Pius Nwoga V. Mr. Emeronye Benjamin & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
SULEIMAN GALADIMA, J.C.A.
This is an appeal by the 1st Respondent (now the “Appellant”) against the decision of the Governorship and Legislative House Election Tribunal holden at Owerri in Imo State of Nigeria delivered on 31/10/2007 declaring that the 1st Respondent, the candidate of All Progressive Grand Alliance (APGA) herein scored the majority of lawful votes cast at the election of 14/4/2007. Hence, he was declared the member representing AHIAZU MBAISE LOCAL GOVERNMENT AREA CONSTITUENCY.
Dissatisfied with this decision the Appellant brought this Notice of appeal containing THREE GROUNDS of appeal. The grounds of Appeal shorn of their particulars are as follows:
“GROUND ONE
ERROR IN LAW:
The Honourable Election Petition Tribunal erred in law then the Tribunal held as follows:-
“Relying on Exhibit 10, our conclusion is that the genuine result for Eke Amuzi polling station is the cancelled result for that unit.
GROUND TWO
ERROR IN LAW
The Honourable Election Petition Tribunal erred in law when it held as follows:
“The second set of votes in Exhibit 1 which we have found are not authentic namely 114 votes accredited to the petitioner and 82 votes for the 1st Respondent must be deducted from their scores of 10,956 and 10,827 votes respectively to arrive at the final scores of each of them. After such deduction the scores will now read:
Petitioner 10,842
1st Respondent 10,745 votes
GROUND THREE
ERROR IN LAW
The Honourable Election Petition Tribunal erred in law when it relied on the first set of result in Exhibit 1 to hold that the Petitioner scored the majority of lawful votes cast at the election.”
In compliance with the Practice Directions No. 2 of 2007, briefs of argument were filed and exchanged by the parties. The Appellant’s brief of argument was dated and filed on 21/1/2008. A sole issue was raised for determination thus:
“Whether the Honourble Election Petition Tribunal was justified in holding that the cancelled result of Eke Emuzi Market Square (Code 016) polling station was the genuine result for that unit and in making use of same to compute the total scores for the election.”
1st Respondent’s brief of argument dated 5/3/2008 was deemed validly filed upon an application on 7/4/2008. Single issue was also formulated for the determination of the appeal thus:-
“Whether the Honourable Tribunal was right in holding that it was the first set result recorded in Exhibits 1 and 5 that were the real result for Eke Amuzi (Code 016) polling station?”
The 2nd – 8th Respondents’ brief of argument was filed on 3/3/2008. They adopted the sole issue formulated for determination by the Appellant.
I shall now consider the various submissions of the learned counsel for the respective parties. On the 8th April 2008 this appeal came up for hearing. EMEKA O.NWAGWU Esq., learned counsel for the Appellant adopted the Appellant’s brief and urged us to allow the appeal. He however presented the sole issue for the determination of the Appeal. In the brief he has submitted that the lower Tribunal was not justified in holding that the cancelled result for Eke Amuzi Market Square (Code 016) polling station was the genuine result for that polling station. He has supported this submission with undisputed evidence of DW2 under cross-examination by the 2nd – 8th Respondent at page 176 of the record and from the contents of Exhibit 1 and Evidence of PW1 under cross-examination and the form the contents of Exhibit 4.
It is therefore submitted that the first set of results in Exhibit 1 does not reflect the correct scores at Eke Amuzi Polling Station. The following reasons were proffered: That in the first set of results in Exhibit 1 the following political parties namely AA, BNPP and FRESH that did not sponsor candidates for the election were erroneously credited with votes. BNLP pleaded by the 1st Respondent in paragraph 8(c) of the petition (paragraph 1 page 6 of the record) also did not sponsor any candidate at the election. That similarly the DPP that sponsored Enyioko Eucharia was erroneously excluded from the first set of results in Exhibits 1. It is also submitted that the cancelled result in Exhibit 1 was not credible, conclusive and probable result because of over voting of ballot stuffing. That this Court can only act on authentic and credible result. Learned counsel has contended that all the political parties that sponsored candidates for that election (except the PPA which complained of exclusion) had their correct scores recorded in the second set of results in Exhibit 1 and the agents of AC, ANPP, APGA and APGA countersigned them. It is further contended that if the scores in the second set of results pleaded in paragraph 8(d) of the petition are added up it will give a total of 227 votes which is in consonance with the 227 valid votes recorded in Exhibit 1. It is therefore submitted that the Petitioner did not prove allegation of the result for Eko Amuzi Polling Station on balance of probability or preponderance of credible evidence. Reliance was placed on the case of MOGAJI & ORS. v. ODOFIN & ORS. (1978) 3 – 4 SC 91 @ 94 – 95; LARMIE v. D.P.M. & SERVICES LTD. (2006) ALL FWLR (PT.296) 775 @ 800 and KINGIBE v. MAINA (2004) ALL FWLR (PT.191) page 1,555 @ pages 1588 – 1589.
For the above reasons we were urged to resolve this issue in the negative and allow the appeal.
On his part learned counsel for the 1st Respondent, N.A. NNAWUCHI Esq., submitting arguments on this issue contended that the first set of votes were the real and actual figures from Eke Amuzi Market Square (Code 016) polling station. He submitted that where the court is faced with two contradictory statement or testimonies of witnesses called by the same party on the same point, the court is at liberty to disbelieve all the witnesses. That the court cannot pick and choose the testimonies to be believed. Reliance was placed on the cases of AREHIA & ANOR. v. STATE (1982) 13 NSCC 85 @ 89; ONUBOGU v. STATE (1974) 1 ALL NLR (PT.II) 5 @ 18 and BOY MUKA v. THE STATE (1976) 9 & 10 SC 305 @ 325. Learned Counsel contended that from the testimony of DW5 and in consonance with the pleading of the 1st Respondent at paragraph 17 of his reply, the reason or circumstance that led to the abandonment of the first set of votes in Exhibit 1, was fully explained. That the reason for canceling Exhibit 1 is that the result written therein was for the Governorship election. It is submitted that the Appellant’s case on this point was completely destroyed by Exhibit 10, which was the result of the Governorship election in the disputed polling station. It is submitted that the reason given by the DW6 for the re-writing of the result at the bottom of Exhibit 1 contradicts the reason given by DW5. Reference was made to page 176 of the records where DW6 testified. That this second reason was a clear departure from the one given by the DW5. It is submitted that the trial Tribunal was right in not acting on any of the testimonies of DW5 and DW6 because it could not pick and choose the testimony to believe. Reliance was placed on the cases of ONUBOGU v. STATE (supra): AWUSE v. ODILI (2005) 16 NWLR (Pt. 952) 116 @ 482 – 485 and ONAFOWOKAN v. STATE (1998) 8 NWLR (PT.561) 538.
It is therefore urged on us to resolve this issue in favour of the 1st respondent and affirm the finding of the lower Tribunal on the election at Eke Amuzi Market Square (Code 016) polling station and accordingly to dismiss the appeal.
The 2nd – 8th Respondents adopted the sole issue formulated for determination by the Appellant in his brief. They also adopted the statement of facts contained in paragraphs 4.01 – 4.12 of the Appellants brief of argument. The Respondents adopted the submissions and arguments proffered by the Appellant in his brief. They are in agreement. Their learned counsel C.U. EKOMARU Esq., from their brief submitted that it is not in dispute or controversy that only 400 ballot papers were sent to Eke Amuzi Market Square polling station for the election in question. It is also not in controversy that the total score contained in the first set of scores in Exhibit 1 and 5 was 535 which is above the total number of ballots papers delivered to that polling station for the election. That it is not explained where the excess ballot papers emanated. Learned counsel has submitted that where the sole question in an appeal is the inference or deduction to be drawn from agreed or contested facts the appellate court is in as much a good position as the trial court to draw any inference that could arise logically from the accepted facts. He relied on cases of ODOFIN v. AYOOLA (1984) 11 SC 72 @ 121; CHIMARE and ANOR v. EMEHONYON (1985) 1 NWLR (PT.2) 177.
It is therefore submitted that this Court is in a position to draw the necessary logical inference from the foregoing undisputed facts; moreso that the Tribunal did not take cognizance of the 400 ballot papers delivered to Eke Amuzi Polling Station and the fact that the total scores in the first set of scores in Exhibit 1 which was cancelled was more that the total number of ballot papers supplied to that polling station. That the lower Tribunal did not take account of the foregoing facts, else, it would not have come to the erroneous conclusion that the authentic result for that polling station was the cancelled one. For this error, learned counsel submitted, this finding cannot stand. He referred to the cases of MOGAJI v. ODOFIN (supra) and ADIMORA v. AJUFO (1988) 3 NWLR (PT.80) 1 @ pages 15 – 16. He has urged this court to allow the appeal and set aside the finding of the lower Tribunal.
For the clear understanding of the issues involved in this appeal, I shall recapitulate the salient facts of this case thereafter I shall consider the issues raised by the respective parties. The 1st Respondent in this appeal was the petitioner in the lower Tribunal. The Appellant and the other respondents were the Respondents. The 1st respondent brought the Petition now on appeal challenging the return of the Appellant as the elected member/Legislator representing the AHIAZU-MBAISE Local Government Area Constituency in the Imo State House of Assembly. The 1st Respondent specifically complained that the 4th respondent who was the returning officer at the said election wrongfully declared the 1st Respondent the winner of the said election. The 1st Respondent pleaded specifically that his vote scores were reduced by the 7th Respondent at Eke Amuzi Market Square (Code 016) polling station. The petitioner also complained about the election at Umuediabali (Code 006) polling station. At the close of trial the parties addressed the Tribunal and judgment was delivered on 31/10/2007 finding as fact that it was the petitioner who won the election by majority or lawful votes cast at the election. However, the Tribunal dismissed the petition because according to it, the petitioner failed to comply strictly with the provisions or paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2006. Hence the reason for these consolidated appeals.
Now to the issues. On issue No. 1 the question is whether the trial Tribunal was right in holding that it was the first set of result recorded in Exhibit 1 that was the real result for like Amuzi (Code 016) polling station. The material question at the trial Tribunal was what led to the abandonment of the first set of vote scores on Exhibit 1 and 5. The 1st Respondent’s case as that the first set of figures were the real and actual figure from the said Eke Amuzi Market Square (Code 016) polling station. These facts were stated in paragraphs 8(c), 8(d), 8(e) and 8(f) of the petition at pages 5 and 6 of the records of Appeal. I reproduce the paragraphs herewith:
“8(c) At Eke Amuzi market Square (Code 016) Polling Station in Amuzi/Ihenworie Ward, the petitioners actual score was reduced from 280 votes to 114 votes in the relevant Form EC81(i) No. 093044 used by the Presiding Officer, one Mrs. Ogoko Beatrice. At the said Polling Station and at the close of polls, the ballot papers were checked and counted by the Presiding Officer to the hearing of all present including the Petitioner’s agent. The results were duly recorded in the relevant Form EC8A(i) No. 093044. The result was so recorded as follows:
A – No vote
AC – 12 votes
ANPP – 12 votes
APGA – 280 votes
PDP – 116 votes
JP – 4 votes
LP – 2 votes
BNLP – 1 vote
FRESH – 1 vote
(d) However, and without just cause, the Presiding Officer turned around and started recording a new set of figures for the same election and in the same Form EC8A(i) hereabove pleaded. These new set of figures were as follows:
AC – 19 votes
ANPP – 7 votes
APGA – 114 votes
DPP – 3 votes
JP – 1 vote
LP – 1 vote
These were the figures which were recorded in the relevant Form EC8B No. 0006433 by the Ward Returning Officer.
(e) The Petitioner shall at the hearing of this petition found and rely on the form EC8A(i) No. 093044 and Form EC8B No. 0006433 hereabove pleaded. The 2nd and 3rd respondents are hereby given notice to produce same at the hearing of this petition.
(f) The Petitioner further states that the second result entered by the Presiding Officer in the aforesaid Polling Station has no connection with the votes cast at the said Polling Station and as such was only done to favour the PDP candidate.”
The facts pleaded in the above paragraphs were corroborated and proved by the evidence of PW2 – one STANLEY ECHIODOR, an agent of APGA. See also the two written depositions of this witness at pages 11 – 13 and 93 – 94 of the records.
In order to dislodge the case of the 1st Respondent on this point the Appellant pleaded at paragraph 17 of his reply on page 46 of the records Appellant pleaded at paragraph 17 of his reply on page 46 of the records thus:
“17. In further answer thereto the 1st Respondent avers that initially the results were not correctly entered in the relevant Form EC8A(i) used for the polling station. When the error was discovered it was promptly conceived and re-entered in the Form EC8A(i) by the Presiding Officer at the same polling station and in the presence of the agents of the political parties who were available and countersigned by them. The party agent of the APGA countersigned the result as well as the party for AC, ANPP and PDP.”
The above averment did not give particulars of the said error which led to the abandonment of the initial entry. The particulars were supplied by DW5 who stated in her written deposition on oath that she was the presiding officer at the said polling station at page 56 of the record of Appeal. She stated thus:
“After voting we collated the results and entered the results for House of Assembly in the relevant Form EC8A(1) No. 093044. All the party agents present including APGA agents signed. I immediately discovered that the results entered was the one for the Governorship election. I drew the attention of the agents of the political parties and they all suggested that we correct it and we corrected it in the same Form EC8A(1).”
DW5 while being cross-examined at page 175 of the records by Petitioner testified as follows:
“I have seen Exhibit 1. I made Exhibit 1. I cancelled the result and wrote another one. I did not make Exhibit 5. The reason for canceling Exhibit 1 is that I discovered the result written there is for the Governorship election.”
However, my attention has been drawn to Exhibit 10 by the 1st Respondent in paragraph 4.5 of his brief of argument. I agree with his counsel’s submission that the Appellant’s case on this point was completely punctured or destroyed by the emergence of Exhibit 10. Exhibit 10 was the result of the Governorship election in disputed polling stations. The figures recorded in Exhibit 10 bear no resemblance with the figures recorded and cancelled in Exhibit 1. One wonders why there was no other Governorship result tendered at the trial by any other person. It is noted that the DW6 admitted under cross-examination that Exhibit 10 was for the Governorship Election. He was given agent copies for the two elections that took place on the same day. DW7 who was the Appellant’s agent at the said polling station equally admitted that he collected the agent copy of the Governorship Election on behalf of the DPP. None of these copies were produced at the trial. No reason was given for his failure. The lower Tribunal was therefore right when it held in its judgment on page 191 of the records thus:
“The Petitioner tendered Form EC8A(1) purported to be the result of the Governorship election for that polling station which was admitted as Exh. 10. Although Exh. 10 was denied by the Presiding Officer (DW5) no other result for that polling station was produced by the Respondents. If the position taken by the Respondents is correct as maintained by the presiding officer who issued both Exhibits 1 and 10 throughout his testimony, the names of the candidates and their scores accorded in the cancelled result in Exhibit 1 and the Governorship result in Exhibit 10 must be the same. We have carefully examined and compared the two documents and found that the votes in Exh. 10 are not the same as those “erroneously” recorded in Exh. 1 and later canceled by DW5….”
In his submission learned counsel for the 1st Respondent herein has contended that all the submissions of the appellant at paragraphs 5.08, 5.09, 5.10, 5.11 and 5.12 in his brief of argument should all go to no issue because counsel’s address should not be substituted for evidence. These paragraphs essentially deal with the scores created to the evidence. These paragraphs essentially deal with the scores credited to the candidates who were not sponsored by some political parties namely, AA, BNPP, FRESH and BNLP. I agree with the learned counsel for the 1st Respondent that the case which the Appellant is trying to establish now is quite different from the reason given by the DW5 who was the presiding officer for the polling station. Besides, these contentions cannot be sustained in the face of Exhibit 10 and the testimony of PW6. I cannot therefore disturb the finding of the lower Tribunal this point. Moreso that the reason given by DW6 for the rewriting of the result at the bottom of Exhibit 1 contradicts the reason proffered by the DW5 already set out above. At page 176 of the records DW6 testified under cross-examination as follows:-
“I have seen Exh. 1. At the close of election, I signed the House of Assembly results. I was given a copy after I signed. My signature appears twice. 1st counting produced more than ballot papers issued, i.e. 400 so we conducted a recount and recorded at the bottom of Exhibit 1, because we did not have extra result sheet to record the 2nd counting.”
I must say that this second reason is a clear departure from the one given by the DW5. The lower tribunal was right in not acting on any of the testimonies of the DW5 and DW6 because it could not pick and choose which testimony to believe. In ONUGBOGU’S case (supra) the apex court held that it was not the duty of the trial judge to suo motu provide an explanation in the conflict between the evidence of 6 witnesses on a material point in a case. See also CONSOLIDATED APPEALS: CA/PH/EPT/543/2007 and CA/PH/EPT/544/2007 of this Division delivered on 5/5/2008. I must therefore hold that the lower Tribunal was right in not believing the DW5 and DW6 on the reason for cancellation of the 1st set of result in exhibits 1 and 5 because the reason given could not stand in the face of Exhibit 10.
In conclusion, I find no merit in the appeal which is accordingly dismissed. I affirm the findings of the lower Tribunal as it concerns the election at EKE AMUZI Market Square (Code 016) polling station. Consequently, I hold the 1st Respondent scored the majority of lawful votes cast at the election conducted by the 2nd Respondent into the Imo State House of Assembly on 14/4/2007. He is therefore adjudged the winner of the said election. I make no order as to costs.
APPEAL NO: CA/PH/EPT/549/2007
This appeal was consolidated with Appeal No. CA/PH/EPT/548/2007. Since it retains its identity it will be so determined on its merit.
The Appellant as the petitioner brought his petition, now on appeal in the court below challenging the return of the 1st Respondent as the elected member representing the AHIAZU MBAISE Local Government Area Consistency in the Imo State House of Assembly. The return of the Appellant by the 4th Respondent was sequel to the election that took place on 14/4/2007.
The Appellant brought this petition on the ground that the 1st Respondent was not elected by majority of lawful votes cast at the said election. Specifically, the appellant contended that his vote scores were reduced by the 7th respondent at Eke Amuzi Market Square (Code 016) polling station. The Appellant further contended that the 1st Respondent was given 196 unmerited votes at Umuediabali Hall (Code 006) polling station. At the trial of the petition the 1st respondent rasied an objection in limine to the effect that the petition was incompetent for failure to comply with paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2006. The objection was fully argued and dismissed on the merits by the trial tribunal.
After the trial of the petition the lower Tribunal in its judgment delivered on 31/10/2007 agreed with the petitioner that the 1st respondent did not win the election by majority of lawful votes cast at the election. It also held that it was the petitioner who won the election and ought to have been returned by the 4th respondent. However, the trial Tribunal did not make necessary orders on the ground that the petition was incompetent because the petition did not comply with paragraph 4(1)(c)of the First Schedule to the Electoral Act, 2006.
Being dissatisfied with this judgment, the appellant has now appealed to this Court on FOUR GROUNDS as contained in the Notice of Appeal. From the four grounds of appeal, appellant distilled TWO ISSUES for determination of the appeal as follows:
“(a) Whether the Appellant’s petition was competent.
(b) Whether the appeal discharged the onus of proving the allegations in his petition in respect of the election at Umuediabali Hall (Code 006) polling station?”
On 7/4/2008, the appeal came up for hearing. Learned counsel for the Appellant, NDUKWE N. NNAWUCHI Esq., identified the Appellant’s brief of argument dated 24/12/2007 and filed on 27/12/2007. Without further amplification on the issues he urged us to allow the appeal and set aside the judgment of the lower Tribunal. However, in the appellant’s brief on issue No. 1 it was submitted that once the court or Tribunal has given a decision or makes an order on a matter on the merit it no longer has the competence or jurisdiction to give another decision or order on the same. At that stage the court or tribunal is said to be functus officio on the said matter. Reliance was placed on the cases of FORTUNE INT. BANK PLC. & ORS. v. CITY EXPRESS BANK LTD. & ANOR. (2006) 6 NWLR (PT. 869) 226 @ 243; MUHAMMED v. HUSSEINI (1998) 14 NWLR (Pt.584) 108. That the lower Tribunal having considered an earlier motion brought on 29/7/2007 and ruled in favour of the appellant by dismissing the motion, the lower Tribunal was no longer competent to revisit the matter. That the 1st Respondent did not appeal against the tribunal decision.
It is argued in the alternative that the Appellant complied with paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2006 and to hold otherwise will amount to using technically to defect justice. He relied on the two cases of IWU v. NWOGU (2007) 9 NWLR (Pt.877) 54 @ 73; EGOLUM v. OBASANJO (1999) 7 NWLR (Pt.611) 355 @ 413 and OGBEIDE v. OSULA (2003) 15 NWLR (Pt.843) 266 @ 286 – 287.
On the second issue No. (b) predicated on ground two of the grounds of appeal, the question to be resolved herein is whether the appellant did prove his allegations as it relates to the election at Umuediabali (Code 006) polling station. The appellant complained that electoral malpractices occurred. It is submitted that the evidence in proof of the facts pleaded in paragraphs 6 – 8 of the records of appeal was supplied by PW3, PW4, PW5, PW6 and PW7. PW3 testified on page 89 of the record that he witnessed thumb-printing of ballot papers and PW4 and PW5, PW6 and PW7 all adopted their depositions as their testimony and all alleged that electoral malpractices did occur at this polling station. It is submitted that the refusal by the Respondents to submit ballot boxes and voters and voters registers for the said polling station, further strengthened the appellant’s case. That the Tribunal was wrong in refusing to invoke section 149(d) of the Evidence Act against the 1st Respondent. This court is being urged to hold that if those ballot boxes and voters registers were produced they will be unfavourable to the respondent’s case. It is urged that this issue be resolved in favour of the Appellant.
Learned counsel for the 1st Respondent EMEKA O. NWAGWU Esq., on issue No. 3(a) has submitted that in determining whether the Tribunal was fucntus officio on the issue of competence of the petition one has to look at the Tribunal’s ruling as a whole. He submitted that the ruling the Tribunal delivered on 24/7/2007 left the issue of the petition undecided since according to the Tribunal it was premature to consider it. That the ruling delivered by the Tribunal on the preliminary objection was not a final decision on the issue of jurisdiction as to make the Tribunal officio on that issue. Reliance was placed on the case of BARCLAYS BANK OF NIGERIA LTD. v. CENTRAL BANK OF NIGERIA (1976) 1 ALL NLR. 326 @ 336; OLU ROTIMI V. IGE (1993) 8 NWLR (PT.311) 257 @ 268; HI-FLOW FARM INDUSTRIES NIG. LTD. V. UNIVERSITY OF IBADAN (1993) 4 NWLR (PT.290) 719 @ 738 and EBUKAM V. EKWENIBE & SONS TRADING CO. LTD. (1993) 6 NWLR (PT.297) 108 @ 116.
It is finally submitted that the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2006 are mandatory and failure to comply with that will render the petition incurably bad, null and void. Learned counsel for the 1st Respondent relied on the cases of JEMIDE v. HARRIMAN (2004) ALL FWLR (PT.233) 1765; OJONG V. DUKE (2003) 14 NWLR (PT. 841); BUHARI V. YUSUF (2003) 14 NWLR (PT.841) 446; KHALIL V. MUSA YAR’ADUA (2003) 10 NWLR (PT.847) 446; OFFOMAH V. AJEGBO (2000) 1 NWLR (PT.641 498 and ERIOBUNA v. OBIORAH (1990) 8 NWLR (PT. 616) 622. See also unreported Appeal No. CA/PH/EPT/357/2007 of this Division delivered on 1/2/2008.
On issue No. 3(b) learned counsel for the 1st Respondent has submitted that the criminal allegations of fraudulent stuffing of ballot boxes, bribery and over voting were vehemently denied by the 1st Respondent in paragraphs 20 to 28 of his Reply at pages 33 to 35 and evidence, of his witnesses at pages 44, 49, 50, 93 to 96 of the Records of Appeal. It is submitted that the Appellant failed to prove the alleged electoral offences beyond reasonable doubt as required by law.
Learned counsel for the 2nd to 8th Respondents, C.U. EKOMARU Esq., having identified their brief of argument dated 29/2/2008 and filed on 3/3/2008 adopted same and urged us to dismiss the appeal.
On ISSUE NO. 3(a) which is anchored on the compliance or non-compliance with the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2006, it is submitted that the Appellant did not comply with the paragraph and therefore his petition was incompetent and it was accordingly dismissed by the lower Tribunal.
It is contended that the Appellant failed to state the names and scores of all the candidates that contested the election and this failure has rendered the petition incurably bad, null and void. Reliance was placed on the case of JEMIDE v. HARRIMAN (2004) All FWLR (PT. 233) 1765 @ 1779. On the Appellant’s argument that the Tribunal became functus officio on the issue of competence of the petition after its ruling of 24/7/2007, it is submitted that the Appellant clearly over looked the fact that the said ruling was an interlocutory ruling and did not finally decide the rights of the parties with respect to the issue of jurisdiction. Reliance was placed on the cases of OLU ROTIMI v. IGE (1993) 8 NWLR PT. 311) 257 @ 268 and EBUKAM v. EKWENIBE & SONS TRADING CO. LTD. (1993) 6 NWLR (PT.297) 108 @ 116. The court is urged to resolve this issue against the appellant and to affirm the decision of the Tribunal or this issue.
On Issue No. 3(b) predicated on an allegation of ballot box stuffing, bribery and over-voting in Umuediabali Hall (Code 006) polling station, learned counsel for the 2nd to 8th Respondents submitted in their brief of argument that they denied these allegations at pages 58 to 68 of the Records. Relying on the contents of Exhibit 3 at page 158 of the Records, it is submitted that there were 493 registered voters in the disputed polling station where 457 valid votes were cast for the candidates. It is submitted therefore that the allegation of over-voting which is criminal in nature can only be sustained if the total votes cast exceeded the number of registered voters and/or the number of ballot papers issued at the said election. That in this case the total votes cast is less than the number of registered voters by 36 and for this reason the Appellant failed to prove the allegation of over-voting as required by sections 135 – 138 of the Evidence Act dealing with burden of proof. It is submitted that the Appellant failed to discharge the burden of proof placed on him and the Tribunal was therefore right in holding that the Appellant did not prove over-voting at Umuediabali polling station. It is further submitted that there is nothing on the face of Exhibit 3 to show 196 unused ballot papers as alleged by the Appellant. That on the contrary there were 7 unused ballot papers after the election in Exhibit 3 and 7 admitted by the PW3 under cross-examination by the 1st Respondent at pages 166 and 167 of the Record of Appeal. It is argued that it is not possible to have 7 unused ballot papers for the said election in one breath and 196 unused ballot papers for the same election in another breath. The court is urged to hold that this is a clear contradiction and therefore evidence of the Appellant on this point must be rejected. Again, it is submitted that the allegation of bribery was not proved beyond reasonable doubt by the Appellant. PW3 while cross-examined on 5/9/2007 at pages 88 – 89 of the Records stated that only polling agents were allowed inside the polling Hall and all the doors and windows were shut. It is submitted that PW3 failed to prove at what stage Engr. Ayoka, the PDP chieftain gave money to the presiding officer and the polling agents. There was also no evidence that the criminal offence of bribery was reported to the police for investigation. For these reasons the Court is urged to hold that the Appellant failed to prove the criminal allegation of bribery, over-voting and ballot box stuffing beyond reasonable doubt as required by law.
Learned counsel for the 2nd to 8th Respondents, C.U. EKOMARU, Esq., having identified their brief of argument dated 29/2/2008 and filed on 3/3/2008 adopted same and urged us to dismiss the appeal.
On ISSUE NO. 3(a) which is anchored on the compliance or non compliance with the provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act 2006 it is submitted that the Appellant did not comply with the paragraph and therefore his petition was incompetent and it was accordingly dismissed by the lower Tribunal.
It is contended that the Appellant failed to state the names and scores of all the candidates that contested the election and this failure has rendered the petition incurably bad, null and void. Reliance was placed on the case of JEMIDE v. HARRIMAN (2004) ALL FWLR (PT.233) 1765 @ 1779. On the Appellant’s argument that the Tribunal became functus officio issue on the issue of competence of the petition after its ruling of 24/7/2007, it is submitted that the Appellant clearly overlooked the fact that the said ruling was interlocutory ruling and did not finally decide the rights of the parties with respect to the issue of jurisdiction. Reliance was placed on the cases of OLUROTIMI v. IGE (1993) 8 NWLR (PT.311) 257 & 268 and EBUKAM v. EKWENIBE & SONS TRADING CO. LTD. (1993) 6 NWLR (PT.297) 108 (@ 116. The court is urged to resolve this issue against the appellant and to affirm their decision of the Tribunal on this issue.
On issue No. 3(b) predicated on an allegation of ballot box stuffing, bribery and over-voting in Umuediabali Hall (Code 006), learned counsel for the 2nd to 8th Respondents submitted in their brief of argument that they denied these allegations at pages 58 to 68 of the Records. Relying on the contents of Exhibit 3 at page 158 of the Records it is submitted that there were 493 registered voters in the disputed polling station where 457 valid votes were cast for the candidates. It is submitted therefore that the allegation of over-voting which is criminal in nature can only be sustained if the total votes cast exceed the number of registered voters and/or the number of ballot papers issued at the said election. That in this case the total votes cast is less than the number or registered voters by 36 and for this reason the Appellant failed to prove the allegation of over-voting as required by sections 135 – 138 of the Evidence Act dealing with burden of proof. It is submitted that the Appellant failed to discharge the burden of proof placed on him and the Tribunal was therefore right in holding that the Appellant did not prove over-voting at Umuediabali polling station. It is further submitted that there is nothing on the face of Exhibit 3 to show 196 unused ballot papers as alleged by the Appellant. That of the contrary there were 7 unused ballot papers after the election in Exhibits 3 and 7 admitted by the Pw3 under cross-examination by the 1st Respondent at pages 166 and 167 of the Record of Appeal. It is argued that it is not possible to have 7 unused ballot papers for the said election in one breath and 196 unused ballot papers for the same election in another breath. The Court is urged to hold that this is a clear contradiction and therefore evidence of the Appellant on this point must be rejected. Again, it is submitted that the allegation of bribery as not proved beyond reasonable doubt by the Appellant’ PW3 when cross-examined on 5/9/2007 at pages 88 – 89 of the Records stated that only polling agents were allowed inside the polling Hall and all the doors and windows were shut. It is submitted that PW3 failed to prove at what stage Engr. Ayoka, the PDP chieftain gave money to the presiding officer and the polling agents. There was also no evidence that the criminal offence of bribery was reported to the police for investigation. For these reasons the Court is urged to hold that the Appellant failed to prove the criminal allegation of bribery, over-voting and ballot box stuffing beyond reasonable doubt as required by law.
I will now consider the two issues. Appellant’s argument in the first issue is that the tribunal became functus officio on the issue of competence of the petition after its ruling of 24th July 2007 on the preliminary objection by the 1st Respondent that the petition is competent.
In considering whether the tribunal was functus officio on the issue of the competence of the petition, I have to carefully look at the Ruling of the Tribunal. The Ruling is sequel to the preliminary objection raised by the 1st Respondent. He attacked the competence of the petition for non-compliance with provisions of paragraph 4(1)(c) of the first schedule to the Electoral Act 2006. The Tribunal in its Ruling stated thus:
“We have no difficulty at all in finding and holding that the petitioner supplied the scores of all those he alleged took part in the election he is complaining about, because at law the objection (sic) is deemed to have accepted as stated by the petitioner these were the scores of candidates and parties that took part in the election. Exhibit ‘A’ attached to the Application tends to show that DPP and LP had candidates contrary to what is contained in the petition, but we are afraid that the objector cannot do so vide the procedure of preliminary objection.”
The Tribunal restated the reasons for dismissing the preliminary objection when it held on its judgment at page 147 of the Records as follows:
“That application was dismissed because the Tribunal was of the view that the objector could not introduce at the stage of the preliminary objection any extraneous matter like Form EC8E(1) to establish case.”
The above is the reason for dismissing the preliminary objection. It is submitted by the 1st Respondent that the Ruling of the Tribunal delivered on 24/7/2007 left the issue of the competence of the petition undecided and since according to the Tribunal it was premature to consider it. In effect the Tribunal revisited this same issue in its final judgment and then held that the petitioner did not comply with the said paragraph 4(1)(c) of the First Schedule to the Electoral Act 2006. I do not think that the trial Tribunal had the competence to revisit the matter. The earlier decision of the trial Tribunal was decision on the merit reached after the consideration of the evidence produced before it by parties. See MOHAMMED V. HUSSEINI (1998) 14 NWLR (PT.584) 108. No trial judge or court has any legal justification to alter the effect of his own ruling or decision on an issue previously decided by him in the course of the proceedings. See NNAJIOFOR v. UKONU (1985) 2 NWLR (PT.9) 686 @ 706; GRACE AMANOBA v ALEX OKAFOR (1966) 1 ALL NLR 205 @ 207. It would appear to me that the learned counsel for the 1st Respondent seems to misunderstand the issue at hand. Hence he canvassed copious argument on the principle of law that a court or Tribunal does not become functus officio when the decision is made at a preliminary stage was not final. In the instant case, there is no doubt that the earlier decision of the Tribunal was arrived after due consideration of the facts before it; hence it held on page 76 of the record thus:
“In paragraphs 6 and 7 of his petition the petitioner stated the scores of 6 candidates and 4 political parties whom he alleges were allocated votes although they fielded no candidates. These are all the candidates that the petitioner in his petition alleged took part in the election.
We have no difficulty at all in finding and holding that the petitioner supplied all the scores of all those he alleged took part in the election he is complaining about, because at law the objection is deemed to have accepted as stated by the petitioner that these were the scores of candidates that took part in the election.”
The tribunal concluded that the objection lacked merit and it was dismissed. The 1st Respondent did not appeal against the above decision. If the above decision of the trial tribunal was wrong it is only this court that can set it aside. The 1st Respondent did not explore that option.
Learned counsel for the Appellant arguing this issue in the alternative further, taking abundant caution, submitted that assuming without conceding the trial tribunal was right in revisiting the issue, it was still wrong to hold that the petitioner did not comply with paragraph 4(4)(c) of the first schedule to the Electoral Act 2006. Our attention has been drawn and it is noted that the parties were in agreement that the vote figures pleaded by the petitioner at paragraphs 6 and 7 of his petition are the same with the figures by the 2nd Respondent (INEC) as per Exhibit 4. The petition clearly pleaded the vote figures ascribed to both DPP and Labour party (LP). I agree with the Appellant that the pleadings in the petition on this point substantially complied with the requirement of the said paragraph 4(1)(c) (supra). To hold otherwise will amount to using undue technicality to defeat justice. In IWU v. NWOGU (2007) 9 NWLR (Pt. 877) 54 @ 73, this Court cited and relied on the dictum of the Apex court in EGOLUM v. OBASANJO (1999) 7 NWLR (PT.611) 355 @ 413 where ACHIKE JSC stated thus:
“The hey days of technicalities are now over because the weight of judicial authorities has today shifted from undue reliance on technicalities to doing substantial justice even handedly to the parties to the suit.”
The above submission of the learned counsel for the Appellant is further strengthened by the decision of this Court in OGBEIDE v. OSULA (2003) 15 NWLR (PT. 843) 266 @ 286; which loathes such stringent and very narrow interpretation of paragraph 4(1)(c) of First Schedule to Electoral Act 2002 which is in pari materia with similar provision in the Electoral Act, 2006. The Court went further therefore to hold:
“In the instant appeal the omission to state the scores of other candidates who contested but lost the elections cannot affect the competency of the petition, since the necessary parties, i.e. the statutory respondents were all joined and the petition could properly be determined without them. The Tribunal was therefore in error to have struck out the petition. In the result I hold that failure of the appellant to state the names and the number of votes of the candidates in the petition is not enough to render the petition incompetent.”
In view of the foregoing, I resolve the issue in favour of the Appellant.
On ISSUE NO. 3(b), the question to be resolved is whether the Appellant did prove his allegation as it relates to the election at Umuediabali Hall (Code 006) polling station. This is one of the two polling stations the Appellant complained that electoral malpractices occurred. The Appellant’s case is clearly pleaded at paragraphs 6-8 of the records of appeal. The evidence in proof of the facts pleaded was supplied by PW3, PW4, PW5, PW6 and PW7. PW3 testified on page 89 of the record that he witnessed thumb-printing of ballot papers and PW4, PW5, PW6 and PW7 all adopted their depositions as their testimonies and they all alleged that electoral malpractices did occur at this polling station. The refusal of the Respondents to submit ballot boxes and voters registers for the said polling station further strengthened the Appellant’s case. The Tribunal was wrong in refusing to invoke section 149(d) of the Evidence Act against the 1st Respondent. It is taken that if those boxes and voters registers were produced they will be unfavourable to the Respondents’ case. It is in view of the foregoing that I resolve this issue in favour of the Appellant.
In the final analysis, this appeal succeeds. The judgment of the lower Tribunal delivered on 31/10/2007 is hereby set aside. The Appellant is being returned as the elected member representing the AHIAZIJ MBAISE LOCAL GOVERNMENT AREA STATE CONSTITUENCY in the Imo State House of Assembly. I make no order as to costs.
Each party is to bear his own costs in this appeal.
Other Citations: (2008)LCN/2779(CA)
