Egnr. Nosakhare Isaac Osahon & Anr. V. Hon. Ehiogie West-idahosa & Ors. (2009)
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CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A,
The Appellant in Appeal No.CA/B/EPT/173/08, Hon. Ehiogie West-Idahosa was the 1st Respondent in Petition NO.EDNA/EPT/6/07 at the lower tribunal. He was the Candidate of the 21st Respondent in this appeal, the Peoples Democratic Party (PDP) at the House of Representative election for Ovia Constituency held on the 21/4/07. The 1st Respondent in the appeal, Engr. Nosakhare Isaac Osahon, was the Candidate of 2nd Respondent, the Action Congress (A.C.). The 3rd to 20th Respondents in the appeal were the Independent National Electoral Commission, INEC, and its officials that conducted the said election.
At the conclusion of the election, the appellant was declared victorious and returned as elected. Dissatisfied with the declaration and return, the 1st & 2nd Respondents, as Petitioners, commenced proceedings by way of an Election Petition which they later amended at the lower tribunal by which they questioned the election on two grounds namely:
- That the appellant (1st Respondent at the tribunal) was not validly elected by majority of lawful votes cast at the said election.
IN THE ALTERNATIVE,
- That the election was invalid by reason of corrupt practices and or non compliance with the provisions of the Electoral Act 2006; and then sought the following reliefs:
“(a) That it be determined that the 1st Respondent was not elected by a majority of lawful votes cast in the election and that his election be nullified and his return set aside.
(b) That it be determined that the 1st Petitioner was duly elected by a majority of lawful and valid votes cast and he should be returned as such.
ALTERNATIVELY
(a) That the result declared by the 2nd Respondent returning the 1st Respondent as winner be nullified and INEC be directed to conduct afresh election.
The Respondents filed their various replies to the Petition. Thereafter the Petition proceeded to trial, at the end of which the lower tribunal in its Judgment at page 860 of the record of appeal held that the Petitioners had proved their case of “Corrupt practices, violence and rigging beyond reasonable doubt as well as non-compliance which had substantially affected the election and are entitled to Judgment …..”
It then proceeded to nullify the election and return of the appellant (1st Respondent at the lower tribunal) and to order the conduct of a fresh election.
Dissatisfied with the Judgment, the appellant appealed to this Court on thirty one (31) grounds from which he formulated 9 issues which are not necessary, for their prolixity, to be set out herein.
The 4th Respondent at the lower tribunal also appealed against the Judgment in appeal NO.CA/B/EPT/175/08 and therein raised Ten issues for determination. The Petitioners at the lower tribunal also Cross-Appealed against the Judgment in appeal NO.CA/B/EPT/174/08 and raised only one issue for determination. All the three appeals were consolidated for hearing.
From all the issues formulated by the parties, it is my view that three issues which span the entire garmut of the grounds of appeal in all the three appeals and which cover all the issues variously formulated by the parties in these appeals are discernable and they are:
- Whether from the pleading and evidence the lower tribunal was right in holding that the Petitioners proved their case beyond reasonable doubt.
- Whether there was proper evaluation of the evidence led at the tribunal before the tribunal arrived at its decision.
- Whether the tribunal was right in nullifying the election and return of the appellant and ordering a fresh election.
As these three issues are closely knit together, I propose to take them together.
The summary of the arguments of the Appellants in appeal No.CA/B/EPT/173/08 and Respondent in appeal No.CA/B/EPT/174/08 was that thuggery hijacking of electoral materials and disruption of election which formed the foundation of the Petitioners case at the lower tribunal were criminal offences which ought to be proved beyond reasonable doubt but that the Petitioners failed to proved those allegations as required by law. He argued that the evidence led by the witnesses for the Petitioners were variously at variance with their pleadings, unreliable and contradictory in material particulars.
He further submitted that the tribunal did not evaluate the evidence of the parties before reaching its conclusion that the case of the Petitioner was strong as against that of the Respondent and that the tribunal based part of its Judgment on evidence that were not pleaded.
In his argument, Counsel for the 1st and 2nd Respondents in appeal no.CA/B/EPT/173/08 and Cross-Appellant in appeal No.CA/B/EPT/174/08 submitted that the allegations contained in the Petitions were normal allegations in Election Petition deriving from the Electoral Act 2006 and it was therefore wrong to term them as Criminal in nature which did not require proof beyond reasonable doubt. He argued, however that even if they were criminal allegations, the 1st and 2nd Respondents had proved them as required by law. It is not, he contended, the number of witnesses called, but the quality of such witnesses that matter in a case. On evaluation, learned Counsel for the 1st & 2nd Respondents argued that the tribunal properly evaluated the evidence before it in reaching its decision.
In his argument in the Cross-Appeal No.CA/B/EPT/174/08, Learned Counsel contended that it was wrong for the tribunal to have ordered a re-run election when it had earlier held that the 1st Petitioner had majority of lawful votes Cast at the election. The arguments of Counsel for the Appellant in appeal No.CA/B/EPT/175/08 and 4th Respondent in the Cross-Appeal No.CA/B/EPT/174/08 followed closely those of the appellant in appeal No.CA/B/EPT/173/08.
Counsel for the 4th – 21st Respondents in appeal No.CA/B/EPT/175/08 argued that the election was properly conducted in accordance with all relevant Laws and regulations.
Before I go into the appeal proper, the Preliminary Objection was considered, it is hereby dismissed.
I have carefully considered the pleadings and evidence led at the lower tribunal and the Judgment of the lower tribunal as they relate to the issues in these appeals and Cross-Appeals.
Fundamentally there is no doubt that the foundation for the Petition at the lower tribunal is the ground in paragraph Ten of the amended Petition that the election was invalid “by reason of corrupt practices and/or noncompliance with the provisions of the Electoral Act 2006”.
The particulars in sub-paragraph (i) – (vii) of this ground, and paragraph 11 – 14 at pages 128 – 129 of the record of appeal smack of criminal acts. They are acts clearly forbidden by the Electoral Act 2006. Obviously an allegation of corrupt practices of the nature of those pleaded in the foregoing paragraphs of the amended Petition are criminal allegations which the law requires to be proved beyond reasonable doubt.
See DIGIA V. NANGHANG (2005) All FWLR (PT. 240) 41 at 71
NWOBODO V. ONOH (1984) ANLR Page 1
OMOBORIOWO V. AJASIN (1984) ANLR Page 105
OKOTIE V. OLUGBO (1995) 5 SCNJ. 217.
In its 50 page judgment, apart from devoting 43 pages thereof in reproducing the evidence of the parties and their witnesses and Counsels’ addresses, no where did the Court evaluate the evidence led by the parties and make findings of fact before reaching its conclusion that the Petitioner proved their allegations beyond reasonable doubt. In deed at page 43 of its judgment which is contained at page 854 of the record of appeal, the tribunal observed as follows:
“Having dealt with the Preliminary issues raised by 1st Petitioner’s Counsel, the Coast is now clear to consider the real issues for determination …. ”
One would have expected that having said it would proceed to consider the real issues for determination as it stated above, the tribunal would have proceeded to take the issues, consider the evidence led, evaluate them by putting them on an imaginary scale as enjoined in KOJO V. BONSE (1958) 14 W.A.C.A. Page 242 prefer one side to the other, make findings of fact before reaching its conclusion that the allegations had been proved.
But that was not to be for the tribunal then said at pages 854 – 855:
“but before doing so we think it is necessary to highlight these findings of fact arising from the evidence before the tribunal to wit.”
The lower tribunal then proceeded to set out those findings at pages 855 – 857 under headings 1 – 6.
In my humble view the foregoing findings were far reaching and ought not to have been made by the tribunal without first assessing and evaluating the evidence led before it. There was, therefore, no basis for reaching those findings.
It is upon these findings made without evaluation of the evidence led by the parties that the lower tribunal in its Judgment at page 860 stated that it purported to resolve issues Nos. 1, 2, 3 and 4 before it in favour of the Appellant in the following terms:
“Having come this far, we hold that issue numbers 1 and 3 for determination are intertwined and from the evaluation of the oral evidence of the Petitioners and their witnesses coupled with documentary evidence which we find credible and unassailable as against the Respondent evidence which is feeble and amounted to no rebuttal evidence. In our view, we hold and resolve the two issues in the affirmative in favour of the Petitioners. For the avoidance of doubt, the answer is yes. For issue No.2, we resolve same against the 1st Respondent i.e. the answer is in the negative. The answer to issue No.4 is in the negative ….. ” (underlining supplied).
The question becomes upon which evaluation were the findings giving rise to the resolution of the said 4 issues founded? The obvious answer is; upon no evaluation.
The foregoing serious lapse is sufficient to dispose of the various appeals. But even at that a dispassionate and calm consideration of the evidence led by all the sides in the Petition at the lower tribunal clearly show that the Petitioners (1st and 2nd Respondents in appeal No. CA/B/EPT/173/08) and Cross-Appellants in appeal NO.CA/B/EPT/174/08 on whom the burden of proof of the Criminal allegations in their Petition fell did not prove them let alone prove them beyond reasonable doubt. As pointed out by the Appellant’s Counsel in his brief in appeal No.CA/B/EPT/173/08, most of the evidence led by the Petitioners were either at variance with their pleading as in the evidence of PW2 in respect of Ward 10 and paragraph 1(c) of the Petition; the evidence of PW1 in respect of Ward 5 and paragraph 1(d), the evidence of PW4 in respect of Ward 4 and paragraph 1(f), PW6 under Cross-Examination in respect of 7 Units of Ward 4 and paragraph 1(c) of the Petition; and several other variances between the evidence and the pleading. There were also a number of contradictions in the testimonies of such witnesses as PW4, PW5, PW6, PW14 and PW15. Thus no proof beyond reasonable doubt could have been achieved in the face of these variances and contradictions.
In the light of the foregoing serious lapses in the Judgment of the lower tribunal, the three issues herein are resolved in favour of the Appellants in appeal Nos. CA/B/EPT/173/08 and CA/B/EPT/175/08 and against the Cross-Appellants in appeal NO.CA/B/EPT/174/08.
The grounds of appeal in appeal Nos. CA/B/EPT/173/08 and CA/B/EPT/175/08 Succeed and are allowed, while those in appeal No. CA/B/EPT/174 fail and is dismissed.
The Judgment of the lower tribunal in Petition NO.EDNA/EPT/6/07 including the order nullifying the election and return of the Appellant in appeal No. CA/B/EPT/173/08 (1st Respondent in the Petition at the lower Tribunal) and the order ordering the conduct of a fresh election in the Ovia Federal Constituency of Edo State are hereby set aside.
The election of Ehiogie West-Idahosa as the candidate representing Ovia Constituency of Edo State in the House of Representatives is hereby affirmed. I make no order as to costs.
Other Citations: (2009)LCN/3259(CA)
