Felix Nbanefo Nwoko V. Senator Patrick Osakwe & Anor. (2009)

LawGlobal-Hub Lead Judgment Report

GEORGE OLADEINDE SHOREMI J.C.A,

This appeal emanated from the decision of the National Assembly/Governorship and legislative Houses Election Petition Tribunal holden at Asaba Delta State and delivered on the 28th day of May 2008 in which the petition of the Appellant was dismissed. It is against this judgment that the Appellant who was the petitioner at the tribunal had filed 12 grounds of appeal.

The Appellant called evidence and gave a written address which he adopted.

The 1st Respondent also called witnesses and also adopted his written address.

After adoption of written addresses the Honourable Chairman and members of the tribunal gave judgment on the 28th day of May 2008 dismissing the petition.

The relevant part of the judgment reads thus I quote –

“From these pieces of evidence given by the Petitioner and his witnesses, it is crystal clear that this evidence is at variance with the pleadings of the Petitioner highlighted above. And where such is established as in the instant case, the evidence will be regarded as of no value and liable to be discountenanced. On this see the case of OKOLO VS. DOKOLO (2006) ALL FWLR (PT.336) 201, where the Supreme Court held inter alia that:

“If the evidence is at variance with the pleadings, such evidence will have no value. It will be discountenanced because it is contrary to the issues joined and therefore goes to no issue worthy of consideration……….”

We further observe that these pieces of evidence vitiates proceedings because of the material contradictions contained therein. This is the position of the law expressed by the Court of Appeal, per Abba-Aji JCA, in the case of ADMIN GENERAL AND PUBLIC TRUSTEES, DELTA STATE VS. OGOGO (2006) ALL FWLR (PT 293) 256 where it was held thus:

“For contradiction in evidence of witnesses to vitiate a court proceedings, it must be material contradiction which strikes at the basis of the case and sufficient to raise doubt in the mind of the court and not merely trivial.”

It should be noted that the basis upon which the declaration of the 1st Respondent as winner of the Delta North Senatorial District election of 29/4/07, is the result declared by INEC, and it is the same results that are being attacked by the Petitioner who and his other witnesses decided to portray themselves to the Tribunal as double-faced, blowing cold and hot water at the same time. This goes to show that the witnesses do not have mind of the court, not only in relation to the alleged fabrication of results, but also in relation to the entire evidence adduced by the Petitioner, regard being had to the nature of the onus placed on him by law in proving his case.

On the issue of postponement which is covered by paragraphs 11, 12, 13, 14 and 15 of the petition, it is trite law that change of the voting period of election does not constitute non-compliance with any provision of the Electoral Act 2006. See the case of BUHARI VS. INEC (supra) where it was held that:

“Section 28 of the Electoral Act provides that nothing in any particular election under the Act should take place at the same day and time throughout the Federation. Section 26 provides that Independent Electoral Commission shall appoint the date on which the election to the office of the President and Vice-President shall hold. While Section 27(1) of the same Act provides that the commission can postpone the Presidential Election and other elections set out in Section 26 for reasons set out in Section 27, and the postponement may relate to either the whole country or a part of the country as may be determined by the commission. A Community readings of those Sections shows clearly that the 1st Respondent can fix the date and time for the Presidential election and change same. Moreover, a change of voting period of election throughout the Federation do not constitute a non-compliance with any provision of the Electoral Act. It could only be said to constitute an amendment to the manual for the elections officials for 2007”.

With this position of the law in mind, the 2nd – 20th respondents can only be said to be acting in good faith and within the ambit of the law when they postponed any election, unless contrary intention is established. In the instant case, the Petitioner going by the evidence he adduced has not been able to establish lack of good faith when regard is had to the nature of the evidence which, to out mind, fell short of the required standard.