IN THE COURT OF APPEAL HOLDEN AT BENIN CITY ON FRIDAY THE 10TH DAY OF JULY, 2009 lJEFORE THEIR LORDSHIPS:

GEORGE OLADEINDE SHOREMI ALI ABUBAKAR BABANDI GUMEL CHIOMA EGONDU NWOSU-IHEME BETWEEN: JUSTICE, COURT OF APPEAL JSUTICE, COURT OF APPEAL JUSTICE, COURT OF APPEAL APPEAL NO. CAIB/EPT/206/2008

FELIX NBANEFO NWOKO AND 1. SENATORPATRICKOSAKWE

APPELLANT

RESPONDENTS 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION & 18 ORS

(DELIVERED This appeal

JUDGMENT BY GEORGE OLADEINDE SHOREMI emanated from the decision of

(JCA) National

the

Assembly/Governorship

and legislative Houses Election Petition Tribunal

th

holden at Asaba Delta State and delivered on the 28 day of May 2008 in which the petition of the Appellant was dismissed. It is against this

judgment that the Appellant who was the petitioner at the tribunal had filed 12 grounds of appeal. The Appellant called evidence and gave a written address which he adopted. The 15t Respondent also called witnesses and also adopted his written address.

After adoption of written addresses the Honourable Chairman and members of the tribunal gave judgment on the 28 dismissing the petition. The relevant part of the judgment reads thus I quote "From these pieces of evidence given by the Petitioner and his witnesses, it is crystal clear that this evidence is at variance with the pleadings of the Petitioner highlighted above. And where such is established as in the instant case, the evidence will be regarded as of no value and liable to be discountenanced. On this see the case of OKOLO VS. DOKOLO (2006) ALL FWLR (PT.336) 201, where the Supreme Court held inter alia that: "If the evidence is at variance with the pleadings, such evidence will have no value. It will be discountenanced because it is contrary to the issues joined and therefore goes to no issue worthy of 'd . conSl eratlOn ." We further observe that these pieces of evidence vitiates proceedings because of the material contradictions contained therein. This is the position of the law expressed by the Court of Appeal, per Abba-Aji JCA, in the case of ADMIN GENERAL AND PUBLIC TRUSTEES, DELTA STATE VS. OGOGO (2006) ALL FWLR (PT 293) 256 where it was held thus: "F or contradiction in evidence of witnesses to vitiate a court proceedings, it must be material contradiction which strikes at the basis of the case and sufficient to raise doubt in the mind of the court and not merely trivial." It should be noted that the basis upon which the declaration of the 15t Respondent as winner of the Delta North Senatorial District election of 29/4/07, is the result declared by INEC, and it is the same results that are being attacked by the Petitioner who and his other witnesses decided to portray themselves to
2
th

day of May 2008

the Tribunal as double-faced, blowing cold and hot water at the same time. This goes to show that the witnesses do not have mind of the court, not only in relation to the alleged fabrication of results, but also in relation to the entire evidence adduced by the Petitioner, regard being had to the nature of the onus placed on him by law in proving his case. On the issue of postponement which is covered by paragraphs 11,12,13,14 and 15 of the petition, it is trite law that change of the voting period of election does not constitute noncompliance with any provision of the Electoral Act 2006. See the case ofBUHARl VS. !NEC (supra) where it was held that: "Section 28 of the Electoral Act provides that nothing in any particular election under the Act should take place at the same day and time throughout the Federation. Section 26 provides that Independent Electoral Commission shall appoint the date on which the election to the officer of the President and Vice-President shall hold. While Section 27(1) of the same Act provides that the commission can postpone the Presidential Election and other elections set out in Section 26 for reasons set out in Section 27, and the postponement may relate to either the whole country or a part of the country as may be determined by the commission. A Community readings of those Sections shows clearly that the 1st Respondent can fix the date and time for the Presidential election and change same. Moreover, a change of voting period of election throughout the Federation do not constitute a non-compliance with any provision of the Electoral Act. It could only be said to constitute an amendment to the manual for the elections officials for 2007". With this position of the law in mind, the 2nd _20 respondents can only be said to be acting in good faith and within the ambit of the law when they postponed any election, unless contrary intention is established. In the instant case, the Petitioner going
3
th

by the evidence he adduced has not been able to establish lack of good faith when regard is had to the nature of the evidence which, to out mind, fell short of the required standard. In view of all that has been said above, the petitioner has not been able to make out a case against the Respondents warranting any rebuttal. The serious nature of the allegations of non-conduct of elections and the burden of proof placed on the Petitioner is very weighty and cannot be discharged by merely bringing witnesses to say that they spent the whole day in those wards and that there was no voting. In this regard see the case of PRINCE CHIJIOKE V. NNAJI VS. PRINCE GODDY AGBO & ANOR (2006) EPR VOL.2 867, where the Court of Appeal held thus: "No doubt the allegation of the Petition that elections did not hold in 17 wards out of the 26 wards in the constituency is a very serious one and the burden of proof on the Petitioner is very weighty and it is not what he can so easily discharge by only bringing people to say that they spent the whole day in those wards and that there was no voting and the burden of proof will then be shifted to the respondents to show that there was voting, accreditation, counting of cotes and the announcement and tendering the voters' register which is a public document which the petitioner is expected to subpoena the Electoral Commissioner to produce so that he could prove his case. If this is the case, anyone can easily raise such a ground in his petition and then sit back and leave the Respondents to struggle it out and show that there was an election". In the above case, the effect of section 150 of the Evidence Act as it applies to cases similar to the instant case was highlighted as follows: "In the instant case, by virtue of section 150 of the Evidence Act there is presumption that elections
4

were duly conducted in all the wards including the disputed areas and that all the conditions for valid elections were duly met, it is therefore incumbent on the Petitioner to call the voters to show that they did not vote in the disputed wards on the said date because there were no electoral officials present and that no voting counting or announcement of results took place in the disputed wards on that day". Generally, a defendant is not bound by law to call witnesses to establish his defence where a prima facie case has not been proved by plaintiff. This position was pronounced in the case of ARABAMBI VS. ADVANCED BEVERAGES IND. LTD (2006) ALL FWLR (Pt. 295) 581, where it was held that: "A defendant is not bound by law to call witnesses to establish his defence where a prima-facie case has not been proved by plaintiff, but that position is valid only if prima facie case has not been established by the party in whose favour judgment will be given if he fails to adduce .d ence " eVl . In line with the authorities cited above, we do not deem it necessary to delve into the merit or demerit of evidence adduced by the Respondents in defence of their case. From the foregoing, it is our candid view that the Petitioner has failed to establish his case as required by law. Accordingly, this petition is hereby dismissed. No order as to cost". It is against this judgment that the Appellant filed 12 grounds of Appeal quoted hereunder without particulars.
GROUND ONE (1) ERROR-IN-LA W Learned Chairman and when they claimed the contents of exhibits 2-22 counter to the provisions Members of the trial tribunal erred in law invitation to examine and scrutinize the and 24 on the ground that the request runs of paragraph 4 of the Practice 5

GROUNDS TWO (2) ERROR-IN-LA W Learned Chairman and Members of the tribunal erred in law and occasioned a miscarriage of justice when they discountenanced the appellant in invitation to examine the signatures on the exhibits purportedly prepared by the 3rd_17th Respondents with their signatures in their written statements on oath in order to determine their authenticity as baseless on the authority of onwudinjo v. Dimobi (2006) 1 NWLR (Pt.961) 318. GROUND THREE (3) MISDIRECTION-IN-LA W

The trial tribunal misdirected itself in law when it held that "Any issues connected to exhibit 39 is to our mind not of moment, regard being had to the fact that such issues are hinged on nomination of candidates which this court has already disposed of vide our ruling of 12/12/07 and as such makes the tribunal functus officio over the matter; for this reason the submissions are hereby discountenanced accordingly" GROUND FOUR (4) MISDIRECTION-IN-LAW The Honourable Chairman and Members of the tribunal misdirected themselves in law and thereby occasioned a miscarriage of justice when they held as follows "Based on the various allegations contained in the petition of the petitioner, coupled with the above laid down principles of law applicable thereto, it is our candid view that the complaint of the petitioner over the conduct of the election in respect of Delta North Senatorial District are criminal in nature and as such the standard of proof required is proof beyond reasonable doubt". GROUND FIVE (5) MISDIRECTION-IN-LA W

The Honourable Chairman and Members of the tribunal misdirected themselves in law and thereby occasioned a miscarriage of justice when they struck out paragraphs 8a, band f of the petition on the ground that they constitute pre election issues over which they have no jurisdiction. GROUND SIX (6) ERROOR-IN-LA W The learned trial Chairman and Members of the tribunal erred in law and occasioned a miscarriage of justice when they held the evidence of PW2-PW6 were hearsay and as such neither reliable nor admissible and goes to no issue.

GROUND SEVEN (7) ERROR-IN-LA W The learned trial Chairman and Members of the tribunal erred in law when they held that the pieces of evidence given by the petitioner and his witnesses are at variance with this pleadings on fabrication of results per paragraphs 21 and 24 of the petition and contain material contradictions. GROUND EIGHT (8) ERROR-IN-LA W The learned trial Chairman and Members of the tribunal erred in law and occasioned a miscarriage of justice when they held as follows st "It should be noted that the basis upon which the declaration of the 1 Respondent as winner of the Delta North Senatorial District election of 29/4/07 is the result declared by INEC, and it is the same results that are being attacked by the petitioner who (SIC) and his other witnesses decided to portray themselves to the tribunal as double faced, blowing cold and hot water at the same time. This goes to show that the witnesses do not have one particular direction to face. Indeed, this will undoubtedly cast serious doubt in the mind of the court not only in relation to the alleged fabrication of results but also in relation to the entire evidence adduced by the petitioner regard being had to the nature of the onus placed on him by law on proving his case" GROUND NINE (9) ERROR-IN-LA W The Honourable Chairman and Members of the tribunal erred in law when they after stating that change of voting period of election does not constitute non-compliance with any provisions of the Electoral Act 2006 per the case of Buhari v. INEC (supra) held follows: "With this position of the law in mind, the 2nd .20 Respondents can only be said to be acting in good faith and within the ambit of the law when they postponed any election, unless contrary intention is established. In the instant case, the petitioner going by the evidence he adduced had not been able to establish lack of good faith when regard is had to the nature of the evidence which to our mind fell short of the required standard". GROUND TEN (10) ERROR-IN-LA W The Honourable Chairman and Members of the tribunal erred in law and occasioned a miscarriage of justice when they held that the petitioner had not been able to make out case against the Respondents warranting a rebuttal.
th

GROUND ELEVEN (11) ERROR-IN-LA W

The learned trial Chairman and Members of the tribunal erred in law when they dismissed the petition on their candid view that the petitioner failed to establish his case required by law.

GROUND TWELVE (12)

The judgment is clearly against the weight of evidence.

In line with the practice in the Court of Appeal briefs were filed and exchanged by parties. When the appeal came up for hearing on the 28 day of April, 2009 Mr. G.C. Igbokwe learned counsel to the Appellant leading other counsel identified the Appellant's brief dated and filed on 21/308 and a reply brief dated and filed on 25/3/09. He adopted the briefs and relied on the argument therein as his arguments in favour of the Appellant and urged this court to allow the appeal. Mr. Ohwovoriole leading counsel to the 1st Respondent identified his reply brief attached to a motion dated 25/3/09. He adopted the brief as his
th

argument and referred the court to page 6 of his brief where he argued a Preliminary objection. He adopted and relied on the brief and urged the court to uphold his preliminary objection and also dismiss the appeal. The learned counsel to the 2nd_20th Respondents Mr. Ovraweah adopted his brief of 2 _20
nd th

Respondents dated 6/2/09 and deemed filed on 25/3/09 also urging this court to dismiss the appeal. In his notice of Preliminary Objection the 1st Respondent has this to say; (I)That Ground 5 of the Appellant Notice of Appeal is invalid and (2) That Issue one for determination formulated by the Appellant is incompetent and liable to be struck out.

The grounds relied upon by him are that: (1) Ground 5 of the Appellant's Notice of Appeal does not arise from the judgment appealed against by the Appellant. Ground of the Appellant's Notice of Appeal is against an earlier interlocutory Ruling delivered during the trial by the tribunal Ground 5 of the Appellant's Notice of Appeal was filed without leave of this Honourable Court. Issue one for determination formulated by the Appellant is incompetent. Issue one for determination formulated by the Appellant is derived from the invalid Ground (5) of the Appellant Notice of appeal.

(2)

(3)

(4)

(5)

Ground 5 of the Notice and grounds of appeal complained of reads thus I quote Ground (5) Misdirection in Law "Hon Chairman and Member of the tribunal misdirected themselves in law thereby occasion a miscarriage of justice when they struck out paragraph 8(a) (b) of the petition on the ground that they constitute pre-election issues over which they have no jurisdiction" In support of his objection the 1st Respondent argued thatSignificantly, the Appellant did not appeal against the ruling of the tribunal striking out the aforesaid averments in Paragraph 8(a), (b) and (f) of the Petition which relate to pre-election matters within the 14 days period prescribed by section 24(2) of the Court of Appeal Act 2004 for appeals to be lodged against interlocutory rulings.

In UMANAH f/: ATTAH (2006) 17 NWLR (PT 1009) 503 at 536, Paragraphs C-E the Supreme Court held that where a party fails to appeal against a finding or decision of a Court or Tribunal, he is deemed by law to have accepted that decision. Submit that the Appellant in the instant case is deemed to have accepted the ruling of the tribunal by which the averments in paragraph 8(a), (b) and (f) of the petition relating to preelection matters were struck out. He is therefore estopped from raising a complaint against the said ruling at this stage without first seeking and obtaining leave of Court. In JSC SERVICE LTD f/: G.e. LTD (2006) 6NWLR (PT 977) 481 AT 505-506, Paragraphs G-A, the Court of Appeal held that an Appellant who is desirous of incorporating Grounds of appeal against interlocutory decisions in a notice of appeal against the final decision of the court must first seek and obtain the leave of court to appeal out of time; otherwise the Grounds of appeal against the interlocutory decision would be incompetent and liable to be struck out. In the instant case, despite his failure and or refusal to appeal h against the interlocutory ruling dated 1i December, 2007 within the prescribed time as required by section 24(2) of the Court of Appeal Act, 2004, the Appellant incorporated ground five of his appeal complaining against the earlier interlocutory ruling into his Notice of Appeal against the final judgment of the lower tribunal delivered on 28th May, 2008 without seeking and obtaining leave of court. He submitted that Ground 5 of the Notice of Appeal is incompetent and liable to be struck out, for failure of the Appellant to seek leave of court. See also OGBORU f/: IBORU (2004) 7 NWLR (PT 871) 192. ISSUE DISTILLED FROM INCOMPETENT GROUND 5 OF THE NOTICE OF APPEAL LIABLE TO BE STRUCK OUT: He submitted that Issue One formulated from Grounds 3 & 5 and argued by the Appellant having been distilled inter alia from an incompetent Ground of Appeal i.e. Ground 5 is liable
10

--~------------------------~"~~

to be struck out. In A GBAKA V. AMADI (1998) II NWLR (PT572) 16 at 24 E-G, the Supreme Court coram Ogwuegbu JSC affirmed that: " ... .... When a Ground of appeal is incompetent, any issue for determination based on the incompetent Ground goes to no issue and should be struck out as incompetent. It automatically collapses when the Ground of appeal ceases to exist ...
JJ

ISSUES FORMULATED FROM ADMIXTURE OF BOTH COMPETENT AND INCOMPETENT GROUNDS OF APPEAL ARE LIABLE TO BE STRUCK OUT: He further submitted that the situation cannot be remedied by the fact that the Appellant purports to have distilled the said Issue One from Grounds 3 and 5. Issues formulated from both competent and incompetent Grounds of Appeal are liable to be struck out. It is not the duty of this Honourable Court to perform a surgical or judicial operation on argument canvassed in respect of the competent Grounds of appeal by separating the argument in respect of the incompetent Grounds of appeal. See OBI-ODU Ii: DUKE (2006) 1NWLR (Pt.961) 375 at 409, Paragraphs C-F and NGIGE JI: OBI (2006) 14 NWLR (Pt.999) 1 at 165, Paragraphs D-H. IN AYALOGU V. AGU (1989) 1 NWLR (Pt.532) 129 at 142, Paragraphs H-A this Court also held that where an issue for determination encompasses an offensive or incompetent Ground of appeal, as in the instant appeal, the submissions on that issue go to no issue and ought to be expunged. It is therefore our submission that Issue (1) in the Appeal's Brief of Argument is inextricably tied to arguments derived from the incompetent Ground 5 of the Notice of Appeal and therefore the issue is tainted with the virus of incompetence. We urge this Honourable Court to discountenance Issue on formulated by the Appellants and the arguments adduced thereto in the Appellant's Brief of argument.
11

..

In his reply the Appellant argued that the Preliminary Objection is incompetent because both Respondent adopted the issues formulated by the Appellant including Issue 1 which was distilled from Ground 5. He said that they did not file cross-appeal. He said having adopted the issues formulated from the grounds of appeal by the Appellant, the Respondent can not deal with them in an inconsistent manner relying on the following cases IDIKA V. ESIRI 1988 2 NWLR (Pt. 79) 563; EZE

v. FRN

1987 1 NWLR (Pt

51) 506; EBO V. NTA 1996 4 NWLR (Pt 442) 314; CHIMA V. THE STATE 1996 6 NWLR (Pt. 455) 465. He also argued that the law is and has always been that when interlocutory decisions are made they are deemed to be incorporated in the main and final judgment and be appealable upon as a decision contained in the final judgment especially on issues on

jurisdiction and election petition. He also submitted that the Ground 5 and Issue 1 being challenged border clearly on jurisdiction. objection be dismissed. The 2nd_20th Respondent have no Preliminary objection. that the premises on which the objection is based is misconceived. By virtue of Order 3 rule 22 of the Court of Appeal Rules a party who is dissatisfied with a judgment and who appeals against if may raise a complaint against any interlocutory order made by the trial court or tribunal even though he has not appealed against that interlocutory order when it was made. Thus a ground of appeal from a final judgment in an election petition incorporating a complaint against an interlocutory decision given in the course of a trial is competent. See UMANA V ATT AH (2004) 7 NWLR I must say He said that the

(Pt 871) 63; AONDOAKAA V. AYO (1999) 5 NWLR (Pt 602) 206; MADUAKO V. ONYEJOCHA (2009) 5 NWLR (Pt 1134) 259 at 276 C-

12

E.

Therefore

the

preliminary

objective

based

on that

premIse

IS

misconceived and it is dismissed. Looking at ground five quoted inter alia it is based on the issue of qualification. In the particular of error the Appellant says, I quote: " Issue of qualification of candidates are not pre election matters over which the tribunal does not have jurisdiction. The said paragraph concerns the t fundamental issue of whether or not the r Respondent was indeed a candidate at the election. " The question is did the issue of qualification or eligibility arise from the judgment? The answer is no. At page 595 of the Record, the tribunal

referred to the written address of the Appellant wherein he wrote as follows: "For the avoidance of doubt the petition seeks to t abandon the issues of the Respondent's disqualification based on the grounds of bankruptcy, membership of secret cult and criminal

From what one can deduct from the stance of the petition that the issue of qualification is totally abandoned. abandoned. However, having held that it is

Let me quote the remaining part of paragraph 8 (a) and (b) of

the petition. I quote: "The rt .Respondent was a full fledged card carrying member of another party, the People Democratic Party as a February 2007 where he contested the primaries, lost and was challenging his defeat by PDP. He was only expelledfrom PDP on 2ih May for Anti-party activities. The rt Respondent's name was consequently not in the 2 Respondent's SENATE VERIFICATION REPORT of Substituted candidates as a 20/02/07 therefore making him an invalid candidate or no candidate at all for the said election. "
nd

13

..

The contents of this paragraph are clearly not matters for the tribunal to decide I agree with them that paragraphs 8 (a) and (b) of the petition are pre- election matters over which the tribunal had no jurisdiction. Therefore, Grounds 3 and 5 and issue I distilled therefrom are of no moment and therefore resolved against the Appellant. ISSUES 2, 3 and 4 as distilled by the Appellant and argued by the Respondent are as follows:
From the totality of pleadings and evidence led at the trial on postponements of the election, whether the Appellant had established non compliance with the provisions of the Electoral Act sufficient to vitiate the purported election and return of the 1st Respondent (Ground 9) Whether the Honourable tribunal was right to refrain from evaluating the documentary evidence (particularly exhibits 2-22 and 24-33) adduced at the trial in order to ascribe probative value to them (grounds 1 and 2). Upon a careful and dispassionate evaluation of the entire pleadings and evidence led at the trial whether the Honourable tribunal was right in holding that the Appellant did not make out a case within the requisite stand against the Respondents warranting a rebuttal (Grounds 4,6,7,8,10,11 and 12)

I must confess that I cannot see any reason why the three Issues cannot be treated as one which is; the evaluation of evidence documentary or oral when the judgment is based on only one issue which is 'that the election when narred by manifest irregularities, corrupt practices and non-compliance with the provision of the Electoral Act 2006 with the resultant effect that there was no election at all in the Delta North Senatorial District. The Tribunal concluded that the Petitioner had failed to establish his case as required by law. On Issue NO.2 the Appellant submitted that the issue of unwarranted

postponements of the election from 21/4/07 originally fixed for the election

14

to 26/4/07 then to 28/4/07 and finally to 29/4/07.

He argued that the

Respondents were not contesting the averment. The Appellant relied on the case of BUHARI V. INEC AND SECTION 27(1) OF THE

ELECTORAL ACT 2006. He submitted that it has been clearly established by the Appellant in that the proof came in the circumstance of the Respondent not controverting the allegation of the Petitioner nor the Respondent calling any witness. He relied on AKANNI V. ODEJIDE (2004) ALL FWLR (PT 218) 827 at page 857 C - E and other cases. He submitted that if the tribunal had adverted its mind to

Respondent's for the proper standard in view of the totality of pleadings and evidence and all the circumstances of it would certainly have cone to the inevitable conclusion that the Appellant had proved non-compliance with S. 27 of the Electoral Act which non-compliance certainly affected the

outcome of the purported election and must vitiate the return thereon. He urged the court to resolve the issue in favour of the Appellant. The 1st

Respondent in answer to Issue 2 argued that for the totality of pleading and evidence led at the trial on the postponement of the elections, the Appellant was in error. He argued that the INEC has the power to postpone election. He said not a single witness testified that they had no notice of the election held on 29/4/07 rather they testified that election did hold on that day. He said: He argued that it was not PLEALDED or show how the provision of the aforsaid Section were breached. Relying on BUHARI V. INEC (2008) 4NWLR (pt 1028) 546 at 660 B-H. Address of counsel cannot be substituted for evidence. BA YO V.

NJIDA (2004) 8 NWLR (Pt 876 at 544. He urged the court to resolve issue 2 in favour of the 1st Respondent.
15

The 2nd

20th Respondents argued that the Appellant has failed to of the date of election

show the manner in which the postponement

constituted non-compliance when publicity was given to the postponement and the publicity was effectual. Infact the Appellant admitted that is was

announced on the State Radio. They argued that the burden of proving how the postponement affected the outcome of his election. The Appellant had the burden to show how the postponement

adversely affected him. They urge the court to resolve this issue against the Appellant. By virtue of Section 27 of the Electoral Act 2006, where a date had been fixed for the holding of an election there is reason to believe that a serious breach of the peace is likely to occur if the election is proceeded with on that day or it is impossible to conduct the election as a result of natural disaster or other emergencies, the commission may postpone the election and shall appoint another date for the holding of the postponed election. !NEe has a right to postpone elections. See BUHARI SUPRA (2009) (pt 1130) NWLR 116. APGA V. OHAKIM. See also

It is in evidence that there are other contestants the postponement generally affected all

including the 1st Respondent,

candidates. From the totality of evidence adduced in the petition, there is no valid reason why this issue should be resolved in favor of the Appellant as he did not show how he suffered any setback in the election conducted on 29/4/07. The issue is therefore resolved against him. On Issue 3 the Appellant argued that the tribunal refrained from evaluating the documentary evidence (Exhibits 2-22 and 24-33) adduced at the trial in order to ascribe probative value to them. The Appellant argued that his case at the tribunal was that there was no election and that votes accredited to the 1st Respondent by the 2
16
nd th

20


Respondents were fabricated and to prove this certain documents mainly statutory election forms were tendered (underlined mine for emphasis). He argued that the Appellant urged the tribunal to compare the signature of the makers of Exhibits. The tribunal misinterpreted paragraph 4 of the Practice Direction. He argued that documentary evidence is the best evidence.

CITY AGBARAH V. MIMRA 2 NWLR (Pt. 1071) 378. He submitted that the tribunal below was clearly in error in declining to evaluate and consider the documentary evidence duly tendered and admitted without objection when the exhibits in the instant case are capable on their own of resolving the issue raised by the Petitioner. He relied on the case of

OMIGURE V. EMETUNBA (2008) 9 NWLR (pt 1092) 371 at 414 D-F and SHELL DEVELOPMENT COMPANY LIMITED V. OFOKO

(1990) 6 NWLR (Pt 159) 693. He called on this court to exercise its power under Section 16 of the Court of Appeal Act. Let me say that the brief of the Appellant at page 18-22 seems to me to be evidence rather than argument in favor of the appeal. He however

urged the court to resolve Issue 3 in his favor. The 1st Respondent in his argument said that it is the duty of the Petitioner relying on Documents in proof of his case to relate same to specific aspects of his case. He relied on the case of INIAMA V. AKP ABIO 17 NWLR (pt 1116) 225 and EJOGU V. ONYEGUOCHA (2006) ALL FWLR (p. 317) 467 at 490. He concluded that a Petitioner must go beyond merely tendering the documents and he must lead evidence of what he intends to use the exhibit to establish. On this issue the 2nd line with the 1st Respondent's
-

20th Respondents argued vehemently in

submission and recommended the case of

EJOGUN V. UCHE ONYEAGUOCHA & ORS (2006) ALL FWLR (pt

17

317) 467 at 490. Appellant.

He also urge the court to resolve the issue against the

In the case of INIAMA V. AKPABIO (2008) 17 NWLR (Pt.1116) 225, the Appellant tendered bundles of documents but there was no evidence to link any of them to the case of the Appellant as presented. The Court of Appellant held that the documents were worthless. The Court held further that a party relying on documents in proof of his case must specifically relate each of such documents to that part of his case in respect of which the document is being tendered. It is not the duty of the court to tie each of a bundle of documentary exhibits to specific aspects of the case for a party when that party has not done so himself. The foundation of the principle is that it is an infraction of fair hearing for the court to do in the recess of its chambers what a party has not himself done in advancement of his case in open court. It is only after the link has been made that the court is entitled to retire to chambers and examine the documents carefully in light of the evidence led in respect thereof and determine if the party alleging has made out a case. GALADIMA JCA at 299, Paragraphs D-F stated as follows:
" .... Where a party (Appellants in the circumstances of this case) has the burden of specifically relating or linking each of the document to specific parts of their case, it is inconceivable to argue that several bags or bundles of documents that 'metamorphosed' into exhibits 4-32(b) could just be dumped on the tribunal to sort them out. Even if the Appellant's case is built on affidavit evidence, the court can neither be saddled with nor can it suo moto assume the partisan responsibility of tying each of such huge bundle of documentary evidence to specific aspects to the Appellant's case of malpractices alleged in pleadings when they have not done so themselves .... " FABIYI, JCA in EJIOGU V. ONYEGUOCHA (2006) All FWLR (P.317) 467 at 490 stated as follows:" ... The Appellant complained that there were mutilations on the face of certain forms tendered by Him. But the exhibits were not demonstrated before the tribunal. A party relying on a document in proof of his

18

case must specifically relate each of such documents to that part of his case in respect of which the document is being tendered. Such a duty should not be left to the court in the recess of its chambers. A party is under obligation to tie his document to facts or evidence in the open court, not through counsels' address: it is not part of the duty of a court to embark upon cloistered justice by making enquiry into the case outside the court, not even by examinations of documents which were in evidence when such documents had not been examined in the open court ... " See also DR. STEPHEN ONWEJE V. MR. OTSE OTOKA & 6 ORS. (1999) 4 NWLR (Pt.600) 518, where this court reiterated the hallowed principle that a petitioner must go beyond merely tendering the documents and he must lead evidence of what he intends to use the exhibits to establish.

A court must Act on materials placed before it,

III

this case the

Appellant did not place any material before the tribunal, the exhibit referred to were tendered without linking any to any piece of allegation made against the Respondents. The evidence falls short of standard of proof placed on the petitioner. An appellate court can exercise the power to re-evaluate evidence. An appeal court can do so where the trial court fails or neglects or refuses to do so or does it in an improper way. The appeal court can embark on such reevaluation where for instance(a) (b) (c ) the trial courts evaluation is clearly perverse the trial court drew wrong conclusion from the totality of the evidence The trial court applied wrong principle of law to accepted facts in the case.

In other words it is not every circumstance that an appeal court will have the liberty or re-assessing or re-evaluating evidence tendered before a

trial court. The duty of evaluating evidence belongs to the trial court. See

19

ANYEGWU V. ONUCHE (2009) 3 NWLR Pt 1129, 659 Pp.675-676. This issue is therefore resolved against the Appellant. On Issue 4 The Petitioner complained that no careful or compassionate

evaluation of the entire pleadings and evidence led at the trial and quarried whether the tribunal was not wrong in coming to the conclusion that the Appellant did not make a case. He submitted that the tribunal was wrong in law and in fact the way and manner it evaluated the pleadings and evidence of the Appellant. He

argued that the tribunal applied a wrong standard of proof. The Appellant called maid the case of OMOBORIOWO V. AJASIN (2003) 50 WRN

132. He argued that the allegation of crime did not form the bases of the Appellants case and that the tribunal should have decided the case on the balance of probabilities and or preponderance of evidence. He supported his argument with authorities including AJADI V. AJIBOLA. He submitted

that Election petition cases require proof on the balance of probability or on the preponderance of evidence on the part of the petitioner - such a burden can be discharged by the evidence of a single witness without the need for any corroboration. The petitioner in his argument put the proof that the

elections were held on the Respondents. In conclusion he urged the court to allow the appeal, and set aside the judgment of the lower tribunal, hold that the Appellants petition succeeds nullify the elections order fresh election and disqualify the 1st Respondent from the said election. The 1st Respondent replied that it is settled that the burden of proof is on the party that makes the positive assertion in respect of a fact or event refer to S. 135 of Evidence Act. He argued that the only point of Appellant's petition that the court tried was the criminal allegation and that the evidence proffered by the Appellant in proof of criminal allegation
20

was abysmal and without much ado the Appellant abandoned his bundle of criminal allegation. He submitted that at all time the Appellant fail to

discharge the burden of proof which vested on him to prove his claim that election did not hold. (Pt.892) 99 at 122. He submitted that the tribunal evaluated the evidence adduced by the Appellant's witness and held that the Appellant did not made a case. He urged the court to dismiss the appeal of the Appellant and the ground. The 2nd _20th Respondents argued that this issue formulated by the Appellant is grossly misconceived and ought to be refused. He argued that points canvassed by the Appellant had been abandoned. He argued that He referred to INEC

v.

RAY (2004) 14 NWLR

allegation of the Appellant were criminal in nature as contained in section 124-138 of the Electoral Act 2006. He argued that none of the witnesses
nd

tendered a voters card none of them was shown the result sheets. The 2

20th Respondent relied on the much battered case of BUHARI V. INEC (supra) where it was held that the standard of proof in criminal allegation is one of proof beyond reasonable doubt, same has been codified in Section 138 (1) & (2) of the Evidence Act. It needs not be pointed out that where a petitioner, as in this case alleges electoral malpractices he has a duty to prove the malpractice alleged and show that same affected the result of election. He submitted that the Appellant can not reduce the standard of proof. He fully relied on BUHARI V. OBASANJO (2005) 13 NWLR (Pt.941) 1 at page 269 F-H where the Supreme Court held as follows: "A plaintiff is entitled to lead defendants pleading consistent evidence elicited during is not such evidence is not supported
21

evidence on a point in the with this principle is that inadmissible merely because by the pleadings of the party

eliciting the evidence. It suffices party to the suit".

if the evidence

is pleaded by a

Without hesitation and much ado I agree with this authority and I am fully bound by it. The 2nd _20th Respondent urged the court to dismiss the appeal as lacking in merit. The Appellant is confused as to what his case was. Was it that election did not hold at all or that the election was marred by manifest irregularities, corrupt practices etc. If there was no election how does corrupt practices and manifest irregularities and non compliance come into the petition. As you lay your bed so you lie on it. It is now trite law that the burden of proof is on the petitioner who alleges that election did not hold to lead evidence on all material facts required to prove or make out a case or rebuttals by the other party. INEC V. RAY (2004) 14 NWLR (Pt.892) 92 at 122. In BUHARI V. OBASANJO (2005) 13 NWLR (Pt .941) Page 1 at 209 the Supreme Court held as follows:
"Manipulation or alteration results is a criminal offence and the proof required is high that is beyond reasonable doubt etc".

See

From the available records the lower tribunal was right to dismiss this petition on the basis that the Petitioner had failed woefully to discharge the onus of proof placed on him. His case was so weak that the Respondent need not go beyond the limit they went. The Supreme Court in the case of ANYEGWU V. ONUCHE (2009) 37 NSCCR 109 at 127 has this to say on what may influence a court in ascribing Probative value to Evidence before it is the quality of the evidence or document tendered. In achieving that, the trial judge has to have regard to among other things the following -

22

(1) (2) (3) (4) (5)

Admissibility of the evidence Relevancy of the evidence Credibility of the evidence Conclusivity of the evidence Probability of the evidence in the sense that it is more probable than the evidence of the other party and Finally after having satisfied himself that all the above had been complied with, he shall now apply to the to the situation presented in the case before him so as to arrive at a conclusion in one way or the other.

(6)

This assignment is an exclusive preserve of the trial court. It is settled principle of law that where a trial court has carried out its assignment satisfactorily, an appeal court shall be left with no option but to affirm such decision, Appellant to do otherwise will institutionalize of justice what the Per LT.

is complaining

of that is miscarriage

Muhammad JSC at page 126 of Anyegwu's

case supra.

In the light of above consideration the judgment of the lower tribunal dismissing the Appellant's petition is affirmed. and it
IS

The appeal of the Appellant is unmeritorious

hereby

dismissed. Cost ofW30,OOO are awarded to the 1st Respondent.

COUNSEL
G.e. IGBOKWE ESQ for the Appellant with him MRS. ECHEBIMA, D. ADODO ESQ, T.A. EMIRWA ESQ and F.T. EZEOKANORESQ. 23

E.G. OHWOVORIELE ESQ with him A. ALOFOJE st for the 1 Respondent.

ESQ

O. OVRA W AH ESQ for the 2nd _20th Respondents with him are M .. AGBIE ESQ and U.S. AMADI ESQ.

24

APPEAL NO. CAIB/EPT/206/2008 JUDGMENT {DELIVERED BY ALI ABUBAKAR BABANDI GUMEL, JCA}

I have had the privilege of reading in draft the judgment just delivered by my learned brother SHOREMI, JCA. I agree that this appeal lacks merit and it ought to be dis issed. I also dismiss same and abide by the consequential order for the lead judgment.

ALI ABUBAKAR BABANDI GUMEL, JUSTICE, COURT OF APPEAL.

..J

APPEAL NO.CA/B/EPT/206/2008 CONTRIBUTION

{DELIVERED BY CHIOMA EGONDU NWOSU-IHEME (Ph.D), JCA}

Iagree.

CHIOMA EGONDU NWOSU-IHEME (Ph.D) JUSTICE, COURT OF APPEAL