EXCLUSIVE: WHY SYLVA LOST HIS CASE AND MAY LOSE AT APPEAL

The appeal court judgement passed on Tuesday the 26th July,2016 in the case of Chief Timipre Sylva (Apc) vs Henry Seriake Dickson (pdp) in which the court dismissed the case of Timipre Sylva, has raised lots of arguments in public domain.

In a one on one interview with Barr. D.D Femerekumo he gave his candid opinion why Sylva lost his case and why an appellate court may not be in his favour.

Question:  You were one of the lawyers for the Chief Timipre Sylva in the election petition against Dickson just in which the former lost, why did Sylva lose?

Answer: Before I address your question, let me make one correction and that it is I was only involved in the preparation of the case, that is at the point of filing and after that, as his right Sylva debriefed me. Let me be clear, I was not involved in the conduct of the case. Never. That is normal in my line of work. To that end, I was not Sylva’s lawyer. .  Now to your question, election petitions are usually not easy especially where you are making the case that you won in the election and want the court to return you as the winner. Everything depends on proof and the value of the evidence  you tender. It is important to note that when Inec announces a winner in the election, that winner enjoys a presumption, that is the presumption that Inec acted correctly and properly. It is the presumption of regularity. Now the facts of Sylva’s case is that election gubernatorial election was conducted in Southern Ijaw Local Government Area (SILGA) on the 6th day of December, 2015 and that while Inec had told the world that it was waiting for the results Inec later cancelled it and that if those results are collated by the Tribunal Sylva would have been elected Governor. It was also Sylva allegation that when Inec conducted election on 9 January, 2016, it was only in Ward 7. Of course, Sylva’s opponents denied those allegations.

When the law presumes that actions of a body as being properly done, it means that other party has a duty to rebut it with credible and acceptable evidence. And what that means again is that no matter your public relations stunts; no matter the number of Facebook posts, the court will consider your case first and see whether you have rebutted that presumption before looking at the case of the party in whose favour the presumption is.  Evidence is the basis of justice. Its is the key to getting what you want from a court of law. What you cannot prove, no court can give you, even if the entire world thinks you are right. In the instant case, the Tribunal said the Sylva did not prove his case. It is elementary that when you say that you won an election, the evidence of that fact must be contained in the results sheets and those results have to been tendered through their makers or persons who even though not their maker can given evidence of the transaction contained the results sheets. In fact, before you call this last mentioned person, who will need to explain to the court why the maker of the documents are not available and why they cannot be called. This is what we lawyers call laying foundation.

If you succeed in tendering those results through the appropriate persons, there is still the second hurdle and that is whether the results are in the form that the Tribunal can act upon them. This is called probative battle. Evidence is of probative value where it help a party to prove is allegation. For examples, the Tribunal will ask: are the results stamped in line with Inec guidelines, are the results original or are there mutilations on them or the results clear for the Tribunal to act on them. This is solemn duty of the Petitioner.  Whenever I say results, I am referring to polling unit results, for those results are the foundation of the electoral pyramid. Now, I was informed that the bulk of the polling unit results that were tendered were done through, the State Collation Agent, Dennis Otiotio, whose assignment confined him to the state collation centre in Yenagoa and not SILGA. This is where we bungled if that the reports I get are true. So I heard that, in addition to determining that the polling unit results tendered through Otiotio, were inadmissible and could not act upon them, the Tribunal also make specific findings on those results, just in the event that the Tribunal was wrong. In that process, it found that some of the results were either photocopies or  not properly stamped in line with Inec guidelines.

There is one important point I need to state, and that is that establishing that you won the election by tendering the polling units is so crucial, that if you don't do that, the evidence of what happened at the other levels of the electoral pyramid is of little or no value. Let me explain this point for the benefit of your readers. Over 30 years ago and only recently in Amgbare’s case against Sylva, the courts have consistently held that where there are no polling unit results, every other results are of no moment. In fact that was the basis upon which Sylva’s election as Governor was nullified by the Court of Appeal. So, if you call, as Sylva did the Local Government Returning Officer to testify and who indeed testified that he was collating the ward results and had collated a certain number before, it was cancelled, the value of that piece of evidence is only to the extent of collation. It is no evidence of conducting election at the polling units and that evidence will only have meaning in the mix when the polling unit results upon which, the collated results are based, have been admitted and acted upon by the Tribunal. The same goes for the video evidence. And the points I have made above are what I have consistently, reflected to all who have called me to get my sincere take on Sylva V Dickson number 2.m

RESOLUTION OF THE ISSUE
As, already indicated above, in an attempt to prove his Petition, the appellant [as Petitioner] called PW1 as his star witness. He testified. Exhibits GP2 -GP42, results of the election from the Polling Units, with respect to the Local Government Areas which the appellant (as Petitioner) challenged, were tendered through him.

Curiously, learned senior counsel for the appellant would seem not to have, thoroughly, acquainted himself with the import of the testimony of PW1. At page 13, (paragraph 4.2 of the appellant'??s brief), he contended that the "Court of Appeal fell into error partly because it misconstrued the capacity in which PW1 testified. The Tribunal below had made an order allowing the Petitioner and his representatives to take part in a joint inspection of the electoral materials and obtain a report. PW1 took part in the

inspection as representative/nominee of the Petitioner. It was in this capacity that PW1 received exhibits GP2 - GP42 and 45...," (italics supplied).

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..."
(Italics supplied for emphasis)

Little wonder then why, at pages pages 1420 -1421 of the record, the trial Tribunal derided the above viva voce testimony in these apt words:
"PW1's evidence in relation to exhibits GP2 -GP42 can best be described as documentary hearsay evidence (an obvious reference to Section 37 (b) of the Evidence Act, 2011) and that they were dumped on the Tribunal without the Petitioner making available

any oral evidence by the person who can explain their purport.

Surely, since the witness [PW1], was not "in any polling unit in Ebonyi State on the day of election;" "had never worked at INEC office;" "did not participate in the off loading of information from the Card Reader Machine to the INEC Data base" and "was not part of the team that came to Abakaliki for the exercise," the Lower Court, rightly, affirmed the position of the trial Tribunal that no weight could be attached to his evidence for he was "ignorant of [their] content."

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."
?(Italics supplied for emphasis)

Interestingly, as, also, shown above, PW1 conceded that he did not author exhibits GP2 -42, the electoral Forms. The implication, therefore, is that his tendering them without the testimony of the maker
or clear reasons for his absence is valueless, Haruna v. Modibo (supra); Buhari v. Obasanjo (supra).

What is more, the appellant anchored his case on exhibits GP2 - GP42. As Dr Onyechi Ikpeazu, SAN, rightly, pointed out at paragraph 7.04, page 15 of the third respondent's brief, the "essence of the evidence of PW1, through whom exhibits GP2-GP42, were tendered was to substantiate the alleged irregularities and non-compliance with respect to the entries in the result sheets, with the dictates of the Electoral Act, 2010 (as amended)."

That notwithstanding, in the words of the Lower Court, "these documents, GP2 -GP42 were before the trial Tribunal tightly bound and dumped in a corner..." Expectedly, the trial Tribunal characterised the evidence of PW1 as hearsay evidence and that the said documents were merely dumped on it, pages 1417 - 1421, Vol 2 of the record. The Lower Court, un-hesitantly, endorsed the approach of the trial Tribunal and affirmed that:
"Apart from PW1 whose testimony was bereft of credibility, no other witnesses of the appellant made any attempt to relate the documents in issue to the relevant portions of his Petition. The documents, GP2 -GP42

were before the trial Tribunal tightly bound and dumped in a corner. These documents were entries in electoral forms which ordinarily require oral evidence of someone conversant with the said entries to relate them to the disputed score and thereby them to life. Such evidence could not emanate from PW1 who only worked on received copies of the said documents. His later activities could not by any stretch validate or give life to what he never knew about. He was simply put, a stranger to the entries contained in those documents..." Nweze JSC in Okereke V Umahi (2016) SC

Question: How do you see an appeal?

Answer: Of course, Sylva has a right of appeal exercisable within 21 days from the day of the judgment. But, if I were in his shoes, I will get an independent opinion before an considering an appeal. It does appear to me that this case may have been lost not for the absence of evidence, but the strategy of his lawyers. But I have not read the full judgment of the Tribunal to get a fuller appreciation of what transpired in the case.