➥ CASE SUMMARY OF:
Barr. Boloukuromo Ugo v. Bolobowei Indiamaowei & Ors. (1999) – CA/PH/EP/97/99
by Branham Chima.
➥ PARTIES:
⦿ APPELLANT
Barr. Boloukuromo Ugo
⦿ RESPONDENT
- Bolobowei Indiamaowei
- Independent National Electoral Commission (INEC)
- The resident electoral commissioner (INEC) Bayelsa State, Alhaji Suleiman Bawa
- The electoral officer Kolokuma/Opokuma local government area Mr. Eric Avenue
- The Constituency RETURNING OFFICER Kolokuma/Opokuma local government area constituency II, Dr. A.A. Wasini
- The ward collation officer for Sabagreia ward 9, Mr Abamologi Philip
- The ward colla tion officer for Okoloba ward 10, Mr. Frank Amoya
➥ COURT:
Court of Appeal – CA/PH/EP/97/99
➥ JUDGEMENT DELIVERED ON:
Tuesday, the 27th day of April, 1999
➥ THIS CASE IS AUTHORITY FOR:
⦿ RELEVANCY, ADMISSIBILITY, AND WEIGHT ARE IN SEPARATE DEPARTMENT IN THE LAW OF EVIDENCE
In the Law of Evidence, Relevancy, Admissibility of evidence, and weight to be attached to evidence, all these are each in a separate department. What value or weight to be attached to a piece of evidence, once it is admitted as evidence, is for the Jury, the judges of facts. And here in Nigeria, the trial judges sit in a dual capacity, qua Judges of law in matters of law and qua jury in matters of fact In my view, with due respect to the counsel, his criticism of the Tribunal is unwarrantable and so unjustified. It was for the Tribunal to accept or not to accept the evidence by the p.w.5. It was for it as well to ascribe weight or no weight to the exhibits. To be in the best position to reach a conclusion on the testimony of the p.w. 5 and the value to attach to the exhibits it adopted, in my view, the proper and right approach to reach its conclusion. — Nsofor, JCA.
⦿ WHEN PARTIES ARE NOT IN AGREEMENT, ISSUE IS JOINED
From the above it is clear that the parties are not agreed on what happened in ward 9, Sabagreia. They have therefore, joined issues on their pleadings. So, what is the legal evidence adduced on both sides in proof of the facts as each party asserted them? — Nsofor, JCA.
⦿ ROLES OF TRIAL COURT AND THAT OF COURT OF APPEAL
What was the Tribunal’s treatment of the witnesses and their evidence as placed before it? Before embarking on the exercise, I shall, firstly, remind myself of the role of this Court. Trial Courts, as their name suggests, try cases. To them belongs the reception of evidence. (Appellate Courts receive evidence only in exceptional cases and circumstances), the evaluation of such evidence, the issue of credibility or otherwise of witnesses adducing such evidence and the making of findings of fact based most times on the credibility of the witnesses – all these are matters peculiarly and comfortably in the exclusive province of the Court that sees, hears, matches and believes. See Chief Frank Ebba vs. Chief Wani Ogodo (1984) 4 S.C. 84 at Pp. 98/99; (1984) 1 SCNLR 372. It is quite a different matter when it is a matter of what inference or deduction to make from facts either as admitted or as found. In such a situation the Court of Appeal is in as a good a position as or even better than the trial court. See Benmax vs. Austin Motors (1955) A.C. 370 at p. 375. — Nsofor, JCA.
⦿ WITNESS CONTRADICTION – UNRELIABLE
Until now, I had always thought that if a party to a case was foolish enough to produce a witness who testified to the contrary of the pleadings had only himself to blame if the court or tribunal comments on the contradiction. A witness who would testify to the contrary of a point agreed on by all concerned is a most unreliable witness and the court is entitled to regard his evidence as a contradiction in the evidence of the party who called him. — Ikongbeh, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Nsofor, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Ongola T. Esq.
⦿ FOR THE RESPONDENT
Uwhubetine, T.E
➥ CASE FACT/HISTORY
On the 30th of January, 1999, elections were conducted into the Bayelsa State House of Assembly by Independent National Electoral Commission (INEC) a statutory body charged with conducting elections throughout the Federal Republic of Nigeria . The appellant (petitioner) contested the Bayelsa State House of Assembly elections for the Kolokuma/Opokuma Constituency II on the platform of All Peoples Party (APP). The 1st Respondent herein was also a candidate for the Kolokuma/Opokuma Constituency II at the said elections. He contested on the platform of Peoples Democratic Party (PDP).
The appellant (petitioner) had challenged the declaration and return of the 1st Respondent on the grounds as expressed in paragraph 20 of the petition, to wit:- “i. That the 1st Respondent did not obtain the majority of lawful votes cast at the House of Assembly elections of 30/1/99 for Kolga Constituency II. ii. That the petitioner was the candidate who obtained majority of the votes cast at the said elections”.
At the conclusion of all the available evidence – both oral and documentary and after receiving the final addresses by the counsel, the Tribunal reserved its judgment. In a reserved and considered judgment, on the 26th of March, 1999, the Tribunal dismissed the petition of the petitioner wholly and entirely. In reaching its conclusion, the Tribunal expressed itself, inter alia, thus:” Having regard to the totality of the evidence before the Tribunal we find that the result of the elections in question in wards 9 Sabagreia and 10 Kalama were duly declared and returned. We also find that results evidenced in Exhibits Q, Q.1, to Q,19 for Sabagreia and Exhibits P, P.1. to P.10 are authentic and genuine and rightly included in the over-all results for the Kolokuma/Opokuma L.G.A. Constituency II”.
So, the petitioner lost. The 1st respondent won. The petitioner was not satisfied with the loss.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
I. Whether the judgement of the tribunal is perverse?
RULING: IN RESPONDENT’S FAVOUR.
A. THE JUDGEMENT OF THE TRIBUNAL IS NOT PERVERSE
[‘Of the witnesses, this was what the Tribunal said about the D.w.2:- The witness remained consistent and unshaken while under cross examination. He impressed us as a witness of truth”. The Tribunal made an exhaustive review of all the evidence adduced before it. In the exercise of its prerogative to believe or disbelieve it expressed itself based on the evidence before it as follows at page 115 of the Record inter alias:- “The Tribunal will prefer the evidence of D.w.2 and D.w.3 and exhibits Q. Q1 to Q 19 as authentic results of the Ward 9 Sabagreia”. I have studied the Record of Appeal. I confess I have not successfully seen a justifiable excuse to disturb the above finding. It is not perverse. I shall proceed therefore to record my resolution of the issues formally. The issues ought to be resolved against the appellant and on that account in favour of the 1st Respondent. I do so hereby resolve them.’]
B. THE BURDEN OF PROOF WAS ON THE PETITIONER/APPELLANT TO PROVE THE ELECTORAL IRREGULARITY
[‘If I understand him, he is saying that because the 1st respondent has not “set out facts and figures clearly and distinctly disproving the claim of the petitioner” (whatever this may mean) the Tribunal should have allowed his petition, even if he failed to prove it. The respondents met, in their replies, every point he made in his petition, thus throwing the burden of proof on him. The Tribunal found, and with much justification, that he failed to discharge it.’]
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.
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✓ DECISION:
‘The appeal, therefore. fails. It is dismissed accordingly. There shall be costs against the appellant in favour of the 1st Respondent fixed at N3,000.00.’
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)