NDUKWE OGUGUA LOUIS v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & Ors
(2010)LCN/3886(CA)
(2010) LPELR-4442(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of June, 2010
CA/B/EPT/279/2007
RATIO
WHETHER A PETITIONER HAS TO APPLY FOR LEAVE BEFORE APPEALING AGAINST A FINAL DECISION OR INTERLOCUTORY RULING IN AN ELECTION PETITION
Since time is of essence in election matters, to hold that a Petitioner has to apply for leave before appealing against a final decision or interlocutory ruling whether of law, fact or mixed fact and law will contravene that very essence and thus negative the cure intended for the mischief of dragged litigation. I am encouraged in this view by the principle of the Court of Appeal decision in AKPOKINIOVO V. AGAS (2004) ALL FWLR (Pt.227) 427 at 444j and the Supreme Court’s view in BUHARI V. YUSUF (2003) FWLR (Pt.174) 329 at 354 – 355 all defining the distinctive nature and scope of Election Petitions. See also KENNEDY V. INEC (2009) 1 NWLR (Pt.1123) 614 at 634. The law as it stands therefore, is that appeals from Election Tribunals to the Court of Appeal in Election Petitions whether touching on questions of fact or mixed law and fact in final or interlocutory decisions do not require the leave either of the trial Election Tribunal or of the Court of Appeal. No leave was, therefore, required in the instant case. PER CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A
WHEN DOES OVER VOTING OCCUR IN AN ELECTION PETITION
Over voting can only occur where the total number of votes cast in a Polling Station exceed the total number of registered voters for the Polling Station. See the case of AWUSE V. ODILI (2004) All FWLR (PT. 261) 248 at 304 – 305; (2004) 8 NWLR (PT. 876) Pg. 481. PER CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A
POSITION OF THE LAW ON THE EFFECT OF THE RESULT OF AN ELECTION DECLARED BY A RETUNING OFFICER
…election results are presumed in law to be correct until the contrary is proved. It is, however, a rebuttable presumption. In other words, there is a rebuttable presumption that the result of any election declared by a retuning officer is correct and authentic and the burden is on the person who denies the correctness and authenticity of the return to rebut the presumption. See Buhari V. INEC (2008) 19 NWLR (Pt. 1120) 246 SC, where the Supreme Court per Tobi, JSC also held that:- “A Petitioner who files a Petition under Section 145 (1) of the Electoral Act has the burden to prove the ground or grounds. This is because he is the party alleging the grounds and he has a duty to prove the affirmative. He is the party who will lose if no evidence is given on the grounds. If the Petitioner does not prove his case under Section 145 (1) of the Act, the action fails”. PER AMINA A. AUGIE, J.C.A
Justice
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
NDUKWE OGUGUA LOUISAppellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. RESIDENT ELECTORAL COMMISSIONER, DELTA STATE
3. ELECTORAL OFFICER, OSHIMILI NORTH LOCAL GOVERNMENT
4. WARD RETURNING OFFICER, WARD IV, IBUSA
5. PATIENCE AJUDUARespondent(s)
CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A(Delivering the Leading Judgment): In the election into the Delta State House of Assembly for Oshimili North Constituency, six candidates emerged for the contest including the present Appellant in this appeal who was the candidate of the Action Congress (AC) and the 5th Respondent herein who was the candidate of Accord Party (AP).
At the conclusion of the said election, the 1st, 2nd and 3rd Respondents herein declared the 5th Respondent as winner. Dissatisfied with this declaration, the Petitioner commenced proceedings at the Delta State Election Tribunal by way of a Petition wherein he sought two reliefs namely:
“(a) That the 5th Respondent was not duly declared elected or returned and should not be declared as duly returned or duly elected by 1st – 3rd Respondents.
(b) That the Petitioner be declared as validly elected or returned having scored/polled the highest/majority of lawful votes cast at the election.”
The Petition was predicated on the Ground that the 5th Respondent, Patience Ajudua did not score the majority of lawful votes cast at the election and should not have been declared winner by the 1st to 3rd Respondents.
Hearing commenced at the lower tribunal with the Petitioner (Appellant herein), Ndukwe Ogugua Louis, calling ten witnesses. The 1st – 4th Respondents who filed a joint reply called two witnesses, while the 5th Respondent
testified in defence and called no other witness. At the conclusion of the trial, the tribunal dismissed the petition.
Aggrieved by the decision, the Appellant, has now appealed to this court on Nine Grounds (vide an amended notice and Grounds of Appeal) which without their particulars are set out herein as follows:
“(a) The Judgment of the Election Petition Tribunal Asaba is against the weight of evidence.
(b) The learned Judges of the Election Petition Tribunal Asaba erred in law in the following passage of their Judgment “… there is absolutely no evidence adduced by the Petitioner establishing the delivery or receipt of any form EC8A (1) in respect of any of the Polling Stations in Ward 4 Ibusa by the 4th Respondent particularly Exhibit 5 which is the only form EC8A (1) to which any weight can be ascribed as it bears INEC stamp. Yet the Petitioner has averred that the said 4th Respondent wrongfully failed to submit authentic results to the 3rd Respondent for collation and that this led to the wrongful omission of the result of Ward 4 Ibusa from the result of Oshimili North Constituency…”
(c) The learned Judges of the Election Petition Tribunal Asaba erred in law by rejecting the Video Tape tendered by the Appellant thereby occasioning a miscarriage of Justice.
(d) The learned Judges of the Election Petition Tribunal Asaba misdirected themselves on facts in the following passage of their Judgment “…it is very clear from the averments in the petition that one of the irregularities relied on by the Petitioner as tainting the result of the election in Ward 9 and as a result of which the votes of candidates in. the said election were cancelled is that the total votes of 6,067 credited to the candidates by the 1st – 3rd Respondents in Ward 9 Okpanam exceeded the Registered number of voters in Ward 9 Okpanam which is 6,047 as contained in INEC voter’ guide …”
(e) The learned Judges of the Election Petition Tribunal Asaba misdirected themselves on facts in the following passage of their judgment “…It is not in dispute that the result of the election held in Ward 9 was announced at the Local Government Collation Centre Akwukwu Igbo by the 3rd Respondent who is alleged by the Petitioner to have cancelled the result of the said Ward. The 2nd PW admitted this much when he stated under cross-examination by learned SAN that the 3rd Respondent announced, the result of the election on 15/4/2007. The witness even stated the scores of his party ‘Action Congress,’ and ‘Accord Party’ as 4, 210 and 4, 939 respectively…”
(f) The learned Judges of the Election Petition Tribunal Asaba erred in law in dismissing the Appellant’s Petition.
(g) The learned Judges of the Election Petition Tribunal Asaba erred in law in the following passage of their judgment “…from all that has been stated the Tribunal definitely sees no irregularity that tainted the result of Ward 9 Okpanam established from the evidence adduced by the Petitioner and which led to the cancellation of the result of Ward 9 Okpanam by the 3rd Respondent upon being confronted with the same as alleged by the Petitioner.”
(h) The learned Judges of the Election Petition Tribunal Asaba erred in law by placing reliance on Exhibits 6a – k.
(i) The learned Trial Judges of the Election Petition Tribunal Asaba erred in law by rejecting the admission of a Certified True Copy of the letter dated 15/4/07 tendered by the Petitioner.
Briefs of argument were filed and exchanged by the parties. In his further amended brief of argument filed on 24/4/10 learned counsel for the 1st – 4th Respondents raised Preliminary Objections to the Appellant’s amended Grounds of Appeal notably Grounds 3A – 3I. He followed this with a formal notice of Preliminary Objection. The 5th Respondent also raised a Preliminary Objection dated 23/3/10. Before delving into the merits of the appeal, it is necessary for me to dispose of these Preliminary Objections. I will take the Preliminary Objections of counsel for the 1st – 4th Respondents and that of the 5th Respondent together since both are similar.
Learned counsel for the 1st – 4th Respondents, Mr. Adeyemi, had contended that the first Ground of Appeal (Ground 3A) being a Ground of Appeal which complains that the decision of the tribunal was against the weight of evidence was a ground of fact which would require leave of court and that since no such leave was obtained, that Ground was incompetent.
He argued that the particulars supporting Ground B were argumentative and narrative in form which rendered that Ground also incompetent.
On Ground C, learned counsel argued that that Ground raised an issue which did not flow from the Judgment as its subject related to an interlocutory ruling of the tribunal and therefore could not be combined with the main appeal without leave of court first had and obtained.
On Grounds D, E, F and G, learned counsel contended that Grounds D and E related to an obiter dictum of the tribunal and not to its ratio decidendi. In addition he argued that the particulars of those Grounds as well as those of Ground F were arguments and conclusions.
He argued that Grounds B, D, E and G were not errors in law but appeal on fact or mixed law and fact for which leave ought to be obtained. Finally, he argued that Ground I is incompetent as it raised new issue not derived from the Judgment appealed against.
In his reply to the Preliminary Objections learned counsel for the Appellant, Mr. Nnadi, contended that appeals from the Election Tribunals on questions of fact or mixed law and fact lie to the Court of Appeal by virtue of S. 246 (1) (b) (i) of the Constitution of the Federal Republic of Nigeria, 1999, and therefore the Provisions of S. 242 (1) of the Constitution requiring leave for appeals on matters of fact or mixed fact and law from the Federal High Court or High Court of a State to the Court of Appeal were inapplicable to appeals on such questions from the Election Tribunals to the Court of Appeal. He also argued that no leave was required to file an appeal from the interlocutory decisions of a tribunal to the Court of Appeal.
He concluded that, the argument that the particulars of the Grounds of Appeal were argumentative and conclusive in nature held no basis upon a calm reading of the Grounds and their particulars.
I am stunned by the argument of Mr. Adeyemi, learned counsel for the 1st – 4th Respondents to the effect that leave of the tribunal or the Court of Appeal was required for appeals from the Election Tribunal to the Court of Appeal on questions of fact or mixed law and fact in the face of the clear Provisions of S. 246 (1) (b) (i) of the 1999 Constitution. That Section provides that:
“An appeal to the Court of Appeal shall lie as of right from (a) (b) Decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether:
(j) Any person has been validly elected as a member of the National Assembly or a House of Assembly of a State under this Constitution.”
If the Legislature had intended to bring appeals from the Election Tribunals to the Court of Appeal, within the purview of Section 242 of the Constitution, it would not have made a separate provision in Section 246 (b) for appeals from Election Tribunals to the Court of Appeal.
The reason for this separate provision in such election appeals is quite understandable, not far fetched and not far to seek. Election Petitions are sui generis in nature and require expeditious disposal for stability and good governance in the polity. Indeed it has become a matter of public policy that such matters should be attended to promptly, timeously and expeditiously to enable those elected into offices to settle down to their legislative and executive duties and responsibilities. Therefore, the rigours of the procedure and proceedings in normal civil cases in the regular courts are dispensed with in preference to peculiar and particular statutory provisions and procedural rules made for the Special Courts and Tribunals that handle such matters. This is because time is of essence. Since time is of essence in election matters, to hold that a Petitioner has to apply for leave before appealing against a final decision or interlocutory ruling whether of law, fact or mixed fact and law will contravene that very essence and thus negative the cure intended for the mischief of dragged litigation. I am encouraged in this view by the principle of the Court of Appeal decision in AKPOKINIOVO V. AGAS (2004) ALL FWLR (Pt.227) 427 at 444j and the Supreme Court’s view in BUHARI V. YUSUF (2003) FWLR (Pt.174) 329 at 354 – 355 all defining the distinctive nature and scope of Election Petitions. See also KENNEDY V. INEC (2009) 1 NWLR (Pt.1123) 614 at 634.
The law as it stands therefore, is that appeals from Election Tribunals to the Court of Appeal in Election Petitions whether touching on questions of fact or mixed law and fact in final or interlocutory decisions do not require the leave either of the trial Election Tribunal or of the Court of Appeal. No leave was, therefore, required in the instant case.
I have also closely examined all the Grounds of Appeal filed by the Appellant herein as well as all the particulars in support thereof, but I do not see any basis for the argument of learned counsel for the 1st – 4th respondent that any of them did not arise from the decision of the Election Tribunal.
In my humble but firm view, all the Grounds of Appeal together with their particulars are clear, succinct and devoid of any legally offensive content. They are proper and appropriate. It is, therefore, my view that the preliminary objection are devoid of any merit and are hereby dismissed.
Now to the merits of the appeal. In his amended brief of argument, learned counsel for the Appellant Kelechi Nnadi Esq. formulated four issues determination in the following terms.
“(1) Whether the Tribunal was right in rejecting the letter written by the 3rd respondent dated 15/4/07 evidencing the cancellation of Ward 9 result and what is the legal effect of the letter on the result emanating from Ward 09.
(2) Whether the learned Tribunal was right in law to have dismissed the case of the Petitioner in the face of the unchallenged evidence of cancellation of Ward 9 result produced by the Petitioner at the trial.
(3) Whether the learned Tribunal was right in rejecting the pleading and listed evidence of the video tape recordings sought to be tendered by the Petitioner in proof of the cancellation of election result in Ward 9 and what is the legal effect of the letter on the results purportedly declared for Ward 9.
(4) Whether the learned Tribunal properly and dispassionately evaluated the evidence by the Petitioner and the Respondents before coming to its conclusion in the Judgment.
For the 5th Respondent, her counsel Ohwovoride SAN formulated four issues for determination:
“(1) Whether the Tribunal was right in rejecting the letter dated 15/04/07 purportedly written by the 3rd Respondent and what is the legal effect, if any, of the letter on the result emanating from Ward 9.
(2) Whether the Tribunal rightly held that the Appellant failed to prove his averment that Ward 9 result was cancelled.
(3) Whether the Tribunal rightly rejected the video tape sought to be tendered by the Appellant’s witness.
(4) Whether the Tribunal properly evaluated the evidence adduced before dismissing the Petition.”
In my view, all the issues formulated by counsel to the parties in this appeal as arising from the Grounds of Appeal, in their various wordings, form and content, are similar in content and can be summarised in one broad issue namely:
“Whether from the pleadings of the parties and evidence adduced in support thereof, the Appellant proved his case so as to have been entitled to the Judgment of the lower tribunal.”
All arguments of counsel for the parties in this appeal hinge on this single issue. It is therefore, on the basis of this single issue that I propose to determine this appeal.
In his argument in support of the appeal; learned counsel for the Appellant, Mr. Nnadi referred to the evidence of the witnesses called to establish the fact of the cancellation of the result for Ward 9 by the 3rd Respondent, notably PW2, PW3, PW4, PW5, PW6, PW8, PW9 and PW10, and contended that these witnesses gave graphic and positive evidence on the cancellation of the result for that Ward most of which were not challenged under cross-examination. The effect, he submitted, was that the Tribunal was enjoined to accept, and act on such evidence.
Referring particularly to the evidence of PW5 (Raphael Wetjak), the Divisional Officer for Okpanam Police Station, who was listed by both the Appellant and the 1st- 4th Respondents as potential witness for each side, learned counsel submitted that being a disinterested witness listed by both parties, his evidence ought to be decisive on the fact of cancellation moreso when same was not challenged in cross-examination.
Learned counsel further submitted that the only evidence produced by the Respondents in rebuttal of the cancellation was the evidence of DW1 to the effect that he did not cancel the results for Ward 9. But learned counsel referred to the evidence of this witness where the witness had stated that the Appellant brought one hundred thugs to beat him up and take away form EC8B (1) in respect of Ward 9 and compared it with his evidence under cross-examination to the effect that he performed his duties on the days of the election in good health and under massive security presence. Counsel also referred to the evidence of this same witness in the petition filed by the PDP candidate for the same election where he stated that the PDP candidate brought one hundred thugs who beat him up and took away form EC8B (1) resulting in his staff and other persons at the collation centre running away. He then submitted that such a witness was not capable of being believed in the face of these contradictions, moreso, when from the evidence of that witness (DW1) there was only one form EC8B (1).
Learned counsel further referred to the evidence of DW2 where he stated in-chief that the Appellant and his thugs caused confusion at the collation centre only to turn round under cross-examination to state that he did not witness any confusion at the collation centre. This, counsel argued, was also a contradiction in the case of the Respondents on the cancellation issue.
Appellants counsel further contended that the failure to call the Presiding Officers (Eleven of them) who made Exhibits 6A – 6K tendered by DW1 and who were listed by 1st – 4th Respondents as witnesses to give evidence on those Exhibits credited to have been made by them was fatal to the case of the Respondents in the face of the contest on the validity of the result in Ward 9 and the authenticity of the said Exhibits.
On rejection of the video tape coverage of the cancellation, learned Appellant’s counsel argued that it was wrong for the tribunal to have rejected the tape when same was pleaded and when Paragraph 1 (1) (c) of the Practice Direction 2007 left a Petitioner with the choice either to list copies of documents he intends to rely on or forward such copies.
Counsel finally contended that in the circumstance, the tribunal did not properly evaluate the evidence adduced by the parties before coming to its decision to dismiss the petition.
In his further amended brief of argument, learned counsel for the 1st – 4th Respondents, Mr. Adeyemi contended that the Appellant failed to prove the cancellation of the result for Ward 9 of the Constituency.
He submitted that there was a rebuttable presumption of correctness and authenticity in favour of the election result declared by the electoral body. The onus, he submitted, was on the person challenging the correctness and authenticity of such a result to rebut this presumption.
He argued that where such a challenge is based on an allegation of crime, the rebuttal must be established beyond reasonable doubt. He argued that the basis of the Appellant’s allegation of cancellation was that the total votes of 6,067 credited to the candidates at the election by 1st – 4th Respondents in Ward 9 exceeded the registered number of voters in the said Ward 9 and that the result in that Ward was tainted by irregularities resulting in its cancellation by the 3rd Respondent: He then contended that, the tribunal adequately considered the evidence adduced before reaching its conclusion that the Appellant did not prove the cancellation.
He argued that, the only way the lawfulness of votes cast in an election can be questioned is by tendering all the forms used, and calling witnesses to testify as to the, misapplication of the votes scored by individuals. This he said the Appellant failed to do as he did not tender all the forms used in the election in Ward 9.
Counsel further argued that, it is not automatic for the evidence of a police officer to be given credibility. Where such evidence is tainted, say by interest, no probative value will be attached to it, he submitted.
The evidence of PW5, he said, showed that he had a purpose to serve and therefore is tainted which made his evidence unreliable.
On the evidence of DW1 and DW2 which Appellant’s counsel had castigated as unreliable, 1st – 4th Respondents argued that since these witnesses were officials responsible for the conduct of the election, there was presumption of regularity of the results produced by them and the burden was on the Appellant to discredit them. Counsel argued that if there were any contradictions in their evidence, such contradictions were not material enough to destroy the Judgment of the Tribunal.
On Exhibits 6A – 6K which were forms EC8A (1) from the Eleven Units of Ward 9,counsel submitted that those were the root of the election process from which the total votes scored in the Ward were to be ascertained and therefore constituted the strongest evidence to establish the votes scored by the various candidates. Counsel argued that it was falacious for the Appellant’s counsel to contend that the evidential effect of those Exhibits were watered down by the fact that the Presiding Officers who prepared and signed them were not called as witnesses since being public documents, they could even be tendered without the necessity of calling the makers as witnesses.
On the rejection of the video tape recordings of the proceedings at Ward 9 for the proof of the cancellation, learned counsel argued that having been attached to the Petition, there was a breach of Paragraph 4 (8) of the Practice Direction 2007 and they were therefore, inadmissible as held by the tribunal. On evaluation, counsel submitted that there was proper evaluation of evidence by the tribunal.
For the 5th Respondent, it was the contention of her counsel, Ohwovoriole, SAN, that the Appellant failed to prove that he scored majority of lawful votes cast at the election by not proving falsification of results and the cancellation of the result for Ward 9. He argued that having tendered the summary of result as contained in form EC8C (1), Exhibit 4, there was a presumption of regularity of the official result for Ward 9.
The burden was therefore on the Appellant to rebut this presumption. The Appellant, he said, did not prove falsification of result and therefore failed in that vein to establish that the result of the election in Ward 9 was cancelled.
The basis for the claims of the Appellant in his petition at the lower tribunal in Paragraphs 10(a) and (b) of his petition and the foundation for his ground for the petition pleaded in Paragraph 7 thereof are the facts pleaded in Sub Paragraphs (a) and ,(L) of Paragraph 7 of the petition:
Those Sub-Paragraphs read:
(a) The Petitioner shall strongly contend that the votes credited to the candidates from Ward 9 (Okpanam/Ugbolu) were not valid votes as the result thereof had been cancelled by the 3rd Respondent in view of the irregularities that tainted the said result.
(L) The Petitioner shall content that the total votes of 61067 credited to the candidates by the 1st – 3rd Respondents. In Ward 9 Okpanam exceeded the registered number of voters in Ward 9 which is 61047 as contained in INEC voters guide which is hereby pleaded and the 1st – 3rd Respondents are giving (sic) notice to produce the original or the certified true copy of the said document.
The import of the foregoing Sub-Paragraphs of the Petition is that the Petition rested on two planks each independent of the other for if it was proved that there was cancellation of the result from Ward 9 of the Constituency, the general result for the election as declared by the Respondent would be affected if the exclusion of the result from that Ward would alter substantially the relative positions of the candidates at the election in terms of votes scored by each and also affect the winning status of the candidate said to have won the election. Similarly, if it was excess of votes (over voting) that was proved, the effect would be the same as in the first situation postulated above. So, in my view the contest was a straight forward one namely:
Was there a cancellation and/or was there excess of votes (i.e. Over voting) in that ward? These are encapsulated in the issue identified by the parties as summarised arid rephrased in the sole issue set out herein for the determination of this court.
Let me start a consideration of the issue in this appeal with the second ground for the petition i.e. Sub-Paragraph (L) of paragraph 7 of the Petition on excess of votes (or over voting).
Over voting is a serious electoral malpractice, for S. 54 of the Electoral Act 2006 provides, inter alia, in Subsection 2 thereof that:
“Where the votes cast at an election in any Constituency or Polling Station exceed the number of registered voters in that Constituency or Polling Station, the election for that Constituency or Polling Station shall be declared null and void
Describing the evil effect over voting has in an election, Aderemi JCA in AYOTUNDE v. ARE (t 993) 3 NWLR (PT. 595) 469 observed as follows:
“…Over voting is a serious electoral malpractice. It is a most disgraceful and dishonest act that should be condemned in all its ramification, it is an illegal act. And no person in any form of immoral or illegal act or transaction shall be allowed to come to court to seek redress. No polluted hand shall touch the pure foundation of Justice.”
And I will add: If a person so tainted with such an illegality approaches the court, he shall be shown the way out and where the result of an election is sought to be sustained on such illegality, the court will refuse to do so.
Over voting can only occur where the total number of votes cast in a Polling Station exceed the total number of registered voters for the Polling Station. See the case of AWUSE V. ODILI (2004) All FWLR (PT. 261) 248 at 304 – 305; (2004) 8 NWLR (PT. 876) Pg. 481.
Did the Appellant prove over voting since having alleged same, the onus was on him. In Paragraph 7 (i) of his Petition, the Appellant pleaded thus:
“The Petitioner shall contend that the total votes of 6,067 credited to the candidates by 1st – 3rd Respondents in Ward 9 Okpanam exceeded the registered number of voters in Ward 9 Okpanam which is 6,047 as contained in the INEC’S voters guide which is hereby pleaded and 1st – 3rd Respondents are given notice to produce the original or certified true copy of the said document.
The Respondents in their various replies denied this assertion.
In his evidence by way of deposition which he adopted in court, the Appellant merely repeated the substance of the pleading in Paragraph 7 (L) of his Petition already reproduced above without more. The alleged voters guide said to contain the number of registered voters was not tendered.
Incidentally, the Appellant, from his answer in cross-examination appeared to have abandoned the allegation of over voting for he had stated that he was no longer complaining of over voting.
Before an allegation of over voting can be sustained, the voters register which contains the number of voters in any given Polling Booth or Station must be produced in evidence to enable the court or tribunal handling such a complaint, by mere arithmetic calculation in subtraction, determine the volume or number of votes cast Visa Vi the number of voters in the register. The onus will be discharged if the Petitioner demonstrates by this process that more votes than the registered number of voters were cast at the Polling Unit, Booth or Station. See AWUSE v. ODILI Supra at 305.
In the instant case apart from the fact that no such register of voters was produced in evidence, the Appellant by his own confession under cross-examination abandoned that aspect of his case. That allegation in my view, therefore was not made out or proved as found by the lower tribunal.
Now to the second ground which is on the allegation of cancellation of the result in Ward 9 of the Constituency. By Paragraph 7 (b) of his Petition, the Appellant alleged that the votes credited to the candidates from Ward 9 (Okpanam/Ugbolu) were not valid votes as the result thereof was cancelled by the 3rd Respondent for the reason of irregularities that tainted the result. The irregularity pleaded consist in the fact that while counting was still going on at the Okpanam Police Station, the 3rd Respondent “fished out from his pocket a purported result sheet from Ward 9, Okpanam for collation.”
The unknown source of the result aroused the suspicion of those present who resisted same leading to the cancellation of that result by the 3rd Respondent. Again the Respondents in their various replies denied this allegation. The 5th Respondent denied that allegation of cancellation.
The 5th Respondent asserted that the result for Ward 9 was announced at the Ward 9 collation centre, Okpanam Town Hall and not Okpanam Police Station
The respective averments of the parties in their pleadings which were before the court raised the relevant issue as to where the collation centre for Ward 9 was located. This is necessary for determining which of the two centres contended by the parties was the authentic collation centre. In his written deposition which he adopted as his evidence before the tribunal, the Appellant stated in Paragraphs 10 – 15 as follows:
“(10) That the votes credited to the candidates from Ward 9 (Okpanam/Ugbolu) were not valid votes as the said result had been cancelled by the 3rd Respondent in view of the irregularities that tainted the result.
(11) That on the 14th April, 2007, I, other candidates together with our agents, the Divisional Police Officer, Muazu Mohammed of Akwukwu-Igbo Police Division, Electoral Officer/Returning Officer (the 3rd Respondent) assembled at the collation centre Akwukwu-Igbo for the collation of ward results.
(12) That the Divisional Police Officer oversaw the security of the elections in the local government and there was no breakdown of law and order.
(13) That at about 7.30pm, the 3rd Respondent brought out a result sheet purporting same to be Ward 9 Okpanam result in the absence of the Ward Returning Officer, Presiding Officers and INEC materials and this aroused our suspicion.
(14) That I and other candidates started making calls to our agents, ANPP candidate Joy Onyemeziem and her Chairman Joseph Awele Sawyer who were still at Okpanam Police Station to confirm if indeed the result sheet in possession of the 3rd Respondent was genuine.
(15) That they immediately replied that the said result should be disregarded as counting of votes was still going on at Okpanam Police Station a fact that was further confirmed on phone by the 3rd Respondent from his officials
on ground at the said Police Station.”
The Electoral Officer/Returning Officer for Oshimili North Constituency who testified in defence for the Respondents as DW1 in his deposition which he also’ adopted in evidence stated in Paragraphs 4, 5, 6, 7, 9 and 10 thus:
“(4) The Ward Collation Officers for Wards 1, 2, 3, 9 and 10 returned their Ward summary result sheets and the unit results on 14th April, 2007, while the Unit and Ward result sheets for Wards 5, 6, 7, and 8 were submitted to me by the Ward Collation Officers for those Wards on 15th April, 2007.
(5) The Collation Officer for Ward 9 came to submit her unit result sheets and Ward result to me at INEC local government office at Akwukwu-Igbo.
(6) On 14th of April, the Petitioner came with armed thugs to the INEC office in Akwukwu- Igbo and tried to force me to change the result submitted by the Ward 9 Collation Officer, but I refused to change the result in favour of the Petitioner as the unit result submitted were conclusive and I did not have lawful authority to change the result as he requested.
(7) The Petitioner and his over 100 thugs held me hostage and threatened me but I refused to cancel the results for Ward 9.
(9) That the Petitioner and his armed thugs confiscated from me and took away INEC form EC(8)B (i) summary of results from Polling Station Election to the House of Assembly Collation of Registration Area level where the results of Ward 9 were reflected.
(10) That the Petitioner and his thugs could not lay their hands on the unit results of Ward 9 as contained in form EC8C (i) summary of results from Registration Areas in Election to State House of Assembly.”
The effect of the foregoing averments and evidence was that while the Appellant contended that the result of the election in Ward 9 was cancelled, the Respondents maintained that it was not.
The tribunal considered and evaluated the evidence adduced on this point by the parties and arrived at its findings at pages 316 – 320 wherein it observed inter alia as follows:
“It is not in dispute that the result of the election held in Ward 9 was announced at the Local Government Collation Centre Akwukwu-Igbo by the 3rd Respondent who is alleged by the Petitioner to have cancelled the result of the said Ward. The PW2 admitted this much when he stated under cross examination by learned SAN that the 3rd Respondent announced the result of the election on 15/4/07.
These scores it should be noted correspond with those stated in Exhibit ‘4’ tendered by the Petitioner.” (Underlining supplied).
The tribunal also observed that:
“The Petitioner adduced evidence to the effect that counting of votes was carried out immediately after the election in Ward 9 Okpanam .was concluded at the Okpanam Police Station. It is the case of 1st – 4th Respondents who are the persons charged with the conduct of the election that the collation centre for Ward 9 Okpanam was Okpanam Town Hall.
Evidence was led by the Respondents that collation of results submitted by the Presiding Officers of the 11 Polling Units in Ward 9 Okpanam was done at the said Okpanam Town Hall and not at the Okpanam Police Station…”
After the foregoing observations, the tribunal then, went on to make the following findings on the point thus:
“The results from the Polling Units that were collated were tendered as Exhibits 6a – 6k. Aside from the fact that nothing has been placed before the tribunal to show the outcome of the counting of votes said to have been done at Okpanam Police Station and which in the view of the tribunal renders evidence in that vein hard to believe, it is to be appreciated that there is absolutely no evidence “adduced by the Petitioner controverting the averment of the 1st – 4th Respondents that Okpanam Town Hall was the Ward 9 Collation Centre and not the Okpanam Police Station.” (Underlining supplied).
The foregoing are clear ‘findings of the lower tribunal and unless it is shown to be perverse and did not flow from a proper evaluation of the evidence before the tribunal, this court cannot alter, tamper or intervene with the said findings. The Appellant has dwelt much and extensively on the evidence of PW5, the Police Officer for Okpanam Police Station to argue that the evidence which was to the effect that collation was at the Okpanam Police Station and that the result in Ward 9 was cancelled and therefore, ought to have been accepted being evidence of a disinterested witness. But the tribunal considered and evaluated the evidence of this witness at page 320 of the Record of Appeal as follows:
“The 5th PW in his evidence disclosed that he met the D.P.O., the Petitioner, 5th Respondent and so many others at the Local Government Collation Centre when he arrived there with INEC materials. It is no doubt clear from the evidence of the 5th PW that he never witnessed the flaunting of any document’ by the 3rd Respondent.’ It is however, puzzling that between the DPO and the 5th PW, the result that the 3rd Respondent allegedly flaunted could not be recovered;”
And then proceeded to make the finding at the same page of the records that:
“Indeed the allegation that imaginary figures were credited as votes of candidates in the election in Ward 9 Okpanam must take flight in the light of the inability of the Petitioner to adduce any compelling evidence showing directly or indirectly that the results in any or all of the Exhibits herein before mentioned are fabricated.”
The condition for the interference of the appellate courts in the evaluation of evidence and findings of fact of trial courts have been well laid out in a number of cases of the Supreme Court including ATOLAGBE V. SHORUN (1985)1 NWLR(Pt. 2) 360 which is that an appellate court will only interfere with such evaluation and finding if they are found to be perverse and mis-apprehensive to the facts in those evaluations and findings.
By Section 145 (1) (c) of the Electoral Act 2006, an election may be questioned on any of the following grounds, that is to say:- that the Respondent was not duly elected by majority of lawful votes cast at the election.
Therefore, when the electoral commission, in this case INEC, declares a result, there is,’ as argued by the Respondents’ counsel, a presumption of correctness in that declaration. Although such a declaration is not inviolate and inviolable, the onus is on a Petitioner who challenges the result as declared to rebut this presumption. Thus as was observed by Belgore JSC (as he then was) in BUHARI V. OBASANJO (2005) All FWLR (Pt. 273) Pg 1 at 124.
“Once the Electoral Commission announces the result of an election, it is presumed correct and authentic and the Petitioner who alleges the opposite must offer clear and positive proof that the result is incorrect and not authentic.”
In the instant case, the lower tribunal had held, upon a proper evaluation of the evidence before it and its finding thereon that the Appellant did not discharge this burden of establishing the incorrectness and unauthenticity of the result in Ward 9 in the election Into the Delta State House of Assembly for Oshimili North Constituency.
For the reasons I have given above, there is no basis or justification for this court to depart from that finding and overturn the decision of the tribunal based thereon. I, therefore, agree with the learned counsel for all the Respondents that the Appellant did not prove the allegations in his petition.
Accordingly, I answer the sole question in this appeal in the negative. All the Grounds of Appeal fail and the appeal is, therefore, dismissed.
The Judgment of the lower tribunal upholding the election of Patience Ajudua into the Delta State House of Assembly as member representing Oshimili North Constituency is hereby affirmed. I make no order as to costs.
AMINA A. AUGIE, J.C.A: I have read the lead Judgment delivered by my learned brother, Nwosu-Iheme, JCA, and I agree with his reasoning and conclusion.
As he pointed out, election results are presumed in law to be correct until the contrary is proved. It is, however, a rebuttable presumption. In other words, there is a rebuttable presumption that the result of any election declared by a retuning officer is correct and authentic and the burden is on the person who denies the correctness and authenticity of the return to rebut the presumption. See Buhari V. INEC (2008) 19 NWLR (Pt. 1120) 246 SC, where the Supreme Court per Tobi, JSC also held that:-
“A Petitioner who files a Petition under Section 145 (1) of the Electoral Act has the burden to prove the ground or grounds. This is because he is the party alleging the grounds and he has a duty to prove the affirmative. He is the party who will lose if no evidence is given on the grounds. If the Petitioner does not prove his case under Section 145 (1) of the Act, the action fails”.
In this case, the Appellant, who was the Petitioner at the Tribunal, alleged that the 5th Respondent did not score the majority of lawful votes cast at the election and should not have been declared winner by the 1st Respondent [INEC] thus, the burden was on him to prove exactly that, but he failed to discharge the burden that fell on him when he filed his Petition at the Tribunal.
The action therefore failed, and the Tribunal was right to so hold.
It is for this and the other reasons in the lead Judgment that I also dismiss the appeal. I also make no order as to costs.
ALI ABUBAKAR BABANDI GUMEL JCA: I agree. I have nothing more to add.
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Appearances
G.C. IGBOKWE, with him T.N. EMENIKEFor Appellant
AND
O.A. ADEYEMI
M.P. OHWOVORIOLE SAN, with him E.G. OHWOVORIOLEFor Respondent
