Cosmos C. Chukwu V. M.O.B. Igwe & Ors (1988)
LawGlobal-Hub Lead Judgment Report
OMOSUN, J.C.A.
This is an appeal by the petitioner against the judgment and orders of PATS-ACHOLONU, J., sitting at the Mbano/Etiti High Court which judgment was delivered on 22nd February, 1988.
The appellant had filed an election petition in the High Court, Mbano Etiti in Suit No.HME/1/88 claiming as follows:
“Whereof your petitioner prays that it may be determined that the said M.O.B. Igwe was not duly elected/returned and that the said Cosmos C. Chukwu (appellant) was duly elected and ought to have been returned.”
The grounds upon which the prayer is based are stated in paragraph 3 of the petition. They are as follows:
(a) that the first respondent was not duly elected by a majority of lawful votes at the election and/or
(b) that the petitioner was validly nominated but was unlawfully excluded from the election (in that the 2nd and 3rd respondents) refused to publish the score/result of the petitioner’s election.
The 1st respondent filed a reply to the petition. The 2nd and 3rd respondents did not enter appearance and did not contest the petition. The case proceeded to trial and on the 22nd February, 1988, the petition was dismissed after a full hearing. The appellant is dissatisfied with the decision and now appeals to this Court.
In broad outline these are the facts. The appellant was a candidate for the Local Government Elections held throughout the country on 12th December, 1987. He sought to contest the election in OKATA WARD in the Etiti Local Government Area of Imo State. The 1st respondent was a candidate in the same ward. He was returned as duly elected for the Okata Ward.
The appellant’s case was that he was validly nominated and issued with Ex “B” – certificate of valid nomination by 2nd respondent. Then his tribulations started. His name did not appear in the list of candidates for election to the councillorship of Okata Ward. No reason was given for the non inclusion. However, the 2nd respondent allowed him to contest the election on 12th December, 1987. He had earlier protested to the State Electoral Commission, Owerri against the omission of his name from the list of candidates.
He sued the Commission too but withdrew the suit on 10th December, 1987.
At the conclusion of the polls he scored 1362 votes and 1st respondent scored 688 votes. Yet 1st respondent was declared duly elected.
The 1st respondent’s case is this: He admitted that the petitioner was a candidate at the Local Government Elections held on 12th December, 1987 for Okata Ward. Appellant ceased to be a candidate when he was disqualified for not being ordinarily resident in the Okata Ward for a period of not less than 12 months prior to the date of the election. The appellant lives at 52 Odion Road, Warri, his place of business. He pays his income tax at Warri.
Both the appellant and the respondent were candidates for the said election but when the appellant was disqualified, he was the only qualified candidate for the Okata Ward and so he was returned unopposed. The respondent mentioned that he was duly elected by a majority of lawful votes cast at the election because the votes cast for a disqualified candidate do not count for any purpose.
The issues for determination are as formulated in paragraph 4 of the appellant’s brief and are as follows:
ISSUES FOR DETERMINATION
(a) Was the learned trial Judge right in holding that the appellant was not qualified to contest the election when:
(i) The Electoral Officer who had the responsibility to take the decision as to the appellant’s qualification for election, has decided that the appellant was so qualified;
(ii) Nobody called for the comments of the appellant before omitting his name from the list of candidates to contest the said election;
(iii) That the appellant contested the election in his indigenous ward, where he permanently lives/resides.
(b) Was the learned trial Judge right to receive evidence of objection to the said election when:
(i) it was conceded on both sides, that the election between the appellant and the first respondent for the Okata Ward was validly conducted, and was done in substantial conformity with provisions of the Local Government Elections Decree;
(ii) the first respondent did not file a list of objections to the election (if any) within six days after filing of his reply.
(c) What is the rational interpretation to be placed on Section 5 of Local Government Elections Decree No. 37 of 1987.
(d) Did the learned trial Judge correctly evaluate the evidence of the appellant and his witness, when:
(i) he failed to advert his mind on vital oral and documentary evidence in support of appellant’s case;
(ii) he drew inferences and came to conclusions that were extraneous to the evidence before him.
Issues (a) to (c) relate to ground 1 of the appeal while issue (d) relates to ground 3 of the appeal. Ground 2 of the appeal was abandoned and is accordingly struck out.
Chief Bon Nwakanma, learned Counsel for the appellant, adopted his brief of argument dated 22nd April, 1988. He expatiated on some of the submission in his brief. In his oral submission he drew our attention to Section 4 of Decree No. 37 of 1987 which states the qualifications of a candidate for the Local Government Elections and that paragraph 4 SCHEDULE 2 of the said Decree states the duties of the Electoral Officer in relation to such elections.
He said the 2nd respondent satisfied himself that the appellant met the requirement under Section 4 of the said Decree and issued Ex “B” – a certificate of valid nomination. He relied on paragraph 4(3) of SCHEDULE 2 to Decree No. 37 of 1987 that the decision of the Electoral Officer (2nd respondent) is final and entitled the appellant to contest the election. He drew a distinction between the decision of an Electoral Officer that a candidate has been validly nominated and a candidate who has not been validly nominated.
The later is subject to a review by the court.
He said the appellant was never told he was disqualified to contest the election or given any reason for his disqualification. This he submits is contrary to natural justice for the appellant was never given an opportunity to defend himself. He attacked the finding of the learned trial Judge at page 51 and submitted that because of this he wrongly placed the onus on the appellant whereas it is the 1st respondent who is saying that the appellant is not qualified inspite of Ex “B.” He pointed out that the issue of residency qualification arose as a defence in the 1st respondent’s reply and the learned trial Judge was therefore wrong in receiving any evidence on appellant’s qualification. He submitted that the learned trial Judge wrongly misinterpreted the provisions of Section 5 of Decree No. 37 of 1987.
In his own submissions, Dr. Aguwa said that for a person to be eligible to contest the December 12th elections, he must have all the qualifications set down in Section 4(1) of the Decree No. 37 of 1987. He submits that the appellant did not possess those qualifications when he purportedly contested the election. He was not ordinarily resident in the Okata Ward in accordance with Section 4( 1)( c) of the said Decree. It is pointed out that appellant knew he was disqualified and yet went to contest the election.
He submitted that the votes cast for the appellant are wasted and the 1st respondent was duly elected on the lawful votes cast. He concedes the point that paragraph 4(3) of SCHEDULE 2 to the Decree provides that the decision of the Electoral Officer that a candidate has been validly nominated is final but says that disqualification of a candidate after nomination is not the sole responsibility of the Electoral Officer. He submits further that a valid nomination can be revoked if it is subsequently discovered that a candidate is not qualified.
He referred us to Stephen H. Griffith’s Law Dictionary where residence is said to mean broadly “any place of abode that is more than temporary.”
He urged us to hold that the appellant was not ordinarily resident as envisaged in Section 5 of Decree No. 37 of 1987. The appellant was disqualified ab initio from contesting the election.
It is common ground that the election of 12th December, 1987 in Okata Ward was valid. The only issue left for determination was whether the petitioner was resident in Warri or Okata. The 1st respondent in his reply to the petition at page 10 by paragraphs 2, 3, 4 averred that the appellant does not live at Okata. He led evidence to establish those averments. The learned trial Judge found as a fact that the appellant lives at Warri for he held at page 51 of the record as follows:
“I am satisfied that the petitioner was disqualified because he was not ordinarily resident at Okata to meet the qualifications.”
I agree that the matter of residence qualification arose in the defence of the 1st respondent. It was an issue to be determined and I am of the opinion that the learned trial Judge was right in receiving evidence on appellant’s qualification. Residence is a qualification to be met before a candidate can contest the election. The argument of Chief Nwakanma, with all respect, that the learned Judge was legally in error in receiving such evidence on appellant’s qualification when there was no election petition against him seems to be one which makes up in ingenuity what it lacks in reality.
Now Section 4(1)(c) of the Local Government Elections Decree No. 37 of 1987 provides as follows:
“4 – (1) A person shall not be qualified as a candidate to contest any Local Government election unless.
(c) He is ordinarily resident in the Ward or constituency in which he is contesting an election for a period of not less than twelve months prior to the date of the election.”
Section 5(1) of the said Decree tells us what “ordinarily residence” means. It says:
“‘For the purposes of this Decree a person shall be deemed to be ordinarily resident only in that place where he normally lives, sleeps, and has his usual abode. Whether or not the said place is in his State of origin.” (Italics ours)
It is plain to me that there must be some degree of continuity apart from accidental or temporary absence and it is a question of fact whether a person is ordinarily resident in a place or not – Sawyer v Kropp 85 L.J. K. 8. 1446.
Levene Inland Revenue Commissioners (1928) AC 217. In my opinion Section 5( 1) of the said Decree is clear and unambiguous. It means what it says – that place where he normally lives, sleeps and has his usual abode. It connotes residence in a place with some degree of continuity, apart from accidental or temporary absences.
I reject the ultra legalistic interpretations put on it by Chief Nwakanma in his brief at page 5.
The main prop of Chief Nwakanma’s submission is the reliance placed on paragraph 4 of SCHEDULE 2. In accordance with paragraph 4(3) of SCHEDULE 2 to Decree 37 of 1987, the decision of the Electoral Officer as to the valid nomination of a candidate is final. The paragraph 4(2) provides that “The Electoral Officer’s decision that the candidate has been validly nominated shall be final.” It is argued that such is the position in this case Ex “B” having been issued. It is stressed that before Ex “B” was issued, the Electoral Officer must have satisfied himself that the appellant met the conditions set out in paragraph 4(2) of SCHEDULE 2. It is of importance that paragraph 4(2)( e) says that the Electoral Officer shall be entitled to hold the nomination invalid if “the candidate is disqualified under the provisions of Section 4 of this Decree.” And Section 4(1)(c) deals with the residence qualification.
In this set of circumstances, it is my view that the learned trial Judge was entitled to find out whether when Ex “B” was issued, the appellant was qualified to contest. Ex “B” or the decision of the Electoral Officer does not preclude an inquiry as to the eligibility of a candidate.
The appellant by Ex “B” at pages 70-71 of the records protested against his disqualification. It did not question the authority of the State Electoral Commission to disqualify him but objected to the grounds on which he was disqualified. Appellant even went to court but withdrew his case on 10th December, 1987. The appellant contested the election for the reasons stated in the Electoral Officer’s testimony at pages 26-27 of the records. He received the majority of votes cast. 1st respondent was declared elected with lesser votes.
I agree with the submission of Chief Nwakanma that the nomination having been declared valid in accordance with paragraph 4(3) of SCHEDULE 2 to Decree 37 of 1987, he was entitled to contest the election. It was a valid nomination. But he was disqualified by State Electoral Commission at Owerri. However, both at the time of the nomination and election, he was disqualified by reason of non compliance with Section 4(1)(e) of Decree No. 37 of 1987. It seems to me reasonably clear that a valid nomination is what LORD WATSON said that expression meant in Pritchard v Mayor of Bangor (1888) 13APP. CASES 241 at 252. LORD WATSON said at page 252:
“If no objection is made, or if objections are stated and repelled by the Mayor then the nomination becomes a valid nomination. I do not mean to suggest that it is final and conclusive upon questions of disqualification or other similar objections which may be taken to it, but I think it was intended to be conclusive to this effect that the nomination paper so sustained as valid should form the basis of the election and that the nominee in that paper should be treated as a person for whom votes could be given before the returning officer. ”
In Hobbs (Petitioners) v. Morey (Respondent) (1904) 1 K.B. 74 at 78, KENNEDY, J, said:
“‘The expression “‘valid nomination” therefore includes the case of a person who is disqualified in fact, but whose disqualification is not apparent on the nomination paper and whose nomination has been accepted by the Mayor.”
It seems to me reasonably clear that paragraph 4(3) of SCHEDULE 2 to Decree 37 of 1987 is not meant to be final and conclusive upon questions of disqualification. The appellant contested the election. He scored the majority of votes. Yet the respondent with lesser votes was returned as duly elected. The relevant law appears to be that where a disqualified person is elected, the votes cast for him are thrown away and his opponent is deemed to be elected if, but only if, the facts giving rise to the disqualification were so notorious as not to require proof that they are within the knowledge of the electors; otherwise the election is void and a new election must be held (see In Re: Parliamentary Election for Bristol South East (1961) 3 WLR 577 and the authorities discussed at page 601 et seq.) per CHARLES, J in Ameokoja v Eyiowuawi (1961) 1 All NLR (Part 4) 805 at 810.
The next question for determination is whether the appellant was ordinarily resident in the Okata Ward for a period of not less than 12 months prior to the date of the elections. In my judgment there is abundant evidence to support the findings of the learned trial Judge that the appellant was not ordinarily resident at Okata to meet the qualifications. He considered the evidence of residence – oral and documentary – led by the appellant. He rightly rejected the evidence. I agree with the finding that the “petitioner has failed to convince the court that he was qualified and eligible to contest the elections.” The appellant therefore did not meet the provision of Section 4(1)(c) of the Decree.
I turn next to the effect of the votes cast for him. In Hobb.5 (Petitioner) v Morey (Respondent), (supra) the petitioner and respondent were nominated in proper form for the election to the office of councillor for a Ward in Borough, and the respondent obtained the majority of the votes and was declared elected. But at the time of the nomination of the election, however, he was disqualified by reason of his interest in a contract with the council.
The petitioner claimed he was entitled on the ground that his being the only valid nomination he should be declared elected. The respondent admitted the disqualification. It was held that the disqualification not being apparent on the face of the nomination paper, was valid, and that as the petitioner did not allege any notice to the electorate of the disqualification of the respondent, the votes given to him could not be treated as having been thrown away and the petitioner was not entitled to claim the seat.
In the case in hand, the appellant was disqualified by the State Electoral Commission, Owerri. He protested. He went to court to ensure he was allowed to contest. He withdrew the suit on 10th December, 1987. The Electoral Officer testifying at pages 27 – 28 of the record said that on 11th December, 1987, at night, the petitioner and a large number of people swarmed into his office telling him that they heard news to the effect that disqualified candidates could now contest the election. He said he disbelieved them and sent a radio message to Owerri for confirmation. There was no response from Owerri. He issued a public notice in which he warned all disqualified candidates that they were contesting the election at their own risk. It is plain to me that the electorate were aware that the appellant was a disqualified candidate and so in my judgment the votes cast for him were thrown away.
His disqualification was a notorious fact. It seems to me that the question is really concluded by the judgment of LORD WATSON in the case of Prichard v Mayor of Bangor (above). I therefore answer the question in the affirmative that the votes cast for the appellant were thrown away and the respondent was duly returned as elected.
The last ground of appeal attacks the method of evaluation of the evidence.
It is submitted that the learned trial Judge did not follow the rule laid down in Mogaji v Odofin (1978) 4 SC 91 in evaluating the evidence before him. The answer to this must lie in the examination of the records. This is the course the learned trial Judge took. He reviewed the appellant’s case at pages 36-9 of the printed records, that of the respondent at pages 39-40. He considered the submissions. He gave reasons why he disbelieved the appellant’s case and accepted that of the respondent and then made his findings.
The learned trial Judge dispassionately and meticulously considered the whole case and made findings which are amply supported by evidence on the record. He saw and heard the witnesses. The attitude of an appellate court as to findings of facts made by a lower Court is now well settled. OPUTA, J.S.C. in Igbinude Obodo v Emmanuel Ogba (1987) 2 NWLR (Pt.54) 1 at 10 said:
“The business of an appellate court is not to re-open the dispute and start trying the case as it were de novo – no far from it. The proper function of the appellate court is to oversee, to superintend and to review the way the dispute and the issues arising therefrom were tried, to see whether the trial Court used the correct procedure and/or arrived at the right and proper decision.Igboke Oroke v Chuku Ede (1964) NNLR 118 at 119/120.”
On the printed records he came to the right conclusion. The totality of the evidence was considered to see which has weight and which has no weight at all. The appellant’s case was so patently bad that no reasonable tribunal could possibly act upon it. In such a state, the learned trial Judge was perfectly entitled to dismiss the appellant’s case. He was not in violation of the Mogaji v Odofin case (above).
This appeal lacks merit. I dismiss the appeal and affirm the judgment in Suit No. HME/1/88 delivered at the Mbano/Etiti High Court on 22nd February, 1988. I award the respondent N400.00 costs to be paid by the appellant.
Other Citations: (1988) LCN/0059(CA)
