Dixon Ojiegbe and Anor Vs Marcus W. Ubani and Anor (1961)

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ADEMOLA, C.J.F.

This is an appeal from the dismissal by Hughes, J., in the High Court of the Aba Judicial Division of an election petition arising out of an election held on the 12th December, 1959, to the House of Representatives in respect of the Aba Central Constituency No. 238. The first petitioner who is the 1st appellant, claimed that he voted at the election; the second petitioner who is the 2nd appellant claimed he had a right to vote at the election but that for reasons I shall mention later in this judgment, he did not vote. Counsel for the petitioner who appeared in the court below and in the appeal now before us was the defeated candidate at the election.

For convenience, I will say a word here about this invidious position. Undoubtedly Mr Ubani-Ukoma’s interest was identical with that of the petitioners, although ostensibly he was appearing as their counsel. I think it is undesirable for a barrister to put himself into a situation in which he can-not be “counsel” in the true sense of the word, because he is in substance the party – the petitioner. Mr Ubani-Ukoma should have brought the election petition himself.

The petitioners filed various grounds of objection to the result of the election, but they were all rejected by the learned trial Judge. We are con-cerned in this appeal with a few of the grounds but it is unnecessary to set them down as they are clearly shown in the grounds of appeal which I shall consider later.

Of the ten grounds of appeal filed, five were opposed by counsel for the Respondents and were later abandoned by counsel for the appellant.

Grounds 1, 2, 3, 9 and 10 which were argued are as follows:-

(1) The learned trial Judge erred in Law in the interpretation placed on sections 7 and 11 of Schedule VI to Nigerian (Constitution) Order in Council 1954 – Fundamental Rights. The denial of the right of Franchise to sabbath keepers was an act of discrimination and negation of freedom of conscience and Religion.

(2) The learned trial Judge was wrong in Law by the construction put to the proviso to regulation 43 of the Election (House of Rep-resentatives) Regulations 1958 in that part of his judgment which stated that the right to vote on a holy day rested with the consci-ence of each individual, etc.

(3) The judgment was unwarranted and against the weight of evidence.

(9) The learned trial Judge was unreasonable to reject “Notice to Candidate No. 3”, an admissible document which was sought to disprove the evidence of the principal witness of the 2nd Respondent, and leave of this Honourable Court will be sought to admit it to confirm the allegations made against Mr Odinamadu.

(10) The cost awarded in the Court below is excessive. Additional grounds may be filed on receipt of record of proceedings.

Grounds (1) and (2) were argued together. Shortly put the complaint is that in this particular constituency, many voters belong to a religious sect known as the Seventh Day Adventists, whose rights, it was submitted, were violated; that they were subjected to disability or restrictions in that it is contrary to the ethics of their religion to do anything or any manner of work on a Saturday which is their Sabbath Day. Thus many of them for fear of being excommunicated from the Church refrained from going to the polls. When the polling date was fixed by the Governor-General, protests were made by this sect that it was contrary to their religious belief to exercise the right to vote on a Saturday and therefore the polling day should be changed to Fri-day, 11th December, 1959. After due consideration, the request for a change was refused.

Counsel now argues that the political rights of members of this religious body have been interfered with and this in effect is a matter affecting the Fundamental Human Rights of the various individuals concerned.

Questioned by the Court why no application was made to the Judge in the Court below to refer the matter of Fundamental Human Rights to this Court, Mr Ubani-Ukoma gave no satisfactory reply, nor was he able to explain why an issue of it was not made at the earliest, namely, as soon as the Chairman, Electoral Commission, refused to alter the polling date, and to state that such refusal constitutes an infringement of Fundamental Human Rights of a class.

It is difficult to see on what grounds in section 6 of the Federal Legisla-tive Houses (Disputed Seats) Regulations 1959 the appellants have brought up the present objection. Counsel for the appellant himself was unable to say with any clarity: he thinks section 6(1) (b) might apply.

Now the evidence in the Court below disclosed that there are six to seven thousand adult members of the Seventh Day Adventist Church within constituency No. 238. Some of them, in fact, at the risk of being excommunicated, did carry out their civil duties by going to the polls and casting their votes. When it is considered that the defeated candidate Mr Ubani-Ukoma polled only 12,182 votes as against 32,811 by his opponent thus suffering a defeat by 20,629, one wonders why this point was ever raised in the petition. These two grounds must fail.

There was nothing substantial put forward to merit consideration of the 3rd ground of appeal.
I now come to consider the 9th ground of appeal. It appears that after the case on either side had been closed, the petitioners’ counsel sought to re-call a witness to put a document in evidence. The other side objected. The Court ruled that the witness cannot be recalled without the other side con-senting to it. This appears to be the correct practice and I fail to see how this can be regarded as a refusal to admit a document in evidence. I see no sub-stance whatever in this ground of appeal.

The 10th ground seems to be of some substance. In the matter of costs, the learned Judge in the Court below said as follows:-

In the light of what all the Counsel have stated and having regard to the length of the case and the number of counsel engaged and to the number of witnesses who have given evidence the costs, to be paid by the petitioners, are assessed and fixed as follows:

(1) To the 1st Respondent the sum of 400 guineas.

(2) To the 2nd Respondent the sum of 400 guineas.

What Counsel stated and agreed upon was that the hearing lasted 10 days; the 1st Respondent brought (not subpoenaed) 35 witnesses to come but only called five: he had the services of three counsel but only one was present at a time. The 2nd Respondent called 5 witnesses including two bus-iness executives. Of the two one was sent for when his evidence was about to be taken. There were also three preliminary motions. Lastly, the attention of the Judge was directed to an award of two thousand guineas which was awarded as costs in an election petition heard at Warri a month before the hearing of the present petition.

There were no other grounds given for the award of costs made by the learned trial Judge more than I have mentioned.

Costs are matters within the discretion of the trial Judge. As a rule this Court will not interfere with the Judge’s discretion. Principles which are to be adopted and when this Court will interfere with the discretion of the Judge are set out in the Warri case already referred to, where the award of 2,000 guineas was reduced to 600 guineas – F.S.C. 202/1960, O. N. Rewane v.  Festus Sam Okotie-Eboh, 5 F. S. C. 200.

It is clear that in the award of costs the learned trial Judge has not shown for what items he allowed costs and how much was allowed in respect of each. It is not possible for this Court to suggest for what items costs were awarded. It is however not unlikely that the 2,000 guineas awarded as costs which was referred to made some impression in the mind of the Judge. With-out any doubt, however, the costs awarded are out of proportion to the costs properly recoverable in this type of case. Costs will therefore be awarded on the ordinary principle of genuine and reasonable out of pocket expenses and normal counsel’s costs usually awarded to a leader and in this case, a junior.

I would dismiss the appeal against the declaration made in the election petition by the learned Judge. The appeal about costs will be allowed. I would set aside the Order made by the learned trial Judge as to costs and would substitute an Order for 200 guineas in favour of the 1st Respondent and 100 guineas in respect of the 2nd Respondent. The appellant lost on the main point of having the election set aside, on which most of the time was spent at the hearing of the appeal. The respondents are allowed reduced costs, at twenty-five guineas for respondent No. 1 and at fifteen guineas for respondent No. 2.

TAYLOR, F.J
I concur.

BAIRAMIAN, F.J
I concur.

Appeal against dismissal of Petition refused.

Appeal as to cost allowed. Costs reduced by the Supreme Court.

Other Citation: (1961) LCN/0913(SC)