Godwin Koma Omamuli V. Mrs Stella Omu & Ors (1999)

LawGlobal-Hub Lead Judgment Report

BABA ALKALI BA’ABA, J.C.A. 

In the National Assembly Election held on 20th of February, 1990, Petitioner/Cross-appellant and the 1st Respondent/Appellant were two of the three candidates in the Senatorial Election in Delta South Senatorial District. Petitioner/Cross-appellant contested under the platform of the All Peoples Party – APP while 1st Respondent/Appellant contested under the platform of the Peoples Democratic Party – PDP. At the end of the election 2nd, 4th, 5th and 6th Respondents returned 1st Respondent/Appellant as the winner on the basis that 1st Respondent/Appellant scored 167,225 votes as against Petitioner/Cross-Appellant’s score of 152,156 votes. The Petitioner/Cross-appellant was unhappy with the declaration and return of the 1st Respondent/appellant as the winner of the said election as a result, the Petitioner/Cross-appellant filed an election petition on 8/3/99, and questioned the election on two grounds set out in paragraph 5 of the petition as follows:-

“5. And your Petitioner states that the grounds and facts on which the Petitioner relies are as follows:

GROUND I

That the election in Isoko South L.G.A. was voided, by corrupt practices, offences or non-compliance with the provisions of Decree NO.5 of 1999.

PARTICULARS

(1) While total number of ballots papers released to Isoko South L.G.A. was 78,000 the Isoko South L.G.A. returned a total of 81,561 votes.

(ii) In Olomoro ward, the total votes cast for Petitioner is 2,999 as against 988 for the 1st Respondent. However, at the Ward collation Centre, 3,689 votes were falsely recorded in favour

of the 1st Respondent while that of the Petitioner was reduced to 965 votes.

(iii) In all the Wards of the Local Government Area, the Forms EC8A were removed by the Respondents and their agents and duplicate copies handed to the Supervising Presiding Officers. The first copies were later filed with false results in favour of the 1st Respondent by 1st Respondent’s agents.

(iv) That the result sheets Forms EC8A for the Wards were filled in by the same persons who are agents of first Respondent and therefore bear the same or similar handwriting.

GROUND 2

(1) The 1st Respondent was not duly elected by a majority of lawful votes.

PARTICULARS

(i) Delta South Senatorial District is made up of Warri South. Warri North, Warri South-West, Burutu, Bomadi, Patani, Isoko North and South Local Government Area.

(ii) There was no election in Bomadi Local Government Area which is a stronghold of APP and where APP won in the Governorship and House of Assembly elections.

(iii) The total registered number of voters for Bamadi is 41.000.

(iv) The Petitioner is alleged to have 15,000 votes less than the 1st Respondent.

(v) 6th Respondent ought to have conducted a bye-election in Bamadi L.G.A. and added the votes to that of the other 7 Local Government Areas.

(vi) The Petitioner was deprived of his votes which he scored at Olomora, Irri II, Aviara and Oleh wards.

(vii) The 1st Respondents scores in Isoko South Local Government Area were grossly inflated in the 1st copies of Forms EC8A which were withheld from the Presiding Officers and who could not therefore record the scores at the polling units and/or conduct elections therein.

(viii) At Emede Ward no election materials were brought until about 4.00 p.m. when only materials for a unit was brought in voting was only in that unit. Election results were however falsely declared for the whole ward.

At the trial, the Petitioner shall rely on the following documents:

(i) The total registered voters for Bomadi L.G.A.

(ii) Documents showing voting materials received for the Senatorial elections in Isoko South

by the Electoral Officer, Isoko South L.G.A. and the various Supervisory Presiding Officers.

(iii) ECBAs for all the wards of Isoko South L.G.A.

(iv) Unused counterparts of EC8As for the wards in Isoko South Local Government Area.

(v) Statements of 3rd Respondent and Presiding Officers to the Police.

(vi) Police extract of complaint against 3rd Respondent and petition to police of the said comp1aint.

(vii) Petitions to Police on non-arrival of voting materials at Emede Ward.

(viii) Any other document deemed relevant by the Petitioner.

(ix) Form EC BE (1) for House of Assembly Election in Bamadi L.G.A.

Wherefore your Petitioner prays that it may be determined as follows:

1. That the election in Isoko South L.G.A. is voided by corrupt practices and is thus null and void.
2. That the Petitioner was elected by a majority of lawful votes and ought to have been duly returned.
3. That the 1st Respondent was not duly elected by a majority of lawful votes.

Wherefore your Petitioner prays that it may be determined as follows:

1. That the election in Isoko South L.G.A. is voided by corrupt practices and is thus null and void.
2. That the Petitioner was elected by a majority of lawful votes and ought to have been duly returned.
3. That the 1st Respondent was not duly elected by a majority of lawful votes.
4. That the election is inconclusive and the return of any candidate ought to await a bye-election in Bomadi Local Government Area.
5. That a bye-election be ordered in Bomadi Local Government Area.”

The 1st Respondent filed a reply to the petition dated 29/3/99, and denied the averments in paragraph 5 of the petition.

In addition, the 1st Respondent proceeded to answer the allegations in paragraphs 5, 6, and 7 of her reply which is hereby reproduced.

“5. The 1st Respondent avers categorically that the Election in Isoko South Local Government Area was devoid of corrupt practices, and offences and was conducted in substantial compliance with the letters and spirit of Decree NO.5 of 1999.

Answering specifically, the 1st Respondent avers and state as follows:

(i) That the number of ballot tickets sent to Isoko South Local Government Area for the Election of 20/2/99 were 84,375 and not 78,000 as alleged by the petitioner. The record with which these ballot papers were distributed showing who received what are herein pleaded and would be relied upon at the hearing of this petition.

(ii) The 1st Respondent avers that it is incorrect that the petitioner scored 2,999 as against 988 votes for the 1st Respondent in Olomoro Ward of Isoko South Local Government Area.

The 1st Respondent’s actual scores in this Ward at and at 3,689 votes while the petitioner scored just 965 votes. The 1st Respondent maintains that no one falsified any results in this ward.

(iii) The 1st Respondent vehemently denies this averment and shall put the Petitioner to the strictest proof of these averments. Answering further the 1st Respondent says that FORM EC8A were with the INEC officials from the beginning of the Election to the period of collation of results. She says that all the copies were intact and were never given to her agents until the various stages of collation of results had been gone through.

(iv) The 1st Respondent denies this averment and calls for further and better particulars concerning those her agents allegedly involved in the filing of the said forms.

6. The 1st Respondent in answer to the 2nd ground upon which her return is being questioned avers that she won the Election based on majority of the lawful votes cast.

In further answer, she states as follows:

(i) That she admits that the Delta South Senatorial Constituency is made up of 8 Local Government Areas namely: Warri South, Warri North, Warri South-West, Burutu, Bomadi, Patani, Isoko North and Isoko South Local Government Area.

(ii) The 1st Respondent avers that the Petitioner had organised APP thugs to snatch the polling materials for Bomadi Local Government Area.

The moment the materials arrived Bomadi, the Local Government Headquarters, the APP thugs in a swift operation carried these materials away. The INEC had no alternative than to cancel the Election in the entire Local Government, the benefit and burden of the cancellation going equally to all the parties concerned.

(iii & iv) The 1st Respondent while admitting that Bomadi registered about 41,000 voters, denies vehemently that she beat the Petitioner with only 15,000 votes. The 1st Respondent avers that 12,779 votes recorded for the Petitioner in SEINBRI WARD IV of BURUTU Local Government Area were all fictitious votes as no voting whatsoever took place in this Ward. The said votes of 12,779 votes were entered into the statutory INEC forms for the Petitioner under the close supervision of Mr. Sunny Ezonfade in Room 102 of IDAMA HOTEL along Okumagba Avenue Warri. when these fictitious votes are excluded and the 1st Respondent would urge the Honourable Tribunal to exclude same, the Petitioner would be trailing behind with 27,878 votes. The 1st Respondent objects vehemently to these fictitious votes.

It was this same method that the Petitioner plotted to secure the votes from Bomadi Local Government Area;

(v) The 1st Respondent denies this sub-paragraph.

The Election in Bomadi had been cancelled and the Petitioner created cause for the cancellation, he cannot eat his cake and have it.

(vi) The 1st Respondent denies these averments; in further answer she avers that normal voting took place in these areas mentioned, the results, were collated and announced.

(vii) The 1st Respondent denies that her scores were inflated in Isoko South Local Government and she puts the Petitioner to the very strictest proof of these allegations. She maintains further that no one with-held any form EC8A from any presiding Officer.

(viii) For Emede Ward, the 1st Respondent avers that polling materials arrived in time in all the units making up the Ward and Election took place in all the units; results were collated and announced.

7. The 1st Respondent categorically avers that the Election in Isoko South Local Government Area was free and, fair and devoid of any Electoral malpractice or non-compliance and that she was duly and validly elected by a majority of lawful and valid votes in substantial compliance with the National Assembly (Basic Constitutional AND Transitional Provisions) Decree No.5 of 1999.
8. The 1st Respondent will contend that the Petitioner is not entitled to any of all the reliefs contained in his in-congruous prayers.
9. WHEREUPON the 1st Respondent urges the Honourable Tribunal to dismiss the petition as it is most unmeritorious.”

At the hearing, the parties testified in support of their respective cases and in addition called witnesses and tendered documents. After receiving written addresses by counsel for the parties, the Tribunal delivered its judgment on 24/4/99.

In a reserved and considered judgment, the Tribunal upheld the petition and nullified the election of the 1st Respondent. At page 48AA, inter alia the Tribunal, held.

“We find as a fact from the evidence before the court the number of ballot papers released by INEC to Isoko South Local Government Area is 78,750 ballot papers. From the foregoing, it is proved that there was an excess voting of about 3,000 votes.

Despite the proof, it is too general for the Tribunal that it affects the general conduct of elections in Isoko Local Government on 20/2/99.”

On the complaint of the Petitioner on the non-holding of election in Bomadi Local Government Area which he claims to be the stronghold of his party, APP, the Tribunal, at pages 48BB and 44CC, had this to say.

“This complaint of the Petitioner deserves a serious consideration for the reason that the Petitioner was defeated with 15,000 votes whereas a registered voting population of 41,000 had been excluded from the elections.

Both parties have agreed in their pleadings that the election were not held in Bomadi and that the computation of the result of the Senatorial Elections was based on 7 Local Government Areas instead of eight Local Government Areas that constituted the Senatorial District.

The fact that a section of the electorate has been excluded from participating in the election per se may not necessarily lead to the nullification of an election. It all defends on the circumstances of each case of such exclusion. In the case of Oputeh v. Ishida. (1999) 3 NWLR (Pt.279) 34 at 37 and 52 the Court of Appeal, Benin Division, held, as follows.;-

“It depends on all the circumstances whether failure to hold a poll in any polling station or stations of a particular constituency would substantially affect the result of the election in that constituency, if it would not, then, although it is improper to disenfranchise certain voters by failure to hold such a poll, the election will not for that reason alone be avoided.

But if it would or is likely to substantially affect the election, any result declared without such a poll cannot be regarded as a win by the successful party based on a majority of lawful votes. The election would for instance, be substantially affected if the majority by which the respondent led in the results declared is likely to be upset by the number of registered voters in the area where no voting has taken place.”

The Tribunal concluded thus:-

“An election in Bomadi Local Government Area, with 41,000 votes would have substantially affected the results of the elections.

This being the case, it cannot be now be said that the Petitioner (Respondent) won with a majority of lawful votes. Consequently the petition succeeds.

In accordance with section 82(1) of the National Assembly (Basic Constitutional and Constitutional Provisions) Decree 1999, we hereby nullify the Senatorial elections for the Delta South Senatorial District held on 20/2/99.”

Being dissatisfied with the judgment, the Respondent/Appellant by her Notice of Appeal dated 27/4/99 appealed against the judgment on 4 grounds of appeal, set out in the Notice of Appeal contained in pages 49-52 of the record, from which 3 issues were as distilled for the determination of the appeal. They are/follows:-

“a. Whether there is sufficient admissible evidence before the lower Tribunal in proof of the 1st Respondent’s grounds of allegation in his Petition to warrant the nullification of the election of the appellant, particularly having regard to the provision of section 80(1) of Decree No.5 of 1999.

b. Whether the lower tribunal was right in suo motu nullifying the entire election result of Delta South Senatorial District contrary to the express grounds of the Petition and the prayers sought thereto.

c. Assuming (without conceding) that the lower Tribunal was right in holding that the failure to conduct election in Bomadi was a non-compliance with the provisions of the Decree was it sufficient to invalidate the election of the appellant.”

The Petitioner/Respondent in his brief of argument dated 10/5/99 filed the same date, formulated the following 2 issues for determination thus as follows:-

“(i) Was the Tribunal wrong in nullifying the election having regard to the law, pleading and findings of the Tribunal?

(ii) Was the judgment of the Tribunal perverse?

Put in another way, was the judgment of the Tribunal not supported by evidence on record? Cross-appellant.

There is also a cross-appeal by the Petitioner/Cross-appellant. The Notice of Appeal dated 29/4/99 containing 3 grounds of appeal was filed on 30/4/99. By a motion on notice dated 14/5/99 filed on 17/5/99, the Petitioner/ Cross-appellant, sought and obtained the leave of this Honourable Court to file and argue additional ground of appeal as formulated in Exhibit “A” attached to the supporting affidavit and the additional ground of appeal was deemed properly filed and served by an order of this Court made on 18/5/99.

The additional ground of appeal reads:-

“1. Having held that the total votes alleged cast in Isoko South Local Government Area exceeded the number of Ballot papers released to the Local Government for the election, the Tribunal misdirected itself in Law in not nullifying the election of the 1st Respondent under Section 82(2) and declaring Petitioner winner of the election.”

The Petition/Cross-appellant in his brief of argument dated 10/5/99 the same date submits the following issues for determination:

“(i) Having held that the votes alleged cast in Isoko South Local Government Area at the said election exceeded the total number of ballot papers issued for use in Isoko South Local Government Area – was the Tribunal right in holding that this excess of alleged votes was too general to affect the elections in Isoko Local Government Area?

(ii) Was any election malpractice proved by the Petitioner as required by law?

(iii) Who as between Petitioner and 1st Respondent had the majority of lawful votes at the said election?

(iv) If the answer to issue NO.3 is in favour of the Petitioner – was the Tribunal right in simply nullifying the election under Section 82(1) instead of declaring Petitioner winner under Section 82(2) of Decree No.5 of 1999?”

The Cross-respondent formulated only one issue for determination in the cross-appeal thus:-

“(1) Whether the allegations of electoral malpractice made by the Petitioner/Cross-Appellant with the respect to the election in Isoko South Local Government Area were established as required by law to warrant the result of the election in the said Local Government Area to be declared void.”

When the appeal came up for hearing on 18/5/99, both counsel informed the court that they are ready to argue the appeal despite the absence of the counsel for the other respondents who could not be served, apparently due to the on-going strike, by Delta State Government workers. Counsel for the respondent further informed the court that other respondents did not participate at the hearing before the Tribunal. Both counsel adopted and relied on their respective briefs in respect of the appeal as well as the cross appeal.

They also elaborated on their respective briefs.

Learned counsel for the appellant/cross-respondent, informed the court that the appeal is from Edo-Delta National Assembly Tribunal and that there is an appeal and a cross-appeal and he is arguing the two together. He stated that he is relying on the appellant’s brief, cross-respondent’s brief as well as the appellant’s reply brief. Learned counsel further stated that they propose to emphasise on two issues. The first issue is in respect of Isoko South where the Petitioner alleged that 78,000 ballot papers were supplied to Isoko South Local Government Area while it is our contention that 84,375 were supplied to Isoko South. He pointed out that Exhibit “F” page 4 shows 78,000 ballot papers but a close examination clearly shows that page 4 was sandwitched into the Exhibit. Learned counsel said that D.W.1 testified in support of supply of 84,375 ballot papers to Isoko South Local Government Area. He explained that D.W.1 received 7 cartons of ballot papers in addition to 225 booklets and referred to page 6 of his cross-respondent’s brief. Learned counsel said Exhibit “R”, is the distribution list of ballot papers while Exhibit “N” shows the signatories for the purpose. Learned counsel for the Appellant/Cross-respondent submitted that contrary to the evidence of both parties the Tribunal found that 78,375 ballot papers were supplied to Isoko South Local Government Area and relied on the authority of Kunday v. Military Governor of Gongola State (1988) 2 NWLR (Pt.72) 445. He emphasised that it was this faulty finding of the court that led it in finding that there was over voting in Isoko South Local Government Area. Learned counsel further submitted that the relief granted by the Tribunal, in respect of Bomadi was not sought for as the relief sought by the Petitioner was that there should be a fresh election in Bomadi. He referred the court to the case of Bola Ige v. Olunloyo (1984) All NLR 150, 158, Oredein v. Arowolo (1989) 4 NWLR (Pt. 114) 172, 189, and urged the court to allow the appeal and dismiss the cross-appeal.

Responding, Okpoko, learned Senior Advocate of Nigeria, commenced his submission, by pointing out that the appellant has shown nothing either in their oral submission nor in their brief in support of the appeal and urged the court to dismiss it. On the appellant’s issue NO.3 and the cases of Bola Ige (supra) and Oredein, (supra) learned Senior Advocate, submitted that the cases relied upon by the appellant were decided on a different statute which has no application to this case. He said the proper authority for what the court did is Oputeh v. Ishida, (1993) 3 NWLR (Pt.229) 34, 54. Learned Senior Advocate, further submitted that section 82 of Decree No.5 of 1999, provides that once it is determined that respondent was not elected on majority of lawful votes, the election should be voided whether it was prayed for or not. Learned Senior Advocate further explained that the issue found is not as to the quantity of ballot papers sent to Isoko South Local Government Area. He contended that D.W.1 is not the source of ballot papers and that the source is D.W.5, Effiong who testified at page 25-25B, to discredit Exhibit “F”. page 4 because it does not emanate from his office but he produced Exhibit “R” which he said is the original or emanates from their office. Learned Senior Advocate, pointed out that Exhibit “R”, confirmed that 78,000 ballot papers were sent to Isoko South; that D.W.5 under cross-examination admitted that some portion of Exhibit “F” are in his handwriting and referred to the finding of the Tribunal at page 48AA of the record. He contended that there is no voting other than by ballot papers and that once electoral malpractice is proved beyond reasonable doubt the election must be voided. Learned Senior Advocate, referred to page 6 of the appellant’s brief where it was conceded by the appellant that there is no voting without ballot papers. He emphasized that there is fundamental electoral malpractice and referred to Terab v. Lawan (1992) 3 NWLR (Pt. 31)369, 587 where it was held that once the election is tainted by fraud the whole thing is vitiated.

Learned Senior Advocate said once Isoko South is out, the court will be left with the calculation made by the Petitioner/Respondent as per Exhibit which will lead to the Petitioner/Cross-appellant being declared winner, placing reliance on Opia v. Ibru (1992) 3 NWLR (Pt. 231) 658. In both the appeal and the cross-appeal, the main issues are first the non-holding of Senatorial election in Bomadi Local Government Area, where there are 41,000 registered voters. The Tribunal considered the issue in its judgment and taking into consideration the difference in votes of 15,000 between the Petitioner/Cross appellant and the Appellant/Cross-respondent, declared and returned as the winner of the said election, nullified the election because the Tribunal held that the disenfranchisement of 41,000 registered voters will substantially affect the result of the election. There is no dispute whatsoever between the parties that election did not take place in Bomadi Local Government Area on 20/2/99. The second issue which is the crux of the matter in both the appeal and the cross-appeal is the issue of over voting in Isoko South Local Government Area of Delta State, in respect of the Senatorial election.

There is a very serious issue of contention between the parties, regarding the ballot papers supplied to Isoko Local Government Area in respect of the Senatorial election. By his paragraph 5(1) ground 1 of the petition, the Petitioner/Cross-appellant alleged that the total number of ballot papers released to Isoko South Local Government Area was 78,000 but Isoko South Local Government Area returned a total of 81,561 votes. While the 1st respondent /appellant in the petition denied the allegation and averred in paragraph 5(1) of her reply that the number of ballot tickets sent to Isoko South Local Government Area for the election of 20/2/99 were 84,375 and not as alleged by the Petitioner/Cross-appellant.

After taking into consideration the issues in dispute between the parties before the Tribunal and the issues formulated in the appeal and the cross-appeal by the parties. I adopted the issues formulated by the cross-appellant, at page 4 of the cross-appellant’s brief which in my view encompasses the issues for determination in both the appeal and the cross-appeal. As can be gathered from the introduction of the issues in dispute between the parties, issues have been joined in the petition and reply as herein earlier stated. It must be appreciated that there cannot be a better notice of the case a party intends to make than his pleading. It is a mere notice and can never be substituted for the evidence required in proof of the facts pleaded, subject however to an admission made through skillful cross-examination which discredits the case of the party, he is still bound to lead evidence in support of his own pleading.

Once the evidence led is admissible, relevant and uncontradicted and not discredited by cross-examination a court can legally rely Cross-appellant on it. Evidence was led by both the Petitioner/Cross-appellant and the 1st Respondent/Appellant in support of the petition. At the conclusion of hearing, the tribunal made its finding on facts based on both oral and documentary evidence tendered and admitted at page 44AA of the record portion of which has been reproduced. Although, the Tribunal from the evidence adduced before it accepted that 78,750 ballot papers were supplied to Isoko South Local Government Area, a figure more favourable to the 1st Respondent/Appellant nevertheless the Tribunal found that there was an excess voting of about 3,000 votes from the return of 81,375 ballot papers returned which were admitted by these Respondent/Appellant witness I observed from the reply of the 1st Respondent/Appellant in the petition, particularly, paragraph 5(1) where he claims that 84,375 ballot papers were released to Isoko instead of 78,000 as alleged by the Petitioner. In the said paragraph the Respondent avers as follows:-

“The record with which these ballot papers were distributed showing who received what are herein pleaded and would be relied upon at the hearing of this petition.”

There is evidence at page 24 of the record that Exhibit “F” page 4 contains 78,000 ballot papers released to Isoko South Local Government Area. The document was certified by the Chief Personnel Officer INEC and issued to the Petitioner on application. The Petitioner/Cross-appellant, however on cross-examination denied the suggestion by the counsel to the 1st Respondent/Appellant that 84,375 ballot papers were sent to Isoko South Local Government Area. The Petitioner/Cross-appellant maintained his claim that the total number of ballot papers supplied were 78,000. At page 25-25A, of the record D.W.5. Edem Okon Effiong, the Administrative Secretary of INEC, Delta State testified that Exhibit “F” did not emanate from their office but acknowledged that Exhibit “K” emanates from their office. He however on cross-examination admitted that Exhibit “F” contains his handwriting which was admitted in evidence as Exhibit “R” the distribution list of ballot papers. In effect, D.W.5, confirmed the release of 78,000 ballot papers to Isoko South Local Government Area. It is not being suggested that the finding of the Tribunal is perverse or unsupported by evidence. There is therefore no reason why the finding should not be accepted. In fact the requirement of proof beyond reasonable doubt has in my view been discharged.

The burden of proving the number of ballot papers released Isoko South Local Government Area as claimed by a party is on the party during the hearing.

It can thus be seen from the judgment that the Tribunal preferred the version of the Petitioner/Cross-appellant than that of the 1st Respondent/Appellant from its judgment.

It is settled law that as a matter of general principle an Appeal Court will not ordinarily interfere with the findings of a trial court, but it will unhesitatingly do so:

(a) Where such findings are perverse or that the judge did not utilise properly, the opportunity of seeing and hearing the witnesses Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 338, Fabumiyi & Ors v. Obaje & Anor (1968) NMLR 242 at 247 Chief Ebba v. Chief Ogodo & Anor (1984) 1 SCNLR 372 (1984) SC 84, Woluchem & Ors v. Chief Gudi & Ors (1981) 5 SC 291 at 326.

(b) Again it is the law that where the question is to the proper inference to be drawn from the proved facts, the Court of Appeal is in as good a position as the trial court and will interfere to make the correct inference which the trial court railed to do. See Fatoyinbo v. Williams (1956) SCNLR 274 (1956) 1 FSC 87; Chkuwuocha v. Onuoha (1991) 4 NWLR (Pt. 134) 234 at 241; Egonu v. Egonu (1978) 11-12 SC 111 at 133; Ekpenyong & Ors v. Effiong Nyong & Ors (1975) 2 SC 71 at 80; Obiara v. Osile (1991) 8 NWLR(Pt. 165) at 182.

From what has so far been said and the portions of the judgment of the Tribunal reproduced, I have no doubt that the Tribunal took advantage of seeing and hearing the witnesses and in my view reached the correct decision on the evaluation of facts however, with respect to the Tribunal, hold the view that the Tribunal reached the wrong conclusion having regard to the provisions of Decree No.5 of 1999, applicable to the case.

Having held that there was an excess voting in Isoko South Local Government Area, what is the appropriate order to be made by the Tribunal? There is no doubt that the Petitioner/Cross-appellant questioned the election of the 1st Respondent on the grounds provided by section 79 of the National Assembly (Basic Constitutional and Transitional Provisions) Decree No. 5 of 1999 on the following Grounds.

“(a) …

(b) that the election was voided by corrupt practices; or offences or non-compliance with the provisions of this Decree or

(c) that the respondent was not duly elected by a majority of valid votes cast at the election;

The prayers sought are contained in page 5 of the record reproduced herein.

I think it is necessary to deal with the issue of the prayers contained in the petition at this stage.

Learned counsel for the Appellant/Cross-respondent relying on the authority of Bola Ige v. Olunloyo (supra) and Oredein v. Arowolo (supra) contends that the Tribunal can not grant a prayer not sought Cross-appellant

for by the Petitioner/Cross-appellant in his petition. He argued that the Petitioner is abandoning his original prayer for a different and opposite prayer. With respect to the learned counsel for the appellant/cross-respondent. I do not agree that the cases relied upon are relevant to the case in question. I agree with the submission of the learned counsel for the Petitioner/Cross appellant, that the statute interpreted in the case of Bola Ige (supra) is different to the provisions of Decree No.5 of 1999, applicable to the present case. It is pertinent to reproduce the provision of section 136(3) of the Electoral Act, 1982 as well as the relevant provisions of the National Assembly (Basic Constitutional and Transitional Provisions) Decree No.5 of 1999, order to show clearly in the difference between the Act and the Decree.

Section 136(3) of the Electoral Act of 1982, reads.

“136(3). The court in the trial and determination of the petition shall confine its enquiry or finding to the issue raised by the petition and reply.”

Section 82 of Decree No.5 of 1999, which in my view is relevant in dealing with prayers contained in a petition reads:-

“82(1) Subject to subsection (2) of this section, if the Election Tribunal determines that a candidate who was returned as elected was not validly elected on any ground, the Election Tribunal shall nullify the election.

(2) If the election Tribunal determines that a candidate was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Election Tribunal shall declare as elected the candidate who scored the majority of valid votes cast at the election.”

I believe it will not be disputed that the two subsections of section 82 of Decree No.5 of 1999 do not mean the samething. In my humble opinion, there can only be valid votes in an election validly conducted, free from corrupt practices or offences or non-compliance with provision of the said Decree.

It can thus be seen that unlike in the Electoral Act, 1982, specific provisions have been provided in the National Assembly (Basic Constitutional and Transitional Provisions) Decree No.5 of 1999, for the nullification of election by the Election Tribunal. My understanding of the provision of section 82(1) of the Decree, is that once the Election Tribunal determines that a candidate who was returned as elected was not validy elected on any ground, the Election Tribunal shall nullify the election while subsection (2) only cures defects arising from arithmetic errors. There is no doubt in my view of the fact that the reference to the election,” in subsection 1 of Section 82 means the election in question, in this case the Senatorial election in Delta South Senatorial District.

A duty has therefore been imposed on the Election Tribunal by Section 82 of Decree No.5 of 1999. The decision in the case of Opia v. Ibru (1992) 3 NWLR (Pt. 231) 688. 703 by this Honourable Court, has provided a guide on the appropriate order to be made by the Tribunal where it finds that a candidate was not duly elected. In Opia (supra) this Court interpreted the provisions of Section 92(3) of Decree 50 of 1991, which is in pari materia, with Section 82 of Decree No.5 of 1999.

The court had this to say:-

“In order to decide that question it is necessary to refer to the provisions of Section 92(3) of Decree No.50 of 1991, which says that where a court or Tribunal finds that a candidate elected or nominated was not validly elected or nominated the court or Tribunal shall order a bye- election and no more: It seems to me that upon the a careful reflection upon the provisions of the said section, the Tribunal has no other option open to it than to order a bye-election if it was established that a candidate was not duly elected.”

A situation where the votes scored by both candidates at the election exceeded number of accredited voters on the queue is an electoral malpractice as the case of total votes cast to both candidates, exceeding the number of accredited voters. See Terab v. Lawan (supra).

As stated earlier in this judgment, I agree with the finding of the Tribunal on the evidence adduced before it that there was an excess voting in Isoko South Local Government Area. In my view, the ballot papers supplied by INEC, for the purpose of the election as alleged by the Petitioner in his petition and the one found to have been supplied by the Tribunal in its judgment is not material. What is material is that an excess voting has been proved. Whether the ballot papers supplied to INEC is 78,000 as contained in the petition or 78,750 as found by the Tribunal, the fact still remains that there was an excess voting. While the Petitioner/Cross-appellant proved the case of excess voting by oral and documentary evidence, the 1st Respondent/appellant was unable to prove his claim that 84,375 was, by evidence consequently it was rejected by the Tribunal. In fact, the Tribunal, in its judgment explained the reason for the difference and accepted that 78,750 ballot papers, which is more favourable to the 1st Respondent/Appellant.

Having held that the votes alleged cast in Isoko South Local Government Area at the said election exceeded the total number of ballot papers issued for use in the election in Isoko Local Government Area, the Election Tribunal ought to have been guided by provisions of section 82(1) of Decree No.5 of 1999, in reaching its conclusion. Applying, the provisions of section 82(1) of the Decree Appellant No.5. it is clear that the 1st Respondent Appellant was not validly elected as a result of the excess voting, a case of an electoral malpractice as held in Terab (supra) has been established. Going by the decision of this Honourable Court, in Opia, (supra) the only option open to the Tribunal was to nullify the election and order for a bye-election.

It should be noted that there is no allegation of crime against anybody in this case. It is unlikely to ascertain those responsible for the excess voting, all the same. I hold the view that an excess voting has been established beyond reasonable doubt.

I therefore answer issue No.1 in the negative, with respect.

I do not think the Tribunal was right in holding that this excess of alleged voting was too general to affect the election in Isoko South Local Government Area. The answer to issue No.2 is in the affirmative that an electoral malpractice has been proved by the Petitioner/Cross- appellant law having proved that there was an excess voting beyond reasonable doubt. My short answer to issue No.3 is none. I answer No.4 in the negative.

The election having been vitiated by vice, excess voting, the proper order for the Election Tribunal to make was to nullify the entire election consequently there cannot be a winner.

I am therefore in complete agreement with the learned counsel for the Petitioner/Cross-appellant that the Tribunal having found that excess voting was proved in Isoko South Local Government Area ought to have nullified the entire election including the declaration and return of the 1st Respondent/Appellant in accordance with the provisions of section 82(1) of Decree No.5 of 1999 and order for a bye-election. Since the Tribunal nullified the election on the ground that the non-holding of the election in Bomadi Local Government Area, is a non-compliance which will substantially affect the results of the election. I affirm the judgment of the Tribunal for that reason as well as on the ground of the established excess voting, a fraud which has tainted the entire election. I order that a bye-election be held in the Delta South Senatorial District of Delta State. In the result, the appeal fails and is hereby dismissed. The cross-appeal succeeds and is hereby allowed with costs assessed at N2,000.00 in favour of the Cross-appellant against the Appellant. I order that a bye-election be held in the Delta South Senatorial District of Delta State.

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Other Citations: (1999)LCN/0582(CA)