Franklin Okonkwo V. Samuel Mbadiwe Onovo & Ors (1999)
LawGlobal-Hub Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.C.A.
There were nation-wide elections into Local Government Councils on 5th December, 1998. Mr. Samuel Mbadiwe Onovo had contested this election on the platform of the peoples Democratic Party (PDP), one of the registered political parties in the country. He sought election to office of a councilor for the Nomeh Ward of Nkanu East Local Government Area of Enugu State. Mr. Franklin Okonkwo had contested the same election and for the same seat as did Mr. Samuel, hereinafter called the petitioner/respondent. Mr. Franklin, who for the purposes of this appeal will be referred as the 1st respondent/appellant contested the election under the umbrella of the all peoples party (APP), another political party. Mr. Sunday Nkumah was fielded by the Alliance for Democracy (AD) as the third contestant. The first respondent/appellant was declared the winner.
The petitioner/respondent approached the Enugu State return Election petition Tribunal praying that the appellant/respondent’s/be declared void and a fresh election for the office of the councillor for the Nomeh ward be ordered. Petitioner’s complaint about appellant/respondent election was based on the following grounds:-
(i) That the election was voided by corrupt practices, irregularities or offences against the Local Government (Basic constitution and transitional provisions) Decree 36 of 1998.
(ii) That the first respondent was not duly elected by a majority of valid votes.
(iii) That the first respondent was not qualified to contest the said election.
The petitioners’ case at the tribunal was that there were no elections at the four booths designated for Nomeh ward. Voting had started in two out of the four booths when thugs led by the All Peoples Party chairman made its continuance impossible. At the two remaining booths, voting had not even commenced before elections were stopped by the same All Peoples Party thugs. Ballot boxes and electoral materials for the four booths were conveyed to the police station for custody and they were so kept there until they were produced at the tribunal for the purposes of the trial that brought about this appeal. The parties to the petition led evidence before the tribunal and in a considered judgment the tribunal voided the declaration of the appellant/respondent and ordered a fresh election as prayed by the petitioners. The appellant/respondent was dissatisfied and came before us with this appeal.
The appellant/respondent filed two grounds of appeal complaining against the whole decision of the tribunal. These grounds are:-
GROUND I
ERROR IN LAW – The election tribunal erred in law when it held that the petitioner/respondent proved his allegations of corrupt practices and offences against the Decree 36 of 1998.
PARTICULARS OF ERROR
(a) The standard of proof required in respect of the said allegation is beyond reasonable doubt.
(b) The evidence of the petitioner/respondent and his witnesses taken together destroyed his case.
(c) No reason was proffered by the tribunal why it rejected the evidence of the 3rd respondent.
GROUND II
The judgment is against the weight of evidence. Briefs of argument were filed and exchanged.
The appellant’s only issue for determination for the purposes of this appeal is:-
Whether, regard being had to the evidence adduced before the tribunal, the petitioner/respondent was entitled to judgment.
On his point, the 1st respondent presented four issues for determination as follows:-
- Whether the evidence of the respondent and prosecution witnesses were properly evaluated.
- What should happen to the uncontradicted evidence of prosecution witnesses.
- What is the effect of inability of the defence to produce voters’ register, documents the defence was given notice to produce and repeatedly asked after.
- Did petitioner discharge all onus of proof placed on him by law?
In appellant’s brief of argument and his counsel’s submission by way of emphasis before us the point has rightly been stated that issue in this appeal relates principally to who told the truth as to what happened on 5/12/98 at Nomeh ward. The appellant contended that the evidence given by the petitioner/respondents’ witnesses were so contradictory that trial court ought to have rejected it. The attention of the court was drawn up to p. 11 of the record of proceedings wherein the testimonies of PW1 and PW2 were recorded. Whereas PW1 stated that electoral materials were distributed to the officials conducting the election on that fateful day at the collation centre – Community primary School, Nomeh, PW2 on the other hand testified to the fact that these electoral materials were distributed to them by the Supervisory officer who went from booth to booth to do so. In the same vain PW1’s evidence that the thugs who disrupted the election were armed with sticks contrasted sharply with that of PW2 who testified that the same thugs were armed with guns. Furthermore, the evidence of PW3 on p.16 stating that he took a ballot box to the police station was in direct conflict with petitioner’s averment in paragraph 8d of his petition that ballot boxes were taken to unknown destination. These contradictions, the appellant’s counsel submitted were not in consonance with the evidence of people who were telling the truth. Mr. B. O. Igwe contended that the trial tribunal ought to have preferred the respondent’s evidence, uncontradicted as it were, that the election on 5/12/98 was quiet, free and fair. Page 22 of the record of proceedings refers. He submitted that DW1 was the electoral officer who had testified and through whom Exhibits D1, D2, D3, D4 and D5 results of the elections recorded on authentic forms were tendered. The trial tribunal did not give reasons why it preferred the evidence of the petitioner to that of the respondent. Mr. B. O. Igwe concluded his submissions by emphasizing the arguments in appellant’s brief to the effect that by virtue of Section 149(c) of the Evidence Act there is a presumption of regularity in respect of election petitions and that where non-compliance with electoral law is alleged the petitioner must carry the burden of proving such allegation as was held in Kudu v Aliyu (1992) 3 NWLR pt. 231 at 615. The standard of proof in such cases where the issue for resolution rests on falsification of results, which is a criminal offence, is proof beyond reasonable doubt. This he said is the import of the decision in Jalingo v Nyame (1992) 2 NWLR 231 at 538.
Counsel then urged us to set aside the judgment of the tribunal and uphold the result of the election of the appellant as councillor for Nomeh ward.
In his arguments, respondent disagreed with the position taken by appellant’s counsel. Mr. Ugwu contended that the testimonies of petitioner’s witnesses were credible, overwhelming and detailed. The evidence touched on how the election was conducted in all the four ballot centres which made up Nomeh and bow the election remained inconclusive. The evidence so adduced, he submitted, remained unshaken, uncontroverted and unchallenged. The evidence of PW3 as corroborated by the other witnesses of the petitioner, Agwu contended, gave a graphic description of what happened at the four ballot centres of Nomeh. PW3, an Inspector of police was attached to Nomeh Police Station for the purposes of the election. He was the one, and he testified as such, who assigned a policeman each to the four polling centres. PW3 it was, and he testified to this effect, which had in his custody the four ballot boxes used for the election. Two of the boxes contained ballot papers while the remaining two were empty since accreditation was in process and election had not commenced at the two ballot centres for the use of the two boxes. In all the centres as indicated on p. 15, 16 and 17 of the record of proceedings, elections were disrupted and remained inconclusive. It is counsel’s submission that where the party’s evidence before the court remained uncontroverted, it is honoured to act upon it. He referred this to the decision of SONSKAN V Military Governor of Ogun State (1995) 1 KLR 193.
Mr. Ugwu went through the evidence of respondent in the petition drawing attention particularly to the fact that DW1 who claimed to be an electoral officer conceded that each ward had to have a different supervisor and a returning officer. Inspite of this. DW1 claimed he assigned DW2 to carry out the job of three different officers. DW2 purportedly carried out the job of a supervisor for two different wards in addition to his being the returning officer and supervisor for Nomeh. Counsel submitted that after watching the demeanor of the witnesses in the course of their testimony and assessing their credibility the tribunal preferred the evidence of petitioner’s witnesses. He argued that there is no reason to justify disturbing the trial tribunal’s findings of facts in relation to the testimonies of the witnesses before it. He made copious references to the record of proceeding and in particular pp. 21, 22 and 23 which carried the testimonies of the respondent’s witnesses.
Continuing his arguments, Ugwu also contended that the four form EC 8A produced as the purported results of the four polling booths in Nomeh ward ought to have been written by four different persons. Exhibits D1 and D2 where, he said, written by one person.
The chances therefore were that the four forms must have been written by less than the required persons.
Answering the issue he formulated as to what attitude courts adopt in dealing with the uncontradicted evidence of witnesses he referred this court to decisions of the Supreme Court: Amadi v. Nwosu (1992) 5 NWLR pt. 241, 273 at 284 and L.S.D.P.C. v. Nigerian Land and Sea Foods Ltd. (1992) pt. 244, 653 at 671. The decisions, he submitted, State that courts are entitled to and should act on such evidence which remain unshaken and uncontradicted as the trial tribunal had done in the petition before it. Counsel finally urged this court to strike out the appeal because the trial tribunal had done the correct thing, evaluated the evidence before it, acted on the uncontradicted evidence of the petitioner as by law it was expected to do.
Careful studies of the various issues formulated by the two sides seem to reveal two questions:-
(a) Did the petitioner adduce sufficient evidence to warrant the finding of the tribunal where the allegation was that the election was voided by corrupt practices, irregularities and offences against the Decree 36 of 1998?: Was the decision of the tribunal against the weight of evidence?
(b) Did the tribunal evaluate the evidence before it in arriving at the decision it did?
Undoubtedly where a petitioner grounds his petition on non-compliance with electoral laws, falsification of results and such other conduct which in them constitutes criminal offences, the burden he places on himself is much greater than he otherwise would be called upon to discharge. Such a petitioner’s burden is one to be discharged beyond reasonable doubt.This is indeed the import in the decisions cited by Appellant’s counsel in Kudu v. Aliyu and Jalingo v Nyame supra. It must be pointed out however at this point that in discharging this greater burden it is the quality and not necessarily the quality of the evidence of such a petitioner that would avail him. It will only be fatal for him if he omits to call available material witness to establish all such important facts that have fallen into issue. The quantum of evidence and the number of witnesses is only dictated on the petitioner on the basis of the necessity to prove his case. See Ohunyon v. State (1996) 3 NWLR 264 at 273 paragraph F – G.
In the present appeal arising out of petition heard below, the petitioner’s case was that he was unlawfully excluded from participating in the election of 5/12/98 into the office of councillor in Nomeh ward. He alleged that elections did not take place at two centres and in the remaining two where voting commenced, voting was disrupted. It was his case that loyalist of the APP caused this disruption. This conduct on the part of members of APP was called thuggery. It is on record that PW3 had testified to the effect that elections did not take place in the two centres and in respect of the other two centres where voting commenced, elections had remained inconclusive. His other witnesses, too, testified to this fact. This evidence remained unshaken and uncontroverted. The tribunal that had the advantage of seeing the witnesses choose to believe the petitioner’s witness and this it was entitled to do.
In Adisa v. Afuye (1994) 1 NWLR Part 318 75 at 79 where it was held:-
“A trial court can rely validly on evidence when that evidence is unchallenged and uncontroverted particularly where it is oral evidence establishing clearly his claim against the defendant in terms of his writ and such evidence was not rebutted by the defence”.
And see also IITA v Amarani (1994) 3 NWLR Part 332, 297 at 315. It was also held:-
“The law is that evidence not controverted or discredited or challenged ought to be accepted as proving an existing or alleged fact. Once it is relevant to the issues joined, it ought to be accepted as the true facts sought to be proved”.
In the first issue formulated by the Appellants, it is argued that wrong probative value had been ascribed to the Respondents evidence by the trial tribunal. The weight of petitioner’s evidence was inadequate to warrant the conclusion drawn by the tribunal.
On our part as an appellate court, one has considered the evidence so adduced at the trial court and one is satisfied that the evidence had been rightly received and correct probative value had been placed on same by the trial tribunal. Having regards to the burden of proof, as the tribunal appreciated in its use of the evidence of the two sides, the scale was in favour of the petitioner/Respondent. The tribunal had found and correctly, in my view that based on the evidence of the two sides election into the office of councillor in Nomeh ward did not take place. On the 1st issue for determination, which pertaining to the weight ascribed to the evidence by the trial court, I am unable to sustain Appellant counsel’s submission. The appeal in this regard has not succeeded.
And this brings us to the 2nd issue for determination: that the trial tribunal did not evaluate the evidence before it. It is the law that this court has the powers under Section 16 of the Court of Appeal Act, 1982, to step into a trial court’s shoes and carry out such evaluation. But not in all cases. Authorities abound as to the circumstances which will justify such an exercise.Evaluation of evidence, most appropriately, is the primary function of the trial court. Evaluation of evidence will only be undertaken by an appellate court if, truly, the tribunal below had done so only in part or not at all. It equally will be the duty of an appellate court to carry out evaluation of evidence in instances where it was shown that although the trial court had done the evaluation of the evidence before it, the court all the same arrived at a wrong and perverse conclusion consequent upon such an evaluation.
Furthermore, it is not sufficient for an appellant as the one in the instant appeal to simply allege that a trial tribunal had not properly evaluated the evidence before it. The appellant carries the further burden of not only pointing out the error he complains about, in addition he has to convince this court that if correction of the errors are made the decision of the tribunal will not stand. See Chukwu V. NITEL (1996) 2 NWLR Pt. 430, 290, at 300 – 301. Kaduna Textiles Ltd. v. Umar (1994) 1 NWLR Pt. 143 at 162. Atolagbe v. Shorun (1985) 1 NWLR Pt. 2 360 Nwokor v. Nwosu (1994) 4 NWLR Pt. 337, 172 at 194.
The appellant having not specified any point of perversity in the tribunals evaluation of the evidence before it and the conclusions drawn therefrom, he leaves me with the firm and unshaken view that the judgment of the trial court must be allowed to stand as it is. The decision of the court below does demonstrate a full, dispassionate and proper consideration of the issues raised before and heard by it. Resultantly the 2nd issue for determination, as the first one, is hereby resolved in favour of the Respondent.
The appeal has, therefore, for the reasons advanced, failed and is accordingly dismissed. The decision of the trial tribunal is hereby affirmed. Respondent is entitled to cost.
I fix this cost at N3,000 against the Appellant.
Other Citations: (1999)LCN/0509(CA)
