Dandyson R. Uku & Anor V. Augustine Ngo & Ors (1999)
LawGlobal-Hub Lead Judgment Report
NSOFOR, J.C.A.
The petitioner (appellant) was one of the candidates in the Governorship and Legislative Houses elections conducted throughout the Federation of Nigeria on the 9th of January, 1999 by Independent National Electoral Commission (INEC for short) a statutory body charged with the conduct of the elections.
The petitioner and the 1st Respondent had each contested the seat in the Rivers State House of Assembly for Abua/Odual Constituency. The 1st Respondent contested the election under the platform of All Peoples Party (APP). The petitioner contested under the platform of Peoples Democratic Party (PDP).
At the end of the election exercise, the results of the polls as declared by the 3rd Respondent, an official of INEC who participated in the conduct of the elections showed that (i) the petitioner scored 29,986 votes and, (ii) the 1st Respondent scored 49,180 votes. Accordingly, the 3rd Respondent returned the 1st Respondent as having been elected.
The Petitioner was not satisfied with the declaration and the return of the 1st Respondent. Dissatisfied, he therefore, presented a petition to the Governorship and Legislative Houses Elections Tribunal (hereinafter to be referred to simply as the Tribunal for short) holden in Port Harcourt challenging the return of the 1st Respondent by the 3rd Respondent.
The ground for the challenge as pleaded in paragraph 3 of the petition was:
“the 1st Respondent was not duly elected by majority of valid votes at the election: or, in the alternative, that the election in wards 1,9, 10, 11, 12, and 13 were voided by corrupt practices and or the elections in those wards were not conducted in compliance with the provisions of Decree No.3 of 1999”
Accordingly, he sought for the following reliefs:-
“Wherefore the Petitioner prays the Honourable Tribunal to
(a) Cancel the results of the elections in wards 1,9, 10, 11, 12 and 13 of the Abua/Odual Legislative House Consistuency for electoral malpractices, or in the alternative, that the election in those wards was not conducted in accordance with Decree No.3 of 1999.
(b) Declare the 1st Respondent not duly elected by a majority of lawful votes cast in the election.
(c) Declare the Petitioner as the winner of the Legislative House for Abua/Odual Legislative House Constituency based on the results of the seven wards were (sic) valid votes were cast, and the Petitioner as elected, or in the alternative, declare the election inconclusive”.
The 1st Respondent had filed a Reply to the petition. Similarly, the 2nd to the 5th Respondents filed a joint Reply to the petition. And the Petitioner further filed an Answer to the 1st Respondent’s Reply. At the close of the pleadings, the case came on before the Tribunal for trial. A full scale trial started on the 12th of March, 1999.
At the conclusion of all the evidence – oral and documentary – and due to time constraint, the Tribunal adjourned for judgment, the counsel engaged in the trial having waived their right to make final addresses, oral or written.
In a reserved and considered judgment on the 1st of April, 1999 the Tribunal dismissed the petition wholly and entirely. In reaching its conclusion the Tribunal had expressed itself, inter-alia, at page 105 or the Record:-
“We have carefully considered the evidence of some of the witnesses of all panics to this petition we now moved to the prayer:
(a) or the Petition in relation to wards 1, 9, 10. 11, 12 and 13 of Abua/Odual Legislative House Constituency where electoral malpractices were alleged to have been committed …. The law is that he who asserts must prove and when the commission of a crime by a party is directly in issue the proof required is one beyond reasonable doubt, See 135 and 138 of the Electoral Evidence Act Cap.112 Laws of the federation, 1990”.
Concluding, the Tribunal wrote at page 107 of the record as follows:-
“In the light of the foregoing, we find and hold that the Petitioners have not proved their allegations against the respondents as required by law.”
Aggrieved with the decision of the Tribunal the Petitioner have naturally appealed to this Court on three (3) grounds of appeal alleging errors in law, I shall decline to reproduce the grounds of appeal together with their respective “Particulars of Error” for obvious reasons.
The parties have filed and exchanged their respective briefs of arguments wherein each party identified what issues for determination. The appellants in their Appellants’ Brief formulated two issues to wit:-
“(i) Whether the Lower Tribunal properly evaluated the evidence of the contending parties in wards 1, 11, 12 and 13, ascribe probative value to them and made findings of fact before reaching its decision.
(ii) Whether the learned Tribunal was justified in holding that the Petitioner failed to prove his Case as required by Law in wards 1, 11, 12 and 13”.
The counsel for the 1st Respondent had formulated at page 2 of the 1st Respondent’s Brief a composite or, double-barrel issue for determination, id est, “Whether from the pleadings and the evidence led was the Tribunal justified in law when it held that the Appellants (Petitioners) did not prove their allegations against the Respondents as required by law and whether it evaluated the evidence concerning the Appellants’ reliefs in arriving at its decision”.
In their joint Brief of Argument the 2nd to the 5th Respondents formulated three issues which I reproduce for the purpose of record. They are:-
“3.01 Whether from the pleadings and the evidence led by the parties, in support, the Tribunal was justified in holding that the allegations of the Petitioners were criminal in nature and have not been proved as required by law.
3.02 Whether this view was arrived at after a proper evaluation of the evidence before it.
3.03 If the answers to Issue Nos. 1 and 2 are in the affirmative was the Tribunal justified in law in dismissing the petition’?”.
I have examined and compared the various formulations of the issues by counsel for determination, one with the other. I shall permit myself to deal with the appeal based on the Issues formulated in the Appellants’ Brief.
Concisely stated and condensed, the two Issues as formulated by counsel in the Appellants’ Brief may, conveniently, be taken together. And that I intend to do.
At the hearing of the appeal learned counsel had each adopted his brief of argument. In amplification of his brief, Mr. Oyaghiri for the Appellants had submitted just as he did argue in the brief that the Tribunal failed to evaluate the evidence led before it, before it reached its conclusion. He cited decided cases including Alake v. The State (1992) 9 NWLR (Pt.265) 260, 273; Ekwealor v. Obasi (1990) 2 NWLR (Pt. 131) 231. 261.
Counsel drew attention to the testimony respectively of the P.W.2 (Oyekuofor Ukwa), P.W.3 (Isheal Madighi Obi) and P.W.4 and to the witness (D.W.1) for the 2nd to the 5th Respondents.
It was the contention by counsel for the appellants that the D.W.1 and D.W.2 were card carrying members of APP. Counsel refers to Exhibits P. 94 and P. 95.
He urged us to hold that the witnesses (D.W.1 and D.W.2) were tainted witnesses.
Their evidence counsel submitted ought to be disregarded and discounted.
It was the further contention by counsel in respect to the election results in or for the Amuruto Community that the D.W.3 and the D.W.4 connived to reject the scores of the appellants while they accepted and submitted the results for Akani for the 1st Respondent. As the counsel argued the results (see Exhibits P. 97 to P. 100) were in the same hand writing indicating some fraud in their preparation.
Counsel urged us, therefore, to scrutinise these exhibits and hold that they were in one hand writing. On that account counsel urged us to cancel the result based on these exhibits.
It was contended further that Exhibit R.1 was a fraud perpetrated by the D.W.3 and D.W.4 so as to render the results for Amuruto (Exhibits P. 97 to P. 100) useless and of no effect.
With respect to ward 13 it was the contention by Mr. Oyaghiri that the 2nd to the 5th Respondents had falsely allocated to the 1st Respondent 9100 votes while crediting to the Appellant 500 votes only. The results submitted by the ward Returning Officer were not the true or accurate votes scored. It was contended that Exhibits P. 71 to P. 90 were all in one hand writing. Counsel urged us to so hold and, on that account to hold that the election was not held in substantial compliance with State Government (Basic Constitutional and Transitional Provisions) Decree No.3 of 1999.
Mr. Oruwari for the 1st Respondent and Mrs. Karibo for the 2nd to 5th Respondents appear to be together. Indeed, Mrs. Karibo at the hearing associated herself with the oral submissions by Mr. Oruwari. I therefore do neither of them any injustice if I summarise their submissions at the hearing just as they did each submit in their respective briefs together.
It was common between them that the allegations by the appellants were criminal in nature. Therefore they ought to have proved their assertions beyond reasonable doubt. And that they failed to do. Both counsel each referred to Exhibits P. 94 and P. 95 and submitted that there was no evidence of a hand writing expert called by the appellants.
Dealing with ward 13, counsel submitted that the appellants failed to prove their allegation of malpractice in the ward.
A good starting point for my consideration of the submissions by the counsel on the arguments on the Issues is to refer, firstly, to the evidence by the appellant, (Dandyson Uku) at page 72 to which learned counsel. Mr. Oyaghiri drew our attention in the Appellant’s Brief (unpaginated) (see p. 3 thereof). In my view, that evidence brings to the fore in a nutshell the allegations of fact pleaded in the various paragraphs of the petition and on which he relied. Part of the evidence in pages 72/73 read:-
“Complain are (sic) as it relates to wards 1, 9, 10, 11, 12 – 13.
(i) The E/O deliberately (sic) APP members as electoral personnel in ward 1 who connived to allocate unlawful votes or figures to the 1st Respondent. The whole units of ward (1) are (… ) by this wd 9. No election in Adada because of violent clash between supporters of communities. The figures recorded do not reflect the votes I scored …. There was gross irregularity and arbitrarily (sic) 9, 10, 11, 12 and 13. I am praying the Tribunal to cancel the election in wd 1. 9, 10. 11, 12 and 13 for E L irregularities or Elections were not conducted in compliance with the relevant Decree”
Cross examined, he stated at page 74 of the Record, inter alias:-
“There was no one I witnessed (algations) (sic).
They are all reports from agents of our party.
The evidence of P.W.2 (Oyekuofor Ukewa. himself a PDP supporter as he described himself) “”‘as at page 47 of the Record. He testified to the effect that some card carrying members or APP including the D.W. I (Kubi Enijim) and D. W. 2 (Odieamiodi Agmufor Agbare) were engaged in the election exercise at the polling units for the purpose of favouring the 1st Respondent to win. The P. W. 2 tendered Exhibit P. 94 (A Resolution of the Minutes of a Meeting of Chapters of APP Ward One (I) of the 9th of November, 1998… concerning the Two Chairmanship Aspirants of Ogbema) and Exhibit P.95 (Resolution of a Meeting of the L.G.A. Executive and elders of the party in the L.G.A.). in support or his accusation against the D. W.1 and D.W. 2.
Now, on the other hand was the testimony by the D.W.1 (Kubi En Enyim).
He was a Civil Servant, attached to the Ahua/Odual L.G.A. as a clerk. His evidence is contained in pages 75 to 78 or the Record.
He testified in parts as follows:-
“I remember I was the P/O in wd IB. I play my role as a P/O …. The election was conducted. I returned all the material to the S.P.O. at C.C at Eghema Town. We look for the R/O at the ward he was seen he brought out a plain sheet to collate the results. AI that point all party supporters Agents refused. He said he dropped the result sheet with the petitioner at his house. The police then arrested him.
The S.P.O. asked us to take the result to L.G.A. Collation Centre Ayhama. I submitted the result to the L.G.A. RIO Governorship and H/Assembly election. I went back home. All the P/O in the ward to the L.G.A. R/O Election took place in that ward 1 ward 1B and ward (1) .. I am not an APP member. No it is not true that I allocated votes arbitrary (sic) in the House of one Magnus. I did not sign Exh. P. 94 and P. 05 No. 11. I am not an elder of the party.
I did my work as directed.”
When cross-examined. D.W.1 further testified that he did not sign any document like Exh. P. 94 and P. 95 and did not know the date or meeting. He denied also that there was violence at Ogbema.
Testifying, the  D.W. 2 stated that he was a civil servant attached to M.O.E. Zonal Office Ahoda. He was the S.P.O for Ward 1A.
Part of his evidence-in-chief at page 78 of the record was:-
“I went round to find out if the P/Os were performing. They were doing their work. Election was going on peacefully at ward 1A. We gathered at the collation Centre after the election ended. The Governor came to my centre at Ogbeama town…. I led the P/Os to the L.G.A. Centre where then handed over CR/O. I was there … It is not true that I allocated votes at a house. I did not sign P.94 and 95”.
He dinied when cross examined by counsel that he was a politician.
The D.W.4 (John Bosona) was the E.O. According to the witness there was observed at Amuruto village. The report by the witness was Exhibit R.1.
The evidence by D.W.7 (Lacky Kpulber) at Civil servant attached to the Hospital management Board, is contained at pages 91 to 92 of the Record. part of his evidence-in-chief read:-
“I was employed by INEC as a R/O for ward 13 Abua L.G.A. I perform my duty as assigned (sic) to me. The wd 13 C/C is at Anya town Hall. I collated the results for the ward and I sign. The elections were held at the units before results brought to me …. I can identify the S/ of results sheets, there are 19 units not 13 as I earlier told the Tribunal”.
Questioned, the witness denied he doctored the exhibits.
Now, it ought to be borne in mind that apart from Exhibits P. 94 and P. 95 all the other Exhibits tendered through ,he P.W.I (C. T. Ohutuibi) are the INEC Forms EC 8A (1) and EC 8B (1) for wards 1.9.10.11. 12 and 13. A quick look at each of these shows that they are signed and they bear the official stamp of INEC.
The effect thereof in my view is that they are presumed regular unless and until the contrary is shown. See Section 150 of the Evidence Act Cap. 112 Laws of the Federation 1990. “Omnia praesumtur acta rite esse”.
From the pleadings and the evidence by the appellant and some of his witnesses in line with the pleadings, it is clear that most or the allegations they made are allegations of criminal nature.
I shall now come to Exhibit R. I which the counsel for the appellant urged us to hold was a fraud. It (Exh. R. I) is dated” 9th January, 1999″. It is a report by the S.P.O.; ward 12. Part of Exhibit R. I. read:-
“The Ward Returning Officer
Ward 12
Akani/Amuruto Ward
Abua/Odual L.G.A
Dear Sir
Electoral Malpractice in Amuruto Community.
I wish to quickly draw your attention to the above subject matter in Amuruto Community. At the above mentioned community Amuruto in ward 12 there was no voting. Electoral materials were taken away by PDP Agents.
Results written and brought by a PDP Agent and also to further confirm what I saw in the field at Amuruto. The result brought are (sic) incomplete. No Security Agent copy, the INEC copies not completed. Based on this I hereby as an S.P.O. in the ward call for a cancellation and rejection of Amuruto Community result.
Yours sincerely
John Basome N.
(Sgd)
S.P.O. ward 12”
Counsel for the appellant had urged us to hold that Exhibit R.I was used for the purpose of excluding the results in Amuruto.
Now, I make haste to remind myself of the role of the Court. This Court can and does evaluate evidence and make a finding provided it be as a matter of an inference or a deduction from admitted or proved facts; undisputed facts. See Bennax v. Austin Motors (1955) A.C. 370 at p. 375. But see also Frank Ebba v. Chief Warri Oguda (1984) 1 SCNLR 372; (1984) 4 S.C. 84. 98/99.
Now, the law may be taken as settled that when an allegation of a crime forms the foundation or a party’s case – then whether civil or criminal – the standard of proof required of him is proof beyond all reasonable doubt. See Section 138(1) of the Evidence Act. The judicial decisions, authoritative and binding on the lower courts on the point are galore. Needless cataloguing them here and now. But see Nwobodo v. Onoh (1984) 1 SCNLR 1; Omoboriowo v. Ajasin (1984) 1 S.C. 206; (1984) 1 SCNLR 108.
On the evidence placed before it, the Tribunal came to the conclusion that the allegations of crime made by the appellants have not been proved beyond reasonable doubt. It remains for me to say that there is nothing in the evidence in the printed cold and silent record before me from which I can readily infer that those allegations were established or proved beyond reasonable doubt.
I shall now proceed to record my resolution of the issues as formulated by the appellants formally. But before I do that, let me say that in the trial court, the plaintiff desires the court to give judgment in his favour and the rule required him to prove his case. However in the Court of Appeal, the successful party has already obtained a judgment which is presumed to be correct and effective unless that presumption is rebutted by the losing party on appeal (See Morris v. Ogden L.U.R. 4 C.P. 687 at 699) which is founded on the maxim “Omnia preasumtur rite et solenniter esse acta”. An unsuccessful party will only succeed in the Court of Appeal on the strength of his case in rebuttal threat. The appellants in this Court have failed to rebut the presumption in favour of the respondents.
I have no difficulty in resolving each of the issues formulated by the appellants against them and on that account in the favour of the respondents. The appeal is lacking in merits. It is dismissed accordingly, with costs assessed in favour of each set of respondents at N 1,500.00 against the appellants.
Other Citations: (1999)LCN/0486(CA)
