under Cross Examination RW5 admitted that he was neither a PDP nor any political party agent on that election date. When however, confronted with Exhibit P52, item 646, the voter's register for Akiyi-Ato Town Hall it was shown that he was neither accredited nor did he vote at the Election in the Akiyi-Ato Town Hall where he claimed he was accredited and voted. There is no doubt as rightly argued by learned counsel for the Appellants that the witness was fake and unreliable.
RW6 PETER ONU: also testified in-chief that he was agent at NdiaguAzuora Hall code 001 and that he did not see Hon, IfeanyiOdanwu and/or Kenneth Nnaji share money as the agents or supporters of the 2nd Respondent. He maintained that the election was free and fair.
However, when cross examined he somersaulted and denied being an Agent. He also admitted he was not the maker of the written deposition but claimed he signed it. He could not remember which of his thumb and finger indelible ink was applied when he wanted to vote. It is also to be noted that inspite of the fact that the witness did not leave the polling unit where he purportedly voted, he gave evidence as to the freeness and fairness of the election relying wholly on hearsay.
RW7 JOHN IDENYI (ISNE)" claimed he was a voter at Amata playground, was accredited and voted and he did not see anybody taking electoral material to any other place. Like other witnesses for the Respondent's, he claimed further that election was free and fair.
Under cross Examination, the witness who claimed that he did not see anybody taking electoral materials to any other place, shamelessly told the Honourable Tribunal that he did not know what was meant by electoral materials. Yet, the witness further contradicted himself when he stated that electoral materials were not diverted. His answer as to who counted the votes after the election was inherently contradictory. Apart from the fact that he did not know the particular INEC Official that counted the votes, he admitted he did not accompany the election material to where it was taken to and of course did not know where it was taken to.
RW8 ONWE CHINEDU: In his evidence in chief stated that he was a PDP agent for Akiyi-Ato Town Hall polling unit in Nkalagu ward. According to him, election in Nkalagu ward was free and fair and the result collated for the ward was correct. His evidence was inherently contradictory.
Under Cross Examination he told the tribunal that he did not leave the polling unit to any other polling unit in Nkalagu ward or any other ward. He also stated that he did not require anyone to give him information in respect of the election in question. He could also not remember the number of political parties that participated in the election and that there were three parties' agents including himself. On further cross-examination he stated that he had two signatures adding that he did not know who wrote the result sheet for his polling unit nor could he remember the score of the candidates. He reiterated that he did know the INEC Official who wrote the result sheet. There is no doubt as was rightly argued by the learned counsel for the Appellants that his evidence is incredible.
RW9 MATTHEW ALI: testified that he was a member of the PDP and party's accredited ward agent for Obeagu ward in the April 26, 2011 election. He claimed that all elections in polling units of Obeagu ward were peaceful, free and fair and that the 1st and 2nd Respondents did not induce INEC and/or Security Officials in anyway.
Under Cross Examination: He stated that he was not his party polling unit agent but was a ward collation agent. He could not however tell whether other party agents signed the result sheet or whether he signed only one result sheet. On further cross examination, he exposed the facts of corrupt practices and electoral irregularities including collusion with electoral officials, when he admitted having three different result sheets for a single ward all of which he signed.
When those result sheets were sought to be tendered, the learned counsel for the Respondents objected to their admissibility but they were overruled by the Tribunal and the three result sheets admitted and marked Exhibit R2 to R4 respectively. Definitely this could not have been a witness of truth for the Respondents but his evidence buttressed the allegations of Electoral malpractices as contained in the Appellants' Petition.
RW10 ONYEKA ONWA: on his part stated that he was the PDP agent at Ameta playground (Code 001-) and claimed that election was free and fair and the result collated in Umuhuali ward was a true reflection of the votes cast in all the polling units. However, under cross examination he feigned ignorance of almost everything that transpired at the election from the number of the accredited voters, the last person on the line for accreditation; the score of PDP or when multiple thumb-printing was done.
Above all he exposed the fact that the election was conducted in breach of due process when he stated thus:
It's not true that votes were counted and result announced. I don't know the election materials that were used.
RW11 HON. ANTHONY IKECHUKWU OGBU the 1st Respondent in the Petition/Appeal herein, stated in his evidence-in-chief that he scored the majority of the lawful votes cast at the election held on the 26th April, 2011, and was duly elected into Ebonyi State House of Assembly for Ishielu North Constituency. He denied that his election was invalid by reason of corrupt practices and/or non-compliance with the provisions and principles of the Electoral Act, 2010 and the Manual for Election Officials, 2011 as alleged by the Petitioners/Appellants; adding that the election was free, fair and transparent and conducted in substantial compliance with the law.
The witness specifically denied paragraphs 10(i), (v), (vi) and (vii) of the petition as false and stated that the result of the election and votes credited to him were a true reflection of the lawful votes cast and the outcome of a free, fair and credible election/voting done in polling units and wards within Ishielu North State Constituency of Ebonyi State. He further denied the allegations in paragraph 10 A-E of the petition stating that there was total compliance with the provisions of the Electoral Guidelines as adumbrated by the 3rd Respondent and enshrined in Electoral Laws relevant to the said election as there were due and proper accreditation of voters; there were no ballot box/papers snatching/stuffing; no unsigned, unstamped and undated ballot papers were ever used at the election.
He further denied that there were diversion of election materials by agents and supporters and staff of the 2nd Respondent. The witness went on to answer the allegation contained in the Appellants petition polling unit by polling unit and ward by ward as well as all the allegations of electoral malpractices, irregularities, corruption and non-compliance with electoral due process as contained in the Appellant's petition. In short, the 1st Respondent's evidence-in-chief like that of the petitioners is a rehash of his Reply to the Petition.
He finally, denied the reliefs sought by the Petitioners in paragraphs (i)-(vii) at pages 18 and 19 of the petition and urged the tribunal to dismiss the petition. Under cross-examination the witness replied that he registered as a voter once and voted once. He denied that he did not vote adding that what he said about his polling unit was what he meant that he saw by himself. He stated further that what he said about other polling units was what the polling agents told him. When he was confronted with Exhibit P46 Item 483 - the Voter Register for his polling unit, he turned somersault by first telling the tribunal that the Register showed that he was neither accredited nor did vote as the columns for accreditation and voting were not ticked. However, upon inspection of the said Register it was shown that he was accredited in the two previous elections. He concluded his evidence under cross examination that he did not state in his statement on oath that he had agents in his state constituency.
RW12 NWOKPORO SUNDAY (ISNA) claimed in his evidence-in-chief that he registered and voted at AmaguIshiagu Village Hall and did not observe any form of violence in the polling and the election was free and fair. He denied seeing ObinnaOgba divert electoral material. Under cross examination he stated that he was not an agent of PDP at his polling unit and he did not leave his said polling unit until the end of the election. He maintained that the result was announced by one of the INEC Official; and that he was accredited but could not remember the last voter on the line for accreditation. He could also not remember the score of PDP in the polling and did not follow the INEC Official to the ward collation centre to submit the result. Finally, he told the tribunal that he did not know the particular INEC Official who accredited him. That was the case for the 1st Respondent. As for the 2nd Respondent the RW13 CYRIL ANI testified in-chief that he was the PDP coordinating agent in Iyionu ward and coordinated the activities of other agents in the polling units in the ward during the election in question. According to him, the entire electoral processes in the ward were undertaken in the units and collation centres. The election he also claimed was free and fair, peaceful and the results reflected the voting pattern adopted by the respective voters/supporters of the various parties that sponsored candidates at the election. He neither denied intimidating anybody at Umuonyita polling unit 005 nor did he over power the electoral officers in the course of the election.
He further denied that the 1st and 2nd Respondents induced any Policeman, INEC Officials or howsoever obstructed the voting pattern of the voters adding that none of their agents or supporters canvassed whether or openly or in secret for votes for his party or its candidates in the election. He also denied that their agents gave money to voters to induce them to vote in favour of the candidate of their party i.e. the 1st Respondent. Finally the witness stated that no member, supporter or agent of the 1st and 2nd Respondents employed gun-carrying thugs to and in rigging the said election and indeed there was no rigging nor was there any threats by their agents or the INEC Officials and/or voters.
When cross examined by Ugwuocha Esq. he replied that he was the PDP polling unit 005 ObodoUmuonyita and was in that polling unit throughout the election even though he was also his party's ward agent. He added that the collation of the result was peaceful and ANPP won in his ward while the PDP won at his polling unit. He reiterated that there was no report of violence in his polling unit. When further cross examined by Okoro, SAN; he explained that he was a voter on polling agent under ward agent for his party. He could not however, tell the number of the political parties who contested the election although the results were collated in the result sheet before it was signed. He could not also tell whether there were other party agents at his polling unit. When confronted with Exhibit p36 he admitted that he was the only party agent who signed it. He also admitted signing Exhibit P11 but denied that his signatures in those exhibits were different.
Upon examination of Exhibit 11 it was confirmed that out of the 1-7 political parties that contested the election at the ObodoUmuonyita Community School polling unit code 005 only four parties had their result entered in form EC8B(i).
The 2nd Respondent's second witness RW14 EJIKE NNAJI who purported to be a member of PDP in Ebonyi State and the accredited agent of the parry in Umuhuali ward; replicated the evidence of RW12 in all material particulars except for the differences in the ward. When cross examined he claimed that he voted at Ametaplayground polling unit 006 where election was free and fair and he was the agent of his party at his polling unit and ward collation centre. He added that there was no complaint of any violence in his polling unit; INEC Officials were not bribed by anybody he was at the ward collation centre.
On further cross examination by Okoro, Esq. he admitted that he was at his polling unit throughout the election but he would not know the names of the polling agents under him. He claimed also that he visited the collation centre and that the polling agents briefed him after the election; he also signed the ward result sheet after collation of the results from the polling units. When further questioned he could neither tell whether other party agents signed the ward result sheet, nor did he know the number of political parties that contested the election in his ward.
The 3rd to 37th Respondents called RW15 and RW16 who were Supervisory Presiding Officers [SPO's)/Collation Officers for Umuhuali and Iyionu wards respectively. RW15 Agwu Oswald deposed to the fact that prior to the election all political parties submitted a list of their polling booths agents to INEC in line with the Electoral Act, 2010 (as amended) and in consequence thereof, materials for the Election were distributed to the Supervisory Presiding Officers in the early hours of the morning of the Election Day. He also stated that he personally monitored the election in company of some security officers and did not observe any violence or electoral malpractice during the course of monitoring the election in the polling units within his ward, /L.G.A./Constituency.
Under cross examination, he claimed that he visited about 8 polling units of the 15 polling units in that ward and witnessed accreditation fully in C.P.S Umuhuali which commenced by 8:00 am and ended 12 pm. He added further that during his visit to the polling unit he did not witness any electoral malpractice but saw voters and party and Security Agents at the polling units. He denied seeing any diversion of electoral materials or any election gang within or outside the designated polling unit as election under him was free and fair.
On further cross examination by Okoro, SAN, he reiterated that he was a Supervisory Presiding Officer and not Collation Officer and admitted that he did not stay at the polling throughout the period of accreditation. He also did not know whether voting commenced at Ameta playground polling unit nor when counting started at Over Rail polling unit and in Onunkwo Playground. Truly the witness demonstrated serious and patent ignorance about the election in Umuhuali ward by the way he contradicted himself under cross examination.
RW16 CHIWETALU EAGLET in her evidence-in-chief stated that she was the Supervisory Presiding Officer for Iyionu Ward. She distributed electoral material at the early hours of the election date 26/04/2011 and personally monitored the election in the polling unit. She replicated the evidence of RW16 as far as Iyionu ward was concerned.
Under cross examination, she denied that there was no shortage of electoral materials in her polling unit nor was there any report of electoral malpractice in all the polling units in ward which she visited and supervised. She also saw voters and party agents and no INEC Official was induced by anybody nor was there sharing of money or any gift in any of the polling units. She also did not see any voter wearing any uniform to show his political parties and election did not take place in any other place than the designated places.
Upon further cross examination by Okoro, SAN, he confessed that for election to be free and fair the result sheets should be stamped, signed and dated. She claimed she did her Job very well and denied diverting election material meant for her ward. She stood by paragraph 4 other statement on oath but could not remember how many ballot papers were issued for the polling unit. She also admitted that she did not count the votes nor did she announce the results in any of the polling units. She finally, stated that communication was made with or on telephone by the Presiding Officer who did not do his work well and the Presiding Officers submitted result sheets directly to the Collation Officers.
From the totality of the evidence of the parties as highlighted above, and the evaluation thereof by the learned Judges of the tribunal, their Lordships in the first place came up with the erroneous finding at page 489 of the Records that "The mere tendering of Forms EC8A(i) voters register and ballot paper was not enough to proof the allegation of non-compliance. None of the Petitioners' witness pointed out on the Forms or voters registers or ballot papers relative to any of the polling unit in the five wards. The documents should not be dumped on the tribunal without more." The learned Judges again came up with a further finding in the same page that: "PW17 who is the 1st petitioner himself did not explain for the Court as to how he arrived at the table (sic) make during the physical examination of the electoral materials."
With the greatest respect to the learned members of the Tribunal, in paragraphs 1 to 6 of the second Statement on oath adopted by the PW17 before the Tribunal on the 25th of August, 2011 he had sufficiently laid the foundation as to how he came about the table/chart which was part and parcel of his deposition and evidence in chief. Indeed, he went further to carry out a classic comparative analysis of the entries in the documents purportedly dumped in the Tribunal; ward for ward, polling booth per polling booth and demonstrated how he spotted the irregularities, discrepancies and defects found in the entries in the voters registers viz-a -viz the entries in the result Forms and
the ballot papers for the respective polling units.
Apart from the evidence of the PW17, the evidence of other witnesses for the Appellants on almost all the allegations of electoral malpractices and corruption were not shaken under cross examination.
More particularly, the evidence of the PW16/Forensic Expert was swallowed hook, line and sinker as he was only asked by Ulasi, SAN;
whether he examined 4,004 ballot papers, inspite of his damaging evidence on the discrepancies on those documents. Therefore, there can be no truth in the above findings which with the greatest respect to the learned members of the Tribunal, are not borne out from the Records.
On the holding at page 491 of the Records by the Tribunal inter alia that: "We agree with the submission of Mr. H. O. Eya that the non-tendering of other results to dislodge the one already declared by INEC upon which the 1st Respondent was returned, (sic) hang rig to the presumption of genuineness and irregularity of the already declared result mainly to failure of the Petitioners to prove their case", this is also a very erroneous holding as the results tendered by the Appellants were those supplied them by INEC by order of the Tribunal and from which the Appellants spotted those monumental discrepancies and contradictions in the entries in the Voter's Registers viz-a viz the result sheets and the ballot papers which analysis supported multiple thumb printing ballot snatching and stuffing and other corrupt practices and irregularities inherent in the conduct of the election.
Even the witnesses for the Respondents did not help matters when they themselves admitted to most if not all the discrepancies like non stamping and signing of the results, arbitrary entry of figures and collusion with INEC Officials to issuance of three results(Exhibits R2 to R4) in the same polling unit (see evidence of RW8 and RW9); results from different polling units bearing the same number and other irregularities too numerous to mention; after they had purported in their various Statements on Oath that the election in their various polling units and wards were free and fair.
See also for instance the evidence of RW1, RW2 and RW3 who did not know whether the Presiding Officers signed the result sheets or whether they as agents of the 1st and 2nd Respondents signed the result sheets in their units and wards; witnesses like RW10 who claimed ignorance of what transpired at the election from the number of accredited voters and admitted that votes were neither counted nor announced at the polling units and that he did not know what were electoral materials.
As for the 2nd Respondent, RW13, exposed the patent noncompliance with the Electoral Act and Manual for Electoral Officers when he signed Exhibits P36 and P11 from different polling units with different signatures and it was exposed under cross examination that out of the 17 political parties that contested the election, only 4 parties had their results entered in Form EC8B(i).
It is also necessary to note that inspite of the unchallenged evidence of multiple thumb printing, sharing of money; snatching of results sheets and ballot papers; manipulations and rigging at the polling units; release of ballot papers to agents of the 1st and 2nd Respondents who mass-thumb printed and returned to stuff them in the ballot boxes; intimidation by Policemen, Soldiers and thugs hired by the 1st and 2nd Respondents; forcing agents of the Appellants to sign result sheets after the agents had challenged the criminal activities of the PDP chieftains; hijacking of electoral materials to houses of PDP bigwigs for massive thumb printing; double voting and threats with gun shots, as testified to by PW1, PW2, PW3, PW5, PW6, PW7, PW8, PW9, PW11, PW12, PW13 and PW15 without contradictions; the learned tribunal members held at pages 487 to 488 that
"Having admitted/conceded that the allegation of corrupt practice against the 1st and 2nd Respondents may have (sic) tail of criminally the allegation of nor capture is severable. The alleged criminal acts were not proved beyond reasonable doubt and no Petitioners did not show any excuse before the reprove the Repehetors and the 1st and 2nd Respondents. The legal stand point remains the unsolicited act of a person relied is interested in the victory of a party does not affect such a party. See Opia v. Ibru (1992) 2 NWLR (pt. 231) 658 and Ayua v. Adasu (1992) 3 NWLR (pt.231) 598; Obun v. Ebun (2005) ALL FWLR (pt.327) 414 at 451." By this incoherent holding, the Tribunal seems to be saying that the Appellants did not prove the criminal allegations against the 1st and 2nd Respondents on the election, beyond reasonable doubt and that the unsolicited acts of the representatives of the 1st and 2nd Respondents cannot be visited on the Respondents on the authorities above cited. Although this is the position of the law, there is overwhelming evidence in proof of the criminal allegations against the 1st and 2nd Respondents nay the 3rd to 37th Respondents who in some instances acted in collusion with the 1st and 2nd Respondents.
In any case by the dictum of the Supreme Court in Omoboriwo and Ajasin (supra), even if the allegations of criminal nature were not proven which is not case here; by the doctrine of severance as enunciated in that case by the Apex Court; the election of the 1st Respondent could still have been annulled upon proof of non-compliance which in this case has substantially affected the overall result as has been shown by the evidence of the 1st Appellant and his witnesses. In this wise, the case of Aregbesola v. Oyinlola (supra) cited by the Court; and Nwobodo v. Onoh (1984) 1 SCNLR 1, Ajadi v. Ajibola (2004) 16 NWLR Pt. 878, Pt 91, Irem v. Ibom (2004) 16 NWLR Pt. 900 614; Awolowo v. Shagari (1979) 6 SC 51 at 113, Ojukwu v. Onwudiwe (1984) SCNLR 247 at 306 and Buhari v. Obasanjo (2005) 13 NWLR Pt. 941 P.1 at 191; per Belgore JSC (as he then was); by learned counsel for the Respondents rather support the case of the Appellants.
It is also pertinent to note that inspite of the overwhelming evidence of mutilation of result sheets and non signing stamping and dating thereof nay the discrepancies in the entries in the result sheets and the ballot papers viz-a-viz the Voter's Registers in the 31 polling units contested; the 3rd to 37th Respondents were content to call only Supervisory Presiding Officers RW15 and RW1-6, the latter who confessed that for election to be free and fair the result sheets should be signed, stamped and dated. In other words, he had accepted that the election was fraught with irregularities in view of the discovery that some of the result sheets were unstamped, unsigned and undated and the Voter's Registers, the ballot papers contained entries which were diametrically inconsistent/opposed to each other.
From the foregoing, the 3rd to 37th Respondents did not deem it necessary to call the Presiding Officers who purportedly prepared those results sheets to explain the discrepancies, mutilations and inter-lineation in the entries in the result sheets viz-a-viz the ballot papers and the Voter's Registers. However, the Tribunal had held also at page 489 thus:
"(sic) Regard been had to what we have said above complied (coupled?) with the effect that 17 witnesses had (called) by the Petitioners in respect of fifty five(55) polling units in five(5) wards, did not lead evidence on non-compliance with the provisions of the Electoral Act, 2010 and Manual for Electoral Officials, 2011. The evidence of RW14 and RW15 as to freeness and fairness and substantial compliance to the provisions of the Electoral Act and Manuals strengthen the case for the Respondents."
I agree with the submission of learned counsel for the Appellants, particularly in paragraph 3.05 of the Appellant's Brief, that from the above finding the learned members of the Tribunal did not appreciate the case put forward by the parties and the issues thrown up as to where the burden of proof lay. As was rightly argued, since from the totality of the evidence elicited by the Appellants, it was clear that they had proved on the balance of probability and beyond reasonable doubt by their witnesses' testimonies and documentary Exhibits tendered that the election was marred or flawed by electoral malpractices and non-compliance; the burden shifted to the Respondents, particularly the 3rd-37th Respondent to prove the contrary that the results tendered were presumptively authentic and correct.
In other words, the Appellants had led sufficient evidence to impugn the results that declared the 1st Respondent as the winner of the questioned election and the only way the 3rd to 37th Respondents could restore that presumption in favour of the authenticity and correctness of the results was by calling the Presiding Officers who conducted the elections at the polling units and prepared the result sheets along with the ballot papers. This they failed to do. See Ogboru v. Uduaghan (2011) ALL FWLR (pt.477) 650 at 707 B per DongbanMensem, JCA; relying on Agagu v. Mimiko (supra) at 432 to 433. See further Fayemi v. Oni (supra) at 51 per salami, PCA; Amgbare v. Sylvia (2009) 1 NWLR (pt. 1121) 1 at 60; Upo v. Imoke (2009) 1 NWLR (pt.1121) 90 at 143 and Hon. UbaIgbeke v. Sen. Joy Emordi&Ors(supra). In this case, it can be safely concluded that the Appellants had discharged the burden of proving that the results were not authentic and correct while the Respondents (3rd-37th) had failed to prove the contrary. See Abubarkar v. Yar'Adua (2008) 19 NWLR (pt 1120) 155.
Another disturbing flaw in the Judgment of the learned Judges of the Tribunal was the holding at page 486 of the Records (page 32 of the Judgment) after analysingthe evidence of the PW16, the Forensic Expert that: "But no forensic report was tendered before the tribunal through this witness to demonstrate for the tribunal how he arrived at the conclusion deposed to in his statement. As it were the ballot papers were just dumped and thrust on the tribunal without any of them being clinically ascertained as having been thumb printed by one or few persons."
With the greatest respect again to the learned Judges of the Tribunal, they failed to appreciate the fact that the Forensic Expert incorporated his analysis by way of comparative charts, samples of the ballot papers examined and the Report in his Statement on Oath, which he front loaded and subsequently adopted at the trial aside from the additional Statement on Oath of the PW17; but he was not cross examined by any of the Respondents' counsel except the half hearted attempt by Ulasi SAN.
It would appear that the learned Tribunal members lost sight of the front loading procedure as enshrined in paragraph 41(1) and (3) of the First Schedule to the Electoral Act, 2010; that facts are proven nowadays in election petitions by way of depositions and no longer by oral evidence in their examination -in- chief. Thus, the only way the Appellants could speak to the documents was as they have done in the respective evidence of the PW16 and PW17 by incorporating the analysis of the documents tendered and relied upon in proof in their case, in their depositions.
On the other hand, if and where the Respondents were not satisfied by those depositions or analysis, it was incumbent upon them to cross-examine the Appellants in order to elicit rebuttal or contradictory evidence to discredit their said depositions and analyses.
The Respondents having not done that, and the Tribunal having also failed in their appreciation of the law, and the documents tendered by the Appellants in support of their case, the lower Tribunal nay the Respondents; cannot visit their tardiness on the Appellants who had done all that the law required them to do to establish the fact that the election was deficit of due compliance with the Electoral Act, 2010 and Manual for Electoral Officers, 2011.
As was held in Agagu v. Mimiko (2010) 32 WRN 10 and Aregbesola v. Oyinlola (2010) 1 WRN 33 at 149, the witnesses' depositions once admitted became their evidence in chief and the documents as analysed and incorporated in the Statement on Oath having been tendered without objection by the Respondents; the Tribunal was bound to dispassionately and discreetly assess and evaluate them and draw the necessary inferences there from before arriving at their Judgment. See INEC v. Oshiomohle (supra) at 663 to 664 and Awuse v. Odili (supra) at 416.
Thus, I agree with the learned counsel for the Appellants and the authorities of Aregbesola v. Oyinlolo (supra); Ogbe v. SuleAsade (2010) ALL FWLR (pt.510) 612 at 632 per Eneh, JSC para F; that the law accords a measure of primacy to documentary evidence as against oral evidence particularly in election matters like the one before us.
Also in line with the dicta of the Apex Court in S.P.D.C Nig. Ltd. v. Edamke&Ors (2009) ALL FWLR (pt.489) 400 at 435; BCC Nig. v. Anyim (2009) ALL FWLR 400 at 435; BCC Nigeria v. Anyim (2009) ALL FWLR (pt.488) 378 at 395 B-D; where the testimonies of the PW15 and PW17 were not challenged, the Tribunal was bound to act on them and nullify the elections in the polling units so challenged by the Appellants.
In this case, both the oral depositions and documentary Exhibits tendered in proof of the Appellants' claim on non-compliance have not been discredited. On the other hand, am of the view that the findings of the Tribunal were not a product of proper evaluation and to say the least was of utmost perversity. Accordingly, from all ramifications, although it is the primary function of the Tribunal or Court of first instance to evaluate and appraise all the evidence elicited and tendered by parties and this Court ought not to interfere particularly with findings of facts based on credibility of witnesses; where as in this case, the Tribunal failed in its duty to properly evaluate the totality of the evidence before it and came to a perverse conclusion or misapplied the law to proved facts; this Court is in as good a position as the tribunal to re-evaluate the evidence and draw the proper inferences most especially, where the case in the lower tribunal ought to have been decided substantially on documentary evidence. See Daridany v. The State (1994) 1 NWLR (pt.320) 250; Missr. v. Ibrahim (1975) 9 SC 55; Kamaldeen v. Fagbenro NSCQR 627 at 649 and Ebba v. Ogodo (1984) 1 SCNLR 372.
I therefore I agree with learned counsel for the Appellants that the Appellants' claim that the election of the 1st Respondent was invalid by reason of corrupt practices and/or substantial noncompliance with the provisions of the Electoral Act, 2010 (as amended) and Manual for Election Officials, 2011; which affected the conduct of the election negatively, was duly established by credible and un-contradicted evidence, by the Appellants.
The Issue is therefore resolved in favour of the Appellants.
ISSUE 2 WHETHER THE TRIBUNAL WAS RIGHT IN REFUSING TO NULLIFY THE ELECTION IN THE DISPUTED 31 POLLING UNITS?
In resolving this Issue, I shall reiterate as held earlier in agreement with the learned counsel for the Appellants that the Appellants had proved their case on the balance of probability that the results of the election in 31 polling units complained of are not the outcome of a due electoral process and that no election known to law took place in the questioned polling units. I will further also reiterate that the Appellants had demonstrated particularly from the evidence of the PW16 and PW17 nay others of the Appellants and Respondents as highlighted earlier on Issue Number one that the Appellants have also to a large extent demonstrated to the tribunal that the defects x-rayed in the impugned results are substantial enough to affect the election in the questioned polling units as provided by Section 139 (1) of the Electoral Act, 2010 which states thus:
"An election shall not be liable to be invalidated by reason of non-compliance with the provisions of the act it appeared to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did affect substantially the result of the election".
Needless to state that the Appellants in the petition made the issue of the substantial non-compliance one of the grounds for questioning the election set out at page 5 of the Records state as follows:
"b. ... That the 1st Respondent is not duly elected by the majority lawful votes cast at the election.
d. ...That the election and return of the 1st Respondent is invalid by reason of corrupt practices and or non-compliance with the provisions and principles of the Electoral Act, 2010 (as amended) and the manuals for election officials."; and they were able to show from their analysis and the charts that through the voters register and the result in the 31 complained polling units that all the processes denoting elections to wit accreditation, voting, recording of results in all INEC Forms and collation of results as provided by section 49(1), (2), Chapter 3 and 4 of the Manual did not take place. They were also able to show as claimed that the result sheets were mutilated, majority of which were neither signed nor dated, result sheets of two or more polling units had same serial number which is not supposed to be.
More over, the Appellants had demonstrated having tendered the ballot papers, that contrary to the mandatory provisions of chapter 4 bullet 4:21 of the Manual for Electoral Officials, that unsigned and unstamped ballot papers were counted as valid votes in favour of the 1st Respondent; and on the authority of Ajadi v. Ajibola (supra) 166 Per Adekeye JCA (now J.S.C.) who held that "Rejected ballot are the invalid ones by reason of their being not stamped and signed at the back by the Presiding Officers"; those ballot papers ought to be discounted from the scores recorded in favour of the 1st and 2nd Respondents.
Having been able to show in a comparative analysis that the figures recorded in the result sheets in the questioned polling units were markedly different with the figures of voters marked/ticked as accredited and having voted in the register of voters; the results obtained from results sheets with such discrepancies and contradictions cannot stand.
I agree also with learned counsel for the Appellants and on the authorities of Nweke v. Ejims (supra); Ajadi v. Ajibola (2004) 16 NWLR (pt 898) 91 at 182; Ogboru v. Uduaghan (supra) at 706; Terab v. Lawan (1999) 3 NWLR (pt. 231) 5 569 at 569; Section 49(1) and 2 and Chapters 3 and 4 of the Manual for Election Officials that where there is no accreditation and no voting, the results of the election cannot be sustained. Also, the marking of the voters register in the 2011 election as provided by the Manual is the only ascertainable method of proving that accreditation and voting took place.
Where for instance, as earlier highlighted on Issue Number One RW5 was confronted with the voters register Exhibit P52, and he admitted that there was only one tick in the left side of his picture (see page 434 of the Records); RW9 also admitted signing three different results sheets Forms EC8B(i) one for wards collation centresObeagu ward with three different results, the 3 separate result sheets were admitted as Exhibits R2-R4 (see page 436 Records), more so, where RW11/ the 1st Respondent admitted that his name was not ticked in Exhibit P 46 item 488 and his claim of having voted once was debunked by the Voter's Register Exhibit P46 item 488 which showed no marking against his name (see page 437 of the Records); the votes returned without accreditation in those units were automatically nullified as they were not obtained through the due process of election. See Fayemi v. Oni (supra) at 56. As said earlier, the 3rd Respondent failed to call the presiding Officers who were joined as 13th -37th Respondents and in the course of the elections, worked with/on the voters register, ballot papers and result sheets which authenticity were challenged and impugned, to support, explain or justify the impugned documents.
Having not called evidence to support their pleadings or challenge the evidence of the Petitioners, I agree with the learned counsel for Appellants and on the authority of Imana v. Robinson (1979) 3-4 SC 1 at 8; ably cited by learned counsel for the Appellants; that the Tribunal was wrong in not holding that the 3rd -37th Respondents accepted the facts as adduced by the Petitioners unchallenged. I agree also as earlier held that the overwhelming evidence of non compliance in accreditation of voters and the manifest anomalies in forms EC8A(i) showed grave irregularities in the conduct of the election and that the presumption of regularity and correctness of the result were rebutted or to use the learned counsel for the Appellants' words "eviscerated by the compelling documentary evidence falsifying their authenticity".
On the whole learned counsel for the Appellants was on very sound pedestal when he concluded in his arguments on this issue, which I adopt, that the defects, discrepancies, mutilations multiple result sheets unstamped and unsigned ballot papers tendered were on their own enough to warrant the nullification of the election in the 31 polling units, as the PW15 and PW17's analyses of the Exhibits before the Tribunal stood uncontradicted and it is trite law that a court is entitled to rely and act on the uncontroverted or un-contradicted evidence of a plaintiff or his witnesses.
I agree also that from the scenario created in the lower tribunal; there was little or nothing to put or weigh in the imaginary or proverbial scale of justice; as the onus of proof is naturally discharged on a minimum of proof. Shell Petroleum Dev. Co. Ltd. v. TigbaraEdamkue (2004) 47 WRN 1 at 31; Amadasun v. Ativie (2010) ALL FWLR (pt 505) 728, 751, Ogboru v. Uduaghan (supra); Ajadi v. Ajiboloa (supra); Nweke v. Ejims (supra) all referred. Accordingly, I hold that the Tribunal below was wrong in refusing to nullify the election in the disputed 31 polling units.
This Issue is again resolved in favour of the Appellants.
ISSUE 3 OF THE APPELLANTS: This issue which questions whether the case of the appellants ought not to have succeeded to warrant the nullification of the 1st Respondent's election and for the declaration of the 1st Appellant as the winner of the election; must be considered together with Issue 3 of the 3rd to 37th Respondents, which poses the question whether the court of appeal can interfere with the decision of a trial court which is not perverse or occasioned miscarriage of justice, In attempting to answer these questions, I must agree with the position of the law as stated by the learned counsel for the 3rd to 37th Respondents; which position I had endorsed earlier on Issue Number 1, that the law is settled that this Court in its appellate jurisdiction does not interfere with the decision of a trial court or tribunal as a matter of course once such decision is founded on proper evaluation of evidence and the decision did not pervert justice. See Woluchem v. Gudi (1981) 5 SC 291 and the dictum of Iguh, JSC in Ezekwesili v. Agbapuonwu (2003) FWLR, (Pt 1620) 2016 at 2052 paras B-D; which is very instructive that:
"In this regard, it cannot be disputed that the evaluation of evidence and ascription of probative value to such evidence are the primary functions of the trial court which saw, heard and duly assessed the witnesses. Where as in this present case a court of trial unquestionably evaluated and justifiably appraised the facts; what the Court of Appeal ought to do is to find out whether there is evidence on record on which the trial court could have acted. Once there is sufficient evidence on record from which the trial court arrived at its findings of fact the appellate court cannot interfere."
There is also no doubt that in Buhari v. INEC (2008) 19 NWLR (pt.246) 409 to 412; the Supreme Court per the Emeritus Tobi, JSC; had rightly enunciated the time tested principles guiding evaluation of evidence by trial courts to include :
i. The trial judge gives equal strength to the case of the parties in evaluating the evidence to void bias or likelihood of bias.
ii. The trial judge may star with the evidence of either the plaintiff of the defendant.
iii. The trial must take cognizance or hearsay evidence and evidence that violate the Evidence Act or any law and reject or expunge it.
iv. The trial judge must concern himself with issues joined by the parties which are live issues which will determine the case on its merit.
v. The decision arrived at after evaluation of evidence should not cast doubt in the eye of the appellate court that the trial judge hear the evidence from the first to the last word.
vi. The trial judge must take cognizance of the demeanour of witnesses in the course of listening and evaluation of evidence.
vii. Believing or disbelieving one evidence or the other of either party by the judge must be based on what is on the record.
viii. The trial judge must weigh the totality of evidence of witnesses on an imaginary scale and where the pendulum tilts in favour has the judgment.
ix. In other to arrive at a proper evaluation of evidence, the trial judge must consider evidence of all witnesses. He cannot pick and choose some witness' evidence and ignore others.
However, as far as this case is concerned, I had held that even on the facts as evaluated by the learned Judges of the Tribunal, their decision fell short of the above enunciated principles and also that apart from the findings of the Tribunal being perverse, the Tribunal did not appreciate or appraise the documents tendered by the Appellants particularly the entries made in the Voter's Registers viz-a-viz the ballot papers and the result sheets which were carefully analysed by the PW16 and PW17 in their respective Statements on Oath and which documents were tendered and admitted without objection and unbundled in the course of eliciting evidence at the trial.
In the prevailing circumstance, where the trial tribunal failed in its duty to carry out a proper appraisal of the documentary Exhibits, tendered by the Appellants; this Court as an Appellate Court can embark on their re-evaluation exercise and draw the necessary inferences there from; just as the tribunal would have done as a court of first instance. This we had earlier done in our determination of the first and second Issues.
Needless to say, that by the arguments of the learned counsel for the Appellants on this issue which is a rehash of their arguments in respect of Issues One and Two, we are entitled to look at the chart reproduced at page 25 of the Appellants' Brief since they are a fall out from the analyses carried out by the Appellants, particularly in the witnesses' Statements of the PW16 and PW17 to which all the Respondents had no answer, as to who as between the Appellants and 1st and 2nd Respondents scored the majority votes. Suffice it to say that on the authorities of Ngige v. Obi (2006) 14 NWLR (pt.999) 1 at 233; a decision of the full panel of the Court of Appeal where it was held inter alia that:
"In election petition cases the decision of the court particularly when the issue is as to who had majority of lawful votes, is based largely on documentary evidence, mainly election result forms so the question of the appraisal of the oral evidence and demeanour of witnesses is not that much in issues"; and Chukwuma v. Anyakora (2006) ALL FWLR (pt. 302) 121, per Salami, JCA (now PCA) at page 147 F-G where His Lordship ruled thus:
"The Supreme Court in the case of Nwobodo v. Onoh (Supra) held on page 113 of the report that when the necessary data are available of undisputed results at polling stations not only the trial court and Court of Appeal but any reasonable person with the little effort in arithmetic calculation can determine the correct result of the election"; we make bold to reproduce the charts herein as follows:
Result as declared by INEC in Form EC8(i) Exhibit P41
Contested result as shown in Exhibit Form EC8C(i) Exhibit P40
NKALAGU 126 1,438
UMUHUALI WARD 71 921
AMAEZU WARD 37 472
OBEAGU WARD 55 1,400
IYIONU WARD 16 275
TOTAL 305 4,446
SUMMARY ANPP 305
Result not contested as shown in Form EC8AC(i)
NKAIAGU WARD 442 672
UMUHUALI WARD 1,644 125
AMAEZU WARD 96 132
OBEAGU WARD 147 60
IYIONU WARD 568 4
TOTAL 3,297 993
ANPPP 3,849 - 305 =3,544
PDP 5,629 - 4,446 = 1,183; and hold that ordinarily with the results above analysed, the Appellants would have scored the majority of the lawful votes cast at the election and ought to be declared winner of the said election. However as we had said earlier in the course of our pronouncement, on the 7th day of January, 2012; in view of the preponderance of non-compliance with the provisions Electoral Act, 2010 (as amended) and Manual for Election Officials, 2011, in five (5) out of the six (6) wards constituting Ishielu North State Constituency of Ebonyi State and particularly in thirty one (31) polling units of those wards which substantially affected the results in the entire election as declared by the 3rd Respondent the Appellants (particularly the 1st) cannot benefit from the flawed election.
Accordingly, we allow the Appeal and set aside the Judgment of the National Assembly/Legislative Houses Election Tribunal sitting at Abakaliki Coram: Hon. Justices H. A. Olusuyi (Chairman); B. M. Tukur (Member) and P. I. Imoedemhe (Member); which Judgment was delivered on the 12th day of November, 2011 in Petition No. EB/EPT/SHA/6/2011 consequently dismissing the Petition with the consequential orders as contained in the pronouncement.
JUSTICE HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother IGNATIUS IGWE AGUBE, JCA. I agree that the appeal be allowed. The judgment of the lower tribunal is hereby affirmed. I abide all by the consequential orders made.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I agree.
C.C. Okaa Esq. with S. Odili Esq. For the Appelants
M.V.C. Ozioko Esq. with C.E. Asogwa Esq. for the 1st and 2nd Respondents.
M. Ugwuocha Esq. for the 3rd-37th Respondents For the Respondents