Felix Igwe V. Mike Omunakwe Wali & Ors (1992)
LawGlobal-Hub Lead Judgment Report
AKINTAN, J.C.A.
This is an appeal from the judgment of the National Assembly Election Tribunal sitting in Port Harcourt delivered on 29th September, 1992. The appellant (1st respondent at the Tribunal) and the 1st respondent (Petitioner at the Tribunal) were candidates in the National Assembly Elections held on 4th July, 1992 into the House of Representatives for Obio/Akpor Federal Constituency. The appellant contested the election on the platform of the Social Democratic Party (S.D.P.) while the 1st respondent contested on the platform of the National Republican Convention (N.R.C.).
At the end of the elections, the appellant was credited with 28,555 votes to the 1st respondent’s 28,113 votes. The 3rd respondent (Resident Electoral Commissioner) therefore declared the appellant duly elected with a majority of 442 votes over his 1st respondent opponent.
The 1st respondent was dissatisfied with the result declared. He therefore filed a petition at the National Assembly Election Tribunal holden at Port Harcourt in which he prayed the Tribunal for the following reliefs:-
(a) That the said Felix Achinike Igwe (1st respondent) was not duly elected and or returned.
(b) That the said Mike Omunakwe Wali (Petitioner) was duly elected having scored higher lawful votes than the 1st respondent and should be returned as duly elected:
(c) An order directing the 2nd to the 6th respondents to give effect to the aforesaid orders.”
The petitioner/1st respondent pleaded inter alia as follows in paragraphs 3, 4, 5, 6 and 15 of his petition:
“3. The result released by the 3rd respondent on 8th of July, 1992 for the 10 Wards in Obio/Akpor Local Government is as follows:
WARD RESULT
NRC SDP
(Petitioner) (1st Respondent)
OBIO 1,351 4,996
II 907 2,085
III 814 1,876”
“IV – –
“950 934
“VI 10,615 4,113
” VII 2,884 5,490
“VIII 953 1,725
AKPOR 5,490 4,081
” 4,149 3,255
TOTAL 28,133 28,555
(4) That the result announced by the 3rd respondent on the 8th of July, 1992 is not correct for the following reasons:
(a) The result for Obio I, Obio VII and Akpor II are not correct.
(5) That in Obio I, the correct result at the close of the elections is 1,032 for N.R.C. and 3,239 for the S,D.P, The petitioner will at the hearing found on the result sheet for the Ward Form EC8B(1) duly signed by the Returning Officer for the Ward, and the agents, for both candidates at the end of the collation at the Wards Collation Centre.
(6) The S.D.P. at Obio/Akpor Local Government Area National Electoral Commission Officer at about 8 p.m. on the day of the election produced some results but without police escort, officers of the N.E.C. and agents of the NRC for the following polling stations:-
a) Njinowhor’s Hall, Anya Waterside, CSS OkoronuOdua, A.C. Bob-Manuel and CSS Okoronu Odua.”
(15) The correct result for the aforesaid election therefore should rightly be as follows:
SDP NRC
OBIO I 987
2,839
“II 907
2,085
” III 814
1,876
“IV
“V 950
934
” VI 10,615
4,113
” VII 2,884
5,086
” VIII 953
1,725
AKPORI 5,490
4,081
” II 5,021
3,378
26,117 TOTAL 28,612
From the above table, the petitioner as the candidate sponsored by NRC in the said election scored a total votes of 28,612 as against 26,117 scored by the 1st respondent who was the candidate sponsored by the S.D.P. The petitioner will at the hearing of this petition found on the said result sheets for the Obio/ Akpor Federal Constituency in the National Elections held on the 4th of July, 1992.
The 2nd to the 6th respondents are hereby put on notice to produce same at the hearing of this petition.”
The appellant (who was 1st respondent before the tribunal) filed a reply to the petition. A separate reply was also filed by the 2nd to the 6th respondents. The appellant (as 1st respondent) pleaded as follows in paragraphs 4, 5, 8, and 21 to 24 of his reply to the petition:-
“4. The respondent denies paragraph 3 of the petition and shall at the trial subject the petitioner to the strictest proof thereof.
- In further answer to the said paragraph 3 the respondent avers, subject to the matters hereinafter pleaded, that the results of the election as declared by the 2nd set of respondents showed that the petitioner scored 29,473 votes as against 1st respondent’s 32,276 votes and in consequence thereof the respondent was returned as duly elected having received a majority of lawful votes. Respondent will find (sic) on Form EC8E(1) No. RV 000014: ‘Declaration of Result of Election to the House of Representatives’ issued at the end of the election in accordance with law .
- The respondent admits, paragraph 4(2) of the petition and in addition thereto avers that the results released by the 2nd set of respondents on July 4, 1992 for the 10 Wards are as follows:-
WARD PETITIONER
1ST RESPONDENT
1 1,351
4,996
2 907
2,085
3 814
1,876
4 1,360
3,721
5 950
934
6 10,614
4,113
7 2,884
5,490
8 953
1,725
9 5,490
4,081
10 4.149
3,225
TOTAL 29.472
32,276
- The respondent shall contend that the votes recorded and declared in respect of Ward 6 are not correct because of the following matters:-
(i) In Federal Housing Estate – RV/15/6/21/B the votes recorded for the petitioner and the respondent(i.e. 390 and 20) were actually votes for Dr. Birabi and Amegua the Senatorial Candidates. Reliance will be placed on Form EC8A(1) No. RV003063.
(ii) In C.P.S. Rumueme Station RV/15/6/20/1 there are 375 registered voters and the votes returned showed that the petitioner scored 250 votes and respondent 150 giving a total of 400 and an excess of 25 votes over the number of registered voters. Form EC8A(1) S. No. 002951 is hereby pleaded.
(iii) In Oro-Agbolu polling station – RV/15/6/21/F there are 125 registered voters but the result declared showed that 159 voters were accredited whilst NRC scored 105 and SDP40 making a total of 145 votes. The Form EC8A(1) is hereby pleaded.
(iv) In Rumuwike polling station booth No. RV/15/6/21/Z was combined with Z1 and the correct scores as recorded on Form EC8A(1) S.No. RV004325 were NRC 48 SDP 50 out another result was recorded for the same RV/15/6/21/Z1 on Form EC8A(1) No. HQ003788 as follows NRC 430, SDP 14 shall found on the copies of the said results as well as the Police copies thereof.
(v) In Rumuwabie Station- RV/15/6121/W the correct result as recorded on Form EC8A(I) S.No. 004325 is NRC 20, SDP 7 but a false result was recorded and returned on Form EC8A(1) No. HQ 003788 with 327 votes for NRC and 27 for SDP. Respondent hereby pleads the Police copies of the said results.
(vi) That there is no polling station with code number as RV/6/15 as recorded on FormEC8A(1)S. No. RV/HQ003788 wherein the votes of 390 and 10 were recorded for the Petitioner and respondent respectively.
(vii) In C.P.S. Rumueme – RV/15/6/29/G the total number of votes scored by both candidates is 200 but the NRC was stated to have scored 245 and the SDP 105. Form EC8A(1) S.No. RV 003106 is hereby pleaded.
- The respondent shall contend that the results in respect of the polling stations stated in paragraph 21(i) to (vii) hereof be nullified.
- The respondent shall contend and urge the Honourable Tribunal to hold that the correct results for Ward 6 (less the invalid voters pleaded above) is 8,478 for petitioner and 3,747 for respondent.
- Save as hereinbefore pleaded the respondent shall contend that the elections were conducted in substantial compliance with the principles of Decree 18 of 1992.”
The petitioner led evidence at the trial to the effect that there were 10 wards in the constituency. His case, inter alia, was that:
“(1) after the collation of the results of the election in respect of Obio Ward 1, the appellant’s political party (the SDP) smuggled in the results of six other units which were added to the collated results by the Electoral Officer despite protest by the Ward and Local Government Returning Officers.
(2) at the Community Primary School Polling Unit, 445 votes were returned whereas the number of registered voters there was 400.
(3) In Akpor Ward II (otherwise called Obio Ward 10) the results of the polling units at Eagle Cement and Rumukpulukwu Ada Ogboro were wrongly excluded; and
(4) In Ward 7, the results were returned from a polling unit with Code No. RV/15/1/24F which the petitioner claimed to be non-existent.
The appellant joined issues with the petitioner/1st respondent on these issues at the trial and went further to add that the actual results of the election as declared by NEC showed that he scored 32,276 votes as against 1st respondent’s 29,473 but that after the declaration of the results as required by the law, the 3rd respondent for reasons best known to him and without reference to the appellant, purportedly and unilaterally cancelled the result of the elections for Ward 4. He also complained about Ward 6.
At the end of the trial, the tribunal, in its reserved judgment delivered on 29th September, 1992, dismissed the petitioner/1st respondent’s complaints except those relating to Eagle Cement polling unit and the unit in Ward 7. It then recomputed the results of the election after taking into consideration its decisions on those two areas and came to the conclusion that the appellant was no longer entitled to be declared the winner of the election. It then ordered a bye-election in accordance with the provisions of section 42(3) of the National Assembly (Basic Constitutional and Transitional Provisions) Decree No. 18 of 1992.
The appellant (1st respondent at the tribunal) his appealed to this court against the verdict of the tribunal. To that end, he filed seven grounds of appeal.
He also filed his brief of argument in which he formulated the following 4 issues for determination in the appeal.
(1) Whether the tribunal was right in granting leave to the petitioner/1st respondent to amend his list of objections to votes;
(2) Assuming the answer to the above is in the affirmative, whether the  tribunal was right and/or justified in receiving evidence tending to challenge the validity of votes returned as it pertained to Eagle Cement Polling Unit;
(3) Whether the tribunal was right and/or justified in refusing to give consideration to the appellant’s case as contained in paragraphs 6, 21 to 24 of his reply.
(4) Whether the tribunal evaluated or properly evaluated the evidence before it before coming to its conclusions.”
The 1st respondent (petitioner at the tribunal) also filed a reply brief in which he also formulated four similar issues as those formulated by the appellant and already set out above. Although the 2nd to 6th respondents were duly served with the notice of this appeal, they did not file any brief and they were not represented at the hearing in this court.
Mr. Mitee, learned counsel for the appellant, adopted the appellant’s brief at the hearing of the appeal in this court. He also made oral submissions in addition.
In his oral submission, he emphasised, inter alia, in respect of the third issue, that the refusal by the tribunal to allow the appellant to lead evidence in proof of the matters pleaded in paragraphs 6, 21 to 24 of the appellant’s reply to the petition amounted to substantial miscarriage of justice. He submitted further that if the appellant had been allowed to lead evidence in proof of the aforesaid paragraphs 6, 21 to 24 of the appellant’s reply to the petition, the difference between the votes scored by the appellant and those scored by the 1st respondent would be that the 1st respondent scored more votes than the petitioner. The result would have been that the appellant would have retained his seat.
The learned counsel also referred to the votes recorded in respect of Obio 4 Ward as shown on the “Summary of Results from Polling Stations” Form EC8B(1) (Exhibits FI and F2). He argued that the tribunal’s refusal to take the votes recorded on the documents deprived the appellant the benefit of the votes credited to him therein.
Mr. Wali, learned counsel for the 1st respondent adopted the 1st respondent’s brief filed in this court and then went on to make oral submissions. On the first two issues raised in the appellant’s brief, the learned counsel submitted that the petitioner filed a valid list of objections to votes as required in paragraph 16(1) of Schedule 4 to the aforementioned Decree No.18 of 1992. He submitted further that even if no valid list or defective list was filed, such was not fatal to the 1st respondent’s case. He referred to the decision of this court in Opia v. Ibru (1992) 3 NWLR (Pt.231) 658 and argued that that decision was not an authority against filing of list of objection. He concluded his argument on the two issues by saying that what should be the deciding factor should be doing substantial justice in each case.
On the third issue raised in the appellant’s brief, the learned counsel for the 1st respondent submitted that the tribunal rightly refused to accept any evidence on behalf of the appellant in support of the aforementioned paragraphs 6, 21 to 24 of his reply to the petition because doing so would amount to taking evidence in respect of a cross-petition which did not exist in the case before the tribunal.
The same reason was given in respect of the tribunal’s refusal to make use of the votes disclosed on Exhibits F1 and F2. It was submitted that since the votes on the two documents (Exhibits FI and F2) were not included by the 3rd respondent in the results of the election declared, ‘and the petitioner did not include it in his petition, the only way by which the appellant could have raised the issue was by filing a cross-petition before the tribunal. Since he failed to do that, he could not cure his omission by merely pleading the matter in his reply to the petition. The circumstances leading to the first two issues raised by the appellant in his brief arose while the petitioner was giving evidence (as P.W.5) before the tribunal. Objection was raised when the petitioner was adducing evidence as to the votes scored by both the petitioner and the 1st respondent in Akpor and Obio Wards. The objection was that since the evidence was to challenge the validity of the votes returned in respect of the Wards, that could only be done if the list of the objections were filed within the stipulated time in accordance with paragraph 16 of Schedule 4 to the Decree 18 of 1992.
Although the petitioner had in fact filed a list of votes objected to in the case, it was contended that the list did not satisfy the requirements of the aforementioned paragraph 16 of Schedule 4 in that it did not show the actual votes they were objecting to. The objection raised in fact went beyond merely not filing the list of votes objected to. It was alleged too that the petitioner was required by the law to file the grounds upon which he was objecting.
In reply to the above objection, it was on record that the learned counsel for the petitioner contended that the document he filed was adequate. But in case the tribunal considered it inadequate, he asked for time to file another. The tribunal granted the request for time to file an additional list. It was this aspect that the appellant queried in the first two issues raised in this appeal. The decisions in Etuk v. Isemin & Ors (1992) 4 NWLR (Pt.237) 402; Opia v. Ibru (1992) 3 NWLR (Pt.231) 657 and Ojukwu v. Onwudiwe & Ors (1984) 1 SCNLR 247; (1984) 2 S.C 15 were relied upon in support of the objection.
Paragraph 16(1) of Schedule 4 of the Decree 18 of 1992 provides that:
“16(1) When a petitioner claims the seat or office for an unsuccessful candidate, alleging that he had a majority of lawful votes, any party complaining of and any party defending the election or return shall, within six days after the filing of the reply, or where no appearance is entered, not less than six days before the day fixed for trial, file in the registry a list of the vote intended to be objected to by him and of the heads of objection to each such vote.”
Another provision of the Decree which needs consideration in this respect is paragraph 44(1) of the same Schedule 4. It provides thus:
“Non-compliance with any of the provisions of this Schedule or with any rule of practice for the time being in force shall not render any proceedings void unless the tribunal shall so direct, but such proceedings may be set aside either wholly or in part as irregular or amended or otherwise dealt with in such manner upon such terms as the tribunal shall think fit to ensure substantial justice.”
It is clear from the wording of paragraph 16(1) that filing of list of objection to votes cannot be said to be applicable to every petitioner. This is because the phrase “when a petitioner claims the seat or office for an unsuccessful candidate” cannot be taken to mean “any petitioner” or “every petitioner” or that that phrase was a mere surplusage. It is a statutory qualification to the class of petitioners who are required to comply with the requirement of that paragraph, Since compliance with the provisions of the paragraph cannot be a substitute for pleadings, it follows that non-compliance cannot be used to shut out evidence adequately pleaded. This is because paragraph 44(1) of the said Schedule 4 provides for non-compliance with any of the provisions of the entire Schedule 4.
As there is no rule in the Schedule 4 of Decree No.18 of 1992 which prescribes a tribunal hearing an election petition from granting extension of time within which the list of votes objected to could be filed, it means that the tribunal can exercise its general discretion in that respect. That was what was exercised in the present case.
The cases cited in support of the submission are inapplicable to the facts in the instance case because the issue raised and considered in each of them were different from those involved in the present appeal. The tribunal therefore acted in accordance with the law when it allowed an amendment.
The other issue raised in this appeal is whether the tribunal acted within the law when it prevented the appellant from leading evidence in support of paragraphs 6, 21 to 24 of his reply to the petition. The circumstances that led to the tribunal’s refusal to entertain evidence in support of those paragraphs in the reply to the petition arose when the appellant was testifying (as P.W.5) before the tribunal. It was the contention of the petitioner that since the evidence about to be given could only lead to urging the tribunal to dismiss the petition on other grounds or facts which did not form part of the petitioner’s claim, the appellant could not do that without filing a counter-petition in the action.
Learned counsel for the respondent submitted in this respect that since the appellant did not file a cross-petition, he could not challenge any act of the 2nd to the 6th respondents, which was what the appellant wanted to do in paragraphs 6, 21 to 23 of his reply.
It is trite law that a counter-claim, or a counter-petition in an election petition, is a weapon of offence which enables a defendant to enforce a claim against the plaintiff as effectually as an independent action. (See Oyegbola v. Esso (West Africa) Ltd. (1966) 1 All NLR 170 and Halsbury’s Laws of England, 3rd ed., Vo1.34, para. 671).
It is an action by the defendant against the plaintiff which can only be raised by a defendant when the counter-claim is directly related to the principal claim, but not when the counter-claim is outside of and independent of the subject matter.
(See Nigerian Ports Authority v. C.C.F.C. (1974) 12 S.C. 81; Biode Pharmaceutical Ltd v. Adsell Ltd (1986) 5 NWLR (Pt.46) 1070; Emaphil Ltd v. Odili (1987) 4 NWLR (Pt.67) 915; Mogaji v. Odofin (1978)4 S.C. 90; and Akintola v. Lasupo (1991) 3 NWLR (Pt.180) 508.
Applying the above statement of the law to the facts in the present appeal, it is clear from the facts pleaded in paragraphs 6, 21 to 23 of the appellant’s reply to the petition, that the results of the election declared by the 2nd to the 6th respondents were being challenged by the appellant. He was therefore not merely replying to the facts pleaded by the petitioner. This he could only do if he had a counter-petition before the tribunal. The tribunal was therefore right in the stand it took in the matter.
In conclusion, the appeal lacks merit and I accordingly dismiss it. The judgment and orders made by the tribunal are affirmed and the first respondent is awarded N350.00 costs.
Other Citations: (1992)LCN/0117(CA)
