Chief Udochukwu Callistus Azudibia V. Independence Ogunewe & Ors (2003)
LawGlobal-Hub Lead Judgment Report
S.A. AKINTAN, J.C.A.
This
is an appeal from the judgment delivered on 14th August 2003 by the Imo State National Assembly/Governorship and Legislative Houses Election Tribunal holden at Owerri in Suit No. NAET/IMS/4/2001. The appellant, Chief Udechukwu Callistus Azudibia, was the petitioner before the tribunal while the 1st respondent, Independence Ogunewe, was the 1st respondent. The 20th respondent (INEC) was the body that conducted the election. The other respondents were the officials of Independent National electoral Commission (INEC) that were involved in conducting the election that was the subject-matter of the petition. The appellant and the 1st respondent were candidates at the election into the House of Assembly seat for Ahiazu/Ezinihitte Federal Constituency. The election took place on 12th April 2003. There were other contestants too who contested the same election with them.
The petitioner contested the election as the candidate sponsored by the All Nigerian Peoples Party (ANPP) while the 1st respondent was sponsored by the Peoples Democratic Party (PDP). At the conclusion of the polls, the 20th respondent (INEC) declared the result in which it credited the 1st respondent with 21,989 votes while the appellant was credited with 12,612 votes. The appellant was not satisfied with the results declared by INEC.
He therefore filed the petition at the tribunal in which he prayed the tribunal for the following reliefs in paragraph 38 of his said petition:
“Wherefore the petitioner prays for the following reliefs:
(a) That the election be nullified.
(b) That the Electoral Officers, Returning Officers and Presiding Officers be replaced for a fresh conduct of the election.
(c) That all indicted Electoral and Returning Officers be barred from further participation in elections in the future.”
The 1st respondent filed a reply to the petition. Similarly, a reply was also filed on behalf of the 2nd to 46th respondents. The petitioner also filed a petitioner’s reply to 1st respondent’s reply. The petition thereafter went for trial before the tribunal. At the trial, the petitioner called 16 witnesses while the 1st respondent called two. The 2nd to 46th respondents however did not call any witness. At the close of the case for the respondents, and after taking from learned counsel in the case, the tribunal delivered its reserved judgment. The Tribual in it’s said judgment came to the following conclusion as set out in the concluding paragraphs of the judgment:
“In the premises of the foregone and based upon a proper, prudent and scrupulous evaluation and appraisal of the evidence placed before us by the parties, both oral and documentary and the submissions of learned Senior Advocates made thereon, we resolve all the three issues raised hereinabove against the petitioner.
In conclusion we find and hold that the petitioner has failed to discharge the onus of proof cast on him by law and regarding his allegations of corrupt practices, malpractices, irregularities and non-compliance with provisions of the Electoral Act 2002 made against the respondents. We do not find the said allegations sufficiently proved as required by law. Furthermore, it has not been duly established before us how the non-compliance, if any, substantially affected the result of the election in question. The petition fails. It ought therefore to be dismissed. We accordingly dismiss it in its entirety. We decline to order nullification of the same. We hereby confirm the election of Independence Chidoziem Ogunewe as the duly elected member of the Federal House of Representatives representing Ahiazu/Ezinihitte Constituency.”
The petitioner was dissatisfied with the decision of the tribunal. He therefore appealed against it to this court. Eleven grounds of appeal were filed against the judgment. The parties filed their respective brief of argument in this court. The appellant filed an appellant’s brief and a reply to 1st respondent’s brief. The 1st respondent also filed 1st respondent’s brief while the 2nd to 46th respondents filed a joint brief.
The appellant formulated the following seven issues as arising for determination in the appeal:
“1. Whether the petition tribunal’s decision not to apply the testimonies of the appellant’s witnesses was proper in law.
2. Whether there is no sanction for the breach of section 18 of the Electoral Act 2002.
3. Whether the election was not vitiated by reason of non-compliance with several fundamental provisions of the Electoral Act 2002.
4. Whether election materials that are not certified in accordance with the law were legal evidence before the tribunal of proof of the content of such materials under the Electoral Act 2002.
5. Whether the tribunal’s conclusion that there was no nexus between the 1st respondent and the PDP is correct.
6. Whether the tribunal’s conclusion that the fact of non-certification of electoral materials was not pleaded by the appellant is correct.
7. Whether on the balance of probabilities the appellant did not discharge the onus placed on him as to entitle him to judgment”
The above seven issues formulated in the appellant’s brief were adopted by the 1st respondent. However three issues were formulated in the 2nd to 46th respondent’s brief. The three issues are as follows:
“1. Whether the burden of proof shifted from the appellant as petitioner to the 2nd to 46th respondents during the hearing of the petition at the tribunal.
2. Whether the totality of the evidence of the appellant’s sixteen witnesses met the standard of proof required.
3. Whether sections 18, 65, 67(3) and 134 (i) (b) of the Electoral Act 2002 should be read in isolation of the other sections of the Act to invalidate the actions of the 2nd – 46th respondents during the Election in question.”
The main grievance of the appellant, as canvassed in the appellant’s first issue, is the refusal of the tribunal to accept the testimonies of some of the witnesses that gave evidence in support of the appellant’s case. The reason given by the tribunal for rejecting the evidence given by the said witnesses was that the said witnesses were all members of the appellant’s political party, the All Nigerian Peoples Party (ANPP). It is submitted that the stand of the tribunal is erroneous because the said witnesses met the legal requirement of competency of witnesses as laid down in section 155(1) of the Evidence Act. The evidence given by the said witnesses are said not to come within evidence which by law require any corroboration. The tribunal is therefore said to have acted wrongly by rejecting the evidence given by the said witnesses.
The point canvassed in the appellant’s 4th and 6th issues is mainly in respect of the tribunal’s refusal to reject the electoral forms tendered in support of the election of the 1st respondent. Reference is made to the provisions of section 67(3) of the Electoral Act 2002 which provide that:
“The polling agents shall certify the election materials from the office to the polling booths.”
It is then submitted that since the appellant pleaded in paragraph 2 of his reply to the reply of the 1st respondent that an example of the failure of INEC to perform its statutory functions was to have election materials certified and the petitioner testified in terms of his said pleading, it was a misdirection for the tribunal to hold that the petitioner failed to plead non-certification and thereby denied the appellant the consideration of that aspect of his case. It is further submitted that a non-certified election material ought to have been rejected.
The effect of failure to comply with the provisions of section 18 of the Electoral Act 2002 which provides that all electoral officials are to affirm or swear an oath of loyalty and neutrality indicating that they would not accept bribe, is the point raised in the appellant issue 2. Reference is made to the provision of section 134(i)(b) of the Electoral Act 2002 which provides that:
“An election may be questioned on any of the following grounds, that is to say…
(b) That the election was invalid by reason of corrupt practice or non-Compliance with the provisions of the Act.”
It is then submitted that a breach of the provisions of section 18 of the Electoral Act should have been sufficient to invalidate the entire election.
Failure of the tribunal to set aside the election on the ground that the petitioner had proved that acts of malpractices, violence and intimidation were carried out by members of the 1st respondent’s party, the Peoples Democratic Party (PDP), is the point raised in the appellant’s Issue 3. The reason given by the tribunal for not setting aside the election because of the said acts was that no nexus between the 1st respondent and the PDP was proved. It is submitted that since it is the requirement of the law that every candidate at an election must be sponsored by a registered political party, there was no further nexus need to be proved since it was the PDP that sponsored the 1st respondent. Any evidence led against one is therefore said to be evidence led against the other, the two having been statutorily connected or yoked together.
Similarly, failure of the tribunal to hold that the election was vitiated by reason of non-compliance with several fundamental provisions of the Electoral Act 2002 is the issue taken up in the appellant’s Issue 3. Reference is again made to the provision of section 134(1) (b) of the Electoral Act which makes non-compliance a ground for the invalidation of election. While conceding that it is not every non-compliance that could lead to invalidation of an election, it is submitted that non-compliance with the provisions of sections 17(2) 18, 65, 67(3) and 129 of the Electoral Act should warrant the setting aside of an election. The tribunal is said to have acted wrongly when it failed to set aside the election after the petitioner had proved breaches of the afore-mentioned provisions of the Electoral Act 2002. Finally the issue canvassed in the appellant’s Issue 7 is that the tribunal was wrong when it held that on the balance of probabilities the appellant did not discharge the onus placed on him as to enable him have judgment entered in his favour. It is submitted that the tribunal failed to properly evaluate the evidence presented in support of the petitioner’s case; hence his case was wrongly dismissed.
It is submitted in reply in the 1st respondent’s brief that from the pleadings and the evidence led at the trial, it was clear that the allegations of malpractices, irregularities, etc by the petitioner affected only six polling booths in six wards out of two hundred polling booths in 24 wards in the entire Ezinihitte/Ahiazu Federal Constituency. The petitioner/appellant also in paragraph 31 of his petition admitted that after deducting the votes emanating from all the booths where he complained of irregularities, malpractices, violence and intimidation, the 1st respondent still won the election with 12,628 votes as against the petitioner’s 10,474 votes.
Reference is made to paragraph
16 (1) (a) of the 1st Schedule to the Electoral Act 2002 which clearly states that no ground or fact in support of a ground can be raised in the petitioners reply. It is then submitted that the finding of fact made by the tribunal that the witnesses that gave evidence in support of the allegations of malpractices and irregularities, all of them members of the ANPP, had axes to grind, was justifiable since their main objective was to have the election nullified. Judicial discretion and sense of justice and fairness are said to commend and support the approach of the tribunal.
On the submission that the election should have been invalidated on the ground that the electoral materials used were not certified, it is submitted that there is no provision in the Electoral Act that only certified election materials were legal evidence before the tribunal. It is also submitted that the non – certification of materials required by section 67(3) of the Electoral Act cannot in the light of the provision of section 36(3) of the same Electoral Act render inadmissible those materials/documents. Section 135(1) of the Electoral Act 2002 is said to have provided an appropriate saving clause in cases where minor irregularities are discovered. All the allegations made in the instant case are said to come within those that could be ignored by virtue of the said section 135(1) of the Electoral Act 2002 since it has been shown that the election was conducted in substantial compliance with the provisions of the Electoral Act 2002.
It is also submitted that it is erroneous in law to hold that the contents of a reply brief could be taken as part of petitioner’s pleading. This is because such is specifically prohibited in paragraph 16(1) of the 1st Schedule to the Electoral Act.
It is also submitted in the 2nd to 46th respondents’ brief that the mere fact that the 2nd to 46th respondents did not testify of lead evidence would shift the burden of proof on them. The burden to establish his case is said to rest on the petitioner. If therefore the petitioner failed to lead credible evidence in support of his case, the tribunal would be right to dismiss the petition.
The facts established in this case are that the appellant and the 1st respondent were among the candidates that contested the election for the seat now in dispute. The 1st respondent was adjudged by INEC (the 20th respondent) as having scored the highest votes among the candidates. He was therefore declared the winner of the election. The appellant who scored the next highest votes after the 1st respondent was not satisfied with the results declared by INEC. He therefore filed the petition at the tribunal. The reliefs he sought from the tribunal are as already set out earlier above. At the end of the hearing at the tribunal, the petition was found to be without merit and it was accordingly dismissed. The present appeal is against the dismissal of the petition.
It is clear from grounds of appeal filed against the judgment and the issues canvassed before this court that the attacks launched at the judgment were aimed at having the election nullified. To achieve this set objective, the appellant centred his attack on a number of alleged breaches of some provisions of the Electoral Act 2002.
One of such attacks is the rejection by the tribunal of the evidence led in support of allegations that the election was marred by acts of violence and other related malpractices. The tribunal found as a fact that all the witnesses called to testify in support of the allegations were members of the petitioner’s political Party – the ANPP. The tribunal for this reason held that their evidence was unreliable in that all the said witnesses had axes to grind against the 1st respondent. It is this finding of fact that is now being challenged. In doing so it is submitted that the said witnesses were quite eligible witnesses whose evidence would not by law require any corroboration. It is true that the law may not require the evidence led by those witnesses to need any corroboration.
But the point must be made clear that a trial court has discretion to accept or reject any evidence tendered before it. But in taking a decision to accept or reject any such evidence, it is expected that it must act judiciously and judicially. Once such decision is rightly made, it is not the business of an appellate court to tamper with the decision by substituting its own discretion for that of the trial court.
In the instant case, it is not in doubt that if the appellant had seriously wanted to prove the allegations, it should be possible for him to call other neutral observers to the alleged incidents as witnesses. Among such neutral people he could have called are the police and other security officers who were known to have been posted to monitor the election. The agents of other political parties and INEC officials are also among those who could have been called to give such evidence. None of these neutral people was called and no reason was given for failure of the petitioner/appellant’s failure to call any of such people as witnesses. In the result, the tribunal’s decision by which it rejected the said evidence is quite sound and the appeal founded on it lacks any merit.
The next point is the allegation that the tribunal failed to reject the electoral forms tendered at the trial on the ground that they were not certified as required in section 67(3) of the Electoral Act 2002. The said section 67(3) provides that:
“The polling agents shall certify the election materials from the office of the polling booth.”
(The underlining is supplied for emphasis)
It seems to me that the certification of the materials referred to in that subsection is “from the office of INEC to the polling booth. I believe that the idea behind the provision of the sub-section is that fake electoral materials are not used at the election. The correct thing is for agents of candidates at an election to ensure that the documents brought by the polling officers originate from INEC before the commencement of an election. The type of certification now demanded by the petitioner seems to me not clear. This is because neither the petitioner nor any of his agents raised any objection to the use of any of the material before, during or immediately after the conduct of the election. The said election was duly conducted and the results were announced. It was after the appellant discovered that he was not the declared winner that he now discovered that the materials used at the election which he lost were not certified and he failed to tell the tribunal exactly what form of certification he envisaged.
The position in law is that election result sheets produced in several copies are all admissible without further certification under section 111 of the Evidence Act as primary evidence. See Omoboriowo v. Ajasin (1984) 1 SCNLR 108 at 130; and Nwobodo v. Onoh (1984) 1 SCNLR 1 at 61-62. The result sheets tendered in the instant case and upon which the 1st respondent based his case at the tribunal therefore need no further certification. The decision of the tribunal by which it admitted the documents is quite in order and the appeal founded on it lacks any merit.
The next points to be resolved are that the tribunal failed to nullify the election on the ground that there was a breach of the provisions of section 18 of the Electoral Act in that the electoral official admitted that they did not swear to oath of allegiance before they carried out their duties and whether failure to nullify the election on the ground that some members of the 1st respondent’s political party were involved in acts of violence on the day of the election.
Section 18 of the Electoral Act 2002 provides that:
“18. All electoral officers, presiding officers, and returning officers shall affirm or swear an Oath of loyalty and neutrality indicating that they would not accept bribe or gratification from any person, and shall perform their functions and duties impartially in the interest of the Federal Republic of Nigeria without fear or favour.”
The facts established in this case are that some of the officials employed by INEC to conduct the election in question admitted under cross-examination that the oath prescribed in section 18 was not administered on them before they carried out the respective duties they performed during the election. They however also told the tribunal that even though they did not take the oath, they still performed their roles honestly and impartially. The question therefore is whether their failure to take the oath will automatically lead to the nullification of the result. Or to be more explicit: will it be proper and in the spirit of the Electoral Act to hold that once it is established that one or two of the officials that conducted an election failed to take the oath the entire election would be nullified? Such a situation, in my view, is not envisaged by the Act. And to prevent having such an absurd situation, section 135(1) of the same Electoral Act has provided a saving clause.
The said section 135(1) provides as follows:
“An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or court that the election was conducted substantially in accordance with the principle of this Act and that the non-compliance did not affect substantially the result of the election.”
It is clear from the provisions of the said section 135(1) of the Electoral Act 2002 that proof of a breach of any provision of the Electoral Act will per se not lead to the nullification of an election. To make a case for nullification, the petitioner or appellant needs to go further and prove that the breach of the provision of the Act resulted in the election not being conducted substantially in accordance with the principle of the Act and/or that the non-compliance substantially affected the result of the election. All that the appellant said in this case is that there was a breach of the provision of section 18 of the Electoral Act requiring specified Electoral officials to take oath before carrying out their duties. It has not been shown that that breach substantially affected the conduct of the election or that the non-compliance with the provision of that law affected substantially the result of the election. There is therefore no merit in the appeal on that issue.
Similarly, the failure of the tribunal to nullify the election on the ground that some members of the 1st respondent political party committed some acts of violence on the day of the election, could also not read to nullification of the election. The tribunal rejected the petitioner’s case on the point because he failed to establish any nexus between the perpetrators and the 1st respondent. Apart from the fact that credible evidence must be led to link the perpetrators of such violence with the 1st respondent, the appellant also need to show that their acts adversely affected the conduct of the election and that their acts substantially affected the result of the election. See Oyegun v. Igbinedion (1992) 2 NWLR (Pt 226) 747, at 759-760 Ebebe v. Ezenduka (1998)7 NWLR (Pt.556)74; and Ayua v. Adasu (1992) 3 NWLR (Pt.231) 598 at 612. In the result, the decision of the tribunal to refuse to nullify the election on this ground is quite right.
In conclusion and for the reasons set out above, there is totally no merit in the appeal and I accordingly dismiss it with N10, 000.00 costs in favour of each set of respondents.
Other Citations: (2003)LCN/1504(CA)