IN THE NATIONAL/STATE ASSEMBLIES ELECTION PETITION TRIBUNAL
HOLDEN AT CALABAR
PETITION NO.EPT/CR/SA/10/2011
THE ELECTION INTO YAKURR I STATE CONSTITUENCY OF THE CROSS RIVER STATE HOUSE OF ASSEMBLY HELD ON SATURDAY THE 26TH DAY OF APRIL, 2011.
BETWEEN
OTU BASSEY UKPENTU - PETITIONER
AND
1. MFAWA OFEGOBI
2. INDEPENDENT NATIONAL ELECTORAL
COMMISSION RESPONDENTS
3. THE RETURNING OFFICER, YAKURR 1
STATE CONSTITUENCY, CROSS RIVER
STATE
4. PEOPLES DEMOCRATIC PARTY
FINAL WRITTEN ADDRESS OF THE PETITIONER AS ORDERED BY THE TRIBUNAL ON WEDNESDAY THE 2ND DAY OF NOVEMBER, 2011
INTRODUCTION
This is the Final Written Address of the Petitioner as ordered by the Tribunal on the 2nd Day of November, 2011 at the close of the case of the Petitioner. The Respondents did not call any evidence at the close of the case of the Petitioner.
STATEMENTS OF FACTS
1. The election into the Yakurr One State Constituency of the Cross River State House of Assembly was conducted on the 26th April, 2011. At the conclusion of the election the 1st Respondent who contested under the platform of the 4th Respondent was declared the winner of the election with 8920 votes. The Petitioner who contested the election was said to have scored 7451 votes. The Petitioner was utterly unhappy with the result of the election. On the 17th May, 2011, the Petitioner presented a Petition before this Tribunal seeking the following reliefs thus:
i. That it may be declared that the election and return of the 1st Respondent in Idomi, Afrekpe/Epenti & Ntan Council Wards of Yakurr 1 State Constituency is voided by corrupt practices and substantial non compliances with the provisions of the Electoral Act, 2010 (as amended).
ii. That it may be declared that the 1st Respondent did not score majority of the lawful votes cast in the election into the Yakurr 1 State Constituency of the Cross Rive State House of Assembly of Cross River State of Nigeria held on the 26th April, 2011.
iii. That it may be determined that the result declared by the 2nd Respondent on the 27th day of April, 2011, by which the 1st Respondent was returned as the elected House of Assembly Member for the election into Yakurr 1 State Constituency of the Cross River State House of Assembly of Cross River State of Nigeria is wrongful, null and void.
iv. An Order setting aside the Certificate of Return Issued to the 1st Respondent.
v. That it may be determined that the Petitioner won the majority of the lawful votes cast in the election into Yakurr One (1) State Constituency of the Cross River State House of Assembly held on the 26th April, 2011.
vi. An Order directing the 2nd Respondent to issue Certificate of Return to the Petitioner as the winner of the said election.
vii. And such Order(s) or Relief(s) as the Honourable Tribunal may deem fit and just to make or grant in the circumstances of this case.
2. The Petition was served on the 1st Respondent on the 2nd June, 2011, while the 2nd, 3rd & 4th Respondents were served on the 26th May, 2011.
3. By the provisions of Paragraph 12 (1) of the First Schedule to the Electoral Act, 2010 (as amended) the, Respondents have 14 days from service of the Petition to file their Replies.
4. The 1st Respondent purportedly filed his Reply on the 22nd June, 2011, while the 2nd, 3rd and 4th Respondents filed their Replies on the 15th June, 2011.
5. However, when the 2nd & 3rd Respondents realized that their Reply was filed out of time, they filed a Motion on Notice seeking the following reliefs thus:
i. AN ORDER extending time for the 2nd & 3rd Respondents to file their Reply to the Petition out of time.
ii. AN ORDER deeming the Reply filed on the 15th of June before this Honourable Court Tribunal as properly filed and served.
iii. AND for such further order(s) as this Honourable Tribunal may deem fit to make in the circumstances.
6. The Motion of the 2nd & 3rd Respondents seeking for extension was moved and granted by the Tribunal on the 31st October, 2011.
7. The trial of the case commenced on the 1st November, 2011. At the pre-trial hearing, the Petitioner through his Counsel with Consent of the Respondents had tendered from the Bar the following documents thus:
i. Voters Registers for Idomi Ward - Exhibits A - A4
ii. Voters Register for Ntan Ward - Exhibits B - B4
iii. Voters Register for Afrekpe/Epenti Ward - Exhibits C - C11
iv. Form EC8 A (i) for Afrekpe/Epenti - Exhibits D - D11
v. Form EC8 A (i) for Ntan (Seven Polling Units) - Exhibits E – ES
vi. Form EC8 A (i) for Idomi (Nine Polling Units) - Exhibits F - F9
vii. Form EC8 A (i) for Afrekpe/Epenti (Eleven Polling Units) - Exhibits D-D11
8. These documents (above) were pleaded in Paragraphs 34 - 74 of the Petition. The documents were also listed in the List of Documents pleaded by the Petitioner. See page 5 of the Petition.
9. On the other hand, the Counsel to the 1st Respondent tendered from the Bar the fllowing documents thus:
i. Form EC8E(i) - Exhibit L
ii. Form EC8B (i) - Exhibit K
iii. Form EC8B(i) – Exhibit I
iv. Order of the Federal High Court in Suit No. FHC/CA/CS/17/2011 - Exhibit H
10. The 2nd & 3rd Respondents did not tender the documents listed in their List of Documents pleaded and attached to its Reply filed on the 15th June, 2011.
11. The 4th Respondent did not tender any document.
12. At the trial, the Petitioner called 4 (four) witnesses but the Tribunal upon the objection by the Respondents on the ground that the Petitioner’s witnesses’ Statements on Oath were contrary to Section 13 of the Oaths Act, 2004, rejected the Statements on Oaths of these witnesses and ordered that they should be marked rejected.
13. The Respondents did not call any evidence.
ISSUES FOR DETERMINATION
1. Whether the Replies filed by the 1st and 4th Respondents are competent in view of the fact that the 1st Respondent was served with the Petition on the 2nd June, 2011 while the 4th Respondent was served on the 26th May, 2011, but elected to file their Replies on the 22nd June, 2011, and 14th June, 2011, respectively?
2. Whether the 2nd & 3rd Respondents Reply constitute a Reply within the import of the provisions of Paragraph 12 (1) of the First Schedule to the Electoral Act and if the answer is in the negative whether the Reply of the 2nd & 3rd Respondents have frontally and positively answered to the allegations made in the Petition against the 2nd & 3rd Respondents?
3. Whether the Petitioner needed to call evidence in view of the fact that the Respondents had no Replies, their Replies being filed outside the 14 days mandated by the Electoral Act, 2010 (as amended)?
4. Whether the Petitioner has not proved the civil aspects his case by the documentary evidence before the Tribunal pursuant to the principles of severance of pleadings?
5. Whether Exhibits tendered by the Petitioner has not established that the 1st Respondent did not score the majority of lawful votes cast at Idomi, Ntan and Afrekpe/Epenti Council Wards in the election held on the 26th April, 2011?
ARGUMENT OF ISSUE NO 1.
1.1 It is well settled that the 1st Respondent was served with the Petition on the 2nd June, 2011.
1.2 The 4th Respondent was served on the 26th May, 2011. The 2nd & 3rd Respondents were served with the Petition on the 26th May, 2011.
1.3 However, the 1st Respondent filed his Reply to the Petition on the 22nd June, 2011, more than 20 days after he was served with the Petition, while the 2nd, 3rd and 4th Respondents filed their Replies on the 15th of June, 2011, also more than 20 days after the service on them of the Petition.
1.4 The 1st Respondent has 14 days from service of the Petition to file his Reply. Since the 1st Respondent was served with the Petition on the 2nd June, 2011, time will begin to run for him for the purpose of filing the Reply on the 3rd June, 2011 and expired on the 16th June, 2011. See FIDEL AYOGU v. CHIMAROKE NNAMANI (2004) 15 NWLR (PT. 895) 134.
1.5 The 1st Respondent in utter disregard of the clear and unambiguous provisions of Paragraph 12 (1) of the 1st Schedule to the Electoral Act, 2010 (as amended) that enjoins a Respondent to a Petition to file his Reply within 14 days of the service on him of the Petition, rather filed hid Reply on the 22nd of June, 2011. It is pertinent to reproduce the provisions of the 1st Schedule to the Electoral Act (supra) thus:
“The respondent shall, within fourteen days of service of the petition on him file in the Registry his reply, specifying in it which of the facts alleged in the election petition he admits and which he denies, and setting out the facts on which he relies in opposition to the election petition”.
1.6 It is submitted that Paragraph 12 (1) of the 1st Schedule to the Electoral Act must be read together with the Provisions of Section 134 (2) of the Electoral Act, 2010 (as amended) which stipulates that an election Petition must be heard and judgment delivered 180 days from the day of the filing of the Petition.
1.7 It is clear that time is of essence in the hearing and determination of election petitions and no amount of dilatoriness on the part of parties to the election petition are permissible.
1.8 In the case of PEOPLES DEMOCRATIC PARTY v. WILLIAM BALLANTYNE & THREE OTHERS (unreported) decided by the Court of Appeal, Calabar on the 20th July, 2011 in Appeal No. CA/C/NAEA/134/2011, Massoud Abdurrahman Oredola, JCA, in page 7-9 of the Judgment underscored the essence of time in an election petition thus:
“There is no doubt that time is of the essence in the handling of election petitions. This probably informed the decision by the National Assembly in deleting Section 134 of the Electoral Act 2010 and amending Section 29 of the First Alteration Act and Section 285 of the Constitution of the Federal Republic of Nigeria. The erstwhile Section 134 of the Electoral Act, 2010 which was deleted by Section 32 of Electoral (Amendment) Act No. 10 of 2010 by Section 32 of Electoral (Amendment) Act No. 10 of 2010 stipulated as follows: ‘134-(1) An election petition shall be filed within 21 days after the date of declaration of results of the elections. 2. An election tribunal must deliver its judgment in writing within 180 days from the date of the filing of the petition. 3. An appeal from a decision of an election tribunal or court shall be heard and disposed of within 90 days from the date of delivery of judgment of the tribunal. 4. The Court in all appeals from election tribunals may adopt the practice of first giving its decisions and reserving the reasons thereto for the decision at a later date’. By deleting this provision and amending Section 285 of the Constitution, whatever lingering doubts anybody had about the importance the National Assembly placed on the prompt disposal of election petitions, was removed. Even the period for the hearing and disposal of appeals was reduced. Section 9 of the Constitution of the Federal Republic of Nigeria (Second Alteration) Act No. 2 of 2010 substituted Sections 29 of the First Alteration Act and Section 285 of the Constitution and provides in Subsections (5) - (8) as follows:
‘(5) An election Petition shall be filed within 21 days after the date of the declaration of result of the elections;
(6) An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.
(7) An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of delivery of judgment of the tribunal or Court of Appeal.
(8) The Court in all final appeals from an election tribunal or court may adopt the practice of first giving its decision and reserving the reasons therefore to a later date.’
Since Section 134 of the Electoral Act has been deleted and a specific provision is made under Section 285 of the Constitution (as amended), the enlargement of time envisaged under paragraph 45 of the 1st Schedule to the Electoral Act is no longer feasible. The effect of the failure to file the Respondent’s Reply within 14 days of service on him of the Petition as stipulated under paragraph 12 (1) of the 1st Schedule to the Electoral Act is tantamount to a breach of Section 285 of the Constitution and cannot be waived or overlooked”.
1.9 Also in the case of PEOPLES DEMOCRATIC PARTY v. EYO NSA EKPO & THREE OTHERS (unreported) in Appeal No. CA/C/NAEA/144/2011 decided on the 21st July, 2011, the Court of Appeal, Calabar Division, decided that a Reply to an election Petition must be filed within 14 days from service of the Petition. See Page 11 of the Judgment, where K. B. Akaahs, JCA said thus: “The Appellant knew it had 14 days to file its Reply. It was out of time for 18 days. Meanwhile the time to determine the petition did not stand still. The cry to do justice to the appellant must take into consideration the right of the Petitioner to have his petition determined within the stipulated time prescribed in the Constitution. See: JOSIAH v. THE STATE (1985) 1 NWLR (Pt. 1) 125 @ 141”.
1.10 In the light of the above, it is clear as the crystal ball that the 1st and 4th Respondents’ Replies filed on the 22nd June, 2011, and 15th June, 2011, respectively were filed out of time and therefore are incompetent and should be struck out.
ARGUMENT OF ISSUE NO. 2
2.1 The Reply of the 2nd & 3rd Respondents was purportedly filed on the 15th June, 2011 despite the fact that they were served on the 26th May, 2011 with the Petition.
2.2 The Petition has 84 Paragraphs in which weighty allegations of non compliance with the provisions of the Electoral Act, 2010 (as amended) were made against the 2nd & 3rd Respondents.
2.3 However in their Reply to the Petition, the 2nd & 3rd Respondents curiously filed a 6 paragraphed Reply. In the Reply, the 2nd & 3rd Respondents admitted Paragraphs 1 - 4, 6 and 7 and 77 - 82 of the Petition.
2.4 The position of the law is that to constitute an effective and sufficient denial of averments in the Statement of Claim, or Petition the denial in the Statement of Defence or Reply to a Petition must be apt, precise, succinct, full and complete and not evasive, vague and bogus. However the denial need not touch minutely on every bit of the averments in a Petition or Statement of Claim as this will unnecessarily lengthen the Reply.
2.5. Thus in so far as the denial specifically meets the point of substance pleaded in the Petition or Statement of Claim it qualifies as a denial: See EL-TIJJAHI V. SAIDU (1993) 1 NWLR (PT. 268) 246.See UDEAGHA v. UMEGARA (2010) 12 NWLR (PT. )
2.6 It is submitted that by virtue of paragraph 12 (1) & (2) of the First Schedule to the Electoral Act, supra, what is required of a respondent to an election petition is to specify in his reply which of the facts alleged in the Petition he admits and which he denies and setting out the facts on which he relies in opposition to the Petition. In other words all paragraphs 12 (1) & (2) of the First Schedule requires are facts constituting a denial put up in opposition to a Petitioner’s assertions.
2.7 A cursory reading of the Reply of the 2nd & 3rd Respondents reveals that it is totally and completely out of sync with the tenor of Paragraph 12 (1) of the First Schedule. The 2nd & 3rd Respondents failed to join issue or lay out sufficient facts on which they relied on to oppose the Petition.
2.8 The Petition made substantial and weighty allegations in the entire gamut of the Petition against Presiding Officers and other agents employed by the 3rd Respondent which were used in the conduct of the election which requires the 2nd & 3rd Respondents to specifically deny but which they failed to deny.
2.9 It is submitted that the denial of the Respondents is evasive, perfunctory, vague, nebulous and generalized and does not constitute a denial in law. See Paragraph 3 of the Reply of the 2nd & 3rd Respondents.
2.10 The allegation made against these agents of the 3rd Respondents ranges from collusion, falsification of figures, allocation of figures etc which requires the Respondents to specifically and pointedly or frontally deny same.
It is clear that the Respondents elected to be evasive, shifty and dodgy to simply escape from joining issues or frontally evade these allegations made in the Petition against them. See Paragraphs 33-75 of the Petition. See UDEAGHA V. OMEEGARA (2010) 11 NWLR (PT. 1204) 168 @ 175, HOLDEN 2.
2.11 It is not enough for the Respondents to simply assert that the election was conducted in compliance with the provisions of the Electoral Act; they must furnish specific particulars in their Reply to support of their assertion that the election was conducted in compliance with the provisions of the Act.
2.12 A denial in a Respondent’s Reply need not minutely touch on every bit of averment of a Petition. It is enough if the denial specifically meets the point of substance pleaded in the Petition. See OPIA v. IBRU (1999) 3 NWLR (Pt. 231) 658.
2.13 In the instant case, there was no denial in the Reply of the 2nd and 3rd Respondents which specifically meets the point of substance in the Petition. Paragraphs 2 & 4 of the 2nd & 3rd Respondents’ Reply cannot by any stretch of the imagination constitute specific denials of the Petition.
2.14 The 2nd and 3rd Respondents are obligated to plead facts to demonstrate that the election was conducted in substantial compliance with the provisions of the Electoral Act. In several Paragraphs of the Petition allegations were made that the 3rd Respondents allowed voters who were not accredited to vote or that the number of votes cast in several Polling Units in contention exceeded the number that were accredited and in such a circumstances it is not enough for the 3rd Respondent to simply assert that the election was conducted in accordance with the provisions of the Electoral Act without putting forwards facts to establish that the allegation is not correct.
2.15 In the light of the above, we respectfully invite the Tribunal to resolve this issue in favour of the Petitioner and hold that the Reply of the 2nd and 3rd Respondents has failed woefully to frontally and pointedly answer the point of substance in the Petition and therefore the 2nd and 3rd Respondents have by implication admitted the Petition.
2.16 It is clear that the 2nd & 3rd Respondents had no Reply to the Petition.
2.17 We therefore respectfully invite the Tribunal to strike out the Reply of the 2nd & 3rd Respondents for being at variance with the purport of the provisions of Paragraph 12 (1) of the 1st Schedule to the Electoral Act (supra).
ISSUES 3, 4 & 5 SHALL BE ARGUED TOGETHER
6.1 3.0 The Petition shows that the Petitioner’s case is founded on two planks, primarily on civil and then some criminal allegations. The Criminal aspects of the Petition can be found in paragraphs 33, 43, 46, 47 & 53 out of the 84 paragraphed of the Petition. We submit that by the principles of severance of pleadings enunciated in the celebrated Supreme Court case of Omoboriowo v. Chief Michael Adekunle Ajasin (1984) A. N. L. R 105 at 110 and 115, this Tribunal can severe conclusively criminal allegations made out by the Petitioner in the few paragraphs of the Petition such as 33, 43, 46, 47 & 53. It is clear that where the allegation of crime in the Petitioners Petition are severed or stripped of these paragraphs there will remain sufficient averments which bother on civil wrongs to sustain the Petition. We urge the Tribunal to severe the criminal aspects of Petitioner’s Petition and treat the Petition as a civil claim, which standard of proof then becomes a balance of probabilities and or preponderance of evidence.
3.1 It is submitted that where a Respondent fails to file his Reply or abandons his Reply by not calling evidence, the Petitioner is entitled to prove his case by minimal proof. Ordinarily the standard of proof required of a Petitioner who alleges that there has been non compliance with the provisions of the Electoral Act is on a preponderance of evidence. This is because an election petition, being specie of a civil suit, is only required to be proved on balance of probabilities. All that the Petitioner needs establish is that his story is more likely to be true than that of the Respondent’s. See SWEM v. DZUNGWE (1966) 1 SCNLR 111. See INEC & ORS V. OSHIOMOLE & ANOR. (2008) (PT 3) LRECN 649.
3.2 In this case the Petitioner has established his case by tendering documentary evidence to prove the election in 3 (Three) Wards (Ntan, Afrekpe/Epenti & Idomi) where the 1st Respondent was allotted 4273 votes was not conducted in compliance with the Electoral Acts. Exhibit E - ES is the Result Form EC8A (i) of 7 (Seven) Polling Units in Ntan Ward of Yakurr One State Constituency). Form EC8A (i) is the foundation or bedrock for the collation of results in subsequent Forms and therefore cannot be ignored by any election tribunal. See KRESS NJIOKWUEMENI v. VICTOR OCHEI (2004) 15 NWLR (PT. 895) 196 @ 235. See NWOBODO v. ONOH (1984) 1 SCNLR 1.
3.3 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, supra.
3.4 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.
3.5 The Polling Units covered by Exhibit EC - ES are as follows:
i. KEKONKOLO TOWN HALL – 001
ii. AFUAFUA TOWN HALL – 002
iii. ATAKPA TOWN HALL – 003
iv. NGEM – 004
v. PCN PRY SCH – EKORI – 005
vi. ROAD JUNCTION – 006
vii. AKUGOM TOWN HALL – 007
3.6 KEKONKOLO TOWN HALL – POLLING UNIT 001: A cursorily examination of the Exhibits EC-ES in respect of the Polling Units in Ntan Ward as shown above, shows clearly that the election in Ntan Ward was not conducted in substantial compliance with the provisions of the Electoral Act (supra). It is submitted that the violation of the provisions of the Electoral Act was blatant in Kekonkolo Town Hall, Polling Unit 001 in a most reckless manner as we are going to highlight below.
In this Polling Unit 227 voters were in the queue before voting commenced, but the result sheet shows 432 voters minus 9 voters which brought the figure of total valid votes recorded for that Polling Unit to 423. It is submitted that that the Petitioner has been able to establish that the total number of persons who voted in this Polling Unit were more than those who turned out on the queue to vote. This is excessive or over voting which amounts to substantial non compliance. See Section 53 (1) of the Electoral Act.
In TERAB v. LAWAN (1992) 3 NWLR (PT. 231) 569 @ 587-588, the Court of Appeal held that a case would have been made for nullification of results from polling units where the number of votes cast for both parties exceeded the number of accredited voters on the queue if the petitioner succeeded in showing that was the position in some polling units. See SERIKI V. ARE (1999) 3 N.W.L.R (PT. 595) 469 @ 472. See INEC v. RAY (2004) 14 NWLR (Pt. 892) 92.
The Petitioner has tendered Exhibit E - ES which include the Voters Register for the Polling Unit to establish that there was excessive voting (i.e. those who voted were more than those accredited). It is evident the 1st Respondent scored 390 unlawful votes in this Polling Unit. Furthermore in the same Polling Unit, Form ECA 8 (i) was not stamped or signed. This is another illustration of substantial non compliance. Section 64 (1) & (2) of the Electoral Act (supra) provides as follows:
(1) “The Presiding Officer shall; after counting the votes at the polling unit, enter the votes scored by each candidate in a form to be prescribed by the Commission as the case maybe.
(2) The form shall be signed and stamped by the Presiding Officer and counter signed by the candidates or their polling agents where available at the Polling Unit.”
See also Section 74 of the Electoral Act (supra).
This Exhibit (Kekonkolo Town Hall, Polling Unit 001) if juxtaposed with the Voters Registers for Kekonkolo Polling Unit (Exhibit B-B4) shows that there was multiple voting by Grace Bam (No. 99 and 112 in the Voters Register) Ekim Mary Omini (No. 100 and 111 in Exhibits B-B4).
The Tribunal is invited to deduct these 390 unlawful votes from the total scores of the 1st Respondent in the election.
3.7 AFUAFUA TOWN HALL – POLLING UNIT 002: In this Polling Unit there was no accreditation of voters. This is borne out by Form EC8A (i) - Exhibit E-ES for Afuafua Town Hall Polling Unit. However, a total number of 323 voters were recorded out which 229 votes were unlawfully accredited to the 1st Respondent in Form EC8B (i). It is submitted that since there was no accreditation in this Polling Unit any result emanating from this Polling Unit is void. See Section 49 (1) & (2) of the Electoral Act (supra) which provides as follows:
(1) “A person intending to vote with his voter’s card, 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 that the person has voted.
It is submitted that accreditation of voters in an election is a mandatory responsibility which the Presiding Officer must ensure that it is carried out before voting would be allowed to start. It is well settled that accreditation is an important step in the conduct of an election that should be taken by the Presiding Officer before a voter would be allowed to cast his/her vote. Only accredited voters would be allowed to vote. A ballot without accreditation cannot be a valid ballot paper and without a valid ballot paper, there can be no valid election. Any vote returned without an accreditation for a particular voting unit cannot be said to have been obtained through due electoral process. See NWEKE v. EJIMA (1999) 11 NWLR (PT. 625) 39; CHIEF SULEIMAN AJADI v. CHIEF SIMEON AJIBOLA (2004) 16 NWLR (Pt. 898) 182 -183.
In AJADI V. AJIBOLA, supra, Adekeye JCA relied on the case of TERAB V. LAWAN (1992) 3 NWLR (PT. 231) 569 @ 587-588 and stated thus on non-accreditation:
‘A polling station where voters are not accredited and scores are registered at such stations such scores can be excluded from valid votes’ Para B – C @ page 183
We therefore respectfully invite the Tribunal to deduct the 229 votes unlawfully accredited to the 1st Respondent in Form EC8B (i) tendered by the 1st Respondent, from his total votes scored at the election.
3.8 ATAKPA TOWN HALL – POLLING UNIT 003: The Result Sheet - Form EC 8A (i) was not stamped; the date of the election was not stated; the Presiding Officer did not sign Form EC 8A (i). The number of voters in the queue before voting commenced was 263 but 318 was said to have voted. See SERIKI V. ARE (supra) 472.
We urge the Tribunal to nullify the scores accredited to the 1st Respondent from this Polling Unit and deduct the 287 votes accredited to the 1st Respondent from his totally tally. The Tribunal has the power to deduct illegal or unlawful votes from the 1st Respondent’s total tally or score. See NWEKE V. EJIMS (1999) 11 NWLR (Pt. 225) 39 @ 44.
3.9 NGEM – POLLING UNIT 004: There was no accreditation, collation of results; declaration of results. The election here was a total sham as it was not conducted in accordance with the Electoral Act. The Petitioner tendered the Voters Register for this Polling Unit, Exhibit E-ES to show that there was no accreditation. However the 1st Respondent was accredited with unlawful votes of 198.
We respectfully invite the Tribunal to deduct this 198 votes from the total tally accredited to the 1st Respondent in the election in Form EC8B (i) tendered by the 1st Respondent.
3.10 PCN PRY SCH – EKORI – POLLING UNIT 005: The Result Sheet (Form EC8A (i) for this Polling Unit was not signed or stamped. See Section 63 (1) & (2) of the Electoral Act (supra). See also Section 74 of the Electoral Act (supra). This constitutes an infringement of Section 5.2 Step 4 (e) of the Manual for Election Officials, 2011. Where is the validity of this result, we submit?
A cursory look at Form EC8A (i) for this Polling Unit shows that was alteration of figures in column 7 and the cancellation in column 8 (without the person who prepared the said Form signing and counter signing). There was no election held in accordance with the Electoral Act. Form EC 8A that the results were purportedly recorded on or entered in was a maze of confusion and mired in contradiction. The Form EC8A (i) was not stamped. The total number of valid votes cast was not clear in the Form EC8A (i).
It was not clear if it is 291 or 271. The alteration or mutilation of the total number of valid votes was not explained. The Tribunal is respectfully invited to deduct 197 votes allocated to the 1st Respondent unlawfully from his total vote tally in the election.
An examination of the Voters Register for PCN PRY SCHOOL, EKORI Polling Unit shows that there was multiple voting by voters with the following numbers: 149, 173, 178, 184, 200, 206, 224, 232, 268, 285, 298, 317, 352 etc. This constitutes an infraction of Section 53 (1) & (2) of the Electoral Act.
However, the 1st Respondent was accredited with 197 votes in Form EC 8 B (i) tendered by the 1st Respondent. We urge the Tribunal to deduct these unlawful 197 votes recorded in Form EC 8 B (i) from the 1st Respondent’s total scores.
3.11 ROAD JUNCTION – POLLING UNIT 006: The Result Sheet FORM EC8A (i) was not signed and stamped. This constitutes an infringement of Chapter 5.4 Step 8 of the Manual for Election Officials, 2011. The 1st Respondent was unlawfully accredited with 63 votes in this Polling Unit. We urge the Tribunal to deduct these 63 votes from the total vote scores of the 1st Respondent in the election.
3.12 AKUGOM TOWN HALL – POLLING UNIT 007: Form EC8 A (i) for this Polling Unit was not signed and stamped. See Section 63 (1) & (2) of the Electoral Act (supra). See Section 74 of the Electoral Act (supra).There was no accreditation and voting in this Polling Unit as can be gleaned from the Voters Register for this Polling Unit which has not been ticked. The total number of unlawful votes of 269 accredited to the 1st Respondent in Form EC8B (i) which was added to his total tally should be deducted from the total number of votes accredited to the 1st Respondent.
All in all the 1st Respondent was accredited with a total votes of 1633 in Form EC8B (i) for NTAN WARD. We invite the Tribunal to deduct these 1633 votes from the total scores of 9163 recorded in Form EC8E (i) for the 1st Respondent. If these 1633 unlawful votes accredited to the 1st Respondent are deducted from 9163, the total votes of the 1st Respondent will drop to 7530.
It is instructive that FORM EC8B (i) for NTAN COUNCIL WARD was tendered by the 1st Respondent admitted and marked by the Tribunal as EXHIBIT J.
3.13 IDOMI WARD - The Polling Units in Idomi Ward are as follows
a. PCN PRIMARY SCHOOL 1
b. PCN PRIMARY SCHOOL 11
c. EGBIZUM TOWN HALL
d. EGBIZUM PLAYGROUND
e. OTALOSI TWON HALL
f. OTALOSI PLAYGROUNDS
g. OKOM TOWN HALL
h. KEKOWA PLAYGROUND
i. LEBOLKOM/PKPM OLD TOWN
j. PCN PRIMARY SCHOOL
It is instructive to note that Form EC8 A (i) for these Polling Units in Idomi Council Wards. Highlighted above were tendered by the Petitioner, admitted and marked as Exhibits F-F9.
3.14 ANALYSIS OF EXHIBITS F-F9
3.15 PCN PRIMARY SCHOOL 1 -001-POLLING UNIT
The Voters Register for this Unit shows that there was no accreditation in this Unit. See S. 53 (1) of the Electoral Act (supra). It is submitted that an examination of Form EC8A (i) for this Unit shows there was no queue before voting commenced. See Chapter 5.2 step 4 (e) of the Manual for Election Officials, 2011. We respectfully invite the Tribunal to deduct the 161 votes accredited to the 1st Respondent from the total tally given to the 1st Respondent. See Form EC8B (i) tendered by the 1st Respondent, where the 1st Respondent was accredited with 161 votes. We urge the Tribunal to deduct these 161 votes from the total scores of the 1st Respondent.
It is instructive that FORM EC8B (i) for IDOMI WARD was tendered by the 1st Respondent admitted and marked as EXHIBIT I.
3.16 PCN PRIMARY SCHOOL 2 - POLLING UNIT 002: The Result Sheet - Form EC8A (i) was not signed and stamped. See Section 74 of the Electoral Act. There were several alterations and or cancellation on this Result Sheet which has not been explained by the 2nd Respondent. There was arbitrarily allocated votes to parties that did not present candidates for the election such as NMPP & NUP. See Chapter 5.2 Step 4 (e) of the Electoral Manual for Electoral Officers 2011. Form EC8A was not signed by the Presiding Officer. The date of the election was not stated in Form EC8A. The Tribunal shall be urged to deduct the 23 votes allocated to the 1st Respondent from his total tally at the election in Form EC8B (i). See Form EC8B (i) tendered by the 1st Respondent. We urge the Tribunal to deduct these 23 votes from the total scores of the 1st Respondent.
3.17 EGBIZUM TOWN HALL – POLLLING UNIT 003: Form EC 8A was not signed by the Presiding Officer. Votes were allocated to Political Parties that did not contest election. The 1st Respondent was allocated 120 votes. We respectfully invite the Tribunal to deduct or expunge the said 120 votes which are unlawful from the total tally scored by the 1st Respondent. There were several alteration/mutilation of the figures 189 and 166 which cancelled for a mutilated 148. See Form EC8B (i) tendered by the 1st Respondent, where the 1st Respondent was accredited with 120 votes. We urge the Tribunal to deduct these 120 votes from the total scores of the 1st Respondent.
3.18 EGBIZUM PLAY GROUND - POLLING UNIT 004: Form EC 8A was not signed by the Presiding Officer. Votes were allocated to Political Parties that did not contest election. The 1st Respondent was allocated 191 votes. We respectfully invite the Tribunal to deduct or expunge the said 191 votes which are unlawful from the total tally scored by the 1st Respondent. See Form EC8B (i) tendered by the 1st Respondent where the 1st Respondent was accredited with 191 votes. We urge the Tribunal to deduct these 191 votes from the total scores of the 1st Respondent.
3.19 OTALOSI TOWN HALL - POLLING UNIT 005: There was no accreditation of voters before voting commenced. The total number of valid votes cast and the total number of ballot papers used were the same 234. We respectfully invite the Tribunal to nullify the result from this Polling Unit and set aside the unlawful 183 allocated to the 1st Respondent. We further submit that that Form EC 8A was not signed nor stamped. The date of the election was not stated in Form EC8A. Political Parties such as NMDP, CDC, NMPP, PPP, LP, NNP, NAP, APGA, NTP & PD that did not contest the election were allocated votes. See Section 5.2 step 4 (e) of the Electoral Manual for INEC Officials, 2011.
It is submitted that the Manual for Election Officials such as the Electoral Manual for INEC Officers, 2011, was issued pursuant to the provisions of the Electoral Act, 2010 (as amended) for the purpose of giving effects to the provisions of the Act. The guidelines therein must be strictly construed and followed by election officials in the process of and procedure for elections. See CHIEF SULEIMAN AJADI v. CHIEF SIMEON AJIBOLA (2004) 16 NWLR (PT. 898) 9 @ 170 Para E - G.
The 1st Respondent was accredited 183 votes in Form EC8B (i). See Form EC8B (i) tendered by the 1st Respondent. We urge the Tribunal to deduct these 183 votes from the total scores of the 1st Respondent.
3.20 OTALOSI PLAY GROUND - POLLING UNIT 006: Form EC8A (i) for this Polling Unit contains several alterations. The 2nd Respondents has not proffered any explanation for these alterations. These alterations were not counter-signed by the Presiding Officer and other agents who signed the result. Columns 7 & 8 were altered without any explanation which goes to cast doubt on the authenticity of this result on any discerning mind. Scores of 86 votes were accredited to the 1st Respondent in this Polling Unit. See Form EC8B (i) tendered by the 1st Respondent. We urge the Tribunal to deduct these 86 votes from the total scores of the 1st Respondent.
3.21 OKOM TOWN HALL - POLLING UNIT 007: Form EC8A (i) for this Polling Unit was not signed nor stamped by the Presiding Officer. See Section 74 of the Electoral Act (supra). See Chapter 5.4 Step 8 of the Electoral Manual for INEC Officers 2011. We urge the Tribunal to deduct the 78 votes accredited to the 1st Respondent from this Polling Unit. See Form EC8B (i) tendered by the 1st Respondent. We urge the Tribunal to deduct these 78 votes from the total scores of the 1st Respondent.
3.22 LEBULKOM/OKOM OLD TOWN - POLLING UNIT 010: The Result Sheet (Form EC8A (i) was not stamped and signed. See Section 63 (1) & (2) of the Electoral Act (supra). See Section 74 of the Electoral Act (supra). See Chapter 5.4 Steps 8 of the Manual for Election Officials, 2011. In column 7, the figure 46, 88 and 93 was cancelled for 94, while in column 8, the figures 252 and 210 was also cancelled for 205. Votes were allotted to political parties that did not present candidates for the election. This is an infraction of Chapter 5.2 Step 4 (e) of Manual for Election Officials, 2011. Despite this 2nd Respondent accredited 128 votes to the 1st Respondent. See Form EC8B (i) tendered by the 1st Respondent. We urge the Tribunal to deduct these 128 votes from the total scores of the 1st Respondent.
3.23 KEKOWA PLAY GROUND - POLLING UNIT 009: The Result Sheet - Form EC8A (i) was not stamped and signed by the Presiding Officer. This is a contravention of Sections 63 (1) & (2) of the Electoral Act (supra). See Section 74 of the Electoral Act (supra). See Chapter 5.4 of the Manual for Election Officials, 2011. There were numerous alterations on the result sheet which cast serious doubts on its authenticity. These alterations were not signed and or counter signed by the Presiding Officer. The 2nd Respondent has not proffered any explanation why they are so many alterations on the result sheet.
Scores were given to parties that did not present or nominate candidates in the election. This constitutes an infringement of Chapter 5. 2 Step 4 (e) of the Manual for Election Officials, 2011.
We humbly urge the Tribunal to deduct the 64 votes which were accredited to the 1st Respondent from this Polling Unit from the total scores of the 1st Respondent. See Form EC8B (i) tendered by the 1st Respondent, where the 1st Respondent was accredited with 64 votes.
3.24 PCN PRIAMRY SCHOOL IDOMI - POLLING UNIT 011: Form EC8B (i) was not stamped and signed. This constitutes a violation of Chapter 5.4 Step 8 of the Manual for Election Officials, 2011. See also Section 63 (1) & (2) of the Electoral Act. See Section 74 of the Electoral Act. It is instructive that in Law any document not signed is totally and completely worthless and incapable of any evidential value; Votes were allotted to Political Parties that did not contest the election; There were cancellation/alterations in columns 7 and 8 which were not signed or countersigned by the Presiding Officer. The 168 votes allocated to all the parties listed in this result sheet contradict the figure 182 recorded in column 9. See Form EC8B (i) tendered by the 1st Respondent, where the 1st Respondent was accredited with 106 votes. We urge the Tribunal to deduct these 106 votes from the total scores of the 1st Respondent.
The 1st Respondent was accredited with a total vote of 1, 140 in Idomi Ward in Form EC8B (i) tendered by his Counsel from the Bar during trial. We urge the Tribunal to deduct these 1,140 votes from the total score of 9163 accredited to the 1st Respondent in form EC8E (i) which was tendered by the 1st Respondent. These are unlawful votes. If these 1,140 votes are deducted from the total scores of 9163, the 1st Respondent will be left with 8,023 votes. See EXHIBIT G tendered by the 1st Respondent and which the total scores of both the Petitioner and the 1st Respondent were recorded.
3.25 DEDUCTION OF UNLAWFUL VOTES ACCREDITED TO THE 1ST RESPONDENT IN NTAN AND IDOMI COUNCIL WARDS:
In Form EC8B (i) for Ntan Ward, the 1st Respondent was accredited with 1,633 votes, while in Form EC8B (i) for Idomi Council Ward, the 1st Respondent was accredited with 1,140 votes. These votes from Idomi and Ntan Council Wards added together (1633 plus 1140) would equal to 2773. The total votes of the 1st Respondent in Form EC8E (i) is 9163 votes. If 2273 is subtracted from 9163, the 1st Respondent will be left with 6890. It is submitted that these votes from Idomi and Ntan Ward are unlawful votes as highlighted above. It follows that if these unlawful votes from Idomi and Ntan Council Wards are deducted from the total scores of the 1st Respondent as recorded in FORM EC8E(i),the 1st Respondent’s total scores would be reduced to 6890.
It is instructive to note that the Petitioner was credited with 7244 votes in Form EC8E (i). It goes without saying that the Petitioner has overtaken the 1st Respondent and should be declared the winner of the election.
3.26 AFREKPE/EPENTI COUNCIL WARD
The Polling Units in Afrekpe/Epenti Council Ward as can be gleaned from Exhibit ..... tendered by the Petitioner and admitted by the Tribunal during trial are as follows:
a. LEKPANKOM COMMUNITY HALL - 001
b. YAGBUNJI TOWN HALL- 002
c. OUTSIDE POSTAL AGENCY – 003
d. ST FRANCIS SCHOOL – 004
e. KOTANI PLAYGROUND - 005
f. YAGBUNJI CIVIC CENTRE – 006
g. ST FRANCIS PRIMARY SCHOOL – 007
h. IBOM PLAYGROUND – 008
i. PRIMARY SCHOOL AFREKPE - 009
j. MARKET SQUARTE EKORI BEACH -010
k. ST FRANCIS PRIMARY SCHOOL - 011
3.27 LEKPANKOM COMMUNITY HALL – POLLING UNIT 001: There was no accreditation of voters before voting. See Exhibit C - C11. See also Chapter 3.1, Steps 1, 2, 3, 4, 5 & 6 of the Manual for Election Officials, 2011. The 1st Respondent was credited with 41 unlawful votes. We urge the Tribunal to deduct these 41 votes from the total scores of the 1st Respondent. It is well settled that where non accreditation is established no election can be said to have taken place.
It is also well settled that where non accreditation is alleged, the 2nd Respondent as the conductor of the election has the responsibility to establish that accreditation took place by tendering the Voters Register for that Polling Unit. The 2nd Respondent did not tender the voters register for this Polling Unit. The Tribunal is urged to presume that the 2nd Respondent did not tender these Voters Registers because if tendered they would have been adverse to the case of the 1st Respondent. See Section 167 (d) of the Evidence Act, 2011.See UKPO V. IMOKE (2009) 1 NWLR (PT. 1121) 90 @ 150, paras. D-F 168; C-F, 176 , paras H-B.
3.27 YAGBUNJI TOWN HALL- 002 POLLING UNIT: The Result Sheet – Form EC8A (i) for this Polling Unit was not signed nor stamped. This constitutes a flagrant contravention of Section 63 (1) & (2) of the Electoral Act which makes it mandatory for a Presiding Officer to sign and stamp a result sheet from his Polling Unit. See also S. 74 of the Electoral Act, supra. In law, an unsigned document is completely worthless and without any probative value. An Unsigned document is incapable of establishing a fact. See GARUBA v. KWARA INVESTMENT CO LIMITED (2005) ALL FWLR (PT. 252) 469 @ 473. It is well settled that an unsigned document is worthless. See also SEIDU v. AG, LAGOS STATE (1986) 2 NWLR (PT. 21) 165. We therefore respectively urge the Tribunal to void the result from this Polling Unit on this account alone and deduct the votes credited to the 1st Respondent from this Polling Unit. The 1st Respondent was accredited with 292 votes in this Polling Unit in Form EC8A (i). We urge the Tribunal to expunge and deduct these 292 votes from the total tally of the 1st Respondent. The 292 votes was entered in Form EC8B (i) tendered by the 1st Respondent.
It is submitted that signing of results sheets such as (Form EC8A (i) is one of the mandatory steps to be taken for an election to be or be deemed as concluded. The steps are as follows:
(a) Accreditation
(b) Conduct of poll;
(c) Counting of votes;
(d) Collating of results;
(e) Signing of results;
(f) Publication of results
In SOWEMIMO V. AWOBAJO (1999) 3 N.W.L.R (PT. 595) 387, the Court of Appeal, illuminated the position of the Law thus:
“In the instant case, steps (a)-(d) had been concluded, the trouble started when it came into signing of result and publication of the result. A look at Exhibit “A” i.e. the result sheet of the election of the 2nd respondent (the Resident Electoral Commissioner, Ogun State). This omission confirms its inconclusive and a fortiori invariably of the election. On the other hand, Exhibit E (the result sheet of the bye election of 16/1/99 was duly executed by all the signatories except the 1st respondent’s agent. Consequently the result of the election on Exhibit E should be better regarded as evidence of a conclusive election than those in Exhibit A. Therefore the holding of the tribunal to the contrary on the validity of Exhibit A as against Exhibit E must be in error. Furthermore, it is erroneous for the 1st respondent to argue that the result of Akaka Ward in Exhibit E is still missing as it was under Exhibit A. By looking at the two exhibits, it is clear that the position or result of Akaka ward as stated in 1st Respondent’s brief was misconceived. Exhibit E gave the result of all the Wards (including Akaka and IIara).The 2nd and 3rd respondents therefore were right to conduct a bye-election having validly cancelled the election of 9/1/99”.
3.28 OUTSIDE POSTAL AGENCY- POLLING UNIT 003: Form EC8A (i) for this Polling Unit clearly establishes a case of over voting. In the left hand column of the Form it is stated that 157 voters were in the queue before voting commenced. However, 168 total valid votes were recorded in Form EC8A (i). This is contrary to the provisions of Section 58 (2) of the Electoral Act (supra) which provides thus:
“Where the votes cast at an election in any polling unit exceed the number of registered voters in that polling unit, the result of the election for that polling unit shall be declared null and void by the Commission and another election may be conducted at a date to be fixed by the Commission where the result at that polling unit may affect the overall result in the Constituency”.
Votes were whimsically allocated to Political Parties that did not sponsor candidates in the election. This is a contravention of Chapter 5.2 Step 4 (e) of the Manual for Electoral Officials, 2011.
In the said Form EC8A (i) for this Polling Unit, 178 voters were accredited, but 157 were in the queue before voting commenced. However, 178 total valid votes cast were recorded which means than more people voted than those accredited. This also contradicts the 196 total numbers of used ballots papers recorded in the said Form EC8A (i).
3.29 KOTANI PLAY GROUND – POLLING UNIT 005: The (Form EC8A (i) Result Sheet neither signed nor stamped. This is contrary to the intendment of Sections 63 (1) & (2) and 74 of the Electoral Act. An unsigned result sheet is conclusive evidence that elections was not conducted in substantial compliance with the Electoral Act, supra, and therefore void. See SOWEMIMO V. AWOBAJO (1999) 3 NWLR (Pt.595) 387. In law, an unsigned document is completely worthless and without any probative value. It is settled that an Unsigned document is incapable of establishing a fact. See GARUBA v. KWARA INVESTMENT CO LIMITED (2005) ALL FWLR (PT. 252) 469 @ 473. See also SEIDU v. AG, LAGOS STATE (1986) 2 NWLR (PT. 21) 165.
We therefore respectively urge the Tribunal to void the results from this Polling Unit on this account alone and deduct the votes accredited to the 1st Respondent from this Polling Unit. The 1st Respondent was credited with 184 votes in Form EC8A (i) which was entered into Form EC8B (i) tendered by the 1st Respondent. We therefore respectfully invite the Tribunal to deduct these 184 votes from the total scores of the 1st Respondent.
In Form EC8A (i) votes were allocated to Political Parties without candidates. This constitutes a gross contravention of Section 5.2 step 4 (e) of the Manual for Election Officials, 2011.
3.30 YAGBUNJI CIVIL CENTRE – POLLING UNIT 006: Accreditation which is the first step in an election was not done in this Polling Unit. This constitutes an infringement of Section 49 (1) & (2) of the Electoral Act. Section 49 (1) & (2) of the Electoral Act provides thus:
“(1) Any person intending to vote with his voter’s card, 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”.
The Voters Register for this Polling Unit which was tendered and admitted as Exhibit C-C11 clearly shows that accreditation did not take place. The voters register for this Polling Unit proves that the boxes which the Poll Clerk is supposed to tick when a voter is accredited were not ticked. If, there was no accreditation: how come result was entered into EC 8A (i) (Exhibit D-D11). The 1st Respondent was accredited with 292 votes in this Polling Unit in Form EC8A (i) that was entered into Form EC8B (i). We therefore invite the Tribunal to deduct these 292 votes from the total tally of the 1st Respondent.
3.31 ST. FRANCIS PRIMARY SCHOOL – 011: There was no accreditation in this Polling Unit. This is confirmed by the Voters Register of this Polling Unit when juxtaposed with Form EC8A (i) for the Unit. The Voters Register is among the documents tendered by the Petitioner. The Voters register for these Polling Unit as evident in Form EC 8 A (i) shows 156 were accredited but the total valid votes recorded in column 8 was 158. The number of used ballot papers recorded in column 9 is 192. This is a contradiction to the total valid votes said to have been recorded here. The 1st Respondent was accredited with 184 votes from this Polling Unit. We urge the Tribunal to deduct the unlawful votes of 184 accredited to the 1st Respondent.
3.32 UNLAWFUL VOTES ACCREDITED TO THE 1ST RESPONDENT FROM SOME POLLING UNITS IN AFREKPE/EPENTI:
The Polling Units were elections were not conducted in accordance with the Electoral Act in this Ward are thus:
i. LEKPANKOM COMMUNITY HALL – 001 POLLING UNIT
ii. YAGBUNJI TOWN HALL- 002 POLLING UNIT
iii. OUTSIDE POSTAL AGENCY- 003 POLLLING UNIT
iv. KOTANI PLAY GROUND – 005 POLLING UNIT
v. ST. FRANCIS PRIMARY SCHOOL – 011
The unlawful votes accredited to the 1st Respondent in the six Polling Units highlighted above as show in Form EC8A (i) and EC8B (i) are as follows:
i. LEKPANKOM COMMUNITY HALL – 001 POLLING UNIT-41 votes
ii. YAGBUNJI TOWN HALL- 002 POLLING UNIT - 292 votes
iii. OUTSIDE POSTAL AGENCY- 003 POLLLING UNIT - 84 votes
iv. KOTANI PLAY GROUND – 005 POLLING UNIT - 184 votes
v. ST. FRANCIS PRIMARY SCHOOL – 011 Polling Unit - 59 votes
From the foregoing, the total unlawful votes accredited to the 1st Respondent from these five Polling Units highlighted above amounts 660.
The 1st Respondent in Form EC8C (i) was credited with 1735 votes in Afrekpe/ Epenti Ward. We urge the Tribunal to deduct these 660 votes unlawfully accredited the 1st Respondent in the five polling units from these 1735 votes. The 1st Respondent had 1075 lawful votes from Afrekpe/Epenti Council Ward.
3.33 UNLAWFUL VOTES IN NTAN, IDOMI & AFREKPE COUNCIL WARDS DEDUCTED FROM THE TOTAL SCORES OF 9163:
We urge the Tribunal to deduct these 660 unlawful accredited to the 1st Respondent in addition to the unlawful votes accredited to the 1st Respondent in Ntan and Idomi Council Wards previously shown while we were discussing these Council Wards. (See Para 3.25 above)
In the light of the above, we urge the Tribunal to resolve Issues No. 3, 4 & 5 in favour of the Petitioner. We urge the Tribunal to give Judgment in favour of the Petitioner as prayed in the reliefs sought for in the Petition.
4.0 CONCLUSION
The Tribunal is invited respectfully to find in favour of the Petitioner because of the following reasons:
i. The Replies of the 1st & 4th Respondents are incompetent;
ii. The Reply of the 2nd & 3rd Respondents did not answer the made allegations against in the Petition;
iii. The Respondents abandoned their Replies by failing to call evidence.
iv. The Petitioner has established substantial non compliance in the conduct of the election in three Wards in Ntan, Idomi and Afrekpe/Epenti;
PETITIONER’S REPLY TO 1ST RESPONDENT WRITTEN ADDRESS
The 1st Respondent in this Written Address which was served on the Petitioner on the 4th November, 2011, at 3pm formulated two issues for determination thus:
1. Whether there is any evidence before this Honourable Tribunal to sustain the substantive Petition herein. In other words, whether the Petitioner herein has made out a case to be entitled to any claim or relief sought?
2. Whether the Petitioner herein has established on the balance of probability that the election of 26th April, 2011, was not conducted in substantial compliance with the provisions of the Electoral Act as amended?
REPLY OF THE PETITIONER TO THE ISSUES FORMULATED BY THE 1ST RESPONDENT
NOTICE OF OBJECTION
5.0 It is submitted that the 1st Respondent is not entitled to formulate issues for determination in view of the fact the 1st Respondent did not call evidence but rested his case on that of the Petitioner. It is well settled that in an election matter where the Respondent fails to call evidence he is not entitled to formulate issues for determination. We therefore respectfully invite the Tribunal to strike out the Written Address of the 1st Respondent wherein two issues were formulated for the determination of this Tribunal by the 1st Respondent. See DINGYADI V. WAMAKO (2008) 2 LRECN 102.
The Petitioner shall respond to the two issues formulated by the 1st Respondent in the event, his objection to the Written Address of the 1st Respondent is overruled thus:
REPLY TO ISSUE ONE (1)
5.1 The position of the 1st Respondent is that the Petitioner did not have any oral evidence upon which he can be entitled to any relief by the Tribunal. We submit this position of the 1st Respondent is not correct.
5.2 It is a misconception for the 1st Respondent to suggest that it is only oral evidence that is evidence. The Petitioner called documentary evidence in support of his case. The Petitioner tendered a number of documentary evidence. These documents were pleaded in his Petition.
5.3 Documentary evidence is real evidence upon which the Tribunal can rely on to decide this case.
5.4 We must underscore the fact that election Petitions are sui generis. It means that the principles which are ordinarily applicable to civil proceedings are normally not relevant to election petitions.
5.5 The Law is settled that a document tendered in Court is the best proof of the contents of such a document and no oral evidence will be allowed to discredit or contradict the contents except in cases where fraud is pleaded. See ATTORNEY GENERAL, BENDEL STATE V. UNITED BANK FOR AFRICA (1986) 4 NWLR (PT. 547) 547-563.
5.6 The submission in Paragraph 1.8 of the Written Address of the 1st Respondent that the Petitioner would not be entitled to judgment because of their failure to call evidence is not the position of the law. The position of the law is rather that where a defendant has refused to call evidence, the Plaintiff is only entitled to prove his case minimally. It is submitted that the Petitioner is required to prove its case, particularly on the portion of the Petition where the claim is civil in nature, minimally, in view of the fact that the 1st Respondent abandoned its pleading by filing his Reply to the Petition out of time. See DR. PAUL UKPO V. LIYEL IMOKE (2009) 1 NWLR (PT. 1121) 90.
5.7 The submission in Paragraph 1.9 of the Written Address of the 1st Respondent that there is a presumption of regularity in the result declared by INEC by virtue of Section 150 (1) of the Evidence Act is not a correct statement of law in a situation the Petitioner in this case has tendered documentary evidence to rebut that presumption. The presumption that results declared by INEC is rather not sacrosanct. It is rebuttable. See INEC V. RAY ONYIMBAH (2004) 2 LRECN 37; (2004) NWLR (pt. 892) 92.
5.8 The Petitioner has established through documentary evidence that there was no accreditation in several Polling Units particularly in Idomi and Ntan and Afrekpe/Epenti Wards. The Petitioner has established that several Result Sheets as in Forms EC8A (i) in Polling Units in Idomi; Ntan and Afrekpe/Epenti were not stamped and/or signed, which is very serious non compliance by INEC.
REPLY TO ISSUE NO. 2
6.2 The 1st Respondent submitted that the Petitioner made allegations of crime in his Petition such as intimidation of voters, violence, thuggery and armed banditry.
6.3 It is submitted that these criminal allegations were not the foundation of the Petition. The foundation of the Petition was civil wrongs.
6.4 The position of the law is settled that where the allegation of crime is not the foundation of the Petition, the Petitioner can invoke the principle of severance of pleadings for the Tribunal to strip the Petition of these allegations and treat the Petition as a mere civil claim.
6.5 A perusal of the Petition shows conclusively that the Petitioner only made criminal allegations in few paragraphs of the Petition such as 33, 43, 46, 47 & 53. It is clear that where the allegation of crime in the Petitioners Petition is severed or stripped of these paragraphs there will remain sufficient averments which bother on civil wrongs to sustain the Petition.
6.6 We humbly submit that this Petition is severable. It contains allegations that are civil and criminal in nature. See Paragraph 13 (a) & b) of the Petition. This is clearly discernible from the fact that the Petition is grounded on two distinct grounds of corrupt practices and non compliance. This is what is known as the Principle of Severance of Pleadings in Election Petition introduced by the Supreme Court in the case of Omoboriowo v. Chief Michael Adekunle Ajasin (1984) A. N. L. R 105 at 110 and 115.
6.7 In FAYEMI V. ONI (2009) 7 NWLR (PT. 1140) 223 @ 229, the Court of Appeal reiterated the position of the law thus:
“…Within the scope of section 138 of the Evidence Act, where in an election petition the petitioner makes the commission of crime the basis of his petition, subsection (1) imposes strict burden on him to prove the crime beyond reasonable doubt. If he fails to discharge the burden, his petition will fail. However, the provisions of section 138 (1) is subject to the principle of severance of pleadings. Thus, if in any civil proceedings the averments alleging crime are severable and if after such severance there still remain in the pleadings of the plaintiff or the petitioner sufficient averments devoid of crime alleged against any party to the proceeding and on which the petitioner can succeed in his claim or petition, then the burden of proof upon the petitioner is to prove his case on the balance of probability.
In the instant case, the appellant alleged violence, thuggery, ballot snatching, ballot stuffing, multiple thumb printing, falsification and allocation of votes against the respondents...”
6.8 We therefore urge the Tribunal to disregard and discount the submissions of the 1st Respondent to the two issues raised as unsubstantiated and inapplicable to the facts and circumstances of the Petitioner’s case.
DATED THIS 4TH DAY OF NOVEMBER, 2011.
CHIEF OKOI O. OBONO-OBLA
OBONO, OBONO & ASSOCIATES
(PETITIONER’S SOLICITORS)
TRINITY HOUSE, MABUSHI,
FEDERAL CAPITAL TERRITORY,
ABUJA, NIGERIA.
ADDRESS FOR SERVICE:
1. ON THE 1ST RESPONDENT
C/O THEIR SOLICITOR
EFIOM EKONG AND CO.
23, BEDWELL STREET, CALABAR.
2. ON THE 2ND AND 3RD RESPONDENTS
C/O THEIR SOLICITORS
EKURI, ONOR & CO
65, NDIDEM USANG ISO ROAD
CALABAR.
3. ON THE 4TH RESPONDENT
C/O THEIR COUNSEL
F. O. OBETEN
PDP STATE SECRETARIAT
CALABAR.
TABLE OF DECIDED CASES RELIED ON BY THE PETITIONER
1. See UDEAGHA V. OMEEGARA (2010) 11 NWLR (PT. 1204) 168
2. Omoboriowo v. Chief Michael Adekunle Ajasin (1984) A. N. L. R 105 at 110 and 115.
3. FAYEMI V. ONI (2009) 7 NWLR (PT. 1140) 223 @ 229
4. INEC V. RAY ONYIMBAH (2004) 2 LRECN 37; (2004) NWLR (pt. 892) 92
5. DR. PAUL UKPO V. LIYEL IMOKE (2009) 1 NWLR (PT. 1121) 90
6. ATTORNEY GENERAL, BENDEL STATE V. UNITED BANK FOR AFRICA (1986) 4 NWLR (PT. 547) 547-563.
7. DINGYADI V. WAMAKO (2008) 2 LRECN 102.
8. SOWEMIMO V. AWOBAJO (1999) 3 NWLR (Pt.595) 387
9. GARUBA v. KWARA INVESTMENT CO LIMITED (2005) ALL FWLR (PT. 252) 469 @ 473.
10. SEIDU v. AG, LAGOS STATE (1986) 2 NWLR (PT. 21) 165.
11. CHIEF SULEIMAN AJADI v. CHIEF SIMEON AJIBOLA (2004) 16 NWLR (PT. 898) 9 @ 170 Para E - G.
12. FIDEL AYOGU v. CHIMAROKE NNAMANI (2004) 15 NWLR (PT. 895) 134.
DATED THIS 4TH DAY OF NOVEMBER, 2011.
CHIEF OKOI O. OBONO-OBLA
OBONO, OBONO & ASSOCIATES
(PETITIONER’S SOLICITORS)
TRINITY HOUSE, MABUSHI,
FEDERAL CAPITAL TERRITORY,
ABUJA, NIGERIA.
OR C/O O.U.OKA & ASSOCIATES
NO. 102 CALABAR ROAD, CALABAR,
CROSS RIVER STATE, NIGERIA
HOLDEN AT CALABAR
PETITION NO.EPT/CR/SA/10/2011
THE ELECTION INTO YAKURR I STATE CONSTITUENCY OF THE CROSS RIVER STATE HOUSE OF ASSEMBLY HELD ON SATURDAY THE 26TH DAY OF APRIL, 2011.
BETWEEN
OTU BASSEY UKPENTU - PETITIONER
AND
1. MFAWA OFEGOBI
2. INDEPENDENT NATIONAL ELECTORAL
COMMISSION RESPONDENTS
3. THE RETURNING OFFICER, YAKURR 1
STATE CONSTITUENCY, CROSS RIVER
STATE
4. PEOPLES DEMOCRATIC PARTY
FINAL WRITTEN ADDRESS OF THE PETITIONER AS ORDERED BY THE TRIBUNAL ON WEDNESDAY THE 2ND DAY OF NOVEMBER, 2011
INTRODUCTION
This is the Final Written Address of the Petitioner as ordered by the Tribunal on the 2nd Day of November, 2011 at the close of the case of the Petitioner. The Respondents did not call any evidence at the close of the case of the Petitioner.
STATEMENTS OF FACTS
1. The election into the Yakurr One State Constituency of the Cross River State House of Assembly was conducted on the 26th April, 2011. At the conclusion of the election the 1st Respondent who contested under the platform of the 4th Respondent was declared the winner of the election with 8920 votes. The Petitioner who contested the election was said to have scored 7451 votes. The Petitioner was utterly unhappy with the result of the election. On the 17th May, 2011, the Petitioner presented a Petition before this Tribunal seeking the following reliefs thus:
i. That it may be declared that the election and return of the 1st Respondent in Idomi, Afrekpe/Epenti & Ntan Council Wards of Yakurr 1 State Constituency is voided by corrupt practices and substantial non compliances with the provisions of the Electoral Act, 2010 (as amended).
ii. That it may be declared that the 1st Respondent did not score majority of the lawful votes cast in the election into the Yakurr 1 State Constituency of the Cross Rive State House of Assembly of Cross River State of Nigeria held on the 26th April, 2011.
iii. That it may be determined that the result declared by the 2nd Respondent on the 27th day of April, 2011, by which the 1st Respondent was returned as the elected House of Assembly Member for the election into Yakurr 1 State Constituency of the Cross River State House of Assembly of Cross River State of Nigeria is wrongful, null and void.
iv. An Order setting aside the Certificate of Return Issued to the 1st Respondent.
v. That it may be determined that the Petitioner won the majority of the lawful votes cast in the election into Yakurr One (1) State Constituency of the Cross River State House of Assembly held on the 26th April, 2011.
vi. An Order directing the 2nd Respondent to issue Certificate of Return to the Petitioner as the winner of the said election.
vii. And such Order(s) or Relief(s) as the Honourable Tribunal may deem fit and just to make or grant in the circumstances of this case.
2. The Petition was served on the 1st Respondent on the 2nd June, 2011, while the 2nd, 3rd & 4th Respondents were served on the 26th May, 2011.
3. By the provisions of Paragraph 12 (1) of the First Schedule to the Electoral Act, 2010 (as amended) the, Respondents have 14 days from service of the Petition to file their Replies.
4. The 1st Respondent purportedly filed his Reply on the 22nd June, 2011, while the 2nd, 3rd and 4th Respondents filed their Replies on the 15th June, 2011.
5. However, when the 2nd & 3rd Respondents realized that their Reply was filed out of time, they filed a Motion on Notice seeking the following reliefs thus:
i. AN ORDER extending time for the 2nd & 3rd Respondents to file their Reply to the Petition out of time.
ii. AN ORDER deeming the Reply filed on the 15th of June before this Honourable Court Tribunal as properly filed and served.
iii. AND for such further order(s) as this Honourable Tribunal may deem fit to make in the circumstances.
6. The Motion of the 2nd & 3rd Respondents seeking for extension was moved and granted by the Tribunal on the 31st October, 2011.
7. The trial of the case commenced on the 1st November, 2011. At the pre-trial hearing, the Petitioner through his Counsel with Consent of the Respondents had tendered from the Bar the following documents thus:
i. Voters Registers for Idomi Ward - Exhibits A - A4
ii. Voters Register for Ntan Ward - Exhibits B - B4
iii. Voters Register for Afrekpe/Epenti Ward - Exhibits C - C11
iv. Form EC8 A (i) for Afrekpe/Epenti - Exhibits D - D11
v. Form EC8 A (i) for Ntan (Seven Polling Units) - Exhibits E – ES
vi. Form EC8 A (i) for Idomi (Nine Polling Units) - Exhibits F - F9
vii. Form EC8 A (i) for Afrekpe/Epenti (Eleven Polling Units) - Exhibits D-D11
8. These documents (above) were pleaded in Paragraphs 34 - 74 of the Petition. The documents were also listed in the List of Documents pleaded by the Petitioner. See page 5 of the Petition.
9. On the other hand, the Counsel to the 1st Respondent tendered from the Bar the fllowing documents thus:
i. Form EC8E(i) - Exhibit L
ii. Form EC8B (i) - Exhibit K
iii. Form EC8B(i) – Exhibit I
iv. Order of the Federal High Court in Suit No. FHC/CA/CS/17/2011 - Exhibit H
10. The 2nd & 3rd Respondents did not tender the documents listed in their List of Documents pleaded and attached to its Reply filed on the 15th June, 2011.
11. The 4th Respondent did not tender any document.
12. At the trial, the Petitioner called 4 (four) witnesses but the Tribunal upon the objection by the Respondents on the ground that the Petitioner’s witnesses’ Statements on Oath were contrary to Section 13 of the Oaths Act, 2004, rejected the Statements on Oaths of these witnesses and ordered that they should be marked rejected.
13. The Respondents did not call any evidence.
ISSUES FOR DETERMINATION
1. Whether the Replies filed by the 1st and 4th Respondents are competent in view of the fact that the 1st Respondent was served with the Petition on the 2nd June, 2011 while the 4th Respondent was served on the 26th May, 2011, but elected to file their Replies on the 22nd June, 2011, and 14th June, 2011, respectively?
2. Whether the 2nd & 3rd Respondents Reply constitute a Reply within the import of the provisions of Paragraph 12 (1) of the First Schedule to the Electoral Act and if the answer is in the negative whether the Reply of the 2nd & 3rd Respondents have frontally and positively answered to the allegations made in the Petition against the 2nd & 3rd Respondents?
3. Whether the Petitioner needed to call evidence in view of the fact that the Respondents had no Replies, their Replies being filed outside the 14 days mandated by the Electoral Act, 2010 (as amended)?
4. Whether the Petitioner has not proved the civil aspects his case by the documentary evidence before the Tribunal pursuant to the principles of severance of pleadings?
5. Whether Exhibits tendered by the Petitioner has not established that the 1st Respondent did not score the majority of lawful votes cast at Idomi, Ntan and Afrekpe/Epenti Council Wards in the election held on the 26th April, 2011?
ARGUMENT OF ISSUE NO 1.
1.1 It is well settled that the 1st Respondent was served with the Petition on the 2nd June, 2011.
1.2 The 4th Respondent was served on the 26th May, 2011. The 2nd & 3rd Respondents were served with the Petition on the 26th May, 2011.
1.3 However, the 1st Respondent filed his Reply to the Petition on the 22nd June, 2011, more than 20 days after he was served with the Petition, while the 2nd, 3rd and 4th Respondents filed their Replies on the 15th of June, 2011, also more than 20 days after the service on them of the Petition.
1.4 The 1st Respondent has 14 days from service of the Petition to file his Reply. Since the 1st Respondent was served with the Petition on the 2nd June, 2011, time will begin to run for him for the purpose of filing the Reply on the 3rd June, 2011 and expired on the 16th June, 2011. See FIDEL AYOGU v. CHIMAROKE NNAMANI (2004) 15 NWLR (PT. 895) 134.
1.5 The 1st Respondent in utter disregard of the clear and unambiguous provisions of Paragraph 12 (1) of the 1st Schedule to the Electoral Act, 2010 (as amended) that enjoins a Respondent to a Petition to file his Reply within 14 days of the service on him of the Petition, rather filed hid Reply on the 22nd of June, 2011. It is pertinent to reproduce the provisions of the 1st Schedule to the Electoral Act (supra) thus:
“The respondent shall, within fourteen days of service of the petition on him file in the Registry his reply, specifying in it which of the facts alleged in the election petition he admits and which he denies, and setting out the facts on which he relies in opposition to the election petition”.
1.6 It is submitted that Paragraph 12 (1) of the 1st Schedule to the Electoral Act must be read together with the Provisions of Section 134 (2) of the Electoral Act, 2010 (as amended) which stipulates that an election Petition must be heard and judgment delivered 180 days from the day of the filing of the Petition.
1.7 It is clear that time is of essence in the hearing and determination of election petitions and no amount of dilatoriness on the part of parties to the election petition are permissible.
1.8 In the case of PEOPLES DEMOCRATIC PARTY v. WILLIAM BALLANTYNE & THREE OTHERS (unreported) decided by the Court of Appeal, Calabar on the 20th July, 2011 in Appeal No. CA/C/NAEA/134/2011, Massoud Abdurrahman Oredola, JCA, in page 7-9 of the Judgment underscored the essence of time in an election petition thus:
“There is no doubt that time is of the essence in the handling of election petitions. This probably informed the decision by the National Assembly in deleting Section 134 of the Electoral Act 2010 and amending Section 29 of the First Alteration Act and Section 285 of the Constitution of the Federal Republic of Nigeria. The erstwhile Section 134 of the Electoral Act, 2010 which was deleted by Section 32 of Electoral (Amendment) Act No. 10 of 2010 by Section 32 of Electoral (Amendment) Act No. 10 of 2010 stipulated as follows: ‘134-(1) An election petition shall be filed within 21 days after the date of declaration of results of the elections. 2. An election tribunal must deliver its judgment in writing within 180 days from the date of the filing of the petition. 3. An appeal from a decision of an election tribunal or court shall be heard and disposed of within 90 days from the date of delivery of judgment of the tribunal. 4. The Court in all appeals from election tribunals may adopt the practice of first giving its decisions and reserving the reasons thereto for the decision at a later date’. By deleting this provision and amending Section 285 of the Constitution, whatever lingering doubts anybody had about the importance the National Assembly placed on the prompt disposal of election petitions, was removed. Even the period for the hearing and disposal of appeals was reduced. Section 9 of the Constitution of the Federal Republic of Nigeria (Second Alteration) Act No. 2 of 2010 substituted Sections 29 of the First Alteration Act and Section 285 of the Constitution and provides in Subsections (5) - (8) as follows:
‘(5) An election Petition shall be filed within 21 days after the date of the declaration of result of the elections;
(6) An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.
(7) An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of delivery of judgment of the tribunal or Court of Appeal.
(8) The Court in all final appeals from an election tribunal or court may adopt the practice of first giving its decision and reserving the reasons therefore to a later date.’
Since Section 134 of the Electoral Act has been deleted and a specific provision is made under Section 285 of the Constitution (as amended), the enlargement of time envisaged under paragraph 45 of the 1st Schedule to the Electoral Act is no longer feasible. The effect of the failure to file the Respondent’s Reply within 14 days of service on him of the Petition as stipulated under paragraph 12 (1) of the 1st Schedule to the Electoral Act is tantamount to a breach of Section 285 of the Constitution and cannot be waived or overlooked”.
1.9 Also in the case of PEOPLES DEMOCRATIC PARTY v. EYO NSA EKPO & THREE OTHERS (unreported) in Appeal No. CA/C/NAEA/144/2011 decided on the 21st July, 2011, the Court of Appeal, Calabar Division, decided that a Reply to an election Petition must be filed within 14 days from service of the Petition. See Page 11 of the Judgment, where K. B. Akaahs, JCA said thus: “The Appellant knew it had 14 days to file its Reply. It was out of time for 18 days. Meanwhile the time to determine the petition did not stand still. The cry to do justice to the appellant must take into consideration the right of the Petitioner to have his petition determined within the stipulated time prescribed in the Constitution. See: JOSIAH v. THE STATE (1985) 1 NWLR (Pt. 1) 125 @ 141”.
1.10 In the light of the above, it is clear as the crystal ball that the 1st and 4th Respondents’ Replies filed on the 22nd June, 2011, and 15th June, 2011, respectively were filed out of time and therefore are incompetent and should be struck out.
ARGUMENT OF ISSUE NO. 2
2.1 The Reply of the 2nd & 3rd Respondents was purportedly filed on the 15th June, 2011 despite the fact that they were served on the 26th May, 2011 with the Petition.
2.2 The Petition has 84 Paragraphs in which weighty allegations of non compliance with the provisions of the Electoral Act, 2010 (as amended) were made against the 2nd & 3rd Respondents.
2.3 However in their Reply to the Petition, the 2nd & 3rd Respondents curiously filed a 6 paragraphed Reply. In the Reply, the 2nd & 3rd Respondents admitted Paragraphs 1 - 4, 6 and 7 and 77 - 82 of the Petition.
2.4 The position of the law is that to constitute an effective and sufficient denial of averments in the Statement of Claim, or Petition the denial in the Statement of Defence or Reply to a Petition must be apt, precise, succinct, full and complete and not evasive, vague and bogus. However the denial need not touch minutely on every bit of the averments in a Petition or Statement of Claim as this will unnecessarily lengthen the Reply.
2.5. Thus in so far as the denial specifically meets the point of substance pleaded in the Petition or Statement of Claim it qualifies as a denial: See EL-TIJJAHI V. SAIDU (1993) 1 NWLR (PT. 268) 246.See UDEAGHA v. UMEGARA (2010) 12 NWLR (PT. )
2.6 It is submitted that by virtue of paragraph 12 (1) & (2) of the First Schedule to the Electoral Act, supra, what is required of a respondent to an election petition is to specify in his reply which of the facts alleged in the Petition he admits and which he denies and setting out the facts on which he relies in opposition to the Petition. In other words all paragraphs 12 (1) & (2) of the First Schedule requires are facts constituting a denial put up in opposition to a Petitioner’s assertions.
2.7 A cursory reading of the Reply of the 2nd & 3rd Respondents reveals that it is totally and completely out of sync with the tenor of Paragraph 12 (1) of the First Schedule. The 2nd & 3rd Respondents failed to join issue or lay out sufficient facts on which they relied on to oppose the Petition.
2.8 The Petition made substantial and weighty allegations in the entire gamut of the Petition against Presiding Officers and other agents employed by the 3rd Respondent which were used in the conduct of the election which requires the 2nd & 3rd Respondents to specifically deny but which they failed to deny.
2.9 It is submitted that the denial of the Respondents is evasive, perfunctory, vague, nebulous and generalized and does not constitute a denial in law. See Paragraph 3 of the Reply of the 2nd & 3rd Respondents.
2.10 The allegation made against these agents of the 3rd Respondents ranges from collusion, falsification of figures, allocation of figures etc which requires the Respondents to specifically and pointedly or frontally deny same.
It is clear that the Respondents elected to be evasive, shifty and dodgy to simply escape from joining issues or frontally evade these allegations made in the Petition against them. See Paragraphs 33-75 of the Petition. See UDEAGHA V. OMEEGARA (2010) 11 NWLR (PT. 1204) 168 @ 175, HOLDEN 2.
2.11 It is not enough for the Respondents to simply assert that the election was conducted in compliance with the provisions of the Electoral Act; they must furnish specific particulars in their Reply to support of their assertion that the election was conducted in compliance with the provisions of the Act.
2.12 A denial in a Respondent’s Reply need not minutely touch on every bit of averment of a Petition. It is enough if the denial specifically meets the point of substance pleaded in the Petition. See OPIA v. IBRU (1999) 3 NWLR (Pt. 231) 658.
2.13 In the instant case, there was no denial in the Reply of the 2nd and 3rd Respondents which specifically meets the point of substance in the Petition. Paragraphs 2 & 4 of the 2nd & 3rd Respondents’ Reply cannot by any stretch of the imagination constitute specific denials of the Petition.
2.14 The 2nd and 3rd Respondents are obligated to plead facts to demonstrate that the election was conducted in substantial compliance with the provisions of the Electoral Act. In several Paragraphs of the Petition allegations were made that the 3rd Respondents allowed voters who were not accredited to vote or that the number of votes cast in several Polling Units in contention exceeded the number that were accredited and in such a circumstances it is not enough for the 3rd Respondent to simply assert that the election was conducted in accordance with the provisions of the Electoral Act without putting forwards facts to establish that the allegation is not correct.
2.15 In the light of the above, we respectfully invite the Tribunal to resolve this issue in favour of the Petitioner and hold that the Reply of the 2nd and 3rd Respondents has failed woefully to frontally and pointedly answer the point of substance in the Petition and therefore the 2nd and 3rd Respondents have by implication admitted the Petition.
2.16 It is clear that the 2nd & 3rd Respondents had no Reply to the Petition.
2.17 We therefore respectfully invite the Tribunal to strike out the Reply of the 2nd & 3rd Respondents for being at variance with the purport of the provisions of Paragraph 12 (1) of the 1st Schedule to the Electoral Act (supra).
ISSUES 3, 4 & 5 SHALL BE ARGUED TOGETHER
6.1 3.0 The Petition shows that the Petitioner’s case is founded on two planks, primarily on civil and then some criminal allegations. The Criminal aspects of the Petition can be found in paragraphs 33, 43, 46, 47 & 53 out of the 84 paragraphed of the Petition. We submit that by the principles of severance of pleadings enunciated in the celebrated Supreme Court case of Omoboriowo v. Chief Michael Adekunle Ajasin (1984) A. N. L. R 105 at 110 and 115, this Tribunal can severe conclusively criminal allegations made out by the Petitioner in the few paragraphs of the Petition such as 33, 43, 46, 47 & 53. It is clear that where the allegation of crime in the Petitioners Petition are severed or stripped of these paragraphs there will remain sufficient averments which bother on civil wrongs to sustain the Petition. We urge the Tribunal to severe the criminal aspects of Petitioner’s Petition and treat the Petition as a civil claim, which standard of proof then becomes a balance of probabilities and or preponderance of evidence.
3.1 It is submitted that where a Respondent fails to file his Reply or abandons his Reply by not calling evidence, the Petitioner is entitled to prove his case by minimal proof. Ordinarily the standard of proof required of a Petitioner who alleges that there has been non compliance with the provisions of the Electoral Act is on a preponderance of evidence. This is because an election petition, being specie of a civil suit, is only required to be proved on balance of probabilities. All that the Petitioner needs establish is that his story is more likely to be true than that of the Respondent’s. See SWEM v. DZUNGWE (1966) 1 SCNLR 111. See INEC & ORS V. OSHIOMOLE & ANOR. (2008) (PT 3) LRECN 649.
3.2 In this case the Petitioner has established his case by tendering documentary evidence to prove the election in 3 (Three) Wards (Ntan, Afrekpe/Epenti & Idomi) where the 1st Respondent was allotted 4273 votes was not conducted in compliance with the Electoral Acts. Exhibit E - ES is the Result Form EC8A (i) of 7 (Seven) Polling Units in Ntan Ward of Yakurr One State Constituency). Form EC8A (i) is the foundation or bedrock for the collation of results in subsequent Forms and therefore cannot be ignored by any election tribunal. See KRESS NJIOKWUEMENI v. VICTOR OCHEI (2004) 15 NWLR (PT. 895) 196 @ 235. See NWOBODO v. ONOH (1984) 1 SCNLR 1.
3.3 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, supra.
3.4 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.
3.5 The Polling Units covered by Exhibit EC - ES are as follows:
i. KEKONKOLO TOWN HALL – 001
ii. AFUAFUA TOWN HALL – 002
iii. ATAKPA TOWN HALL – 003
iv. NGEM – 004
v. PCN PRY SCH – EKORI – 005
vi. ROAD JUNCTION – 006
vii. AKUGOM TOWN HALL – 007
3.6 KEKONKOLO TOWN HALL – POLLING UNIT 001: A cursorily examination of the Exhibits EC-ES in respect of the Polling Units in Ntan Ward as shown above, shows clearly that the election in Ntan Ward was not conducted in substantial compliance with the provisions of the Electoral Act (supra). It is submitted that the violation of the provisions of the Electoral Act was blatant in Kekonkolo Town Hall, Polling Unit 001 in a most reckless manner as we are going to highlight below.
In this Polling Unit 227 voters were in the queue before voting commenced, but the result sheet shows 432 voters minus 9 voters which brought the figure of total valid votes recorded for that Polling Unit to 423. It is submitted that that the Petitioner has been able to establish that the total number of persons who voted in this Polling Unit were more than those who turned out on the queue to vote. This is excessive or over voting which amounts to substantial non compliance. See Section 53 (1) of the Electoral Act.
In TERAB v. LAWAN (1992) 3 NWLR (PT. 231) 569 @ 587-588, the Court of Appeal held that a case would have been made for nullification of results from polling units where the number of votes cast for both parties exceeded the number of accredited voters on the queue if the petitioner succeeded in showing that was the position in some polling units. See SERIKI V. ARE (1999) 3 N.W.L.R (PT. 595) 469 @ 472. See INEC v. RAY (2004) 14 NWLR (Pt. 892) 92.
The Petitioner has tendered Exhibit E - ES which include the Voters Register for the Polling Unit to establish that there was excessive voting (i.e. those who voted were more than those accredited). It is evident the 1st Respondent scored 390 unlawful votes in this Polling Unit. Furthermore in the same Polling Unit, Form ECA 8 (i) was not stamped or signed. This is another illustration of substantial non compliance. Section 64 (1) & (2) of the Electoral Act (supra) provides as follows:
(1) “The Presiding Officer shall; after counting the votes at the polling unit, enter the votes scored by each candidate in a form to be prescribed by the Commission as the case maybe.
(2) The form shall be signed and stamped by the Presiding Officer and counter signed by the candidates or their polling agents where available at the Polling Unit.”
See also Section 74 of the Electoral Act (supra).
This Exhibit (Kekonkolo Town Hall, Polling Unit 001) if juxtaposed with the Voters Registers for Kekonkolo Polling Unit (Exhibit B-B4) shows that there was multiple voting by Grace Bam (No. 99 and 112 in the Voters Register) Ekim Mary Omini (No. 100 and 111 in Exhibits B-B4).
The Tribunal is invited to deduct these 390 unlawful votes from the total scores of the 1st Respondent in the election.
3.7 AFUAFUA TOWN HALL – POLLING UNIT 002: In this Polling Unit there was no accreditation of voters. This is borne out by Form EC8A (i) - Exhibit E-ES for Afuafua Town Hall Polling Unit. However, a total number of 323 voters were recorded out which 229 votes were unlawfully accredited to the 1st Respondent in Form EC8B (i). It is submitted that since there was no accreditation in this Polling Unit any result emanating from this Polling Unit is void. See Section 49 (1) & (2) of the Electoral Act (supra) which provides as follows:
(1) “A person intending to vote with his voter’s card, 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 that the person has voted.
It is submitted that accreditation of voters in an election is a mandatory responsibility which the Presiding Officer must ensure that it is carried out before voting would be allowed to start. It is well settled that accreditation is an important step in the conduct of an election that should be taken by the Presiding Officer before a voter would be allowed to cast his/her vote. Only accredited voters would be allowed to vote. A ballot without accreditation cannot be a valid ballot paper and without a valid ballot paper, there can be no valid election. Any vote returned without an accreditation for a particular voting unit cannot be said to have been obtained through due electoral process. See NWEKE v. EJIMA (1999) 11 NWLR (PT. 625) 39; CHIEF SULEIMAN AJADI v. CHIEF SIMEON AJIBOLA (2004) 16 NWLR (Pt. 898) 182 -183.
In AJADI V. AJIBOLA, supra, Adekeye JCA relied on the case of TERAB V. LAWAN (1992) 3 NWLR (PT. 231) 569 @ 587-588 and stated thus on non-accreditation:
‘A polling station where voters are not accredited and scores are registered at such stations such scores can be excluded from valid votes’ Para B – C @ page 183
We therefore respectfully invite the Tribunal to deduct the 229 votes unlawfully accredited to the 1st Respondent in Form EC8B (i) tendered by the 1st Respondent, from his total votes scored at the election.
3.8 ATAKPA TOWN HALL – POLLING UNIT 003: The Result Sheet - Form EC 8A (i) was not stamped; the date of the election was not stated; the Presiding Officer did not sign Form EC 8A (i). The number of voters in the queue before voting commenced was 263 but 318 was said to have voted. See SERIKI V. ARE (supra) 472.
We urge the Tribunal to nullify the scores accredited to the 1st Respondent from this Polling Unit and deduct the 287 votes accredited to the 1st Respondent from his totally tally. The Tribunal has the power to deduct illegal or unlawful votes from the 1st Respondent’s total tally or score. See NWEKE V. EJIMS (1999) 11 NWLR (Pt. 225) 39 @ 44.
3.9 NGEM – POLLING UNIT 004: There was no accreditation, collation of results; declaration of results. The election here was a total sham as it was not conducted in accordance with the Electoral Act. The Petitioner tendered the Voters Register for this Polling Unit, Exhibit E-ES to show that there was no accreditation. However the 1st Respondent was accredited with unlawful votes of 198.
We respectfully invite the Tribunal to deduct this 198 votes from the total tally accredited to the 1st Respondent in the election in Form EC8B (i) tendered by the 1st Respondent.
3.10 PCN PRY SCH – EKORI – POLLING UNIT 005: The Result Sheet (Form EC8A (i) for this Polling Unit was not signed or stamped. See Section 63 (1) & (2) of the Electoral Act (supra). See also Section 74 of the Electoral Act (supra). This constitutes an infringement of Section 5.2 Step 4 (e) of the Manual for Election Officials, 2011. Where is the validity of this result, we submit?
A cursory look at Form EC8A (i) for this Polling Unit shows that was alteration of figures in column 7 and the cancellation in column 8 (without the person who prepared the said Form signing and counter signing). There was no election held in accordance with the Electoral Act. Form EC 8A that the results were purportedly recorded on or entered in was a maze of confusion and mired in contradiction. The Form EC8A (i) was not stamped. The total number of valid votes cast was not clear in the Form EC8A (i).
It was not clear if it is 291 or 271. The alteration or mutilation of the total number of valid votes was not explained. The Tribunal is respectfully invited to deduct 197 votes allocated to the 1st Respondent unlawfully from his total vote tally in the election.
An examination of the Voters Register for PCN PRY SCHOOL, EKORI Polling Unit shows that there was multiple voting by voters with the following numbers: 149, 173, 178, 184, 200, 206, 224, 232, 268, 285, 298, 317, 352 etc. This constitutes an infraction of Section 53 (1) & (2) of the Electoral Act.
However, the 1st Respondent was accredited with 197 votes in Form EC 8 B (i) tendered by the 1st Respondent. We urge the Tribunal to deduct these unlawful 197 votes recorded in Form EC 8 B (i) from the 1st Respondent’s total scores.
3.11 ROAD JUNCTION – POLLING UNIT 006: The Result Sheet FORM EC8A (i) was not signed and stamped. This constitutes an infringement of Chapter 5.4 Step 8 of the Manual for Election Officials, 2011. The 1st Respondent was unlawfully accredited with 63 votes in this Polling Unit. We urge the Tribunal to deduct these 63 votes from the total vote scores of the 1st Respondent in the election.
3.12 AKUGOM TOWN HALL – POLLING UNIT 007: Form EC8 A (i) for this Polling Unit was not signed and stamped. See Section 63 (1) & (2) of the Electoral Act (supra). See Section 74 of the Electoral Act (supra).There was no accreditation and voting in this Polling Unit as can be gleaned from the Voters Register for this Polling Unit which has not been ticked. The total number of unlawful votes of 269 accredited to the 1st Respondent in Form EC8B (i) which was added to his total tally should be deducted from the total number of votes accredited to the 1st Respondent.
All in all the 1st Respondent was accredited with a total votes of 1633 in Form EC8B (i) for NTAN WARD. We invite the Tribunal to deduct these 1633 votes from the total scores of 9163 recorded in Form EC8E (i) for the 1st Respondent. If these 1633 unlawful votes accredited to the 1st Respondent are deducted from 9163, the total votes of the 1st Respondent will drop to 7530.
It is instructive that FORM EC8B (i) for NTAN COUNCIL WARD was tendered by the 1st Respondent admitted and marked by the Tribunal as EXHIBIT J.
3.13 IDOMI WARD - The Polling Units in Idomi Ward are as follows
a. PCN PRIMARY SCHOOL 1
b. PCN PRIMARY SCHOOL 11
c. EGBIZUM TOWN HALL
d. EGBIZUM PLAYGROUND
e. OTALOSI TWON HALL
f. OTALOSI PLAYGROUNDS
g. OKOM TOWN HALL
h. KEKOWA PLAYGROUND
i. LEBOLKOM/PKPM OLD TOWN
j. PCN PRIMARY SCHOOL
It is instructive to note that Form EC8 A (i) for these Polling Units in Idomi Council Wards. Highlighted above were tendered by the Petitioner, admitted and marked as Exhibits F-F9.
3.14 ANALYSIS OF EXHIBITS F-F9
3.15 PCN PRIMARY SCHOOL 1 -001-POLLING UNIT
The Voters Register for this Unit shows that there was no accreditation in this Unit. See S. 53 (1) of the Electoral Act (supra). It is submitted that an examination of Form EC8A (i) for this Unit shows there was no queue before voting commenced. See Chapter 5.2 step 4 (e) of the Manual for Election Officials, 2011. We respectfully invite the Tribunal to deduct the 161 votes accredited to the 1st Respondent from the total tally given to the 1st Respondent. See Form EC8B (i) tendered by the 1st Respondent, where the 1st Respondent was accredited with 161 votes. We urge the Tribunal to deduct these 161 votes from the total scores of the 1st Respondent.
It is instructive that FORM EC8B (i) for IDOMI WARD was tendered by the 1st Respondent admitted and marked as EXHIBIT I.
3.16 PCN PRIMARY SCHOOL 2 - POLLING UNIT 002: The Result Sheet - Form EC8A (i) was not signed and stamped. See Section 74 of the Electoral Act. There were several alterations and or cancellation on this Result Sheet which has not been explained by the 2nd Respondent. There was arbitrarily allocated votes to parties that did not present candidates for the election such as NMPP & NUP. See Chapter 5.2 Step 4 (e) of the Electoral Manual for Electoral Officers 2011. Form EC8A was not signed by the Presiding Officer. The date of the election was not stated in Form EC8A. The Tribunal shall be urged to deduct the 23 votes allocated to the 1st Respondent from his total tally at the election in Form EC8B (i). See Form EC8B (i) tendered by the 1st Respondent. We urge the Tribunal to deduct these 23 votes from the total scores of the 1st Respondent.
3.17 EGBIZUM TOWN HALL – POLLLING UNIT 003: Form EC 8A was not signed by the Presiding Officer. Votes were allocated to Political Parties that did not contest election. The 1st Respondent was allocated 120 votes. We respectfully invite the Tribunal to deduct or expunge the said 120 votes which are unlawful from the total tally scored by the 1st Respondent. There were several alteration/mutilation of the figures 189 and 166 which cancelled for a mutilated 148. See Form EC8B (i) tendered by the 1st Respondent, where the 1st Respondent was accredited with 120 votes. We urge the Tribunal to deduct these 120 votes from the total scores of the 1st Respondent.
3.18 EGBIZUM PLAY GROUND - POLLING UNIT 004: Form EC 8A was not signed by the Presiding Officer. Votes were allocated to Political Parties that did not contest election. The 1st Respondent was allocated 191 votes. We respectfully invite the Tribunal to deduct or expunge the said 191 votes which are unlawful from the total tally scored by the 1st Respondent. See Form EC8B (i) tendered by the 1st Respondent where the 1st Respondent was accredited with 191 votes. We urge the Tribunal to deduct these 191 votes from the total scores of the 1st Respondent.
3.19 OTALOSI TOWN HALL - POLLING UNIT 005: There was no accreditation of voters before voting commenced. The total number of valid votes cast and the total number of ballot papers used were the same 234. We respectfully invite the Tribunal to nullify the result from this Polling Unit and set aside the unlawful 183 allocated to the 1st Respondent. We further submit that that Form EC 8A was not signed nor stamped. The date of the election was not stated in Form EC8A. Political Parties such as NMDP, CDC, NMPP, PPP, LP, NNP, NAP, APGA, NTP & PD that did not contest the election were allocated votes. See Section 5.2 step 4 (e) of the Electoral Manual for INEC Officials, 2011.
It is submitted that the Manual for Election Officials such as the Electoral Manual for INEC Officers, 2011, was issued pursuant to the provisions of the Electoral Act, 2010 (as amended) for the purpose of giving effects to the provisions of the Act. The guidelines therein must be strictly construed and followed by election officials in the process of and procedure for elections. See CHIEF SULEIMAN AJADI v. CHIEF SIMEON AJIBOLA (2004) 16 NWLR (PT. 898) 9 @ 170 Para E - G.
The 1st Respondent was accredited 183 votes in Form EC8B (i). See Form EC8B (i) tendered by the 1st Respondent. We urge the Tribunal to deduct these 183 votes from the total scores of the 1st Respondent.
3.20 OTALOSI PLAY GROUND - POLLING UNIT 006: Form EC8A (i) for this Polling Unit contains several alterations. The 2nd Respondents has not proffered any explanation for these alterations. These alterations were not counter-signed by the Presiding Officer and other agents who signed the result. Columns 7 & 8 were altered without any explanation which goes to cast doubt on the authenticity of this result on any discerning mind. Scores of 86 votes were accredited to the 1st Respondent in this Polling Unit. See Form EC8B (i) tendered by the 1st Respondent. We urge the Tribunal to deduct these 86 votes from the total scores of the 1st Respondent.
3.21 OKOM TOWN HALL - POLLING UNIT 007: Form EC8A (i) for this Polling Unit was not signed nor stamped by the Presiding Officer. See Section 74 of the Electoral Act (supra). See Chapter 5.4 Step 8 of the Electoral Manual for INEC Officers 2011. We urge the Tribunal to deduct the 78 votes accredited to the 1st Respondent from this Polling Unit. See Form EC8B (i) tendered by the 1st Respondent. We urge the Tribunal to deduct these 78 votes from the total scores of the 1st Respondent.
3.22 LEBULKOM/OKOM OLD TOWN - POLLING UNIT 010: The Result Sheet (Form EC8A (i) was not stamped and signed. See Section 63 (1) & (2) of the Electoral Act (supra). See Section 74 of the Electoral Act (supra). See Chapter 5.4 Steps 8 of the Manual for Election Officials, 2011. In column 7, the figure 46, 88 and 93 was cancelled for 94, while in column 8, the figures 252 and 210 was also cancelled for 205. Votes were allotted to political parties that did not present candidates for the election. This is an infraction of Chapter 5.2 Step 4 (e) of Manual for Election Officials, 2011. Despite this 2nd Respondent accredited 128 votes to the 1st Respondent. See Form EC8B (i) tendered by the 1st Respondent. We urge the Tribunal to deduct these 128 votes from the total scores of the 1st Respondent.
3.23 KEKOWA PLAY GROUND - POLLING UNIT 009: The Result Sheet - Form EC8A (i) was not stamped and signed by the Presiding Officer. This is a contravention of Sections 63 (1) & (2) of the Electoral Act (supra). See Section 74 of the Electoral Act (supra). See Chapter 5.4 of the Manual for Election Officials, 2011. There were numerous alterations on the result sheet which cast serious doubts on its authenticity. These alterations were not signed and or counter signed by the Presiding Officer. The 2nd Respondent has not proffered any explanation why they are so many alterations on the result sheet.
Scores were given to parties that did not present or nominate candidates in the election. This constitutes an infringement of Chapter 5. 2 Step 4 (e) of the Manual for Election Officials, 2011.
We humbly urge the Tribunal to deduct the 64 votes which were accredited to the 1st Respondent from this Polling Unit from the total scores of the 1st Respondent. See Form EC8B (i) tendered by the 1st Respondent, where the 1st Respondent was accredited with 64 votes.
3.24 PCN PRIAMRY SCHOOL IDOMI - POLLING UNIT 011: Form EC8B (i) was not stamped and signed. This constitutes a violation of Chapter 5.4 Step 8 of the Manual for Election Officials, 2011. See also Section 63 (1) & (2) of the Electoral Act. See Section 74 of the Electoral Act. It is instructive that in Law any document not signed is totally and completely worthless and incapable of any evidential value; Votes were allotted to Political Parties that did not contest the election; There were cancellation/alterations in columns 7 and 8 which were not signed or countersigned by the Presiding Officer. The 168 votes allocated to all the parties listed in this result sheet contradict the figure 182 recorded in column 9. See Form EC8B (i) tendered by the 1st Respondent, where the 1st Respondent was accredited with 106 votes. We urge the Tribunal to deduct these 106 votes from the total scores of the 1st Respondent.
The 1st Respondent was accredited with a total vote of 1, 140 in Idomi Ward in Form EC8B (i) tendered by his Counsel from the Bar during trial. We urge the Tribunal to deduct these 1,140 votes from the total score of 9163 accredited to the 1st Respondent in form EC8E (i) which was tendered by the 1st Respondent. These are unlawful votes. If these 1,140 votes are deducted from the total scores of 9163, the 1st Respondent will be left with 8,023 votes. See EXHIBIT G tendered by the 1st Respondent and which the total scores of both the Petitioner and the 1st Respondent were recorded.
3.25 DEDUCTION OF UNLAWFUL VOTES ACCREDITED TO THE 1ST RESPONDENT IN NTAN AND IDOMI COUNCIL WARDS:
In Form EC8B (i) for Ntan Ward, the 1st Respondent was accredited with 1,633 votes, while in Form EC8B (i) for Idomi Council Ward, the 1st Respondent was accredited with 1,140 votes. These votes from Idomi and Ntan Council Wards added together (1633 plus 1140) would equal to 2773. The total votes of the 1st Respondent in Form EC8E (i) is 9163 votes. If 2273 is subtracted from 9163, the 1st Respondent will be left with 6890. It is submitted that these votes from Idomi and Ntan Ward are unlawful votes as highlighted above. It follows that if these unlawful votes from Idomi and Ntan Council Wards are deducted from the total scores of the 1st Respondent as recorded in FORM EC8E(i),the 1st Respondent’s total scores would be reduced to 6890.
It is instructive to note that the Petitioner was credited with 7244 votes in Form EC8E (i). It goes without saying that the Petitioner has overtaken the 1st Respondent and should be declared the winner of the election.
3.26 AFREKPE/EPENTI COUNCIL WARD
The Polling Units in Afrekpe/Epenti Council Ward as can be gleaned from Exhibit ..... tendered by the Petitioner and admitted by the Tribunal during trial are as follows:
a. LEKPANKOM COMMUNITY HALL - 001
b. YAGBUNJI TOWN HALL- 002
c. OUTSIDE POSTAL AGENCY – 003
d. ST FRANCIS SCHOOL – 004
e. KOTANI PLAYGROUND - 005
f. YAGBUNJI CIVIC CENTRE – 006
g. ST FRANCIS PRIMARY SCHOOL – 007
h. IBOM PLAYGROUND – 008
i. PRIMARY SCHOOL AFREKPE - 009
j. MARKET SQUARTE EKORI BEACH -010
k. ST FRANCIS PRIMARY SCHOOL - 011
3.27 LEKPANKOM COMMUNITY HALL – POLLING UNIT 001: There was no accreditation of voters before voting. See Exhibit C - C11. See also Chapter 3.1, Steps 1, 2, 3, 4, 5 & 6 of the Manual for Election Officials, 2011. The 1st Respondent was credited with 41 unlawful votes. We urge the Tribunal to deduct these 41 votes from the total scores of the 1st Respondent. It is well settled that where non accreditation is established no election can be said to have taken place.
It is also well settled that where non accreditation is alleged, the 2nd Respondent as the conductor of the election has the responsibility to establish that accreditation took place by tendering the Voters Register for that Polling Unit. The 2nd Respondent did not tender the voters register for this Polling Unit. The Tribunal is urged to presume that the 2nd Respondent did not tender these Voters Registers because if tendered they would have been adverse to the case of the 1st Respondent. See Section 167 (d) of the Evidence Act, 2011.See UKPO V. IMOKE (2009) 1 NWLR (PT. 1121) 90 @ 150, paras. D-F 168; C-F, 176 , paras H-B.
3.27 YAGBUNJI TOWN HALL- 002 POLLING UNIT: The Result Sheet – Form EC8A (i) for this Polling Unit was not signed nor stamped. This constitutes a flagrant contravention of Section 63 (1) & (2) of the Electoral Act which makes it mandatory for a Presiding Officer to sign and stamp a result sheet from his Polling Unit. See also S. 74 of the Electoral Act, supra. In law, an unsigned document is completely worthless and without any probative value. An Unsigned document is incapable of establishing a fact. See GARUBA v. KWARA INVESTMENT CO LIMITED (2005) ALL FWLR (PT. 252) 469 @ 473. It is well settled that an unsigned document is worthless. See also SEIDU v. AG, LAGOS STATE (1986) 2 NWLR (PT. 21) 165. We therefore respectively urge the Tribunal to void the result from this Polling Unit on this account alone and deduct the votes credited to the 1st Respondent from this Polling Unit. The 1st Respondent was accredited with 292 votes in this Polling Unit in Form EC8A (i). We urge the Tribunal to expunge and deduct these 292 votes from the total tally of the 1st Respondent. The 292 votes was entered in Form EC8B (i) tendered by the 1st Respondent.
It is submitted that signing of results sheets such as (Form EC8A (i) is one of the mandatory steps to be taken for an election to be or be deemed as concluded. The steps are as follows:
(a) Accreditation
(b) Conduct of poll;
(c) Counting of votes;
(d) Collating of results;
(e) Signing of results;
(f) Publication of results
In SOWEMIMO V. AWOBAJO (1999) 3 N.W.L.R (PT. 595) 387, the Court of Appeal, illuminated the position of the Law thus:
“In the instant case, steps (a)-(d) had been concluded, the trouble started when it came into signing of result and publication of the result. A look at Exhibit “A” i.e. the result sheet of the election of the 2nd respondent (the Resident Electoral Commissioner, Ogun State). This omission confirms its inconclusive and a fortiori invariably of the election. On the other hand, Exhibit E (the result sheet of the bye election of 16/1/99 was duly executed by all the signatories except the 1st respondent’s agent. Consequently the result of the election on Exhibit E should be better regarded as evidence of a conclusive election than those in Exhibit A. Therefore the holding of the tribunal to the contrary on the validity of Exhibit A as against Exhibit E must be in error. Furthermore, it is erroneous for the 1st respondent to argue that the result of Akaka Ward in Exhibit E is still missing as it was under Exhibit A. By looking at the two exhibits, it is clear that the position or result of Akaka ward as stated in 1st Respondent’s brief was misconceived. Exhibit E gave the result of all the Wards (including Akaka and IIara).The 2nd and 3rd respondents therefore were right to conduct a bye-election having validly cancelled the election of 9/1/99”.
3.28 OUTSIDE POSTAL AGENCY- POLLING UNIT 003: Form EC8A (i) for this Polling Unit clearly establishes a case of over voting. In the left hand column of the Form it is stated that 157 voters were in the queue before voting commenced. However, 168 total valid votes were recorded in Form EC8A (i). This is contrary to the provisions of Section 58 (2) of the Electoral Act (supra) which provides thus:
“Where the votes cast at an election in any polling unit exceed the number of registered voters in that polling unit, the result of the election for that polling unit shall be declared null and void by the Commission and another election may be conducted at a date to be fixed by the Commission where the result at that polling unit may affect the overall result in the Constituency”.
Votes were whimsically allocated to Political Parties that did not sponsor candidates in the election. This is a contravention of Chapter 5.2 Step 4 (e) of the Manual for Electoral Officials, 2011.
In the said Form EC8A (i) for this Polling Unit, 178 voters were accredited, but 157 were in the queue before voting commenced. However, 178 total valid votes cast were recorded which means than more people voted than those accredited. This also contradicts the 196 total numbers of used ballots papers recorded in the said Form EC8A (i).
3.29 KOTANI PLAY GROUND – POLLING UNIT 005: The (Form EC8A (i) Result Sheet neither signed nor stamped. This is contrary to the intendment of Sections 63 (1) & (2) and 74 of the Electoral Act. An unsigned result sheet is conclusive evidence that elections was not conducted in substantial compliance with the Electoral Act, supra, and therefore void. See SOWEMIMO V. AWOBAJO (1999) 3 NWLR (Pt.595) 387. In law, an unsigned document is completely worthless and without any probative value. It is settled that an Unsigned document is incapable of establishing a fact. See GARUBA v. KWARA INVESTMENT CO LIMITED (2005) ALL FWLR (PT. 252) 469 @ 473. See also SEIDU v. AG, LAGOS STATE (1986) 2 NWLR (PT. 21) 165.
We therefore respectively urge the Tribunal to void the results from this Polling Unit on this account alone and deduct the votes accredited to the 1st Respondent from this Polling Unit. The 1st Respondent was credited with 184 votes in Form EC8A (i) which was entered into Form EC8B (i) tendered by the 1st Respondent. We therefore respectfully invite the Tribunal to deduct these 184 votes from the total scores of the 1st Respondent.
In Form EC8A (i) votes were allocated to Political Parties without candidates. This constitutes a gross contravention of Section 5.2 step 4 (e) of the Manual for Election Officials, 2011.
3.30 YAGBUNJI CIVIL CENTRE – POLLING UNIT 006: Accreditation which is the first step in an election was not done in this Polling Unit. This constitutes an infringement of Section 49 (1) & (2) of the Electoral Act. Section 49 (1) & (2) of the Electoral Act provides thus:
“(1) Any person intending to vote with his voter’s card, 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”.
The Voters Register for this Polling Unit which was tendered and admitted as Exhibit C-C11 clearly shows that accreditation did not take place. The voters register for this Polling Unit proves that the boxes which the Poll Clerk is supposed to tick when a voter is accredited were not ticked. If, there was no accreditation: how come result was entered into EC 8A (i) (Exhibit D-D11). The 1st Respondent was accredited with 292 votes in this Polling Unit in Form EC8A (i) that was entered into Form EC8B (i). We therefore invite the Tribunal to deduct these 292 votes from the total tally of the 1st Respondent.
3.31 ST. FRANCIS PRIMARY SCHOOL – 011: There was no accreditation in this Polling Unit. This is confirmed by the Voters Register of this Polling Unit when juxtaposed with Form EC8A (i) for the Unit. The Voters Register is among the documents tendered by the Petitioner. The Voters register for these Polling Unit as evident in Form EC 8 A (i) shows 156 were accredited but the total valid votes recorded in column 8 was 158. The number of used ballot papers recorded in column 9 is 192. This is a contradiction to the total valid votes said to have been recorded here. The 1st Respondent was accredited with 184 votes from this Polling Unit. We urge the Tribunal to deduct the unlawful votes of 184 accredited to the 1st Respondent.
3.32 UNLAWFUL VOTES ACCREDITED TO THE 1ST RESPONDENT FROM SOME POLLING UNITS IN AFREKPE/EPENTI:
The Polling Units were elections were not conducted in accordance with the Electoral Act in this Ward are thus:
i. LEKPANKOM COMMUNITY HALL – 001 POLLING UNIT
ii. YAGBUNJI TOWN HALL- 002 POLLING UNIT
iii. OUTSIDE POSTAL AGENCY- 003 POLLLING UNIT
iv. KOTANI PLAY GROUND – 005 POLLING UNIT
v. ST. FRANCIS PRIMARY SCHOOL – 011
The unlawful votes accredited to the 1st Respondent in the six Polling Units highlighted above as show in Form EC8A (i) and EC8B (i) are as follows:
i. LEKPANKOM COMMUNITY HALL – 001 POLLING UNIT-41 votes
ii. YAGBUNJI TOWN HALL- 002 POLLING UNIT - 292 votes
iii. OUTSIDE POSTAL AGENCY- 003 POLLLING UNIT - 84 votes
iv. KOTANI PLAY GROUND – 005 POLLING UNIT - 184 votes
v. ST. FRANCIS PRIMARY SCHOOL – 011 Polling Unit - 59 votes
From the foregoing, the total unlawful votes accredited to the 1st Respondent from these five Polling Units highlighted above amounts 660.
The 1st Respondent in Form EC8C (i) was credited with 1735 votes in Afrekpe/ Epenti Ward. We urge the Tribunal to deduct these 660 votes unlawfully accredited the 1st Respondent in the five polling units from these 1735 votes. The 1st Respondent had 1075 lawful votes from Afrekpe/Epenti Council Ward.
3.33 UNLAWFUL VOTES IN NTAN, IDOMI & AFREKPE COUNCIL WARDS DEDUCTED FROM THE TOTAL SCORES OF 9163:
We urge the Tribunal to deduct these 660 unlawful accredited to the 1st Respondent in addition to the unlawful votes accredited to the 1st Respondent in Ntan and Idomi Council Wards previously shown while we were discussing these Council Wards. (See Para 3.25 above)
In the light of the above, we urge the Tribunal to resolve Issues No. 3, 4 & 5 in favour of the Petitioner. We urge the Tribunal to give Judgment in favour of the Petitioner as prayed in the reliefs sought for in the Petition.
4.0 CONCLUSION
The Tribunal is invited respectfully to find in favour of the Petitioner because of the following reasons:
i. The Replies of the 1st & 4th Respondents are incompetent;
ii. The Reply of the 2nd & 3rd Respondents did not answer the made allegations against in the Petition;
iii. The Respondents abandoned their Replies by failing to call evidence.
iv. The Petitioner has established substantial non compliance in the conduct of the election in three Wards in Ntan, Idomi and Afrekpe/Epenti;
PETITIONER’S REPLY TO 1ST RESPONDENT WRITTEN ADDRESS
The 1st Respondent in this Written Address which was served on the Petitioner on the 4th November, 2011, at 3pm formulated two issues for determination thus:
1. Whether there is any evidence before this Honourable Tribunal to sustain the substantive Petition herein. In other words, whether the Petitioner herein has made out a case to be entitled to any claim or relief sought?
2. Whether the Petitioner herein has established on the balance of probability that the election of 26th April, 2011, was not conducted in substantial compliance with the provisions of the Electoral Act as amended?
REPLY OF THE PETITIONER TO THE ISSUES FORMULATED BY THE 1ST RESPONDENT
NOTICE OF OBJECTION
5.0 It is submitted that the 1st Respondent is not entitled to formulate issues for determination in view of the fact the 1st Respondent did not call evidence but rested his case on that of the Petitioner. It is well settled that in an election matter where the Respondent fails to call evidence he is not entitled to formulate issues for determination. We therefore respectfully invite the Tribunal to strike out the Written Address of the 1st Respondent wherein two issues were formulated for the determination of this Tribunal by the 1st Respondent. See DINGYADI V. WAMAKO (2008) 2 LRECN 102.
The Petitioner shall respond to the two issues formulated by the 1st Respondent in the event, his objection to the Written Address of the 1st Respondent is overruled thus:
REPLY TO ISSUE ONE (1)
5.1 The position of the 1st Respondent is that the Petitioner did not have any oral evidence upon which he can be entitled to any relief by the Tribunal. We submit this position of the 1st Respondent is not correct.
5.2 It is a misconception for the 1st Respondent to suggest that it is only oral evidence that is evidence. The Petitioner called documentary evidence in support of his case. The Petitioner tendered a number of documentary evidence. These documents were pleaded in his Petition.
5.3 Documentary evidence is real evidence upon which the Tribunal can rely on to decide this case.
5.4 We must underscore the fact that election Petitions are sui generis. It means that the principles which are ordinarily applicable to civil proceedings are normally not relevant to election petitions.
5.5 The Law is settled that a document tendered in Court is the best proof of the contents of such a document and no oral evidence will be allowed to discredit or contradict the contents except in cases where fraud is pleaded. See ATTORNEY GENERAL, BENDEL STATE V. UNITED BANK FOR AFRICA (1986) 4 NWLR (PT. 547) 547-563.
5.6 The submission in Paragraph 1.8 of the Written Address of the 1st Respondent that the Petitioner would not be entitled to judgment because of their failure to call evidence is not the position of the law. The position of the law is rather that where a defendant has refused to call evidence, the Plaintiff is only entitled to prove his case minimally. It is submitted that the Petitioner is required to prove its case, particularly on the portion of the Petition where the claim is civil in nature, minimally, in view of the fact that the 1st Respondent abandoned its pleading by filing his Reply to the Petition out of time. See DR. PAUL UKPO V. LIYEL IMOKE (2009) 1 NWLR (PT. 1121) 90.
5.7 The submission in Paragraph 1.9 of the Written Address of the 1st Respondent that there is a presumption of regularity in the result declared by INEC by virtue of Section 150 (1) of the Evidence Act is not a correct statement of law in a situation the Petitioner in this case has tendered documentary evidence to rebut that presumption. The presumption that results declared by INEC is rather not sacrosanct. It is rebuttable. See INEC V. RAY ONYIMBAH (2004) 2 LRECN 37; (2004) NWLR (pt. 892) 92.
5.8 The Petitioner has established through documentary evidence that there was no accreditation in several Polling Units particularly in Idomi and Ntan and Afrekpe/Epenti Wards. The Petitioner has established that several Result Sheets as in Forms EC8A (i) in Polling Units in Idomi; Ntan and Afrekpe/Epenti were not stamped and/or signed, which is very serious non compliance by INEC.
REPLY TO ISSUE NO. 2
6.2 The 1st Respondent submitted that the Petitioner made allegations of crime in his Petition such as intimidation of voters, violence, thuggery and armed banditry.
6.3 It is submitted that these criminal allegations were not the foundation of the Petition. The foundation of the Petition was civil wrongs.
6.4 The position of the law is settled that where the allegation of crime is not the foundation of the Petition, the Petitioner can invoke the principle of severance of pleadings for the Tribunal to strip the Petition of these allegations and treat the Petition as a mere civil claim.
6.5 A perusal of the Petition shows conclusively that the Petitioner only made criminal allegations in few paragraphs of the Petition such as 33, 43, 46, 47 & 53. It is clear that where the allegation of crime in the Petitioners Petition is severed or stripped of these paragraphs there will remain sufficient averments which bother on civil wrongs to sustain the Petition.
6.6 We humbly submit that this Petition is severable. It contains allegations that are civil and criminal in nature. See Paragraph 13 (a) & b) of the Petition. This is clearly discernible from the fact that the Petition is grounded on two distinct grounds of corrupt practices and non compliance. This is what is known as the Principle of Severance of Pleadings in Election Petition introduced by the Supreme Court in the case of Omoboriowo v. Chief Michael Adekunle Ajasin (1984) A. N. L. R 105 at 110 and 115.
6.7 In FAYEMI V. ONI (2009) 7 NWLR (PT. 1140) 223 @ 229, the Court of Appeal reiterated the position of the law thus:
“…Within the scope of section 138 of the Evidence Act, where in an election petition the petitioner makes the commission of crime the basis of his petition, subsection (1) imposes strict burden on him to prove the crime beyond reasonable doubt. If he fails to discharge the burden, his petition will fail. However, the provisions of section 138 (1) is subject to the principle of severance of pleadings. Thus, if in any civil proceedings the averments alleging crime are severable and if after such severance there still remain in the pleadings of the plaintiff or the petitioner sufficient averments devoid of crime alleged against any party to the proceeding and on which the petitioner can succeed in his claim or petition, then the burden of proof upon the petitioner is to prove his case on the balance of probability.
In the instant case, the appellant alleged violence, thuggery, ballot snatching, ballot stuffing, multiple thumb printing, falsification and allocation of votes against the respondents...”
6.8 We therefore urge the Tribunal to disregard and discount the submissions of the 1st Respondent to the two issues raised as unsubstantiated and inapplicable to the facts and circumstances of the Petitioner’s case.
DATED THIS 4TH DAY OF NOVEMBER, 2011.
CHIEF OKOI O. OBONO-OBLA
OBONO, OBONO & ASSOCIATES
(PETITIONER’S SOLICITORS)
TRINITY HOUSE, MABUSHI,
FEDERAL CAPITAL TERRITORY,
ABUJA, NIGERIA.
ADDRESS FOR SERVICE:
1. ON THE 1ST RESPONDENT
C/O THEIR SOLICITOR
EFIOM EKONG AND CO.
23, BEDWELL STREET, CALABAR.
2. ON THE 2ND AND 3RD RESPONDENTS
C/O THEIR SOLICITORS
EKURI, ONOR & CO
65, NDIDEM USANG ISO ROAD
CALABAR.
3. ON THE 4TH RESPONDENT
C/O THEIR COUNSEL
F. O. OBETEN
PDP STATE SECRETARIAT
CALABAR.
TABLE OF DECIDED CASES RELIED ON BY THE PETITIONER
1. See UDEAGHA V. OMEEGARA (2010) 11 NWLR (PT. 1204) 168
2. Omoboriowo v. Chief Michael Adekunle Ajasin (1984) A. N. L. R 105 at 110 and 115.
3. FAYEMI V. ONI (2009) 7 NWLR (PT. 1140) 223 @ 229
4. INEC V. RAY ONYIMBAH (2004) 2 LRECN 37; (2004) NWLR (pt. 892) 92
5. DR. PAUL UKPO V. LIYEL IMOKE (2009) 1 NWLR (PT. 1121) 90
6. ATTORNEY GENERAL, BENDEL STATE V. UNITED BANK FOR AFRICA (1986) 4 NWLR (PT. 547) 547-563.
7. DINGYADI V. WAMAKO (2008) 2 LRECN 102.
8. SOWEMIMO V. AWOBAJO (1999) 3 NWLR (Pt.595) 387
9. GARUBA v. KWARA INVESTMENT CO LIMITED (2005) ALL FWLR (PT. 252) 469 @ 473.
10. SEIDU v. AG, LAGOS STATE (1986) 2 NWLR (PT. 21) 165.
11. CHIEF SULEIMAN AJADI v. CHIEF SIMEON AJIBOLA (2004) 16 NWLR (PT. 898) 9 @ 170 Para E - G.
12. FIDEL AYOGU v. CHIMAROKE NNAMANI (2004) 15 NWLR (PT. 895) 134.
DATED THIS 4TH DAY OF NOVEMBER, 2011.
CHIEF OKOI O. OBONO-OBLA
OBONO, OBONO & ASSOCIATES
(PETITIONER’S SOLICITORS)
TRINITY HOUSE, MABUSHI,
FEDERAL CAPITAL TERRITORY,
ABUJA, NIGERIA.
OR C/O O.U.OKA & ASSOCIATES
NO. 102 CALABAR ROAD, CALABAR,
CROSS RIVER STATE, NIGERIA
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