Prince Ifeanyi Ogbu V. Lazarus Ifeanyi Nnaji & Ors (1999)
LawGlobal-Hub Lead Judgment Report
GALADIMA, J.C.A.
This is an appeal against the judgment of Local Government Election Tribunal delivered on 8th February, 1999. Which upheld the election of the 1st respondent at the 5/12/98 elections into the chairmanship and councillorship seats of Nkanu East Local Government Council but lost to the 1st respondent, the Flag bearer of the APP.
The following are the grounds of appeal without their particulars:”
Ground 1
“The Election Tribunal completely misdirected itself by holding as follows –
‘The facts disclosed by the evidence adduced pointed to one single direction. That is that there was an irregularity, thuggery and threat to life and property in one of the 14 wards that make up Nkanu East Local Government Area. The proof is of mishandling of election and thuggery in the local government election of 5/12/98 in Nomeh Ward.”
The petitioner wants the tribunal to believe that the local government election held on 5/12/98 in Nkanu East Local Government was mere farce if considered from the point of view of what happened in Nomeh Ward on that day. Nomeh ward we shall observe that is not Nkanu East Local Government but a part of it.’
Ground II
The tribunal erred in law by holding as follows –
“We agree that there were cancellations and mutilations in some of the result sheets tendered. But this piece of evidence is not backed by evidence. In fact the makers of the result sheets and or party agents who endorsed them should have been called to testify to enable us consider each document on merit. Speculation and wild-goose-chase cannot form the bed-rock of justice and equity.’
Ground III
The Election Tribunal misdirected itself by holding as follows-
The learned Senior Advocate of Nigeria, senator Anah, over flogged the issue of “nil” votes entry for the petitioner in many of the wards. It goes without saying that evidence on this is not well substantiated. In fact, going by the record of the election, the exhibits show that the petitioner scored the highest lawful votes in at least three of the wards in the Local Government Area.
Ground IV
The Election Tribunal erred in law by not considering the legal effect of the 1st respondent not giving evidence to rebut the evidence of the petitioner in respect of the incidents of thuggery, rigging and malpractices in all the wards in the Local Government Area.
Ground V
The decision is against the weight of evidence.
The appellant formulated 5 issues for determination as follows –
- Whether the petitioner/appellant led evidence in wards other than Nomeh to prove his petition.
- Whether the evidence of the appellant and the witnesses for the respondents was properly evaluated?
- Whether the evidence of the petitioner/appellant to prove his case in wards other than Nomeh was challenged by the 1st respondent or his witnesses.
- Whether the tribunal gave the petitioner/appellant an opportunity of a fair trial by not compelling the D.W.2 to produce and tender the voters’ register in 5 wards and the Forms EC8A in three wards.
- Whether the judgment of the tribunal was consistent in error.
The 1st respondent adopts the appellant’s first two issues for determination and articulated two other issues as follows –
- ‘Whether the judgment of the tribunal is consistent with evidence placed before it by the contending parties.
- Was the appellant denied fair hearing?
Learned Senior Advocate, Senator N.N. Anah, 1st respondent’s counsel, having adopted and relied on the 1st respondent’s brief, further expatiated on the issues formulated for determination. It is the learned Senior Advocate’s contention that the trial tribunal was so carried away by over-whelming and staggering evidence which the appellant was allowed to lead in respect of one of the 14 wards which make up the Nkanu East Local Government Area. He submitted that the one hour given to each party to complete the presentation of his case and address lowered the tempo in respect of the other wards. Consequently, the appellant managed to give short and security evidence of the incidents of thuggery, intimidation, rigging in other wards in the Local Government. That it was humanly impossible for the petitioner to call witnesses to testify as to what happened in the 14 wards making up the Local Government within a time frame of one hour.
That the 1st respondent’s brief is articulated in such a way as to substitute the judgment of the tribunal. Learned Senior Advocate submitted that the appellant is not complaining against the finding of facts by the lower tribunal but against the non-evaluation of facts in all the 13wards except ward 14 i.e. Nomeh Ward. That the tribunal did not realise that the appellant gave evidence in respect or other wards other than Nomeh Ward. Says that the appellant gave vivid account or what he saw, found and was reported by his agents in all the wards but the tribunal failed to consider and evaluate that evidence. Learned Senior Advocate refers to page 49 last seven lines and page 50 lines 1-14 and says that is trite law that a trial court or tribunal should review and evaluate the evidence of the parties before he could make specific findings of fact and conclusion. He refers to the Fawehinmi v. Abacha (1996) 9 NWLR (Pt.475) p. 710 at 727.
Learned counsel has urged us to consider other issues and arguments in the appellant’s brief and exercise powers given to the Court of Appeal in S.16 of the Court of Appeal Act to evaluate the evidence of the appellant’s witnesses evidence and adopt them and enter judgment for the petitioner.
Learned counsel for the 1st respondent, B.O. Igwe, having adopted the first two issues formulated in the appellant’s brief and the two the formulated in the 1st respondent’s brief, submitted that except P.W.7 all other witnesses gave evidence of what happened in Nomeh Ward. That all witnesses called by the appellant testified in respect of the conduct of the election at Nomeh Ward. He refers to evidence of P.W.1, P.W.2, P.W.3, P.W.4 and P.W.5 in pages 18 to 31 of the records. That P.W.6, the Electoral Officer for Nkanu East, in total disagreement with the witnesses, testified that the election was peacefully held as he did not receive any report of any malpractice which operated to stop the election.
Learned counsel further submitted that there are 14 wards that make up the Nkanu East Local Government Area and though the petitioner said he had “genuine” agent in all of them not one of these agents came to testify before the tribunal. He argued that it will be stretching the limits of judicial logic to infer that because there were disturbances in Nomeh the genuine elections held in other thirteen wards should be nullified. Learned counsel for the 1st respondent further submitted that all the allegations contained in the petition are offences that arise in sections 68, 71, 73 of the Decree No. 36 the standard of proof for which is beyond reasonable doubt as provided in section 138 of the Evidence Act. That the attempt by petitioner to prove these malpractices in respect of the other wards was futile and the tribunal in line with reasoning in Nuha v. Musa National Electoral Commission (1989) 1 NEPLR 20 was rejected by the tribunal.
It is the submission of the learned counsel for the 1st respondent that there is nothing in the record of proceeding to disclose denial of fair hearing to the appellant. That in respect of the three wards in which the Forms EC8AS were not produced the Forms EC8B and EC8AS are abundantly available and they show that the appellant was in those wards.
I have carefully considered the issues formulated for determination. For the purpose of emphasis and clear understanding of these relevant issues I hereby reproduced them as follows.” First two of the appellant’s and two of the 1st respondent’s respectively:
- Whether the appellant led evidence in wards other than Nomeh to prove his petition.
- Whether the evidence of the appellant and the witnesses for the respondents was properly evaluated.
- Whether the judgment of the tribunal is consistent with evidence placed before it by the contending parties.
- Was the appellant denied fair hearing?
It is the contention of the learned Senior Advocate Senator Anah that even though the appellant was stampeded into giving evidence of thuggery, intimidation, rigging etc vividly in one of the wards, he did that scantly in the other wards. That the appellant gave evidence that ever before the accreditation of voters started hordes of thugs had littered all over the Local Government menacing and “distracting” people from all wards chasing a lot of people out. That the appellant specifically mentioned the wards of Ihuokpara, Owo, Amankanu, Ubahu, Amechi, Idodo and Onitsha Agwul, where election was not free and fair because of thuggery intimidation, carting away of ballot boxes denying his party votes and scored them with “NLR” votes at 6. That inspite of these copious evidence tribunal held that in proof of his petition the appellant led evidence of incidents that took place in Nomeh Ward alone and no more. Learned Senior Advocate has urged that the judgment clearly is against the weight of evidence in this respect and should be set aside. The 1st respondent counsel, however, contended that in proof of his case no iota of evidence was led by the appellant in a ward other than, Nomeh Ward, that all the witnesses called by the petitioner testified in respect of the conduct of the elections in Nomeh Ward. This can be seen from the evidence of P.W.1, P.W.2, P.W.3 and P.W.4 and P.W.5 in pages 18-31 of the records. p.229 of the records P,W,6 the Electoral Officer testified that he did not receive any information about thuggery or misconduct that operated to stop the election.
My understanding is that there are 14 wards that make up the Nkanu East Local Government Area, PT, p, 31 P.W.7 the petitioner testified that he had “genuine agents” in all the wards who made reports and supplied him with information, but none was called as a witness. From all indications, I do not find it hard to come to the conclusion as did the lower tribunal that election in Nomeh Ward was really marred by act of thuggery and malpractices; but this cannot be measured as the yardstick for what took place in the whole Local Government Area. Strong and substantiated evidence must be produced to back each allegation of misconduct or malpractices up. Failure to do so may lead the tribunal to hold that the election was conducted in conformity with the electoral law. Otherwise it is desirable that where a petitioner in an election petition has alleged a particular non-compliance in an election he must strive to satisfy the court that such noncompliance is substantial enough to affect the over-all result of the poll complained against. See Kudu v. Aliyu (1992) 3 NWLR (Pt. 231) 615 at 634 in which reliance was placed on the case of Akinfosile v. Ijose (1960) SCNLR 447, Imiereve v. Salami (1989) 2 NEPLR 31; Ojukwu v. Onwudiwe (1984) Vol/ 1 SCNLR 247 at 306.
In Awolowo v. Shagari (1979) 6 SC 51 at p, 113, statement of Obaseki, J.S.C. (as he then was) reads –
“… It is my opinion that the second and third propositions do represent the state of the law in Nigeria and to vitiate an election, the non-compliance must be proved to have affected the result of the election.”
Section 92(1) of Decree No, 50 of 1991 which is similar to s. 85 of Decree No. 36 of 1988 was discussed in Kudu’s case (supra). The two sections read:
“An election shall not be invalidated by reason of non-compliance with the provisions of this Decree if it appears to the Election Tribunal that the election was conducted substantially in accordance with the principles of this Decree and that non-compliance did not affect substantially the result of the election.”
In Akinfosile v. ljose, supra. It was held that a petitioner who alleges in his petition a particular non-compliance and avers in his petition that non-compliance was substantial, must so satisfy the court.”
The allegation of thuggery, malpractices mass rigging as contained in the petition are criminal offences within the contemplation of sections 68, 71 and 73 of the Decree No. 36 of 1998. They ought to be proved beyond reasonable doubt vide section 138 of Evidence Act.
The 1st respondent’s counsel submits that the tribunal’s evaluation of the evidence of the witnesses for both parties was unimpeachable. I am of the opinion that the lower tribunal did evaluate the evidence of all the witnesses, what was legally placed before it was evidence of disturbance in Nomeh Ward, I am yet to see anything in the records showing a perverse course in the evaluation by tribunal, justifying the exercise of power of this court to reverse the decision of the Election Tribunal and now evaluate the evidence and order a fresh election. I do not hold that the evidence of the appellant was not evaluated and that the court failed to make any positive finding of fact. To agree to do this is to assume the functions of the Election Tribunal which the Decree No.36 of 1998 does not confer on any court.
I do not agree that the evidence of the petitioner was not challenged in cross-examination. It is the contention of the petitioner that he gave copious evidence of thuggery, rigging, cancellations and mutilations and robbing of votes at the same time inflation of the APP votes and therefore, did not make the election free and fair. At Ohuami Onitsha Agu Ward, the petitioner claimed he was the winner. This is not backed by documentary proof. In respect of Ihuokpara Ward, the petitioner said the boxes were removed to private house in Amagunze where they were counted. At the trial Tribunal the names of the perpetrators of this conduct or the owner of the house were not mentioned. I consider that failure to call direct evidence of what happened on the Election Day in the other 13 wards was fatal. I do not find it easy to place reliance or credibility on the testimony of the petitioner that were general and at sometimes only given the impression that they are hearsay evidence as the malpractices were reported to him by his agents. P.W.6 called by the appellant destroyed his case as he gave evidence against the appellant. P.W.6 denied any thuggery operated on that day to stop the election; he was not treated as a hostile witness. I am of the opinion that that tribunal was right to have considered his evidence.
I have not been able to find from the record of proceedings the denial by the tribunal of fair hearing against the appellant.
The allegation of denial of fair hearing is not based on a concrete material to convince the lower tribunal or this court.
On the whole, I have viewed the judgment of the lower tribunal fair and unimpeachable and I must go hold.
Consequently I find that the judgment of the tribunal is fair and I therefore dismiss this appeal, with cost of N3,000 awarded in favour of the 1st respondent and N1,000 to the 2nd – 4th respondents.
Other Citations: (1999)LCN/0510(CA)
