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The elementary topic of law of evidence in law classes across the globe is that the onus of proof is on the one who asserts. However, this old age theory seem in recent time to be undergoing a redefinition in Nigerian courts and is set to be upturned by the court as demonstrated recently in the judgment of the Court of Appeal in Fayemi v Oni (Unreported) that the burden of proof by virtue of the pleadings of the appellants lay on the Respondent.

The Court in its rascality had descended into the arena by giving the appellants a judgment on an issue not pleaded before it, the Petitioners did not in their pleading claim that election did not take place but rather that the elections that took place were fraught with irregularities basis upon which the petition was brought before the Court.

The simple principle of law of evidence is to the extent of Ss 135 &

136 and as stated clearly in the case of Adighije v Nwaogu (2010)12 NWLR (pt 1209) by the same court inter alia thus:

“I cannot agree with the proposition that the burden of proof is on the respondents to prove that election took place and that if both parties had folded their arms, it is the respondents who are supposed to lead evidence of the holding of the election first would lose… S137 that no matter how fanciful a claim has been couched, either in negative or positive terms, the burden is on the the person who will lose is no evidence were le. There is presumption that an election took place in this local government, the burden is on the appellant to rebut that presumption on the balance of probability, thereafter the burden would shift on responsibility”

These are the words of the same court on the issue of burden of proof on electnotice was served. It is meant to pave way for him to tender secondary evidence of the document. ion matters, it is a wonder then that a court which made such pronouncement will in the same year and in similar circumstance make a sharp u turn and say the opposite not giving comsideration to the fact that elections are only said to have taken place based on the existence of some facts and indices which presupposes that a person who asserts the non existence of such facts has the burden to establish and prove the non existence of such facts.

The saying that anything goes in Nigeria was brought to play in the case in question where the Court blatantly abandoned its own decisions in similar cases and groped for answers to questions that were not asked or how do one describe the position of the court in disregarding its own decision and in fact that of the Supreme Court on the position of S149(d) which is settled law that service of a notice to produce on a party is simply an assertion of the party serving the notice of his preparedness to tender secondary evidence of the documents in respect of which the noticed was served. The Court had settled this fact of law in its decision in Awuse v Odili(Unreported) where the court unequivocally stated that failure to produce a document can never be a ground for the invocation of S.149 (d), so why would the Court go against its own pronouncement in another case where in going against itself, the Court of Appeal invoked S.148(d) against the respondents in this case on account of failure to produce documents in respect of which the Appellants had obtained orders of the the Tribunal and served notices to produce. The most interesting part of this is that it was the same learned President of the Court of Appeal that presided and made these contradictory statements on the same section of the Evidence Act. It is trite law that you cannot approbate and reprobate at the same time, but it seems His lordship has once again proven this as a fallacy in law and that law can be according to his caprices.

One trite aspect of law and its practice is in the age long theory that the court cannot give judgment on case not pleaded, but guess what? The learned President of the Court of appeal did, he and his panel of other judges actually descended to the point of aiding the indolent by giving judgment to the Appellants on a point that was never pleaded by them. In their appeal, the Appellants in paragraph 71 of their petition stated that 'the materials including voters registers were never brought to the collation center', and this was further confirmed on page 228 of their final address where the learned counsel to the Appelants at paragraph 3.161 state before the Tribunal that “……It is worthy to mention that the position of the Petitioners is that the electoral materials and results of all the disputed wards in Ido-Osi Local Government Area were not brought to the Local Government Collation Office in Ido-Ekiti…”

Their point was however debunked by the evidence of the various presiding officers who confirmed that the materials were brought to the collation center, immediately upon the realization of the debunkment, the Appellants changed tune to say that the said materials were evacuated before the collation center was set on fire, this being against their earlier position and the Court went ahead to give them judgment on the latter claim despite the fact that they did not make this claim in any of the pleadings before the court. It is very interesting that in giving this judgment, the Court of Appeal no doubt confirmed the fact that the Appellants were very wrong and had failed woefully in their assertion that the materials were not taken to the INEC office as they claimed in their pleadings both before the Tribunal and the court of Appeal.

Amazingly, judges are believed by training and vocation to be very thorough in all they do, but the Court of Appeal in this case actually went to sleep on the issue of the examination-in-chief and cross examination of the a witness Mr. Peter Oladosu PW43 though page 41 of the judgment at paragraph 19 reproduced the witness statement on oath of the witness but contrary to the records of the same court as contained in pages 4011-4014, the Court in its delivery said “there was no evidence on record that PW43 was ever cross-examined by any of the Respondents' Counsel”. An extract of the witness's statement during cross examination are as follows and this can be found in the Court's records on the above stated pages Page 4012 “I am a simple man and that is how I behave. I am not a trouble maker”.

Page 4011
“I am not a criminal and my children know that their father is not a criminal”.

It was on the basis of this witness's statement that the Governor was willfully removed by the learned Justices of the Court of Appeal, further to this, the Court of Appeal was very silent on the issue of the same witness having an interest to serve by his testimonial considering he was at the time of his testimony, was standing trial for assault and damaged occasioned to a woman leader of the PDP.

The court in its wisdom therefore went on a voyage to find a link between this witness and the Respondent because he had played a role in the campaign activities of the 1st Respondent without proper recourse to the tenets of the law of Agency as it relates to commission of criminal acts in an electoral matter which requires not only proof that persons stated to have committed alleged criminals were agents of the Respondent or winner of the election but but more importantly that the said criminal acts were committed pursuant to the instruction of the Respondents or winner of the election. It is my candid opinion that the court in finding the evidence of fulfillment of the first condition conveniently forgot or omitted the second condition of establishing the relationship between the witness and the 1st Respondent.

Further dramatis in this curious judgment was the fact that the Court in deciding whether election took place in the contentious wards of IPOTI, IJERO & IFAKI stated contrary to the dictates of the Electoral Act and decided cases (and probably in its attempt at re writing the

law) that:
“the mere production by the Respondent of Form EC8A without more is not prima facie evidence or proof that an election was conducted” see Amgbare v Sylva which was a copious source of reference for the Court in this case. See also Obun v Ebun (2006) All FWLR (Pt 327)419 where the court stated as follows: “…..there is in law a rebuttable presumption that the results of any election declared by the Electoral body (in this case, INEC) is correct and authentic and the onus is on the person who denies its correctness and authenticity to rebut the presumption. See Sam v. Ekpelu (2000) 1 NWLR (Pt. 642) page 594; Hashidu v. Goje (2003) 15 NWLR (Pt. 343) page 387, (2004) All FWLR (Pt. 228) 662; Nwobodo v. Onoh (supra); Omoboriowo v. Ajasin (supra) and Onye v. Kema (1999) 4 NWLR (Pt. 598) 198 at 203 – 204. See also sections 116, 149(c) and particularly 150 (1) of the Evidence Act. By virtue of section 150(1) of the Evidence Act when an official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.

The general burden of proof which is the onus propandi rest on the petition to call not only rebuttal evidence of no election but the falsity of the results declared.”

In this case, the Respondent tendered virtually all the copies of the Forms EC8As issued to the agents of the 1st & 2nd Respondents on the day of election, but the Court found this as not a prima facie proof of the conduct of the election whereas it is settled that the production of Form EC8A upon which a candidate was declared by the electoral body raises a presumption of regularity in the conduct of the election and that the onus would lie on any person disputing the regularity to lead evidence in rebuttal of the presumption.

The trial Tribunal had upheld this strong position of the law for which it got berated by the Court of Appeal which threw all caution and regard of the position of the Supreme Court and that of itself as contained in several judicial authorities upheld on the same point of law. See Chime v Onyia (2009) 2 NWLR (Pt 1124) 1 where the Court at page 70 in paragraph G held inter alia: “It must be observed that it was admitted that the 1st respondent was declared the winner of the election by the 4th Respondent, accordingly, there is presumption that all the formal pre-requisites for the declaration of the 1st respondent as the winner of the election including his due nomination a running mate were also satisfied. See Buhari v. Obasanjo (supra).”

In the desperate bid to find judgment against the respondent in this case, the Court turned both blind eyes and deaf ears to a major relevant issue of the burning of the INEC office at Ido and also evidence leading to the identity of the perpetrators of the heinous crime, this is despite the unfortunate fact that the entire dispute between the parties was hinged primarily on the status of the incidence at the INEC office at Ido. For clarity of purpose, the Petitioners had stated in their pleadings that their supporters were present at the Ido INEC office chanting “rig and roast”, this is in addition to the corroboration of 2 witnesses PWs 28 & 29 both of whom testified that the slogan “rig and roast” is suggestive of violence.

Incidentally, PW33, who is an admitted supporter and close associate of the 1st Petitioner gave evidence that he set in motion the chain of event in process by making a call to the agents of the Petitioners present at Ido INEC office alerting them that a vehicle conveying Ballot Boxes and papers was on its way to the INEC office at Ido.

Further to this is the testimony of RW136 who testified to the riotous conduct of the supporters of the Petitioners at the said INEC office at Ido leading to the evacuation of the place and relocation of the collation exercise to the Ido Police Station.

Bogged by the over bearing evidence as to the identity of the perpetrator of the crime of burning down the INEC office which in itself is a crime of arson and in its effort to protect them from this crime, the court held very curiously that the identity of the perpetrator is irrelevant to the case, how can a court which is expected to protect the good of the public state that the identity of an arsonist is irrelevant in the establishment of a crime against the state? In whose interest is this anyway?

All of these no doubt was in the compromising interest of the appellant whom the court had made up its mind to protect by all means because an admission of the preponderant of evidence against the perpetrators would have frustrated the effort of the court in its bid to award judgment to the appellants as it so did hiding shamelessly under Section 149 (d) against the respondents for the non production of the same electoral materials.

In arriving at its decision that the Police was derelict in the discharge of its duties, the Court of Appeal relied solely on the evidence of PWs 37 & 38 both of whom were election observers who claimed they were attacked by hoodlums without attempt by the Police to rescue them, the Court refused to averse its mind to the evidence extracted from the same witnesses to the extent that the attack took place after the conclusion of polls and that in 4 of the wards which the observers monitored, the Petitioners won 3 whilst the 1st Respondent won only one and more so the place of the attack Esure was outside of any of the wards contested by the Petitioners in the Appeal.

The reasons for all these cannot be farfetched as it is a known fact that the Learned President of the Court of Appeal has and continued to maintain a long standing relationship with the main figure of the party to which the Petitioners belong and has unapologetically made it known for a while that he cannot but do the bidding of his long time

associate. This can be corroborated by the fact that the said friend

played a major role in his appointment as the President of the Court of Appeal and perhaps this case and the previous ones in Edo and Ondo upon which the President sat as well were the pay back for favours of friendship.

This no doubt negates the principle of justice and fair hearing as well as the maxim that justice ought to not only be done but must be seen to have been done. In this case justice was not done and could not have been seen to be done give all the above facts as enshrined in the judgment that would soon become a precedent to be cited in law courts in the nearest future, the confusion inherent in this pronounced judgment is not healthy for the development of law and is capable of leading the bench into undeserved disrepute if this trend is allowed to continue unabated.

One begins to wonder if it was the same oath of allegiance the likes of late JIC Taylor took when they became judges as against what we have now. It was told how the Late Justice JIC Taylor stopped attending church services just because he did not want people to see him in public with potential litigants who might find their way to church just to be seen hanging around him or the Late Justice Ojomo who for sake of the fact that his court clerk was greeting a litigant voluntarily asked the matter be taken to another judge to avoid been seen to favour someone his clerk knew. If care is not taken with the way and manner justice is being meted out especially in cases involving electoral issues, the ridicule to which the bench would be dragged would be so unfathomable that anarchy may be the next line for dissatisfied persons in the society.

How come a judicial decision will by its own fiat disenfranchise a whole lot of people and make their votes null despite overbearing evidence that they came out to vote in accordance with the pleadings of both parties before the court and it was found that no election took place, is the court not descending into the arena of abysmal failure in dispensation of justice as required by law?

This probably goes to confirm the rife rumors that juicy plots of pottage were distributed to influence justice in our land, as such future litigants should be more concerned about the cost of getting justice that the cost of pursuing a case as this has been relegated and moreso being assisted by our own practitioners of the higher level who sees nothing wrong in disturbing the laid down laws and procedures they themselves inherited and which had assisted them to their present utopian heights. It is very unfortunate indeed that have to get to this level in our jurisprudential journey.

Bayo Ayo, a legal practitioner writes from Ado-Ekiti

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