Professor Eric Agume Opia V. Chief Felix Ovuodoroye Ibru & Ors (1992)

LawGlobal-Hub Lead Judgment Report

AWOGU, J.C.A.

The appellant and the 1st respondent were the two candidates at the election for the Office of Governor of Delta State held on 14th December, 1991. The appellant was the candidate of the N.R.C., while the 1st respondent was the candidate of the S.D.P. Following the election, the 1st respondent was returned as duly elected as Governor of Delta State. The appellant being dissatisfied with the result, filed a petition on 13th January, 1992, challenging the result before the Governorship Legislative Houses Election Tribunal, sitting at Asaba and presided over by the Hon. Justice S.O. Okuribido. The hearing commenced on 3rd February, 1992. After the conclusion of hearing and addresses by counsel, judgment was reserved sine die. On February 12th, 1992, the Tribunal delivered its judgment and dismissed the petition with costs. The appellant has appealed against the judgment to this court. His grounds of appeal are as follows:-

l. The Tribunal erred in law in failing to consider the contravention by the 2nd and 3rd Respondents of section 122(5) of the State Government (Basic Constitutional and Transitional Provisions) Decree No. 50 of 1991 and the effects of such contravention and thereby came to a wrong decision in the matter.

PARTICULARS

(a) The polling documents have all been already opened when they were tendered in the proceedings.

(b) No order of the Tribunal was applied for or obtained for the opening of the said Polling documents.

(c) The implications of the breach of the said statutory provisions are relevant and have far reaching consequences.

2. The Tribunal erred in law in making an order for the Petitioner to file further and better particulars and thereby came to a wrong decision in the case.

PARTICULARS

(a) The order for further and better particulars was incompetent and contrary to the provisions of paragraph 18 of Schedule 6 to Decree No.50 of 1991.

(b) Further and better particulars were unnecessary in the circumstances.

3. The Tribunal erred in law by holding that:-

“The Tribunal, having read the provisions of paragraph 5(3) of Schedule 6 in the light of the authorities relied upon by learned Senior Advocate (sic) in their address, has arrived at the conclusion that this prayer is incongruous and incompetent and that as a result the Petition should be and is hereby struck out.”

PARTICULARS

(a) Paragraph 5(3) of Schedule 6 to the Decree must be read together with paragraph 50 of Schedule 6 and sections 92(3), 102 and 105 of the Decree.

(b) The decision in the case of Ige v. Olunloye (1984) ISCNLR 158, (1984) 1 S.C. 258 relied on by the Tribunal does not apply to the case before it.

(c) The decision in the Ige’s case is that an Election Tribunal is not competent to grant a Petitioner a relief not specifically sought.

(d) There was no prayer for nullification in Ige’s case.

(e) The nullification of the election has been specifically sought in this case.

(f) Ige’s case did not decide that the prayer was incongruous.

(g) The case of the Appellant was that he had the majority of the votes cast in the election but for the falsification, alterations and corrupt practices of the Respondents and their agents; and also that there were non-compliance, corrupt practices, intimidation and undue influence which were sufficient to entitle the Tribunal to nullify the election.

(h) It is irrelevant in law that a party has claimed for more than he is entitled to and if he cannot get more than he has asked for, he certainly can get less.

The Tribunal erred in law and in fact by stating that:-

“In these circumstances, the Tribunal cannot but bow to the weight of authorities in the matter and notwithstanding that it had bent over backwards to admit all such evidence in the pursuit of its determination to have before it whatever documents are relevant and could be used to establish the facts in issue, and that, in spite of the objections of other learned Senior Advocates and counsel in the matter, has no option but to now declare all the parts of the oral evidence of P.W.1, PW.5 relating to, and exhibit B, B1-8 itself with regard to the alleged unlawful votes legally inadmissible and, having been admitted the same as being hereby ordered to be and as being hereby expunged from the record.”

And thereby came to a wrong decision in the matter.

PARTICULARS

(a) Paragraph 16 of Schedule 6 to Decree No.50 of 1991 relied upon by the Tribunal docs not apply.

(b) In the instant case, no claim is being made by the Petitioner for an unsuccessful candidate.

(c) In any case, since no objection was raised, the Respondents are not entitled to take any advantage of the alleged irregularity as fresh steps have been taken by the Respondents after knowledge of the alleged irregularity.

(d) Paragraph 16 of Schedule 6 to the Decree must be read together with paragraph 50 of Schedule 6 and section 92(3) of the Decree.

(e) The parties to this action, in the course of the trial on 4th February, 1992 had agreed on facts in issue as pleaded in paragraph 8(1)(2) and (3) of the Petition and it is not open for the Tribunal to contend that such facts had not been properly proved before it.

(I) The facts in the instant case are different from the facts in Ojukwu v. Onwudiwe & Ors(1984) 1 SCNLR 247,(1984) 2 S.C. 15.

(g) The duty of the Tribunal is to inquire into the allegations of irregularities, improprieties and non-compliance with Decree No.50 of 1991 in the conduct of the election and to pronounce thereon and no technicalities should be allowed to stand in the way of that inquiry.

(h) There is no basis or justification for expunging the evidence.

5. The Tribunal misdirected itself in law and on the facts by holding that the Petitioner failed to show how the votes were arrived at and thereby came to an erroneous decision.

PARTICULARS

With a little effort in arithmetical calculations, the Polling documents tendered in evidence would have revealed the true position.

6. The Tribunal erred in law by holding that:-

“All the pieces of evidence given therefore in respect of the giving or receiving of bribe in any shape or form should be and is hereby totally ignored and expunged from the record of the trial on the ground that being legally inadmissible, it was erroneously admitted.”

(a) Copious, direct evidence was given on bribery by the Petitioner without any objection from the Respondents and the Court.

(b) The Respondents cross-examined on it.

(c) The parties addressed the Tribunal on it.

(d) The Tribunal received the evidence for the purpose of a full and proper determination of the Petition particularly to enable it to decide if the election was fair and free from malpractices and/or corrupt practices.

(e) Without ordering amendment, the Tribunal is obliged to inquire into any issue whether it is raised or apparent or otherwise appearing necessary in the inquiry before it to enable it to come to a just decision on the merit.

(f) In election petition cases, rules which regulate ordinary cases arc thrown overboard because election petition cases deal with peculiar circumstances.

(g) The question in election petition cases is based on the ground that they arc invalid by reason of corrupt practice.

(h) There is no basis or justification for the Tribunal to ignore evidence on such a serious complaint.

7. The Tribunal misdirected itself in law and on the fact by holding that none of the persons who were referred to as having been the object of harassment and intimidation by thugs and town criers excepting P.W.6 Clever Egbeji was called, to give evidence.

PARTICULARS

(a) The Tribunal had ordered that the evidence of witnesses for the Petitioner must close on the second day of the commencement of hearing in other words, the Petitioner was given only one and a half days to call his evidence because of time constraint.

(b) It is sufficient for a party to prove his case by admissible evidence.

(c) The evidence led did not require corroboration in law.

(d) There was no contradiction or challenge of the evidence led by the Petitioner.

(e) The implications of being ordered to supply names and addresses of witness having regard to the peculiar circumstances of this case such as threats to life, etc., can be attributable to the fear of those witnesses who would have come to testify.

(f) PW1 testified positively to the effect that town-criers were used on the 13th and 14th December, 1991, to warn and intimidate people to vote only for the S.D.P. candidates otherwise they will be expelled from the village community.

(g) PW2 testified positively that on the day of the election he could not vote because of fear of being mobbed by the S.D.P. supporters and thugs who were shouting that everybody there must vote for the S.D.P. candidate and that there was no need for accreditation and actual counting of votes.

(h) PW3 testified on oath to the effect that on the night of 13th December, 1991 and the morning of 14th December 1991, town-criers were used by the S.D.P. to warn and intimidate the people saying that the Urhobo Community had passed an order that nobody should vote for the N.R.C. candidate otherwise serious consequences would follow.

(i) PW3 testified positively that because of the intimidation, only 1/3 of the people who were registered actually came out to vote.

(j) PW6 testified positively of the use of intimidation by the Urhobo Action Committee and the S.D.P. supporters to force people to vote for the 1st Respondent and those who dared to vote otherwise were beaten up and injured.

(k) PW5 testified that some thugs who called themselves the powerful people of the community and the elders of the community forced him to fill the Election Form and the voters register without actual accreditation and voting taking place.

(l) PW6 testified on oath that he did not vote on the day of the election because the SDP thugs were trying to kill him.

8. The Tribunal misdirected itself in law and on the facts by stating that:-

“Quite apart from the fact that the witness testified about the alleged threat and intimidation by the town-criers were apparently not deterred thereby, it is unlikely that the effect credited to those announcements could have been real and, in any case, apart from the witness who gave evidence of the announcement being made, no single person came up to give evidence that he was not able to vote because of the existence of the threat imposed by those announcements.”

PARTICULARS

(a) The essence of the complaint is the improper interference with the free exercise of the votes of those entitled to vote at the election.

(b) The Tribunal failed to consider, as required by law, the likelihood of the fear the announcements could possibly have had in the minds of those concerned.

(c) There was evidence of many people failing to turn out to vote because of the announcements.

(d) The serious nature of the threat to life and the circumstances prevailing were not considered.

(e) The evidence adduced by the Petitioner was not contradicted or challenged.

(f) The Tribunal did not and could not have disbelieved the evidence tendered.

9. The Tribunal misdirected itself in law and on the facts by holding that:-

(a) None of the victims (hospitalized or otherwise) of the alleged assault was called to give evidence and that the name and address of any such person was not disclosed and the medical report was not produced.

(b) No neighbour was called to corroborate PW6

PARTICULARS

(a) There was evidence by PW6, Clever Akpovona Egbeji, of the injuries sustained by him and some named persons and of the medical treatment received.

(b) There is also evidence before the Tribunal of the issue of writ of subpoena on one Dr. F.B. Abuah of Majoroh Medical Centre, 239, Ekerejeta, Abraka, signed by the learned Chairman of the Tribunal, to testify on the injuries sustained by certain named patient on 14/12/91.

(c) The Tribunal ordered the Petitioner to close his case within one and a half days because of time constraint.

(d) PW7 gave oral testimony on the injuries he and his wife received on 14/12/91, the damage to his car and properties on which there was no contradiction or rebuttal.

(e) Exhibits E and EI were produced by him to strengthen his oral testimony.

(f) The Tribunal, at the time it was writing its judgment, suo motu raised the issue of calling a neighbour to corroborate PW.6 when the witness was not asked to explain this while he was giving evidence and the petitioner’s Counsel was not requested by the Tribunal to address it on the issue.

(g) The Tribunal was wrongly making a different case for the Respondent as they did not put up such a submission before the Tribunal.

10. The Tribunal erred in law in holding that under that undue influence must be proved strictly beyond reasonable doubt and that the allegation fell below the requisite standard. PARTICULARS

(a) The standard of proof in this case is proof on balance of probabilities.

(b) In any case, proof beyond reasonable doubt does not amount to proof beyond the shadow of doubt.

(c) The evidence led satisfies the requisite proof required in law.

(d) Tribunal failed to give reasons why it held that the allegation fell below the requisite standard.

(e) The Tribunal did not review the evidence properly and did not cite legal authorities for its decision.

11. The tribunal misdirected itself in law and on the facts by holding that:- “Now, as regards the allegation of non-compliance as laid in paragraphs 8 of the petition evidence was given by PWs  1,2,4,5 and 7 and DW2 and 3 in particular. In the course of learned Counsel’s address the Tribunal called the special attention of the Learned Solicitor General to Exhibit J which ex-facie shows that the number of votes entered therein exceeds the number of voters in the queue entered therein. Learned Counsel for the petitioner also drew the attention of the Tribunal to many “cancellations”

in Exhibit Q, Q1 to Q19. On examination of the exhibits the tribunal finds that although there are a few alterations in Exhibit Q there was no evidence to show that the said alterations constituted material cancellations stricto sensu. The Tribunal also finds that the said exhibits are statements of results from ward presiding officers which according to the Regulations and Guidelines, constitute working papers far use at Local Government level collation centres and thereafter the state level collation centres are marked on Forms EC8C and following up to Form EC8C on which the final result is announced. There was no evidence that any alterations in Exhibits J and Q affected the petitioner substantially or otherwise-.”

PARTICULARS

(a) On the above findings, the Petition ought to have succeeded in law.

(b) The Tribunal relied on its own observations from examination of certain documents, at the time of writing the judgment, to decide matters which had not emerged from the actual evidence given before it without putting the points to the witnesses or inviting Counsel to comment on them, if they wished, namely:

(i) Whether “the said alterations in those exhibits constituted material alterations stricto sensu.”

(ii) Whether statement of results and Forms EC8C and EC8E are working papers;

(iii) Whether alterations in Exhibits J and Q affected the Petitioner substantially or the result. particularly when the Tribunal was dealing with an election petition.

(c) There is no evidence before the Tribunal that the statement of results from the Presiding Officers, Forms EC8C and EC8E are working papers.

(d) The alterations in Exhibits J and Q affected or might have affected the result of the election.

(e) All the relevant Forms EC8A on which the pyramid of the election process is built have been tendered before the Tribunal and a little effort in arithmetical calculations would have revealed the effect of the alterations.

(f) The provisions of paragraphs 29(1)(b) and 32(1) of Schedule 5 to the Decree are mandatory.

(g) The burden on the Respondents has not been discharged.

(h) The Petitioner had pleaded that in Warri South Local Government, the Petitioner’s votes of 9,000 were wrongly and arbitrarily cancelled on the grounds that there were alleged mathematical errors on the Summary Sheets used to collate the results of the wards whereas the Statements of Result Form EC8A used were available and were not used to cross-check the cancellations and additions.

(i) The Petitioner tendered in support of this allegation Exhibits Q, Q1-Q19 showing several cancellations and alterations and the wrongful and arbitrary cancellation of votes totalling 9,000 in favour of the Petitioner.

(j) The Petitioner pleaded that there was no election and voting in Akingbene Wards in Bomadi Local Government Area and yet the 2nd and 3rd Respondents connived with the 1st Respondent to fill in fake results.

(k) In support of the allegation above, the Petitioner called PW7 who testified positively that there was no voting and tendered Exhibits F and G in support.

(l) Exhibit J, the Result Sheet showing alterations, cancellations of several errors, was tendered by DW2 to rebut the allegation that there was no election.

(m) The Exhibit was not a Statement of Results from the Wards but the relevant Form EC8A, Statement of Results alleged to have been used in the polling station where PW7 said he registered.

(n) There was evidence that the alterations and cancellations in Exhibits J and Q affected the Petitioner substantially.

The Tribunal erred in law and on the facts by saying that:-

“Now as regards the cancelled Burutu elections. The Tribunal agrees that in as much as it did not emanate from the presiding officer and as the Resident Electoral Commissioner who was alleged to have ordered it was not called to give evidence on it, a case of non-compliance was established by the petitioner. D. W.2 gave evidence to the effect that both the Governorship and House of Assembly Elections were affected by the cancellation although a fresh election has since been held in respect of the latter. The evidence showed that the party supporters had in their possession the unit by unit results before the confusion that ensued in the Custom’s House, but it does not appear that they have been quite anxious, or able, to disclose their relative figures therein apart from the claim made that the petitioner was leading massively there. The presumption under Section 148(d) of Evidence Act would therefore appear to apply against the petitioner. Be that as it may, however. PW4 gave evidence that the number of voters there is about 104.000 and as the votes which they claim to be in possession of have not been released and there is no evidence as to how the petitioner would be affected by it, it is the view of the Tribunal that even if the whole of that figure was added to the petitioner’s votes he would still be trailing behind the 1st Respondent by a wide margin. This would appear to dispose of the petition.”

PARTICULARS

(a) Having held that non-compliance has been proved by the Petitioner, the Tribunal should have held that the Petition succeeded.

(b) There was no basis in law for invoking the provision of Section 148(d) of the Evidence Act against the Petitioner in this case.

(c) There was evidence before the Tribunal that the offer of unit by unit results was rejected by N.E.C. Officials and that the Police unlawfully kept the originals of those results.

(d) The purpose for which the evidence was meant to serve is to prove election malpractices, irregularities and substantial non-compliance with Decree No.50 of 1991.

(e) The burden of proof on the Respondents was not discharged.

13. The Tribunal erred in law and on the facts in failing to consider in full all the issues properly raised by the Petitioner and heard as laid down by the Supreme Court in the case of Ojogbue v. Nnubia (1972) 8 S.C. 227 and thereby came to a wrong decision in the case.

PARTICULARS

(a) The Tribunal has a duty to consider in full all the issues raised and heard and the decision of the Tribunal must reflect the result of such an exercise.

(b) The Tribunal is required by law to look at the whole evidence and use any evidence elicited from the opposite party which supports a party’s case, as it is on the totality of the evidence led that the case is ultimately decided.

(c) The entire evidence must be considered by the Tribunal before deciding on the burden of proof and whether it is proof beyond reasonable doubt or on balance’ of probabilities.

(d) Copious evidence was given by the witnesses for the Petitioner and although the Tribunal summarised such evidence, it failed to evaluate and assess the same before coming to its conclusion.

(e) The Petitioner has discharged the burden of proof on him by showing that substantial irregularities and malpractices took place and they might have affected the result of the election.

(f) The Respondents failed to discharge the burden of proof placed on them by law.

14. The judgment is against the weight of the evidence.
15. Further grounds of Appeal may be added ‘on the receipt of the Record of Proceedings and the judgment.

In accordance with the rules, the parties filed briefs of arguments and set out the issues for determination in the appeal. According to the appellant, the issues for determination are whether the Tribunal was in error in not declaring the election void on the evidence adduced before it, and whether it has used the correct procedure and applied the law correctly in arriving at its decision in the case.

The 1st respondent put the issues for determination thus:-

(i) Whether the tribunal was correct in striking out the petition on the ground that the prayers contained therein are incongruous and incompetent.

(ii) If, but only if, Question (i) is answered in the negative, whether the tribunal was correct in concluding that the Petitioner has failed to prove that the election was invalid “by reasons of various corrupt practices and non-compliance with some of the provisions” of Decree 50 of 1991.

(iii) Was the allegation of want of majority of lawful votes on the part of the Appellant properly pleaded?

(iv) If the answer to Question (iii) is in the negative, is the tribunal correct in expunging all evidence led in support of votes alleged to be unlawful from the record?

(v) Having regard to the nature of the Petitioner’s allegations, what is the standard of proof required by law to establish that the petitioner had a majority of lawful votes or that the 1st Respondent did not have a majority of lawful votes.

(vi) Were the particular types of unlawful votes which the petitioner has alleged (or any of them) duly established by evidence before the tribunal?

(vii) Was it right for the tribunal to have ordered the petitioner to file further and better particulars of the petition?

(viii) Does non-compliance with the provisions of Decree 50 of 1991 per se justify the invalidation of an election.

(ix) What is the effect of undue influence (which includes intimidation) or bribery on an election held pursuant to Decree 50 of 1991.

(x) Is it open to the petitioner to raise the question of the alleged contravention of Section 122(5) of Decree 50 of 1991 at the hearing of this appeal.

Brief was also filed on behalf of the 2nd and 3rd Respondents, who associated themselves with the issues for determination as presented by the 1st respondent. In his oral argument, Kehinde Sofola, S.A.N., for the appellant pointed out the hardship which the appellant endured as a result of an application for further and better particulars made by the 1st respondent, and which was not disposed of timeously. He said that as a result, there was pressure of time on the appellant, borne out by the Ruling of the Tribunal at page 66 of the record, to wit:-

“Having consulted counsel of all sides and with the agreement of all of them, it is hereby decided that the petitioner will conclude his evidence tomorrow, Tuesday, 4th February, 1992, while the respondents will conclude their evidence on Thursday morning 6th February, 1992, followed by the addresses of counsel to the matter which will be limited to one hour for each of the parties.”

Chief Williams S.A.N. for the 1st respondent referred to the facts which led to the ruling and stated that the delay, if any, was caused by the appellant. We have gone through the record relating to this issue of hardship. Although we would have been minded to deprecate the practice of rushing a party in a matter like this, we are, however. satisfied from the record that the order of the Tribunal was made after consultation and with the consent of the parties. No miscarriage of justice can therefore be said to have been occasioned as all sides complied substantially with the Ruling.

On the issue of striking out the petition. the learned Senior Advocate was of the view that the prayer in the petition was neither incompetent nor incongruent.

He submitted that even if the prayer included what the court could not grant, the court was still at liberty to grant less. He said that the case of Ige v. Olunloyo (1984) 1 SCNLR 158, (1984) 1 S.C. 258 was inapplicable. It was the view of Chief Williams, however, that Ige v. Olunloyo was right on the point and that the application was properly struck out.

In the petition, there was only one prayer, namely:-

“Whereof your petitioner prays that it may be determined that the said election for the office of Governor of Delta State be nullified and that the said 1st respondent was not duly elected or returned and that your petitioner ought to have been elected and therefore should be declared elected or returned.”

Although framed as a single prayer, there are in fact two, namely:-

(1) That it may be determined that the said election for the office of Governor of Delta State be nullified;

(2) That the said 1st Respondent was not duly elected or returned and that your petitioner ought to have been elected and therefore should be declared elected or returned.

It can of course be argued that (1) above is purely ancillary or incidental to prayer (2). In Ige v. Olunloyo (supra), the prayer was as follows:

(1) that the first respondent, that is to say, the said Dr. Victor Omololu Olunloyo was not duly elected and/or returned and that his election is void.

(2) that your petitioner was duly elected and ought to have been elected and returned.

Later, the petitioner sought to amend the prayer by adding that the election should be declared null and void. The application was refused. The petitioner then had to fight the case on the basis of the original prayers. There is no doubt that for a petitioner to ask that an election be declared void and also ask that he be declared the winner is a contradiction in terms, since if the election was void there would be no winner and the logical consequence would be a by-election. Still, even if on a proper interpretation, this was what the present petitioner sought, this court must also consider the other prayer. In our view, therefore, it would be wrong to strike out the entire prayer, and the petition, by placing reliance on Ige v. Olunloyo (supra). The learned Solicitor-General for second and third respondents has kindly drawn our attention to paragraph 5(3) of Schedule 6 of the Decree which states as follows:-

“‘3. The petition shall conclude with a prayer as for instance, that some specified person may be duly returned; or elected or that the election may be declared void as the case may be…”

The language of the section is clear. It does not mean that if, instead of “OR,” “AND” is used, a petition becomes incompetent. We are obliged here to apply the doctrine of severance in order to make the provision more meaningful. We think therefore that the Tribunal was wrong in striking out the petition.

Before going further, let me deal briefly with the issue of Further and Better Particulars. Following the filing of his Reply, the 1st Respondent brought an application under section 18 of Schedule 6 of the Decree for further and better particulars. The order was made but appears to have been feebly complied with. Be that as it may, what is now important is that Sofola for the Appellant contends that the order ought not to have been made. As he stated in the Brief, “evidence need not be pleaded but only material facts necessary to formulate a complete course of action. See paragraph 6 of Schedule 6 of Decree No.50 of 1991.” Although he had opposed the making of the order, the Tribunal overruled him. He has again challenged the propriety of the order at the stage at which it was made. What, then, is the provision of the Decree in this regard? According to paragraph 18 of the 6th Schedule to the Decree:

“( 1) If any party to the petition wishes to have further particulars or other directions of the tribunal, he may, at any time after the entry of appearance, but not later than 10 days after the filing of the reply, apply to the Tribunal specifying in his notice of motion the direction for which he prays, and the motion shall, unless the Tribunal otherwise orders, be set down for hearing on the first available day.”

Both the Reply of the 1st Respondent and the Motion for Further and Better Particulars were filed on 23rd January 1992. The motion was therefore within the time stipulated by the Decree. The order was made after due argument and the application succeeded only in part. On the contention that evidence need not be pleaded, paragraph 6 of the 6th Schedule to the Decree clearly states that:

“(6) Evidence need not be stated in the petition, but the tribunal may order such particulars as may be necessary to prevent surprise and unnecessary expense and to ensure a fair and effectual trial in the same way as in civil action in the High Court, and upon such terms as to costs and otherwise as may be ordered.”

To the extent that the Appellant feebly complied with the order so made, he cannot now be heard to complain that the order ought not to have been made, nor can paragraph 15(2) of Schedule 6 be prayed in aid.

Similarly, no question of having taken fresh steps after knowledge of an irregularity arises, in view of the provisions of paragraphs 6 and 18 of the 6th Schedule, and ‘so the provisions of paragraph 50 of the Schedule is unavailing to the Petitioner. I may add here that although the violation of section 122(1) of the Decree has been raised in this appeal, the issue was not raised at the lower court, it is not a point of law that can be raised for the first time at the appellate court.

And now to return to the all-important issue as to the evidence of lawful votes. The issue for determination in this appeal is whether or not the petitioner made out a case for him to be declared as a person who ought to have been duly elected or returned. Indeed. sections 89 and 91 of the Decree stipulates what an election petition should contain and the grounds on which an election may be questioned. They read as follows:-

“89. No election into any Legislative House or the Office of a Governor and no return to a Legislative House or Office of Governor shall be questioned except by a petition complaining of an undue election or undue return (hereinafter referred to as an “election petition”) presented to Governorship and Legislative Houses Election Tribunal 91.(1) An election may be questioned on the following grounds –

(a) that the person whose election was questioned was at the time of the election not qualified or was disqualified from being elected to the Office of Governor or as a member of a Legislative House:

Provided that the power of the Chief Electoral Officer of the Federation or any officer delegated by him in that behalf as to the validity of nominations under paragraph 5(3) of Schedule 5 to this Decree shall not be ground for such election petition;

(b) that the election was invalid by reason of corrupt practice or offences against this Decree; or

(c) that the respondent was not duly elected by a majority of lawful votes at the election.”

Where an appellant contends that the Respondent did not win by a majority of lawful votes, or by reason of corrupt practices, or offences against the Decree, the onus is on him to prove. The issue of majority of lawful votes appears to be linked to the application for further and better particulars which, though ordered, was feebly complied with. The provisions in this regard are governed by paragraph 16 of Schedule 6 which states as follows:-

“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 votes intended to be objected to by him and of the heads of objection to each such vote.

(2) No evidence shall be given against the validity of any vote or upon any head of objection not specified in the list filed pursuant to sub-paragraph (1) of this paragraph except by leave of the tribunal upon such terms as to amendment of the list postponement of the’ trial and payment of costs as may be ordered.”

Following the order of Further and Better Particulars, there was no meaningful particular given in this regard. Yet, this is a matter so vital to the allegation that a party had won with unlawful votes that it must therefore be pleaded. In Ojukwu v. Dr. Onwudiwe & Ors (1984) 1 SCNLR 247, (1984) 2 S.C. 15, Obaseki, JSC, dealt with this point and said at page 61:

“(1) The facts were not pleaded in the petition before the amendment;

(2) A list of votes intended to be objected and the heads of objection to each such vote, i.e. notice of objection to the votes was not filed as required by section 137(1) of the Election Act, 1982. Furthermore, no application for leave to adduce evidence challenging the validity of the votes not specified in the list was made to the court and no leave was granted.”

This point also arose in CA/E/31/92: Architect Ekong Etuk v. Ohong Akpan Isemin and Ors., delivered on 26/3/92 where this Court, per Onu, JCA, said:

“I am of the firm view that the Petitioner did not plead the number of bad votes just as in Ojukwu v. Onwudiwe (1984) 1 SCNLR 247; (1984) 2 S.C. 15. The Petitioner there failed because he did not plead the number of bad votes under sections 136 and 137 of the Electoral Act, 1982, which is in pari materia with paragraph 16 Schedule 6, Decree No. 50 of 1991.”

It is clear therefore that if the Petitioner was challenging the fact that the 1st Respondent won without lawful votes, he assumed the burden which he did not discharge. If under paragraph 16(2), documents were wrongly admitted in evidence, such documents were, and we believe, rightly, expunged from the records.

In this regard, Sofola, SAN, for the Appellant, has raised two intriguing points. The first is that paragraph 16(1) does not apply to the Petitioner, since he is not claiming the seat or office “for an unsuccessful candidate,” but for himself.

The second is that the open ballot system under which the election was conducted does not envisage the filing of a list of objection to votes. This second point finds an answer in section 87(2) of Decree 50 of 1991, which provides that voting “shall be by open ballot.” Since Nigerians have so chosen, so be it. On the first point, Sofola, SAN, would appear to derive support from the wording of paragraph 16(1), which states:

“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.”

In my opinion, however, the phraseology can only mean a petitioner who is an unsuccessful candidate as well as a petitioner who otherwise has locus standi and claims the seat or office for an unsuccessful candidate. For this purpose, section 89 of the Decree provides for who may be a petitioner in an election petition, and states that he is one or more of the following:

“(a) a person who voted at an election or who had a right so to vote; or

(b) a person claiming to have a right to be elected or returned at the election. ”

A ‘Petitioner’ in paragraph 16(1) of the 6th Schedule can, therefore, be the persons so qualified under section 89 of the Decree. He is either the defeated candidate or one claiming the seat for a defeated candidate. I find support for this in the provisions of the Electoral Act, 1982, section 137 which is in pari materia with paragraph 16(1) of the 1991 Decree, but which has the following provision (not included in the 1991 Decree):

“138(1) When the respondent in a petition complaining of an undue return and claiming the seat or office for some person intends to give evidence to prove that the election of such person was undue, the respondent shall, within six days.”

Although omitted in the 1991 Decree, a respondent who claimed the seat for “some person” (i.e. other than himself) must similarly comply with the provisions of section 137(1) of the Act of 1982, similar to paragraph 16(1) of the 6th Schedule to the 1991 Decree. Fortunately, for our purpose, section 90(2) of Decree 50 of 1991 describes a ‘respondent’:

“the person whose selection or return is complained of is hereinafter referred to as the respondent…”

Thus, under the 1982 Act, the ‘respondent’ included not only the person who won, but also a person claiming the seat for ‘some person.’ Finally, in Ojukwu v. Onwudiwe (supra), the petitioner did not claim the seat for another, yet section 137 (similar to paragraph 16 of Schedule 6) was held to apply.

Sofola, SAN, for the Appellant, has also repeatedly drawn our attention to the provisions of Decree 50 of 1991 which deemphasises the role of technicality in the determination of election petitions. I believe he is right because Decree 50 of 1991, unlike its predecessors, reminds the courts of the pre-eminence of substantial justice over technical justice. For this purpose, paragraph 50 of the 6th Schedule to the Decree states:

“(1) Non-compliance with any of the provisions of this Schedule or with any rule of practice for the time 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 and upon such terms as the Tribunal shall think fit to ensure substantial justice.

(2) No application to set aside any proceedings for irregularity shall be allowed unless made within reasonable time, or if the party applying has taken any fresh step after knowledge of the irregularity.

(3) Where an application is made to set aside proceedings for irregularity, the several objections intended to be insisted upon shall be stated in the notice of motion.

(4) No objection shall be made that a certified copy has been used instead of a duplicate or a duplicate instead of a certified copy.

(5) An election petition shall not be defeated by any objection merely as to any defect in the Form.”

We are in agreement with Oputa, J.S.C., when he said in Aliu Bello & Ors. v. Attorney-General of Oyo State (1986) 5 NWLR (Pt.45) 82’8 at 886:

“The picture of law and its technical rules triumphant and justice prostrate may no doubt have its admirers. But the spirit of justice does not reside in form and formalities, nor in technicalities, nor is the triumph of the administration of justice to be found in successfully picking one’s way between pitfalls of technicality. Law and all its technical rules ought to be the handmaid of justice … ”

It is however important to emphasise that non-compliance does not play the preeminent role in Decree 50 of 1991 which it did in previous Electoral Acts. It is no longer a ground per se for avoiding an election, unless it amounts to corrupt practices, or an offence against the Decree under section 91. Thus, failure to hold an election in Burutu Local Government Area is not per se enough to avoid the election in Delta State, unless it can be shown by the petitioner to have substantially affected the result of the election in the whole of Delta State. What, then, is the role of substantial justice over technical justice as enthroned in the present Decree? In our view, it is simply an assurance of fair hearing, now constitutionally guaranteed.

Once all facts are pleaded, the Tribunal is bound to guard against surprises and issues not pleaded.

Subject to this, the Tribunal was entitled to inquire into issues not raised in the pleadings, but insofar as those issues flow from the facts and are necessary for a just determination of the controversy between the parties. It is an inherent jurisdiction which a court of competent jurisdiction has always enjoyed for the purpose of determining the real controversy between the parties and thereby avoiding a multiplicity of suits. To go beyond this, as submitted by counsel for the Appellant, will be a boomerang in the sense that technicality, not substantive law, becomes the rule of law.

After a careful consideration of the issues raised in this appeal, it is our view that the appeal be dismissed with N350.00 costs in favour of the 1st Respondent and another N350.00 costs in favour of 2nd and 3rd Respondents.

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Other Citations: (1992)LCN/0115(CA)