Bernard Ndubuisi Isu V. Engr. Okpani .u. Uche & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
MOHAMMED L. TSAMIYA, J.C.A.
This is an appeal against the judgment of the National Assembly/Governorship/Legislative House Election Tribunal (herein this appeal referred to as the Tribunal) holden at Abakaliki; the Capital of Ebonyi State. The judgment appealed against was delivered on 22/11/2007.
Briefly, the facts of the case are that in the 14/4/07 general election, the Peoples Democratic Party (PDP) sponsored, as its Candidate the appellant, while the All Nigeria peoples party (ANPP the 2nd respondent) sponsored the 1st respondent, as its candidate for the election into the Ebonyi State House of Assembly to represent the Afirkpo North-East Constituency.
The election was conducted by the named 4th and 5th respondents (herein referred to as ‘INEC’ and ‘RECO’ respectively). After the election, the appellant was alleged to have scored the highest number of votes and was declared the winner. The 1st respondent and his party, the 2nd respondent in this appeal, were dis-satisfied with the outcome of the election. They, therefore, as petitioners filed petition No. EPT/EBS/HA/11/2007, to challenge the declarations and return made by INEC Officials for the said Constituency.
The petition was predicted essentially on grounds of corrupt practices and non-compliance with the provisions of the Electoral Act 2006. The relief sought was the nullification of the said result. As an alternative remedy, the 1st and 2nd respondents, as petitioners, prayed that the election may be determined that the appellant was not elected by a majority of lawful votes cast at the election and that his election was void by reasons of corrupt practices and non-compliance with the provisions of the Electoral Act 2006.
Issues were joined on all the allegations in the petition by all the respondents named therein. At the trial, the 3rd respondent (PDP) proffered no evidence. That 1st and 2nd respondents called 5 witnesses (including 1st respondent) and tendered numerous exhibits comprising alleged carbon copies of polling Unit’s results. The appellant also called 4 witnesses (including appellant himself) and tendered numerous certified true copies (C.T.C.) of polling Units and collation centre results, including the declaration of result in his favour. INEC, to be noted was foreclosed from adducing evidence when its application for adjournment was refused and its case therefore closed by the Tribunal.
However, in the course of the proceedings, the Tribunal dismissed the petition for want of deligent prosecution. It subsequently an application on Notice made an order re-listing the said petition. Thereafter the tribunal upheld one of the grounds of the petition and nullified the election of the appellant.
Dis-satisfied with the judgment, the appellant appealed to this Court vide Notice and Grounds of appeal filed on 11/12/2007. The Notice and Ground of Appeal Contained four (4) grounds of Appeal. These grounds of Appeal with their particulars are as follows:
GROUND 1:
The lower tribunal erred in law in ascribing unassailable probative value and weight to Exhibits 6 to 44 when it erroneously held that the said Exhibits were “not challenged nor rebutted by the their to the one hundred and fifty second Respondents nor by any of the witnesses of the first Respondent” and thereby wrongly concluded that the said Exhibits “will be deemed true and correct and the contents of the result sheets will be believed by this Tribunal.”
PARTICULARS OF ERROR IN LAW
(a) The authenticity of the said Exhibits 6 to 44 was specifically challenged in the pleadings (Replies) of all the Respondents.
(b) The said Exhibits were tendered as carbon copies of EC8A (1) allegedly received by the 1st petitioner from party agents of the 2nd petitioner.
(c) None of the party agents testified as to the authenticity thereof
(d) The said Exhibits were certified true copies of the original results sheets.
(e) None of the makers of the Exhibits was called to testify.
(f) The scores purporting to be established by the Exhibits were an issue in dispute in the pleadings; a fortiori very little or no probative value ought to be ascribed thereto in the absence of direct oral and credible evidence from the officers on the filed where the votes were counted and/or recorded. See Buhari vs. Obasanjo (2005) 13 NWLR (Pt.941) 1 at p. 315.
GROUND 2:
The lower tribunal erred in law by placing upon the 3rd Respondent the onus of explaining the difference between Exhibits 6 to 44 on one hand and Exhibits 49 to 108 on the other hand when the onus of rebutting the presumption attached to certified true copied is legally placed on the challenger thereof.
PARTICULARS OF ERROR IN LAW:
(a) Exhibit 49 to 108 are duly certified true copies of the election results conducted by, and obtained from, the 3rd Respondent.
(b) Exhibits 6 to 44 are not certified true copies.
(c) The contents of Exhibits 6 to 44 are in conflict with their correspondent Exhibits 49 to 108.
(d) The discrepancies, mutilations and irregularities invoked by the lower tribunal in comparing the two sets of exhibits and arriving at its finding of facts and conclusion were neither pleaded nor demonstrated in viva voce evidence before the lower tribunal.
(e) The so-called anomalies between the said two sets of exhibits relied upon by the lower tribunal are irrelevant and immaterial. See Ayogu vs. Nnaman; (2006) 8 NWLR (Pt.981) 160 at p.194. Also see Jalingo vs. Nyame (1992) 3 NWLR (Pt.231) 538.
GROUND 3:
The lower tribunal erred in law when it embarked on examination of Exhibits 69, 73, 74, 75, 76, 78, 80, 83, 86, 94, 95, 96, and 98 and erroneously concluded thus:
“Those exhibits were altered from their original form and they were mutilated ………. These exhibits cannot thus be relied on by the first Respondent to sustain his claim of being the winner of the election.
The alterations and mutilations on these exhibits and the discrepancies between their contents and of those tendered by the petitioners support the assertion of the petitioners that the result of the places where credible elections were held in the Constituency were altered and re-written in favour of the first Respondent after the election.”
PARTICULARS OF ERROR IN LAW:
(a) To sustain a finding of falsification of election results, it is incumbent on the alleger to plead and proved at least 2 sets of the results one of which he shows to be genuine and correct and the other he stigmatizes as false.
(b) The petitioners failed woefully to plead and prove falsification of the Exhibits afore-mentioned.
(e) The tribunal is not entitled to act on speculation; moreso as no original results sheets were tendered in evidence at the trial.
(d) The Exhibits afore-mentioned having been tendered and admitted as certified true copies without objection, enjoy statutory presumption of correctness in favour of the 1st Respondent/Appellant.
(e) No. issue of mutilation or alteration was pleaded with regard to the said Exhibits.
(f) S. 128(1) of the Evidence Act applied subject to limitations enshrined partly therein and partly in subsection (3) thereof requiring extrinsic evidence .
(g) No such extrinsic evidence was adduced.
GROUND 4:
The lower tribunal erred in law when it embarked on academic analyses of such exhibits as 50, 51, 52, 54, 55, 57, 60, 104, 105, 106, 107 and erroneously concluded thus:
“It is obvious that these result sheets cannot be real and that they assault on common sense. A court is enjoined to turn its back on a testimony that is extraordinarily in conflict with reason and probability and is of such a nature that it is hostile to reason as manifestly false and a court should not lend itself to unwholesome belief …. ”
PARTICULARS OF ERROR IN LAW:
(a) A court or tribunal is enjoined to act only on credible evidence adduced before it at the trial in the open court.
(b) Analysis and conclusions not based on legally admissible and admitted evidence as demonstrated at the trial is perverse.
(c) Submissions of counsel in address cannot, and do not, amount to evidence on which the court can properly base its findings of fact or conclusion in the trial.
(d) There was no scintilla of evidence adduced before the lower tribunal upon which it based its analysis and conclusions that the result sheets “were contrived to support a determined position taken on the election”
In accordance with the rules of this court which required the parties to the appeal before this court, to file their brief of arguments, the appellant filed his brief of argument on time, that is, 28/1/2008 which contained three (3) issues he distilled from the grounds of appeal, for the determination of this appeal. The issues are as follows:
(1) Whether the tribunal was right in admitting and acting on Exhibits 6 – 44 – (ground 1).
(2) Whether the tribunal was right in placing on the defence the onus of justifying Exhibits 49-108 vis-a’-vis Exhibits 6-44 (ground 2).
(3) Whether the verdict of the tribunal is perverse – (ground 4).
The 1st and 2nd respondent on 10/3/2008 filed their brief of argument. In their brief of arguments, three issues for the determination of this appeal, were raised on their behalf. These issues are as follows:
(1) Whether the tribunal was right in attaching probative value to Exhibits 6-44 tendered by the petitioners and admitted without objection from any of the parties (ground 1 of the notice),
(2) Whether the tribunal was right in placing upon the 3rd respondent
(INEC) who called no witness nor tendered any document in support of its Reply, the onus of justifying the serious discrepancies between the results tendered by the petitioners (Exhibits 6-44) against the correspondent results tendered by the appellant (Exhibits 49-108 (ground 2 of the Notice).
(3) Whether the tribunal was entitled to examine the conflicting documents placed before it by the parties, in order to arrive at just determination of the issue (grounds 3 and 4 of the Notice).
The 3rd respondent, even though no any issue for determination is raised
In its brief of argument, it filed the brief of argument and was filed on 14/1/2008, while the 4th to 152nd respondents, with the leave of this Court granted on 15/1/2008, filed their brief of argument and was deemed duly filed and served with effect from the 15/10/2008. In their brief of argument three issues were also raised. The issues are;
(1) Whether the Tribunal rightfully admitted and acted on Exhibits 6-44 (ground 1 of the Notice).
(2) Whether the Tribunal rightfully placed on the defence the onus of justifying Exhibits 49-108 against the results tendered by the 1st respondent (i.e. Exhibits 6-44.
(3) Whether the petitioners/(1st and 2nd respondents) proved substantially the allegation of corrupt practices and non-compliance with the Electoral Act 2006 to warrant the nullification of the election by the Tribunal.
When this appeal came up for hearing on 10/2/2009 both counsel to the parties to this appeal adopted and relied on their respective briefs.
I have carefully gone through their respective issues, and observed that the issues are in substance the same even though differently worded.
The appellant’s issue no. I is the same as the 1st and 2nd as well as the 4th – 152nd respondents corresponding issue no. 1, which is on the rightfulness of the Tribunal in relying on Exhibits 6-44, in reaching its conclusion, while appellant’s issue No.2 is the same as the corresponding of the 1st and 2nd as well as the 4th – 152nd respondents’ issue NO.2 which is on the rightfulness or otherwise, of the Tribunal placing the onus of justifying Exhibits 49-108 vis a-vis Exhibits 6-44 on the defence i.e INEC, (the 3rd respondent in the petition and 4th respondent in this appeal). Finally, the appellant’s issue no.3 is the same as the corresponding issue no.3 of the 1st and 2nd respondents as well as the 4th -152nd respondents, which is on whether the judgment of the Tribunal was based on evidence to be relied upon. I will therefore, adhere to the appellant’s issues for the determination of this appeal.
I will also, begging the consideration of this appeal by disposing first, of the objection raised by the 1st and 2nd respondents in their brief of argument.
It appears to me that the 1st and 2nd respondents have raised and incorporated in their brief of argument, what seems to be a preliminary objection. In paragraph 4.02 of their brief of argument it was submitted that, a close look at Ground no. I of the Notice of Appeal, will show that the error complained therein was on the probative value and weight attached to Exhibits 6-44, i.e the Tribunal was alleged to be in error in ascribing unassailable probative value and weight to exhibits 6-44, but not on the admissibility of the evidence. It was further argued in their brief that in the particulars of errors,(a)-(f) surprisingly the question of admissibility of the results was not raised. That in the absence of any amendment of ground no. 1, this court should discontinuance all the argument bordering on admissibility since an issue for determination must flow from the ground of appeal. In this appeal, issue no. 1 is incompetent because it is not related to ground no.1. It should be noted that a preliminary objection, like the one raised in the 1st and 2nd respondent’s brief, cannot be raised in subtle and uneventful way.
The preliminary objection raised in this appeal was improperly raised. The practice and accepted practice for that matter is that, a Notice to that effect is give and such objection may be in corporately in a brief, and is raised in a conspicuous title in the name and style of PRELIMINARY OBJECTION.
Thereafter the grounds and the arguments of or for the objection are stated and argued in the brief.
Although the said preliminary objection was not properly raised in the 1st and 2nd respondent’s brief, yet I shall not ignore it in view of the fact that both the appellant and I, knew the content of the objection and more over, it is a matter of law. It is trite that an issue for determination, usually raised by one or more grounds of appeal, is a question of law or fact in dispute, between the parties, necessary for determination by the court and the determination of which will normally affect the result of the appeal. See Onifade vs. Olayiwola (1990) 7 NWLR (Pt.16) 130 at 159. Its purpose is to enable the parties narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity. See Ogbuanyiniya vs. Okudo (No.2) (1990) 4 NWLR (Pt.146) 551 at 568. Appeal in this court are argued on issues, and such issues must be formulated or distilled from the ground or grounds of appeal filed. See Okpala vs. Ibeme (1989) 2 NWLR (Pt.208) at 222: and Ayisa vs. Akanji (1995) 7 SCNJ. 245 at 253.
Consequently an issue that does not relate to any ground of appeal is incompetent, and would be liable to be struck out for being incompetent. See Animashauu vs. V.C.H (1968) 12 S.C.N.J. 179 at 184; Adesanya vs. Adewole (2000) 5 SCNJ 247. See also Omagbemi vs. Guiness (1995) 2 SCNJ 47 at 61, where the lone issue formulated for the determination of the appeal was however, neither related to nor distilled from each or all the grounds of appeal. For this reason the Supreme Court held that the issue was unarguable and a fortiori, incompetent and ought, therefore, to be struck out, and consequently, the appeal itself was struck out. A ground of appeal, on the other hand, is deemed to be abandoned when no issue formulated by the appellant is based on it. See Osifile vs. Odi (1994) 2 SCNJ. 1.
Having stated the law, I now reproduced the ground No. 1. It reads:
(1) The lower tribunal erred in law in ascribing unassailable probative value and weight to Exhibits 6-44 when it erroneously held that the said Exhibits were “not challenged or rebutted by the third to the one hundred and fifty second Respondents nor by any of the witnesses of the first Respondent”, and thereby wrongly concluded that the said Exhibits “will be deemed true and correct and the contents of the result-sheets will be believed by the Tribunal.”
PARTICULARS OF ERRORS IN LAW:
(a) The authenticity of the said Exhibits 6 – 44 was specifically challenged in the pleadings (Replies) of all the Respondents.
(b) The said Exhibits were tendered as carbon copies of ECSA(1) allegedly received by the 1st petitioner from party against of the 2nd petitioner.
(c) Non of the party – Agents testified as to the authenticity thereof.
(d) The said Exhibits were not certified true copies of the original results sheets.
(e) Non – of the makers of the Exhibits was called to testify.
(f) The score purporting to be established by the Exhibits were an issue in dispute in the pleading; a fortiori very little or no probative value ought to be ascribed thereto in the absence of directorial evidence from the officers on the field where the votes were counted and/or recorded. See Buhari v, Obasanjo (2005) 13 NWLR (Pt.941) 1 at 315.
Examination on ground no.1 above, one may conclude that the purported issue no.1 is not related or distilled whatsoever from the above reproduced ground no. 1 of the appellant’s grounds of appeal. Consequently issue no. 1 purported to be distilled from ground no.1 ought to be struck out for being incompetence. See Abisi v. Ekwealor (1993) 6 NWLR (Pt.302) 643 at 664 and the case of In-Dan-Jumbo & Ors. Vs. Dan-Jumbo & Anor (1999) 11 NWLR (Pt.627) 445 at 453, A-B. The latter case constitutes authority for striking out issues for determination not deriving from any ground of appeal as in the present appeal.
For what I said above the purported issue no. 1 in the appellant’s brief of argument being not related to any ground of appeal is hereby struck out together with all the arguments under it, for being incompetent. Similarly, the purported ground no. 1 of the appellant’s grounds of appeal having no issue formulated from it is hereby deemed abandoned and is struckout.
Ground of appeal is deemed abandoned when no issue is formulated based on it. See Osifile vs. Odi (1994) 2 (supra)
Now, that I have finished with the preliminary objection I shall go to the merits of appeal itself, and that takes me to issues 2 and 3 that are valid.
ISSUE NO.2
The complaint of the appellant under this issue is that the Tribunal erred when it places on the defence, instead of the petitioners, the onus of justifying exhibits, 6-44. In support of this contention, it was submitted that the said Exhibits 49 – 108 are Certified True (C.T.C) Copies of INEC Results Sheets specifically pleaded and tendered by the appellant, and received without objection from the respondents, They were therefore properly admitted in evidence at the Tribunal. And by virtue of section 109 of the Evidence Act they are public documents. He further submitted that, being duly certified true copies of public documents on material facts and duly pleaded each of the said Exhibits 49-108 ought to enjoy the statutory presumption of correctness and regularity ascribed by section 150 of the Evidence Act. The onus of rebutting the said presumption is on anyone who challenges their correctness, and the case of Osawara vs. Eziruka (1978) 6 – S.C. was relied upon in support of the contention. He also contended that the Tribunal was wrong to have held the view that INEC and/or the appellant had any onus or burden to improve upon or to add to, the quality of evidence comprised in Exhibits 49-108. That it was most erroneous of the tribunal to hold that there was any obligation on anyone to justify the disparity between Exhibits 6-44 (which are not legal Exhibits), on one hand and Exhibits 49 – 108 on the other hand.
In their reply, 1st and 2nd respondents submitted that, the tribunal was right in placing the onus on INEC. They submitted that as soon as the petitioners tendered the duplicate copies of the results, which the party agents received in the course of the poll, the petitioners have discharged the burden of proof placed on them regarding the authenticity of the results, and the onus then shifts to the person who conducted the selection to provide the original Copies of the results or certified True Copies of the original showing that the duplicate copies tendered by the petitioners could not have been made by INEC. That it is not the petitioners to start defending results it did not make.
The third respondent in her brief submitted that it agreed with the submissions of the appellant under this issue No.2.
The 4th – 152nd respondents in their joint brief made a submission which goes against the judgment appealed against They challenged the Correctness of the Tribunal’s decision. This is wrong. The traditional role of a respondent to any appeal is to defend the judgment appealed against, but if he wants to depart from the role by attacking the said judgment, in any way, he is obliged by the rules to file a cross-appeal. See Adefulu vs. Oyesili (1989) 5 NWLR (Pt.122) 377 at 417; Kotoye vs. C.B.N. (1989)1 N.S.C.C. 239 and Tukur vs. Taraba State (1997) 6 NWLR (Pt.510) 549.
Without a cross-Appeal, the 4th -152nd respondents, legally, are incompetent to attack the judgment, and their submission on this issue no.2 is incompetent and discountenanced.
From the state of pleadings it is common ground that the respondents (petitioners) pleaded as follows:
“The petitioners aver that in places where there was any voting, results were either re-written or voters forced to vote or bribed to, against what would have been their true choice.
The tribunal is therefore urged to hold that the proper result of the election ought to be as tabulated in paragraph 13 Table – A (supra) which results are summariesed as follows:
A C (691 votes), ANPP (2456 Votes) DPP (881 votes) MRDD (190 votes) PAC (108 votes) PDP (1561 votes), PPA (171 votes).
- The petitioners however pleaded that in all the units, wards or parts thereof where voting was lawfully done, the 1st petitioner won a clear victory.
- The petitioners plead and shall rely on the few copies of forms EC8A and EC8B (1) made available to the 1st petitioner through ANPP Party agents at some polling Units and wards” (See p.9 of the record of proceedings).
During the trial and in order to prove their case, the petitioners tendered in evidence Exhibits 4 – 44 being the duplicate copies of results received by their agents at some polling Units where election took place.
However, the 4th respondent (INEC the 3rd respondent in the petition) had in its Reply to the above facts in the petition, pleaded inter-alia:
“15. Paragraph 20 of the petition is denied by the 3rd to 152nd Respondents and state that the 1st respondent won the majority of lawful votes cast at the election, duly declared the winner and duly returned.
- Paragraph 21 of the petition is denied by the 3rd to 152nd respondents. (See page 45 of the record of proceedings.) And at page 44 of the record the petitioners also plead as follows:
The 3rd -152nd Respondents further stated that in all the polling Units, results were neither rewritten, voters forced nor bribed to vote.
Elections were peaceful free and fair. The 3rd – 152nd Respondents were not aware of the abduction of ANPP Candidates by anybody or group.”
At the trial, the 3rd – 152nd respondents left the petition unchallenged, and proffered no evidence on their Reply. Therefore in my view, the appellant could not be in a position to controvert facts that are within the knowledge of INEC and its Official. At the end the Tribunal held;
“It is commonsensical to expect therefore that the contents of the result sheets for the same polling booth in Exhibits 6-44 and Exhibits 49-107 must correspond and where they do not correspondent, the third Respondent (INEC) must explain the differences since they were all made and issue by the third Respondent (INEC).”
It should be noted that this above finding and conclusion of the tribunal is now the subject of the appeal by the appellant. Could the appellant do so? My answer is negative. The only person that can appeal against the above decision of the tribunal, in my view, is INEC or its representative. The appellant should not be the proper person to appeal on this point under consideration. The conclusion reached by the Tribunal as to the person whom the burden of proof lies in explaining the discrepancies in conflicting results, does not concern the appellant.
On this basis this issue No.2 is answered against the appellant.
ISSUE NO.3
The complaint of the appellant is that the pleadings of the 1st and 2nd respondents (as petitioners) regarding to alteration and mutilations were vague and ambiguous. (underline mine). That, nowhere in the pleadings of the 1st and 2nd respondents was any issue raised to the effect that “the result of the places where credible elections were held in the Constituency were altered and re-written in favour of the 1st respondent(appellant) after the election”. He further submitted that, the 1st respondent in his pleadings did not plead that re-written and/or mutilation of results occurred in any of the polling units from which Exhibits 69, 73-76, 78-80, 83-86, 94, 95, 97 and 98 emanated. And that the failure to specifically plead particular polling units is fatal to the finding of the Tribunal. He finally submitted that the verdict of the Tribunal is perverse and ought not therefore to be allowed to stay. He urges us to set it aside.
In response, the 1st and 2nd respondent argued that the remedy for a party that is served with a pleading that is vague or ambiguous is to ask for further and better particulars, and they relied on paragraph 17 of the 1st Schedule to the Electoral Act 2006 to support their argument. That since the appellant did not apply for further and better particulars from the 1st and 2nd respondents (as petitioners) regarding the pleading on re-writing of results, he can no longer at this stage be heard about any vague or ambiguous pleadings, and they referred to the case of Yar Adu’a vs. Barda (1992) 3 NWLR (Pt.231) 638 at 656. They finally submitted that the finding of the Tribunal was not speculative but supported by the documentary evidence before it.
I have given a painstaking consideration to the copious arguments and submissions of the parties to this appeal. The main complaint against the Tribunals decision is principally on the evaluation of the parties’ evidence before the Tribunal reached its conclusion. There must be a constant remainder to the appellate courts that the function of evaluating evidence is essentially that of the trial court or Tribunal as it had the opportunity of hearing witnesses at the trial, watching their demeanor in the witness box. It is entitled to select witnesses to believe and facts established, and an appellate court should not ordinarily interfere with such findings except in certain circumstances here under mentioned:
(a) Where the trial court has not made a proper use of the opportunity of seeing and hearing the witnesses at the trial.
(b) Where the trial court has drawn wrong conclusion from accepted credible evidence.
(c) Where the trial court has taken an erroneous view of the evidence adduced before it.
(d) Where the trial court’s findings are perverse in the sense that they are unsupported by evidence or do not flow from the evidence accepted by it.
A decision is said to be perverse:-
(a) Where it runs contrary to the evidence or
(b) Where it has been shown that the trial court took into account matters which it ought not to have taken into account or shut its eyes to obvious or
(c) Where it has occasioned a miscarriage of justice. See: Ebba vs. Ogodo (1984) 1 SCNLR 372; Buuyan vs. Aingboye (1999) 7 NWLR (Pt.609) 31, and Adegoke vs. Adibi (1992) 5 NWLR (Pt.242) 410.
In this case, the tribunal from pages 238-248 of the record commenced the evaluation of the evidence adduced by the parties. I considered meticulously the documentary evidence of the appellant and the respondents which are exhibits 49 – 108 and 6 – 44 and assessed the evidential value of each to the case.
Evaluation of evidence involves reviewing and criticizing the evidence given and estimating it. Any decision arrived at without a proper or adequate evaluation of the evidence cannot stand. Evaluation does not stop with assessing the credibility of the witnesses although that in appropriate cases is part of the exercise. It extends to a consideration of the totality of the evidence on any issue of fact in the circumstance of each case in order to determine whether the totality of the evidence supports a finding of fact which the party adducing the evidence seeks that the trial court should make. After giving due concession to the advantageous position in which the trial judge is in regard to credibility of witnesses, the appellate court will only be in position to consider the findings of fact and ensure that it is arrived at after an adequate consideration of the totality of the evidence, where the findings of fact are challenged in circumstances already enumerated earlier on in this judgment.
In the final analysis, the Tribunal gave, in my view, a full and compassionate consideration to the case of the appellant. In this circumstances, this issue is answered against the appellant.
Having said the above, and for the above reasons this court did not find any reason to interfere with the finding of fact of the tribunal. This appeal failed and dismissed. The judgment of the tribunal dated 22nd November, 2007 is affirmed, in the following terms:
i. It is hereby declared that the House of Assembly Election conducted by the third Respondent on the 14th of April, 2007 for the Afikpo North East Constituency of Ebonyi State was marred by electoral malpractices and was not in substantial non-compliance with the Electoral Act 2006.
ii. It is hereby declared that the first Respondent was not elected by a majority of the lawful votes cast at the House of Assembly election for the Afikpo North East Constituency of Ebonyi State which took place on the 14th of April, 2007.
iii. An order is hereby made nullifying the conduct and outcome of the House of Assembly election held on the 14th of April, 2007 for the Afikpo North East Constituency of Ebonyi State by the third Respondent.
iv. The third Respondent is hereby ordered to conduct a fresh election for the Afikpo North East Constituency of Ebonyi State House of Assembly within ninety days of today.
N20,000.00 costs is awarded in favour of the 1st and 2nd respondents.
Other Citations: (2009)LCN/3238(CA)
