Chief Albert Onye & Anor V. Mr. Emmanuel George Kema & Ors (1999)
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OKWUCHUKWU OPENE, J.C.A.
On the 5th day of December, 1998 the petitioners now the appellants contested elections into the office of the chairman and vice chairman respectively of the Ikeduru Local Government Area, of Imo State under the platform of the peoples Democratic party (PDP). The 1st and 2nd Respondents also contested the said election under the platform of All Peoples Party (APP).
At the end of the elections, the 3rd to 13th Respondents declared the 1st and 2nd Respondent winners of the said election. They declared the scores of 16,552 for the 1st and 2nd Respondents and 13,772 for the petitioners/Appellants.
It is as a result of this that the petitioner/Appellant filed a petition in the election petition Tribunal for Owerri Senatorial District holden at Owerri.
There was a full Trial at the end of which, the Tribunal in a well considered judgment delivered on 13/8/98 dismissed the petition in its entirety.
Aggrieved and dissatisfied with the said judgment the appellants have now appealed to this court. All the parties filled their Briefs of argument in accordance with the rules of this court and identified the issues for determination which are: –
- Whether the Booths/Wards complained (sic) and were voided by substantial non-compliance with the decree.
- Whether the Tribunal was right in holding that since the compliance relates to 8 polling Booths there was then substantial compliance with the provision of the Decree governing the election?
The appellants’ complaint is that there are substantial electoral malpractice and substantial non-compliance with the provisions of the governing Decree No. 36 of 1998. It was alleged that the substantial electoral malpractices occurred in the following Booths Wards: –
- Amachi Hall Ezeama polling Booths IM/08/086/JB in Ugirike/Okwu/Ezeama Ward.
- Community school Umuomu Booths No. IM/08/088/L3 Community shool Uzoagba Booths No. IM/08/088/L8 Umuohii/Umuomu Square Booth No. IM/08/088/L10, ALL IN uzoagba Ward.
- Umuakpim village Hall Booth No. IM/08/079/C2 in Iho ward.
- Ogwu Village Hall Booth No. IM/08/082/F3 in Amakohia Ward.
- booths Nos. IM/08/083/G2, IM/08/083/G6, IM/08/083/G7, IM/08/083/G8 AND IM08/083/G9 all in Avuvu Ward.
- the Sulere Atta Ward II
- booth No. IM/08/084/H1 Atta Boys Secondary School Amaeke in Atta Ward 1.
In its judgment, the Tribunal dealt with all the Booths/Wards listed above and also made its findings. No doubt, the appellant’s petition is cleared based on an allegation of claim. The law has been clearly stated by the Supreme Court and this court but for the avoidance of doubt it can be reiterated.
In Nwobodo v Onoh (1984) 1 S.C.N.L.R. 1 at B. 32 Bello JSC (as he then was) aptly stated as follows: –
“I think at this stage I may say that I accept the submission of chief Rotimi Williams that there is in law a rebuttable presumption that the result of any election declared by FEDECO is correct and authentic and the onus is on the person who denies the correctness and authenticity to rebut the presumption.
In my view, where such denial is based on allegation of crimes against the FEDECO official responsible for the declaration of the results, the rebuttal must be proved beyond reasonable doubt, the trial court found the petitioners in this case appeal had discharged the onus”.
In Omoboriowo v. AJASIN (1984) 1 S.C.N.L.R. 108 at 122 Bello J.S.C. (as he then was) observed.
“Now as I stated in Nwobodo v. Onoh (supra) there is in law a rebuttable presumption that the result of every election declared by the returning officer is correct and authentic. By virture of Section 115, 148 (c) and 149 (1) of the Evidence Act, the burden is on the person who denies the correctness and authenticity of the return to rebut the presumption.
Where such denial is based on mere complaint that the petitioners scored a majority of lawful votes. The rebuttal needs only to be proved within the balance of probability”.
In respect of polling Booth IM/086/J13 Ugirike/Okwu/Ezeama ward, the Tribunal after considering the evidence before it found that the appellants did not plead that the APP scored 151 votes and PDP 58 and that the evidence led in that regard would be discountenced.
Mr. Ojiako, the learned counsel for the appellants has in the appellants’ brief argued that there was no evaluation of evidence on the issue of use of plain papers and non production of same which amounted to substantial non compliance. He also argued that on the issue of falsification, that the result of 149 APP 60 PDP was pleaded because the figures were stated in the plain result sheet used at the Booth for which the 3rd Respondent refused to produce the document despite the Notice to produce served on them and that in absence of non production of the result sheet that the petitioner is at liberty to give secondary evidence of same.
It will be very difficult to agree with the submission of the learned counsel. A document has to be pleaded before it can be tendered in evidence, the fact that the figures are stated in the document that a party wants to tender does not relieve him of the obligation to plead the fact and further if a party gives the appellant a notice to produce a document and he fails to produce that document the party is at liberty to tender secondary evidence, that is a copy of that document.
It is wrong law that a party will give oral evidence of the contents of a document which is not pleaded and also not before the court.
Further, the petitioner can only succeed in proving falsification of a document by producing a genuine document which will show that the document that is alleged to be a falsification of the result is so. In short there must be two results one of which can be termed genuine and the other false. This the appellant has failed to do.
As regard Uzoagba Ward Booths L3, L8 and L10, after evaluating the evidence before it, the Tribunal held that forgery and falsification are offences under the Decree and they must be pleaded with utmost particularity and also strictly proved and that it has compared EXH. P4 which is the only loose sheet result tendered by the appellant and EXH 19, the form EC 8A which is purported to be signed by INEC and that there is no difference in the scores recorded for each of the contestants for that particular ward. It therefore cannot be said that the Tribunal failed to evaluate the evidence before it.
Dealing with IHO WARD – Booths IM/08/0079/L3 Umuakpim, the Tribunal found that Luke oforji who had died before the election was accredited and that he voted and that from the facts available that the Tribunal can not hold that an offence has been established against any one because no one knows who benefited from the impersonation of Luke Oforji and also that no one is sure who the impersonator was.
No doubt, this finding can not be faulted, it has not been established that the impersonation was done by any APP agent or any one in favour of the 1st and 2nd Respondents. As the Tribunal has rightly found, an involvement in corrupt practices under section 62 of the Decree does not invalidate the whole election.
In respect of Amakohia Ward Booth F3 Ogwu Village, the Tribunal accepted the evidence of p.w.3, and p.w.6 that there was some non-compliance with the provisions of the Decree in the way that the voting was conducted in Booth F3. This finding was not appealed against and it therefore stands.
In Avuvu Ward, there are five Booths – G2, G6, G7, G8 and G9. The Tribunal found that there were malpractices and offences in relation to the voting exercise. It is pertinent to observe that out of the 5 booths that nothing was pleaded in respect of booths 95, O7 and 09 and no evidence was Called in respect of these booths and p.w.8 Chibuzo Ugboajo who the tribunal accepted his evidence in respect of Booth G9. Said that they did not discover any malpractices in other booths that they visited. There is no reason why this finding should be disturbed.
In respect of Atta Ward 1, the Tribunal considered the evidence of p.w.1. and found that it was not helpful. P.w.9 said that some people took him away in a Mercedes Car and kept him in a warehouse and that he did not see what ever happened at the voting centre. R.W.4 testified that PDP agent at the Booth in issue was not p.w.9 but Andrew Okoro and that p.w.9 was never arrested or forcibly taken away by anybody. I agree with the Tribunal that no malpractice has been established in this regard. As regards Atta Ward II no witness testified to prove the allegation contained in paragraph 3(b) of the Petition. It therefore follows that all the facts pleaded by the appellants in this regards are deemed to have been abandoned.
After reviewing the evidence before it, the Tribunal observed that the appellants are complaining in respect of 7 booths in 5 Wards and that it accepted that malpractices have been Shown to have been perpetrated in some of the booths but that the malpractice were such that fall within the ambit of section 85 (1) of Decree 36 of 1998.
Section 85 (1) of the Decree states: –
“An election shall not be invalidated by reason of non-compliance with the provisions of this Decree if it appears to the Election Tribunal that the election was conducted substantially in accordance with the principles of this Decree and that the non-compliance did not affect substantially the result of the election.
It has been shown that the complaint before the Tribunal was only in respect of 8 polling booths id est, booths J13, L3, L10, C2, F3, G9 and H1 and it has been shown that it is only in respect of booths F3 and G9 that it has been shown that there are malpractice. It has also been shown that there are a total of 133 polling Booths, there is no doubt that there is a substantial compliance with the provision of the Decree governing the election and the election therefore cannot be voided. Further the appellant have not established at all that even if all the results in respect of the 8 polling booths that they are complaining of be excluded that they will win, rather the reverse is the case. The 1st and 2nd respondent will win. It is pertinent to observe that the 3rd – 13th Respondent in their of Argument formulated three issue for determination by this court. The first is whether the learned trial tribunal was right when it assumes jurisdiction to hear and determine this petition when the petition was in competent.
It must not be over emphasized that an issue must arise from one or more grounds appeal and an issue should not be formulated in abstracto. Any issue which is not supported by any ground of appeal is incompetent and should be struck out see:-
Onwuka Kalu v. Odile (1992) 6 S.C.N.J. 76 Odefe v. Alemeka (1992) 7 S.C.N.J. 337 Lackay Traders Ltd v. General Motors Ltd (1992) 2 S.C.N.J. 151
It is settled law that an issue of jurisdiction can be raised at any time but it must be properly raised. The 3rd – 13th Respondents should have filed a preliminary objection raising the issue of jurisdiction and that objection can be taken separately or argued in the brief but in any event, it has to be served on, the other parties. Issue 1 formulate in the 3rd – 13th Respondents Brief is incompetent and is accordingly struck out. On the whole, I am of the firm view that there was substantial compliance with the provision of the Decree and that section 85 (1) of the Decree can be rightly invoked in this case.
In the final result, I see no merit in the appeal and it is accordingly dismissed.
There will be N3, 000.00 costs in favour of the 1st and 2nd Respondents.
Other Citations: (1999)LCN/0555(CA)
