Alhaji Abubakar Habu Hashidu & Anor V. Alhaji Mohammed Danjuma Goje & Ors (2003)
LawGlobal-Hub Lead Judgment Report
SIMEON OSUJIEKPE, J.C.A.
This is an appeal by the petitioners against the judgment of the Governorship and Legislative Houses Election Tribunal Gombe State, delivered on the 9th of June, 2003. The judgment was delivered after a full trial in which 17 witnesses testified for the petitioners and also 17 witnesses testified for the respondents in the election petition.
The 1st petitioner was the executive governor of Gombe State and a candidate for Gombe State Governorship elections held on the 19th of April, 2003, throughout this country, Nigeria. He contested the said elections on the platform of All Nigeria Peoples Party (A.N.P.P. for short). The 2nd petitioner A.N.P.P. is one of the 30 duly registered political parties in Nigeria and it nominated the 1st petitioner to contest the said governorship elections in Gombe State on the platform of A.N.P.P.
The 1st respondent to the petition was also a candidate for the said Gombe State governorship elections held on the 19th of April, 2003. He contested the elections on the platform of Peoples Democratic Party (P.D.P. for short), while the 2nd respondent (P.D.P.) is also one of the registered political parties that took part in the said elections and sponsored the 1st respondent as its candidate for the said elections.
The 3rd respondent to the petition is the Independent National Electoral Commission charged with the conduct of the said elections.
The 4th respondent is the Resident Electoral Commissioner for Gombe State, while the 5th to the 17th respondents were in their different capacities, the returning officers charged with the said elections.
In paragraph 1(e) of the petition dated 1/5/2003 and jointly filed on 2/5/2003, the petitioners averred that at the end of the said elections into the governorship position of Gombe State of Nigeria, the 1st respondent was declared the winner by the 3rd and 4th respondents having allegedly, won a majority of all the lawful votes cast at the elections, since at the said elections voting was done on the basis of party symbols of the 30 registered political parties. The petitioners stated the result of the election based on the scores of the two leading political parties that took part in the elections, viz:
I. All Nigeria Peoples Party – score 468,273 votes
II: Peoples Democratic Party – score 494,562 votes
The petitioners averred that the 1st respondent was not duly elected by majority of lawful votes cast at the election and that it was the 1st petitioner that won the said elections by majority of lawful votes. The petitioners gave a breakdown of the purported results of the governorship elections in the state (Gombe State) as announced by the 3rd and 4th respondents as follows:
L.G.A. ANPP VOTES PDP VOTES
AKKO 57,703 86,082
BALANGA 36,492 47,138
BILLIRI 24,594 42,840
DUKKU 73,688 15,160
FUNAKAYE 59,787 41,060
GOMBE 37,190 47,015
KALTUNGO 42,432 37,317
KWAMI 48,390 30,912
NAFADA 46,943 8,787
SHONGOM 22,035 17,658
YAMALTU-DEBA 37,746 146,819
The main complaint by the petitioners was centered on the results declared by the 3rd to 17th respondents in respect of Yamaltu Deba and Akko Local Government Areas of Gombe State, where the 1st petitioner was alleged to have received 37,746 votes as against 146,819 votes received by the 1st respondent. The petitioners complained severally of reduction of the total votes scored by the 1st petitioner, in the polling units and unjustified increase or enlargement to the total scores of the 1st respondent.
The petitioners also complained that in Hinna Ward of the Local Government elections did not take place in 11 polling stations, due to the disruptive activities of the agents of the 1st and 2nd respondents, yet results for those polling stations emerged on Form EC8B and transferred into Form EC8C. And that the 1st and 2nd respondents through their agents were responsible for the non-voting at those polling stations at Hinna ward.
It was also the complaint of the petitioners that on the election day, at the time materials were about to be distributed and soon thereafter, the 1st respondent in the company of armed men and thugs, including a large retinue of mobile and regular policemen caused pandemonium at the distribution centres of Kashere and Tumu wards in Pindiga district of Akko Local Government Areas and at all the polling units in succession and all the prospective voters were forced to disperse at the sound of gun shots and teargas, which led to absence of voting. That the 2nd petitioner’s officials made complaints about non-voting due to thuggery and intimidation by the 1st and 2nd respondents’ agent. And the 4th respondent through his agents acknowledged receipt of letters of complaint and failed to investigate it, let alone redress the situation.
The petitioners therefore prayed the Election Tribunal to determine and declare that the 1st respondent was not duly elected by a majority of lawful votes and that the 1st petitioner be declared validly elected having polled the highest number of lawful votes cast at the election. Alternatively the petitioners prayed that the election in Tumu and Kashere wards of Akko Local Government be declared invalid as a result of corrupt practices and other irregularities contrary to the Election Act No.4 of 2002. That an order directing that fresh election be conducted in the said Tumu and Kashere wards of Akko Local Government of Gombe State. Also, the petitioners prayed for an order of perpetual injunction restraining the 3rd and 4th respondents from recognizing the 1st respondent as the duly elected Governor of Gombe State and restraining the 1st respondent from presenting himself for the purpose of being sworn in as the Governor of Gombe State.
After entering conditional appearances, the respondents filed their replies or answers to the petition. The 1st and 2nd respondents in their respective replies or answers, virtually denied the allegations leveled against them in the petition. They gave the overall results of the votes scored by both the 1st petitioner and the 1st respondent at the polling units and ward levels as entered in Forms EC8A(1) and EC8B(1). They also stated the overall declared results of the election as follows:
“The 1st petitioner (A.N.P.P.) 468,273 votes
The 1st respondent (P.D.P.) 494,562 votes”
Finally, they averred that the 1st respondent had a majority of lawful votes cast at the election and was returned as duly elected by the 4th respondent, and urged the Tribunal to dismiss in its entirety the prayers in the said petition.
The 3rd to 17th respondents also filed their reply or answer to the petition and denied the allegations leveled against them and averred that the 1st respondent was duly returned by majority of lawful votes, while the 1st petitioner did not score the highest number of votes at the election. They also urged the tribunal to dismiss the petition with substantial costs.
The petitioners also filed their replies to the answers of the respondents to the petition.
As I have stated earlier, there was a full hearing of the case by the Election Petition Tribunal with the parties calling their witnesses, written addresses were submitted by counsel for the parties. In its judgment delivered on 9th day of June 2003, the Tribunal dismissed the petition and held that the 1st respondent, Alhaji Mohammed Danjuma Goje, was duly elected or returned and that the 1st petitioner Alhaji Abubakar Habu Hashidu was not duly elected.
Being dissatisfied with the decision of the Tribunal, the petitioners now appellants have filed a joint notice of appeal to this court predicated on seven grounds of appeal and with the leave of the court sought and obtained added additional grounds of appeal bringing the total number of grounds of appeal to twelve grounds. The 1st respondent filed the respondent’s notice.
The parties filed their respective briefs of argument. The appellants filed a reply brief.
The appellants in their brief of argument framed four issues for determination of the appeal. They read:
“4.1 Whether the Tribunal below was right or correct in law, when it refused to take into account or evaluate documents it admitted in evidence as exhibits A-N23 and T-T61, to wit Forms EC8A(1), EC8B(1), EC8C(1) and EC8B(1) (being result forms issued to petitioners agents at various stages of the Governorship election) and tendered by the petitioners’/appellants’ on the ground that the Forms were not the same as those pleaded?
4.2 Whether the Tribunal was right when in resolving the only issue it posed namely; “Which of the conflicting documents and figures are correct and genuine on the face of the evidence produced before it”, it preferred, without any evaluation, to rely on the set of documents tendered by the respondents instead of the set of documents tendered by the petitioner?
4.3 Whether the Tribunal was right when it held that, the appellants were bound to prove their allegations of reduction of appellants’ votes and unjustified increment of votes credited to the 1st and 2nd respondents’ beyond reasonable doubt and if so, did the petitioners not prove the said allegations beyond reasonable doubt?
4.4 Whether upon a proper evaluation of the evidence before the Tribunal, which is mainly documentary, the appellants/petitioners were not entitled to judgment in their favour?”
The 1st respondent to the petition now the 1st respondent in this appeal, formulated the following issues for determination. They are as follows:
“i. Whether the Election Tribunal properly evaluated the evidence adduced before it by the parties to the petition.
ii. Whether the Election Tribunal was right in its conclusion that the petitioners made allegations of the commission of criminal offences by the ward collation officers in the petition, and that these allegations must be proved beyond reasonable doubt.
iii. Whether or not, the Election Tribunal was right in its conclusion that the petitioners/appellants did not base their evidence at the hearing of the petition on the Forms they pleaded.”
With regard to the respondents’ notice filed by the 1st respondent, one issue was formulated for determination, namely:
“Whether in all the circumstances of this matter and having regard to the matters raised in the respondent’s notice, this Honourable Court should affirm the decision of the Election Tribunal.”
The 2nd respondent to the petition now 2nd respondent in this appeal, in its brief of argument distilled three issues for determination of the appeal as follows:
“(1) Whether the trial Tribunal was not right, when it held that the appellants have not proved by preponderance of credible evidence that the 1st respondent was not elected by majority of lawful votes cast at the election?
(2) Whether in all the circumstances of this case, the findings of the learned trial Tribunal were perverse?
(3) Whether the case put forward by the appellants both in their pleadings before the lower tribunal and the new one set up by them at the trial were not ones that required proof beyond reasonable doubt, and whether this onus had been discharged by them?”
The 3rd to 17th respondents filed a joint brief of argument and framed four issues for the determination of the appeal, viz:
“1. Whether the evidence tendered by the appellants are at variance with their pleadings.
2. Whether two sets of polling documents were in issue arising from the pleadings and if the answer is in the negative, whether the Tribunal was right in according no probative value to the polling documents tendered as exhibit A – N23 by the appellants.
3. Whether the Tribunal evaluated the evidence before arriving at their decision.
4. Whether allegation of crime was an issue arising from the pleadings and if the answer is in the affirmative, whether they had been proved beyond reasonable doubt”
After a close perusal and reflection on the four sets of issues framed by counsel in the respective briefs of the parties, I formed the view that the following issues are adequate and germane for the determination of the appeal.
1. Whether the Election Tribunal was right in its conclusion that the appellants did not base their evidence at the hearing of the petition on the result Forms they pleaded and were admitted in evidence by the Election Tribunal.
2. Whether the Election Tribunal was right when it held that the appellants were bound to prove their allegations of reduction of the appellants’ votes and unjustifiable increment of votes credited to the 1st and 2nd respondents, beyond reasonable doubt and if so, did the appellants not prove the said allegations beyond reasonable doubt.
3. Whether the Election Tribunal properly evaluated the evidence adduced before it by the parties and came to the right decision.
I will now consider and resolve the above issues seriatim.
On issue No.1, J.B. Daudu learned Senior Advocate of Nigeria contended in the appellants’ brief that the Tribunal was in error to have declined to evaluate exhibits A – N23 the result forms EC8A(1), EC8B(1), EC8C(1) and EC8D(1) on sole ground that they were not pleaded by the appellants in their petition. It is note worthy that appellants pleaded Forms EC8(A), EC8(B), EC8(C) and ECS(D) in their petition, but at the trial, they sought to admit Forms EC8A(1), EC8B(1), EC8C(1) and EC8D(1), which was resisted by the respondents. After a strenuous argument by the parties on the matter, the Tribunal in its ruling admitted them in evidence. However, in its judgment, the Tribunal discountenanced the forms, holding that they were not pleaded by the appellants.
It was argued that by refusing to look at the documents (the Forms) tendered by the appellants and admitted in evidence despite objection, the Tribunal was stopped from going back on the effect of its ruling, and occasioned a miscarriage of justice in that it left the substance of the matter and took refuge in feeble technicality. Referring to the case of Akpan v. Ekpo (2001) 5 NWLR (Pt.707) 502 at 514-515, learned Senior Counsel submitted that where in the course of trial a court makes a ruling in an interlocutory application, the ruling can only be reversed on appeal or by the same court where the decision is openly a nullity.
It was submitted that the Tribunal did not in its judgment demonstrate that its earlier ruling admitting the forms in evidence was a nullity or void, nor did it expunge the documents rightly admitted from the record. It was therefore, submitted that non-consideration of the documents (the Forms) by the Tribunal occasioned a serious error when the Tribunal resiled from its earlier ruling even without the benefit of an appeal.
This court was urged to hold that Forms EC8A(1), EC8B(1), EC8C(1) and EC8D(1) tendered by the appellants, having been admitted by the Tribunal, the Tribunal became functus officio in respect of that issue and was therefore not entitled to hold as it did, that the said forms were not pleaded and to treat them as if they were inadmissible in evidence. The following cases were alluded to: Ekerete v. Eyo (1925) 6 NLR 118; Alh. A. Ahmed & Co. (Nig.) Ltd. v. African International Bank Ltd. (2001) 10 NWLR (Pt.721) 391 at 403. It was submitted that it is the law that neither a party nor the court is allowed to approbate and reprobate at the same time. It was finally submitted that in law documents need not be specifically pleaded in order to render them admissible in evidence as all that the law requires is that the facts of the transactions relied upon by the party seeking to rely on the documents and which facts are supported by the same documents are pleaded.
The following cases were cited: Okeke v. Oruh (1999) 6 NWLR (Pt.606) 175 at 192 to 193; Odunsi v. Bamgbala (1995) 1 NWLR (Pt.374) 641 at 655; MCC v. Azubuike (1990) 3 NWLR (Pt.136) 74 at 86; P.N. Udoh Trading Co. Ltd. v. Abere (2001) 11 NWLR (Pt. 723) 114; (2001) 1 NWLR (Pt.59) 900 at 922; Ipinlaiye v. Olukotun (1996) 6 NWLR (Pt.453) 148 at 166.
For the 1st respondent, Olajide Ayodele, SAN has contended that in paragraphs 6 to 19 of the petition the appellants had specifically referred to Forms EC8A, EC8B, EC8C and EC8D respectively, but at the trial, they sought to tender forms whose nomenclature is different from the ones they had pleaded and objection was raised on the ground that the forms were not pleaded.
It was submitted that Forms EC8A, EC8B, EC8C and EC8D which the appellants pleaded are distinct and different from Forms EC8A(1), EC8B(1), EC8C(1) and EC9D(1). It was submitted that failure to give the forms their appropriate names can only mean that the appellants had not pleaded the appropriate forms and they cannot refer to the scores contained in the appropriate forms, which they had not pleaded. It was submitted that the appellants having pleaded a different set of forms prescribed and used for a different election cannot be allowed to tender a different set of forms from the ones contained in their pleading. It was also submitted that a trial court has power in a proceedings before it, to expunge or disregard any document or evidence inadvertently received or admitted in evidence at the trial and reference was made to Ogboda v. Adulugba (1971) 1 All NLR 68 at 73; Salawu Jagun Olukade v. Abolade Agboola Alade (1976) 2 SC 183.
On the contention of the appellant that the forms which they did not plead in their petition were pleaded in their reply to the respondents’ answers to the petition, it was submitted for the 1st respondent that that was not an answer to the issue, as it is not proper to raise new issues in a reply, and that the proper course to follow was to seek an amendment of the petition and plead the proper forms. Reference was made to the case of Adepoju v. Awoduyilemi (1999) 5 NWLR (Pt. 603) 364 at 390-391. Finally, the learned Senior Advocate submitted that the Tribunal had the power to expunge its recorded evidence, which it had found not to have been pleaded and that the appellants did not plead the forms they sought to rely upon at the trial and also did not seek leave of the Tribunal to amend their petition and cannot amend the petition through their reply as they purport to have done.
K.T. Turaki, SAN for the 2nd respondent in the 2nd respondent’s brief of argument contended that the appellants having elected to plead specifically Forms EC8A, EC8B, EC8C and EC8D which are known and existent documents, they are precluded from now relying on different sets of documents not pleaded by them. He submitted that the case of Egolum v. Obasanjo (1999) 7 NWLR (Pt.611) 355 and O.H.M.B. v. B.B. Apugo & Sons Ltd. (1995) 8 NWLR (Pt.416) 750, are distinguishable from the case in hand. He also submitted that any evidence given in respect of a matter not pleaded, goes to no issue and should be disregarded. See Woluchem v. Gudi (1981) 5 SC 291; Enang v. Adu (1981) 11-12 SC 25. Learned Senior Counsel further submitted that the subsequent admission by the Tribunal of the unpleaded forms will not confer any material weight to them and the decision of the Tribunal not to ascribe any weight to them was therefore in order.
G. Ofodile Okafor, SAN for the 3rd to 17th respondents in line with the submissions of the learned Senior Counsel for the 1st and 2nd respondents also submitted that issues for trial are defined in the pleadings and any evidence on unpleaded facts go to no issue and does not call for determination. See Iwuoha v. NIPOST (2003) 8 NWLR (Pt. 822) 308 at 339. He agreed that under the law, documentary evidence need not specifically be pleaded to be admissible in evidence so long as facts and not the evidence, by which such a document is covered are expressly pleaded.
Consequently, where the contents of a document are material, it shall be sufficient in any pleading to aver the effect thereof as briefly as possible without setting out the whole or any part thereof. See Ipinlaiye v. Olukotun (1996) 6 NWLR (Pt.453) 148 at 166. But where a party in any proceeding specifically pleaded certain documents, he cannot be allowed during the trial to rely on other documents different from those specifically pleaded, as the latin maxim, “expressio unius est exclusio alterius” applied. See Shell Petroleum Nigeria Co. Ltd. v. Olarewaju (2002) 16 NWLR (Pt.792)38 at 62. It was his submission that if a document is relevant it becomes admissible in evidence, if it passes the test of pleading.
He referred to the case of Oyediran v. Alebiosu II (1992) 6 NWLR (Pt.249) 550 at 559, where the Supreme Court, per Kutigi, JSC, held that in civil proceeding for a document to be admissible it must not only be pleaded, it must also be relevant, and that a document must also be pleaded to be admissible. See also Makinde v. Akinwale (2000) 2 NWLR (Pt.645) 435 at 450. It was also contended that the appellants’ reply to the 1st and 2nd respondents’ answers to the petition is invalid having been filed in contravention of paragraph 16(1) of the First Schedule to the Electoral Act, 2002, as the reply was not filed within five days from the date of the receipt of the respondents’ reply. It was contended that the amendment introduced in the appellants’ reply to the respondents answer or reply to the petition by pleading Forms EC8A(1), EC8B(1), EC8C(1) and EC8D(1) are consequently invalid, having been filed out of time.
I have carefully considered the submissions of the learned Counsel to the parties, lengthy and attractive as these submissions are in regard to this issue. There can be no doubt that the appellants pleaded result Forms EC8A, EC8B, EC8C and EC8D extensively in their election petition, which forms they considered very material and relevant for the success of their case or petition. To under-score the importance of these forms to the appellants, the appellants before the commencement of the hearing of the petition filed an application at the Election Tribunal praying inter alia for an order that the 3rd and 4th respondents should produce and surrender to the Tribunal Registry all of Forms EC8A, EC8B, EC8C and EC8D used in election. The Tribunal granted the prayer and accordingly made the order. However at the trial, the appellants instead of tendering the result Forms they pleaded, summersaulted and now sought to tender Forms EC8A(1), EC8B(1), EC8C(1)) and EC8B(1) which were not pleaded by them.
There is also no doubt that Forms EC8A, EC8B, EC8C and EC8D which the appellants pleaded are distinct and different from the unpleaded Forms EC8A(1), EC8B(1), EC8C(1) and EC8B(1). It is an elementary but a fundamental principle of law that parties are bound by their pleadings. See Adesoji Aderemi v. Adedire (1966) NMLR 398. It is also the law that any evidence led by a party which is at variance with his pleadings ought to be discountenanced and disregarded as going to no issue. See Aniemeka Emegokwe v. James Okadigbo (1973) 4 SC 113 at page 117; Woluchem v. Gudi (1981) 5 SC 291; Iwuoha v. NIPOST (2003) 8 NWLR (Pt.822) 308 at 339; Akpapuna & Ors. v. Obi Nzeka & Ors. (1983) 2 SCNLR 1; (1983) 7 SC 1. It is therefore the duty of the parties to confine their evidence to those issues raised on the pleadings.
If they stray and lead any evidence on a point which was not pleaded, that point does not become an issue, unless there is first an amendment to those pleadings, pursuant to the relevant and applicable rule of court. The trial court also has a duty to reject any evidence which is contrary to the pleadings. See National Investment & Properties Ltd. v. Thompson Organisations Ltd. (1969) 1 NMLR 99 at page 104. In the instant case, Forms EC8A(1), EC8B(1), EC8C(1) and EC8B(1) not having been pleaded by the appellants in their petition should have been disregarded or struck out as inadmissible documentary evidence, which went to no issue. Indeed, any amendment whatever to the petition by the appellants at any stage, during the hearing to plead or introduce the unpleaded Forms EC8A(1), EC8B(1), EC8C(1) and EC8D(1) would have failed for being late in making having regard to the provisions of paragraphs 14(1) and 16 of the First Schedule to the Electoral Act, 2002. The two paragraphs under reference read:
“14(1) Subject to sub-paragraph (2) of this paragraph, the provisions of the Civil Procedure Rules relating to amendment of pleadings shall apply in relation to an election petition or a reply to the election petition as if for the words “any proceedings” in those provisions there were substituted the words “the election petition or reply”.
(2) After the expiry of the time limited by:(a) section 154(sic), (section 132) of this Act for presenting the
election petition, no amendment shall be made.”
16(1) If a person in his reply to the election petition raises new issues of fact in defence of his case which the petition has not dealt with, the petitioner shall be entitled to file in the registry, within five (5) days from the receipt of the respondents’ reply, a petitioner’s reply in answer to the new issues of fact, so however that –
(a) the petitioner shall not at this stage be entitled to bring in new facts, grounds or prayers tending to amend or add to the contents of the petition filed by him;
(b) and the petitioner’s reply does not run counter to the provisions of sub-paragraph (1) of paragraph 14 of this Schedule.
(2) The time limited by sub-paragraph (1) of this paragraph shall not be extended.”
Where inadmissible evidence as in the instant case of unpleaded document which ought to be pleaded is received or admitted in evidence, by a trial court, it is its duty, when it comes to consider its judgment to treat such inadmissible evidence as if it had never been admitted, i.e. to reject it. See Metalimplex v. A.-G. Leventis & Co. Ltd. (1976) 2 SC 91 at page 102. The court has power to expunge the inadmissible evidence that is wrongly admitted. See Ajayi v. Fisher (1959) 1 FSC 90; Owonyin v. Omotosho (1961) 2 SCNLR 57; (1961) 1 All NLR (Pt.11) 304 at page 307. In Agbaje v. Adigun (1993) 1 NWLR (Pt.269) 261 it was held by the Supreme Court that when evidence has been wrongly admitted, the law is that the evidence must be expunged from the record when the judgment is being considered.
The Supreme Court went further to say that the basis for the rule is that the evidence does not go to any issue and that being so it cannot be legal evidence upon which the court can make a finding of fact. See also, Inyang v. Eshiet (1990) 5 NWLR (Pt.149) 178. In Alashe & Ors. v. Olori Ilu & Ors. (1965) NMLR 66 at 71, it was held that when matter has been improperly received in evidence in the court below, even when no objection has been raised, it is the duty of the Appeal Court to reject it and decide the case on legal evidence. In the instant case, even though, the Tribunal wrongly admitted Forms EC8A(1), EC8B(1), EC8C(1) and EC8D(1) in evidence, inspite of the strenuous and vigorous objection by the respondents’ counsel at the trial, it was eminently right for the Tribunal to have rejected them by ascribing no probative weight to them when it was considering its judgment.
At page 369 of the record of appeal, the Tribunal after correctly stating the law had this to say at page 370:
“We therefore hold that these statements of law have shown the importance of pleadings in civil litigation, and since the civil procedure applies to election cases, great care must therefore be taken in drafting and replying election petitions. In our view therefore those unpleaded forms are defective and fatal, and no probative weight could be put on them.”
(italics mine for emphasis)
I therefore completely agree with the views of the Tribunal. With due respect, I disagree with J.B. Daudu, SAN, for the appellants for submitting that the Tribunal was functus officio after admitting the said forms in evidence and it cannot later turn round to reject them and treat them as unpleaded and inadmissible in evidence, when considering its judgment. This is not a matter of the Tribunal approbating and reprobating at the same time. It is a matter of settled law which the Tribunal was bound to apply.
Lastly on this issue, it remains for me to consider the submission of the learned Senior Counsel for the appellants that in law documents need not be specifically pleaded in order to render them admissible in evidence so long as facts and not evidence by which such a document is covered is pleaded. The case of Okeke v. Oruh (supra) among others was cited in support. It is a basic principle of pleadings that only material facts and not evidence in proof of such facts that are permitted to be pleaded.
There are however, instances when documents which are material must be pleaded as opposed to documents which are not material. Where a document or series of document are relied upon it is always necessary in order to determine correctly whether or not they should be pleaded expressly to distinguish those documents which constitute material facts from those that are mere evidence to establish facts in issue; documents which have the former effect must be pleaded while those of the latter need not be pleaded. See Phillips v. Phillips (1878) 4 QBD 127 at pages 133 to 134. See also Achugbue v. Onyisue, No. FCA/B/46/78, judgment of the Federal Court of Appeal delivered on 13/7/79.
In the instant case, the appellants were relying upon the documents in question i.e. Forms EC8A(1), EC8B(1), EC8C(1) and EC8D(1) to establish the unjustifiable reduction of their votes between the collating centers and the unjustificiable enlargement of increment of the 1st respondent’s votes and to show conclusively that they (the appellants) scored the highest number of lawful votes cast in the said election. It therefore seems to me that in these circumstances, the appellants were bound to plead the said result forms in their petition and lead evidence on them in order to succeed. In my view, it is a feeble attempt to rely on those forms which were wrongfully admitted in evidence without pleading them in their petition.
Unfortunately for them, the forms then pleaded in their petition were irrelevant for the purpose of their case at the hearing. I agree entirely with the submission of G. Ofodile Okafor, SAN that where a party in any proceeding specifically pleaded certain documents to establish his case, he cannot be allowed during the trial to rely on those documents different from those specifically pleaded. This indeed is the essence of pleadings which is to narrow down the case of the parties and to eliminate surprises at the trial.
In the circumstances therefore, I hereby resolve issue No.1 above against the appellants.
On the second issue, which, briefly stated is, whether the allegations of manipulation by the 3rd respondent’s officials of the votes scored by the 1st appellant by unjustifiable reduction and the unjustifiable enlargement or jacking up or increment of the votes scored by the 1st respondent amounted to allegations of criminal offences which should be proved beyond reasonable doubt.
The learned Senior Advocate for the appellants has contended that in the entire petition there was nowhere the words “falsification”, “forgery” or any related term was used. Rather the main ground for the petition was that the 1st respondent was not elected by a majority of lawful votes cast at the election, but that it was the 1st appellant who scored the majority of the lawful votes at that election. However, the Tribunal took the view that allegations of criminal offence were made in the petition. The learned Senior Counsel contended that the Tribunal was in error to have taken that view.
He submitted that the law is trite that to justify the application of the principle of proving certain allegations beyond reasonable doubt the issue of crime must have arisen on the pleadings. That is to say that there must have been a specific allegation of a crime such that will make its commission the basis or foundation of the claim or defence. That the mere probability of inferring the commission of a crime is not sufficient. See Nwobodo v. Onoh (1984) 1 SCNLR 1 at page 27; Ikoku v. Oli (1962) 1 SCNLR 307; (1962) 1 All NLR 194 at 199. He referred to Part VI of the Electoral Act, 2002, dealing with electoral offences and submitted that no provision therein relates to wrongful collation of election result.
It was submitted that the position of the law is now clear that where the principal issue is the determination of who between the petitioner and the respondent scored the majority of lawful votes cast at the election, that issue is not one that requires a proof beyond reasonable doubt, but proof on the balance of convenience is sufficient in such cases. The cases of Alalade v. Awodoyin (1999) 5 NWLR (Pt.604) 529 at 537 – 538; Omoboriowo v. Ajasin (1984) 1 SCNLR 108 at 121 to 122 were alluded to. It was therefore, contended that the Tribunal wrongly applied the case of Nwobodo v. Onoh (supra) to the facts or circumstances of the present case. It was alternatively contended that even if the standard of proof required in the case in hand was proof beyond reasonable doubt, that the appellants had discharged that onus as it does not impose a duty of proof in absolute certainty or beyond all shadow of doubt. See Miller v. Minister of Pensions (1947) 2 All ER 372 at 374;
Nwobodo v. Onoh (supra); Bakare v. The State (1987) 1 NWLR (Pt.52) 579.
Finally, it was submitted that based on the evidence before the Tribunal and law guiding evaluation of evidence, the Tribunal ought to have found that the appellants proved their case beyond reasonable doubt. The learned SAN urged this court to find accordingly as an appellate court is entitled to compare the documents tendered by the appellants with those tendered by the respondents and come to the conclusion that the appellants proved beyond reasonable doubt that the 3rd to 17th respondents were responsible for making the disputed entries.
The learned Senior Counsel for the 1st respondent, in his own contribution, has submitted that from material facts in a document, allegation of commission of criminal offence can be inferred and actual words themselves constituting the criminal offence need not be used. That the material facts and circumstances will show whether or not the allegation is one of the commission of crime.
It is the overall effect of the allegation that will be considered in order to show if the commission of criminal offence is implied. Referring to paragraphs 7(i), (ii), 8(i), (ii) 9, 10 to 18 of the petition, the learned Counsel submitted that those paragraphs are directed at the 5th, 7th, 8th, 9th, 13th, 14th and 15th respondents, who were collation officers and the allegations are those of forgery and or falsification of documents or results by the said collation officers. It was submitted that since those allegations of commission of criminal offences are directly in issue, section 138(1) of the Evidence Act, 1990, comes into play and therefore, the appellants must prove the commission of the alleged crimes beyond reasonable doubt. But the appellants on whom the onus of proof lies did not satisfy the standard of proof required. The cases of Nwobodo v. Onoh (supra) and Atikpekpe v. Arubi Oye Joe (1999) 6 NWLR (Pt.607) 428 at 443 were alluded to. It was submitted that the position taken by the Tribunal was right and unimpeachable.
For the 2nd respondent, K.T. Turaki, SAN, in the brief of argument, has submitted that the allegations made by the appellants are either out rightly criminal offences or have criminal coloration or content. He referred to paragraphs 7 to 20 of the petition, vide pages 5 to 13 of the printed record. He also referred to Section 120(5) of the Electoral Act, 2002.
He contended that the allegations in the appellants’ petition are centred on the commission of fraud, forgery, and using as genuine a forged document, all of which are offences under sections 362, 363, 364 and 366 of the Penal Code. He submitted that it is unnecessary to use the word “fraud” in pleadings of the parties and once the facts are pleaded, a case of fraud can be inferred therefrom. See Olufunmise v. Falana (1990) 3 NWLR (Pt.136) 1; Nwobodo v. Onoh (supra) 1. He referred to Akinfosile v. Ijose (1960) SCNLR 447; (1960) 5 FSC 192 and submitted that it is the law that a party who makes allegations in a pleading should produce evidence to substantiate them and that in this case, the allegations of criminality should be proved beyond reasonable doubt, which the appellants were unable to discharge.
He referred to the following cases: Eboh v. Ogujiofor (1999) 3 NWLR (Pt.595) 419; Anazodo v. Audu (1999) 4 NWLR (Pt.600) 530; Kalgo v. Kalgo (1999) 6 NWLR (Pt.608) 639; Awolowo v. Shagari (1979) 6/9 SC 51; (2001) FWLR (Pt.28) 53.
G. Ofodile Okafor, SAN, for the 3rd to 17th respondents in his brief, also took the views of the learned Senior Counsel for the 1st and 2nd respondents that the appellants’ petition was replete with allegations of criminal offences against the 5th, 7th, 8th, 9th, 12th and 16th respondents which bordered on sections 362, 363, 364 and 366 of the Penal Code. He contended that paragraphs 7, 8, 9, 11, 12, 14, 15, 16 and 18 of the petition are allegations of crime of forgery, or using as genuine a forged document. He was ad idem with the learned Counsel for the 1st and 2nd respondents that the burden of proof was on the appellants to prove the criminal allegations beyond reasonable doubt, but the appellants did not discharge that onus.
To my mind, the resolution of this issue does not present any difficulty. The crucial question is whether there are allegations of criminal offences made by the appellants in their petition against any of the respondents in respect of the conduct of the said elections. If this question is answered in the affirmative, then the next question is, whether by the onus and standard of proof required, the appellants have proved those criminal allegations beyond reasonable doubt in order to succeed in their complaints.
I have had a hard look at paragraphs 7(i), 7(ii), 8(i), 8(ii), 9(i), 11(i), 12, 14, 15, 16 and 18 of the petition, which have been fingered by the respondents as replete with allegations of criminal offences against the 5th, 7th, 8th, 9th, 12th and 16th respondents. It is not necessary to reproduce the said paragraphs of the petition here.
However, the totality of the allegations border on the unjustified reduction of votes scored by the appellants, and unjustified enlargement or jacking up of results or increment of votes scored by the 1st respondent. Although, the appellants did not use the words ‘falsification” or “forgery” to denote the acts or conduct of the electoral officers allegedly involved in the said unwholesome acts, to suggest the commission of criminal offences, yet the inference or implication to any reasonable man is that the allegations constitute the commission of criminal offences. Therefore, there is no doubt in my mind that the allegations in the petition involve the commission of criminal offences.
Apart from the criminal offence provided in section 120(5) of the Electoral Act, 2002, it also amounts to the criminal offence of falsification of figures or results or forgery as the case may be, for any person to unlawfully decrease or increase the lawful votes scored by a candidate at an election.
Having affirmatively answered the first question, it now remains to consider whether the appellants have proved the criminal allegations beyond reasonable doubt. My answer here is in the negative. Section 138(1) of the Evidence Act, 1990, provides:
“138(1) 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.”
In Nwobodo v. Onoh (1984) 1 SCNLR 1 at page 32, Bello, JSC (as he then was) aptly stated the legal position as follows:
“I think at this stage, I may say that I accept the submission of Chief Williams that there is in law a rebuttable presumption that the result of any election declared by FEDECO is correct and authentic and the onus is on the person who denies its correctness and authenticity to rebut the presumption. In my view, where such denial is based on allegation of crime against FEDECO officials responsible for the declaration of the results, the rebuttal must be proved beyond reasonable doubt. The trial court found the petitioner in this case on appeal had discharged the onus.”
In the instant case, the Tribunal in its judgment at page 371 of the printed record correctly in my mind identified the issue of crime which had arisen from the pleadings as the basis or foundation of the petition and opined that the petitioners herein must prove the commission of the alleged crime beyond reasonable doubt. However, I hold the view that there is no iota of evidence before the tribunal to show that the appellants discharged the onus on them to prove the criminal allegations beyond reasonable doubt.
In the result, therefore, I resolve this issue against the appellants.
The third and last issue therein is on the evaluation of evidence adduced before the Tribunal. This was vigorously argued by the learned Counsel to the parties in their respective briefs of argument.
In arguing this issue, J.B. Daudu, SAN contended that the reason for the non-evaluation of the evidence by the Tribunal was anchored on the unjustified treatment meted to the documents tendered by the appellants on the specious reasoning that the documents were not pleaded. He submitted that even though the Tribunal eventually attempted to consider the evidence before it, it did not carry out such exercise as known to law. It was submitted that the Tribunal was duty bound to have evaluated the evidence and made findings of fact therefrom and failure to do so had led to failure of justice. He cited the cases of Olufosoye & Ors. v. Olorunfemi (1989) 1 NWLR (Pt.95) 26 at page 37 per Oputa, JSC; Morah v. Okwuayanga (1990) 1 NWLR (Pt.125) 225, Uzuegbu v. Progress Bank Ltd. (1988) 4 NWLR (Pt.87) 236 at 248 to 249.
It was argued that in a case of this nature, where the petitioner is contending that the results of the election has been altered to the benefit of the party that ought to have lost the election who eventually was declared the winner, then it is essential in the resolution of the dispute as to who won the election by a majority of lawful votes to have two sets of results, one considered genuine and the other considered falsified so that the two of them could be compared to determine their falsity. Sabiya v. Tukur (1983) 11 SC 109; Atikpekpe v. Joe (1999) 6 NWLR (Pt.607) 428 at 442 to 443; Ojukwu v. Onwudiwe (1984) 1 SCNLR 247 were cited. He referred to the evidence of PW1, PW2, PW12 and submitted that there was no evaluation of the evidence adduced by either party and cited Mogaji v. Odofin (1978) 4 SC 91 at 94 and Nwachukwu v. Egbuchu (1990) 3 NWLR (Pt.139) 435 at 442.
It was contended that had the Tribunal evaluated the evidence adduced before it, it could have come to the conclusion that the votes of the 1st appellant were wrongly decreased and those of the 1st respondent were unjustly increased by the 3rd to 17th respondents. It was further submitted that the Tribunal could not take sanctuary in the phrase, “I believe” as he did at page 374 of the record. See Oladehin v. Continental iles Mills Ltd. (1978) All NLR (Reprint) 31 at 38. He finally urged the Tribunal to resolve the issue in the appellants’ favour.
For the 1st respondent, it was submitted by O. Ayodele, SAN that evaluation of evidence adduced before a court is not a summarisation or restatement of evidence, but a dispassionate appraisal of the evidence before the court with a view to finding out on which side of the imaginary scale the evidence preponderates. Once the settled principle of appraisal or evaluation of evidence is followed, and notwithstanding the style of writing judgment by individual Judge, it cannot be said that there has been no evaluation of the evidence before the court. See Benignus Duru & Anor. v. Jonathan Nwosu (1989) 4 NWLR (Pt.113) 24 at 35 – 36. The learned Senior Counsel was of the view that the Tribunal dealt with the main issues raised by the parties before it and decided which side of the imaginary scale should tilt.
He also contended that theTribunal dealt with the evidence of the principal witnesses on the live issues and gave a dispassionate consideration to the evidence adduced by the parties before it. It was therefore, submitted that it was wrong for the appellants to say that the Tribunal failed to evaluate the evidence adduced by the parties or that it inadequately evaluated the evidence.
The learned Senior Counsel for the 2nd respondent was also of the view that the Tribunal made a dispassionate assessment of the material evidence adduced before it, believed the respondents’ witnesses and their documents and disbelieved those of the appellants and their documents, which were devoid of any evidential value.
The learned Senior Counsel for the 3rd to 17th respondents also in his brief of argument aligned himself with the submissions of the 1st and 2nd respondents and contended that the Tribunal perfectly evaluated the evidence adduced before it and came to the right decision.
It is settled law that a trial court has a legal duty to properly evaluate the evidence led by both sides before coming to its decision, which decision must be based on the totality of the credible evidence properly appraised and evaluated. See Shell Petroleum Development Co. (Nig.) Ltd. v. Otoko & Ors. (1990) 6 NWLR (Pt.159) 693. In the determination of civil cases, the trial court has a duty to weigh the evidence adduced before it on an imaginary scale and see or determine which side the evidence tilts or preponderates. See Mogaji v. Odofin (1978) 4 SC 91 at 93.
Once the settled principles of appraisal and evaluation of evidence are followed or applied by the Judge, and notwithstanding the style of judgment writing adopted by the trial Judge, it cannot be said that there has been no evaluation of evidence adduced before the court. See Duru v. Nwosu (1989) 4 NWLR (Pt.113) 24 at 35 to 36. In Nwankwo v. Nwankwo (1995) 5 NWLR (Pt.394) 153, the Supreme Court held that it is imperative that the totality of all the admissible and relevant evidence led before a trial court in any proceeding must be carefully weighed and considered before there can be a just and equitable determination of rights of the parties.
In the instant case, the question therefore is whether the Tribunal did not evaluate the evidence adduced by the parties before it. In its judgment, the Tribunal first considered the unpleaded Forms EC8A(1), EC8B(1), EC8C(1) and EC8D(1) which were earlier admitted in evidence inspite of strenuous opposition and came to the conclusion, rightly in my view, that no probative weight could be put on them. This is how it should be because the position of the law is that matters not pleaded go to no issue at the trial. And even when such matters have been wrongly admitted in evidence, the trial court should disregard them as irrelevant and decide the case on legal evidence. See Ogboda v. Adulugba (1971) 1 All NLR 68 at page 73; Olukade v. Alade (1976) 2 SC 183. The Tribunal did not stop there, it went further to consider and evaluate the evidence adduced before it by the parties. At page 370 of the printed record the Tribunal said:
“Assuming our views above are wrong, which we do not concede, we therefore reflect on the evidence adduced before us.”
The Tribunal then evaluated the evidence before it as given by the witnesses. Among the appellants’ witnesses were PW1 and PW2 who were prominent and vital witnesses. The Tribunal considered the evidence of PW2, who analysed the figures in the result forms handed over to him by PW1. The said result sheets or forms did not originate from PW1 who himself collected them from ANPP agents in the various wards and Gamaltu Local Government as he testified in his own evidence. PW1 was the state agent of ANPP. The party agents who handed the forms to PW1 did not give evidence to link the said forms with what PW1 handed over to PW2. Under cross-examination, PW2 admitted that he did the analysis of the forms without contacting the party’s agents from whom the forms originated. He also admitted under cross-examination that he did not verify the correctness of the forms by comparing them with the result of other political parties, nor with those of INEC, nor did he interview his polling agents at the polling centres, the ward centres and at the Local Government level. PW2 further admitted that he never verified all the figures and he only did what he was told to do.
The Tribunal also considered the evidence of the defence witnesses, namely DW, DW7, DW8, DW13, DW14 and DW15 in relation to exhibits 36, 39, 40, 60, 61, 62 and 63, who denied being the authors of the said exhibits. Similarly, INEC officials denied knowledge of the said exhibits produced by the appellants. On the burden of proof as to who were the authors of the said exhibits, the Tribunal came to the conclusion and found that the appellants had not discharged the onus on them. The Tribunal also considered the evidence of DW2, the Assistant Commissioner of Police, Gombe State, who gave evidence about the security situation in the State before, during and after the said elections, and said that security was well organised and sustained, and that he neither received any report of pandemonium or disruption or riot anywhere in Gombe State, especially in Akko Local Government Area. He also testified that he did not receive any report of use of fake ballot papers or result forms.
The evidence of DW9 was equally illuminating. He cast his vote in Deba ward on that day. He confirmed that the total votes scored by ANPP was 468,273, while PDP scored 494,562 votes as shown in Form EC8B(1), exhibit 141. The Tribunal in its assessment and evaluation of the evidence adduced before it in respect of Akko Local Government Area, accepted the testimonies of these defence witnesses and found as a fact that the election in that Government Area was peaceful, free and fair. The Tribunal also considered the evidence of DW16 and DW17. DW16 was from Tumu ward of Akko Local Government Area and also a member of ANPP and testified among other things that it was untrue that ANPP members were driven out from voting in that area and asserted that he voted there. Also DW17, from Kashere ward of Akko Local Government Area of the State testified that he voted in that ward and that members of PDP did not drive out any ANPP member from voting in that ward.
In its assessment and evaluation of the totality of the evidence adduced before the Tribunal, it stated and followed the general principles for appraisal and evaluation of evidence in civil proceedings as postulated by the Supreme Court in the case of Mogaji v. Odofin (supra), at page 373 of the printed record. It has this to say:
“We will have to state the general principles for assessing evidence which this Tribunal followed. It is the one set out by the Supreme Court in A.R. Mogaji & Ors. v. Odofin & Ors. (1978) 4 SC 91. And that is, we have put the totality of (the) testimony adduced by both parties on the imaginary scale and see which is heavier on either side. In deciding this, we take into account the quality or probative value of the testimony of the witnesses and not the number of witnesses called. Vide also Woluchem v. Gudi (1981) 5 SC 291 at 306 – 310 per Nnamani, JSC and Magnus Eweka v. Bello, No. 90/1979 of 30/1/81 Per Kayode Eso, JSC.”
Having stated as above and appraised and evaluated the evidence, the Tribunal found as a fact that the votes credited to both parties therein are not cooked up and incredible. It believed the evidence of DW1 to DW17 and asserted that their testimonies were more reliable and probative than those of PW1 to PW17. It also found as a fact that 494,562 votes scored by PDP and 468,273 votes scored by ANPP were in order, based on the evidence before it.
The Tribunal accordingly dismissed the appellants’ petition and held that the 1st respondent was elected or returned, while the 1st appellant was not duly elected. In my candid view, the Tribunal made far-reaching findings of fact after assessment and evaluation of the evidence before it. In Salako & Ors. v. Dosunmu (1997) 8 NWLR (Pt. 517) 371; (1997) 7 SCNJ 278, it was held that it is a wrong approach for a trial court to make findings of fact without assessment and evaluation of evidence placed before the learned trial Judge.
It is an established principle of law that where a court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of Appeal to substitute its own views for the views of the trial court. See Awoyale v. Ogunbiyi (No.2) (1986) 2 NWLR (Pt. 24) 626; (1986) 4 SC 98 at 120; Sha (Jnr:) v. Kwan (2000) 8NWLR (Pt.670) 685; Woluchem v. Gudi (1981) 5 SC 291. In Shell Petroleum Development Co. (Nig) Ltd. v. Otoka (1990) 6 NWLR (Pt.159) 693 at 709, Omosun, JCA, stated the principle thus:
“It is now well settled that a Court of Appeal does not interfere with the findings of the court of trial for the mere sake of interference unless they are perverse. It is much more difficult when such findings are based on the credibility of witnesses who were never before the Court of Appeal because the court had not the advantage of hearing and seeing them and watch their demeanour. That is the preserve of the court of trial. It is however, the law that where the question is as to the proper evaluation of their evidence and the inference to be drawn from the proved facts, the Court of Appeal is in as good a position as the court of trial. See Fatoyinbo v. Williams (1956) SCNLR 274; (1956) 1 FSC 87.”
In the instant case, the findings of the Tribunal as a trial court in its own right cannot be regarded to be perverse as they are based on the credible evidence before it. Therefore this court has no reason to interfere with the findings of fact. I therefore, accept the views of the Tribunal. The argument of the learned Senior Advocate for the appellants is discountenanced. I hold that the Tribunal adequately and properly appraised and evaluated the evidence adduced before it. Consequently, this issue is resolved against the appellants.
In view of the decision I will now reach in this appeal, I do not think it is necessary to consider the respondent’s notice filed by the 1st respondent.
In the final result, I am of the calm view that this appeal lacks merit. It is hereby dismissed with N10,000.00 costs to each set of the respondents to be paid by the appellants.
Other Citations: (2003)LCN/1461(CA)