ELEMI ELE IKE v. EDOGI EKONO ENANG & ORS
(1999)LCN/0522(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of March, 1999
CA/C/EPA/33/99
JUSTICES:
JUSTIN THOMPSON AKPABIO Justice of The Court of Appeal of Nigeria
SIMEON OSUJI EKPE Justice of The Court of Appeal of Nigeria
OLUDADE OLADAPO OBADINA Justice of The Court of Appeal of Nigeria
Between
ELEMI ELE IKE Appellant(s)
AND
- EDOGI EKONO ENANG
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. MR. EDU AZOGO (Presiding Officer, Imahana Ward II Abi Local Government Area) Respondent(s)
RATIO
WHETHER OR NOT AN ISSUE FORMULATED FROM AN INCOMPETENT GROUND OF APPEAL MUST BE STRUCK OUT
Where a ground of appeal is incompetent and is struck out, it is therefore, of necessity follows that an issue formulated from it is also incompetent and must be struck out or discountenanced by the court. In the present appeal, issue No.2 formulated by the learned counsel for the appellant is related to ground two of the additional grounds of appeal which has been struck out. In the circumstances therefore, issue No.2 aforesaid is hereby struck out also. See Aniekwe v. Okereke (1996) 6 NWLR (Pt.452) 60 at p.71; First Bank of Nigeria Ltd. v. Njoku (1995) 3 NWLR (Pt.384) 457 at p.465. PER EKPE, J.C.A.
THE DUTY OF THE COURT TO DO SUBSTANTIAL JUSTICE
It is trite law that the days of legal technicalities are over as the courts nowadays aim at doing substantial justice. See Long-John v. Blakk (1998) 6 NWLR (Pt.555) 524; (1998) 5 SCNJ 60 at 87. PER EKPE, J.C.A.
EKPE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Local Government Election Tribunal of Cross River State sitting at Calabar, delivered on the 6th of February, 1999, in favour of the 1st respondent. The appellant was a candidate for the councillorship election for Imabana Ward II of Abi Local Government Area of Cross River State on the ticket of All Peoples Party (A.P.P.), while the 1st respondent was the councillorship candidate of the People Democratic Party (P.D.P.). The election was held on the 5th of December
1998. At the end of the election, the appellant was declared the winner and was accordingly returned as elected. The 1st respondent/petitioner filed an election petition at the Election Tribunal challenging the election result and the return of the appellant. The petitioner claimed that he scored the majority or the lawful votes cast at the election: that the 500 (five hundred) votes cast at Ikpalegwa play ground polling unit No.CR/09/01/08F were actually scored by him but were mistakenly or erroneously credited to the appellant who scored nothing at that polling unit. He prayed the Election Tribunal to reverse the said score erroneously or mistakenly credited to the appellant and to declare him duly elected or returned. In its judgment the Election Tribunal granted the petition and declared the petitioner/respondent elected as the Councilor representing Umabana Ward II in Abi Local Government Council. The appellant being dissatisfied with the decision of the tribunal has now appealed to this court on a number of grounds of appeal. The first original ground of appeal is that the judgment was against the weight of evidence. Later the appellant obtained the leave of this court to file and argue four additional grounds of appeal, to wit:
Ground 1
The Local Government Election Tribunal erred in law when it held that Mr. Edogi Ekoro Enang was the elected Councilor representing Imabana Ward II of Abi Local Government Council, having scored the majority of valid votes to wit: 1,879 votes cast at the election of 5th December, 1998 at Imabana II Ward to defeat Elemi Ele Ike who scored 1,719 votes.
Ground II
The Local Government Election Tribunal erred when it found as a fact that “there was a mistaken entry of 500 votes (or at least 498 votes) from the scores of the petitioner to those of the 3rd respondent.” (Particulars are supplied).
Ground III
The Local Government Election Tribunal failed to properly evaluate the evidence before it.
(Particulars are supplied)
Ground IV
The Local Government Election Tribunal erred when it failed to make any finding on the issue of serial number of the ballot papers.
(Particulars are supplied).
Briefs or argument were filed and exchanged by the appellant and the 1st respondent. The appellant in his brief of argument formulated four issues for the determination or the appeal, namely:
“1. Whether the ballot papers for which the Local Government Election Tribunal based its judgment were properly before the tribunal.
2. Was there any mistake in the recording or the election results (i.e., 500 votes) in the result sheet during the December 5, 1998 election in Imabana Ward II?
3. Was the petitioner/respondent entitled to be declared duly elected in view of the evidence before the tribunal?
4. Whether or not the tribunal was right not to have made a finding on the issue of serial numbers.”
In his brief or argument the 1st respondent first raised a preliminary objection attacking ground two of the appellant’s additional grounds of appeal together with issue No.2 in the appellant’s brief of argument as being incompetent. Thereafter he framed only one issue for the determination of the appeal as follows:
“Whether given the evidence before it, the lower tribunal was justified in coming to the conclusion that the 1st respondent scored the majority of valid votes to wit: 1,879 votes at the election of 5/1/98 at Imabana Ward II to defeat the appellant who scored 1,719 votes.” At this juncture, I will like to dispose of the preliminary objection before going into the merits of the appeal. There is no doubt that ground two of the additional grounds of appeal reproduced above is not a competent ground of appeal. It offends Order 3 rule 2 (4) of the Court of Appeal Rules 1981 as amended. Because this ground or appeal is vague, general in nature and does not disclose any reasonable ground of appeal, it was struck out by this court.
Indeed, the learned counsel for the appellant conceded to the preliminary objection raised by the counsel for the 1st respondent. Where a ground of appeal is incompetent and is struck out, it is therefore, of necessity follows that an issue formulated from it is also incompetent and must be struck out or discountenanced by the court. In the present appeal, issue No.2 formulated by the learned counsel for the appellant is related to ground two of the additional grounds of appeal which has been struck out. In the circumstances therefore, issue No.2 aforesaid is hereby struck out also. See Aniekwe v. Okereke (1996) 6 NWLR (Pt.452) 60 at p.71; First Bank of Nigeria Ltd. v. Njoku (1995) 3 NWLR (Pt.384) 457 at p.465. At the hearing of the appeal the learned counsel for the appellant and the 1st respondent respectively adopted their briefs of argument. Dealing with issue No.1 in his brief of argument, the learned counsel for the appellant conceded that although the tribunal by virtue of section 93(2) of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998, has the power to order for purposes or inspection the production of any polling document(s) which will enable it arrive at a just and reasonable conclusion or any matter before it, but he nevertheless submitted that once the documents have been inspected and seen to be relevant, the proper thing to do would have been for the documents to be admitted in evidence as exhibit to enable the tribunal act upon same. He contended that where this was not done as in the instant case, the tribunal ought not to have relied on the documents (i.e., the ballot papers) not before it. He cited the case of Jeje Oladele & ors v. Oba Adekunle Aromolaran II & 3 ors (1996) 6 NWLR (Pt.453) 180 at p.226. Furthermore the learned counsel submitted that the documents were never tendered in evidence as exhibit nor pleaded so as to make them form part of the records before the tribunal and cited Onehi Okobia v. Mamodu Ajanya & Anor. (1998) 58 LRCN 3839: (1998) 6 NWLR (Pt.554) 348. Finally, the learned counsel urged this court to hold that the documents (the ballot papers) not being part or the evidence before the tribunal, the tribunal was wrong to have based its judgment upon the same. Before making my comments on this issue, it is necessary to recall that on the 30th of January, 1998 after the close or the case for the parties, the Election Tribunal pursuant to section 93(2) of Decree No.36 of 1998 and for the just determination of the petition, made an order for the production of the ballot papers with serial Nos. 1353440 to 1353970 for Ikpalegwa playing ground Unit F in Ward II of Imabana of Abi Local Government Area for the purpose of recounting the votes cast at the said polling unit or station.
This order was made on the Electoral Officer for Abi Local Government Area and the Presiding Officer for Ikpalegwa playing ground polling Unit F. Upon the production and recounting of the ballot papers in the presence and acquiescence of the parties and their counsel before the tribunal, it was found that the recounted votes were thus:
498 votes for PDP
2 blank ballot papers
Nil for APP
It is noteworthy that the tribunal painstakingly recorded this scenario and this can be seen at pages 41 and 42 of the record of proceedings of 2nd of February, 1999. Having said thus far, my answer to issue No.1 is that the ballot papers were properly before the tribunal pursuant to section 93(2) and (4) of the Local Government (Basic Constitutional and Transitional Provisions) Decree No.36 of 1998. The ballot papers were required by the tribunal for the purpose of the legal proceeding in the election petition before it, in order to ensure just determination of the petition. The view of the learned counsel for the appellant that the ballot papers were not tendered in evidence as exhibits before the tribunal acted on them does not really attract me. It has to be realised that the ballot papers were produced at the instance of the tribunal and inspected and counted before the tribunal. Although, for the purpose of identification, the ballot papers should have been marked as exhibits, but the mere fact that they went not so marked does not detract from their relevance and the weight to be attached to them. In my view the issue raised by the learned counsel for the appellant borders on mere legal technicality rather than the pursuit of substantial justice. The tribunal in my candid view should be commended for its approach in the determination or the petition. It is trite law that the days of legal technicalities are over as the courts nowadays aim at doing substantial justice. See Long-John v. Blakk (1998) 6 NWLR (Pt.555) 524; (1998) 5 SCNJ 60 at 87. Issue No.3 by the learned counsel for the appellant seems to me to be one of the bones of contention in this case and I shall answer it in the affirmative, having regard to the evidence and findings of fact by the Election Tribunal. The tribunal found as a fact at page 53 or the record of proceedings that it was glaringly clear that out of 500 votes cast in the unit, the petitioner (1st respondent) scored 498 votes, while the 3rd respondent (the appellant) scored 0 votes (i.e., zero vows). That there were two blank ballot papers which when added to 498 votes to make up the 500 votes scored in that unit. The tribunal further stated thus:
“From the forgoing facts it becomes obvious that the allegation by the petitioner and his witnesses that there was mistaken entry of 500 votes (or at least 498 votes) from the scores of the petitioner to those of the 3rd respondent (i.e. the appellant) was correct. The tribunal therefore find as a fact that there was a mistaken entry of the scores of the petitioner to the scores of the 3th respondent (appellant) as evidenced in Exhibit P/4/98/C”
The tribunal continued from page 53 to page 54 of the record of proceedings and had this to say:
“In view of this therefore, the 498 votes forming part of the 500 votes wrongly credited to the 3rd respondent (appellant) is hereby subtracted from the total scores of the 3rd respondent (appellant) and credited to the petitioner. The remaining two blank ballot papers are hereby declared void. The result of this transfer lives (sic) the petitioner with a total of 1,879 votes, while the 3rd respondent’s (appellant) votes became 1,917 votes:’
In consequence therefore, the tribunal was justified in my view, pursuant to section 87 (2) of the Decree to have declared the petitioner/respondent elected as Councilor for the ward in question. On issue No. 4.1 will briefly say that the issue of serial number of the ballot papers for Ikpalegwa play ground polling unit F produced pursuant to the order of the tribunal for inspection and recounting was not in issue or made an issue by the panics and therefore the tribunal was not required to make a finding on that. On the whole, I am of the considered view that there is no merit in this appeal and that it should be dismissed, and I hereby dismiss the appeal. The 1st respondent is entitled to costs which I assess and fix at the sum of N3.000.00 against the appellant.
AKPABIO, J.C.A.: I have read in advance the lead judgment of my learned brother, Ekpe. J.C.A just delivered and have no difficulty in agreeing with him that this appeal was a colossal waste of judicial time, and should be dismissed.
This was a ease in which both the petitioner (Edogi Ekoro Enang) and 3rd respondent (Elemi Ele Ike) had contested the 5th December, 1998 Local Government Council for Imahana Ward II under the platform of People’s Democratic Party (P.D.P) and All Peoples Party (A.P.P) respectively.
The election was said to have been generally peaceful, free and fair. However, at Ikpalegwu polling station, which was one of the seven units that made up Imabana II Ward, there was said to have been a mistake in the recording of votes into the result sheet, after the counting exercise, in that the 500 votes scored by the petitioner (Linder P.D.P) was either inadvertently or otherwise recorded for the 3rd respondent (for A.P.P). On discovering this mistake the petitioner and his polling agent rushed to the collation centre and lodged a complaint. But his appeal that the ballot box be opened and the votes recounted for the avoidance of doubt was turned down on the ground that the 2nd respondent (Presiding Officer) who presided at the polling unit CR/09/01/108/F was not present at the collation centre to preside over the recounting. When the attention of the 2nd respondent was subsequently drawn to the error he accepted it to be his, but nothing was done to rectify the error. The result was that when the final figures were announced 3rd respondent (A.P.P) secured 2,219 votes while the petitioner (P.D.P) scored 1,381. This happened simply because the 500 votes cast for P.D.P at Ikpalegwa playing ground (0808F) was wrongly credited to the 3rd respondent (A.P.P), Aggrieved with that result the petitioner went and filed an election petition. At the Election Tribunal, after taking evidence, the tribunal found that the only question for determination was:
“Whether the 500 votes scored in Exhibit P/5/98/C Ikpakgwa play ground unit F was mistakenly credited to the 3rd respondent.”
With the consent of all the parties and their counsel, therefore, the tribunal ordered for the production of the ballot papers, which were duly produced and counted in the open court and found to be 498, all in favour of the petitioner, while two were blank, and the 3rd respondent scored nil. The petition of the petitioner was therefore successful, and by virtue of the provision of section 87(2) of Decree No.36 or 1998, he was declared the winner of the election with a majority voters of 1,879, as against 1,719 scored by the 3rd respondent.
The 3rd respondent being dissatisfied with the above judgment has now appealed to this court on the omnibus ground that “the judgment was against the weight of evidence”. With leave of this court three additional grounds were later filed.
From the above grounds four issues for determination were later formulated, complaining in the main about improper evaluation of evidence and that the ballot papers were not properly before the court, not having been pleaded.
My learned brother Ekpe. J.C.A., in the lead judgment has fully and adequately considered all the issues and resolved them in favour of the petitioner/respondent, and I agree with him. My own contribution in this judgment is simply to add a few comments as follows:
What the tribunal did in this case was akin to what a trial court does in land cases by visiting the “locus in quo” to resolve any disputed features about the land in dispute. e.g. whether a house standing on the land was a thatch house: or a concrete building. In such a case the court visits that locus, records the result of the land inspection on the records, and then delivers judgment based on what it saw at the locus, and that was precisely what the tribunal did in this case. The court cannot now be called upon to disbelieve the evidence of its own eyes. See the wide powers given to the tribunals under para. 15(3) of Schedule 5 of Decree No. 36 of 1998 to do substantial justice.
I therefore also hereby dismiss this appeal with the same costs us are awarded in the lead judgment.
OBADINA, J.C.A.: I have read in draft the lead judgment of my learned brother, Ekpe, J.C.A. just delivered by him and I agree with him that the appeal be dismissed.
I therefore dismiss the appeal and abide by the order as to costs made by my learned brother. Ekpe, J.C.A.
Appeal dismissed
Appearances
- Otaba, Esq. For Appellant
AND
- Olusegun, Esq. – for the 1st Respondent For Respondent
