Barrister Paul Ubom & Anor V. Nseyen Anderson Anaka (1999)

LawGlobal-Hub Lead Judgment Report

AKPABIO, J.C.A. 

This is an appeal against a decision of the Local Government Election Tribunal, Akwa Ibom State holden at Uyo in petition No. LGET/AK/5/98 delivered on 13th February, 1999, wherein they allowed the petition of the petitioner (now respondent) and upturned the election of the then 15th respondent (but now the 1st appellant) with no order as to costs.

At the Local Government chairmanship election held on 5th December, 1998, the appellant herein was a chairmanship candidate on the platform of the Peoples Democratic Party (P.D.P) while the respondent herein was also a candidate under the platform of the All Peoples Party (A.P.P). At the end of the exercise the appellant emerged victorious with a total vote of 21,520 and was duly declared and returned elected as the Chairman of Abak Local Government Council. His opponent of APP (i.e. the respondent herein) scored 20,619 votes and so lost the election with a narrow margin. Being aggrieved with the result of the said election, the respondent filed an election petition before the tribunal at Uyo, complaining that the election was “characterised by various forms or electoral malpractices: details of which were given in paragraph 4 (a)-(g) of the petition. The largest single complaint made in the petition was that in at least three of the voting centres no elections were held because thugs invaded the place and made away with the voting materials. In some cases both the presiding officer and the police were wounded. Yet in these places huge votes were recorded in spite or the fracas. In some cases huge votes were recorded in favour of the PDP candidate, while in others they were recorded in favour of APP candidate. Particular mention was made of Abak Urban Ward 4 at Ikot Ekang polling unit, where the APP scored 900 votes to nil votes for the PDP. But these votes were ignored and omitted from the collated result. Similarly in Otoro Ward 2, where there was no election votes were nevertheless contrived and recorded in the form showing APP zero votes, PDP 568 votes. Because of such electoral malpractices the petitioner prayed that it be determined that the 1st respondent was not duly elected by a majority of lawful and valid votes cast at the election, and that the petitioner won the election aforesaid having scored a majority of the lawful and valid votes cast at the election, and further had 25% of the votes cast in at least 66% of the wards in Abak Local Government Area and to have been returned.

In response to the above, the present 1st appellant as 1st respondent filed a reply in which he denied all the acts of electoral malpractices alleged to have taken place, but averred that the said election was actually conducted in substantial conformity with the electoral laws. He then answered seriatim all the alleged acts of malpractices that were alleged in paragraph 4(a) – (g) of the petitioner’s petition. First as regards the alleged over-voting at Otoro Ward III where it was alleged, that a total or 5,262 voted instead of 5,250 alleged to have been registered, he averred that the correct number of registered voters was 5,750, while the total number of votes cast was 5,262. The voters register in the said Otoro Ward III was pleaded in support. As regards the voting at Ikot Ekang where petitioner had averred that he scored 900 to zero in spite of fracas at the place, the appellant as 1st respondent averred that truly and indeed, there was no election as the section was aborted at Ikot Ekang polling station in Abak Urban IV as all the election materials sent to the polling station were said to have been lost in a fracas. The presiding office could not conduct an election there, and so no result was sent from there. That state of affairs was authenticated by the petitioner’s own agent at the ward collation centre who rendered a nil return in his Form EC8B. In conclusion the 1st respondent attached a table showing the votes scored by each of the candidates at each of the eleven wards at Abak; and how the total votes of 20,619 for petitioner (A.P.P) and 21,520 for the 1st respondent (P.D.P) was arrived at. They finally urged the tribunal to dismiss the petition.

On its part, the 2nd respondent (Independent National Electoral Commission) also filed its reply in which it denied all the allegations of electoral malpractices made against its officials by the petitioner. It denied that there was “reversal” of any votes, and added that:-

‘The returning of officer or any other official of the second respondent did not add any votes to PDP nor did they falsify the result of the election.”

In conclusion they stated that there were no illegal votes added or valid votes subtracted from the total number of votes cast in the election for any of the candidates.” They therefore urged the tribunal to dismiss the petition and confirm the results as announced by them.

At the tribunal seven witnesses testified for the petitioner while five testified for the defence. At the end of evidence the learned counsel for the 1st and 2nd respondents as well as for the petitioner sent in their written addresses to the tribunal.

At the end of the whole exercise the tribunal came out with a 40 – paged judgment in which it held that the oral evidence of the petitioner before the tribunal and the written address of the learned counsel for the petitioner was not challenged by either the 1st or 2nd respondents. It therefore allowed the petition and declared the petitioner to be the winner of the Abak chairmanship election of 5th December, 1998.

The 1st respondent being dissatisfied with the above judgment has now appealed to this court on four grounds of appeal from which the following four issues for determination have been formulated.

(1) Whether the finding of fact and conclusions of the hon. Tribunal accord with the evidence tendered or are consistent with the weight which ought to be attached to the respective evidence of the petitioner and the respondents.

(2) Whether on the voluntary admission of the petitioner, now respondent the tribunal did not err when it failed to deduct from the petitioner/respondent’s scores the total votes of 2108 (see pages 5 and page 36 of the record)

(3) Whether with the combined effect of Exhibits 2A, 3, 3A and 4 the tribunal was legally justified to upturn the election of the appellant and to declare the respondent the winner of the election.

(4) As the allegation of falsification and/or malpractices was against the presiding officers or returning officers or electoral officers or other officials of INEC whether it was competent for the tribunal to receive evidence of such falsification etc. when the officers had not between joined as respondents in the petition.