Alhaji Waziri Ibrahim V. Alhaji Shehu Shagari & Ors (1983)
LawGlobal-Hub Lead Judgment Report
SOWEMIMO, J.S.C.
The petitioner/appellant is dissatisfied with the judgment of the Federal Court of Appeal, which confirmed the judgment of the Federal High Court and thereby dismissing his own appeal.
The petitioner in his petition set out various grounds of malpractices and corruption in the conduct of the presidential election. He also complained of alterations, amendments and obliterations made in at least 15 States’ election results. Unfortunately, the evidence he called in support, especially that of the 2nd, 15th and 16th witnesses disproved all these allegations.
Their evidence was believed by the trial court and confirmed by the Federal Court of Appeal. Of the other witnesses called by the petitioner, they were regarded as unreliable and therefore disbelieved by the trial court and again confirmed by the Federal Court of Appeal.
Faced with these concurrent findings, the learned counsel for the appellant was unable to urge any ground, legal or otherwise, why this Court should disturb the concurrent findings of fact.
Although evidence was called by the petitioner, that is, that of the 15th witness, who is the Chairman of FEDECO, and who said that the election was free and fair, and, that he scrupulously checked the returns and found them correct, the Federal High Court based its judgment on section 123 of the Electoral Act, that is, substantial compliance with electoral provisions.
The learned Senior Advocate for the first respondent and the Attorney General of the Federation for the second respondent have drawn our attention to all the above observations. It may be pointed out, as the learned Attorney-General has drawn our attention to section 164, subsection (1) of the Electoral Act 1982, the word “return” means “the declaration of the result of the election in accordance with the appropriate provisions of this Act and includes a certificate of return in Form EC.8 in the Schedule of this Act”, which is exhibit B in this appeal. No complaint has been established against. There does not appear to be any substance or merit in all the grounds of appeal argued on behalf of the petitioner. The appeal is hereby dismissed. The judgment of the Federal Court of Appeal is affirmed. Costs of N300 are hereby awarded to each respondent against the petitioner.
IRIKEFE, J.S.C. The appellant brought an election petition under the Electoral Act, 1982 against the respondents herein challenging the return of the first respondent in the presidential election held on 6th August, 1983 and seeking the nullification of the said return-and thus, the election of the said first respondent.
Two parties, namely (a) the Federal Electoral Commission and (b) the Inspector General of Police were made parties to the petition initially, but were later dismissed from the petition as having been improperly joined upon objection taken by counsel to the first and second respondents.
The petitioner/appellant in his amended petition at paragraph 10 thereof averred as follows:
“And your petitioner says that the presidential election held on the 6th August, 1983 in all the States of the Federation mentioned in paragraph 3 (9) above were grossly irregularly and improperly conducted which facts were revealed to me by several of the State Chairman and Gubernatorial candidates of the said G.N.P.P. and confirmed to your petitioner by the field agents based on the following categories of malpractices perpetrated by the third respondent in collusion with the fourth respondent and/or their agents: (a) that elections in the said States were conducted without the voters’ list (b) that people who were not registered were given the chance to vote whereas in some places of the aforementioned eight States under-aged children with fake voters’ cards were allowed to vote (c) that agents of the third respondent refused to supply sufficient number of copies of form EC8 to all polling stations in Kaduna and Niger States and to several polling stations in the other seven States (d) that the officials of the third respondent in collusion with agents of the fourth respondent refused to allow majority of polling agents appointed by me to represent me at polling booths in Niger, Kano, Kaduna, Plateau, Rivers, Borno and Gongola States”.
The above allegations, grave as they undoubtedly are, are such as may be made to question an election under section 122 (1) (b) of the Electoral Act, 1982. It reads
“that the election was invalid by reason of corrupt practices or noncompliance with the provisions of Part II of this Act.”
The appellant’s counsel, Mr. Fola Akinrinsola, admitted in the course of argument before us that his case rested on electoral malpractices and non-compliance with the provisions of Part II of the Electoral Act, which should result in the nullification of the election. The return in the case is exhibit B and the amended return which dealt with results from Gongola State wherein the votes scored by the presidential runner-up was enhanced is exhibit B 1. This enhancement or revision, which improved slightly on the performance of the appellant as I shall show presently, is relied upon as unauthorised interference to be treated as an electoral malpractice carrying with it the penalty of nullification.
As could be seen from exhibit B the first respondent scored a total of 12,047,648 votes nation-wide while the appellant did so with 640,928. After the revision the first respondent scored 12,081,471 nation-wide while the appellant did so with 643,805. It would be seen, therefore, that the appellant as stated above had slightly improved upon his performance nation-wide. The reason for the revision is stated in the evidence of the FEDECO Chairman (the 15th witness) and there appears to be no controversy on this testimony. Again, while the first respondent scored 384,978 or 48.60% of the total votes cast in Borno State, the home state of the appellant, as per the revised result, the appellant only made 179,265 or 24.96% of the total votes.
The framers of our 1979 constitution in the fullness of their wisdom deliberately entrenched therein a provision which would put behind the reach for all time, the highest executive office in the land, to wit: the presidency, or any aspiring politician of a recognised political party whose political support, as in the case of the appellant here, does not spill over to other states so as to ensure a vote-spread of 25% in at least 13 states. The appellant even failed, albeit marginally, to attain this spread in his home state. He did not make it in any other state either.
One strange aspect of this case is that apart from the ipse dixit of the appellant, and this did not amount to much by way of admissible credible evidence, the totality of the evidence relied upon in proof of the serious allegations carried earlier in this judgment is the testimony of: P.W.2 GAMBO GUBIO, the Executive Secretary of FEDECO and the Chief Federal Electoral Officer of the Federation who is the second respondent, P.W.15-HON. JUSTICE VICTOR OVIE-WHISKEY-The Chairman of FEDECO and P.W.16-MORRIS ASUQUO NYA, the Returning Officer of the Federation who actually declared the first respondent as duly elected in the election the subject of this petition. As would be expected in such a situation, these witnesses as it were helped the petitioner to disprove all the allegations he had sought to rely upon. In other words the petitioner with his eyes wide open pulled down brick by brick, the edifice he had erected. The result of this poor strategy was that the Federal High Court had no difficulty in arriving at the conclusion, which it did, that this petition had not been proved-and in dismissing it. Thereafter the aggrieved petitioner took his case to the Court of Appeal where he fared no better.
In the appeal to this court, the appellant is faced with two concurrent findings of fact against him and the attitude of this court when such a situation arises may be found in our decisions in LAMAI v. CHIEF ORBIH (1980) 5-7 SC p.28 and MOGO CHIKWENDU v. MBAMALI (1980) 3-4 SC p.31. This court would always be loathe to disturb two concurrent findings of fact against an appellant. No new issue was raised on behalf of the appellant to warrant such a disturbance.
It is not disputed that only one return is contemplated within the intendment of section 71 of the Electoral Act, 1982 and that exhibit B in this case, is such a return. A return to an election will not be voided if it appears to any court hearing the petition that challenges the return that there was substantial compliance with the provisions of Part II of the Electoral Act. (See section 123 (1) of the Electoral Act.) This is that part of the Act relied upon by the appellant and which deals with electoral malpractices. The word used in the section is substantial, which does not carry the same clout as absolute compliance. It is significant, however, that the witness called by the appellant put at rest any lingering doubts that one might have had by stating under oath that in so far as this election was concerned, the provisions of the Act were scrupulously complied with. With the foregoing record of performance, it does not seem to me to lie in the mouth of the appellant to shout “FOUL” against the first respondent. While it may be conceded that the appellant was entitled to have his day in court, a clear vindication of the resilience of our democratic institutions, the judiciary inclusive, the evidence available to him was palpably unreliable as to reduce the proceedings to a farce.
This appeal is clearly unmeritorious and I would dismiss it. Appeal dismissed and the decisions and orders of the two lower courts are affirmed, I would also adopt the order as to costs made in the judgment of my learned brother, SOWEMIMO, J.S.C.
BELLO, J.S.C. The appellant was an unsuccessful candidate for the election to the office of the President of the Federal Republic of Nigeria held on 6th August 1983 at which the first respondent Alhaji Shehu Shagari, was returned as having been duly elected to the office in accordance with the provisions of section 126 (2) of the Constitution of the Federal Republic of Nigeria 1979 in that he had a majority of the votes cast at the election and he had not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the states in the Federation.
The appellant presented a petition in the Federal High Court complaining about the election and the return. The substance of his complaints averred in the amended petition is that in Borno, Gongola, Kano, Kaduna, Benue, Plateau, Niger, Cross River, River and Imo States the election was conducted without the voters register; that some registered voters were not allowed to vote while people who had not been registered were allowed to do so; that under-aged children with fake voters’ cards were allowed to vote; that the officials of the Federal Electoral Commission in collusion with the police prevented the polling agents appointed by the appellants from performing their duties at the polling booths and at the counting centres; that in many polling stations no votes had been cast but that the results were declared in favour of the first respondent; that ballot boxes were illegally stuffed with ballot papers and that there was widespread rigging and blatant electoral malpractices in the conduct of the elections; that statements of results and returns on Form EC8 and other forms were fraudulently prepared and mutilated by the agents of second respondent, the Chief Federal Electoral Officer of the Federation and the Federal Electoral Commission.
On account of the aforementioned alleged irregularities and malpractices, the appellant prayed the Federal High Court to invalidate the election of the first respondent by reason of non-compliance with the provisions of Part II of the Electoral Act 1982 and to order the second respondent and the Federal Electoral Commission to hold a fresh presidential election throughout the Federation.
At the hearing of the petition, 23 witnesses including the appellant testified for the appellant. In its well-considered judgment, the trial court rejected the evidence of all the witnesses other than four whom it believed as reliable witnesses. The evidence of the three reliable witnesses, namely Alhaji Gambo Gubio the Executive Secretary of the Federal Electoral Commission (PW2), Justice Ovie-Whiskey the Chairman of the Federal Electoral Commission (PWI5) and Mr. Asuquo Nya the Returning Officer for the Federation (PW16), did not assist the petitioner at all. Instead of proving his case, their evidence disproved all the allegations contained in the petition and completely demolished the very basis of the petition. The totality of their evidence is that none of the serious irregularities and malpractices complained of ever took place in the conduct of the election; that all the election returns from all the states of the Federation from which the result of the poll was collated by the Returning Officer for the Federation in exhibit B were authentic; that the election was conducted scrupulously in accordance with the provisions of the Electoral Act and the Constitution and that it was free and fair.
Mohammed Kuru Goni (PW 21) was the fourth reliable witness who testified that he was the Presiding Officer at the polling station BO/15/5/E in Maiduguri, Borno State and when he delivered the result, which was 81 votes for the G.N.P.P. the political party of the appellant and 62 voters to the N.P.N. the political party of the first respondent, to the Electoral Officer at the collation centre the officer asked him to falsify the result by adding figure 1 in the N.P.N. result to read 162 votes. The witness said when he refused to do so, the officer ordered a police man to beat him out of the centre. The witness left the result with the Returning Officer and ran away. The trial court found that there is no evidence that the result in question was in fact falsified and it further held that, even if the said result had been falsified, it would not affect the validity of the election since the first respondent had scored 12,047,648 votes while the petition had only 640,928 votes when the result of the poll was declared.
Upon the preponderance of the foregoing evidence, particularly coming from the lips of the petitioners’ witnesses, the trial court had no alternative other than to dismiss the petition. It would not surprise any reasonable tribunal that the Federal Court of Appeal also dismissed the petitioner’s appeal to that court.
Although 7 grounds of appeal were strenuously canvassed in his brief and oral argument before us, it appears to me there is no serious issue on any question of law for determination in this appeal. An election may be invalidated upon the grounds specified by sections 122 and 123 of the Electoral Act 1982, which provides:
“122 (1) An election may be questioned on any of the following grounds that is to say-
(a) that a perfson whose election is questioned was, at the time of the election, not qualified to be elected;
(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of Part II of this Act;
(c) that the respondent was, at the time of the election, not duly elected by majority of lawful votes at the election;
(d) that the petitioner was vailidy nominated but was unlawfully excluded from the election.
(2) An act or omission which is contrary to any instruction or direction of the Commission or any officer appointed for the purpose of the election, but which is not contrary to Part II of this Act shall not of itself be a ground upon which an election may be questioned.
123 (1) An election shall not be invalidated by reason of non-compliance with Part II of this Act if it appears to the court having cognisance of the question that the election was conducted substantially in accordance with the provisions of the said Part II and that the non-compliance did not affect the result of the election.”
In his petition, the appellant questioned the election on the ground of the second limb of section 122 (1) (b) i.e. alleging non-compliance with the provisions of Part II of the Act and also on the ground of section 122 (1) (c) alleging that the first respondent was not duly elected by majority of lawful votes at the election. The petitioner’s witnesses not only failed to prove his case but the three witnesses, namely PW2, PW15 and PW16 proved the contrary. Their evidence established that the election had been conducted in scrupulous compliance with the Act and that the first respondent was duly elected by majority of lawful votes at the election.
That being the case, I consider the question, which learned counsel for the appellant has urged us to decide as to whether in an election petition the law requires allegation of facts amounting to criminal offences to be proved beyond reasonable doubt in accordance with the provisions of section 137 (1) of the Evidence Act or to be proved within the balance of probability does not arise. Furthermore, I consider irrelevant the decision in Okunola v. Ogundiran (1961) All NLR 394 upon which learned counsel heavily relied on the alleged alteration of the election return. In that case after one candidate had been declared successful at the election, the returning officer realised that he had made an arithmetical mistake, which he corrected in the return and declared another candidate as the winner. The court held that under the law that governed that particular election the returning officer, having declared the first candidate as duly elected, had no power to amend the return and declare the second candidate as the winner on the ground the power to do so was vested in the court. The court then exercised its power in favour of the second candidate. In the case in hand the returning officer for the Federation did not alter the result of the poll, exhibit B, and did not declare two candidates as having been duly elected. The amendment of exhibit B made by the Chairman of the Federal Electoral Commission (PW 15), exhibit B 1, did not affect the result of the election and no other candidate than the first respondent was declared as having been duly elected on account of the amendment which was caused by the late arrival of returns from some constituencies in Gongola State.
All the other grounds of appeal canvassed are devoid of merit. I agree the appeal should be dismissed with costs as awarded by Sowemimo, J.S.C.
OBASEKI, J.S.C. The appelant, Alhaji Waziri Ibrahim, was a candidate for election to the office of President of the Federal Republic of Nigeria held on the 6th day of August, 1983. He was not the only candidate but one of the 6 candidates that ran for the election. He was sponsored by the Great Nigeria Peoples’ Party (G.N.P.P.) an association registered as a political party under the provisions of the section 79 of the Electoral Act 1982. The other candidates were:
(1) Alhani Shehu Shagari sponsored by the National Party of Nigeria (N.P.N.).
(2) Chief Obafemi Awolowo sponsored by the Unity Party of Nigeria (U.P.N.).
(3) Dr. Nnamdi Azikiwe sponsored by the Nigeria People’s Party (N.P.P.).
(4) Alhaji Hassan Yusuf sponsored by the Peoples’ Redemption Party (P.R.P.).
(5) Mr. Tunji Braithwaite sponsored by the Nigeria Advance. Party (N.A.P.).
The election was conducted and supervised by the Federal Electoral Commission of which Alhaji Gambo Gubio is the Executive Secretary. Alhaji Gambo Gubio is also the Chief Electoral Officer of the Federation and the second respondent in this appeal. He was also the Chief Returning Officer at the presidential election on the 6th of August, 1983 who returned the first respondent as duly elected to the office of President of the Federal Republic of Nigeria. Following the declaration of the result of the election, i.e. by reading aloud the completed certificate of return, the appellant filed his petition in the Federal High Court, Lagos challenging the return and complaining generally about the conduct of the election throughout the 19 States. This is more particularly highlighted in paragraph 3 of the amended petition as follows:
“And your Petitioner states that the presidential election held on the 6th of August, 1983 in Kaduna, Ondo, Ogun, Oyo, Lagos, Bendel, Sokoto, Anambra, Borno, Benue, Kano, Gongola, Bauchi, Kwara, Plateau, Niger, Rivers, Cross River and Imo States (hereinafter referred to as “all the states of the Federation”) are irregular, unconstitutional, invalid and void on the grounds:
(1) That the election was avoided by reason of substantial irregularities and corrupt practices and the failure to comply substantially with the provisions of Part II of the Electoral Act 1982 particulars of which are enumerated in the facts contained in this petition,
(b) That the first respondent was not duly elected or returned by the lawful votes cast in Kaduna, Benue, Kano, Borno, Gongola, Lagos, Pateau, Niger, Rivers, Cross River, Imo, Ogun, Oyo, Ondo, Bendel, Bauchi, Sokoto, Anambra and Kwara States in that the majority of the votes cast to elect or return the first respondent were unlawful.
(c) That voting was suspended in Zaria, Kaduna State, Calabar and Eket in Cross River State for several hours and a day respectively and very many registered voters who had come in the interval to cast their votes could not do so and they had to return to their distant and scattered homes in the rural areas and creeks.
(d) That the third respondent amended the presidential election return in respect of Gongola State without an order of court.” Paragraph 23 contains further material allegations and reads:
“And your petitioner says that part of the irregularities and malpractices that were executed by the respondents particularly the third and fourth respondents in all the States of the Federation include the following amongst others:
(a) In many polling stations voting did not commence until 4.00 p.m. on 6th August, 1983 so that many voters of the G.N.P.P. who held cards did not find their names on the lists available in most of the stations;
(b) polling officers were no where to be found;
(c) polling agents of the G.N.P.P. who made themselves available at the respective stations were cleared out with horsewhips with the connivance of the agents of the third and fourth respondents;
(d) in several rural areas of Cross River, Borno and Gongola States, the returning officers influenced voters against the said G.N.P.P.;
(e) ballot papers were tampered with;
(f) statement of result and schedule of total valid votes account forms EC8, and other forms of the third respondents were fraudulently prepared, irregular and sometimes unsigned and invariably manipulated by the agents of the second and third respondents to the disadvantage and loss of your petitioner. These documents and other related documents are hereby pleaded especially those used in numerous polling booths in many parts of Borno, Gongola and other States of the Federation;
(g) illegal alteration and amendment of results declared by the second and third respondents without an order of court which gives credence to a fact of malpractice and irregularity.”
Paragraph 24 which alleges non-performance against the Federal Electoral Commission reads:
“And your petitioner says that the third respondent failed generally to perform the duties imposed on it by law and in particular did not, as it was bound to do, make necessary arrangement to ensure that voters were able to cast their votes or that the said presidential election was free and fair.”
Paragraph 27, which made a serious allegation against second respondent reads:
“And your petitioner says that the result of the presidential election of the 6th of August, 1983 as certified by the third respondent and announced by the returning officer and/or the second respondent were falsified or manipulated by the second and third respondents or their agents, servants or privies in various areas within each of the nineteen states of the Federation.”
The appellant concluded his petition with 4 prayers that
(1) it may be determined that the said Alhaji Shehu Shagari was not duly returned in Kaduna, Benue, Kano, Borno, Gongola, Lagos, Plateau, Niger, Rivers, Cross River, Imo, Ogun, Oyo, Ondo, Bendel, Bauchi, Sokoto, Anambra and Kwara States and that his return was void; and
(ii) that it may be determined that the election of the 1st respondent, Alhaji Shehu Shagari was invalid by reason of non-compliance with the provisions of Part II of the Electoral Act 1982 and was not duly elected by a majority of lawful votes cast in all the states in the Federation in accordance with section 126 of the Constitution of the Federal Republic of Nigeria 1979;
(iii) that the second and third respondents be ordered to arrange for a fresh presidential election to be held in Kaduna, Benue, Kano, Borno, Gongola, Lagos, Plateau, Niger, Rivers, Cross River, Imo, Ogun, Oyo, Ondo, Bendel, Bauchi, Sokoto, Anambra and Kwara States in accordance with the provisions of the Electoral Act 1982 and the Third Schedule Part 1 (c) of the Constitution of the Federation Republic of Nigeria 1979;
(iv) that it may be determined that the second respondent is not entitled to declare a presidential candidate as being duly elected unless in accordance and/or compliance with section 70 and 71 of the Electoral Act 1982.
In the petition as filed, the Federal Electoral Commission was made the third respondent and the Inspector-General of Police the fourth respondent. But following objection by the Hon. Attorney General, Chief Richard Akinjide, who appeared as counsel to the third and fourth respondents to the joinder as parties, the trial court struck out the third and fourth respondents’ names from the petition and the case against them was struck out. The petition was heard by a panel of 3 Federal High Court judges headed by the Chief Judge as chairman.
The petitioner gave evidence and called witnesses who also testified at his instance. Among those who testified at the instance of the petitioner were the 2nd respondents (2nd p.w.) and the Chairman of the Federal Electoral Commission (15th p.w.) Mr. Justice Victor Ovie-Whiskey-The respondents called no evidence.
The election panel after hearing evidence and addresses delivered a well considered judgment dismissing the petition in its entirety.
The court (Anyaegbunam, C.J., Belgore and Sowemimo, JJ.) observed, commented and found inter alia:
“From the oral evidence before us, we do not find any evidence of substantial irregularities or corrupt practices or non-compliance substantially with the provisions of Part II of the Electoral Act . . . The petitioner has alleged in his petition a lot of what he regarded as irregularities in the election, in the return and in the announcement of the result. We viewed and pondered on the evidence adduced in support. We are of the firm opinion that they are not cogent enough to sustain the prayer. We believe that the election was conducted substantially accordance with the provisions of Part II of the Electoral Act 1982. See section 123 (1) of the Act. See also the case of Edward Kundu Swem v. Benjamin Ako Dzungwe & Co. (1966) NMLR 297 cited to us by Chief Akinjide, S.A.N. The Federal High Court Election Panel examined the case of O. Akinfosile v. J. A. Ijose (1960) 5 FSC 192 on the onus of proof where noncompliance with the current Election Laws and Election Rules is alleged and held:
“We wish to point out that the case of Akinfosile v. Ijose (supra) was decided on its own facts and the pleadings delivered therein. As already observed, once a petitioner establishes non-compliance and the court or other tribunal cannot say whether or not the results of the election could have been affected by such non-compliance, the election will be avoided. … Proof that a party to an election petition has committed an election offence must be proved beyond reasonable doubt. This has not been proved in the instant petition (See Bala Kaffi v. Isa (1965) NNLR 7.) We have made it abundantly clear that the petitioner has not made out a case to entitle him to the decree he prays for. We in the result dismiss the petition.”
Aggrieved by the above decision of the Federal Court Election Panel, the petitioner appealed to the Federal Court of Appeal. His complaints were contained in the 10 grounds of appeal set out in the notice of appeal filed. In his brief filed by his counsel, the issues for determination set out were:
(1) Whether or not the second respondent by his agents to wit, returning officers, could alter, amend or obliterate election returns from the state without an order of court.
This was the main issue arising from the amendments to the result of the poll declared state by state. Counsel also raised 5 additional issues classified as subsidiary issues.
(2) Was the Federal High Court right in not giving separate consideration to the prayers and grounds of the petitioner as stipulated distinctively in sections 149 and 122 respectively of the Electoral Act 1982
(3) Did it make any difference to the admissibility, weight and materiality of the documentary evidence tendered by the second and 16th witnesses in relation to the subject matter of the petitioner notwithstanding the fact that it was the petitioner that called them
(4) Is section 132 (1) of the Electoral Act 1982 not unconstitutional having regard to sections 33, 237, and 258 amongst others of the 1979 Constitution in that it inhibits and fetters the constitutional power and jurisdiction of the Federal Court of Appeal to hear and determine the petition fairly and within a reasonable time
(5) Was the lower court right in not granting leg 4 of the petitioner’s prayer despite overwhelming evidence in support of the claim
(6) Was the lower court right in striking out the third and fourth respondents when as the petitioner contended they are a necessary party
The Federal Court of Appeal (Nasir, P., Kazeem, Ademola, NnaemekaAgu, Mohammed, Karibi-Whyte and Sulu Gambari, JJ.C.A.) heard the appeal and on the main issue unanimously dismissed the appeal.
Ademola, J.C.A. delivering the lead judgment on the issue of joinder of the Federal Electoral Commission (Nasir, P., Kazeem, Nnaemeka-Agu, Mohammed and Sulu Gambari, JJ.C.A. concurring but Karibi-Whyte dissenting) observed and held:
“I now deal with the question of joining the Federal Electoral Commission, (FEDECO) the third respondent at the trial as a party… the appellant’s submission on section 121 (2) of the Electoral Act 1982 on this issue is that since that provision did not say that no other person should be joined besides those mentioned in section 121 (2) of the Act therefore FEDECO could be joined. This is bad logic and bad law. The rule of construction is expressio unius est exclusio alterus or put in another way expressurn fact cessare taciturn (that which is expressed puts an end to that which is silent). What is expressed in s.121 (2) of the Act puts an end to what any rule of court may say about joinder of parties in this type of action generally. . . It is my view that FEDECO cannot be joined as a party in an election petition.”
On the returns exhibits Band B1; exhibits C to X and exhibits C5 to C6 which the appellant dealt with at length the learned Justice of the Federal Court of Appeal, Ademola, J.C.A., said (Nasir, P., Kazeem, Nnaemeka-Agu, Mohammed, Karibi- Whyte and Sulu Gambari concurring) observed and commented as follows:
“While not disputing the fact that it is the appellant that called the witnesses who tendered them, the appellant’s counsel cannot quarrel with the conclusion the court rightly reached on the exhibits and the testimony of those witnesses . . . The lower court has, in my view, rightly arrived at the right conclusion when it said on these aforementioned exhibits thus:
‘The Returns as stated above were tendered by the petitioner through his witnesses second p.w. Gambo Gubio who incidentally is the second respondent. The petitioner never questioned the genuineness of the Returns. We accept them as genuine. The alteration in some of the Returns was done in the normal course of business. See section 148 (c) of the Evidence Act cited by Chief Akinjide, S.A.N. There are some alterations in exhibits C to X. The amended figures have been confirmed on oath by the petitioner’s witnesses as correct. These amended figures are in the returns. There is no evidence that the returns were read before the alterations or amendments were made. It is significant to note that there was no suggestion by the petitioner or his witnesses that these alterations were forgeries. On the contrary, the witnesses called by the petitioner on this issue testified that all documents were perfect and in order.’
On exhibits Band B1 . . . The principle of law decided in Okunola v. Ogundiran (1961) All NLR p.394 is hardly applicable to those exhibits.”
On the issue of non-compliance with Part II of the Electoral Act Ademola, J.C.A. observed, commented and held (Nasir, P., Kazeem, Nnaemeka Agu, Mohammed, Karibi-Whyte and Sulu Gambari, JJ.C.A. concurring)
“Finally it does not appear to me that the appellant has challenged seriously in his grounds of appeal and the brief filed on his behalf the findings of fact eminently made by the court below which said thus:
‘We would like to state that from the oral evidence before us, we do not find any evidence directly or vicariously through an agent of any act done or undone by the 1st respondent which in any way amounted to an irregularity or a malpractice. There is no evidence also of any direct act of irregularity or malpractice against the second respondent and we do not find any connection between the act of the Electoral Officer who asked the 21st witness to alter a figure and the second respondent. We cannot say the second respondent instructed him to do what he was alleged to have done. From oral evidence before us we do not find any evidence of substantial irregularities or corrupt practices or non-compliance substantially with the provisions of Part II of the Electoral Act’
That being the position, I am of the firm view that this appeal lacks merit and must be dismissed.”
The petitioner was not satisfied with the decision of the Federal Court of Appeal and appealed to this Court on 8 grounds of appeal. He prays this court to set aside the judgments of the Federal Court of Appeal and the Federal High Court and grant all his prayers contained in his petition.
The appellant’s counsel filed a brief of argument on the appellant’s behalf and relied on his brief. The second respondent also filed a reply brief. The 1st respondent did not file a reply brief but on the application of his counsel Dr. Odje the court decided to hear any submission he may wish to make orally in excercise of our powers under Order 9 rules 6 (5) and 8 of the Supreme Court Rules 1977.
The principal question for determination in this appeal is, according to the appellant’s counsel, Mr. Akinrinsola:
“Whether a returning officer or an Assistant returning officer as an agent of the second respondent or any other official of the Federal Electoral Commission can amend, alter or obliterate Returns of figures contained in Returns described in the exhibits admitted in this petition as Form EC.8B-Dec1aration of Result of Poll Presidential Election, without a High Court order by way of an election petition in accordance with sections 65 (4), 66, 68, 70 and 119 (1) of the Electoral Act 1982 and under the principle laid down by the Supreme Court in the case of Okunola v. Ogundiran and Another (1962) 1 All NLR p.83.”
Learned counsel also raised the 5 additional questions raised before the Court of Appeal.
The findings of the two courts below, in my opinion, were overwhelming and formidable. When facts necessary to establish a case are absent and the court so holds, all the issues of law formulated and raised fall to pieces and become non-issues. Nothing said so far by counsel either in his brief or at the oral hearing has led me to have the view that the learned Justices of the Federal Court of Appeal and the learned Judges of the Federal High Court erred in their assessment of the evidence of findings of fact and the application of the law.
The findings of fact by the two courts below have not been shaken and no ground has been established for this court to interfere with the findings of fact.
With regard to the exercise of power by the court to invalidate an election on grounds of non-compliance, I need to draw attention to the express provision of section 123 (1) of the Electoral Act 1982. It reads:
“An election shall not be invalidated by reason of non-compliance with Part II of this Act if it appears to the court having cognizance of the question that the election was conducted substantially in accordance with the provisions of the said Part II and that the non-compliance did not affect the result.”
The appellant must by evidence have proved (1) non-compliance with Part II of the Act and (2) that the non-compliance affected the result. In other words, he must prove that the non-compliance affected the results to his disadvantage.
As said earlier, the Federal High Court Election Panel found, quite rightly, a total absence of any evidence of substantial irregularities or corrupt practices or substantial non-compliance with the provisions of Part II of the Electoral Act to warrant the grant of the appellant’s prayer. The Federal Court of Appeal agreed with the findings.
I myself have not been persuaded from giving my concurrence to the findings.
It should be borne in mind that courts do not decide questions that have no relevance to the facts. In the absence of facts to which the law can be applied, the courts will not embark on the exercise. Courts are established to decide cases based on real and actual facts not to pontificate on imagined or hypothetical facts.
The facts found by the two courts below are a negation of the existence of the complaints the appellant made in his petition and the repetition of the complaints a hundred times does not amount to proof of the facts to attract the sympathy of the courts.
It would appear that the appellant holds a contrary view of the evidence of the second p.w. and 15th p.w., i.e. Gambio Gubio and Hon. Victor Ovie-Whiskey, respectively the Secretary and Chairman of the Federal Electoral Commission.
An amended document by itself does not speak of the motive behind the amendment. Without more, an altered or amended document is as genuine as an unamended one. Therefore, the admission of exhibits C to V, the returns from the states form which exhibits Band B 1 were collated without any evidence to add a sting to the innocent amendment appearing on some of them offers no help to the case of the appellant.
I find myself therefore unable to accept the submission of the ‘earned counsel for the appellant that because returning officers amended and altered the returns exhibits C to V from 15 States that fact ipso facto means that the returning officers have not complied with sections 65 (4), 66, 70 and 119 of the Electoral Act 1982. There must be evidence of indictment or of immoral, unlawful and illegal motive.
There is only one return for the presidential election and that is contained in exhibit B. All the other exhibits referred to as returns by the appellant cannot individually qualify as return for presidential election as defined in sections 70 and 71 of the Electoral Act and having regard to section 126 (1) of the 1979 Constitution. Even on the face of exhibit B which was the return read or declared, there is no alteration on the face of it. Falsification is quite different from mere alteration. It presumes the existence of a genuine return and a false return. I can therefore find no merit in this appeal.
In view of the concurrent findings of fact by both the Federal Court of Appeal and the Federal High Court earlier referred to and set out in this judgment, and the absence of any special circumstances establishing that justice demands a re-opening of the question of fact, this appeal must fail and I hereby dismiss it. See Enang v. Adu (1981) 11-12 SC 25; Mogo Chinwendu v. Nwanegbo Mbamali (1980) 3 SC 31; Ukpe Ibodo & Ors. v. Enarofia & Ors. (1980) 5-7 SC 42, 55.
The appellant will pay the first and second respondents costs in this appeal assessed at N300.00 each.
Other Citation: (1983) LCN/2173(SC)
