S. A. Yerokun Vs K. Adeleke (1960)

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BRETT, F.J 

This is an appeal from the decision of the High Court of the Western Region given on an election petition. The appellant, S.A. Yerokun, was the respondent in the court below, and the respondent in this court, Mr. Adeleke, was the petitioner in the court below. To avoid confusion they will be referred to throughout the judgment as Yerokun and Adeleke. At the election to the House of Representatives for Oyo Central Constituency held on the 12th December, 1959, Yerokun, having received the majority of votes, was declared elected.

The petition brought by Adeleke alleged that Yerokun was disqualified from nomination as a candidate on the ground that he held the office of Senior Assistant Registration Officer in charge of Oyo East Constituency, and that by reason of that fact Adeleke ought to have been returned. Irwin, Ag. C.J. found i[ proved that Yerokun held the office in question, and declared that Adeleke was duly elected.

The office of Assistant Registration Officer is created by Reg. 10(3) of the Elections (House of Representatives) Regulations, 1958 (hereinafter called “the Elections Regulations”) which provides that the Governor-General may appoint such Assistant Registration Officers in respect of any constituency as may seem necessary, and that subject to any direction of the Electoral Commission appointed in accordance with the provisions of the Nigeria (Electoral Provisions) Order in Council, 1958, an Assistant Registration Officer shall have all the powers and may perform any of the Elections of a Registration Officer appointed under reg. 10(1) of the Elections Regulations. Chief Rotimi Williams, who appeared for Adeleke, submitted that reg. 10(3) does not provide for the appointment of a Senior Assistant Registration Officer, and that Yerokun must be regarded as having been appointed under reg. 7(2), inserted by the Elections (House of Representatives) Amendment No.2) Regulations, 1958. We do not accept this submission, but we do accept Chief Rotimi Williams’ further submission that the office of Senior Assistant Registration Officer is an office in the public service of the Federation within the meaning of the Nigeria (Constitution) Orders in Council, 1954 to 1959 (hereinafter called the Constitution Order), and that in accordance with s.173(2) of the Constitution Order the Governor-General may lawfully delegate his power of making appointments to the office. In his reply Yerokun put Adeleke to proof of the allegation that he had been appointed Senior Assistant Registration Officer, and in an attempt to prove the fact, Adeleke called Mr. J.R.L.D. Brett, who said that he himself had been appointed Registration Officer for the Oyo East Constituency, and that he had appointed Yerokun as Senior Assistant Registration Officer.

By way of establishing his authority to do so, he referred to a delegation contained in Gazette (Government) Notice No. 2494, but the Gazette containing this notice was not formerly produced. No submission was made to the effect that there was no case to answer, and Yerokun himself gave evidence, in which he said that he acted as Senior Assistant Registration Officer in the months of February and March, 1959. This being the state of the evidence, Mr. Fani-Kayode, who appeared for Yerokun, submitted that it was not proved that Yerokun was regularly appointed, on the ground that the court could not take cognizance of any notice which appeared in a Gazette which was not produced, and that Mr. Brett’s evidence, by showing that it was he and not the Governor General who made the appointment, rebutted the presumption of due appointment which would otherwise have arisen under s.147(2) of the Evidence Ordinance from the fact that Yerokun acted in the office. We do not accept this submission. Mr. Brett’s evidence may fail to prove positively that the appointment was validly made, but the office being, as we have held, one to which the Governor-General could lawfully delegate his power of appointment, Mr. Brett’s evidence is in no way inconsistent with the presumption arising under the Evidence Ordinance, and since no evidence to rebut the presumption was given we consider that Irwin, Ag. C.J., was justified in accepting it as proved that Yerokun was validly appointed.

The question is, whether the appointment was still subsisting at the material date, but before coming to that question we find it necessary to consider what the material date was, and this involves the examination of certain provisions of the Constitution Order, the Elections Regulations and the Federal Legislative Houses (Disputed Seats) Regulations, 1959 (hereinafter called the Disputed Seats Regulations). The Elections Regulations were made under the Nigeria (Electoral Provisions) Order in Council, 1958, but this was revoked by the Nigeria (Constitution) Order in Council (Amendment No. 3) Order in Council, 1959, which also revoked and reenacted s.8 of the Constitution Order, and the Elections Regulations now have effect as if they had been made under s.8 of the Constitution Orders, as reenacted. The material empowering words are identical in the two. Orders; they empower the Governor-General to make provision by regulation for the disqualification of any person for membership of the House of Representatives by reason of his holding, or acting in any office the functions of which involve any responsibility for, or in connection with the compilation or revision of any electoral register. It is not in dispute that a Senior Assistant Registration Officer has functions which render him liable to disqualification under regulations made in exercise of this power, and it may be added that since remuneration is paid the office would appear to be an office of emolument under the Crown and to disqualify its holder from election to the House of Representatives under s.10(1)(d) of the Constitution Order.

The Elections Regulations contain two disqualifying provisions which have been discussed in argument before us, regs. 9 and 17. They read as follows:

s.9.    “Members of Commission and electoral officials ineligible for election.” A member of the Electoral Commission, and any other person who by reason of his holding or acting in any office has any responsibility for or any connection with the conduct of any election to the House of Representatives or any responsibility for or in connection with the compilation or revision of any electoral register for such purpose, shall be disqualified from membership of the House of Representatives and from nomination as a candidate therefore while he holds office as a member of such Commission or holds or acts in any such office.

s.17.  “Members of the House not to be appointed and officers ineligible for election.”

No member of the House of Representatives or of any House of Assembly or House of Chiefs in a Region or in the Southern Cameroons shall be appointed to carry out any duties under this Part and no officer appointed to carry out any duties under this Part shall be eligible for nomination as a candidate for election to the House of Representatives while such appointment continues.”

If regulation 9 applied to officers appointed under regulations 10 to 13, regulation 17 would appear to be an unnecessary repetition, but our decision in this appeal does not turn on the question and we are content for the present purpose to assume, without deciding, that both regulations apply. The disqualification imposed by reg. 17 clearly lasts only so long as the appointment from which it arises continues, but Chief Rotimi Williams has endeavoured to persuade us that under reg.9 this is not so in relation to the disqualification arising from the holding of or acting in an office other than that of a member of the Electoral Commission; the concluding words “any such office,” he says, refer only to the office of a member of the Commission. The wording of the regulation is perhaps inelegant, but we see no real ambiguity such as would justify us in adopting the meaning for which Chief Rotimi Williams contends, nor is there any patent absurdity or injustice in the ordinary meaning. We are therefore of the opinion that under either regulation the disqualification comes to an end when the person concerned ceases to hold or act in the office.

The regulations purport to disqualify a Registration Officer from nomination as a candidate for the House of Representatives. Apart from the question whether the Governor-General has power to impose this particular disqualification, Its special consequences, if any, are nowhere laid down. Reg. 48 of the Elections Regulations does not empower the Electoral Officer to hold a nomination paper invalid on the ground that the candidate is disqualified from nomination, and Reg. 6(1) (a) of the Disputed Seats Regulations enables an election to be questioned on the ground that a person whose election is questioned was, at the time of the election, not qualified, or was disqualified from being elected, not on the ground that he was disqualified from being nominated. Chief Rotimi Williams asks us to say that the nomination of a disqualified person is no nomination at all, and that where, as in the present case, there is only one other candidate, the court should declare that he was elected unopposed in accordance with reg. 53(2) of the Elections Regulations. This would involve interpreting the regulation as if, instead of reading “if … there is only one person whose name is validly nominated that person shall be declared elected” it reads “if … there is only one person whose name is validly nominated and who is not disqualified that person shall be declared elected” and it would be contrary to all the rules of statutory construction to do this.

A further answer to the submission is that in election petitions the courts are exercising a purely statutory jurisdiction, and that the court can give no effect to an objection which is not based on one of the grounds set out in reg. 6 of the Disputed Seats Regulations. We do not propose to express any view on whether it is within the powers of the Governor-General to declare that any person is disqualified from nomination. It will be enough to say that we regard it as clear that for the purpose of an election petition what is material is whether at the time of the election the person whose election is questioned was disqualified from being elected. We now come to consider whether Yerokun held the office of Senior Assistant Registration Officer on the 12th December, 1959. Mr. Brett not only gave oral evidence on the subject but also produced a copy of the letter opposing Yerokun. In his oral evidence he seems to have contradicted himself by implication. In cross-examination he said that the appointment was for a specific purpose and for “the period stated,” that is to say, for February and March, 1959, and that after March, 1959, Yerokun was no longer Senior Assistant Registration Officer, but in reply to the court he said that the duties of a Senior Assistant Registration Officer came to an end at least one month before the election took place. The letter of appointment, which is dated the 10th February, 1959, and appears to have followed a set form, states that Yerokun is appointed Senior Assistant Registration Officer “for the purpose of the forthcoming Federal registration of voter” (hereinafter called the First Registration), and goes

Other Citation: (1960) LCN/0860(SC)