Barr. Boloukuromo Ugo V. Bolobowei Indiamaowei & Ors (1999)
LawGlobal-Hub Lead Judgment Report
NSOFOR, J.C.A.
This is an appeal from the decision, on the 26th of March 1999, of the Governorship/House of Assembly Election Petitions Tribunal, Bayelsa State of Nigeria, (herein after to be referred to simply as the Tribunal for short) holden in Yenagoa.
On the 30th of January, 1999, elections were conducted into the Bayelsa State House of Assembly by Independent National Electoral Commission (INEC) a statutory body charged with conducting elections throughout the Federal Republic of Nigeria .
The appellant (petitioner) contested the Bayelsa State House of Assembly elections for the Kolokuma/Opokuma Constituency II on the platform of All Peoples Party (APP). The 1st Respondent herein was also a candidate for the Kolokuma/Opokuma Constituency II at the said elections. He contested on the platform of Peoples Democratic Party (PDP).
The 3rd to the 7th Respondents herein, were some officials of the INEC, (the 2nd named Respondent herein) who participated in the conduct of the said Bayelsa State House of Assembly elections in the above mentioned constituency on the 30/1/99.
At the conclusion of the election exercise, the INEC declared and returned the 1st Respondent as the winner having scored the majority of lawful or valid votes.
The appellant (petitioner) was dissatisfied with the declaration and the return of the 1st Respondent. Consequently, he filed an election petition before the Tribunal challenging the declaration and the return of the 1st Respondent as the winner.
The 1st Respondent had filed a Reply to a petition. Similarly, there was filed on the behalf of the 2nd to the 7th Respondent a Joint Reply to the petition.
The appellant (petitioner) had challenged the declaration and return of the 1st Respondent on the grounds as expressed in paragraph 20 of the petition, to wit:-
“i. That the 1st Respondent did not obtain the majority of lawful votes cast at the House of Assembly elections of 30/1/99 for Kolga Constituency II.
ii. That the petitioner was the candidate who obtained majority of the votes cast at the said elections”
He, therefore, sought for the following reliefs as set out in paragraph 21 of the petition, id est;:
“(a) A declaration that the return/declaration of the 1st respondent as the elected member of the Bayelsa State House of Assembly for Kolokuma/Opokuma Constituency II by the 2nd – 5th Respondents is null and void and to no effect whatsoever.
(b) An order setting aside the return of the 1st Respondent as the elected member of the Bayelsa State House of Assembly for Kolokuma/Opokuma Constituency II.
(c) A declaration that the petitioner is the candidate returned as the duly elected member of the Bayelsa State House of Assembly representing Kolokuma/Opokuma Constituency II having polled the majority of lawful votes”.
The election petition came on before the Tribunal for the hearing on the 10/3/99. A full scale trial started. At the trial, the petitioner testified, “viva voce”, as the p.w.7 He summoned the evidence of other witnesses in support of his case.
The 1st Respondent did not himself testify on oath. However, four witnesses testified on behalf of the Respondents.
At the conclusion of all the available evidence – both oral and documentary and after receiving the final addresses by the counsel, the Tribunal reserved its judgment. In a reserved and considered judgment, on the 26th of March, 1999, the Tribunal dismissed the petition of the petitioner wholly and entirely. In reaching its conclusion, the Tribunal expressed itself, inter alia, thus:”
Having regard to the totality of the evidence before the Tribunal we find that the result of the elections in question in wards 9 Sabagreia and 10 Kalama were duly declared and returned. We also find that results evidenced in Exhibits Q, Q.1, to Q,19 for Sabagreia and Exhibits P, P.1. to P.10 are authentic and genuine and rightly included in the over-all results for the Kolokuma/Opokuma L.G.A. Constituency II”.
So, the petitioner lost. The 1st respondent won. The petitioner was not satisfied with the loss. So, he has appealed from that decision to this Court on five (5) grounds of appeal. I shall decline to reproduce the grounds of appeal with their respective “Particulars of Errors” for obvious reasons; economy of time and space.
The appellant and the 1st Respondent have, in obedience to the rules and guide lines in this regard, filed and exchanged their respective briefs of argument.
Therein, each party had formulated the issues for determination.
In his brief of argument, the appellant, in page 1 thereof, formulated the following four (4) issues for determination. They are:
“I. Whether the issue of conclusion of counting of votes and non disruption of counting at Sabagreia
Ward 9 was settled at the close of pleadings and if it was not settled.
Whether on the state of pleadings, the evidence of disruption of counting of votes and any contradiction arising therefrom was a material contradiction of fact (Grounds 1 and 2).
- Whether forgery was pleaded as required by law for the lower tribunal to admit and act on answers to questions in cross examination put to p.w.4 by the 1st Respondent’s Counsel tending to show forgery. If it was pleaded, whether it was strictly proved as required by law (Ground 3).
- Whether the Petitioner/Appellant’s Unit results pleaded in paragraph 15 of his petition were properly put in issue by the Respondents in their Replies (Ground 4).
- Whether the Petitioner has proved his case on the evidence before the lower tribunal. In other words. whether the judgment is not against the weight of evidence (Ground 5)”.
Counsel for the 1st respondent has formulated for determination at page 3 of the 1st Respondent’s Brief two (2) issues. They are:-
“1. Was the Tribunal wrong in its conclusion that the Petitioner was unable to discharge the burden of proving that the results of the election in question in Ward 9 (Sabagreia) were unduly included in the overall result i.e. forms EC 8C(1) and EC 8E (1)?
- Was the Appellant right in his contention that the judgment of the Tribunal is contrary to the evidence. Put in another way, was the judgment of the Tribunal not supported by evidence on Record?”.
At the hearing of the appeal, learned counsel for the Appellant had orally submitted, as indeed, he did argue in the Appellant’s Brief of Argument, that the Tribunal was in error in comparing Exhibits C7 and J10 and in making a finding thereon, when it (the Tribunal) did not obtain the benefit of some opinion evidence by a hand-writing expert. The Tribunal, it was contended, disbelieved the evidence by the p. w.5 (Bolou Eke) when, as counsel submitted, the p.w.5 was not confronted with any documents.
It was the further submitted by the counsel at the hearing of the appeal, that the Tribunal failed to evaluate the evidence by the p.w.4 (Police Inspector Emmanuel Akpe) and the Unit results Exhibits J, J1. to J11. Counsel drew attention to the evidence by the D.w.2 (Abamogi Philip) and the D.w.3 (Ryce Akinima).
Dealing with Ward 9, Sabagreia, counsel submitted, was “the centre of the appeal”. It is the strong hold of the appellant.
The submissions by counsel in the Appellant’s Brief on the arguments on the issues may conveniently be summarised.
In support of the Issue No. 1, counsel had referred to paragraphs 15 and 18 of the petition and to paragraphs 4 and 5 of the Reply by the 1st Respondent and paragraph 8 of the Reply by the 2nd to the 7th Respondents. In the opinion of the counsel, it was common between the parties that the counting of votes was concluded peacefully and that there was no incident of disruption at all.
As put by counsel at page 2 of the Brief “the matter had been settled unanimously by the pleadings of all the parties”.
Counsel, therefore, contended that the evidence by the p.w.4 that before the counting of the votes was concluded some youths stormed the collation centre (i.e. Police Post) and disrupted the counting of votes being at variance with the pleadings ought to go to no issue: National Investment and Properties Co. Ltd vs. Thompson Organisation (1969) 1 N.M.L.R. 99. The evidence did not, however, touch the issue whether or not the D.W.2 (Philip Abamologi) was present at the collation centre till the close of the counting of votes and whether or not the scores credited to either of the candidates were authentic.
Counsel further contended that whatever contradiction there was between the evidence by P.W.4 and the pleadings was immaterial. The Tribunal, counsel contended, was wrong in acting on the evidence by the P.W.4.
The oral submission of counsel at the hearing dealt with and adequately covered the points canvassed in the Brief in support of the Issue NO.2. Suffice it, however, to add that counsel further contended, at page 4 of the Appellant’s Brief, that the Tribunal would have reached a different conclusion had it attached some value to the evidence by the p.w.4.
The gist of the contention by counsel in support of the Issue No.3 was that the 1st Respondent failed to set out in his Reply to the petition the facts and figures disproving the claim of the appellant. Reliance was placed on paragraph 13 (2) to Schedule 6 of Decree No.3 of 1999: (State Government (Basic Constitutional and Transitional Provisions) Decree No. 3 of 1999). Accordingly, counsel urged Court to hold that the appellant, because of the non-compliance, did establish his total unit votes in Ward 9, Sabagreia, as he pleaded in the petition.
Lastly, counsel submitted that on the evidence led, the appellant, qua petitioner, proved his case on the balance of probabilities. Counsel drew attention to the evidence by the D.w.1 and D.w.2 and submitted that the witnesses for the appellant were not confronted with Exhibits Q, Q.1 to Q.19. The failure so to do, counsel, further contended, was a pointer to the fact that “all is not well” with those exhibits.
Those exhibits would not be used to impeach the credit of the witnesses for the appellant as they were not put to them (witnesses) while in the witness-box.
Counsel for the 1st Respondent submitted orally at the hearing just as he did argue in the 1st Respondent’s Brief that on the pleadings issues were joined by the parties on the counting of the votes for Ward 9, Sabagreia, at the Police Post and the collation thereof by the Ward collation officer. Similarly, issues were joined on whether there were only 16(sixteen) unit results fort the Ward 9 or 19 (nineteen).
And, lastly, there was joined between the parties on the pleadings, an issue whether or not the results were as declared by INEC or, what appellant conceived them to he. It was submitted that the Tribunal was justified in resolving the issues based on the evidence led.
Counsel drew attention to the testimony by the p.w.4. It was submitted that his evidence was contradictory to the petition. There was some evidence of some disruption by the youths.
Counsel had referred to the evidence by the D.w.1, D.w.2 and the D. w.3 to the effect that the counting of the votes was done at the various units levels of the ward.
On the question of confronting the witnesses for the appellant with any of the exhibits (Exhibits Q, Q1 to Q19) counsel submitted that it was unnecessary because to impeach the credit of a witness under section 199 of the Evidence Act Cap. 112 Laws of the Federation 1990, or under section 208, it ought to be shown that the document with which such a witness is sought to be contradicted was previously made by him.
Counsel, therefore, justified the Tribunal in making the comparison it did of Exhibits C7 and J10 prepared by the witness in order to determine what probative value it (the Tribunal) would ascribe to the evidence by the witness.
I shall now proceed to consider the learned submission by the counsel on the arguments on the issues. Before I do this, let me say, immediately, that I am in agreement fully with the counsel for the appellant that central to this appeal or its resolution are the scores of votes by the parties respectively in Ward 9, Sabagreia.
Why? Because, firstly, there was no appeal from the finding by the Tribunal in respect of the scores by the parties respectively in Ward 10. Secondly, this is underscored by the appellant himself when in his evidence at the trial he stated, at page 66 of the Record of Appeal inter alia:-
But my grievance is with respect to ward 9 and 10, Sabagreia”.
Having said the above, it seems to me clearly that the appeal, its resolution one way or the other boils down to this: On the pleadings, with respect to Sabagreia Ward 9, what are the issues joined between the parties? Depending on what (1) (supra) is, then, (ii) What was the evidence led in line with the pleadings and in proof of the issue raised thereon? Needless emphasising that every case is ultimately decided based on the evidence in line with the issues raised on the pleadings.
I pause here for a while to dispose of a point. It arose from the submission by the learned counsel for the appellant. The Tribunal had been criticised for looking at the Exhibits – C7 and J10- making a visual comparison between the two and thereafter forming its own impression of the evidence of the witness who prepared the documents. The question becomes this: Was the Tribunal justified in doing what it did do?
Before I record my opinion on the poster, let me, firstly, advert to the principle to guide me in reaching my conclusion. But firstly on the evidence leading to the exhibits – their reception in evidence as evidence – And the above opens the doors to me to consider the evidence by Balou Eke (p.w.5). His evidence is contained in pages 55 to 57 of the Record.
Testifying in-chief, the p.w5. at page 57 of the Record stated inter alias:-
“I was in charge of Aseibiri Unit I ward 9. There was election in my unit. I know the scores of the unit. I can identify Exhibit C7 and J10 as result sheets I entered and submitted to the be sent to (the) ward”.
But this witness was however cross-examined by counsel. Under his cross examination he confirmed that Exhibit C7 was the same with or as Exhibit J 10 one original the other the duplicate thereof – Answering a question by the counsel, the witness said:- ”The serial numbers of exh. J10 comes before the number C7 which is the original. My name appears on both documents and they are the same. The hand writing on Exhibit J10 is carbon copy of Exhibit C7. The code in C7 is 29/1 and on J I0 is 28/1. C7’s station is Aseibiri while in J 10 is Aseibiri I. I am not here to say just what the petitioner wants me to say. C7 and J 10 are not procured for the petitioner purpose” of this case”.
Now, the principle to guide me. It is well known that the Law of Evidence allows trial courts generally to substitute the eye for the ear in the reception of evidence when as the need arises and by this procedure available inferences can be and are quite often drawn from inspection and comparison of objects proffered in evidence, On this issue of inspection of objects Lord Macnaughten observed, (See Hennessey v. Keating (1908) 42 I. L.T.R. 169 (S. L):-
‘The eye is no doubt the best best. Generally but not always the comparison is enough”.
The same Judge – Lord MacNaughton – in a case of passing-off observed:-
The Judge, looking at the exhibits before him and also paying due attention to the evidence adduced must not surrender his own independent judgment to any witness”.
See Payton & CO v. Snelling Lmpard & Co. Ltd. (1901) A.C. 308, 311.
How did the Tribunal treat the evidence adduced’? Writing at pages 111 to 112 of the Record the Tribunal expressed itself thus:-
“We have examined the two documents. The hand writing in both exhibits are different. P.W.5 admitted Exhibit J 10 is a carbon copy of Exhibit C7. That serial No. of exhibit J10 comes first before C7 …. The code No. of the polling station in Exhibit C7 is 29/1 whereas 28/1 is on J10. Also the signature of APP agent in Exhibit C7 is different from the signature of the APP agent in Exhibit J 10.
The name of P.O, Brown Eke is in different hand writing and are poles apart. We agree with counsel for the 1st Respondent that there are contradictions in the evidence of the petitioner and apparent defect in the exhibits before us. We find therefore that we have cause to doubt the evidence of the petitioner and his witnesses”.
In the Law of Evidence, Relevancy, Admissibility of evidence, and weight to be attached to evidence, all these are each in a separate department. What value or weight to be attached to a piece of evidence, once it is admitted as evidence, is for the Jury, the judges of facts. And here in Nigeria, the trial judges sit in a dual capacity, qua Judges of law in matters of law and qua jury in matters of fact In my view, with due respect to the counsel, his criticism of the Tribunal is unwarrantable and so unjustified. It was for the Tribunal to accept or not to accept the evidence by the p.w.5. It was for it as well to ascribe weight or no weight to the exhibits. To be in the best position to reach a conclusion on the testimony of the p.w. 5 and the value to attach to the exhibits it adopted, in my view, the proper and right approach to reach its conclusion.
Learned counsel had contended in pages 6/7 of the Appellant’s Brief that Exhibits Q. Q 1 to Q 19 were not shown to the appellant and his witnesses whilst in the box to confront them as counsel argued. The failure by the respondent so to do, counsel submitted, was a pointer to, (as counsel put it) the direction that all was not well with them”.
I confess that I did not fully appreciate the submission. What was “unwell” with these exhibits was not explained. But if the contention meant that the appellant and his witnesses ought to have shown Exhibits Q, Q 1 to Q 19 in order to discredit them (appellant and his witnesses) to prove the scores asserted by one or the other party false, then immediately, section 199 of the Evidence Act springs to mind. And the question arises: Was the appellant or any of his other witnesses a witness whose credit could be impeached with the Exhibits under section 199 of the Evidence Act?
In my view, the answer is a capital. No. None of the exhibits was, “previous statements made by him in writing”.
It remains for me just to say in conclusion that I found the submission by the counsel on the point unconvincing and less than persuasive I now advert to the pleadings in respect of ward 9, Sabagreia. Paragraph 15 of the petition is relevant. It reads in parts as follows:-
“( 15) In respect of Sabagreia, ward 9 the petitioner avers as follows:-
(a) that when voting was concluded, the counting of votes was done at the police post Sabagreia in the presence of the Police and copies of the results were given to the Police.
(b) that initially when the votes were being counted, the Ward Returning or collation Officer (6th Respondent) was present. After sometime he disappeared and never returned even after the counting of the votes.
(c) entry of votes into Unit Result Sheets, that is Form 8A(1) were done by the presiding officers and the 2 supervisory presiding officers in charge of the ward in the presence of the Police. Copies of these forms were given to the Security Agents and party agents.
(d) out of the 19 Units in the ward, materials for 3 units were destroyed and or hijacked or cancelled.
(c) that the results from the remaining 16 units show thus
PARTICULARS
(omitted)
that the total scores from ward 9 Sabagreia are:
APP 5,868 votes
PDP 795 votes
AD Nil vales
The forms EC 8 A (1) for the various units are hereby pleaded.
Sabagreia ward 9 is the Petitioner’s ward and his strong hold.
(g) xxxxxxxxx”.
Now, how did each set of the Respondents’ Replies to the petition deal with and answer paragraph 15 of the petition’? Paragraph 4 of the 1st Respondent’s Reply is relevant. It reads:
“Respondent denies paragraph 15 of the petition and states that votes from 19 units in ward 9 were duly counted and entered by the respective officers who submitted their respective unit results to the ward Collation officer and further states that
(a) The Ward Collation Officer was present at the ward Collation Centre to receive unit results and duly collated the unit result which he submitted to the Constituency Returning Officer.
(b) The result of ward 9 showed that PDP scored 8,918 and APP 145 votes which were duly declared by responsible INEC official. The relevant documents will be relieved (sic) upon at the trial”.
It was pleaded in paragraph 8 of the Joint Reply of the 2nd to 7th Respondents as follows:-
“8. Respondent (sic) deny paragraph 15 of the petition and avers that no election violence disrupted voting in any of polling unit nor the collation of results at Sabagreia police post”.
From the above it is clear that the parties are not agreed on what happened in ward 9, Sabagreia. They have therefore, joined issues on their pleadings. So, what is the legal evidence adduced on both sides in proof of the facts as each party asserted them? The above opens the doors for me to look at and examine the evidence of the p.w.4 Police Inspector (Emmanuel Akpe). His testimony is contained in pages 53 to 55 of the Record of Appeal. Police Inspector Emmanuel Akpe and some other police officers were posted on the 30/1/99 to Sabagreia on an election duty. Part of the evidence by the p.w.4 at page 53 of the Record was:
“At the tail end when election was going on there was fighting in two of the polling stations. One of the boxes was broken while the other was rushed to the police post (sic) for custody … While the counting was on some group of youths about 100 in number stormed the police post. .. At (this) stage the R.O. was not seen. This youth started fighting between themselves. Some or us ran away.
It was night fall then. Because of the problem the counting could not be concluded. The ones that were done with the results were entered and given to me for onward transmission to the DPO in Kaiama”.
Through the witness, Form EC 8A (1) twelve (12) in number were received in evidence at evidence at Exhibits J, J1 to J 11.
The P.W.4 was however cross-examined by counsel. Answering a question, the witness stated at page 55 of the Record that the exhibits (1, J1 to J11) were those given to him for 16 units in Sabagreia.
The p.w.5 (Bolou Eke) was in charge of Aseibiri Unit I. Ward 9. He identified Exhibit C7 and J10 as the results sheets which he entered and submitted to the supervisory presiding officer. I had earlier on, dealt with and considered Exhibits C7 and J10.
The appellant himself had testified at the trial as the p.w. 7. On the election day, he was at Sabagreia. He observed that the 19 units making up the Ward had been converted into 16 units. He stated in page 65 of the Record inter alia:-
“After the voting everybody moved into Sabagreia Police Post designated collation Centre for the counting of votes and collation of results. This was successfully done…………………The Supervisory P.O.s 2 of them there calmed the youths and told them that the Ward R.O. was no where to be found I had an agent at the Police Post inside. The ward agent came out and gave me the agents copies of the units result sheets Form EC 8A( I)”
The witness identified Exhibits N, N1 – N15 as the result sheets given to him.
Testifying in-chief at page 66 of the Record of Appeal, the p.w.7 stated inter alias:-
“As regards Ward 9 the results as reflected in the ward result sheets does (sic) not reflect the true votes as shown in the unit result sheets and received on the date of the election. The correct score would have been APP 5,898, PDP 795 votes. Scores given by INEC are 145 for APP and 8918 for PDP. Ward 9 is my Ward is my political stronghold” .
What was the version of the evidence by the respondent on the issue under consideration? And this leads me to the evidence by the D.w.2 (Abamogi Philip).
He was the Ward collation Officer for Ward 9, Sabagreia.
Part of the testimony by the D.W.2 in page 74 of the Record was:-
“At the end of voting the P.O.s brought the unit results to me and I collated them in the respective forms I announced the figures for of A election and declared the winner of the councillorship election. After that my colleague who served at Ward 10 waited for me at the collation Centre at Sabagreia the Police Post. Together we went to the waterside and we boarded to Kalama. On reaching there we proceeded to L.G.A. collation office where I submitted the Const R.O. to LG collation Officer … and I left. There are 19 units in Ward 9. I received results from the 19 units. I identify the result sheets. ”
The 19 copies of Form EC 8A(1) admitted as Exhibits Q, Q1 to Q 19 were identified by the witness.
Continuing, at page 75 the D.W.2 further testified that the counting of votes was done at the unit level. He denied leaving the collation Centre during the counting of votes. He further denied that there was any destruction of a ballot box or, that the P.O.s were absent. As he said he never agreed with his S.P.O. that certain unit results should be cancelled.
Ryce Akinima (D.w.3) was in charge of Unit 7 Ward 9, Sabagreia. He was the Presiding Officer (PO.). Part of his evidence at page 77 of the Record was:”
At the end of the counting I entered the results at polling unit in Form EC 8A(1) (Exhibit Q18 identified) I submitted the result to the collation Officer at the collation Centre at Police Station”. The witness denied that there was any fight or that a ballot box was destroyed. As he stated there was eleetion al Kalama Unit 8.
What was the Tribunal’s treatment of the witnesses and their evidence as placed before it? Before embarking on the exercise, I shall, firstly, remind myself of the role of this Court. Trial Courts, as their name suggests, try cases. To them belongs the reception of evidence. (Appellate Courts receive evidence only in exceptional cases and circumstances), the evaluation of such evidence, the issue of credibility or otherwise of witnesses adducing such evidence and the making of findings of fact based most times on the credibility of the witnesses – all these are matters peculiarly and comfortably in the exclusive province of the Court that sees, hears, matches and believes. See Chief Frank Ebba vs. Chief Wani Ogodo (1984) 4 S.C. 84 at Pp. 98/99; (1984) 1 SCNLR 372.
It is quite a different matter when it is a matter of what inference or deduction to make from facts either as admitted or as found. In such a situation the Court of Appeal is in as a good a position as or even better than the trial court. See Benmax vs. Austin Motors (1955) A.C. 370 at p. 375.
Of the witnesses, this was what the Tribunal said about the D.w.2:-
The witness remained consistent and unshaken while under cross examination. He impressed us as a witness of truth”.
The Tribunal made an exhaustive review of all the evidence adduced before it. In the exercise of its prerogative to believe or disbelieve it expressed itself based on the evidence before it as follows at page 115 of the Record inter alias:-
“The Tribunal will prefer the evidence of D.w.2 and D.w.3 and exhibits Q. Q1 to Q 19 as authentic results of the Ward 9 Sabagreia”.
I have studied the Record of Appeal. I confess I have not successfully seen a justifiable excuse to disturb the above finding. It is not perverse.
I shall proceed therefore to record my resolution of the issues formally. The issues ought to be resolved against the appellant and on that account in favour of the 1st Respondent. I do so hereby resolve them.
The appeal, therefore. fails. It is dismissed accordingly. There shall be costs against the appellant in favour of the 1st Respondent fixed at N3,000.00
Other Citations: (1999)LCN/0590(CA)