Sandy Onoh & Ors V. Mr. Innocent Okey (1999)
LawGlobal-Hub Lead Judgment Report
EKPE, J.C.A.
This is an appeal against the judgment of the Local Government Election Tribunal of Cross River State (hereinafter referred to as the Tribunal) sitting at Calabar in the election petition No. LGET/CRS/P/10/98. In the judgment delivered on the 16th day of February, 1999, the tribunal held that the election into the office of the Chairman of Etung Local Government Area conducted on the 5th of December, 1998. “was marred by massive electoral malpractices and offences, to the extent that it substantially affected the election to warrant its nullification’” and accordingly nullified the election. The appellants (who were the respondents at the trial of the election petition) being dissatisfied with the judgment of the tribunal have appealed to this court on a number of grounds of appeal. The 1st appellant filed his own notice and grounds of appeal, while the 2nd and 3rd appellants filed a joint notice and grounds of appeal.
Dr. Sandy Onoh, the 1st respondent in the election petition (hereinafter referred to as the 1st appellant) and Mr. Innocent Okey the petitioner in the election petition (hereinafter referred to as the respondent) were candidates of All Peoples Party (A.P.P) and the Peoples Democratic Party (P.D.P) respectively, for the post of Chairman of Etung Local Government Area of Cross River State at the local government elections of 5th December, 1998. The Independent National Electoral Commission (INEC) (hereinafter referred to as the 2nd appellant) conducted the election and Mr. Emmanuel Eborty (hereinafter referred to as the 3rd appellant) was the Electoral Officer for Etung Local Government Area for the purpose of the election. At the end of the election, the 1st appellant was declared the winner and accordingly was returned as the Chairman of the said local government area.
Dissatisfied with the result and the declaration, the respondent filed an election petition dated 18th December, 1999 before the tribunal alleging a number of irregularities and electoral malpractices in the conduct of the election and prayed that it may be determined that:
“1. The 1st respondent did not score majority of the lawful votes cast at the election and was therefore not duly elected or returned.
- Your petitioner scored the majority of the lawful votes cast at the election and ought to have been duly elected and returned.
- The votes allegedly scored by the 1st respondent at Agbokim, Mkpot, and Nsofang Wards are unlawful votes and should therefore be declared null and void.
- The cancellation of the six polling boxes from Bendeghe Ekiem Ward and Agbotai polling unit in Abijang Ward is unreasonable and void.
In the alternative your petitioner prays that:
The Chairmanship election/results he annulled or cancelled in Effraya, Etomi, Agbokim, Mkpot, Abijang, Nsofang and Bendeghe Ekiem Wards and/or the entire Etung Local Government Area be cancelled and a bye election ordered since the election of 5th December, 1998 was avoided by corrupt practices and grave criminal offences perpetrated by the 1st respondent’s agents and thugs.”
From the pleadings of the respondent, he is challenging the election results from seven (7) out of a total of ten (10) wards that constitute Etung Local Government Area. The seven wards were, Bendeghe Ekiem Ward, Mkpot Ward and Abijang Ward. The three wards that were not affected were Itaka Ward, Ajasso Ward and Abia Ward. The respondent called fourteen witnesses to prove his case.
The appellants who generally denied the allegations in the petition called nine witnesses. As I have already stated, the tribunal in its judgment at the end of the trial granted the petition and nullified the election. The appeal of the 1st appellant to this court was grounded on six grounds of appeal, but the 1st appellant having abandoned ground five of the grounds of appeal, only five grounds of appeal therefore remain. There are two issues in the brief of argument for the 1st appellant which are predicated on the five grounds of appeal, namely:
“1. Whether the election of the 1st respondent (now appellant) was voided by massive electoral malpractices and offences to warrant its nullification.
- Whether the Election Tribunal was right in nullifying the election of 5th December, 1998 having regard to the evidence before it.”
The 2nd and 3rd appellants also filed their notice and six grounds of appeal and framed four issues in their brief of argument for the determination of the appeal.
The four issues are:
(i) Whether the petitioner’s (respondent’s) prayer in the petition was inconsistent with his prayer in evidence in such a manner as to create the confusion which misled the tribunal into entering a judgment that can not but be a nullity.
(ii) Whether the trial tribunal was right in nullifying thee entire election in Etung Local Government Area in view of the evidence before it.
(iii) Whether the allegation of violence, thuggery, bribery, intimidation etc. were proved in the entire Etung Local Government Area as to substantially affect the result of the election.
(iv) Whether the entire election were (sic) conducted in substantial compliance with Decree No. 36 of 1998.
For the respondent only one issue was framed for the determination of the appeal, to wit:
“Whether from the totality of evidence before the tribunal, the tribunal was justified in nullifying the Chairmanship election held in Etung Local Government Area on 5th December, 1998.
At the hearing of the appeal, the learned counsel for the parties adopted their briefs of argument.
After a close look at the issues framed by learned counsel for the parties. I find that the issues framed by the learned counsel for the 1st appellant together with Issue No.1 by the learned counsel for the 2nd and 3rd appellants are adequate enough and I will adopt them for the determination of this appeal.
On issue No. I formulated by the learned counsel for the 2nd and 3rd appellants, his contention is that the alternative prayer in the petition of the respondent is different from the one in evidence and this misled the tribunal into entering a judgment that is a nullity. Without wasting much time, it is my view that this submission is misconceived. In the last paragraph of the petition, the respondent set out the reliefs sought or prayed for by him in the alternative at page 8 of the petition. In his evidence at the tribunal, he abandoned the main relief sought by him and pursued the second alternative relief, to wit; “or the entire Etung Local Government Area (election) be cancelled and a bye-election ordered since the election of 5th December, 1998 was avoided by corrupt practices and grave criminal offences perpetrated by the 1st respondent’s agent and thug.” In his evidence at the tribunal, the respondent at page 62 lines 22 to 25 testified thus:
“I wanted at first that I be declared a winner, but by advice of my lawyer, and going by my evidence, I am requesting that the election be nullified and another one be conducted as the former was not free and fair.”
To be candid, I do not see the difference between the second alternative relief asked for in the petition as quoted above and the one sought in evidence as also quoted above. If at all there is any difference, it is about the use of words by the respondent.
In the petition, the respondent used the word “cancelled,” meaning that the chairmanship election for Etung Local Government Area be cancelled, while in his evidence he prayed that the said election be “nullified.” I think that both words contextually mean the same thing. To cancel or to annul or to nullify an election mean one and the same thing. So long as the respondent did not pursue or ask for both the main relief and the alternative reliefs simultaneously in his evidence, he is perfectly in order. This issue is therefore discountenanced by me. I now come to issue No. 1 in the 1st appellant’s brief of argument, which is:-
Whether the election of the 1st respondent (now appellant) was voided by massive electoral malpractices and offences to warrant its nullification.
It was the contention of the learned counsel for the 1st appellant that the tribunal heavily relied on the evidence of the petitioner’s witnesses, particularly P.W.1, P.W.9 and P.W.12 to come to the conclusion that the election was voided by massive electoral malpractices and offences and therefore nullified the election. The learned counsel submitted that the findings and conclusions of the tribunal were however not supported by the evidence of these witnesses or by any credible evidence at all.
I have carefully examined the evidence adduced before the tribunal by the respondent (petitioner) and his witnesses on the one hand, and the appellants and their witnesses on the other hand and the tribunal’s assessment or evaluation of the totality of the evidence. A critical look at the judgment of the tribunal will reveal that the tribunal painstakingly analysed and sifted the evidence of the witnesses in order to discover the truth. The tribunal believed as true the evidence of PW1, PW2, PW3, PW5, PW6, PW7, PW9, PW 12 and DW1 in order to come to the conclusion that there was thuggery, violence, intimidation and other electoral malpractices which characterised the election into the office of the Chairman of Etung Local Government Area. The tribunal disbelieved the evidence of DW2, DW3, DW4 and DW 9 and placed no credibility on them, and gave valid reasons for so doing.
The tribunal came to the conclusion that the respondent had proved the allegations beyond reasonable doubt. This court has been urged to reverse the findings and conclusion of the tribunal because there was no credible evidence to support them. It has been established by a long line of authorities that a court of appeal has no duty to interfere with the findings of a trial court based on the credibility of the witnesses who testified. Unless the finding of fact by the trial court is wrong or perverse or is not supported by the evidence, the court of appeal has no right to reverse it. In Okofor v. Idigo (1984) 1 SCNLR 481 at page 499. Obaseki JSC stated:
“A Court of Appeal must, in the absence or compelling evidence indicating erroneous appraisal or facts and erroneous conclusion, show the utmost restraint and reject any temptation to interfere with well-considered findings made by the learned trial Judge in the court of first instance.”
In the recent case of uzoechi v. Onyenwe (1999) 1 NWLR (Pt.587) 339 Belgore J.S.C. had this to say at page 344:
“An appellate court must be wary of disturbing the findings or fact by trial court. The trial court saw and heard the parties it is not an easy task for an appellate court replace its eyes and ears for those of the trial court.”
In the instant case, the tribunal had the advantage which this court did not have of seeing and hearing the witnesses, assess their demeanour and credibility, it discredited DW2, DW3, DW4 and DW9 as I have earlier pointed out. In my view, the findings of the tribunal are not perverse and cannot be said to be unreasonabiy supported by evidence. In the circumstances, this court cannot easily set aside the findings and conclusions of the tribunal on the evidence before it. The question, however, is whether the accepted evidence by the tribunal of massive electoral malpractices or thuggery, violence, destruction of electoral materials, killings, intimidation and bribery which are criminal offences were proved beyond reasonable doubt as required by law. See Ogunbiyi v. Ogundipe (1992) 9 NWLR (Pt.263) 24: Ezike v. Ezeugwu (1992) 4 NWLR (pt.236) 462. In the judgment, the tribunal held that the electoral offences were proved beyond reasonable doubt and stated that proof beyond reasonable doubt does not mean beyond all shadow of doubt. I am in agreement with this view.
The learned counsel for the 1st appellant in his brief or argument has contended that the reported death or killings of two persons outside the secured venue or the collation centre at Effraya after the elections had nothing to do with the elections. I do not agree. It seems to me that the reported killings which occurred on that election day cannot be isolated from the election as they were the climax or culmination of the violence, thuggery and hooliganism that characterised the election having regard to the time and place of the occurrence. The killings occurred during the collation of results at the Collation Centre. I will therefore resolve issue No. 1 by holding that the election into the office of the Chairman of Etung Local Government Area held on the 5th or December, 1998 was marred by massive electoral malpractices and offences that substantially affected the election to warrant its nullification.
Issue No.2 is whether the Election Tribunal was right in nullifying the election of 5th December, 1998 having regard to the evidence before it.
From the evidence before the tribunal, it accepted that the election was marred by massive electoral malpractices and offences that substantially affected the election. In the case of Okoroji v. Ngwu (1992) 9 NWLR (Pt.263) 113, it was held that an election will not be declared invalid by reason of any act or omission, if it appears to the court that the election was so conducted as to be substantially in accordance with law as to elections and that the act or omission did not affect its result. With the evidence of massive electoral malpractices and offences that characterized the election in this case, can it be safely said that the election was so conducted as to be substantially in accordance with the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998? I think not.
There is evidence of an ugly incident at 3 Corner polling unit in Effraya Ward where one Eburu Ojong fired a gun in the air and carried away the voting materials including the ballot boxes in his car, voting thereat was completely disrupted. The story of the incident at Ayork I polling unit in Bendeghe Ekiem Ward was not different. There one Awunghe Agbor, an agent of the All Peoples Party to which the 1st appellant belongs hijacked the ballot box and gave it to Ayuk Ntui, the APP Vice Chairman candidate and running mate of the 1st appellant, who broke the same on the floor. Voting materials were vandalized. The same thing happened at Agbor Oru polling unit of Bendeghe Ekiem Ward. There was indeed wide spread violence and intimidation in most of the wards in the Local Government Area that made the election not fair and free and in accordance with Decree No. 36 of 1998.
Section 87(1) of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 empowers the Election Tribunal to nullify an election if the Election Tribunal determines that a candidate who was returned as elected was not validly elected on any ground. Can it then be said that the Election Tribunal was not justified in nullifying this election? I answer the question in the negative. The tribunal held that the 1st appellant who was returned as elected was not validly elected by reason that the election into the office of the Chairman in Etung Local Government Area held on 5th December, 1998 was marred by massive electoral malpractices and offences to the extent that it substantially affected the election to warrant its nullification. In my view and assessment therefore, this decision of the tribunal should be allowed to stand.
In the circumstance therefore this appeal fails, and it is hereby dismissed.
Independent National Electoral Commission is hereby ordered to conduct a bye-election into the office of Chairman of Etung Local Government Council, Cross River State. Costs to the respondent assessed at N3.000.00 shall be paid by the 1st appellant.
Other Citations: (1999)LCN/0573(CA)
