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COURT OF APPEAL, JOS DIVISION
TUESDAY, 31ST MARCH, 1992
(1992) 3 NWLR (Pt. 231)
BEFORE THEIR LORDSHIPS
MAMMAN NASIR, P.C.A
SANI SALITH AIKAWA, J.C.A
UMARU ABDULLAHI, J.C.A.
ALOYSIUS IYORGYER KATSINA‑ALU, J.C.A.
GEORGE ADESOLA OGUNTADE, J. C. A.
REV. JOLLY T. NYAME
NATIONAL ELECTORAL COMMISSION TARABA STATE RESIDENT ELECTORAL COMMISSIONER/PROFESSOR PIUS SADA
Alhaji Olo – Ehizgie – for the 3rd and 4th respondents
ELECTION PETITION:‑ Allegation of false results ‑ Burden and standard of proof required ‑ On who lies
ELECTION PETITION:‑ Election result declared by Returning Officer ‑ Party challenging same ‑ Onus thereon ‑ Sections 115, 148 and 149 of Evidence Act considered.
PRACTICE AND PROCEDURE – APPEAL:‑ Findings of facts of trial court ‑ Attitude of appellate court thereto ‑ Where it may interfere.
PRACTICE AND PROCEDURE – COURT:‑ Evaluation of evidence ‑ Duty on trial court in respect thereof
PRACTICE AND PROCEDURE – EVIDENCE:‑ Evaluation of evidence ‑ Duty on trial court in respect thereof
PRACTICE AND PROCEDURE – EVIDENCE:‑ Proof ‑ Electoral offences ‑ Falsification of Election result ‑ Burden and standard of proof thereof‑ On whom lies..
PRACTICE AND PROCEDURE – EVIDENCE:‑ Proof‑ Unchallenged or uncontradicted evidence ‑ How treated.
PRACTICE AND PROCEDURE – EVIDENCE:‑ Evaluation of evidence ‑ Duty on trial court in respect thereof
NASIR, P.C.A. (Delivering the Leading Judgment):
As part of the Transition to Civil Rule programme elections were held throughout the Federation on the 14th December, 1991. This was done under the State Government (Basic Constitutional and Transition Provisions) Decree 1991(1991 No.50 hereinafter called Decree 50) for the elections of the Governors and members of the Houses of Assembly of the various States. In Taraba State the contest was between Dr. Ahmed Usman Jalingo of the National Republican Convention and Reverend Jolly T. Nyame of the Social Democratic Party. At the end of election Reverend Jolly T. Nyaine was successful and was so declared by the Resident Commissioner, Professor Pius Sada, acting for and on behalf of the National Electoral Commission.
Dr. Jalingo (hereinafter called the Appellant) being dissatisfied with the result and the declaration of Rev. Jolly T. Nyame as the successful candidate filed an election petition before the Governorship and Legislative Houses Election Tribunal for Taraba State (hereinafter called the Tribunal) established under section 88 of Decree 50. The Tribunal consisted of a chairman and four other members. Dr. Jalingo claimed against Rev. J. T. Nyame, the National Electoral Commission and the Resident Electoral Commissioner for the following Reliefs:
“(i) That the result declared by the third respondent and ratified by the second respondent for Wukari Local Government area of Taraba Sate is invalid, null and void.
(ii) That the election held to the office of the Governor of Taraba State in (a) Zing (b) Karim Lamido (c) Lau (d) Sardauna (e) Gashaka (f) Yorro and (g) Longa Local Government Area be declared invalid null and void
(iii) That the first respondent did not win by the majority of lawful votes cast at the said election in Taraba State
(iv) That the election of the first respondent as Governor of Taraba State is invalid null and void. That your petitioner be duly returned and or declared elected as Governor of Taraba State or
(v) That a bye election be ordered to the office of the Governor of Taraba State”.
The grounds upon which Dr. Jalingo relied in his petition (paragraph 7 of the Petition) may be summarised as follows:
(A) That the 1st Respondent was not duly elected by a majority of lawful votes at the said election in that
(i) no election was held at Wukari Local Government Area but nevertheless results were declared.
(ii) Originals of Form EC8A in a number of polling stations were not retained by the third respondent (the Resident Commissioner) and various votes were purportedly returned.
(iii) That there were at many poling stations return of 100% voting ting mostly in favour of the 1st Respondent.
(iv) That results in about 30 polling stations in Yokoko and Zing Wards were also falsified in favour of 1 St Respondent.
(v) Similarly results in Lamma, Karimu Lamido, Lau, Sardauna, Gashaka and Yorro were also falsified.
(B) That the election was not conducted in substantial compliance with the provisions of Decree No. 50 of 1991 and the non‑compliance was in favour of 1st Respondent.
All the parties to this petition called witnesses. At the end of the trial the Tribunal found in favour of Rev. Nyame and dismissed the petition. Dr. Jalingo (hereinfter called the Appellant) being dissatisfied with the decision appealed to this Court and joined Rev. J.T. Nyame (hereinafter called the 1st Respondent), the National Electoral Commission and the Resident Electoral Commissioner (hereinafter called the 2nd and 3rd Respondents respectively) as Respondents. The 1st, 2nd and 3rd respondents joined issues with the appellant in their respective Replies to the Petition.
Two main issues dominated the trial before the Tribunal. Firstly that there was no election held in Wukari Local Government Area and secondly that results from a number of places were falsified in favour of the 1st Respondent. At the end of the trial the Tribunal found in favour of the Respondent and dismissed the petition. Dr. Jalingo (the Appellant) being dissatisfied with the decision of the Tribunal has now appealed to this court.
The facts as stated by the appellant in his written Brief were that the 1st Respondent was not duly elected by a majority of lawful votes in that at the time of the election, 14th December, 1991, there was war raging throughout Wukari Local Government Area but the 2nd and 3rd Respondents purportedly alleged that the 1st Respondent scored a total of 149,201 votes while the Appellant scored 17,832 votes. It was further alleged that votes of the 1st Respondent were falsified in Zing, Karim Lamido, Lau, Sardauna, Gashaka and Yorro Local Government Areas. That the 4,474 lawful votes scored by the Appellant in Donga Local Government Area were not counted at all. There were other allegations of falsification of results.
In its findings of facts the Tribunal found, (See pages 19‑20 of the judgment) that on the issue of non‑election at Wukari Local Government Area, the facts were so overwhelming against the petitioner in that there were no independent witnesses in support that there was no election except in 26 polling units. That there was no proof of any way in the Wukari area as was being portrayed by the Appellant by use of newspaper reports in Exhibits H to H4. Further no citizen from Wukari or environs gave evider3ce to support the allegation that there were no elections on 14th December in the Wukari Local Government Area.
On other hand the Tribunal accepted the evidence of the Resident Electoral Commissioner who was in touch by radio telephone with his officers on the 14th December, 1991 during the election. There were also all the documents EC8A, EC8B and EC8C in support that the elections were held and the documents duly signed as required.
At the hearing of this Appeal the learned counsel for the Appellant, Mr. Magreola, referred us to his written Brief of argument which he adopted. He said that there were seven issues as at page 4 of his Brief and that he intended to argue all of them. In actual fact the only issues raised were 1 and 7. These read as follows: ‑
I think the best approach in dealing with these two issues is to state the approach, arguments and submission of the learned counsel for the Appellant. Learned counsel pointed out that the First Issue relates to his Grounds of Appeal Nos. A, B, E and J.
Learned counsel submitted that the Appellant and his witnesses, PW1 to PW7, PW12 and PWI6 gave “cogent, direct, positive and unequivocal evidence” at the Tribunal. In contrast to this he drew our attention to the Tribunal’s judgment on page 19 lines 24‑28 and page 20 lines I and 2. He concluded that the Tribunal wrongly rejected his witnesses on no other ground except that they were all members of his political party, N.R.C. Learned counsel further submitted that the three witnesses called by the 2nd and 3rd Respondents were not eye‑witnesses, as opposed to his own, and were unworthy of belief. He urged us to hold that the Tribunal was in error for disbelieving his witnesses. Learned counsel emphasised that it was trite law that a Court must act on the unchallenged and uncontradicted evidence of witnesses but he conceded that there was the evidence of DW 1, Mr. M.T.L. Bakoje, the Electoral Officer for Wukari. He asked us to ignore his evidence as he was not a Presiding Officer in any of the 458 Polling Stations in Wukari.
On the issue of the failure of witnesses to produce their voting cards he explained that this was because their homes were burnt.
In response to the above arguments learned counsel for the 1st respondent submitted that the main issue in this appeal was whether there was election in Wukari L.G.A. as found by the Tribunal. Learned counsel, Professor Kasunmu, S.A.N. submitted that the witnesses for the Appellant were not believed by the Tribunal for a number of reasons including the one that they were all members of the N.R.C. He referred us to pages 20‑22 of the judgment for, a more detailed consideration of the evidence by the Tribunal. He submitted that the witnesses of the Respondents were equally assessed and the Court finally believed the witnesses called by the Respondents. Learned counsel referred to Exhibits R, S and T in respect of the Forms EC8, EC8B and EC8C and pointed out that the Forms were signed properly including the Agents of the parties.
In addition to the submissions by Professor Kasunmu it was submitted to us by the learned counsel of the 2nd and 3rd Respondents that there were so many contradictions and inconsistencies in the evidence of the witnesses called by the Appellant.
I am in complete agreement with learned counsel for the Appellant that where there is unchallenged and uncontradicted evidence the court must act on such evidence except in such cases where the evidence is itself self defeating or unacceptable. In the present case we do not have such evidence which was not challenged or contradicted. It is not the number of witnesses that must decide the day. It is usually the quality of the evidence as given by witnesses the trial court considered worthy of belief. See generally such cases dealing with acceptance of unchallenged and uncontradicted evidence like Nigerian Maritime Services Ltd. v. Aihaji Bello Afolabi (1978)2 S.C. 79; 1. Omoreghe v. D.P. Lawani (1980)3 and 4 S.C. 108 and many others.
The Tribunal found that there was election in the Wukari L.G.A. after considering the evidence. This is a finding of fact based on the evidence available before the Tribunal. It was based on very sound reasoning, if! may say so. It started on page 20‑21 of the judgment that there was presumption under the Evidence Act in particular it considered the duty of the Electoral Commission to keep all the election document including EC8 Forms. This presumption under section 115 and section 148 stands, prima facie, in support of the fact that public documents are properly kept and produced and the results in an election as declared by the returning officer are correct. The burden is on the person who denies the correctness and authenticity of the return to rebut the presumption of regularity under sections 115, 148 and 149. Thus the Supreme Court held in Omoboriowo v. .Ajasin (1984) 1 SCNLR 108 at 122; (1984) NSCC 81 at 90:
“there is in law a rebuttable presumption that the result of any election declared by the returning officer is correct and authentic by virtue of sections 115, 148(c) and 149(I) of the Evidence Act and the burden is on the person who denies the correctness and authenticity of the return to rebut the presumption”. (per Bello JSC as he then was).
There is more in this case. The elementary issue of credibility of witnesses is involved. It is elementary in the sense that it is well settled law in this country that it is the responsibility of the trial Court or tribunal to see, hear arid assess each witness as to whether he should be believed or not. Where the trial Court has discharged this responsibility the Court of Appeal will not interfere with such findings unless they are shown to be perverse or unsupported by evidence: See Ogbechie v. Onochie (1988) 1 NWLR (Pt.70) 370 at 379 G. & H P.O Omoreghe v. Ehigiator Edo (1971) 1 All NLR 282 at 289. In the instant appeal there is no doubt that the Tribunal at the trial considered all the evidence, the inconsistencies, the relevancies and the weight to be given to each piece of evidence. lam satisfied with their findings of fact that election was held in the Wukari Local Government Area. Nothing has been advanced before us to make me think otherwise. This issue therefore fails.
In respect of Issue No.7 the main contention was that the Tribunal was wrong to allow itself to be swayed by Exhibit “V” which was a letter from one Ahmed Ajiya congratulating the 2nd Respondent for conducting election in Wukari L.G.A. It was strongly submitted that Ajiya had no authority of the N.R.C. This was replied by Prof. Kasunmu that this same person also signed Exhibit “T” i.e. EC8A Form on behalf of the Appellant. The fact that it was argued that he was removed as Secretary of the N.R.C. at the material time does not seem to be supported by the evidence of his activities. The main issue however was that this witness said there was election on 14th December, 1991 and also was a witness at the final collation centre. There is no challenge to all this evidence. I am of the opinion that the Tribunal was right to accept his evidence, among others, in proving that there was election in Wukari L.G.A. on 14th December, 1991. This issue also must be decided against the Appellant.
There is no other issue raised by learned counsel for the Appellant. I have myself gone through the other issues and I cannot see any one of them which could have helped the Appellant’s appeal. But! must mention the issue of falsification of results of the election in many polling areas. This allegation of fraud must be proved beyond reasonable doubt as clearly stated in many authorities decided by the Supreme Court. I need only refer to Nwobodo v. Onoh (1984) 1 SCNLR I; (1984) 1 S.c I at 58 and Omoboriowo v. Ajasin (1984) 1 SCNLR 108; (1984) 1 S.c. 206. In Nwobodo’s case Bello J.S.C. (as he then was) stated:‑
“To prove the falsity beyond reasonable doubt of the collated results of the deputy returning officer, a petitioner must not only prove the results collated by the assistant returning officers and the scores of each candidate at the polling booths which were the basis of the collation”
He continued to show that fraud must be proved beyond reasonable doubt. I agree and adopt the judgment in Nwobodo’s case. In the appeal in hand the Tribunal found that no such proof was available. I have considered the evidence myself and found no such proof of fraud has been satisfactorily or sufficiently given. This argument of the Appellant also fails.
In conclusion, I am of the firm opinion that this appeal lacks merit and cannot succeed. I hereby dismiss the appeal. I affirm the election held on 14th December, 1991 in respect of the Governorship election as valid. I affirm the decision of the Tribunal that Rev. Jolly T. Nyame was validly elected and is the person elected as the Governor of Taraba State.
I award costs of N500 for the 1St Respondent and costs of N500 for the other two Respondents jointly.
I have had the privilege of reading in advance the judgment written by the Hon. President of this Court. I entirely agree with his reasons and conclusion, I therefore dismiss this appeal and abide by the consequential orders in the lead judgment.
I had the benefit of reading in draft the judgment of Justice M. Nasir, C.O.N., President. I agree with the reasons given and the conclusion reached. I adopt them as mine. I agree that the appeal be dismissed. I abide by all the consequential orders made, including orders as to costs.
I have read in advance the judgment of my learned brother, M. Nasir, President, Court of Appeal. I entirely agree with the reasoning and conclusion. For the reasons he has given, I also dismiss the appeal with costs as ordered by him.
I agree with the lead judgment of my learned brother Nasir, President of the Court of Appeal. I would also dismiss the appeal with costs as ordered in the lead judgment.