Innocent Ekeh V. Ukachi Amaechi & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

SULEIMAN GALADIMA, J.C.A.

On the 14th day of April 2007 Election was held into the Owerri West Constituency of the Imo State House of Assembly.

The petitioner, now the Appellant was sponsored by the All Progressive Grand Alliance (APGA) while the 1st Respondent was the candidate of the Peoples Democratic party (PDP). Some other registered political parties also fielded candidates in the election.

The 2nd – 5th Respondents returned the 1st Respondent as the winner of the election.

Not satisfied by the said declaration of the result on 15/4/2007, the Petitioner filed his petition at Governorship and Legislative Houses Election Petition Tribunal, Imo State.

The facts in support of grounds on which the petitioner relied in paragraph 6(i) – (xii) of his petition copied on pages 3 – 5 of the record of appeal are as follows:

“(i) After voting at various polling booths in Owerri Local Government Area of Imo State on 14/4/07 the officials of the 2nd Respondent sent the results of the election to the collation centre of Umuguma, the Headquarters of the aforesaid Local Government.

(ii) Collation of results by the 3rd Respondent and his assistants at Umuguma started on 14/4/07 and continued on 15/4/07 when all the results of the said election were collated.

(iii) At the aforesaid collation centre were also agents of the political parties, officials of the 2nd Respondent, Policemen/Police Officers, State Security Service Officers, Civil Defence and National Orientation Agency officials, State and Local Government Officials including Chief Victor Muruako the then Chairman of Owerri West Local Government.

(iv) The collation of result by the 3rd Respondent on 14/4/07 and 15/4/07 and announcement of results by the 3rd Respondent on 15/4/07 were filmed and recorded by a person engaged by the Petitioner. The said film/video recording and recorded tape of these events are hereby pleaded.

(v) After collating the result from the polling stations the 3rd Respondent on 15/4/07 entered the scores in the summary of result from polling stations from EC 8B(1) and announced the scores and or results of the candidates as follows:

(a) Action Congress (AC) 1,838

(b) All Nigeria Peoples Party (ANPP) 366

(c) All Progressive Grand Alliance (APGA 3,307

(d) Justice Party (JP) 46

(e) Labour Party (LP) 601

(f) Peoples Democratic Party (PDP) 3,107

(g) P.P.A. 426

The announcement and or declaration by the Returning Officer (Mr. Abiri Adeboye Stephen) was based on valid returns from the polling stations. The 3rd Respondent announced that the Petitioner scored the highest majority of lawful votes cast at the election and declared him the winner of the said election.

(vi) Thereafter the 3rd Respondent gave copies of summary of results from polling stations Form EC8(B)(1) prepared by and signed by him to the party agents present including the agents of APGA and AC. This document clearly shows the scores of each party and that APGA scored the highest number of votes cast at the said election. This document is hereby pleaded.

(vii) The 3rd Respondent assured the Petitioner that the declaration of result and certificate of return shall be issued and presented to the Petitioner subsequently by the 5th Respondent. The Petitioner was shocked when the 5th Respondent later announced and declared that the 1st Respondent won the said election and ascribed bogus scores to her.

(viii) After the announcement of the results collated by the 3rd Respondent at said collation centre as aforepleaded, the Respondents proceeded to doctor and concoct the result and ascribed scores to the candidates. The doctored and concocted results which the 3rd Respondent subsequently declared are as follows:

(i) Ekeh Innocent N. (APGA) 4362

(ii) Amaechi Ukachi – 31853

(iii) Amadi Onyemauche (LP) – 1726

(iv) Okoroafor Onyemechere (ANPP) 1343

(v) Ijegbulam Akujobi (AC) – 3790

(vi) Amadi Kelechi (PPA) 2106

(vii) Kelvin Eleluwa (JP) – 2438

(ix) The 1st Respondent is a person not qualified to contest the said election in that the affidavit sworn to by the 1st Respondent in the High Court of Imo State Owerri Judicial Division in keeping with the provisions of Section 32 (2) of the Electoral Act 2006 is false.

(x) The 1st Respondent falsely deposed in the said affidavit that she graduated from the University of Jos and annexed a testimonial purportedly issued by the University of Jos. The 1st Respondent did not graduate from the University of Jos and the said testimonial was not issued by the University of Jos.

The said affidavit with the annexure are pleaded as well as documents from the said University.

(xi) The 1st Respondent also falsely deposed in the said affidavit that she undertook the compulsory National Youth Service and annexed a certificate purportedly issued to her by the National Youth Service Corps.

(xii) The 1st Respondent did not win the election rather the Petitioner scored the majority of lawful votes cast at the said election.”

Pleadings were filed and exchanged. The 1st Respondent’s Reply is contained at pages 44 – 52 of the record. The 2nd – 5th Respondents’ Reply is at pages 37 – 39. The petitioner testified as PW1 and called two other witnesses – PW2 and PW3 who were his collation agent at the LGA level and a Video man he employed to cover the said election collation respectively. The petitioner tendered Exhibits 1 and 2. The 1st Respondent testified as DW4 and called two other witnesses namely DW1 and DW2, who were her party agents at the LGA collation centre. The rest of the respondents called one witness, DW3 the 3rd Respondent who was the returning officer for the election in Owerri LGA.

The lower Tribunal in its considered judgment found that there was no merit in the petition of the petitioner and accordingly dismissed it. Aggrieved by this decision the petitioner appealed to this court on 25/3/2008. The Notice of Appeal contains FIVE GROUNDS of appeal. Briefs of the respective parties were filed and exchanged. In his brief of argument the Appellant distilled FOUR ISSUES for determination of the appeal as follows:

“(1) Whether the Honourable Tribunal was correct when it found that the Petitioner did not state the scores of the candidates at the election in compliance with Paragraph 4(1)(c) of the 1st Schedule to the Electoral Act 2006 notwithstanding the Petitioner’s averment of the scores announced at the completion of collation at the collation centre at Umuguma. – Ground 1.

(ii) Whether it was proper to make a preliminary issue of the real or correct scores of the candidates at the election without consideration of the evidence before the tribunal having regard to the fact that the crux of the issue in the petition is as to what constitutes the real scores of the candidates and which, of the scores constitute the real result of the election – Ground II.

(iii) Whether the tribunal was right in refusing to return the petitioner as winner of the election having regard to the admitted facts in the pleadings, the depositions of the Respondents and the contents of Exhibit 2 (the video tape) tendered and admitted by the Honourable Tribunal. – Ground iii & v

(iv) Whether the Returning Officer had any powers to produce another result or scores of the candidates other than as determined or announced at the close of collation at the collation centre, having regard to the provisions of the Electoral Act 2006 or the guidelines to the Elections 2007. – Ground IV.

In his brief of argument, the 1st Respondent has raised TWO issues for determination thus:

(a) Whether the trial Election Tribunal was right in upholding the declaration and return of the First Respondent as the winner of the election held on 14/4/2007 for Owerri West State Constituency having regard to the state of the pleadings and the evidence (oral and documentary) on record – Grounds 3, 4, and 5.

(b) Whether the petition was competent having not complied with the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act. 2006. Grounds 1 and 2.”

The 2nd – 5th Respondents in their brief of argument have Presented the following TWO ISSUES for determination:

“(a) Whether the petition is competent having not complied with the mandatory provisions of paragraph 4(1)(c) of the first schedule to the Electoral Act.

(b) Whether the Tribunal was right in upholding the declaration and return of the 1st respondent as the winner of the election.”

The two issues framed by the 2nd – 5th Respondents are apt, relevant and their resolution will determine this appeal. I adopt them as the main issues in the appeal. I shall now consider the issues.

ISSUE NO. (a)

This is appellant’s issue No. 1. It has to do with compliance with paragraph 4(1)(c) of the 1st Schedule to the Electoral Act 2006. Learned counsel for the Appellant argued this appeal on 13/5/2008. This issue was taken together with issue II in the appellant’s brief of argument. Learned counsel for the Appellant, CHRIS O. AHUMIBE Esq has conceded that the lower Tribunal at page 196 of the records, in its judgment, struck out the petition for being incompetent having held that it failed to comply with the said paragraph 4(1)(c)(6) of the Electoral Act. It is submitted that by the provisions of sections 68 and 69 of the Electoral Act 2006 and the Electoral Guidelines, the score of candidates at the election are determined and announced at the end of collation at the collation centre. It is the case of the Appellant that a result was announced at the end of collation at Umuguma Collation Centre. It is contended by the Appellant that the scores as allegedly announced and stated at paragraph 6(v) of the petition were the figures or scores as announced and admitted by the 2nd – 5th Respondents in their Reply filed on 8/6/2007 at paragraphs 7 and 8 thereof copied at page 38 of the Records. That whatever is admitted by a party in a proceeding needs no proof. Reliance was placed on the case of EGBUNIKE v. ACB LTD (1995) 2 SCNJ 58.

It is further submitted that by virtue of provisions of section 69(c) the results as initially or originally announced cannot be changed or superseded by any other contrived figures except the proceeding of the Election Tribunal. That it does not matter whether the last scores were arrived at on a second calculation or entered into form EC8E(1). Reviewing the depositions and evidence of Mr. ABIRI, the Electoral officer who testified as DW3, learned counsel, has urged this Court to hold that the proper scores of the respective candidates who participated in the election was determined after the collation of result at the collation centre and has been clearly stated in paragraph 6(v) of the petition. For this reason paragraph 4(1)(c) of the Electoral Act was duly complied with. It is submitted that the instant case is distinguishable, on its detailed facts, from the cases of NNAMDI ERIOBUNA & ORS. v. IKECHUKWU OBIORA (1999) 8 NWLR (PT. 616) 622 and JEMIDE v. HARRIMAN (2004) ALL FWLR (PT.233) 1765. That in those cases there was no admission that scores of the candidate have been announced by the Returning Officer as in this case. Further that the issue is not the same with the instant case where the result was announced at the end of collation, but altered while writing Form EC8E(1). Without prejudice to the above argument. Learned Counsel submitted that the question or issue of compliance with paragraph 4(1)(c) of the Electoral Act 2006 has been settled in the ruling of the Tribunal at pages 109 – 116 of the records where it held that the Tribunal was satisfied that the petition contains the scores of the candidates. It is submitted that having ruled on the issue the only option open to the Respondents is an appeal. That he is estopped from raising the issue for the second time as a preliminary point as was done by him in his address in paragraph 3.1 at page 162 of the Records. He relied on section 55(1) of the Evidence Act and the case of AJAKAIYE v. MILITARY GOVERNOR, BENDEL STATE (1993) SCNJ page 242.

It is contended that the operative word in paragraph 4(6) may, gives the Tribunal some discretion in the matter. It is on that basis that a situation where the crux of the matter is the determination of the official result, it will be inappropriate to determine the matter as a preliminary issue without consideration of evidence and pleadings. It is submitted that in OWURU v. INEC (1999) 10 NWLR (pt.622) at page 201, this court declined the invitation to declare the petition incompetent for not specifying the scores of the candidate. The reason for the refusal was that the scores of the parties were not in issue. It is submitted that in determining the official scores of the candidates Exhibit 40 (Form EC8E(1)) cannot override the admission of the electoral officer and the content of his deposition on oath as parties are bound by the case they present to court. Reliance was placed on the case of FAGBERO v. AROBADI (2006) ALL FWLR (pt. 810) 1575 at 1596 and that admitted facts need no further proof: EGBUNIKE v. ACB LTD (1995) 2 SCNJ 58.

On the other hand, learned counsel for the 1st Respondent has contended that the petition is incompetent for non-compliance with the mandatory provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2006 and the Tribunal was right to have so held and accordingly struck out the petition. That since the scores are in dispute there is no option than to adhere strictly with the provisions of the said paragraph 4(1)(c) (supra). He relied on the case of ERIOBUNA v. OBIORAH (1999) 8 NWLR (PT. 616) 622 at 638; JEMIDE v. HARRIMAN & ORS (2004) ALL FWLR (PT. 233) 1765.

On the issue of non-pleading of the scores of the candidates, learned counsel submitted that it is an issue of jurisdiction which can be raised at any stage of the proceedings. He relied on NDIC v. NBC (2003) 7 NWLR (PT. 766) 272; AJADI v. AJIBOLA (2004) 16 NWLR (PT. 898) 91.

On the contention of the Appellant that once a result of an election is determined it is no longer open to correction, unless through the process of the Tribunal, citing the case of ABANA v. OBI (supra); Learned counsel for the 1st Respondent submitted that OBI’S case is distinguishable from the instant case, wherein the Tribunal held that on the basis of the evidence before it there was no time the 2nd – 5th Respondents declared the petitioner as the winner of the election. That the evidence tendered by the Appellant (Exhibits 1 and 2) were held to be unreliable and valueless.

It is submitted that after Exhibits 39 and 40 had been made no correction can be made on them thereafter. We are urged to discountenance the Appellant’s attack on the computation of the results with reference to the results of the polling units as the 2nd – 5th Respondents did in the instant case. That section 69 of the Electoral Act 2006 is in favour of the Exhibits 39 and 40. It is finally submitted that the decision of the Tribunal was supported by the evidence on record and did not occasion any miscarriage of justice.

Learned counsel for the 2nd – 5th Respondents, on the issue of whether the petition of the Appellant was competent or having not complied with the mandatory provisions of paragraph 4(1)(c) of the First schedule to the Electoral Act 2006 compared the two results pleaded by the Appellant. The first result of the election which was pleaded in paragraph 6(vii) of the petition indicated the Appellant as a candidate of the All Progressive Grand Alliance (APGA); had 3,307 and the 1st Respondent of the peoples Democratic Party (PDP) had 3,107. At paragraph 6(v) of the petition the Appellant pleaded all the scores of the candidates as concocted result. This gave the Appellant of APGA, 4,362 and PDP 31.853. Appellant claimed the first result was the one declared by INEC at the Local Government Area collation centre Umuguma as contained in Exhibit I (Form EC8B(1)).

It is submitted by the learned counsel for the 2nd – 5th Respondents that Exhibit 40 shows that official scores of the election, the Appellant did not score the majority of lawful votes cast at the election. That Exhibit 40 is supported by booth by booth result of the election. It is contended that the Appellant did not plead the official scores declared by INEC as contained in Exhibit 40. He relied on ERIOBUNA v. OBIORAH (1999) 8 NWLR (PT. 616) 222 at 638 and submitted that a petitioner is under a legal duty to indicate the official scores lf the electoral body, and not what he thinks or ought would be the scores. That where an election petition does not comply with the mandatory requirements of the law, a Court or tribunal of competent jurisdiction is entitled to strike out the petition. He relied on CHAJOK v. KAP (1999) 3 NWLR (PT. 394) 220; JEMIDE v. HARRIMAN & ORS. (2004) ALL FWLR (PT. 233) 1765. It is submitted that the authority of OWURU v. INEC (1999) 10 NWLR (PT.622) 201, cited by the Appellant is against the Appellant’s position, as it makes pleading of the official scores of the election mandatory especially where the scores are in issue as in the instant case.

On the contention of the Appellant that the notice of preliminary objection had been finally determined, learned counsel contended that a perusal of the ruling of the lower Tribunal contained at pages 109 – 116 particularly page 112 of the record shows that the Tribunal held that the objection was not to be raised as a preliminary point but the point can be raised at the trial as a defence for the 1st Respondent. That the Tribunal agreed with the contention of the Appellant at page 94 of the record that any defect not approved on the face of the petition must wait to be addressed at the hearing of the petition after issues would have been joined and evidence taken.

It is finally submitted that the issue of the non-pleading of scores of an election is issue of jurisdiction which can be raised at any stage. He relied on NDIC v. CBN (2002) 7 NWLR (PT.766) 222; AJADI v. AJIBOLA (2004) 16 NWLR (PT. 898) 91. It is urged that this issue be resolved in favour of the Respondents.

I shall now consider this issue. The result of the election which the Appellant stated at page 3 of the record and in paragraph 6(v) of the petition is as follows:

(a) Action Congress (AC) 1,838

(b) All Nigeria Peoples Party (ANPP) 366

(c) All Progressive Grand Alliance (APGA) 3,307

(d) Justice Party (JP) 46

(e) Labour Party (LP) 601

(f) Peoples Democratic Party (PDP) 3,107

(g) P.P.A. 426

At paragraph 6(viii) of the petition copied at page 4 of the record, the Appellant pleaded the following scores said to be “doctored” and “concocted” result declared by the 3rd Respondent as follows:

(i) Ekeh Innocent N. (APGA) 4,362

(ii) Amaechi Ukachi – 31,853

(iii) Amadi Onyemauche (LP) – 1,726

(iv) Okoroafor Onyemechere (ANPP) 1,343

(v) Ijegbulam Akujobi (AC) – 3,790

(vi) Amadi Kelechi (PPA) 2,106

(vii) Kelvin Eleluwa (JP) – 2,438

The above averments were denied by the 1st Respondent in her Reply at paragraphs 4 and 8 at pages 45 and 46 of the Record of Appeal. The results pleaded thereat by the 1st Respondent is in agreement with paragraph 3 of the 2nd – 5th Respondents’ Reply at pages 37 – 39 of the record, which stated the official result of the election as follows:

(i) Ekeh Innocent (APGA) 3,306 votes

(ii) Amaechi Ukachi N. (PDP) 4,995 votes

(iii) Okoroafor Onyemechere (ANPP) 354 votes

(iv) Ijegbulam Akujobi (AC) 1,818 votes

(v) Amadi Kelechi (PPA) 413 votes

(vi) Kelvin Eleluwa (JP) – 41 votes

The argument and contention of the Appellant’s counsel in the brief is that the 2nd – 5th Respondents admitted the result as pleaded by the Appellant at paragraph 6 of the petition (adumbrated above), in paragraphs 7 and 8 of their Reply. The Appellant’s prompting on this issue has elicited my careful perusal of paragraphs 1, 3, 4, and 5 – 10 of the said Reply copied at pages 37 – 39 of the Record. These paragraphs clearly show that the issues were pointedly joined by the 2nd – 5th Respondent on the scores pleaded by the Appellant. The evidence of DW3, Mr. A.S. ABIRI, the Returning Officer, and the ward results tendered in Exhibits 23 – 40 show that the case of the 2nd – 5th Respondents was that the Appellant did not score majority of lawful votes cast at the disputed election. The issue as to who won majority of lawful votes at the election was extensively addressed by the parties at the lower Tribunal. I agree with the learned counsel for the 2nd – 5th Respondents that this would not have been an issue if the scores of the candidates as pleaded by the Appellant were admitted by the electoral officials. The Tribunal resolved the issue in favour of the 1st Respondent in its judgment on page 195 of the Record thus:

“Having held that the official scores of the candidates are those stated in Exhibit 39, the petitioner must state those scores first before pleading any other scores. The scores stated at paragraphs 6(v) and (vii) of the petition are certainly not the same as those found in Exhibit 39. Since the petitioner has argued that new set of scores was declared by the 5th respondent, he should have stated those scores which must be the same as those in Exhibit 39. We have compared them and they are found to be diametrically different. It follows therefore that the petitioner did not state the official scores of the candidates.”

The above is the finding of the Tribunal. It is borne out of the record before it. A careful look at paragraph 6(v) and (vii) of the petition shows that the Appellant failed to plead the scores as officially declared by the INEC. The question is what is the effect or consequence of the failure. In ERIOBUNA v. OBIORAH (supra) this court interpreted paragraph 5(1)(c) of the 5th Schedule to the National Assembly (Basic Constitutional and Transitional Provisions) Decree No. 5 of 1999, which is in pari materia with paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2006 held thus:

“Here the petitioner is under a legal duty to indicate the official scores of the electoral body (INEC) and not what he thinks or though should be the scores. He can reserve that to any subsequent paragraph in the petition. All that paragraph 5(1)(c) requires is the law official figures of the Electoral body (INEC).”

This court, later in the passage concluded thus:

“Where an election petition does not comply with the mandatory of the law, a Court or Tribunal of competent jurisdiction is entitled to strike out the petition. In this case, the petition of the Respondent is void ab initio for failure to comply with the mandatory requirements of Decree No. 5 of 1999: CHAJOK v. KAP (1999) 3 NWLR (Pt.394) 220.”

The contention of the Appellant is that once a result of an election is determined it is no longer open to correction, unless through process of the tribunal. This contention is predicated on the case of ABANA v. OBI (supra). I agree with the learned counsel for the 2nd – 5th Respondents that the facts of that case are distinguishable from the instant case. In the instant case the lower Tribunal held at page 201 of the Record as follows:

“The position of the Law is that there is a presumption of correctness and genuineness in favour of any result declared by INEC until the contrary is proved. The petitioner has failed to rebut this presumption. The Returning Officer (DW3) denied ever making Exhibit 1 and the petitioner was unable to establish that he did so. Exhibit 2 is infected by one major contradiction: two sets of votes for the 1st Respondent to the extent that it cannot be relied upon without the base results from the booths.”

Relying on the authority of BUHARI v. OBASANJO (2005) ALL FWLR (PT. 273), the Tribunal did not find basis to disturb the declaration made by Returning officer (DW3) in favour of the 1st respondent. It held that on the basis of evidence before it, there was no time the 2nd – 5th Respondents declared the Appellant as the winner of the election. Exhibits 1 and 2 tendered by the Appellant were held to be incredible, unreliable and valueless.

It is also the contention of the Appellant that the notice of preliminary objection had been finally determined by the Tribunal.

I have perused at the ruling of the lower Tribunal contained at pages 109 – 116, particularly page 112 of the record. The Tribunal had held that the objection was not to be raised as a preliminary point, but the point can be raised at trial as a defence for the 1st Respondent. Reliance was placed on the cases of JANG v. INEC (2004) 12 NWLR (PT. 886) 46; ADEBUSUYI v. ODUYOYE (2004) 1 NWLR (PT. 854) 406. The Tribunal agreed with the contention of the appellant at page 94 of the record that “any defect not apparent on the face of the petition must wait to be addressed at the hearing of the petition after issues would have been joined and evidence taken.”

For these reasons issues I and II are resolved against the appellant.

Appellant in his brief argued the issues (iii) and (iv) together.

For the Respondent, her counsel argued this under issue No. 1. The question is whether the trial Tribunal was right in upholding the declaration and return of the First Respondent as winner of the election held on 14/4/2007 for the Owerri West State Constituency having regard to the state of the pleadings and the evidence on record.

The case of the Appellant is that after conclusion of election in the constituency, the results obtained were collated at the collation centre Umuguma and the scores of the candidates announced by the Electoral Officer were that: Action Congress-1,838; All Nigerian Peoples party – 366; All progressive Grand Alliance – 3,307, Justice party – 46; Labour party – 601; peoples Democratic Party – 3,107 and PPA- 426.

In response to the case of the Appellant, 1st Respondent in her Reply to the petition at pages 44 – 51 of the Records paragraphs 9 – 10 averred that following protests by the 1st Respondent and her teaming supporters the results of the IHIAGWA, AMAKOHIA-UBI/NDEGWU and EMEABIA/OKOLOCHI wards were recalculated and corrected.

That it was discovered that the 1st Respondent scored the highest number of lawful and valid votes cast at the election.

In the reaction of the 2nd – 5th Respondents to the case of the Appellant, in their Reply, contended that the results which gave rise to the figures referred to in paragraph 6 of the petition, existed but it was a product of a mix-up in collation of results. Referring to the testimony of 1st Respondent under cross-examination at page 152 of the records it is submitted that any corrections arising from the three wards had been corrected at the Umuguma Collation centre. That 1st Respondent had admitted that the scores of the candidates were produced at the Umuguma Collation centre. It is submitted that having admitted that results of scores of candidates were produced at the collation centre, the onus is on the Respondents to prove exactly what happened and the circumstances which brought about the change in the result as well as the justification of the purported correction of results already obtained after initial collation at the Collation Centre at Umuguma.

It is submitted that the learned Judges of the Tribunal erred in evaluating the evidence adduced by the Respondents on the issue of existence of arithmetical errors to justify and form a recompilation of the results or awarding of votes to the 1st Respondents in the three wards above referred.

It is contended by the learned counsel for the Appellant that throughout the judgment of the Tribunal the relevance or admissibility of Exhibit 2, the Video tape tendered by the Appellant’s witness showing the recorded events during collation at Umuguma, was not put in issue. It is submitted that Exhibit 2 has a very compelling force and a high evidential value. That it cannot be wished away or dismissed by mere denial or allegation of “doctoring” or forgery without any evidence or demonstration of the alleged doctoring or forgery. The court is urged to uphold the authenticity of Exhibit 2 the video tape of the events at the collation centre, and accept the results declared therein as the results of the election.

Learned counsel for the 1st Respondent, M.O. NLEMEDIM. Esq., examining extensively the evidence before the Tribunal offered by the Appellant generally and the averments in the petition, submitted that it was not in dispute that the election was peaceful. That the ward results were therefore not an issue in the petition at the Tribunal. That the Appellant has equally shown that he was in possession of the polling units which he got through his agents but wonders why he did not tender even one of them. That this was why the lower Tribunal was urged to invoke the provisions of section 149(d) of the Evidence Act against the Appellant and hold that if the polling units results had been tendered by the Appellant, they would be unfavourable to him.

On Exhibit 2, the video clip tendered by the PW3, whose service was secured to cover the filming of the collation exercise at the Local Government level; it was submitted that the Tribunal made a definite finding on it; that the Tribunal found that it is not reliable and not clear after playing it several times over. That the Tribunal also accepted the evidence of DW2 that the voice of the person in the video clip was not his. This court is urged not to interfere with these findings of fact made by the Tribunal because they are not perverse or not supported by evidence on record. Reliance was placed on the cases of AJIBULU v. AJAYI (2004) 11 NWLR (pt. 885) page 458; OGIDI v. THE STATE (2003) 9 NWLR (pt. 824) 1.

On Exhibit 1, the INEC summary results from polling stations, Form EC8B(1), relying on the long passage of the lower Tribunal at page 199 of the record, learned counsel submitted that the findings of the Tribunal based on the evidence of DW3 on the falsity of the said Exhibit 1 were unassailable. This court is urged to uphold same. On the whole the court is urged to resolve this issue in the positive and hold that the preponderance of evidence before the Tribunal clearly established that the 1st Respondent scored majority of lawful votes cast at the election and was duly returned.

Learned counsel for the 2nd – 5th Respondents, C.U. EKOMARU Esq., having adopted this issue for determination, contended that all the parties to the petition agreed that the election conducted by the Respondents on 14/4/2007 was fair and free. Hence, the booth and ward results were not in issue in the petition. That the only issue is that of whether the 1st Respondent was rightfully declared, the Appellant having claimed that he was declared the winner. It is submitted that the only document which the Appellant has to prove that he was declared the winner of the election is Exhibit 1. That he had given evidence that he saw the booth to booth results and that his agents collected copies from the various booths but failed to tender these booth by booth results to support Exhibit 1. That PW2 admitted that he received copies of results at page 123 of the Record, but none was tendered. He submitted therefore that the Tribunal rightly, invoked section 149 of the Evidence Act against the Appellant.

On Exhibit 2, the video tape tendered by PW3, purportedly made at the collation of result at the LGA level, it was submitted that the Tribunal made a definite finding that it is neither clear nor reliable. That in the video tape a man purported to be the 3rd Respondent was seen announcing results which declared the Appellant a winner of the election, but no where in the video could anyone see the said declaration. It is submitted that an appellate court cannot interfere with the findings of fact of a trial court unless it is perverse or not supported by evidence on record: AJIBULU v. AJAYI (2004) 11 NWLR (PT. 885) page 458 at 476 – 477 and OGIDI v. STATE (2003) 8 NWLR (pt. 524) page 1 at 22. That this is more so where the finding of the lower tribunal was based on the credibility of the witnesses. That the Tribunal played the tape several times over in open court and came to the conclusion that it was not clear and therefore unreliable.

Submitting further, learned counsel said that by the INEC MANUAL pages 39-40 which was tendered in evidence as Exhibit 41, a declaration of result in an election is made upon a Form EC8E(1). That the petitioner did not tender any such form to substantiate his claim that he was declared the winner of the election. It is contended that Form EC8B(1) – Exhibit 1, tendered as result collated at the LGA Collation Centre was undated and unstamped document signed by a Ward Returning officer and it was later cancelled and word “Local Government” superimposed on the word “WARD.” That the person who cancelled and initialed it was not disclosed. That DW3 in his evidence under cross-examination denied making the document as he was not the Ward Collation officer. That his evidence that it was his duty only to receive results from the Ward Collation officers was not debunked. It is contended that the findings of the Tribunal at page 199 that appropriate procedure and form were not adhered to in recording the result as provided by the 2007 Manual For Election officials. But that on the other hand, the Respondents proved that the 1st Respondent scored majority of lawful votes cast at the election. In proof of this Exhibits 23 – 40 were tendered and admitted in evidence. It is further contended that from the law results from the polling units which were duly collated at the respective wards in Owerri West Local Government Area, it was proved convincingly that the result on Exhibit EC8C(1) (Exhibit 39) was supported by the undisputed results from the polling booths. The same is applicable to Exhibit 40 – Form EC8E(1) declaration of Result Form. That they are presumed correct and authentic. Reliance was placed on the cases of FINEBOY v. BROWN (1999) 4 NWLR (Pt. 600) 613; ONOYOM v. EGARI (1999) 5 NWLR (PT. 603); INEC v. RAY (2004) 14 NWLR (PT. 892) 92 and HASHIDU v. GOJE (2003) 15 NWLR (PT.843) 438.

On the allegation of alteration or change of results of the election by the 3rd Respondent, learned counsel contended that DW1, DW2, DW3 and DW4 who were eye witnesses at the Collation Centre gave a graphic and credible account of what happened at the Collation Centre. That evidence of DW3 supported by that of DW1, DW2 and DW4 was that the chaotic situation at the Local Government Headquarters necessitated the movement of the 3rd Respondent who was escorted to INEC State Headquarters, Owerri, where a careful computation of the results were made and accordingly entered in Form EC8C(1) and EC8E(1). These are Exhibits 39 and 40 respectively. That the Tribunal duly accepted the explanation of DW3 on the circumstances surrounding the collation and declaration of the results in Exhibits 39 and 40. We were urged not to disturb the Tribunal’s findings.

On the question of failure of the lower Tribunal to attach weight to Exhibits 1 and 2 tendered by the Appellant, learned counsel submitted that admissibility of a document in evidence is one thing and the weight the court will attach to it is another. That it is the duty of the trial court to ascribe probative value evidence placed before it. Reliance was placed on the case of MUSA ABUBAKAR v. E.I. CHUKS (2008) ALL FWLR (PT.408) 207 at pages 221 – 222. it is submitted that the Tribunal is not bound to believe Exhibits 1 and 2 which were discredited and incredible. Learned counsel has urged the court to resolve this issue in positive and to hold that the preponderance of evidence before the Tribunal clearly established that the 1st Respondent scored majority of lawful votes cast at the election.

Now to the determination of this issue. The question is whether, from the evidence before the Tribunal, there was any credible evidence offered by the Appellant to prove that he won the election, the subject of the petition. The petition of the Appellant is contained at pages 1 – 6 of the record. At paragraph 6(i) of the petition averred thus:

“(i) After voting at various polling booths in Owerri West Local Government Area of Imo State on 14/4/07 the officials of the 2nd Respondent sent the results of the election to the Collation Centre at Umuguma, the Headquarters of the aforesaid Local Government.”

This averment was supported by paragraph 3 of the Appellant’s written statement at page 14 and paragraph 2 of the Written Statement of Bobby Benson Ibekwe (PW1) at page 20 of the Record. At page 125 of the record, PW2, the Appellant, inter alia stated that he made a deposition on oath in support of his petition, that he collected results from his party agents. He adopted the said deposition as his evidence in the proceedings.

The Appellant (PW2) further stated under cross-examination at page 126 of the record that he participated in the peaceful election of 14/4/2007. He voted. He had agents in all wards and booths and units.

From the above it is not in dispute that there was peaceful election at polling booths and ward collation centres. The Appellant has shown that he had access to the polling units results.

At page 125 of the record, the Appellant stated under cross-examination that he received a list of results from his agents Strangely, he did not tender even one result. He did not give any explanation. This was why the lower Tribunal was urged by the Respondents to invoke the provisions of section 149(d) of the Evidence Act against the Appellant and to hold that if the polling units result had been tendered by the Appellant they said results would have been unfavaourable to him. The Appellant’s case was that he was declared elected by the 3rd Respondent at the conclusion of collation at the Local Government Headquarters Umuguma, and was issued Form EC8B(1) – Exhibit 1. That one Emeka Nnodim – PW3 was engaged to film the collation exercise.

The video clip was admitted as Exhibit 2. Nothing else was tendered that he won the election in question. At the trial, PW3, the video man, admitted that he was procured by the Appellant for a fee of N8,508.00 but that he was not accredited by INEC, nor the Owerri Local Government. At page 130 of the record PW3 under cross-examination stated:

“I am not a busy body who has come to mislead the tribunal.

The coverage includes the declaration of the 1st Respondent. I am a witness of truth.”

A valid point has been made here by the Respondents, that from the evidence of the PW3, it is clear that the collation ended at the time the 1st Respondent was declared elected. He said that he covered the declaration of the 1st Respondent as a winner in the video clip. I agree too that this evidence is against the Appellant’s case, because PW1 and PW2 said it was the Appellant that was declared as winner of the election and used Exhibits 1 and 2 to support his claim. However, in the video clip, a man purported to be DW3 was seen announcing results which allegedly declared the Appellant as the winner of the election. The same video man stated on oath under cross-examination that Exhibit 2 covered the declaration of the 1st Respondent as the elected candidate.

Nowhere in the video clip was the said declaration of the 1st Respondent seen. The Tribunal made a definite finding that the video was neither clear nor reliable. See pages 198 – 199 of the record. The Tribunal also accepted the DW3’s evidence that the voice of the person seen in the video clip was not his. This further laid credence to the overwhelming evidence of the Respondents’ witnesses that Exhibit 2 was heavily doctored.

Again, learned counsel for the 1st Respondent made a point when he argued that the video clip which was procured by the Appellant was in his possession for over SIX months and after he had filed the petition, is most likely to be edited or doctored by him to holster his case at the Tribunal. This to my mind too lay credence to why the aspect of the declaration of the 1st Respondent which the PW3 said it covered was not seen or exposed in the clip. One doubt leads to another. From the evidence of DW2, which the Tribunal accepted the voice of unknown person was heard

purporting to be that of the pw3, was aimed at misleading the Tribunal.

It is now trite law that an appellate court cannot easily interfere with the findings of fact made by a trial tribunal or court unless such finding is perverse or not supported by evidence on record or based on evidence not legally admissible. see AJIBULU v. AJAYI (2004) 11 NWLR (pt.885) 458; OGIDI v. STATE (2003) 9 NWLR (PT. 824) 1; EBBA v. OGODO (1954) 1 SCNLR 372. Moreso, where the finding was based on the credibility of the witnesses. As already noted, the lower Tribunal played the tape over and over again before it came to the final conclusion that Exhibit 2 was unclear, unreliable and incredible. In the instant case the findings of the Tribunal was not perverse but was based on the evidence on record. Consequently, there is no reason for this court to disturb the finding on Exhibit 2 which evidence was demonstrated to have no probative value and unreliable.

Exhibit I or Form EC8B(1) is another exhibit on which the Appellant hinged his claim of victory. This is the INEC summary of Results from polling stations. The Appellant tendered it as the results from the wards in the LGA allegedly collated at the LGA Collation Centre Umuguma. It was found to be undated not stamped or signed by a Ward Returning officer. It was later cancelled and the word “LOCAL GOVERNMENT” superimposed on the word “WARD”. The cancellation was not initialed and the person who did the cancellation was not identified. The 3rd Respondent (DW3) in his evidence under cross-examination at page 42 of the record denied making the document as he was not a ward collation officer. He said that it was his duty to receive results from ward collation officers and enter same in Form EC8C(1). His evidence was clear. He did not equivocate on the falsity of Exhibit 1.

The Tribunal after careful scrutiny of the documents, held thus:

“We have observed that going by Exhibit, the Manual for Election Officials 2007, Exhibit 1 which is summary of results from polling stations (EC8B(1)) is the Form used at the ward level, not for Local Government level. The appropriate form should have been EC8C(1). There is no explanation as to why the appropriate form was not used since DW3 was not the Ward Collation Officer. He was the Constituency Returning/Collation Officer. We also noticed the word “Ward,” was cancelled and superimposed on the word “Local Government”. That too was not explained. On these grounds learned counsel to the 1st Respondent was right to have urged that the document (Exhibit 1) be rejected as being unreliable. It is also queer that although the petitioner admitted receiving the results from the booths one of them was tendered to support Exhibits 1 and 2, the results from the booths being the foundation of any declaration in an election.”

The above findings of the Tribunal on Exhibits 1 and 2 are firm and unassailable. They cannot be disturbed.

The Respondents, on their part have proved that the 1st Respondent scored the majority of lawful votes cast at the election.

In proof of these Exhibits 23 – 40 were tendered and admitted evidence. It was convincingly proved that the result in Exhibit EC8C(1) – Exhibit 39 was supported by the undisputed results from the polling booths. The same is applicable to Exhibit 40 – Form EC8E(1) Declaration of Result Form. These were the law results from the polling units which were duly collated at the respective wards in Owerri West Local Government Area.

Exhibits 23 – 40 were the official results tendered by the INEC.

These are presumed correct and authentic in law. See FINEBOY v. BROWN (supra); INEC v. RAY (supra): and HASHIDU v. GOJE (supra). The Tribunal found and heard that there was no base results on which Exhibits 1 and 2 could stand. There is no ground of appeal challenging that finding. The finding subsists.

See UDEGBUNAM v. FCDA (2003) 10 NWLR (PT. 829) 487.

It is pertinent to observe and consider the contention of the learned counsel for the 1st Respondent, at paragraph 2.17 of their brief of argument that the Appellant did not join issues with the 1st Respondent as to the true result in the three wards of Ihiagwa, Emeabian/Okolochi and Amakohia-Ubi/Adegwu/Ohi wards as pleaded and tabulated at paragraph 9 of the 1st Respondent’s Reply. I do not agree with this suggestion of the learned counsel.

The Appellant did join issues with the 1st Respondent on this point.

This forms the basis for ground 4 of the Notice and grounds of appeal. The Appellant challenged the authority of the Returning officer to change or alter the figures obtained at the election. It was submitted by his counsel that there were no evidence of arithmetical errors as alleged as no clear mathematical or statistical explanation of the occurrence of any arithmetical error was given throughout the evidence of the Respondents. These allegations and insinuations necessitated the sharp reaction of the 1st Respondent in paragraph 2.18 of their brief of argument. Ample explanations were proffered by the Respondents through the DW1, DW2, DW3 and DW4 who were eye witnesses at the Collation Centre. All of these witnesses gave a graphic and credible account of what happened at the Collation Centre. The evidence of the DW3, supported by the evidence of DW1, DW2 and DW4 was that owing to the chaotic situation at the Local Government Headquarters, Umuguma, he had to be escorted by security agents to the INEC State Headquarters at Owen, where “a careful computation” of the result were made and accordingly entered in the Forms EC8C(i) and EC8E(1), i.e. Exhibits 39 and 40 respectively. See vivid account and this evidence at pages 137 -147 and 153 of the Record of this appeal. It is crystal clear that the lower Tribunal accepted the explanation of the witnesses in the circumstances surrounding the collation and declaration of the results in Exhibits 39 and 40. Before the trial court or tribunal accepts or rejects the evidence of either side to a dispute, it is enjoined to hold up an imaginary judicial scale of justice. It will put the pieces of evidence adduced by the plaintiff/petitioner on one side and those of the defendant/respondent and the other side of the scale, weigh both together (not by number of witnesses called by parties) and giving them probative value. For in our adversarial system of jurisprudence civil cases are decided on preponderance of evidence. See MOGAJI v. ODOFIN (1978)4 SC 91; and AJIBULU v. AJAYI (supra). I do not find any justification in disturbing the Tribunal’s decision on this issue.

The Appellant challenged the decision of the lower tribunal for not ascribing probative value to Exhibits 1 and 2 tendered in evidence. There is a world of difference between admissibility of document and weight to be attached to it. The fact that a document has been admitted in evidence, with or without objection, does not, necessarily mean, automatically, that the document has established the facts contained therein, which must be willy-nilly accepted by the trial judge. Admissibility of a document is one thing and the weight to be attached to it is another. Relevancy (of document) and weight to be attached are again quite distinct. They convey two separate meanings in our law of Evidence. While relevancy comes before weight; it is invoked by the trial judge immediately the document is tendered. If the document is relevant it is admitted upon its being tendered. Weight comes in for consideration at the stage of writing the judgment or ruling. That is when the document is evaluated alongside facts of the case. In MUSA ABUBAKAR v. E.I. CHUKS (supra) at pages 221 – 222 the eminent jurist, TOBI, JSC summed up this complex part of our adjectival law thus:

“while logic is the determinant of admissibility and relevancy, weight is a matter of law with some taint of facts.”

“The lower Tribunal did not believe Exhibits 1 and 2 upon evaluation of the evidence of witnesses. It held that no credible evidence was led by the Appellant to show that the 5th Respondent declared the 1st Respondent the winner of the election based on the “concocted” or “doctored” results, and that there was also no evidence that the petitioner was declared the winner of the election by the DW3 at the collation centre. I have no reason to upset this finding of fact and evaluation of evidence by the trial Tribunal.

Where a trial court makes findings of fact and there is sufficient evidence in support thereof, unless these findings are found to be perverse or are not supported by evidence or were reached as a result of a wrong application of a principle of substantive or procedural law, this court cannot reverse the finding. See MICHAEL DIKE v. INNOCENT OKONKWO (2008) ALL FWLR (PT.404) 1571 at 1580.

It is in view of the foregoing, I must resolve this issue in the positive and hold that the preponderance of evidence before the Tribunal declaring that 1st Respondent scored majority of lawful votes cast at the election and was duly returned.

Sentiment or sympathy commands no place in judicial deliberation. They cannot override the clear provisions of the law or rules; otherwise, the task of the court would be more difficult and less beneficial to the society; see EZEUGO v. OHANYERE (1978) 6-7 SC 171 and MOHAMMED IDRISU v. MODUPE OBAFEMI (2004) 11 NWLR (pT.884) 396 at 409 D-E.

In the event it is my conclusion that the appeal in its entirely lacks merit. It is dismissed. I hereby affirm the judgment of the lower Tribunal dismissing the petition of the Appellant; with N30,000.00 costs in favour of each set of Respondents.

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Other Citations: (2008)LCN/3073(CA)