‘Documentary evidence must be specifically linked to the aspect it relates’

BETWEEN  EDWARD NKWEGU OKEREKE Appellant(s)  AND  1. NWEZE DAVID UMAHI  2. PEOPLES DEMOCRATIC PARTY (PDP)  3. INDEPENENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)  ON FRIDAY, THE 5TH DAY OF FEBRUARY, 2016 SC.1004/2015 (REASONS)  LN-e-LR/2016/44 (SC)  OTHER CITATIONS  BEFORE THEIR LORDSHIPS  MAHMUD MOHAMMED, J.S.C  IBRAHIM TANKO MUHAMMAD, J.S.C  KUMAI BAYANG AKA’AHS, J.S.C  KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C  […]

BETWEEN 

EDWARD NKWEGU OKEREKE Appellant(s) 

AND 

1. NWEZE DAVID UMAHI 

2. PEOPLES DEMOCRATIC PARTY (PDP) 

3. INDEPENENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s) 

ON FRIDAY, THE 5TH DAY OF FEBRUARY, 2016

SC.1004/2015 (REASONS)

 LN-e-LR/2016/44 (SC)

 OTHER CITATIONS 

BEFORE THEIR LORDSHIPS 

MAHMUD MOHAMMED, J.S.C 

IBRAHIM TANKO MUHAMMAD, J.S.C 

KUMAI BAYANG AKA’AHS, J.S.C 

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C 

JOHN INYANG OKORO, J.S.C 

CHIMA CENTUS NWEZE, J.S.C 

AMIRU SANUSI, J.S.C 

 MAIN JUDGMENT CHIMA CENTUS NW

EZE, J.S.C. (Delivering the Leading Judgment):

This Court heard and dismissed this appeal on January 27, 2016. It promised to proffer its reasons for doing so on Friday, February 5, 2016, that is, today. Its reasons are set out below.

The third respondent in this appeal, (Independent National Electoral Commission, INEC, for short), conducted election into the office of the Governor of Ebonyi State on April 11, 2015. The appellant in this appeal, Edward Nkwegu Okereke, was sponsored by the Labour Party.

On his part, the first respondent, Nweze David Umahi, was the candidate of the second respondent, Peoples Democratic Party (hereinafter, simply, referred to as “PDP”).

At the end of the poll, the third respondent declared the said Nweze David Umahi (first respondent herein) as the winner and the duly returned candidate for the said election. The sad declaration was sequel to the third respondent’s finding that he (the first respondent) scored the highest number of votes cast and, in addition, satisfied the constitutional requirements apropos the election to the Office of the Governor of Ebonyi State.

Dissatisfied with the above declaration, the appellant and his party, the Labour Party, approached the Governorship Election Petition Tribunal (hereinafter, simply, called “the trial Tribunal”) with their Petition in which they challenged the declaration and return of the first respondent as the Governor of Ebonyi State.

In passing, it may be noted here that, pursuant to its application, the trial Tribunal struck out the name of the Labour Party from the Petition; hence leaving the appellant as the sole Petitioner.

The appellant’s Petition was predicated on the Grounds set out at page 4, Vol 1 of the record. They were framed thus:

(i) That the election of the first respondent, Nweze David Umahi, the person whose election is questioned, was invalid by reason of non-compliance with the provisions of the Electoral Act, 2010 (as amended) and the provisions of the Constitution of the Federal Republic;

(ii) That the said election was marred by various acts of corrupt practices and irregularities;

(iii) That the said Nweze David Umahi was not elected by the majority of the lawful votes cast at the Governorship election of Ebonyi State held on the 11th April, 2015.

For their bearing on the issues formulated by the appellant, the reliefs, which the appellant entreated from the trial Tribunal, are set out here in extenso, viz:

(1) A declaration that the purported election and return of the first respondent as the winner of the Governorship election in Ebonyi State held on 11th April, 2015 was marred by widespread irregularities and substantial non-compliance with the Electoral Act, 2010 (as amended) and the INEC Guidelines for the conduct of Elections, 2015 and is ipso facto null and void;

(2) A Declaration that the discrepancies between the number of Electronic Card Reader accredited voters and the Form EC8A Result Sheets of accredited votes on polling unit basis in the 11th April, 2015 Governorship election in Ebonyi State constitute irregularities or failure that substantially affected the results of the election and that the affected results be nullified accordingly;

(3)     A Declaration that the first respondent Nweze David Umahi was not duly elected by majority of lawful votes cast at the said Governorship election and did not receive 25% of votes cast in two-third of the thirteen Local Government Areas of Ebonyi State as required by the provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended);

(4)     An Order nullifying the purported election and return of the first respondent as the winner of the Governorship election for Ebonyi State held on 11th April, 2015;

(5) A Declaration that the first Petitioner was duly elected by majority of lawful and valid votes cast at the said Governorship election held on 11th April, 2015 in Ebonyi State;

(6) In alternative to relief 5 (supra), an order nullifying the entire Governorship election held in all the polling units in Ebonyi State on 11th April, 2015 and for fresh election to be conducted.[Italics supplied for emphasis]

Continued on www.dailytrust.com.ng/law

In proof of the averments in the Petition, the appellant (as Petitioner) marshalled eight witnesses. While the first respondent called one witness, only three witnesses testified in favour of the second respondent. On its part, the third respondent made do with the evidence of the sole witness who testified on its behalf.

At the conclusion of the case, the Tribunal (hereinafter referred to as “the trial Tribunal”), in its judgment of October 16, 2015, dismissed the said Petition. The appellant’s appeal to the Court of Appeal, Enugu Division, having been dismissed by that Court (which will, hereinafter be referred to as “the Lower Court”), he further approached this Court through his Notice and Grounds of Appeal from which he formulated three issues. 

ISSUES FOR DETERMINATION

As shown above, sequel to the Lower Court’s dismissal of his appeal, the appellant, further, appealed to this Court through his Notice and Grounds of Appeal from which he concreted three issues for this Court’s resolution of his grievance against the judgment of the Lower Court. His said three issues were framed thus:

1. Whether the finding by the Court of Appeal below that the trial Tribunal duly and properly considered and evaluated the pleadings and evidence pertaining to breach of the provisions of the Guidelines and the Manual for Election Officers in determining the question on non-compliance with the Provisions of the Electoral Act 2010 (as amended) raised by the petitioner is correct?

2. Whether the Court of Appeal below was right when it affirmed the decision of the Tribunal of first instance to the effect that exhibits GP 2 – GP 42 and exhibit GP 45 are not legal evidence but hearsay evidence, dumped on the Tribunal without any supporting oral evidence?

3. Whether the decision of the Court of Appeal to the effect that exhibit GP 45 was incomplete and unreliable, based on the evidence of PW8, is supportable?

While learned senior counsel for the first and second respondents adopted the above three issues in their tenor, learned senior counsel for the third respondent, Dr Onyechi Ikpeazu, SAN, adopted the same issues but in a more succinct and gripping phraseology in tandem with the posture of this Court in several cases, two of which are cited here, Olafisoye v. FRN (2004) LPELR -2553 (SC) 35, A – C; Imonikhe v. AG, Bendel State (1992) 6 NWLR (pt 248) 396; Ngilari v. Mothercat Ltd [1993] 8 NWLR (pt 31) 370. The golden rule has, always, been that parties must endeavour to avoid verbosity, Musaconi Lts v. Aspinall (2013) LPELR-20745 (SC) 17, A- B; Anaeze v. Anyaso (1993) LPELR -480 (SC).

I am enamoured of the issues of the third respondent because, as I have already pointed out above, they are couched in a more succinct and gripping phraseology in tandem with the posture of this Court in several cases that parties must endeavour to avoid verbosity in the issues they frame. For their precision, therefore, I adopt the said issues of the third respondent in the determination of this appeal.

After all, this Court has the prerogative to reframe the issues where it is of the opinion that the issues formulated by counsel are not succinct provided that the issues so reframed are covered by the grounds of appeal as canvassed by the appellant. D. P. C. C Ltd v. B.P.C. Ltd [2008] 4 NWLR (pt 1077) 376, 396 -397; 418 – 419; Oloriode v. Oyebi [1984] 1 SCNLR 390; N.P.A. v. Panalpina World Transport (Nig.) Ltd. (1974) 1 NMLR 82; Fabiyi v. Adeniyi [2000] 6 NWLR (pt.662) 532.

Thus, the three issues for the resolution of this appeal are:

1. Whether the Lower Court was correct when it confirmed the decision of the trial Tribunal to the effect that the appellant did not establish the case of non-compliance with the Provisions of the Electoral Act, 2010 (as amended)?

2. Whether the Lower Court was right in confirming the decision of the trial Tribunal that exhibits GP2 – GP42 and exhibit GP45 were unavailing to the appellant having been dumped on the trial Tribunal and with no witness who could be cross examined as to their contents?

3. Whether the Lower Court was right in holding that, having regard to the evidence of PW8, exhibit GP 45 – the Card Report – was incomplete, unreliable and incapable of proving the appellant’??s allegation of improper accreditation/over -voting?

Furthermore, I am, even, of the view that, having regard to the thematic affinity between the first and third issues, they could be taken together; hence their coalescence into one issue with two-pronged limbs. They would, thus, be considered together.

Specifically, the appellant sought a declaration (among others) that the election was marred by widespread irregularities including over voting, purportedly revealed by discrepancies between the number of Electronic Card Reader accredited voters and the Form EC8A result sheets of accredited voters on polling unit basis. It was his contention that the identified irregularities substantially affected the outcome of the election.

These irregularities were sought to be established mainly through PW1 who tendered Exhibits GP2 – GP42 (electoral forms) and Exhibit GP45 (the Card Reader Report). Unfortunately, the evidence of this witness could not advance the appellant’s case. It has been settled by a long list of authorities of this Court that:

(1) where a party seeks declaratory reliefs, the burden is on him to establish his claim. He must succeed on the strength of his own case and not on the weakness of the defence (if any).

(2) Documentary evidence relied upon by a party must be specifically linked to the aspect of his case to which it relates. A party cannot dump a bundle of documentary evidence on a Court or Tribunal and expect the Court to conduct an independent enquiry to provide the link in the recess of its chambers. This would no doubt amount to a breach of the principle of fair hearing. See: Ucha v. Elechi (supra): Iniama vs. Akpabio (2012) 17 NWLR (pt.1116) 255 @ 299 D – F: Awuse Vs. Odili (2005) 16 NWLR (Pt.952) 416; A.N.P.P. V. INEC (2010) 13 NWLR (Pt.1212) 549.

(3) Hearsay evidence, oral or documentary, is inadmissible and lacks probative value. See Section 37 of the Evidence Act, 2011 particularly Sub-Section (b). See: Buhari V. Obasanjo (2005) 13 NWLR (Pt.941) 1 @ 317; Doma V. INEC (2012) All FWLR (Pt. 628) 813 @ 829.

PW1 under cross-examination admitted that he was not part of the team that visited Abakaliki for the inspection of electoral materials. He also admitted that he was not at any polling unit on the day of the election and did not operate any card reader machine or participate in off-loading the data from the machine to INEC’S data base. No other witness was called to testify in respect of Exhibits GP2 – GP42 or to link them to the specific allegations of non-compliance in the appellant’s case. The voters register, which has been held by this Court to be indispensable in proving allegations of over voting was also not tendered.

See: Shinkafi V. Yari (unreported) SC.907/2015 delivered on 8th January 2016: ACN Vs. Lamido & Ors (2012) LPELR – 782 (SC); Ucha Vs. Elechi (supra): Haruna V. Modiboo (2004) 16 NWLR (Pt.900) 487.

The evidence of PW1 on the said exhibits amounted to documentary hearsay. It could not avail the appellant. Contrary to the appellant’s contention that the trial Tribunal failed to consider the evidence of non-compliance led by him, the record clearly shows that the said Tribunal afforded the evidence adduced the required scrutiny and made findings thereon. The Lower Court so found at pages 205 and 206 of the record, Having dumped documents on the Tribunal by a person who was not the maker and the failure of the appellant to tie the documents to specific aspects of his case, the evidence of PW1 was rightly rejected by the Tribunal and the Court below was in order when it affirmed the decision.

Furthermore, PW8 an official of INEC who testified on subpoena on the application of the appellant admitted that Exhibit GP45 (the Card Reader Report) was an incomplete document, as data from some polling units had not been uploaded to the INEC data base as at the time the report was made. The document was therefore unreliable and lacking in any evidential value. Again the Tribunal rightly rejected the report and the Court below was right to have affirmed the rejection. On these findings alone, the petition was bound to fail.

It was for these and the more elaborate reasons well marshalled in the lead judgment that I dismissed this appeal and affirmed the decision of the Court below.