Hon. Emibra Efiriandi Agbeotu V. Mr. Tamarate Brisibe & Ors. (2004)

LawGlobal-Hub Lead Judgment Report

PATRICK IBE  MAIZU, J.C.A. 

The appellant, Hon. Emibra Efiriandi Agbeotu, the 1st respondent Tamaratare Brisibe and other candidates, contested the election into the Federal House of Representatives for Burutu Federal Constituency of Delta State. The election was held on Saturday, 12th April, 2003.
The above two named candidates, contested the election on the platforms of All Nigeria Peoples Party (ANPP) and Peoples Democratic Party (PDP) respectively. At the end of the election, the 2nd respondent, the Independent National Electoral Commission (INEC for short) a statutory body, which is charged with the responsibility of conducting the election, declared the following results:-
A.D. 586
A.N.P.P. 13,556
N.D.P 47
P.D.P. 50,922
U.N.P.P 9

The 1st respondent having been recorded as scoring the highest number of votes was declared as duly elected by the 2nd respondent.

The appellant was dissatisfied with the result of the election. He filed a petition before the National Assembly Election Tribunal, holden at Asaba, against the 1st respondent, the 2nd respondent and two functionaries of INEC as 3rd and 4th respondents. The grounds of the petition are in the main-
(i) Against the conduct of the electoral officers.
(ii) The issue of lawful/unlawful votes cast at the election.
(iii) Tax/Qualification and disqualification of the 1st respondent.
(iv) Electoral offences allegedly committed by the 1st respondent and officials of the 2nd respondent.

In the light of the above, the appellant prayed the Tribunal –
“(i) That the results of the election in wards 1, 5, 6, 9 and 11 are null and void as no elections took place in those wards.
(ii) That the results of the purported election in units 10 – 26 of ward 4 and units 1, 3, 4, 5, 6, 8, 10 and 13 of ward 7 are null and void as no elections took place in those units.
(iii) That the 1st respondent, Mr. Tamaratare Brisibe, was and is not qualified or is disqualified from contesting and being returned as duly elected, not having the requisite qualification and having committed several electoral offences contrary to sections 129 – 134 of the Electoral Act, 2002, and that the purported election of the 1st respondent is null and void.
(iv) That the 1st respondent (sic) Mr. Tamaratare Brisibe, was not duly elected and that his purported election is null and void as he did not score the highest number of lawful votes.
(v) That the petitioner was duly elected, as representative of the Burutu Federal Constituency in the Federal House of Representative, having polled the highest number of lawful votes cast at the election.
(vi) That the petitioner be returned as duly elected as representative of the Burutu Federal Constituency in the Federal House of Representatives, having polled the highest number of lawful votes cast at the election.
(vii) Any relief(s), order or orders, declaration or declarations, decree or decrees, judgment or determination that this Honourable Tribunal may deem fit to grant, make, declare, decree or enter, having regard to the circumstances and justice of this case, including but not limited to an order for re-election, or fresh election to be conducted in the Burutu Federal Constituency of the Federal House of Representatives as an alternative to returning the petitioner in the stead of the 1st respondent.”

Reacting to the above petition, the 1st respondent filed a reply to the petition. The 2nd – 4th respondents filed a joint reply. In their respective reply, the respondents denied all the allegations of election malpractices, etc, made in the petition against them. Thereafter, the trial proceeded. At the trial, the parties gave evidence and called witnesses. A number of documents were tendered in the cause of the trial. After the evidence of the parties and their witnesses, the learned Counsel for the parties submitted written addresses. The case was adjourned for judgment.

In a considered judgment delivered on the 23rd of August, 2003, the Tribunal held as follows-
“In our view, the petitioner has failed to prove the ground of lawful/unlawful votes for him to succeed on this claim. The petitioner has not established that he scored the majority of lawful votes at the election in order to be declared winner of the 12th of April, 2003 election.

The petitioner has not produced any evidence whatsoever, to enable the tribunal declare any vote cast in the election invalid.

In the totality of the petition, the petitioner has failed to prove that the 1st respondent was not qualified or was disqualified to contest and to be declared winner of the 12th April, 2003 election, into the House of Representatives to represent Burutu Federal Constituency. The petitioner has failed to prove that there was no election in wards 1, 5, 6, 9 and 11 of Burutu Federal Constituency, and has failed to prove that the 1st respondent was not duly elected into Burutu Federal Constituency, and has failed to prove that he, the petitioner was duly elected.

The petitioner has not proved that he scored the highest number of lawful votes cast at the election and is therefore not entitled to be declared as having done so.

In consequence, the petition fails in all aspects of the prayers sought and is hereby dismissed.”
Being dissatisfied with the above judgment, the appellant has appealed to this Court. In compliance with the Court’s Rules, the parties through their counsel filed and exchanged briefs of arguments.

The learned Counsel for the appellant filed in addition a reply brief to the briefs of the 1st, 2nd to 4th respondents. Before us, the learned Counsel for the parties adopted and relied on the submissions contained in their respective briefs. The learned Counsel for the appellant, urged the court to allow the appeal. The learned Counsel for the respondents on the other hand, urged the court to dismiss the appeal as lacking in merit.

The appellant formulated the following issues for determination by the Court –
1. Whether or not, it is just and lawful for a member of a judicial panel, who did not hear the case of the defence to take part in a decision upholding that defence and dismissing the petitioner’s case which he heard.

2. Whether or not, the defence to the petition was properly upheld, when it was based on matters expressly required by law (paragraphs 12 and 15 of Electoral Act, 2002) to be pleaded and adduced in evidence, but which were clearly not pleaded and given in evidence.

3. Whether or not, the provisions of the Electoral Act and proof of same for the validation of votes, is a mere procedure in the electoral process or a sine qua non to validity of votes allegedly cast, but called to question or disputed.

4. Whether or not, documentary evidence admitted in breach of section 222 (after refusal to obey a subpoena of them) of the Evidence Act, ought to be accorded 100% weight or be rejected and discounted on appeal.

5. Whether or not, collated results per se not backed by unit results in some cases and completely without proof of accreditation as required by law amount to lawful votes, when such votes are disputed or called to question.

6. Whether on the facts of the case, the burden is not on the 2nd – 4th respondents (INEC) to prove facts peculiarly and exclusively within their knowledge, including the number of voters in the register of voters and votes cast.

7. Whether or not, the failure of the 2nd to 4th respondents to plead specifically that ad-hoc staff used for the elections were issues (sic) with letters of appointment individually, rendered the letters of appointment tendered in admissible and/or irrelevant or after thoughts (sic).

8. Whether or not, the pleadings and evidence in this case can be legally construed as justifying the dismissal of this petition on the managing scale (sic) of justice.”

I observe that issues 7 and 8 are distilled from ground 8 of the notice and grounds of appeal.

The apex court has warned without number, that it is not permissible to formulate more than one issue from a ground of appeal, even though several grounds of appeal may be covered by one issue. It is obvious that the two issues do not comply with the principles guiding formulation of issues. Such being the case, they are considered incompetent and consequently ignored. Alhaji Raimi Akanji Yusuf & Ors. v. Alhaji Akindipe & Ors. (2000) 8 NWLR (Pt.669) 376.

The 1st respondent formulated four issues, while the 2nd to 4th respondents formulated one issue. The issues differently formulated by the learned Counsel for the respondents may be reconciled into the following three issues viz:
1. “Whether the judgment of the Election Tribunal which consisted of five members and formed a quorum under the Chairman throughout the trial can be vitiated merely because one of the members, not the Chairman, was said to have been absent when the 1st respondent presented his defence.

2. Whether or not, the defence to the petition was properly upheld, when it was based on matters expressly required by Law (paragraphs 12 and 15 of Electoral Act, 2002) to be pleaded and adduced in evidence, but which were clearly not pleaded and given in evidence.

3. Whether from the totality of the evidence on record and adduced before the tribunal during the trial, the petitioner has proved his case in order to entitle him succeed on his claim.”

It is my view that a resolution of the above three issues will depose of the appeal.

Arguing issue one, Chief Giwa of counsel, submitted that a judicial panel may have a variation in its panel. He observed that in the instant case, Hon. Justice A. Onum did not hear the respondents’ 16 case at all. He accepted the fact that throughout the proceedings only, the Chairman of the Tribunal signed the daily proceedings. He however, referred to the affidavit sworn to and filed by the appellant. The affidavit is at pages 222 and 223 of the record of proceedings. The learned Counsel observed that there is no affidavit in counter to the averments contained in the said affidavit. It is his view therefore, that the fact that only the Chairman of the Tribunal signed the daily proceedings does not make the said affidavit false.

The learned Counsel referred to the definition of the word “trial” by Blackburn Law Dictionary. He contended that a Judge in a panel, who is absent in the course of hearing a suit is not in a position to believe a witness, who testified in his absence. In that case, justice would not be seen to be done if that Judge gives judgment to any of the parties in the suit. This is because it is not possible to eliminate the influence (if any), the Judge might have had on his brother Judges in arriving at the decision, even though the Judge in question did not hear part of the proceedings. He urged the court to set aside the judgment as it is not a product of a fair trial. He relied on the case of Irolo v. Uka (2002) 14 NWLR (Pt.786) 195 at 238.

Reacting to the said issue Ohwovoriole, Esq. SAN, of counsel, submitted that ground one of the notice of appeal from which issue one was distilled is incompetent. This is because the issue of the composition of the panel that heard the petition is being raised for the first time on appeal. And, this is done without leave of the court.

The learned Counsel submitted that throughout the hearing of the petition, the Tribunal formed a quorum. The sitting of the Tribunal therefore complied with the provisions of the Electoral Act, 2002. This is more so, the learned Counsel further argued as the records of proceedings do not show that any member of the panel was absent during the hearing of the petition.

Finally, the learned Counsel submitted that the appellant should have shown the “prejudice” he suffered because of the alleged absence of Justice Onum. In the learned counsel’s view-
(1) The appellant waived his right to complain, if any, of the absence of the member, when he did not raise the issue when that member returned and continued with the hearing of the case.
(2) The whole trial was free and fair and was conducted in accordance with the provisions of section 36 of the 1999 Constitution of the Federal Republic of Nigeria.
(3) The appellant should have raised the issue in his written address in order to enable the respondents react to same.

He urged the court to resolve the issue in favour of the 1st respondent.
On the issue, Kotoye, Esq., of counsel submitted in the same line with Ohwovoriole, Esq., SAN, of counsel. He referred to the provisions of section 285(4) of the 1999 Constitution and urged the court to resolve the issue in favour of his clients.

I now consider the submissions of the learned Counsel for the parties.

It is trite that in the absence of any formal complaint, an appellate court and the parties on appeal are bound by the contents of the proceedings as presented by the registrar of the lower court. I observe that there is no complaint from the learned Counsel in their briefs in respect of the recording of the proceedings of the Tribunal now before us. I take it therefore, that the recordings represent correctly what transpired in the Tribunal.

In the case of Gabriel Madukolu & Ors. v. Johnson Nkemdilim (1962) 2 SCNLR 341; (1962) NSCC 374, it was held, inter alia, by the Supreme Court that a court is competent, when it is properly constituted with respect to the number and qualification of its members.

As far back as, 1947, the then WACA in the case of Chief Yaw Damoah & Ors. v. Chief Kofi Taibil & Ors. 12 WACA 167, recognised the need for all the members of court, which gives judgment to have heard all the evidence. Harragin C.J. stated thus:
“It is with regret that we find ourselves obliged still further to prolong this litigation, particularly as it is difficult for illiterate people to understand what they will undoubtedly imagine to be unnecessary technicalities of British justice, but it is a principle from which no court could ever depart. We are aware that most of the native courts appreciate the fact that those giving judgment must have taken part in the whole trial…
In these circumstances, the trial before the Asantehere’s “A” court is declared to be a nullity,”

The court came to that decision because the Constitution of the Native Court that heard the case did not remain the same throughout the trial.

In the instant case, it is claimed that one of the Judges in the panel was not present, when the 1st respondent gave evidence. He nevertheless took part in writing the judgment. We are urged because of this to declare the judgment a nullity.

Before I decide on what to do, I have to look at –
(1) the law establishing the Tribunal; and
(2) the fact of the present case.

First the law. The tribunal is established by section 285 of the Constitution of the Federal Republic of Nigeria, 1999. The Schedule to the section provides that;
“1(1) A National Assembly Election Tribunal shall consist of a Chairman and four other members.”

Section 285(4) provides for the quorum of members. The subsection reads:
“The quorum of an election tribunal established under this section shall be the Chairman and two other members.”

Chambers 20th Century Dictionary defines the word “quorum” as:-
“a number of specially named justices of the peace of whom same had to be present before any business could be done: loosely, the whole body of justices: a minimum number of persons necessary for transaction of a business in anybody.”

Jowitt’s Dictionary of English Law, second Edition also defines it as:
“when a committee … or other body of persons, cannot act unless a certain number at least of them are present, that number is called a quorum.”

Having said this, it is observed that it is not the case of the appellant that the panel did not form a quorum, when it heard the evidence of the 1st respondent or at any other time of hearing the petition.

Be that as it may, a careful look at the record of proceedings shows that the number of Judges that sat on any day was not recorded. There is no complaint from anybody that the record is incomplete or is incorrect. I am aware that there is an affidavit sworn to by one Emibra Efiriandi Agbeotu. He was described as the petitioner in the said affidavit.

Paragraph 5 thereof reads:-
“That from the time the defence started, i.e. the respondents called their witnesses and testified, one member of the panel, i.e. The Honourable Justice A. O. Onum was absent and did not hear a single testimony from the respondents and their witnesses.”

I am aware also that there is no counter-affidavit in which the above averment is denied.
It is trite that an affidavit qualifies as a documentary evidence. The affidavit therefore is a documentary evidence. If the affidavit is an evidence, it should have been served on the person against whom the evidence is given. But it was not served on anybody, and there is nothing to show that it was served on any person. Naturally, nobody has reacted to the averment contained therein. I cannot therefore make use of the said affidavit.

In the light of the foregoing, the issue is resolved in favour of the respondents.
On issue 2, Giwa, Esq., of counsel, observed that the petitioner pleaded in paragraphs 14 & 19 of the petition that the election was properly conducted in wards 2, 3, 8 and 10. The paragraphs read as follows:
“14. Your petitioner avers in all the units of ward (sic) 2 & 3, the election was properly conducted in accordance with the provisions of the Electoral Acts. Votes were lawfully cast, counted and results properly entered and collated in the appropriate INEC forms. The 2nd – 4th respondents are hereby given notice to produce the original/official copies of the results sheets and collation forms on which the petitioner rely (sic).
19. Your petitioner states that in ward (sic) 8 and 10 election went were and were (sic) properly conducted in accordance with the Electoral Act. Petitioner relies on completed Forms EC 8A (1) and EC 8B (1) and hereby put the respondents on notice to produce the original/ official copies.”

It is the learned Counsel’s view that at paragraph 2 of the 1st respondent’s reply, the 1st respondent admitted same. The 2nd – 4th respondents, also admitted the averment at paragraphs 6 & 8 of their reply. He then contended that what is admitted need no proof. He observed that the petitioner set out the votes he is claiming in paragraph 24 of his petition.

The learned Counsel remarked that the 1st respondent on his part merely stated at paragraph 3 (sic) of his reply that he denies paragraph 24 of the petition. He also referred to the denial of the 2nd – 4th respondents.

He submitted that the two denials contravene the provisions of the 1st Schedule to the Electoral Act, 2002. He referred in particular to paragraphs 12(1), 12(2) and 15 of Schedule 1 to the Electoral Act, 2002.

It is the view of the learned Counsel that the provisions of the paragraphs are mandatory. And, failure to comply with the said provisions by the respondents is fatal to their respective case. Consequently, in his view, the respondents have no legal defence or answer to the votes claimed by the petitioner as lawful votes in the petition.

The learned Counsel reminded the court that the petitioner gave evidence of the votes cast, and, tendered carbon copies of the ‘unit’ results. He claimed that the petitioner received the said unit results from his agents at the polling units. He reminded the court that the lawful votes pleaded by the petitioner were not challenged. He contended that exhibits 8 to 13 were not impeached. Consequently he argued, the Tribunal was left with no option, but to grant the prayers as set out at paragraph 29 of the petition.

It is the learned Counsel’s view that the Electoral Act, 2002, in the aforesaid provisions i.e. paragraphs 12 & 15, clearly set out the form a defence to the averment in that regard should be. He submitted that if the defence is not pleaded in that manner, no evidence should be given in respect of the averment in support of the claim in the petition. He submitted that the omnibus provision which allows the tribunal to let in evidence of unpleaded facts cannot be stretched to include evidence in respect of the matter covered in the provisions. In that case, he opined, all the evidence adduced against the votes claimed by the petitioner at paragraphs 18, 24 & 26 of the petition go to no issue and should be ignored.

He urged the court to resolve the issue in favour of the appellant.
Arguing issue 2, Ohwovoriole, Esq. SAN, refers to the provisions of paragraphs 12 & 15 of the First Schedule to the Electoral Act, 2002. It is his view that if a respondent in an election petition does not object to a set of votes claimed by a petitioner there is no need for the said respondent to list his objections to the votes claimed by the petitioner. He referred to paragraph 4 of the petition where in the scores of the candidates in the election as recorded by INEC are set out as follows:
A.D. 586
A.N.P.P. 13,556
N.D.P. 47
P.D.P. 50,922
U.N.P.P. 9

He referred to the petitioner’s pleadings at paragraph 24 of the petition wherein he recorded his own scores as follows:
WARD PETITIONERS VOTES RESPONDENT’ 1ST
1  –  –
2 2,560 1,378
3 3,887 3,433
4 1,810 1,778
5 –  –
6 –  –
7 2,8996 280
8 1,535 2,521
9 – –
10 2,821 2,403
11 – –
TOTAL 15,509 11,793

The learned SAN compared the two sets of scores. He observed that the scores as recorded by the petitioner is far below the scores recorded by INEC in favour of the winner, that is, the 1st respondent. The learned Counsel submitted that the onus is on the petitioner to show the over-voting in favour of the 1st respondent. The petitioner failed woefully to discharge the onus. He observed that the petitioner did not set out the votes he objected to in-compliance with the provisions of paragraphs 12 and 15 of the 1st Schedule to the Electoral Act, 2002.

He submitted that it is not the duty of the 1st respondent to set out a list of the votes, he objected to when he does not object to any vote. He contended that the burden is on the petitioner to prove his case of unlawful votes or over voting in favour of the 1st respondent. The burden he submits does not shift. He relied on the case of Okoroji v. Ngwu (1992) 9 NWLR (Pt.263) 113.
The learned SAN referred to part of the judgment which reads:
“We would say here that marking for voters who have been accredited is a mere procedure to be followed as opposed to being a mandatory requirement of the law.”

It is submitted that the issue is for the Tribunal to do substantial justice and not technical justice, which he considers as the main purpose of the complaint of the petitioner.

The learned SAN reminded the court that the petitioner agreed with DW2 – Chukwuma Lawrence that there was voting “as known to law” but in so far as exhibit 39 was not marked, there was no voting, even where the petitioner claimed to have won from the recording in the exhibit. It is the learned SAN’s view that as long as there is substantial compliance with the procedure for voting the claim of the petitioner cannot be sustained. He urged the court to resolve the issue in favour of the respondents.

Kotoye, Esq., of counsel in his brief of argument did not treat the above issue. He however urged the court to resolve all the issues in favour of the respondents.

I consider now the submissions of the learned Counsel to the parties. Before that, I reproduce hereunder issue 2 which is the subject-matter of my consideration. This is to help me be on track, if you like. The issue reads:
“Whether or not, the defence to the petition was properly upheld when it was based on matters expressly required by law (paragraphs 12 & 15 of Electoral Act, 2002) to be pleaded and adduced in evidence, but which were clearly not pleaded and given in evidence.”

I also reproduce for the same reason paragraphs 12 & 15 of the 1st Schedule of the Electoral Act, 2002, on which the submissions are predicated. They read:
12-(1)”The respondent shall, within fourteen (1) days of entering an appearance file in the registry his reply, specifying in it which of the facts alleged in the election petition he admits and which he denies, and setting out the facts on which he relies in opposition to the election petition.
(2) Where the respondent in an election petition, complaining of an undue return and claiming the seat or office for a petitioner intends to prove that the claim is incorrect or false, the respondent in his reply shall set out the facts and figures clearly and distinctly disproving the claim of the petitioner.
(3) …
(4) …”

15. When a petitioner claims the seat alleging that he had the highest number of valid votes cast at the election, the party defending the election or return at the election shall set out clearly in his reply particulars of the votes, if any, which he objects to and the reasons for his objection against such votes, showing how he intends to prove at the hearing that the petitioner is not entitled to succeed.
From the above provisions, the 1st respondent, is expected to set out in his reply:
(1) Facts in the petition which he admits or denies in opposition to the election petition.
(2) Facts and figures clearly and distinctly disproving the claims of the petitioner.
(3) Particulars of the votes, if any, which the respondent objects to and the reasons for his objection against such votes.

To find out whether the 1st respondent complied with the stipulations, I have to look at the reply filed by the respondents. In doing so, I have to bear in mind that the averments in the reply, are to be considered as a whole.

In paragraphs 14 and 19 (supra) the petitioner averred that the election was properly conducted in accordance with the provisions of the Electoral Act in all the units of Wards 2, 3, 8 & 10.

In answer to the above, the 1st respondent in his reply averred thus:
14. Respondent admits paragraph 14 of the petition and to add by stating as follows: – In wards 2 and 3 of the Burutu Federal Constituency, the petitioner won the majority of the votes being his home base and stronghold. In those two wards, total votes cast were about 100%.
21. Paragraph 19 of the petition is admitted and to add that the respondent had majority of lawful votes cast.

It is necessary to reproduce paragraphs 18, 24 & 26 of the petition together with the relevant averments in the reply of the 1st respondent. I start with the petition.
18. Your petitioner will testify that in units 1, 3, 4, 5, 6, 8, 10 and 13 of Ward 7 there was no voting on account of there being no voters register. The 2nd – 4th respondents arbitrarily alloted votes to the parties as follows:
WARD 7
UNITS PARTIES PDP (1ST RESPONDENT
01 300 –
03 298 –
04 300 –
05 300 –
06 298 –
08 300 28
10 290 10
13 294 6
TOTAL 2,380 44
24. Your petitioner contends that the only legitimate and tenable results of the election, which substantially conform with the provisions of the Electoral Act show that the petitioner won the election.

These results for the whole constituency are as follows:-
WARD PETITIONER’S VOTERS 1ST RESPONDENT’S VOTES
1 – –
2 2,560 1,378
3 3,887 3,433
4 1,810 1,778
5 – –
6 – –
7 2,896 280
8 1,535 2,521
9 – –
10 2,821 2,403
11 – –
TOTAL 15,509 11,783
26. Your petitioner scored the majority of lawful votes cast at the election and defeated the 1st respondent by a majority of 3,716 votes.”

The reaction of the 1st respondent as is shown in his reply is as follows:
19. Paragraph 18 of the petition is denied and the petitioner is required to prove same strictly. In answer to paragraph 18 the respondent repeats the pleadings of paragraph 15 hereof.
24. Paragraphs 24 and 26 of the petition are denied and the petitioner is put to the strictest proof thereof. In answer to the said paragraphs, the respondent states that the true and only correct result of the election albeit with slight arithmetical error, is the one pleaded in paragraph 4 of the petition as declared by the 2nd respondent. The respondent scored overwhelming majority votes, in that the respondent polled 51,160 lawful votes and was duly returned as “winner”. The respondent shall found on the overall result sheet at the trial of the petition.
25. In further answer to paragraphs 24, 25, 26 of the petition, the respondent disputes the accuracy of the tabulation. It is incorrect and calculated to mislead, in that quite apart from inaccurate figures/scores credited to the respondent unilaterally by the petitioner, the votes won by the respondent in Wards 1, 5, 6, 9 & 11 are wilfully omitted and will at the trial, urge the tribunal to disregard the said tabulation with ignomity.

It is to be recalled that Giwa, Esq., of counsel submitted that the respondent admitted the averments in paragraphs 14 and 19 of the petition. Yes, in his reply, the 1st respondent admitted paragraph 14 of the petition in the following words:
“In Wards 2 and 3 of the Burutu Federal Constituency, the petitioner won the majority of the votes being his home base and stronghold. In those two wards total votes cast was about 100%.”

But did the respondent also admit the averment in paragraph 19? I do not think so. Thesaurus of English Words and Phrases defines the word “admit” as meaning:
Admit, allow, concede, grant, yield etc.
From the above definition, the averment in paragraph 21 of the reply filed by the 1st respondent does not concede the claim of the appellant in paragraph 19 of his petition (See paragraph 21 of the reply of the 1st respondent above).

It is to be remembered that the respondent in his paragraph 24 referred to paragraph 4 of the appellant’s petition. The figures stated in the said paragraph 4 are therefore incorporated in the 1st respondent’s reply. He does not have to repeat them in the body of his reply. It is my view that the averments in paragraphs 19, 24 & 25 of the 1st respondent’s reply, if carefully read are in substantial compliance with the provisions of paragraphs 12 and 15 of the 1st Schedule to the Electoral Act, 2002. The issue is resolved in favour of the respondents.

On the 3rd issue for determination, Giwa, Esq., of counsel, referred to the provision of section 40 of the Electoral Act, 2002. He submitted that accreditation of voters is not; a mere procedural step in an election. It is the learned Counsel’s submission that it is mandatory that accreditation of voters must take place in every ward in a constituency. He contended that without proof of accreditation any purported votes cast in the election are invalid.

The learned Counsel referred to the order for joint inspection of materials used by INEC for the election which are in its custody. He referred to the provisions of S. 147 of the Electoral Act. He observed that in the provision, the Chief Electoral Commission is supposed to retain for twenty-four months all documents relating to an election forwarded to him in accordance with the provisions of the Act. He reminded the court of the evidence of DW12 of the existence of voters’ register. It is the counsel’s view that the voters’ register and the markings thereon are documentary evidence. In that case, he opined, no oral evidence may be given to prove the contents of the said voters’ register. He relied on the case of Nweke v. Ejims (1999) 11 NWLR (Pt.625) 39 at 57. He contended that the court should not attach any weight to those documents, which were tendered but were not subjected to joint inspection as ordered by the tribunal.

He submitted that the court should insist on, particularly that the ballot papers, unit result sheets, the register of voters showing accreditation should be placed before it. Failure to do that, he submitted, would make any decision on them to be arbitrary, wrongful etc. He cited the case of Nweke v. Ejims (supra).

The learned Counsel emphasised the fact that the polling booth or the polling unit, is the root of the whole electoral process. He relied on the case of Ughumiakpor v. Eruotor (1999) 10 NWLR (Pt.619) 460.

Finally, the learned Counsel submitted that the tribunal was in error to have held that the onus is on the appellant to prove the number of voters in the register or the number of the votes cast. He observed that 2nd – 4th respondents prepared and kept the voters register, the onus should therefore be on them to prove those facts.

He urged the court to hold that the appellant discharged the burden on him to prove that the result of the election should have been declared in his favour.

Arguing issue 3, Ohwovoriole, Esq., SAN, of counsel submitted that there is a rebuttable presumption of law that the result of any election by the returning officers is the authentic and correct result of that election. He relied on the case of Jalingo v. Nyame (1992) 3 NWLR (Pt.231) 538, and the provisions of sections 115, 148 and 149 of the Evidence Act. The learned SAN referred to the evidence of DW 12 – the Electoral Officer for Burutu Local Government Areas. He observed that the officer tendered before the Tribunal the following exhibits the admissibility of which were not objected to by the appellants. They are 35A, 136A – 37, 38 and 39. He contended that the appellant failed to rebut the presumption that the results contained in the exhibits were correct. It is his view that the results of the election presented by the presiding officers and returning officers at the various ward collation centers should be accepted as the authentic results in the absence of any result to the contrary.

The learned SAN then referred to the petition filed by the appellant. He observed that the appellant failed to state clearly the number of votes credited to him and the votes credited to the 1st respondent in excess of the actual votes scored by the 1st respondent. It is the learned SAN’s view that the appellant merely compared the figures in exhibit 7 – (which he called the appellants’ register) with the returns made by the 2nd respondent, for both the 1st respondent and the appellant. He contended that for the appellant to prove that there are unlawful votes, and or over voting, the appellant should have tendered all the forms used in the election. He submitted that the burden of proof of unlawfulness of votes cast is on the appellant. The appellant in the learned Counsel’s view, should have led evidence to show that invalid votes were cast in favour of the 1st respondent. He contended that enough materials to enable the tribunal come to a decision on whether or not to declare any vote cast in the election invalid must be placed before the tribunal. He relied on the cases of Daudu v. Halliru (1999) 5 NWLR (Pt.601) 94 (2) Omoboriowo v. Ajasin (1984) 1 SCNLR 108; (1982) NSCC 1.

He observed that the figures in exhibit 7 which was tendered by the appellant before the Tribunal severely contradicted the figures presented by the appellant as what he, the appellant scored. The Tribunal was therefore right, according to the learned SAN, to hold that the allegations of unlawful votes were not proved.

The learned SAN, referred to exhibit 6, which is the affidavit sworn to by DW12, the Electoral Officer, to the effect that INEC office at Burutu was burnt down by hoodlums. He observed that the said Electoral Officer gave evidence. And his evidence, the learned counsel claimed, was not challenged. He referred also to the piece of evidence that INEC officials waited for the appellant and his counsel to inspect the materials used for the election at Burutu, but they did not turn up. It is his view that from the sequence, the 2nd – 4th respondents did not frustrate the inspection.

Finally, the learned SAN referred to the provisions of section 135 of the Electoral Act to the effect that an election shall not be liable to be invalidated by reason only of non-compliance with the provisions of the Electoral Act, if it appears to an election tribunal or a court that the election was conducted substantially in accordance with the principles of the Act.

He urged the court to resolve the issue in favour of the respondents.

Kotoye, Esq., of counsel, in his reaction to issue 3 referred to sections 136 and 137 of the Evidence Act~ He contended that the sections place the burden of proof of any factual situation, which the appellant asserts in his petition on the appellant. He submitted that the onus created by the two sections does not shift and it lies on the appellant. The learned Counsel observed that before the appellant could succeed in his claim he must establish a cause of action against the 2nd – 4th respondents. Further, that the evidence of the alleged irregularities in the election given by PW.1, PW.2, PW.3, PW.4, PW.5 and P.W7 can be linked to the 2nd – 4th respondents. He referred to the case of U.N.C.P. v. D.P.N. (1998) 6 NWLR (Pt.553) 337.

The learned Counsel observed that the evidence of the witnesses called by the appellant point against the following officials of INEC VIZ:
(a) Supervisory Presiding Officer for Ward 1.
(b) Presiding Officers for all the units in Ward 1.
(c) Supervisory Presiding Officer for Ward 9.
(d) Presiding Officer for Ward 9.
(e) Supervisory Presiding Officer Ward 5.
(f) Presiding Officer for Ward 5.
(g) Supervisory Presiding Officer Ward 6.
(h) Presiding Officer for Ward 6.

The learned Counsel referred to the evidence of the Electoral Officer attached to Burutu Local Government Area. He gave evidence as DW12. It is his evidence that election materials were distributed to the Supervisory Presiding Officers and the Presiding Officers for onward transmission to the wards. The learned Counsel observed that it is common ground that it is not the duty of the 2nd – 4th respondents to distribute polling materials to the wards and polling units. In that case, the appellant should not visit the alleged sins of the Supervisory Presiding Officers on the 2nd – 4th respondents. He cited the case of Ali v. Obande (1999) 9 NWLR (Pt.620) 563. He submitted that officers whose acts are the subject of the election petition should have been joined as respondents pursuant to section 133(2) of the Electoral Act.

The learned Counsel submitted that the appellant failed to discharge the burden of proof of unlawfulness of votes placed on him. This is because the appellant failed to show the number of invalid votes from wards 1, 5, 6, 9, 11 part of wards 4 and 7, which the appellant complained about.
Finally, the learned Counsel referred to exhibit 7. He observed that the appellant in his evidence did not testify that the exhibit is the voters’ register used for wards 1, 5, 6, 9 & 11, during the election. He submitted that evidence of accreditation could only be obtained if the voters register tendered is in accordance with section 40(2) of the Electoral Act, 2002.
He urged the court to resolve the issue in favour of the respondents.

The Evidence Act is described as an Act to provide for the law of evidence to be applied in all judicial proceedings in or before courts in Nigeria. Under the Act, whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

In the petition of the appellant, a number of allegations were against the respondents. As an election petition may be classified as a civil matter, the burden of first proving the existence or non-existence of the facts alleged by the appellant in the petition falls on the appellant.

It is to be noted that the allegations made in the petition include the fact that:
(1) no election took place in some of the wards.
(2) the 1st respondent was not qualified or is disqualified from contesting on the ground of educational qualifications etc.
(3) the 1st respondent committed electoral malpractices and misconduct etc.

From the nature of the above complaints by the appellant, it is clear that allegation of commission of criminal offences is part of the petition. In that case, it is necessary therefore that the standard of proof must be beyond reasonable doubt. This is because by virtue of section 138 of the Evidence Act if the commission of a crime by a party to a proceeding is directly in issue, in any proceeding civil or criminal, it must be proved beyond reasonable doubt. Ikoku v. Oli (1962) 1 SCNLR 307.

The question is, what is the nature of evidence led by the appellant before the tribunal in support of the allegations he made in his petition. It is necessary to observe that from the records, in the course of hearing the case, the appellant did not lead any evidence oral or documentary as to the educational qualification of the 1st respondent. There was evidence however in relation to non-qualification of the 1st respondent on the ground that the 1st respondent did not pay his tax. Inrebuttal the 1st respondent tendered his tax clearance certificate – exhibit 41. There was no evidence about the alleged corrupt practices committed by the 1st respondent.

Under section 133(2) of the Electoral Act, if the petition complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of the election, such officer or person shall for the purpose of the Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party.

A careful look at the evidence adduced by the appellant shows that it was the conduct of the following officers of INEC that were castigated. These officers are:
(a) Supervisory Presiding Officer for Ward 1.
(b) Presiding Officers for all the units in Ward 1.
(c) Supervisory Presiding Officer for Ward 9.
(d) Presiding Officer for Ward 9.

None of them was made a party to the suit. Some of them were subpoenaed by the appellant and the 1st respondent to give evidence. They have one thing in common. They are ad-hoc staff of INEC.
DW12 gave evidence that he trained and appointed the ad-hoc staff of INEC during election. He gave them appointment papers. All the ad-hoc staff that gave evidence for the 1st respondent tendered their appointment papers. Those that gave evidence for the appellant did not tender any letter of appointment.

DW12 gave evidence that INEC did not use exhibit 7 for the conduct of the election.

From the records, two statements were extracted from the witness during cross-examination by the learned Counsel for the appellant.

The statements are:
(1) I have seen exhibit 7.
(2) In exhibit 7 the bottom part of page 6 up to page 10 the upper part is written in Burutu.

There was nothing to show that exhibit 7 emanated from INEC. The tribunal was right therefore to have come to the conclusion that a closer look at exhibit 7 shows that there is nothing on the face of it to show that it was the register used at the election.

It is evident from the above that the appellant did not place two sets of results before the tribunal for comparison. The failure to do so leaves the tribunal with no option, but to reject the scores set out by the appellant in his petition. In other words, the appellant did not tender any reliable results which would have formed the basis of such comparison.

Finally, it is to be remembered that the appellant testified that he did not appoint any agents for some units. That notwithstanding he urged the court to reject the eyewitness accounts of what transpired in the said polling units.

Having regard to the foregoing and the averments in exhibit 6, the tribunal was justified in holding that the conduct of the election was in substantial compliance with the Electoral Act.

The appellant failed to establish, that he has a majority of lawful votes cast and that the 1st respondent did not score the majority of lawful votes.

In sum, the appeal is dismissed as lacking in merit. I make no order on costs.

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Other Citations: (2004)LCN/1552(CA)