Jude Lawrence Nwibie V. Mr. Leyil Kwanee & Ors. (2003)

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ABOYI JOHN IKONGBEH, J.C.A.

The appellant herein and the 1st respondent were candidates at the election into the Rivers State House of Assembly to represent the Khana Constituency II. At the end of the exercise the 1st respondent was returned as duly elected. Aggrieved the appellant presented his petition to the National Assembly/Governorship and Legislature Houses Election Petitions Tribunal, sitting at Port Harcourt. After hearing evidence from the petitioner and his ten witnesses and from the nine witnesses who testified for the respondents, including the 1st respondent, the Tribunal dismissed the petition on the grounds that it “lacks merit and that all the allegations made therein against the respondents have been completely unsubstantiated.”

Aggrieved, the petitioner has appealed to this Court. In the brief of argument filed on his behalf his counsel. Mr. A. Amuda-Kannike, formulated five issues for determination. The first second third and fifth issues seek to raise the question whether or not the findings by the Tribunal agree with the evidence before it. The fourth seeks to raise a question as to the effect of the non-filing of a reply by the 3rd to 22nd respondents and the non-calling of evidence in support thereof.

I must say right away that this last issue does not arise in this appeal. It has not arisen from any of the grounds of appeal. None of them raises any complaint in relation to the effect of the non-filing of a reply to the petition. This issue is, therefore, not a valid issue in this appeal and is accordingly struck out.

For the 1st respondent Mr. Z. Adango formulated two issues, both of which raise questions as to the relationship between the Tribunal’s findings of fact and the evidence before it. The single issue formulated by Mr. J. Elumeze for the 2nd respondent, also raises questions relating to the findings of fact.

From the grounds of appeal, the formulations in the various briefs of argument and the argument therein one can thus see that only one issue has arisen for determination in this appeal namely:
Whether, from the totality of the evidence before it, the Tribunal was justified in its conclusion that the appellant had failed to substantiate the allegations contained in his petition and in dismissing the petition on that ground.

Before I go into the merit of the appeal. I must dispose of the preliminary objection raised on behalf of the 2nd respondent in its notice of preliminary objection filed on 12/09/03 along with its brief of argument. The only point raised the notice is that the 2nd respondent has not been properly made a party to this appeal. This, counsel pointed out is because on 11/07/03 the lead Tribunal struck out its name from the petition on the ground that it was not a proper party. It is pointed out that no appeal has been lodged against the order to this effect.

I think this objection is well taken. If the appellant had felt that the order striking out the name of the 2nd respondent from the petition had been wrongly made he should have appealed against it either by a separate notice of appeal or by including a ground of appeal in the present notice of appeal. As he has done neither of these he cannot legitimately prosecute this appeal against the 2nd respondent. The appeal as it relates to this respondent must therefore, be and is hereby struck out.
The main complaints raised on behalf of the appellant in the main appeal are that the Tribunal was in error in holding that the petitioner had failed to prove that there was no accreditation or voting in Khana Constituency II and in holding that the voter’s cards of the petitioner and his witnesses, admitted in evidence as Exhibit A, B, C and II and tendered to show that they did not vote because there was no election went to no issue.

Articulating these complaints in the appellant’s brief learned counsel drew attention to the testimonies of P.W.1 and P.W.6 in their evidence-in-chief, which according to counsel, shows that there was no accreditation or voting in the constituency. Moreover, according to him, “even under cross-examination, the evidence remained unshaken and uncontradicted.” For this last reason counsel submitted that the Tribunal was obliged to accept as true what the witnesses had said. Learned counsel went one by one through the reasons given by the Tribunal for its conclusion that the evidence on the petitioner’s side was not strong enough to enable him discharge the onus on him and submitted that the reasons were not good enough. As against all this, counsel pointed out, the evidence of the 1st respondent and his witnesses “is full of inconsistencies about the election, the time of election and accreditation”.

Counsel urged us in the circumstances to find as a fact that “accreditation and voting did not take place in most or all of the wards or units making up Khana Constituency II.” To point out some of the inconsistencies learned counsel drew attention to the testimonies of the 1st respondent’s witnesses, especially R.W.3, R.W.4 and R.W.8. According to learned counsel, the evidence of these witnesses tendered to support the contention by the appellant that no accreditation or voting took place in constituency.”

In answer to the 1st respondent’s counsel submitted that the appellant has failed to discharge the onus on him of showing that the finding of the Tribunal that voting took place in the constituency is perverse. Counsel therefore urged us to decline the applicant’s invitation to us to make a contrary finding of fact because “the Tribunal which had the privilege of watching the demeanour of P.W.6 and D.W.1 in the witness box preferred the evidence of D.W.1 to that of P.W.6.”

Now, the assessment of the testimonies of witnesses and the ascription of probative value therefore are part of the functions assigned primarily to the court of trial. This is because it is that court that had the advantage not only of hearing the witnesses as they testified, but also of watching them and observing their demeanour. It is axiomatic that the words used by a witness may convey different meaning by the way they are said and by the impression gathered by the person watching the witness. These advantages the judges of trial have but not judges of the appellate court. All that the latter have is the cold printed words.

It is for this reason that the practice has evolved of appellate judges according much respect to findings of facts by trial judges based on oral testimony by witnesses. In line with this practice appellate courts will interfere with such bindings of fact only if they are shown to be perverse by reason of their not having been the result of the proper use of the advantage the trial judges had of watching the witness testify.

The question then is whether or not the appellant before us has shown that the finding by the Tribunal trial accreditation and voting took place in Khana Constituency II is perverse. To determine this point we first have to look at how the Tribunal handled this aspect of the case. At pp. 140 – 143 of the record the Tribunal proceeded thus:
“The petitioner in virtually all of the paragraphs of his petition has alleged that no election took place in Khana Constituency II on 3/5/03 and all of his witnesses have testified to this fact. In effect therefore he is alleging substantial non-compliance with the provisions of the Electoral Act, 2002. In order to satisfy this Tribunal that this is the case he has to produce on a preponderance of evidence credible facts to show this Tribunal that indeed the election did not hold, he therefore shoulders a very heavy burden of proof. We will therefore consider this petition under the following sub-headings for the purposes of clarity.
(i) Proof of allegation of substantial non-compliance…
The petitioner therefore in order to satisfy us that there was substantial non-compliance in the election of 3rd May, 2003 in Khana Constituency II Rivers State has to produce sufficient oral and/or documentary evidence to support this allegation before this Tribunal will uphold it. The evidence led by him and his witnesses during the trial will therefore now have to be thoroughly examined. 11 witnesses testified on his behalf and all of these witnesses with the exception of P.W.6 who is the petitioner and P.W.11 who testified that he was a Returning Officer for Ward 9 Beeri were Party Agents for the N.D.P.P.W.