Chima Anozie V. Dr. Ken Obichere & Ors (2005)
LawGlobal-Hub Lead Judgment Report
DONGBAN-MENSEM, J.C.A.
The appellant had contested the 2003 election for the seat of a member of the Imo State House of Assembly representing Owerri North Constituency. He was fielded in under the platform of the All Nigerian People’s Party. The 1st respondent was the direct opponent of the appellant in the said election. The 1st respondent was sponsored by the Peoples Democratic Party.
At the conclusion of the election process, the 1st respondent was returned elected. The appellant felt aggrieved and filed a petition before the Governorship and Legislative Houses Election Tribunal holden at Owerri, Imo State.
In a judgment pronounced on the 12th day of July, 2004, the tribunal dismissed the petition.
The appellant seeks a reversal of the decision of the tribunal and urges this court to either:
“(a) Direct that a fresh election be held in this constituency because the entire process was tainted with malpractices of inflation of votes, disruption of the election in a sizeable part of the constituency at the instances of the 1st respondent and the intimidation of the appellant and his supporters;
or
Declare the appellant elected having scored the majority of lawful votes cast at the election on a proper computation of the result of the election as demonstrated by the undisputed booth results in the areas where election took place as shown at page 9 of the records of appeal.
Two issues were formulated for determination from the four grounds of appeal filed.
The two issues formulated by the appellant are the same with those formulated by the two sets of respondents. We shall determine the appeal upon the appellant’s issues.
Issue One:
“Whether the lower tribunal was not wrong when it held that the evidence adduced before it was insufficient to prove malpractices or corrupt practices of vitiating the election?”
The appellant relies upon an alleged admission by the 1st respondent, under cross-examination, that the result of the election was inflated in his favour.
In addition to the clear admission of the 1st respondent, submits the learned counsel, the appellant also established his case by the adduction of evidence which stood unchallenged and uncontroverted. Evidence of inflation was adduced in seven wards as detailed out anon:
(i) In Obibiezena Ward, the appellant scored 136 votes while the 1st respondent scored 958 votes as contained in exhibits P6-P6A, but this result was inflated to 388 votes for the appellant and 3062 votes for the 1st respondent at the collation of the result in the Form EC8C which was admitted as exhibit P8, see pages 193-194 of the records of appeal.
(ii) In Orji Ward, the appellant scored 1543 votes while the 1st respondent scored 316 votes as contained in exhibits P9 – P9K, but this result was inflated to 1575 votes for the appellant and 2757 votes for the 1st respondent at the collation of the result in Form EC8C admitted in evidence as exhibit P8.
(iii) In Awaka Ihitte Ward, the appellant scored 231 votes while the 1st respondent scored 388 votes as contained in exhibits P11- P11E, but the result was inflated to 415 votes for the appellant and 2110 votes for the 1st respondent at the collation of the result in Form EC8C admitted as exhibit P8.
(iv) In Obibi Ward II, the appellant scored 594 votes while the 1st respondent scored 368 votes as contained in exhibits P13-13M, but the appellant’s scores in the Form EC8C exhibit P8 was reduced to 128 votes while the 1st respondent’s was inflated to 2087 votes.
(v) In Obibi Ward I, the appellant scored 549 votes while the 1st respondent scored 281 votes as shown in exhibits P15 – P15N, but the result was inflated to 1002 votes for the appellant and 3067 votes for the 1st respondent in the Form EC8C admitted as exhibit P8.
(vi) In Naze Ward, the appellant scored 105 votes while the 1st respondent scored 774 votes as shown in exhibits P17 -P17(9), but the result was inflated to 1566 votes for the appellant and 2035 votes for the 1st respondent in the Form EC8C admitted as exhibit P8
(vii) In Ihitte Oha Ward, the appellant scored 188 votes while the 1st respondent scored 241 votes as shown in the booth results as exhibits P19 – P19(17), but the result was inflated to 736 votes for the appellant and 2806 votes for the 1st respondent in exhibit P8.”
Even though there be contradictions, contends Counsel, such were not material as the substratum of the case of the appellant remained intact, which is that the “election” at the instance of the 1st respondent was disrupted in the said five wards. In support of this argument, counsel cites the cases of:
- Nwachukwu v. State (2002) 12 NWLR (Pt. 782) p543 at 572, and
- Fatoba v. Ogundahunsi (2003) 14 NWLR (Pt. 840) p323 at 347.
It was also the contention of the learned counsel for the appellant that the appellant’s arrest which was orchestrated by the 1st respondent was calculated to intimidate and indeed did intimidate the voters which thereby adversely affected the election result.
In spite of these established and uncontradicted facts, the tribunal failed to hold that the inflation of the votes vitiated the election. The tribunal also failed, argues counsel, to consider the nullifying effect of the arrest of the appellant which constituted an intimidation both to the appellant and the electorate. Counsel cites the case of Nwachukwu v Eneogwe (1999) 4 NWLR (Pt. 600) P 629 at 635 to support his submission.
Upon the authority of Wuam v. Ako (1999) 5 NWLR (Pt. 601) P 150 at 163, which held that once irregularity or malpractice is proved the petitioner is entitled to redress, counsel urges us to answer issue one in the affirmative for the appellant.
In response to the arguments of the learned counsel to the appellants, the two sets of respondents each drew our attention to the nature of the complaints of the appellant before the tribunal which clearly are allegations of corrupt practices/electoral malpractices constituting electoral offences. In such circumstance, the standard of proof is one beyond reasonable doubt and no fanciful wild allegations will survive.
The learned senior counsel to the 1st respondent has reacted line to line to the allegations of the appellant after stating the correct position of the law as made out in section 122(2) of the Electoral Act. Senior counsel cites following cases:
- Section 122(2) of the Electoral Act.
- Oyegun v. Igbinedion (1992) 2 NWLR (Pt. 226) 747 at 759-760.
- Opia v. Ibru (1992) 3 NWLR (Pt. 231) 658 at 708-709.
- Ebebe v. Ezenduka (1998) 7 NWLR (Pt 556) 74.
It is the submission of the learned senior counsel, after a minutely detailed dissection of the witnesses of the appellant before the trial tribunal that the appellant, having led inconsistent and contradictory evidence between his pleadings and witnesses on the one hand and between his witnesses on the other hand, clearly failed to meet the standard of proof as required by law. The learned senior counsel gave instances of some of the contradictions and inconsistencies in the case of the appellant as follows:-
- “The petitioner claimed under cross-examination that there were multiple voting in the Wards where he claimed no voting and no election held. It is submitted that there must be voting before there could be multiple voting.
- He also claimed over-voting in Wards where he said no voting and election took place. It is submitted that voting can only take place at the booths -a fact accepted by the PW10 and there must be voting before there could be over-voting and which could only be at the booths. An allegation of “over-voting” is invariably an admission that there was actual voting in the first place. See Kallamu v. Gurin (2003) 16 NWLR (Pt. 847) 493 para C.
- The contradiction between PW3 and exhibit P1 tendered by him as to who led the disruption of election in Emii Ward had earlier been dealt with. (Page 178 of the record.)”
- Contradicting PW3 and exhibit P1, PW9 claimed he led the disruption in Emekuku, Emii and Egbu Wards. He did not know the number of Wards in Emekuku.
- PW9 further said they were calling the 1st respondent (on phone) to brief him and that contradicts the claim that the 1st respondent led the alleged disruption in Emii.
- PW7 (page 168 of the record) claimed that “we got to OAU when the boys were carrying away ballot box”. PW9 who “led” the “boys” never included OAU Ward among those where election was allegedly disrupted.”
The learned senior counsel reasons that there must be voting before there could be multiple voting. Upon the authority of Kallamu v. Gurin (2003) 16 NWLR (Pt. 847) P 493, the learned silk portends that an allegation of over-voting is invariably an admission that there was actual voting in the first place.
Both learned senior counsel for the 1st respondent and the learned counsel for the 2nd-7th respondents effectively punctured the witnesses of the appellant under cross-examination and in evidential analysis.
The learned senior counsel posits that the witnesses of the appellant not only contradicted each other but gave evidence in support of the appellant’s witness. Said the learned senior counsel silk:
“Against the contradictory and inconsistent evidence of the petitioner to his witnesses on election in the said five wards is the evidence of RW1 of the ANPP, like the appellant, RW2 of the NDP, RW3, RW4, RW5, RW6, RW9, RWI0 and exhibits R1-12, R2-15 which confirmed the holding of election in those Wards and amply supported by the evidence of the appellant’s witnesses – PW6 in respect of Emekuku Ward 1 and that of the PW3 and PW4 on the issue of voting and accreditation in Emii and Emekuku Ward 2 contrary to the petitioner’s pleading.”
On the inflation of votes, the learned senior counsel cites the case of Ajadi v. Ajibola (2004) 16 NWLR (Pt 898) P 91 at 168-169 which held that:
“A petitioner alleging inflation of figure needs to go further to prove his allegation by giving particulars of the inflated figures and by also showing that if the inflated figure were taken from the votes credited to his opponents’ case the result would change in his favour”.
Senior counsel concludes that the appellant not only failed woefully to prove his allegations, but even led evidence that established that the election took place. Further, that the tribunal found even upon the “correct computation” of the result made by the appellant, that it was the 1st respondent who won the election. The contradictions in the evidence of the appellant’s witnesses were after all material, portends the senior counsel, contrary to the submission of the learned counsel to the appellant.
The appellant cleaves tenaciously to an alleged admission by the 1st respondent that votes were inflated in his favour as proof of malpractices or corrupt practices capable of vitiating the elections.
Exactly what are the circumstances of this self destructive admission of the 1st respondent? The 1st respondent testified as RW9. His testimony is recorded from pages 231 through 236, 239-244. This admission is allegedly recorded at page 242 lines 242.
The proceedings on page 242 shows the 1st respondent being cross-examined as RW9. It appears the relevant portion referred to is the one which refers to Form EC8C and continues as follows:
“Form EC8C exh. P8 has errors. I was credited with more votes than I scored, just like any other candidate in exh. P8. What I saw on the return sheet is. What is accredited to me as what I scored. I should say so that the score 41,578 votes credited to me as inflated as a result of the error in form EC8C, exhibit P8. If I am given the opportunity to compute my votes in Form EC8A, I will be able to say my scores. But I can not categorically say my scores now”.
This does not appear to one as an admission of guilt of the fact of inflation of votes. The witness said all the parties were inflicted by the said inflation. It is therefore misleading to hinge upon this piece of evidence in urging this court to over turn an election which is presumed to be valid in law. (refer: Onye v. Kema (1999) 4 NWLR (Pt. 598) P 198 at 203-204.
One by one, the learned senior counsel for the 1st respondent shredded the evidence of the other witnesses of the appellant into irretrievable pieces (Refer: page 3-7 of the 1st respondent’s brief of argument)
In Emii Ward, PW3 who seems to be the key witness, clearly contradicted not only himself in one breath but also by exh. P1, a document (pages 81152 – 153, 168 of the records for this appeal referred) PW3 gave varying accounts of the same incident.
These contradictions ran through the areas of all the wards the appellant complained about where, he said elections were marred by disruption, results were in fact tendered by his own very witnesses at the collation centers.
Aside these unreliable testimonies of the appellant’s witnesses is the requirement of law that allegation of crime in an election petition requires proof beyond reasonable doubt. (Refer: Hashidu v. Goje (2003) 15 NWLR (Pt 843) P 352, Kudu V. Aliyu (1992) 3 NWLR (Pt. 231) P 615 at 620 and Ana Nnachi v. Ibom (2004) 16 NWLR (Pt. 900) 614, (2004) EPR 786 at 801.)
The learned counsel to the 2nd – 7th respondent captured the hopeless situation of the appellant in these wards:
“3.1.3. For example to establish corrupt practices he called PW7 and PW9 who “confessed” to being thugs who disrupted election at gun point at the instance of the 1st respondent. However, there were material contradictions between their testimony as to when the 1st respondent was during the commission of this heinous crime they confessed to. While one said he was with them, the other claimed that they were contacting him on the phone. For their testimonies we humbly refer this Honourable Court to pages 166-169 of the records for the testimony of the PW7 while that of PW9 is on pages 178-180 of the records”.
The appellant will not only prove the allegations of non-voting, inflation of votes and malpractices. He must take the further step to show that these malpractices were at the instigation of the 1st respondent.
Where votes as involved, the votes objected to must be clearly stated to be compared with the expected legal votes as against the illegal votes emanating from the inflation of votes by over-voting. Without these essential detail, the complaints of the appellant remain nothing but unsubstantiated allegation of no legal consequence. The trial tribunal so found. Their lordships of the tribunal found as follows:
In conclusion, corrupt practices like any other electoral malpractice amounts to a criminal offence and prove of it is beyond reasonable doubt: see Section 138 (1) Evidence Act Cap. 112 LFN 1990 and the case of Nnachi v. Ibom (supra). In proving the malpractice, the petitioner must establish that the corrupt practices or illegality was expressly authorized by the 1st respondent. Furthermore, the said malpractice must have substantially affected the results of the election. See Badawi v. Adam (1999) 3 NWLR (Pt. 594) p. 303 at 308 and Oyegun v. Igbinedion (1992) 2 NWLR (Pt. 226) 747. the evidence so far adduced in support of this ground falls short of the standard prescribed by the law. Consequently, we hold that act of corrupt practices have not been proved. Accordingly, issue number three is answered in the negative and in favour of the 1st respondent.
I find no good cause to up set this finding which is hereby affirmed.
On Issue Two:
It is the position of the learned counsel for the appellant that in holding that the 1st respondent scored the majority of lawful votes cast at the election, the Tribunal relied on an inadmissible piece of evidence exh. R8(1). This, contends counsel, contravenes the provisions of section 111(1) of the Evidence Act Cap. 112, LFN 1990.
It is further the submission of the learned counsel that exh. R8(1) came from a source not prescribed by section 147 (1) of the Electoral Act, 2002 and is therefore of a questionable custodial origin.
For these reasons the learned counsel urges us to discountenance exh. R8(1) and hold that the appellant scored the majority of lawful votes at the election.
Therefore, maintains counsel, we should nullify the election and either direct a fresh election or declare the appellant as duly elected.
On this issue, it was the position of the learned senior counsel that exh. R8(1) enjoys the presumption under section 114(1) of the Evidence Act. The learned silk relies on the case of Daggash v. Bulama (2004) 14 NWLR (Pt 892) 144 at 221 in which a document with similar certification as exh R8(1) was held to be in substantial compliance with section III of the Evidence Act.
The learned senior counsel finds as preposterous, the suggestion that a document remitted to the Court of Appeal by the trial tribunal cannot be duly certified by the Registrar of the Court of Appeal on the spurious claim that the Court of Appeal does not possess custody of the document.
The learned counsel to the 2nd – 7th respondent submits that since the appellant does not challenge the credibility of the content of the document or its relevance, but its admissibility on the ground of custody, the decision in Torti v. Ukpabi (supra) renders the contention non-sequitur!
Both the senior learned counsel for the 1st respondent and the counsel for the 2nd – 17th respondents urge us to dismiss the appeal and resolve the issues in favour of the 1st respondent.
The cardinal consideration in the admissibility of a document is relevance (Refer: Torti v Ukpabi (1984) 1SC 370; (1984) 1 SCNLR 214.
It is the correct state of the law that by the provisions of section 111(i) of the Evidence Act Cap 112 LFN 1990, a public document must be duly certified to be such, before it is admitted as legal evidence.
Exh. R 8(i) is shown to have substantially met this requirement, all other requirements having been met, regularity must be presumed; section 114(i) Evidence Act applied. (Refer: Daggash v. Bulama (2004) 14 NWLR (Pt. 892) P 144.
We do not sit here to make declarations about legalism. We are concerned with doing substantial justice.
The learned counsel for the appellant has not shown that the said exh. R8(i) was created by the Court of Appeal, which is known in law and in fact to be the court of last resort in election matters. It is not untoward therefore for an electoral process to emanate from the Registrar of this court particularly under the circumstances of the instant appeal.
I find the ground of appeal and issue premised on this point as rather obdurate.
A complaint that a candidate did not score the majority of lawful votes cast at the election is an invitation to compare and contrast figures. A tabulation of the registered voters, the total number of votes cast and the votes scored by each candidate is a prerequisite in establishing this complaint. This, the trial tribunal did competently as hereby-reproduced (page 339 of the records):
“A computation of the results as contained in exhibits P6-P6 (g) and R8(1) shows that the petitioner had a total score of 136 votes while the 1st respondent had 958 votes. These scores were reflected on the exhibit P7 which the petitioner in his testimony claims to be the true and the authentic result as collated in the election.
Though the petitioner under cross-examination tried to recant his position on the exhibit P7, we are of the view that having pleaded, tendered and relied it, he cannot now resile or retract reliance on it. Furthermore, the petitioner never pleaded nor made a case that election did not hold in any booth in Obibiezena Ward. We also hold that the exhibit R8(1) was properly admitted in evidence and we have seen no reason to depart from that position. Thus, by the computation in exhibits P6P6 (g), R8(1) and P7, the petitioner had 136 votes, while the 1st respondent scored 958 votes in Obibiezena Ward.”
The learned counsel for the appellant filed a reply brief in which he argues that the commencement of an electoral process is not synonymous with its legal conclusion. Counsel relies on the case of Igodo v. Owulo (1999) 5 NWLR (Pt. 601) P 70 at 78-79.
It has been shown however, that voting did not only commence but were duly concluded and results were collated and computed.
The learned counsel is silent on the finding of the learned members of the tribunal that the petitioner never pleaded nor make a case that election did not hold in any polling booth in Obibiezena Ward.
On the whole I find and hold that this appeal was an adventure for the discovery and recovery of the non-existant.
Nothing has been unfolded. Nothing has been discovered and nothing is recoverable.
It was a doomed voyage from inception.
The appeal is without merit and is hereby dismissed. The decision of the trial tribunal is accordingly hereby affirmed. The 1st respondent was duly returned as the elected candidate. The parties shall each bear their costs.
Other Citations: (2005)LCN/1804(CA)
