Ignatius Onyenekwu V. Casmir Amasiatu & Ors (1999)
LawGlobal-Hub Lead Judgment Report
KUMAI BAYANG AKAAHS, J.C.A.
The Petitioner and the 1st Respondent contested the Election into the Imo State House of Assembly for Oru-East Local Government Constituency which held on 9/1/99. The election was organised by INEC, the 4th Respondent. The petitioner contested on the platform of All Peoples Party (APP), while the 1st Respondent contested under the platform of Peoples Democratic Party (PDP). No candidate was fielded by Alliance for Democracy (A.D). At the close of the polls, the 3rd Respondent declared the PDP candidate the winner having scored 11,304 votes to the petitioners 11,587 votes. The petitioner was dissatisfied with the declaration made and filed his petition before the Governorship and Legislative Houses Election Tribunal holden at Owerri and in paragraph 6 of the Petition he stated the grounds and facts upon which he relied as follows:-
“(a) Some election result sheets for polling booths in Omuma Ward (which the 2nd Respondent collected from the Presiding Officers) I were falsified and mutilated by the 2nd and 3rd Respondents at Owerri and the scores of the 1st Respondent jacked up. The 1st Respondent was not elected by a majority of lawful votes.
(b) The results contained in these result sheets are different from the ones given to the Agents of the Petitioner.
(c) The figures in the original result sheets in the space of the 1st Respondents score were cancelled and higher figures inserted therein by the 2nd and 3rd Respondents aimed at rigging the said election”.
The Petitioner then prayed the honourable Tribunal to:-
(a) Nullify the election of the 1st Respondent as the elected member of the Imo State House of Assembly for Oru-East Local Government Constituency as he was not elected by a majority of lawful votes cast at the election.
(b) Hold that the Petitioner scored the majority of the lawful votes cast at the election and ought to have been returned as the elected member of the Imo State House of Assembly for Oru-East Local Government Constituency.
(c) Hold that the Petitioner is the elected member of the Imo State House of Assembly for Oru-East Local Government Constituency.”
The 1st Respondent filed his reply to the petition while the 2nd – 4th Respondents filed a joint reply. Except for the admissions made in paragraph 2, 3, 4, 7, 7(a) and 12 of the petition, the Respondents denied all other allegations made in the petition. In paragraph 12 of the reply the 1st Respondent urged the tribunal to:
“1. Hold that the election held on the 9th January 1999 for the House of Assembly in Oru East was conducted substantially in accordance with the Decree.
- Held that the 1st Respondent was validly elected and returned by a majority of lawful votes cast at the election.
- Dismiss the petition.”
2nd-4th Respondents denied falsifying the results in favour of the 1st Respondent and urged the Tribunal to:
- Hold that the petitioner is not entitled to any of the reliefs he is seeking.
- That there were no fraudulent and electoral malpractices during the last House of Assembly Election in Oru-East Local Government Area.
- That the 1st Respondent was duly elected through the majority of lawful votes cast at the said election.”
At the hearing, the petitioner gave evidence on his behalf and called PW2 an INEC official who tendered the results of the election. The 1st Respondent also testified and called 2nd Respondent as RW2 while the 2nd – 4th Respondents rested their case on that of 1st Respondent. In its judgment, the Tribunal made findings of fact and held that falsification was proved in booths J13, J3, J12 and J4 and proceeded to deduct the inflated votes of the 1st Respondent leaving him with 10,884 votes while the petitioner’s votes remained at 11,587. Instead of declaring the petitioner the winner of the said election having scored the majority of lawful votes cast at the election, it held that the petitioner did not score the majority of lawful vote because of the falsification. It nullified the entire election and ordered for a Bye-election in the constituency between the petitioner and 1st Respondent. Both the petitioner and 1st Respondent are dissatisfied with the nullification of the entire results and consequently have appealed and cross-appealed against the nullification and the other for Bye-Election.
The petitioner in the main appeal will be referred to simply as Appellant while the 1st Respondent/Cross-Appellant will retain the appellation of 1st Respondent.
The Appellant filed 3 grounds of appeal and identified three issues for determination while the 1st Respondent filed five grounds in the Cross-Appeal from which he also distilled three issues for determination.
The issues arising for determination in the appellant’s appeal are:-
- Whether the Tribunal below was right in holding that the petitioner/appellant did not score the majority of lawful votes cast at the Election having deducted the unlawful inflated votes of 920 credited to the 1st Respondent/Respondent from his “total” votes.
- Whether the Tribunal below was right in nullifying the entire election in Oru-East Local Government constituency when proven cases of falsification of results occurred only in some booths in Omuma Ward.
- Whether the Tribunal below was right in stating that the Petitioner/Appellant did not prove its case beyong reasonable doubt.
The issues for determination in the 1st Respondent’s Cross-Appeal are:-
- Whether having regard to all evidence before the Tribunalr there was enough legal proof (up to the Standard required by law) of falsification and mutilation of the scores at and result of the election in booths J3, J4, J12 and J13 to warrant and compel an order subtracting votes at all from the total scores of the appellant and nullifying his election or return as member elect of the Imo State House of Assembly instead of dismissing the Petitioner/Respondent’s Petition.
- Whether the Tribunal rightly and adequately assessed all available evidence to arrive at the decision nullifying the election.
- Whether it was not wrong for the Tribunal to have nullified the election in the entire Oru East Local Government Constituency when the unproved allegation of falsification affected or related to one Ward only out of 10 Wards in the said Constituency.
The Appellant and the 1st Respondent are agreed that the allegation of falslfication of results was made in respect of Omuma Ward only. Consequently the Tribunal should not have used this as a basis for nullifying the results in the other nine Wards making up Oru East Constituency (See Issue No.2 in Appellants Brief and Issue No.3 in 1st Respondents Cross-Appeal). I will therefore quickly dispose of this issue. The tribunal held at page 71 of the records that evidence had been adduced that the result of the 1st Respondent had been unduly inflated by 920 votes which they deducted from his total scores thereby leaving him with 10,884 votes.
The Tribunal went on to point out that apart from exhibit B2, B3, B10 and B11 which the petitioner highlighted to have been falsified and altered, condemnable falsifications also abound in Exhibit B, B7, B8 and B2, and proceeded to nullify the whole election. The reason the Tribunal gave for his action was:
“In a situation that we are unable to identify INEC’s records, it will be improper to allow either the 1st respondent or the petitioner to benefit from the fraudulent action of an unknown fraudster. In this regard, the election into the Imo House of Assembly in Oru East Local Government Constituency conducted by INEC on the 9th day of January, 1999 is hereby nullified as the unit by unit results were fraught with falsifications and alterations, and the 1st Respondent was not duly elected.”
I have taken a careful look at the Exhibit listed by the Tribunal and I agree with learned counsel for the Appellant and 1st Respondent that they all related to Omuma Ward. As Omuma Ward is said to have 14 polling booths and the Exhibits referred to concern 8 of the booths the remaining 6 booths, together with the other 9 wards are therefore free from the vice affecting the 8 booths. Although paragraph 15(3) to schedule 6 of the State Government (Basic Constitutional and Transitional Provisions) Decree No.3 of 1999 allows the Tribunal a wide latitude to go outside the issues raised by the parties in the election petition or the reply and inquire into any other issue raised or apparent for the purpose of the full and proper enquiry into and determination of the election petition, the Tribunal cannot nullify the election based on whims and caprices. Section 137(1) empowers the Tribunal to nullify the election once it finds that the person returned was not validly elected but this power can be exercised subject to sub-section (2).
Section 137(1) & (D therefore provides:_
“137(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 who 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 have reproduced paragraph 6(b) & (c) of the petition where the petitioner prayed the Tribunal to hold that he had scored the majority of the lawful votes cast and to return him as the Elected Member of the Imo State House for Oru-East Local Government Constituency.
The Tribunal was duty bound to declare one of the candidates as having won the majority of lawful votes and return that person as elected unless there is clear evidence that the falsification of results covered all the wards or a substantial number of them within the constituency. It is wrong to use the falsified scores of some booths in one ward to nullify the results of nine other wards for which there was no complaint or discovery of falsification. In the instant case a bye-election can be ordered only, if none of the candidates scored a majority of lawful votes after subtracting the scores recorded in the falsified results.
If the Tribunal had confined itself only to the allegation of falsification of the scores, the petition might have failed on the holding that falsification was not proved beyond reasonable doubt as required by section 138(1) of the Evidence Act and the decision in Nwobodo v. Onoh (1984) 1 SCNLR 1. Also if the enquiry had stopped at re finding that a necessary party i.e. the Presiding Officers were not joined, then the petition would have been incompetent (see section 133 (2) of Decree No.3 of 1999).
As I have stated earlier, paragraph 15(3) to Schedule 6 allows the Tribunal to go outside the issues raised by the parties. The said schedule 6 paragraph 15(3) to the Decree stipulates as follows:-
“The Election Tribunal shall not in the hearing and determination of an election petition, be obliged to confine its enquiry or findings to the issues raised by the parties in the election petition of the reply, if any, and may, without ordering or allowing:-
(a) the amendment of a statement of facts and grounds relied on in support of the election petition or the amendment of any admission or denial contained in the reply; or
(b) the fact or grounds set out in the reply, but subject always and having due regard to the time limited by section 132 of this Decree for presentation of an election petition, inquire into any other issue raised, or apparent, as the Election Tribunal may deem necessary for the purpose of the full and proper inquiry into, and determination of the election petition.”
The Tribunal had found based on the evidence adduced that the result of the 1st Respondent had been unduly inflated by 920 votes. I have compared Exhibit A3, A4, A2 and A8 which are the counterparts of Exhibits B10, B3, B2 and B12 and found that the scores in the latter Exhibits (which are the originals) were inflated by 600 votes in favour of the PDP. The scores for the AD and APP in the two sets of Exhibits remain the same. If 600 votes are subtracted from the total scores of the 1st Respondent, he will be left with 11,204 valid votes to the Appellant’s 11,587 valid votes. The Tribunal having subtracted 920 votes from the scores of the 1st Respondent and leaving him with 10,884 valid votes ought to have declared the Appellant as winner of the election having scored the majority of the valid votes cast at the election.
In conclusion, I hold that the appeal has merit and I allow it. I dismiss the cross-appeal filed by the 1st Respondent. The order of the Tribunal that a bye-election be held in Oru East Local Government House of Assembly Constituency is hereby set aside. I declare the appellant as winner of the election having scored the majority of the valid votes cast at the election and I return him as the duly elected member of the Imo State House of Assembly for Oru East Local Government Constituency. The 1st Respondent is to pay the appellant costs assessed at N3,000.00.
Other Citations: (1999)LCN/0588(CA)
