Chief Jim Ifeanyichukwu Nwobodo V Chief Christian Chukwuma Onoh & Ors (1984)

LawGlobal-Hub Lead Judgment Report

BELLO, J.S.C.

At the election to the office of Governor of Anambra State held on 13th August 1983, the returning officer (hereinafter referred to as the fifth respondent) returned Chief Onoh (hereinafter referred to as the first respondent) as having been duly elected. Dissatisfied with the result of the poll, Chief Nwobodo (hereinafter referred to as the petitioner), who was one of the unsuccessful candidates at the election, filed an election petition in the High Court of Anambra State against the five respondents namely the first respondent and the second, third and fourth respondents who were the Chief Federal Electoral Officer for Anambra State, the Federal Electoral Commission and the Resident Electoral Commissioner respectively and the fifth respondent-complaining that the first respondent was not duly elected by majority of lawful votes at the elect ion but that he, the petitioner, had the highest votes and had not less than one-quarter of all the votes cast in each of at least two-thirds of all the local government areas in the State. He prayed that he ought to have been returned as duly elected. On the application of the petitioner during the proceedings the third and fourth respondents were struck out.

At the conclusion of the trial of the petition, the High Court by a majority of 3 to 2 of the judges that constituted the court gave judgment in favour of the petitioner and determined that he had been duly elected to the office. The minority dismissed the petition.

The first, second and fifth respondents were not satisfied with the decision of the High Court and consequently appealed to the Federal Court of Appeal which unanimously reversed the decision of the High Court and restored the return of the first respondent as being the duly elected candidate. The petitioner appealed to this Court against the judgment of the Federal Court of Appeal on 11 grounds of appeal. The appeal was canvassed on six main issues and I shall consider them seriatim.

Jurisdiction of the trial court: The issue on the jurisdiction arose from two orders for security for costs and substituted service made by Araka, C.J., sitting alone, before he empanelled five judges including himself that constituted the election court. Sections 127 (1) and 119 (3) of the Electoral Act 1982, hereinafter referred to as the Act, provide:

“127. (1) At the time of filing the petition or within such extended time as may be allowed by the Court the petitioner shall give security for an amount filed by the Court and as directed by the Court; the petitioner shall deposit the amount in any Treasury or give security by recognisance for the amount.”

“119. (3) For the purpose of exercising any jurisdiction conferred by this Act upon the Federal High Court or the High Court of a State, in any case involving the office of the President, Vice-Governor or Deputy Governor, the Chief Judge of the Federal High Court or the High Court of a State as the case may be, shall determine the number of judges that shall constitute the Court.”

At the hearing of the petition objection was taken in limine that since the two orders had not been made by the election court, that court had no jurisdiction to entertain the petition. It was also contended that as the order for security had been on 17th August, 1983, which was the very day the petition was filed, but that the costs were not paid until on 18th August, 1983, there was a breach of section 127 (1) of the Act and so there was no valid petition before the election court. The election court overthe objection.

On appeal to the Federal Court of Appeal, the majority namely Nasir, P., Kazeem, Belgore and Aikawa JJ.C.A. were of the opinion that there was no valid order for security for costs and for substituted service and consequently there was no valid petition in the election court. They held that the petition ought to have been struck out on that ground.

I think, it is pertinent to set out the views expressed by the learned Justices on this issue. Belgore J.C.A. who delivered the lead judgment, after stating that security for costs is a condition precedent for the petition to be filed or to mature into a petition under section 127 (1) of the Act, continues:

“It is either the security is given first or it is given contemporaneously with the petition as the majority judges of the election court even held in the judgment. The learned Chief Judge, Araka in Obale v. Nnaowo (1972) 2 ECSLR 484 was not in doubt about this. Neither the Supreme Court of Nigeria in earlier cases of Emene v. Nkeruwen (1966) 1 All NLR 63, Ahmed v. Alhaji Haruna Kasim (1958) 3 FSC 51, and Ngoh v. Ndoke (1960) 5 FSC 90. There are cases that never went beyond High Courts but follow the same principle (see Ihenacho v. Mgbaraonye and 2 Ors (1960) 9 E. N. L. R 106; O.S.

Benson v. Allison (1955-56) W. R. N. L. R 50; and Ogbolumani v. Okobi and Ors 1959 W. N. L. R 11). No security was given and there was no petition before the court.”

In agreeing with the lead judgment, Nasir, P. had this to say:

“COMPETENCE OF ELECTION COURT

This matter has well been covered by some of my brothers in their respective judgments. I need only to say that the issue of substituted service as ordered by the learned Chief Judge is not so fundamental as to be beyond an irregularity which can be cured under section 147 (5) of the Act. The issue of order for security is in my opinion fundamental. I am therefore in agreement with the judgment of my brother Belgore, J.C.A., on this issue. It is sufficient to vitiate the proceedings of the election court which was constituted after the order for security was made not only was the order made by the learned Chief Judge alone but there is the more fundamental issue that the security was not paid when the election was filed. This may be rather strict but the wording of section 127 (1) is unambiguous as to what it directs. We must accept the special nature of election petition and its special requirements.”

Kazeem, J.C.A., expressed his concurrence in these terms:

“I agree with the reasoning in the lead judgment that the order for security for costs was not validly made by the Chief Judge alone before setting up the panel that heard the petition itself. I also hold the view that the payment of the security for costs a day later after the filing of the petition is fatal to the whole proceedings for the following reasons:

(i) Under the provisions of sections 127(1) of the Electoral Act 1982 (hereinafter referred to as the Act) the payment of the security for costs is a sine qua non to the filing of a petition and it must be so paid at the time of filing the petition or within such extended time as may be allowed by the court.

(ii) The security for costs in this case was not paid at the time of filing the petition; and no extension of time within which to pay it was applied for or allowed.

(iii) The time within which to file a petition(14 days from the time of announcement of result by virtue of section 119 (4) of the Act) or to grant an extension has already expired in this case.

(iv) It is too late for this court to exercise its power (if any) to extend the time for payment of such security since the time within which to present the petition has already expired in this case.

(v) The provisions of section 147 (5) of the Act cannot in my view be invoked to remedy the situation as urged on us by Chief Williams since the matter here relates to the time within which a petition should be filed.

(vi) Section 147 (5) of the Act is in pari materia with section 150 of the Electoral Act 1962 which was considered by the Supreme Court of Nigeria in the case of Emenue v. Nkerenwen (1966) 1 All NLR 63 where at page 68 the court observed as follows:

The section makes it clear that whilst failure to comply as to time may not be fatal in other respects, in respect of time within which to file a petition or to lodge an appeal, compliance is a sine qua non, and non-compliance is fatal. See also Ngoh v. Ndoke (1960) 5 FSC 90.

In the circumstances, I agree that the petition was not properly before the lower courts and it should have been struck out. For that reason I would also strike out the petition and that would have disposed of this appeal.”

Aikawa, J.C.A., was crisp in his conclusion thus:

“The two orders for the payment of security and substituted service were made by Chief Judge not on the panel. There is no provision which could empower him to make these orders on behalf of the panel. In Shaw v. Reckit (1983) 1 QB, 779 a judge not on the rota set up to hear election petition made an order in respect of the petition. On appeal it was held that the order was a nullity. I therefore find the two orders to be a nullity.”

The three other Justices that constituted the appeal panel dissented. Phil-Ebosi, J.C.A., held that under section 238 of the Constitution Araka, C.J., as a single judge had jurisdiction to make the orders complained of and the non-payment of security for costs at the time of filing the petition was a mere irregularity cured by section 147 (5) of the Act. Aseme, J.C.A., was of the opinion that the objections to the two orders and lion payment should have been taken before the respondents entered appearances and they should have been entitled to have the petition struck out. However, he went on to state, since they slept over their rights to object and proceeded to take part in the proceedings by filing replies, they could not thereafter take such objections as the irregularities were saved by section 147 (5) and (6) of the Act.

In his judgment Olatawura, J.C.A., simply agreed with the conclusion reached by majority judgment of the trial court on the issue of the orders for security and substituted service. With regard to the time for payment of security, he held that certainty of recovery of costs was the sole reason for the security and not the time for its payments. He further stated, if he was wrong, then section 147 (5) of the Act saved the situation.

At the hearing of the appeal before us, learned counsel for the parties except Mr. Mogboh conceded to the validity of the two orders made by Araka, C.J. However, Mr. Mogboh contended that election petition is a special jurisdiction conferred on the High Court by section 237 (2) of the Constitution but one judge cannot exercise such jurisdiction by virtue of the provision of section 119 (3) of the Act.

Now, it seems to me that for invalidating the orders made by Araka, C.J., the majority of the Justices of the Court of Appeal relied heavily on section 119 (3) of the Act and the decision in Shaw v. Reckitt (1893) 1 QB 779 in which it was decided that, because of section 56 of the Corrupt Practices Act, 1883 which prescribed that leave to amend an election petition should only be given by one of the judges on the rota for the trial of election petitions, a judge not on the rota had no jurisdiction to grant leave. It is sufficient to say there is no such provision in our Electoral Act, 1982. I think, it was only Phil-Ebose, J.C.A., that hit the nail right on the head when he stated, quite rightly in my view, that the jurisdiction of the High Court to hear and determine election petitions is conferred upon it by section 237 of the Constitution and section 238 of the same provides:

“238. For the purpose of exercising any jurisdiction conferred upon it under this Constitution or any law, a High Court of a State shall be duly constituted if it consists of at least one judge of that court.”

The provisions of the Constitution, in my opinion, are clear that a judge of the High Court sitting alone has jurisdiction to entertain all matters relating to an election petition including conducting pretrial proceedings and making any order arising there from and also hearing and determination of the petition itself. The provisions of section 119 (3) of the Act which empower the Chief Judge of a State to determine the number of judges that shall constitute an election court cannot derogate from the provisions of section 238 of the Constitution. In my view, the orders made by Araka, C.J., before the election panel was constituted had constitutional backing and the power of a Chief Judge to determine a panel of more than one judge to constitute an election court under Section 119 (3) of the Act would not affect the validity of the orders. On the issue of security for costs Chief Williams for the appellant adopted the reasoning of Aseme, J.C.A., whereas Chief Onyiuke contended that security is a condition precedent to filing a petition and it goes to jurisdiction. He urged us to accept the reasoning of the majority of the Justices of the Court of Appeal, particularly that of Kazeem, J.C.A. With due respect, it seems to me all the cases cited by Chief Onyiuke to support his submission that security is a condition precedent to filling an election petition were decided on statutes which were not in pari materia with section 127 of the Electoral Act, 1982. Ifeanacho v. Ngbaraonye and Emenue v. Nkerenwen (1956) 9 ENLR 106 and 120 respectively were based on section 98 (1) of the Electoral Act, 1962 which stated “Before presenting a petition the intending petitioner shall apply to the court . . . for an order… of security.” Section 99 (4) further prescribed “No petition shall be received without payment of the fees and the deposit.” Williams v. Mayor of Tenby & Ors (1879) LR5CP 135 was decided on the clear provisions of section 13 of the Municipal Elections Act 1872 which made security a condition precedent to the trial of a petition. Again, Obele v. Nwaowo & Ors (1972) 2 ECSLR 484 was a product of section 193 (1) of the Divisional Administrative Edict, 1971, which reads: “At the time of presenting an election petition, or within such time as the Court may order, the petitioner shall give security for the payment of all costs, charges and expenses which may become payable by him to a witness summoned on his behalf or to a respondent.”

I have perused all the cases relied on by the majority of the Justices of the Court of Appeal relating to their decision on security. I find the statutes or subsidiary legislations that governed those cases were not in pari materia with section 127 of the Act or the facts and the circumstances of some of those cases were not the same as of the case on hand. I may deal briefly with those cases: Benson v. Allison (1955-56) WRNLR 58 was decided on rules 4 and 8 of the Supreme Court (Election Petitions) Rules, 1951 which stated that security must be given before presenting a petition and not at any subsequent time. In Ahmed v. Alhaji Haruna Kasim (1958) 3 FSC 51 the application of an intending petitioner to fix security for Court was dismissed because he was out of time for filing the petition under regulation 140 (3) of the Northern House of Assembly (Elected Members) Electoral Regulations, 1956. Ngoh v. Ndoke 5 FSC 90 dealt with the filing of the petition out of time contrary to reg. 91 of the Electoral Regulations, 1957. I have earlier considered Emimue v. Nkerenwen (1966) 1 All NLR 63. It appears to me that the provisions of section 127 (1) of the Act are unique and the previous decisions relied on cannot assist in its construction. The sub-section has two limbs thus:

(1) At the time of filing the petition or within such extended time as may be allowed by the Court the petitioner shall give security for an amount fixed by the Court and as directed by the Court; and

(2) the petitioner shall deposit the amount in any Treasury or give security by recognisance for the amount.

From the literal meaning of the first limb of the sub-section, there can be no doubt in the absence of any extension of time or direction by the court at the time of filing the petition. In that event a petitioner who fails to so deposit may be said to have failed to comply with the sub-section. But the sub-section does not stop there. On the contrary, the second limb of the sub-section imperatively directs the petitioner to deposit the security fixed by the court in a Treasury. Since the Treasury in Enugu is not situated within the premises of High Court, Enugu, where the petition was filed and the amount of security fixed by Araka, C.J., as shown by the evidence, it would be physically impossible to comply with the two limbs of the sub-section at the same time. It follows therefore any construction of section 127 (1) to the effect that a petitioner must comply with the provisions of the two limbs at the same time is absurd. In my view, the two limbs ought to be read disjunctively. The words “At the time” ought to be limited to the requirements of the first limb. Such construction will enable a petitioner to comply with the provisions of the second limb, i.e., after the court has fixed the security at the time of filing his petition, he will then go to the Treasury as the petitioner did in the case in hand to deposit the security. The evidence shows that the petitioner found the Treasury closed when he went to deposit the security on the day it was fixed. He deposited it the following day. To me, he complied with the provisions of section 127 (1). Finally, even if section 127 (1) is capable of the interpretation put to it by the majority of the Justices of the Court of Appeal that security must be deposited at the time of filing the petition, I think the failure to do so in the case on appeal was a mere irregularity which is saved by the provisions of section 147 (5) and (6) of the Act which say:

“147. (5) No failure to comply with this Part of this Act as to the time for the giving of notice or the doing of any act, matter, or thing other than as to the time for filing a petition or lodging any appeal shall avoid any proceedings, and in any proper case the proceedings may with the consent of the Court be amended or otherwise dealt with so as to give proper effect thereto; but if any proceedings are avoided, they shall, if commenced, be set aside in whole or in part, as the case may require.

(6) An application may be made at any reasonable time to set aside any proceedings for irregularity, and the application shall be by motion of which notice shall be given to any other party setting out the objections intended to be insisted upon, but no application shall be heard if the party moving has done any act, matter or thing with knowledge of the irregularity, or if the irregularity objected to is merely as to form or as to use of certified copies instead of duplicates.” The grounds of appeal relating to jurisdiction therefore succeed.

I think, I may end this part of my judgment with this observation. In the application of the provisions of a statute to a particular case, a court should not blindly adhere to the ratio decidendi of a previous case founded on the interpretation of a former statute without having first carefully examined that statute and meticulously compared it with the statute governing the case for determination by the court in order to ascertain whether the two statutes are in pari materia. It is only when the two statutes are similar and identical that the interpretation placed on one can be a precedent to the interpretation of the other.

Pleadings: The grava men of the allegations in the petition were that all the respondents other than the first respondent including the Federal Electoral Commission, hereinafter referred to as FEDECO, deliberately falsified and inflated the results of the poll in the local government areas of the State mentioned in the petition to the advantage of the first respondent and to the detriment of the petitioner and that in consequence of such manipulations the returning officer, the fifth respondent, returned the first respondent as having won the election. The particulars of the alleged falsifications were averred in paragraph 5 (iii) (a) to (k) as follows.

————————————————

Para Local Actual

No. Govem- Votes at Falsified

ment Polling Results Declared

Booths

For 1st For For 1st For

Respondent Petitioner Respondent Petitioner

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(a) Ezeagu 21,252 17,058 60,980 19,058

(b) Isi-Uzo 17,782 23,031 44,367 27,863

(c) Uzo-Uwani 15,600 16,611 30,200 27,747

(d) Udi 47,356 12,855 77,532 14,661

(e) Oji River 4,082 21,688 23,518 27,591

(f) Igbo-Etiti 11,532 13,293 59,652 56,767

(g)Igbo-Eze 24,008 33,976 61,955 46,569

(h)Njikoka 30,643 38,686 80,832 76,178

(i)Nkanu 13,987 44,308 33,070 58,885

(j)Ishielu 27,322 20,488 101,021 23,769

(k)Aguata 39,679 53,031 43,967 51,788

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Before the hearing of the petition the respondents applied to the trial court for an order that the petitioner did furnish further and better particulars of the names and addresses of the persons alleged in paragraph 5 (iii) (a) to (k) of the petition to have colluded with the respondents to falsify the election results. In complying with the order of the court for further and better particulars, the petitioner replied that he did not rely on any collusion with the second, third, fourth and fifth respondents to falsify the election results in the local government areas mentioned in the petition but that he relied only on the fact that the return submitted by each of the deputy returning officers in respect of the voting results in the polling stations in each of the local government areas was false and did not represent the true and correct votes cast in favour of the petitioner or the first respondent. At the hearing of the application, Chief Williams, S.A.N., for the petitioner stated that the deputy returning officers were the only functionaries whose conducts were challenged as being responsible for falsifications of the election results. He further stated that although the petitioner did not know at what place the falsifications were done but he knew that the deputy returning officers had done so between the time collations had ended at the headquarters of each of the local governments and the time the results were handed to the returning officer.

It may be observed that it is not the function of particulars to take the place of necessary averments in the pleading: Pinson v. Lloyds Bank (1941) 2 KB 72 at 75. In other words, particulars do not amount to amendments of the pleading. It follows therefore that although by the particulars the deputy returning officers were alleged to have been solely responsible for the falsifications of the election results, the allegations in paragraph 5 of the petition against the respondents remained in the petition. Furthermore, the deputy returning officers were deemed to be respondents under section 121 (2) of the Act since the petition complained of their conducts.

Now, the allegations against the respondents other than the first respondent and the deputy returning officers were that knowing the true and correct results of the elections at the collation centres of the local governments, they deliberately falsified those results to the advantage of the first respondent and delivered the false results to the returning officer who acted on them. In my view, the allegations constituted the offences of forgery and uttering false documents under sections 467 and 468 of the Criminal Code of Anambra State. Section 465 of the Code defines forgery thus:

“465. A person who makes a false document or writing knowing it to be false, and with intent that it may in any way be used or acted upon as genuine, whether in Eastern Nigeria or elsewhere, to the prejudice of any person, or with intent that any person may, in the belief that it is genuine, be induced to do or refrain from doing any act, whether in Eastern Nigeria or elsewhere, is said to forge the document or writing.”

The term ‘make a false document or writing’ includes altering a genuine document or writing in any material part, either by erasure, obliteration, removal, or otherwise: and making any material addition to the body of a genuine document or writing; and adding to a genuine document or writing any false date, attestation, seal or other material matter.”

Again, the allegations also tantamount to an offence under section 99 of the Act:

“99. Any officer appointed for the purposes of this Act, who without lawful excuse is guilty of any act or omission in breach of his official duty commits an offence against the Act and shall be liable on conviction to a fine of N1,000 or to imprisonment for 12 months or to both.”

Burden of proof: Specific allegations of crimes in the petition appear to be clear in that the commission of forgery, uttering and dereliction of official duty can properly be said to be the basis or foundation of the petition. Since the respondents denied the allegations, the commission of crimes by parties to the petition was directly in issue and, consequently, section 137 (1) of the Evidence Act came into play. The section stipulates:

” 137. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”

Section 2 of the Act defines “fact in issue”:

“fact in issue” includes any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right liability or disability asserted or denied in any suit or proceeding necessarily follows.’

The issue of a crime must arise on the pleadings. The sub-section only applies where there is specific allegation of a crime so that its commission can properly be said to be a basis or foundation of the claim or defence as the case may be:

Ikoku v. Obi (1962) 1 all NLR Vol. 1 Part 1 194 at 199 and Jules v. Ajani (1980) 5-7 SC 96 at 116.

However, where a plaintiff makes an allegation of a crime in his pleadings but nevertheless can succeed in his claim without proving the crime it cannot then be said that the alleged crime was a fact in issue or directly in issue: Nwankwere v. Adewunmi (1967) NMLR 45 AT 48. Denning L.J. stated the rule aptly in Arab Bank v. Ross (1952) QBD 216 at 229 in these terms.

“Under the rules of pleading, as I have always understood them, a pleader who has pleaded more than he strictly need have done, can always disregard the unnecessary or surplus averments and rely simply on the more limited ones.”

The scope of section 137 (1) of the Evidence Act may be summarised:

Where in an election petition the petitioner makes an allegation of a crime against a respondent and he makes the commission of the crime as the basis of his petition, the sub-section imposes strict burden on the petitioner to prove the crime beyond reasonable doubt. If the petitioner fails to discharge the burden, his petition fails. However, the provisions of section 137 (1) are subject to the principle of severance of pleadings which may be stated thus: If in any civil proceeding the averments alleging a crime are severable and if after such severance there still remain in the pleadings of the plaintiff or the petitioner sufficient averments devoid of the criminal imputation against any party to the proceeding and on which the plaintiff or the petitioner can succeed in his claim or petition, then the burden of proof upon the plaintiff or petitioner is to prove his case within the balance of probability.I may emphasize that the application of section 137 (1) of the Evidence Act to a civil proceeding depends on the contents of the pleadings in a particular case. Each case should be decided on its pleadings.

With these considerations in mind, when I applied the principle of severance to the petition and disregarded all the averments alleging crimes against the respondents, I found what remained of the petition could not be sustained having regard to the totality of the evidence adduced by the parties

The allegations of crimes were contained in paragraphs 4, 5, and 7 (i) which covered six pages of the petition. In my view the three paragraphs were made to be the centre of gravity to which the other paragraphs in the petition were attracted. The petition consisted of nine paragraphs. Paragraph 2 described the parties while paragraph 3 averred that although the petitioner had won the election the first respondent was returned. Paragraph 8 simply alleged that falsified results for Abakaliki and Anambra Local Government Areas were corrected on protest by the petitioner and paragraph 9 furnished addresses of the parties.

Superficially, the averments in paragraphs 1, 6 and 7 (ii) which are devoid of imputation of any crime against a party may appear to sustain the petition. They read:

“1. Your petitioner is a person who claims to have had a right to be elected and/or returned as the Governor of Anambra State and your petitioner states that he won the majority votes and twenty five per cent of the votes cast in more than two-thirds of the twenty-three Local Government Areas (for the purposes of the election) in Anambra State.

6. Your petitioner shall rely on the relevant results recorded by the officials of Federal Electoral Commission supporting the authentic results in attached Schedule ‘B’ to this petition. The respondents are hereby given notice to produce at the hearing of this petition the originals of all such relevant records in their possession, supporting the results in the attached Schedule ‘B’.
7. (ii) That your petitioner has the highest number of votes cast at the said election of Saturday, 13th August, 1983, and has not less than one-quarter of all the votes cast in each of at least two thirds of all the local Government Areas in Anambra State.”

On consideration of the evidence adduced relating to the falsified results alleged in paragraph 5 and the authentic results averted in paragraph 6, one cannot properly determine the authenticity of the results relied on in paragraph 6 independently of the falsified results in paragraph 5. To prove the results on which the averments in paragraphs 1, 6 and 7 (ii) were founded, the petitioner must prove the FEDECO results specified in paragraphs 4 and 5 to have been forged. In the circumstances, the innocent paragraphs in the petition could not be divorced from criminality. Accordingly, I was unable to sever the petition.

Admissibility of Statements of Results of the Poll: In accordance with the provisions of section 62 of the Act and directions of the FEDECO, the ballot papers were counted by the presiding officers at the polling booths immediately after the close of the poll. The presiding officers entered in the forms provided by the FEDECO the scores of each candidate and gave signed copies of the forms to the candidates or their agents, kept copies for themselves and forwarded the originals to the assistant returning officers at the primary collation centres. After having collated the results of all the polling booths at the primary centres in the forms provided by the FEDECO, the assisting returning officers also gave out signed copies of the forms to the candidates or their agents, kept copies for themselves, and forwarded the originals to the secondary collating centres, which were the headquarters of the local government areas, whereat the deputy returning offices collated all the results from the primary centres in the forms provided by the FEDECO, gave signed copies to the candidates or their agents, kept copies for themselves and delivered the originals to the returning officer at the State capital. The returning officer declared the result of the election on the strength of the returns submitted to him by the deputy returning officers. The evidence shows that the police and the officers of the Nigeria Security Organisation were given copies of the results by the assistant and the deputy returning officers.

To prove his case, the petitioner called his agents, some assistant returning officers and two officers of the N.S.O. as witnesses who rendered their own copies of the results and the trial court admitted the same in evidence and acted upon them in reaching its decision. The Federal Court of Appeal, Olatawura, J.C.A., dissenting, held the documents to be copies and as such were secondary evidence admissible only after the conditions laid down by section 96 of the Evidence Act had been satisfied. Since the original documents in possession of the FEDECO were available and the petitioner did not tender them, the Court of Appeal concluded that the trial court erred in admitting their copies.

Chief Williams submitted before us that because the documents under consideration were made by the FEDECO officials in the ordinary course of their duties, they were admissible in evidence against the FEDECO; that they were also admissible as duplicate originals and again as documents tendered without objection. In reply, Chief Onyiuke contended that it is evident that not only the petition but also the trial court had treated the documents as secondary evidence and so had the Federal Court of Appeal and consequently, he argued, being secondary they were inadmissible as the petitioner had not satisfied the condition precedent to their admissibility.

I accept the submission of Chief Williams that all the documents in question constituted admissions within the meaning of sections 19 and 20 of the Evidence Act and were relevant and admissible against the FEDECO and its representatives, i.e., all the respondents other than the first respondent, under section 23 of the Act.

Furthermore, in spite of the description of the documents as “copies” in sections 62 and 70 of the Electoral Act, I think, when all the circumstances under which the documents were made and tendered in evidence are taken into account it is legitimate to treat them as primary evidence under section 93 of the Evidence Act and the trial court had wide and unfetted discretion under section 90 of the Evidence Act to admit them as evidence of the results of the poll at the polling stations and the collation centres.

Section 91 of the Evidence Act takes care of the weight to be attached to such evidence. Regard must be had to all the circumstances from which any inference can reasonably be drawn as to their accuracy or otherwise. I hold that the Federal Court of Appeal was in error in treating the documents in question as inadmissible. The trial court rightly, in my view, admitted them in evidence.

Did the petitioner discharge the burden of proof: The petitioner did not adduce an iota of evidence to falsify the results declared by the FEDECO for eight from the 11 local government areas the result for which were alleged in paragraph 5 (iii) (a) to (k) of the petition to have been falsified. The petitioner attempted to prove the allegations in respect of three local government areas, namely Ezeagu, Igbo-Etiti and Isi-Uzo. In considering whether the petitioner had discharged the burden of proof on the results for the three local government areas, the trial court properly adverted itself to section 137 (1) of the Evidence Law and found as follows:

“Considering the evidence of all the witnesses that had been called by the petitioner and the respondents, and considering all the documents tendered by the petitioner as against those tendered by the respondents which we have also evaluated, we are fully and perfectly satisfied beyond all reasonable doubts that the petitioner has established the facts alleged in his petition, that the figures as published by the fifth respondent had been grossly inflated to his prejudice in Ezeagu, Isi-Uzo and Igbo Eze Local Government Areas. Weare under no doubt whatsoever that the petitioner had fully established the fact that incorrect results had been announced and published by the fifth respondent with regard to Ezeagu, Isi-Uzo and Igbo Etiti elections.”

In reversing this finding of fact by the trial court, all the seven Justices of the Federal Court of Appeal were unanimous that the petitioner had not proved the alleged falsifications beyond reasonable doubt. Ground of appeal No.9 complained against the reversal in these terms:

“(9) The Federal Court of Appeal erred in law in deciding to reverse the findings of fact of the High Court when the said findings were based on their satisfaction beyond reasonable doubt and/or alter natively on the balance of probabilities that the number of votes cast in favour of the first respondent was inflated in Ezeagu, Igboand Isi-Uzo Local Government Areas.”

Arguing the appeal, Chief Williams submitted that sections 148 (c) and 149 (1) of the Evidence Act raised the presumption that the result of the election declared by the FEDECO was correct and authentic and the onus was on the petitioner to rebut the presumption. He said the trial court found that the petitioner had adduced sufficient evidence which rebutted the presumption and established that the FEDECO result had been based on falsified premises.

Chief Williams referred us to the evidence of the witnesses called by the petitioner whose evidence clearly showed, from the copies kept by the witnesses, exhibits B1 to H2, of the statements of the results of the poll collated by the assistant returning officers at the primary collating centres, the result to be as follows:

Local Votes Votes

Government for Petitioner for first Respondent

Area

———————————————-

Ezeagu 21,252 17,031

Igbo-Etiti 13,293 11,732

Isi-Uzo 23,031 17,782

——————————————

The witnesses testified that the original results collated at the primary collation centres were delivered by the assisting returning officers to the deputy returning officers at the secondary collating centres but when the latter officers collated the results delivered to them instead of arriving at the foregoing figures, their collations read:

Local Votes Votes Votes

Government for for for first

Area Petitioner Respondent

———————————————-

Ezeagu 19,058 17,031

Igbo-Etiti 56,767 11,732

Isi-Uzo 23,031 17,782

———————————————-

Consequently, Chief Williams argued, the votes scored by the parties according to the copies kept by the petitioner’s witnesses (exhibits B1 to H2) of the collated results at the primary collation centres were inflated thus:

Local Votes Votes

Area for For first

Government Petitioner Respondent

————————————–

Ezeagu 2,027 39,728

Igbo-Etiti 43,474 47,920

Isi-Uzo 39,728 26,585

50,233 114,233

————————————–

Chief Williams finally contended that if the inflated collated results in favour of both parties were subtracted from the results declared by FEDECO, to wit, 887,231 votes for the petitioner and 901,890 votes for the first respondent the resultant votes would be 846,898 for the petitioner and 787,657 for the first respondent and, that being the case, the petitioner had scored the majority votes and ought to have been declared as duly elected.

In reply, Chief Onyiuke and other learned counsel for the respondents drew our attention to the evidence of the witnesses who testified for the respondents, particularly the three deputy returning officers, i.e. DW2, DW10 and DW15, who produced the original collated results delivered to them by the assistant returning officers for the three local government areas in dispute and also produced their original results which they had collated at the secondary collation centre and which they later delivered to the returning officer at Enugu (DW16) who declared the final return of the poll on the basis of those results. Learned counsel for the respondents submitted that on the totality of the evidence the Federal Court of Appeal was right in holding that the petitioner did not prove the allegation of crime beyond reasonable doubt.

I think, at this stage I may say that I accept the submission of Chief Williams that there is in law a reputable presumption that the result of any election declared by the FEDECO is correct and authentic and the onus is on the person who denies its correctness and authenticity to rebut the presumption. In my view, where such denial is based on allegation of crimes against the FEDECO officials responsible for the declaration of the results, the rebuttal must be proved beyond reasonable doubt. The trial Court found the petitioner in this case on appeal had discharged the onus. The Federal Court of Appeal thought otherwise. Who was right

Now, it is settled law that a court of appeal does not interfere with the findings of fact of a court of first instance which has had the opportunity of seeing the witnesses and watching their demeanour unless it is satisfied that that court has not made any use of that advantage or the finding is perverse and cannot reasonably be supported having regard to the evidence or the finding is an inference from established facts so that an appeal court is entitled to draw its own conclusion or the trial court has applied wrong principle of law: Okuoja v. Ishola (1982) 7 SC 314 at 349; Woluchem v. Gudi (1981) 5 SC 291 at 295 and 326; Lawal v. Dawodu (1972) 1 All NLR (Part 2) 270 at 286.

With these considerations in mind, I think, it is pertinent to highlight the reasons stated by the learned Justices of the Federal Court of Appeal for interfering with the finding of the trial court on the issue of proof beyond reasonable doubt.

After having reviewed the evidence, Nasir, P., stated:

“The accusation by Chief Williams was specifically directed against the deputy returning officers (See Record page 74 from line 25 to page 75 lines 1-10 and page 68 lines 5-30). There is no evidence adduced to show that any particular deputy returning officer had falsified any figure.

If one compares exhibits C1 to H2 and RB2 to RQ4 as relevant one cannot escape from the conclusion that if there are culprits in this matter they are to be found among the assistant returning officers as can clearly be seen from these documents bearing the signatures of all or definitely some of them on the pairs of contradicting documents. I fail to understand why the trial court has made no finding on this fundamental issue. In my opinion the issue is not whether the assistant returning officers called, had given evidence in respect of the votes in the constituencies concerned but whether these witnesses have succeeded in disowning the authorship of the documents sent to FEDECO or in proving that the documents sent to FEDECO were falsified. Whichever standards of proof one accepts in this case I fail to see how the parallel and unconnected evidence called (in relation to the figures given to FEDECO) can be accepted as sufficient proof of the petitioner’s allegation. I am also of the opinion that the returning officer has no burden to disprove the petitioner’s case which was completely presented to its end without reference to the FEDECO figures. If this is to be allowed in our courts any person can, after the event, produce his own set of record in order to challenge the authentic record compiled at the material time according to law. It seems to me that the petitioner has not discharged the burden of proof as the person who asserts.”

Phil-Ebosie, J.C.A., expressed the view that although there was some proof that on the level of the collations by the assistant returning officers the correct votes cast for the petitioner were not what the FEDECO released that proof was below the required standard for an allegation of a crime.

Kazeem, J.C.A., stated his opinion thus:

“Moreover, no attempt was made by the petitioner’s counsel to apply for an order that the FEDECO be produced before the close of the petitioner’s case to enable the petitioner’s witnesses to be confronted by them. As the situation was when the documents were subsequently produced, it happened that there were two different sets of documents prepared and signed by the same persons, but bearing different figures. It is my view that if the exhibit RB series in possession of FEDECO, are presumed to be genuine in law until the contrary is proved, the onus was there on the petitioner to prove them to be false. He had so pleaded in paragraph 5 of his petition that they were falsified by the returning officers or their agents, servants or privies and those could be anybody including the assisting returning officers themselves. But I am firmly of the view that he has failed to prove those documents to be false. Furthermore these petitioner’s witnesses are said to have made and signed the exhibits RB series in possession of FEDECO in respect of Ezeagu, Igbo-Etiti and Isi-Uzo Local Government Areas and those documents are found to be inconsistent with the ones they tendered in court-see exhibits B-G series)”.

In his turn, Aseme, J.C.A., had this to say:

“In my view a petitioner who joins issue with the respondent with respect to the accuracy or falsity of FEDECO documents must see to it that the documents are produced and that the allegation averred by him that the figures therein are false is proved by credible evidence. In this case FEDECO documents were not produced until after the close of the case for the petitioner. This is unfortunate and it is difficult to see how the election tribunal came to the conclusion in the majority decision that the allegation that the figures contained in those FEDECO documents were false (sic) without calling or recalling the makers of those documents to testify in that behalf.”

Belgore, J.C.A., after he had referred to the allegations in paragraph 5 of the petition and section 137 (1) of the Evidence Act, continued:

“It is incumbent on the petitioner to prove that second, third, fourth and fifth appellants made false returns and thereby committed corrupt practice whereby they would be criminally liable. The petitioner woefully failed to do this. The proof required is a very high one-beyond reasonable doubt. Certainly there are discrepancies between exhibits B to H2 but it is not known who perpetrated these. It could be anybody, FEDECO officials, party agents, etc. But the original documents in possession of FEDECO and tendered in court have not been impeached and unfortunately they are the one (sic) admissible in evidence and not exhibits B to H2. In the absence of failure to prove (sic) beyond reasonable doubt the petitioner has not proved his case.”

In their concurring judgments Olatawura and Aikawa JJ.C.A., emphasized that the petitioner failed to prove beyond reasonable doubt the falsification of results as alleged in the petition.

From the outset, it may be appreciated that in an election petition such as the one on appeal where the complaint does not allege any rigging or irregularity of the election at the polling booths but the issue is based on falsification of the results in the course of collation process, the dispute which calls for the proof of the issue beyond reasonable doubt cannot in the main be adjudicated on the credibility of the witnesses from their demeanour. Where there is a substantial difference between the results collated by the assistant returning officers and those collated by the deputy returning officers, it is not enough for the trial court to believe the assistant returning officers and accept their results and to disbelieve deputy returning officers and reject their results.

To prove the falsity beyond reasonable doubt of the collated results of the deputy returning officers, a petitioner must not only prove the results collated by assistant returning officers but must also prove the votes counted by the presiding officers and the scores of each candidate at the polling booths which were the basis of collation. Production of the results of the poll counted at the polling booths by the presiding officers is an essential element of the burden of proof under the circumstances of the petition. Except for Ezeagu South constituency in respect of which the petitioner through his witness produced the results at the 96 polling stations, exhibits A, A1-95, in the constituency no such evidence was led in respect of all the other constituencies in the three local government areas in dispute.

In the alternative, the original results collated by the assistant returning officers which they delivered to the deputy returning officers may be used to discredit the returns of the deputy returning officers. It appears the petitioner was fully appreciative of this fact by serving notice on FEDECO in paragraph 6 of his petition to produce the documents and they were produced after the close of his case when Chief Williams made proper application for their production in accordance with the provisions of section 72 (3) of the Electoral Act. The petitioner did not tender any of the original forms the assistant returning officers had submitted to the deputy returning officers. The petitioner’s case therefore left a gap in the chain by which the results of the poll from the primary collation centres had been conveyed to the returning officers.

On the other hand, the respondents proved the nexus between the results of the poll collated at the primary and secondary centres and the final result declared by the returning officer. Their witnesses tendered exhibits RB2 to 4, R02 to 4 and RQ2 to 4, which were the results, collated by the assistant returning officers for Ezeagu, Igbo-Etiti and Isi-Uzo respectively. The sums of these exhibits, to wit exhibits RB1, RO1 and RQ 1, the collations of the deputy returning officers, were also tendered.

The returning officer declared the result of the election upon collation of exhibits RB 1, RO1 and the other results from the other 20 local government areas. In this respect not only the petitioner failed to prove the allegation of crime beyond reasonable doubt but the evidence for the respondents stood unrebutted and uncontradicted. .

Finally, I may make a cursory observation on the submission made before us by Chief Williams relating to the conduct of the respondents’ case in the trial court. He strenuously emphasized the failure of the respondents to call certain witnesses to cross-examine some of the petitioner’s witnesses on certain aspects of their evidence and to tender some documents. I do not think this submission would by any means improve the petitioner’s case. It is trite law that a plaintiff or a petitioner for that matter must succeed on the strength of his case and not on the weakness of the defence.

From the premises, I am of the firm opinion that this is a proper case for an appeal court to interfere with the finding of fact of the trial court. For the proper determination of the issue before the trial court, the advantage of seeing the witnesses and assessing their demeanour which is within the province of the trial court were not the main determinant factors. The issue rested on the conveyance of undisputed votes scored by the political parties at the polling booths and recorded in the FEDECO forms thereat. The journey was from the polling stations through the collation processes to the returning officer. With the necessary data available to wit the undisputed results at the polling stations, not only the trial court and the Federal Court of Appeal but any reasonable person with a little effort in arithmetical calculations may determine the correct result of the election. Polling stations are the concrete foundation on which the pyramid of an election process is built. Primary and secondary collation centres are administrative machinery devised by the FEDECO in order to enhance efficiency and speedy declaration of the final result of the election. There is no provision in the Electoral Act, 1982, for collations at the constituency and local government area levels in a gubernatorial election. At the price of long delay in announcing the result of the election, the results counted at the polling booths may be directly sent to the returning officer who will declare the result of the election after he has collated the results from all the polling stations in the State. The trial court, the Federal Court of Appeal and this Court could do the same exercise, if the results of the poll at the polling booths were before the court. So could any reasonable person. The petitioner failed to furnish the necessary data to the trial court to resort to this exercise and so he did not discharge the onus of proof required of him by section 137 (1) of the Evidence Act.

Accordingly, the decision of the Federal Court of Appeal reversing the finding of fact by the trial court is impeccable. I share the same view with the learned Justices of that Court that the petitioner did not prove the commission of the crimes against the respondents alleged in his petition and I dismissed his appeal on this ground.

SOWEMIMO, C.J.N. This election petition was heard at the Anambra State High Court sitting at Enugu and the petitioner/appellant was successful. In the appeal to the Federal Court of Appeal, Enugu, the judgment of the lower court was set aside. Now being dissatisfied with that judgment, he has appealed to this Court. He was represented by Chief F R. A. Williams, S.A.N. He chose to base his argument on three local government areas, but for the purpose of this appeal, I wish to set out his petition in full for the better understanding of those who chose to feel that the Supreme Court of Nigeria applied an ordinary standard not applied to all appeals which had been heard in this Court. This Court will continue to maintain its integrity and impartiality whatever may be the views of an unsuccessful appellant.

For the better understanding of this case, I set out in full the petition which was adjudged upon. “The petition of Chief Jim Ifeanyichukwu Nwobodo of Anambra State showeth that:

1. Your petitioner is a person who claims to have had a right to be elected and/or returned as the Governor of Anambra State and your petitioner states that he won the majority votes and twenty-five per cent of the votes cast in more than two-thirds of the twenty-three Local Government Areas (for the purposes of the election) in Anambra State.
2. The first respondent is the NPN gubernatorial candidate who was declared elected by the second, third, fourth and fifth respondents as Governor of Anambra State. The second, fourth and fifth respondents are officers of the third respondent which is a body established under the Constitution of the Federal Republic of Nigeria 1979.
3. Your petitioner states that the election was held on the 13th day of August, 1983 when he was a successful candidate, and the returning officer, Mr. E. N. Mbonu has returned the first respondent, Chief Christian Chukwuma Onoh, as being duly elected by the result announced on 14th August, 1983.
4. The candidates for the said election were Chief A. O. Mbah for the UPN who purportedly scored a total of 21,347 votes; Chief A. Nwankwo for PRP who purportedly scored a total of 14,515 votes; petitioner as the candidate for the NPP who purportedly scored 887,221 total votes; Mr. R. C. Okafor for the GNPP who purportedly scored a total of 22,863 votes; Chief C. C. Onoh for the NPN who purportedly scored a total of 901,390 votes; and T. C. Onyemelukwe for NAP who purportedly scored a total of 21,866 votes.
5. And your petitioner says that the results of the election as certified by the third respondent and announced by the returning officer were falsified in various areas within the State constituency:

(i) Out of the total falsified results of 1,867,192 votes purported to have been cast at the election, the petitioner was credited with the false score of 887,221 total votes while the first respondent was falsely credited with 901,390 total votes as indicated in the Schedule ‘A’ attached to this petition.

(ii) By the said falsification of results the first respondent had a total of 14,169 votes more than the score credited to the petitioner who by the correct number of votes scored had a majority of all the votes cast at the entire election as shown in the Schedule ‘B’ attached to this petition.

(iii) The results of the said election were falsified by the second, third, fourth and fifth respondents or their agents, servants or privies in most of the Local Government Areas within the State Constituency for the election including the following Local Government Areas:

(a) Ezeagu Local Government Area: Particulars of Falsified Result

The first respondent’s correct score was 21,252 votes while the petitioner’s correct score was 17,031 votes but these were falsified to read 60,980 for the first respondent, 19,058 votes for the petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to fifth respondents was jacked up by as much as 37,701 which represented the difference between 39,728 votes and 2,027 votes wrongly credited to the first respondent and petitioner respectively by the said results.

(b) Isi-Uzo Local Government Area: Particulars of Falsified Result

The first respondent’s correct score was 17,782 votes while the petitioner’s correct score was 23,031 votes but these were falsified to read 44,367 votes for first respondent and 27,863 votes for petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to fifth respondent was jacked up by as much as 21,585 votes which represents the difference between 26,585 votes and 4,832 votes wrongly credited to the first respondent and the petitioner respectively by the said results.

(c) Uzo-Uwani Local Government Area: Particulars of Falsified Result

The first respondent’s correct score was 15,600 and the petitioner’s correct result was 16,611 votes, but these were falsified to read 30,200 votes for first respondent and 27,747 for the petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to fifth respondents was jacked up by as much as 3,464 votes which represents the difference between 14,600 votes and 11,136 votes wrongly credited to the first respondent and the petitioner respectively by the said results.

(d) Udi Local Government Area: Particulars of Falsified Result The first respondent’s correct score in this Local Government Area was 47,356 votes and the petitioner’s correct score was 12,855 votes, but these were falsified to read 17,532 votes for first respondent and 14,661 votes for the petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to fifth respondents was jacked up by 28,370 votes which represents the difference between 30,176 votes and 21,806 votes wrongly credited to the first respondent and the petitioner respectively by the said results.

(e) Oji River Local Government Area: Particulars of Falsified Result

The first respondent’s correct score was 4,082 votes and the petitioner’s correct score was 21,688 votes, but these were falsified to read 23,518 votes for the first respondent and 27,591 votes for the petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to the fifth respondents was jacked up by as much as 13,533 votes which represents the difference between 19,436 votes and 5,903 votes wrongly credited to the first respondent and the petitioner respectively by the said results.

(f) Igbo-Etiti Local Government Area: Particulars of Falsified Result

The first respondent’s correct score was 11,732 votes and the petitioner’s correct score was 13,293 votes but these were falsified to read 59,652 votes for the first respondent and 56,767 votes for the petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to fifth respondents was jacked up by as much as 4,446 votes which represents the difference between 47,920 votes which represents the difference between 47,920 votes and 43,474 votes wrongly credited to the first respondent and the petitioner respectively by the said results.

(g) Igbo-Eze Local Government Area: Particulars of Falsified Result

The first respondent’s correct score was 24,008 votes and the petitioner’s correct score was 33,976 votes but these were falsified to read 61,955 votes for the first respondent and 46,569 votes for the petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to fifth respondents was jacked up by as much as 25,354 votes which represents the difference between 37,974 votes and 12,593 votes wrongly credited to the first respondent and the petitioner respectively by the said results.

(h) Njikoka Local Government Area: Particulars of Falsified Result

The first respondent’s correct score was 30,643 votes and the petitioner’s correct score was 38,686 votes but these were falsified to read 80,832 votes for the first respondent and 76,178 votes for the petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to fifth respondents was jacked up by as much as 12,697 votes which represents the difference between 50,189 votes and 37,492 votes wrongly credited to the first respondent and the petitioner respectively by the said results.

(i) Nkanu Local Government Area: Particulars of Falsified Result

The first respondent’s correct score was 13,987 votes and the petitioner’s correct score was 44,308 votes but these were falsified to read 33,070 votes for the first respondent and 58,885 votes for the petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to fifth respondents was jacked up by as much as 4,506 votes which represents the difference between 19,083 votes and 14,577 votes wrongly credited to the first respondent and petitioner respectively by the said results.

(j) Ishielu Local Government Area: Particulars of Falsified Result

The first respondent’s correct score at the election was 27,322 and the petitioner’s correct score was 20,488 votes but these were falsified to read 101,021 votes for the first respondent and 23,769 votes for the petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to fifth respondents was jacked up by as much as 70,418 votes which represents the difference between 73,699 votes and 3,281 votes wrongly credited to the first respondent and the petitioner respectively by the said results.

(k) Aguata Local Government Area: Particulars of Falsified Result

The first respondent’s correct score was 36,679 votes and the petitioner’s correct score was 53,031 votes but these were falsified to read 43,788 votes for the petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to fifth respondents was jacked up by as much as 5,531 votes which represents the aggregate of 4,288 votes and 1,243 votes wrongly credited to first respondent and debited against the petitioner respectively by the said results.

6. Your petitioner shall rely on the relevant results recorded by the officials of Federal Electoral Commission supporting the authentic results in attached Schedule ‘B’ to this petition. The respondents are hereby given notice to produce at the hearing of this petition the originals of all such relevant records in their possession, supporting the results in the attached Schedule ‘B’.
7. Your petitioner relies on the following grounds:

(i) That the first respondent, Chief Christian Chukwuma Onoh was, at the time of the election not duly elected by majority of lawful votes at the election held on Saturday, 13th August, 1983.

(ii) That your petitioner has the highest number of votes cast at the said election of Saturday, 13th August, 1983 and has not less than one-quarter of all the votes cast in each of at least two of all the Local Government Areas in Anambra State.

8. Your petitioner further says that the falsified results recorded by the third respondents office in Enugu in the election for Abakaliki and Anambra Local Government Areas in favour of the first respondent to read 105,000 instead of 31 ,446 votes and 71,029 instead of 21 ,226 votes respectively were subsequently corrected after the protest registered thereto by the petitioner at the third respondent’s office.”

For reasons best known to the learned Senior Advocate in this petition, but definitely without amending the pleadings, he limited all his allegations against the deputy returning officer. No mention was made as to the original documents which were in the custody of FEDECO, and which they were requested to produce. They were produced as requested but were never tendered by the petitioner. As far as evident in this case, they were tendered through witnesses of the respondent. I should have thought that from the allegations made by the petitioner, these documents should have formed part of this case but as far as this Court is concerned, a case is conducted on the instructions given by the client to the counsel, and I will say no more on this matter. I agree, however, with that part of the judgment of Kazeem, J.C.A., that the FEDECO documents are public documents.

Academic lawyers have indicated that the courts of justice are not competent to deal with election petitions. I do not intend to deal with the arguments which had been advanced by them since there were indications in all the provisions of the Constitution and the Electoral Act 1982, which granted jurisdiction to competent courts to deal with these matters.

I wish to draw attention to the provisions of section 119 and other sections of the Electoral Act 1982 which conferred the jurisdiction on competent High Courts to deal with legal proceedings arising from petitions filed in court. In some cases the decisions of the court were regarded as an assumption of jurisdiction of voters in their different decisions as to who they voted for to govern or represent them. This is a misconception. What the courts are called upon to deal with are the application of legal principles, to the different election petitions filed before them. It is only academic to conclude that such decisions displaces voters decisions. It is, therefore, necessary to read with some understanding the provisions of our law governing election petitions which read:

“119. (1) No election and no return to the Senate, the House of Representatives or any State Assembly or to any elective office shall be questioned in any other manner except by a petition complaining about the election or the return and presented to the competent High Court in accordance with the provisions of this Act.

(2) In this section ‘competent High Court’ means

(a) in any case involving the office of President or Vice-President, the Federal High Court and on the coming into force of section 262 of the Constitution, the High Court of the Federal Capital Territory established pursuant to section 263 of the constitution;

(b) in any case involving any other office, the High Court of the State as respects which such office is established under the Constitution; and

(c) in any case involving the membership of or the seat of a person in a Legislative House, the High Court of the State where the Senatorial district, Federal constituency or

State constituency of that member or person is located.

(3) For the purpose of exercising any jurisdiction conferred by this Act upon the Federal High Court or the High Court of a State, in any case involving the office of the President, VicePresident, Governor or Deputy Governor, the Chief Judge of the Federal High Court or the High Court of a State as the case may be, shall determine the number of judges that shall constitute the Court.

(4) A petition to question an election or result shall be presented to the competent High Court not later than 14 days from the date that the result of the election is declared and shall be commenced

(a) in the case of the election of President or Vice-President, in the Federal High Court established in the place where the capital of the Federal Republic of Nigeria is situated:

(b) in the case of the election of Governor or Deputy Governor of a State, in the High Court established in the place where the capital of the State is situated at; and

(c) in all other cases, the High Court of the State established for or having jurisdiction in the Senatorial district, Federal constituency or State constituency for which the candidate was elected.”

My brother Bello, J.S.C., has dealt adequately with the grounds of appeal which were argued before us. Whilst appreciating that I could express my views on some of them, I have come to the conclusion that they will ultimately amount to a repetition of the views already expressed by Bello, J.S.C., and with which I am in complete agreement. The only point which I wish to deal with is that which raises the burden of proof on crimes in civil matters referred to section 137 (1) and (2) of the Evidence Law of the former Eastern Nigeria Law which is applicable in Anambra State, and it is identical with the same section of the Evidence Act of the Federation which reads:

“137. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.

(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provisions of section 140, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.”

My brother Bello, J.S.C., has drawn attention to the fact that all the allegations made in the pleadings of the plaintiff were of crimes, forgery of election returns by the deputy returning officers. In the evidence led by the petitioner, suggestions were made that a particular individual was responsible for the alleged forgery committed in the areas and which was subsequently declared valid by the returning officer of the Anambra State. Chief Williams, S.A.N., made strenuous efforts that the allegations were not meant to be of a criminal character but mere arithmetical error or irregularities. With respect my understanding of the allegations of crimes in the pleadings constituted forgery of electoral returns. It was this aspect of what a person who alleges the commission of a crime has to prove that brought in the consideration of our law. It is obvious that the petitioner having chosen to base his claim on alleged commission of criminal offences, it is his duty to prove the alleged criminal offences by evidence, which should be beyond reasonable doubt

The court of the first instance misdirected itself no doubt on this point Where it said:

“However, we agree that in a case like this instant one before us, if the standard of proof is said not to be beyond reasonable doubt, it ought to be of the highest standard, and certainly beyond a mere balance of probabilities. Considering the evidence of all the witnesses that had been called by the petitioner and the respondents, and considering all the documents tendered by the petitioner as against those tendered by the respondents which we have also evaluated, we are fully and perfectly satisfied beyond all reasonable doubts that the petitioner has established the facts alleged in his petition, that the figures as published by the fifth respondent had been grossly inflated with prejudice in Ezeagu, Isi Uzo and Igbo Eze local government areas. We are under no doubt whatsoever that the petitioner had fully established the fact that incorrect results had been announced and published by the fifth respondent with regard to Ezeagu, Isi Uzo and Igbo Etiti elections.”

I had had the occasion to state earlier that before the conclusion of the case in the election petition court, Chief Williams, S.A.N., on behalf of the petitioner had narrowed his allegations to the deputy returning officers. The fifth respondent in this case the returning officer. It is, therefore, difficult to appreciate how the election petition court associated allegations of forgery against the fifth respondent, the returning officer, when that was not the case of the petitioner at all. This misdirection is of such a serious nature as to nullify the relevant pleading of the petitioner.

It has also been suggested that mere allegation of crime without reference to a particular culprit does not amount to one which requires proof under section 127 (1) of the Evidence Act. That might be so but in this case the petitioner had not only mentioned person but he had called evidence to prove the commission of the crimes against the deputy returning officers.

It has also been suggested that when criminal acts are alleged to have been committed by any person, sufficient ingredient of that crime must be indicated. The petitioner in this case without amending his pleadings had sufficiently set out these people who he alleged had committed the criminal offences. All that the court had to decide was whether in law the forgeries alleged had been committed by the named individuals by evidence beyond reasonable doubt. Any suggestion that these criminal offences should be regarded as mere irregularities or arithmetical mistakes is mere after thought and therefore should be ignored.

Lastly, the Supreme Court of Nigeria does not constitute itself as a political party and therefore suggestions of partisanship are borne out of ignorance and should be ignored.

As I have stated earlier, I adopt all the reasons set out by my brother Bello, J.S.C., in the opinion which he is about to read today and dismiss the appeal of the petition as was done at the hearing. I confirm the judgment of the Federal Court of Appeal, Enugu, and set aside the three to two judgment of the election petition court of the Anambra High Court sitting at Enugu.

I wish to draw attention to the Electoral Act 1982. This Court has had the occasion in other cases to declare as unconstitutional the provisions dealing with the hearing and the determination of election petitions. There are other provisions of the Act which I believe need reconsideration. It is the duty of the Courts to administer the legislation made by the legislature. The Courts do not legislate but it is our hope that this country under a presidential Constitution, should be guided in its legislative acts by the provisions of that Constitution.

The Federal system of government operated by each arm of government within certain provisions thereby determining what each arm is limited to in its functions. The academic exercise to oust the jurisdiction of a court in election petitions is welcome, but I do hope that such attempts should be directed to the legislature. To challenge by subtle means the independence and impartiality of the judiciary should be discouraged. Matters or cases are heard in public and everyone is given a chance to have a say to allow the courts to give their judgments. It is too delicate for legal practitioners of any grade to undermine the judiciary.

That should be left to the news media, which does not understand what the institution of an independent and impartial judiciary stands for. I do not ask for encomium from any sector but I will appreciate very much productive criticism, which will lead us all to the goal of justice.

Every judge in this country is dedicated to see that justice is done and those who assist in the achievement of this role will go a long way in its achievement.

IRlKEFE J.S.C. I delivered my judgment in this matter on 8th October 1983, and stated then that I would elaborate on same on 6th January, 1984. In view of the recent change in the Government of this country, I can do no more than adopt and stand by my earlier judgment aforesaid. Any further reasons would be, at best, a sterile and worthless academic exercise.

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Other Citation: (1984) LCN/2241(SC)