IN THE COURT OF APPEAL OF THE FEDERAL REPUBLIC OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
PETITION NO.EPT/CR/NA/9/2011
BETWEEN:
1. ENO EKAPONG OFEM
2. ACTION CONGRESS OF NIGERIA APPELLANTS
AND
1. HON. BASSEY EKO EWA
2. INDEPENDENT NATIONAL ELECTORAL RESPONDENTS
COMMISSION
3. RESIDENT ELECTORAL COMMISSIONER
CROSS RIVER STATE
4. PEOPLES DEMOCRATIC PARTY
THE APPELLANTS BRIEF OF ARGUMENT
PREPARED BY:
OBOL OKOI O. OBONO-OBLA
OBONO, OBONO & ASSOCIATES
LEGAL PRACTITIONERS & CONSULTANTS
(APPELLANTS’ SOLICITORS)
TRINITY HOUSE (2ND FLOOR), MABUSHI,
FEDERAL CAPITAL TERRITORY, ABUJA.
IN THE COURT OF APPEAL OF THE FEDERAL REPUBLIC OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
PETITION NO.EPT/CR/NA/9/2011
BETWEEN:
1. ENO EKAPONG OFEM
2. ACTION CONGRESS OF NIGERIA APPELLANTS
AND
1. HON. BASSEY EKO EWA
2. INDEPENDENT NATIONAL ELECTORAL RESPONDENTS
COMMISSION
3. RESIDENT ELECTORAL COMMISSIONER
CROSS RIVER STATE
4. PEOPLES DEMOCRATIC PARTY
INTRODUCTION
This is an appeal against the Judgment of the National and State Assembly Election Petition Tribunal sitting in Calabar, Cross River State of Nigeria delivered on the 4th November, 2011, dismissing the Petition filed against the return of the 1st Respondent as the winner of the Abi/Yakurr Federal Constituency election held on the 26th April, 2011. The Appellants were utterly aggrieved by the Judgment of the Tribunal and filed a Notice of Appeal on the 15th November, 2011.
STATEMENT OF FACTS
I. Election was held into the Abi/Yakurr Federal Constituency of Cross River State of Nigeria for the seat of the House of Representatives on Saturday the 26th April, 2011. The 1st Appellant was sponsored by the 2nd Appellant, Action Congress of Nigeria.
II. The 1st Respondent contested the election under the aegis of the 4th Respondent. At the conclusion of the election the 3rd Respondent announced or declared the 1st Respondent as the winner of the said election.
III. The 1st Appellant was deeply aggrieved with the return of the 1st Respondent as the winner of the Petition, thus the 1st Appellant presented a Petition before the National and State Assemblies Election Petition Tribunal on the 17th day of May 2011.
IV. After the service of the Petition on the Respondents, the Respondents filed their Replies to the Petition.
V. At the Pre-trial Session the 1st Respondent raised a Preliminary Objection to certain paragraphs of the Petition and the Tribunal sustained the objection by striking out the offensive paragraphs of the Petition.
VI. At the hearing of the Petition, the Appellants called 12 witnesses and tendered a number of documentary evidence.
VII. The Respondents did not call evidence but rested their case on that of the Petitioners.
VIII. The Tribunal in its Judgment on the 4th November, 2011, dismissed the Petition as lacking in merit and declared the 1st Respondent as duly elected despite the fact that the 1st Respondent did not tender his Certificate of Return to establish that he was validly declared the winner of the election.
IX. The Appellants have lodged Nine (9) Grounds of Appeal against the Judgment of the lower Tribunal.
ISSSUES FOR DETERMINATION
The issues that call for the determination of the Court as framed from the Grounds of Appeal are as follows:
1. What is the standard of proof required by the Appellants in an Election Petition where the Respondents elects not to call evidence to disprove or dispel the evidence called by the Petitioner, regard being had to the facts and circumstances of this case?
2. Can a Tribunal which had failed to invoke the principle of severance of pleadings urged upon it by the Appellants as regards the Criminal aspects of the Petition, descend into the arena to strike out paragraphs of the Petition on the ground that the Appellants had submitted that they were abandoning these paragraphs of the Petition?
3. Whether the Tribunal was right when it held that where a Appellant (Petitioner) makes allegation of non-voting he must necessarily call evidence of voters who did not vote in the election to prove his case?
4. Whether the Tribunal was not bound to evaluate documentary evidence tendered through PW12 on the ground that such documentary evidence was merely dumped on the Tribunal; and whether the failure has not resulted in a miscarriage of justice against the Appellants?
5. Whether the Tribunal was correct when it held that the 1st Respondent was validly elected and the fact that he did not tender his Certificate of Return was not an issue that was raise in the pleadings of the Appellants?
6. Whether the Appellants were not entitled to Judgment regard being had to the facts and circumstances of this case?
7. Whether the failure and or refusal of the Tribunal to consider the address and analysis of examination of documentary evidence did not occasion a miscarriage of justice on the Appellants?
ARGUMENT OF ISSUE NO 1
1.1. One of the highlights of the Petition was that at the end of the close of the case of the Appellants, the Respondents unanimously elected not to call evidence but to rest their cases on that of the Appellants.
1.2. The position of the Law is well settled that where a party fails to call evidence in support of its pleadings, it is deemed that it has abandoned that portion of its pleadings. See AGAGU V. MIMIKO (2009) 7 NWLR (PT. 114) 342 @ 370; See also LANTO V. WOWO (1999) 4 LRECN 360, para. A; ADENEKAN V. AJAYI (1998) LRECN 142, para. A.
1.3. The consequence of the failure of the Respondents to call evidence is that they have abandoned their pleadings and admitted the case of the Appellants. Consequently, they are deemed to have admitted the facts pleaded by the Petitioner and the evidence led to support the pleadings thereby making the Petitioner’s case unchallenged. See NA’UMBA VS NA’UMBA (2008) 31 LRECN 278 @ 287, Okoro JCA stated:
“It is the practice and by the Rules of litigation, parties are bound by their pleadings. Pleadings which are not supported by evidence whatsoever, go to no issue. Again, where there is no evidence led in support of any pleadings, then the pleading is deemed abandoned.”
See also EGBUNIKE VS ACB (supra); BALOGUN VS EOCB NIG. LTD. (2007) 5 NWLR (PT 1028) 584 @ 602.
1.4. The implication of the election by the Respondents not to call evidence is that they have abandoned their pleadings and conceded to the case of the Appellants. In other words, the implication of the failure by the Respondents to call evidence is that there is absolutely no evidence to be placed on the mythical side of the scale of balance of the Respondents by the Tribunal to enable it evaluate the evidence received at trial and decide on which side it preponderates.
1.5. It is submitted that another grave implication of the failure of the Respondents to call evidence (but resting their cases on that of the Appellants) is that the Appellants who are ordinarily required to prove their cases by preponderance of evidence are discharged from that burden and foisted with the burden of minimal proof. In this wise, the Appellants are require to prove their case by deduction of minimal evidence. See AGAGU VS MIMIKO (2009) 7 NWLR (PT 1140) 342 @ 386, para F-G:
‘In such circumstance, the law does not require proof of impliedly admitted facts and where proof is even required, only a minimal evidence would be necessary to ground the claim. See also BALOGUN VS. UBA (1992) 6 NWLR (PT 247) 366 and EGBUNIKE VS. ACB (1995) 2 NWLR (PT.375) 34.’
1.6. It must noted that although election Petitions are in a class of their own or sui generis, the general rules or principles of pleadings which apply to ordinary civil actions are also applicable with necessary modification mutatis mutandis but with equal force especially as regard the filing of Petitions and Reply thereto. See Ogbeide v. Osula (2004) 12 NWLR (Pt. 886) 86 at 94.
1.7. However, in a case where the other side fails to call evidence available for the Court to put on the proverbial balance of scale, the Plaintiff is only required to prove his case by production of minimal evidence.
1.8. In Broadline V. Monterey (supra) Page 21, the Supreme Court elucidated the law thus:
”So, too, where the Defendant offered no evidence, the Plaintiff’s evidence before the Court under such circumstances clearly goes one way with no evidence to be placed on the other side of the proverbial imaginary balance as against such evidence given by or on behalf of the Plaintiff. The onus of proof in such a case is discharged on minimal of proof".
1.9. However in this case the Appellants even exceeded the burden placed on them to call minimal evidence. The Appellant went on to prove their case by preponderance of evidence.
1.10. It is clear that the testimony of PW12 was not challenged or shaken during cross examination. The evidence of PW12 proved the case of the Appellants because the Respondents failed woefully to demolish the evidence-in-chief of PW12. The Respondents’ perfunctorily cross-examined PW12 on peripheral issues which did not effectively shake the foundation of the case of the Appellants.
1.11. The position of the Law is settled that where the evidence called by a party is not shaken during cross examination, the Court is entitled to deem such evidence as having been established.
1.12. The evidence adduced by the Appellants through PW12 proved the case of the Appellants that the election was not conducted in compliance with the provisions of the Electoral Act. See pages 12-16 of the record. See particularly paragraphs 9, 10, 11, 12, 13, 14, 16, 26, 27, 28. 29 & 30 of the Statement on Oath of PW12 at pages 13-16 of the record of appeal.
1.13. A Perusal of the record will glaringly show that the Respondents in their determination and frenzy not to open their flanks, failed woefully and spectacularly to effectively and effectually cross-examine PW12. See Pages 782 - 784 of the record.
1.14. The evidence of PW12 that was particularly telling, compelling and pointed were as follows:
“In some Local Government, Wards and Polling Units votes were merely allocated without the conduct of election as provided by the Electoral Act and the guidelines issued by the 2nd respondent. The fact of allocation of votes is deductible from Forms EC8A, EC8B, EC8C, EC8D & EC8E which are replete with errors and irreconcilable figures which would not have been if elections held.
PARTICULARS OF ERROR IN FORMS EC8 SERIES:
(i) Omission of the names of political parties that were on the ballot.
(ii) Number of votes cast being more than persons accredited to vote.
(iii) Number of votes being more than registered voters.
(iv) Figures entered in Forms EC8B being at variance with figures in FormEC8A.
(v) Inclusion in result sheets of political parties that were not on the ballot papers.
(vi) In order to harmonise the allocated figures the result sheets were badly mutilated.
(vii) Procedure provided by Manual for conduct of election could not be complied with as evidenced in the Forms.
(viii) Lack of evidence that after accreditation voters queued up to vote.
(ix) Unstamped and unsigned sheets.
The Appellants in the Petition made allegation of non-voting in several Wards that make up Abi/Yakurr Federal Constituency and substantial non compliance with the provisions of the Electoral Act. In order to prove these allegations the Appellants tendered Exhibit 4 (1) - (7); Exhibit 6 (1) - (19); Exhibit 7 (1) - (3); Exhibit 8 (1)-(4); Exhibit 9 (1) - (7) through PW12 who was not cross-examined. See pages 775-777 of the record. These Exhibits were Voters’ Registers for Afrekpe/Epenti, Mkpani/Agoi, Assiga, Idomi, Ntan Wards of Yakurr Local Government Area where the Appellants had given evidence that there was no voting. It is clear that if the Tribunal had taken the pain to evaluate these exhibits they would have shown that the Voters Registers were not ticked, which goes to prove the allegation by the Appellants as shown in the testimony of PW12 that there was no voting in several Wards which these exhibits covered.
The Appellants made allegation of the fact that Form EC8A in many Polling Units were not stamped and signed as provided by the provisions of Section 63 (1) & (2) of the Electoral Act. The position of the law is well settled that a result sheet that is unsigned is completely worthless and cannot be of any probative value. See SOWEMIMO V. AWOBAJO (1999) 3 NWLR (PT.595) 387.
Again these Forms EC8A were tendered through PW12 who was not cross-examined on them. It is therefore submitted that the failure of the Respondents to cross-examine PW12 on his evidence in chief vis a vis Forms EC8A has proved the allegation made by the Appellants that these Forms were not stamped and signed or that there were several alterations or mutilation on them that confirms the allegation that votes were merely allocated to candidates that contested the election has been proved.
Apart from PW12, the Appellants called other 11 witnesses to prove its case. The Respondents failed to call any witness. The Respondents rather abandoned their pleadings and rested their cases on that of the Appellants.
1.15. It is submitted that the Tribunal was therefore totally wrong to still have insisted that the Appellants had a high burden of proof even after the Respondents refused to rebut the evidence called by the Appellants.
1.16. The Respondents had a burden or duty to produce their evidence to counter-weigh or counter the evidence brought by the Appellants so that the Tribunal would have something to put in the Respondents side of the balance of scale to enable it weigh which side of the scale the evidence received by it preponderates.
1.17. The law is well settled that that where a party does not testify, the burden of proof placed on the other party is minimal particularly where the Court holds the evidence adduced to be credible. See NA’UMBA V. NA’UMBA (2008) 3 LRECN 279 @ 282; IMANA V. ROBINSON (1979) 3-4 SC 197 and ONIFADE V.OYEDEMI (1999) 5 NWLR (PT. 601) 54.
1.18. In AREGBESOLA V. OYINLOLA (supra) page 597, paras. A-E, the Court illuminated thus:
“Where issues are joined on any averment in the pleading but no evidence is led to support such averment, the result is that such averment in the pleadings is either to be struck out or be dismissed. Such averment can be treated as having been abandoned. An abandoned pleading is dead to the procedural disadvantage of the owner. The effectual preposition is that issues are no longer joined because the being nature of the pleadings can no longer speak through the language of a witness. The consequential outcome is that there will be ....... at all on record on which the ... issues are no longer denied because there is no denial. In the instant case INEC, offered no evidence whatsoever that there was substantial compliance with the Electoral Act and the votes accredited to the 1st-3rd Respondents were not unlawful votes”.
1.19. The position taken by the Tribunal that the Respondents used the case of the Appellants to build its case is not tenable. In the first place the Tribunal lost sight of the fact that the case was an election Petition, which is sui generis. In election cases, it is well settled that the principles of law that ordinarily apply in ordinary civil cases do not apply in election cases.
1.20. In any case the Tribunal failed to highlight in its judgment which aspects or cases of the Respondents that the Respondents used that of the Appellants to build. The 2nd Respondent, that is the conductor of the election, maintained an ominous and studied silence in the face of the evidence produced by the Appellants which undermined the integrity of the election and which required the 2nd Respondent to call/produce evidence to rebut the allegation concerning the conduct of the election. For instance, it is well settled that where a Petitioner makes allegation of non conduct of election, the 2nd Respondent has a duty to produce evidence that election was conducted by showing the distribution of electoral materials through the tendering of Form EC25.
1.21. It is submitted that the Appellants had proved their case and the Tribunal was wrong not to have found in favour of the Appellants. The Appellants were only required by law to prove their case minimally after the Respondents capitulated by not calling evidence but rested their case on that of the Appellants.
1.22. In the light of the above, we humbly invite the Court to resolve Issue No. 1 in favour of the Appellants against the Respondents.
ARGUMENT OF ISSUE NO. 2
2.1. The Appellants in their Final Written Address had invited the Tribunal to invoke the principle of severance of pleadings and severe the criminal allegations made in the Petition from the civil ones. See Paragraphs 4.3 & 4.4 of Page 788 of the record.
2.2. The Tribunal did not honour the invitation of the Appellants but declined it. See Page 847 of the record. It is pertinent to quote from the Judgment of the lower Tribunal in Page 847 of the record thus:
“Paragraphs 15, 16, 17, 18, 19, 22, 24, 25 & 33 of the Petition are abandoned as in Paragraph 4.6 of the Petitioners Final address it is conceded that from the state of the pleadings and cross examination, the Petitioners are not able to prove that election did not hold in the 6 Wards of Yakurr Local Government as averred in the Petition. Accordingly we hereby strike out the abandoned Paragraphs of the Petition relating to the allegations that election did not hold in Yakurr Local Government Area and hold that election held thereat in compliance with the provisions of the Electoral Act, 2011, and Manual for conduct of the Election”.
2.3. It is clear that the Tribunal from the above descended into the arena and got its vision blurred and beclouded to the extent that it got entangled, muddled and made findings that are plainly perverse and out of tune with the pleadings and evidence led. It is curious that the Tribunal without applying the principle of severance of pleadings which Counsel to the Appellants in Paragraph 4.3 of the Appellants Final Written Address urged upon it, went ahead, descended into the arena and struck out Paragraphs of the Petition and came to the conclusion that election held in Yakurr Local Government Area in compliance with the provisions of the Electoral Act.
2.4. It is clear that there is nothing in these paragraphs concerning the fact that election took place in Yakurr Local Government as found by the Tribunal. We are completely at a loss how the Tribunal came to this conclusion and finding that that election took place in the entire Yakurr Local Government based on the submission made by the Appellants in Paragraph 4.6 of their Final Written Address.
2.5. It is clear as the crystal ball that the finding by the Tribunal is not borne out of evidence received by the Tribunal. It is therefore erroneous and perverse and this Court as an Appellate Court has the power to disturb such finding and set it aside.
2.6. Indeed it is in Paragraph 32 that the Appellants pleaded that election did not hold. For the avoidance of doubt it is necessary to reproduce Paragraph 32 of the Petition thus:
“Election did not hold at Mkpani/Agoi Ward, Inyima Ward, Assiga Ward, Ntan Ward, Afrekpe/Epenty and Idomi. Election materials in these Wards were taken to places other than Polling Units and massively thumb printed and stuffed in ballot boxes”. See Paragraph 32 Page 6 of the record.
2.7. It is clear that paragraph 32 of the Petition was never among the paragraphs of the Petition the Appellants had submitted that the Tribunal should deem abandoned in the event that the principle of severance that the Appellants had invited the Tribunal in Paragraphs 4.3 & 4.4 of the Final Written Address is sustained.
2.8. However the Tribunal in its frenzy to descend into the arena got muddled up and brought in Paragraph 32 of the Petition and that resulted in a serious miscarriage of justice because it was in the process of this muddle and perverse finding that the Tribunal came to the conclusion that election in Yakurr Local Government was conducted in compliance with the provisions of the Electoral Act and the Manual for conduct of election.
2.9. It is clear the Counsel to the Appellants did not make any application in Paragraph 4.6 of the Final Written Address that it was abandoning Paragraphs 15, 16, 17, 18, 19, 22, 24, 25 & 33 of the Petition. See Page 847 of the record. It follows that the finding by the lower Tribunal that the Appellants in Paragraph 4.6 of their Final Written Address made such application is perverse and should be set aside by this Court in the exercise of its appellate jurisdiction. It is well settled that an Appellate Court has the jurisdiction to set aside a finding of facts by a trial Court that is not borne out of evidence received by the Court.
2.10. This is evident that the Tribunal maintained a studied silence in its judgment on the invitation extended to it by the Appellants. In other words there is no finding by the Tribunal in its judgment whether or not it agreed with the invitation extended to it by the Appellants for it to invoke the principle of severance of pleadings in election Petition litigation as enunciated by the Supreme Court in the cases of Akin Omoboriwo v. Ajasin (1984) 1 SCNLR 108; (1991-1992) ALL NLR 537 and this Court in Mimiko v. Agagu (supra); Fayemi v. Oni (supra) and Aregbesola v. Oyinloloa (2011) 9 NWLR (Pt. 1253) 458 @ 555-556.
2.11. The Tribunal rather on its own accord descended into the arena by striking out Paragraphs 15, 16, 17, 18, 19, 22, 24, 25 & 33 of the Petition on the ground that the Appellants had abandoned them and then went further to hold that there was election in Six Wards of Yakurr Local Government Area and that there was evidence before it that election was held in these Six Wards of Yakurr Local Government Area.
2.12. On the contrary to the lower Tribunal’s findings, there was unchallenged and uncontroverted evidence that election did not hold in Six Wards of Yakurr Local Government namely: Mkpani/Agoi Ward; Inyima Ward; Assiga Ward; Ntan Ward; Afrekpe/Epenty Ward; and Idomi Ward. See Paragraph 26 of the Statement on Oath of PW12. It is pertinent to bear in mind that the Respondents never asked the witness questions concerning the veracity and completeness of paragraph 26 of the Statement on Oath of PW12!
2.13. Yet the Tribunal rather than evaluating the evidence of PW12 impetuously took umbrage under a submission made by the Appellants in Paragraph 4.3 of the Final Written Address to come to the conclusion that election took place in Yakurr Local Government in accordance with the provisions of the Electoral Act and the Manual for the Conduct of Election. It goes without saying that if the Tribunal had dispassionately and objectively evaluated the evidence given by PW12 and other witnesses called by the Appellants and placed it alongside the evidence elicited by the Respondents from PW12 during cross-examination, it would not have come to the conclusion that election held in Yakurr Local Government.
2.14. In any event, the Respondents had no evidence to put on their side of the mythical scale of justice. The Tribunal rather regrettably attempted to use the Written Address of the Respondents to fill in the gap when the Tribunal ought to have discountenanced the Written Address of the Respondents because of their election not to call evidence.
2.15. Where a party has elected not to call evidence he is not entitled to formulate issues in his Written Address. Such a party can only file a Reply on points of Law to the Final Written Address of the Plaintiff. See DINGYADI V. WAMAKO (2008) 17 NWLR (PT. 1116) 395.
2.16. In AREGBESOLA V. OYINLOLA (supra) @ 598, paras. C-E, the Court held thus:
“A party that has abandoned his pleadings cannot formulate issue for consideration. Such issue has nothing to hang on. Where a defendant abandons his pleadings, he is taken as having admitted the allegations against him in the statement of claim. In the instant case, the 4th-1365th and 1366th and 1367th Respondents having abandoned their pleadings could not formulate any issue”.
2.17. It is trite that for a Trial Court or Tribunal to successfully arrive at a reasonable decision, it must study, analyse and evaluate the entire gamut of evidence placed before it. It is the primary function of a trial Court or Tribunal to evaluate evidence and ascribe probative value to it since it saw, heard and assessed the witnesses. Where the complaint on appeal is that the trial Court failed to evaluate the evidence before it, the appellate is duty bound to specify the evidence which the trial Court failed to evaluate. See AHMED V. ADAMU (2008) 3 LRECN 193 @ 198.
2.18. Undoubtedly the finding of fact that election held in Yakurr Local Government was misleading and perverse. We humbly invite the Court to set it aside.
2.19. There was absolutely no evidence for the Tribunal to make such finding of fact. It is settled that where a trial Court makes a finding of fact that is not supported by evidence the appellate Court must interfere with such findings and set it aside. See ACTION CONGRESS V. MANZO (2008) 3 LRECN 73 @ 77.
2.20. It is well settled that the evaluation and ascription of probative value to duly admitted evidence is the prerogative of the trial Court which had the opportunity of seeing, observing and hearing the witnesses. An appellate Court which did see or hear witnesses nor observe their demeanour in the witness box should be reluctant to interfere with the decision of the trial Court or Tribunal founded on facts unless such decision is unreasonable, perverse or not supported by evidence. See UKPO V. NGAJI (2008) 3 LRECN 505 @ 514.
2.21. The lower Tribunal was supposed to be impartial and independent and detached from favouring either of the parties. The Tribunal ought to have made a finding on the request or invitation made by the Appellants on the severance of pleadings but the Tribunal rather than say whether or not it was conceding to the request and invitation of the Appellants jumped the gun (with due respect) by promptly striking out paragraphs of the Petition uninvited.
2.22. It is submitted that justice is supposed to be even handed and the Tribunal failed in its duty to be even handed to either parties by promptly descending into the arena and striking out the paragraphs of the petition without first resolving the invitation which was put before it by the Appellants, on the excuse that Counsel to the Appellants had submitted it was abandoning these paragraphs.
2.23. Counsel’s submission that it was abandoning these paragraphs of the Petition was woven to the invitation to the Tribunal that it invoked the principle of severance of pleadings which was subtly declined by the Tribunal and therefore it was against the canons of fairness for the Tribunal to turn round and hinge its decision to strike out these paragraphs on the submission of Counsel that it was abandoning these paragraphs when the expectation by the Appellants was that the Tribunal would accede to its invitation to invoke the principle of severance of pleadings.
2.24. After the Tribunal had struck out these paragraphs it promptly held that election was conducted in Six Wards of Yakurr Local Government Area without even making an effort to call on the Appellants to address it on the implication of striking out these paragraphs even though it had declined the invitation made by the Appellants that it should invoke the principle of severance of pleadings to strip the criminal allegations from the civil ones.
2.25. It was totally unfair for the Tribunal to promptly descend into the arena and strike out paragraphs of the Petition without saying whether or not it had invoked the principle of severance of pleadings and making a finding thereto but rather quickly making a finding that election was held in the Six Wards of Yakurr Local Government Area.
2.26. The Tribunal impinged on the right of fair hearing of the Appellants as cognisable and guaranteed by Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) because no effort was made to hear the Appellants on the implication of abandonment of these paragraphs based on their Counsel invitation to the Tribunal to invoke the principle of severance of pleadings (even after the Tribunal decline the invitation). The decline by the Tribunal to grant the invitation of the Appellants to invoke the principle of severance of pleadings invariably means that the Tribunal had declined the invitation of the Appellants abandon any paragraph.
2.27. It is sad that the Tribunal would decline the invitation of the Appellants and then turn round to promptly strike out portions of the paragraphs of the Petition and even include paragraph (paragraph 32) which was not included, on the ground that the Appellants had abandoned it. Is this a deliberate omission or mistake?
2.28. It is therefore submitted that the Tribunal’s omission occasioned a miscarriage of justice on the Appellants and should be set aside by this Court.
2.29. It is submitted that the error or mistake made by the Tribunal of and including paragraph 32 of the Petition which was not included in the paragraphs of the Petition that Counsel to the Appellants in paragraph 4.3 of the Appellants Final Written Address said should be treated as abandoned in the event that the Tribunal invoked the principle of severance of pleadings was a fundamental one to warrant its being struck out which should lead to the reversal the judgment.
2.30. It is submitted that for an error or mistake of a Court of trial to result in reversal of its judgment it must be such that it has caused a miscarriage of justice to the party complaining.
2.31. Undoubtedly the Appellants have shown evidence that they suffered miscarriage of justice as a result of the muddling up of the facts by the Tribunal.
2.32. The Tribunal also failed to evaluate the evidence of PW1, PW2-PW6, PW7, PW8, PW9, PW10 and PW11. What the Tribunal did was simply to attempt to appraise the evidence from the Appellants own side without placing it side to side with the evidence called by the Respondents. In any case there was no evidence from the other side. The effort by the Tribunal to use evidence supposedly elicited from the witnesses of the Appellants to fill the yawning gap left by the Respondents failure to call evidence is totally misplaced.
2.33. It is well settled that review of evidence is a narration in precise form of the material evidence adduced by each party to a case in support of its pleadings. It is the review that all available evidence in the case, that is, the pieces of evidence adduced by both parties to the dispute are evaluated. All the evidence is supposed to be put on the imaginary scale of justice so that the trial Court can determine in whose favour the evidence preponderates. See AREGBESOLA V. OYINOLA (supra) 606, paras. B-H.
2.34. In the light of the above, we humbly invite the Court to resolve Issue No. 2 in favour of the Appellants against the Respondents.
ARGUMENT OF ISSUE NO. 3
3.1. The Appellants had alleged in Paragraphs 28 & 32 of the Petitions that voting did not take place in both Abi/Yakurr Local Government Areas of Cross River State which make up the Abi/Yakurr Federal Constituency. See page 5 & 6 of the record.
3.2. To buttress the allegation in Paragraphs 28 & 32 of the Petition, the Appellants called 12 witnesses including the 1st Appellant who testified as PW12.
3.3. However the Tribunal held that the Appellants failed to prove the allegation that voting did not take place in Abi Local Government Area.
3.4. On the contrary there was compelling evidence that the Appellants through PW 4, 5, 6, 7 & 12 proved that election did not hold in Abi Local Government Area.
3.5. The Tribunal relied on the cases of AUDU VS INEC (NO. 2) (2007) 13 NWLR (PT. 1212) 456 @ 522-523, CHIME V. ONYIA (2009) 2 NWLR (PT. 1124) 1 @ 42 and AYOGU V. NNAMANI (2006) 8 NWLR (PT. 981) 160 @ 166 and held that these authorities are in support of the position that where a Petitioner is alleging non-voting such a Petitioner must call a voter from each Polling Unit in Abi Local Government as witness and tender their voters card that they did not vote on the day of the election.
3.6. It is submitted that the Tribunal was wrong to have relied on cases that were decided based on the Electoral Acts of 2002 and 2006 to decide the issue of whether or not there was voting in Abi Local Government Area which was conducted based on the provisions of the Electoral Act, 2010 (as amended) and the Manual for Electoral Officials 2011 under which elections for 2003 and 2007 on which these cases were decided was conducted. See Section 53 of the Electoral Act, 2002; See the Manual for Election Officials, 2002. See also Section 53 of the Electoral Act, 2006. See the Manual for Election Officials, 2006. See Paragraphs 2 and 23 of Schedule 4 to the National Assembly (Basic Constitutional and Transitional Provisions) Decree 5 of 1999.
3.7. It is clear that the procedure for voting under the 2002; 2006 and 2010 Electoral Acts are markedly different. It was therefore wrong for the Tribunal to have relied on these cases to resolve the issue whether or not there was voting because the Appellants did not call witnesses who tendered their voters card to establish that no voting took place.
3.8. It is clear that under the provision of the Electoral Act, 2010 there is no procedure where a voter who intends to vote in an election presents his card for punching by the Polling Clerk to indicate that such a voter has voted in the election.
3.9. Under the Electoral Act, 2010 (as amended)) voting is regulated by Section 50 subsections 1 & 2 thereof. For the purpose of clarity it is necessary to reproduce Section 50 subsections 1 & 2 of the Electoral Act (supra) thus:
“(1) Every person intending to vote shall present himself to a Presiding Officer at the polling unit in the constituency in which his name is registered with his voter’s card.
(2) The Presiding Officer shall, on being satisfied that the name of the person is on the Register of Voters, issue him a ballot paper and indicate on the Register that the person has voted”.
3.10. It is also clear that the Manual for Election Officials, 2011 introduced a fundamental shift from previous elections conducted with the 2002 & 2006 Electoral Acts. Under the 2010 Electoral Act and the Manual, accreditation was separated from voting. Under the 2002 and 2006 Electoral Acts under which the cases of AUDU VS INEC (NO. 2) (2007) 13 NWLR (PT. 1212) 456 @ 522-523, CHIME V. ONYIA (2009) 2 NWLR (PT. 1124) 1 @ 42 and AYOGU V. NNAMANI (2006) 8 NWLR (PT. 981) 160 @ 166 were decided, voting and accreditation was done contemporaneously. It follows that under the previous Electoral Acts, once there is evidence of accreditation a voter is deemed to have voted.
3.11. However, under the 2010 Electoral Act, a voter could be accredited yet fail to come back to vote during the time for voting. Under the present dispensation a voter goes to a Polling Station, he presents his voter’s card and the Presiding Officer would collect it, look into the register to see if the photo in the card, name and Voter Identification Number (VIN) of such a voter corresponds with the details of such a voter in the voters’ register for the Polling Unit. Thereafter the Presiding Officer would tick (to the left of the name of the voter, if the person’s name is on the register of voters) to go and come back during the period set aside for voting.
3.12. The procedure for accreditation of voters is elaborately outlined in Chapter 3 paragraphs 3.1 & 3.2, Steps 1, 2, 3 & 4 at Page 21 of the Manual for Election Officials, 2011. It is instructive that the Manual for Election Officials was tendered through PW12 and admitted in evidence by the Tribunal as Exhibit 14. See page 782 of the record.
3.13. Section 73 of the Electoral Act, 2010, which empowers the Independent National Electoral Commission to make guidelines for the elections which shall make provisions, among other things, for the step by step recording of the poll in the Electoral Forms as may be prescribed. See AJADI V. AJIBOLA (2004) 16 NWLR (PT. 898) 91 @ 170. Where it was held that “The guidelines must be strictly construed and followed by electoral officials in the process and procedure for the elections”.
3.14. Regrettably the Tribunal failed to understand and appreciate the fact that the procedure for accreditation and voting under the 2010 Electoral Act and the Manual for Election Officials has fundamentally changed from the previous positions in the 2002 and 2006 Electoral Acts respectively under which these cases it relied on were decided. The Appellants in their Final Written Address made this point in Paragraphs 4.22, 4.23 and 4.24 but the Tribunal in its one side approach to the determination of the Petition before it, failed to consider this point but rather elected to agree with the submission made by the Respondents. See Page 796 of the record.
3.15. The Appellants in their bid to prove the allegation of non–voting tendered Voters Registers for these Wards in Abi Local Government Area which shows how accreditation as envisaged by Section 53 (1) & (2) of the Electoral Act and Chapter Three of the Manual For Election Officials (supra) but the Tribunal refused to examine these registers on the ground that they were dumped on the Tribunal. See page 856 of the record.
3.16. In the words of the Tribunal at Page 13 of the Judgment found at Page 856 of the record, the Tribunal noted “At pages 7 and 8 of the Petitioners’ Final Address, however, learned counsel to the Petitioners made frantic efforts to tie the bundles of documents he had tendered from the Bar after the close of the case for the Petitioners to the allegations to which they seem to relate in the Petition consisting of Voters Registers for Abi and Yakurr Local Government, election results in Form EC8A, EC8B, EC8C, EC8D and EC8C. Since none of the witnesses demonstrated the essence for which these documents were tendered and they were tied, so to say, to the testimonies of the witnesses to show that the each and every one of them have any nexus with any aspect(s) of the Petition it is fatal to the Petition”.
3.17. Indeed this finding of fact concerning how documents were received in evidence is not borne out of what transpired in Court. This finding is unsupportable by evidence. It is therefore perverse. These documents which the Tribunal alluded to in the quoted passage of its Judgment were tendered through PW12 not by Counsel from the Bar. See Page 775-783 of the record which unequivocally established that the Voters Register for Abi and Yakurr Local Government were tendered through PW12 not by Counsel from the Bar as suggested by the Tribunal.
3.18. It seems that the Tribunal failed to appreciate the essence of front loading of evidence which is provided under Paragraph 4 (1) (b) of the First Schedule to the Electoral Act for it to take the position that the Appellants failed to relate or tie the Voters Registers tendered through PW12 to any aspect (s) of the Petition. Under the front loading system a witness is not allowed to lead oral evidence or even to give evidence after adoption of his Witness Statement on Oath and documents that had been tendered through him in order to tie such documents to any aspect of his case. See Paragraph 41 (3) of the First Schedule to the Electoral Act (supra). See AREGBESOLA V. OYINLOLA (supra) 564-565.
3.19. The refusal of the Tribunal to examine documents which were relevant and admissible led to a miscarriage of justice on the Appellants because if the Tribunal had take the pain to dispassionately and objectively examine these Voters Registers, it would have seen that the procedure prescribed under Section 53 (1) & (2) of the Electoral Act and the Manual were not followed in respect of accreditation.
3.20. The Tribunal failed to appreciate the point that election petition litigation normally revolves around documentary evidence which it is bound to examine when tendered and admitted in evidence during trial. See AREGBESOLA V. OYINLOLA (201) 9 NWLR (PT. 1253) 458 @ 511.
3.21. It is instructive to note that these Voters Registers which the Appellants had tendered to prove that there was non-voting were tendered through PW12 who was not cross-examined on these documents by the Respondents.
3.22. The position of the Tribunal that voters from all these Wards in Abi Local Government Area where the Appellants alleged that voting did not take place would have been called to tender and give evidence of non-voting is not tenable because the Electoral Act under which the election was conducted did not envisage that non-voting can be established by mere production of a voter’s card.
3.23. It is clear that tendering of voters card would have established nothing because there is nothing on the voter’s card which would have established whether or not such holder of the card voted in the absence of the voters register of the Polling Units where such a voters presented himself for accreditation and the Presiding Officer ticked to the left of the name of the voter, if the person’s name is on the register of voters. See Chapter 3, paragraph 3.2, Steps 4 & 5 of Page 22 of the Manual for Election Officials, 2011. See also Chapter 3, paragraph 3.3, steps 1, 2, 3 & 4 of the Manual for Election Officials, 2011.
3.24. The Tribunal in its one sided approach went to great lengths to analyse the evidence called by the Appellants to prove non-voting in order to contradict it based on the Written Address of the Respondents even though the Respondents had failed to call evidence to rebut the evidence called by the Appellants on non-voting in these Wards in Abi Local Government Area.
3.25. The Tribunal simply failed to use or employ the accepted yardstick which normally guides a trial Court or Tribunal in evaluation of evidence. The evidence called by the Appellants was never put into the imaginary balance of scale which the Tribunal had a duty to construct in order to put the evidence received from both parties during trial to enable it ascertain on which side of the divide it preponderates. See AREGBESOLA V. OYINLOLA (supra) pages 607, paras. A-F, where Ogunbiyi, JCA in similar circumstances illuminated the position of the law thus:
“If the tribunal had constructed an imaginary scale, as it was supposed to have done, the said respondents would have had no evidence on their side of the scale. In effect, the scale would have preponderated in favour of the appellants, against these said respondents on the question of the non-conduct of the election in accordance with the Act”.
3.26. It is submitted that where a complaint of improper evaluation of evidence is made an appellate Court is obliged to find out the following thus: (a) What was the evidence before the Court; (b) Whether it accepted or rejected any evidence upon the correct perceptions; (c) Whether it correctly approached the assessment of the evidence before it and placed the right probative value to it; (c) Whether it used the imaginary scale of justice to weigh the evidence on either side; (e) Whether it appreciated upon preponderance of evidence which side the scale weighed having regards to the burden of proof. See AREGBESOLA V. OYINLOLA (supra) page 599 - 600.
3.27. Most importantly, the Respondents failed to call evidence to rebut the evidence on non-voting called by the Appellants. The position of the Law which is well established is that a defendant who does not give evidence either in support of pleading or in challenge of the evidence of the plaintiff must be assumed to have accepted the facts adduced by the plaintiff, notwithstanding the general traverse. Such defendant is deemed to have admitted the facts presented by the plaintiff. See AREGBESOLA V. OYINLOLA (supra) 597-598, where Court held that the 4th and 1367th respondents have abandoned their pleadings, they cannot be heard, in the circumstances to contradict by their argument what the appellants have proved.
3.28. This is precisely what the Tribunal did by accepting the submission of the 2nd & 3rd Respondents that PW5 and PW6, PW2 failed to establish non conduct of election. We submit that the Respondents cannot by argument contradict the issue of non-voting in Abi Local Government after they failed to call evidence to challenge the evidence called by the Appellants to prove that fact.
3.29. In any event, the Tribunal was even wrong to have relied on the Written Address or on issues formulated by the Respondents who did not call any evidence. The position of the law is settled that in an election litigation where the Respondents fails to call evidence but rested their case on that of the Petitioner they cannot be entitled to formulate issues during address stage.
3.30. It is pertinent to reproduce a portion of the Judgment in page 11 of the Judgment at Page 854 of the record, where the Tribunal noted thus:
”we accept the submission of the learned counsel to the 2nd and 3rd Respondents that both PW5 and PW6 have failed to prove non conduct of election in these areas just like PW4 has failed to prove in Imabana 1 and Imabana 2...”
3.31. The position taken by the Tribunal that PW5 was not one of the Polling Agents of the Appellants during the election as a result his testimony was not to be believed is untenable in Law. See Page 854 of the record. It is submitted that there is no law that supports the position of the Tribunal that only a Polling Agent can be called to give evidence of what transpired in a Polling Unit on Election Day.
3.32. The witnesses PW2, PW3, PW4, PW5 and PW6) were members of the 2nd Appellant who were assigned the responsibility to monitor election on the day of the election. There was no evidence from the side of the Respondents that they did not monitor the election. It is settled that anybody can qualify as competent witness upon satisfying the conditions laid down in Sections 126 & 175 (1) of the Evidence Act, 2011. See AREGBESOLA V. OYINLOLA (supra) at page 575-576, paras. G-A. See LASUN V. AWOYEMI (2009) 16 NWLR (PT. 1168) 513.
3.33. A witness in a case is required to give evidence of what he personally saw, did or discovered and such a witness must not necessarily be a Polling Agent in election litigation. See AREGBESOLA V. OYINLOLOA (supra) 610 - 611.
3.34. Indeed after calling PW2, PW3, PW5, PW6 and tendering of Voters Registers for Abi Local Government Area, the onus of proof shifted to the Respondents to establish evidence that election took place and such burden cannot be satisfied through mere cross examination of these witnesses who were not at all discredited. See UKPO V IMOKE (2009) 1 NWLR (PT. 1121) 261. This position of the law was further illuminated by Ogunbiyi, JCA in AREGBESOLA V. OYINLOLA (supra) at pages 595-596, paras. F-C:
“The petitioners/appellants, it was resolved earlier in this judgment led evidence both (oral and documentary) in proof of the said allegations in the paragraphs and the effect which was to shift the onus of proof to INEC and which same was not discharged. The case of Ukpo V. Imoke supra is in support. It is relevant to further restate that the purpose of grounding the respondents arguments, in rendering worthless the evidence by the appellants witnesses, same cannot be brought within the case of Akanmode v. Dino supra. This is in the absence of effectively challenging the appellants witness 5D as to render their evidence naught. It is also clear on record and as earlier stated that most of the appellants witnesses were not cross examined and even those who were, their credibility was never challenged. The cross examination did not in anyway elicit any evidence in support of the averments in the said respondents’ Briefs. A mere cross examination is not enough to satisfy the arguments by the learned respondents counsel, contrary to the submission by their learned counsel...”.
3.35. In the light of the above, we humbly urge the Court to resolve this issue in favour of the Appellants against the Respondents and hold that the Appellants had by credible evidence established that election was not conducted in Abi Local Government Area.
ARGUMENT OF ISSUE NO. 4
4.1. The Appellants tendered several documents in order to prove their case that the election was not conducted in accordance with the provisions of the Electoral Act. These documents were admitted by the Tribunal and accordingly marked. See pages 775-778.
4.2. The documents were mostly Voters Registers for Abi and Yakurr Federal Constituency used to conduct the election. The other documents were Forms EC8A series for the various Polling Units in which results collated were recorded.
4.3. The documents were tendered through PW12. The Respondents failed to effectively cross-examined PW12 in respect of these documents. The documents were tendered after the adoption of the Written Statement on Oath of PW12.
4.4. However the Tribunal refused to evaluate these documents on the ground that they were dumped on the Tribunal and that the Appellants failed to establish a nexus between these documents and various aspects of their case. See pages 856-857 of the record. See also page 13 of the Judgment of the Tribunal at page 856 of the record.
4.5. It is submitted that there are two types of evidence, oral and documentary. See Section 105 of the Evidence Act, 2011. Once a document is received in evidence, and is so marked, it becomes evidence before the Court or Tribunal and the Court or Tribunal has the duty to evaluate the probative value of every piece of evidence tendered before it. See AWUSE v. ODILI (2005) 16 NWLR (Pt. 952) 416. See INEC V. COMRADE ADAMS ALIYU OSHIOMOLE (2008) 3 LRECN 649 @ 657.
4.6. The position of the law is that documentary evidence is more reliable than oral evidence. See AKINBISADE v. STATE (2006) 17 NWLR (Pt. 984) 47; See AIKI v. MOWN (2006) 9 NWLR (Pt. 984) 47. See INEC V. COMRADE ADAMS ALIYU OSHIOMOLE, (supra) 658.
4.7. It is submitted where documentary evidence supports oral testimony such oral testimony becomes more credible as documentary evidence serves as a hanger on which to assess oral testimony. See INEC V. COMRADE ADAMS ALIYU OSHIOMOLE, (supra) 659.
4.8. It is submitted that the reason given by the Tribunal at page 13 of its Judgment and at page 856 of the record that the documents were tendered from the Bar by Counsel as basis for refusal to evaluate is untenable; Exhibit 12 (1) – 12 (10); Exhibit 4 (1) - 4 (7); Exhibit 6 (1) – 6 (19); Exhibit 7 (1) – 7 (3); Exhibit 8 (1) - 8 (4); Exhibit 9 (1) – 9 (7); Exhibit 13 (1) - 13 (10); Exhibit 11 (1) -11 (6) were all tendered through PW12 and the Respondents cross examined the witness. See pages 784 of the record.
4.9. The finding of the Tribunal that the documents were tendered from the Bar by Counsel is not based on evidence received by the Tribunal. The evidence on the record shows clearly that the documents were tendered through PW12 and that he was cross examined on them. See pages 775 - 778 of the record.
4.10. The documents were even identified by PW12 before they were tendered. We are therefore at a loss on what the Tribunal meant by the Appellants not showing a nexus or not tying each and every one of these documents to any aspect of the Petition (which was another reason the Tribunal gave for its refusal to examine, analysis and evaluate the documents). See page 856 - 857 of the record.
4.11. The Tribunal failed to appreciate the fact that under the front loading system a witness is only allowed to enter the witness and adopt his previously filed Statement on Oath as his evidence and tender documents which he had made references to in his statement or referred to in his deposition.
4.12. Paragraph 41 (3) of the First Schedule to the Electoral Act (supra) provide thus:
“There shall be no oral examination of a witness during his evidence-in-chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the deposition”.
4.13. In the Statement on Oath of PW12, he made references to these documents. PW12 identified these documents after his adoption of his statement before they were tendered. PW12 was also cross examined on these documents by the adverse side (Respondents).
4.14. Despite the fact that these exhibits were tendered through PW12 and was cross examined the Tribunal held that they were dumped on it and therefore would not look at them.
4.15. It is submitted that the refusal of the Tribunal to examine these exhibits on the ground that they were dumped on it tantamount to shirking from its responsibility and duty to evaluate these documents which are relevant to the determination of the questions the Tribunal had been invited to resolve which is whether the election was conducted in compliance with the provisions of the Electoral Act.
4.16. The Tribunal simply failed to appreciate the essence of front load of evidence introduced by Paragraph 4 (1) (b) and 41 (3) of the First Schedule to the Electoral Act. In similar circumstances in the case of AREGBESOLA V. OYINLOLA (supra) page 564-565, paras. D-E illuminated on the status of witness deposition adopted at trial thus:
“By virtue of paragraphs 1 (1) (b), 4 (1) and (3) of the Practice Directions to the Electoral Act, 2006, it is provided that all petitions to be presented before the tribunal or court shall be accompanied by written statements on oath of the witnesses. Subject to any statutory provisions of these paragraphs relating to evidence, any fact required to be proved at the hearing of a petition shall be proved by written deposition and oral examination of witnesses in open court. There shall be no oral examination of a witness during his evidence in chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents and other exhibits referred to in the deposition. The use of the word “shall” in the provision makes compliance with it compulsory. Thus, facts receivable in evidence by witness statements and viva voce examination of witnesses. After leading a witness to adopt his statement, he can then be cross examined and re-examined viva voce. In the instant case, the tribunal did not advert its mind for the purpose of appreciating the front loading procedure of written statements on oath provided in the Practice Direction”.
4.17. It is instructive that paragraphs 1 (1) (b), 4 (1) and (3) of the Practice Direction to the Electoral Act, 2006 under which the case of AREGBESOLA V. OYINLOLOA (supra) was decided is impari materia to paragraph 41 (1) (2) & (3) of the First Schedule to the Electoral Act (supra).
4.18. Despite the fact that the Tribunal refused to evaluate Exhibit 12 (1) – 12 (10); Exhibit 4 (1) - 4 (7); Exhibit 6 (1) – 6 (19); Exhibit 7 (1) – 7 (3); Exhibit 8 (1) – 8 (4); Exhibit 9 (1) - 9 (7); Exhibit 13 (1) - 13 (10) and Exhibit 11 (1) – 11 (6) in a massive volte face turned around to hold that the production of Forms EC8A, EC8B, EC8C, EC8D and EC8E (which was replete with alterations/mutilations; unsigned by Presiding Officers etc and which were tendered by the Appellants to establish there was substantial non-compliance with the Electoral Act and Manual) were unfortunately what the Tribunal held amounted to evidence that the election was conducted in accordance with the provisions of the Electoral Act. Also, these Forms were among the documents that the Tribunal had ignored and refused to evaluate on the ground that they were dumped on it and that they were not tied or linked to any aspect of the Petition. See Page 8 of the Judgment at Page 851 of the record.
4.19. It is clear that this glaring acts of inconsistency by the Tribunal or lopsided way of evaluating the evidence received in favour of the Respondents against the Appellants and or blowing hot and cold confirms the fact that the Tribunal was one sided in its appraisal of evidence received. See AREGBESOLA V. OYINLOLA (supra).
4.20. In the light of the above, we humbly invite the Court to resolve this issue in favour of the Appellants and agaist the Respondents.
ARGUMENTS OF ISSUE NO. 5
5.1. One of the highlight of the Judgment is the holding by the Tribunal that the 1st Respondent was validly returned as the winner of the election despite the fact that the 1st Respondent failed to call evidence and tender his Certificate of Return issued to him by the 2nd Respondent as conclusive evidence that the 1st Respondent won the election.
5.2. Section 73 (1) of the Electoral Act (supra) provides that a sealed Certificate of Return shall be issued to every candidate who has won an election within seven days under the Act. For the avoidance of any doubt, it is pertinent to reproduce Section 73 (1) of the Electoral Act thus:
“A sealed Certificate of Return at an election in a prescribed form shall be issued within 7 days to every candidate who has won an election under this Act: Provided that where the Court of Appeal or the Supreme Court being the final Appellate Court in any election petition as the case may be nullifies the Certificate of Return of any candidate, the Commission shall within 48 hours after the receipt of the order of such Court issue the successful candidate with a valid Certificate of Return”.
5.3. It is therefore submitted that by Section 73 (1) of the Electoral Act, the issuance of a Certificate of Return is the only evidence that a candidate has won an election. It follows that it is incumbent on the 1st Respondent to tender his Certificate of return after the Appellants had challenged his return, especially as the Tribunal is bound to determine on the challenge of the return of a Respondent whether or not such a Respondent was validly returned.
5.4. It is submitted that where at the end of an election, a winner is duly issued a Certificate of Return as duly elected as in FORM EC8E (I) by the Electoral body, it confirms the validity and conclusiveness of the election. The Form is to show that the person has been duly elected. See OTUNBA V. AWOBAJO (199) 7 NWLR (Pt. 610) 335.
5.5. It is only after the Certificate of Return has been tendered by a Respondent who held out to have won the election that the presumption of the correctness, validity and conclusiveness of the election can inure in favour of the Respondent. It is further submitted that it only after the Certificate of Return has been tendered that the burden of proof shifts to the Petitioner to rebut that presumption. See INEC V. ONYIMBAH RAY (204) NWLR (PT. 892) 130 @ 132.
5.6. By the provisions of paragraph 28 (1) of the First Schedule to the Electoral Act which provides thus:
“At the conclusion of the hearing, the Tribunal shall determine whether a person whose election or return is complained of or any other person, and what person, was validly returned or elected, or whether the election was void, and shall certify the determination to the Resident Electoral Commissioner or the Commission”.
5.7. The Tribunal glossed over the fact that it was entitled to determine whether the 1st Respondent was validly returned by holding that the issue of the failure of the 1st Respondent to tender his Certificate of return was not made an issue in the pleadings. We submit with due respect that this issue is implied from the pleadings of the Appellants and the Appellants legitimately raised and canvassed argument in support thereto. The Tribunal cannot just parry it the way it did it.
5.8. In UKPO V. IMOKE (supra) the 1st Respondent failed to tender Forms EC8 series and Form EC8E(i) (Certificate of Return) during trial and the Court of Appeal held that it was mandatory that he tendered such forms in the face of the challenge to his return as Governor of Cross River State of Nigeria in the election conducted on the 14th April, 2007.
5.9. It follows that the decline by the Tribunal to consider and pronounce on the failure of the 1st Respondent to tender Form EC8E (i) on the ground that it had no jurisdiction is with respect not tenable because the Tribunal is vested with power to determine whether or not a respondent whose return has been challenged was validly returned by the provisions of paragraph 28 (1) of the First Schedule to the Electoral Act.
5.10. It is well settled that where a law prescribes a procedure or venue or method of commencement of a particular type of proceedings, anything done contrary thereto would be set aside. See UDEAGHARA V. OMEGARA (2010) 1 NWLR (PT. 1204) 168 @ 181.
5.11. The use of the word shall by the legislature of Section 73 (1) of the Electoral Act makes it imperative or obligatory for the electoral body that conducted the election to issue the Certificate of Return to the 1st Respondent.
5.12. It therefore follows that the failure of the 1st Respondent to produce his Certificate of Return leads to irresistible conclusion that he was not issued with it and that he was not validly elected or returned.
5.13. In the light of the above, we urge the Court respectfully to resolve this issue in favour of the Appellants and hold that the 1st Respondent was not validly returned or elected.
ARGUMENT OF ISSUE NO. 6
6.1. It is submitted with respect that considering the state of pleadings in the Petition; the evidence placed before the Court by the Appellants; and the refusal of the Respondents to call evidence to rebut the evidence called by the Appellants, the lower Tribunal ought to have entered Judgment in favour of the Appellants.
6.2. The arguments canvassed in support of issues 1, 2, 3 , 4 & 5 above are equally relevant in this regard and are adopted as part of the submissions in support of this Issue (No. 6) for determination.
6.3. It is instructive that the Respondents had made no attempt to call any evidence to rebut the evidence called by the Appellants during trial. The failure to rebut being the legal consequence of the abandoned pleadings. The trite position of the law is that incomplete traverse, generalized or evasive denials, coupled with failure to call evidence in support of or at variance with pleaded facts, rendered the pleadings of the Respondents abandoned and to no issue at all. Respondents had admitted the allegations.
6.4. Again, since the Respondents failed to call evidence to rebut the burden that had shifted to them after the Appellants had discharged theirs (even if by minimal proof) there was no other evidence from the Respondents for the lower Court to have used to evaluate and weigh the total evidence to be placed on the preponderance scale? This question was answered by the Court of Appeal in the case of IGBEKE V. EMORDI (2010) 1 NWLR (PT. 1204) 1 @ 13-14. It held that it was the Respondent who asserted the positive that an election was held, and not the Petitioner who asserted the negative that it was not, that bore the burden of calling witnesses and producing all the Forms EC25, Forms EC8A, B, C, D and E series to prove distribution of materials and holding of the election. See the cases of Prince Ebitimi Amgbare & Anor v. Chief J. Sylva & Ors (2009) 1 NWLR (Pt. 1121) 1 at 61, 73, & 85; Felix O. Osawaru v. Simeon Ezeiruka (1978) 6-7 SC 135 at 145; Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410 at 423, per Nnaemeka-Agu JSC; See Reynolds construction Co. Ltd. V. Okwejiminor (2001) 15 NWLR (Pt. 735) 87 at 98. See Hilary & Ors v. M/V Mahtra & Ors. (supra); Calabar Central Co-operative Thrift & Credit Society Ltd. & Ors v. Bassey Ebong Ekpo (2008) 6 NWLR (Pt. 1083) 362 at 395, (2008) 4 SC 17 at 39.
6.5. The kernel of the Petition of the Appellants was hinged on the fact that there was non-voting in Abi and Yakurr Local Government Area that constitutes the Abi/Yakurr Federal Constituency.
6.6. The position of the Law is that where a Petition alleges non-voting the Respondents, especially the conductor of the election (2nd Respondent) has the responsibility of the production of Form EC25A to show that election materials were distributed and that election held.
6.7. It is clear that after the capitulation of the Respondents the prop or linchpin upon which the Respondents would have hung their defence collapsed and they consequently abandoned their pleadings and called no witnesses.
6.8. We know that by virtue of Section 136 of the Evidence Act the burden lies on the Petitioner to establish that the election was not conducted in compliance with the provisions of the Electoral Act, however, after the testimony of the 12 Witnesses discharged that burden, proof on the preponderance of evidence was no longer required as the Respondents failed to call any evidence. The burden required by law of the Appellants became minimal proof.
6.9. It is well settled that the burden of proof is never static. In the instant case where the Appellants had called evidence showing substantial non compliance with the provisions of the Electoral Act, the burden shifted to the Respondent to establish that there was compliance. See FAYEMI V. ONI (2009) 7 NWLR (PT. 1140) 223 @ 280-290.
6.10. The Respondents failed to discharge this burden. The Tribunal ought to have found for the Appellants if it had objectively and dispassionately examined the evidence put forward by the Appellants which the Respondents had no answer to and the position of the law on this point.
6.11. The presumption of regularity of result declared by INEC envisaged by Section 150 (1) of the Evidence Act is rebutted where INEC fails to show that non compliance such as non accreditation and non supply of electoral materials did not substantially affect the result of the election. See IGEBEKE V. EMORDI (2010) 1 NWLR (PT. 1204) 1 @ 13-14.
6.12. The Respondents cannot rely on the evidence elicited through cross examination on periphery issues to claim that they do not need to call evidence to rebut the evidence called by the Appellants when all the Appellants needed after the Respondents abandoned their pleadings to prove their case was minimal evidence.
6.13. It is submitted that the Tribunal completely and totally misapplied out of context the case of AKOMOLAFE V. GUARDIAN PRESS LTD (2010) 3 NWLR (PT. 1181) 338 @ 351 to hold that where a defendant has elicited or extracted evidence through cross examination sufficient to his pleadings he cannot be said to have abandoned his pleadings. The facts and circumstances of that case are not the same with the facts of the case under reference. Most importantly the Akomolafe’s case was not an Election Petition Case. See Page 15 of the Judgment at Page 858 of the record.
6.14. The Tribunal did not state which evidence the Respondents extracted from the witnesses of the Appellants that was sufficient to rebut the case of the Appellants in view of the oral and documentary evidence called by the Appellants which effectively shifted the burden placed on the Appellants to the Respondents and also in the face of the plethora of cases on election petition litigation on the situation where a Respondent fails to call evidence. See AREGBESOLA V. OYINLOLA (supra) 595-596, paras. F-C.
6.15. The attempt made by the Tribunal to evaluate the evidence called by the Appellants even though the Respondents called no evidence was totally against the grains of the principle on the evaluation of evidence that required a Court or Tribunal to construct an imaginary scale of balance and put into each side of the scale evidence produced by both parties in order to determine which side of the balance the evidence is weightier. There was no need to carry out such evaluation of the evidence where the Respondents had no evidence. The Appellants had proved its case by deduction of minimal evidence no more any less. See AREGBESOLA V. OYINLOLA (supra) 599 @ 600 paras. F-A; See AREGBESOLA V. OYINLOLA (supra) 566, paras. B-F where the Court stated that for evidence to be properly evaluated by a trial Court, it must be balanced. The two sides must be given equal opportunity to put their cards on the table on equal footing without one side being shut out.
6.16. It follows that where the adverse side called no evidence the Court cannot embark on evaluation of evidence. In such circumstances the Court is entitled to enter Judgment for the side that call minimal evidence in support of its case.
6.17. In the light of the above, we respectfully invite the Court to resolve this issue in favour of the Appellants.
ARGUMENT OF ISSUE NO. 7
7.1. The Tribunal was wrong when it dismissed and discountenanced the submissions and analysis of the Appellants’ Counsel on the documentary evidence and stated that it goes to no issue.
7.2. The Tribunal infringed on the right of fair hearing of the Appellants by refusing to consider and pronounce on the submission and analysis on documentary evidence received by the Tribunal during trial. The Tribunal was bound to consider the analyses made by Counsel based on documentary evidence that had been admitted in evidence. The refusal of the Tribunal on the ground that these documents were merely dumped on the Tribunal and did not relate to any aspect of the Petition was an erroneous finding that was not hinged on evidence had and received by the Tribunal. See UKPAI V. OKORO (1981-1990) LRECN 50 where the Supreme Court held, on breach of the principles of fair hearing enshrined in the Constitution, thus:
“It is a serious breach of the rules of natural justice, the High Court Rules and the provisions of the Electoral Act, 1982 and the principles of fair hearing enshrined in the Constitution for the High Court in the instant case to proceed to judgment without hearing evidence, when issues have been joined by the Parties. There can be no valid judgment without hearing and considering evidence on such issues.”
7.3. In the first place the documents were not tendered by Counsel from the Bar but through PW12 after the adoption of his Written Statement on Oath and after his identification of the documents. PW12 was subjected to vigorous cross-examination on these documents.
7.4. Counsel was therefore right to analyse these documents and urge the Court to make findings based on his submission.
7.5. In INEC V. OSHIOMHOLE (supra), It was held that charts prepared by Counsel based on his analyses of documentary evidence that had been tendered in Court can be looked into by the Court.
7.6. The Tribunal was bound to consider the analyses made by Counsel on documentary evidence which it has received. This documentary evidence was tendered through PW12 who was cross examined by the Respondents.
7.7. The Tribunal failed to appreciate that the analysis was supposed to assist it come to a fair and just decision in the case. The one sided approach of the Tribunal resulted in a serious miscarriage of justice on the Appellants.
7.8. The Tribunal infringed on the right to fair hearing of the Appellants by rejecting an analysis which was based on the case put forward by the Appellants during trial.
7.9. In the light of the above we urge the Court to resolve this issue in favour of the Appellants.
CONCLUSION
This Honourable Court is respectfully invited to find in favour of the Appellants and allow this appeal and grant the reliefs because of the reasons which have been painstakingly and comprehensively explained in all the issues raised and canvassed by the Appellants and additionally thus:
i. The Respondents abandoned their case and capitulated to the case of the Appellants when they refused to call evidence and rather rested their case on that of the Appellants.
ii. The Tribunal was wrong to have descended into the arena to strike out paragraphs of the Petition and held that election was conducted in Yakurr Local Government in compliance with the provisions of the Electoral Act on the ground that the Appellants had abandoned them by the submission of their Counsel in the Final Written Address when he invited the Tribunal to invoke the principle of severance of pleadings because the Tribunal had refused the invitation.
iii. The Appellants had through oral and documentary evidence proved that there was no voting in Abi Local Government and the Respondents, who refused to call evidence, cannot use their written address to attack the case of the Appellants (particularly as borne out by the documentary evidence) on the issue of non-voting. The Tribunal was therefore wrong to attempt to evaluate the evidence called by the Appellants on this issue when there was no evidence on the side of the Respondents.
iv. The Tribunal was wrong to have refused to examine, analyse and evaluate the documentary evidence that was tendered through PW12 who was cross examined on them by the Respondents. The position taken by the Tribunal that documents were dumped on the Tribunal by Counsel who tendered them from the Bar is wrong because the documents were tendered through PW12 after he adopted his Statement on Oath. The purpose of the documents was fully explained in the evidence in chief of PW12.
v. The Tribunal was wrong to have held that the 1st Respondent was validly elected in view of the failure of the 1st Respondent to tender his Certificate of Return which was the only conclusive evidence of the genuineness and correctness of his declaration as the winner for the presumption that he won the election to inure in favour of the 1st Respondent.
TABLE OF DECIDED CASES RELIED ON BY THE APPELLANTS
1. NA’UMBA VS NA’UMBA (2008) 31 LRECN 278 @ 287
2. EGBUNIKE VS ACB (supra)
3. BALOGUN VS UBA NIG. LTD. (2007) 5 NWLR (PT 1028) 584 @ 602
4. AGAGU VS MIMIKO (2009) 7 NWLR (PT 1140) 342 @ 386
5. BALOGUN VS. UBA (1992) 6 NWLR (PT 247) 366
6. EGBUNIKE VS. ACB (1995) 2 NWLR (PT.375) 34.
7. Ogbeide v. Osula (2004) 12 NWLR (Pt. 886) 86 at 94
8. NA’UMBA V. NA’UMBA (2008) 3 LRECN 279 @ 282
9. IMANA V. ROBINSON (1979) 3-4 SC 197
10. ONIFADE V.OYEDEMI (1999) 5 NWLR (PT. 601) 54.
11. Akin Omoboriwo v. Ajasin
12. Mimiko v. Agagu
13. Fayemi v. Oni
14. Aregbesola v. Oyinlola (2011)NWLR (Pt. 1253) 458 @ 555- 556.
15. DINGYADI V. WAMAKO (2008) 17 NWLR (PT. 1116) 395.
16. AHMED V. ADAMU (2008) 3 LRECN 193 @ 198.
17. ACTION CONGRESS V. MANZO (2008) 3 LRECN 73 @ 77.
18. UKPO V. NGAJI (2008) 3 LRECN 505 @ 514.
19. AUDU VS INEC (NO. 2) (2007) 13 NWLR (PT. 1212) 456 @ 522-523
20. CHIME V. ONYIA (2009) 2 NWLR (PT. 1124) 1 @ 42
21. AYOGU V. NNAMANI (2006) 8 NWLR (PT. 981) 160 @ 166
22. CHIME V. ONYIA (2009) 2 NWLR (PT. 1124) 1 @ 42
23. AYOGU V. NNAMANI (2006) 8 NWLR (PT. 981) 160 @ 166
24. AJADI V. AJIBOLA (2004) 16 NWLR (PT. 898) 91 @ 170.
25. LASUN V. AWOYEMI (2009) 16 NWLR (PT. 1168) 513.
26. UKPO V IMOKE (2009) 1 NWLR (PT. 1121) 261.
27. AWUSE v. ODILI (2005) 16 NWLR (Pt. 952) 416.
28. INEC V. COMRADE ADAMS ALIYU OSHIOMOLE (2008) 3 LRECN 649 @ 657.
29. AKINBISADE v. STATE (2006) 17 NWLR (Pt. 984) 47
30. AIKI v. MOWN (2006) 9 NWLR (Pt. 984) 47.
31. OTUNBA V. AWOBAJO (199) 7 NWLR (Pt. 610) 335.
32. INEC V. ONYIMBAH RAY (204) NWLR (PT. 892) 130 @ 132.
33. UDEAGHARA V. OMEGARA (2010) 1 NWLR (PT. 1204) 168 @ 181.
34. IGBEKE V. EMORDI (2010) 1 NWLR (PT. 1204) 1 @ 13-14.
35. Prince Ebitimi Amgbare & Anor v. Chief J. Sylva & Ors (2009) 1 NWLR (Pt. 1121) 1 at 61, 73, & 85
36. Felix O. Osawaru v. Simeon Ezeiruka (1978) 6-7 SC 135 at 145;
37. Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410 at 423
38. Reynolds construction Co. Ltd. V. Okwejiminor (2001) 15 NWLR (Pt. 735) 87
39. Hilary & Ors v. M/V Mahtra & Ors. (supra)
40. Calabar Central Co-operative Thrift & Credit Society Ltd. & Ors v. Bassey Ebong Ekpo (2008) 6 NWLR (Pt. 1083) 362 at 395, (2008) 4 SCM 17 at 39.
41. FAYEMI V. ONI (2009) 7 NWLR (PT. 1140) 223 @ 280-290.
42. IGEBEKE V. EMORDI (2010) 1 NWLR (PT. 1204) 1 @ 13-14.
43. AKOMOLAFE V. GUARDIAN PRESS LTD (2010) 3 NWLR (PT. 1181) 338 @ 351
44. UKPAI V. OKORO (1981-1990) LRECN 50
TABLE OF STATUTES CITED AND RELIED ON BY THE APPELLANTS
1. ELECTORAL ACT, 2002
2. ELECTORAL ACT, 2006
3. MANUAL FOR ELECTION OFFICIALS, 2003
4. MANUAL FOR ELECTION OFFICIALS, 2007
5. ELECTORAL ACT, 2010 (AS AMENDED)
6. MANUAL FOR ELECTION OFFICIALS, 2011
7. CONSTITUTION OF THE FRN, 1999 (AS AMENDED)
8. EVIDENCE ACT, 2011
DATED THIS 29TH DAY OF NOVEMBER, 2011.
CHIEF OKOI O. OBONO-OBLA
OBONO, OBONO & ASSOCIATES
(APPELLANT’S SOLICITORS)
2ND FLOOR, TRINITY HOUSE,
MABUSHI, ABUJA, NIGERIA.
OR
NO.1 EJIKA LANE, LETAMPANKOM,
IJIMAN, UGEP, YAKURR LOCAL
GOVERNMENT AREA,
CROSS RIVER STATE.
ADDRESS FOR SERVICE:
1. ON THE 1ST RESPONDENT
C/O HONOURABLE BASSEY EKO EWA
EKORINIM, CALABAR, CRS, NIGERIA
2. ON THE 2ND & 3RD RESPONDENTS
C/O THE RESIDENT ELECTORAL COMMISSIONER
INDEPENDENT NATIONAL ELECTORAL COMMISSIONER
INEC HEAD OFFICE, 81 MURTALA MOHAMMED HIGHWAY
CALABAR.
3. ON THE 4TH RESPONDENT
C/O THE STATE SECRETARY
PEOPLES DEMOCRATIC PARTY
PDP STATE SECRETARIAT, MURTALA MOHAMMED HIGHWAY
CALABAR, CROSS RIVER STATE, NIGERIA.
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
PETITION NO.EPT/CR/NA/9/2011
BETWEEN:
1. ENO EKAPONG OFEM
2. ACTION CONGRESS OF NIGERIA APPELLANTS
AND
1. HON. BASSEY EKO EWA
2. INDEPENDENT NATIONAL ELECTORAL RESPONDENTS
COMMISSION
3. RESIDENT ELECTORAL COMMISSIONER
CROSS RIVER STATE
4. PEOPLES DEMOCRATIC PARTY
THE APPELLANTS BRIEF OF ARGUMENT
PREPARED BY:
OBOL OKOI O. OBONO-OBLA
OBONO, OBONO & ASSOCIATES
LEGAL PRACTITIONERS & CONSULTANTS
(APPELLANTS’ SOLICITORS)
TRINITY HOUSE (2ND FLOOR), MABUSHI,
FEDERAL CAPITAL TERRITORY, ABUJA.
IN THE COURT OF APPEAL OF THE FEDERAL REPUBLIC OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
PETITION NO.EPT/CR/NA/9/2011
BETWEEN:
1. ENO EKAPONG OFEM
2. ACTION CONGRESS OF NIGERIA APPELLANTS
AND
1. HON. BASSEY EKO EWA
2. INDEPENDENT NATIONAL ELECTORAL RESPONDENTS
COMMISSION
3. RESIDENT ELECTORAL COMMISSIONER
CROSS RIVER STATE
4. PEOPLES DEMOCRATIC PARTY
INTRODUCTION
This is an appeal against the Judgment of the National and State Assembly Election Petition Tribunal sitting in Calabar, Cross River State of Nigeria delivered on the 4th November, 2011, dismissing the Petition filed against the return of the 1st Respondent as the winner of the Abi/Yakurr Federal Constituency election held on the 26th April, 2011. The Appellants were utterly aggrieved by the Judgment of the Tribunal and filed a Notice of Appeal on the 15th November, 2011.
STATEMENT OF FACTS
I. Election was held into the Abi/Yakurr Federal Constituency of Cross River State of Nigeria for the seat of the House of Representatives on Saturday the 26th April, 2011. The 1st Appellant was sponsored by the 2nd Appellant, Action Congress of Nigeria.
II. The 1st Respondent contested the election under the aegis of the 4th Respondent. At the conclusion of the election the 3rd Respondent announced or declared the 1st Respondent as the winner of the said election.
III. The 1st Appellant was deeply aggrieved with the return of the 1st Respondent as the winner of the Petition, thus the 1st Appellant presented a Petition before the National and State Assemblies Election Petition Tribunal on the 17th day of May 2011.
IV. After the service of the Petition on the Respondents, the Respondents filed their Replies to the Petition.
V. At the Pre-trial Session the 1st Respondent raised a Preliminary Objection to certain paragraphs of the Petition and the Tribunal sustained the objection by striking out the offensive paragraphs of the Petition.
VI. At the hearing of the Petition, the Appellants called 12 witnesses and tendered a number of documentary evidence.
VII. The Respondents did not call evidence but rested their case on that of the Petitioners.
VIII. The Tribunal in its Judgment on the 4th November, 2011, dismissed the Petition as lacking in merit and declared the 1st Respondent as duly elected despite the fact that the 1st Respondent did not tender his Certificate of Return to establish that he was validly declared the winner of the election.
IX. The Appellants have lodged Nine (9) Grounds of Appeal against the Judgment of the lower Tribunal.
ISSSUES FOR DETERMINATION
The issues that call for the determination of the Court as framed from the Grounds of Appeal are as follows:
1. What is the standard of proof required by the Appellants in an Election Petition where the Respondents elects not to call evidence to disprove or dispel the evidence called by the Petitioner, regard being had to the facts and circumstances of this case?
2. Can a Tribunal which had failed to invoke the principle of severance of pleadings urged upon it by the Appellants as regards the Criminal aspects of the Petition, descend into the arena to strike out paragraphs of the Petition on the ground that the Appellants had submitted that they were abandoning these paragraphs of the Petition?
3. Whether the Tribunal was right when it held that where a Appellant (Petitioner) makes allegation of non-voting he must necessarily call evidence of voters who did not vote in the election to prove his case?
4. Whether the Tribunal was not bound to evaluate documentary evidence tendered through PW12 on the ground that such documentary evidence was merely dumped on the Tribunal; and whether the failure has not resulted in a miscarriage of justice against the Appellants?
5. Whether the Tribunal was correct when it held that the 1st Respondent was validly elected and the fact that he did not tender his Certificate of Return was not an issue that was raise in the pleadings of the Appellants?
6. Whether the Appellants were not entitled to Judgment regard being had to the facts and circumstances of this case?
7. Whether the failure and or refusal of the Tribunal to consider the address and analysis of examination of documentary evidence did not occasion a miscarriage of justice on the Appellants?
ARGUMENT OF ISSUE NO 1
1.1. One of the highlights of the Petition was that at the end of the close of the case of the Appellants, the Respondents unanimously elected not to call evidence but to rest their cases on that of the Appellants.
1.2. The position of the Law is well settled that where a party fails to call evidence in support of its pleadings, it is deemed that it has abandoned that portion of its pleadings. See AGAGU V. MIMIKO (2009) 7 NWLR (PT. 114) 342 @ 370; See also LANTO V. WOWO (1999) 4 LRECN 360, para. A; ADENEKAN V. AJAYI (1998) LRECN 142, para. A.
1.3. The consequence of the failure of the Respondents to call evidence is that they have abandoned their pleadings and admitted the case of the Appellants. Consequently, they are deemed to have admitted the facts pleaded by the Petitioner and the evidence led to support the pleadings thereby making the Petitioner’s case unchallenged. See NA’UMBA VS NA’UMBA (2008) 31 LRECN 278 @ 287, Okoro JCA stated:
“It is the practice and by the Rules of litigation, parties are bound by their pleadings. Pleadings which are not supported by evidence whatsoever, go to no issue. Again, where there is no evidence led in support of any pleadings, then the pleading is deemed abandoned.”
See also EGBUNIKE VS ACB (supra); BALOGUN VS EOCB NIG. LTD. (2007) 5 NWLR (PT 1028) 584 @ 602.
1.4. The implication of the election by the Respondents not to call evidence is that they have abandoned their pleadings and conceded to the case of the Appellants. In other words, the implication of the failure by the Respondents to call evidence is that there is absolutely no evidence to be placed on the mythical side of the scale of balance of the Respondents by the Tribunal to enable it evaluate the evidence received at trial and decide on which side it preponderates.
1.5. It is submitted that another grave implication of the failure of the Respondents to call evidence (but resting their cases on that of the Appellants) is that the Appellants who are ordinarily required to prove their cases by preponderance of evidence are discharged from that burden and foisted with the burden of minimal proof. In this wise, the Appellants are require to prove their case by deduction of minimal evidence. See AGAGU VS MIMIKO (2009) 7 NWLR (PT 1140) 342 @ 386, para F-G:
‘In such circumstance, the law does not require proof of impliedly admitted facts and where proof is even required, only a minimal evidence would be necessary to ground the claim. See also BALOGUN VS. UBA (1992) 6 NWLR (PT 247) 366 and EGBUNIKE VS. ACB (1995) 2 NWLR (PT.375) 34.’
1.6. It must noted that although election Petitions are in a class of their own or sui generis, the general rules or principles of pleadings which apply to ordinary civil actions are also applicable with necessary modification mutatis mutandis but with equal force especially as regard the filing of Petitions and Reply thereto. See Ogbeide v. Osula (2004) 12 NWLR (Pt. 886) 86 at 94.
1.7. However, in a case where the other side fails to call evidence available for the Court to put on the proverbial balance of scale, the Plaintiff is only required to prove his case by production of minimal evidence.
1.8. In Broadline V. Monterey (supra) Page 21, the Supreme Court elucidated the law thus:
”So, too, where the Defendant offered no evidence, the Plaintiff’s evidence before the Court under such circumstances clearly goes one way with no evidence to be placed on the other side of the proverbial imaginary balance as against such evidence given by or on behalf of the Plaintiff. The onus of proof in such a case is discharged on minimal of proof".
1.9. However in this case the Appellants even exceeded the burden placed on them to call minimal evidence. The Appellant went on to prove their case by preponderance of evidence.
1.10. It is clear that the testimony of PW12 was not challenged or shaken during cross examination. The evidence of PW12 proved the case of the Appellants because the Respondents failed woefully to demolish the evidence-in-chief of PW12. The Respondents’ perfunctorily cross-examined PW12 on peripheral issues which did not effectively shake the foundation of the case of the Appellants.
1.11. The position of the Law is settled that where the evidence called by a party is not shaken during cross examination, the Court is entitled to deem such evidence as having been established.
1.12. The evidence adduced by the Appellants through PW12 proved the case of the Appellants that the election was not conducted in compliance with the provisions of the Electoral Act. See pages 12-16 of the record. See particularly paragraphs 9, 10, 11, 12, 13, 14, 16, 26, 27, 28. 29 & 30 of the Statement on Oath of PW12 at pages 13-16 of the record of appeal.
1.13. A Perusal of the record will glaringly show that the Respondents in their determination and frenzy not to open their flanks, failed woefully and spectacularly to effectively and effectually cross-examine PW12. See Pages 782 - 784 of the record.
1.14. The evidence of PW12 that was particularly telling, compelling and pointed were as follows:
“In some Local Government, Wards and Polling Units votes were merely allocated without the conduct of election as provided by the Electoral Act and the guidelines issued by the 2nd respondent. The fact of allocation of votes is deductible from Forms EC8A, EC8B, EC8C, EC8D & EC8E which are replete with errors and irreconcilable figures which would not have been if elections held.
PARTICULARS OF ERROR IN FORMS EC8 SERIES:
(i) Omission of the names of political parties that were on the ballot.
(ii) Number of votes cast being more than persons accredited to vote.
(iii) Number of votes being more than registered voters.
(iv) Figures entered in Forms EC8B being at variance with figures in FormEC8A.
(v) Inclusion in result sheets of political parties that were not on the ballot papers.
(vi) In order to harmonise the allocated figures the result sheets were badly mutilated.
(vii) Procedure provided by Manual for conduct of election could not be complied with as evidenced in the Forms.
(viii) Lack of evidence that after accreditation voters queued up to vote.
(ix) Unstamped and unsigned sheets.
The Appellants in the Petition made allegation of non-voting in several Wards that make up Abi/Yakurr Federal Constituency and substantial non compliance with the provisions of the Electoral Act. In order to prove these allegations the Appellants tendered Exhibit 4 (1) - (7); Exhibit 6 (1) - (19); Exhibit 7 (1) - (3); Exhibit 8 (1)-(4); Exhibit 9 (1) - (7) through PW12 who was not cross-examined. See pages 775-777 of the record. These Exhibits were Voters’ Registers for Afrekpe/Epenti, Mkpani/Agoi, Assiga, Idomi, Ntan Wards of Yakurr Local Government Area where the Appellants had given evidence that there was no voting. It is clear that if the Tribunal had taken the pain to evaluate these exhibits they would have shown that the Voters Registers were not ticked, which goes to prove the allegation by the Appellants as shown in the testimony of PW12 that there was no voting in several Wards which these exhibits covered.
The Appellants made allegation of the fact that Form EC8A in many Polling Units were not stamped and signed as provided by the provisions of Section 63 (1) & (2) of the Electoral Act. The position of the law is well settled that a result sheet that is unsigned is completely worthless and cannot be of any probative value. See SOWEMIMO V. AWOBAJO (1999) 3 NWLR (PT.595) 387.
Again these Forms EC8A were tendered through PW12 who was not cross-examined on them. It is therefore submitted that the failure of the Respondents to cross-examine PW12 on his evidence in chief vis a vis Forms EC8A has proved the allegation made by the Appellants that these Forms were not stamped and signed or that there were several alterations or mutilation on them that confirms the allegation that votes were merely allocated to candidates that contested the election has been proved.
Apart from PW12, the Appellants called other 11 witnesses to prove its case. The Respondents failed to call any witness. The Respondents rather abandoned their pleadings and rested their cases on that of the Appellants.
1.15. It is submitted that the Tribunal was therefore totally wrong to still have insisted that the Appellants had a high burden of proof even after the Respondents refused to rebut the evidence called by the Appellants.
1.16. The Respondents had a burden or duty to produce their evidence to counter-weigh or counter the evidence brought by the Appellants so that the Tribunal would have something to put in the Respondents side of the balance of scale to enable it weigh which side of the scale the evidence received by it preponderates.
1.17. The law is well settled that that where a party does not testify, the burden of proof placed on the other party is minimal particularly where the Court holds the evidence adduced to be credible. See NA’UMBA V. NA’UMBA (2008) 3 LRECN 279 @ 282; IMANA V. ROBINSON (1979) 3-4 SC 197 and ONIFADE V.OYEDEMI (1999) 5 NWLR (PT. 601) 54.
1.18. In AREGBESOLA V. OYINLOLA (supra) page 597, paras. A-E, the Court illuminated thus:
“Where issues are joined on any averment in the pleading but no evidence is led to support such averment, the result is that such averment in the pleadings is either to be struck out or be dismissed. Such averment can be treated as having been abandoned. An abandoned pleading is dead to the procedural disadvantage of the owner. The effectual preposition is that issues are no longer joined because the being nature of the pleadings can no longer speak through the language of a witness. The consequential outcome is that there will be ....... at all on record on which the ... issues are no longer denied because there is no denial. In the instant case INEC, offered no evidence whatsoever that there was substantial compliance with the Electoral Act and the votes accredited to the 1st-3rd Respondents were not unlawful votes”.
1.19. The position taken by the Tribunal that the Respondents used the case of the Appellants to build its case is not tenable. In the first place the Tribunal lost sight of the fact that the case was an election Petition, which is sui generis. In election cases, it is well settled that the principles of law that ordinarily apply in ordinary civil cases do not apply in election cases.
1.20. In any case the Tribunal failed to highlight in its judgment which aspects or cases of the Respondents that the Respondents used that of the Appellants to build. The 2nd Respondent, that is the conductor of the election, maintained an ominous and studied silence in the face of the evidence produced by the Appellants which undermined the integrity of the election and which required the 2nd Respondent to call/produce evidence to rebut the allegation concerning the conduct of the election. For instance, it is well settled that where a Petitioner makes allegation of non conduct of election, the 2nd Respondent has a duty to produce evidence that election was conducted by showing the distribution of electoral materials through the tendering of Form EC25.
1.21. It is submitted that the Appellants had proved their case and the Tribunal was wrong not to have found in favour of the Appellants. The Appellants were only required by law to prove their case minimally after the Respondents capitulated by not calling evidence but rested their case on that of the Appellants.
1.22. In the light of the above, we humbly invite the Court to resolve Issue No. 1 in favour of the Appellants against the Respondents.
ARGUMENT OF ISSUE NO. 2
2.1. The Appellants in their Final Written Address had invited the Tribunal to invoke the principle of severance of pleadings and severe the criminal allegations made in the Petition from the civil ones. See Paragraphs 4.3 & 4.4 of Page 788 of the record.
2.2. The Tribunal did not honour the invitation of the Appellants but declined it. See Page 847 of the record. It is pertinent to quote from the Judgment of the lower Tribunal in Page 847 of the record thus:
“Paragraphs 15, 16, 17, 18, 19, 22, 24, 25 & 33 of the Petition are abandoned as in Paragraph 4.6 of the Petitioners Final address it is conceded that from the state of the pleadings and cross examination, the Petitioners are not able to prove that election did not hold in the 6 Wards of Yakurr Local Government as averred in the Petition. Accordingly we hereby strike out the abandoned Paragraphs of the Petition relating to the allegations that election did not hold in Yakurr Local Government Area and hold that election held thereat in compliance with the provisions of the Electoral Act, 2011, and Manual for conduct of the Election”.
2.3. It is clear that the Tribunal from the above descended into the arena and got its vision blurred and beclouded to the extent that it got entangled, muddled and made findings that are plainly perverse and out of tune with the pleadings and evidence led. It is curious that the Tribunal without applying the principle of severance of pleadings which Counsel to the Appellants in Paragraph 4.3 of the Appellants Final Written Address urged upon it, went ahead, descended into the arena and struck out Paragraphs of the Petition and came to the conclusion that election held in Yakurr Local Government Area in compliance with the provisions of the Electoral Act.
2.4. It is clear that there is nothing in these paragraphs concerning the fact that election took place in Yakurr Local Government as found by the Tribunal. We are completely at a loss how the Tribunal came to this conclusion and finding that that election took place in the entire Yakurr Local Government based on the submission made by the Appellants in Paragraph 4.6 of their Final Written Address.
2.5. It is clear as the crystal ball that the finding by the Tribunal is not borne out of evidence received by the Tribunal. It is therefore erroneous and perverse and this Court as an Appellate Court has the power to disturb such finding and set it aside.
2.6. Indeed it is in Paragraph 32 that the Appellants pleaded that election did not hold. For the avoidance of doubt it is necessary to reproduce Paragraph 32 of the Petition thus:
“Election did not hold at Mkpani/Agoi Ward, Inyima Ward, Assiga Ward, Ntan Ward, Afrekpe/Epenty and Idomi. Election materials in these Wards were taken to places other than Polling Units and massively thumb printed and stuffed in ballot boxes”. See Paragraph 32 Page 6 of the record.
2.7. It is clear that paragraph 32 of the Petition was never among the paragraphs of the Petition the Appellants had submitted that the Tribunal should deem abandoned in the event that the principle of severance that the Appellants had invited the Tribunal in Paragraphs 4.3 & 4.4 of the Final Written Address is sustained.
2.8. However the Tribunal in its frenzy to descend into the arena got muddled up and brought in Paragraph 32 of the Petition and that resulted in a serious miscarriage of justice because it was in the process of this muddle and perverse finding that the Tribunal came to the conclusion that election in Yakurr Local Government was conducted in compliance with the provisions of the Electoral Act and the Manual for conduct of election.
2.9. It is clear the Counsel to the Appellants did not make any application in Paragraph 4.6 of the Final Written Address that it was abandoning Paragraphs 15, 16, 17, 18, 19, 22, 24, 25 & 33 of the Petition. See Page 847 of the record. It follows that the finding by the lower Tribunal that the Appellants in Paragraph 4.6 of their Final Written Address made such application is perverse and should be set aside by this Court in the exercise of its appellate jurisdiction. It is well settled that an Appellate Court has the jurisdiction to set aside a finding of facts by a trial Court that is not borne out of evidence received by the Court.
2.10. This is evident that the Tribunal maintained a studied silence in its judgment on the invitation extended to it by the Appellants. In other words there is no finding by the Tribunal in its judgment whether or not it agreed with the invitation extended to it by the Appellants for it to invoke the principle of severance of pleadings in election Petition litigation as enunciated by the Supreme Court in the cases of Akin Omoboriwo v. Ajasin (1984) 1 SCNLR 108; (1991-1992) ALL NLR 537 and this Court in Mimiko v. Agagu (supra); Fayemi v. Oni (supra) and Aregbesola v. Oyinloloa (2011) 9 NWLR (Pt. 1253) 458 @ 555-556.
2.11. The Tribunal rather on its own accord descended into the arena by striking out Paragraphs 15, 16, 17, 18, 19, 22, 24, 25 & 33 of the Petition on the ground that the Appellants had abandoned them and then went further to hold that there was election in Six Wards of Yakurr Local Government Area and that there was evidence before it that election was held in these Six Wards of Yakurr Local Government Area.
2.12. On the contrary to the lower Tribunal’s findings, there was unchallenged and uncontroverted evidence that election did not hold in Six Wards of Yakurr Local Government namely: Mkpani/Agoi Ward; Inyima Ward; Assiga Ward; Ntan Ward; Afrekpe/Epenty Ward; and Idomi Ward. See Paragraph 26 of the Statement on Oath of PW12. It is pertinent to bear in mind that the Respondents never asked the witness questions concerning the veracity and completeness of paragraph 26 of the Statement on Oath of PW12!
2.13. Yet the Tribunal rather than evaluating the evidence of PW12 impetuously took umbrage under a submission made by the Appellants in Paragraph 4.3 of the Final Written Address to come to the conclusion that election took place in Yakurr Local Government in accordance with the provisions of the Electoral Act and the Manual for the Conduct of Election. It goes without saying that if the Tribunal had dispassionately and objectively evaluated the evidence given by PW12 and other witnesses called by the Appellants and placed it alongside the evidence elicited by the Respondents from PW12 during cross-examination, it would not have come to the conclusion that election held in Yakurr Local Government.
2.14. In any event, the Respondents had no evidence to put on their side of the mythical scale of justice. The Tribunal rather regrettably attempted to use the Written Address of the Respondents to fill in the gap when the Tribunal ought to have discountenanced the Written Address of the Respondents because of their election not to call evidence.
2.15. Where a party has elected not to call evidence he is not entitled to formulate issues in his Written Address. Such a party can only file a Reply on points of Law to the Final Written Address of the Plaintiff. See DINGYADI V. WAMAKO (2008) 17 NWLR (PT. 1116) 395.
2.16. In AREGBESOLA V. OYINLOLA (supra) @ 598, paras. C-E, the Court held thus:
“A party that has abandoned his pleadings cannot formulate issue for consideration. Such issue has nothing to hang on. Where a defendant abandons his pleadings, he is taken as having admitted the allegations against him in the statement of claim. In the instant case, the 4th-1365th and 1366th and 1367th Respondents having abandoned their pleadings could not formulate any issue”.
2.17. It is trite that for a Trial Court or Tribunal to successfully arrive at a reasonable decision, it must study, analyse and evaluate the entire gamut of evidence placed before it. It is the primary function of a trial Court or Tribunal to evaluate evidence and ascribe probative value to it since it saw, heard and assessed the witnesses. Where the complaint on appeal is that the trial Court failed to evaluate the evidence before it, the appellate is duty bound to specify the evidence which the trial Court failed to evaluate. See AHMED V. ADAMU (2008) 3 LRECN 193 @ 198.
2.18. Undoubtedly the finding of fact that election held in Yakurr Local Government was misleading and perverse. We humbly invite the Court to set it aside.
2.19. There was absolutely no evidence for the Tribunal to make such finding of fact. It is settled that where a trial Court makes a finding of fact that is not supported by evidence the appellate Court must interfere with such findings and set it aside. See ACTION CONGRESS V. MANZO (2008) 3 LRECN 73 @ 77.
2.20. It is well settled that the evaluation and ascription of probative value to duly admitted evidence is the prerogative of the trial Court which had the opportunity of seeing, observing and hearing the witnesses. An appellate Court which did see or hear witnesses nor observe their demeanour in the witness box should be reluctant to interfere with the decision of the trial Court or Tribunal founded on facts unless such decision is unreasonable, perverse or not supported by evidence. See UKPO V. NGAJI (2008) 3 LRECN 505 @ 514.
2.21. The lower Tribunal was supposed to be impartial and independent and detached from favouring either of the parties. The Tribunal ought to have made a finding on the request or invitation made by the Appellants on the severance of pleadings but the Tribunal rather than say whether or not it was conceding to the request and invitation of the Appellants jumped the gun (with due respect) by promptly striking out paragraphs of the Petition uninvited.
2.22. It is submitted that justice is supposed to be even handed and the Tribunal failed in its duty to be even handed to either parties by promptly descending into the arena and striking out the paragraphs of the petition without first resolving the invitation which was put before it by the Appellants, on the excuse that Counsel to the Appellants had submitted it was abandoning these paragraphs.
2.23. Counsel’s submission that it was abandoning these paragraphs of the Petition was woven to the invitation to the Tribunal that it invoked the principle of severance of pleadings which was subtly declined by the Tribunal and therefore it was against the canons of fairness for the Tribunal to turn round and hinge its decision to strike out these paragraphs on the submission of Counsel that it was abandoning these paragraphs when the expectation by the Appellants was that the Tribunal would accede to its invitation to invoke the principle of severance of pleadings.
2.24. After the Tribunal had struck out these paragraphs it promptly held that election was conducted in Six Wards of Yakurr Local Government Area without even making an effort to call on the Appellants to address it on the implication of striking out these paragraphs even though it had declined the invitation made by the Appellants that it should invoke the principle of severance of pleadings to strip the criminal allegations from the civil ones.
2.25. It was totally unfair for the Tribunal to promptly descend into the arena and strike out paragraphs of the Petition without saying whether or not it had invoked the principle of severance of pleadings and making a finding thereto but rather quickly making a finding that election was held in the Six Wards of Yakurr Local Government Area.
2.26. The Tribunal impinged on the right of fair hearing of the Appellants as cognisable and guaranteed by Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) because no effort was made to hear the Appellants on the implication of abandonment of these paragraphs based on their Counsel invitation to the Tribunal to invoke the principle of severance of pleadings (even after the Tribunal decline the invitation). The decline by the Tribunal to grant the invitation of the Appellants to invoke the principle of severance of pleadings invariably means that the Tribunal had declined the invitation of the Appellants abandon any paragraph.
2.27. It is sad that the Tribunal would decline the invitation of the Appellants and then turn round to promptly strike out portions of the paragraphs of the Petition and even include paragraph (paragraph 32) which was not included, on the ground that the Appellants had abandoned it. Is this a deliberate omission or mistake?
2.28. It is therefore submitted that the Tribunal’s omission occasioned a miscarriage of justice on the Appellants and should be set aside by this Court.
2.29. It is submitted that the error or mistake made by the Tribunal of and including paragraph 32 of the Petition which was not included in the paragraphs of the Petition that Counsel to the Appellants in paragraph 4.3 of the Appellants Final Written Address said should be treated as abandoned in the event that the Tribunal invoked the principle of severance of pleadings was a fundamental one to warrant its being struck out which should lead to the reversal the judgment.
2.30. It is submitted that for an error or mistake of a Court of trial to result in reversal of its judgment it must be such that it has caused a miscarriage of justice to the party complaining.
2.31. Undoubtedly the Appellants have shown evidence that they suffered miscarriage of justice as a result of the muddling up of the facts by the Tribunal.
2.32. The Tribunal also failed to evaluate the evidence of PW1, PW2-PW6, PW7, PW8, PW9, PW10 and PW11. What the Tribunal did was simply to attempt to appraise the evidence from the Appellants own side without placing it side to side with the evidence called by the Respondents. In any case there was no evidence from the other side. The effort by the Tribunal to use evidence supposedly elicited from the witnesses of the Appellants to fill the yawning gap left by the Respondents failure to call evidence is totally misplaced.
2.33. It is well settled that review of evidence is a narration in precise form of the material evidence adduced by each party to a case in support of its pleadings. It is the review that all available evidence in the case, that is, the pieces of evidence adduced by both parties to the dispute are evaluated. All the evidence is supposed to be put on the imaginary scale of justice so that the trial Court can determine in whose favour the evidence preponderates. See AREGBESOLA V. OYINOLA (supra) 606, paras. B-H.
2.34. In the light of the above, we humbly invite the Court to resolve Issue No. 2 in favour of the Appellants against the Respondents.
ARGUMENT OF ISSUE NO. 3
3.1. The Appellants had alleged in Paragraphs 28 & 32 of the Petitions that voting did not take place in both Abi/Yakurr Local Government Areas of Cross River State which make up the Abi/Yakurr Federal Constituency. See page 5 & 6 of the record.
3.2. To buttress the allegation in Paragraphs 28 & 32 of the Petition, the Appellants called 12 witnesses including the 1st Appellant who testified as PW12.
3.3. However the Tribunal held that the Appellants failed to prove the allegation that voting did not take place in Abi Local Government Area.
3.4. On the contrary there was compelling evidence that the Appellants through PW 4, 5, 6, 7 & 12 proved that election did not hold in Abi Local Government Area.
3.5. The Tribunal relied on the cases of AUDU VS INEC (NO. 2) (2007) 13 NWLR (PT. 1212) 456 @ 522-523, CHIME V. ONYIA (2009) 2 NWLR (PT. 1124) 1 @ 42 and AYOGU V. NNAMANI (2006) 8 NWLR (PT. 981) 160 @ 166 and held that these authorities are in support of the position that where a Petitioner is alleging non-voting such a Petitioner must call a voter from each Polling Unit in Abi Local Government as witness and tender their voters card that they did not vote on the day of the election.
3.6. It is submitted that the Tribunal was wrong to have relied on cases that were decided based on the Electoral Acts of 2002 and 2006 to decide the issue of whether or not there was voting in Abi Local Government Area which was conducted based on the provisions of the Electoral Act, 2010 (as amended) and the Manual for Electoral Officials 2011 under which elections for 2003 and 2007 on which these cases were decided was conducted. See Section 53 of the Electoral Act, 2002; See the Manual for Election Officials, 2002. See also Section 53 of the Electoral Act, 2006. See the Manual for Election Officials, 2006. See Paragraphs 2 and 23 of Schedule 4 to the National Assembly (Basic Constitutional and Transitional Provisions) Decree 5 of 1999.
3.7. It is clear that the procedure for voting under the 2002; 2006 and 2010 Electoral Acts are markedly different. It was therefore wrong for the Tribunal to have relied on these cases to resolve the issue whether or not there was voting because the Appellants did not call witnesses who tendered their voters card to establish that no voting took place.
3.8. It is clear that under the provision of the Electoral Act, 2010 there is no procedure where a voter who intends to vote in an election presents his card for punching by the Polling Clerk to indicate that such a voter has voted in the election.
3.9. Under the Electoral Act, 2010 (as amended)) voting is regulated by Section 50 subsections 1 & 2 thereof. For the purpose of clarity it is necessary to reproduce Section 50 subsections 1 & 2 of the Electoral Act (supra) thus:
“(1) Every person intending to vote shall present himself to a Presiding Officer at the polling unit in the constituency in which his name is registered with his voter’s card.
(2) The Presiding Officer shall, on being satisfied that the name of the person is on the Register of Voters, issue him a ballot paper and indicate on the Register that the person has voted”.
3.10. It is also clear that the Manual for Election Officials, 2011 introduced a fundamental shift from previous elections conducted with the 2002 & 2006 Electoral Acts. Under the 2010 Electoral Act and the Manual, accreditation was separated from voting. Under the 2002 and 2006 Electoral Acts under which the cases of AUDU VS INEC (NO. 2) (2007) 13 NWLR (PT. 1212) 456 @ 522-523, CHIME V. ONYIA (2009) 2 NWLR (PT. 1124) 1 @ 42 and AYOGU V. NNAMANI (2006) 8 NWLR (PT. 981) 160 @ 166 were decided, voting and accreditation was done contemporaneously. It follows that under the previous Electoral Acts, once there is evidence of accreditation a voter is deemed to have voted.
3.11. However, under the 2010 Electoral Act, a voter could be accredited yet fail to come back to vote during the time for voting. Under the present dispensation a voter goes to a Polling Station, he presents his voter’s card and the Presiding Officer would collect it, look into the register to see if the photo in the card, name and Voter Identification Number (VIN) of such a voter corresponds with the details of such a voter in the voters’ register for the Polling Unit. Thereafter the Presiding Officer would tick (to the left of the name of the voter, if the person’s name is on the register of voters) to go and come back during the period set aside for voting.
3.12. The procedure for accreditation of voters is elaborately outlined in Chapter 3 paragraphs 3.1 & 3.2, Steps 1, 2, 3 & 4 at Page 21 of the Manual for Election Officials, 2011. It is instructive that the Manual for Election Officials was tendered through PW12 and admitted in evidence by the Tribunal as Exhibit 14. See page 782 of the record.
3.13. Section 73 of the Electoral Act, 2010, which empowers the Independent National Electoral Commission to make guidelines for the elections which shall make provisions, among other things, for the step by step recording of the poll in the Electoral Forms as may be prescribed. See AJADI V. AJIBOLA (2004) 16 NWLR (PT. 898) 91 @ 170. Where it was held that “The guidelines must be strictly construed and followed by electoral officials in the process and procedure for the elections”.
3.14. Regrettably the Tribunal failed to understand and appreciate the fact that the procedure for accreditation and voting under the 2010 Electoral Act and the Manual for Election Officials has fundamentally changed from the previous positions in the 2002 and 2006 Electoral Acts respectively under which these cases it relied on were decided. The Appellants in their Final Written Address made this point in Paragraphs 4.22, 4.23 and 4.24 but the Tribunal in its one side approach to the determination of the Petition before it, failed to consider this point but rather elected to agree with the submission made by the Respondents. See Page 796 of the record.
3.15. The Appellants in their bid to prove the allegation of non–voting tendered Voters Registers for these Wards in Abi Local Government Area which shows how accreditation as envisaged by Section 53 (1) & (2) of the Electoral Act and Chapter Three of the Manual For Election Officials (supra) but the Tribunal refused to examine these registers on the ground that they were dumped on the Tribunal. See page 856 of the record.
3.16. In the words of the Tribunal at Page 13 of the Judgment found at Page 856 of the record, the Tribunal noted “At pages 7 and 8 of the Petitioners’ Final Address, however, learned counsel to the Petitioners made frantic efforts to tie the bundles of documents he had tendered from the Bar after the close of the case for the Petitioners to the allegations to which they seem to relate in the Petition consisting of Voters Registers for Abi and Yakurr Local Government, election results in Form EC8A, EC8B, EC8C, EC8D and EC8C. Since none of the witnesses demonstrated the essence for which these documents were tendered and they were tied, so to say, to the testimonies of the witnesses to show that the each and every one of them have any nexus with any aspect(s) of the Petition it is fatal to the Petition”.
3.17. Indeed this finding of fact concerning how documents were received in evidence is not borne out of what transpired in Court. This finding is unsupportable by evidence. It is therefore perverse. These documents which the Tribunal alluded to in the quoted passage of its Judgment were tendered through PW12 not by Counsel from the Bar. See Page 775-783 of the record which unequivocally established that the Voters Register for Abi and Yakurr Local Government were tendered through PW12 not by Counsel from the Bar as suggested by the Tribunal.
3.18. It seems that the Tribunal failed to appreciate the essence of front loading of evidence which is provided under Paragraph 4 (1) (b) of the First Schedule to the Electoral Act for it to take the position that the Appellants failed to relate or tie the Voters Registers tendered through PW12 to any aspect (s) of the Petition. Under the front loading system a witness is not allowed to lead oral evidence or even to give evidence after adoption of his Witness Statement on Oath and documents that had been tendered through him in order to tie such documents to any aspect of his case. See Paragraph 41 (3) of the First Schedule to the Electoral Act (supra). See AREGBESOLA V. OYINLOLA (supra) 564-565.
3.19. The refusal of the Tribunal to examine documents which were relevant and admissible led to a miscarriage of justice on the Appellants because if the Tribunal had take the pain to dispassionately and objectively examine these Voters Registers, it would have seen that the procedure prescribed under Section 53 (1) & (2) of the Electoral Act and the Manual were not followed in respect of accreditation.
3.20. The Tribunal failed to appreciate the point that election petition litigation normally revolves around documentary evidence which it is bound to examine when tendered and admitted in evidence during trial. See AREGBESOLA V. OYINLOLA (201) 9 NWLR (PT. 1253) 458 @ 511.
3.21. It is instructive to note that these Voters Registers which the Appellants had tendered to prove that there was non-voting were tendered through PW12 who was not cross-examined on these documents by the Respondents.
3.22. The position of the Tribunal that voters from all these Wards in Abi Local Government Area where the Appellants alleged that voting did not take place would have been called to tender and give evidence of non-voting is not tenable because the Electoral Act under which the election was conducted did not envisage that non-voting can be established by mere production of a voter’s card.
3.23. It is clear that tendering of voters card would have established nothing because there is nothing on the voter’s card which would have established whether or not such holder of the card voted in the absence of the voters register of the Polling Units where such a voters presented himself for accreditation and the Presiding Officer ticked to the left of the name of the voter, if the person’s name is on the register of voters. See Chapter 3, paragraph 3.2, Steps 4 & 5 of Page 22 of the Manual for Election Officials, 2011. See also Chapter 3, paragraph 3.3, steps 1, 2, 3 & 4 of the Manual for Election Officials, 2011.
3.24. The Tribunal in its one sided approach went to great lengths to analyse the evidence called by the Appellants to prove non-voting in order to contradict it based on the Written Address of the Respondents even though the Respondents had failed to call evidence to rebut the evidence called by the Appellants on non-voting in these Wards in Abi Local Government Area.
3.25. The Tribunal simply failed to use or employ the accepted yardstick which normally guides a trial Court or Tribunal in evaluation of evidence. The evidence called by the Appellants was never put into the imaginary balance of scale which the Tribunal had a duty to construct in order to put the evidence received from both parties during trial to enable it ascertain on which side of the divide it preponderates. See AREGBESOLA V. OYINLOLA (supra) pages 607, paras. A-F, where Ogunbiyi, JCA in similar circumstances illuminated the position of the law thus:
“If the tribunal had constructed an imaginary scale, as it was supposed to have done, the said respondents would have had no evidence on their side of the scale. In effect, the scale would have preponderated in favour of the appellants, against these said respondents on the question of the non-conduct of the election in accordance with the Act”.
3.26. It is submitted that where a complaint of improper evaluation of evidence is made an appellate Court is obliged to find out the following thus: (a) What was the evidence before the Court; (b) Whether it accepted or rejected any evidence upon the correct perceptions; (c) Whether it correctly approached the assessment of the evidence before it and placed the right probative value to it; (c) Whether it used the imaginary scale of justice to weigh the evidence on either side; (e) Whether it appreciated upon preponderance of evidence which side the scale weighed having regards to the burden of proof. See AREGBESOLA V. OYINLOLA (supra) page 599 - 600.
3.27. Most importantly, the Respondents failed to call evidence to rebut the evidence on non-voting called by the Appellants. The position of the Law which is well established is that a defendant who does not give evidence either in support of pleading or in challenge of the evidence of the plaintiff must be assumed to have accepted the facts adduced by the plaintiff, notwithstanding the general traverse. Such defendant is deemed to have admitted the facts presented by the plaintiff. See AREGBESOLA V. OYINLOLA (supra) 597-598, where Court held that the 4th and 1367th respondents have abandoned their pleadings, they cannot be heard, in the circumstances to contradict by their argument what the appellants have proved.
3.28. This is precisely what the Tribunal did by accepting the submission of the 2nd & 3rd Respondents that PW5 and PW6, PW2 failed to establish non conduct of election. We submit that the Respondents cannot by argument contradict the issue of non-voting in Abi Local Government after they failed to call evidence to challenge the evidence called by the Appellants to prove that fact.
3.29. In any event, the Tribunal was even wrong to have relied on the Written Address or on issues formulated by the Respondents who did not call any evidence. The position of the law is settled that in an election litigation where the Respondents fails to call evidence but rested their case on that of the Petitioner they cannot be entitled to formulate issues during address stage.
3.30. It is pertinent to reproduce a portion of the Judgment in page 11 of the Judgment at Page 854 of the record, where the Tribunal noted thus:
”we accept the submission of the learned counsel to the 2nd and 3rd Respondents that both PW5 and PW6 have failed to prove non conduct of election in these areas just like PW4 has failed to prove in Imabana 1 and Imabana 2...”
3.31. The position taken by the Tribunal that PW5 was not one of the Polling Agents of the Appellants during the election as a result his testimony was not to be believed is untenable in Law. See Page 854 of the record. It is submitted that there is no law that supports the position of the Tribunal that only a Polling Agent can be called to give evidence of what transpired in a Polling Unit on Election Day.
3.32. The witnesses PW2, PW3, PW4, PW5 and PW6) were members of the 2nd Appellant who were assigned the responsibility to monitor election on the day of the election. There was no evidence from the side of the Respondents that they did not monitor the election. It is settled that anybody can qualify as competent witness upon satisfying the conditions laid down in Sections 126 & 175 (1) of the Evidence Act, 2011. See AREGBESOLA V. OYINLOLA (supra) at page 575-576, paras. G-A. See LASUN V. AWOYEMI (2009) 16 NWLR (PT. 1168) 513.
3.33. A witness in a case is required to give evidence of what he personally saw, did or discovered and such a witness must not necessarily be a Polling Agent in election litigation. See AREGBESOLA V. OYINLOLOA (supra) 610 - 611.
3.34. Indeed after calling PW2, PW3, PW5, PW6 and tendering of Voters Registers for Abi Local Government Area, the onus of proof shifted to the Respondents to establish evidence that election took place and such burden cannot be satisfied through mere cross examination of these witnesses who were not at all discredited. See UKPO V IMOKE (2009) 1 NWLR (PT. 1121) 261. This position of the law was further illuminated by Ogunbiyi, JCA in AREGBESOLA V. OYINLOLA (supra) at pages 595-596, paras. F-C:
“The petitioners/appellants, it was resolved earlier in this judgment led evidence both (oral and documentary) in proof of the said allegations in the paragraphs and the effect which was to shift the onus of proof to INEC and which same was not discharged. The case of Ukpo V. Imoke supra is in support. It is relevant to further restate that the purpose of grounding the respondents arguments, in rendering worthless the evidence by the appellants witnesses, same cannot be brought within the case of Akanmode v. Dino supra. This is in the absence of effectively challenging the appellants witness 5D as to render their evidence naught. It is also clear on record and as earlier stated that most of the appellants witnesses were not cross examined and even those who were, their credibility was never challenged. The cross examination did not in anyway elicit any evidence in support of the averments in the said respondents’ Briefs. A mere cross examination is not enough to satisfy the arguments by the learned respondents counsel, contrary to the submission by their learned counsel...”.
3.35. In the light of the above, we humbly urge the Court to resolve this issue in favour of the Appellants against the Respondents and hold that the Appellants had by credible evidence established that election was not conducted in Abi Local Government Area.
ARGUMENT OF ISSUE NO. 4
4.1. The Appellants tendered several documents in order to prove their case that the election was not conducted in accordance with the provisions of the Electoral Act. These documents were admitted by the Tribunal and accordingly marked. See pages 775-778.
4.2. The documents were mostly Voters Registers for Abi and Yakurr Federal Constituency used to conduct the election. The other documents were Forms EC8A series for the various Polling Units in which results collated were recorded.
4.3. The documents were tendered through PW12. The Respondents failed to effectively cross-examined PW12 in respect of these documents. The documents were tendered after the adoption of the Written Statement on Oath of PW12.
4.4. However the Tribunal refused to evaluate these documents on the ground that they were dumped on the Tribunal and that the Appellants failed to establish a nexus between these documents and various aspects of their case. See pages 856-857 of the record. See also page 13 of the Judgment of the Tribunal at page 856 of the record.
4.5. It is submitted that there are two types of evidence, oral and documentary. See Section 105 of the Evidence Act, 2011. Once a document is received in evidence, and is so marked, it becomes evidence before the Court or Tribunal and the Court or Tribunal has the duty to evaluate the probative value of every piece of evidence tendered before it. See AWUSE v. ODILI (2005) 16 NWLR (Pt. 952) 416. See INEC V. COMRADE ADAMS ALIYU OSHIOMOLE (2008) 3 LRECN 649 @ 657.
4.6. The position of the law is that documentary evidence is more reliable than oral evidence. See AKINBISADE v. STATE (2006) 17 NWLR (Pt. 984) 47; See AIKI v. MOWN (2006) 9 NWLR (Pt. 984) 47. See INEC V. COMRADE ADAMS ALIYU OSHIOMOLE, (supra) 658.
4.7. It is submitted where documentary evidence supports oral testimony such oral testimony becomes more credible as documentary evidence serves as a hanger on which to assess oral testimony. See INEC V. COMRADE ADAMS ALIYU OSHIOMOLE, (supra) 659.
4.8. It is submitted that the reason given by the Tribunal at page 13 of its Judgment and at page 856 of the record that the documents were tendered from the Bar by Counsel as basis for refusal to evaluate is untenable; Exhibit 12 (1) – 12 (10); Exhibit 4 (1) - 4 (7); Exhibit 6 (1) – 6 (19); Exhibit 7 (1) – 7 (3); Exhibit 8 (1) - 8 (4); Exhibit 9 (1) – 9 (7); Exhibit 13 (1) - 13 (10); Exhibit 11 (1) -11 (6) were all tendered through PW12 and the Respondents cross examined the witness. See pages 784 of the record.
4.9. The finding of the Tribunal that the documents were tendered from the Bar by Counsel is not based on evidence received by the Tribunal. The evidence on the record shows clearly that the documents were tendered through PW12 and that he was cross examined on them. See pages 775 - 778 of the record.
4.10. The documents were even identified by PW12 before they were tendered. We are therefore at a loss on what the Tribunal meant by the Appellants not showing a nexus or not tying each and every one of these documents to any aspect of the Petition (which was another reason the Tribunal gave for its refusal to examine, analysis and evaluate the documents). See page 856 - 857 of the record.
4.11. The Tribunal failed to appreciate the fact that under the front loading system a witness is only allowed to enter the witness and adopt his previously filed Statement on Oath as his evidence and tender documents which he had made references to in his statement or referred to in his deposition.
4.12. Paragraph 41 (3) of the First Schedule to the Electoral Act (supra) provide thus:
“There shall be no oral examination of a witness during his evidence-in-chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the deposition”.
4.13. In the Statement on Oath of PW12, he made references to these documents. PW12 identified these documents after his adoption of his statement before they were tendered. PW12 was also cross examined on these documents by the adverse side (Respondents).
4.14. Despite the fact that these exhibits were tendered through PW12 and was cross examined the Tribunal held that they were dumped on it and therefore would not look at them.
4.15. It is submitted that the refusal of the Tribunal to examine these exhibits on the ground that they were dumped on it tantamount to shirking from its responsibility and duty to evaluate these documents which are relevant to the determination of the questions the Tribunal had been invited to resolve which is whether the election was conducted in compliance with the provisions of the Electoral Act.
4.16. The Tribunal simply failed to appreciate the essence of front load of evidence introduced by Paragraph 4 (1) (b) and 41 (3) of the First Schedule to the Electoral Act. In similar circumstances in the case of AREGBESOLA V. OYINLOLA (supra) page 564-565, paras. D-E illuminated on the status of witness deposition adopted at trial thus:
“By virtue of paragraphs 1 (1) (b), 4 (1) and (3) of the Practice Directions to the Electoral Act, 2006, it is provided that all petitions to be presented before the tribunal or court shall be accompanied by written statements on oath of the witnesses. Subject to any statutory provisions of these paragraphs relating to evidence, any fact required to be proved at the hearing of a petition shall be proved by written deposition and oral examination of witnesses in open court. There shall be no oral examination of a witness during his evidence in chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents and other exhibits referred to in the deposition. The use of the word “shall” in the provision makes compliance with it compulsory. Thus, facts receivable in evidence by witness statements and viva voce examination of witnesses. After leading a witness to adopt his statement, he can then be cross examined and re-examined viva voce. In the instant case, the tribunal did not advert its mind for the purpose of appreciating the front loading procedure of written statements on oath provided in the Practice Direction”.
4.17. It is instructive that paragraphs 1 (1) (b), 4 (1) and (3) of the Practice Direction to the Electoral Act, 2006 under which the case of AREGBESOLA V. OYINLOLOA (supra) was decided is impari materia to paragraph 41 (1) (2) & (3) of the First Schedule to the Electoral Act (supra).
4.18. Despite the fact that the Tribunal refused to evaluate Exhibit 12 (1) – 12 (10); Exhibit 4 (1) - 4 (7); Exhibit 6 (1) – 6 (19); Exhibit 7 (1) – 7 (3); Exhibit 8 (1) – 8 (4); Exhibit 9 (1) - 9 (7); Exhibit 13 (1) - 13 (10) and Exhibit 11 (1) – 11 (6) in a massive volte face turned around to hold that the production of Forms EC8A, EC8B, EC8C, EC8D and EC8E (which was replete with alterations/mutilations; unsigned by Presiding Officers etc and which were tendered by the Appellants to establish there was substantial non-compliance with the Electoral Act and Manual) were unfortunately what the Tribunal held amounted to evidence that the election was conducted in accordance with the provisions of the Electoral Act. Also, these Forms were among the documents that the Tribunal had ignored and refused to evaluate on the ground that they were dumped on it and that they were not tied or linked to any aspect of the Petition. See Page 8 of the Judgment at Page 851 of the record.
4.19. It is clear that this glaring acts of inconsistency by the Tribunal or lopsided way of evaluating the evidence received in favour of the Respondents against the Appellants and or blowing hot and cold confirms the fact that the Tribunal was one sided in its appraisal of evidence received. See AREGBESOLA V. OYINLOLA (supra).
4.20. In the light of the above, we humbly invite the Court to resolve this issue in favour of the Appellants and agaist the Respondents.
ARGUMENTS OF ISSUE NO. 5
5.1. One of the highlight of the Judgment is the holding by the Tribunal that the 1st Respondent was validly returned as the winner of the election despite the fact that the 1st Respondent failed to call evidence and tender his Certificate of Return issued to him by the 2nd Respondent as conclusive evidence that the 1st Respondent won the election.
5.2. Section 73 (1) of the Electoral Act (supra) provides that a sealed Certificate of Return shall be issued to every candidate who has won an election within seven days under the Act. For the avoidance of any doubt, it is pertinent to reproduce Section 73 (1) of the Electoral Act thus:
“A sealed Certificate of Return at an election in a prescribed form shall be issued within 7 days to every candidate who has won an election under this Act: Provided that where the Court of Appeal or the Supreme Court being the final Appellate Court in any election petition as the case may be nullifies the Certificate of Return of any candidate, the Commission shall within 48 hours after the receipt of the order of such Court issue the successful candidate with a valid Certificate of Return”.
5.3. It is therefore submitted that by Section 73 (1) of the Electoral Act, the issuance of a Certificate of Return is the only evidence that a candidate has won an election. It follows that it is incumbent on the 1st Respondent to tender his Certificate of return after the Appellants had challenged his return, especially as the Tribunal is bound to determine on the challenge of the return of a Respondent whether or not such a Respondent was validly returned.
5.4. It is submitted that where at the end of an election, a winner is duly issued a Certificate of Return as duly elected as in FORM EC8E (I) by the Electoral body, it confirms the validity and conclusiveness of the election. The Form is to show that the person has been duly elected. See OTUNBA V. AWOBAJO (199) 7 NWLR (Pt. 610) 335.
5.5. It is only after the Certificate of Return has been tendered by a Respondent who held out to have won the election that the presumption of the correctness, validity and conclusiveness of the election can inure in favour of the Respondent. It is further submitted that it only after the Certificate of Return has been tendered that the burden of proof shifts to the Petitioner to rebut that presumption. See INEC V. ONYIMBAH RAY (204) NWLR (PT. 892) 130 @ 132.
5.6. By the provisions of paragraph 28 (1) of the First Schedule to the Electoral Act which provides thus:
“At the conclusion of the hearing, the Tribunal shall determine whether a person whose election or return is complained of or any other person, and what person, was validly returned or elected, or whether the election was void, and shall certify the determination to the Resident Electoral Commissioner or the Commission”.
5.7. The Tribunal glossed over the fact that it was entitled to determine whether the 1st Respondent was validly returned by holding that the issue of the failure of the 1st Respondent to tender his Certificate of return was not made an issue in the pleadings. We submit with due respect that this issue is implied from the pleadings of the Appellants and the Appellants legitimately raised and canvassed argument in support thereto. The Tribunal cannot just parry it the way it did it.
5.8. In UKPO V. IMOKE (supra) the 1st Respondent failed to tender Forms EC8 series and Form EC8E(i) (Certificate of Return) during trial and the Court of Appeal held that it was mandatory that he tendered such forms in the face of the challenge to his return as Governor of Cross River State of Nigeria in the election conducted on the 14th April, 2007.
5.9. It follows that the decline by the Tribunal to consider and pronounce on the failure of the 1st Respondent to tender Form EC8E (i) on the ground that it had no jurisdiction is with respect not tenable because the Tribunal is vested with power to determine whether or not a respondent whose return has been challenged was validly returned by the provisions of paragraph 28 (1) of the First Schedule to the Electoral Act.
5.10. It is well settled that where a law prescribes a procedure or venue or method of commencement of a particular type of proceedings, anything done contrary thereto would be set aside. See UDEAGHARA V. OMEGARA (2010) 1 NWLR (PT. 1204) 168 @ 181.
5.11. The use of the word shall by the legislature of Section 73 (1) of the Electoral Act makes it imperative or obligatory for the electoral body that conducted the election to issue the Certificate of Return to the 1st Respondent.
5.12. It therefore follows that the failure of the 1st Respondent to produce his Certificate of Return leads to irresistible conclusion that he was not issued with it and that he was not validly elected or returned.
5.13. In the light of the above, we urge the Court respectfully to resolve this issue in favour of the Appellants and hold that the 1st Respondent was not validly returned or elected.
ARGUMENT OF ISSUE NO. 6
6.1. It is submitted with respect that considering the state of pleadings in the Petition; the evidence placed before the Court by the Appellants; and the refusal of the Respondents to call evidence to rebut the evidence called by the Appellants, the lower Tribunal ought to have entered Judgment in favour of the Appellants.
6.2. The arguments canvassed in support of issues 1, 2, 3 , 4 & 5 above are equally relevant in this regard and are adopted as part of the submissions in support of this Issue (No. 6) for determination.
6.3. It is instructive that the Respondents had made no attempt to call any evidence to rebut the evidence called by the Appellants during trial. The failure to rebut being the legal consequence of the abandoned pleadings. The trite position of the law is that incomplete traverse, generalized or evasive denials, coupled with failure to call evidence in support of or at variance with pleaded facts, rendered the pleadings of the Respondents abandoned and to no issue at all. Respondents had admitted the allegations.
6.4. Again, since the Respondents failed to call evidence to rebut the burden that had shifted to them after the Appellants had discharged theirs (even if by minimal proof) there was no other evidence from the Respondents for the lower Court to have used to evaluate and weigh the total evidence to be placed on the preponderance scale? This question was answered by the Court of Appeal in the case of IGBEKE V. EMORDI (2010) 1 NWLR (PT. 1204) 1 @ 13-14. It held that it was the Respondent who asserted the positive that an election was held, and not the Petitioner who asserted the negative that it was not, that bore the burden of calling witnesses and producing all the Forms EC25, Forms EC8A, B, C, D and E series to prove distribution of materials and holding of the election. See the cases of Prince Ebitimi Amgbare & Anor v. Chief J. Sylva & Ors (2009) 1 NWLR (Pt. 1121) 1 at 61, 73, & 85; Felix O. Osawaru v. Simeon Ezeiruka (1978) 6-7 SC 135 at 145; Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410 at 423, per Nnaemeka-Agu JSC; See Reynolds construction Co. Ltd. V. Okwejiminor (2001) 15 NWLR (Pt. 735) 87 at 98. See Hilary & Ors v. M/V Mahtra & Ors. (supra); Calabar Central Co-operative Thrift & Credit Society Ltd. & Ors v. Bassey Ebong Ekpo (2008) 6 NWLR (Pt. 1083) 362 at 395, (2008) 4 SC 17 at 39.
6.5. The kernel of the Petition of the Appellants was hinged on the fact that there was non-voting in Abi and Yakurr Local Government Area that constitutes the Abi/Yakurr Federal Constituency.
6.6. The position of the Law is that where a Petition alleges non-voting the Respondents, especially the conductor of the election (2nd Respondent) has the responsibility of the production of Form EC25A to show that election materials were distributed and that election held.
6.7. It is clear that after the capitulation of the Respondents the prop or linchpin upon which the Respondents would have hung their defence collapsed and they consequently abandoned their pleadings and called no witnesses.
6.8. We know that by virtue of Section 136 of the Evidence Act the burden lies on the Petitioner to establish that the election was not conducted in compliance with the provisions of the Electoral Act, however, after the testimony of the 12 Witnesses discharged that burden, proof on the preponderance of evidence was no longer required as the Respondents failed to call any evidence. The burden required by law of the Appellants became minimal proof.
6.9. It is well settled that the burden of proof is never static. In the instant case where the Appellants had called evidence showing substantial non compliance with the provisions of the Electoral Act, the burden shifted to the Respondent to establish that there was compliance. See FAYEMI V. ONI (2009) 7 NWLR (PT. 1140) 223 @ 280-290.
6.10. The Respondents failed to discharge this burden. The Tribunal ought to have found for the Appellants if it had objectively and dispassionately examined the evidence put forward by the Appellants which the Respondents had no answer to and the position of the law on this point.
6.11. The presumption of regularity of result declared by INEC envisaged by Section 150 (1) of the Evidence Act is rebutted where INEC fails to show that non compliance such as non accreditation and non supply of electoral materials did not substantially affect the result of the election. See IGEBEKE V. EMORDI (2010) 1 NWLR (PT. 1204) 1 @ 13-14.
6.12. The Respondents cannot rely on the evidence elicited through cross examination on periphery issues to claim that they do not need to call evidence to rebut the evidence called by the Appellants when all the Appellants needed after the Respondents abandoned their pleadings to prove their case was minimal evidence.
6.13. It is submitted that the Tribunal completely and totally misapplied out of context the case of AKOMOLAFE V. GUARDIAN PRESS LTD (2010) 3 NWLR (PT. 1181) 338 @ 351 to hold that where a defendant has elicited or extracted evidence through cross examination sufficient to his pleadings he cannot be said to have abandoned his pleadings. The facts and circumstances of that case are not the same with the facts of the case under reference. Most importantly the Akomolafe’s case was not an Election Petition Case. See Page 15 of the Judgment at Page 858 of the record.
6.14. The Tribunal did not state which evidence the Respondents extracted from the witnesses of the Appellants that was sufficient to rebut the case of the Appellants in view of the oral and documentary evidence called by the Appellants which effectively shifted the burden placed on the Appellants to the Respondents and also in the face of the plethora of cases on election petition litigation on the situation where a Respondent fails to call evidence. See AREGBESOLA V. OYINLOLA (supra) 595-596, paras. F-C.
6.15. The attempt made by the Tribunal to evaluate the evidence called by the Appellants even though the Respondents called no evidence was totally against the grains of the principle on the evaluation of evidence that required a Court or Tribunal to construct an imaginary scale of balance and put into each side of the scale evidence produced by both parties in order to determine which side of the balance the evidence is weightier. There was no need to carry out such evaluation of the evidence where the Respondents had no evidence. The Appellants had proved its case by deduction of minimal evidence no more any less. See AREGBESOLA V. OYINLOLA (supra) 599 @ 600 paras. F-A; See AREGBESOLA V. OYINLOLA (supra) 566, paras. B-F where the Court stated that for evidence to be properly evaluated by a trial Court, it must be balanced. The two sides must be given equal opportunity to put their cards on the table on equal footing without one side being shut out.
6.16. It follows that where the adverse side called no evidence the Court cannot embark on evaluation of evidence. In such circumstances the Court is entitled to enter Judgment for the side that call minimal evidence in support of its case.
6.17. In the light of the above, we respectfully invite the Court to resolve this issue in favour of the Appellants.
ARGUMENT OF ISSUE NO. 7
7.1. The Tribunal was wrong when it dismissed and discountenanced the submissions and analysis of the Appellants’ Counsel on the documentary evidence and stated that it goes to no issue.
7.2. The Tribunal infringed on the right of fair hearing of the Appellants by refusing to consider and pronounce on the submission and analysis on documentary evidence received by the Tribunal during trial. The Tribunal was bound to consider the analyses made by Counsel based on documentary evidence that had been admitted in evidence. The refusal of the Tribunal on the ground that these documents were merely dumped on the Tribunal and did not relate to any aspect of the Petition was an erroneous finding that was not hinged on evidence had and received by the Tribunal. See UKPAI V. OKORO (1981-1990) LRECN 50 where the Supreme Court held, on breach of the principles of fair hearing enshrined in the Constitution, thus:
“It is a serious breach of the rules of natural justice, the High Court Rules and the provisions of the Electoral Act, 1982 and the principles of fair hearing enshrined in the Constitution for the High Court in the instant case to proceed to judgment without hearing evidence, when issues have been joined by the Parties. There can be no valid judgment without hearing and considering evidence on such issues.”
7.3. In the first place the documents were not tendered by Counsel from the Bar but through PW12 after the adoption of his Written Statement on Oath and after his identification of the documents. PW12 was subjected to vigorous cross-examination on these documents.
7.4. Counsel was therefore right to analyse these documents and urge the Court to make findings based on his submission.
7.5. In INEC V. OSHIOMHOLE (supra), It was held that charts prepared by Counsel based on his analyses of documentary evidence that had been tendered in Court can be looked into by the Court.
7.6. The Tribunal was bound to consider the analyses made by Counsel on documentary evidence which it has received. This documentary evidence was tendered through PW12 who was cross examined by the Respondents.
7.7. The Tribunal failed to appreciate that the analysis was supposed to assist it come to a fair and just decision in the case. The one sided approach of the Tribunal resulted in a serious miscarriage of justice on the Appellants.
7.8. The Tribunal infringed on the right to fair hearing of the Appellants by rejecting an analysis which was based on the case put forward by the Appellants during trial.
7.9. In the light of the above we urge the Court to resolve this issue in favour of the Appellants.
CONCLUSION
This Honourable Court is respectfully invited to find in favour of the Appellants and allow this appeal and grant the reliefs because of the reasons which have been painstakingly and comprehensively explained in all the issues raised and canvassed by the Appellants and additionally thus:
i. The Respondents abandoned their case and capitulated to the case of the Appellants when they refused to call evidence and rather rested their case on that of the Appellants.
ii. The Tribunal was wrong to have descended into the arena to strike out paragraphs of the Petition and held that election was conducted in Yakurr Local Government in compliance with the provisions of the Electoral Act on the ground that the Appellants had abandoned them by the submission of their Counsel in the Final Written Address when he invited the Tribunal to invoke the principle of severance of pleadings because the Tribunal had refused the invitation.
iii. The Appellants had through oral and documentary evidence proved that there was no voting in Abi Local Government and the Respondents, who refused to call evidence, cannot use their written address to attack the case of the Appellants (particularly as borne out by the documentary evidence) on the issue of non-voting. The Tribunal was therefore wrong to attempt to evaluate the evidence called by the Appellants on this issue when there was no evidence on the side of the Respondents.
iv. The Tribunal was wrong to have refused to examine, analyse and evaluate the documentary evidence that was tendered through PW12 who was cross examined on them by the Respondents. The position taken by the Tribunal that documents were dumped on the Tribunal by Counsel who tendered them from the Bar is wrong because the documents were tendered through PW12 after he adopted his Statement on Oath. The purpose of the documents was fully explained in the evidence in chief of PW12.
v. The Tribunal was wrong to have held that the 1st Respondent was validly elected in view of the failure of the 1st Respondent to tender his Certificate of Return which was the only conclusive evidence of the genuineness and correctness of his declaration as the winner for the presumption that he won the election to inure in favour of the 1st Respondent.
TABLE OF DECIDED CASES RELIED ON BY THE APPELLANTS
1. NA’UMBA VS NA’UMBA (2008) 31 LRECN 278 @ 287
2. EGBUNIKE VS ACB (supra)
3. BALOGUN VS UBA NIG. LTD. (2007) 5 NWLR (PT 1028) 584 @ 602
4. AGAGU VS MIMIKO (2009) 7 NWLR (PT 1140) 342 @ 386
5. BALOGUN VS. UBA (1992) 6 NWLR (PT 247) 366
6. EGBUNIKE VS. ACB (1995) 2 NWLR (PT.375) 34.
7. Ogbeide v. Osula (2004) 12 NWLR (Pt. 886) 86 at 94
8. NA’UMBA V. NA’UMBA (2008) 3 LRECN 279 @ 282
9. IMANA V. ROBINSON (1979) 3-4 SC 197
10. ONIFADE V.OYEDEMI (1999) 5 NWLR (PT. 601) 54.
11. Akin Omoboriwo v. Ajasin
12. Mimiko v. Agagu
13. Fayemi v. Oni
14. Aregbesola v. Oyinlola (2011)NWLR (Pt. 1253) 458 @ 555- 556.
15. DINGYADI V. WAMAKO (2008) 17 NWLR (PT. 1116) 395.
16. AHMED V. ADAMU (2008) 3 LRECN 193 @ 198.
17. ACTION CONGRESS V. MANZO (2008) 3 LRECN 73 @ 77.
18. UKPO V. NGAJI (2008) 3 LRECN 505 @ 514.
19. AUDU VS INEC (NO. 2) (2007) 13 NWLR (PT. 1212) 456 @ 522-523
20. CHIME V. ONYIA (2009) 2 NWLR (PT. 1124) 1 @ 42
21. AYOGU V. NNAMANI (2006) 8 NWLR (PT. 981) 160 @ 166
22. CHIME V. ONYIA (2009) 2 NWLR (PT. 1124) 1 @ 42
23. AYOGU V. NNAMANI (2006) 8 NWLR (PT. 981) 160 @ 166
24. AJADI V. AJIBOLA (2004) 16 NWLR (PT. 898) 91 @ 170.
25. LASUN V. AWOYEMI (2009) 16 NWLR (PT. 1168) 513.
26. UKPO V IMOKE (2009) 1 NWLR (PT. 1121) 261.
27. AWUSE v. ODILI (2005) 16 NWLR (Pt. 952) 416.
28. INEC V. COMRADE ADAMS ALIYU OSHIOMOLE (2008) 3 LRECN 649 @ 657.
29. AKINBISADE v. STATE (2006) 17 NWLR (Pt. 984) 47
30. AIKI v. MOWN (2006) 9 NWLR (Pt. 984) 47.
31. OTUNBA V. AWOBAJO (199) 7 NWLR (Pt. 610) 335.
32. INEC V. ONYIMBAH RAY (204) NWLR (PT. 892) 130 @ 132.
33. UDEAGHARA V. OMEGARA (2010) 1 NWLR (PT. 1204) 168 @ 181.
34. IGBEKE V. EMORDI (2010) 1 NWLR (PT. 1204) 1 @ 13-14.
35. Prince Ebitimi Amgbare & Anor v. Chief J. Sylva & Ors (2009) 1 NWLR (Pt. 1121) 1 at 61, 73, & 85
36. Felix O. Osawaru v. Simeon Ezeiruka (1978) 6-7 SC 135 at 145;
37. Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410 at 423
38. Reynolds construction Co. Ltd. V. Okwejiminor (2001) 15 NWLR (Pt. 735) 87
39. Hilary & Ors v. M/V Mahtra & Ors. (supra)
40. Calabar Central Co-operative Thrift & Credit Society Ltd. & Ors v. Bassey Ebong Ekpo (2008) 6 NWLR (Pt. 1083) 362 at 395, (2008) 4 SCM 17 at 39.
41. FAYEMI V. ONI (2009) 7 NWLR (PT. 1140) 223 @ 280-290.
42. IGEBEKE V. EMORDI (2010) 1 NWLR (PT. 1204) 1 @ 13-14.
43. AKOMOLAFE V. GUARDIAN PRESS LTD (2010) 3 NWLR (PT. 1181) 338 @ 351
44. UKPAI V. OKORO (1981-1990) LRECN 50
TABLE OF STATUTES CITED AND RELIED ON BY THE APPELLANTS
1. ELECTORAL ACT, 2002
2. ELECTORAL ACT, 2006
3. MANUAL FOR ELECTION OFFICIALS, 2003
4. MANUAL FOR ELECTION OFFICIALS, 2007
5. ELECTORAL ACT, 2010 (AS AMENDED)
6. MANUAL FOR ELECTION OFFICIALS, 2011
7. CONSTITUTION OF THE FRN, 1999 (AS AMENDED)
8. EVIDENCE ACT, 2011
DATED THIS 29TH DAY OF NOVEMBER, 2011.
CHIEF OKOI O. OBONO-OBLA
OBONO, OBONO & ASSOCIATES
(APPELLANT’S SOLICITORS)
2ND FLOOR, TRINITY HOUSE,
MABUSHI, ABUJA, NIGERIA.
OR
NO.1 EJIKA LANE, LETAMPANKOM,
IJIMAN, UGEP, YAKURR LOCAL
GOVERNMENT AREA,
CROSS RIVER STATE.
ADDRESS FOR SERVICE:
1. ON THE 1ST RESPONDENT
C/O HONOURABLE BASSEY EKO EWA
EKORINIM, CALABAR, CRS, NIGERIA
2. ON THE 2ND & 3RD RESPONDENTS
C/O THE RESIDENT ELECTORAL COMMISSIONER
INDEPENDENT NATIONAL ELECTORAL COMMISSIONER
INEC HEAD OFFICE, 81 MURTALA MOHAMMED HIGHWAY
CALABAR.
3. ON THE 4TH RESPONDENT
C/O THE STATE SECRETARY
PEOPLES DEMOCRATIC PARTY
PDP STATE SECRETARIAT, MURTALA MOHAMMED HIGHWAY
CALABAR, CROSS RIVER STATE, NIGERIA.
