Godwin Ohuabunwa V. Basil Duru & Ors (2008)
LawGlobal-Hub Lead Judgment Report
TIJJANI ABDULLAHI, J.C.A.
This appeal is against the judgment of the Governorship and Legislative Election Petition Tribunal sitting at Owerri, Imo State delivered on the 1st November, 2007 wherein the lower Tribunal upheld the election of the 1st Respondent as member representing Onuimo State Constituency in the Imo State House of Assembly.
The lower Tribunal, after adding the votes found to have been wrongly excluded to the scores of the affected candidate held thus:
“1st Respondent is still the winner of the election having scored the majority of lawful votes cast. Having done that, we find no merit in the petition. We accordingly dismiss same”.
Dissatisfied with the decision of the lower Tribunal stated (supra), the Appellant, on the 19th day of November, 2007 filed a Notice of Appeal consisting of seven grounds. The grounds without their particulars are as follows.
“GROUND ONE: ERROR IN LAW
The learned Judges of the Tribunal erred in law when they purported to have delivered the judgment in the petition on the 31st day of October, 2007 when in fact the judgment in the petition was delivered on the 1st day of November, 2007.
GROUND TWO: ERROR IN LAW
The learned Judges of the Tribunal erred in law when they conducted part of the proceedings in the petition in Chambers and not in the open Court.
GROUND THREE: ERROR IN LAW
The learned Judges of the Tribunal erred in law when they held that:
‘PWs evidence as earlier pointed out has no evidential value to constitute an admission of any-sort.’
GROUND FOUR: ERROR IN LAW
The learned Judges of the Tribunal erred in law when they held that the evidence of the PWs 1 and 2 did not amount to an admission to shift the burden of proof to the Respondents to prove that valid election took place in Ofeahia and Ozuimo/Umuaume wards.
GROUND FIVE: ERROR IN LAW
The learned Judges of the Tribunal erred in law when they held that the results wards are valid.
GROUND SIX: ERROR IN LAW
The learned Judge of the Tribunal erred in law when they held that the 1st Respondent scored the majority of lawful votes cast in that election.
GROUND SEVEN: ERROR IN LAW
The judgment is against the weight of evidence.”
The facts of the case that gave rise to the appeal under consideration are that: as was the case in all States of the Federation the independent National Electoral Commission conducted elections into the Imo State House of Assembly on the 14th of April, 2007.
The said Commission through the Electoral Officer Onuimo Local Government Area (hereinafter referred to as the 4th Respondent) declared the 1st Respondent Basil Duru as duly elected having scored the majority of lawful and valid votes cast art the said election.
The Petitioner, Mr. Godwin Ohuabunwa, dissatisfied with the outcome of the election filed petition No. EPT\LH/IM/02/2007 challenging the election/return of the 1st Respondent herein. The grounds upon which his petition was predicated are as follows:
“(i). That the 1st Respondent was not duly elected by majority of lawful votes cast at the election.
(ii). That the election in some areas was invalid by reason of corrupt Practices.
(iii).That the election in some reason of non-compliance with the provisions of the Electoral Act 2006.”
The parties in compliance with Practice Directions No. 2 of 2007 duly filed and exchanged their briefs of arguments. The Appellant’s brief dated 3rd day of December, 2007 was filed on 4th December, 2007. The 1st Respondent’s brief dated 10th December, 2007 was filed the same day. The Appellant filed a reply brief in response to the brief of the 1’t Respondent’ on the 17th December, 2001. The reply brief is dated 15th December, 2007. It is instructive to observe at this juncture that the rest of the Respondents, the Independent Electoral Commission and its staff did not file any brief in this appeal.
From the seven grounds of appeal stated supra, learned Counsel for the Appellant, Mr. D. C. Denwigwe Esq. identified four issues for the determination of this appeal as follows:
“(1) Whether the judgment dated 31/10/07 in the petition is competent (Grounds 1 and 2).
(2) Whether the evidence of PW2 was rightly disbelieved? (Ground 3)
(3) Whether the evidence of PWs 1 and 2 amounts to an admission to shift the burden of proof to the Respondents to prove that valid election took place in Ofeahia and Ozuinmo/Umuanumeze wards (Ground 4)
(4) Whether the results from Ofeahia and-Ozuirno are valid, and that is to say whether the Appellant scored the majority of valid votes in that election (Grounds 5, 6 and 7).”
On the other hand, the 1st Respondent, in a brief settled by Livy Uzoukwu, SAN identified three issues for determination to wit:
“(1) Whether the judgment of the Tribunal is competent.
(2) Whether the Tribunal was right in holding that the election in Ofeahia ward and Ozuimo ward was valid.
(3) Whether the Tribunal was right in holding that the 1st Respondent won majority of the lawful and valid votes cast at the election.”
On the 28th day of January, 2008′ when the appeal came before us for hearing, learned counsel for the Appellant adopted his brief of argument as well as the Appellant’s Reply brief and urged the Court to allow the appeal.
Learned Counsel for the Appellant adopted his brief of argument as well as the Appellant’s Reply brief and urged the court to allow the appeal.
Learned Counsel for the 1st Respondent Mr. Kolawole also adopted his brief urged the Court to dismiss the appeal.
Counsel to the 2nd to 39th Respondents, Mr. Okereke did not file any brief but sought leave of the court to rely on the brief filed by the 1st Respondent. He adopted same as his brief and urged the Court to dismiss the appeal.
A cursory look at the issues formulated by both Counsels would reveal the followings: issue No. 1 formulated by the Appellant is identical with issue No. 1 formulated by the 1st Respondent. Issue No. 4 formulated by the Petitioner is almost identical with issue No. 3 formulated by the Respondent. In essence, the issues are not dissimilar to one another. I am however of the considered view that the formulation by the learned Counsel for the Appellant is preferable in that it is more comprehensive and would determine the real complaint of the Appellant in the appeal under consideration. This notwithstanding, consideration will be given to all the submissions of Counsel on the identified issues outlined above as contained in their respective briefs herein.
On the 1st issue for determination as formulated by the learned Counsel for the Appellant which is whether the judgment dated 31/10/07 in the petition is competent (distilled from grounds 1 and 2) he referred us to pages 260 to 281 of the record and submitted that as per the said pages, the said judgment is dated 31st day of October, 2007 but page 254 of the record, he further submitted shows clearly that the judgment was read on 01/11/07.
Learned Counsel opined that there was no proceeding of the Tribunal on record for 31/10/07.
Learned Counsel drew our attention to the mandatory provisions of Section 36 (3) of the Constitution of the Federal Republic of Nigeria, 1999 and the cases of ABARSHI v C.O.P. (2005) 5 NWLR (Pt. 917) 48, NAB LTD v BAKMENG LTD (1955) 8 NWLR (Pt. 413) 257, NUHU v OGELE (2003) 18 NWLR (Pt. 552) at 273 – E – G and 280 A – G and argued that if the judgment of the Tribunal was delivered on 31/10/07 then it was not delivered in open Court. We were urged to resolve this issue in the negative and hold that the judgment of the Tribunal dated 31/10/07 is invalid and incompetent.
On the other hand, Counsel for the 1st Respondent argued that the record of the tribunal of 1st November, 2007 clearly and unequivocally stated that: Judgment read today 1/11/07. There is no doubt, learned Counsel further argued that the judgment was read or delivered on 1st November, 2007. The Appellant appreciated that fact and his Notice of appeal is clear on the issue the learned Counsel argued.
Now, the question that must be asked and answered from the onset is whether or not there is evidence on record that the judgment of the lower Tribunal was actually delivered not in the open Court. Learned Counsel for the Appellant submitted thus:
“If the judgment of the Tribunal below (sic) was delivered on 31/10/07 then it was not delivered in open Court.”
It needs to be stressed at this juncture that the foregoing submission is the only ground upon which the challenging the competence of the judgment.
It is now settled beyond peradventure that issues are distilled from grounds of appeal and they must be consistent and not contrary to the grounds of appeal. In ground 2 of the Ground of Appeal the Appellant complains thus:
“The learned Judges of the Tribunal erred in law when they conducted part of the proceedings in the petition in Chambers and not in open Court.”
The 1st particular of error in support of this ground reads thus:
“The proceedings in the petition up to the admission of documents were conducted in Chambers not in the open
Court.”
It is to be observed that in the Appellant’s argument in Support of issue 1; he has stretched his complaint to include alleged non-delivery of the judgment in the open. The Appellant, I am of the firm view, must demonstrate consistency. That aside in the Notice of Appeal filed by the Appellant it is crystal clear that he knew that though the judgment is dated 31st October, 2007 it was actually delivered on the 1st November, 2007 it was actually delivered on the 1st November, 2007. Hear him:
“NOTICE IS HEREBY GIVEN that the Petitioner GODWIN OHUABUNWA who is the Petition in that election petitioner (sic) No. EPT/LH/IM/02/2007 in the Governorship and Legislative Houses Election Petition Tribunal sitting at Owerri, Imo State being not satisfied with the decision of that Tribunal delivered on 1st November, 2007 but dated 31st October, 2007…..” (Underlining supplied for emphasis)
I am also of the further view that the date the judgment was delivered does not exist in the realm of speculation. The date of delivery is not a supposition, it is real and the Appellant duly acknowledged same as simply demonstrated supra via their Notice of Appeal.
Again, the fact that the judgment was mistakenly dated 31st October, 2007 did not detract from what is clearly on the face of the record that the judgment was delivered on 1st November, 2007. I am of the considered view that there is nothing on record to speculate about as to when the judgment was delivered. It is axiomatatic from the printed record of proceeding that the said judgment was delivered on the 1st day of November, 2007 It is now trite that a Court of law should and ought not to act on a speculatory address of Counsel no matter how brilliant it is see the case of VIENAGBOR v. BAZUAYE (1999) 9 NWLR (Pt. 620) 533 at 561 pars A – B.
In the cases of ONOJOBI v OLANIPEKUN (1985) 4 SC (Pt. 2) 156 at 163 and AREMU v. THE STATE (1991) 7 SCNJ (Part II) 296 at 310, the Apex Court held the view that not every error or mistake on the part of the Court of trial that will vitiate a judgment. It is only where such error or mistake is so fundamental as to occasion a miscarriage of justice. It is my view and I so hold that the mistake of dating the judgment 31st October, 2007 has not occasioned a miscarriage of justice; far from it’ particularly when the Tribunal stated on record that the judgment was read on 1st November, 2007.
In the light of all that have been said’ this issue is resolved in favour of the 1st Respondent and against the Appellant.
The 2nd issue for determination is whether the evidence of PW2 was rightly disbelieved? (Ground 3). Learned Counsel for the Appellant referred us to page 272 (paragraph 2) of the record wherein the lower Tribunal held thus:
“PW2 did not for a number of reasons impress us as a witness of truth. Apart from lying about her ability to understand and speak English, Exhibit 5 (a) tendered by the 1st Respondent is at variance with the testimony both as to the number of registered voters at the polling unit.”
Learned Counsel after quoting the evidence of this witness i.e.: “PW2 – female, adult, Christian, sworn on the Holy Bible and state in Igbo that my names are Miss Ogechi Abamoba………”
Under cross-examination on the same page:
“My educational qualifications are HND and I have done NYSC. I do understand English language perfectly.”
Learned Counsel submitted that apart from the quoted portions stated supra there is nothing again in the judgment about this witness and English Language. Learned Counsel opined that the fundamental right of the witness to freedom of expression is guaranteed by Section 39 (1) (2) of the Constitution of the Federal Republic of Nigeria, 1999. It is the contention of the learned Counsel that to hold that PW2 is a liar merely because she elected to testify in Igbo language when she understands English language perfectly is to deny the witness her fundamental right to express herself in any civilized language.
Learned Counsel drew our attention to another portion of the evidence of this witness where she testified thus:
“I was given 5 booklets for PPA. Each booklet containing 100 ballot papers. I made a report of the harassment to INEC. It was not a written report. I complaint (sic) to Assistant Electoral Officer……….”
In her sworn deposition this witness stated that she was the presiding Office for INEC in Ofeahia ward 5 and Polling unit 5.
It is the contention of the leaned counsel that the cross-examination of PW2 never touched any of the material facts she stated in her deposition. Learned counsel further contended that without any cross-examination of the PW2 on those material facts, the Respondents are deemed in law to have admitted them and they cannot turn later in the proceedings to lead any evidence to rebut those facts. He relied on the cases of GAJI v PAYE (2003) 8 NWLR (Pt. 823) 583 at 605 A – C and AONDOAKAA v AJO (1999) 5 NWLR (Pt. 602) 206 at 222.
Learned Counsel argued that the tribunal was wrong to reject the unchallenged evidence of the PW2 when the law- on the point is that the evidence is deemed admitted. The witness learned Counsel went on, never testified on the number of registered voters in the Polling Station where she was a Presiding Officer.
It is the submission of the learned Counsel that PW2 was never confronted with Exhibit 5 (a) which the 1st Respondent tendered after the Petitioner had closed his case. The Exhibit 5 (a) cannot therefore be relied upon in the proceedings to make any finding against the PW2 after she had left the witness box, learned counsel further submitted. He referred us to the case of AONDOAKAA v. AJO supra and further submitted that the conclusion which the trial Tribunal drew against the PW2 is not justified by the evidence on record. We were urged to resolve this issue in favour of the Petitioner and against the Respondents.
Learned Counsel for the Respondents on the other hand submitted that contrary to the submission of the learned Counsel for the Petitioner, Exhibit 5 A was already in evidence at the time PW2 testified. It is instructive to state at this stage that PW2 never disowned the entries threat or the writing thereon or the document itself.
Learned counsel listed the material facts in the evidence of PW2 as follows:
“(i) That she was the Presiding Officer for Polling Unit 5 of Ofeahia Ward 5 in that election.
(ii) That the ad hoc staffs were driven to the family compound or the former Executive Chairman of Onuimo Local Government Mrs. Rita Ibemere Okoroafor who ordered that the electoral materials be shared to all the INEC ad hoc staff there to thumb print them all i.e. for PPA for the House of Assembly and APGA for the Governorship Election.
(iii) That the order was carried out under intense supervision of battle ready military officers.
(iv) That she was given 5 (five booklets) for the House of Assembly and 11 (Eleven Booklets) for the Governorship.
(u) That they were thus compelled to give 1,960 for PPA candidate for the House of Assembly and 1,960 for APGA candidate for the Governorship etc. ‘They’ (with all due respect) refers to all of them who were driven to that compound.
That after completing the assignment as stipulated by the said Chairman they submitted the materials to the returning Officer for Ward 5 – One Mr. Ohaegbu who was also present at the Chairman’s Place.
It is pertinent to state at this stage that a careful and meticulous scrutiny of the purported material facts in the deposition of PW2 would reveal the fact that none was linked to the act of the 1st Respondent whose return as the winner of the election is the subject matter of this appeal. For the above listed material facts to have any effect in the election in contention it must be proved beyond reasonable doubt that the 1st Respondent personally or through his agent committed the corrupt act, aided or abetted its commission. See the case of OYEGUN v IGBINEDION (1992) 2 NWLR (Pt. 226) 747 at 759 – 760; OPIA v. IBIRAU (1992) 3 NWLR (Pt. 231) 658 at 708 – 709 and HARUNA v. MODIBO (2004)16 NWLR (Pt.900) 487 at 561 paras G – H.
That aside, the cases of GAJI v PAYE and AONDOAKAA v. AJO (supra) cannot be called in aid of the submission of the learned Counsel on this point. The facts and the circumstances of the two cases are not apposite to the facts and circumstances of the case on hand. The issue for determination in tire former case was whether the Court of Appeal was justified in reversing the finding of the trial Court that the property in dispute is family property and not the personal properly of the first Appellant. In the latter case, a case of Election Petition, the Respondents made an allegation of impersonation against the PW1. But did not confront him with that allegation in the course of his testimony. It was held that the statement made by the Tribunal to the effect that the Appellant should have called PW1 when the uncross-examined allegation was made against him after he had testified and was discharged, is not supported by law.
Learned Counsel also alluded to the fact that Mr. Ohaegbu, mentioned in the deposition of PW2 was never called as a witness to testify in the proceedings. With due respect to the learned Counsel, the non-calling of Mr. Ohaegbu to testify cannot be held against the 1st Respondent for it is trite that he who asserts must prove, Needless to say the burden of proof in the case on hand is on the Appellant against whom the judgment of the tribunal would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. See Section 137 (1) of the Evidence Act, and the cases of AONDOAKAA v. AJO, GAJI v. PAYE (supra). ‘
It is also to be observed that contrary to the evidence before the Tribunal which put the number of registered voters at 1,864, PW2 claimed that the registered voters in the Unit was 96. (See Exhibit 5 (a). This witness (PW2) also stated that she was given 5 booklets of ballot papers and each booklet contains 100 ballot papers, bring the total ballot papers she was give to 500.
Again, contrary to the claim of PW2 that she “allocated” 1,960 to the PPA Candidate for the House of Assembly, Exhibit 5 shows he had 500 votes which is consistent with the number of ballot papers given to her. I have already held else where in this judgment that the Exhibit was tendered before hearing commenced and not after the closure of the Appellant’s case. All I need to add is that PW2 had every opportunity to disown it if she was not the maker, but she never did.
Learned Counsel for the Appellant has made heavy weather of the tribunal’s assessment of PW2’s credibility as a witness.
With due respect to the learned Counsel, it is now trite that the issue of credibility of witnesses is the pre-eminent duty of a trial Court to determine. It is not the function of the appellate Court to interfere with such findings of facts of the trial court if same are supported by evidence unless they are shown to be perverse or occasions a miscarriage of justice. (See the cases of SELE v. THE STATE (1993) 1 NWLR (Pt. 267) p. 276 at p. 282; OHUNYON v. THE STATE (1996) 3 NWLR (Pt. 436) 264 AT 271 paras D – E, WOLUCHEM v. GUNDI (1981) 5 SC p. 29 and SUNDAY NWACHUKWU v BENSON EGBUCHU (1990) 3 NWLR (Pt. 136) 435 at 437.
It was also held thus:
“A trial Judge who heard and saw a witness give evidence in Court is best suited to ascribe probate value to the evidence of such witness and he is entitled to believe part of the evidence of such witness and disbelieve others G.B. OLIVANT & CO. LTD v. MUSTAFA (1927) 7 NLR p. 29 referred to.”
In view of the fore goings, issue No. 2 like the previous issue must be resolved in favour of the Respondents. For avoidance of any doubt I am of the firm view that the evidence of PW2 was rightly disbelieved by the lower Tribunal.
Issue No. 3 is whether the evidence of PW1 and PW2 amount to an admission to shift the burden of proof to the Respondents to prove that valid election took place in Ofeahia and Ozuimo/Umuanumeze Wards? (Ground 4).
Learned Counsel contended that PW1 and PW2 were recruited and deployed by INEC for the election in contention.
They are therefore agents for INEC in the said election. They gave evidence which supports the petition to the effect that proper election did not hold in Ofeahia and Ozuimo/Umuanumeze Wards.
These witnesses learned Counsel further contended were the Field Officers whose postings placed them as the eye witnesses for INEC on the facts about which they testified. Their evidence that due election did not hold in these Wards is the best evidence on that fact. For the purposes of the election they were duly appointed to perform public duties. “Omnia Praesumunturrite esse acta.”
Learned Counsel opined that their evidence which was not contradicted under cross-examination shifted the burden to the 1st Respondent to prove the contrary. He relied on the case of REMY v. SUNDAY (1999) 1 NWLR (Pt. 613) 92 at 105. We were urged to hold that the Tribunal was in error in its decision that the Petitioner did not discharge the primary burden on him to enable same shifts on the Respondents.
The Appellant, in his paragraph 11 of his petition pleaded that there was no election in Ofeahia and Ozuimo Wards. He anchored sane on an alleged act of electoral malpractice perpetracted by one “Mrs. Rita Ibene-Okoroafor a henceman of the 1st Respondent and his party.” He also claimed that the results from the two Wards were mutilated.
The Petitioner further alleged that the said Mrs. Rita lbene- Okorafor, the immediate Past Chairman of the Local Government recruited soldiers and thugs who disrupted the elections, abducted the Electoral Officers and election material and took same to the house of the said immediate past chairman where ballot papers were thumb printed in favour of the 1st Respondent.
It is noteworthy to observe at this stage that in challenging the return of the 1st Respondent, the Appellant as outline above, predicated his case of none holding of the election on allegations of electoral offences. This needless to say has grave implications under the law.
It is now settled that when allegations of corrupt practices or electoral offences are made in an election petition; they must be proved beyond reasonable doubt that indeed they were committed when that is done, there is yet a second hurdle to scale through.
Generally where corrupt practice or offence is alleged in an election, to invalidate the election, the Petitioner must prove the alleged corrupt practice or offence in addition of the following:
“(a) That the 1st Respondent personally committed the corrupt act or aided or abetted, etc the alleged commission of the alleged corrupt practice or offence;
(b) That where the alleged act was committed through an agent, the said agent must have been authorized by the 1st Respondent.
(c) That the corrupt practice or offence affected the outcome of the election and how it affected it.
(d) That the Petitioner must go further to prove that but for the corrupt practice he would have won the election.”
See the cases of OYEGUN v. IGBINEDION; OPIA v. IBRU; HARUNA v MODIBO (supra) and BUHARI v. OBASANJO (2005) 13 NWLR (Pt. 941) 1 at 199 – 200 paras H – A and 264 – 265 paras H- A.
The standard of proof in respect of the allegations of criminality is proof beyond reasonable doubt. Section 138 (1) of the Evidence Act provides as follows:
“138 (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
Needless to say, by virtue of the provision of the above stated Section, a Petitioner who makes an allegation of the commission of a crime the basis of challenging the election of a candidate who was returned, must prove that allegation beyond reasonable doubt.
See the cases of NWOBODO v. ONOH (1954) 1 SCNLR at 27 -28, ADUN v. OSUNDE (2003) 16 NWLR (Pt. 847) 463 at 669 -670 paras H – A and JANG v. DARIYE (2003) 15 NWLR (Pt. 843) at p. 467.
The question to be asked, having stated the law and all that is, can it be said from the evidence adduced by the Petitioner that the allegations of corrupt practices or electoral offences as alleged had been proved beyond reasonable doubt? To answer this question recourse had to be made to the evidence adduced in proof of the allegations by the Appellant.
The Appellant as can be gleaned from the record of proceeding of the Tribunal called two witnesses – PW1 and PW2; while he testified as PW3. Under cross-examination, the Appellant admitted that between 9.50 am – 3. 45 pm he was in detention at Owerri and he did not get back to Onuimo Local Government Area until 5 pm. In paragraph 14 of his petition, he claimed that by the time he got back to quote him “election period was over.”
It needs to be stressed here that oral evidence must in all cases be direct. See Section 77 (a) (b) and (c) of the Evidence Act as well as the cases of BUHARI v OBASANJO 2005) 13 NWLR (Pt. 941) 316 paras G – H and EZEAZODOSIAKO v OKEKE (2005) 16 NWLR at. 952) 612 at 630 – 631 paras A – B. The deposition of the Petitioner is of no evidential value. He cannot legally give account of what allegedly happened between 9.50 am – 5 pm on the Election Day, a period of slightly over 8 hours. I am of the view that his allegation of non-holding of election is at best hear-say as held by the lower Tribunal.
PW1 claimed in his written deposition that “the election was marred by high level electoral malpractices.” He further claimed That Form EC8B results sheet was mutilated. None was tendered by the Petitioner. By paragraph 2 of his written deposition, he purports to cast aspersion on the entire election in the Constituency. Yet there was no evidence he visited the Polling units and collation centres in the constituency. The Tribunal held rightly in may view that his evidence was of no evidential value.
Again, it is instructive to note that the Appellant did not call any Presiding Officer or his agents in the Ward to support the allegation of non-election’ He also did not call one single voter who claimed he went to vote but could not vote on account of the alleged non-holding of election.
The 1st Respondent on other hand to prove that elections took place, though not under any legal obligation to do so; for he who asserts must prove, tendered the Forms EC8A (i) for Ozuimo Ward as Exhibits 4A – GH, 4J – 4N. The Ward result was also tendered as Exhibit 8.To impeach the said exhibits, it is trite that the Appellant must establish that the entries in Form EC8B did not reflect the entries in form EC8AS. Again, the Appellant did not impeach the booth results tendered by the 1st Respondent. After all, it is trite law that booth results contained in Form EC8AS are the primary evidence of votes cast. They are the foundation on which the pyramid of an election process is built. See the case of AWUSE v. ODILI (2005) 16 NWLR (Pt. 952) 515 at 588 paras A – C.
In the light of all that have been said, this issue like the previous ones is also resolved in favour of the 1st Respondent and against the Appellant.
Last but not the least issue for determination is issue No. 4 which is whether the results from Ofeahia and Ozuimo are valid, and that is to say whether the Appellant scored the majority of valid votes in that election (Grounds 5, 6 and 7).
Learned Counsel began his submission on this issue by adopting mutatis mutandi his submissions on issue No. 2 and remarked that PW2 testified on what happened about Ofeahia Ward especially for Polling Unit 5. Learned Counsel argued that the entire 500 ballot papers said to have been used in that polling Unit was credited to PPA. Under cross-examination PW2 stated thus:
“I was given 5 booklets for PPA. Each booklet containing 100 ballot papers. I made a report of the harassment to INEC. It was not a written report. I complaint (sic) to Assistant Electoral Officer. I was trained by INEC prior to the erection at Onuimo Local Government. It was conducted for 2 days a week to the election. We were told at the training that we shall make written reporting (sic) anything happened at the elections.”
Learned Counsel for the Appellant strenuously argued in his paragraph 4.4.6 – 4.4.10 of his brief that in all the seven polling Stations covered by Exhibits 5a – 5g, only the candidates of the PPA, 1st Respondent was credited with votes. All the other candidates scored no votes in all the seven polling Stations. Learned counsel further argued that none of the party Agents including that of the l” Respondent signed the result sheets.
Again, on this issue learned Counsel argued that what happened in the said Polling stations is contrary to the “Manuel for Election officials 2007.” Learned counsel further argued that the said Manuel provides that where there is improper account for ballot papers, the statement of result sheet should be endorsed with the statement “ANOMALLY EXISTS” and the result neither should nor be transmitted. The results for Ofeahia ward were thus afflicted with statutory invalidity.
Learned Counsel contended that the total number of votes wrongfully credited to the 1st Respondent from this Ward is 5000 invalid votes but he was returned with a total of 7, 042 votes as against the total of 6,140 votes for the Appellant. Learned Counsel further contended that the legitimate final result of the election in contention should be PDP 6,923 and PPA 2,108 votes. We were urged to resolve this issue in favour of the Appellant.
For his part, learned Counsel for the 1st Respondent submitted that the issues raised by the Appellant in paragraphs 4.4.6 – 4.4.10 with regard to the votes scored by the 1st Respondent and the non-use of “Manuel for Election Officials 2007” are new issues which were not raised in the tribunal to enable parties canvassed them and for the Tribunal to rule on them. Learned Counsel further submitted that neither the leave of the Tribunal nor the Court of Appeal was sought and granted for the said issues to be raised on appeal. He cited and relied on the case of I.B.W.A. v. SASEGBON (2007) 16 NWLR (Pt. 1095) 195 at 219 paras E – F.
Learned Counsel for the Appellant in his reply-brief contended that the report on Pre-Hearing Session in the trial Court is at pages 242 to 243, In that report the Tribunal recorded that the Appellant hinged his complaint against the return of the of the 1st Respondent on the ground inter alia: “3. That the election in areas was invalid by some reason of non-compliance with the provisions of the Electoral Act. 2006.”
The Tribunal then stated that the 1st Respondent tendered “2.7 No. Form EC8A (l) for Ofeahia Ward – Exhibit 5 (a) – 5 (g).”
Learned counsel argued that the 1st Respondent did not restrict the purpose for which he tendered those statement of results forms EC8A (1) for the Ofeahia ward. Learned counsel further argued that he definitely tendered them to demonstrate his claim that he scored 5000 lawful votes from that Ward.
Learned counsel also referred to the evidence of PW2 when she testified that votes were allotted at the premises of Chief Mrs. Okoroafor and that she was not cross-examined on this point. He urged us to hold that this evidence of PW2 on this point is deemed admitted by the Respondents. He relied on the case of NJIOKWUEMENI v OCHI (2004) 1S NWLR (pt. 895) 196 AT 226.
Learned Counsel submitted that since the validity of the votes in Ofeahia Ward was put in issue it became proper to scrutinize the statement of result to determine the validity or invalidity of the votes.
It is now settled beyond peradventures that there is no trial ambush in our judicial system. Though election petition is sui generis that per se is no justification for springing a surprise on an opponent. In the case of I.B.W.A. v. SASEGBON (supra) it was held inter-alia thus:
“The position of the law is that an Appellant will not be allowed to raise on appeal a point or issue that was not raised, canvassed or argued at the trial without the leave of the Court of Appeal. The only exception is where issue of jurisdiction is involved.”
See also the case of ELUGBE v OMOKHAFE (2004) 18 NWLR (Pt. 905) 319 at 334 paras C – D. The Appellant needless to say did not raise or pretend to raise the issue of jurisdiction. On the non signing of the result sheets by Party Agent, learned Counsel cited and relied on the case of NWEKE v. EJIMS & ORS (1999) 11 NWLR (Pt. 625) 39 at 53 paras F. H. This Court per Akaahs, JCA held thus:
“With the discrepancies in non accreditation coupled with the fact that the Agents did not sign the results, it became clear that the complaint by the Appellant and his witnesses that election did not hold in Ward 13 Ulakwo has been proved.”
Undoubtedly, non-signing of results by Agents of Political Parties if properly pleaded and proved could be a ground for nullification of an election petition. However, the point being canvassed by the learned Counsel for the 1st Respondent is that the non-signing of the results by the Party Agents and the scores of the candidates in the two Wards in contention were neither pleaded nor leave was sought either at the lower Tribunal or this Court to raise it as a fresh issue.
I am of the firm view that it is too late in the day for the learned Counsel to raise it in his address. This being the case, I hold with case that the case NWEKE v. EJIMS is most unhelpful to the case of Appellant.
It is my considered opinion that had the tribunal did what the Appellant claimed it did not; it would have been accused of doing cloistered justice. What the Appellant tried to demonstrate in paragraph 4.4.6 – 4.4.10 of his Brief of Argument, were never demonstrated before the Tribunal. They were not raised in the pleadings and evidence before the Tribunal. It needs to be emphasized at this juncture that the submission of the learned counsel for the Appellant that it did not restrict the purpose for which he tendered those statements of results is not anchored on any legal foundation and cannot be the basis upon which same can be considered in this court. I am of the further view that the issues pertaining to the validity or otherwise of an erection result in an election petition are too fundamental to be left to be implied. Such an issue ought to be pleaded in the pleadings to enable the parties and the trials Court treat same adequately.
That aside, the submission on alleged non-compliance with the Manuel for Election officials 2007 is completely devoid of any merit. Not only was the issue not raised at the tribunal, the Manuel was neither pleaded nor front-loaded or tendered in evidence. In BUHARI v. OBASANJO (supra), the Supreme Court made use of an Electoral Manuel because it was an Exhibit before it.
In the result, this issue like the previous issues treated supra is resolved in favour of the 1st Respondent and against the Appellant.
In sum, with all the issues resolved in favour of the Respondents and against the Appellant, this appeal fails and it is dismissed with N30,000.00 to the 1st Respondent.
Other Citations: (2008)LCN/2724(CA)
