Okon Ekpenyong Ukpe V. Godwin E. Ndon & Ors (1999)
LawGlobal-Hub Lead Judgment Report
OBADINA, J.C.A.
This is an appeal against the decision of the Local Government Election Tribunal of Akwa Ibom State sitting at Uyo, delivered on the 13th of February, 1999 in favour of the 1st respondent.
On the 5th of December, 1998 the appellant contested the Local Government Council election for the office of Chairman, Local Government Area of Akwa Ibom State. He contested the election on the platform of the Peoples Democratic Party (PDP).
The 1st respondent also contested the election to the same office or Chairman, Itu Local Government Area of Akwa Ibom State on the platform of All Peoples Party (APP). Alliance for Democracy filed one Efiok Bassey Etim for the election. Three (3) other candidates also contested the said election on the platform or other political parties.
At the close of the election the 2nd respondent (INEC) announced that there was no clear winner of the election. The 1st respondent was said to have scored a total of 6,104 votes. The AD candidate was also said to have scored 5,978 votes and was placed (2nd) second, while the appellant was placed third (3rd) with 5,325 votes.
The 2nd respondent (INEC) found that none of the contestants had qualified to be returned as elected, in that none of them was able to score a majority of the lawful votes cast at the election and also scored 25% of the votes in at least two thirds of the wards in the Local Government Area.
The 2nd respondent (INEC) then ordered a run-off election to be held between AD candidate. Effiok Bassey Etim, and the candidate for the All Peoples Party (APP) i.e. 1st respondent.
The run-off was held on the 12th December, 1998. The 1st respondent won and was returned elected as Chairman of Itu Local Government Area.
The appellant was dissatisfied with the declaration and the return of the 1st respondent. He presented an election petition before the Local Government Election Tribunal, Akwa Ibom State.
At the tribunal, the appellant who was then a petitioner prayed the tribunal that:-
“(a) The said Godwin Ndon, i.e the 1st respondent was not duly elected and that his election was void.
(b) The decision by the 1st, 2nd and or 3rd respondents in the petition to call for and hold a run-off election between the All Peoples Party (APP) and the Affiance for Democracy (AD) was wrongful and not in compliance with the provisions of the Decree.
(c) The petitioner, Okon Ekpenyong Ukpe, ought to have been returned.”
At the hearing of the petition before the tribunal, the appellant contended as follows:-
(1) That lawful votes cast in seven (7) polling units of East Itam 3, ward 5 of Itu Local Government Area were unlawfully and wrongfully excluded from the final and overall results of the election announced by the 2nd respondent (INEC).
(2) That the wrongful exclusion of the results of the seven (7) polling units brought about a wrongful declaration of a run-off election between the AD and APP.
(3) That if the votes polled by the candidates in the said seven (7) units were added to the declared results, the appellant would have scored the majority of lawful votes cast at the election.
He prayed the tribunal to declare the run-off election wrongful, null and void and to declare the election of the 1st respondent null and void. He further prayed the tribunal to included the votes scored by the candidates in East Itam 3, Ward 5 to the final results or the election and to declare him as duly elected.
The appellant as petitioner led evidence and called -witnesses before the tribunal. The respondent therein also called evidence.
In a considered judgment dated 13th of February, 1999, the tribunal dismissed the petition, upheld the declaration and return of the 1st respondent as the duly elected Chairman or Itu Local Government Area of Akwa Ibom State. Â
The appellant being dissatisfied with the decision of the tribunal has now appealed to this court. He filed two (2) original grounds of appeal. The appellant again purportedly filed six (6) additional grounds of appeal without leave of the court and without any application for leave as at the time the appeal came up for hearing. He attached the additional grounds with the appellant’s brief of argument since he did not obtain leave before filing the additional grounds of appeal and there was no application for leave before the court, the additional grounds of appeal were struck out. See Adeyemi v. Ike-Oluwa & Sons Ltd (1993) 8 NWLR (Pt. 309) 27.
See The Registered Trustees of C.A.C v. Uffiem & Others (1998) 10 NWLR (Pt.569) 312 of 320. The appellant is left with the two original grounds and their particulars, which read as follows:-
“Ground one
The judgment is against the weight of evidence.
Ground Two
The tribunal erred in law in failing to evaluate and give its findings on the oral and documentary evidence before it in respect of the election result for Ekiritam in East Itam 11, Ward 4, Itu Local Government Area.
Particulars of error
(a) The tribunal was under a judicial duty to evaluate and weigh all the evidence before it before arriving at a decision.
(b) The tribunal did not assess, examine and did not make any findings of fact on whether there was over-voting disclosed in Exh. D1.
(c) Non-examination and finding on Exh. D1 resulted in a miscarriage of justice.”
Briefs of argument were filed and exchanged by the appellant and the 1st respondent. The appellant in his brief of argument formulated six (6) issues for determination: namely:-
(1) Whether the tribunal critically examined Exh. B1 and evaluated evidence before it in respect of the result and entries recorded therein.
(2) Whether the tribunal made any finding of fact on the actual total of lawful votes polled by the candidates at the election of 5th December, 1998 before upholding the election and declaration of the 1st respondent as the duly elected Chairman of Itu Local Government Area of Akwa Ibom State.
(3) Whether failure by the Election Tribunal to rely on and attach weight to Exhibits 1, 1A – 1D and Exhibits 3, 3A-3F tendered and admitted in the petition and the exclusion of the election results for the said seven (7) polling units in East Itam 111, Ward 5 from the final result of the election was justified, lawful and in compliance with the Decree No. 36 of 1998,
(4) If the answer to issue three (3) above is in the negative, whether failure to collate the result of the election for the seven (7) polling units in the East Itam 111, Ward 5 and failure to add the votes polled by candidates in the said ward for the determination of the final result substantially affected the result of the election.
Whether it was proper and lawful to add the result of the election recorded in Exhibit D1 to the final result of the election declared.
If the answer to issue (5) above is in the negative, whether the inclusion of the votes scored by the candidates in Exhibit D1 for the determination of the final result of the election substantially affects the result of the election and also affected the declaration for a run-off election between the AD and APP?
In his brief of argument the 1st respondent formulated three (3) issues for determination, namely:-
“(1) Whether, on the grounds of appeal and issues formulated for determination, this appeal is competent.
(2) Whether, under the circumstances of his case, the honourable Election Tribunal had the competence to hear and determine an election petition against an election whereat there was no return and nobody was declared elected.
(3) Whether on the totality of the case of the parties, the petition had merit,”
At the hearing of the appeal the learned counsel for the appellant and the 1st respondent respectively adopted their briefs of argument.
A critical examination of issues Nos. 1-6 formulated by the appellant clearly shows that all the issues raised by the appellant relate only to the evaluation of evidence which was led at the trial. The issues deal with critical examination of Exhibit D1; findings on the actual lawful votes polled at the election by each of the candidates; attachment of weight to the exhibits; effect of non-collation of votes on one result of the election and the impropriety of adding the votes in Exh. D1 to the final result declared.
One wonders how the issue of law in ground two of the grounds of appeal arises. The issues are purely and clearly issues of misdirection. See Madike v. Ibekwe (1987) 4 NWLR (Pt.67) 718.
A misdirection occurs when a judge misconceives the issues or summarises the evidence inadequately or incorrectly for one side of the other or makes mistakes in the law applicable to the issues in the case. See Chidiak v. Laguda (1964) 1 All NLR 160. See Abisi v. Ekwealor (1993) 6 NWLR (Pt.302) 643 at 661.
In the circumstances, the ground of appeal is defective and should be struck out. Ground two (2) of the grounds of appeal filed on 15th February, 1999, in this appeal is hereby struck out. The appellant is left with ground one of the grounds of appeal.
Ground one of the grounds of appeal reads as follows:”
The judgment is against the weight of evidence”.
What is meant by a complaint that “judgment is against the weight of evidence” was clearly given by the Supreme Court in Ezebilo Abisi & Others v. Vincent Ekwealor & Others (1993) (supra) at page 674.
It reads as follows:-
“When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him.”
See Mogaji v. Odofin (1978) 4 S.C 91 of 93 – 95.
The appellant formulated six (6) issues for determination. A critical look at the whole six (6) issues formulated by the appellant shows that the issues are complaints about evaluation of evidence and the weight attached to the evidence.
It is therefore my view that the whole six (6) issues formulated by the appellant for determination of the appeal were predicated on ground one of the grounds of appeal. See Mogaji v. Odofin (supra) at page 94 of the report.
In any case where a judgment is attacked on ground of being against the weight of evidence, the Court of Appeal in its primary role in considering a judgment on appeal in a civil case in which the finding or non-finding of facts is questioned will seek to know the following, namely:-
(a) the evidence before the trial court;
(b) whether it accepted or rejected any evidence upon the correct perception;
(c) whether it correctly approached the assessment of the evidence before it and placed the right probative value on it:
(d) whether it used the imaginary scale of justice to weigh the evidence on either side;
(c) Whether it appreciated upon the preponderance of evidence which side the scale weighted having regard to the burden of proof:- see Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt. 70) 325 of 339; Misr (Nig) Ltd v. Ibrahim (1975) 5 S.C. 55 of 62; Egonu v. Egonu (1978) 11-12. S.C. 111 of 129.
Based on these authorities, I will therefore consider all the six (6) issues formulated by the appellant together and critically examine the judgment of the tribunal in question.
But before going into critical examination of the judgment, I think it is necessary to consider first, issue No.2 formulated by the respondent in the respondent’s brief of argument, because of the importance of the issue. It says:” Under the issue, it is our contention that in the circumstances of this case, the tribunal had no jurisdiction to hear and determine the petition because the petition lacked competence and ought to have been struck out. Our ground is that the events of 5th December, 1998 having been overtaken by the run-off election of 12th December, 1998, the cause of action had not arisen as per that election exercise.
The learned counsel for the 1st respondent defines a cause action as a factual situation stated by the plaintiff which if substantiated entitles him to a remedy against the defendant” – see Egbe v. Adefarasin (1985) 1 NWLR (Pt. 3) 549: Utih v. Egoor (1990) 5 NWLR (Pt. 153) 771.
He submitted that in an election petition, the cause of action arises only when the declaration of a winner and a return is made. He said where an election is inconclusive and there is no declaration and return, a petition filed against such an election can only be premature. He argued that since nobody was declared a winner in the election of 5th December, 1998, the petition filed against it was premature and incompetent. The appellant did not file an appellant reply brief after being served with the respondent’s brief.
Paragraph 5(1) of Schedule 5 to Decree No.36 of 1998 prescribes what an election petition must contain in order to constitute a valid and competent petition.
It says:-
“An election petition under this Decree shall:-
(a) specify the parties interested in the election petition:
(b) specify the right of the petitioner to present the election petition;
(c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election:
(d) state clearly the facts of the election petition and the ground or grounds on which the election petition is based and the relief sought by the petitioner.”
From the provisions of paragraph 5(1) of Schedule 5 to the Decree there is no doubt that the lawmakers envisage that prior to the presentation of an election petition, the winner of the election must have been declared and returned; the date of the holding of the election, the right of the petitioner to present the petition and the facts grounding the petition must all exist. The petition must be against the outcome of the election. A respondent whose election is challenged in an election petition must first of all be elected and returned as the Chairman of the Local Government as a result of the voting at the poll. In other words, by virtue of section 80 of the Decree, the election must have been completed first and return known and announced. Where a winner is not declared and returned, an election petition cannot lie. See Ezeobi v. Nzeka (1989) 1 NWLR (pt. 98) 478 at 487.
In his petition before the tribunal, the appellant made it clear that no winner was declared or returned in the election of 5th December, 1998, He also made it clear that at the conclusion of the election of 5th December, 1998, a declaration for a run-off election between the APP and AD was made.
From the averments in the petition, I have no difficulty in holding that the election to the office of the Local Government Council Chairman for Itu, held on the 5th December, 1998 was inconclusive. It is also my view that the petition did not contain the requirement of paragraph 5(1(c) of Schedule 5 to Decree No. 36 of 1998. In the circumstances, the petition was incompetent and void, and the tribunal lacked jurisdiction to hear and determine the petition:- see Madukolu v. Nkemdilim (1962) 1 All NLR 587; (1962) 2 SCNLR 341; see also Salati v. Shehu (1986) 1 NWLR(Pt. 15) 198.
It is pertinent to note that the appellant challenged the election of 5th December, 1998 and not the run-off election conducted on the 12th December, 1998.
Perhaps the petition could have been competent if it has been brought by the appellant against the election or 12th December, 1998, contending on the facts in the petition that he was qualified to contest the run-off election of 12th December, 1998, but was unlawfully excluded from the election – see section 84(1)(d) of Decree No.36 of 1998.
I think that should normally be the end of the case. However, I will endeavour to consider the issues raised by the appellant in respect of his complaint against the judgment.
As I said earlier, where a judgment is attacked on ground of being against the weight of evidence the Court of Appeal in its primary role in considering the issues will seek to know:-
(a) the evidence before the tribunal;
(b) whether such was accepted or rejected upon the correct perception;
(c) whether it correctly approached the assessment of the evidence before it and placed the right probative value on it;
(d) whether it used the imaginary scale of justice to weigh the evidence on either side; and
(c) Whether it appreciated upon the preponderance of evidence which side the scale is weighted having regard to the burden of proof. Agbonifo v. Aiwereoba (1988) supra.
A reading together of the petition of the appellant before the tribunal and the reply filed by the 1st respondent clearly shows that the main issue was whether election took place in East Itam 3 Ward 5 and whether it produced a result which when added to the result of the eight (8) wards in the Local Government would predicate a declaration that the appellant, as against all other contestants, won the election.
In support of his case before the tribunal, the appellant called PW2 the Ward Returning Officer for East Itam 3, Ward 5. He testified that he did not know whether if added to the declared result, the results contained in Exhibits 1 – 1D would produce a winner of the election. He also testified that at the conclusion of his duty to collate the result at the Ward Collation Centre, he headed for the Local Government Collation Centre to submit his result and on his way, the result was snatched from him. He therefore had no result to submit to the Local Government Returning Officer.
It is observed from the evidence before the tribunal that the PW2 i.e. the Ward Returning Officer who said the result was snatched from him was not confronted with Exhibits 1 – 1D to establish that the result in Exhibits 1 – 1D formed part of the results with which he collated the Ward result snatched from him. From the evidence of PW2, the Ward Returning Officer, there was no nexus between Exhibits 1- 1D and the result of the election purported to have been snatched from PW2.
In support of his case the appellant gave evidence as PW1 – see pages 72 to 75 of the record of appeal. He tendered Exhibits 1- 1D and stated that it the votes contained in Exhibits 1 – 1D were added to the result declared by INEC, he would have won the election.
In answer to the allegation made by the appellant the 1st respondent called four witnesses. The DW2, one of the contestants in the election under the platform of APP, testified that election materials meant for East Itam 3 Ward 5 were waylaid on the route to the Ward. A fracas then ensued, and the ballot materials were destroyed.
The DW3, the Divisional Police Officer in charge of Itu Local Government, gave evidence. He stated that he was at the Itu Local Government Collation Centre, when the PW2 came to inform him and the INEC officials that the result from the ward had been snatched from him and despite a search by him, the result could not be recovered nor the culprits found.
The DW4 was the electoral officer for the Local Government Area. He said the Ward Returning Officer. i.e. PW2, informed him that the result for the Ward had been snatched, he asked the PW2 to produce evidence that there was an election at the said Ward. The PW2 could not. He, the DW4, then knew there was no election. He had to declare the election based on the results so far collated.
On Exhibits 1 – 1D the Local Government Area electoral officer – DW4 – said Exhibits 1 – 1D were not part of the documents issued by him for election in Itu Local Government Area. He said based on the results, a person to be declared winner must poll a majority of lawful votes at the election and also score 25% of the votes cast in at least two thirds (seven) of the wards in the Local Government Area. And as none of the candidates met that requirement, he declared a run-off election. The contention of the appellant is that the tribunal was wrong, when the tribunal did not accord any weight to Exhibits 1 – 1D.
Exhibits 1 – 1D were not tendered by the PW2, the returning officer for Itu East 3, Ward 5. He was not even confronted with Exhibits 1 – 1D to show correlation between Exhibits 1 – 1D and the alleged collated results of the said Ward.
The DW4, the electoral officer for the Local Government stated on oath that Exhibits 1-1D were not part of the documents issued out by him to the PW2. I think the tribunal was perfectly in order in ignoring the said Exhibits 1-1D. Its probative value is nil.
The law is well settled that an appellate court will not interfere with the findings of fact by a trial court, once the findings are based on the evidence before it upon the pleadings of the parties – see Godwin Uzoechi v. Elias Onyenwe (1999) 1 NWLR (Pt.587) 339 of 340.
Where a court of trial unquestionably evaluated the evidence and appraised the facts, it is not open to a court of appeal to substitute its own views for those of the trial court which is abundantly supported by evidence:- see Federal Commissioner for Works and Housing v. Lababedi (1977) 11 -12 S.C. 15; Fashanu v. Adekoya (1974) 1 All NLR (Pt.1) 35; Akinloye & Others v. Eyilola & others (1968) NMLR 92.
On the totality of the evidence before the tribunal. I think the tribunal has done a good job; the findings having been based on the evidence before the tribunal.
In the circumstances the appeal fails and is hereby dismissed.
The appellant shall pay (N3,000.00) three thousand naira only costs to the 1st respondent.
Other Citations: (1999)LCN/0632(CA)