Barrister Donatus Onuigwe V. Declan Mbadiwe Emelumba & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

This appeal is against the judgment of the Governorship and Legislative Houses Election Tribunal, Imo State, holden at Owerri and delivered on Saturday, the 8th day of September, 2007. The tribunal upheld the election of the 1st respondent as the member representing Oru West State Constituency in the Imo State House of Assembly.

The petitioner, now the appellant, at the Tribunal was a candidate at the April 14, 2007, election into the Imo State House of Assembly for Oru West Constituency on the platform of All Progressive Grand Alliance (APGA).

After the election, the 1st respondent was declared winner and returned as the member representing Oru West State Constituency in the Imo State House of Assembly. Dissatisfied with the result, the petitioner filed his petition at the trial tribunal stating the grounds on which he relied as follows:

“1. The 1st respondent was disqualified from contesting the election.

2. The 1st respondent was not duly returned by a majority of lawful votes cast at the election,
3. The purported election was invalid by reason of corrupt practice and/or non-compliance with the provisions or the Electoral Act, 2006.”

The petitioner/appellant’s case was that the 1st respondent was not qualified to contest the election of 14/4/2007 in that he was Indicted by an Executive Panel of Inquiry set up by Imo State House or Assembly and which indictment was accepted by the Imo State Government. It was also the Petitioner’s case that the election was marred by violence, thuggery, snatching and carting away of ballot boxes and various irregularities, corrupt practices and noncompliance with the Electoral Act, 2006.

The respondents’ case was that, there are 118 polling units in the Oru West State Constituency and that there was due, peaceful, orderly, free and fair election in 60 out of the said 118 polling units and further that the non-compliance in 58 polling units did not substantially affect the election. It was also the case of the 1st respondent that he was not indicted by any court or tribunal or Administrative Panel of Inquiry set up by the Imo State Government.

At the pre-hearing conference, it was alleged that the petitioner/appellant voluntarily abandoned ground 1 and part of ground 3 of the petition relating to the election being invalid by reason of corrupt practices. Various documents were admitted by consent including results in Form EC8A, EC8B and EC8C and the voters’ register for all the wards in the constituency. After the admission of documents, learned counsel to all the parties agreed to dispense with oral evidence. Written addresses were later adopted before the tribunal delivered its judgment on 8/9/2007.

Being dissatisfied with the said tribunal’s judgment, the petitioner filed his Notice of Appeal containing 8 grounds of Appeal dated 28/9/2007. In his brief of argument filed on 15/11/2007, 6 issues were formulated for the determination of the appeal which read as follows:

“Issue No.1:

Whether the honourable trial tribunal was right in holding that the 1st respondent was qualified and duly cleared by INEC to contest the election into the Imo State House of Assembly as a member representing Oru West State Constituency?

Issue No.2:

Is the trial tribunal’s failure to consider exhibit 2 before reaching a decision not a violation of the appellant’s right to fair hearing occasioning a miscarriage of justice?

Issue No.3:

Was the honourable trial tribunal right in holding the exhibit 8 neutralized exhibit 2 when there is no connection whatsoever between the two exhibits?

Issue No.4:

Was the honourable trial tribunal tight in holding that non-compliance with the provision of section 32(2) of the Electoral Act, 2007, cannot be questioned in an Election Tribunal.

Issue No.5:

Whether the election of the 1st respondent into the Imo State House of Assembly as a member representing Oru West State Constituency is in compliance with the provisions of the Electoral Act. 2006? If the answer to this question is in the negative, can it be said that the non-compliance did not substantially affect the result of the election?

Issue No.6:

Whether the honourable trial tribunal’s denial of the appellant and his witnesses the opportunity to adopt their written statements on oath and be cross-examined on them, is not a breach of the appellant’s constitutional right to fair hearing?”

The 1st respondent also filed his brief of argument on 27/11/2007. He has submitted that the appellant’s six issues for determination can be conveniently subsumed under the three issues for determination as follows:

“(i) Whether the 1st” respondent was not qualified to contest the election.

(ii) Whether the petitioner established that the alleged noncompliance substantially affected the election.

(iii) Whether the learned tribunal denied the appellant and his witnesses the opportunity of being heard orally and thereby denied them a fair hearing.”

On 4/12/2007. the appeal was heard. Learned counsel for appellant, Naths Epelle, Esq., identified the appellant’s brief of argument dated and filed on 15/11/2007. Without further amplification on the arguments advanced therein, adopted the said brief and urged the court to allow the appeal, set aside the judgment of the trial tribunal and enter judgment for the appellant. In the alternative, he urged us to order for a retrial of the petition. In the appellant’s brief, issues 1,2,3 and 4 being related were taken together in the argument. The issues relate to grounds 1, 2, 3, 4 and 5. It is submitted that for a candidate to stand for and contest into any office, he must satisfy the conditions precedent stipulated by law to be eligible to contest that election. That section 32(3) of the Electoral Act. 2006 imposes a duty on each candidate to swear to an affidavit at the State High Court indicating the he has fulfilled all the constitutional requirements for the election into that office. He submitted that a candidate who did not comply with this statutory requirement cannot be said to be qualified to contest the election. It is the compliance with the statutory provision that is the evidence that the candidate has satisfied all the constitutional requirements.

It is contended that exhibit 2, the PDP nomination form, upon which the 1st respondent was presented by his party to INEC for the purpose of contesting the election is void, because the 1st respondent failed to indicate that he has fulfilled all the constitutional requirements for election into Imo State House of Assembly. That he did not depose to the oath in spite of the foot note on exhibit 2 that state that “no affidavit not sworn to at the High Court of Justice or any superior court of record shall be held admissible.”

Reliance was placed on section 145(1)(g) of the Electoral Act, 2006 which is pari materia with the provision of section 134(1)(a) of Decree NO.3 of 1999 and the case of Abdullahi v. Hashidu (1999) 4 NWLR (Pt. 600) at 638 and 648, on the question of qualification of the 1st respondent to contest the election. Reliance was also placed on the case of Alaribe v. Nwankpa (1999) 4 NWLR (Pt. 600) 551 at 570. It is therefore submitted by the learned senior counsel in the brief that qualification of a candidate to contest an election is the substratum of his election. That since the 1st respondent did not satisfy the condition precedent, he cannot be said to be qualified to stand for the election in the Imo State House of Assembly. Further that since the 1st respondent did not sign exhibit 2, it cannot be said to be an authenticated document to be relied upon by court or tribunal under section 90(1) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. Learned senior counsel relied on the cases of Tsalibawa v. Habiba (1991) 2 NWLR (Pt.174) 461; Omega Bank (Nig.) Plc v. O.B.C. Ltd. (2005) 8 NWLR (Pt. 928) 547 at pages 576 & 581; and Nwabueze v. Okaye (1988) 4 NWLR (Pt. 91) 664 at 713. It is submitted that the trial tribunal’s failure to consider exhibit 2 before reaching a decision violated the appellant’s constitutional right to fair hearing which violation occasioned a miscarriage of justice.

Appellant’s issue No.5 relates to grounds 6 and 7 of the grounds of appeal. Ground 6 complains that the trial tribunal erred in law in its decision that the appellant failed to prove non-compliance with the provision of the Electoral Act, 2006 as to substantially affect the result of the election in question. Ground 7, is that the trial tribunal erred in law in holding that by simple calculation even if the total votes in the 58 polling units were to be ascribed to the petitioner who scored 879 votes his total votes would be 13,288 and would still not upset the result already declared. In his brief of argument, the appellant having compiled and presented the results in exhibits 7A-7H (of the 60 polling units) submitted that a close look at each of these exhibits proves various acts of non-compliance with the provisions of the Electoral Act, 2007; sufficient to violate the entire elections in Oru West State Constituency. He summarized the anomalies thus: that the result of 26 polling units disclose anomaly; results of 14 polling units were not signed; whilst results of 4 polling units were not stamped. He submitted that the effect of the foregoing is that, out of the 118 polling units in the constituency with a total voter population of 36,444 (see exhibit 9) the trial tribunal found as a fact that the election was not held in 58 polling units which has voter population of 13,745. It is further contended that there was evidence before the trial tribunal that there was clear existence of anomaly in the results of 26 polling units. That it is also in evidence that the results of 14 polling units were not signed by the presiding officers, while 4 results were not stamped. The voter population of the 26 polling units where anomaly is proved to exist and the 18 polling units whose results were neither stamped nor signed was given as 15,881. Reference were made to Chapter 42 of the INEC Manual and Guideline for Election Officials, 2007, where it is provided that when an anomaly exists, the figures of the result of poll shall not be transmitted, and the cases of Awolowo v. Shagari (1979) NSCC 87; (1979) 6-9 SC 51; and Gum v. Sharpe (1974) 1 QB 808, where it was held that failure to stamp a reasonable number of the ballot papers used for election shall affect the result of the election. See also section 64(2) of the Electoral Act, 2006 where it is provided that Form EC8A(i) ” … shall be signed and stamped by the presiding officer. It is contended that exhibits 3A, 3B, 3C, 3F, 3G are not stamped, and also exhibits 3D and 3E are neither stamped nor signed. It is therefore submitted that the election result declared in favour of the 1st respondent, which is predicated on exhibits 3A-3G (without any probative value) and exhibits 7A-7H (the result which are not in compliance with provisions of the Electoral Act, 2006) must be vitiated and cancelled. Reliance was placed on the cases of Macfoy v. U.A.C. (1961) 3 All ER 1169; Na-Gambo v. NEC (1993) 1 NWLR (Pt. 267) 94; Oputeh v. Ishida (1993) 3 NWLR (Pt. 279) 34 and Biyu v. Alhaji Ibrahim (2006) 8 NWLR (Pt. 981) page 1 at page 50.

Issue No.6 which is raised from ground 8 of the grounds of appeal is a complaint that the trial tribunal had denied the appellant and his witnesses the opportunity to adopt their written statements on oath and be cross-examined on them, and that this is a breach of the appellant’s constitutional right to fair hearing. It is contended that neither the petitioner nor his counsel ever agreed with the tribunal or other counsel to dispense with evidence of the petitioner and his witnesses. It is therefore submitted that the tribunal erred in law when it held that there was no bases to go to trial on the appellant’s petition as there existed sufficient admitted evidence with which to determine the petition, and proceed to consider the petition. It is submitted that once a party is denied the right of fair hearing, the proceedings in which the denial occurred are bound to be set aside.

Learned counsel relied on the cases of Adigun v. A-G., Oyo State (No. 1)(1987) 1 NWLR (Pt. 53) 678, 718 and Ogundoyin v. Adeyemi (2001) 89 LRCN 2585 at pages 2596 – 2597; (2001) 13 NWLR (Pt. 730) 403. It is urged that this ground be resolved in favour of the appellant.

In his condensed issues, the 1st respondent has raised in issue No. I the question whether he was not qualified to contest the disputed election. Learned counsel has submitted that for a person to be disqualified under section 107(1)(b) of the Constitution there must be pleading and proof that:

(a) The person has been indicted for embezzlement or fraud;

(b) The indictment must be by a Judicial Commission or Inquiry or an Administrative Panel of Inquiry set up under the Tribunal of Inquiry Act or Law or any other Law by the Federal and State Government.

(c) The indictment must have been accepted by the Federal or State Government.

Reliance was placed on the case of Daggash v. Bulama (2004) 14 NWLR (Pt. 892) 144.

It is contended that the appellant averred in paragraph 11(a) of the petition that the 1st respondent was indicted by an Executive Panel of Inquiry set up by the Imo State House of Assembly which

investigation was accepted by the Imo State Government. That the only evidence the petitioner led on this point is the votes and proceedings of the Imo State House of Assembly which he tendered and admitted as exhibit 1. It is submitted that from paragraph 11(a) of the petition, it is clear that the petitioner pleaded that the 1st respondent was indicted by an Executive panel of Inquiry and not a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal of Inquiry envisaged by section 107(a)(b) of the 1999 Constitution. Furthermore, the petitioner averred that the “Executive Panel of Inquiry” was set up by the Imo State House of Assembly and not the Imo State Government as provided for by the constitution.

Therefore by the petitioner’s pleading, he has not pleaded facts to show that 1st respondent was not qualified to contest the election by virtue of section 107(1)(h) of the 1999 Constitution. On the evidence produced by the petitioner in exhibit 1, it is submitted that the petitioner failed to prove that 1st respondent was not qualified to contest the election. On exhibit 2, which is a document evidencing the 1st respondent’s interest to contest the election filed with his pm1y PDP, learned counsel for the 1st respondent has submitted that the said exhibit 2 relates to a pre-election matter which the lower tribunal had no jurisdiction to entertain. Moreso, that the petitioner did not produce the nomination documents which the 1st respondent submitted to the 2nd respondent and the said petitioner in paragraph 11(b) of the petition stated, “Showed marked falsehood.” It is further submitted (even without conceding) that the 1st respondent’s nomination papers or affidavit deposed to by him contain false information, the petitioner should by vit1ue of the provisions of section 32(5) of the Electoral Act, 2006 file a suit at the High Court of a State or Federal High Court against the 1st respondent seeking a declaration that the information contained in the affidavit is false and not a petition before an Election Tribunal. Reliance was placed on the case of PDP & Anor. v. Yunusa Haruna & 2 Ors. (2004) 16 NWLR (Pt. 900) 597 at 612.

1st respondent’s second issue responds to issue 5 of the appellant’s brief and relates to grounds 6 and 7 of the grounds of appeal. Learned counsel for the 1st respondent has conceded that by virtue of the provisions of section 145(1)(b) of the Electoral Act, 2006, an election may be questioned on the ground that the election was invalid for non-compliance with the Act. Under the provisions of section 146(1) of the Electoral Act, 2006, an election shall not be invalidated by reason of non-compliance with the provisions of the Electoral Act. For such non-compliance to vitiate the election, it must be shown that the election was not concluded substantially in accordance with the Act and that non-compliance substantially affected the result of the election. That minor non-compliance or minor breach of the provisions of the Act cannot vitiate the election. He relied on the case of Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) page 1: Ojukwu v. Onwudiwe (1984) 1SCNLR 247; pages 305 – 306. It is submitted that the non-holding or disruption of election in 58 out of 118 polling units in the constituency had not been shown by the appellant to be substantial non-compliance. See Buhari v. Obasanjo (supra); Opia v. Ibru (1992) 3 NWLR (Pt. 231) 658 and Biyu v. Ibrahim (2006) 8 NWLR (pt. 981) page 1.

The 1st respondent in his brief referred to the voters registers of all polling units in the constituency which were admitted in evidence as exhibit. The number of Registered Voters as can be seen from exhibit 9 admitted in evidence, where the election did not hold was reproduced on pages 9 – 11 of the 1st respondent’s brief. The number of registered votes in the said 58 polling units is 12409. It alleged that the appellant scored 879 voted while the 1st respondent scored 14495 votes. It is contended that the fact that the election as conducted in 60 polling units out of 118 polling booths have not been shown to be wanting or flawed, this prima facie shows that there was substantial compliance with the Electoral Act in majority of the polling booths where election took place in the constituency as a whole: Ojukwu v. Onwudiwe (supra). That besides, the 1st respondent led the appellant by more than 1,400 votes and that the said appellant has failed to establish that the number of votes by which the 1st respondent led the appellant in the result of election is likely to be upset by the number of registered voters in the 58 polling booths where no voting took place. That even if the votes in 58 polling booths of all the registered voters are added to the 879 votes the appellant scored, it will not still upset the victory of the 1st respondent. See Ezike v. Ezeugwu (1992) 4 NWLR (Pt. 236) 462; Biyu v. Ibrahim (supra).

It is submitted that the non-holding of election in the 58 polling units, even if without conceding amounts to substantial noncompliance, the consequence will not be to cancel or nullify the whole election in the constituency rather in such a situation, the court will order a bye-election in the 58 polling booths. Reliance was placed on the case of Edonkumoh v. Mutu (1999) 9 NWLR (Pt.620) 633; Ezike v. Ezeugwu (supra).

It is submitted that in the above premises and the fact that the appellant voluntarily declined to call evidence thereby constraining the tribunal to rely on exhibits 4 and 7A – 7H. That Forms EC8E (1) were the basis of the tribunal’s finding especially at pages 432 – 435 where reliance was placed on the case of Prince Uche Nwole v. Chief Amah Iwuagwu & 2 Ors. (2005) 16 NWLR (Pt. 952) at 543. That the appellant’s brief of argument, like the address before the tribunal is an address to the court which can never be a substitute for evidence: Osuigwe v. Nwihim (1995) 3 NWLR (Pt. 386) 752. It is submitted that he has a duty to provide concrete, cogent and compelling evidence to support the details of the petition but has failed to do so much to his detriment. This court is urged to decline the appellant’s invitation to give them a second chance to prove their case by joining issues afresh in this court on matters they voluntarily led no evidence on.

On the third issue, that the appellant and his witnesses were denied the opportunity of being heard orally, learned counsel for the 1st respondent has urged us to discountenance and reject this appellant’s contention as misconceived, misleading and yet another afterthought calculated to give the appellant the chance of being heard for the second time. 1st respondent in paragraphs D.19 and D.20 (page 13) of his brief reproduced, the tribunal note from page 416 lines 25 – 29 of the record showing that the parties agreed that there was no basis to go to trial on the appellant’s petition since there was sufficient admitted evidence with which to determine the petition. It was based, inter alia, on this consensus that the tribunal proceeded to take written addresses and proceeded to judgment. It is submitted that any attempt to negate the record save on grounds of an error, is tantamount to indicting the five Tribunal Judges and the other two counsels who were present during the proceedings. It is in this vein the learned counsel has urged the Court to uphold the judgment of the lower tribunal and dismiss this appeal.

From the appellant’s wildly brief and an exaggerated or emotional arguments and the respondents’ condensed brief, three main issues from the beacon for guiding me in determining this appeal namely:

1. The qualification of the 1st respondent to contest the Imo State House of Assembly election of 14/4/07.
2. Due compliance or non-compliance with the relevant electoral laws and rules.
3. Denial of the appellant and his witnesses the opportunity of his petition being fairly heard.

On issue No.1, section 107(1)(h) of the 1979Constitution provides:

“No person shall be qualified for election to a House of Assembly if –

(h) he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunal of Inquiry Law or any other law by the Federal and State Government which indictments has been accepted by the Federal or State Government, respectively.”

For a person to be disqualified under the foregoing section, there must be pleading and proof that:

(a) The person has been indicted for embezzlement or fraud.

(b) The indictment must be by a Judicial Commission of Inquiry or Administrative Panel of Inquiry or a Tribunal set up under the tribunals of inquiry Act or Law or any other law by the Federal and State Government.

(c) The indictment must have been accepted by the Federal or State Government.

See Action Congress and Alhaji Atiku Abubakar v. INEC (2007) 12 NWLR (Pt. 1048) 222; Daggash v. Bulama (2004) 14 NWLR (Pt.892) 144 and Sofekun v. Akinyemi (1981) 1NCLR 135.

The appellant herein in his petition averred in paragraph 11(a) of the petition that the 1st respondent was “indicted by an Executive Panel of Inquiry set up by the Imo State House of Assembly which investigation was accepted by the Imo State Government.” Appellant tendered exhibit I which is the votes and proceedings of the Imo State House of Assembly. It is the only evidence led on this point. It is dear from paragraph 11(a) of the petition, that the appellant pleaded that the 1st respondent was indicted by an “Executive Panel of Inquiry” and not a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or Tribunal of Inquiry as envisaged

in section 107(9)(h) of the 1999 Constitution. This apart, the appellant averred that the Panel of Inquiry was set up by Imo State House of Assembly and not the Imo State Government as provided by the Constitution. I am in agreement with the learned counsel for the 1st respondent that the appellant’s pleadings failed to plead facts showing that 1st respondent was not qualified to contest the election by virtue of section 107(1)(h) of the Constitution. I agree with the learned trial tribunal when it held inter alia, at pages 429 and 430 of the record that there must be an indictment for embezzlement or fraud by a Judicial Commission of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act or Law any other Law by the Federal or State Government. And such an indictment must have been accepted by the Federal or State Government. The burden of proof is always on the person who alleges to prove. Thus where a party seeks to persuade the court to accept a certain state of affairs, it must, on the preponderance of evidence prove it. In the instant case, the appellant has the duty to prove that the government of Imo State has accepted the indictment of theist respondent and that there was White Paper evidencing same. See Abdullahi v. Hashidu (1999) 4 NWLR (Pt.600) page 638 at page 646.

On the appellant’s submission on section 32(2) of the Electoral Act 2006, I am bound to reject such submission and uphold the findings of the tribunal to the effect that section 32(f) thereof was

inserted and intended by the law-makers to give a prompt avenue to person seeking to raise pre-election issues timeously and conveniently do so before the High Court of a State or Federal High

Court. If it determines that any of the information contained in the affidavit filed by the candidate is false, the court shall issue an order disqualifying him from contesting the election. Contrary to the appellant’s contention that the learned Judges of the tribunal did not consider the submissions in exhibit 2 and rather relied on exhibit 8 (the letter from Imo State House of Assembly absolving the 1st respondent of all charges and allegations) the tribunal, indeed considered and evaluated same at page 431 of the record of appeal and finally concluded by holding that exhibit 2 is not of any probative value, relevance or weight, and therefore ground 1 of the petition is not proved as required by law. The appellant has not shown that the said findings were perverse in any manner whatsoever. The tribunal was entitled to prefer exhibit 8 to exhibit 2, and no miscarriage of justice has been occasioned. In the circumstance, I must resolve this issue in favour of the 1st respondent.

The second issue identified by the 1st respondent responds to issue 5 of the appellant’s brief of argument and this relates to grounds 6 and 7 of the Grounds of Appeal. There is no doubt that every established act of corrupt practice amounts to non-compliance with the provisions of the Electoral Act, 2006, but it is not every act of non-compliance that would amount to corrupt practice. This is because corrupt practice imputes a criminal element, the burden of which is proof beyond reasonable doubt. See Ekpe v. Marah (1999) 9 NWLR (Pt. 617) 146 at 158 – 159. Thus, the burden of proof in any allegation of corrupt practice is higher than the burden on a petitioner who alleges non-compliance with the provisions of the Electoral Act, 2006. The law is that a petitioner who relies on non- compliance as a ground must prove essentially corrupt practices in order to succeed. Section 146(1) of the Electoral Act, 2006 provides that an election shall not be invalidated by reason of non-compliance with the provisions of the Electoral Act, 2006 if it appears to the tribunal that the election was conducted in substantial compliance with the provisions of the Electoral Act. Thus two hurdle bars have been placed before the petitioner to scale. These are:

1. That the election is not in compliance with the provisions of the Electoral Act, 2006.
2. That the non-compliance with the provisions of he Electoral Act, 2006 substantially affected the result of the election.

However, a petitioner can, by the admissions of the respondents and the exhibits tendered in the proceedings prove non-compliance with the provisions of the Electoral Act, 2006 and also show that non-compliance substantially affected the result of the election.

Minor or insignificant breach of the provisions of the Act cannot vitiate the election: See Buhari v. Obasanja (2005) 13 NWLR (Pt. 941) 1; Ojukwu v. Onwudiwe (1984) 1 SCNLR 247; 305 -306.

Proof of non-compliance with the provisions of the Electoral Act can be by oral or documentary evidence. Where it is established by documentary evidence that the election, subject matter of an

election petition is not in compliance with the provisions of the Electoral Act, and that such non-compliance substantially affected the result of the election, that election shall be invalidated by the Tribunal or the Court.

The 1strespondent and the 2nd – 256th respondents in their respective replies pleaded that Oru West State Constituency is made up of 10 electoral wards with 118 polling units. The 1st respondent tendered results in Form EC8E(1) from 60 polling units in proof of fact that there was due election in 60 out of 118 polling units in the constituency. The lower tribunal admitted Form EC8E(1) in evidence as exhibit4 and exhibits 7A – 7H. At page 434 lines 8-25 of the record of appeal, the trial tribunal found as a fact that election was conducted in 60 polling units; it was not conducted in 58 polling units; and election though not conducted in 58 polling units, did not substantially affect the result of the election. Exhibits 7A – 7H are the results in Form EC8A(1) of the 60 polling units where the tribunal found as fact that due election was conducted. Learned counsel for the appellant took a hard look at each of exhibits 7A – 7H and present the following various acts of non-compliance with the provisions of the Electoral Act.

In the appellant’s brief, details of the various acts of noncompliance were recorded in the following polling units of the electoral wards. The wards are Ubulu, Aji, Ozara, Ibiasogbe, Otulu, Mgbidi, Nempi/Eleh and Ohakpu. The details as given by the appellant on pages 12 – 17 of the record are reproduced below:

“UBULU WARD: 24 POLLING UNITS

Ubulu ward consists of 24 polling units.

Exhibit 7A consists of result(s) in Forms EC8A(i) from 10 out of 24 polling units in Ubulu, a ward in Oru West State Constituency. 6 out of the 10 results in exhibit 7A show various acts of non-compliance with the provisions of the Electoral Act, 2006, as hereunder stated:

1. Ama Enwunonu Assembly: Ubulu: Form EC8A:
2. 100 ballot papers issued to the polling unit but 102 “valid” votes recorded as cast.
3. Community Primary School, Eziama, Ubulu: Form EC8A(i): 090004. 100 ballot papers issued to the polling unit but 101 “valid” votes recorded as cast.
4. Comprehensive Secondary School, Ubulu: Form EC8A(i): 090006. 400 ballot papers issues to the polling unit but 402 “valid” votes recorded as cast.
5. C.P.S. (Jnr), Eziama, Ubulu: Form EC8A(i): 090003 Petitioner’s Party, APGA, unlawfully excluded in the election in this polling station.
6. New Era, Ubulu: Form EC8A(i): 090075. 200 ballot papers issued to the polling unit, but 201 “valid” votes recorded as cast.
7. Ama Enwunonu, Ubulu: Form EC8A (i): 092572. 100 ballot papers issued, 24 ballot papers spoiled. 10 ballot papers rejected. 90 “valid” votes recorded as cast, bringing the total number of used ballot papers to 124 as against 100 ballot papers issued to the polling unit.

All WARD: 6 POLLING UNITS

Aji ward consists of 6 polling units.

Exhibit 7B consists of result(s) in Forms EC8A(i) from 6 polling units in Aji, a ward in Oru West State Constituency, 3 out of the 6 units results in exhibit 7B show various acts of non-compliance with the provisions of the Electoral Act, as hereunder stated:

1. Community School Aji: Form EC8A(i): 090045. 3 ballot papers issued to the polling station, but 272 “valid” votes recorded as cast.
2. Central School, Aji: Form EC8A(i): 090047. 200 ballot papers issued. 9 ballot papers spoiled, 9 ballot papers rejected and 136 “valid” votes recorded as cast. A total of 209 ballot papers used, 9 in excess of 200 ballot papers issued to the polling unit.
3. Ubahampah village square, Aji: Form EC8A(i): 090079.400 ballot papers issued to the station, 14 unused ballot papers, 18 spoiled ballot papers, 18 rejected ballot papers, bringing the total used ballot papers to 403. 17 ballot papers in excess of 400 ballot papers issued to the polling unit.

OZARA WARD: 6 POLLING UNITS

Ozara ward consists of 6 polling units.

Exhibit 7C consists of result(s) in forms EC8A(i) from 5 out of the 6 polling units in Ozara, a ward in Oru West State Constituency, 4 out of the 5 results in exhibit 7C show various acts of non- compliance with the provisions of the Electoral Act, 2006 as hereunder stated:

1. Masquerade square: Form EC8A(i): 090093. 6 ballot papers issued, 102 “valid” votes recorded as cast.
2. Town School, Ozara: Form EC8A(i): 090083. 1 ballot paper issued to the polling station, but 98 “valid” votes recorded as cast. Comprehensive Secondary School, Ozara: FormI EC8A (i): 090077. 300 ballot papers issued. 100 ballot papers unused, but 100 recorded as total used ballot papers, 200 ballot papers not accounted for.
3. Aboh Primary School, Ozara: Form EC8A(i): 090072. 89 ballot papers issued, 69 ballot papers returned as unused leaving a balance of 20 ballot papers, on the face of the result, 179 “valid” votes recorded as cast. 12 spoilt ballot papers recorded giving a total of 191 ballot papers giving the excess ballot papers as 171.

IBIASOGBE WARD: 9 POLLING UNITS

Ibiasogbe Ward consists of 9 polling units. Exhibit 7D consists of result(s) in Forms EC8A(i) from 7 out of the 9 polling units in Ibiasogbe, a ward in Oru West State Constituency, 4 out of the 7 results in exhibit 7D show various acts of non-compliance with the provisions of the Electoral Act, 2006, as hereunder stated:

1. Ibiasogbe Court Hall: Form EC8A(i): 090014. This result is not amongst the list of documents

filed by the 1st respondent and no leave of the honourable tribunal was obtained to use the same in the proceedings.

2. Udoma Primary School, Ibiasogbe: Form EC8A(i): 092556. 2 ballot papers issued to this polling station, but 195 “valid” votes recorded as cast.
3. Umuonicha village, Ibiasogbe: Form EC8A(i): 090022. 200 ballot papers issued to the polling unit. An addition of the votes recorded for the political parties that participated in the election shows 200 and not 197 as recorded on the face of Form EC8A(i): 090022. 2 ballot papers recorded as spoiled whilst 1 ballot paper recorded as rejected, giving an excess of 3 ballot papers. An addition of 2 spoilt ballot papers and 1 rejected ballot paper recorded on the face of the result to the 200 votes recorded on the face of the result gives a total of 203 ballot papers.
4. Amadaba Social Club Hall, Ibiasogbe: Form EC8A(i): 090019:

(a) The result is not signed by the presiding officer.

(b) Addition of the votes credited to the political parties that participated in the election gives a total of 396 and not 400 votes as recorded.

OTULU WARD: 10 POLLING UNITS

Otulu ward consists of 10 polling units. Exhibit 7E consists of result(s) in form EC8A(i) from 6 out of the 10 polling units in Otulu, a ward in am West State Constituency. 4 out of the 6 results in exhibit 7E show various acts of non-compliance with the provisions of the Electoral Act, 2006 as hereunder stated:

1. CPS, Olulu: FonnEC8A (i): 090059. No ballot papers were issued to this unit. but 499 “valid”

votes recorded as cast. Result not signed by the presiding officer.

2. Secondary Community School, Otulu: Form EC8A(i): 090033. Petitioner’s party, APGA, was unlawfully excluded from the election in this unit.
3. Okechukwu hall, Otulu: Form EC8A(i); 090058. 300 ballot papers issued, 256 votes were only

accounted for and recorded, leaving a total of 4 ballot papers unaccounted for.

4. C.PS. Otulu: Form EC8A(i) 090011

(a) 90 ballot papers issued. 86 ballot papers returned as unused, but 3 “valid” votes recorded as cast and not 4 as recorded.

Summation of the votes credited to the political parties that participated in the election gives a total of 3 and not4 voted as recorded.

(b) The petitioner’s party, APGA, unlawfully excluded from the election in this unit.

MGBIDI WARD II: 18 POLLING UNITS

Mgbidi ward II consists of 18 polling units. Exhibit 7F consists of result(s) in forms EC8A(i) from 14 out of he 18 polling units in Mgbidi ward II, a ward in Oru West State Constituency. 9 out of the 14 results in exhibit 7F show various acts of non-compliance with the provisions of the Electoral Act, 2006, as hereunder state:

1. Central School Mgbidi Ward II: Form EC8A(i): 090082

(a) 200 ballot papers issued. 29 ballot papers returned as unused leaving a balance of 171 ballot papers, but 29 rejected ballot papers were also recorded on the face of this document. 29 ballot

papers were in excess of ballot papers issued to the polling unit.

(b) Result not stamped.

2. Mgbidi Boys Secondary School: Form EC8A(i): 092567. 200 ballot papers issued. 8 ballot

papers spoiled. 8 “valid” votes recorded as cast. 200 used ballot papers recorded.

3. Mgbidi Boys Secondary School: Form EC8A(i): 090500

(a) 400 ballot papers issued. 400 ballot papers returned as unused. 229 ballot papers recorded as rejected, and 171 “valid” votes recorded as cast.

(b) Result sheet not stamped.

4. Amaichekeoku Square: Form EC8A(i): 092568. 200 ballot papers issued. 6 “valid” votes recorded as cast. 194 ballot papers unaccounted for.
5. Amachukwu, Mgbidi Ward 1I: Form EC8A(i): 092562 result not signed by the presiding officer.
6. Umuodimma village square, Mgbidi Ward II: Form EC8A(i): 092558. Result not signed by the presiding officer.
7. Amawusa Eke Mgbidi II: Form EC8A(i): 092565. Result not stamped by the presiding officer.
8. Afar Ugbele Market Square: Form EC8A(i): 092566. Result not signed by the presiding officer.
9. Umuoma I junction, Mgbidi Ward II: Form EC8A(i): 090053. Result not dated and signed by the presiding officer.

NEMPI/ELEH WARD: 16 POLLING UNITS

Nempi/Eleh Ward consists of 16 polling units. Exhibit 70 consists of result(s) in forms EC8A(i) from 6 out of the 16 polling units in Nempi/Eleh , a ward in Oru West State Constituency. All the 6 results in exhibit 70 show various acts of non-compliance with the provisions of the Electoral Act, 2006, as hereunder stated:

1. Nempi Health Centre: Form EC8A(i): 090064

(a) 300 ballot papers were issued to this polling station. 281 ballot papers returned as unused, leaving a balance of 19 ballot papers for use. Summation of votes credited to political parties shows 119 ballot papers recorded as used ballot papers on the result sheet and not 113.

In order words, 119 “valid” votes were cast plus 6 spoilt and 6 rejected ballot papers also recorded on the face of result.

(b) Result not signed and not dated by the presiding officer.

2. Western Nempi Primary School, Nempi/Eleh Ward: Form EC8A(i): 090024. Result not signed by presiding officer.
3. Nempi Secondary School, Nempi/Eleh Ward: Form EC8A(i): 090090

(a) 200 ballot papers issued. 146 ballot papers returned as unused, leaving a balance of 54 ballot papers, but the total number of ballot papers used in this result is 64 and not 1 as recorded.

(b) Result not signed.

4. Community Primary School, Eleh: Nempi/Eleh Ward: Form EC8A(i): 090063

(a) 200 ballot papers issued. 4 ballot papers spoiled. But a total of 198 ballot papers used, leaving 2 ballot papers unaccounted for.

(b) Result not signed.

5. Ihiue Eleh Village Square, Nempi/Eleh Ward: Form EC8A(1): 090056

(a) 200 ballot papers issued. 36 returned as unused leaving a balance of 164, but the total number of “valid” votes cast and total number of used ballot papers should be 159 and not 164 as recorded.

(b) Result not signed.

(c) 5 voted not accounted for.

6. Nempi Primary School: Nempi/Eleh Ward: Form EC8A(i): 090087

(a) 500 ballot papers issued. 11 ballot papers returned unused, but an addition of all the votes credited to the political parties that participated in the election gives a total of 505.

(b) Return not stamped.

(c) Result not signed.

OHAKPU WARD: 6 POLLING UNITS

Ohakpu ward consists of 6 polling units. Exhibit 7H consists of result(s) in Form EC8A(i) from 6 polling units in Ohakpu, a ward in Oru West Stale Constituency. 5 out of the 6 results in exhibit 7H show various acts of non-compliance with the provisions of the Electoral Act, 2006, as hereunder stated:

1. Institute of Management, Ohakpu: Form EC8A(i): 090089. 600 ballot papers issued, 600 ballot papers rejected, 600 “valid” votes recorded as cast.
2. CPS Ohakpu: Form EC8A(i): 090010. 700 ballot papers issued. 2 ballot papers spoiled, 2 ballot papers rejected. 698 “valid” votes recorded as cast, giving a total of 702 used ballot papers on the face of the result sheet and not 700 as recorded.
3. CPS Ohakpu: Form EC8A(i): 090076. 900 ballots issued. 1 ballot paper spoiled, 1 ballot paper rejected, 899 “valid” votes recorded as cast, giving a total of 901 used ballot papers. 1 ballot paper in excess.
4. Aro-Ndiokwara Square, Ohakpu: Form EC8A(i): 090009. 700 ballot papers issued. 2 ballot papers spoiled. 2 ballot papers rejected, 698 “valid” votes recorded as cast, giving a total of 702,2 ballot papers in excess of the number of ballot papers issued.
5. Masquerade Square, Ohakpu: Form EC8A(i): 090007. 300 ballot papers issued. 1 spoilt ballot paper, and 300 “valid” votes recorded as cast, giving as excess of 1 ballot paper.”

The appellant has copiously shown that anomaly and noncompliance with the Electoral Act, 2006 manifest abundantly in all the 60 polling units where the election took place. Exhibit A discloses anomaly in 5 out of 6 results, whilst the 6th result shows clear case of unlawful exclusion of the appellant and his political party (APGA) from the election. In exhibit 7B and 7C the results from all the polling units as shown above discloses anomaly. In exhibit 7D two results from the unit disclose anomaly whilst the other two results were either stamped or signed by the presiding officer in utter disregard and violation of section 64(2) of the Electoral Act, 2006.

In exhibit 7E, 3 out of the 4 results disclose anomaly. The appellant’s political party (APGA) was unlawfully excluded from the election in some of the units as outlined on the face of exhibit 7E. The results were neither stamped nor signed by the presiding officer. In exhibit 7F results from 4 polling units disclose anomaly whilst the other results were neither stamped nor signed by the presiding officer. In exhibit 7G results from all the units disclose anomaly. They were neither stamped nor signed by the presiding officer. In exhibit 7H, results from all the units disclose anomaly. The results were neither stamped nor signed by the presiding officer. The documentary evidence before the tribunal is that anomaly exists in 26 polling units; results of 14 polling units were not signed whilst result of 4 units were not stamped.

The 1st respondent has contended that there is a presumption in favour of due return of his candidature and since the appellant disputed the correctness and authenticity of the result, it is incumbent on him to lead credible evidence to rebut the presumption that the results of the sixty polling units, collation and declaration thereafter are not correct and authentic. I do not, with due respect, agree with the 1st respondent. The appellant did rely on the exhibits tendered by the 1st respondent, exhibit 7A – 7H and came up with the various acts of non-compliance and breach of the Electoral Act. However, the 1st respondent relies heavily on the voter’s registers of all the polling units in the constituency admitted by the tribunal in evidence as exhibit 9. He reproduced the number of registered voters in the 58 polling units where the election did not hold. He gave the figure as 12,409. See para. D.13 of the 1st respondent’s brief of argument.

He contended that the appellant scored 879 votes while the 1st respondent score 14,495 votes. It is argued that the fact that the election as contained in 60 of the 118 polling units have not been shown to be wanting or flawed prima facie shows that there was substantial compliance with Electoral Act in majority of the polling booths where election took place in the constituency. Learned counsel for the 1st respondent contended that the appellant has not been able to show that non-compliance in respect of the 58 polling booths actually vitiated the election in the Constituency as a whole.

It is submitted that the 1st respondent led ahead the appellant by more than 1400 votes and the petitioner has failed to establish that the number of votes which the 1st respondent led the appellant in the result of the election is likely to be upset by the number of registered voters in 58 polling booths where no election took place. It is argued that if the votes of all the registered voters in the 58 polling booths are added to 879 votes scored by the appellant, it will still not upset the victory of the 1st respondent. It is my respectful view that for the 1st respondent to have arrived at this conclusion is to be economical with the true situation and clear content of exhibit 9, the voters’ register. The respondent did not advert his mind to it or the claims of the appellant made from the content of the said exhibit 9. Appellant has shown that out of 118 polling units in the constituency, the voters’ population is 36,444. The tribunal found as fact that election was not held in 58 units which has voter population of 13,745. At page 18 of his brief, appellant has claimed that if the results from 26 polling units where anomaly exists in relation to the 18 polling units where results were neither stamped nor signed by the presiding officers, and these results from the 44 polling units are deducted, the 1st respondent would score 4,368 votes only as against the 14,495 votes credited to him. From the foregoing, if the votes in 58 polling units with 13,745 voters where election was not held are credited to the votes scored by the appellant, it would be seen that the 1st respondent with 4,368 votes could not be validly declared winner.

Therefore the non-holding of election in the 58 polling units substantially affected the result of the election. Appellant gave this starkling figures and submitted that the voter population of 26 polling units where anomaly is proved to exist, and the 18 polling units whose results were neither stamped nor signed is 15,881. It is contended that an addition of the voter population of 13,745 for the 58 polling units where election was not held and 15,881 (where there exists anomaly together with the polling units where the results were neither stamped nor signed by the presiding officers) gives figures of 26,626. Again, an addition of 58 polling units where election was not held and 44 polling units where anomaly exists, together with those polling units where results were neither signed nor stamped, gives a total of 102 polling units. It is submitted that the effect of this scenario, in law is that no results shall be credited to the 102 polling units. Thus, it is contended that it cannot be said that election was held in these 102 polling units. By the foregoing

analysis, (which I an bound to accept, in the absence of any other contrary analysis or explanation) is crystal clear that election was held in Oru West State Constituency only in 60 out of 118 polling units. It is agreed by parties that the constituency has a voter population of 36,444. If the voter population of 29,626 is subtracted from 36,444, it would be seen that only 6,818 voters participated in the election that enthroned the 1st respondent as the member representing the said Constituency.

Appellant has shown some further anomaly in the exhibits. It is shown that exhibits 3A, 3B, 3C, 3F and 3G are neither stamped nor signed. In exhibit E, the name of the officer who collected the results is not written on the said exhibit.

Act which may be regarded as sufficient to substantially affect the result of an election need not necessarily be widespread non-compliance.

Such acts may occur in a few places, yet their effects are so significant to the overall result of the election that it cannot be ignored. It is not the number of stations where or how widespread the non-compliance has occurred which is relevant, it is the effect of the non-compliance on the overall result of the constituency involved. See Biyu v. Ibrahim (2006) 8 NWLR (Pt. 981) page 1 at page 50; Sorunke v. Odebunmi (1960) SCLNR 414 and Oputeh v. Ishida (1993) 3 NWLR (pt. 279) 34.

From the foregoing, appellant has established that there has been non-compliance with the provisions of the Electoral Act, 2006 as disclosed on the face of exhibits 7A – 7H. The non-compliance has affected the overall result of the election in the Oru West State Constituency having regard to the records of the result in the said exhibits 7A – 7H. In the instant case where election was held in 60 out of 118 polling units only and where in those 60 polling unit, there is clear evidence from exhibits 7A – 7H, that the election did not conform with the provisions of the Electoral Act, 2006 in at least 44 out of the 60 polling units, the election, to my mind, cannot be said to be in substantial compliance with the provisions of the Act. In the circumstance, 1 must resolve this issue in favour of the appellant.

On the appellant’s issue No.6 (which is 1st respondent’s issue No.3) the question is whether the appellant and his witnesses were given fair hearing.

The trial tribunal has no basis for dispensing with the evidence of the appellant and his witnesses in the circumstances of this case. In saying this, I must resort to the records of this appeal. Page 416 lines 1-14 of the records read:

“Petitioner and 1st respondent present.

N. Epelle: for petitioner

K. C.O. Njemanze: for the 1st respondent

G.O. Agbo: for the 20d – 250th respondents

Epelle: On the last day, we were on the ground 3 of the petition and we sought an adjournment to enable us consider. For the purposes of today’s proceedings, we shall be abandoning corrupt practices and will be proceeding with non-compliance with the Electoral Act. Tribunal: The 1st leg of ground 3 is hereby struck out. Tribunal to counsel – are we all agreed that there is no basis to go to trial on this petition but there exists sufficient admitted evidence with which to determine the petition.

Epelle: Yes

Njemanze: Yes

G.O. Agbo: Yes.”

At page 428 lines 5 – 12 of the record of appeal, the tribunal decided thus:

“We would therefore proceed to consider the evidence in the light of the two grounds of the petition as canvassed above but we must state here that since all parties agreed to the pre-trial conference that they will not be calling oral evidence, we shall base this judgment on the documents tendered and admitted in evidence only without any reference whatsoever to the depositions particularly as they were not subjected to cross-examination.”

It was based on this that the tribunal proceeded to take the written addresses and proceeded to judgment. I do not agree with the learned counsel for the 1st respondent that the appellant’s affidavit challenging the record deposed to on 11/8/2007 was an afterthought.

For the proper grasp of the issue involved, I reproduce paragraphs 6,7,10, 11, 12,13,14 and 15 of the affidavit of the appellant from pages 394-395 of the record.

“6. It is not true that my counsel agreed with any person(s) that there was no need to call oral evidence in the trial of the election petition as contended by counsel for the 1st respondent.

7. I am a practising lawyer and I am very conversant with the proceedings and procedure of courts and tribunals.
8. My counsel did not at any stage of the proceedings in my election petition agree with other counsel in the matter that there was no need to call oral evidence.
9. After the admission of some documents in evidence at the pre-hearing conference, the Honourable Tribunal sought to know the grounds upon which the petition is made, and whether there is evidence to sustain such grounds in order to determine whether the petition is worth proceeding with.
10. Upon the foregoing, my counsel Naths Epelle, Esq., referred the Honourable Tribunal to exhibits 1, 2 and my statement on oath in relation to the first ground upon which the petition is made.
11. My counsel also referred the Honourable Tribunal to exhibits 7A -7H and my statement on oath and the statements on oath of some of my witnesses such as Nwakudu Nwabueze P., Paul Adikibe, Prince Ezewuziem Leonard, Livinus Anyajuru, Ndubuisi Akujasi and Pius Ibenacho, in respect of the second limb of ground 3 of my petition.
12. The Honourable Tribunal was still not impressed with the reasoning and argument of my counsel and decided to strike out the petition upon the ground that it lacked merit and that there was no evidence to sustain any of the grounds upon which the petition is made.”

Faced with this situation, my counsel, Naths Epelle, Esq., was compelled to apply to the Honourable Tribunal to be permitted to file a written address to enable the Honourable Tribunal consider my case rather than strike out the same without trial, which application was graciously granted.”

On 13/8/2007, the date to which the petition was adjourned for the adoption of addresses, learned counsel for the appellant drew the attention of the Tribunal to the affidavit of the Petitioner because it was argued that the petitioner abandoned grounds 1 and 3 while other counsel argued it was ground 1 and 2. The Court Note of that day on pages 420 – 425 of the Record makes no reference to the appellant’s affidavit. I do not agree with the learned counsel for the 1st respondent that the members of tribunal have no notice of the affidavit. In fact the learned counsel for the 1st respondent Mr Njemanze, Esq., urged the tribunal to discountenance the affidavit.

Since the trial said nothing on this affidavit, the obvious conclusion is that the tribunal, with due respect, did not intend to hear the appellant and his witnesses and deliberately denied the appellant of the opportunity to present his evidence. He and his witnesses were shut out. I am not impressed with the purported proceedings as recorded on page 416 by the tribunal that there was no basis to go on to try the petition filed by the appellant. I must observe here that the appellant and his witnesses were completely shut out. The unfettered jurisdiction of the election tribunal over the proceedings before it is not in doubt. However, the tribunal is duty bound, as an umpire, to accord every party right to participate in the proceedings before it; having always at the back of its mind, the principles of fairness and justice.

This is my respectful view, based and borne out by the records in the proceedings. In any case, if this view is adjudged flawed, the basis for holding that the election of 14th April, 2007 in Oru West State Constituency was not in compliance with the provisions of the Electoral Act, 2006 will still stand. Total of nine sets of documents were admitted by counsel of all parties and respectively marked exhibits 1, 2, 3A – 3H, 4, 5, 6, 7A – 7H, 8 and 9. These were the evidence at the disposal of the tribunal at the trial. The following exhibits were tendered by the petitioner/appellant viz: Exhibit 1 votes and proceedings of Imo State House of Assembly, dated 16/2/2005; exhibit 2 – Nomination Form of PDP (Expression of Interest to Contest Election); exhibits 3A – 3H – Form EC8B1; exhibit 4Form EC8E1; exhibit 5 – Express Newspaper Announcement. The following exhibits were tendered by the 1st respondent viz: Exhibit 6 – Form EC8C; exhibits 7A – 7H; Form EC8Al; exhibit 8 –

Withdrawal of Charges Letters addressed to 1st respondent from the Imo State House of Assembly; Exhibit 9 – Voters’ Register for Oru West State Constituency. No exhibit was tendered by the 2nd – 150th respondents. They relied on exhibits 3 and 4 tendered by the 1st respondent.

Exhibits 1-5 tendered by the appellant were carefully and commendably considered by the tribunal and consequently the tribunal held, and I agree, that the 1st respondent was qualified to contest the election into Oru West State Constituency in the Imo State House of Assembly. However, with respect to exhibits 6-9 from which the appellant hinges his complaint on non-compliance by 1st respondent with the provisions of the Electoral Act, 2006, I am of the respectful view that the procedure adopted by the Tribunal leaves much to be desired. From the record, these documents were admitted in evidence as exhibits, the tribunal sought to know the grounds upon which the petition is made, and whether there is evidence to sustain such grounds in order to determine whether the petition is worth proceeding with. Consequently, counsel for the appellant referred the tribunal to exhibits 1 and 2, 7A – 7H and the respective statements on oath the appellant in relation to the 1st, 2nd and 3rd grounds respectively. In respect of exhibits 7A-7H the tribunal was referred to the statement on oaths of the appellant and his witnesses namely Nwakudu Nwabueze; Paul Adikibe, Prince Ezewariem Leonard, Livinus Anyajuru, Ndubuisi Akujasi and Pius Ihenacho. Counsel submitted that these exhibits and the statements of the persons mentioned therein are sufficient to sustain grounds 1 and 3 of the grounds upon which the petition is made. At this stage, the Tribunal not being impressed with the reasoning and argument of the appellant’s counsel insisted and came to the conclusion to strike out the petition upon the ground that it lacked merit and that there was no evidence to sustain any of the grounds upon which the petition is made. It was against this background the appellant’s counsel applied to the tribunal to be permitted to file a written address to enable it consider the case of the appellant which application was granted. Counsel for the respondents also filed their written addresses in compliance with the order of the tribunal. The exhibits, parties addresses and the submissions of Council for the parties should form the basis for the tribunal’s final decisions. Exhibits 7A-7H are results in forms EC8AI of the 60 polling units where the tribunal found as a fact that the election was conducted. But the detailed account and close look at each of these exhibits which the appellant has given above prove various acts of non-compliance with the provisions of the Electoral Act 2006 sufficient to vitiate the entire election in Oru West State Constituency. The unchallenged summation of the contents of these exhibits in respect of the 60 polling units, these apart, the parties are ad idem on the fact that the election did not hold in the 58 polling units. The appellant undertook, what one must admit was an onerous task, to establish the non-compliance with the Act alleged by him. There was no gap in their evidence 8 which they failed to fill. He carried out the mathematical calculation of the total votes affected and those not affected in order to assist the court.

The position of the law, and from a number of decided cases of the apex court and this court, is that failure to hold election in a station or some few stations is not per se enough to avoid the entire election, unless it would substantially affect the result of the election. In Opia v. Ibru (1992) 3 NWLR (Pt. 231) 658, this court has held that such failure in one Local Government Area is not per se enough to avoid the election in the whole Delta State, unless it be shown by the petitioner that it had substantially affected the result in the whole area. In Sorunke v. Odebunmi (supra), the Supreme Court, per Ademola, CJP (of blessed memory) upheld the petition and invalidated the election where the petitioner’s complaint was limited only to six out of ninety polling stations. Quite clearly, in the instant case, the widespread various acts of non-compliance with the provisions of the Electoral Act, 2006 in the 60 polling stations call to question the validity of the election. Again, it would be improper to disenfranchise the teeming voters in the remaining 58 polling stations or units without cogent reason. See Biyu v. Ibrahim (supra).

The law has no room for speculation and does not rely on it. The 1st respondent cannot be heard to speculate that the results in 58 polling units (if election was held) could not substantially affect the overall result in 60 polling units in which the tribunal had declared his success. I have earlier found that in declaring the 1st respondent’s success, the tribunal had not performed its important role of sourcing for relevant materials from the evidence placed before it. This is necessary for the proper inquiry and determination of the contention between the parties in order to obviate injustice.

It is a contradiction in forms for a petitioner in an election petition to ask that an election be declared void and at the same time ask that he be declared the winner. This is because if the election is void, as I have found in the instant case, there would be no winner and the logical consequence would be a bye-election. He cannot eat his cake and have it. He cannot ask for avoidance of the whole election and still benefit from the voidity by being returned under the void election. In the circumstance, the appellant prayed the tribunal in his petition to disqualify the 1st respondent and set aside the return of 1st respondent as winner of the election; and to “declare a fresh election in Oru West State Constituency.” In his brief, he urged this Court to declare him the winner or in the alternative order for a retrial of the petition. It is trite law that the court will not grant any relief not before it. I am however of the opinion that the Court must have jurisdiction to grant relief that it thinks appropriate to the facts of the case as proved.

The 1st respondent, though without conceding that non-holding of election in the 58 polling units amounts to substantial noncompliance, he however urged, should this court so find, not to cancel or nullify the whole election in the constituency rather, in such a situation order bye-election in the 58 polling booths.

I have held that the election held in the 60 polling units and non-election in 58 polling booths void the election conducted by the 2nd respondent on 14th April, 2007. In the result, I find that there is some merit in the appeal. It partially succeeds. I hereby set aside the order of the lower tribunal for the return of the 1st respondent. I however make order nullifying the entire election and order for a bye-election to be conducted by the 2nd – 3rd respondents in Oru West State Constituency of Imo State between the appellant and 1st respondent with dispatch. I make no order as to costs in the circumstance.

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Other Citations: (2008)LCN/2657(CA)