➥ CASE SUMMARY OF:
Dauda Ademola Lawal v. Sikiru Adebayo & Ors. (CA/I/EPT/LH/37/2008, 7th day of July, 2009)
by Branham Chima Esq.
➥ SUBJECT MATTER(S)
Election violence;
Evaluation of evidence;
➥ CASE FACT/HISTORY
This is an appeal against the judgment of the Governorship and Legislative Houses Election Petition Tribunal, sitting in Ibadan which was delivered on 6th day of March, 2008. The brief fact of the appeal is that the tribunal nullified the April, 14th 2007 House of Assembly Election for Lagelu Constituency, Oyo State and made an order that a fresh election be conducted into the same House of Assembly for the seat of Lagelu Constituency. The present Appellant was the candidate sponsored by his party, Peoples Democratic Party (PDP) and at the end of the aforesaid election on 14th April, 2007, the 2nd Respondent, namely INEC, declared him as the winner having scored 13,237 votes, and the present 1st Respondent, who contested as the sponsored candidate of All Nigeria People Party, (ANPP), scored 6,188 votes. The 1st Respondent, being dissatisfied with the result that, the present Appellant was the winner, filed an election Petition at the said lower Tribunal at Ibadan.
➥ ISSUE(S)
I. Whether the election was marred by corrupt practices perpetrated by the 1st Respondent/Appellant?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE ELECTION WAS MARRED BY CORRUPT PRACTICES AND VIOLENCE
‘the lower tribunal found in its judgment at page 367 – 373 of the record that there were irregularities and noncompliance of the Electoral Act, 2006 by over voting and lack of accreditation in the units complained and pleaded. But the lower tribunal also said that the criminal allegations of thuggery, brazen brigandage and threat and violence were not proved. The tribunal was of the view that criminal offence’s pleaded and proffered by the Petitioner’s witnesses were not proved beyond reasonable doubt. At pages 363 & 364 of the record, the tribunal in its judgment states as follows:-
” with respect to other allegations in its petition, most of which we have set out before to proof them, and from such allegations to have any effect in the election, there must be cogent and compelling evidence, linking the perpetrators of the offence with the respondent, generally it must be proved that the perpetrators were agents of and had express authorization of the 1st Respondent to carry out the acts constituting the misconduct. See FALAE VS. OBASANJO NO.2 (1999) 4 NWLR.
Here apart from PW1 and PW2, who mentioned the name of the 1st Respondent as being among thugs in Olorunde, all other witnesses mentioned separate and different persons whose relationship with the 1st Respondent was not established by evidence. Even if they alleged to be members of the same political party with the 1st Respondent the Court of Appeal said that it is not enough to hold that the 1st Respondent responsible for their misconduct again. See. FALAE VS. OBASANJO NO.2 (supra) ”
In my firm believe, the above decision of the lower tribunal was a serious omission on its part because, it did not consider the impact of the underlined statement on oaths of PWs which were admitted as exhibits and were further cross-examined before the trial court. It is no more in dispute that PW1 and PW2 clearly proved that 1st Respondent came along with his thugs and physically assaulted PW1 and PW2 and others by threat of life and body, with heavy arms like gun and other weapons. Not only that, the 1st Respondent personally directed how PW1 and PW2 were to be punished by beating and locking them in a class room.
In my view, the proof of criminal act on the 1st Respondent but now appellant had shifted to him to disprove. His statement on oath and his oral evidence was not enough. He merely denied it by saying that he contested the election on the platform of P.D.P. and he cast his vote at Ekerin Ijanram in ward 3 of Lagelu Local Government and remained in the village throughout the conduct of the election. The 1st Respondent’s weak evidence can not remove his criminal act in moving and directing his thugs by violence. Moreover, the totality of the evidence of all the Petitioners witnesses (Pws) is that the other criminal thugs who were directed were agents of the 1st Respondent. The names that were mentioned are Dr. Banji Laditi, Alhaji Decimal, Tola Ajayi, Lalioye Akinmoyede Azeez Ajayi, Kalil Solala. Femi Akintunde etc. All these thugs were referred to as agents of the 1st Respondent. Since the tribunal had the oral and documentary evidence, it is settled that where there is oral and documentary evidence, documentary evidence should be used as a hanger to assess oral testimony – see the decision of this court per Salami, JCA in JINADU VS. ESURONBI – ARO (2005) All FWLR (pt.251) 349, 382.
I am of the considered opinion that if the lower tribunal had properly adduced its mind to the documentary exhibits named by the Petitioners witnesses’ statements on oath which were lawfully tendered and adopted without any objection, it would not have fallen into the wrong conclusion that the allegation of criminal offence was not established beyond reasonable doubt. That wrong finding and conclusion is hereby set aside because the Tribunal was selective in accepting and rejecting the documentary and oral evidence of the Petitioner’s witnesses. The choice of selection is perverse. The Tribunal accepted only the evidence of the Petitioner, that, over-voting occurred in all the units listed as well as non-accreditation in the same units, and then used over-voting and non-accreditation as their basis on which they set aside the election. In my considered view, the proper order is to set aside the entire election in Lagelu Constituency of Oyo State House of Assembly based on section 145 (1) (b) (c) of Electoral Act, 2006.
The 2 grounds, namely:-
(b) That the election is invalidated by reason of corrupt practices or noncompliance with the provisions of Electoral Act, 2006.
(c) That the respondent (now appellant) was not elected by majority of lawful votes cast at the election.
This order is made pursuant to section 145 (i) (b) and (c) of the Electoral Act, 2006 and I so declare.’
‘There is no doubt in my considered view that, despite the victory of valid votes minus voided votes, the present appellant is still leading with a valid votes of 7,641 against the 1st Respondent’s valid votes of 6,188 votes, thus leading ahead with 1454 votes. In my considered view, the Tribunal’s erroneous calculation and nullified the entire election has not occasioned a miscarriage of Justice on the appellant. The main basis, was on the ground that the election was nullified for non-compliance by way of non accreditation and over-voting which amounted to colossal figure of 10,714 votes and that it amounted to substantial non compliance as petitioned by the then Petitioner, but now 1st Respondent.
At this stage, I have to re-iterate that, my finding is that, not only was the election marred by non-compliance by way of non accreditation and over-voting, but the entire election was marred by violence, brigandage and criminal acts which were committed by the present appellant and his agents. That acts of criminality was fully established by the 1st Respondent’s witnesses especially PW1 and PW2 whose evidence were not dislodged and they remained solid like Rock of Gibralter. The provisions of section 146 (1) of the Electoral Act, 2006 is not applicable to this appeal matter because the Tribunal had found that there was glaring fact that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act.]
.
.
.
✓ DECISION:
‘In the final analysis, the appeal has no merit and is hereby dismissed by me. Costs of N30,000.00 in favour of the 1st Respondent and against the Appellant. I order that the election is to be conducted timeously in accordance with the principles of the Electoral Act, 2006.’
➥ FURTHER DICTA:
⦿ EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE IS THE PRIMARY FUNCTION OF TRIAL COURT
It is the principle of appellate Courts that the evaluation of evidence and ascription of probative value are the primary functions of the trial court or the Tribunal as the case may be, who saw, heard and assessed the witnesses. No doubt, the role of the appellate court is limited where the parties’ complaints are questioning the evaluation of the trial court or Tribunal’s. Where however, the lower trial court failed to employ the advantage of its seeing, hearing and assessing the evidence of witnesses in its evaluation, the evidence led orally and by documentary evidence is there for the appellate court to evaluate and ascertain whether or not it can be relied upon. See MAIJAMA’A VS. THE STATE (1964) ALL NLR 205; AWUDU VS. DANIEL (2004) ALL FWLR (pt. 225) 10; NWACHUKWU VS. NWOSU (1990) 7 NWLR (pt. 162) 72. — I. Thomas JCA.
⦿ THE APPELLATE COURT IS NOT BOUND TO TAKE ALL ISSUES BEFORE IT CAN DETERMINE THE APPEAL
Moreover, it is settled principle of law that an appellate court is not bound or under a duty to take all issues formulated by the parties before it can determine the outcome of the appeal. See the cases of OKORO VS. THE STATE (1988) 12 SC 191, LEMOLE VS. THE REGISTERED TRUSTEES OF CHERUBIM & SERAPHIM CHURCH OF ZION (2003) 3 SCNJ 39; LATUNDE VS. BELLA LAFUFIN (1989) 5 SC 59 and the unreported decision of this court in CA/I/EPT/HA/30/2008 between AHMED SAKA VS. PELUMI ADEBOYE delivered on 1-06-2009. — I. Thomas JCA.
⦿ THE QUESTION IS WHETHER THE NONCOMPLIANCE AFFECTED THE ELECTION, AND NOT WHETHER IT HAPPENED IN SEVERAL LOCATION
The learned appellant’s counsel cited the authority in the case of Sorunke v. Odebunmi (1960) SCNLR 414 wherein Ademola CJF in delivering the lead judgment at page 419 said:
”It seems to me immaterial whether these irregularities (non-stamping of the ballot papers) took place in six stations or ninety-six stations. The only question is, did a majority of the electors who voted do so in favour of the petitioner (present respondent), and if so, was failure by him to secure a majority of valid votes due to non-compliance with the Regulations on the part of the electoral officer?. Clearly the answer is yes, and therefore the election is bad.”
The judgment of the learned trial judge in that case in declaring that the election was invalidated was affirmed by the apex court wherein the appeal against same was accordingly dismissed. It is pertinent to restate that their Lordships in that case were relating to the scope, nature and extent of non-compliance sufficient to substantially affect the result of an election. As a matter of fact and as rightly submitted by the learned counsel to the 1st respondent, the decision in that case serves a locus classicus on the issue to the effect that acts which may be regarded as sufficient to substantially affect the result of an election need not be widespread non-compliance. That it may be acts which occur only in one or few places, yet their effect are so significant to the overall result of the election between the two candidates. The idea is not the number of stations where, or how widespread the noncompliance has occurred which is relevant, rather, it is the effect of the non-compliance on the over-all result of the constituency involved. The said authority, although cited by the appellant, it does not however work in his favour in view of the concept in which it was considered by the apex court.
In applying the same principle, this court in Oputeh v. Ishida (1993) 3 NWLR(pt. 279) 34 per Abduilahi JCA(as he then was) now PCA had this to say:
“Substantially affecting the result of the election is not necessarily confined to widespread non-compliance, but can also effectively refer to a situation as in this case where it occurred in only one particular area, but the effect is so significant to the overall result of the election between the two candidates. The facts of this case can be favourably compared to the facts in the case of Sorunke v. Odebunmi (1960) SCNLR 414, where the petitioner successfully centred his complaints on six out of ninety-six polling stations and the court upheld the petition and invalidated the election due to non-compliance with the provisions of the regulations in question without petition.” — C. B. Ogunbiyi JCA.
⦿ WHERE COMPLAINT IS THAT APPEAL IS AGAINST THE WEIGHT OF EVIDENCE
For the determination on whether or not the judgment is against the weight of evidence, the apex court while laying down the principles upon which a Court of Appeal should act in such a situation observed as follows in the case of Lion Buildings Ltd. v. M.N. Shadipe (1976) 12 SC 135 at 152-153:
“When a judgment is appealed from as being against the weight of evidence, the appeal court must make up its own mind on the evidence, not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from over-ruling it, if, on full consideration, it comes to the conclusion that the judgment is wrong. If, however, the Appeal Court is in doubt, the appeal must be dismissed since the burden of proof is on the appellant.”
In arriving at the principles restated supra, salient elements, subject of consideration, and for which this court should be looking out for are as follows:
a) The evidence before the trial court;
b) Whether it accepted or rejected any evidence upon the correct perception;
c) Whether it correctly approached the assessment of the value on it;
d) Whether it used the imaginary scale of Justice to weigh the evidence on either side;
e) Whether it appreciated, upon the preponderance of evidence, on which side the scale weighed, having regard to the burden of proof.
These elemental necessities are well enunciated in the authorities of Daramola & ors v. Attorney General, Ondo State & ors (2000) FWLR(Pt.6) 997 at 1015 and Osolu v. Osolu (2003) FWLR (pt.172) 1777 at 1791.
It is also trite law that an appellate court will not ordinarily disturb the findings of fact made by the trial court unless the findings are shown to have breached a specific rule of law or the same either amounts to a miscarriage of Justice or where it is shown to be perverse. — C. B. Ogunbiyi JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Istifanus Thomas, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
N. O. O. Oke (SAN).
⦿ FOR THE RESPONDENT(S)
T. A. Abdul Wahab,
H. M. Awosemusin (Mrs.) Legal Officer, M.O. J. Oyo State.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
