felix nbanefo nwoko vs sen.patrick osakwe anor ca-b-ept-206

8/4/2019 Felix Nbanefo Nwoko vs Sen.patrick Osakwe Anor CA-b-ept-206

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After adoption of written addresses the Honourable Chairman and

members of the tribunal gave judgment on the 28th

day of May 2008

dismissing the petition.

The relevant part of the judgment reads thus I quote -

"From these pieces of evidence given by the Petitioner and his

witnesses, it is crystal clear that this evidence is at variance with

the pleadings of the Petitioner highlighted above. And where

such is established as in the instant case, the evidence will be

regarded as of no value and liable to be discountenanced. On

this see the case of OKOLO VS. DOKOLO (2006) ALL

FWLR (PT.336) 201, where the Supreme Court held inter alia

that:

"If the evidence is at variance with the pleadings,

such evidence will have no value. It will be

discountenanced because it is contrary to the issues

joined and therefore goes to no issue worthy of'd . "conSl eratlOn .

We further observe that these pieces of evidence vitiates

proceedings because of the material contradictions contained

therein. This is the position of the law expressed by the Court

of Appeal, per Abba-Aji JCA, in the case of ADMIN

GENERAL AND PUBLIC TRUSTEES, DELTA STATE VS.

OGOGO (2006) ALL FWLR (PT 293) 256 where it was held

thus:

"F or contradiction in evidence of witnesses to

vitiate a court proceedings, it must be material

contradiction which strikes at the basis of the case

and sufficient to raise doubt in the mind of thecourt and not merely trivial."

It should be noted that the basis upon which the declaration of

the 15t Respondent as winner of the Delta North Senatorial

District election of 29/4/07, is the result declared by INEC, and

it is the same results that are being attacked by the Petitioner

who and his other witnesses decided to portray themselves to

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the Tribunal as double-faced, blowing cold and hot water at the

same time. This goes to show that the witnesses do not have

mind of the court, not only in relation to the alleged fabrication

of results, but also in relation to the entire evidence adduced by

the Petitioner, regard being had to the nature of the onus placedon him by law in proving his case.

On the issue of postponement which is covered by paragraphs

11,12,13,14 and 15 of the petition, it is trite law that change of

the voting period of election does not constitute non-

compliance with any provision of the Electoral Act 2006. See

the case ofBUHARl VS. !NEC (supra) where it was held that:

"Section 28 of the Electoral Act provides thatnothing in any particular election under the Act

should take place at the same day and time

throughout the Federation. Section 26 provides

that Independent Electoral Commission shall

appoint the date on which the election to the

officer of the President and Vice-President shall

hold. While Section 27(1) of the same Act

provides that the commission can postpone the

Presidential Election and other elections set out in

Section 26 for reasons set out in Section 27, and

the postponement may relate to either the whole

country or a part of the country as may be

determined by the commission. A Community

readings of those Sections shows clearly that the

1st Respondent can fix the date and time for the

Presidential election and change same. Moreover,

a change of voting period of election throughout

the Federation do not constitute a non-compliance

with any provision of the Electoral Act. It couldonly be said to constitute an amendment to the

manual for the elections officials for 2007".

With this position of the law in mind, the 2nd

_20th

respondents

can only be said to be acting in good faith and within the ambit

of the law when they postponed any election, unless contrary

intention is established. In the instant case, the Petitioner going

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by the evidence he adduced has not been able to establish lack

of good faith when regard is had to the nature of the evidence

which, to out mind, fell short of the required standard.

In view of all that has been said above, the petitioner has notbeen able to make out a case against the Respondents

warranting any rebuttal. The serious nature of the allegations of

non-conduct of elections and the burden of proof placed on the

Petitioner is very weighty and cannot be discharged by merely

bringing witnesses to say that they spent the whole day in those

wards and that there was no voting. In this regard see the case

of PRINCE CHIJIOKE V. NNAJI VS. PRINCE GODDY

AGBO &ANOR (2006) EPR VOL.2 867, where the Court of

Appeal held thus:

"No doubt the allegation of the Petition that

elections did not hold in 17 wards out of the 26

wards in the constituency is a very serious one and

the burden of proof on the Petitioner is very

weighty and it is not what he can so easily

discharge by only bringing people to say that they

spent the whole day in those wards and that there

was no voting and the burden of proof will then be

shifted to the respondents to show that there was

voting, accreditation, counting of cotes and the

announcement and tendering the voters' register

which is a public document which the petitioner is

expected to subpoena the Electoral Commissioner

to produce so that he could prove his case. If this

is the case, anyone can easily raise such a ground

in his petition and then sit back and leave the

Respondents to struggle it out and show that there

was an election".

In the above case, the effect of section 150 of the Evidence Act

as it applies to cases similar to the instant case was highlighted

as follows:

"In the instant case, by virtue of section 150 of the

Evidence Act there is presumption that elections

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were duly conducted in all the wards including the

disputed areas and that all the conditions for valid

elections were duly met, it is therefore incumbent

on the Petitioner to call the voters to show that

they did not vote in the disputed wards on the saiddate because there were no electoral officials

present and that no voting counting or

announcement of results took place in the disputed

wards on that day".

Generally, a defendant is not bound by law to call witnesses to

establish his defence where a prima facie case has not been

proved by plaintiff. This position was pronounced in the case

of ARABAMBI VS. ADVANCED BEVERAGES IND. LTD(2006) ALL FWLR (Pt. 295) 581, where it was held that:

"A defendant is not bound by law to call witnesses

to establish his defence where a prima-facie case

has not been proved by plaintiff, but that position

is valid only if prima facie case has not been

established by the party in whose favour judgment

will be given if he fails to adduce.d "eVl ence .

In line with the authorities cited above, we do not deem it

necessary to delve into the merit or demerit of evidence

adduced by the Respondents in defence of their case.

From the foregoing, it is our candid view that the Petitioner has

failed to establish his case as required by law. Accordingly,

this petition is hereby dismissed. No order as to cost".

It is against this judgment that the Appellant filed 12 grounds of Appeal

quoted hereunder without particulars.

GROUND ONE (1) ERROR-IN-LA W

Learned Chairman and Members of the trial tribunal erred in law

when they claimed the invitation to examine and scrutinize the

contents of exhibits 2-22 and 24 on the ground that the request runs

counter to the provisions of paragraph 4 of the Practice

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GROUNDS TWO (2) ERROR-IN-LA W

Learned Chairman and Members of the tribunal erred in law and

occasioned a miscarriage of justice when they discountenanced the

appellant in invitation to examine the signatures on the exhibits

purportedly prepared by the 3rd_17th Respondents with theirsignatures in their written statements on oath in order to determine

their authenticity as baseless on the authority of onwudinjo v. Dimobi

(2006) 1 NWLR (Pt.961) 318.

GROUND THREE (3) MISDIRECTION-IN-LA W

The trial tribunal misdirected itself in law when it held that

"Any issues connected to exhibit 39 is to our mind not of moment,

regard being had to the fact that such issues are hinged on nomination

of candidates which this court has already disposed of vide our ruling

of 12/12/07 and as such makes the tribunal functus officio over the

matter; for this reason the submissions are hereby discountenanced

accordingly"

GROUND FOUR (4) MISDIRECTION-IN-LAW

The Honourable Chairman and Members of the tribunal misdirected

themselves in law and thereby occasioned a miscarriage of justice

when they held as follows -

"Based on the various allegations contained in the petition of the

petitioner, coupled with the above laid down principles of lawapplicable thereto, it is our candid view that the complaint of the

petitioner over the conduct of the election in respect of Delta North

Senatorial District are criminal in nature and as such the standard of

proof required is proof beyond reasonable doubt".

GROUND FIVE (5) MISDIRECTION-IN-LA W

The Honourable Chairman and Members of the tribunal misdirected

themselves in law and thereby occasioned a miscarriage of justice

when they struck out paragraphs 8a, band f of the petition on the

ground that they constitute pre election issues over which they haveno jurisdiction.

GROUND SIX (6) ERROOR-IN-LA W

The learned trial Chairman and Members of the tribunal erred in law

and occasioned a miscarriage of justice when they held the evidence of

PW2-PW6 were hearsay and as such neither reliable nor admissible

and goes to no issue.

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GROUND SEVEN (7) ERROR-IN-LA W


when they held that the pieces of evidence given by the petitioner and

his witnesses are at variance with this pleadings on fabrication of

results per paragraphs 21 and 24 of the petition and contain materialcontradictions.

GROUND EIGHT (8) ERROR-IN-LA W


and occasioned a miscarriage of justice when they held as follows -

"It should be noted that the basis upon which the declaration of the 1st

Respondent as winner of the Delta North Senatorial District election

of 29/4/07 is the result declared by INEC, and it is the same results

that are being attacked by the petitioner who (SIC) and his other

witnesses decided to portray themselves to the tribunal as double

faced, blowing cold and hot water at the same time. This goes to show

that the witnesses do not have one particular direction to face.

Indeed, this will undoubtedly cast serious doubt in the mind of the

court not only in relation to the alleged fabrication of results but also

in relation to the entire evidence adduced by the petitioner regard

being had to the nature of the onus placed on him by law on proving

his case"

GROUND NINE (9) ERROR-IN-LA W

The Honourable Chairman and Members of the tribunal erred in law

when they after stating that change of voting period of election does

not constitute non-compliance with any provisions of the Electoral Act

2006 per the case of Buhari v. INEC (supra) held follows:

"With this position of the law in mind, the 2nd.20

thRespondents can

only be said to be acting in good faith and within the ambit of the law

when they postponed any election, unless contrary intention is

established. In the instant case, the petitioner going by the evidence

he adduced had not been able to establish lack of good faith when

regard is had to the nature of the evidence which to our mind fellshort of the required standard".

GROUND TEN (10) ERROR-IN-LA W

The Honourable Chairman and Members of the tribunal erred in law

and occasioned a miscarriage of justice when they held that the

petitioner had not been able to make out case against the

Respondents warranting a rebuttal.

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GROUND ELEVEN (11) ERROR-IN-LA W


when they dismissed the petition on their candid view that the

petitioner failed to establish his case required by law.

GROUND TWELVE (12)

The judgment is clearly against the weight of evidence.

In line with the practice in the Court of Appeal briefs were filed and

exchanged by parties. When the appeal came up for hearing on the 28th

day

of April, 2009 Mr. G.C. Igbokwe learned counsel to the Appellant leading

other counsel identified the Appellant's brief dated and filed on 21/308 and areply brief dated and filed on 25/3/09. He adopted the briefs and relied on

the argument therein as his arguments in favour of the Appellant and urged

this court to allow the appeal.

Mr. Ohwovoriole leading counsel to the 1st Respondent identified his reply

brief attached to a motion dated 25/3/09. He adopted the brief as his

argument and referred the court to page 6 of his brief where he argued a

Preliminary objection.

He adopted and relied on the brief and urged the court to uphold his

preliminary objection and also dismiss the appeal. The learned counsel to

the 2nd_20th Respondents Mr. Ovraweah adopted his brief of 2nd

_20th

Respondents dated 6/2/09 and deemed filed on 25/3/09 also urging this court

to dismiss the appeal.

In his notice of Preliminary Objection the 1st Respondent has this to

say;

(I)That Ground 5 of the Appellant Notice of Appeal is

invalid and(2) That Issue one for determination formulated by the

Appellant is incompetent and liable to be struck out.

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The grounds relied upon by him are that:

(1) Ground 5 of the Appellant's Notice of Appeal does not

arise from the judgment appealed against by the

Appellant.

(2) Ground of the Appellant's Notice of Appeal is against an

earlier interlocutory Ruling delivered during the trial by

the tribunal

(3) Ground 5 of the Appellant's Notice of Appeal was filed

without leave of this Honourable Court.

(4) Issue one for determination formulated by the Appellantis incompetent.

(5) Issue one for determination formulated by the Appellant

is derived from the invalid Ground (5) of the Appellant

Notice of appeal.

Ground 5 of the Notice and grounds of appeal complained of reads thus I

quote -

Ground (5) Misdirection in Law

"Hon Chairman and Member of the tribunal misdirected

themselves in law thereby occasion a miscarriage of justice

when they struck out paragraph 8(a) (b) of the petition on

the ground that they constitute pre-election issues over

which they have no jurisdiction"

In support of his objection the 1st Respondent argued that-

Significantly, the Appellant did not appeal against the ruling of

the tribunal striking out the aforesaid averments in Paragraph

8(a), (b) and (f) of the Petition which relate to pre-election

matters within the 14 days period prescribed by section 24(2) of

the Court of Appeal Act 2004 for appeals to be lodged against

interlocutory rulings.

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In UMANAH f/ : ATTAH (2006) 17 NWLR (PT 1009) 503 at

536, Paragraphs C-E the Supreme Court held that where a

party fails to appeal against a finding or decision of a Court or

Tribunal, he is deemed by law to have accepted that decision.

Submit that the Appellant in the instant case is deemed to haveaccepted the ruling of the tribunal by which the averments in

paragraph 8(a), (b) and (f) of the petition relating to pre-

election matters were struck out. He is therefore estopped from

raising a complaint against the said ruling at this stage without

first seeking and obtaining leave of Court.

In JSC SERVICE LTD f/ : G.e. LTD (2006) 6NWLR (PT 977)

481 AT 505-506, Paragraphs G-A, the Court of Appeal held

that an Appellant who is desirous of incorporating Grounds ofappeal against interlocutory decisions in a notice of appeal

against the final decision of the court must first seek and obtain

the leave of court to appeal out of time; otherwise the Grounds

of appeal against the interlocutory decision would be

incompetent and liable to be struck out.

In the instant case, despite his failure and or refusal to appeal

against the interlocutory ruling dated 1ih

December, 2007

within the prescribed time as required by section 24(2) of the

Court of Appeal Act, 2004, the Appellant incorporated ground

five of his appeal complaining against the earlier interlocutory

ruling into his Notice of Appeal against the final judgment of

the lower tribunal delivered on 28th

May, 2008 without seeking

and obtaining leave of court.

He submitted that Ground 5 of the Notice of Appeal is

incompetent and liable to be struck out, for failure of the

Appellant to seek leave of court. See also OGBORU f/ :

IBORU (2004) 7 NWLR (PT871) 192.

ISSUE DISTILLED FROM INCOMPETENT GROUND 5 OF

THE NOTICE OF APPEAL LIABLE TO BE STRUCK OUT:

He submitted that Issue One formulated from Grounds 3 & 5

and argued by the Appellant having been distilled inter alia

from an incompetent Ground of Appeal i.e. Ground 5 is liable

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to be struck out. In A GBAKA V. AMADI (1998) II NWLR

(PT572) 16 at 24 E-G, the Supreme Court coram Ogwuegbu

JSC affirmed that:

" ... .... When a Ground of appeal is incompetent,any issue for determination based on the

incompetent Ground goes to no issue and should

be struck out as incompetent. It automatically

collapses when the Ground of appeal ceases to

exist ... JJ

ISSUES FORMULATED FROM ADMIXTURE OF BOTH

COMPETENT AND INCOMPETENT GROUNDS OF APPEAL ARE

LIABLE TO BE STRUCK OUT:

He further submitted that the situation cannot be remedied by

the fact that the Appellant purports to have distilled the said

Issue One from Grounds 3 and 5. Issues formulated from both

competent and incompetent Grounds of Appeal are liable to be

struck out. It is not the duty of this Honourable Court to

perform a surgical or judicial operation on argument

canvassed in respect of the competent Grounds of appeal by

separating the argument in respect of the incompetent Grounds

of appeal. See OBI-ODU Ii: DUKE (2006) 1 NWLR (Pt.961)

375 at 409, Paragraphs C-F and NGIGE J I : OBI (2006) 14

NWLR (Pt.999) 1 at165, Paragraphs D-H.

IN AYALOGU V. AGU (1989) 1 NWLR (Pt.532) 129 at 142,

Paragraphs H-A this Court also held that where an issue for

determination encompasses an offensive or incompetent

Ground of appeal, as in the instant appeal, the submissions on

that issue go to no issue and ought to be expunged.

It is therefore our submission that Issue (1) in the Appeal's

Brief of Argument is inextricably tied to arguments derived

from the incompetent Ground5 of the Notice of Appeal and

therefore the issue is tainted with the virus of incompetence.

We urge this Honourable Court to discountenance Issue on

formulated by the Appellants and the arguments adduced

thereto in the Appellant's Brief of argument.

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. .

In his reply the Appellant argued that the Preliminary Objection is

incompetent because both Respondent adopted the issues formulated by the

Appellant including Issue 1 which was distilled from Ground 5. He said that

they did not file cross-appeal. He said having adopted the issues formulated

from the grounds of appeal by the Appellant, the Respondent can not deal

with them in an inconsistent manner relying on the following cases IDIKA

V. ESIRI 1988 2 NWLR (Pt. 79) 563; EZE v. FRN 1987 1 NWLR (Pt

51) 506; EBO V. NTA 1996 4 NWLR (Pt 442) 314; CHIMA V. THE

STATE 1996 6 NWLR (Pt. 455) 465. He also argued that the law is andhas always been that when interlocutory decisions are made they are deemed

to be incorporated in the main and final judgment and be appealable upon as

a decision contained in the final judgment especially on issues on

jurisdiction and election petition. He also submitted that the Ground 5 and

Issue 1 being challenged border clearly on jurisdiction. He said that the

objection be dismissed.The 2nd_20th Respondent have no Preliminary objection. I must say

that the premises on which the objection is based is misconceived.

By virtue of Order 3 rule 22 of the Court of Appeal Rules a party who

is dissatisfied with a judgment and who appeals against if may raise a

complaint against any interlocutory order made by the trial court or tribunal

even though he has not appealed against that interlocutory order when it was

made. Thus a ground of appeal from a final judgment in an election petition

incorporating a complaint against an interlocutory decision given in the

course of a trial is competent. See UMANA V ATT AH (2004) 7 NWLR

(Pt 871) 63; AONDOAKAA V. AYO (1999) 5 NWLR (Pt 602) 206;

MADUAKO V. ONYEJOCHA (2009) 5 NWLR (Pt 1134) 259 at 276 C-

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.

E. Therefore the preliminary objective based on that premIse IS

misconceived and it is dismissed.

Looking at ground five quoted inter alia it is based on the issue of

qualification. In the particular of error the Appellant says, I quote:

" Issue of qualification of candidates are not pre

election matters over which the tribunal does not

have jurisdiction. The said paragraph concerns the

fundamental issue of whether or not the rt

Respondent was indeed a candidate at the election. "

The question is did the issue of qualification or eligibility arise from

the judgment? The answer is no. At page 595 of the Record, the tribunal

referred to the written address of the Appellant wherein he wrote as follows:

"For the avoidance of doubt the petition seeks to

abandon the issues of the rt Respondent'sdisqualification based on the grounds of bankruptcy,

membership of secret cult and criminal

From what one can deduct from the stance of the petition that the

issue of qualification is totally abandoned. However, having held that it is

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

the petition. I quote:

"The rt .Respondent was a full fledged card carrying

member of another party, the People Democratic Party as

a February 2007 where he contested the primaries, lost

and was challenging his defeat by PDP. He was only

expelledfrom PDP on 2i

h

May for Anti-party activities.

The rt Respondent's name was consequently not in the 2nd

Respondent's SENATE VERIFICATION REPORT of

Substituted candidates as a 20/02/07 therefore making him

an invalid candidate or no candidate at all for the said

election. "

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. .

The contents of this paragraph are clearly not matters for the tribunal

to decide I agree with them that paragraphs 8 (a) and (b) of the petition are

pre- election matters over which the tribunal had no jurisdiction.

Therefore, Grounds 3 and 5 and issue I distilled therefrom are of no

moment and therefore resolved against the Appellant.

ISSUES 2, 3 and 4 as distilled by the Appellant and argued by the

Respondent are as follows:

From the totality of pleadings and evidence led at the trial on

postponements of the election, whether the Appellant had

established non compliance with the provisions of the

Electoral Act sufficient to vitiate the purported electionand return of the 1st Respondent (Ground 9)

Whether the Honourable tribunal was right to refrain from

evaluating the documentary evidence (particularly exhibits 2-22

and 24-33) adduced at the trial in order to ascribe probative

value to them (grounds 1 and 2).

Upon a careful and dispassionate evaluation of the entire

pleadings and evidence led at the trial whether the Honourable

tribunal was right in holding that the Appellant did not make

out a case within the requisite stand against the Respondentswarranting a rebuttal (Grounds 4,6,7,8,10,11 and 12)

I must confess that I cannot see any reason why the three Issues

cannot be treated as one which is; the evaluation of evidence documentary or

oral when the judgment is based on only one issue which is 'that the election

when narred by manifest irregularities, corrupt practices and non-compliance

with the provision of the Electoral Act 2006 with the resultant effect that

there was no election at all in the Delta North Senatorial District.

The Tribunal concluded that the Petitioner had failed to establish his

case as required by law.

On Issue NO.2 the Appellant submitted that the issue of unwarranted

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

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to 26/4/07 then to 28/4/07 and finally to 29/4/07. He argued that the

Respondents were not contesting the averment. The Appellant relied on the

case of BUHARI V. INEC AND SECTION 27(1) OF THE

ELECTORAL ACT 2006.

He submitted that it has been clearly established by the Appellant in

that the proof came in the circumstance of the Respondent not controverting

the allegation of the Petitioner nor the Respondent calling any witness. He

relied on AKANNI V. ODEJIDE (2004) ALL FWLR (PT 218) 827 at

page 857 C - E and other cases.

He submitted that if the tribunal had adverted its mind to

Respondent's for the proper standard in view of the totality of pleadings and

evidence and all the circumstances of it would certainly have cone to the

inevitable conclusion that the Appellant had proved non-compliance with S.

27 of the Electoral Act which non-compliance certainly affected the

outcome of the purported election and must vitiate the return thereon. He

urged the court to resolve the issue in favour of the Appellant. The 1st

Respondent in answer to Issue 2 argued that for the totality of pleading and

evidence led at the trial on the postponement of the elections, the Appellant

was in error. He argued that the INEC has the power to postpone election.

He said not a single witness testified that they had no notice of the election

held on 29/4/07 rather they testified that election did hold on that day. He

said: He argued that it was not PLEALDED or show how the provision of

the aforsaid Section were breached. Relying on BUHARI V. INEC (2008)

4NWLR (pt 1028) 546 at 660 B-H.

Address of counsel cannot be substituted for evidence. BAYO V.

NJIDA (2004) 8 NWLR (Pt 876 at 544. He urged the court to resolve issue

2 in favour of the 1st Respondent.

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The 2nd - 20th Respondents argued that the Appellant has failed to

show the manner in which the postponement of the date of election

constituted non-compliance when publicity was given to the postponement

and the publicity was effectual. Infact the Appellant admitted that is was

announced on the State Radio. They argued that the burden of proving how

the postponement affected the outcome of his election.

The Appellant had the burden to show how the postponement

adversely affected him. They urge the court to resolve this issue against the

Appellant. By virtue of Section 27 of the Electoral Act 2006, where a date

had been fixed for the holding of an election there is reason to believe that a

serious breach of the peace is likely to occur if the election is proceeded with

on that day or it is impossible to conduct the election as a result of natural

disaster or other emergencies, the commission may postpone the election

and shall appoint another date for the holding of the postponed election.

!NEe has a right to postpone elections.

See BUHARI SUPRA (2009) (pt 1130) NWLR 116. See also

APGA V. OHAKIM. It is in evidence that there are other contestants

including the 1st Respondent, the postponement generally affected all

candidates. From the totality of evidence adduced in the petition, there is no

valid reason why this issue should be resolved in favor of the Appellant as

he did not show how he suffered any setback in the election conducted on

29/4/07. The issue is therefore resolved against him.On Issue 3 the Appellant argued that the tribunal refrained from evaluating

the documentary evidence (Exhibits 2-22 and 24-33) adduced at the trial in

order to ascribe probative value to them.

The Appellant argued that his case at the tribunal was that there was

no election and that votes accredited to the 1st Respondent by the 2nd

- 20th

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Respondents were fabricated and to prove this certain documents mainly

statutory election forms were tendered (underlined mine for emphasis). He

argued that the Appellant urged the tribunal to compare the signature of the

makers of Exhibits. The tribunal misinterpreted paragraph 4 of the Practice

Direction. He argued that documentary evidence is the best evidence.

CITY AGBARAH V. MIMRA 2 NWLR (Pt. 1071) 378. He submitted

that the tribunal below was clearly in error in declining to evaluate and

consider the documentary evidence duly tendered and admitted without

objection when the exhibits in the instant case are capable on their own of

resolving the issue raised by the Petitioner. He relied on the case of

OMIGURE V. EMETUNBA (2008) 9 NWLR (pt 1092) 371 at 414 D-F

and SHELL DEVELOPMENT COMPANY LIMITED V. OFOKO

(1990) 6 NWLR (Pt 159) 693. He called on this court to exercise its power

under Section 16 of the Court of Appeal Act.

Let me say that the brief of the Appellant at page 18-22 seems to me

to be evidence rather than argument in favor of the appeal. He however

urged the court to resolve Issue 3 in his favor. The 1st Respondent in his

argument said that it is the duty of the Petitioner relying on Documents in

proof of his case to relate same to specific aspects of his case. He relied on

the case of INIAMA V. AKP ABIO 17 NWLR (pt 1116) 225 and EJOGU

V. ONYEGUOCHA (2006) ALL FWLR (p. 317) 467 at 490.

He concluded that a Petitioner must go beyond merely tendering the

documents and he must lead evidence of what he intends to use the exhibit

to establish. On this issue the 2nd - 20th

Respondents argued vehemently in

line with the 1st Respondent's submission and recommended the case of

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

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317) 467 at 490. He also urge the court to resolve the issue against the

Appellant.

In the case of INIAMA V. AKPABIO (2008) 17 NWLR

(Pt.1116) 225, the Appellant tendered bundles of documents butthere was no evidence to link any of them to the case of the

Appellant as presented. The Court of Appellant held that the

documents were worthless. The Court held further that a party

relying on documents in proof of his case must specifically

relate each of such documents to that part of his case in respect

of which the document is being tendered. It is not the duty of

the court to tie each of a bundle of documentary exhibits to

specific aspects of the case for a party when that party has not

done so himself. The foundation of the principle is that it is aninfraction of fair hearing for the court to do in the recess of its

chambers what a party has not himself done in advancement of

his case in open court. It is only after the link has been made

that the court is entitled to retire to chambers and examine the

documents carefully in light of the evidence led in respect

thereof and determine if the party alleging has made out a case.

GALADIMA JCA at 299, Paragraphs D-F stated as follows:

" .... Where a party (Appellants in the circumstances of

this case) has the burden of specifically relating or

linking each of the document to specific parts of their

case, it is inconceivable to argue that several bags or

bundles of documents that 'metamorphosed' into

exhibits 4-32(b) could just be dumped on the tribunal to

sort them out. Even if the Appellant's case is built on

affidavit evidence, the court can neither be saddled with

nor can it suo moto assume the partisan responsibility

of tying each of such huge bundle of documentary

evidence to specific aspects to the Appellant's case of

malpractices alleged in pleadings when they have notdone so themselves .... "

FABIYI, JCA in EJIOGU V. ONYEGUOCHA (2006) All FWLR (P.317) 467

at 490 stated as follows:-

"... The Appellant complained that there were

mutilations on the face of certain forms tendered by

Him. But the exhibits were not demonstrated before the

tribunal. A party relying on a document in proof of his

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case must specifically relate each of such documents to

that part of his case in respect of which the document is

being tendered. Such a duty should not be left to the

court in the recess of its chambers.

A party is under obligation to tie his document to facts

or evidence in the open court, not through counsels'

address: it is not part of the duty of a court to embark

upon cloistered justice by making enquiry into the case

outside the court, not even by examinations of

documents which were in evidence when such

documents had not been examined in the open court ... "

See also DR. STEPHEN ONWEJE V. MR. OTSE OTOKA & 6 ORS. (1999) 4

NWLR (Pt.600) 518, where this court reiterated the hallowed principle that a

petitioner must go beyond merely tendering the documents and he must lead

evidence of what he intends to use the exhibits to establish.

A court must Act on materials placed before it, III this case the

Appellant did not place any material before the tribunal, the exhibit referred

to were tendered without linking any to any piece of allegation made against

the Respondents. The evidence falls short of standard of proof placed on the

petitioner.

An appellate court can exercise the power to re-evaluate evidence. An

appeal court can do so where the trial court fails or neglects or refuses to do

so or does it in an improper way. The appeal court can embark on such re-

evaluation where for instance-

(a) the trial courts evaluation is clearly perverse

(b) the trial court drew wrong conclusion from the totality

of the evidence

(c ) The trial court applied wrong principle of law to

accepted facts in the case.

In other words it is not every circumstance that an appeal court will

have the liberty or re-assessing or re-evaluating evidence tendered before a

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

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ANYEGWU V. ONUCHE (2009) 3 NWLR Pt 1129, 659 Pp.675-676.

This issue is therefore resolved against the Appellant.

On Issue 4 The Petitioner complained that no careful or compassionate

evaluation of the entire pleadings and evidence led at the trial and quarried

whether the tribunal was not wrong in coming to the conclusion that the

Appellant did not make a case.

He submitted that the tribunal was wrong in law and in fact the way

and manner it evaluated the pleadings and evidence of the Appellant. He

argued that the tribunal applied a wrong standard of proof. The Appellant

called maid the case of OMOBORIOWO V. AJASIN (2003) 50 WRN

132. He argued that the allegation of crime did not form the bases of the

Appellants case and that the tribunal should have decided the case on the

balance of probabilities and or preponderance of evidence. He supported his

argument with authorities including AJADI V. AJIBOLA. He submitted

that Election petition cases require proof on the balance of probability or on

the preponderance of evidence on the part of the petitioner - such a burden

can be discharged by the evidence of a single witness without the need for

any corroboration. The petitioner in his argument put the proof that the

elections were held on the Respondents.

In conclusion he urged the court to allow the appeal, and set aside the

judgment of the lower tribunal, hold that the Appellants petition succeeds

nullify the elections order fresh election and disqualify the 1st Respondentfrom the said election. The 1st Respondent replied that it is settled that the

burden of proof is on the party that makes the positive assertion in respect of

a fact or event refer to S. 135 of Evidence Act. He argued that the only point

of Appellant's petition that the court tried was the criminal allegation and

that the evidence proffered by the Appellant in proof of criminal allegation

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was abysmal and without much ado the Appellant abandoned his bundle of

criminal allegation. He submitted that at all time the Appellant fail to

discharge the burden of proof which vested on him to prove his claim that

election did not hold. He referred to INEC v. RAY (2004) 14 NWLR

(Pt.892) 99 at 122.

He submitted that the tribunal evaluated the evidence adduced by the

Appellant's witness and held that the Appellant did not made a case. He

urged the court to dismiss the appeal of the Appellant and the ground.

The 2nd _20th Respondents argued that this issue formulated by the

Appellant is grossly misconceived and ought to be refused. He argued that

points canvassed by the Appellant had been abandoned. He argued that

allegation of the Appellant were criminal in nature as contained in section

124-138 of the Electoral Act 2006. He argued that none of the witnesses

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

_

20th Respondent relied on the much battered case of BUHARI V. INEC

(supra) where it was held that the standard of proof in criminal allegation is

one of proof beyond reasonable doubt, same has been codified in Section

138 (1) & (2) of the Evidence Act. It needs not be pointed out that where a

petitioner, as in this case alleges electoral malpractices he has a duty to

prove the malpractice alleged and show that same affected the result of

election.

He submitted that the Appellant can not reduce the standard of proof.

He fully relied on BUHARI V. OBASANJO (2005) 13 NWLR (Pt.941) 1

at page 269 F-H where the Supreme Court held as follows:

"A plaintiff is entitled to lead evidence on a point in the

defendants pleading consistent with this principle is that

evidence elicited during is not inadmissible merely because

such evidence is not supported by the pleadings of the party

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eliciting the evidence. It suffices if the evidence is pleaded by a

party to the suit".

Without hesitation and much ado I agree with this authority and I am

fully bound by it. The 2nd _20th Respondent urged the court to dismiss the

appeal as lacking in merit. The Appellant is confused as to what his case

was. Was it that election did not hold at all or that the election was marred

by manifest irregularities, corrupt practices etc.

If there was no election how does corrupt practices and manifest

irregularities and non compliance come into the petition. As you lay your

bed so you lie on it.

It is now trite law that the burden of proof is on the petitioner who

alleges that election did not hold to lead evidence on all material facts

required to prove or make out a case or rebuttals by the other party. See

INEC V. RAY (2004) 14 NWLR (Pt.892) 92 at 122.

In BUHARI V. OBASANJO (2005) 13 NWLR (Pt .941) Page 1 at

209 the Supreme Court held as follows:

"Manipulation or alteration results is a criminal offence and the proof

required is high that is beyond reasonable doubt etc".

From the available records the lower tribunal was right to dismiss this

petition on the basis that the Petitioner had failed woefully to discharge the

onus of proof placed on him. His case was so weak that the Respondent

need not go beyond the limit they went.

The Supreme Court in the case of ANYEGWU V. ONUCHE (2009)

37 NSCCR 109 at 127 has this to say on what may influence a court in

ascribing Probative value to Evidence before it is the quality of the evidence

or document tendered. In achieving that, the trial judge has to have regard to

among other things the following -

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(1) Admissibility of the evidence

(2) Relevancy of the evidence

(3) Credibility of the evidence

(4) Conclusivity of the evidence

(5) Probability of the evidence in the sense that it is more

probable than the evidence of the other party and

(6) Finally after having satisfied himself that all the

above had been complied with, he shall now apply to

the to the situation presented in the case before him so

as to arrive at a conclusion in one way or the other.

This assignment is an exclusive preserve of the trial court.

It is settled principle of law that where a trial court has carried out its

assignment satisfactorily, an appeal court shall be left with no option but to

affirm such decision, to do otherwise will institutionalize what the

Appellant is complaining of that is miscarriage of justice Per LT.

Muhammad JSC at page 126 of Anyegwu's case supra.

In the light of above consideration the judgment of the lower tribunal

dismissing the Appellant's petition is affirmed.

The appeal of the Appellant is unmeritorious and it IS hereby

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

COUNSEL

G.e. IGBOKWE ESQ for the Appellant with him MRS. ECHEBIMA,

D. ADODO ESQ, T.A. EMIRWA ESQ and F.T. EZEOKANORESQ.

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E.G. OHWOVORIELE ESQ with him A. ALOFOJE ESQ

for the 1st

Respondent.

O. OVRA W AH ESQ for the 2nd

_20th

Respondents with him are

M .. AGBIE ESQ and U.S. AMADI ESQ.

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APPEAL NO. CAIB/EPT/206/2008

JUDGMENT

{DELIVERED BY ALI ABUBAKAR BABANDI GUMEL, JCA}

I have had the privilege of reading in draft the judgment just

delivered by my learned brother SHOREMI, JCA.

I agree that this appeal lacks merit and it ought to be dis issed.

I also dismiss same and abide by the consequential order for

the lead judgment.

ALI ABUBAKAR BABANDI GUMEL,

JUSTICE, COURT OF APPEAL.

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

CONTRIBUTION

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

Iagree.

CHIOMA EGONDU NWOSU-IHEME (Ph.D)

JUSTICE, COURT OF APPEAL