Ojo Samuel Olushola Vs W. J Falaiye (1961)

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BRETT, F.J

This is an appeal from the judgment of Thomas, J., in the High Court of the Western Region, dis-missing an election petition in which the appellant, Samuel Olushola Ojo, prayed for a determination that the election of the first respondent, W.J. Falaiye, to the House of Representatives as member for Ondo North East constituency on the 12th December, 1959, was void. The petition alleged a number of instances of corrupt practices or non-compliance with the Elec-tions (House of Representatives) Regulations, 1958, and the evidence called on behalf of the petitioner was designed to substantiate those allegations, but the Judge held that they were not proved and no objection to that finding has been argued in this Court.

After the close of the case for the petitioner one witness was called on behalf of the first respondent, and the first respondent gave evidence him-self, and was cross-examined by counsel for the petitioner. The concluding passage of his evidence under cross-examination reads as follows –

I am not a member of the Marketing Board. I was at one time, up to two years ago. I am not now a member of the Committee of any board. I was up to sometime last year. I remember receiving salary up to November but not in December. It was as a member of the Rubber Committee of the Western Region Development Corporation. I received £25 for November. I do not think that I signed a voucher in respect of the month of December.

No objection is recorded as having been taken to the questions which elicited this evidence and no special significance seems to have been attached to it at the time, but on the following day, after four more witnesses had been called for the first respondent, counsel for the petitioner submitted that membership of the committee referred to was a disqualification for election to the House of Representatives under s.10 (1) (d) of the Nigeria (Constitution) Order in Council, 1954, by regulation 30 (2) of the Federal Legislative Houses (Disputed Seats) Regulations, 1959, and inquire into the date on which the first respondent ceased to draw emoluments in respect of his membership of the committee. The application was opposed and further argument was adjourned. The Judge finally delivered a ruling in which he declined to accede to the petitioner’s application, holding if I understand his ruling correctly, that regulation 30 (2) of the Disputed Seats Regulations was not applicable in the circumstances.

In this Court, argument has centred on the meaning of regulation 30 as a whole. I do not find it easy to construe the regulation, or to reconcile the references to regulation 5 in the provisos to paragraph (1) with those in paragraph (2). Much might also be said about the meaning of such terms as “issues otherwise raised”, “facts and grounds”, or “determination of the petition”, but whatever meaning is attached to them I think an ambiguity re-mains, and without entering into a detailed analysis I would express the hope that an early opportunity may be found to clarify the position.

Regulation 30 follows exactly the wording of rule 22 of the Supreme Court (Election Petitions) Rules, 1951, and in order to resolve an ambiguity it might be legitimate for the Court to consider what the words meant in their original context, but we have not had the advantage of hearing argument as to the original meaning of the words, and I would not base my judgment on any view as to what that meaning was. On the interpretation most favourable to the appellant it is a matter for the discretion of the Court whether or not to inquire into any new issue. The discretion is one to be exercised judicially, not arbitrarily, and regard has no doubt to be paid to the interest of the public at large in seeing that disqualified persons are not elected to the House of Representatives. Nevertheless, the restrictions as to the persons who may present a petition in any particular constituency as well as the miles for pleadings make an election petition essentially a lis inter partes, and in the absence of fraud, surprise or other special circumstances – none of which is alleged here – it would be quite contrary to accepted practice to allow a petitioner who had closed his case to use answers elicited in cross-examination of the respondent as an excuse for calling additional evidence in support of an entirely fresh case or in rebuttal of evidence bearing on a matter which was never in issue.

I would therefore hold that even if regulation 30 (2) gave the Court a discretion in the matter insufficient grounds were shown for acceding to the petitioner’s application, and I would dismiss the appeal with costs assessed at 30 guineas.

UNSWORTH, FJ

I concur.

TAYLOR, FJ

I concur.

Other Citation: (1961) LCN/0915(SC)