Mr. Uwamose Osazuwa Amadasun & Anor. V. Mrs. Elizabeth Uyimwen Ativie & Ors (2009)
LawGlobal-Hub Lead Judgment Report
ALI ABUBAKAR BABANDI GUMEL, J.C.A.,
This is an appeal against the judgment of the Edo State National Assembly, Governorship and State House of Assembly Elections Petitions Tribunal delivered on 28th January, 2008. The 1st Appellant as the candidate of the 2nd Appellant contested the 14th April, 2007 election into the Edo State House of Assembly for Uhunmwode Constituency. At the end of the election, the 3rd-5th Respondents declared the 1st Respondent as the winner of the election.
The appellants were dissatisfied with the outcome and result of the election as well as the declaration and return of the 1st Respondent as the duly elected candidate of the 2nd Respondent for the Uhunmwode Constituency. Upon this background, the appellants, as petitioners, filed a petition challenging the result of the election. This petition is dated 11th May, 2007 but was filed on 14th May, 2007. It is predicated on 3 grounds. They are:-
a) That the Uhunmwode Constituency election for the Edo State House of Assembly conducted by the 3rd, 4th and 5th Respondents and their agents and privies of the 3rd Respondent in Uhunmwode Local Government Area of Edo State on 14th April, 2007, is invalid by reasons of corrupt practices;
b) Non-compliance with the provisions of the Electoral Act, 2006; and
c) That the 1st Respondent was not duly elected by majority of lawful votes cast at the election.
Based on the petition and the grounds therefore, the Petitioners/Appellants sought for the following reliefs. They are:-
i. It be determined that the Edo State House of Assembly Election for Uhunmwode Constituency of the 14th April, 2007 conducted by the 3rd and 4th Respondent and agents and privies of the 3rd Respondent was marred by corrupt practices, and outright rigging.
ii. It be determined that the 1st Respondent herein was not duly elected/did not score the lawful majority votes cast at the 14th April, 2007 Edo State House of Assembly Election for Uhunmwode Constituency and ought not to have been returned by the 3rd, 4th and 5th Respondents.
iii. It be determined that the total number of lawful votes cast at the 14th April, 2007 Edo State House of Assembly Election at Uhunmwode Constituency were for the Petitioners and the 1st Petitioner ought to have been returned by the 3rd and 4th Respondents and/or agents, and privies of the 1st Respondent.
iv. It be determined that the votes allegedly scored or credited to the 1st and 2nd Respondents in Uhunmwode Constituency of Edo State are invalid on ground of corrupt practices, ballot snatching, ballot stuffing and outright rigging.
v. It be determined that the Edo State House of Assembly election in Uhunmwode Constituency suffered from non-compliance with the Electoral Act of 2006.
vi. AN ORDER declaring the 1st Petitioner as the winner of the Edo State House of Assembly Election in Uhunmwode Constituency having scored the highest number of lawful votes of the total votes cast in the said election.
vii. AN ORDER compelling the 3rd, 4th and 5th Respondents to present to the 1st Petitioner Certificate of Return as the validly elected winner of the election into Edo State House of Assembly for Uhunmwode Constituency.
ALTERNATIVELY,
viii. AN ORDER nullifying the entire Edo State House of Assembly election conducted in Uhunmwode Constituency on the 14th April 2007 on the grounds of corrupt practices and non-compliance with the Electoral Act 2006.
The 3rd – 5th Respondents answered the petition with a 38 paragraph reply dated and filed on 8th June, 2007. The 1st and 2nd Respondents also joined issues with the petitioners in a reply dated and filed on 12th June, 2007. Issues having been duly joined, and after all the pre-hearing formalities, the matter went to a full trial. In the course of trial, oral and documentary evidence were led and adduced. At the end of the evidence of the parties, respective learned Counsel filed and exchanged written addresses.
In its judgment, the lower Court found the petition to be unmeritorious and dismissed same accordingly. The Petitioners/Appellants were dissatisfied with the judgment and appealed the decision by way of a notice and grounds of appeal dated 8th February, 2008. There are 5 grounds with copious particulars in this notice of appeal. They are:-
GROUND 1
The Tribunal misdirected itself in holding at page 8 of the judgment, that if the invalid and cancelled votes are added to tabulation (iv) on page 24 of the Petitioners written Address, the 1st Respondent would still be far ahead of the 1st Petitioner.
PARTICULARS
a. The Tribunal having rightly cancelled the invalid votes credited to both the 1st Respondent and 1st Petitioner on grounds that they are invalid, as reflected on pages 19-22 of the Petitioners Written Address, opted to add the said cancelled votes rather that subtract same from the total lawful and valid votes of the 1st Respondent and 1st Petitioner, thereby arriving at a wrong conclusion.
b. The Tribunal failed or neglected to properly appreciate the significance of invalid and cancelled votes and how the cancellation of same affects the total number of valid votes scored by both parties.
c. The Tribunal having upheld the invalidity of the disputed ballot papers and cancelled the elections where over-voting took place, ought to have upheld the tabulation contained in table iv at page 24 of the Petitioners’ Written Address.
GROUNDS 2
The Tribunal did not properly evaluate available evidence when it held at page 9 of the judgment that Petitioners did not adduce sufficient evidence, oral and documentary, to prove the 6 issues formulated for determination by the Tribunal. PARTICULARS
a. The Petitioners presented what the Tribunal referred to as a “lorry load” of ballot papers, voters’ registers, result sheets and sworn depositions, to prove the invalidity of ballot papers, result sheets and over-voting.
b. The Petitioners adduced uncontradicted oral evidence to show that in a number of places, election did not hold, that no electoral materials were brought to the polling units, but results were declared by INEC for the units.
c. The Tribunal upheld the Petitioners prayer for cancellation of votes shown to be invalid.
d. The Tribunal failed to compute the valid votes after cancellation of the invalid votes to arrive at the candidate who scored the majority of lawful and valid votes cast.
e. The Tribunal failed to add to the Petitioners’ total score, votes shown to have been unlawful excluded and remove from the 1st and 2nd Respondents’ total score, votes shown to have been unlawful added.
f. The standard of proof for irregularities or noncompliance with electoral Act or INEC Guidelines is on balance of probabilities or preponderance of evidence, not proof beyond reasonable doubt as required for allegation of commission of crime in an election petition.
g. Abundant evidence of the irregularities or noncompliance with the Electoral Act or INEC guidelines were not refuted by the 3rd – 5th Respondents on whose behalf only the 5th Respondent testified.
GROUNDS 3
The Tribunal erred in holding at page 8 of the judgment that anything the Electoral Officer (5th Respondent) says about the conduct of the election is “sacrosanct”.
PARTICULARS
a. The Electoral Officer is a party (5th Respondent) in the Petition, with a commitment to defend the outcome of the election which places him in an adversarial position with the petitioner.
b. The evidence given by the Electoral Officer was a generalized statement that the election was free and fair throughout the constituency, even while he had no first hand knowledge of the activities that took place in the various polling units in the various wards in the constituency, which only the presiding officers could speak on.
c. The Electoral Officer, as a Respondent would be made a judge in his own cause if the Tribunal feels bound by every utterance he makes.
d. The Electoral Officer could not contradict evidence before the Tribunal that election did not hold in certain units and wards but result were declared in favour of the 1st and 2nd respondents, or explain why political parties whose logo were not on the ballot paper were allocated votes.
e. The Tribunal has a duty to evaluate the evidence of the Electoral Officer in the light of the oral and documentary evidence adduced before it by the other parties.
GROUND 4
The Tribunal erred in law in holding at page 8 of the judgment on the issue of the propriety of a Presiding Officer delegating his statutory duties, that the contents of the INEC Manual (Exhibit 141) can be varied by the oral evidence of the Electoral Officer, that delegation is permissible as a purely administrative matter.
PARTICULARS
a. Section 160 of the Electoral Act (2006) empowers the delegation of function by INEC to any other officer appointed by INEC, but did not provide for sub delegation of function by the delegate to other officers of INEC.
b. The Presiding Officers, as agents of INEC, cannot delegate their powers and duties to other officers of INEC.
c. The INEC Manual specified the function of the Presiding Officers, Poll Clerks and Poll Assistant, but did not specify that these officers to whom such function have been assigned or delegated by INEC can sub-delegate to other officers.
d. The INEC Manual provides that in the absence of a Presiding Officer, Poll Clerk can perform his function, not that a Presiding Officer can delegate his duties.
e. The Tribunal had no evidence before it that there was any delegation of function by any specific Presiding Officer to any Poll Clerk or that any Presiding officer was absent at any polling unit as would enable the Poll Clerk take over his function.
f. The function of the Presiding Officer and the circumstances under which such functions may be exercised by some other persons or officers are clearly spelt out in the INEC Manual made pursuant to section 161 of the electoral Act 2006.
g. The Tribunal engaged itself in speculation and conjecture when it explained away as the consequence of administrative delegation of duties, the marked differences in the signatures of Presiding Officers contained in ballot papers, result sheets and sworn depositions before the Tribunal, holding that the Presiding Officer may delegate his function, when there was infact no evidence by any Presiding Officer that such delegation ever took place.
h. The INEC Manual or guidelines issued pursuant to section 161 of the Electoral Act, being documentary evidence tendered before the Tribunal, is forbidden by section 132 of the Evidence Act to be contradicted by oral evidence.
GROUND 5
The Tribunal erred in holding at page 9 of the judgment that it agreed with the learned counsel to the 1st and 2nd Respondents that Exhibit 103 (voters register) is a computer printout and that the replication of human images more than once in register is a computer error which has nothing to do with the voters card number which appeared against the replicated images.
PARTICULARS
a. There is no evidence before the Tribunal that the replication of images on the voters register is a computer error.
b. It is in evidence that all the replicated images and names on the voters register were accredited (ticked) as having voted.
c. The submission of counsel to the 1st and 2nd Respondent cannot take the place of evidence.”
In due course, the appellants filed a brief of argument dated 17th March, 2008 on the same date, wherein a number of issues were formulated from each of the grounds of appeal. The brief of argument of the 1st and 2nd Respondents was dated and filed on 25th March, 2008, while that of the 3rd – 5th Respondents was, with leave of the Court, filed on 30th May, 2008. The brief of the 3rd – 5th Respondents raised and argued a preliminary objection pursuant to Order 10 r. 1 of the Court of Appeal Rules 2007, challenging the competence of the appeal for the grounds of appeal and the appellants’ brief of argument being defective. While taking their turn, the Appellants filed a reply brief to the brief of the 1st and 2nd Respondents. It was dated and filed on 9th April, 2008, as well as a reply brief to the brief of the 3rd – 5th Respondents. It was dated and filed on 13/06/08.
At the hearing of the appeal, respective learned Counsel identified, adopted and relied on the arguments and submissions in the briefs as their respective arguments in this appeal. While the appellants prayed and urged this Court to allow the appeal and set aside the decision of the lower Court dismissing the petition, the 2 sets of Respondent’s prayed and urged for an order dismissing this appeal and affirming the decision of the Court below.
The preliminary objection of the 3rd – 5th Respondents seeks to challenge the competence of this appeal. As is customary I wish to start by considering the preliminary objection since it is only a decision on it that would determine whether there is a further need or not to consider the full merits of this appeal.
In arguing the preliminary objection, learned Counsel Miss Ayi Obaseki, for the 3rd – 5th Respondents explained that grounds 1, 2, 3 and 5 of the Appellants’ grounds of appeal are incompetent as they did not specify whether the said error complained of was in law or on the facts. Upon this explanation, learned Counsel submitted that these grounds are vague. Learned Counsel made an example by reproducing ground 1 and submitted that what followed it were not actually particulars. She suggested that the appellants ought to have exactly quoted what the misdirection was instead of relapsing into arguments and narratives which she opined was contrary to O. 6 r. 2(3) of the Court of Appeal Rules, 2007. To anchor this submission, Miss Obaseki, of Counsel quoted 0.6 r. 2(2) and 0.6 r. 2(3) of the Rules of this Court.
Learned Counsel Miss Obaseki took a further but similar swipe at grounds 2, 3 and 5 and maintained that they are vague and urged this Court to strike them out for not being concise thereby being contrary to the hallowed rules of this Court.
While maintaining a sustained onslaught, learned Counsel argued further that the appellants formulated more than one issue from each of grounds 1, 2 and 4 and described this as an anathema to brief writing. According to Miss Obaseki the appellants formulated 9 issues from the 5 grounds of appeal. She went on to point out that this is an unpardonable mistake. Learned Counsel went further to refer to a number of decided cases where it had been settled that a party cannot distill more than one issue from a ground of appeal. It was also the argument of learned Counsel that it is beyond peradventure that a party does not argue grounds but issues formulated out of them and supported this with the case of ABAYOMI V. A.G. ONDO STATE (2006) 8 NWLR (PT.982) 211. Still on this point, learned Counsel maintained that arguing grounds of appeal rather than issues formulated out of them is a fundamental vice that may lead to the brief of argument being declared as a non-issue at all. While relying on a number of other decided cases learned Counsel urged the Court to hold that the grounds of appeal are incompetent and the brief being defective and of no use. She went further to urge the Court to uphold this preliminary objection and proceed to strike out the grounds of appeal and brief of argument as well as to dismiss the appeal in its entirety.
In his reply learned Counsel to Appellants Dr. O. Obayuwana, began by explaining that a ground of appeal may only be incompetent if it is vague and discloses no reasonable ground or is not based on the decision of the lower Court at all or still that it was filed without leave, where leave was necessary. He then argued that this appeal does not suffer any of these disabilities as the grounds of appeal are in substantial conformity with 0.6 r. 2 15 (supra). Learned Counsel explained further that what was required under 0.6 r. 2 is for the ground of appeal to show clearly what the appellant was complaining about in such a way that no Respondent is misled or taken by surprise. According to Dr. Obayuwana, of Counsel, the designation of a ground of appeal by an appellant is not conclusive of whether the ground is as designated by him because the Court has a duty to look beyond the mere words by considering the grounds along with their particulars with a view to seeing whether a genuine and reasonable complaint can be discerned therefrom.
In trying to swim out of troubled waters, learned Counsel submitted that whatever defects, as there may be, in grounds 2, 3 and 5 are not fatal to them. He argued further that this preliminary objection is a total misconception. In a very bold effort, learned Counsel maintained that grounds of appeal herein are not incompetent or defective because they each clearly make known to the Respondents the complaint of the Appellants against the judgment of the lower Court. He relied on the decision of the Supreme Court in ADEROUNMU V. OLOWU (2004) 4 NWLR (PT.652) 253 at 272.
In responding to the 2nd arm of the preliminary objection, learned Counsel explained that distilling more than one issue from a ground of appeal does not render it defective or fatal to the hearing of the appeal. He then submitted that grounds 1, 2 and 4 in this appeal are not bad for being repetitive or the issues distilled therefrom being prolix. He relied on the decisions of this Court in UDOH V. ASUQUO (2006) ALL FWLR (PT.307) 1122 at 1137 C-E per CHUKWUMA-ENEH, JCA (as he then was) and U.P.S LTD V. UFOT (2006) ALL FWLR (PT.314) 337. Learned Counsel argued further that even where there are some defects in the grounds of appeal and the issues formulated therefrom, this Court should ignore all that and proceed to consider if issues could otherwise be legitimately distilled from whatever could reasonably be gathered from a look at the totality of the grounds of appeal. He urged this Court to consider this appeal on its merits notwithstanding any defects or shortcomings in the brief of argument. He relied on the case of MUOJEKWU V. EJIKEME (2000) 5 NWLR (PT.657) 402 as per TOBI JCA (as he then was) at 428 B-F. Finally, learned Counsel urged the Court to discountenance and dismiss the preliminary objection.
I have carefully considered all the arguments and submissions of respective learned Counsel on this preliminary objection. I have also read and considered the provisions of 0.6 rules 2 and 3 of the Rules of this Court together with the various decided cases referred to by Counsel. I found them helpful and of great assistance in the determination of this knotty issue.
I have hereinabove set out the 5 grounds of appeal in this matter together with their copious particulars. There is therefore no doubt that they have been put under the searchlight for scrutiny with a view to seeing whether or not they would pass the test of acceptability. But before embarking on this exercise, let me put the law governing this issue under focus and perspective. The case law in this country has established very clearly that there is a direct relationship between grounds of appeal and issues for determination. Also, it is allowed for a reference to be made to the grounds of appeal in the brief of argument with a view to showing which of them have been covered by a particular issue that has been argued. In the case of OLOWOSAGO V. ADEBAYO (1988) 4 NWLR (PT.88) 275, the Supreme Court observed that the grounds of appeal must necessarily allege the complaints of errors of law, fact or mixed law and fact against the judgment appealed against. However, the grounds of appeal and their particulars cannot adequately be substituted for the contents of appellant’s brief of argument.
Any ground of appeal must be set out concisely, precisely, succinctly and accurately to cover or embrace all the complaints the appellant has against the judgment. The reason for this is simple. It is to give adequate notice to the other side of the case they have to meet in the appellate Court. See N.I.P.C. V. THOMPSON ORGANISATION (1969) 1 ALL NLR 138. Further to this the argument of learned Counsel Miss Obaseki that the appellate Courts do not allow vague and general grounds which disclose no reasonable grounds of appeal is a correct statement of the law. I fully agree with this submission made by Counsel on this point that grounds of appeal should avoid repetitions, narrations or arguments.
It is also trite that once the grounds of appeal are faulty, the issues formulated on or from them will equally be faulty because issues arising from an incompetent ground of appeal also remain incompetent. See AMADI V. ORISAKWE (1997) 7 NWLR (PT.511) 161. According to the decision of the Supreme Court in NWADIKE V. IBEKWE (1987) 4 NWLR (PT.67) 718, a ground of appeal cannot be an error in law and a misdirection at the same time.
I have carefully considered all the 5 grounds of appeal in this appeal together with their particulars and all the arguments of learned Counsel Dr. Obayuwana supporting their competence. I must say that the grounds of appeal appear to be a bit clumsy and inelegant. They are short of being fully precise. Some of the observations of learned Counsel Miss Obaseki on them are quite apt and spot on. It must also be observed that the general layout of the appellants’ brief herein, leaves a lot to be desired, particularly in the method it employed in formulating issues from the grounds of appeal.
Learned Counsel Dr. Obayuwana had sought to rely on the decision of this Court in UDOH V. ASUQUO (supra) and U.P.S LTD V. UFOT (supra) in support of the proposition of law that where there is a proliferation or prolixity of issues in an appeal that by itself should not nullify the brief of argument rather it is imperative for the Court to put the case of the appellant properly by identifying the issues that ought to be addressed in such circumstance. This Court also went ahead to decide an appeal on its merit where a brief was poorly presented and Counsel merely argued the brief without really indicating the issue or issues. The Court also held that where a brief is bad and inelegant, it is not good reason to throw it away without the Court taking steps to formulate the issue or issues that would enable it to decide the appeal on its merits. See MUOJEKWU V. EJIKEME (supra).
It is against this background that I find these 3 decisions of this Court applicable to the circumstances of this appeal. I hold that they are relevant and I hereby decide in favour of accommodating the inelegant brief filed on behalf of the appellants in this appeal both in the interest of justice and in order to do substantial justice by deciding this appeal on its merit. In taking this decision I am guided by the established rule of practice and procedure that the Court should not ordinarily penalize a litigant just because counsel representing him in a matter has, through an oversight, inadvertence or error arising from an obvious misconception as to the position of the law, done something, which if left unattended would completely turn around an otherwise genuine case. See NNEJI V. CHUKWU (1988) 3 NWLR (PT.81) 181. For the foregoing reasons, the preliminary objection of the 3rd – 5th Respondents in this appeal is hereby overruled and dismissed.
Having overruled the preliminary objection it is now necessary to go further to consider the merits of this appeal. After having considered the judgment of the lower Court contained at pages 453 to 462 of the record of appeal together with the grounds of appeal as well as the arguments and submissions of respective learned Counsel in their briefs of argument, I am of the view that the main issue for determination in this appeal is as captured and encapsulated in the issue formulated by learned Counsel to the appellant thus:
“Whether the Tribunal is right in failing to deduct votes held to be invalid, unlawful and cancelled from the total votes credited to the 1st Respondent and 1st Petitioner to determine as between the 1st Petitioner and the 1st Respondent which candidate secured majority of lawful votes cast in the April, 14th 2007, Edo State House of Assembly election for Uhunmwode Constituency.”
Even though this issue appears to be inelegant, it is not misleading. To anybody who is familiar with the judgment of the lower Court against which this appeal was filed and having regards to the entire circumstances of the matter, this complaint is reasonable and genuine.
In arguing this issue learned Counsel to the appellants began with a submission that where in an election matter an objection is taken as to the validity of votes credited to a party and such an allegation was proved and the objection upheld any votes credited must be declared as illegal votes. Upon this submission, learned Counsel went further to add that, an Election Tribunal that declared votes illegal has a duty to deduct such number of votes from the total votes scored and credited to the affected candidates. In support of these submissions, learned Counsel relied on the cases of NWEKE V. EJIMS (1999) 11 NWLR (PT.625) 31, AJADI V. AJIBOLA (2004) 16 NWLR (PT.898) 9, which according to him, were re-echoed in the decision in BUHARI V. OBASANJO (2005) 2 NWLR (PT.910) 241.
Upon the background of these submissions, learned Counsel drew the attention of this Court that there were sufficient facts supported by credible evidence before the lower Court which revealed and established that in several units in Wards 1-10 there were a total of 10,789 votes on ballot papers that were not stamped and signed. He pointed out that these votes were found by the lower Court to have been credited to the 1st and 2nd Respondents. Learned Counsel pointed out further that it was upon being satisfied by the evidence led before it that the lower Court cancelled these votes after having found that they were invalid.
According to learned Counsel to the appellants in Ward 2 Unit 7, Ward 4 Unit 6, Ward 5 Unit 8, Ward 7 Unit 7 and Ward 10 Unit 5, further evidence before the lower Court revealed that there was the incidence of over voting as a result of which a total of 1,306 votes ascribed to the 1st and 2nd Respondents and 82 votes for the Petitioners. Upon this finding, learned Counsel added, the lower Court saw good reason to invalidate and cancel these votes. While referring to some Wards and Units, learned Counsel highlighted that the lower Court found it to have been established by credible evidence that some results of the election were not signed and endorsed by the appropriate and authorized Presiding Officers and in consequence of which 7,794 votes and 417 votes respectively credited to the 1st and 2nd Respondents and the Petitioners were found to be invalid and cancelled. Going further with his explanations, learned Counsel also drew the attention of this Court to the finding of the lower Court on irreconcilable signatures on voter’s cards in a number of Wards and Units, which he fully identified. He pointed out that upon this finding a total of 9,187 votes unlawfully added to the scores of the 1st and 2nd Respondents were cancelled and also added that 44 votes were cancelled after they were found to be rejected votes because the voters’ cards at Ward 8 unit 3 were found to contain the names and identification numbers at the back contrary to the provisions of the Electoral Act, 2006. In summarizing the real and cumulative effects of these findings and decisions of the lower Court, learned Counsel did an arithmetical exercise and suggested that 29,120 votes were unlawfully credited to the 1st and 2nd Respondents by agents of the 3rd – 5th Respondents while a total of 499 were unlawfully so credited for the Petitioners.
While referring to Exh. 39, learned Counsel remarked that the total votes declared for the petitioners were 3,662 while 31,151 votes were declared for the 1st and 2nd Respondents. With Exh. 39 in view and the findings of the lower Court, learned Counsel submitted that the lower Court was duty bound to deduct the inflated or invalid votes from and add the wrongly excluded votes to the scores of the affected candidates. He submitted further that the lower Court misdirected itself in opting to add the cancelled invalidated votes to the total voters declared for the parties.
According to learned Counsel the proper, reasonable and most logical step the lower Court ought to have taken to arrive at the total valid votes left for both parties was to subtract or deduct the invalid votes from the total votes declared. Further to this, he added that the lower Court had the duty and power to re-compute the election results by deducting the invalid and cancelled votes from the total votes scored by both candidates and adding the wrongfully excluded votes to the total votes of the affected candidate. He underscored this suggestion by relying on the case of NGIGE V. OBI (2006) 14 NWLR (PT.999) 1. Learned Counsel maintained that had the lower Court undergone and perfected its duty properly, the result would have been clear and it would have been found that the Petitioners, rather than the 1st and 2nd Respondents, had majority of lawful votes cast at the election.
In conclusion, Dr. Obayuwana, of Counsel, argued that the law requires judgments of Courts or Tribunals to be logical and coherent as well as free from internal inconsistencies or contradictions. He that submitted that it was inconsistent for the lower Court having cancelled invalid votes to add the same cancelled and invalid votes to the total votes of the candidates rather than subtract same from it.
While going into the nitty-gritty of the calculations, learned Counsel opined that a deduction of the invalid and cancelled votes from the total votes scored by both candidates, would reveal that the 1st and 2nd Respondents scored a total of 2,031 valid votes while the petitioners had a total of 3,163 valid votes. Furthermore, according to Counsel when the 730 wrongfully excluded votes of the Appellants are added to their scores they would have a total of 3,893 votes and when the 27 wrongfully inflated votes of the 1st and 2nd Respondents are subtracted, their total score would be 2004 valid votes. Upon all these calculations, Dr. Obayuwana relied on the case of LATIKO V. KUTIGI (1999) 3 NWLR (PT.596) 509 and submitted that the highest number of votes can be determined by a margin of a single vote. He submitted further that the 1st Petitioner/Appellant ought to have been returned as the winner of the election for Uhunmwode Constituency of Edo State House of Assembly, having scored a majority of lawful votes cast at the election.
While relying on the cases of AIGHOBAHI V. AIFUWA (2006) 6 NWLR (PT.976) 270 and SOSANYA V. ONADEKO (2005) 8 NWLR (PT.926) 198 learned Counsel argued that the misdirection and/or error in the calculation of valid and lawful votes by the lower Court complained herein has had a gross adverse effect on the appellants which had also occasioned a miscarriage of justice on them. He then referred to the case of SAM V. EKPELU (2000) 1 NWLR (PT.642) 582 and submitted that this Court had the power to declare the 1st Appellant as the winner of the election of 14/04/2007 for the Uhunmwode Constituency of Edo State House of Assembly. He urged this Court to so declare and order. He also urged the Court to allow this appeal on this ground and declare the 1st appellant as the winner of the 14/04/2007 election into Uhunmwode State Constituency.
In his response to this issue at pages 3-7 of his brief, learned Counsel to the 1st and 2nd Respondents, Mr. S.I. Osifo, explained that the submissions of Dr. Obayuwana, of Counsel that the lower Court cancelled some so called invalid votes was a complete misconception. He then referred to page 460 lines 1-13 and drew the attention of this Court to the actual votes that were cancelled. He explained that the votes cancelled were under paragraphs (b), (c) and (d) while the votes in paragraph (a) were not affected by the cancellation. He anchored this explanation on the legal principle that express mention of certain things means that those not so mentioned are excluded.
According to Mr. Osifo, during the election held on 14/04/07 the votes scored by the 1st Respondent were 31,151 while those of the 1st appellant were 3,662. Learned Counsel went on to concede that the votes cancelled by the lower Court were 12,858 and when this number is taken away from the votes scored by the 1st Respondent, there would be a total of 18,293 votes left untouched.
He added that it is within the competence of the lower Court not to cancel the votes set out in paragraph (a) at page 460 of the record. To this also, learned Counsel Mr. Osifo, opined that the lower Court refused to review that aspect of the decision of the Returning Officer in allowing those votes to be counted. He referred to the powers of a Returning Officer under Sections 67 and 69(c) of the Electoral Act, 2006 while emphasizing that it was well within the discretion of the lower Court to review or not to review the decision of the Returning Officer.
On the issue of exercise of discretion, learned Counsel referred to the cases ALCATEL KABEL METAL NIG. PLC V. OJUGBELE (2003) 2 NWLR (PT.805) 429, ELENDU V. EKWOABA (1995) 3 NWLR (PT.386) 704 and SAVANNAH BANK V. NDIC (2005) 11 NWLR (PT .936) 311 where it was held that where judicial discretion has been exercised by a trial Court judicially and judiciously particularly uninfluenced by irrelevant considerations and not arbitrary or illegal an appellate Court will not interfere with that exercise if it would not result in a miscarriage of justice. Further to this, learned Counsel submitted that the exercise of the discretion by the lower Court did not occasion any miscarriage of justice because it was doing so pursuant to the provisions of the Electoral Act. 2006.
While arguing that the case of BUHARI V. OBASANJO (supra) was distinguishable and not applicable to the facts and circumstances of this case, learned Counsel submitted that it is a misconception to understand that 10,789 votes under paragraph (a) were invalidated and cancelled. He also argued very forcefully that it is not true, as canvassed by learned Counsel on behalf of the appellants that the votes cancelled by the lower Court were again added to the total votes declared for the parties.
In conclusion, learned Counsel argued that the judgment of the lower Court was clear and unequivocal in every respect and maintained that the appellants cannot read into it what was not there. He maintained further that there appears to be a mix-up at page 8 of the judgment, wherefor the tabulation of the votes added in the last two paragraphs of that page because the votes in tabulation (a) i.e 10,789, not having been cancelled are the only votes that can be added to whatever was left after deducting the votes that were cancelled. He urged the Court to resolve this issue in favour of the 1st and 2nd Respondents against the Appellants.
Learned Counsel to the 3rd – 5th Respondents formulated and argued 6 issues for the determination of this appeal. I consider issues 4 and 5 in this brief to be the most germane answer to the issue currently under review in the determination of this appeal. According to learned Counsel Miss. Obaseki, it is abundantly clear that the 1st petitioner did not score the majority of lawful votes cast at the election. Learned Counsel maintained that the 1st Respondent was duly elected and returned as the winner of the election held on 14/04/07 with 32,151 votes against 3,662 votes scored by the 1st Petitioner. She urged the Court to uphold the return of the 1st Respondent as the winner of the said election.
I have carefully considered all the foregoing arguments and submissions of respective learned Counsel along with what I consider the most crucial part of the judgment of the lower Court subject matter of this appeal. This portion of the judgment is at pages 459 – 461 of the record of appeal. It is hereby reproduced as follows: –
“The learned Counsel to the petitioners in page 19 – 24 of the “WRITTEN ADDRESS OF PETITIONERS” made a tabulation of all the exhibits tendered before the Tribunal.
We have painstakingly examined them in line of with relative law and arrived at the following conclusion:
a) INVALID BALLOT PAPERS (BY VIRTUE OF NOT BEING STAMPED AND SIGNED).
b) INVALID VOTES BY VIRTUE OF OVER VOTING are hereby cancelled. Page 19 – 21.
c) INVALID VOTES BY VIRTUE OF CONFLICTING SIGNATURES OR NAMES ON RESUL T SHEET COMPARED TO SWORN DEPOSITION are hereby cancelled. Page 21- 22.
d) INVALID BALLOT PAPERS BY VIRTUE OF SIGNED BY PERSONS OTHER THAN PRESIDING OFFICERS. Page 22 (bottom of the page) are hereby cancelled.
With due respect, we disagree with the submission of the learned Counsel to the petitioners “that INEC guidelines cannot be contradicted by oral evidence thus the suggestion by R.W. 11 that a Presiding Officers may delegate his function is improper.” The case of AWUSE V. ODILI (2005) 16 NWLR (PT.952) 416 at 467 – 468. Ratio 29 is inapplicable. The issue of delegatory function of the Presiding Officer is purely administrative.
We have earlier stated that the evidence of the 1st and 2nd Respondent’s witnesses was supported by that of the only one 3rd
– 5th Respondents’ witness R.W.11 who was the electoral Officer in charge of Uhunmwode Constituency election on behalf of the 3rd – 4th Respondents. We have said he is the most vital witness in this petition. It could be recalled in a petition No. EDSA/EPT/2/07: Hon. Edoba Aikpitanyi vs. Mr. Bright Osayande and 4 Ors. This Honourable Tribunal had this to say –
“The election officer is the most senior representative of INEC in that Local Government Area. He is the eye, the ear and soul of INEC in the Local Government Area, so anything he says about the conduct of an election at that level is sacrosanct”
We still stand by that remarks. So if the votes in tabulation
(a) 10,789 P.D.P A.C NIL
!! !! (b) 1,306 P.D.P A.C 32
!! !! (c) 7,794 P.D.P A.C. 417
!! !! (d) 9,187 P.D.P A.C NIL
Are add to tabulation (iv) on page 24 of the petitioners address, the 1st Respondent would still be far ahead of this 1st Petitioner. The difference is clear and the margin so wide even if you take away the votes in Unit 1 Ward 10, Unit 5 Ward 7, Unit 1 Ward 5, Unit 6 Ward 6 – totality 1,689 votes, and the 44 invalid ballot papers Exhibit 77.” {Underlining mine for emphasis}
From this portion of the judgment some logical inferences and conclusions can be made as necessarily arising from the peculiar circumstances of this a12peal. For example:-
– None of the Respondents challenged any findings and decisions of the lower Court by way of a cross-appeal or Respondents notice.
– The judgment being in the nature of a document contained in the record of appeal must be allowed to speak for itself.
– While maintaining that the judgment was clear and unequivocal, learned Counsel Mr. Osifo also appears to say that there was a mix-up at page 8 of the judgment.
– Paragraph (a) at page 8 is entitled – Invalid Ballot papers (by virtue of not being stamped and signed) votes involved- 10,789.
– An invalid ballot paper cannot convey a valid vote.
– Any vote that is not validly cast at an election, upon proof is liable to being cancelled.
– I have myself seen some of the ballot papers in Exhibit 132. They are unsigned and unstamped.
– According to INEC’S manual for Election Officials 2007, Exhibit 141 herein, Art. 3.2 p.21. The Presiding Officer shall prepare the ballot papers for each election by stamping and signing the back of each ballot paper. According Art 4.1 at p. 26 a ballot paper shall be rejected where it has not been signed by the Presiding Officer.
After this preliminary exercise of drawing some inferences, I wish to observe that the contents of a good judgment of a Court of law must of necessity include, a statement on the parties to the matter, an introduction of the case put up for adjudication, the position of each of the parties to the case stated, a resolution and formulation of the issue or issues to be settled, actual consideration of the facts against the law on the subject matter of the dispute, findings and consequential orders upon findings etc. Depending upon the facts and circumstances of any particular matter, what I set out above appears to me to be minimum expected in a judgment.
It is trite law in this Country that election matters are in a class of their own (sui generis). Adjudication in election matters would normally revolve around documentary evidence in most cases. It is part of resolution of election disputes to cancel unlawfully credited votes in appropriate circumstances. It is also a normal exercise to nullify the result of an election and set aside the declaration and return of a candidate who did not score a majority of lawful votes in an election. In the circumstances of this case, the lower Court, based on credible evidence before it, cancelled some votes which it considered invalid. This cancellation of votes affected the 1st and 2nd Respondents more than the Petitioner/Appellants. The Respondents did not cross-appeal against the findings of the lower Court leading to a cancellation of what I consider a massive number of votes. There was also no Respondents’ notice to vary or alter the findings of the lower Court on other grounds.
Further to the foregoing development, respective learned Counsel to each set of Respondents conceded to some of the cancellations, but objected only to just one aspect of it. So the issue here is not about cancellation of invalid votes, but simply the extent of cancellations that ought to have been made by the lower Court. Therefore, the issue for determination in this appeal appears to me to have narrowed down to a smaller perspective i.e, whether the cancellation of votes under paragraph (a) of the Table at page 24 of the Petitioner’s written address was reasonable or permissible in the circumstance.
From the portion of the judgment set out above, it is very clear to me that in arriving at its judgment, the lower Court agreed that the evaluation and analysis of the facts and evidence in the case before it leading to its graphic representation in a tabular layout was acceptable to it. This presentation was in page 24 of the written address of Counsel to the Petitioners. This tabulation appears to me to have been accepted and incorporated into the judgment. There is no appeal against this finding and approach of the lower Court. In the absence of any argument to the contrary, I see this as reasonable and also not perverse. I do not therefore see any reason to interfere with this decision.
On the narrow point, learned Counsel Mr. Osifo, for the 1st and 2nd Respondents, argued very forcefully that the cancellation of votes does not and could not be said to include those in paragraph (a). Like I pointed out earlier, the votes in paragraph (a) are 10,789 votes. They were said to have emanated from ballot papers that were not stamped or signed by the duly authorized Officer of INEC. We were told that they are called “Presiding Officers.” Let it be noted that according to INEC’s Manual for election Officers, a Presiding Officer must prepare the ballot papers for each election by stamping and signing the back of each ballot paper. It is also a very and vital election guideline that a Presiding Officer at an election must reject a ballot paper that has not been stamped and signed by him or other officer of INEC duly authorized in that behalf. My thinking in this direction is very clear. Just as I surmised hereinabove, any vote in an election that was not validly cast, upon full proof, is liable to being cancelled. A ballot paper that was not stamped and signed must be rejected. A rejected ballot paper is invalid for that election in which it was rejected. Without any doubt an invalid ballot paper cannot convey a valid vote. It is therefore surreal for learned Counsel Mr. Osifo to argue that the cancellation made by the lower Court does not include paragraph (a) which pertained to and was concerned with “invalid ballot papers (by virtue of not being stamped and signed) I think the cancellation of the 10,789 votes duly and properly found to have been conveyed by invalid ballot papers was a necessary effect and consequence. It was fully needful in the circumstance. I therefore, find the arguments of Mr. Osifo, of Counsel, on the 10,789 votes in paragraph (a), as very feeble highly untenable. I therefore reject and discountenance that argument in its entirety.
It is indeed correct and unassailable that where in an election matter an objection is taken as to the validity of votes credited to a party and such an objection was upheld, any votes credited must be declared as invalid and illegal votes. It is also a natural and logical sequence that any Election Tribunal that declared votes as illegal, according to the facts, evidence and the law, must proceed to the next step by exercising it duty to deduct and take away all such votes from the total votes scored and credited to the affected candidates. See AJADI V. AJIBOLA (supra).
The lower Court had a duty to compute the final results of the election after it declared some of the votes returned by INEC for the candidates as invalid and proceeded to cancel them. A computation of the votes for the final result of the election was incumbent upon the lower Court. It is this crucial exercise that the lower Court failed to do. We are now invited by learned Counsel Dr. Obayuwana to rely on the decision of this Court in NGIGE V. OBI (supra) to this mandatory exercise. I agree that this invitation is proper in the circumstance and is hereby accepted. I shall proceed accordingly anon. It is therefore a total misconception for the lower Court to fail to subtract or deduct all the votes it cancelled from the votes credited to the respective candidates in the final declaration of results form for the Uhunmwode Constituency. The approach was wrong and must be interfered with by this Court. It was perverse and unreasonable for the lower Court to proceed to add votes to the scores of the candidates in this appeal. The proper thing to do was to subtract or deduct those cancelled votes. The judgment of the lower Court must be read ut res magis veleat guam pereat in order to avoid contradictions, inconsistence or absurdities.
From a total over-view of the entire circumstances of this appeal, I agree with the arguments and submissions of learned Counsel to the Appellants that the lower Court fell into a grave error when it failed to deduct or subtract the votes it cancelled from the overall votes declared for the 1st Respondent on the one hand and the 1st Petitioner/Appellant on the other.
This issue is hereby resolved against all the Respondents in favour of the Appellants. In consequence of the above this appeal is hereby allowed. I am fully satisfied that the resolution of this issue has sufficiently resolved the real dispute in this appeal. I do not therefore see any reason to consider any other issues.
I also agree and find that the actual valid and lawful votes scored by the Petitioners/Appellants are 3,893 – while those for the 1st and 2nd Respondents are – 2,004 for the foregoing reasons, I hold that the 1st and 2nd Respondents were not duly returned as the winners of the election of 14/04/07 for the Uhunmwode Constituency of Edo State House of Assembly. The order of the lower Court declaring them as winners is hereby set aside. The return of the 1st and 2nd Respondents is nullified and the Certificate of return issued to her is also set aside. In its place, the Petitioners/Appellants are hereby declared the winners of the election for the Uhunmwode State Constituency of the Edo State House of Assembly held on 14/04/97 having scored a majority of lawful votes. The 3rd – 5th Respondents are hereby ordered to issue the 1st Appellant herein the necessary certificate of return as decided herein and forthwith to enable him to be inaugurated as the duly elected candidate for the Uhunmwode Constituency of the Edo State House of Assembly.
The 1st Respondent shall vacate the seat forthwith. No order for costs.
Other Citations: (2009)LCN/3233(CA)
