Modu Lamba Wulgo V. Abatch Umar Bukar & Ors (1999)

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OGEBE, J.C.A.

This appeal arose from elections into Local Government Councils conducted throughout the country on the 5th of December 1998 by the Independent National Electoral Commission.

In Ngala Local Government of Borno State, the appellant was a candidate for the chairmanship of the Local Government on the platform of the Peoples Democratic Party (PDP) while the 1st respondent contested for the same office on the platform of the All Peoples Party (APP).

The 1st respondent was declared duly elected as the Chairman of Ngala Local Government having scored 11,952 votes as against 8,404 votes scored by the appellant.

Being dissatisfied with the result the appellant petitioned to the Local Government Election Tribunal, Borno State against the respondents. He challenged the election of the 1st respondent on the ground “that the election was voided by corrupt practices, irregularities and/or offences against the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 which substantially affected the result of the election”.

In the particulars given under the ground the appellant complained specifically of the conduct of the election at five wards i.e. Fuye, Darak, Ndufu, Worshele and Gamboru A Wards.

At the trial, the appellant called 12 witnesses while the 1st respondent called 3 witnesses. The 2nd, 3rd and 4th respondents called no witnesses.

At the end of counsel’s written addresses the Election Tribunal dismissed the appellant’s petition.

The appellant has brought this appeal against the decision of the Election Tribunal on 4 grounds contained in the notice of appeal.

The learned counsel for the appellant formulated only one issue for determination as follows:

“1. Whether having regard to the circumstances of this case and the evidence, the tribunal was right to have dismissed the appellant’s petition.

The 1st respondent also filed a brief of argument and formulated one issue for determination. It reads:

“Whether the tribunal was wrong when it dismissed the appellant’s petition on the ground that he has not proved that the non-compliance or irregularities alleged during the election, substantially affected the result of the election.”

The learned counsel to the 2nd -4th respondents also filed a brief of argument on their behalf and adopted the issue formulated by the appellant.

The learned counsel for the appellant complained that the Election Tribunal did not properly evaluate the evidence adduced by his client and his witnesses before dismissing the petition. He said that there was clear evidence that the election was not conducted in a free and fair atmosphere as it was characterized by intimidation, thuggery, violence and threats by gun-totting APP supporters of the 1st respondent. He said that the presiding officer at Fairam Polling Unit of Ndufu Ward was forced at gun point to enter false result.

The learned counsel urged this court to exercise its power of re-evaluating the whole of the evidence in order to arrive at a just decision.

He relied on the case of Highgrade Maritime Services Limited v. First Bank of Nigeria Ltd. (1991) 1 NWLR (Pt.167) 290 at 308 F-G and 313 G-H.

The learned counsel for the 1st respondent in reply submitted that the election was conducted in a free and fair atmosphere and the alleged acts of electoral malpractices have not been linked with his client. It has also not been shown that the 1st respondent benefited from such acts. It has also not been shown how the result of the election was affected by the alleged acts of misconduct. The learned counsel for the 1st respondent urged us to dismiss the appeal.

The learned counsel to the 1st – 4th respondents submitted that the allegations of electoral malpractices made by the appellant were not proved as no documentary evidence was rendered in proof of the same. He urged the court to dismiss the appeal.

I have carefully considered all the submissions made by all the counsel in this case. The only issue for determination has to do with weight of evidence i.e. whether or not the appellant proved by credible evidence the serious allegations of electoral malpractices made in his petition before the Election Tribunal.

It is trite law that issues relating to credibility of witnesses is within the direct responsibility of a trial court which has the opportunity of seeing and listening to the witnesses in order to assess the probity of their evidence. A court of appeal should not interfere with findings of facts made by a trial court unless they are shown to be perverse. See Olorunfemi v. Asho (1999) 1 NWLR (Pt.585) 1 at page 9.

In paragraph 4(1) of the petition the appellant alleged as follows:

“That the election was voided by corrupt practices, irregularities and/or, offences against the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 which substantially affected the result of the election.”

The allegations and their particulars are in the nature of criminal offences which require proof beyond reasonable doubt. Vide Oyegun v. Igbinedion (1991) 1 NWLR (Pt.226) 747: Ayua v. Adasu (1992) 3 NWLR (Pt.231) 598.

The appellant was unable to prove these allegations as required by law. There was no evidence whatsoever that the 1st respondent had any connection with the alleged malpractices. In addition to all these the appellant did not show before the Election Tribunal the effect of the alleged malpractices on the overall result. It is not enough to allege electoral malpractices. Whoever alleges electoral malpractices has a duty to show also how the malpractices have affected the overall result against his interest.

In my view the Election Tribunal was perfectly right when it held at page 54 of the record as follows:

“The tribunal has considered the whole evidence before it as well as the forceful submission or all the learned counsel. The tribunal has reached the irresistible conclusion that the petitioner (sic) has not been proved by credible evidence as required by law. Both the evidence adduced and the authorities cited show clearly that no credible evidence has been led to prove any of the allegations levelled by the petitioner nor is there any iota of evidence as to the votes that the petitioner lost by the irregularities. Similarly it has not been shown that the 1st respondent benefited in any way from the acts of the various APP agents. Nor is it shown by evidence that 1st respondent authorized the acts of the APP supporters on that day.”

I see no cause whatsoever to interfere with the decision of the Election Tribunal which in my respectful view is sound and based on a proper evaluation of the evidence before it.

This appeal is lacking in merit and I hereby dismiss it with costs of N2,000.00 in favour of the 1st respondent and N2,000.00 in favour of 2nd – 4th respondents.

Other Citations: (1999)LCN/0479(CA)