➥ CASE SUMMARY OF:
Edward Nkwegu Okereke V. Nweze David Umahi & Ors. (SC.1004/2015 (REASONS) • 5 Feb 2016)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Election petition.
➥ CASE FACT/HISTORY
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.
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.
➥ ISSUE(S)
I. 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)?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE APPELLANT STAR WITNESS WAS NOT IN ANY POLLING UNIT ON THE DAY OF THE ELECTION
‘With profound respect, this contention, surely, flies in the face of the ipse dixit of the self-same PWI who, in answer to a question by J. U. K. Igwe, SAN, in cross examination, at page 1182 of Vol 2 of the record, conceded that “I was not part of the team that came to Abakaliki for the exercise but I already had the working documents…” Be that as it may, the responses elicited from PW1 under the fusillade of cross examination did not bolster the appellant’s case. Only one example of his fumbling reactions to questions in cross examination, which has a direct bearing on the findings of the Lower Court may be cited here. Indeed, his responses to Dr Onyechi Ikpeazu, SAN’s questions under cross examination exposed the ineffectuality of his testimony. Hear him: “I read page 4, middle paragraph where it stated that we did not take cognisance of individual results of political parties…nor the number of votes cast at the election. I still stand by the report. I see page 4 again. The statement in the middle paragraph is correct. I was not in any polling unit in Ebonyi State on the day of election. It is not true to say that I relied on some ballot papers as they were discountenanced, I have never worked at INEC. I did not operate a Card Reader Machine. I did not participate in the off-loading of information from the Card Reader Machine to the INEC Data base. I see page 34, paragraph 4, 3, 1. I have not head of the word voting point. We only made our observations known on the facts contains (sic) on page 34, we did not discredit any result based on that. There is [a] difference between the analysis of a photocopy of a document and the analysis of an original copy. The documents given to me for analysis were Certified True copies of photocopies…”’
APPELLANT DID NOT PRODUCE THE VOTERS REGISTER
‘Against the background of the testimonies of PW8, it is, actually, surprising, that learned senior counsel for the appellant chose not to utilise the Voters’ Register, to show the entire gamut of the voters, Haruna v. Modibbo (2004) 16 NWLR (Pt. 900) 487; Audu v. INEC (No. 2) [2010] 13 NWLR (Pt. 1212) 456, but rather built his case on what, in the unanswerable words of the Lower Court was an exhibit (GP45) that was “not accurate, sufficient and comprehensive enough to be relied upon in proof of the allegation of non-compliance with the Electoral Act, 2010 (as amended).” It is in this connection that I endorse the invitation of J. U. K. Igwe, SAN, for the second respondent, to invoke Section 167(d) of the Evidence Act, 2011 against the appellant. That is to say that the appellant (as petitioner) failed to weave his case on the Voters’ Registers and a fortiori did not produce such registers because if he had produced them, their contents would have been unfavourable to the allegations he made in the Petition and hence his decision to withhold them.’
‘Parties seeking to prove over voting must tender the voter’s register and a complete card reader report in the election amongst other requirements. Any failure to tender the voter’s register is fatal to the case of the petitioner. See Haruna v. Modibo (2004) 16 NWLR (Pt. 900) 487; Kalgo v. Kalgo (1999) 6 NWLR (Pt. 606) 639 and Audu v. INEC (No. 2) (2010) 13 NWLR (Pt. 1212) 456.’]
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.
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✓ DECISION:
‘The above reasons prompted my dismissal of the appellant’s appeal on January, 27, 2016 and the affirmation of the concurrent findings of the Lower Courts that the first respondent in this appeal was, duly, elected and returned as the Governor of Ebonyi State having won the majority votes in the said election and having satisfied the relevant constitutional requirements. Appeal dismissed. Parties are to bear their respective costs.’
➥ FURTHER DICTA:
⦿ DOCUMENTARY EVIDENCE MUST BE LINKED TO ASPECTS OF A PARTY’S CASE
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 v. Akpabio (2012) 17 NWLR (Pt. 1116) 255 @ 299 D-F; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; A.N.P.P. v. INEC (2010) 13 NWLR (Pt. 1212) 549. — K. M. O. Kekere-Ekun JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Chima Centus Nweze, JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
Arthur Obi SAN, for 1st Respondent;
J. U. K. Igwe SAN, for 2nd Respondent;
Ikpeazu SAN, for 3rd Respondent.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ WEIGHT CAN HARDLY BE ATTACHED TO A DOCUMENT TENDERED BY A PERSON WHO DID NOT MAKE IT
As this Court explained in Buhari v. INEC (2009) 19 NWLR (Pt. 1120) 246, 391-392, “weight can hardly be attached to a document tendered in evidence by a witness who cannot or is not in a position to answer questions on the document. One such person the law identifies is the one who did not make the document. Such a person is adjudged in the eyes of the law as ignorant of the content of the document.”
➥ REFERENCED (OTHERS)
