Mrs Philomena Umezulike V. E.c. Olisa & Ors (1999)
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MICHAEL EYARUOMA AKPIROROH, J.C.A.
This is an appeal against the Judgment of the Local Government Election Tribunal Petition Owerri delivered on 15/2/99″
The Appellant, Mrs Philomena Umezulike, the Respondent E.C. Olisa and Mr. K.I.D. Odenigbo contested the election for the post of Councilor in Ubu Ward of Oru Local Government Council in Imo State under the platform of United Peoples Party (APP) All Peoples Party (APP) and Peoples Democratic Party (PDP) respectively.
At the end of the polls, the Petitioner/Appellant scored 1148 votes, the respondent scored 3941 votes while Odenigbo scored 297 votes. The first respondent was therefore declared the winner of the election.
The appellant was dissatisfied with the results declared and filed this petition challenging the results of the Local Government Election Tribunal sitting at owerri.
On three grounds:-
(1) that the said election was voted voided by corrupt Practices under the relevant Decree.
(ii) that the 1st Respondent was not duly elected by the majority of lawful votes cast at the election
(iii) that the said election was marred and-affected by irregularities.”
The Tribunal after hearing evidence and the submissions of learned counsel and in its Judgment delivered on 15/2/99 upheld the second prayer, cancelled the results in wards J.13 and J.17 and ordered a bye-election in the two wards.
Dissatisfied with the Judgment, the petitioner/appellant filed three grounds of appeals-
(i) The Tribunal erred in Law when it merely ordered a fresh election at polling station J.13 and J.17.
PARTICULARS
(a) BY simple mathematical calculation the Appellant after subtracting all illegal votes recorded, scored the majority of lawful votes cast at the election.
(b) By virtue of section 87(2) of the Local Government (Basic Constitutional and Transitional Provisions) Decree No.36, 1998 the only order the Tribunal was entitled to make in the circumstance was one nullifying the return of the 1st Respondent and directing the return of the Appellant.
ii. The Tribunal erred in law when it preferred the result of the election as scored in Exhibit P7.
PARTICULARS
(a) Exhibit P7 was neither authentic or genuine having regard to the Law.
(b) Exhibit P7 was made in contravention with the Law.
(iii) The Judgment is against the weight of evidence.”
Based on the grounds of appeal filed, the Petitioner/Appellant abandoned ground two and formulated one issue for determination by the court. It is:-
“ISSUES FOR DETERMINATION
2.01: Having due regards to the Grounds of Appeal it is submitted that the sole issue for determination is as follows:
(a) Whether the Tribunal below was not wrong when it merely ordered a fresh election in 2 Polling Stations rather than direct the return of the Appellant who scored the majority of lawful votes as councilor elect of Ubulu Ward.”
The 1st Respondent also formulated one issue for determination by the court:-
“ISSUES FOR DETERMINATION
Whether having regards to the circumstances and evidence before the Tribunal and as per the exhibits before it, the tribunal was right in making the order cancelllng the votes in Polling Station J13 and J17 only and ordering bye-elections in them.”
It is to be observed that this appeal was argued on the briefs of the appellant and the first Respondent because the 2nd-4th Respondents did not file any briefs.
I adopt the issue formulated by the Petitioner/Appellant which is in my view sufficient to dispose of the appeal.
Learned counsel for the Petitioner/Appellant submitted that the Trial Tribunal could have declared the appellant the winner of the election instead of making an order for bye-election in wards J13 and J17 because she scored the majority of lawful votes cast at the election and placed much reliance in Forms EC8B(1) Exhibit J1, J4, J6, J9 and J21.
Learned counsel for the 1st Respondent argued to the contrary and contended that the tribunal was quite right in canceling the votes in wards J13 and J17 and ordered a bye-election in to said because of over-voting.
The contention of learned council for the petitioner/Appellant that she scored the majority of the votes cast at the election and therefore should have been declared the winner by the trial tribunal instead of ordering a bye-election in wards J13 and J17 is not borne out from the evidence adduced before the tribunal.
The Petitioner/Appellant relied heavily on the results from exhibits J1, J4, J6, J9 and J21 in asking that she be declared the winner of the election – without taking into consideration the results of other polling booths which the trial tribunal found were substantially affected with over voting. Exhibit J13 and J17 were affected by over voting, a fact conceded by the Petitioner/Appellant and the 1st respondent and the Tribunal rightly cancelled the votes from the said two booths.
The Tribunal, also found that the results from Exhibits P8, P10, P12, P14 were not authentic and also found that those from Exhibits P3, P5 and P6 were affected with over voting. At pages 54 – 62 of the judgment, the trial Tribunal meticulously scrutinized and compared the results form forms ECA8 (1) and ECB8(1) used for the election and after its through arithmetical calculation arrived at a final lawful score of 2,267 for the Petitioner/Appellant and 2,969 for the 1st Respondent. At page 59 the Tribunal said:-
“The meticulous and close comparison made on these two sets of forms gulped more than 50% of the time spent on this judgment, but we regard such as a “time well spent” in view of the revelations that accrued therefrom.”
Consequently, it cannot lie in the mouth of the petitioner/Appellant that she scored majority of the votes cast and be declared the winner of the election in Ubulu Ward of Oru West Local Government Council.
In any event, her alternative prayer is for an order for fresh election in Ubulu Ward of the said Local Government Council.
The finding of facts arrived at by the Trial Tribunal after a meticulous scrutiny and comparison of the exhibits and the evidence led before it is not perverse and as such it cannot disturb it. see Lawal v Dawodu (1972) ALL NLR Pt.3; Ogbehie v. Onochi (1990) NWLR Pt.431, 321.
All I have been saying is that the appeal of the Petitioner/Appellant to the extent that she be declared the winner of the election is unmeritorious and it is hereby dismissed and the order of the lower Tribunal ordering a bye-election to Ubulu Ward of Oru West Local Government is hereby affirmed.
There shall be no order as to costs.
Other Citations: (1999)LCN/0574(CA)