Alhaji (Chief) Ayotunde Seriki V. Sefiu Olukorede Are & Ors (1999)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A.

The amended election petition presented before the lower court by the petitioner/appellant (Alhaji (Chief) Ayotunde Seriki) against the first respondent/cross-appellant (Sefiu Olukorede Are) and the second to the fourth respondents was predicated on two grounds. The petitioner/appellant contested election for the Chairman of Epe Local Government Council, Lagos State on the 5th of December, 1998 on the platform of Alliance for Democracy (A.D.) against the first respondent/cross-appellant who vied for the said election on the ticket of All Peoples Party (A.P.P.). The conduct of the said local government elections was under the control, direction and supervision of the fourth respondent whose agents officers and/or servants, for the purpose of the said election were the second and third respondents.

The grounds on which the amended petition was founded are two; they are in the following terms less the particulars:-

1. The first respondent, Sefiu Olukorede Are, was not duly elected by a majority of lawful votes cast at the election.
2. The election was voided by corrupt practices, irregularities or offences against the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998.

The reliefs sought by the petitioner/appellant are as follows:-

(a) that the 1st respondent Sefiu Olukorede Are was not validly elected or returned as Chairman, Epe Local Government by majority of lawful votes cast and the Local Government Council Election for the Epe Local Government on 5th December, 1998

(b) that the petitioner herein Alhaji (Chief) Ayotunde Seriki was/is elected and ought to have been returned.

(e) That the petitioner herein Alhaji Chief Ayotunde Seriki is/was the winner of the Epe Local Government Chairmanship Election held on 5th December, 1998 having polled the majority of lawful votes cast at the said election.

(d) such further or other Orders as the honourable tribunal may deem fit to make in the circumstances.

Having filed and exchanged necessary processes, the petition proceeded to trial with both sides calling evidence at the end of which their different counsel addressed the lower court. In its considered judgment dated 5th of February 1999, after making a number or findings, the lower court concluded as follows:-

“We now resort to the provision of Section 85(1) and 87(1) of the Decree and conclude that the election was not conducted substantially in accordance with the principle of the Decree.

The election was so replete with bits and pieces of irregularities on both sides that the fairest order would be to declare the election void under paragraph 28 of the 5th Schedule. The election is hereby declared void.”

Dissatisfied with the said judgment, the petitioner/appellant filed on the 10th of February 1999, a notice or appeal dated 9th February, 1999 which contains four original grounds of appeal and they are as follows:

1. The Local Government Election Tribunal erred in law in failing to grant the prayers of the petitioner as contained in paragraph 53 A-C of the amended petition having found that the petitioner proved over-voting and anomalies in units 002 and 007 (Ward R1 Code 084) and units 018 and 031 (Ward C1 code 072) which showed that the petitioner won the election by majority of valid votes of 18,250 as against that of the 1st respondent’s 18,096 votes.
2. The Local Government Election Tribunal erred in law in declaring the election void when the petitioner proved that he scored the majority of valid votes cast at the election.
3. The Local Government Election Tribunal erred in law in voiding the election on the ground among others that the 1st respondent through DW4 Mr. Agbabiaka also proved over-voting and irregularities in some units in some wards in Epe Local Government in the said chairmanship election.
4. The judgment of the Local Government Election Tribunal is against the weight of evidence. The substratum of the complaint of the petitioner/appellant against the judgment is that the lower tribunal, ought to, on the face of the evidence before it, declare the petitioner the winner with majority of lawful votes instead of voiding the election as it did.

In a similar vein, the first respondent/cross-appellant who was equally dissatisfied, filed a process which he captioned “Notice of Appeal” but which for the purpose of clarity or avoiding confusion, I shall re-name “Notice of Cross-Appeal: it is dated 11th February, 1999 and filed on the same date. The cross/appeal is predicated on eight original grounds which less the particulars are set out hereunder:

1. The Local Government Elections Tribunal (hereinafter called “the Election Tribunal”) misdirected itself in law in failing to direct itself that it should answer, in the judgment the objections raised by the 1st respondent to the competence/defects of the two grounds or the petition before proceeding to treat the petition on the merits.

The Election Tribunal erred in law in not holding that ground 2 of the election petition was incompetent and should be struck-out.

3. The Election Tribunal erred in law and came to a wrong conclusion in not observing that the statement of facts pleaded in support of ground 1 of the petition was defective and/or insufficient in law to present even a prima facie case in proof of the ground.
4. After correctly holding that “In this petition the bone of contention could be reduced to two areas. That there were massive irregularities and over-voting in certain units which if they are computed and deducted could, have made the petitioner to score majority by (sic) lawful votes and would have been declared as the winner.”

The Election Tribunal erred in law and on the evidence in concluding that:-

“The doctrine of ex turpi causa-oritur non action ‘though a doctrine under the law of contract could also be employed in this situation where the parties are in pari delicto. ‘ In Jacobs Dashe v. Adamu Bawa (1989) 1 N.E.P.LR. 71 at 72 it was held that if the nature of non-compliance is such as to give an obvious advantage to one of the parties to the election, such non-compliance is substantial and unless there is evidence to the contrary, has affected the result of the election in favour of the party who enjoyed the advantage and against the party who suffered a disadvantage. We now resort to the provisions of sections 88(1) and 87(1) of the Decree and conclude that the election was not conducted substantially in accordance with the principle of the Decree.

The election was so replete with bits and pieces of irregularities on both sides that the fairest order would be to declare the election void under paragraph 28 of the 5th Schedule. The election is hereby declared void.”

5. The Election Tribunal erred in law and on the evidence in failing to properly evaluate the evidence adduced for the respondents in addition to that adduced for the petitioner vis-a-vis the pleadings before it, and consequently, came to a wrong decision.
6. The Election Tribunal misdirected itself in law and on the evidence in relying on the evidence of PW2, PW3, P’W4, PW5, PW6 and PW7 to hold that there were irregularities or non-compliance in the election conducted in the polling units complained of by the petitioner.
7. The judgment is against the weight of evidence.
8. The judgment of the Election Tribunal is wrong in law and on the evidence in that:-

The petitioner/appellant filed brief of argument and the 1st respondents brief of argument in reaction to the cross/appeal of the 1st respondent/appellant who in turn filed across/appellant’s brief of argument and an appellant’s reply brief of argument and 1st respondent’s brief to petitioner’s appellant’s brief. The second to the fourth respondents who did not cross-appeal filed a 2nd-4th respondents’ brief on the 4th of March, 1999.

Counsel for the appellant, the cross-appellant and 2nd – 4th respondents adopted the different briefs filed on behalf of their different clients. The petitioner/appellant raised four issues, following from his original grounds of appeal, in his brief of argument and they are as follows:-

1. Did {he petitioner/appellant not prove and was entitled to judgment upon the evidence before the lower tribunal on the ground that the petitioner won the election by a majority of valid/lawful votes?
2. Was the 1st respondent entitled to lead evidence of objections to votes,over-voting and gross misconduct of the election as pleaded in the whole of paragraph 21 of 1st respondent’s reply on pages 2728 of the record when he failed to file list of objections to the votes he was objecting to?
3. Did the 1st respondent plead, prove or lead any evidence of tabulation of what would have been the relative position of petitioner and 1st respondent’s votes to determine who scored majority of valid votes even if it can be said that he proved over-voting, irregularities or misconduct of the election to entitle 1st respondent to any judgment in his favour?
4. Whether the judgment of the lower tribunal is not against the weight of evidence.

Reacting to the appeal of the petitioner/appellant the 1st cross respondent/appellant also formulated four issues in the cross-appeal and they are as follows:-

1. Whether having regard to the evidence (in particular, results of polling units) before the Tribunal showing over-voting in certain polling units tendered for both the 1st respondent and the appellant, the Tribunal ought not to nullify all such results?
2. Whether after nullification of such results, the 1st respondent or the appellant won the election on the majority of valid votes?
3. Whether the decision voiding the whole election was not wrong in the circumstances?
4. Whether having regard to the pleadings and evidence and all the circumstances of the case return of the appellant as winner of the election ought not to stand?

The 2nd to 4th respondents did not file any reply brief to the brief of argument filed by the petitioner/appellant.

In his brief of argument, the 1st respondent/cross-appellant to back up his cross-appeal formulated three issues for determination and they are:-

1. Whether the Tribunal ought not to have struck out grounds 1 and 2 of the amended election petition without more in its judgment as being incompetent having regard to:

(i) the incompatibility of ground 2 with the prayers sought in the petition for the 1st respondent to be returned as having won the election by a majority of valid votes?

(ii) the legal insufficiency of the statement of facts stated in support of ground 11 to maintain the ground in any event?

2. Whether having regard to the pleadings of all the parties the prayers of the 1st respondent in the petition, the evidence adduced before it, the tribunal was entitled to declare as void the whole election?
3. Whether the election petition aught not to fail and the appellant’s election upheld as having won by a majority of valid votes, the election having been conducted in substantial compliance with the provisions of the Decree?

In their brief filed on 4/3/99 to the cross-appeal, the 2nd to 4th respondents adopted the issues for determination as contained in the brief of argument of the cross-appellant. They, however, raised three fresh issues for determination and they are thus:

1. whether the findings of the Tribunal are perverse considering the totality of documentary evidence before it, particularly with respect to the votes scored as shown on Exhibits A, A1, D and D2;
2. whether the petitioner/1st respondent has sufficiently discharged the onus of proof beyond reasonable doubt placed on him in all the units where allegation of incidence of over-voting which is criminal in nature were alleged;
3. whether non-compliance with the provision of the Decree No.36 of 1998 of any is of such a nature and extent that will vitiate the result of the entire Epe Local Government.

The briefs filed by the parties are, undoubtedly very comprehensive. As observed above, the bone of contention of the petitioner/appellant is that on the face of the evidence before the lower tribunal, the petitioner ought to have been declared the winner with majority of lawful votes instead of voiding the election as it (lower tribunal) did. On the other hand 1st respondent/cross-appellant is contending that the lower tribunal ought to have struck-out grounds 1 and 2 on which the petition stood for reasons of insufficiency of the statement of facts and incompatibility with the prayers sought in the petition, respectively.

I shall take the cross-appeal first. For if the issues raised therein succeed that will terminate this appeal. The prayer sought in the event of the issues succeeding is either a striking out or a dismissal of the entire petition, in limine. For a clear understanding of the points raised I shall again reproduce grounds 1 and 2; they are:

1. “The 1st respondent, Sefiu Olukorede Are, was not duly elected by a majority of valid votes cast at the election.”
2. The election was voided by corrupt practices or offences or noncompliance with the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998.

Of course, the prayers contained in the petition again are:

(a) That the 1st respondent, Sefiu Olukorede Are, was not validly elected or returned as Chairman, Epe Local Government by majority of lawful votes cast at the Local Government Council Election for Epe Local Government on 5th December, 1998.

(b) That the petitioner herein Alhaji (Chief) Ayotunde Seriki was/is elected and ought to have been returned.

(c) That the petitioner herein Alhaji Chief Ayotunde Seriki Are is/was the winner of the Epe Local Government Chairmanship Election held on 5th December, 1998 having polled the majority of lawful votes cast at the said election.

Learned counsel for the 1st respondent/cross-appellant, through the brief submitted that the invalid votes intended for deduction were not pleaded specifically. He urged that the ground should be struck-out praying in aid the decision in Ayua v. Adasu (1992) 3 NWLR (Pt. 231) 598, Again, he contended that voiding of the election was not part of the prayers before the lower tribunal and since a court does not make a practice of awarding what is not claimed, ground 2 must also be struck out and consequently, the entire petition should be dismissed: calling in aid the decision in Chief Ige v. Dr. Olunloyo (1984) 1 SCNLR 158.

To meet these arguments learned counsel for the petitioner/appellant, through the brief of argument contended that under the Decree, a tribunal was not obliged to limit its inquiries or even findings within the compartment of the issues put up by the parties to an election petition in their petition or reply placing reliance on the decision in Kanya v. Babura (1993) 3 NWLR (Pt. 280) 149. On ground two, learned counsel contended that once a petitioner prays a tribunal to determine or find that a candidate elected was not duly elected, he has, by so doing, invoked the jurisdiction of the tribunal to make a declaration voiding the entire election if there is evidence in support; calling in support the decision in Oluteh v. Ishida (1993) 3 NWLR (Pt.279) 34. Both counsel placed reliance on the relevant provisions of the Local Government (Basic Constitutional and Transitional Provisions) Decree No.36 of 1998.

Section 87(1) of the said Decree provides:

“Subject to sub-section (2) of this section, if the Election Tribunal determines that a candidate who was returned as elected was not validly elected all any ground the Election Tribunal shall nullify the election.”

87(2): provides

“If the Election Tribunal determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Election Tribunal shall declare as elected the candid me who scored the majority of valid votes cast at the election:’

In reaching its conclusion, the lower Tribunal relied on paragraph 28(1) of Schedule 5 to Decree No, 36 of 1998 which is in the following terms:-

“At the conclusion of the hearing the Election Tribunal shall determine whether a person whose election or return is complained of or any other person and what person, was validly returned or elected or whether the election was void, and shall certify the determination to the Electoral Commissioner or the Commission,”

I think the short answer to the question raised under the first issue of the 1st respondent/cross-appellant as to ground 1 finds expression in paragraph 15(3) of Schedules to the Decree which says that an Election Tribunal is not obliged to limit its inquiry or finding to the issues formulated by the parties in their pleadings, Interpreting the provision of paragraph 15(2) Schedule 4 of Decree 18 of (1992) which is ill pari materia with the provisions of paragraph 15(3) of Schedule 5 of Decree No. 36 of (1998) this court in Kanya v. Babura (1993) 3 NWLR (Pt. 280) 149 held at page 162.

“I think there is substance in the submissions of the learned counsel for the second and third respondents to the effect that should in case the tribunal acted on issue not strictly placed before it, the provisions of paragraph 15(2) ofSchedule4 of Decree 18 of 1992 made ample provisions for the tribunal not to confine or restrict its inquiry or findings to the issue raised by parties.”

Reinforcing this point of law is the case of Kangama v. NEC (1993) 3 NWLR (Pt. 284) 681. Again the combined effect of the provisions of section 87(1) and (2) of Decree No. 36 is that a Tribunal after perceiving and evaluating the totality of the evidence led before it can where the justice of the case demands it, make an order voiding an election notwithstanding that specific prayer for voiding was not before it, this was the view of this court in Oputeh v. Ishida (1993) 3 NWLR (Pt. 279) 34 put the judgment of Uwaifo JCA (as he then was) at page 54.

The effect of all I have said above is that the cross-petition of Sefiu Olukorede Are (the respondent/cross-appellant) on issues I and 2 he formulated must fail. Grounds 1 and 2 are on a firma terra.

As I have observed, the summation of the issues formulated by the appellant is that having regard to the pleadings and the evidence led the lower tribunal ought to have declared the appellant as validly elected and returned him as such. The remaining two issues set out by the cross/appellant are saying no more than that on he face of the pleadings and evidence adduced, the petition ought to have been dismissed by (he lower tribunal and the election of the cross/appellant as the chairman of the Council be upheld.

The evidence led points conclusively to the fact that there was over-voting and that both contestants benefited from the illegal votes although, in varying degree. The parties admit that much in their briefs and particulars of enrichment through over-voting are contained in the briefs. The lower tribunal found that there was over-voting. The petitioner/appellant in his brief is requesting this court to sift all the invalid votes credited to each of the contestants and by way of evaluation of the evidence led hold that he (petitioner/appellant) won the election. The cross/ appellant made similar submission in his brief of argument. Rigging or over-voting is a serious electoral malpractice. It is a most disgraceful and dishonest act that should be condemned in all its ramification, it is an illegal act. And no persons involved in any form of immoral or illegal act or transaction shall be allowed to come to court to seek a redress. No polluted hand shall touch the pure foundation of justice. See Canfaillia v. Chahin (1939) 5 WACA 104. One cannot have a right of action when one comes to a court of justice in such an unclean manner. Both parties have benefited from invalid votes, albeit, as i have said, in varying proportion. No one is ever allowed to take advantage of his own wrong doing; the Latin maxim is Nullus Commodum Capere Potest De Injuria Sua Propria. In Adedeji v. N.B.N. Ltd. (1989) 1 NWLR (Pt. 96) 212 the Court of Appeal per the judgment of Akpata JCA (as he then was) applied the maxim where at page 226 he quoted with approval the dictum of Widgery L.J, in Buswell v. Godwin (1971) 1 A.E.R. 421 thus:-

‘the proposition that a man will not be allowed to take advantage of his own wrong doing is no doubt a very salutary one and one which the court would wish to endorse”

Generally, the effect of illegality the likes of rigging or over-voting is to render the exercise wholly void and of no legal effect.

I agree with the lower tribunal, given the facts of this case, that the doctrine of “Ex Turpi Causa Non Orifur Actio” applies here: the parties are in pari delicto. And invoking its powers under paragraph 28 of the 5th Schedule of the Decree quoted supra the overall interest of justice which any adjudicating body must always seek (to do, demands that the election be declared void as the lower tribunal has done.

It is for all of the above that I have come to the irresistible conclusion that the appeal and the cross/appeal are lacking in merit. They (appeal and cross appeal) are therefore dismissed. There shall be no order as to costs.

---

Other Citations: (1999)LCN/0617(CA)