New Nigerian Peoples Party (Nnpp) & Anor V. Franklin Otele & Ors (2003)
LawGlobal-Hub Lead Judgment Report
E. AKPIROROH, J.C.A.
There are two appeals in this Suit. The first Appeal CA/PH/EPT/167/2003 is an interlocutory Appeal by the 1st Respondent against the Ruling of the Tribunal delivered on 13/6/2003 in which the Tribunal held that the Petition was competent in law. The second Appeal (CA/PH/EPT/223/2003) filed by the Appellants is against the judgment in the substantive Suit delivered on 16/7/2003 challenging the dismissal of the petition.
The dispute that led to the filling of the petition at the Tribunal arose over the result; of the election declared by the 3rd respondent in respect of election to the Bayelsa State House of Assembly for Yenagoa Constituency 3 which was re-scheduled and held on 6/5/2003.
The appellants claimed in their petition as follows:
(i) “That the purported return of the 1st Respondent at Yenagoa be annulled as invalid and that the entire purported election be also declared invalid, void and vitiated by reason of non-compliance with the provisions of the Electoral Act and to order for fresh election for the Yenagoa III State Constituency.
(ii) That the 1st Respondent was not qualified to vote or be voted for in the election by reason of not being a registered voter.”
Upon service of the petition on the 1st Respondent, he filed a preliminary objection in which he challenged the competence of the petition which was argued and dismissed.
Dissatisfied with the ruling, the 1st Respondent/Appellant appealed against it and filed a brief and formulated one issue for determination as follows:
1. Was the Tribunal right when it held in its Ruling of 26/6/2003 that the petition dated 27/5/2003 is competent in law”
The Respondents did not identify issue for determination but proceeded to argue the appeal based on the issue distilled by the 1st Respondent/Appellant in his brief.
Also dissatisfied with the judgment of the Tribunal, the appellants appealed against it, filed a brief of argument and formulated the following issues for determination:
ISSUES FOR DETERMINATION
l. “Does the judgment of the tribunal below show a proper comprehension of the actual complaint of the petitioners – Ground One.
2. Did the Tribunal below approach the evidence led by the parties in a manner that was prejudicial to the case of the Petitioners – Ground Two.
3. Was the Tribunal below correct when it held that there was an election in Yenagoa constituency III on 6/5/2003 – Ground Three and Four.
4. Was the Tribunal below corrects in suo motu raising and resolving against the petitioners the question of inspection of copies of documents in possession of the 3rd to 5th Respondents – Ground Five.”
The 1st Respondent also filed a brief of argument and raised the following issues for determination:
2. “Was there a miscarriage of Justice in the manner the Tribunal considered the case and reached its decision in this case?
3. Was the Tribunal wrong in its finding that elections into the State House of Assembly was duly held in Yenagoa III Constituency on 6/5/2003,
4. Did the Tribunal base its judgment in this case on an issue raised suo motu by it?”
The 2nd respondent also filed a brief of argument in the substantive appeal and raised the following issues for determination:
ISSUES FOR DETERMINATION
1. “Does the judgment of the Tribunal below show a proper comprehension of the actual complaint of the petitioner?
2. Did the Tribunal below approach the evidence led by the parties in a manner that was prejudicial to the case of the petitioners.
3. Was the Tribunal below correct when it held that there was an election in Yenagoa Constituency III on 6/5/2003.
4. Was the Tribunal below corrects in suo motu raising and resolving against the petitioners the question of inspection of copies of documents in possession of 3rd – 5th Respondent.”
I will first of all consider the Preliminary Objection filed by Senior Counsel for the respondents against the interlocutory decision of the Tribunal delivered on 23/6/2003.
The substance of the Preliminary Objection of Senior Counsel to the respondents is that as the appeal was filed by the 1st Respondent/Appellant without leave of either the Court below or this Court, it is incompetent and relied on Section 246(1)(b) (i) of the 1999 Constitution which creates right of appeal to the Court of Appeal as of right only in respect of any question as to whether any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under the Constitution.
Section 246(1)(b) (i) of the 1999 Constitution relied on by Senior, Counsel for the respondents provide as follows:
“246(1) An appeal to the Court of appeal shall lie as of right from…
(b) decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether –
(i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under the Constitution.
The question raised in the grounds of appeal in this appeal is whether the Tribunal was right when it held that the petition before it was competent. Certainly this is not a question as to whether any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under the Constitution. The 1st Respondent/Appellant therefore requires leave of the Court below or of this Court before filing his appeal.
A careful perusal of the record of proceedings shows that there is nowhere the 1st Respondent/Appellant sought and obtained the leave of the Court below before filing the appeal. Similarly, leave of this Court was not sought and obtained before filing the appeal.
The submission of learned Senior Counsel is therefore well founded and based on a solid rock. The 1st Respondent/Appellant having not sought and obtained the leave of the Court below and this Court before filing the appeal against the interlocutory decision of the Tribunal delivered on the 23rd of June, 2003 is therefore incompetent and it is accordingly struck out.
If I am wrong in striking out the appeal on the Preliminary Objection, I will consider the appeal on its merits.
In arguing the lone issue formulated by 1st Respondent/Appellant in the interlocutory appeal, Senior Counsel submitted that the mandatory statutory requirement imposed on the respondents to state in the petition the scores of votes at the election by paragraph 4(1) (c) of the schedule to the Electoral Act 2002 was not complied with and that this is fatal to the petition and rendered it totally incompetent. Reliance was placed on the cases of OFFOMAH v AJEGBO (2000) 1 N.W.L.R. (Pt 601) 498; and IBRAHIM v. INEC 8 N.W.L.R. (Pt 614) 374.
He further argued that the Tribunal itself conceded the effect of failure to state the scores at page 43 of the records and inspite of upholding 1st Respondent/Appellant’s contention misdirected itself by holding at page 24 of the records that by virtue of Ground No.2 and prayer No. 2, there is a valid and justified reason to save the petition to be heard on the merits which was clearly in its conclusion stressing that the Tribunal having found that the petition was defective, it ought to have struck it out as ground 2 relied on is not a valid ground for questioning an election.
He went further to submit that registration as a voter is not one of the condition a person aspiring to be a member of House of Assembly of a State is required to meet under the 1999 Constitution stressing that a candidate need not be a registered voter in order to contest election and it does not constitute a ground for challenging an election.
He further contended that for a Tribunal to have jurisdiction to entertain any proceedings before it, it must ensure that such proceedings must have been brought in accordance with due process and relied on MADUKOLO v. NKEMDILIM (1961) N.S.C.C. 3375 AT 379. It was also his submission that the petitioner having failed to comply with Paragraph 4(i) (c) (supra), it was not brought in accordance with due process and as such the Tribunal had no jurisdiction to entertain it and it was clearly an error when it did not strike it out.
In reply, Senior Counsel for the Respondents submitted that the Tribunal was right when it held that the number of votes scored by the parties at the election are not in issue and as such failure to state them is not sufficient to render the petition incompetent and as such it was right in declining to strike out the petition. He went on to argue that as substance of the petition was that while there was no election on May 6, 2003 in Yenagoa III Constituency Bayelsa State, the 1st Respondent was returned, this does not put the number of votes scored in issue and cited in support OGBEIDE v. OSULA (2003) 15 N.W.L.R. (Pt. 266) 285 – 287 and OGBEBOR v. DANJUMA (2003) 15 N.W.L.R. (pt 843 at 425 and OWURU v. INEC (1999) 10 N.W.L.R, (pt 622) 201.
The substance of the petition was that while there was no election on May, 6 2003 in Yenagoa III Constituency Bayelsa State, the 1st Respondent was returned by the 3rd Respondent as winner of the election. As the respondents did not question the number of votes scored at the election,it is my view that failure to state the number of votes scored does not render the petition incompetent. In OWURU v. INEC (supra) it was held:
“While I agree with the submission of learned counsel that the number of votes of the candidate are not stated in the petition as required by paragraph 5 (i) (c) of Schedule 5 of the said Decree (No. 5 1999) it is my view that since the number of votes scored by the parties at the election are not in issue in this case, failure to state them is not sufficient to render the petition incompetent.”
Since the votes scored by the parties are not in issue in this case in view of the appellants’ case that no election was held in Yenagoa Constituency III on 6/5/2003 failure to state the scores of the parties does not render the petition.The appeal therefore lacks merits and it is hereby dismissed. The 1st respondent is to pay the appellants N5000.00 costs.
The substance of the submission of Senior counsel on the second issue in the substantive appeal was that the Tribunal considered the case of the respondents and made findings of fact on the issue in controversy before considering the case of the appellants and that this procedure adopted by the Tribunal prejudiced the case of the appellants and cited in support the cases of WHITE v. JACK (1996) 2 N.W.L.R. (pt. 431) 407, ALHAJA OLADOJA; SANUSI V. OREITAN ISHOA AMEYOGUN (1992) 4 N.W.L.R. (Pt 237) 527 at 553, and OLUCHEM & ORS v. GUDI & ORS (1981) 5 S.C. 291 and MOGAJI & ORS V. ODOFIN & ORS (1978) 3 S.C. 91.
In reply Senior Counsel for the 1st Respondent submitted that the Tribunal did not act in a manner prejudicial to the appellant’s case because a court is not bound to follow a set approach in reviewing the evidence led by the parties, stressing that the Tribunal is not bound to review the came of the plaintiff before that of the defence and it is entitled to adopt an approach which in its view will enable it do justice to the parties and this was what the Tribunal did in this case.
He referred to the findings of the Tribunal at page 237 of the records and submitted that the finding does not mean it accepted the case of the 1st Respondent before considering the case of the appellants. He further argued that at that stage, the Tribunal did not prefer the evidence of the Respondents to that of the appellants He further contended that the conclusion of the Tribunal “that there appears to be election in Yenagoa Constituency III” was the Tribunal only reference to a prima facie case having been made by the respondents on the basis of the evidence led by them. It was also, his submission that the Tribunal considered the totality of the evidence led by the parties, and its decision was based on available evidence and as such it was not prejudicial to the appellants and did not occasion any miscarriage of justice.
Senior Counsel for the 2nd respondent submitted on this issue that the quality of the evidence adduced by the appellant is such that no manner of approach adopted by the Tribunal in its evaluation can make it sustain the appellant’s claim.
It is well settled that the proper manner to evaluate evidence led by the parties to a case is to place the evidence called by either side to the conflict on every material issue on either side of an imaginary scale and weigh them together to see which outweighed the other in terms of probative value. See MOGAJI & ORS v. ODOFIN & ORS. (supra).
The complaint of the appellants in their brief of argument is that the Tribunal reviewed the case of the appellants, made findings of fact, before the case of the respondents which was prejudicial to their case, and referred to page 236 lines 27 to page 237 lines 27.
At this stage, I would like to reproduce what the Tribunal said at page 237 of the records to determine whether it reviewed the case of the appellants, made findings of fact, before the case of the Respondents. The Tribunal held as follows:
“Looking at the activities of the Defence witnesses on 6/5/2003 the conclusion one would arrive at is that there appears to be election in Yenagoa Constituency III as indicated by the evidence of the Defence witnesses highlighted above…”
Looking at what the Tribunal said above, it is my view that it did not accept the case of the respondents before considering the case of the appellants. It did not prefer the evidence of the respondents to that of the appellants at that stage. It went further to say on the same on page thus:
“… We shall now consider the evidence led by the Petitioners vis-a-vis the activities in each of the Ward to see whether or not there is enough evidence to tilt the scale against the conclusion earlier reached and while considering the evidence of the defence witnesses… ”
I am therefore unable to accede to the submission of Senior Counsel for the appellants that by that conclusion, the Tribunal reviewed the case of the appellants, made findings of facts before reviewing the case for the respondents.
The Tribunal considered the totality of the evidence led by the parties and based its decision on the evidence led before it and as such its approach to the evidence led before it was not prejudicial to the appellants and did not occasion any miscarriage of justice. This issue is resolved in favour of the respondents against the appellants.
On the third issue, Senior Counsel for the appellants adopted his submission on issue two and further submitted that the appellants adequately highlighted the weakness in the case for the respondents’ witnesses but the Tribunal failed to address or resolve them before accepting their case.
He also referred to Exhibit A produced by the appellants which was not considered by the Tribunal before it came to the conclusion that elections were held in Yenagoa Constituency III on 6/5/2003. He further argued that if the evidence of D.W. 1 was rejected by the Tribunal; there would have been no basis for the conclusion reached by it.
In his reply, Senior Counsel for the 1st Respondent submitted that the appellants failed to discharge the burden of proof as required by law that elections were not held on 6/5/2003 in Yenagoa Constituency III. He relied on the evidence of D.W1, D.W.3, D.W.7, D.W.8, D.W.10, D.W.11 and D.W.12, the officials of the 3rd respondent who testified that they conducted election in Yenagoa III Constituency on 6/5/2003, and that their evidence was not challenged by the appellants, stressing that in the absence of such challenge, the Tribunal is entitled to hold that the election was held on the said date, and the results tendered by the said witnesses are presumed to be genuine. Reliance was placed on Section 114 of the Evidence Act. He finally submitted that on the totality of the evidence led, the Tribunal was right when it held that election was held into Bayelsa State House of Assembly in Yenagoa constituency III on 6/5/2003.
Senior Counsel for the 2nd respondent submitted that based on the evidence adduced before the Tribunal, it could have not come to a different conclusion in the face of the evidence of D.W.1, D.W.3, D,W.7, D.W.9, D.W.10, D.W.11 and D.W.12 who conducted the election and testified as defence witnesses.
The issue joined by the parties was as to whether election was held on 6/5/2003 in Yenagoa Constituency III in Bayelsa State, in proof of their case, the P.W.1 – P.W.8 testified in support of the appellants’ contention that there was no election held in Yeragoa Constituency III on 6/5/2003. The 1st Respondent on the other hand relied on the evidence of D.W.1 (Electoral Officer Yenagoa), D.W. 3 Constituency Returning Officer, Yenagoa) D.W.7 (SPO Ward 13 Yenagoa) D.W.8 (SPO Ward 12) D.W.9 (SPO Ward 15) D.W. 10 (Collation Officer Ward 14) D.W.12 (Collation Officer Ward 15) who testified they conducted the election in Yenagoa III Constituency on 6/5/2003 and also tendered the electoral materials used in the election. At page 239 of the records the Tribunal held:
“In the circumstance we are unable to hold that the Petitioners have discharged the onus of rebutting the presumption that election was held in of rebutting the presumption that election was held in Yenagoa Constituency III on 6/5/2003. In this regard we find the evidence of the Defence witnesses credible and hold that from the circumstances of the case and the evidence before us we find as a fact that election was held in Yenagoa Constituency 3 on 6/5/2003 in which the 1st Respondent Franklin Otele was duly returned. The 2nd issue formulated for determination is thereby answered in the affirmative.”
The Tribunal evaluated the evidence of P.W.3, P.W.4, P.W.5, P.W.7 and P.W.8 and reacted their evidence on the ground that P.W.3 is the younger brother of the 2nd appellant and also Party Agent of the 1st appellant, P.W.8 was the Party Agent of the 1st Appellant during the said elections while P.W.4 and P.W.5 are relations of the 2nd Appellant while P.W.7 has always enjoyed political favours from the 2nd appellant.
These findings of facts were made by the Tribunal after the evaluation of the evidence of witnesses called by both parties. It is well settled law that where a trial Court has properly evaluated the evidence before it, and come to a right conclusion, it is not the business of the Appeal Court to interfere. See AKILU v. OPALEYE (1974) SC 189. This issue is resolved in favour of the respondents against the appellants.
On issue four, Senior Counsel for the appellants submitted that the conclusion reached by the Tribunal that it had examined copies of documents in possession of the 3rd – 5th respondents and found them to be correct was raised suo motu without any imput from the parties. Reliance was placed on the cases of KUTI v. JIBOWU (1972) C.S.C. 147; LAHAN v. LAJOYETAN (1972) 6 SC 190 and OLUSANYA v. OLUSANYA (1983) 1 SCNR 134.
He further submitted that having regard to the nature of the complaint of the appellants that there was no election at all, it was most improper for the Tribunal to have reached the conclusion it reached, pointing out that it was also wrong when it said at page 206 lines 14 -18 and page 211 lines 23 and page 212 line 2 that the petitioner did not make reference to these documents.
In reply, Senior Counsel for the 1st Respondent/Appellant submitted that the decision of the Tribunal to dismiss the petition was based on the evidence adduced by the parties and tendered and not on issue raised suo motu by it. With respect to the documents he submitted that they were tendered in evidence without objection by the appellants and as such they are presumed to be genuine.
In reply, Senior Counsel for the 2nd respondent submitted that the decision of the Tribunal on the electoral documents was not an issue raised suo motu by the Tribunal rather it was made an issue before it by the appellants in their petition and motion for inspection. He went further to argue that the Tribunal dismissed the petition of the appellants for failure to prove their case and that it was not persuaded by the failure of the appellants to challenge the electoral documents because it preferred the evidence of the defence witnesses.
In paragraph 12 of the petition, the appellants pleaded thus:
“12 The Petitioners hereby give notice to the respondents to produce the following:
(a) Summary of results (if at all) from all the Polling stations of Yenagoa III Constituency.
(b) Summary of results (if at all) from all the 4 wards of the Constituency.
(c) Final result sheets for collation of all results in the election (if any).
(d) Declaration of results forms.”
At the trial these documents were tendered in evidence without objection by the appellants. They are therefore presumed to be genuine. Since they were pleaded and tendered, they form part of the issues which the Tribunal is to take into account in reaching its decision. It was therefore right in holding that the failure of the appellants to object to the said documents raise a presumption that the documents were genuine. I am therefore unable to accede to the submission of Senior Counsel for the appellants that the issue in respect of the documents was therefore not an issue raised suo motu and resolved without any input from the parties. This issue is also resolved in favour of the respondents against the appellants.
Having resolved all the issues in favour of the respondents against the appellants, this appeal lacks merit and it is hereby dismissed. The decision of the Tribunal is hereby affirmed. The appellants are to pay each of the 1st and 2nd respondents N5, 000.00 each.
With respect to the interlocutory appeal by the 1st respondent against the decision of the Tribunal delivered on 23/6/2003 which I struck out, the 1st respondent is to pay N5000.00 costs to the appellants.
Other Citations: (2003)LCN/1502(CA)
