Benson Ojegbe & Anor V. Kent Omatsone & Anor (1999)

LawGlobal-Hub Lead Judgment Report

MAHMUD MOHAMMED, J.C.A.

In the election into the Delta State House of Assembly conducted on 9-1-99, the Appellants Merrs Benson Ojegbe and Solomon Atseponu and the 1st Respondent Mr. Kent Omatsone contested for the seat in the Warri South West Local Government Area Constituency. At the close of the election, the 1st Respondent who contested the election under the platform of the Peoples Democratic Party (PDP) was declared by the 2nd – 5th Respondents as the winner of the election. The 1st and 2nd Appellants who contested the election under the platform of the Alliance For Democracy (AD) and All Peoples Party (APP) respectively who were aggrieved by the declaration of the 1st Respondent as the winner of the election, filed two separate Petitions dated 23-1-99 and 20-1-99 respectively before the Delta State House of Assembly and governorship Election Tribunal sitting at Asaba, challenging the election and return of the 1st Respondent. The grounds upon which the two Petitions challenged election of the 1st Respondent were identical. The grounds were

1. That election did not hold in the Warri South West Local Government Area Constituency.
2. That inspite of the fact that no election was held results were released showing that 1st respondent scored 52,157 votes while 1st and 2nd Appellants scored 6791 votes and 7206 votes respectively.
3. That the declaration of the 1st Respondent as the winner of the election was illegal, unconstitutional null and void.
4. That the 1st Respondent was not even qualified to contest the election.

The 1st Respondent filed two separate replies to the 1st and 2nd Appellants’ petitions respectively while 2nd – 5th Respondents did not file any reply. On 5-3-99 when the two petitions came before the Tribunal for hearing, on the application of the 1st and 2nd Appellants, their two petitions Numbers DT/EPT/HA/1/99 and DT/EPT/HA/2/99 were consolidated by the Tribunal and heard together with the same learned counsel appearing for the appellants. At the end of the hearing the Tribunal in its judgment delivered on 17-3-99 dismissed the two petitions with N1, 000.00 costs against each of the two Appellants.

The two Appellants who were not satisfied with the judgment of the Tribunal have now appealed to this Court through their joint Notice of Appeal filed on 23-3-99 containing the following grounds of appeal without their particulars-

1. The Tribunal erred in law in declaring the 1st Respondent as having won the House of Assembly election slated for 9th January, 1999 and scored the majority of valid votes cast in Warri South West LGA Constituency when there was no House of Assembly election on 9th January, 1999 or any date at all.
2. That the Tribunal misdirected itself or the facts when it placed reliance and used on document that were not pleaded by the Respondents but tendered by the 4th Respondent and were admitted.

by the Tribunal as the main reason for believing the evidence of the 1st Respondent and his witnesses and disbelieving that of the Appellant.

3. The Tribunal erred in law in declaring that there was the House of Assembly election in Warri

South West LGA Constituency on 9th January, 1999 when there was no election on that day or any day at all in Warri South West LGA Constituency.

4. That the Tribunal erred in law when it declared that the 1st Respondent was not dismissed from the service of warri South Local Government Council, Warri.
5. That the judgment decision of the Tribunal is against the weight of evidence.

Although the Appellants brief was filed on 16-4-99 and served on the Respondents the same day, neither the 1st Respondent nor 2nd – 5th Respondents filed and served the Respondents brief within the 3 days period prescribed by paragraph 7 of the Practice Direction No. 2 of 1999 issued under sections 136, 139, 140 and Schedule 6 of Decree No. 3 of 1999. The application by the 1st respondent for the leave of this Court to be heard in oral argument under Order 6 Rules 9 and 10 of the Court of Appeal Rules 1981 at the hearing of this appeal yesterday, 21-4-99, was heard and dismissed by this Court. Consequently, the appeal was heard on the appellants brief of argument alone.

In the Appellant’s brief, the following 5 issues were formulated from the above 5 grounds of appeal:

“1. Whether the Tribunal was right in relying on documents in possession of the Respondents but not pleaded by them to form the basis of its judgment.

2. Whether inconsistencies in the evidence of the Respondents witnesses as to the time of arrival of electoral materials at the polling units (stations) and time of the election are not contradictions.
3. Whether the Tribunal was right in asserting that it did not believe in the evidence of the petitioners and their witnesses without giving reasons for such assertions.
4. Whether the cases cited viz: Omoboriowo v. Ajasin (1984) 1 SCNLR 108 at 112; Nwobodo v.

Onoh (1984) 1 SC 1 at 38; and Abdullahi v. Gaya & Ors. (1992) 2 LRECN 144 relied on by the

Tribunal are relevant in this case.

5. Whether the 2nd – 5th Respondents failure to file their replies to the petitions is not an admission of the petitioners pleadings.”

It is trite law that issues for determination in an appeal should not be framed in the abstract but in concrete terms, arising from and related to the grounds of appeal filed. See Okpola v. Ibeme (1989) 2 NWLR (pt.102) 208 at 221 and Abisi v. Ekwealor (1993) 6 NWLR (pt 302) 643 at 38 665. It is also the law that a ground of appeal on which no issue for determination has been framed in the appellant’s brief of argument is deemed to have been abandoned and should be struck out. See Baridam v. The State (1994) 1 NWLR (pt 320) 250 and Adigun v. Ayinde (1993) 8 NWLR (pt 323) 516. In the present case, it is quite clear on relating the 5 issues for determination identified in the appellant’s brief quoted above, that grounds 1 and 2 which complained of errors in law on the part of the Tribunal in declaring that that there was election and/the 1st Respondent was duly elected, have not been raised in any of the 5 issues identified in the brief. Grounds 1 and 2 of the grounds of appeal are therefore deemed abandoned and accordingly are hereby struck out.

Similarly, none of the 5 issues in the Appellant’s brief can be related to ground 4 of the grounds of appeal which specifically complained of an error in law on the part of the Tribunal when it declared that the 1st Respondent was not a dismissed officer. Thus ground 4 of the grounds of appeal having been abandoned is hereby struck out.

This leaves grounds 2 and the omnibus ground 5 to sustain the appeals if any or some of the 5 issues can be related to the two remaining grounds of appeal.

Looking at the 5 issues in the appellant’s brief, it is now plain that issues 4 and 5 which relate to the cases relied upon by the Tribunal in its judgment and the effect of the failure of the 2nd – 5th Respondents to file their replies to the Petitions do not arise from any of the two remaining grounds of appeal. Accordingly issues 4 and 5 shall be ignored in the determination of this appeal. This leaves issues 1 which arises from ground 2 of the grounds of appeal and issues 2 and 3 which relate to the omnibus ground 5 upon which this appeal shall now be determined.

The first issue is whether or not the Tribunal was right in relying in its judgment on documents which were not pleaded by the Respondents. It was submitted on behalf of the Appellants that parties are bound by their pleadings and that parties must plead all facts and documents relied upon having regard to the case of Okagbue v. Romaine (1982) ANLR 111. That a party is not allowed to rely on facts which support his Case other than those alleged in his pleadings. It was finally submitted on this issue by the Appellants that even though the documents (Exhibits R4 – 1) were relevant and thus admissible and as such need not to have been specifically pleaded, the relevant facts covering such documents must be pleaded on the authority of Allied Bank v. Akubueze (1997) 6 SCNJ 116 at 140.

The position of the law on this issue of course is quite trite. Where facts are not pleaded all evidence led thereon of legal submission to that effect shall be of no consequence in the determination of the case. See Igbodin v. Obianke (1976) 9 – 10 sc 179, Lemomu v. Alli-Balooun (1975) 3 SC 87 and Olowofoyeku v. Attorney-General, Oyo State (1996) 10 NWLR (pt.477) 190 at 214.

In the present case, the complain of the Appellants on this issue is that the results of the election contained in the various Forms EC8A (1) from the various polling units of the Warri South West Local Government Area constituency which were admitted as Exhibit R4 – R144 were not pleaded by the Respondents. As 2nd – 5th Respondents did not file any Reply to the Appellants’ two petitions in this case, the two replies filed by the 2nd Respondent to the Appellants’ petitions must be examined in order to determine whether or not relevant facts have been pleaded therein to justify the Tribunal’s reliance on the documents in its judgment. In his reply to the petition of the 1st Appellant Benson Ojegbe, the 1st Respondent pleaded the following facts in paragraph 2 of his reply. It reads:

“2. Paragraph 2 of the petitioner’s petition is admitted only to the extent that the petitioner was one of the three candidates for the House of Assembly election for W.S.W.L.G.A. constituency and that the said L.G.A. constituency comprise of ten wards viz: Orere, Ugborodo, Gbaramatu, Ogidigben, Akpakpa, Ajudaibo, Madangho, Oporoza, Isaba and Ogbe-Ijoh. The rest averments are denied. The said election Was duly conducted on the 9th January, 1999 and the 1st Respondent was duly returned and declared the winner for all the said seven wards, which are, Gbaramatu, Ugborodo, Akpakpa, Madaogho, Orere, Ajudaibo and Ogidigben.”

In his Reply to the 2nd Appellant’s petition on the other hand, the 1st Respondent pleaded in paragraph 2 as follows:

“2. Paragraph 2 of the petitioner’s petition is admitted only to the extent that the petitioner was one of the three candidates for the House of Assembly election for Warri-South West LGA constituency and comprise of ten wards viz: Orere, Uqborodo, Gbaramatu, Ogidigben, Akpakpa, Ajudaibo Madangbo, Oporoza, Isaba and Ogbe-Ijoh. The rest averments are denied. The said election was duly returned and declared for all the seven ward, which are, Gbaramatu, Ugborordo, Akpakpa Madangbo, Orere, Ajudangbo and Ogidigbon.”

It is my view that from the relevant facts pleaded in those paragraphs, the 1st Respondent was clearly relying on the returns of the election from all the specific wards of the constituency listed in these paragraphs to support his election and return. It cannot therefore be said that Forms EC8A(1) Exhibits R4 – R144 which contain the results of other election from the various polling units of the wards in the Warri South West Local Government Area/constituency were not pleaded.

The dispute between the parties in this case is on the conduct of the entire election in the affected constituency. It is therefore not necessary to specifically plead the Form EC8A (1) in each polling unit of the wards in the constituency before the Forms could be admitted in evidence in proof of the conduct of the election and the return thereof. In other-words, the conduct of the election in the listed wards of the constituency and the return thereof as pleaded by the 1st Respondent in paragraph 2 of his respective replies to the Appellant’s petitions contain enough relevant facts to support the admission of the Form EC8A (1) Exhibits R4 – R144. Consequently, I am of the view that the Tribunal Was perfectly justified in law in relying on the documents in its judgment of 15-3-1999 in which it upheld the election and return of the 1st Respondent. The fact that the documents were tendered through the 1st Respondent cannot affect the admissibility of the documents in view of paragraphs 2 of the 1st Respondent’s replies to the Appellant petitions. Issue No.1 is therefore resolved against the Appellant.

The remaining two issues Numbers 2 and 3 are essentially complaints on the quality of the evidence relied upon by the Tribunal and its alleged failure to give reasons for its judgment the resolution of which either way may not have any bearing on the outcome of the appeal itself. In the judgment of the Tribunal of 17-3-1999 now on appeal, the burden of proof was on the Appellants to prove their Case.

Having failed to discharge that burden of proof, the Tribunal proceeded in accordance with the law and dismissed the petitions. For the Appellants to attack the evidence of the Respondents witnesses as being inconsistent or contradictory, will not assist the Appellant’s at this stage to prove their own case that election was not held in the constitutuency on 9-1-1999. In other words, inconsistencies and contradictions in the evidence of the respondent as to the time of the arrival of elections material at polling units (stations) and time of the election, even if resolved in favour of the Appellants will not have any bearing on this appeal as there is no complaint on the effect of the alleged inconsistencies and contradictions on the Appellants’ case in any ground of appeal in this appeal.

The 3rd issue for determination is whether the Tribunal was right in asserting that it did not belief the evidence of the petitioners without giving reasons for the assertions. Learned counsel for the appellants referred to the judgment of the Tribunal at page 28 of the record and submitted that the Tribunal did not give any reason for disbelieving the witnesses called by the petitioners/Appellants. Relying on the case of Nwoke v. Okere (1994) 5 SCNJ 102 at 117, learned counsel concluded that the Tribunal in its judgment had come to wrong conclusions.

The Appellants complaint on this issue is not at all supported by the record of this appeal, particularly part of the judgment of the Tribunal at pages 27 – 28 which reads:-

“The Tribunal notes that while the petitioners contend that the INEC Secretariat is situated in the Local Government Secretariat at Ogidigben, the 4th Respondent asserts that their headquarters in Ogidigben is at the Town Hall. We feel the 4th Respondent is in a better position to know his Office. The simple proof of the petitioners to show that election did not take place in a whole Constituency is in our view too deficient for any reasonable Tribunal to place reliance on it. See OJUKWU v. ONWUDIWE (1984) 2 SC 15 AT 40.

Upon careful consideration of the evidence of the parties on this issue, we believe the testimonies of the 1st Respondent and his witnesses, especially RW2 (the Electoral Officer) who impressed us as a witness of truth that election in respect of the House of assembly took place in warri South west constituency on 9/1/99. We also believe that INEC Headquarter is at the Town Hall, Ogidigben.

Where there is oral evidence as well as documentary evidence, the documentary evidence should be used as a hanger on which to assess the oral testimony. See KIMDEY & ORS. V. THE MILITARY GOVERNOR GONGOLA STATE & ORS. (1988) 3 SCNJ 28 at 56

The copious documentary evidence lends credence to the Respondents’ story.

We do not believe the evidence of the Petitioners and their witnesses. We think that PW1 to PWS concorted their stories.”

It is quite clear from this part of the judgment of the Tribunal that adequate reasons were given/for believing the Respondents witnesses and disbelieving the Appellants and their witnesses. This issue is also resolved against the Appellants.

The issues raised in this appeal are essentially issues of fact. This court and the Supreme Court have always said and held that Appellate courts will not ordinarily disturb the judgment of a lower court that is based on the findings of fact, once the findings are supported by evidence accepted by the lower court. See Safuratu Salami & Ors. v. Sunmonu Eniola Oke (1989) 4 NWLR (pt.63) 1 (1987) 9-11 SC 43; 35. Anyanwu v. Mbara (1992) 5 NWLR (pt.242) 386; and Ekretsu v. Ovebebgre (1992) 9 NWLR (pt.266) 438.

In the present case therefore, the Appellants having failed to prove the grounds upon which they challenged the election and return of the 2nd Respondent as the duly elected member of the Delta State House of Assembly for the warri South West Local Government Area constituency, their petitions were rightly dismissed by the Tribunal.

Accordingly, this appeal fails for lack of merit and it is hereby dismissed. The judgment of the Tribunal of 17-3-99 is hereby affirmed. There shall be N3, 000.00 costs to the 1st Respondent.

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Other Citations: (1999)LCN/0566(CA)