Stephen Onmeje V. Mr. Otse Otokpa & Ors (1999)
LawGlobal-Hub Lead Judgment Report
CHUKWUMA-ENEH, J.C.A.
The appellant/petitioner before Election Tribunal sitting at Makurdi, Benue State has challenged the return of the 1st respondent as the Chairman of Ado Local Government Area. As required under the Decree, the scores of the parties at the election were not pleaded. Failure to so plead was hotly contested in an interlocutory application for striking out the petition on grounds of incompetence.
At the end of the trial, the application was overruled. The reasons for so holding are now unimportant in the consideration of this matter as there is no cross-appeal against the ruling. Howsoever in Exhibits 49 and 95 tendered before the tribunal have been reflected the disputed scores at the election thus:
1,4616 and 1,0186 respectively for the 1st respondent and 1,0026 for the petitioner in both exhibits.
The crux of the petitioner’s case at the tribunal fell under two headings, namely:
(i) That the election was voided by corrupt practices, malpractices and non-compliance with the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 (hereafter referred to as the Decree).
(ii) That the appellant scored a majority of lawful votes and ought to have been returned.
Separate replies to the petition were filed on behalf of the 1st respondent and the 2nd to 7th respondents. All the material allegations contained in the petition were duly traversed. Issues having been joined, the petition proceeded to full blown hearing. The petitioner testified and called 4 (four) witnesses, in addition tendered 100 (one hundred) exhibits, while the 1st to 2nd respondents testified and called 3 (three) witnesses and tendered 9 (nine) exhibits. Both counsel rendered their addresses and the tribunal in dismissing the petition found that there was no scintilla of evidence adduced to sustain the allegations in the petition.
Aggrieved by the decision, the appellant has appealed to this court predicating his complaints on five grounds of appeal reproduced herein as follows without their particulars:
(1) The honourable tribunal erred in law in holding that a returning officer appointed by National Election Commission of Nigeria to make a return during the 5th December, 1998, Local Government Election held under Decree No. 36 of 1998 is an ad hoc staff and, therefore, subject to the control and supervision of the electoral officer of a Local Government Area, and thereby occasioned a miscarriage of justice.
(2) The honourable tribunal erred in law when it permitted evidence on unpleaded facts to be given by the respondents, while refusing to allow the petitioner to lead evidence regarding pleaded facts, and thereby occasioned a miscarriage of justice.
(3) The honourable tribunal erred in law by holding that it could not look at documentary evidence before it because that would be a voyage of discovering behind the back of the litigants and thereby occasioned a miscarriage of justice.
(4) The honourable tribunal erred in law when it held that the electoral officer (2nd respondent) has powers to make declaration of scores of candidates and the return of a candidate and thereby occasioned a miscarriage of justice.
(5) The decision of the honourable tribunal is against the weight of evidence.
Three issues for determination formulated from the grounds of appeal by the appellant’s counsel and adopted by counsel for the 2nd to 7th respondents are as follows:-
(1) Whether or not on the undisputed facts and peculiar circumstances of this case, a return and declaration of result properly and legally so-called was made when the 2nd respondent (who was the electoral officer and not the returning officer) made the declaration and return instead of the 3rd respondent who was the returning officer?
(2) Whether or not the usurpation of the functions of the 3rd respondent by the 2nd respondent substantially affected the result of the election?
(3) Whether or not the appellant proved his case to entitle him to judgment?
The issues as formulated by the 1st respondent’s counsel in my view appear substantially subsumed in the issues as formulated by the 1st appellant’s counsel.
And so I have to proceed to consider the merits of this appeal on the issues as formulated by the appellant’s counsel above.
Issue No. 1
The appellant’s counsel’s forceful contention in this appeal has been that the 3rd respondent not being one of the officers directly appointed pursuant to paragraph 4 of Schedule 3 of the Decree was not subject to the 2nd respondent’s direct supervision and control in the discharge of his duties under the Decree. And consequently, that as collation of results, declaration and return of candidates are dearly matters reserved for returning officers under the Decree, the return of the 1st respondent by the 2nd respondent was voided for want of competence. From the foregoing submission, learned counsel is thus challenging the specific finding of the tribunal where at page 156 of the record it held as follows:
“The electoral officer has overall control over the conduct of the election in Ado Local Government Area. And the returning officer, an ad hoc member of staff is subject to his lawful directives. See paragraph 3 or Schedule 3 to Decree No. 36 of 1998 and paragraph 39 of Schedule 4 of the Decree”.
To put in proper perspective issue No. 1, here are some of the salient facts forming the background in this matter. The record shows that of the 10(ten) wards in the Ado Local Government Area only two wards namely Akpoge-Ogbilolo and Royongo were directly put in dispute.
One can summarise these complaints in the two wards as follows:
(1) In Akpoge-Ogbilolo, the petitioner alleged various malpractices.
(2) In Royongo, the petitioner alleged that the results were altered or mutilated; that Form EC8B, that is, ward result form was not used but that ordinary sheets of paper were used to collate the chairmanship results and that there were over voting and other malpractices.
As regards the complaints in (2) above i.e. in Royongo ward, the tribunal found some alteration and use of ordinary sheets of papers in collating the chairmanship ward result as a mistake of the head. Obviously, the returning officer for Royongo ward (i.e. R.W.4) was under severe pressure at the moment hence he wrongly used the chairmanship collation form for the councillorship result and so had to use ordinary sheets of paper to prepare the chairmanship result. Having satisfied himself, the 2nd respondent issued correct forms to R.W.4 to collate Royongo ward result.
At the collation by the Collation Committee at the Local Government Headquarters, the 2nd respondent read out the results from all the wards to the 3rd respondent (i.e. P.W.1) who recorded them in INEC Form EC8C i.e. Exh. 7; he refused to sign the form. At this stage upon the 3rd respondent refusing or neglecting to perform his statutory duty, the 2nd respondent i.e. the electoral officer signed the form i.e. EC8E and declared the 1st respondent as the winner.
The scores were: 1st respondent 1,4616 and appellant 1,0026, Before now, according to the evidence before the tribunal he referred problems that arose in the conduct of the said election to the 2nd respondent for his opinion. It was never in any doubt who was in charge.
Coming back to the issue in point, one important conclusion to drawn from the finding of the tribunal that there was no a scintilla of evidence to support the several allegations of corrupt practices and malpractices in the conduct of the election, is that the election was conducted substantially in a free and fair atmosphere. From all indications, the conduct of the election has shown that from accreditation of voters, collation of results from the polling units to wards and to the local government level up to the declaration of the 1st respondent as the winner were done in substantial compliance with the election guidelines and the Decree. Furthermore and more importantly if I may repeat, I am inclined to agree with the tribunal that the 3rd respondent at all material times was an ad hoc staff at the INEC and under the direct supervision and control of the 2nd respondent. This conclusion is supported by the combined effect of paragraphs 2(2), 3 and 4 of Schedule 3 and 39(a) and (b) of Schedule 4 of the Decree and based on the peculiar facts of this matter.
As the Decree is not readily available easily I reproduce these paragraphs hereunder for ease of reference:
Paragraph 2(2) of Schedule 3:
“The Commission shall for the purpose of an election appoint such Returning Officers, Assistant Returning Officers. Presiding Officers, Assistant Presiding Officers, Poll Clerks, Assistant Poll Clerks and such other officers as arc required for the election.
Paragraph 3 of Schedule 3:
“An Electoral Officer shall exercise supervision over acts of the other officers appointed under paragraph 4 of this Schedule in his local government area or area council and may, subject to the provisions of this Decree or any instructions issued by the Commission give directions to those officers with regard to the performance of their functions”.
Paragraph 4 of Schedule 3:
“The Commission shall appoint… ad hoc officers, to exercise specific functions over the conduct of an election or elections …..
Paragraph 39 of Schedule 4:
‘The Resident Electoral Commissioner or the Electoral Officer, as the case may be, shall cause to be posted at the State or Local Government Area Officer of the Commission as the case may be, a notice showing –
(a) the candidate at the election and their scores; and
(b) the person declared, as elected or returned at the elections”.
Reading the foregoing paragraphs of the Decree, together, their combined effect on the instant matter appear to me to be that the 3rd respondent (i.e. P.W.1) was employed as an ad hoc officer of the commission to perform the functions of a returning officer and thereafter to return to his job as the Chief Personnel Officer of Ado Local Government Council. I am guided to this postulation after carefully examining the evidence before the tribunal as to the manner of his employment vis-a-vis the calibre or class of officers employed with him under paragraph 2(2) and
4 of Schedule 3 of the Decree as well as the nature or character of his functions as clearly spelt out in the election guidelines and the Decree and also the nature of supervision or control exercised by the election guidelines over ad hoc: officers.
One is therefore not left in any shred of doubt whatsoever as to the special purpose and the ad hoc nature or the 3rd respondent’s employment that is to say, to last for the period of the instant election only.
The next pertinent point to make is that the electoral officer i.e. the 2nd respondent having been appointed under the Decree was to hold his office until revoked and was to all intents and purposes the final authority in the conduct of elections in his local government area, To him were assigned specific functions under the Decree including supervision of ad hoc officers under paragraph 4 of Schedule 3 of the Decree. I, therefore, find the submissions by the learned appellant’s counsel to the effect that the returning officer i.e, 3rd respondent (i.e. P.W.1) was not subject to the supervision or control of the electoral officer i.e. 2nd respondent not supported both by facts or under the Decree or the election guidelines. Even the 3rd respondent in his testimony as the P.W1 had in recognition or the supervisory role of the 2nd respondent sought his opinion on election matters. By the 3rd respondent’s showing he knew he was clearly under the directives of the 2nd respondent and that he was an ad hoc staff, without be labouring the issue, given the relevant provisions of the Decree and the peculiar facts of this matter as I have endeavoured to outline in the immediate foregoing paragraphs of this judgment. I see no obstacles in the way of the 2nd respondent as the electoral officer signing Form EC8E (i.e.: .. Exh. 49) transcribed from Form EC8C prepared by the 3rd respondent and declaring the 1st respondent duly elected and winner of the Ado Local Government Chairmanship Election. I may further observe that on the clear provisions of section 85(2) of the Decree the said election cannot successfully be questioned on the ground that the 2nd respondent signed Form EC8E and declared the 1st respondent the winner. S. 85(2) provides:
“An election shall not be questioned by reason of a defect in title or want of title of the person conducting the election or acting in the office given the right to conduct the election”.
I have earlier on shown that electoral officers are the fulcrum in the conduct of elections in their Local Government Areas under the Decree; it boils down to the fact that the 2nd respondent’s act regarding Exhibit 49 and the declaration of the 1st respondent returned, cannot in this regard be questioned. See section 85(2) of the Decree.
In sum, the act of the electoral officer (i.e. 2nd respondent) in signing Form EC8E and declaring the 1st respondent the winner, has in no way adversely affected the result of the election nor particularly was it shown how the same affected the votes scored by the appellant. See Nwobodo v. Onoh & ors. (1984) 1 S/C 1, (1984) 1 SCNLR 1
The foregoing has completely disposed of issue No. 1 and it necessarily follows that grounds 1,3 and 4 tied to it fail.
Issues No.2 and 3
Appellant’s counsel took these two issues together and I proceed to deal with them in that manner.
Regarding electoral malpractices pleaded in paragraphs A(i), (iii). (iv) and (v) of the petition as regards events at Akpoge-Ogbilolo, the tribunal found them abandoned as no evidence was led in support. Also the allegation that the petitioner’s agents were chased away from the polling booths was dismissed. The tribunal found that the petitioner has failed to prove that the election at Akpoge Ogbilolo ward was marred by irregularities and malpractices.
It is my considered view that the tribunal carefully appraised the petitioner’s case before it regarding this ward and came to a proper conclusion. See Balogun v. Amubikanhara (1985) 3 NWLR (Pt. 11) 27. That being the case there is no reason for disturbing it. In other words, the election at Akpoge-Ogbilolo was conducted in substantial compliance with the Decree.
Learned appellant’s counsel has however protested the unfairness of allowing the evidence of 2nd respondent not pleaded regarding the investigation of beating and chasing away from the polling booths the appellant’s agents. The same was found as false. Quite clearly the appellant in paragraphs A(ii) and (iii) made these specific allegation. The P.W.3 in his oral testimony at page 100 of the record stated thus:
“….. some of the police men plus the electoral officer i.e. Jonathan Echeija (2nd respondent) went to Akpoge-Ogbilolo”.
It follows that the 2nd respondent as R.W.5 was obliged to give evidence as to the result of the investigation albeit even if to rebut the petitioner’s account. The tribunal was therefore right in allowing the 2nd respondent to testify in the circumstances.
Regarding Royongo ward: the petitioner has raised a number of allegations ranging from alterations or mutilations of ward result, over voting, corrupting voters by offering money. But as no evidence was led in proof of these allegations they were regarded as abandoned. The only matter contested vigorously relate to the collation of the ward result on pieces of paper and the mutilations therein. Apart from this latter issue which has been adequately and exhaustively dealt under issue No. 1, the tribunal rightly in my view found that no evidence was led in support of the allegations under this head. And I agree with that conclusion.
In both Akpoge Ogbilolo and Royongo wards learned appellant’s counsel’s complaints border on findings of fact of the tribunal; this court will be reluctant to interfere without showing that they are perverse. See Yero v. Kurdah & anor (1989) 1 NEPLR 1 at 2 ratio 7.
He has failed to show that the tribunal wrongly evaluated the evidence before it. Nor has he shown any evidence left unconsidered by the tribunal which if considered would have made any difference to the petitioner’s result.
The other question for consideration relates to the tribunal’s refusal to examine and use Exhibits. P. 22 to P. 34 wherefore, learned appellant’s counsel has submitted that this was done under a mis-conception of the decision in the case of Onibudo & on v. Akibu & ors. (1982) 7 S/C 60 at 62. These exhibits were ballot papers etc, for Akpoge-Ogbilolo ward and were tendered by the P.W.1 in what looked like dumping them on the court as no attempt was made by evidence as to what use the court was to make of them hence the tribunal found that apart from lumbering it with these exhibits it was not its function to “examine the voter registers, the ballot papers etc. to see whether there were over voting or other irregularities.
It is not the duty of the court to go on a voyage of its own discovery”. No authority was cited to support the petitioner’s stand in this respect. It is my view that having tendered these exhibits it was incumbent on the petitioner to lead evidence as to the use to be made of them. Without taking that step, the tribunal was perfectly right in refusing to he drawn into examining them. See Alhaji Umaru Musa Yar’adua v. Sa’idu Barda (1992) 3 NWLR (Pt. 231) 638 p. 653 where it held:
“The only way one can question the lawfulness of some votes cast at the election is to tender in evidence all the forms used and called (sic) witness to testify as to the misapplication or the votes scored by individuals”.
It was not what was done in this matter. The objection taken in this respect appears groundless. I have taken great pains to go over the appellant’s case with a view to determine whether there was proper evaluation of his case.
The last issues: whether there is any basis for contending the usurpation of the 3rd respondent’s office by the 2nd respondent and whether it substantially affected the result of the election. Under issue No. 1. I have shown the legal relationship between them. All that the 2nd respondent did was to transcribe into Form EC8E i.e. Exh. 49 the figures which 3rd respondent (i.e, P.W.1) prepared in Form EC8C and to declare 1st respondent as the winner when it became rather obvious that the 3rd respondent has refused or neglected to perform his statutory duty. The 3rd respondent’s evidence as the record shows belies the contention. As regard the ward result for Akpoge-Ogbilolo, the 3rd respondent in his evidence sought the opinion of the 2nd respondent “whether to accept the results or nor” and his reply that “he would accept it”. Respecting the ward result from Royongo the 3rd respondent at p.87 to p.88 of the record said “the chairmanship return form was used to return councillorship election. And the return of the chairmanship election was made on a plain paper. In all these cases the figures were mutilated. I then drew the attention of the INEC officer (2nd respondent) to this issue seeking his opinion and he said he would accept the result and he accepted the result by issuing fresh forms to the ward returning officer to re-write the result”. The 3rd respondent’s conduct in these respects hardly represented that of one whose functions were being usurped. The tribunal at p. 154 of record has described the 3rd respondent thus:
“He was so casual in the discharge of his duties that he seemed to betray the confidence reposed in him by INEC”.
This is the impression which the 3rd respondent made on the tribunal that saw, heard and watched his demeanour at the trial. The charge of usurpation of the 3rd respondent by the 2nd respondent is baseless and I dismiss the same. Consequently, I find that issues Nos. 2 and 3 have not been established and so grounds 3 and 5 fail.
The whole appeal having collapsed and it is accordingly dismissed with N2000.00 costs in favour of the 1st respondent and N2000.00 for the other respondents.
Other Citations: (1999)LCN/0546(CA)
