Edward Nkwegu Okereke V. Nweze David Umah & 2 Ors

Areas Of Law
APPEAL, CONSTITUTIONAL LAW, ELECTORAL LAW, LAW OF EVEIDENCE, PRACTICE AND PROCEDURE

Summary Of Facts
The 1st Respondent and Appellant contested for the election into the office of the Governor of Ebonyi State under the platform of their respective parties. At the end of the election, the 3rd Respondent (INEC) declared the 1st Respondent, Nweze David Umahi of Peoples Democratic Party the winner and duly returned candidate for the election, having scored the highest number of votes. Dissatisfied with the declaration, the Appellant and his party the Labour Party, approached the Governorship Election Petition Tribunal challenging the declaration and return of the 1st Respondent as the Governor of Ebonyi State, and sought the following reliefs; a declaration that the election was marred by widespread irregularities and substantial non-compliance with the Electoral Act, 2010, the INEC Guidelines for the conduct of Elections 2015, a declaration that the first Petitioner was duly elected by majority of lawful and valid votes cast, amongst others. At the conclusion of the case, the Tribunal dismissed the petition of the Appellant and also struck out the name of the Labour Party. On appeal to the Court of Appeal, the court also dismissed the Appellant’s appeal hence, a further appealed to the Supreme Court whilst the 3rd Respondent filed a preliminary objection challenging the Appellants’ Ground of Appeal.

Held
Appeal Dismissed

Issues For Determination

• 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)?
• 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?
• 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 appellants allegation of improper accreditation/over -voting?

Rationes
GROUND OF APPEAL – INSTANCE WHERE A GROUND OF APPEAL CAN BE DEEMED ABANDONED
“Where no issue is formulated from a Ground of Appeal, it would be deemed abandoned. This is so trite that it does not warrant the citation of any authority; albeit, the cases on the point are many. Only one or two of such cases will be cited here, Dada v Dosunmu [2006] 18 NWLR (pt. 1010) 134; Idika v Erisi [1988] 2 NWLR (pt. 780 563; Nkado v Obioma [1997] 5 NWLR (pt. 503) 32; Animashaun v University College Hospital [1996] 10 NWLR (pt. 472) 65; Kari v Ganaram [1997] 2 NWLR (pt. 488) 380.” PER. C. C. NWEZE, J.S.C

ISSUES FOR DETERMINATION – PREROGATIVE RIGHT OF AN APPELLATE COURT TO REFRAME ISSUES FOR DETERMINATION
“An appellate court has the prerogative to reframe the issues where it is of the opinion that those formulated by counsel are not succinct provided that the issues so reframed are covered by the Grounds of Appeal as canvassed by the appellant. These cases vindicate this position, 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; NPA, v. Panalpina World Transport (Nig,) Ltd. (1974) 1 NMLR 82; Fabiyi v. Adeniyi (2000] 6 NWLR (pt. 662) 532”. PER. C. C. NWEZE, J.S.C

DOCUMENTARY EVIDENCE – WHETHER WEIGHT CAN BE ATTACHED TO A DOCUMENT TENDERED IN EVIDENCE BY A WITNESS WHO IS NOT THE MAKER
“As this court explained in Buhari v INEC [2008] 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.” PER C. C. NWEZE, J.S.C

EXPERT WITNESS – WHO IS AN EXPERT WITNESS?
“For the avoidance of any doubt, although expertise, for evidential purposes, cannot be equiparated with scholastic knowledge or professorial attainment, R. v Silverlock (1894) 2 Q. B. 766; AG, Federation v Abubakar [2007] All FWLR (pt 375) 405, 555; Azu v State [1993] 7 SCNJ pt 1 151; Sowemimo v State [2004] All FWLR pt 203 951, an expert is, all the same, a person who is specially skilled in the field he is giving evidence, AG, Federation v Abubakar(supra).” PER C. C. NWEZE, J.S.C

EXPERT OPINION – DUTY OF AN EXPERT WHEN GIVING AN EXPERT OPINION
“A person, who is paraded as an expert, must furnish the court with the necessary scientific criteria for testing the accuracy of their conclusions so as to enable it [the court] to form its own independent judgement by the application of those criteria to the facts proved in evidence, Phipson on Evidence (12th Edition), paragraph 1227, page 497; David v Edinburg Magistrates (1953) SC 34, 40.” PER C. C. NWEZE, J.S.C

EXPERT OPINION- NATURE OF AN EXPERT OPINION
“Put differently, the opinion and conclusions, which such an expert proffered before the trial court, must be supported by scientific analysis otherwise his evidence would be valueless or worthless, SPDC Ltd v Farah and Ors [1995] 3 NWLR (pt 382) 148; SPDC v Otoko [1990] 6 NWLR (pt 159) 693; Ogiale v SPDC (Nig) Ltd [1997] 3 NWLR (pt 480) 165. “ PER. C. C. NWEZE, J.S.C

EXPERT OPINION – PURPORT OF AN EXPERT OPINION
“It cannot be otherwise for, as Lawton U, observed in Turner [1975] Q. B. 834, 841: an observation which I adopt as part of my reasoning in this appeal:
“An expert’s opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a Jury… If on the proven facts, a Judge … can form [his] own conclusions without help, then the opinion of an expert is unnecessary
See, also, M. Redmayne, Expert Evidence and Criminal Justice (Oxford: 0. U. P., 2001) 140 -149, in I. H. Dennis, The Law of Evidence (supra) 702.” PER C. C. NWEZE, J.S.C

ELECTION – PROOF OF IMPROPER ACCREDITATION VIS-À-VIS INTRODUCTION OF CARD READER MACHINE
“In all, the law on the proof of improper accreditation and over-voting has remained inexorable and has not been whittled down by INEC’s approval of the deployment of the Card Reader Machine procedure.” PER C. C. NWEZE, J.S.C

EVIDENCE – BASIC PRINCIPLES OF EVIDENCE
“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). Such reliefs will not be granted even on the admission of the defendant. See: Emenike Vs P.D.P. (2012) LPELR – SC 443/2011 P.27 D – G: Dumez Ltd. vs. Nwachoba (2008) 18 NWLR (Pt 119) 361 @ 373 – 374; Omisore Vs Aregbesola (2015) 15 NWLR (Pt. 1482) 297 – 298 F – A: Ucha Vs. Elechi (2012) 13 NWLR (Pt 1317) 230
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 Vs. Elechi (supra); Iniama Vs. Akpabio (20121 17 NWLR (Pt.1116) 255 (a 299 D – F: Awuse Vs. Odili (2005) 16 NWLR (Pt.952) 416; A.N.P.P. Vs. 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 Vs. Obasanio (2005) 13 NWLR (Pt.941) 1 @ 317: Doma vs. INEC (2012) All FWLR (Pt.628) 813 @829.” PER. K. M. KEKERE-EKUN, J.S.C.

INCOMPLETE EVIDENCE – WHETHER A COURT CAN ENTER JUDGMENT IN FAVOUR OF A PARTY BASED ON INCOMPLETE EVIDENCE?
“It is improper for a court of law to enter judgment for a party on incomplete and inconclusive facts or evidence. A party ought to place all relevant facts before the court to assist it to arrive at a fair and reasonable conclusion. See Felix Nyoye Adim V. Nigerian Bottling Company PLC & ANOR. (2010) 9 NWLR (pt. 1200) 343.” PER. J. I OKORO, J. S. C

ELECTION – DUTY OF A PARTY IN PROVING OVER-VOTING
“Earlier this year, in Mahmud Aliyu Shinkafi & Anor V. Abdulazeez Abubakar Yari & 2 Ors (unreported) -Appeal No. SC. 907/2015, delivered on 8th January, 2016, 1 stated on page 30 of the judgment as follows:-
“My understanding of the function of the Card Reader Machine is to authenticate the owner of a voters’ card and to prevent multi-voting by a voter, I am not aware that the card reader machine has replaced the voter’s register or taken the place of statement of results in appropriate forms”
The position has not changed. 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”. PER J. I OKORO, J. S. C

Statutes Referred To
Electoral Act, 2010 (as amended)
Constitution of the Federal Republic of Nigeria 1999 (as amended)