Election petition appeals

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claim, the proper way to do so is not by filing an application to have the plaintiff’s

action dismissed in limine but to file a defence traversing that averment of fact and

establishing evidence at the trial on which the trial Court will make a finding of fact

either for or against the plaintiff on such averment of fact. ……….In the copious

affidavit evidence placed before the trial Court, effort was directed to showing the

contrary of the averment in the pleading of the plaintiff. In my respectful view the

way to do this is by traversing, in a statement of defence, such averments and not

come by way of application to dismiss in limine. ………. I have considered all the

grounds upon which the defendants sought in the Federal High Court to have plaintiff’s

action dismissed in limine; The use by the defendants of affidavit evidence to counter

or traverse matters of fact pleaded by the plaintiff is clearly not a correct practice or

procedure. In an application of the nature brought by the defendants, it must be

presumed that all the facts pleaded by the plaintiff are correct. Where the defendants

dispute any of such facts they must file a statement of defence and lead evidence at

the subsequent trial in support of their case.” See also Akinbi v. Military Governor,

Ondo State (1990) 3 N.W.L.R. (Pt.140) 525, at 531 & 532; Shell-BP Petroleum

Development Co. of Nigeria Ltd. & Ors. v. M.S. Onasanya (1976) 6 S.C. 89, 94;

Warri Refinery & Petrochemical Co. Ltd. & Anor v. Onwo (1999) 12 N.W.L.R.

(Pt. 630) 312 at 326.” Per Ikongbeh, J.C.A., in Goodhead v. Amachree (2004) 1

N.W.L.R. (Pt. 854) 352 at 376-377.

978. When a party can ask for abridgement of time or enlargement of time.

“With reference to paragraph 51 of the 1st Schedule to the Electoral Act, 2002,

learned counsel submitted that the caveat therein contained “regard being had to the

need for urgency on electoral matters” imposes a duty on the Court to abridge time.

Abridgement of time, as I understand the expression in our context, is the direct

opposite of enlargement of time. Time can be abridged within the time stipulated by

the rules for doing anything in the proceedings but a party who has run out of time

cannot ask that time be abridged for he is out of time. He can only ask for enlargement

of time.” Per Ngwuta, J.C.A., in Bounwe v. P.E.C. Delta State (2006) 1 N.W.L.R.

(Pt. 961) 286 at 311.

(60) ELECTION PETITION APPEALS

979. Attitude of an appellate Court to a defective brief.

“From the forgoing, respondent’s brief of argument is bad and defective, but it is,

despite the defect, still a brief. The Court is enjoined to do substantial justice and not

to deny the parties fair hearing of their appeal on technicality but on merit by still

considering the arguments raised in the bad and defective brief of the respondent.

Hamza Lawal & Anor. v. Kafaru Oke & 4 Ors. (2001) 7 N.W.L.R. (Pt. 711) page

88 at 10 C.A.” Per Onalaja. J.C.A., in Lawal v. Salami (2002) 2 N.W.L.R. (Pt.

752) 687 at 710

Election petition appeals Paras. 977-979

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980. Attitude of appellate Court to the evaluation of evidence by a trial Court.

“The decision of the Tribunal was based on the evidence of witnesses which were

called by the parties. The Tribunal expressed its impression on the quality of the

evidence of witnesses before exercising its discretion in the petition. The attitude of

the appellate Court where evaluation of evidence and findings of fact are based on

credibility of witnesses as it is in this case is that credibility of a witness is a matter

for a trial Court and not for an appellate Court. The witness is seen by a trial Court

where the appellate Court only reads evidence of the witness from the record and it

is not in a position to determine the credibility of the witness. Demeanor is one vital

area of credibility, and the only person who sees and watches the demeanor of the

witness is the trial Judge. It is within the exclusive role of the trial Judge to watch the

mannerism, habits and idiosyncrasies of the witness and attach probative value to

the evidence presented before him, Where a trial Court has failed to make findings

of fact on the case put before him by the respondent - it is not open to the Court of

Appeal which did not have the opportunity of observing the witnesses give evidence

to make important specific findings based on the credibility of witnesses. Sanni v.

Ademiluyi (2003) 3 N.W.L.R. (Pt. 807) 381; Iyanda v. Laniba II (2003) 8 N.W.L.R.

(Pt. 801) 267; Eya v. Qudus (2001) 15 N.W.L.R. (Pt. 737) 578; Guda v. Kitta

(1999) 12 N.W.L.R. (Pt. 629) 21; Wilson v. Oshin (2000) 9 N.W.L.R. (Pt. 673)

442. An appellate Court will not interfere with a finding of fact by a trial Court where

such finding is supported by the pleading and evidence adduced before the Court. It

will only interfere in exceptional circumstance where such findings are perverse, not

supported by evidence, or has occasioned a miscarriage of justice. Woluchem v.

Gudi (1981) 5 S.C. 291; Maja v. Stocco (1968) N.M.L.R. 372, (1968) 1 All N.L.R.

141; Fasikum II v. Oluronke II (1999) 2 N.W.L.R. (Pt. 589) 1. Per Adekeye,

J.C.A., in Ajadi v. Ajibola (2004) 16 N.W.L.R. (Pt. 898) 91 at 171 - 172.

981. Attitude of appellate Court to the exercise of discretion by trial Court.

(1) “The decision of the Tribunal was substantially based on the exercise of discretion

based and guided by the Electoral Act and the Manual for electoral officials. An

appellate Court will not interfere with the judgment unless the Tribunal has failed to

exercise its discretion judiciously or judicially or has exercised such discretion

frivolously or arbitrarily. Acme Builders Ltd. v. K.S.W.B. (1999) 2 N.W.L.R. (Pt.

590) 288; Chigbu v. Tonimas Nig. Ltd. (1999) 3 N.W.L.R. (Pt. 593) 115; Ngwu v.

Onuigbo (1999) 13 N.W.L.R. (Pt 636) 512; University of Lagos v. Olaniyan

(1985) 1 N.W.L.R. (Pt. l) 156. Going by the above principle this Court has no reason

to interfere with the decision of the lower Tribunal in this petition based on the

evidence of witnesses. Issues two and three are resolved in favour of the 1st

respondent.” Per Adekeye, J.C.A., in Ajadi v. Ajibola (2004) 16 N.W.L.R. (Pt.

898) 91 at 172.

Paras. 979-981