Kien Asuode Michael Seikegba V. Mr. Kalanama Penawou & Ors (1999)
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SAKA ADEYEMI IBIYEYE, J.C.A.
The appellant, Mr. Kien-Asuode Michael Seikegba, who was the Petitioner and the 1st respondent, Mr. Kalanama Penawou, who maintains the same position in this appeal alongside three other contestants before the Delta state Local Government Election Tribunal sitting in Asaba (thereafter referred to as the Tribunal) vied for the office of the Chairman of Bomadi Local Government council in a bye-election which took place on the 20th day of March 1999. The appellant and the 1st respondent, among others, contested on the platforms of the Peoples Democratic Party (P.D.P.) and All Peoples Party (A.P.P.) respectively. At the close of poll, the 1st respondent was returned by the 2nd to the 6th respondents as the Chairman of Bomadi Local Government council having scored a total of 11,718 votes as against 10,712 votes scored by the appellant.
The appellant felt aggrieved by this declaration and he filed a petition before the Tribunal challenging the return of the 1st respondent in paragraphs 14 and 15 of his petition. Paragraphs 14 and 15 without the particulars in the latter read;
“14. Your petitioner avers that the return of the 1st respondent was invalid by reason of corrupt practices or offences against the law under which the Local Government election were conducted; and/or the 1st Respondent was not duly elected by a majority of lawful votes cast at the election.
- Your petitioner avers the election was voided by electoral malpractices caused by the 1st, 2nd, 3rd, 4th and 5th respondents in that …………”
The 1st respondent and the 2nd to 6th respondents filed their reply and joint reply respectively. At the end of trial the Tribunal dismissed the petition for want of merit;
The appellant was dissatisfied with this decision and he appealed to this court on three grounds as per Notice of Appeal dated 18th of May 1999.
In accordance with the Rules of this court, the three parties namely the appellant, the 1st respondent and the 2nd to the 6th respondents filed and exchanged their briefs of argument in which each party formulated issues calling for determination. The following issues were distilled from the grounds of appeal by the appellant.
“1. Whether the Tribunal was right in saying it had no facts before it to answer the question whether the 1st respondent met the requirements of Section 54(4) of the Decree No. 36 of 1998.
- Whether the Tribunal was right in dismissing the petition, holding that the petitioner did not prove the alleged falsification of results in Bomadi Ward 1, Kpakiama Ward II, Syama Ward III and Akugbene Ward 8.”
The 1st respondent on his part formulated the following two “points” for determination:
“1. Whether the petition has complied with provisions of the Decree to confer jurisdiction on the Tribunal~
2/ whether there was sufficient proof to enable the petitioner to succeed.
The 2nd to 6th respondents in their brief of argument identified the following issues for determination:-
“1. Whether the allegation of falsification of results made by the petitioner was proved.
- whether the 1st Respondent satisfied the requirement of S.54(4) of the Local Government (Basic. Constitutional Transitional provisions) Decree No. 36 of 1998.
I have carefully read the issues formulated by parties as reproduced above and I am of opinion that those formulated by the 1st respondent call for consideration in view of their apparent incoherence with the arguments in support. The said issue, and their attendant arguments are, to say the least, devoid of industry expected to sustain issues formulated either by a party or his counsel. In short, the arguments are clearly off tangent. I am not unmindful of the settled principle that a bad, clumsy inelegant and prolix brief is still a brief and that it should be considered in the interest of justice. See OBIORA V. OSELE (1989) 1 N’.W.L.R. (PART 97) 279 at 300 and AKPAN V. THE STATE (1992) 6 N.W.L.R (PART 248) 439. In view of this principle, I shall consider the arguments proof erred by the 1st respondent and adopted by his counsel. The issues, in point, are as stated above. The two sets of arguments in support overtly deviated from the issues formulated because the first set is an objection to the brief filed by the appellant while the second set deals with the competence of the petition which he alleged did not comply with Section 82 of the Decree No. 36 of 1998 and paragraph 26(2) of schedule 5 to the same Decree. I hold the view that neither the issues formulated by the 1st respondent nor the arguments proof erred in support flowed from the grounds of appeal. The issues are therefore incompetent and I shall ignore them.
It is obvious that what the 1st respondent did in his brief of argument was to raise preliminary objection. He, however, in doing so did not have regard for the intendment of O. 3 r. 15 of the court of Appeal Rules 1990. o. 3 r. 15 reads:
“15(1) A respondent intending to rely upon preliminary objection to the hearing of the appeal shall give the appellant three clear days’ notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with’ seven copies thereof with the Registrar within the same time.”
This rule is, no doubt, mandatory in its operation and must be complied with by the respondent before arguments on the grounds for the preliminary objection could be included in his brief of argument ‘. The required notice of the preliminary objection to be served on the appellant is the legal foundation of any argument which the respondent could proffer in support of the ground or grounds of objection in his brief is such preliminary objection is not taken up separately from the main appeal and ruled upon. See NSIRIM V NSIRIM (1990) 3 N.W.L.R. (PART 138) 285 at 297 and. AFRICAN CONTINENTAL BANK LTD. V. APUGO (1995) 6 NWLR (PART 399) 65. In the instant appeal the 1st respondent did not comply with O. 3 r. 15(1) (supra). The consequence of such non-compliance is to ignore the preliminary objection as well as the arguments thereon in the brief of the 1st respondent. It is accordingly ignored.
The two issues the appellant and the 2nd to the 6th respondents raised in their separate briefs of argument are not dissimilar. I shall therefore consider the issue in the appellants brief although not in the order as reproduced above. I shall instead start with Issue No. 2 which is similar to Issue No. 1 in the joint brief of 2nd to the 6th respondents. The gravamen in Issue No. 2 is that there was falsification of results in Bomadi Ward I, Kpakiama Ward II, Syama Ward III and Akugbene Ward 8 being four out of the ten wards in Barnadi Local Government Area. It should be pointed/that out of these four Wards there is uncontroverted evidence that elections in Bomadi ward I and Kpaklama Ward II were cancelled because the results from those Wards were no submitted to the collation centre by the Returning Officer. The issue of falsification of results does not thereby arise.
As regards the two other Wards that is to say Wards 3 and 8, the appellant placed much reliance on the figures in exhibits E and G (summary of results from polling stations or units making up Syama Ward 3). Exhibits E and G were discredited by the D.W.3, Cletus Otubo, who the appellant claimed compiled them. Equally discredited is exhibit D which features the name of Eric Okuboklgana Eden Carter as the party agent for the 1st respondent. The said exhibit contains, inter alia, votes accredited to both the appellant and the 1st respondent as well the candidate for Alliance for Democracy (A.D.). Even if the figures ascribed to these four Wards were not discredited, mere assertion that figures were falsified is not sufficient to sustain the allegation of falsification in an election petition. The learned Chief Legal Officer for the 2nd to the 6th respondents urged the court to hold that the appellant failed to sustain the allegation of falsification because he could not prove it beyond reasonable doubt. I daresay, with due regard, that this is not a true legal perception of what is required in order to establish the allegation of falsification in an election petition. It is instead that in proving falsification of results in an election petition there must be two sets of results, one considered genuine or authentic, and the other considered falsified. The two results will then be compared to determine the falsity. See SARIYA V. TUKUR (1983) N.S.C.C. 559 at 560; the standard of proof is not as high as that required for allegation of crime. It is instead based on balance of probabilities. See OMOBORIOWO V. AJASIN (1984) 1 S.C. 206 at 227 and 228.
Furthermore the onus of producing the said two results is invariably on the petitioner, in this case – the appellant and not the respondent. See NWOBODO V. ONOH (1984) 1 S.C. 34. Results that are germane for such comparison are the results recorded on Form EC8A by the presiding officer at the polling booths. In the instant Case the appellant did not tender any reliable results with which comparison could be made in order to arrive at a decision on whether or not falsification has been established. In this wise, I entirely agree with finding of the Tribunal at page 66 of the record of appeal that a Case of falsification of results has not been proved as required by law. I accordingly resolve Issue No. 2 in favour of the respondents.
On Issue No.1, the learned counsel for the appellant referred to the case of YEROKUN V. ADELEKE (1960) F.S.C. 126
at 131 which enunciated the legal proposition that the court in election petitions is exercising a purely statutory jurisdiction and it cannot give effect to an objection which is not based on one of the grounds set out in the enabling statute such as Section 84(1) of Decree No. 36 of 1998. In order to sustain this issue, he submitted that non-compliance with Section 54(4) of Decree No. 36 of 1998 is a valid ground for avoiding an election. He argued that neither the appellant nor the 1st respondent met the spread stipulated by section 54(4) above because the appellant and the 1st respondent respectively made spread in three wards and four wards instead of 61 or approximately 7 wards out of the 10 wards in Bomadi Local Government Area. He further submitted that the trial Tribunal was in monumental error to say that it had no facts to answer the question whether the 1st respondent, by the election results declared, met the spread provided for by the Electoral Decree.
The learned counsel for the 2nd to the 6th respondents, on her part, submitted that by virtue of Section 136 of the Evidence Act 1990, the burden of adducing credible evidence that the said provision was not complied with was on the appellant. She argued that since no such evidence was adduced, the 1st respondent thereby failed to establish “the issue of spread”.
Section 54(4) of Decree No. 36 of 1998 is of the essence in the determination of Issue No.1. Section 54(4) above reads:-
“54. (4) A candidate for an election to the Office of Chairman shall be deemed to have been elected, where there being more than two candidates for the election.
(a) he has the highest number of votes cast at the election; and
(b) he has not less than one quarter of the votes cast at the election in each of at least two-thirds of all the wards in the Local -Government Area or Area Council., as the case may be.” (underlining mine for emphasis).
This is a provision on the issue of spread in the number of votes cast in an election to the Office of Chairman of a Local Government Area before any candidate can be deemed to have been duly elected-. It is pertinent to note that paragraphs (a) and (b) of subsection (4) above are conjunctive in their operation. Thus the candidate seeking the elective office of Chairman of any Local Government Area shall not only score the highest number of votes cast at the election, he shall also have not less than one quarter of the votes cast at the election in each of at least two-thirds of all the wards therein. In the instant case, there are ten wards in Bomadi Local Government Area.
What is crucial to this issue, is whether the Tribunal was right in saying that it had no facts before it to answer the question whether the 1st respondent met the requirement of selection 54(4) of Decree No. 36 of 1998. The Tribunal asked itself if the 1st respondent secured the “right spread” and it said that it was not in a position to answer that question because there are not facts to enable it give the answer. I disagree with the trial Tribunal I am of the strong view that there was sufficient documentary evidence before it. Thus exhibit KK which is the summary of results from wards was available to effect the necessary computation. Thus exhibit KK the provider of answer to this issue shows that no results were entered for Wards 1, 2 and 9. It 1s apparent from the ultimate paragraph of page 67 of the record of appeal that the following opinion of the trial Tribunal made it to conclude that there are no facts to rely upon for an answer to Issue No. 1:-
“Exhibit KK-is the Local Government summary of Results. The, results as entered by ‘INEC in Exhibit KK is different from those figures entered in Exhibit D. They, however, have the same totals as in Exhibit F but we cannot say whether it satisfies the requirement of the Decree.”
It appears the trial Tribunal accorded Exhibits KK and D the same weight irrespective of the fact that, it observed that the figures in both exhibits differ from each other. In my view, this was enough to put the trial Tribunal on notice by fully considering the propriety of those exhibits. It is settled law that when a matter has been improperly received in evidence in the Court below, even when no objection has been raised, it is the duty of the Court of Appeal to reject such evidence. See OSASUWA V. EDO STATE CIVIL SERVICE COMMISSION (1999) 4 N.W.L.R. (PART 597) 155 at 162 and 163; GEORGE V. DOMINION FLOUR MILLS LTD. (1963) 1 ALL NWLR. 71; AKINLOYE V. EYIYOLA (1968) NMLR 97 and OJUKWU V. ONWUDIWE (1984) 1 S.C. NLR. 247. In the instant case, I have already opined that Exhibit D is a tainted document and therefore should not be accorded any legal weight. I accordingly reject it having rejected Exhibit D, Exhibit KK remains as the only legal evidence from which the trial Tribunal should have sourced an answer on whether or not the 1st respondent met the requirements of Section 54(4) (supra). Simple mathematical calculations based on the figures in exhibit KK along the lines of the directive in particularly section 54(4)(b) will provide the seemingly elusive answer. I have made the necessary calculations and I have arrived at the conclusion that, contrary to the appellant’s estimation on spread in satisfaction of Section 54(4) (b) (supra), the requisite spread was made by the appellant and the 1st respondent 1n four wards and six wards respectively. These scores by both parties patently fall short of the spread in at least seven wards out of all the ten wards in Bomadi Local Government Area, in keeping with the express mandatory provision of Section 54(4)(b) supra. In view of the foregoing, the 1st respondent failed to meet the requirement of Section 54(4)(b) which operates conjunctively with Section 54(4)(a) (supra). I accordingly resolve Issue No.1 in favour of the appellant.
In the final analysis, the appeal partially succeeds. I set aside the declaration that the 1st respondent was duly elected. The figures scored by the appellant and the 1st respondent remain valid. I order bye-elections in Bomadi Ward I:, Kpakiama Ward II and Akugbene III Ward IX where the results were not collated on 20th March 1999. The scores obtained by the appellant and the 1st respondent in those bye-elections shall be added to the existing figures of 10,712 votes and 11,718 votes scored respectively by the appellant and 1st respondent. Whichever of the two candidates that scores the highest votes and satisfies the required spread shall be returned as being duly elected: I assess costs to the appellant at N2,500.00.
Other Citations: (1999)LCN/0539(CA)
