Boniface Odali V. Hon. Dickson Ahmadu & Ors (1999)
LawGlobal-Hub Lead Judgment Report
TABAI, J.C.A.
The petitioner/respondent, Hon. Dickson Ahmadu, the 6th respondent/appellant Mr. Boniface Odali and Mr. Eric Oghonoghor contested for the councillorship on the elections conducted by the 1st respondent, the Independent National Electoral Commission on the 5th of December, 1998. The petitioner/respondent, Hon. Dickson Ahmadu (hereinafter simply referred to as the respondent), contested under the platform of the Alliance For Democracy (AD), the 6th respondent/appellant Mr. Boniface Odali (hereinafter simply referred to as the appellant) under the All Peoples Party (APP) and Mr. Eric Oghenoghor, under the Peoples Democratic party (PDP). At the conclusion of the election, the appellant was declared as the duly elected councillor for Word 4, having been accredited with 2109 votes as against 1472 votes for the respondent of AD and 1138 votes for Mr. Eric Oghonoghor of PDP. Dissatisfied with the said result, and the consequent return of the appellant as the duly elected councillor for Ward 4, in the Ukwuani Local Government Council, the respondent presented a petition by which he challenged the return of the appellant and prayed for the nullification of the results in Units 9, 9A, 10, 11 and 11A, the setting aside of the election of the appellant and his (petitioner’s) declaration as the duly elected councillor. In the said petition, he alleged amongst others, fraudulent manipulation, falsification inflation, thuggery attack and other electoral malpractices in favour of the appellant.
On the 4/1/98 the 6th respondent/appellant filed his 12 paragraph reply to the petition. In it he denied all the allegations of fraudulent manipulation, falsification, inflation of figures and other electoral malpractices in his favour in the aforesaid Units 9, 9A, 10, 11 and 11A. He also denied the allegation of thuggery and indicated that at the trial, he would insist on strict proof of the averments of the criminal allegations.
And on the 25/1/99, the 1st-5th, 7th-9th respondents filed their reply to the petition. They also denied all the allegations or falsification, fraudulent manipulation, illegal thumb printing and other electoral malpractices. At the trial 5 witnesses testified in support of the petitioner/respondent and live testified for the respondents. In its judgment on the 9th February 1999, the tribunal nullified the election of the appellant and in his place, returned the petitioner/respondent as the duly elected councillor for Ward 4. Ukwuani Local Government Council.
Against this judgment, the appellant has now appealed to this court with six grounds of appeal which without their particulars are as follows:-
- The tribunal erred in law in proceeding to hear and determine the petition when it lacked the jurisdiction so to do.
- The judgment/order of the honourable tribunal is a nullity having been delivered in breach of the statutory provisions of paragraph 2(1) of Schedule 5 to the Local Govt. (Basic Constitutional and Transitional Provisions (Decree) No, 36 of 1998,
- The tribunal erred in law and thereby came to a wrong conclusion when it found as a fact that the imputations/allegations of crime/electoral offences in polling units 9/9A and 11/11A were proved when the evidence adduced did not satisfy the standard of proof required to establish the criminal allegations upon which the petition is predicated.
- The tribunal was in grave error of law when it relied on inadmissible evidence of facts not pleaded and/or in direct conflict with facts pleaded in the petition.
- The tribunal erred in law and thereby came to a wrong decision when it declared the petitioner as the person duly elected and returned as councillor for Ukwuani Local Govt. Council, on the basis of computations centred around a declaration of result/return which was neither pleaded nor proved by the petitioner and
- The judgment of the honourable tribunal is against the weight of evidence.
In the appellant’s brief of argument the following issues for determination were formulated:-
Issue 1
Whether the judgment of the tribunal was not a nullity.
Issue 2
Whether the petition is competent.
Issue 3
Whether the allegations of crime alleged by the respondent were proved beyond reasonable doubt.
Issue 4
Whether the evidence relied upon by the tribunal in coming to its decision was admissible.
Issue 5
Whether the judgment of the tribunal is not against the weight of evidence.
On the 1st issue learned counsel for the appellant referred to paragraph 2(1) of Schedule 5 to the Decree which requires an election petition to be heard and determined within 60 days from the date on which the petition is filed and concluded that since 60 days from the 11-12-98 terminates on the 8-2-99 the judgment delivered on the 9-2-99 is outside the said period of 60 days and therefore a nullity. He relied on Lamikoko Ojokolobo & ors. v. Lupedo Alamu & ors. (1987) 3 NWLR (Pt.61) 377, (1987) 7 SCNJ 98 at page 113.
With regard to the 2nd issue, learned counsel argued that the petition failed to meet the mandatory requirements of paragraph 5(1)(c) of Schedule 5 to the Decree for failing to state therein the scores of the candidates at the election.
Learned counsel argued issues 3 and 4 together. He referred to the averments in the petition and particularly to the allegations of fraudulent manipulations, falsification and other electoral offences or malpractices and contended that the evidence did not meet the standard of proof beyond reasonable doubt to warrant the cancellation of the results in Units 9/9A and 11 and 11A.
And for the 5th issue he adopted his arguments proffered on issues 3 and 4.
In his brief the petitioner/respondent formulated two issues for determination. They are:
- Whether, having regard to the pleaded facts and evidence led, the tribunal was not entitled to make the orders being sought to be impugned: and
- Whether there exists any intrinsic or extrinsic features in this case that would have robbed the tribunal of the exercise of its power under the law.
With respect to issue I learned counsel for the respondent argued that proof beyond reasonable doubt under section 138(1) of the Evidence Act does not mean proof beyond the shadow of doubt and that the standard varies from case to case depending on the peculiarities and relied on M. Omorhirhi v. Enatevwere (1988) 1 NWLR (Pan 73) 746 at 769. He referred to the evidence of the PW1, PW2, PW3 and PW4 which he contended is compelling and met the standard set in section 138(1) of the Evidence Act. He referred to the allegations of election malpractices levied against the appellant and officials of the 1st respondent, Independent National Electoral Commission and contended that their failure to give evidence in rebuttal amounts to admission and proof of the allegations pleaded and relied, for the proposition, on Obmiami Brick & Stone Nig. Ltd v. ACB Ltd (1992) 3 NWLR (Part 229) 260 at 293-294. He submitted that the making of Exhibit P5, alteration of votes and conflict in the testimony of the PW3 and DW1, were matters eminently within the precincts of the tribunal members who heard and saw the witnesses and that the tribunal’s findings in respect thereof should not therefore be disturbed by this court, unless same is shown to be perverse or not supported by the evidence.
He argued that the scores in Exh. “D4” were not suggested to be false and contended that the tribunal was right to have acted upon them irrespective of typographical errors in the processes filed.
On issue No.2, learned counsel relied on section 15(2)(a) of the Interpretation Act Cap. 192 of the Laws of the Federation 1990 and section 90 and Schedule 5 to the Local Government (Basic Constitutional and Transitional Provisions Decree No. 36 of 1998 and argued that the judgment delivered on the 9/2/99 was clearly within 60 days. With regard to the contents of the petition he contended that the candidates their parties and scores were clearly set out in the petition and were not disputed by the appellants. Finally he urged that the appeal be dismissed.
In my view arguments on the appellant’s issues 1 and 2 were sufficiently covered by respondent’s issue 2 while appellant’s issues 3, 4 and 5 are covered by respondent’s issue 1. I would therefore respectfully adopt the approach of the respondent’s broad two issues. Namely, (1) nullity or otherwise at the judgment and competence of the petition, and (2) burden and standard of proof.
With regard to the issue of whether or not the judgment was delivered within 60 days, I am persuaded by the argument of learned counsel for the respondent that the applicable law is the Interpretation Act Cap. 192 Laws of the Federation 1990, which, in my view, is not inconsistent with the provisions of paragraph 2(1) of Schedule 5 to the Local Govt. (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998. The petition was filed on the 11/12/98 and although paragraph 2(1) of Schedule 5 to the Decree says that the petition should be determined within 60 days from the date on which the petition is filed in the computation of time, the 11/12/98 ought to be excluded as provided in section 15(2)(a) of the Interpretation Act. This, in my view, accords with common sense.
If, for example, a person was on the 11/12/98 given 1 day within which to perform a duty, the said 1 day will only be complete at the close of the 12/12/98. Applying the same principle to this case the close of the 12/12/98 completes the 1st day of the 60 days within which to hear and determine this petition, and on the premise the close of 9/2/99 completes 60 days. I agree with the respondent that the judgment of the 9/2/99 was within the 60 days. Accordingly that issue is resolved in favour of the respondent.
On the contents of the petition regarding the scores of the candidates my view is that there is no such non-compliance serious enough to vitiate the entire proceedings. With the scores for the three parties as shown in paragraph 4 of the petition there is, in my opinion substantial compliance with the requirements of the law and so I also resolve that issue in favour of the respondent.
I now come to the last issue of standard of proof. On this, the first question is whether the various allegations of fraudulent manipulations alterations, falsifications and other electoral offences and malpractices with regard to Units 9/9A, 11 and 11A of Ward 4 Ukwuani Local Govt. Council proved beyond reasonable doubt to justify the tribunal’s cancellation of the results in those units. Section 138(1) of the Evidence Act provides:
“If the commission of a crime by a party to any proceedings is directly in issue in any proceedings civil or criminal it must be proved beyond reasonable doubt.”
Our law reports are replete with authorities where this provision has been invoked. On the need to prove beyond reasonable doubt in appropriate cases, see Njoku v. State (1993) 6 NWLR (Part 299) 272, Onubogu & anor v. The State (1974) 9 SC. 1. The same standard of proof beyond reasonable doubt under section 138(1) of the Evidence Act applies in an election petition where the allegation of a crime forms the basis of the petition. See Nwobodo v. Onoh (1984) 1 SCNLR
1 (1984) All NLR 1 at 16.
In the instant case, the allegations of fraudulent manipulations, thuggery, falsification of results and other electoral offences and malpractices are all criminal allegations which proof therefore must be beyond reasonable doubt. With regard to the unit 9/9A there were two eye witnesses, that is the PW3 and DW1. Both of them were officials of the Independent National Electoral Commission and both were said to be present when the alleged electoral offences were committed. But their testimonies were at cross-purposes. The Tribunal believed the PW3 that the appellant and the chairmanship candidate for APP Mr. Eric Obodoukwu Anigala came to the unit and influenced him to enter scores as shown in Exh. P5 and found as a fact that there were electoral malpractices in that unit. It is settled law that the duty of appraising evidence and ascribing values to it, is pre-eminently that of the trial court who saw and heard the witnesses and that an appellate court may not disturb a finding or conclusion in a judgment simply because it would have come to a different finding of conclusions on the facts. An appellate court may, however, interfere with such conclusion or finding at a trial court if it is satisfied (1) that the finding was perverse and cannot be supported having regard to the evidence or (ii) that the finding is an inference from established facts, so that the appeal court is in as vantage a position as the trial court to draw its own conclusion, or (iii) that the trial court applied wrong principles of law. see Woluchem v. Gudi (1981) 5 SC. 291 at 326, Nwobodo v. Chief Federal Electoral Officer (1984) 1 SC. 1 at 53.
In this case I have no doubt that there is enough evidence of electoral malpractices in the said units 9/9A and in the circumstances, I do not think I have any reason to disturb the findings of the tribunal in respect thereof.
With regard to the results in Units 11/11A the tribunal relied essentially on the evidence of the PW2 and the contents of Exh. P2 and found as a fact that there were also electoral malpractices in that unit 11/11A. I also support that finding of the tribunal with respect to Unit 11/11A.
On the whole, I agree that from the totality of the evidence there were proved, electoral malpractices serious enough to justify the tribunal’s cancellation of the results of the 5th of December 1998 elections in Units 9/9A and 11/11A. I do not think. however, that the most appropriate approach, in the circumstances, was the deduction of the scores credited to each of the candidates for the purpose of determining who scored a majority of lawful votes. Rather, what I consider to be the most appropriate order is for a fresh election to be conducted in the said Units 9/9A and 11/11A of Ward 4 of the Ukwuani Local Govt. Council of Delta State, so that the people of the said units would exercise their rights to participate in the choice of who should be their councillor in Ward 4. The consequence is that this appeal partially succeeds.
In the final analysis therefore, I make the following orders:
(1) I confirm the tribunal’s nullification of the Independent National Electoral Commission’s declaration and return of the 6th respondent/appellant Mr. Boniface Odali as the duly elected councillor for Ward 4, Ukwuani Local Govt. Council of Delta State.
(2) I also set aside the tribunal’s return of the petitioner/respondent Hon. Dickson O. Ahmadu as the councillor-elect for Ward 4, Ukwuani Local Govt. Council of Delta State.
(3) And it is hereby ordered that a fresh election be conducted in Units 9/9Aand 11/11A of Ward 4, Ukwuani Local Govt. Council of Delta State with the candidates, Hon. Dickson Ahmadu of the Alliance for Democracy (AD), Mr. Boniface Odali of the All Peoples Party (APP) and Mr. Eric Oghonoghor of the Peoples Democratic Party (PDP) being the only contestants.
(4) And it is further ordered that the scores in the said fresh election by each of the candidates be added to his scores in the other units of Ward4, Ukwuani Local Govt. Council for the purpose of determining and returning who scores a majority of lawful voles.
I make no orders as to costs.
Other Citations: (1999)LCN/0528(CA)
