Nnamdi Ihute V. Independent National Electoral Commission & Ors (1999)
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AKPIROROH, J.C.A.
This is an appeal against the decision of Election Tribunal sitting at Port Harcourt Rivers State delivered on 12th February, 1999. The petitioner/appellant Nnamdi Ihute contested the chairmanship election in Oyigbo Local Government Council Area with Bright Jacob Onyebuchi, the 4th respondent under the platform of Peoples Democratic Party (PDP) and All Peoples Party (APP) respectively.
At the end of the polls, the 4th respondent scored 16,103 votes while the petitioner scored 13,698 votes, the 4th respondent was declared the winner of the election.
Aggrieved by the aforesaid election results, the petitioner/appellant petitioned to the trial tribunal challenging the validity of the election on two grounds.
They are:-
(a) That election in ward 2 of the Local Government Area was not conducted in substantial compliance with the law. and
(b) That the 4th respondent was not duly elected by a majority of lawful votes cast at the election.”
The trial tribunal after hearing the matter and the submissions of learned counsel and in its judgment delivered on 12/2/99 dismissed the petition.
In this appeal, the petitioner/appellant filed two grounds of appeal (see pages 90-91 of the records).
Mr. Aguma, learned counsel for the petitioner/appellant in his brief of argument filed on 5/3/99 formulated two issues for determination by the court and adopted them.
Mr. Godwins, learned State Counsel, Ministry of Justice, Rivers State for the 1st – 3rd respondents and Mr. Bomor, learned counsel for the 4th respondent also adopted the two issues formulated by the petitioner/appellant in their briefs of argument filed on 12/3/99 respectively.
I consider it pertinent at this stage to reproduce the two issues – They read as follows –
“(1) Whether there were substantial irregularities in the conduct of the elections in ward 2 to necessitate the vitiation of the results declared?
(2) Whether on the evidence adduced the court was right in coming to the decision that the election in ward 2 was tainted by irregularities?”
From the grounds of appeal filed by the appellant and the issues raised in his brief of argument, his main complaint is that there were irregularities in the conduct of the elections in ward 2 of Oyigbo Local Government Area as pleaded in paragraphs4(a)-(m) of his petition which substantially affected the results and also that the trial tribunal failed to evaluate the evidence adduced before it in arriving at its decision, that the results of the said ward 2 were not tainted with irregularities, with regards to the first issue, learned counsel placed much reliance on the evidence of the appellant, PW2., PW3., PW4 and Exhibits H-H13 to show that polling did not take place in ward 2 on the day of the election because electoral materials were not distributed. It was further submitted that the serial numbers of ballot papers were not inserted on Exhibits H-H13(ballot papers) issued to voters on the day of the election in ward 2 and as such they cannot be relied upon and consequently the results contained in them be voided.
Learned counsel for the 1st – 4th respondents argued to the contrary and relied on the evidence of RW1 – RW9 to show that the election took place in ward 2 of Oyigbo Local Government Area on the day of the election. It was further submitted that the appellant failed to prove the irregularities complained of in paragraphs 4(a)-(m) of the petition beyond reasonable doubt as enjoined by law since they are allegations of commission of crimes and cites a legion of authorities in support. It was further contended that if there were irregularities in the said ward which is not concluded, they are not sufficient to vitiate the elections.
As to the first issue, it is well settled law that in an election petition, when a petitioner makes an allegation of non-compliance with the electoral law as the basis or foundation of his case, he has a heavy burden to show the tribunal by cogent and compelling evidence that non-compliance is of such a nature as to affect the result of the election. See Kudu v. Aliyu (1992)3 NWLR 231 page 615 at 634.
The non-compliance relied on in ward 2 by him are contained in paragraphs 4(a)-(m) of his petition as I said earlier. There was no credible evidence led in proof of them because the evidence of RW1- RW9 showed that elections were conducted in ward 2 on the day of the elections and the trial tribunal accepted their evidence.
At page 86 the trial tribunal held:
‘The petitioner alleged amongst others in paragraph 4 of his petition that no electoral materials were distributed in ward 2 and that there were substantial irregularities in the conduct of election in ward 2 of Oyigbo Local Government.
Through his PW4 he gave evidence that electoral materials that were to be used in ward 2 were carted to one Chief S. N. Nweke’s house where they were put to illegal use. It needs be said that the allegation against Chief S. N. Nweke remains but an allegation which the petitioner is required to prove beyond reasonable doubt as required of him by law. One wonders why the petitioner and/or his agents failed to call in the police to arrest Chief Nweke if indeed he did what he is alleged to have done …
A careful review of the evidence adduced on the election conducted in ward 2 more than convinces us that an election was held on that day and that the 4th respondent scored 7, 109 lawful votes and the petitioner scored a total of 289 lawful votes at the election. There is no evidence before us to show that the election was tainted with substantial irregularities, or that electoral materials were taken to Chief S. N. Nweke’s house for illegal purposes.”
It is well settled law that an appeal court will not ordinarily interfere with the findings of the trial court whose duty is to observe, listen and assess each witness as to his credibility. See Lawal v. Dawodu (1972) 1 All NLR (Pt.2) 270; Atolagbe v. Shorun (1985) 1 NWLR (P.2) 360. The first issue must be resolved against the appellant.
With regards to the issue of evaluation of the evidence led before the trial tribunal in arriving at its decision, suffice it to say that the trial tribunal made proper assessment and evaluation of the evidence led before it and rightly came to the decision it arrived at.
In conclusion, this appeal lacks merit and it ought to be and it is hereby dismissed with N2.000.00 costs in favour of the respondent against the appellant.
Other Citations: (1999)LCN/0635(CA)