Friday Weniabo V. Nein Ebiakpo & Ors (1999)
LawGlobal-Hub Lead Judgment Report
MICHAEL EYARUOMA AKPIROROH, J.C.A.
Governorship and Legislative Houses Election Tribunal sitting at Yenagoa delivered on 22nd March, 1999. The petition was in respect of the State House of Assembly election held on 30/1/99.
The 1st Respondent as the petitioner Nein Ebiakpo and Friday Weniabo were candidates at the election. The 1st Respondent contested under the platform of the All People Party (APP) while the appellant contested under the platform of the Peoples Democratic Party (PDP).
At the end of the polls, the 1st Respondent was credited with 1,800 votes while the appellant was credited with 2,538 votes. The appellant was therefore declared the winner of the election having scored the highest votes in the said election.
The petitioner was dissatisfied with the results as declared by the 2nd-4th Respondents and accordingly filed a petition against it before the aforesaid election Tribunal. He set and the grounds, in which he based his petition in paragraph 4 of his petition. He concluded his petition by praying the Tribunal for the following reliefs in paragraph 8 of the said petition:-
“8 WHEREFORE your humble Petitioner prays that it may be determined that.: –
(a) the 1st Respondent was not duly elected and/or returned and/or elected by majority of lawful votes.
(b) the votes cast at the aforesaid wards 77 and 12 which were unjustifiably and legally excluded from the total votes of the petitioner and the 1st Respondent be restored respectively.
(c) The Petitioner NEIN EBIAKPO was duly elected and ought to have been returned elected and;
(d) Your humble petitioner re declared validly elected to represent Sagbama Constituency II in the State House of Assembly having polled the majority of lawful votes cast at the election.”
The 1st Respondent filed a reply to the petition and a Joint reply was filed by the 2nd-4th Respondents. The petition thereafter came on for trial before the Tribunal.
At the hearing, the petitioner led evidence in support of his petition while the appellant testified and called four other witnesses.
The 2nd-4th Respondents called no witness in support of the averments in their reply to the petition.
At the conclusion of the trial, and after submissions of learned counsel the tribunal in a reserved judgment delivered on 22/3/99 held inter alia that the petitioner was duly elected and ought to and declared him the winner of the election.
The appellant was dissatisfied with the decision of the Tribunal and has accordingly appealed against it to this court. He formulated the following issues for determination from the grounds of appeal filed in his brief of argument:-
“(1) Whether having regard to the pleadings of the Petitioner, it could be said that he has proved his case in accordance with the pith of that pleadings.
(2) Whether Exhibits A and B which were never pleaded were properly received and/or also whether Exhibits C. and D were legally admissible.
The 1st Respondent also filed a brief and adopted the two issues formulated by the appellant in his brief of argument. No brief was filed on behalf of the 2nd – 4th Respondents and they were not represented at the hearing.
Learned counsel for the Appellant submitted in the brief of argument on the first issue, that the evidence led in support of the petition is at variance with the, averments contained in it and goes to no issue and consequently, he failed to prove the case pleaded in his petition.
Reliance was placed on the case of Kadu v. Aliyu (1992) 3 NWLR Part 231 page 615.
On issue two it was submitted that Exhibits B and D relied upon by the Tribunal are inadmissible in evidence by virtue of Section 30 and 33 of Schedule 5 of Decree No.3 of 1999 because they were not signed by the Party Agents and do not carry the stamp of Independent National Electoral Local Commission. It was further submitted that Exhibits B and D are the Summary of the results collated from the polling stations usually entered in Form ECBA(1) and for them to be admissible in evidence they must be accompanied by Form EC8A(1) which was not produced in the instant pleaded case.
Reference was also made to Exhibit D which contains scores for two unnamed polling stations and urged the court to disregard Exhibits B and D because they are inadmissible in evidence.
On issue one, learned counsel for the 1st Respondent submitted that the evidence led in support of the petition is in line with the averments contained in it. It was further submitted that the evidence of PW1, PW2, PW3 and PW4 Officials of the Independent Electoral Commission was not discredited or contradicted by the appellant. It was further contended that Exhibits B and D are copies of Forms EC8B duly signed by the collation officer and given to the agents of the candidates and as such they are admissible as primary evidence.
Reliance was placed on Nwobodo v. Onoh (1984) 1 S.C.N.L.R. at page 1.
It was finally submitted on this issue that there is sufficient and credible evidence on record led by the petitioner in support of his case before the Tribunal.
On issue two he submitted that it is not mandatory for party agents to sign Form EC8B and that what is mandatory is the signature of the officers of Independent National Electoral Commission and as such Exhibits B and D signed by the officials of INEC are admissible in evidence.
He also relied on the evidence of PW4 to the effect that Form EC8A(1) for Wards 11 and 12 tallied with the figures contained in Exhibits B and D. It was finally submitted that if the scores of the 1st Respondent in the two unnamed polling stations in Exhibits D and those in Exhibit B are taken away from the total votes scored by him, he would still be the winner of the election and urged the court to dismiss the appeal.
The main complaint of the appellant in this appeal is predicated on Exhibits B and D admitted in evidence by the Tribunal and relied on by it in reaching its conclusion that the 1st Respondent scored majority of the votes cast and declared him the winner of the election. It was strenuously contended by learned counsel for the appellant that they are legally inadmissible in evidence by virtue of section 30 and 33 of Schedule 5 of Decree No.3 of 1999. Exhibit D is a certified true copy signed by the collation officer and duly stamped by INEC. The mere fact that the agent of the People Democratic Party did not sign it does not render it inadmissible in evidence. See Nwobodo vs. Onoh (1984) 1 SCNLR page 1. The Tribunal was therefore right in admitting it in evidence and relied on it.
I will come back to consider the two unnamed polling stations contained in it later in the course of the judgment.
With respect to Exhibit B, I am in full agreement with the submissions of learned counsel for the Appellant that the Tribunal was wrong in relying on it to declare the 1st respondent the winner of the election.
In the first place it does not bear the stamp of INEC and it is not signed by any of the officials of INEC who conducted the election. It was only signed by the Ward Collation Officer and none of the agents of the two parties signed it.
Having considered the admissibility of Exhibits B and D which the appellant relied on heavily, I will now consider the submissions of learned counsel for the 1st Respondent that if the scores of the 1st respondent in the two unnamed polling stations in Exhibit D and his scores in Exhibit B are removed from his total scores, he would still be the winner of the election.
At this stage, I would like to reproduce the relevant portion of the judgment of the Tribunal where it considered the scores of the appellant and the 1st Respondent at pages 96-97 of the record. It reads as follows:-
“It is established by averments in the pleading and the evidence before the Tribunal that the 1st Respondent won in the constituency going by the Declaration of Results of the election by DW1 and exhibit E.
That the 1st Respondent scored 2,538 votes and petitioner scored 1,800 votes. There is also no dispute that if the votes 810 and 5,970 for the 1st Respondent and the petitioner respectively from Ward 10 and 156 votes and 3,444 votes in favour of the 1st Respondent and the petitioner respectively from Ward 12 (Exhibits B and D) are added together with their respective aforesaid votes in the declaration by DW1 as evidenced by exhibit E, the total votes scored by the 1st Respondent became 7,959 as against 11,212 votes for the petitioner. It is clear that the petitioner won majority of the lawful votes cast at the election.”
It is therefore quite clear from above that the total votes of the petitioner at the election is 11,212 while the 1st Respondent’s is 7959 votes. The total votes of the 1st Respondent, in the two unnamed polling stations in Exhibit D I 800 and 2264 votes in Exhibit B. His 40 total votes therefore in the two unnamed polling station in Exhibits B and D are 3,064 and if these are removed from his total votes of 11,212 at the election, he is still left with 8148 votes as against the appellants votes of 7,959. This goes to confirm the submission of learned counsel for the 1st respondent that if the total votes of the 1st Respondent in the two unnamed polling stations in Exhibits B and D are removed from his total votes of 11,212 at the election, he would still have majority of the votes cast at the election. The findings of fact made by the Tribunal that voting took place in Ward 11 which was unlawfully excluded by the constituency Returning Officer (DW1) is supported by the evidence of PW1, PW2 and PW3.
Having removed the votes scored by the 1st Respondent in Exhibits B and D from his total votes, the submissions of learned counsel for the appellant that Exhibit B shows an unbelievable over voting while Exhibit D contains unlawful voting is therefore irrelevant.
In the end result, the appeal is totally devoid of merit and I accordingly dismiss it with costs assessed at N3,000.00 against the appellant in favour of the 1st Respondent.
Other Citations: (1999)LCN/0571(CA)