Chief Ojo Maduekwe V. Prince Onyeka Amadi Okoroafor & Ors (1992)
LawGlobal-Hub Lead Judgment Report
MUKHTAR, J.C.A.
The case for the petitioner/appellant in the National Assembly Election Tribunal of Abia State were as follows: The petitioner was a candidate under the platform of the Social Democratic Party at the Aba Central Senatorial District Election held on 4/7/92, whilst the 1st respondent was a candidate of the National Republican Convention in same.
The 2nd – 7th respondents were officials involved in the election exercise.
The 1st respondent won by a slim majority of 1530 votes, his total votes being 63,808, and that of the petitioner 62,278.
The figures were arrived at after a reconstruction or recollection of the Arochukwu Local Government Area results four days after the election following allegation of rigging in the wards. The 2nd respondent constituted a committee for the purpose of the above, for which a report was written, but the recommendation for another election in that Local Government in that report was rejected, as the result of the 4/7/92 was announced and the 1st respondent was declared the winner, Amongst the complaints of the petitioner was that his agents were arrested and detained by the police on the order of an N.R.C. party stalwart, namely Chief Kalu Nkochi and that just before the start of the poll, some N.R.C. members snatched forms EC8s from the Supervisor for Ovukwu, and because of that and some other acts by them the election there was not fair and free. The petitioner made allegations of impropriety of various nature in respect of Ohafor Abam II Ward, and Ohaeke Abam Ward etc, mainly of intimidation and harassment of his agents, which resulted in latent irregularities and no results in some wards.
Another very serious allegation was that of undue influence by the 1st respondent and the Governor of Abia State, Dr. Ogbonnaya Onu; which was in main a purported address by the Governor a few days to the election at a gathering in Ohafia. A record video tape of the address was sought to be tendered as evidence to prove the allegation of undue influence, but it was rejected for lack of proper foundation.
On the other hand the 1st respondent asserted that the 2nd respondent’s declaration of his victory was lawful as he was directly elected to the Senate by a majority of lawful votes cast at the election. He admitted that there was delay in announcing the result but the 2nd respondent took necessary steps to satisfy himself of the correctness and genuineness of the votes. The 1st respondent denied that the results from Arochukwu Local Government were reconstructed or recollected from copies presented by the N.R.C. agents or that they were torn to pieces at the collation centre by angry protesters. He also denied all allegations levied against Chief Kalu Nkochi or that he (the 1st respondent) was privy or party to the allegations. As regards the allegations of malpractice in Ohafia and Ovukwu the 1st respondent denied them and further added that the petitioners agents signed the Ovukwu result for them. Consequently, the election of 4/7/92 was fair and free as well as peaceful. The allegation of undue influence was also denied. On their parts the 2nd – 7th respondents also denied most of the allegations of the petitioner, and in fact revealed that it was the petitioner’s agent and colleague, Chief Uche Okoroji who attempted to seize and destroy all the results and other N.E.C. documents at the collation centre. Conflicting reports were received by the 2nd respondent, hence the delay, as he wanted to consider all the reports before arriving at any decision. They denied that there was any report of malpractices, corrupt practices or undue influence from any of the polling stations.
Seven witnesses altogether gave evidence for both sides, and documentary evidence were also in the course of their evidence admitted. The tribunal after its evaluation and appraisal found that the petition lacked merit and dismissed it.
Aggrieved, the petitioner appealed to this court first on seven grounds of appeal as contained in the notice of appeal that was properly filed within the time stipulated by paragraph (2) of the Practice Direction, No.2 of 1992. I say first, because on the 28/10/92, learned S.A.N. for the appellant filed a document headed “Notice of additional grounds of appeal”, which he sought to bring in and argue by way of oral application, but the application was refused on the ground that it was not properly before the court. That thus leaves us with only the grounds in the notice of appeal, which are as follows (but without their particulars):-
Ground One
- Error in Law
The Tribunal erred in law when it held that the 7th respondent I.M. Amaocha, Electoral Officer, Arochukwu Local Government area was not a competent witness to testify on behalf of the petitioner/appellant.
Ground Two
i. Error in Law
The Tribunal erred in law when it rejected a tape recording tendered by the petitioner in proof of matters duly pleaded on the ground that “the witness did not tell the tribunal the maker of the tape of the time it was recorded and also the fact that no proper foundation was laid before the witness sought to tender the tape.
Ground Three
Error in Law
The Tribunal erred in law when it rejected unaccredited voters card tendered by P.W4 in proof of matters duly pleaded by the petitioner on the grounds that proper foundation was not laid or on the ground of want of pleading ..
Ground Four
Breach of Rules of Fair Hearing
The decision of the Tribunal is in breach of the rules of fair hearing.
Ground Five
Error in Law
The Tribunal erred in law when it admitted as Exhibit F, a Form EC8B tendered by the D.W.2 and relying on it when Exhibit F was clearly not in accordance with paragraph 26 (2)(d) and (e) of Schedule 3 to the Decree No.18 of 1992.
Ground Six
The Tribunal was in grave error of mixed law and facts when it held that the election was conducted in substantial conformity when upon a dispassionate review of the evidence and a calm appraisal of the enabling law the election was clearly not conducted in substantial conformity with the enabling law.
Ground Seven
Omnibus
The decision of the Tribunal is against the weight of evidence.
Learned S.A.N. also sought to amend the appellant’s briefs of argument filed on 26/10/92 by way of motion filed on 30/10/92 but the application was refused.
Learned counsel for the respondents on the other hand did not file their reply brief within the time stipulated by paragraph (H) of the Practice Direction No.1 of 1992 and even though Chief Ahamba, S.A.N. for the 1st respondent based his non-compliance on the receipt of the motion for amendment from the appellant’s counsel. Chief Akande, S.A.N. the court viewed the excuse as flimsy and not cogent enough to warrant the exercise of its discretion. It thus refused to allow extension of time to file his reply brief, but he was given leave to proffer oral argument by virtue of Rule 7(d) of the Practice Direction No.1 of 1992. Mr. Nkue of counsel for the 2nd – 7th respondents’ written application for extension (though for other reasons) was also refused, and he was also granted leave to advance oral arguments as allowed by the supra Rule.
In the only brief of argument in this appeal are four raised issues for determination. The first issue is whether the tribunal was correct in its view that the 7th respondent was not a competent witness for the petitioner and if not, whether the prevention of the 7th respondents from testifying on behalf of the petitioner has occasioned a miscarriage of justice.
At the hearing of the appeal, Chief Akande adopted the appellant’s brief of argument and made oral submissions. Learned counsel for the respondents also proffered oral arguments. In arguing Issue (1) supra learned S.A.N. for the appellant placed reliance on the cases of Alhaji A.Y. Elias v. O. Disu and 3 Ors (1962) 1 All NLR (Pt.2) page 214 and Z.O. Obolo v. Rev. J.D. Aluko and 7 Ors (1976) 1 NMLR 334 on the competence and compellability of witnesses, and submitted that the National Assembly (Basic Constitutional Provisions) Decree No.8 of 1992 governing elections does not specify that any of the respondents called by the petitioner has to obtain the consent of the Attorney General, nor does the Decree designate any respondent as statutory. Learned S.A.N. for the 1st respondent on his own part submitted that the 7th respondent was not barred from giving evidence adding that he was not served with a subpoena. He placed reliance on the cases of Obi v. Mbakwe (1984) 1 S.C. 325 and Orubu v. NEC. (1988) 5 NWLR (Pt.94) page 325. Learned counsel for the 2nd – 7th respondents referred to paragraph 13(2) of Schedule 4 to the supra Decree.
In dealing with this issue. I deem it pertinent to first reproduce the provision of paragraph 45(1) of Schedule 4 of the Decree (supra) which states the procedure to be adopted in the hearing of a petition. It states:-
“Subject to the express provisions of this decree: the practice and procedure of the Tribunal in relation to an election petition shall be assimilated as nearly as may be to the practice and procedure of the High Court in the exercise of its civil jurisdiction and the High Court Civil Procedure Rules or Civil Procedure Code shall apply with such modifications as may be necessary to render them conveniently applicable as if the petitioner and the respondent were respectively the plaintiff and the defendant in a civil action.”
I think the above provision is very clear on the application of the normal procedure of the High Court in ordinary civil actions, to cases of election petitions as nearly as possible. The decree and Practice Direction of 1992 (supra) has not in any way tampered with the High Court Civil Procedure Rules or the Evidence Law on the position of who is a competent or compellable witness. I therefore hold the view that the provision as in the High Court is applicable and on the face of that and of the authorities relied upon (supra) the 7th respondent was a competent witness, and also hold that contrary to the contention of learned S.A.N. for the respondents and finding of the Tribunal that paragraph 42(1) of Schedule 4 of Decree No.18 of 1992 has no relevance to the issue at stake. The provision of paragraph 42(1) envisages a completely different situation whereby any of the respondents would not want to oppose a petition. In the case at hand the situation never arose, so to say that paragraph 13(2) of Schedule 4 was a condition precedent for a respondent to give evidence is my opinion, and with due respect, a misconception. The fact is that the paragraph is not applicable to the exercise.
Even though it was wrong of the Tribunal to have ruled that the 7th respondent was not a competent and compellable witness the argument and discussion on the issue and the relating ground of appeal must not end here, for it is pertinent that I consider the evidence that would have been given by the 7th respondent if he had been called, and the miscarriage of justice its absence has occasioned. Learned S.A.N. for the appellant referred to paragraphs 6 and 7 of the petition and submitted that they contained the evidence to be given by the respondent if he had been allowed to testify.
I will start the discussion of this very pertinent and vital point by referring to what I consider to be the relevant pleading of the appellant’s petition on this point, which can be found in paragraph 7 therein. It states:
“7. The 3rd to 7th respondents made reports to the 2nd respondent in writing as was demanded by 2nd respondent. The 7th respondent specifically recommended to the 2nd respondent that for a credible result to emerge, the elections for the said Local Government Area should be reconducted because of disruptions. These reports and recommendations were not accepted and the 2nd respondent is hereby given notice to produce and show the court these reports at the trial.”
My understanding of the above reproduced averment is that the 7th respondent’s evidence if called would be to testify on the report and recommendations made to the 2nd respondent. In which case I think the evidence in the form of the report contained in Exh. ‘A’ tendered by the petitioner himself (P.W.1) was already before the tribunal. Exhibit ‘A’ which was signed by the 7th respondent, I.M. Amaocha reads as follows:-
Arochukwu
Local Government Area.
4th July, 1992
The Resident Electoral Commissioner.
National Electoral Commission.
Umuahia.
Abia State.
SENATE AND HOUSE OF REPRESENTATIVES ELECTION AROCHUKWU LOCAL GOVERNMENT AREA I wish to report on the Senate and House of Representatives Election in Arochukwu Local Government Area.
The election started with accreditation and election. This was peaceful and orderly until the collation of results, when things began to go wrong.
Results from (8) eight wards had been collated while the remaining (2) two results were being awaited for a very long time. When they finally arrived many party stalwarts refused the Returning Officers entering the premises where the collation of the Local Government level was going on. They got hold of one of the results and tore it. Thereafter, they invaded the collation centre and tore up all the results and all the documents relating to the elections. They were aggrieved alleging that the results from the two wards were rigged and inflated.
There was consternation as the Police fought back with tear-gas dispersing the crowd who had now broken into war songs.
All documents were torn and there was no result to submit.
Recommendation
If there is going to be a re-election there has to be:-
(i) Involvement of only N.E.C. staff to work as Presiding Officers in all the Polling Stations throughout the entire Local Government Area.
(ii) Beefing up of security by the police, etc.
(Sgd)
I.M. Amaocha
Electoral Officer,
Arochukwu”.
I am of the firm belief that the content of Exh. ‘A’ wraps up all the 7th respondent would have said, and if called to testify personally he would not have gone beyond what was in the said Exh. ‘A’ in spite of the averment in paragraph 6 of the petition. Learned S.A.N. for the 1st respondent, still on issue (1) supra contended that it was the duty of the appellant to show the miscarriage that the exclusion of the evidence of the 7th respondent has occasioned, and he has failed to so show. He cited the case of Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) Page 130, a decision of which I find fortifying. My reaction is therefore that the exclusion of his evidence definitely did not occasion grave miscarriage of justice, to the detriment of the petitioner as Exh. ‘ A’ has said it all. Ground of appeal No. 1 supra to which the supra issue is married therefore fails.
The next issue is whether the tribunal was right in rejecting the tape and unaccredited voters card tendered on behalf of the petitioner. It is not in doubt that the tape purporting to contain the Governor’s words that was tantamount to generating undue influence in favour of the 1st respondent, was pleaded in paragraphs 27 and 28 of the petitioner’s petition. The tribunal after considering the objections of counsel for the respondents when the tape was about to be tendered ruled as follows:-
“The witness did not tell the tribunal the maker of the tape or the time it was recorded and also the fact that no proper foundation was laid before the witness sought to tender the tape makes the tape inadmissible. The document (tape) is therefore rejected and should be so marked.”
It is obvious from the above view of the tribunal that, even though learned SAN for the respondent objected on the ground of irrelevancy and variance of the petitioner’s pleading to his evidence on the said tape, the tribunal ruled on the premise of the learned counsel for the 2nd – 4th respondent’s objection. Learned S.A.N. for appellant in his oral argument before this court has placed high premium on relevance of the tape, as though relevance was the plank upon which the tribunal rejected the tape. I agree that at the tribunal Mr. Udechukwu for the petitioner supported his application to tender the tape with the relevance of it to the fact that it was not pleaded.
I will now consider the importance of the relevance of the tape in respect of its admissibility or otherwise by referring to the case of Nigerian Bar Association and 3 Ors v. Chief Gani Fawehinmi (1986) Vol. II QLRN Page 190at 210; (1986) 2 NWLR (Pt.21) 224 upon which learned SAN for the appellant has relied. I agree with learned S.A.N. that relevance is a vital consideration in the admissibility of an exhibit, as it was so held in the supra case, but it must be borne in mind that in that case the court did not shut its mind to or ignored the provision of S.91 of the Evidence Act, which stipulates the requirements of the admission of documents.
I say the court did not shut its mind because behind its mind was the fact that the maker of the tape in that case deposed to the affidavit, admission of the evidence therein of which was made an issue and argued upon.
The controversy in the N.B.A. case was propriety of accepting the tape as evidence when the method whereby it was obtained was questionable. In the instant appeal it was not the case. On the totality of the counsel submissions on the rejection of the tape. I am of the view that even if the tape is relevant because it was pleaded, that is not sufficient, the requirements in S.91 of the Evidence has to be met. That provision is important on admissibility of documents, and it cannot be completely ignored, be the document relevant or not relevant. I therefore hold that the tribunal was right to have rejected it.
On the rejection of the unaccredited voters cards, no proper foundation was laid for their admission as in the matter of the tape. In this respect the rejection of the cards by the tribunal are, to my mind right. My answer to the second issue supra is thus in the affirmative, so the relating grounds of appeal Nos. 2, 3 and part of 4 must fail.
Issue No.3 is whether the tribunal was justified in relying on Exhibit ‘F’. In proffering argument on this issue learned S.A.N. submitted orally that the results returned by the Returning Officer are not results envisaged by the Electoral Decree No.18 of 1992. That being so, Exhibit ‘F’ should not have been relied upon by the tribunal for it was not signed by the polling agents. Learned SAN for the 1st respondent on the other hand submitted that the fact that Exhibit ‘F’ was not signed by the S.D.P: s agent does not affect the appellant’s case. Chief Nkire of counsel for the 2nd – 7th respondents submitted that there was proper reliance on Exh. ‘F’. Indeed I have observed that the space for the petitioner’s agent’s signature in Exh. ‘F’ is blank. So his agent definitely did not sign as required by S. 26(2)(d) of the Decree supra, which says:-
“2. The ward returning officers shall:-
(d) distribute five copies of completed form EC.8B after it has been signed by the Presiding Officer and the polling agents …..”
The crucial and pertinent question to be asked here is, is the absence of the S.D.P. agent’s signature enough to affect either the authenticity of Exh. ‘F’ itself or the results therein? It seems what Chief Akande is quarrelling against is the probative value of the exhibit. The tribunal in its judgment relied on the exhibit for the purpose of dislodging the petitioners case that there were no results in Ovukwu Abam. The tribunal found that there were voting and declaration of results in the three wards complained on. It gave reasons for its finding as follows. before the finding itself:-
“The petitioner himself gave evidence to the effect that: “Yes. Exhibit B was given to my agent. Yes, I have more of Exhibit from my agent from the three wards.” From this piece of evidence. it necessarily follows that voting and declaration of results actually took place in three wards, and we so found.
Furthermore, we hold that Exh. B tendered by the petitioner and Exhibits E, F and G admitted through the respondents are sufficient proof that there were results and the results in these three wards were declared in accordance with the requirements of paragraphs 25, 26 and 27 of Schedule 3, Decree 18, 1992.”
So from the above finding even if Exh. ‘F’ was not relied on or ascribed the slightest probative value it would not have affected the petitioner’s case that there were no results in Ovukwu Abam, for it had been proved and found otherwise. On the non-signing of Exh. ‘F’ by the petitioner’s agent, even though the petitioner’s case was that his agents were arrested by an N.R.C. stalwart in the affected area. The exclusion of the S.D.P. agent’s signature was explained by D.W.2 who testified under cross-examination that the S.D.P. agent refused to sign Exh. ‘F’. On the non-compliance with sub-paragraph (e) of 26 supra the same argument of non-compliance with Ss. (d) supra covers it. On the totality of the argument the answer to issue No.3 is in the affirmative and ground No.5 to which it is married fails.
The final issue is whether on a calm view of the evidence and upon proper interpretation of the enabling Decree No. 18 of 1992 the tribunal was justified in its ultimate finding that the result as announced was based upon a substantial compliance with the provisions of the enabling Decree No. 18 of 1992. It is learned S.A.N. for the appellant’s submission that the respondents did not prove their pleadings, and as such they should be deemed to be abandoned, and referred to Ajikawo v. Ansaldo (1991) 2 NWLR (Pt.173) Page 359. Learned counsel also added that there was substantial non-compliance with the statute. Learned counsel for the 2nd – 7th respondents submitted that the election was in substantial compliance with the Decree, and that evidence was given in respect of paragraphs 7, 8, 10 and 26 of the petitioner’s petition. Indeed, a careful perusal of the evidence of D.W.2 and D.W.3 reveals that they adequately covered the two sets of respondents’ pleadings with no material deviation or contradiction whatsoever.
The only inconsistency I have observed, is that of the evidence in proof of paragraph 10 of the 1st respondent’s pleading, which I find conflicting, for whereas the averment was to the effect that the S.D.P. agents i.e. petitioner signed the result forms, D.W.2’s evidence was that the agent refused to sign after consultation with Chief Okoroji. Be that as it may, I have already dealt extensively with the absence of the petitioner’s agent’s signature, and the negative or material effect it has not made. To prove substantial non-compliance with the provision of the governing Decree supra, the person upon whom the onus lies must prove substantial non-compliance (and not minor immaterial non-compliance) on the balance of probability. In this case the onus was on the appellant, who has failed to do so. In my view non-compliance must go to the root of the complaints of malpractices and undue influence that are capable of eroding the confidence the Decree is supposed to instil. In other words, was the election conducted in a fair and just manner, and or do the complaints go to the merit of the case to warrant a vitiation? To my mind one can only answer this question if the whole evidence before the tribunal is examined together, and that leads me to the ground of proper evaluation of evidence, which is the base from which this last formulated issue is founded.
Having thoroughly examined the evidence of all the parties and the judgment of the tribunal I would say that the tribunal made a thorough evaluation and appraisal of the evidence, placed them on the imaginary scale of justice as prescribed in Mogaji & Ors v. Odofin (1978) 4 S.C Page 91, and went the way the imaginary scale of justice tilted to, to arrive at the just determination of the case.
On the failure of the 2nd respondent to give evidence, there is no law or rule of practice that says a respondent or defendant must give evidence. It is up to a party to disprove a case against him and how he does it is his own business. If he considers it unnecessary to testify after some witnesses have given evidence on his behalf, and he considers their evidence adequate for his defence, then the fact that he did not go to the witness box himself should not be used against him.
As for the delay in announcing the results the learned S.A.N. for the 1st respondent contended that the delay was explained by evidence of D.W.s 1, 2 and 3 and referred to paragraph 29(1) of Schedule 3 of the governing Decree which states:-
“29. (1) The Resident Electoral Commissioner having been satisfied as to the correctness of additions and entries made in part I of form EC.8E shall:-
(a) Complete and sign part II of form EC.8E; declaration of result form;
(b) declare the winners of the election to the senate districts of the state. (Italics by me)
Needless to say the above provision especially the part I have underlined signifies that there is no stipulated time limit for the declaration or announcement of result. In fact it gives the electoral commissioner (2nd respondent) so much latitude and discretion, that he cannot be faulted even if it takes him a week to declare results. With the above provisions in mind, no one should capitalise on any delay, as long as it is not unreasonable to the extent that it breeds suspicion. The complaint of delay by the petitioner in my opinion does not go to any issue. Still on issue No.4 supra, my answer to it is in the affirmative and the relating grounds 4, 6 and 7 of appeal fail.
On the whole, the position of the law is that once there is proper evaluation of evidence by a lower court (the tribunal in this case), an appellate court has no business interfering unless the decision is perverse and has occasioned miscarriage of justice. See Nwachukwu v. Nwosu (1990)7 NWLR (Pt. 160) Page 72, and Balogun v. Agboola (1974) 1 ANLR (Pt.2), Page 66. I fail to see anything in this case to warrant our interference. In the final analysis the appeal lacks merit and substance and is hereby dismissed. I assess costs at N500.00 in favour of the 1st respondent, and N300.00 to the 2nd – 7th respondents against the appellant.
Other Citations: (1992)LCN/0116(CA)
