ATIKASE OTITO V. KUNLE ODIDI & ORS
(2010)LCN/3919(CA)
In The Court of Appeal of Nigeria
On Monday, the 5th day of July, 2010
CA/B/EPT/315/2008
RATIO
DUTY OF THE COURTS TO DECIDE CASES ON THE EVIDENCE OF ALL THE PARTIES AND NOT ON THE EVIDENCE OF ONE SIDE WHILE IGNORING THAT OF THE OTHER SIDE
It is a cardinal principle of adjudication in our Courts and which is so well recognized and enforced that Courts are enjoined to decide cases on the evidence of all the parties and not on the evidence of one side while ignoring that of the other side. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
EVALUATION OF EVIDENCE: WHETHER EVALUATION OF EVIDENCE IS PRIMARILY THE FUNCTION OF THE TRIAL COURT
It is also a well settled principle of adjudication that the evaluation of evidence is primarily the function of a trial Court. The evaluation of evidence entails a consideration of the totality of the evidence adduced in the course of a trial and placing same in an imaginary scale with a view to seeing in favour of which of the parties the scale of justice tilts. It is also part of this evaluation exercise for the trial Court to ascertain the quality of the evidence based on the probative value to be attached to it. See MOGAJI V. ODOFIN (1978) 3-4 SC 91. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
INTERFERENCE WITH THE DECISIONS OF A TRIAL COURT: CIRCUMSTANCES UNDER WHICH THE APPELLATE COURT WILL INTERFERE WITH THE DECISIONS OF THE TRIAL COURT
It must be emphasized here that it is not allowed for an appellate Court to interfere with the decision of a trial Court based on its evaluation of evidence except, of course, where the decision is perverse having regards to the character and quality of evidence already an record. Where a trial Court has carried out satisfactorily its function of proper and dispassionate appraisal of evidence given in support of each party’s case, an appeal Court will be left with no option but to affirm such a decision. However, where the findings and conclusions have been found to be perverse or where wrong inferences have been raised or drawn from accepted facts or wrong principles have been applied to facts, it is the duty of an appellate Court to re-evaluate and re-assess the evidence adduced by the parties. See EBBA V. OGODO (1934) 1 SCNLR 372. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 141 OF THE ELECTORAL ACT AS TO TIME WITHIN WHICH AN ELECTION PETITION MUST BE PRESENTED
Section 141 of the Electoral Act provides as follows- “An election Petition under this Act shall be presented within 30 days from the date the result of the election is declared”. (Highlight mine) The position of the Court of Appeal on this issue is that the word “within” means that an election Petition arising from the date of election must be presented any time between 30 days from the date the result was declared, and it is inclusive of both dates – see Action congress & Anor V. Jang & ors (2009) 4 NWLR (pt. 1132) 475. PER AMINA ADAMU AUGIE, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
Between
ATIKASE OTITO Appellant(s)
AND
1. KUNLE ODIDI
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. RESIDENT ELECTORAL COMMISSIONER, ONDO STATE
4. THE RETURNING OFFICER, ILAJE CONSTITUENCY II, ILAJE LOCAL GOVERNMENT AREA
5. THE NIGERIAN POLICE
6. COMMISSIONER OF POLICE, ONDO STATE
7. THE NIGERIAN ARMY Respondent(s)
ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Governorship/Legislative Houses Elections Petitions Tribunal established for Ondo State under the Chairmanship of Ikyegh, J. delivered on 10th June, 2008.
On the 14th April, 2007 elections were held nationwide into the various Governorships and States Legislative Houses seats in Nigeria. For the Ilaje II Constituency of the Ondo State House of Assembly, the Peoples Democratic Party (PDP) nominated and sponsored the Appellant while the Labour Party (LP) nominated and sponsored the 1st Respondent. Two other political parties; Democratic Peoples Alliance (DPA) and Alliance for Democracy (AD) each sponsored its candidate.
At the conclusion of this election, the 2nd Respondent (INEC) declared and returned the Appellant as the duly and validly elected candidate. The 1st Respondent was not satisfied with the declaration of the results of the election and proceeded to challenge same in an election petition dated 14th May, 2007. It is election petition No. EPT/OND/25/07. The Appellant herein was the 1st Respondent to the petition while INEC and its staff were made 2nd to 4th Respondents etc. This petition was made on 2 grounds. They are:-
a) The 1st Respondent was not duly elected by a majority of lawful votes cast at the election; and
b) The purported House of Assembly election of 14th April, 2007 in Ilaje II Constituency was marred by corrupt practices, massive and unprecedented violence and absolute non-compliance with the provisions of the Electoral Act because there was no election and yet returns were made.
Upon these grounds, the Petitioner sought for the following reliefs. They are: –
1) That it may be determined and thus determined that the purported return of the 1st Respondent as elected member for Ilaje constituency II to the Ondo State House of Assembly held on 14th April, 2007 is void and the purported election and/or return be nullified;
2) That it may be determined and thus determined that the entire purported House of Assembly election held on 14th April, 2007 in the Ilaje constituency II be voided or nullified and a fresh election be conducted for the Constituency; and
3) An order directing the 2nd Respondent to immediately conduct a fresh election in Ilaje Constituency.
Issues were duly joined by parties to the petition and after all the preliminary issues such as pre-hearing conference, the matter went to trial. In the course of the trial, the Petitioner (1st Respondent herein) relied on his personal testimony and 3 other witnesses while the 1st Respondent (Appellant herein) adduced evidence through 6 witnesses. From the entire spectrum of the trial, the case of the petitioner hinged on that election did not hold in the entire Ilaje Constituency II on 14th April, 2007. Also, where electoral materials were available, they were allegedly hijacked and taken away by thugs armed hoodlums, soldiers and policemen who were accused and alleged to have been working for the 1st Respondent/Appellant. On his own part the 1st Respondent/Appellant sought to convince and prove to the lower Court that elections indeed took place in all the polling units and wards of the Constituency.
At the conclusion of the trial, respective learned Counsel filed and exchanged written addresses. In its judgment the lower Court upheld the petition, set aside the result of the election and return of the 1st Respondent/Appellant and went further to order INEC to conduct a fresh election within 60 days.
The 1st Respondent/Appellant being dissatisfied with this decision appealed to this Court in a notice of appeal containing 9 grounds, which with leave of this Court was amended to incorporate 8 additional grounds of appeal.
To argue the appeal, parties filed briefs of argument. The relevant brief of the appellant is the one dated 24/03/09 but deemed properly filed and serve on 19th May, 2009, while that of the 1st Respondent is dated 11/3/09. The brief of the 2nd – 4th Respondents is dated 21st May, 2009. The Appellant also filed a reply brief dated 21/4/2009. The 5th, 6th and 7th Respondents did not file any briefs.
From the 17 grounds of appeal, the appellant’s brief identified, formulated and argued 7 issues.
1) Whether the petition which was filed on the 15th of May 2007 was within time, as prescribed by section 141 of the Electoral Act 2006 to entitle the Tribunal to exercise jurisdiction over its hearing and determination? (Ground 1 of the Notice of Appeal)?
2) Was the Tribunal correct in admitting in evidence, various documents that were merely produced which were never put through any witness to enable the Appellant cross-examine on their authenticity, on the ground that they were relevant?
3) Whether Exhibit ‘A’, a letter written by an INEC staff, six (6) months after the election, and during the pendency of the Petition, is legally admissible, and could be accorded the full weight given to it by the Tribunal, even when it was not pleaded, and was not put in through any witness?
4) Whether the Tribunal was correct in law in using the result of the ballot recount, as basis for discrediting, and rejecting statutory INEC forms, on the ground that the number of ballots counted were less than the figures entered into INEC statutory form?
5) Whether, having regard to the pleadings and the evidence legally admissible, the Tribunal was correct in deciding questions of irregularities on the ballot papers and holding that the election was marred with irregularities and noncompliance?
6) By deciding issues of irregularities and noncompliance, was the Tribunal not making out a case different from the one pleaded by the Petitioner, namely that elections did not take place at all?
7) Whether the Tribunal properly evaluated the evidence of the parties as presented, having regard to the pleadings of both the Petitioner and the Appellant?
The 1st Respondent formulated and argued 6 issues for determination of this appeal. They are as follows:-
1) Whether the petition in this case was not filed within time (Ground 1 of the amended Ground of Appeal).
2) Whether the lower Tribunal was not right in admitting the documents admitted in evidence in this case (Grounds 2, 6 and 7 of the Grounds of Appeal).
3) Whether exhibit ‘A’ in this petition was not rightly admitted in evidence and relied upon by the lower Tribunal (3, 4, 5 and 6 of the Grounds of Appeal).
4) Whether the lower Tribunal was not right in the use made by it of the ballot recount – (Ground 8 of the Grounds of Appeal).
5) Whether the Tribunal was not right in deciding questions of irregularities on the ballot papers etc and in holding on the basis thereof that the election was marred with irregularities and noncompliance (Grounds 3 and 4)
6) Whether the lower Tribunal was not right in its evaluation of the evidence and giving judgment to the petitioner on pleadings and evidence. (Grounds 8 and 9 of the Ground of Appeal).
In his very short and concise brief; learned Counsel to the 2nd – 4th Respondents adopted and argued the issues formulated by the Appellant.
At the hearing of the appeal, learned Counsel to the 1st Respondent drew the attention of the Court to a preliminary objection he filed challenging the competence of majority of the grounds of appeal. This preliminary objection was argued in the 1st Respondent’s brief. Having introduced the preliminary objection, learned Counsel urged the Court to uphold it and go further to discountenance and strike out the offending grounds of appeal. Thereafter respective learned Counsel who filed briefs identified, adopted and relied on same and went further to urge on the Court their respective positions for and against the appeal. However, learned Counsel to the 2nd – 4th Respondents came up with what can be considered an unconventional approach when he urged the Court to allow the appeal. This attitude and approach of INEC is clearly unorthodox and greatly absurd.
The brief of the 1st Respondent was settled by learned Counsel Mr. J.O. Baiyeshea SAN. In arguing the preliminary objection, learned Counsel began with an explanation and preamble that the notice of appeal is taken as the foundation of any appeal and no notice of appeal is competent without proper and valid grounds of appeal. Against this introduction, learned Counsel drew the attention of the Court to the main gravamen and complaint of the 1st Respondent against some of the grounds of appeal. He thereupon characterized grounds 1 – 9 of the original grounds of appeal as narrative, incongruous and argumentative and maintained that to that extent they remain incompetent and urged this Court to strike them out.
In a further effort to convince this court to uphold the preliminary objection, learned Counsel Mr. Baiyeshea SAN referred and quoted Order 6 rule 2 (2) and (3) of the Court of Appeal Rules 2007 and a number of cases to underscore the importance and cornerstone effect of a valid and proper notice and grounds of appeal in the appellate process, variously described as the “engine house”, “crucial position” etc. With respect to the requirement of Order 6 rule 2 (2) and (3), learned Senior Counsel re-echoed the decision of the Courts that rules of Court must be obeyed. He went on to add that where there is non-compliance it must be explained or otherwise no indulgence would be granted.
Having laid down this foundation, learned Counsel Mr. Baiyeshea SAN scrutinized each of the 9 grounds of appeal he sought to challenge for being incompetent. After his X – raying each, his verdict was that they were either, academic, pedestrian, misleading, not concise, vague, unknown to, law, narrative, argumentative, prolix, incongruous etc. After this verdict on the grounds of appeal, learned Counsel urged this Court to strike out the entire notice of appeal, the grounds of appeal and the issues predicated and formulated out of them being incompetent.
The other leg of the preliminary objection argued by learned Counsel to the 1st Respondent aimed at striking at the heart and soul of this appeal. This challenge pertains to a perceived lack of nexus between the grounds of appeal and the issues formulated and argued in the brief of the Appellant. Learned Counsel referred to Order 6 rule 3(1) and explained that any issue raised or argument advanced on an issue not arising from a ground of appeal is incompetent and liable to being struck out.
In his reply learned Counsel, Mr. Adedipe SAN, for the Appellant explained that the Supreme Court has had cause to make pronouncements on the issue at hand. In that regard learned Counsel Mr. Adedipe SAN referred to the cases of ADERUONMU V. OLOWU (2003) 40 NWLR (PT.652) 253 AT 272 and OLANREWAJU V. BANK OF THE NORTH LTD (1994) 8 NWLR (PT.364) 622 as per AYOOLA, JSC. According to Mr. Adedipe SAN, the position of the law in these cases is that in determining the competence or otherwise of a notice of appeal, an appellate Court must only be concerned with whether or not the impugned ground(s) shows what is complained of as an error in law, misdirection or any seeming defect in the judgment on appeal.
With this as his yardstick, learned Counsel Mr. Adedipe SAN while referring to some decided cases did a surgical operation on each of the 9 grounds of appeal complained of. He gave them a clean bill of health passed and certified them as okay. Upon this, learned Counsel urged this Court to hold that the preliminary objection and the arguments there for are misconceived, erroneous, misleading and frivolous and same ought to be discountenanced. He prayed this Court to accordingly dismiss the preliminary objection and proceed to determine this appeal on the merit.
I have carefully read through each of the 9 grounds of appeal complained of together with their copious particulars. There is no doubt that the drafting of some of the grounds had been a bit clumsy and inelegant. However, with respect to some, one cannot resist the temptation of characterizing certain key aspects of the preliminary objection as a bold attempt to create a mountain out of a molehill.
For example, ground one is as follows: –
1. “The lower Tribunal erred in law when it assumed jurisdiction to hear and determine the petition when it is apparent that the petition is statute barred.”
Also, ground 2 goes as follows: –
2. “The lower Tribunal erred in law when it found that all Electoral materials meant for use in the election were either burnt, destroyed based on Exhibit A which finding was perverse and has occasioned a miscarriage of justice.”
Also, ground 3 complains that: –
3. “The lower Tribunal erred in raw in upholding the petition and nullifying the election of the Appellant without proper evaluation of the evidence led by all the parties in the petition and this occasioned a miscarriage of justice.”
While I am absolutely positive about the competence of these grounds of appeal, I will not be able to be that optimistic with respect to grounds 4-9. Being guided by the decision of the Supreme Court in ADERUONMU v. OLOWU (supra) I am absolutely and fully satisfied that the Respondents herein have in no way been surprised or misled as to the aspects of the judgment the appellant was complaining to this Court about. So to avoid an unnecessary and undue reliance of technicalities and also in the overall interest of substantial justice, I will, like learned Counsel Mr. Adedipe SAN, also give all the 9 grounds of appeal a clean bill of health.
I have also carefully considered the 7 issues formulated by Counsel to the appellant and I am satisfied that they were sufficiently and substantially covered and deriveable from the grounds of appeal they were said to have been formulated from. In view of these observations, the preliminary objection is hereby overruled and dismissed. I shall now proceed to determine this appeal on the merit based on the briefs filed by respective parties.
I have carefully read and considered the 7 issues formulated and argued in the Appellant’s Brief. Having regards to the judgment of the lower Court and the entire circumstances of this appeal it appears clear to me that the most germane and relevant issues in this appeal are issues 1, 5 and 7 as set out above. This is because I am of the view that issues 2, 3, 4 and 6 are fully subsumed and can conveniently be covered under issue 7. I will therefore proceed to determine this appeal on issues 1, 5 and 7 in the appellant’s brief of argument.
In arguing issue No. 1, learned counsel to the Appellant referred to S.141 of the Electoral Act, 2006 and pointed out that 30 days had been provided therein as the period of time within which an election petition must be filed and presented by any person aggrieved by the result of an election under the Act. According to learned Counsel, the election in this appeal was held on 14/4/2007 and the result was declared on 15/04/2007. Further to this, learned Counsel added that upon the declaration of the result of the election and return of the appellant as the winner, a cause of action had accrued to whosoever was dissatisfied with that declaration.
In his attempt to answer the question whether the petition in this appeal was filed within the mandatory period of 30 days, learned Counsel referred to a number of decision of this Court such as OGBEBOR V. DANJUMA (2003) 15 NWLR (PT.843) 403, and AKUME V. LIM (2008) 16 NWLR (PT.1114) 490 amongst others and explained that in calculating the number of days, the date of the declaration of the result will be included. Because according to Mr. Adedipe SAN, the petition was filed on 15/5/2007, it was filed a day out of time and he submitted that it was statute barred.
Learned Counsel argued that because the petition was filed out of time, the lower Court lacked jurisdiction to entertain same and its decision on same was a nullity and ought not to stand. He urged this Court to so hold and strike out the petition for being incompetent and an abuse of process.
In his answer to the arguments of Mr. Adedipe SAN, learned Counsel Mr. Baiyeshea SAN started with a clarification by asserting that the petition was filed on 14th May, 2007 and not 15/5/2007 as argued by learned Counsel Mr. Adedipe SAN. In support of his assertion, Mr. Baiyeshea SAN referred to the endorsement on the petition and argued that it is demonstrably so clear that the petition was presented and filed on 14/05/2007. He referred to pages of the petition to show that the Secretary to the Tribunal endorsed that the petition was paid for and signed before her on 14th May, 2007. In a further clarification learned Counsel said that the reference to the petition being filed on 15/5/2007 in the judgment of the lower cannot vary or substitute the date on the petition itself by virtue of S.132 of the Evidence Act.
In an attempt to unravel this issue we invited respective learned Counsel to address the Court fully at a re-hearing of this appeal. This became necessary because the issue of competence or regularity of this petition was jurisdictional and had become a very serious and crucial issue to resolve and settle. In the course of the address of respective learned Counsel, it became obvious that the view of learned Counsel to the appellant was that because the lower Court has categorically stated in its judgment that the petition was filed on 15/5/2007, such statement was binding on the lower Court itself and all the parties in the petition before it. Learned Counsel to the 2nd – 7th Respondents in another absurdity upon absurdity chose to associate himself with the position of learned Counsel to the Appellant on this issue.
However, learned Counsel to the 1st Respondent vehemently maintained that because the petition is the originating process and it has endorsed on it 14/05/2007 as the date for filing, then it is that date that is relevant and which must prevail in the circumstance.
I have considered, these arguments and my view is simple and straight forward. There is no doubt that the endorsement on the petition shows that it was filed on 14/05/2007. This cannot be changed in line with the guiding principle in the law of evidence that once a document is before a Court of law it should be allowed to speak for itself and it must be taken ex-facie for what it says. By extension because the petition cannot tell a lie as to its date of filing, and as the originating process that led to the judgment, any reference in the judgment that the petition was filed on any date other than 14/05/2007 must be taken as incorrect and to that extent, that reference liable to be made right under the slip rule.
I had earlier on observed that learned Counsel to the 2nd – 4th Respondents (INEC and its officials) had sought to associate himself with the submission of learned Counsel to the appellant that the Petition was filed on 15/5/07. This approach of learned Counsel is totally unprofessional and highly irresponsible because it was made to mislead the Court.
The same learned Counsel had filed a written address before the lower Court. In that written address learned Counsel had clearly stated that: –
“The petitioner presented this petition dated 14th day of May, 2007 and filed the same day…”
See page 391 paragraph 1.01 of the record of Appeal Vol. 1.
In my humble but firm view and without any hesitation I hold that the petition in the instant appeal was filed on 14th May, 2007. The result of the election having been declared on 15th April, 2007, I hold further that the petition was filed within time and therefore regularly filed and not statute barred. Issue No, 1 is hereby resolved and decided against the appellant.
Issue 5 was, appropriately in my view, argued with issue No. 6 in the appellant’s brief. The gravamen and crux of the complaint under these issues is that the lower Court decided the petition outside the pleadings and the evidence in support thereof.
In arguing these 2 issues at pages 23 – 29 of his brief, learned Counsel to the appellant started with an explanation of the background to the case of the Petitioner/1st Respondent before the lower Court. He also explained the grounds for the petition and the nature of the evidence adduced in support and against the petition. From pages 24-27 of the brief, learned Counsel quoted very extensively from the judgment of the lower Court on a number of important issues that led to its ultimate decision to uphold the petition. Learned Counsel also commented on the steps taken by the lower Court in arriving at its various conclusions leading to the ultimate finding.
Upon this background learned Counsel challenged the various steps taken by the lower Court and submitted that it did not consider the real state of the pleadings before considering the evidence before it. He highlighted some of the facts and evidence upon which he believed that the parties had joined issues.
Learned Counsel maintained that the position of the law is that parties are bound by their pleadings and no party would be allowed to set up a case different from the one set out in their pleadings. In support of this principle learned Counsel relied on the Supreme Court decisions in CHIEF J.A. ADEMESO VS. MRS. MARIA OKORO & ANOR (2005) 14 NWLR (PT.945) 308 and OKOBIA V. AJANYA 5 SCNJ 95 at 104 etc.
Upon this circumstance, learned Counsel submitted that by abandoning the pleadings the Petitioner is deemed to have abandoned that particular case. And by adjudicating and considering a case different from the one pleaded, learned Counsel argued, the lower Court fell into error. He urged this Court to set aside the judgment of the lower Court for having been based on an erroneous exercise of judicial power.
Issue No. 6 at pages 33 to 37 of the brief of the 1st Respondent appears to me to be his answer to the issues argued on behalf of the appellant in his issues 5 and 6. From the onset learned Counsel to the 1st Respondent maintained that the lower Court was perfectly right in its use of the pleadings on record. He then added that the evidence led by the Petitioner before the lower Court was well within the ambit of the pleadings. While referring to specific items of evidence, learned Counsel explained that Exhibit B is a subsidiary legislation and therefore there was no need for it to be specifically pleaded before it could be admitted in evidence.
With respect to Exhibit A, learned counsel to the 1st Respondent faulted the position of learned Counsel to the Appellant on its status and effect in the circumstances of this appeal and he urged this Court to hold that it was properly admitted in evidence and it ought not to be disregarded in this appeal. After a total overview of the main and key findings in the judgment of the lower Court, learned Counsel submitted that the Court below thoroughly reviewed the documentary evidence vis-a-vis the oral evidence of the parties before it came to its final decision on the petition. Learned Counsel then urged this Court to hold that the lower Court was right on its evaluation of the evidence of the parties and also affirm its decision that the petition was meritorious and ought to succeed.
Issue No. 7 in the appellant’s brief is not totally unconnected with issues 5 and 6 as argued together. All the arguments and submissions of learned Counsel to the 2nd – 4th Respondents were a substantial re-echoing of the arguments of learned Counsel to the Appellant. Since the 2nd – 4th Respondents did not appeal and to the extent of their being Respondents in this appeal, they do not appear to even have anything to urge on this Court to allow this appeal. Their brief of argument in the circumstance and based on its final prayer, is of no moment. I would also like to observe with respect to the 5th Respondent, that because it joined issues with the Petitioner in its reply to the petition, it did not call any witnesses to support its pleadings. It must therefore be deemed to have accepted the case of the Petitioner and all the material acts of wrong doing alleged against it. Also because it did not appeal against the judgment of the lower Court and did not file any brief as a Respondent to this appeal, the 5th Respondent would then have nothing to urge on this Court.
The evidence on record as per Exhibit E showed that a policeman, ASP Christopher Oloyede, signed an election result sheet as a party agent on behalf of the PDP. This is an illegality and violation of electoral rules both by INEC and the police. ASP Oloyede behaved disgracefully and abused his position. Neither INEC nor the Police could defend this illegality that ought to have been sanctioned.
The complaint of the appellant in issues 5, 6 and 7 in this appeal pertains to the quality of pleadings vis-a-vis the evidence that was eventually adduced in the course of the trial. The admissibility and proper weight to be attached to some of the documents admitted and considered at the trial and in the judgment of the lower Court have been challenged in these issues. The evaluation of the evidence on record has also been challenged.
From the petition, the complaints of the Petitioner centre around non-compliance with the provisions of the Electoral Act in the course of the election for Ilaje II Constituency. These corrupt practices were alleged to have arisen from violence, rigging, hijacking and/or snatching of ballot materials. The other leg of the complaint of the Petitioner centers on allegation of non-distribution of election materials consequent upon which there was no voting. The petitioner relied on the oral evidence of 4 witnesses including himself and Exhibits A – L he tendered in evidence,
The pleadings and evidence of the 1st Respondent/Appellant centered principally on the fact that election materials were distributed to the various units where Petitioner/1st Respondent alleged there were none. He also adduced evidence to show that there was no hijacking of ballot materials and the election was generally free and fair.
It is a cardinal principle of adjudication in our Courts and which is so well recognized and enforced that Courts are enjoined to decide cases on the evidence of all the parties and not on the evidence of one side while ignoring that of the other side. It is also a well settled principle of adjudication that the evaluation of evidence is primarily the function of a trial Court. The evaluation of evidence entails a consideration of the totality of the evidence adduced in the course of a trial and placing same in an imaginary scale with a view to seeing in favour of which of the parties the scale of justice tilts. It is also part of this evaluation exercise for the trial Court to ascertain the quality of the evidence based on the probative value to be attached to it. See MOGAJI V. ODOFIN (1978) 3-4 SC 91.
It must be emphasized here that it is not allowed for an appellate Court to interfere with the decision of a trial Court based on its evaluation of evidence except, of course, where the decision is perverse having regards to the character and quality of evidence already an record. Where a trial Court has carried out satisfactorily its function of proper and dispassionate appraisal of evidence given in support of each party’s case, an appeal Court will be left with no option but to affirm such a decision. However, where the findings and conclusions have been found to be perverse or where wrong inferences have been raised or drawn from accepted facts or wrong principles have been applied to facts, it is the duty of an appellate Court to re-evaluate and re-assess the evidence adduced by the parties. See EBBA V. OGODO (1934) 1 SCNLR 372.
It is against this background that this appeal must be decided. I have carefully read and considered all the oral evidence of each of the 10 witnesses. I have also looked at and examined all the documentary Exhibits tendered and admitted without any objections during the trial. Because the witnesses for the Petitioner/1st Respondent and those of the 1st Respondent/Appellant gave oral evidence contradictory of one another, the lower Court considered and relied on documentary evidence to assess the credibility of the oral evidence. This approach of the lower court is right because of the well-known and settled principle of law that documentary evidence is a verifiable aid for assessing oral testimony. See U.N.I.C. v. U.C.I.C. LTD (1993) 3 NWLR (pt.593) 17.
Exhibit A, before the lower court is a real bone of contention in the brief of the Appellant. Learned counsel made a lot of hue and cry about it. It is understandable that Exhibit A would generate all the attention it got both by the lower court and respective learned counsel. I have carefully examined and considered it and I am of the view that the evaluation of Exhibit A at pages 536 -541 of the record of appeal as to its relevance, admissibility and weight to be attached to it was made with reference to S.913, and S.111 of the Evidence Act and several decided cases. I have re-examined all the steps and procedures adopted by the lower court in the course of this exercise and I do not see any reason to want interfere with that. The evaluation of Exhibit A was impeccable in the circumstance of this case and cannot be faulted.
I have also examined and read Exhibit B. It is a manual to guide INEC officials in the conduct of elections under the Electoral Act 2006 and was issued pursuant thereto. It is so specifically stated thereon. It goes without saying therefore that Exhibit B is a subsidiary legislation and as a law it needed not to be pleaded. The lower court must by law take judicial notice of its existence and where it was found to be relevant, as in the instant matter, its provisions must be invoked, applied and enforced. The views of the lower court as to the evidential value of its contents was correct.
I have further examined Exhibit C and D. For purposes of clarity, though at the risk of prolixity, I wish to reproduce part of the observations and decision of the lower court on Exhibits C and D at page 75 of the judgment contained at page 557 of the record of appeal. It goes thus: –
“There is a curious yet very interesting feature of the Exhibit C and D which are the Declaration of Result of Election Form EC8(i) state constituency. Exhibit C is the counterpart original while Exhibit D is a certified true copy of Exhibit C. In effect Exhibits C and D are one and the same document that returned the 1st Respondent as duly erected and prompts the question “who declared the Result of this election that was 1st Respondent duly elected and returned”? By law documents speak for themselves so Exhibit C and D should speak up. They are silent or may be dumb and this is because the said Exhibits C and D are fatally flawed. The name of the Returning officer for the said erection is not on the all important Declaration of Result of Election Form ECBE(i) State Constituency for Ilaje II Constituency! The name is missing so who then declared the result of this election? It is worthy of note that every other aspect of this Form was boldly and clearly filled and speak loudly. There is even an inscription that could pass for a signature on the signature section of the said Form. Why was the name not filled? Could it be as submitted by Petitioner’s Counsel that the Returning Officer was ashamed to subscribed his name to the said Form. It may well be so. Howbeit the failure of the returning Officer to subscribed his name on Exhibits C and D which is the declaration of Result Form EC8E(i) State Constituency and the apex of the pyramid in this election casts a grave doubt on the authenticity of the said election and constitutes absolute non-compliance with the law. The fact that they are signed cannot amount to compliance with the law in any guise whatsoever as a signature must relate to a name to be meaningful.”
The evaluation of Exhibits E, F, G, H, I, J and K was made against the contents of Exhibit A and it followed a pattern where each document was allowed to speak about its contents based either on universally accepted truths and/or undisputed facts in the circumstance of this case.
I am fully satisfied that all the steps taken by the lower court to arrive at its decision that there was a gross and substantial non-compliance with the provisions of the Electoral Act in many respects in the circumstance of this appeal no doubt complied with the standard required by law and justice. The inferences and ultimate decision can in no way be said to be perverse as to warrant interference by this Court. I am fully and absolutely satisfied that all the findings of the lower Court were fully supported and justified by sufficient material and credible evidence on record.
This appeal is devoid of any merit and it is dismissed. The judgment of the lower court is hereby affirmed. In consequence of that the declaration and return of the Appellant by 2nd Respondent (INEC) as the elected candidate for Ilaje II constituency of the Ondo State House of Assembly is hereby set aside. The certificate of return issued by the 2nd Respondent (INEC) to Mr. Atikase Otito, Appellant herein, is hereby nullified and cancelled. The Appellant is hereby ordered to vacate forthwith the Ilaje II constituency seat in the Ondo State House of Assembly. The 2nd Respondent is ordered to conduct a fresh election into the Ilaje II constituency of the Ondo State House of Assembly within 30 days. I order for N50,000.00 costs against the Appellant for the 1st Respondent.
AMINA ADAMU AUGIE, J.C.A.: I have read before now the lead Judgment just delivered by my learned brother, Gumel, JCA, and I agree with his reasoning and conclusion.
Section 141 of the Electoral Act provides as follows-
“An election Petition under this Act shall be presented within 30 days from the date the result of the election is declared”. (Highlight mine)
The position of the Court of Appeal on this issue is that the word “within” means that an election Petition arising from the date of election must be presented any time between 30 days from the date the result was declared, and it is inclusive of both dates – see Action congress & Anor V. Jang & ors (2009) 4 NWLR (pt. 1132) 475.
However, the Petition in this case was filed within time because the results were declared on the 15th of April 2007, and it was filed on the 14th of May 2007. Thus, it is not statute barred. My learned brother has dealt with all the other issues in the lead Judgment. I adopt his reasoning and do hereby dismiss the appeal as well. I also abide by the consequential orders in the lead Judgment including the order on costs.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I have had the advantage of reading in draft, a copy of, the leading judgment of my learned brother, A.A.B. Gumel, J.C.A. I agree with his line of reasoning and conclusion. I dismiss this appeal and abide by the orders made in the said leading judgment including the order as to costs.
Appearances
MR. A. ADEDIPE SAN (with A.O. Adedipe Esq. and Mr. S. Ojile)For Appellant
AND
DR. O. F. AYENI and MR. O. EBOSE – For the 1st Respondent.
MR. A. IGBOCHI – For the 2nd – 4th Respondents.
MR. J.C. IDACHABA – For the 5th – 6th Respondents.For Respondent
