Basil Njoku V. Malachy Osimiri & Ors (1999)

LawGlobal-Hub Lead Judgment Report

AKAAHS, J.C.A.

The appellant and the petitioner/respondent were the only candidates that contested for the councillorship seat in Eziudo Ward 6, Ezinihitte Local Government Area of Imo State during the Local Government elections held on 5th December, 1998. The petitioner/respondent contested the said election on the platform of people’s Democratic Party (PDP) while the appellant was the candidates for the All Peoples Party (A.P.P). There were 16 polling booths in ward 6 but the results which were announced by the returning officer covered only 15 booths. The A.P.P. candidate was returned as the winner with 1,538 votes while the P.D.P. candidate was credited with 1,326 votes. The 1,326 votes came about as a result of the cancellation of the votes at Umuzu square polling unit No.F3 which was won by the petitioner/respondent. He was recorded as having scored 229 valid votes. The total number of votes case in Umuzu square were 234 but only 5 were voided. The appellant did not score any vote in Umuzu Square polling unit. If the said 229 votes has not been cancelled the petitioner/respondent would have won the said election with a majority of 17 votes. It was agreed by all the parties that the election was free and fair.

The petitioner was dissatisfied with the return of the respondent and petitioned to the tribunal which nullified the return of the respondent and declared the petitioner as the validly elected councillor for Eziudo Ward 6 of Ezinihitte Local Government Area having polled the majority of lawful votes at the election held on 5/12/98.

The respondent has appealed against the nullification of his election. He filed Notice of appeal dated 22/2/99 along with four grounds of appeal. He also filed by brief raising three issues for determination. The respondent also filed a reply brief and based his argument on the issues raised in the appellant’s brief. The issues are:-

1. Whether the tribunal below was right in disregarding the evidence of the presiding officer (PW3) that there was mistake in Umuzu booth (F3) which he wanted to correct before the petitioner snatched the result Exhibit P3 from him and ran away.
2. If the answer in issue 1 above is in the negative, was the tribunal below right in attaching weight to Exhibits P3 and P16 by adding 229 votes to the votes of the petitioner to make it 1,555.
3. Did the petitioner indeed score the majority of lawful votes in the election as to entitle the tribunal below to declare the petitioner the winner of the said election.

The summary of the issues raised in the appeal relates to the evaluation of evidence made by the lower tribunal. On the cold printed records and without the benefit of watching the demeanor of the witnesses, this court cannot embark on a re-evaluation of evidence and ascribe any probative value to the evidence so adduced and arrive at a different conclusion from the one arrived at by the lower tribunal.

Learned counsel for the appellant argued issues 1 and 2 together. He said that the evidence disclosed before the tribunal was to the effect that the conduct of the election at booth F3 was free and fair and the results from that booth showed that the APP had 36 votes. DPP 192, NSM 1, DAM 1 and UPP2 but there was a detected mistake on Form EC 8A(1) and the presiding officer wanted to correct it before it was snatched from him by the petitioner. He contended that the evidence of the presiding officer was very material but it was completely disregarded when the tribunal appraised the facts. He submitted that the tribunal went on a frolic of its own by substituting facts before it and thus reached a perverse conclusion which occasioned a miscarriage of justice. He therefore urged this court to answer issue No. 1 in the negative.

On the incident of the petitioner snatching the result sheet from the presiding officer which was recovered by P.W.3. learned counsel’s contention is that there is no evidence to suggest that the original copy of Exhibits P3 and P 16 were ever returned to the presiding officer or to INEC so as to accord any validity or weight to Exhibits P3 and P 16. He submitted that the tribunal wrongly inferred:

(a) That the original copy of Form EC 8A (1) snatched from the presiding officer by the petitioner is Exhibit P 16 tendered through P.W.3.

(b) That the original copy of Exhibit P3 was returned to the presiding officer of INEC. This wrong inference which the tribunal drew led it to attach weight to Exhibits P3 and P16 by crediting the petitioner with 229 votes and this occasioned a miscarriage of justice.

He further submitted that the wrong inference drawn by the tribunal had the effect of shifting the production of the original copy of Exhibits P3 and P16 to the respondents. He argued that it was wrong for the tribunal to invoke section 149(d) Evidence Act against the respondents. The reply by the learned counsel for the 1st respondent/petitioner was that the tribunal below made a proper evaluation of the evidence of R.W.3 in relation to the testimony of P.W.2 and P.W.3 with particular regard to Exhibits P3 and P16 and came to the right conclusion. He asserted that having regard to the state of the pleadings and the demeanor of the witnesses the tribunal rightly disregarded the whole testimony of all the witnesses called by the respondents (including RW3) and preferred the testimony of the petitioner’s witnesses instead, He urged this court to resolve issue No. 1 in the affirmative since appellate courts do not normally upset findings of fact made by trial courts unless it is shown that such findings are not supported or are not proper conclusions or inferences drawn from the evidence before it.

On issue No.2, learned counsel said the tribunal below was perfectly right to have attached so much weight, to Exhibits P3 and P16 because this is the booth or unit where the PDP scored 229 valid votes cast at the election but which votes were unlawfully removed from his total score by the returning officer. He therefore urged this court to hold that the tribunal made a thorough evaluation of the oral evidence surrounding the documents and it was also right in holding that the respondents shied away from the facts of this case by refusing to produce the documents they were given notice to produce and proper application was made in invoking S.149(d) Evidence Act against the respondents. He finally urged this court to hold that the tribunal below was right in attaching weight to Exhibits P3 and P16 by adding 229 votes of the petitioner to make them 1,555.

Did the tribunal properly evaluate the evidence before rejecting the evidence of P.W.2 and RW3 and instead accepting the evidence of P.W.3? Since all the parties are agreed that the election was free and fair, I do not see any justifiable reason why the R.W 1 (Eve Osuagwu) should decide to cancel the result of Umuzu polling booth simply because the petitioner had snatched the form (Exhibit P16) when she returned the said form to the presiding officer to correct the mistake he had made. The act of snatching an election result does not warrant excluding any lawful votes cast at an election. P.W.3 gave evidence stating that on 5/12/98 he was at the returning centre when the result of Eziudo Ward 6 were announced. He said that the result from Umuzu showed that PDP had 229 votes and APP had nothing. It is his copy of EC 8A(1) in respect of Umuzu booth that was admitted in evidence as Exhibit P16. Exhibit P16 was signed by the agents of APP and PDP. Once the votes in Umuzu booth were added to the other votes scored by the petitioner, it was clear that he was the winner of the election.

There is nothing perverse about the finding made by the tribunal in respect of Exhibit P16 when it stated in its judgment at p.57 of the record that:.

….. the action of the petitioner could not be said to have in any way affected the authenticity of Exhibit P16 …..”