Boniface Odali V. Hon. Dickson Ahmadu & Ors (1999)

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TABAI, J.C.A. 

The petitioner/respondent, Hon. Dickson Ahmadu, the 6th respondent/appellant Mr. Boniface Odali and Mr. Eric Oghonoghor contested for the councillorship on the elections conducted by the 1st respondent, the Independent National Electoral Commission on the 5th of December, 1998. The petitioner/respondent, Hon. Dickson Ahmadu (hereinafter simply referred to as the respondent), contested under the platform of the Alliance For Democracy (AD), the 6th respondent/appellant Mr. Boniface Odali (hereinafter simply referred to as the appellant) under the All Peoples Party (APP) and Mr. Eric Oghenoghor, under the Peoples Democratic party (PDP). At the conclusion of the election, the appellant was declared as the duly elected councillor for Word 4, having been accredited with 2109 votes as against 1472 votes for the respondent of AD and 1138 votes for Mr. Eric Oghonoghor of PDP. Dissatisfied with the said result, and the consequent return of the appellant as the duly elected councillor for Ward 4, in the Ukwuani Local Government Council, the respondent presented a petition by which he challenged the return of the appellant and prayed for the nullification of the results in Units 9, 9A, 10, 11 and 11A, the setting aside of the election of the appellant and his (petitioner’s) declaration as the duly elected councillor. In the said petition, he alleged amongst others, fraudulent manipulation, falsification inflation, thuggery attack and other electoral malpractices in favour of the appellant.

On the 4/1/98 the 6th respondent/appellant filed his 12 paragraph reply to the petition. In it he denied all the allegations of fraudulent manipulation, falsification, inflation of figures and other electoral malpractices in his favour in the aforesaid Units 9, 9A, 10, 11 and 11A. He also denied the allegation of thuggery and indicated that at the trial, he would insist on strict proof of the averments of the criminal allegations.

And on the 25/1/99, the 1st-5th, 7th-9th respondents filed their reply to the petition. They also denied all the allegations or falsification, fraudulent manipulation, illegal thumb printing and other electoral malpractices. At the trial 5 witnesses testified in support of the petitioner/respondent and live testified for the respondents. In its judgment on the 9th February 1999, the tribunal nullified the election of the appellant and in his place, returned the petitioner/respondent as the duly elected councillor for Ward 4. Ukwuani Local Government Council.

Against this judgment, the appellant has now appealed to this court with six grounds of appeal which without their particulars are as follows:-

1. The tribunal erred in law in proceeding to hear and determine the petition when it lacked the jurisdiction so to do.
2. The judgment/order of the honourable tribunal is a nullity having been delivered in breach of the statutory provisions of paragraph 2(1) of Schedule 5 to the Local Govt. (Basic Constitutional and Transitional Provisions (Decree) No, 36 of 1998,
3. The tribunal erred in law and thereby came to a wrong conclusion when it found as a fact that the imputations/allegations of crime/electoral offences in polling units 9/9A and 11/11A were proved when the evidence adduced did not satisfy the standard of proof required to establish the criminal allegations upon which the petition is predicated.
4. The tribunal was in grave error of law when it relied on inadmissible evidence of facts not pleaded and/or in direct conflict with facts pleaded in the petition.
5. The tribunal erred in law and thereby came to a wrong decision when it declared the petitioner as the person duly elected and returned as councillor for Ukwuani Local Govt. Council, on the basis of computations centred around a declaration of result/return which was neither pleaded nor proved by the petitioner and
6. The judgment of the honourable tribunal is against the weight of evidence.

In the appellant’s brief of argument the following issues for determination were formulated:-

Issue 1

Whether the judgment of the tribunal was not a nullity.

Issue 2

Whether the petition is competent.

Issue 3

Whether the allegations of crime alleged by the respondent were proved beyond reasonable doubt.

Issue 4

Whether the evidence relied upon by the tribunal in coming to its decision was admissible.