Jude Lawrence Nwibie V. Mr. Leyil Kwanee & Ors. (2003)
LawGlobal-Hub Lead Judgment Report
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.
I did not offer much as testimony and so was not cross-examined by the respondents counsel. P.W.s 2 – 5, 7 – 10 all stated under cross-examination that they did not stay at the respective polling units assigned to them to supervise during the voting period because they too had to vote in the units where they registered and so were shuttling between one Ward to another in order to do this despite the order of Government that movement on that day was restricted. They also stated that they made a report to their party Ward Chairman but did not know the outcome of the report up till the date of their testimony before this Tribunal.
P.W.2 FRIDAY NWIBAKPO testified that he is a Civil Servant and yet claimed to be a Party Agent for N.D.P. Under cross-examination by learned counsel for the 2nd respondent be feigned ignorance of the fact that by his position he was precluded from taking part in partisan politics and he was not even an accredited Party Agent by I.N.E.C. P.W.3 is the biological brother of the petitioner and under cross-examination by the 1st respondent’s counsel it was revealed that he did not even make a report of the fact that elections did not hold in his unit because the Party Officer has been locked and has remained locked up till now. P.W.5 did not know the motto of the N.D.P. a party for which he was appointed Party Agent. P.W.7 testified that he is an undergraduate of the University of Calabar and yet claimed to be a Party Agent for the N.D.P. for Ward 5.
He appears to have joined the party only a year ago. P.W.8 we regard as not being a witness of truth as he refused to admit under cross-examination by learned counsel from the 1st respondent that he stayed in Court after P.W.7 had commenced his testimony knowing fully well that when the Registrar to the Tribunal remembered that he had not made the announcement requesting witnesses to leave the Court he left the courtroom along with others. His evidence will therefore be disregarded. P.W.11 claimed to be a Presiding Officer on that day but could not substantiate this fact. It came out in evidence during the trial that they were given special shirts to wear on that day so even if he should not produce a letter of appointment or I.D. Card he ought to have produced that. His evidence therefore we also regard as being very weak. We also find it very strange that he a graduate holding B.Sc. degree in Accounting at a very young age has chosen to stay at home and Form and accept to be a Presiding Officer whilst his contemporaries were Supervisory Presiding Officers.
The evidence of the petitioner (P.W.6) has to be considered along with that of D.W.1. During his examination-in-chief he testified that at about 3.45 p.m. on the Election Day one John Asukopughi accosted him a few miles into Bori between the school-to-land project and the Police State and this was after the elections ought to have been concluded. He said that the said gentlemen stopped him from entering Bori and ordered him to turn back. D.W.1 is the said John Asukpughi who testified that he is an academic staff of the Rivers State Polytechnic.
His own side of the story which he narrated during his own testimony is that the alteration between himself and the petitioner on the day of the election took place in the morning and that the petitioner and his thugs who were armed with guns attempted to kidnap him to an unknown destination while he was on his way to vote and that he was rescued from this ordeal by Armed Police who were on patrol on that day who arrested them and took them all to Bori Police Station where they all made statement. He stated that he was released whilst the Police took the petitioner to Port Harcourt SII3 and for this reason he could not vote that day. The 1st respondent in paragraph 8(i) of his Reply pleaded these facts. The petitioner did not file any Reply to that process so these facts are deemed admitted.
We have observed the demeanour of both witnesses in the witness box and prefer the evidence of D.W.1 to that of the petitioner (P.W.6). The evidence of the petitioner in regard to his observations that no voting took place in all 8 Wards in Khana Constituency II on the 3/5/03 cannot therefore be taken seriously by this Tribunal as he obviously was not there to see what was going on as he was detained by the Police for the duration of the election and not released till the following day.
The Voter’s Cards tendered and admitted as Exhibits A, B, G, H and I accordingly to no issue as the holders were not available for accreditation and voting on that day by virtue of the fact that they were moving around and so were not to be found in any one polling unit for any considerable amount of time. These Exhibits will therefore be disregarded as they lack probative value.
We accordingly agree with the submission of learned counsel for the 1st respondent that the evidence proffered by the petitioner in this regard is very weak and has not on the preponderance of evidence before this Tribunal established that there was substantial non-compliance with the provisions of the Electoral Act by the 3rd – 22nd respondents on the day of the election and that the said non-compliance so alleged by the petitioner did not affect the result of the election.”
It can be seen that the Tribunal assessed the testimonies of the various witnesses who testified on this point. Where the evidence given on one side conflicted with that given on the other side it weighed one against the other, particularly that of P.W.6 and D.W.1, before preferring one. It usually gave reasons for its preference. In most cases it decided to reject the evidence of the petitioner’s witnesses because such witnesses did not come out of cross-examination unscathed.
As noted earlier on, counsel for the appellant quarreled with the reasons given by the Tribunal for preferring the evidence of P.W.1 – P.W.5 and P.W.7 – P.W.11. While I agree with him that some of the reasons given are not tenable, I cannot condemn the others. For instance, the mere fact that a witness is related, either by blood or by association to the person on whose behalf he testifies, is not by itself reason to reject the evidence of such witness.
In the present case, however, the Tribunal gave other reasons. It is not for the appellate court to argue with the Court of trial over the reasons given by the latter for preferring one piece of evidence to another, specially where there is nothing intrinsically incredible or improbable in these reasons. The fact that the appellate court might have come to a different conclusion had the matter come before it at first instance is no reason to reverse the court of trial on its conclusion on the facts. On the whole, while I may disagree with the Tribunal that the fact that some of the witnesses called by the petitioner appellant were either party agents favourable to him or were his blood relations necessarily initiated their testimonies, I have nothing with which to fault its decision to prefer the evidence of the witnesses called by the respondents to that of the petitioner and his witnesses.
The appellant’s counsel, while urging us to reverse the Tribunal on this point of fact has not satisfactorily shown us why we should do so. In the circumstances I have no option but to resolve this issue against the appellant. The finding that accreditation and voting took place in all the polling units in Khana Constituency II must, therefore, stand. Or, as the Tribunal put it, the petitioner failed to substantiate his allegation that accreditation and voting did not take place in most of the polling units in the constituency.
In the circumstances I must resolve this issue against the appellant. In the result the appeal fails and
I accordingly dismiss it. The appellant shall pay costs of N10,000.00 to each set of respondent.
Other Citations: (2003)LCN/1495(CA)