Stephen Kwaptoe V. Victor M. Tsenyil & Ors (1999)

LawGlobal-Hub Lead Judgment Report

MANGAJI, J.C.A.

This is an appeal against the judgment of the Local Government Election Petition Tribunal sitting in Jos, Plateau State wherein the appellant’s petition was dismissed on 12th February, 1999. Dissatisfied with the decision, the appellant appealed to this court.

The notice and grounds of appeal contain three grounds and it was filed on February 19, 1999.

On 15th March, 1999 and in accordance with the practice of this court the appellant filed his brief of argument. The 2nd, 3rd and 4th respondents who were not served in good time, filed their joint brief of argument on 19th March, 1999 and this court, just like counsel on the other side, were served in court. I appreciate learned counsel’s predicament in that he received no service in good time. The practice that has now become the vogue by counsel should stop and it is that learned counsel – especially those representing appellants or cross-appellants as the case may be – form the habit of rushing documents to this court usually one day before the date stipulated for filing the document. Thus the court, just like the opposing side, is presented with a fait accompli in that the Justices in the panel have to strain themselves in order to grasp the contents of the rushed documents bearing in mind

the period of limitation in appeals in election petition matters. It is not a good habit and it is more likely to inspire disrespect to the counsel concerned for parties come to court for the settlement of their disputes arming themselves with the evidence they have which depend so much on the time factor stipulated by statute.

To withhold filing the necessary documents hoping as it seems that the opposing side would have little or no time to respond, to my mind is unfair and may even amount to dishonesty. It is hoped that this practice will forthwith stop so that together, we shall march ahead in the attainment of justice according to law.

Be that as it may and as I earlier on pointed out, parties filed and exchanged briefs of argument. The appellant formulated two issues for determination from the three grounds of appeal he filed. The issues are couched thus:-

“(2) Whether or not the petitioner/appellant proved that the elections at Ungwa-Zam 15A and 15 polling units were tainted with irregularities substantially enough to warrant the cancellation of the results.

(22) Whether or not the appellant scored the majority of lawful votes cast at the election, if either of the results in Ungwa-Zam 15A and 15 polling units is nullified to warrant the return of the appellant as the councillor elected to represent Kalong Ward of Shendam Local Government.”

I should perhaps point out that the 1st respondent filed no brief of argument and appeared not interested in doing so. His only reaction when he appeared before us was that he would adopt the joint brief of argument filed for and on behalf of the 2nd, 3rd and 4th respondents. I have my sympathy for the 1st respondent in not appreciating the working of this court but I feel so strongly and quite unfortunately that his counsel told him as he reported before this court that he should appear and tell the court that he was adopting the said joint brief for 2nd, 3rd and 4th respondents. I hope such an advice was never handed to the 1st respondent. I therefore say no more on it.

In the event it was the joint brief of 2nd, 3rd and 4th respondents that was filed on the other side of the appeal. They identified three issues for determination all of which are similar to the two issues formulated by the appellant. I therefore prefer the issues formulated by the appellant. I shall as well consider both issues for determination as formulated by the appellant together in the manner learned counsel for the appellant did in arguing his client’s case in his brief.

Learned counsel submitted as can be gathered from his brief of argument that the tribunal erred in its finding as reflected at page 65 of the record of appeal. That having found that four extra votes were contained in the result in respect of Ungwa-Zam 15A polling unit it was prudent for the tribunal to have held that there was malpractice or irregularity. While relying on the case of Terab v. Lawan (1992) 3 NWLR (Pt. 231) 569 at 587-588 learned counsel submitted that there is irregularity where the results of the election exceed the total number of registered voters for the unit. He urged us to allow the appeal on this ground.

Further in submission, learned counsel said that having found four extra votes in the results of Ungwa-Zam 15A polling station the proper finding ought to be that the election was not free from irregularities. He submitted that in consequence of the over-voting the tribunal should have nullified the election. He cited Solomon Wuyeb v. Aliyu Ndungpunghai & ors PS/LGET/J28/97 an unreported case of the Plateau State Local Government Election Tribunal dated 9th June, 1997 in support.

Continuing, learned counsel submitted that if the votes cast in Ungwa-Zam 15A polling unit are deducted from the overall results, the appellant would have won by the majority of valid votes.

While referring to the election at Ungwa-Zam 15 polling unit learned counsel submitted that the said result was tainted with irregularities to warrant the cancellation of the result of the election. Learned counsel stressed that from the record, 500 people were registered but that 490 people were accredited on that day while the record showed 499 as having voted. He said if the results of Ungwa-Zam 15 polling unit is deducted from the results of the appellant and the 1st respondent the former would have had the majority of lawful votes.

Learned counsel finally prayed that the judgment of the tribunal be set aside.

He prayed that the appellant be declared as the elected Councillor for Kalong Ward for Shendam Local Government Council.

On his part, Mr. Gongu for 2nd, 3rd and 4th respondents argued in his brief and as emphasised in his oral argument that the appellant did not adduce evidence to support any allegation of corrupt practice as required by law. He said there is no evidence of alteration or falsification of the results of the election under consideration. After distinguishing the authorities relied upon by the appellant, learned counsel submitted that Decree 36 of 1998 has not provided for irregularities and/or malpractices as grounds for voiding or questioning election under section 84 of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 – hereinafter to be referred to as the Decree. He urged that the appeal be dismissed as lacking in merit.

The whole of this appeal is centred on the finding of facts made by the tribunal as it affects Ungwa-Zam 15 and 15A polling units and that was the basis of the whole petition. The tribunal, after reviewing the evidence on record, found no malpractices or irregularities in Ungwa-Zam 15 polling unit. The final finding of the tribunal in both polling units goes as below reproduced:-

“We have studied Exhs. C and D and also Exhs. B and E the statement of results of the two units Ungwa-Zam 15 and 15A respectively.

Exh. C, the register of voters, showed that total people registered in that ward were 500 people. Exh. B which is the statement of result showed that out of 500 registered, 480 were accredited. Each party has its number of votes it scored in its column. Out of the number of people voted from 490, nine votes were invalid. Form CE EA(1) in respect of polling unit Ungwa-Zam 15 has been signed by the agent on the petitioner although he said that he signed the form as a result of threat by the police. There is no evidence to show that he was threatened.

This tribunal did not accept that evidence on threat. Therefore there is no evidence of irregularities or malpractice in his unit.

But Ungwa-Zam 15A Exh . D showed that 350 people were registered at ward to vote. But Exh. B which is the statement of result from that unit did not indicate how many people were registered or how many were accredited. Since the petitioner counsel did not attack the authenticity or the form but only on the result, we have studied it carefully and found that the total number of people who actually voted on that election at that unit were 275 not 521 as indicated in Exh. E. It was also shown that 75 votes casted at that unit were invalidated.

Therefore if 79 invalidate votes were added to 275 valid votes it would be 354. It was only 350 registered voters according to Exh. D.

In all what we have said above, can we say the four extra votes tantamount to malpractices or irregularities to warrant the cancellation of the results in this two units,”

The findings of the tribunal above quoted are based on the evidence on record and the belief or non-belief of the witnesses who were seen by the Judges of the tribunal and probative value ascribed to their respective pieces of evidence. It was also based on the evaluation of the documentary exhibits before the tribunal. I should therefore think that this court cannot disturb the findings of fact arrived at by the tribunal as this court was not opportuned to see and hear the witnesses. I have not found any wrong conclusions drawn by the tribunal from accepted credible evidence nor are erroneous views taken of the evidence on record to warrant interfering with the tribunal’s findings. Withal there appears to be no findings of fact which can be said to be perverse in the sense that they do not flow from the evidence accepted by the tribunal. It should be borne in mind that the Court of Appeal cannot interfere with the findings of fact of trial court unless:-

(1) Such findings are perverse.

(2) Or are not supported by evidence.

(3) Or have not been arrived at as a result of a proper exercise of judicial discretion.

(4) Or that the trial court has not made a proper use of the opportunity of seeing and hearing the witnesses at the trial.

(5) Or where it has drawn wrong conclusions from accepted credible evidence.

(6) Or has taken an erroneous view of the evidence adduced before it.

(7) Or where they were reached as a result of a wrong application of some principle of substantive law or procedure.

See Ude v. Chimbo (1998) 12 NWLR (Pt. 577) 169 at 186 to 187.

Okpiri v. Jonah (1961) 1 SCNLR 174 at 176-177

Woluchem v. Gudi (1981) 5 SC 291 at 295 to 296

Balogun v. Agboola (1974) 10 SC 111 at 118 to 119

Adegbire v. Ogunfaolu & anor (1990) 4 NWLR (Pt. 146) 578.

Agbabiaka v. Saibu (1998) 10 NWLR (Pt. 571) 534.

It is my clear view that the tribunal did find from the evidence on record that the appellant had failed to prove any irregularity or malpractice at Ungwa-Zam 15 polling unit. It equally found as a fact that the four contentious votes at Ungwa-Zam 15A polling unit were not substantial enough to affect the election held on 5th December, 1998. These two polling units form the gravamen of the appellant’s case and both issues for determination as formulated by the appellant are resolved against him. In the result, this appeal fails in its entirety. It is hereby accordingly dismissed. The judgment of the Local Government Election Petition Tribunal sitting in Jos, Plateau State in suit No. CL/EP/PL/1/98 dated 12th February, 1999 is hereby affirmed. There shall be no costs.

Other Citations: (1999)LCN/0569(CA)