BOMA GOODHEAD v. MR. OTELEMABA AMACHREE & ORS(2005)(2005)

BOMA GOODHEAD v. MR. OTELEMABA AMACHREE & ORS(2005)

  (2005)LCN/1793(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 5th day of July, 2005

CA/PH/EPT/156/2004

 

JUSTICES

VICTOR AIMEPOMO OYELEYE OMAGE   Justice of The Court of Appeal of Nigeria

JOHN AFOLABI FABIYI   Justice of The Court of Appeal of Nigeria

MONICA B. DONBGAN-MENSEM   Justice of The Court of Appeal of Nigeria

Between

 

BOMA GOODHEAD Appellant(s)

AND

  1. MR. OTELEMABA AMACHREE
    2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
    3. RESTDENT ELECTORAL COMMISSION, RIVERS STATE
    4. THE ELECTORAL OFFICER, ASARI-TORU LOCAL GOVT. AREA
    5. THE CONSTITUENCY RETURNING OFFICER, ASARI-TORU LOCAL GOVERNMENT AREA CONSTITUENCY I
    6. RETURNING/COLATION OFFICER, WARD I ASARI-TORU LOCAL GOVT. AREA CONSTITUENCY I
    7. RETURNING OFFICER/COLLATION OFICER WARD 2 ASARI-TORU LOCAL GOVT. AREA CONSTITUENCY I
    8. RETURNING OFFICER/COLLATION OFFICER, WARD 3 ASARI-TORU LOCAL GOVT AREA CONSTTTUENCY I
    9. RETURNTNG/ COLLATION OFFICER, WARD 4 ASARI-TORU LOCAL GOVT. AREA CONSTITUENCY 4
    10. RETURNING/ COLLATION OFFICER, WARD 5 ASARI-TORU LOCAL GOVT, AREA CONSTITUENCY I
    11. RETURNING/COLLATION OFFICER, WARD 6 ASARI-TORU LOCAL GOVT. AREA CONSTITUENCY I
    12. THE SUPERVISORY PRESIDING OFFICER, WARD I ASARI-TORU LOCAL GOVT. AREA CONSTTUTENCY I
    13. THE SUPERVISORY PRESIDING OFFICER, WARD 2 ASARI-TORU LOCAL GOVT. AREA CONSTTTUENCY I
    14. THE SUPERVISORY PRESIDING OFFICER, WARD 3 ASARI-TORU LOCAL GOVT. AREA CONS’TITUENCY I
    15. THE SUPERVISORY PRESIDING OFFICER WARD 4
    16. THE SUPERVISORY PRESIDING OFFICER, WARD 5 ASARI-TORU LOCAL GOVT. AREA CONSTITUENCY I
    17. THE SUPERVISORY PRESIDING OFFICER, WARD 6 ASARI-TORU LOCAL GOVT. AREA CONSTITTIENCY I Respondent(s)

JOHN AFOLABI FABIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the National Assembly/Governorship and Legislative Houses Election Tribunal holden at Port Harcourt, Rivers State of Nigeria delivered on 7th May, 2004. The Petition of the Appellant herein, as Petitioner thereat, against the Respondents was, after a full hearing, dismissed.
It is necessary to recapitulate the background facts leading to these appeals so as to have a clear focus in considering the issues postulated in the appeals. Election to place adequate indigenes of Rivers State on the vacant seats at the River State House of Assembly was conducted on the 3rd of May, 2003. The Appellant herein and Petitioner at the Tribunal contested the election on the platform of the All Nigeria Peoples Party (ANPP for short) while the 1st Respondent contested under the banner of the Peoples Democratic Party (PDP for short). The contest was in respect of Asari-Toru Local Government Constituency 1 (one) seat.
After the completion of polls, the 2nd and 5th Respondents declared the 1st Respondent as the winner of the election and returned him accordingly. The votes scored by the parties should be stated. The petitioner scored 559 votes while the 1st Respondent scored 19,627 votes.
The Appellant felt dissatisfied with the declaration and return of the 1st Respondent as the winner of the stated election. As petitioner, she challenged the return at the lower Tribunal. She prayed in paragraph 22 of her petition as follows:-
“(a) An order of the Tribunal that the election is invalid for reasons of non-compliance with substantial sections of the Electoral Act, 2002.
(b) An order of the Tribunal that the election is invalid for reasons of corrupt Practices.
IN THE ALTERNATIVE:
That the 1st Respondent (Mr. OTELEMABA DAN AMACHREE) was not validly and duly elected or returned by a majority of law votes cast in the election HELD ON THE 3RD DAY OF May, 2003 for the Rivers State House of Assembly, Asari-Toru Local Government Constituency 1 (one) as required by law.”
Upon the completion of ‘pleadings’, the Petitioner called 28 witnesses including herself as P.W.28. She tendered 52 Exhibits. The 1st Respondent called 9 witnesses and tendered 16 Exhibits. The 2nd set of Respondents called two witnesses and tendered two Exhibits.
The case of the Petitioner as can be gathered from her pleadings and evidence is that in the morning of 3rd May, 2003 the Petitioner with some of her party agents went to INEC office at Buguma. There, they saw 15 vehicles loaded with election materials. Accompanied by INEC officials and Military personnel, the vehicles drove off the premises.
The materials were diverted to the house of PDP Chieftain for unlawful purpose. The materials were not supplied to the polling units of Asari-Toru Constituency 1 (one) by the Supervisory Presiding Officers. At all the 100 polling units, Presiding Officers, party agents, polling clerks and orderliness as well as the electorates waited to no avail as there was no election due to the absence of election materials. This version was put up by P.Ws. 1-3; 5-28.
on the other hand,P.W.4 gave evidence to the contrary.He said he supplied voting materials to Supervisory Presiding officers who distributed them to Presiding officers who used them for the election. P.W.4 said he distributed election forms to the wards collation officers. Elections were properly conducted with forms duly completed and collations were made at Wards and Constituency levels of Asari-Toru constituency 1. Results were duly announced on 3-5-03.
The Respondents denied the claim of the Petitioner and contended that prior to the election, ANPP, Petitioner’s Political party, withdrew from participating in the election. They felt that the Petitioner did not take part in the election. In this direction, Exhibits D17 and D18 were tendered. The Respondents maintained that the election was conducted in substantial compliance with the provisions of Part II of the Electoral Act, 2002.
The Tribunal was properly addressed by learned counsel for the parties. Based on the reasoned submissions advanced on behalf of the parties, the Tribunal, on 7th May, 2004 delivered its judgment and dismissed the Petition as lacking in merit. It upheld the declaration and return of the 1st Respondent. On the issue of locus standi of the Petitioner, the Tribunal was not at one with the 1st Respondent. It overruled a challenge of the standing of the petitioner.
The Petitioner appealed against the judgment of the Tribunal which dismissed her petition. The 1st Respondent cross-appealed on the stance of the Tribunal that the Appellant has locus standi to present the petition as she did. The two appeals shall be considered in their sequence anon.
The Appellant’s Notice of Appeal was filed on 28-5-04. Three grounds of appeal accompanied same. As can be seen on page 6 of her Brief of Argument, the three issues formulated for determination of the main appeal read as follows:-
“(i) whether the election complied with the provisions of the Electoral Act, 2002.
(ii) Whether there is legal basis for the weight accorded the evidence of P.W. 4 on the holding of
the election.
In the alternative:
(iii) Whether or not this is a proper case for a bye election to have been ordered by the Electoral
Tribunal.”
On behalf of the 1st Respondent, the lone issue couched for a proper determination of the appeal is:-
“Was the Tribunal right in law from the available facts and evidence before it in holding that the Petitioner did not prove her case as contained in her petition?”
The lone issue distilled on behalf of the 2nd – 17th Respondents for an adequate determination of the appeal reads as follows:-
“Whether on the facts and circumstance of this petition the decision of the Tribunal that the Appellant did not prove her case and that election was conducted in substantial compliance with  the of the Electoral Act, 2002 was justified.”
To start with, it is manifest from the pleadings and the evidence adduced by the parties that the allegations put forward by the petitioner touch on commission of crime. The same is directly in issue. The offences which can be deduced are diversion of election materials as well as dereliction of duty. As P.W.28, the Petitioner said early on 3-5-03, she saw 15 vehicles at the INEC Office, Buguma. In her presence and those of her party agents, the 15 vehicles conveyed election materials meant for the Wards to an unknown destination with military escort. P.W.28 said she later learnt that they were taken to the house of a PDP Chieftain in Buguma for unlawful purpose. The election materials were not taken to the polling units and as such, election did not take place throughout the constituency according to the Petitioner and most of her witnesses. Another deducible offence from the picture given by the Petitioner is dereliction of duty by Electoral Officials.
The stated offences of diversion of election materials and dereliction of duty are punishable under Section 120 (1) of the Electoral Act, 2003 which Provides that:-
“120-(1) Any officer appointed for the purposes of this Act, who without lawful excuses commits any act or omit(sic) to act in breach of his official duty commits an offence and is liable on conviction to a fine of N100,000 or to imprisonment for twelve months or both.”
The burden of proof is on the Petitioner at the Tribunal and Appellant herein to prove her allegation beyond reasonable doubt.
Such a proof must be one that extends to the realm of probability and excludes fantastic possibility. Such must not leave room for speculation or create doubt. Refer to NWOBODO v ONOH (1984) 1 SCNLR 1; OMOBORIOWO v AJASIN (1984) 1 SCNLR 108; ADUN v OSUNDE (2003) 16 NWLR (Pt. 847) 643 at p.664; Same is codified by section 138(1) of the Evidence Act, Cap 112, LFN, 1990 which provides as follows:
“138(i) If the commission of a crime by a party to any proceedings is directly in issue in any proceedings civil or criminal, it must be proved beyond reasonable doubt.”
Let me say it clearly that throughout the whole gamut of evidence by the petitioner and her witnesses no one directly said that the election materials were diverted. The Petitioner said she later learnt that they were taken to the house of one PDP chieftain. Such leaves room for speculation and a considerable measure of doubt. The name of the Petitioner’s informant was not stated and same still remains in the air.
The names of INEC officials who facilitated the alleged act remain unknown. The allegation sounds more like a fantastic possibility and has no reasonable probability attending to it. That is not all. P.W.4, Petitioner’s witness said the election materials were not diverted and that INEC officials were not derelict. P.W.4 tendered some of the election materials issued out by him which were used for the election; eventual collation and final declaration of the result. In the face of all these, can it be said that the allegations touching on crime, as put up by the petitioner, were proved beyond reasonable doubt? I think not.
The Petitioner tried to show that no election took place in her Constituency on 3-5-03. P.W.1 P.W. 3, P.W.5 P.W.27 and the Petitioner as P.W.28, in effect said so. They maintained that there  were no election materials. This is the sum total of their evidence which requires no elaborate recapitulation.
Curiously, P.W.4 who was the Electoral officer called by the Petitioner debunked the Petitioner’s assertion as well as those of the other witnesses called by her. P.W.4 tendered all the forms used in conducting the election and recording results from all units, wards and final declaration; list of persons who conducted the elections and documents showing actual distribution of election materials. He denied the claim that elections were not conducted in the Constituency. He received no complaint from the Petitioner or anyone that elections were not conducted in any of the units or wards. Collation was made and the result was declared by the Constituency Returning Officer on 3-5-03. Various forms EC8As and EC8Bs used in the six Wards in the constituency were admitted through P.W.4. Forms EC8C, EC8D leading to the declaration of result in form EC8E were admitted as Exhibits through P.W.4 -Petitioner’s own witness. In all, the Petitioner tendered a host of Exhibits – 52 in all.
The 1st Respondent called 9 witnesses including D.W.1 – a voter, who said he voted on the day of election. D.W.2 who was an agent for Alliance for Democracy (AD for short) said materials were distributed by the Electoral Officer to Supervisory Presiding Officers (SPOs) in his presence. He said elections were held in the constituency and that ANPP – Petitioner’s party did not participate in the election. D.W.3, Supervisory Presiding Officer for Ward 4 stated the part he played at the election. D.W.4 who said he was the candidate for NDP in the Constituency said the election took place. He knew because he was interested. He said result was announced over the radio and that ANPP boycotted the election.
D.W.5, a business man acted as a Presiding Officer for Main Tarriah Ward 6, Unit No.3. He said elections were held. D.W.6, a voter said he voted. P.W.7 who said he is a member of ANPP said he voted on 3-5-03. D.W.8 said he voted at Unit 10, Ward 2 of Asari-Toru Local Government Constituency 1. D.W.9 a civil servant, Ward Collation Officer for Ward one said elections were conducted. He explained the part he played. D.W.10 said he participated in the payment of Presiding Officers as directed by P.W.4. D.W. 11 tendered two letters which INEC received from the ANPP withdrawing from the said election as well as not sending names of Party Agents. From the internal conflict in the evidence of the petitioner’s witnesses, can any reasonable tribunal place reliance on same? I think not. I cannot surmise with adequate precision the rationale for the Petitioner’s complaint that the Tribunal was wrong by finding that she did not prove her case. She desired to say that as election materials were diverted to unauthorized abodes, elections did not take place at the polling units. But while the petitioner and a host of other witnesses said election did not hold for the stated reason, P.W.4 called by her stated the contrary and supported his version with Exhibits to wit: vital used election forms.
The Appellant’s counsel tried cast aspersion on P.W.4’s evidence. He talked of his evidence being hear say. I am unable to agree with same. P.W.4 gave evidence of the part he played and what was not reported to him by the Appellant.
The Tribunal had no business to pick and choose which set of witnesses to believe in favour of the Petitioner whose house was divided against itself and automatically collapsed like a pack of cards without support. There is no way by which one set of the Appellant’s witnesses can be believed that the other would not have lied in the scenario pointed by her. See ONAFOWOKAN v THE STATE (1987) 3 NWLR (Pt. 61) 538 at p. 553; ADUN v OSUNDE (supra); ONUBOGU v THE STATE (1974) 1 All NLR 561; AWOPEJU v THE STATE (2000) 6 NWLR (Pt. 659) 1 at p.12.
The evidence adduced by the Respondent’s stands intact in the main. The Petitioner’s evidence having collapsed, there is nothing to balance against the evidence of the Respondents on the holding of the election. The Petitioner failed to prove her case even on the preponderance of evidence. See MOGAJI v ODOFIN (1978) 4 S.C. 91 at 94; BELLO v EWEKA (1981) 10 S.C. 101. See also section 135 of the Evidence Act, 1990.
The Appellant felt that the election was not conducted in compliance with the provision of section 135(1) of the Electoral Act which goes as follows:-
“135(1)An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act, if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principle of this Act and that the non compliance did not affect substantially the result of the election.”
A complaint that will invalidate an election must, no doubt, be substantial. And such must be demonstrated to have affected the result of the election in material respect. Refer to KUDU v ALIYU (1992) 2 NWLR (Pt. 231) 615 at p.620. The Appellant failed to show any good, tenable and/or sustainable complaint to point at an imagined non-compliance with the stated provision of the Act. To find otherwise will be tantamount to an eye wash. A bye-election was suggested by Appellant’s counsel. Clearly, there is no reliable foundation for same.
The main appeal, no doubt, stands on a shifting ground. It has no iota of merit. And it is hereby dismissed.
CROSS APPEAL
The 1st Respondent/Cross-Appellant was not pleased with the part of the decision of the Tribunal where it held that the Petitioner has the locus standi to present her petition, as she did. The Notice of cross-Appeal was accompanied by one ground of appeal.
The issue formulated by the 1st Respondent/Cross-Appellant reads as follows:-
“whether an aspirant (or a former candidate) whose political party did not only withdraw from an election but never canvassed for votes for him/her can independently stand for the election or question the validity or otherwise of the said election.”
On behalf of the 2nd – 17th Respondents who did not cross-appeal, the issue couched for a proper determination of the cross-appeal reads as follows:-
“Whether on the facts and circumstances of this case, the decision of the Tribunal that the Appellant was a bona fide candidate at the election and thus has the locus standi to maintain the petition was right.”
From the tone of Exhibit 17 submitted by the ANPP to INEC on 1-5-03, ‘May day’ it withdrew its participation in the election slated for 3-5-03. Even though as a political party it must canvass for votes for its candidates vide section 221 of the 1999 Constitution, it cannot do so 24 hours to the election day since it must not run foul of the provisions of sections 92 and 95 of the Electoral Act, 2002 which make canvassing for votes within 24 hours to an election by a Political party an offence. So, talk of canvassing for votes by the Petitioner’s party is besides the point. It is a bare faced assertion which failed to hit the target as desired by the 1st Respondent.
I am unable to trace any clear provision in the Electoral Act, 2002 which deals with withdrawal of a political party from a scheduled election. I feel that if a political party wants to withdraw from an election, nothing precludes it from so doing. As a corporate body, it is a right that cannot be inhibited. But a candidate that has been sponsored must be properly notified. That is her right as well. There is no shred of evidence in the transcript record of appeal that the Petitioner was duly notified. Why then the furore? The issue in contention is not sponsorship of the Petitioner by her political party – ANPP but whether withdrawal of the party has disentitled her from contesting the election. The Petitioner was a bona fide candidate at the election of 3-5-03. As at the time of withdrawal from the election by her party, question of canvassing for votes on her behalf, as strenuously put up on behalf of the 1st Respondent, was no longer of moment or feasible. She has the locus standi to maintain the petition. Refer to GOODHEAD v AMACHREE (2004) 1 NWLR (pt. 854) 352 at p.371.
As well, the cross-appeal by the 1st Respondent is hereby dismissed for lack of merit. Since I have earlier on dismissed the main appeal, the judgment of the lower Tribunal is hereby confirmed. The return of the 1st Respondent as the duly elected member of the House of Assembly, Rivers State of Nigeria for Asari-Toru constituency 1 (one) remains inviolate. In the prevailing circumstance, each party should bear his/her costs.

VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.: I have read before now the judgment of my learned brother FABIYI JCA, in the election to the National Assembly/Governorship and legislative Houses Election.
In the election, which took place on 3/5/03, the 1st respondent was returned, and the appellant was dissatisfied and he took recourse of his complaint to the Tribunal below who ruled against him before he appealed to this court. The 1st respondent who maintained that the appellant withdrew through her party ANPP, from the election, and had no locus standi cross appealed also the judgment of the Tribunal. The tribunal delivered its judgment on 7th May 2004 and confirmed the decision of the electorate. The Tribunal overruled the submission of the 1st respondent that the appellant had no locus standi to file the petition. In the petition, the petitioner had deposed that she saw a vehicle with voting materials and armed men and heard later that the said vehicle was off loaded in the house of the Chairman of the opposing party and that election did not take place on the given date for election. A petition based on such an allegation founded on hearsay can certainly not hope to succeed to overturn the election proved to be properly held. The confirmation that election was held; PW4 the plaintiff’s own witness said that election did take place. Again the petition would fail and it failed because the operative part of the statement of the petition is based on a hearsay evidence of what the petitioner heard that the voting materials were off loaded in the house of the Chairman of the opposing party; and that no election took place.
The averment of the petitioner is one, which imputes criminality and requires to be proved beyond reasonable doubt. See Section 138 Evidence Act Cap 112 LFN 1990. The appellant could of course not offer such a standard of proof at the Tribunal, her petition was rightfully dismissed; and the 1st respondent lawfully returned. Winning the election and the suit in the court below did not appeal to content the 1st respondent, he cross appealed the decision of the  Tribunal which ruled that because the appellant participated in the election which held on 3/5/03 she had a locus standi to file the petition but cross appellant said she did not.
Locus standi was defined in the case of Adesanya v. Federal Republic of Nigeria (1981) 5 SC as a sufficient interest in a matter to enable a party to complain of its breach. It is a legal capacity to institute proceedings in a court of law. See Owodunmi v. Registered Trustees of Celestial Church of Christ (1994) 3 NWLR (Pt 333) p.481 at 488 pars F-H.

The cross appeal on locus standi by the 1st respondent was in my view properly dismissed; as is the case in the main appeal of the appellant in the judgment of my learned brother FABIYI JCA and I agree with its reasoning and conclusion. I abide by the consequential order for costs made in the said judgment

MONICA B. DONGBAN-MENSEM (JCA) The Hon., the learned Justice Fabiyi (JCA) who prepared the lead judgment has adequately and fully considered all the issues raised in this appeal. I agree entirely with the reasoning and conclusions arrived at.
A little contribution on the issue of non-compliance with the provisions of the Electoral Act 2002 would suffice in the circumstance. Non-compliance is not established by mere allegations of the diversion of electoral materials, allegations of over-voting – nor a wild allegation of the disruption of the electoral process.
The Petitioner/Appellant must do more than throw mud, to be effective, the mud must stick on the Respondent. The fact of noncompliance with some provisions of Electoral Act would not nullify an election. There must be errors, being a process conducted by human beings who are in most cases, poorly trained to manage the processes.
Both the Appellant and the Respondent, i.e the looser and the winner alike could be victims of the poor execution/ non-compliance with the provisions of the Electoral Act.
To effectively over turn an election, the Appellant must show that the Respondent actively influenced the activities which occasioned the noncompliance with the Electoral Act. Additionally, such non-compliance must radically and adversely affect the result of the election.
In the instant case, the Appellant failed to adduce evidence of the diversion of electoral materials as alleged. The allegation, which suggests an electoral offence, must be proved beyond reasonable doubt. The Appellant has failed to do this.
For the fuller reasons stated in the lead judgment, I too would and do hereby dismiss the appeal and the cross appeal.
I also agree that each party should bear its cost.

 

Appearances

I.S. DOKUBOFor Appellant

 

AND

H.C. OPUTA,
S.R. DAPAA-ADDO with him M.B. STEPHEN-KWELLE.For Respondent

 

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