Evangelist Johnson Igodo V. Godwin I. Owulo & Ors (1999)

LawGlobal-Hub Lead Judgment Report

NZEAKO, J.C.A.

At the Oju Local Government Area of Benue State of Nigeria Chairmanship elections held on 5th of December 1998 and another election of 12th December 1998, the appellant and the 1st respondent were candidates. The Independent National Electoral Commission (INEC) at the conclusion of the elections declared the 1st respondent the winner.

Dissatisfied with the decision of INEC, the appellant filed a petition at the Local Government Council Election Tribunal holden in Makurdi. The petitioner/appellant in his petition complained:

(1) That the 1st respondent was not qualified to contest the election.

(2) That the 1st respondent was not validly elected by a majority of valid votes cast at the election.

(3) That the bye-election held at Ainu Council Ward on 12th December 1998 was unlawful as the election was voided by corrupt practices, offences and non-compliance with the provisions of the Decree.

Among others, the petition stated that the petitioner prayed the tribunal.

“That the said Godwin I. Owulo was not duly elected or returned and his election was void and that the said Evangelist Johnson Igodo ought to have been returned as duly elected.

The 1st respondent filed a reply. For the 2nd – 6th respondent, a joint reply was filed. The respondents thus joined issues with the petitioner on his petition.

The parties called evidence and cross-examined each other’s witnesses.

Trial concluded, the Election Tribunal dismissed the petition of the appellant and confirmed the declaration by the INEC of the 1st respondent Godwin I. Owulo as duly elected Chairman of Oju Local Government Council.

Dissatisfied with the decision of the Election Tribunal, the petitioner appealed to this court.

The grounds of his appeal are as follows:

1. The decision is against the weight of evidence.
2. The tribunal erred in law in holding that the election of 5th December 1998 in Ainu Council Ward of Oju Local Government Area was not conclusive in the circumstances of the case.
3. The trial tribunal erred in law when it held that the 2nd-5th respondents complied with Decree 36 of 1998 when it ordered a bye-election at Ainu Council Ward of Oju Local Government Area on the election rather than declaring and returning the appellant duly elected with the valid votes of 20,100 and required spread to the 15,348 valid votes of the 1st respondent.”
4. The tribunal misdirected itself on the facts when it held that the election of 5th December, 1998 in Oju Local Government Area was disturbed or substantially disturbed by an intervening cause.
5. The tribunal erred in law when it held that the second election ordered and conducted at in Ainu Council Ward on 12th December, 1998 was proper and lawful.
6. “The tribunal failed to adequately review and evaluate the evidence before it in coming to its decision dismissing the of appellant.”

The reliefs sought by the appellant are as follows:

“a. allowing the appeal;

b. setting aside the decision of the trial tribunal dated 1st February, 1999, and in its place to grant the appellant the relict’s claimed before the tribunal and

c. nullify the election of 12th December 1998 and return of the 1st respondent as the elected Chairman of Oju Local Government Council.

d. Declare and return the appellant as the elected Chairman of Oju Local Government Council by the conclusive election of 5th December, 1998 with the majority scores of 20, 100 lawful voles and the required spread to 1st respondent’s 15,348 lawful votes.”

Parties exchanged briefs of argument which each adopted and relied upon at the hearing of the appeal.

On the part of the appellant, he urged the court to allow the appeal in accordance with the terms set out in his notice of appeal. The respondents on the other hand, urged the court to dismiss the appeal.

In his brief of argument, appellant’s counsel who also filed a reply brief identified 5 issues for determination in the appeal as follows:

1. Whether the trial tribunal was right in holding that the Chairmanship election of 5th December, 1998 in Oju was conclusive in the circumstances of the case.
2. Whether a winner emerged at the Oju Chairmanship election of 5th December, 1998, after the cancellation of the results of the election from Ainu Council Ward.
3. Whether the Oju Local Government Chairmanship election of 5th December, 1998 was disturbed or substantially disturbed by any intervening cause.
4. Whether the 2nd -6th respondents complied with section 54 of Decree 36 and paragraph 11 of INEC guidelines, when, on the 5th December, 1998 it ordered a second election in Ainu Council Ward of Oju Local Government Council after the cancellation of the results from the same Ainu Council Ward consequent upon the established irregularities.
5. Whether the second election ordered for the 12th December, 1998 for Chairmanship seat in Oju LGA, if proper, ought to be confined to only Ainu Council Ward which is only one of the

eleven (11) Wards in Oju LGA.

The 1st respondent’s issues are set out as follows:

1. Whether the trial tribunal was right in holding that the Chairmanship election of the 5th December 1998 in Oju Local Government area was substantially disturbed by intervening cause and therefore inconclusive.
2. Whether after cancelling the election in Ainu Council Ward, the Independent National Electoral Commission had power under the Decree to order a fresh election in the said Ainu Council Ward only.
3. Who secured the majority votes.

The issues identified by the 2nd – 6th respondents were:

1. Whether the trial tribunal was right in holding that the Chairmanship election of 5th December 1998 in Oju was inconclusive in the circumstances of the case.
2. Whether the trial tribunal was right in holding that the fresh election of 12th December was justified and lawful.

After reviewing the grounds of appeal, the submissions of counsel for the parties and the issues as set out for the parties in their briefs of argument, I find the issues distillable into two major issues for determination in this appeal.

For all the parties have identified the same issue in their issue No 1 and appellant’s issue No. 3 is subsumed in that. Then, from the combination of appellant’s issue No 5, 1st respondent’s and 2nd – 6th respondent’s issue No 2 which are virtually the same, emerges a second issue.

All other issues raised by the appellant and the 1st respondent fall within the ambit of the foregoing and will be addressed along with them.

The two issues for determination in the appeal therefore are:

“1. Whether the Election Tribunal was right in holding that the Chairmanship election was substantially disturbed by an intervening cause and was therefore inconclusive.

This issue arises from grounds 1,2,4 and 6 of the grounds of appeal.

2. If the answer to issue No 1 is ‘yes’. was the trial tribunal right in upholding the order and conduct of fresh elections by the INEC only in Ainu Ward, rather than in the entire Oju Local Government Area. After the cancellation of the election.

This issue relates to grounds 3 and 5 of the grounds of appeal.

Evidence on record shows and the tribunal found that voting had taken place at Ainu Ward consisting of 30 polling units, before the results of the votes could be collated, certain events occurred, giving rise to the cancellation of the election on 5th December, 1998 in Ainu Ward by the Independent Electoral Commission (INEC).

In its judgment the tribunal stated thus:

“It is not in dispute that the election in Ainu Ward for the Chairmanship Election in Oju LGA held on 5th December, 1998 was cancelled…”

“Since the result of the said Ainu Ward was neither collated nor released it goes without saying that the election was not concluded ….

“From the evidence before us which we believe, there are 30 polling units in Ainu Council Ward with voters numbering are 110,000. See the evidence of RW 3, the electoral officer of Oju and RW 2 the ward returning officer,”

These findings of fact, this court has no reason to disturb. For it is the law that an appellate court should not interfere with findings of a lower court, unless found to be perverse or that the court below raised wrong interferences upon accepted facts of applied wrong principles to such facts. See Chinwendu v. Mbamali (1980) 3 – 4 SC-31, Ibodo v. Enarofia (1980) 5 SC 42. There is nothing to prompt this court to disturb the above findings.

As to whether the election was concluded, it is my humble view that this can be determined by observing whether all the acts and things required to be done under the procedure for elections set out in Decree 36 and Schedule 4 of Decree 36 of 1998, have been gone through in accordance with the provisions of the Decree.

Part VIII of the Decree, in sections 46 -57 and Schedule 4 to the Decree set out all the acts and things and the procedures required to be done or performed and the manner of doing them to perfect the conduct of an election.”

These show that an election (on the appointed date), commences with accreditation, proceeds with voting at polling units, counting of votes at polling units, completion of the appropriate INEC prescribed form, collation of results at various designated collation centres, and declaration of results.

The system has to be gone through as required by Decree No 36. Thus, without the collation of all results of the polling units and the wards which made up a Local Council Area, and the declaration of result, an election may not be regarded as completed or concluded. This is so in the present matter. For when trouble started, collation could not proceed at Ainu Ward and its result could not be collated with that of the other 10 wards. If so collated a result could have been declared. The position in this matter falls within section 92(2) of Decree 36 of 1998 which provides as follows:

92(2) “Where an election has started on the appointed date and is before conclusion, substantially disturbed by any intervening cause, the Commission shall appoint a new date for a fresh election.”

There can be no doubt from the unrebutted evidence of RW 2 and 3 on the records and the findings of fact by the trial tribunal, that there were incidents during which tension was created by the political parties of the appellant and 1st respondent and their supporters. That it was fuelled by the uncompromising attitude of the appellant’s agent, Ode Ibo Igangan at the collation centre. That these events occurred before the conclusion of the Chairmanship election. Every available evidence indeed shows that the appellant considered the events which took place serious enough and that his agent and party were all out and intent on securing the cancellation which took place consequently.

How can the appellant now justly raise issues challenging the cancellation?

In my humble view, from the foregoing, the Election Tribunal was correct In holding that the election not having been concluded there being no result declared by INEC when trouble commenced, the INEC was entitled under section 92(2) of Decree 36 to cancel and to order fresh election. It must be pointed out before concluding that there is some distortion of the lower tribunal’s decision when learned counsel for the appellant submitted at page 7 of his written brief that “it was erroneous of the tribunal to hold that the role of PW 2 in protecting the interest of its party when he requested for the cancellation of the result .. ” was an intervening cause which substantially disturbed the election for section 92(2) of Decree 36 ” to be applicable.” It is clear to me that he was quite incorrectly stating the findings of the lower tribunal. This is clear from the facts set out earlier. The intervening cause identified from the evidence on record and the judgment of the Election Tribunal is the threat to peace from tension generated from the parties at the collation centre, preventing the INEC returning officer from doing his duty.

This stopped the collation of results on 5/12/98.

That submission goes to no issue therefore. In the premises, the answer to issue No. 1 is therefore in the affirmative.

Issue No.2: This issue as earlier set out raises the question, what order should the lower tribunal have made in the light of the provisions of section 92(2) of Decree 36, 1998, following the cancellation of the election. (It is to be noted that apart from the appellant and the 1st respondent, there were two other candidates from other parties contesting this election.)

For the appellant, it was submitted that “where section 92(2) of Decree 36 of 1998 becomes relevant, it has to do with the entire election in question to be cancelled and not just part of it, as was the case here. In the instant case, only the result from Ainu Ward was cancelled and not the election … assuming without conceeding that the 6th respondent acted under section 92(2)… he is not covered because he only cancelled part of the result and not the entire election.”

Section 92(2) of Decree 36 of 1998 provides as follows:

“Where an election has started on the appointed date but is, before conclusion, substantially disturbed by any intervening cause, the election may be cancelled, and the Commission shall appoint a new date for a fresh election.”

At page 15 of appellant’s brief counsel also stated:

“Where the 6th respondent is permitted to conduct a second election for the purpose of determining the winner of the election, the second election is required to cover the entire constituency involved and not a segment …

In the case in hand, the entire Oju Local Government Area, not just Ainu Council ward …. ”

For the respondents. it was their case in respect of issue No 2 that the 6th respondent duly exercised its powers under section 92(2) of Decree 36 1998 to cancel the election and appoint a new date for a fresh election if the election is substantially disturbed.

They further submitted that the 6th respondent has powers to order election in a polling unit or council ward and not the entire constituency (See page 7 of 1st respondent’s brief of argument).

The 2nd – 6th respondent’s brief also shows that they too are in agreement that it was necessary to conduct another election for the Ainu ward to enable the electorate elect a candidate of their choice – See page 9 of their counsel’s brief of argument.

The application of the word “election” in section 92(2) is the bone of contention as the above submissions show. And, the issue is whether it refers to the whole process of election, constituting accreditation, voting, collating, recording on all relevant INEC forms under the Decree and declaration of result.

Or, on the other hand does “election” refer to merely voting – as in units or wards, as the case may be’?

It seems to me that applying the ordinary meaning of the word “election” the meaning referring to the whole process is preferable. Voting in polling units or wards cannot amount to “election”.

In the case of Chibok v. Bello (1993) 1 NWLR (Pt. 267) 109. the Court of Appeal was called upon to determine whether the power to order a bye-election under section 43(2) of Decree 18 of 1992 relates to the entire constituency or part or unit thereof and whether the Election Tribunal could order a bye election for two polling stations.

The court, per Oguntade JCA, held that, ‘the tribunal could not order a bye-election for the two polling stations where irregularities were found. Rather what it should have done was to order for the election for the whole constituency.”

I should think that in the present matter, the word “election” in section 92(2) of Decree 36, 1998 would have the same meaning and application as in section 43(3) of the 1992, Decree, adopting the interpretation which I proffered above.

This is how the law seems to stand presently and I would adopt that meaning. It is in the light of the foregoing I would uphold the submission of the learned appellant’s counsel. The order which the Election Tribunal ought to have made” was to the effect that having cancelled the inconclusive election, fresh elections be had for chairmanship in the whole Oju Local Government Council Area which is the constituency for the local council Chairmanship election, and not just Ainu Ward. The decision of INEC should not have been upheld.

In the final analysis, this appeal succeeds in part. Although the trial tribunal was right in holding that the Chairmanship election of 5th December 1998 in Oju LGA was not concluded and thus inconclusive in the circumstances of the case, the order which it should have made was one for fresh elections in the whole 11 wards, whose total result was not collated and declared due to the intervening event. In the premises, it so ordered.

It is hereby ordered that the Independent National Election Commission (INEC) do proceed forthwith to conduct fresh elections for the position of Council Chairman in all the wards of the council.

There shall be no order as to costs.

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Other Citations: (1999)LCN/0508(CA)