Charles Elodi V. Uzo C. Azubuike & Ors (2003)
LawGlobal-Hub Lead Judgment Report
DAVID ADEDOYIN ADENIJI, J.C.A.
This is an appeal against the decision of the Governorship/Legislative Houses Election Tribunal sitting in Umuahia, Abia State, delivered on 16th July 2003, dismissing the petition of the petitioner/appellant. The petitioner not being satisfied with the judgment has appealed against same to this court and filed 9 grounds of appeal in the process.
The appellant formulated 9 issues for determination that:
“1. Whether the tribunal below was not in a fundamental error when it failed and or refused to nullify the entire set of results tendered by the respondents when the total number of votes cost or total figures allocated by them exceeded the accredited voters.
2. Whether the tribunal below was right in its decision and findings that falsification, inflation, juggling of figures and doctoring of results were not proved in the petition in the place of monumental and overwhelming testimonies and exhibits tendered establishing the same at the hearing.
(3) Whether the tribunal below did not commit an error by failing and or refusing to nullify the respondents set of results vitiated and stigmatised by fundamental irregularity, falsifications, doctorings and using the petitioner’s set of results tendered in evidence to declare him the winner of the election.
(4) Whether the tribunal below was right in raising the issue of arithmetical error suo motu without any evidence led by any witness to that effect and using same to determine the winner and final result of the election without hearing the parties or giving their counsel opportunity to address on same.
(5) Whether it was proper and legitimate for the tribunal below to make use of and rely on evidence/exhibits or facts not pleaded, while ignoring and refusing to use evidence and exhibits in respect of pleaded facts and issues in its judgment.
6. (i) Whether the tribunal did not fall into a fundamental error when it failed and/or refused to review and evaluate the evidence given and exhibits tendered by the petitioner and his witnesses in respect of various wards in the constituency – wards 9, 10, and 12 in Aba South L.G.A and wards 8,
10, 11 in Aba north LGA all in Aba central constituency.
(ii) Whether the evaluation and review of evidence was not perverse and unreasonable and whether the evaluation is not contrary to the evidence and exhibits tendered and facts/issues pleaded.
(iii) Did the improper evaluation, wrongful admission, non consideration of evidence of petitioner and his witnesses plus exhibits tendered and raising issues suo motu not constitute a breach of rules of natural justice of audi alterem partem and breach of right of fair hearing under section 36 of 1999 Constitution occasioning substantial miscarriage of justice.
(iv) Do pleadings take the place of evidence or proof of facts so pleaded?
(v) Does failure to prove facts pleaded in some paragraphs of pleadings in respect of a particular issue or ground of petition preclude the use of the said paragraphs in proof of alternative facts/grounds in other paragraphs?
(7) Whether the tribunal ought not to have considered the alternative prayers made by the petitioner in paragraph 24 (b) and (c) of the petition and other relevant paragraphs of the petition viz paragraphs 10, 11, 12, 13, 14 and 20 in order to determine the effects and purport of proof or otherwise of paragraphs 22 and 23 of the petition.
(i) Was the tribunal right to consider, evaluate and review paragraphs 22 and 23 of the petition in isolation of the aforesaid prayers of the petitioner in paragraph 24 (b) and (c) and paragraphs 10, 11, 12, 13, 14 and 20 of the petition which provide alternative grounds and prayers.
(ii) Was the lower tribunal right in disallowing petitioner’s exhibits and evidence in respect of wards 9, 10, 12, Aba south L.G.A and wards 8, 10, 11 in Aba north all in Aba central constituency while using those of the respondents.
(iii) Was the tribunal right in not evaluating evidence/exhibits in respect of allegations and all the evidence led by the petitioner’s witness in respect of the aforesaid wards in order to determine whether the said corrupt practices invalidated the results in the said wards or not as pleaded in paragraphs 22 and 23 of the petition.
(8) Did the petition plead the falsity of his results from the units in form EC8As from various polling units in the six wards in question as mentioned above?
The counsel for the 1st respondent, Mr. Nwaogu, after criticising the unwieldiness of the issues framed by the appellant’s counsel and concluding that the issues as framed by the appellant are defective, went on to formulate only two issues for determination:
“(a) Is the present Appeal competent having regard to the fact that petitioner/Appellant has not appeal against the finding by the Tribunal that the Petition is defective and incompetent?
(b) Assuming that the answer to Issue No. 1 is in the affirmative, was the Tribunal right in dismissing the Petition having regard to the pleadings, the evidence adduced and the circumstances of the case?”
The facts of this case are that the petitioner/appellant and others were contestants in the recently concluded Abia State House of Assembly Election of 3rd May, 2003. The appellant was a candidate on the platform of All Progressive Grand Alliance (APGA) Party, while the 1st respondent contested on the platform of the Peoples Democratic Party (PDP). Six candidates were alleged to have contested the election, though the appellant expressly pleaded the names of only 4 political parties, that is, ANPP, APGA, NDP and PDP.
At the end of the exercise the 1st respondent was returned elected. The appellant then filed a petition against the declaration but lost at the lower Tribunal.
I need point out from the onset that the way the petitioner framed his issues is unorthodox. That was sharply criticised by the opposing counsel, Mr. Nwaogu. Election petitions being sensitive matters in a class of their own, I have decided to allow them to stand as they are for due consideration but I honestly believe that issues 1-4 as framed by the appellant can be conveniently taken together. On issue 2 by the appellant, counsel reproduced the finding of the Tribunal per pages 251-253 of the records.
It reads:
“The 2nd-47th Respondents tendered exhibits D45 – D250 in respect of all the wards. Leaving aside exhibits D1 – D44 exhibits D45-D250 were tendered by the 2nd-47th Respondents through DWs 4 & 5 who are INEC officials. We agree with the submission of Mr. Elodi that the polling booth or unit is the root or base of the whole electoral process and document emanating therefrom of which the total votes scored by a candidate in an election are recorded and signed by the presiding officer and party agents in the strongest evidence to establish the votes scored by various contestants see Emroto v. Ugbunnakpo (1999) 9 N.M.L.R. (Pt. 619) pg 460 at 467. DWH tendered the forms EC8A from the different polling booths. Those of Ekeoha Ward 8 are exhibits D 45-D70: Aba Town Hall Ward 12 – Exhibit D71-D91: Aba River Ward II, Exhibit D92-D119; Gloucester Ward 9 Exhibits D120 – D141 and Mosque Ward. He also tendered their forms EC8B or the respective wards, i.e. exhibits 164-168.
DW1 also tendered the form EC8D as exhibit D169 and form EC8E as exhibit D170 DWS tendered all the form EC8A for Umuola Ward, which are for Umuola Ward which are exhibits D173-D195, Ogbor 1 ward 10 exhibits D196-222, Ogbor 2 Ward II, exhibit D223-247. He also tendered these forms EC8B as exhibits D248, D249, and D250 respectively. We have carefully examined all the exhibits and we are satisfied that they prima-facie (sic) correct and genuine. There is in law a rebutable presumption that the result of any election declared by the Returning Officer is correct and authentic by virtue of sections 116, 149(1) and 150 (1) of the Evidence Act and the burden in on the person who denies the correctness and authenticity of the return to rebut the presumption. See Omoboriowo v. Ajasin (1984) SCNLR 108 Pa (sic) Bello CJN see also Abibo v. Daturu (1999) 4 N.W.L.R. (Pt. 559) pg. 335 at 339-340 where OPENE J.C.A said:
“There is a rebuttable presumption that the result of any election declared by the electoral commission is correct and authentic and the onus is on the person who denies the correctness and authenticity to rebut that presumption.”
It follows from the above that the he (sic) onus is on the petitioner to rebut the presumption. In this petition, the petitioner alleged falsification and inflation of votes. These are criminal acts.
Now, where the denial of the correctness and authenticity of the INEC result is based on allegation of crime the evidence of rebuttal must be proved beyond reasonable doubt. See Nwobodo v. Onu (1984) 1 SCNLR 1. The petitioner in the peculiar position he placed himself has not offered any evidence in rebuttal not to speak of proof beyond reasonable doubt. Belief or disbelief of a witness is immaterial when there is only one version of evidence relating to a material fact. See Modupe v. The State (1988) 9 SCNJ 1, Ijebuode Local Government B (sic) v. Balogun (1991) 1 SCNJ 1 at 18. The evidence of DWS 4 and DW5 who are INEC officials not have (sic) been contradicted and exhibits D45-D250 not having been challenged we have no alternative than to accept them”
Counsel was of the view that the finding as reproduced supra was perverse unreasonable and contrary to evidence given and tendered before the Tribunal which he said were replete with evidence of falsification of results tendered by 1st-47th respondents, all full of doctoring and juggling of figures of election results which the Tribunal failed to invalidate. He added that had the Tribunal examined and evaluated the evidence and exhibits tendered, it would not have ignored and overlooked what he called the monumental falsifications, inflations, doctoring, juggling of figures and allocation of false figures in Exhibits D1-D250 tendered by the 1st-47th respondents, despite the fact that the falsifications were pleaded and testified to by the petitioner and his witnesses, which he said declared the colossal inflated false figures as opposed to genuine copies of the results in exhibits 1-185 given to the agents of the appellant during the election.
He was sure that going by what he called genuine results he (the appellant) won. He then went on ward-by-ward basis and referred to Ogbor I where he said the votes were altered. Ogbor 2 ward 11 where he felt votes were falsified etc alleging malpractices and falsification of results in all the wards.
The counsel for the 1st respondent in his response attacked the petition as incompetent not having complied with paragraph 4(1) of the 1st schedule to the Act, for failure to state the names and scores of all the candidates.
He relied on Anigalah v. Ahoh (1999) 7 N.W.L.R. (Pt. 611) page 454 and Ukpo v. Uden (1999) 6 N.W.L.R. (Pt.606) 295. The respondents, he said tendered Exhibits D3-D70 from EC8E Declaration of Result Form for Aba Central Constituency held on 3/5/03. The exhibits showed that there were 6 candidates but averments in the petition in paragraphs 23 and 24 clearly excluded the candidates for NCP and CF. the Tribunal noted those omissions and held that the petition was incompetent. The petitioner did not appeal against it, showing that the appellant accepted the ruling. Counsel relied on Udegbunam v. FCDA (2003) 10 N.W.L.R. (Pt 829) 487 at 501 paragraphs A-D. Counsel concluded that notwithstanding its decision that the petition was incompetent, the Tribunal chose to go on with the case and the proceedings thereafter were mere surplusage. Appellant was thus not in a position to attack the decision in that regard. He relied on Ulequede v. Military Administrator, Benue State (1996) 6 N.W.L.R. (Pt 457) page 693 at 719. The grounds he added were incompetent. According to him, grounds 1, 2, 5, 7 and 9 are not issues of law.
Counsel later turned to his issue no.2, that is, whether the Tribunal was right in dismissing the petition having regard to the evidence adduced and the circumstances of the case. He argued that the appellant alleged in his petition lots and lots of malpractices, assaults, threats, violence and undue influence, threatening, inducements, intimidations, etc at most of the polling centres and collation/collection centres in the constituencies. These the appellants said, took place in 6 out of the 8 wards that make up Aba Central Constituency namely Ogbor 1 ward 10, Ogbor II Ward 11, Umuola Ward 8, Gloucester Ward 9 Mosque Ward 10 and Aba Town Hall Ward 12.
Counsel stressed that parties are bound by their pleadings and cited Ikwuka v. Anuchuna (1996) 1 N. W. L.R. (Pt 424) 355, Ratio 5. Counsel said that by his own showing the petition attacked the results from the 6 affected wards and branded them tainted due to malpractices, undue influence, intimidations, violence etc. and had in paragraph 23 page 14 of the records indicated his intention to urge the Tribunal to deduct and invalidate all the results declared in all the wards bedeviled by gross malpractices. Counsel said these included his own copies from the wards. He could therefore not turn round again to say such returns were genuine. That will be at variance with the appellant’s pleadings and would go to no issue.
The view of the Tribunal that such assertion had therefore become unreliable is right, concluded counsel for 1st respondent. Thus the, Tribunal disregarded the evidence of PWS 1, 3, 4, 5, 6 and exhibit 1, 2, 3, 48, 116, 143 and 183 as they go to no issue. The petitioner’s, own copies of results having been tainted, the Tribunal had to accept those tendered by the respondents exhibits 01-D250 as the correct and genuine results for the affected wards. Counsel was of the view that the Tribunal’s finding could never be faulted in that regard.
I tend to agree with the 1st respondent’s counsel on that score. It is not enough to make general allegations. To sustain the petition, it was necessary to show by convincing proof that the allegations are well founded. One can make allegations of shortcomings or defaults but what the law requires is adequate proof that such situation actually exists. In this case the appellant produced the result sheets with him which he said, were handed over to him by his party agent, but most of the witnesses, that is, officials called disowned them saying they do not tally with their own entries.
The law presumes that the returns produced by Returning Officers are accurate and that presumption can only be rebutted by strong and precise evidence to the contrary. Failure on the part of the petitioner to do so renders the result rendered by defence witnesses reliable. That exactly is what the Tribunal did in that respect and its decision contains very good reasons for doing so. To my mind, the decision of the Tribunal in that regard is good and can hardly be faulted.
I need say that the point as regards paragraph 4(1)(c) of the 1st schedule to the Electoral Act 2002 referred to by 1st respondent’s counsel is, in order but the trend of contemporary decided cases is that the courts should no longer dwell so much on technicalities once there is substantial compliance and that the Tribunal did. See (1) Egolum v. Obasanjo & ors (1999) 7 N.W.L.R. (pt 611) 335 at 413; (2) Jim Nwobodo v. Onoh (1984) 1 SCNLR 1.
The Tribunal was consequently right to have refused to strike out the petition at the preliminary stages. The Tribunal had the opportunity of seeing the exhibits tendered and hearing witness evidence on the exhibits, of watching their demeanour and comparing the documents tendered before it before preferring the sets of exhibits it relied upon in its findings. To my mind, it has done all that the law requires of it in that regard. Those issues are therefore resolved in favour of the 1st respondent.
On what the appellant called issues No. I and III he submitted that the cardinal issue to be considered under this head had been argued and articulated upon supra. He then quoted the Tribunal’s findings at page 252 of the record, which reads thus:
“We have carefully examined all the exhibits and we the satisfied that they are prima facie correct and genuine”.
He also reproduced part of page 260 of the record, which reads:
“It appears the petitioner main grouse in (sic) that the result were inflated and concerted (sic) at the final constituency centre. See paragraph 19 and 20 of the petition. Unfortunately there is no credible evidence led on this allegation…”
These two parts of the findings were challenged by the petitioner who styled them perverse, unreasonable and not supported by evidence before the Tribunal, in that the issues of malpractice and massive falsification had been highlighted. He added that the Tribunal failed to evaluate the evidence before it to make it come to a just, fair and equitable decision.
He called upon this court to invoke Section 16 of the Court of Appeal Act 1976 and remedy the situation having in mind the cases of A.G. Anambra State & Ors v. Okeke & Ors (2002) (Pt 11) 58 at 67; Kudu v. Aliyu & Ors (1992) 2 LRECN 33. He finally urged the court to hold that the falsifications, inflations and doctoring were proved, based on the evidence and the exhibits tendered at the lower Tribunal and that the total number of votes cast exceeded the accredited voters thus nullifying the respondent’s set of results as he put it.
The reply of the 1st respondent naturally runs counter to the assertion of the appellant. He too commented on the Tribunal’s findings on page 252 and pointed out that there is a presumption of regularity and correctness of any result declared by a Returning Officer by virture of section 116, 149 (1) and 150 (1) of the Evidence Act and the burden is on the person challenging the correctness to rebuttable presumption. He relied on Omoboriowo v. Ajasin (1984) SCNLR 108; Abibo v. Daturu (1999) 4 N.W.L.R. (Pt 559) 335 at 339-340 where he quoted the findings of Opene J.C.A. in extenso and concluded that the position of the Tribunal could never be faulted in that regard.
On the allegation that the Tribunal suo motu took up the arithmetical verification exercise, counsel for the 1st respondent pointed out that the appellant addressed the Tribunal on it personally. Counsel in that regard referred to page 256 lines 21 of the record showing that appellant addressed the panel on the point. He also referred to page 256 lines 1-8. It will appear that the appellant has chosen to pick passages out of con and then launch attacks on them without making any cogent point. He is fond of quoting passages in parts only, leaving such portions that succinctly answer his queries. On page 252 for instance, he stopped at the middle of the passage where as it went on to point to that same presumption in favour of Returning officers and the Tribunal relied on section 116, 149 (1) and 150(1) of the Evidence Act. That is after the Tribunal had compared the results.
The appellant has not said that there is no such presumption or that the law has been repealed, misapplied or even that it is inapplicable to his case. All the appellant depended upon was attack upon attack in general terms without pinpointing any shortcoming as such in the judgment complained against. He is fond of recycling the facts already stated and repeating the allegations of malpractices, juggling of figures, falsification etc without any attempt to substantiate such allegations.
In short, the arguments of the appellant only succeed in floating in the air without any salient impact made on the complaints on the ground. Same with the appellant’s reference to page 260 of the record lines 6 – 10 where the court held thus:
“It appears that the petitioner’s main grouse is that the result were inflated and concocted at the final constituency centre. See paragraphs 19 and 20 of the petition. Unfortunately there is no credible evidence led on this allegation.”
The appellant stopped there and launched the usual attack, which invariably is neither here nor there, but then the passage continued thus:
“PW1 who testified that he was not allowed access to the final constituency collation centre stands alone. DW4 testified that no agent was denied access to the final constituency collation centre; rather we (sic) testified that he did not receive the list of APGA agent before and after the election. From the evidence PW1 it was clear that he was not at the final constituency collation centre so he cannot give any evidence as to falsification or inflation of votes there. We have earlier held that there was no falsification of result or inflation of votes in exhibits D5 and D169 apart from the arithmetical error, which we pointed out and adjusted. We observed that the petitioner did not attack exhibits D3 and D170 the forms EC8E otherwise known as Declaration of result Form with which the result in the State House of Assembly Elections were declared…”
The Tribunal went on and on. One would see that had the appellant endeavored to bring out in full the reasoning of the Tribunal, he possibly might have no cause to attack the decision. He has not pointed out how the Tribunal, which saw and heard the witnesses erred in the above finding. That again is indicative my earlier observation that the appellant in this case appears to have penchant for attacking the views of the Tribunal for the fun of doing so. The appellant has therefore failed to convince me that his grouse is real. The issues are therefore resolved in favour of the 1st respondent.
The appellant next turned to what he framed as issues (v), (vi), (vii).
He submitted that the central issue in the grounds (vi) (viii) and (iii) were already articulated upon supra. He then referred to pages 81 and 82 of the record where the Tribunal held thus:
“Paragraphs 15 and 18 are unrelated to the issue of falsification of results. Paragraph 15 of the petition is a general attack on the election and identification of those allege to have perpetrated the corrupt practices. The same goes for paragraphs 17 and 18. If the 1st respondent is complaining of mere details he is at liberty to ask for further and better particulars. So we find no merit in the attack unheasered (sic) on paragraphs 15, 17 and 18 of the petition. The objection on this aspect fails…”
On this aspect, the appellant insisted that those paragraphs related to allegations of corrupt practices in the named wards and he had prayed that the results of the said wards be deducted from the figures supplied and thereby declare him (appellant) as the winner. The deductions he said would normally follow the trend of evidence. He felt that the Tribunal had not followed its earlier findings in the case. He could not see the basis for the Tribunal’s view that there was no evidence led in respect of the allegation, which he said the Tribunal treated as abandoned.
He felt the result from the affected wards had been proved false. The Tribunal he added rejected his own (appellant’s) version of the matter and accepted the version of the respondent’s witnesses on the six wards and then acted on it. Pleadings he submitted do not take the place of evidence and any pleading in respect of which no evidence is given is deemed abandoned and cited Ikaetu v. Obi (1999) 6 N.W.L.R. page 602 at 604; Odente v. Bassey & Ors (1999) 5 N.W.L.R. (Pt 610) at 612.
Assuming without conceding counsel summed up, that the Tribunal was right in its findings as to the results in Ward 8 Ekeoha and II Aba River, it should be held that the Tribunal has unreasonably refused to consider and act on Form EC8 being the Unit result in the two wards, where he (the appellant) had majority of lawful votes.
Generally, the 1st respondent had summed up his argument to the effect that the Tribunal did not breach any rule of procedure in its evaluation of the evidence led. The appellant’s pleadings he said, were binding on him. Thus where the appellant had stigmatised his own results he could not later turn round to rely on same, since it would be at variance with the pleaded facts. The Tribunal he believed did the right thing and the responded was in order to have tendered his own set of results. The petition, he added, was rightly dismissed.
Honestly I do not see what the appellant had done to fault the Tribunal’s findings in this respect. The Tribunal had the two sets of result before it. It compared them and made the necessary findings and inferences correctly. The findings were exhaustive, based on sound reasoning both in law and facts. The Tribunal’s decision when closely read revealed that the panel took into consideration all aspects of the case. It is thus inconceivable to describe such a decision as perverse. It was a lucid and well-reasoned judgment. The attack on it is therefore not well founded. The set of issues formulated by the appellant in that regard are therefore resolved in favour of the 1st respondent.
On the whole, I hold the view that this appeal lacks merit. It therefore fails. The judgment of the lower court is hereby affirmed and the appeal is dismissed with costs assessed at N10, 000.00 in favour of the 1st respondent.
Other Citations: (2003)LCN/1508(CA)