IN THE AKWA IBOM STATE LOCAL GOVERNMENT ,"
ELECTION PETITION TRIBUNAL
HOLDEN AT UYO
ZONE: II
BEFORE:
ITA ASUQUO OTO ESQ CHAIRMAN
OKON ABANG ESQ MEMBER
ROY BASSEY UKOH ESQ MEMBER
GODWIN OKON EFFIONG ESQ MEMBER
BISHOP EFFIONG A. ESEDEKE MEMBER
ON THIS THURSDAY THE 2ND DAY OF OCTEBER, 2008

PETITION NO. AKLEPT/U2/4/2008
BETWEEN:
FRIDAY ETUK NDON - PETITIONER
AND
OTUEKONG OKON UMOH AKPAN
(A.K.A. OKON UDO UMOH-AKPAN)
PEOPLES' DEMOCRATIC PARTY (PDP)
AKWA IBOM STATE INDEPENDENT

RESPONDENTS

ELECTORAL COMMISSION (AKISIEC)
ELECTORAL OFFICER NSIT ATAI LGA
RE-TURNING OFFICER FOR WARD 6 NSIT
AT AI LGA DURING THE JUNE 7, 2008 WCAL GOVERNMENT ELECTIONS.

JUDGEMENT

The 2nd respondent called only one witness in his defence. He was Umo Williams who said he was the Administrative Secretary of 2nd Respondent. The relevant facts of his evidence were: - That he knew the petitioner and 1st respondent both of whom were members of 2nd respondent in Ward 6 Nsit Atai Local Government. That both the petitioner and 1st respondent took part in the Primaries of the 2nd respondent to select candidate for the Local Government election which was won by the 1st respondent who scored 930 votes as against petitioner's 25 votes. That since 1st respondent won the primaries the 2nd respondent submitted his name to the 3rd 'respondent for the election. That prior to the primaries the 2nd respondent had subjected all his aspirants to screening and the 1st respondent had submitted exhibits G, E, K, H, to 2nd respondent and the party in turn issued exhibit D.W.4 A to the 1st respondent. That the 2nd respondent found that the documents submitted by 1st respondent were genuine.
Under Cross Examination the witness stated as follows: That 1st respondent did not submit exhibit C to 2nd respondent. That he has been the Administrative Secretary of 2nd respondent since 1999 till date. That by virtue of his position he has always participated in his Party's Primaries he assigned Ward and Local Government Officers who conduct the primaries and report back to him who keeps record. That he would not know whether exhibit G was forged or real. He identified exhibit G as the nomination form submitted by the 1st respondent. He later stated that the actual nomination form filled and submitted to 2nd respondent was exhibit DW4A while exhibit G was a copy made therefrom. That 2nd respondent did not help 1st respondent to procure false and forged document. At the close of the evidence of DW4 trial was brought to an end.
At the close of trial Counsel were directed to file written addresses.
We have carefully gone through the evidence of all the witnesses in this petition as well as the written addresses and submissions made by learned counsel both in support and against the petition. From our own point of view there are three issues for determination in this petition namely:
(1) Whether the petitioner herein was validly nominated but unlawfully excluded from contesting the Local Government Election by the 2nd respondent herein.
(2) Whether the 1st respondent herein was not qualified to contest the Local Government Election having submitted fake and forged educational certificates for screening to contest the election.
(3) Whether the petitioner herein filed this petition out of time 161 allowed by law for the filing of election petition.
On issue 1 for determination, we start by stating that in line with Section 135 of the Evidence Act, the onus is on the petitioner to prove or convince the tribunal that he was validly nominated in the Peoples Democratic Party Primaries of 21st January, 2008 to contest as the Party's Councillorship Candidate for Eastern Nsit Ward 6, Nsit Atai Local Government in the Local Government Election held on the 7th day of June, 2008. To meet this legal requirement the petitioner who was the only witness for himself stated in his evidence that at the primaries he and the other candidates whose names are mentioned in exhibit A took part in the primaries and at the end he emerged a winner by scoring 1,669 votes and that although the 1st Respondent intended to take part in the primaries he did not do so. He also stated that the only instrument he has to prove his assertion is exhibit A. However, on looking at the exhibit A which is a photocopy, the document is said to have come from Peoples Democracy Party not the 2nd Respondent this petition. Although the petitioner claims that exhibit A was given to him the way it is by the 2nd respondent, this has been vehemently denied by the 2nd respondent. Petitioner's claim that he reported the misspelling of name on exhibit A to one Dominic Okon who was then the Legal Adviser to the 2nd respondent has also been denied by 2nd respondent which claim that Dominic Okon became Legal Adviser to the 2nd respondent months after the Primaries. We are also of the view that in view of the nature of the wrong that the petitioner claimed was done against him by the 2nd respondent the standard of proof required of him is on preponderance of evidence. See the case of Eruotor V. Ughumiakpor & Ors (1999)9 NWLR (pt619) 460 at461 ratio 1 in which the Court of Appeal held that "where an allegation in an election petition is simply that of some wrongdoing Its proof would be on preponderance of evidence. This is because allegation of wrong doing in an election petition is not tantamount to an allegation of criminality for the purpose of raising Its standard of proof to being beyond reasonable doubt".
The issue is based on the above authority: can one say that the petitioner has discharged the burden placed on him by law to prove that he was unlawfully excluded from contesting the election after winning the primaries by the 2nd respondent?
To decide this we have to consider the 2nd respondent's reply to the allegation. The 2nd respondent vehemently denied the allegation of the petitioner through the evidence of DW4 who stated categorically that the petitioner and 1st respondent both took part in the primaries that led to the election and it was won by 1st respondent who scored 930 votes to defeat the petitioner who scored 25 votes. As regard exhibit A this has also been denied by 2nd respondent which said the only document they issued out in respect of the 'primaries was exhibit J.
To deiced the issue as to who was validly nominated through the 2nd respondent's primaries of 21st January, 2008 to contest the election of 7th June, 2008 in Eastern Nsit Ward 6/ Nsit Atai Local Government the tribunal has to place the evidence of the petitioner and that of the 2nd respondent on imaginary scale of justice and decide who is telling the truth. To do this we have to consider exhibit A and J which are claimed to have emanated from the primaries, in line with the Authority or Atikpekpe v. Joe (1999) 6 NWLR (pt.607)428 at 433 ratio No 7 that requires that in the circumstance
Such as this the two documents would be compared to determine which one is genuine and which is falsified. In exhibit A, we notice that not only is it from People democracy Party, not 2nd respondent but it does not also have the party's logo which must be on every party's document.
It also carries a slogan “Power to the people”, which is not seen on exhibit J and other documents of the party tendered before us. On the other hand exhibit J has the name of 2nd respondent, the party logo and this document has been owned up by DW4 who is the Administrative Secretary of 2nd respondent. Moreover, exhibit 'A' has been denied severally by the 2nd respondent. So having thoroughly analysed the two documents we have no difficulty in coming to a conclusion that exhibit A is a falsified document meant to mislead and misguide this tribunal while exhibit J is the authentic result of the primaries of the 2nd respondent's primaries held on January 21, 2008. Exhibit A being the substratum of the petitioner's claim that he was validly nominated in the aforesaid primaries to represent Eastern Nsit ward 6, Nsit Atai Local Government, and. having been found to be a false document, his claim therefore fails and is hereby dismissed.
On issue two for determination, that is whether 1st Respondent was not qualified to contest the Local Government Election having submitted fake and forged educational Certificates for screening to contest the election. We state here that in line with Section 138 of the Evidence Act which states in sub-section (1), that "if' a commission of a crime by a party to any proceeding is directly in issue in any proceeding Civil or Criminal it must be proved beyond reasonable doubt”. The burden of proof placed on the petitioner is that he must prove the offence of submitting forged, fake and falsified documents against the 1st respondent beyond reasonable doubt, see Adeola V. Owoade (1999) 9 NWLR (pt. 617) 30 at 32 ratio 5.2nd and 3rd respondents we are not left in doubt that the evidence of the 1st respondent has met the 5 requirements stated in the case of Adekunle V. Adeleye (supra). On the other hand we find the evidence of the petitioner to be speculative, suspicious, frivolous and based on malice and prejudice and highly unreasonable.
We must also comment that the petitioner was highly economical with the truth and deliberately refused to disclose the source of his documents by making sure that the original of any of the documents he presented as exhibit was not produced in court. This left the Tribunal with a great doubt as to the authenticity of this evidence and it is a trite .aw that such doubt must be resolved in favour of the respondents.
It is therefore our judgment that the petitioner herein has failed woefully to prove that the 1St respondent did not qualified to contest the Local Government Election of in June, 2008 and that the educational qualifications with which he was nominated to contest for the election ere fake, forged and falsified. The prayer of the petitioner that the election of the 1st respondent as the elected councilor for Eastern Nsit ward 6 Nsit Atai Government Area is hereby refused and it fails.
On the 3rd issue for determination, that is whether the petitioner herein filed this petition out of the time allowed by law for filing of election Petition; this issue arose from (he pleading of the 1st respondent who also raised the same issue in his preliminary objection. In the course of trial, the 1st respondent, other witnesses for the 2nd to 5th respondents as well as the petitioners in answers put to him during Cross Examination have raised the issue of the petition being statute barred in that it was filed outside the period allowed by law to file Local Government Election Petition. The relevant law is Section 141 of the Electoral Act, 2006which provides:-
“An election petition under this Act shall be presented within 30 days from the date the result of the election is declared.
This petition was filed on the 81h day of July, 2008. We agree entirely with Mr. A. A. Asuquo, learned Counsel, for the 1st respondent in his written address that to determine this issue we must find out as a fact the exact date the election result was announced. It is the contention of the petitioner that .the result were not announced at the polling units or coalition centres immediately after the election on the 7th day of June 2008 but were announced over the radio on the 9th day of June 2008. On the other hand, DW3 who was the Returning Officer for the election in Ward 6 Nsit Atai said he announced the result on 7th day of June 2008. We must also say that in the course of our assignment in this tribunal some witnesses in other petitions have also mentioned 10th day of June 2008 as the date when the election result was announced. However, we can only, rely on the evidence before us in this particular case. We can only act within the law in this matter. It is our position that we have not been totally convinced without some degree of doubt as to when the election result of 7th June 2008 was announced. In the circumstance, we can only resolve the doubt in favour of the party who is said to have filed the petition out of time.
Assuming that the petition was filed on 8th day of June 2008 while the Election results was announced on 7th June 2008, by the authority of Iyirhearo V. Usoh (1999) 4 NWLR (pt.597) 41 at 45 ratio 8, the petitioner did not file out of time. In that case the Court held "Time begins to run on the day following the day of the happening of the event as the day of the happening of the event is excluded and if the last day of it falls on a holiday the day following the holiday becomes the last day by virtue of the provisions of section 15 (2) (a) & (b) of , the Interpretation Act Cap 192 of the Laws of the Federation 1990”.
Applying the above authority to the issue before us, we are of the view that, if the result was announced on 7th June, 2008 when the election took place, that Saturday was out and since the next day was a Sunday, a holiday in our country, going by the Interpretation Act, the 30 days within which the petitioner had to file his petition started to run from Monday 10th day of June, 2008 to 10th day of July, 2008.
In view of the following, it is our judgment that this petition is not statute barred as it was filed within 30 days period allowed for filing of Election Petition.
In summary and for the reasons stated earlier in this judgment this petition fails and is hereby dismissed with cost of Nl0,000.00 to each of the respondents.

DATED AT UYO THIS 2ND DAY OF OCTOBER, 2008

Singed:

ITA ASUQUO OTO ESQ. J.P
Chairman

Singed:
OKON ABANG ESQ.
ROY BASSEY UKOH ESQ.
Member

Singed:
GODWIN EFFIONG ESQ. BISHOP EFFIONG ESEDEKE
Member