Chief Uche Okoroji V. Mazi Nnanna Ngwu & Ors (1992)
LawGlobal-Hub Lead Judgment Report
NDOMA-EGBA, J.C.A.
Appellant, Chief Uche Okoroji, appeals against the judgment of the National Assembly Election Tribunal in Abia State, dated the 28th of September, 1992 whereby the 1st Respondent on record, Mazi Nnanna Ngwu, was confirmed as a duly elected member of the Federal House of Representatives for Arochukwu (Abia State). Appellant contested the seat on the platform of the Social Democratic Party. The 1st Respondent was for the National Republican Party. Upon full consideration of the evidence and careful examination of the legal authorities cited by counsel on both sides for its guidance, the Tribunal below found, as fact in course of its judgment that the appellant’s allegations were “totally baseless, unsubstantiated and lacking in merit”. In consequence, it dismissed appellant’s petition and confirmed the election of the 1st Respondent, Mazi Nnanna Ngwu as the duly elected member of the House of Representatives for thy Arochukwu Federal Constituency.
Wholly aggrieved by the decision aforesaid, the appellant appealed against the whole decision on fifteen grounds. These, without their particulars which are on record, are reproduced and set out exactly as follows:
GROUND 1
ERROR IN LAW
That the National Assembly Election Tribunal erred in Law when it accepted and acted on the illegal and inadmissible evidence adduced before it by the Respondents who did not file a list of objections pursuant to paragraphs 16(1) & 17(1) Schedule 4 Decree No. 18 of 1992.
GROUND 2
ERROR IN LAW
That the National Assembly Election Tribunal erred in Law when it failed to appreciate on the state of the pleadings and evidence before it the petitioner proved his allegation, since once the petitioner led credible evidence in proof on the fact that in Ohaeke Abam Ward Polling booths – Ndi Awora/Ndi Imha, Ndi Arusi Ogbaga, Ohaeke Abam I, Ohaeke Abam iv, and Ohaeke Abam respectively all the registered voters were alleged to have voted and yet many did not vote as their cards showed having not been accredited, the onus of proving that those voters with unaccredited cards were those who sold their voters Cards to Petitioner and later changed their minds and voted without their voters’ Cards shifted on the 1st Respondent who alleged those facts and who failed to discharge that onus.
GROUND 3
ERROR IN LAW
The National Assembly Election Tribunal erred in law when in the light of Exhibit ‘A’ and the failure of 3rd Respondent to declare the result as provided by the Decree it failed to hold that the purported reconstructed result purportedly declared by 2nd Respondent after an inordinate delay of four days from the alleged copies of results procured from the police and NRC Agents which exercise was carried out behind petitioner did not amount to substantial irregularity and non-conformity with the Decree No. 18 of 1992 which vitiated the said result of the election, and also contrary to the rules of Natural Justice.
GROUND 4
ERROR IN LAW
The National Assembly Election Tribunal erred in Law when it wrongfully disenabled the petitioner from calling the 3rd Respondent as a witness on the basis that it had earlier ruled in a sister petition NO.NAET/AB/8/92 that 3rd Respondent was not a competent witness unless the Attorney General consented to his giving evidence and thereby occasioned a serious miscarriage of justice in the case and contravened petitioner’s constitutional right to fair trial.
GROUND 5 -NON DIRECTION
That the National Assembly Election Tribunal failed to direct itself on the vital issue before it and the shifting burden of proof on the question that elections at most polling booths in the three disputed Wards showed full voting by the number of voters in the Register when infact many registered voters did not vote as their voters’ Cards remained unaccredited.
GROUND 6
ERROR IN LAW
The National Assembly Election Tribunal erred in law when it wrongfully excluded admissible evidence namely: Unaccredited voters Cards which were duly pleaded and produced before it and thereby occasioned a miscarriage of justice in the case.
GROUND 7
MIS-DIRECTION
The National Assembly Election Tribunal mis-directed itself in law and in fact when it held as follows without appreciating the alternative nature of petitioner’s pleadings and evidence “We therefore found the averment in the petition and the evidence in support particularly the evidence of the petitioner himself, PW3, and PW4 as well as the submissions of the petitioner’s counsel relating to allegations of no voting in the three Abam Wards and the allegation that the votes cast in Ohaeke Abam, Ohafor Abam II and Ovukwu Abam conflicting…”
GROUND 8
ERROR IN LAW
The National Assembly Election Tribunal erred in law when it failed to properly direct itself on the evidence before it that the legality or validity of the acts of the presiding officers or fabricators of the Result sheets in the Wards complained of, depended on whether or not their said acts met the requirements prescribed by Decree No 18 of 1992 under which they were appointed to perform their specific duties and that their said acts lack any legality and no legal or proper election or results flow from them.
GROUND 9
ERROR IN LAW
The Tribunal erred in law when it wrongfully evaluated the evidence before it and arrived at the wrong decision.
GROUND 10
ERROR IN LAW AND MISDIRECTION
The National Assembly Election Tribunal erred in law and misdirected itself in law when it held that the evidence of PW7 relating to the arrest and detention of 29 other agents was hearsay and that the evidence of the witness did not go far enough to link the 1st Respondent with Chief Nkochi’s act.
GROUND 11
MISDIRECTION
The National Assembly Election Tribunal misdirected itself in law and in fact when it held “Regarding the allegation of snatching forms EC8 and other Election materials allegedly by NRC operatives, we found no iota of evidence to link any person with the act and the Tribunal was not told how the disappearance of the materials affected the result of the election. We found no substance in the allegation”.
GROUND 12
MISDIRECTION
The National Assembly Election Tribunal misdirected itself in fact when it said “In any case the petitioner himself did tell the Tribunal in cross-examination that after the receipt of the result sheets he computed all figures but found no error in addition of the result” by which misdirection it wrongly came to the conclusion that 7th Respondent did not tamper with the result.
GROUND 13
MISDIRECTION
The National Assembly Election Tribunal misdirected itself in law and in fact when it held “It is our considered view that place and manner of announcement of result cannot be a ground for election petition. We think it preposterous, with due respect to Mr. Okoronkwo, to say that merely because the result of the election was announced in Umuahia by 2nd Respondent rather than in Arochukwu by 3rd Respondent, the election should be declared void. We hold that this non-compliance has not substantially affected the conduct of the election or principle of the Decree. We also so hold the delay in announcing the result of the election.”
GROUND 14
MISDIRECTION
The National Assembly Election Tribunal erred in law when it stated that the non-compliance by the 7th Respondent with the provisions of paragraph 31 (2) (e) Schedule 3 of Decree No 18 of 1992 did not in any way affect the result of the election,
GROUND 15
The judgment is against the weight of evidence.
The grounds of appeal are fully reproduced for purposes of record and for easy appreciation of the issues upon which this appeal may be determined. Although these (grounds of appeal) were defined as being errors in Law and mis-directions, all turn on fact touching the burden of proof of the allegations made by appellant excepting Ground 1. I will return to this soon.
In the petition to which I would advert later in greater detail, appellant complained of massive irregularities and malpractices in the conduct of the election on the 4th of July, 1992 especially in three wards in the Constituency, namely Ohafor Abam II, Ohaeke and Ovukwu, According to appellant, the 1st Respondent was “purportedly” declared winner, notwithstanding the irregularities and malpractices complained of by him (appellant), These include wrong accreditation of votes, violence, arrests and threats of his agents. He mentioned particularly the unfair involvement of the Chairman of the Arochukwu Local Government. Chief Kalu Okocha, in the conduct and supervision of the election. In connection with all this, paragraphs 15 to 23 of the petition are important. These are therefore set forth verbatim hereunder:
15, “Chief Kalu Nkochi, apart from ordering the lock-up of the petitioners party agents, even ordered the Police to detain your petitioner. The election in Ovuku was not conducted in accordance with the law and the election was not free and fair nor in accord with the Decree.
- Your petitioner avers that the votes cast in Ovukwu ward were invalid and unlawful in that the Chairman of Arochukwu Local Government, in collaboration with the Police, arrested your petitioner’s agents thus leaving the polling booths bare and at the mercy of Chief Nkochi who is the general agent and privy of the 1st respondent to manipulate the returns contrary to the regulations.
17, In Ohafor Abam II ward, all the votes cast in the six polling stations were tainted and are not lawful votes in that a total of 191 voters cards were not accredited as having voted in accordance with the Decree yet everybody from the ward voted less 36. The petitioner at the trial shall contend that it is impossible to determine which candidate received the fictitious votes of the 191 as shown in the list of votes objected to and heads of such objection.
- A form EC8B No. AB00024 on which the alleged returns from Ohaeke Abam II were entered was being hotly contested at the collation centre when Chief Nkochi arrived without security escort (contrary the Decree) and the collating centre was attacked by a mob and every other paper there was snatched from Chief Nkochi and officials and torn to pieces.
- At Ohaeke Abam ward, the 1st respondent’s agents and collaborators simply awarded votes to 1st respondent and petitioner, contrary to the Decree but in 5 of the 10 polling booths. namely:- NDI AWORA/NDI IROHA, NDI ARUNSI OGBAGA, OHAEKE ABAM I, OHAEKE ABAM IV, OHAEKE ABAM V, a total of 205 voters cards were not accredited in accordance with the Decree.
(19a). In Ohaeke Abam VI pulling station, your petitioner’s score was unlawfully omitted from Form EC8B even though the scores of your petitioner and 1st respondent were entered in Form EC 8A triplicate of which was given in accordance with the Decree. The 5th respondent issued a false return in this regard. The 2nd respondent is given notice to produce the said Form EC8A and EC8B at the trial.
- 550 voters are registered in Ndi Iroha while a total of 550 voted with 79 voters cards unaccredited. Out of a total of 600 registered voters in NDI ARUNSI OGBAGA all of them voted but 42 voters cards for the said polling station were not accredited. In Ohaeke Abam I polling station 550 voters were registered and 480 were alleged to have voted but 24 voters cards thereof were not accredited. In Ohaeke Abam IV 300 voters are on the register and 300 voted but a total of 9 voters cards for the said polling station were not accredited. In Ohaeke Abam V 500 voters were registered and they all were alleged to have voted but 44 voters cards unaccredited.
- Your petitioner contends that based on the annexed analysis or list of the votes in Ohaeke Abam which are objected on the head that each is tainted with the unaccredited votes which nobody knows to which candidate they were given. The said list of objected votes in the polling stations are annexed here as part of this petition and they affected the result of the election.
- Your petitioner avers that his polling agents in the three wards called Ohafor Abam II, Ohaeke Abam and Oveukwu were intimidated, arrested and detained by the Police on the orders of Chief Nkochi and only released after the election. These wards are situated in Abam the home base of Chief Nkochi, a stalwart of the National Republican Convention. The names of some of these agents are:-
Ezeali Nwosu, Ukwa Udonsi, Kanu Okoro, Oba Orji, Okoro Elekwa, Nwagwu Chiba, Udonsi Moboro, for Ohaeke Abam ward: Peler Chinasa, Nwankwo Ezeali, Okorafor Ezeani, Godwin Cinwendu, Godwin Udonsi, Godwin Okereke, Okoro Ezuma, Okereke Chidi, Okereke Charles, Ijoma Iroaganachi, Okoroafor Oti for Ovukwu ward, Eni James Nnana, Emmanuel Okoro, Okereke Victor, Ikoronkwo Onu, Monday Oti Emmanuel Okoronkwo.
- None of your petitioners agents took part in the election at Okaeke Abam, Ohafor Abam II and Ovukwu and there was wide spread disruption of polling there all being the handiwork of Chief Nkochi who all along through out the campaign was always speaking and working for the election of 1st respondent as his agent.”
Some of the allegations were directed to the employees of N.E.C. who appear on record as respondents to the appeal.
Having set out, albeit briefly, the facts taken from the petition and from the evidence produced in support of it and in rebuttal, I will now consider the issues in relation to the rather wordy grounds of appeal some of which appear to me mere statements of facts and not concisely formulated grounds of appeal to guide the Court. Ground I concerns the admissibility or exclusion of legally admissible evidence.
As requited by the Rules of this Court, Briefs of argument were prepared, filed and exchanged. The parties through counsel adopted their respective briefs of argument and addressed the Court orally highlighting areas which appear important. For the appellants, ten issues were identified for determination. There, as the grounds of appeal, are equally verbose; more of argument and presumptions than clearly expressed issues for resolution. For purposes of argument and of record, these are reproduced in full as written. They read:
“2.01 Was there any defence in respect of the votes objected to by the Petitioner i.e. was the evidence of the petitioner as to the votes to which he objected and the heads of his objection controverted or disproved by any evidence from the Respondent?
2.02 On the state of the pleadings and evidence and considering the shirring burden of proof, did the Respondents discharge the onus of proving that the bearers of the unaccredited Cards actually voted without their cards as opposed to petitioner’s pleadings and evidence that they did not vote but were merely shown as having voted in the result sheets.
2.03 Was 2nd Respondent entitled in the light of Exhibit ‘A’ declared by 3rd Respondent to compile and declare his own result all be it in the name of NEC in the view of the provisions of the Decree relating to conduct of Election and declaration of result and assuming he could construct a result in his own right from alleged Police and NRC Result sheets, was he entitled to do so in the presence of NRC Agents and the Police and in The absence of petitioner (SDP) or his Agents four days after the election and whether his action in the matter did not contravene the rules of Natural Justice.
2.04 By its Ruling in The sister petition NO.NAET/AB/3/92 that 3rd Respondent could not give evidence for the petitioner without the consent of the attorney General which ruling it was agreed would bind this petition, did not the Tribunal wrongfully prevent the petitioner from calling a very vital witness in the case whose evidence would have settled the issue contained in Exhibit A one way or the other, and was the Tribunal right in so ruling, if not, did failure to call the said witness not seriously militate against the Petitioner’s case in a manner that contravened the principles of fair hearing under the Nigerian Constitution 1979.
2.05 Was there really any contradiction in the evidence of petitioner and his witnesses and the address of petitioner’s counsel on the issue of there being no election and the votes being unlawful and the election not being free and fair and the votes cast being tainted or do all those statements point to one and the same fact namely; that there was no real election; In the circumstances of the evidence stated above was the Tribunal right in treating them as contradictions?
2.06 Did the conducts of the respective officers of the election meet the requirements prescribed by the Decree No. 18 of 1992 appointing them to perform the specific duties. If not did such conducts not lack any legality to the extent that no legal consequences flowed from them.
2.07 Did the Tribunal properly evaluate the evidence before it and did it weigh such evidence on the imaginary scale implicit in MOGAJI v ODOFIN (1978) 4 S.C. 91,93.
2.08 Was the Tribunal right in refusing to act on the evidence of PW 7 on the grounds that it was hearsay mid that there was no sufficient link between the acts of Chief Nkochi and 1st Respondent.
2.09 Did the Tribunal properly direct itself on the law and facts placed before it at trial of the petition on the vital aspects and issues arising in evidence and pleadings of the parties.
2.10 Was the Tribunal right in rejecting the unaccredited voters Cards and the letter written by Mr. Ayi as exhibits in this case?
if not, what was the effect of their exclusion from evidence on the petitioner’s case.”
Chief Obonna for the appellant explained during argument of the appeal that issue No. I relates to the 1st ground of appeal while the 2nd question involves consideration of 2nd to 5th grounds of appeal. The 3rd and 6th issues cover grounds 3 and 8 and the 4th, Ground 4 is connected with Ground 7. Ground 9 to 15 are enveloped in the 7th issue. The 8th issue is tied to Ground 10. The 9th issue takes in Grounds 11, 12, 13 and 14. The 10th issue learned counsel stated, relates to Ground 6 of the appeal.
Chief Kalu firmly stated that 1st Respondent was declared winner of the Election to the Federal House of Representative and not “purportedly” declared winner. He adopted all the issues expressed and set out in the appellant’s brief, supra.
On the 1st issue, Chief Obonna for the appellant submits that seeing that the Respondent is claiming the seat for himself as the “unsuccessful candidate”, alleging that he had the majority of lawful votes cast. Respondent ought to have, filed a list of objections within the time stipulated in paragraph 16(1) 4th Schedule, as the appellant did. This non-compliance with the requirements aforesaid, appellant argued, deprived him of any defence to the petition. Learned counsel referred to Section 137 of The Electoral Act 1982 and to the decisions in Ojukwu v. Onwudiwe (1984) N.S.C.C. 172 at 185 Olukade v. Alade (1976) 2 S.C 183, Owoniyi v. Omutoso (1961) 1 All N.L.R. 390, among others to strengthen his submission.
Chief K. Kalu Ogba for the 1st Respondent contends in reply that the “list of votes intended to be objected to by him” refers to the votes officially announced by N.E.C. which a party intends to object. A party who won the election is not expected to make any objections, Chief Ogba submitted. He was of the view that paragraph 16(1), supra, is inapplicable to the 1st Respondent.
I am inclined to the submission of Chief Kalu Ogba on the interpretation of 16(1) of the 4th Schedule on the provision of a list of votes “intended to be objected by him”. It is irrelevant to the Respondent’s position. 1st Respondent is neither “the defeated candidate nor “one claiming the scat for a defeated candidate”.
In the contemplation of Section 89 of Decree No. 50 of 1991, he is not a petitioner in the instant appeal. The Appellant was the petitioner.
The latter is therefore not affected by the provisions of paragraph 16(1), supra; the objective of which is clear and unambiguous.
The wording and intendment of Section 137 of the Electoral Act are substantially similar to those in paragraph 16(1), supra, Ojukwu v. Onwudiwe, (1984), 1 SCNLR 24 is, although dissimilar on facts, on principle applicable. It explains the basis upon which the judgment in Opia v. Ibru (1992) 3 NWLR. (Pt.231). 658 at page 666 rests but not as presented by Chief Obonna for appellant in the instant appeal. See per Akintan J.C.A. 708, paragraphs A – C at page 66. In view of the foregoing, Ground 1 of the appeal cannot succeed. It fails, 1st Respondent could not therefore forfeit his right to testify as stipulated in paragraph 16(2) of the 4th Schedule.
Issues Nos. 2, 3, 4, and 5, except the complaint made in passing. I think, of breach of fair hearing entrenched in the Constitution, could be considered together. All of this swing on the burden of proof in civil cases and whether the appellant on whom it rests, discharged it in this case. It may be noted that appellant complaint of malpractices in the conduct of the Election is only is respect of Ohaeke, Ohafor Abam and Ovukwu Wards. In the rest of the Federal Constituency, the election is presumed to have been conducted substantially in conformity with the Decree. The issue aforementioned are also of fact. This also criss-crossed issues numbers 6,7,8,9 and 10 formulated by learned counsel for the appellant. Chief Obonna.
Admittedly there was an election in the wards aforementioned. Appellant thought that if the votes recorded in the three wards were not cancelled or disregarded, he would have a majority of lawful votes. He did not say the total number of votes he scored in numerous other wards in the Arochukwu Federal Constituency. Chief Obonna assumes that the 1st Respondent did not rebut the aliegations that the votes in the three wards were either “cancelled or disregarded”. The Respondents strongly denied the allegations and adduced evidence to substantiate the denial.
1st Respondent in reply to the appellant’s petition admitted that there was three days delay in announcing the result of the election, the reasons for which were explained to the parties. He denied that there was rigging in the three wards mentioned herein before by the appellant. 1st Respondent averred”
“(vi) The results from Arochukwu Local Government Area were neither reconstructed nor recollected from copies presented by N.R.C. Agents or by anyone else whomsoever or at all. Nor was there any allegation of rigging in the wards especially Ohafor Abam II. Ohaeke and Ovukwu.
(vii) Petitioner’s claim in paragraph 7 that he scored 450 votes in Ohaeke Aham while the 1st Respondent scored 50 is false. Ohaeke Abam is a ward and not a polling station. It’s result could not have been entered in Form EC. 8A(1).
(viii) The petitioner by himself seized and tore to pieces all the results and other N.E.C. documents he could lay his hands on at the Collation Centre including those Ovukwu, Ohaeke and Ohafor II.
The Respondents shall at the hearing contend that the petitioner cannot be allowed to benefit from his own wrong.”
The 2nd Respondent asserted that he was under no obligation to accept recommendations, suggestions or advice of any of the officers or agency before arriving at any decision. There was a report that the appellant as petitioner destroyed N.E.C. copies of the result. The 1st Respondent protested it to the 2nd Respondent. He further pleaded:
“(xvii) The 2nd Respondent invited the petitioner over and requested him to produce his own copies of the result. Petitioner admitted having received the results but stated the results were worthless. So he had to destroy them,
(xviii) The 2nd Respondent then invited the Police (the only other independent body after N.E.C. that received a copy of the result) and asked for its own copies.
(xix) A comparison of the results submitted by the 1st Respondent with those of the Police showed the results were genuine. So 1st Respondent announced the results.
(xx) The constituency of the Petitioner and the 1st Respondent (the Arochkwu Federal Constituency) divided into 10 wards with a total of 105 Polling Stations.
(xxi) There was no report of any election malpractice, corrupt practice, undue influence etc. from anyone of the 105 Polling Stations. The allegations of election malpractice intimidation, non-accreditation etc. contained in paragraphs 12, 13, 14, 15, 16, 17, 19, 19(a), 20, 21, 22, 23, 24 and 26 or in any of them and levelled against Chief Nkochi, the 1st Respondent, the Police or anyone else whomsoever are false and malicious. They are only invented to support the unwarranted attack on the Arochukwu Collation Centre by the Petitioner and his agents on the 4th of July 1992. Each allegation is indeed an afterthought.”
The Respondents asserted that the election in the three wards disputed were “free and fair”. They claimed that the Appellant knew that he had lost the election and was out to cause confusion. The defence to the petition is at pages 127 to 138 of the compiled records and this is actually consistent with the facts pleaded in reply to it by the Respondents on record.
I agree with Chief K.K. Ogba that the evidence of the 3rd Respondent was properly excluded. It was sought to prove paragraph 8 of appellant’s petition and tender in evidence the report on the events at the collation centre at Arochukwu on the 4/7/92. This is contained in the written report that results sheets were destroyed and a recommendation that, in consequence, fresh election should he held. Exhibit “A” tendered through Appellant’s witness speaks of the same thing. This being a document PW3 evidence could have been limited to the contents of Exhibit “A” and no more. Oral evidence was therefore unnecessary. At the best it would have delayed the early determination of the petition. I do not therefore see any circumstances to show that the exclusion of oral evidence on Exhibit “A” occasioned a miscarriage of justice. I am certain that hundreds of appellant’s party supporters would have been ready and willing to testify to strengthen appellant’s position at the hearing of the petition if the court had allowed that even if they knew previously that some pieces of evidence were obviously fabrications exaggerations. It now appears as a matter of general knowledge that defeated candidates in some elections are unwilling to concede defeat. They take the opportunity even on sliding stones to fight on until they drown.
If some of them had the courage to acknowledge the success of their opponents, the transitional arrangements would have been clinched and the country set on the path of “true greatness” – unity and prosperity.
Still on the credibility of appellant’s position. I see clearly from the compiled record that learned counsel for the appellant had put in a desperate effort to exploit even the contradictions in their own case to win here willy-nilly having failed at the polls. This Court is not conducting an election. Our duty is to examine the records on the honest guidance of counsel upon which we rely in order to arrive at a just conclusion as whether or not the evidence presented in the printed record, the election was conducted substantially in conformity with the Decree. That is to say whether the election was free and fair. See Awolowo v. Shagari & others (1979) volume 12 p. 87 at 91. This principle is intrinsic in the decision in Nwohodo v. Onoh (1984) 1 SCNLR 1. See per Abiagolu J.S.C. in Ojukwu v. Onwudiwe, supra and Irikefe J.S.C. in Akinfosile v. Ijose (1960) SCNLR 447, (1960) 5 F.S.C. 192.
Indeed the petitioner in the appeal in hand made far too much of the events at the election at the three disputed wards, Ovukwu, Ohafor and Ohaeke. Appellants allegation that the 1st Respondent or his agents were responsible for the incident involving the unaccredited cards was not proved. I have painfully read the record of appeal and am unable to see any evidence in support of all other allegations. It is rather clear from the record and by the admission of the petitioner’s witness at pages 125 and 126 of the record that the alleged unaccredited cards about which Chief Obonna for the petitioner pitched his tent were recovered from the petitioner’s supporters. Chief Obonna was emphatic that the beneficiary of the unaccredited cards was unknown (see page. lines 3 to 6 of the record). In Eriobuna v. Ezeife (1992) 4 NWLR (Pt.236) at 430, Jacks J.C.A. cautioned:
“…the onus is squarely on the appellant (as in this case) to show that non-compliance (if any proved) did in fact affect substantially the result of the election”.
Section 42 (1) of Decree No. 18 says:
“An election shall not be invalidated by reason of non-compliance with the Decree if it appears to the court or tribunal that the election was conducted substantially in accordance with the principle of this Decree and that non-compliance did not affect substantially the result of the election”.
I consider it necessary to emphasise this point, it being of cardinal importance in the consideration on Election petitions. In Morgan v. Simson (1975) Q.B. 151 at 164, it was held that no election is to be declared in-valid by reason of any act or omission by the Respondents or any other person in breach of his official duty in connection with the election or otherwise of the Parliamentary Election Rules or the Local Government Rules, if it appears to the tribunal having cognisance of the question that the election was so conducted as to be substantially in accordance with Law (Decree No. 18)as to elections, and that the act or omission did not affect its result. Where breach of the election Rules taken together, as those in the schedules to Decree No. 18, substantially impair the conduct of the election, it would not be considered free and fair, however trivial the infraction of the Rules may be. This does not depend on the ideas of “defeated candidate” on how an election should be conducted. The guiding principle is the letter and spirit of the Law or Decree, substantial non-compliance is not defined in the Decree. It can only be inferred from the circumstances of a particular case, including the state pleadings (petition and reply) especially the credibility of the petitioner’s position and the nature and substance of the complaints he made. The attitude of the functionaries charged with the conduct of the election should be considered and whether the omissions and commissions complained of by the appellant, even if proved actually deflected the true course of a free and fair election. This calls into question the integrity of the Respondents in the conduct and supervision of the election. Applying the force of this principle to the facts of this appeal, the Respondents performed, in my view, their respective functions reasonably well and consistently with the Decree.
In view of the foregoing, Chief Obonna’s assertion that there was a violation of appellant’s right to fair hearing at the tribunal below is unjustified and merely intended to pick holes. In any case, if learned counsel really felt strongly about it, he should have pursued the allegation by the appropriate procedure.
In the end, I am in agreement with the conclusions of the Tribunal below that the appellant’s petition is completely unmeritorious. In consequence, I dismiss the appeal before us and affirm the judgment of the Tribunal below that the 1st Respondent herein, Mazi Nnanna Ngwu, was duly elected member of the Federal House of Representatives for Arochukwu Constituency.
The petitioner/appellant shall pay to the 1st Respondent cost fixed at N500.00 and N300.00 to the 2nd to 7th Respondents together.
Other Citations: (1992)LCN/0144(CA)
