BARRISTER DOZIE IKE v. GODFREY N. OFOKAJA & ORS
(1992)LCN/0130(CA)
In The Court of Appeal of Nigeria
Wednesday, the 4th day of November, 1992
Case Number: CA/E/138/92
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF PARA. 42(1) OF DECREE 18 OF 1992
In order to understand the import of the provisions of para. 42(1) of Decree 18 of 1992 it is pertinent to reproduce that paragraph. It reads as follows: “When an election petition complains of the conduct of the Chief Electoral Commissioner of the Federation, a Resident Electoral Commissioner, the Electoral Officer, the Presiding Officer or Returning Officer, he shall for all purposes “be deemed to be a respondent but an Electoral officer, Presiding Officer or Residing Officer shall not be at liberty to give notice that he does not intend to oppose the petition except with the written consent of the Attorney General of the Federation or State Government concerned, and if such consent is withheld the Federal or State Government shall indemnify the Electoral Officer, Presiding Officer or Returning Officer against any award of costs made against him by the Tribunal upon the hearing of such petition.” It can therefore be seen from the provisions of paragraph 42(1) above, that an Electoral Officer, Presiding Officer or Returning Officer are required to obtain consent of the Attorney General only when they fanned an intention not to oppose the petition. PER MOHAMMED, J.C.A.
JUSTICES:
UTHMAN MOHAMMED Justice of The Court of Appeal of Nigeria
JOSEPH DIEKOLA OGUNDERE Justice of The Court of Appeal of Nigeria
AKINTOLA OLUFEMI EJIWUNMI Justice of The Court of Appeal of Nigeria
OBINNAYA ANUNOBI OKEZIE Justice of The Court of Appeal of Nigeria
JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria
Between
BARRISTER DOZIE IKE – Appellant(s)
AND
- GODFREY N. OFOKAJA
2. THE ELECTORAL OFFICER N.E.C. ORUMBA NORTH (G.A. DUNU)
3. THE RETURNING OFFICER N.E.C. ORUMBA NORTH L.G.A.
(MRS. PATIENCE ENUMA ENEMUO) – Respondent(s)
MOHAMMED, J.C.A. (Delivering the Leading Judgment): At the National Assembly Election, held on the 4th of July, 1992, to the House of Representatives for the Orumba North L.G.A. Constituency, of Anambra State, the appellant was declared the winner, having scored a majority of 12,435 votes against the score of the 1st respondent which was 12,209 votes. The appellant was sponsored by the National Republican Convention (N.R.C). and the 1st respondent was fielded by the Social Democratic Party (S.D.P.).
Soon after the National Electoral Commission (N.E.C) had declared that the appellant was the winner, the 1st respondent filed a petition before the National Assembly Election Tribunal, sitting at Awka, and challenged the return of the appellant, on the following ground:
“(A) That the 1st respondent was not duly elected by a majority of lawful votes at the election because of forgeries, and falsification of votes perpetrated by all the respondents in favour of the 1st respondent in the final result.”
The 1st respondent disclosed in the petition that the original result sheet in Form EC 8A(1), No. AN 002359, for the polling station, at Ndikelionwu ward, known as Town School, Aronota Ndike, had been falsified and or forged. In the falsification votes the appellant score at the polling booth were altered to read 690 votes, instead of90 votes which were lawfully recorded by the Presiding Officer.
The petition was concluded with a claim for the following relief:
“WHEREOF your petitioner prays that it may be determined that the said Barrister Dozie Ike (1st respondent) was not duly elected or returned and that the petitioner was duly elected and ought to
have been returned and should be so returned.
In proof of the allegation that the original result sheet, in Form EC8A(1) had been falsified, the 1st respondent called 8 witnesses, including the Presiding Officer who was appointed by N.E.C to conduct the election, at Town School, Aronota Polling Booth. The learned counsel for the 1st respondent tendered two Forms ECSA(1) the original and a copy which were admitted and marked as exhibits 1 and 2. The appellant denied the claim and called 4 witnesses to buttress his defence that he had never been a party or privy to any falsification of the returns made at the election. The officials of N.E.C viz, the 2nd and 3rd respondents, also denied the claim and explained that there was no falsification and or forgery of the election result in respect of Town School, Aronota Polling Booth.
The Electoral Tribunal considered all the evidence adduced by the parties, in this petition, and in a considered judgment, accepted the submission of the 1st respondent that in exhibit 2 the number of accredited voters was changed and falsified from “090” to read “690”. The tribunal also agreed that the number of accredited voters in queue and votes scored by the 1st respondent at Town School, Aronota Ndikelionwu polling station, was unlawfully increased or inflated by 600 votes. The tribunal went further and said that if the 600 unlawfully inflated votes deducted from the total votes of 12,435 scored by the appellant, there would be a balance of 11,835 votes. That figure of 11,835 votes would be less than 12,209 scored by the petitioner (1st respondent in this appeal) at the election held on 4/7/92. In conclusion the tribunal held that the appellant, Barrister Dozie Ike, was not duly elected by a majority of lawful votes, at the election held on 4th July, 1992, for Orumba North Local Government Area Federal Constituency to the House of Representatives.
In consequence, the tribunal nullified the election and ordered for a bye-election to be conducted in the constituency by the Federal Electoral commission (N.E.C). Dissatisfied with the said judgment the appellant appealed to this court on seven grounds of appeal. The grounds and the particulars given to them cover seven pages of a foolscap paper and I do not think it necessary to reproduce all of them in this judgment, because the six issues formulated by the learned Senior advocate, J .A.C. Okola, against those grounds cover all the arguments and points raised in those grounds. The issues are as follows:
“(i) Whether on the sale complaint raised in the petition, the Presiding Officer whose return was being questioned and who testified as P.W.1, was a competent witness in support of the petition, in the light of the provisions of Decree No.18 of 1992?
(ii) Whether the tribunal was right in avoiding the election of the appellant and ordering a bye-election when the petitioner did not seek any of such reliefs in his prayer.
(iii) Whether in view of Exhibit 6, a previous affidavit sworn to by P.W.1 on 10/7/92 contradicting his present testimony before the tribunal on the pertinent issue of the alleged falsification, did not in law render him an unreliable witness, totally unworthy of credence?
(iv) Whether the failure of the tribunal to properly evaluate the pleadings and evidence on both sides, did not lead to a serious miscarriage of justice?
(v) Whether there was proof on the required standard establishing the serious allegations of falsification and forgery made in the petition?
(vi)Whether the award of costs against the appellant in favour of the 2nd and 3rd respondents, was proper?”
The learned counsel for the 1st respondent, Chief Onyali, formulated similar issues, although couched in simpler terminology, for the determination of this appeal. Before I go further into this judgment it is pertinent to deal with the preliminary objection raised by Chief Onyali against the competency of grounds 3, 5 and 6 of this appeal. The learned counsel’s argument is that the grounds raised points of law when they are merely complaints against findings of fact. He referred to the cases of Nigerian National Supply Co. Ltd. v. Establishment Senia of Vaduz (1990) 7 NWLR (Pt.164) 526 at 537 and United Bank for Africa Ltd. v. Stahlban GMBH & Co. K.G. (1989) 3 NWLR (Pt.110) 374 at410.
I have looked into the two cases cited above. In the U.B.A. v. GMBH (supra) the opinion of Obaseki, J.S.C. in the case of Ojemen & Ors v. Momodu II & Ors (1983) 3 S.C. 173 at 211; (1983) 1 SCNLR 188 was reproduced by Oputa, J.S.C. in his contribution to the lead judgment. Obaseki, J .S.C., said:
“This court (referring to Supreme Court) will not be misled by the mere description of a ground of appeal as a ground complaining of Error in law when in fact, the particulars show clearly that the complaint or the substance thereof is against the evaluation, assessment, weight of evidence, findings of fact or a complaint or misdirection on the fact or the law.”
Chief Onyali submitted that those grounds are grounds challenging findings of fact by the tribunal and as such must be couched in the usual form of an omnibus ground. He referred to Okey Ehay & Anor v. Maria trek (1990) 7 NWLR (Pt.160) 83 at 91. and Auachuna Auyaoke & 30rs v. Dr. Felix Adi & 5 Ors (1986) 3 NWLR (Pt.31) 731 at 742. Okolo, S.A.N., did not write a reply to this preliminary objection because, according to him, he was served with the respondents brief not long ago. He however submitted orally that the grounds are competent. He referred to the particulars given to the grounds and argued that they explained clearly what amounted to error of law.
Since, grounds 3, 5 and 6 are subject to this objection it is relevant to reproduce those grounds. I have declined earlier, to reproduce all the grounds of appeal, in this judgment, because they cover 7 pages of foolscap paper. However, the three grounds must be reproduced in order to consider the objection of Chief Onyali against them. Grounds 3, 5 and 6 read as follows:
“(iii) The Election Tribunal erred in law by relying or placing any relevance on the evidence of P.W.1 to support its conclusion that the Aronota polling station return was forged and falsified. Particulars of Error
(a) The principal and relevant evidence of the alleged forgery and falsification came from the P.W.1, who on the evidence was the only person who contends he witnessed the same.
(b) The same P.W.1 swore to an affidavit of facts on 10/7/92 tendered as Exhibit 6, paragraph 9 of which states that he got to know about the falsification through Dennis Nwanagu the S.D.P. candidate agent, who informed him of the falsification.
(c) P.W.1 ‘s evidence at the hearing turned out to be that he personally falsified the result in Exhibits 2 and 8 under duress form the 1st respondent/appellant, in circumstances clearly establishing the absence of the said Dennis at the alleged falsification.
(d) That testimony was contradictory in material particulars of how the alleged falsification came to his knowledge on 4/7/92, when compared with his sworn affidavit in Exhibit 6; consequent upon which P.W.1 asked the tribunal to prefer and accept his present version of the event rather than the said paragraph 9 which contained what he then described as typographical error.
(e) Where a party contradicts his previous statement material to the proceedings, in the course of his evidence, he becomes an unreliable witness and ought not to be believed on that issue.
(f) the tribunal was wrong in law to hold that it did not consider that affidavit of fact material to the determination of the main issue of who scored the majority of lawful votes at the election.
(v) The Election Tribunal erred in law in failing to appreciate the palpable contradiction between the pleadings and the evidence led in support of the alleged falsification of result, regarding the authenticity of Exhibit 1.
Particulars of Error.
(a) The cardinal contention on the pleadings as at paragraph 5 of the petition alleged that the falsification of the result for Town School. Aronota was made on the ORIGINAL. DUPLICATE and QUADRUPLICATE copies of Form EC8A(1).
(b) Allegations of fraud must be pleaded with the utmost particularity and thereafter established by cogent evidence.
(c) Petitioner’s case at the trial was that the falsification was made only on the original (Exhibit 2) and no attempt whatsoever was made to prove the alleged falsifications on the duplicate and quadruplicate, which in law must be taken as having been abandoned and unestablished.
(d) The triplicate copy tendered as Exhibit 1 which is different from the rest of the other copies must not have been made at the same time with the original- Exhibit 2 – and the other copies.
(e) The evidence adduced at the hearing is at variance with the particulars pleaded.
(vi) The Electoral tribunal erred in law by refusing or failing to dismiss the petition on the totality of the evidence adduced at the trial.
Particulars of Error
(a) The petitioner specifically pleaded that the alleged falsification was equally effected on the original (Exhibit 2), duplicate and quadruplicate, but failed to establish the allegations in respect of the duplicate and quadruplicate copies as will lend credence to the fact that Exhibit 1 (the Triplicate copy) is an authentic copy of Exhibit 2 produced at the election venue.
(b) P.W.1 tendered Exhibits 3 and 4 (the voters registers) which he used at the election for accreditation, showing that many more than 90 voters were in fact accredited by him, all in the black him he used at the election and bearing the same consistent character of markings or tickings. His denial of the use of Exhibit 4 is a contradiction of documentary evidence, and ought not to be believed.
(c) Exhibits 2 and 8, both of which he admitted were made by him (P.W.1). contain the same features in the entries and his explanation of how the entries came about totally unsatisfactory, especially in the light of the requisite standard of proof applicable to such an allegation.
(d) P. W.1 did not allege or tell anyone of the duress imposed on him by the appellant from 4/7/92 until he gave evidence at the tribunal on 25/8/92 and 27/8/92. The facts as disclosed in his affidavit of facts of 10/7/92 contradict the substance of his evidence on how the falsification carne about. Further, paragraph 13 of Exhibit 7 contradicts the evidence of P.W.1.
(e) Contrary to the evidence of P.W.1; D.W.1 and D.W.2 assert that P.W.1 was with the party agents (P.WA and D.W.1) when he delivered Exhibits 2 and 8 and Exhibit 4 at the collation centre on the election day, yet the tribunal made no finding whatsoever on this crucial factor.
(f) The alleged other copy of Exhibit 8 which P.W.1 said was also falsified at the same time by the appellant and which must be with him (P. W.1), was not produced to settle that fact.
(g) There were palpable and serious material contradictions in the evidence as between P.W.1. P.WA, P.W.6 on one side and as against the evidence of D.W.1, D.W.2, D.W.3 and D.W4. without the necessary evaluation thereto by the tribunal.
(h) Tribunal failed to make any finding on the issues canvassed in relation to Exhibit 13 and the refusal of the petitioners agents at the election to produce Exhibit 1 to D.WA when requested at the collation centre.
(i) The tribunal failed and/or refused to consider the petitioners evidence side by side with the respondents case.”
Looking at the grounds, shorn of their particulars, one can easily agree that those grounds are grounds of law and capable of standing by themselves, because their respective particulars of errors of law are embodied in them. Eso, learned retired Justice of the Supreme Court, when dealing with the approach to the determination whether a ground of appeal is a ground of law or a ground of mixed law and fact or fact had the following to say in the case of Oghechie v. Onochie (1986) 2 NWLR (Pt.23) 484 at page 491:
“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law or a misapplication of the law to the facts already proved or admitted in which case it would he question of law or one that would require questioning the evaluation o1’facls by the lower tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure facts is easier to determine.”
In U.B.A. v. GMBH (supra) Obaseki, J.S.C. referred to an article titled “Error of Law in Administrative Law” by C.T. Emery a Lecturer in Law in Durham University and Professor B. Smythe, of the same University contained in Vol. 100 of October 1984 issue of the Law Quarterly Review where the learned authors opined as follows:
“1. If the tribunal purports to find that particular event occurred although it is seized of no admissible evidence that the events did in fact occur, it is a question of law. But where admissible evidence has been led, its assessment is entirely for the tribunal, in other words, it is a question of fact.
2. If the tribunal approached the construction of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, it is a question of law.
3. If the tribunal approaches the construction of a statutory word or phrase bearing an ordinary meaning on the erroneous basis that it is a legal term of art, it is a question of law.
4. If the tribunal though correctly treating a statutory word or phrase as a legal term of art errs in elucidation of the word or phrase, it is a question of law.
5. If the tribunal errs in its conclusion (that is. in applying the law to the facts) in a case where this process requires the skill of a trained lawyer, it is error in law.
6. If in a case where conclusion can as well he drawn by a layman (properly instructed on the law) as by a lawyer, the tribunal reaches a conclusion which cannot reasonably be drawn from the facts as found. In that event, the superior court has no option but to assume that there has been some misconception of the law. But the issue may admit of more than one possible resolutions, yet it may be a conclusion which the superior court (had it been seized of the issue) would not have reached. Nevertheless, the inferior tribunal does not err in law. The matter is one of degree, and a superior court with jurisdiction to correct only errors in law will not intervene. ”
It is without doubt, after considering the above legal postulations that grounds 3, 5 and 6 could fit in the definition given as grounds of law. I therefore dismiss the preliminary objection being unmeritorious.
I now move to the first issue which Chief Okolo S.A.N., formulated for the determination of this appeal. Chief Okolo S.A.N., referred to the provisions of paragraph 42(1) of the 4th Schedule to National Assembly (Basic Constitutional and Transitional Provisions) Decree No. 18 of 1992, hereinafter called Decree 18 of 1992, and submitted that P.W.I Eugine Onyemaechi who acted as the Presiding Officer at Town School Aronota Polling Booth was an incompetent witness for or in support of the petitions. The learned S.A.N. argued that P.W.1 could only be capable of giving evidence in support of the petition after he had obtained written 8 consent from the Attorney General. Counsel went further and pointed out that although a defendant in civil proceedings can be both competent and compellable witness for the opponent, an election petition is not a civil proceeding, and referred to Ifegbe v. Awa (1989) 2 N.E.P.L. 91 at 99. Counsel referred also to Obih v. Mbakwe (1984) 1 S.C. 325; (1984) 1 SCNLR 192 and submitted that an election petition is a lis inter partes and must be confined to the four walls of the relevant Chief Onyali replied on this issue and submitted that paragraph 42(1) of 4th Schedule to Decree 18 of 1992 has no relevance to the capacity of P.W.1 to give evidence. P.W.1 has not given notice to the Tribunal indicating his intention to oppose the petition; rather he came to give evidence after receiving a subpoena from the Tribunal to do so. I quite agree with Chief Onyali that P.W.1 had become a competent witness to testify before the Tribunal the moment he received a summons from the Tribunal to appear before it. In order to understand the import of the provisions of para. 42(1) of Decree 18of 1992 it is pertinent to reproduce that paragraph. It reads as follows:
“When an election petition complains of the conduct of the Chief Electoral Commissioner of the Federation, a Resident Electoral Commissioner, the Electoral Officer, the Presiding Officer or Returning Officer, he shall for all purposes “be deemed to be a respondent but an Electoral officer, Presiding Officer or Residing Officer shall not be at liberty to give notice that he does not intend to oppose the petition except with the written consent of the Attorney General of the Federation or State Government concerned, and if such consent is withheld the Federal or State Government shall indemnify the Electoral Officer, Presiding Officer or Returning Officer against any award of costs made against him by the Tribunal upon the hearing of such petition.”
It can therefore be seen from the provisions of paragraph 42(1) above, that an Electoral Officer, Presiding Officer or Returning Officer are required to obtain consent of the Attorney General only when they fanned an intention not to oppose the petition. There is no evidence before the Election Tribunal that P.W.1 had indicated his intention not to oppose the petition. The argument in support of issue number one has therefore failed.
The second issue is based on the relief sought by the petitioner at the end of his pleadings where he prayed thus:
“Prays that it may be determined that the said Barrister Dozie Ike (1st respondent) was not duly elected or returned and that the petitioner was duly elected and ought to have been returned and should be so returned.”
Chief Okolo, S.A.N., submitted that the Tribunal, on that pleading, prayer and evidence, had neither jurisdiction nor competence to grant the petitioner any other relief outside his clearly expressed claim. The learned S.A.N. supported his submission by reference to the cases of Mohammed v Mallam Ibrahim Ali & Ors (1989) 2 NWLR (Pt.103) 349: Ekpeyong v. Nyong (1975) 2 S.C. 71 and Ige v. Olunloyo (1984) 1 S.C. 250; (1984) 1 SCNLR 158.
Chief Onyali replied that once the tribunal found that the appellant did not win the election by a majority of lawful votes, it had no alternative than to declare the election void and order a bye-election. The learned counsel, quite correctly referred to S. 42(3) of Decree 18 of 1992, which provides thus;
“Where the tribunal or the Court of Appeal finds that a candidate elected was not duly nominated or elected; the Tribunal or the court of Appeal shall order a bye-election and no more.”
It is indeed correct, as Chief Onyali had submitted, that the Tribunal must comply with the law and order a bye-election. The meaning of S.42 (3) of Decree 18 of 1992 is very clear and unambiguous. This court has made several decisions on this issue and it is our resolve that even if the parties fail to pray for the Tribunal to order a bye-election if the Tribunal nullifies the election for any reason it must order for a bye-election see Opia v. Ibru (1992) 3 NWLR (Pt.231) 658 at 686. The order-is mandatory and it could be seen that the legislature is emphatic on what the Tribunal of the Court of Appeal shall do where the election is nullified. The Decree says “shall order a bye-election and no more.” The Tribunal at Awka is therefore in order when it nullified the election and ordered a bye-election. The case cited by Okolo, S.A.N. can be distinguished from the facts of the case in hand. There were no such mandatory provisions in Local government Election Decree No.3? of 1987 or in the Electoral Act, 1982 upon which the decisions of those cases were based.
The third issue dealt with the testimony of P.W.1 before the Tribunal. Okolo, S.A.N. argued that the witness had made two contradictory statements in connection with the falsification of Exhibit 2, the Result Sheet in Form EC8A (1). The learned counsel pointed out that P.W.1 went to the High Court Registry, Awka, and sworn to an affidavit in which he said at paragraph 9 as follows:.
“That on 4th July, 1992 at about 5.30 p.m. I was at the N.E.C. collating Centre at Orumba North Local Government Headquarters Ajalli to defend the Aronota Poll Booth result of ninety genuine votes cast, because Dennis Nwanagu the S.D.P. Candidate Agent informed me of the falsification and that he must protest against that.”
Later when P.W.1 gave evidence, on 25th August, 1992, he gave a different version of what happened over the alteration seen in the Election Result Sheet and in which 600 votes were on lawfully added to the original 90 votes which the appellant scored at Town School. Aronota Polling Booth. Chief Okolo, S.A.N. reproduced the relevant testimony of P.W. 1 before the Tribunal which run thus:
“We were all in the compound of the unoccupied house, when the 1st respondent brought out the result sheet from the N.E.C. bag and with a black biro he altered the figure 090 to read 690. The 1st respondent then asked me to sign the alteration but I refused to sign it. The 1st respondent then ordered the men to finish me. One of the thugs who is now in this Tribunal brought out a pistol and pointed it near my right ear, I was very frightened and I signed without any waste of time. I also wrote in (wrote in) (sic) words ‘six hundred, and then signed it. But it was not in the line for figures, but on top of it.”
In view of the, above apparent conflict between the averments in paragraph 9 of Exhibit 6, which is the affidavit sworn to by P.W.1 and his testimony in court, Chief Okolo submitted that the evidence given by P.W.1 should have been castigated by the Tribunal, because the witness was unreliable. Chief Okolo made similar submission before the Tribunal and after it had reviewed the area where it was alleged that there were material contradictions Le., in the affidavit, Exhibit 6, the testimonies of P.W.1 and P.WA, the Tribunal found as follows:
“We do not consider that the said affidavit of fact sworn to by P.W.1 is material to the determination of the main issue in the instant case concerning the candidate who obtained the majority of lawful votes at the election of 4/7/92. Nor do we attach any importance to a statement of fact which has not been subjected to the rigours of cross examination and we have not discovered any contradiction on material facts in the evidence of P.W.1 and P.WA.”
I have considered the submission of the learned S.A.N. Chief Okolo, and with respect, I must say that the argument is not convincing enough to justify the reversal of the decision of the Tribunal.
After reading the affidavit sworn to by P.W.1 it became quite clear to me that paragraph 9 of that affidavit could not stand alone. Chief Onyali called the apparent contradiction as “the so called inconsistency.” If one reads all the paragraphs of the affidavit, one can see that P.W.1 was not saying that he did not know about the falsification of the result sheet. In paragraphs 13 and 15 of the affidavit he averred that the appellant warned him against denying or testifying to the fact that his figures were falsified and threatened to kill him if he did so. The tribunal referred, quite helpfully, to two cases in which Nnaemeka-Agu, J.S.C., postulated on what constitutes contradiction and what is a mere discrepancy. The cases are Ayo Gabriel v. The Stale (1989) 5 NWLR (Pt.122) 457 at 468 – 469 and Ogoala v. The State (1991) 2 NWLR (Pt.175) 509 at 525. In the latter case the learned Justice said:
“So in ordinary parlance, to contradict is to speak or affirm the contrary. Hence in the law of evidence, apiece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts, and not necessarily when there are some minor discrepancies in, say, details between them. As I see it.
contradiction between two pieces of evidence goes rather to the essential of something being or not being at the same time whereas minor, discrepancies depend rather on the person’s astuteness and capacity for observing meticulous details.”
Following the legal exposition above it is plain that if one reads about what the appellant regarded as contradictions between the affidavit of P.W.1. his testimony before the court, and the evidence of P.W4, there is not much difference between those pieces of evidence. What is important is the content of exhibit 2.
During the hearing of this appeal Chief Onyali requested us to look at the document and compare it with Exhibit 1. which is a Triplicate copy of Exhibit 2. and both of which were dealt with by the Tribunal. We observed that the alterations made, in which figure 090 was changed to read 690, and the writing of the same in words, is not reflected in Exhibit 1 which is the carbon Triplicate copy of Exhibit 2. It is my view that the falsification needs no proof. The alteration of figures is evidently clear on the face of Exhibit 2. The two documents have been signed by P.W.1, the Presiding Officer. D.W.1, the N.R.C. agent, and P.W.4, the S.D.P. agent, at Town School, Aronota Polling Booth. I therefore do not entertain any doubt that Exhibit 2 had been falsified. The appeal on issue No.3 has no merit at all. Chief Okolo, S.A.N., went into issue number four and submitted that the evidence given did not tally with the pleadings. He referred to a paragraph in the pleading where the petitioner raised two issues, namely:
“That the falsification of the result for Town School. Aronota was done on the Original, Duplicate and Quadruplicate copies of Form EC8A(1), and secondly that the said falsification was done by the said Presiding Officer, Onyemaechi E.C.
I quite agree with Chief Okolo that the evidence disclosed that the falsification was done on the Original, Duplicate and Quadruplicate copies of form EC8A(1). The evidence shows that P.W.1 was having in his possession the quadruplicate copy of form EC8A(1). But I do not see how the 1st respondent’s failure to produce the quadruplicate copy could help the case of the appellant. The witness who was involved in the alterations of these documents had testified and told the Tribunal that the documents have been altered when he was held at gun point, and he produced the original of the document where the alteration was crystal clear. What else is needed to establish that the appellant had been accredited with 600 votes through unlawful method?
The Tribunal had made a considerable finding on this issue in its judgment and I do not see any ground in disturbing the said finding. For clarity of the Tribunal’s finding I reproduce how it concluded its judgment on the facts of the alteration. It reads as follows:
“We have examined closely the two forms EC.8A(1) No. AN002359 marked Exhibits Nos. 1 and 2 and we have compared the figures on Exhibit No.1 which is the correct and authentic result with the disputed figures on Exhibit No.2 which N.E.C used in the final declaration of the result of the election for Orumba North Local Government Area Federal Constituency. It is clear to us and we hold as a fact that in Exhibit No.2 the number of accredited voters was changed and falsified from “090” to read “690”. Thus it is also clear to us and we hold as a fact that the votes scored by the 1st respondent at Town School. Aronota Ndikelionwu Polling Station was unlawfully increased or inflated by 600 votes. The falsification of the election result at the said polling station is too clear for words.
The falsity and criminality is clear on the face of the document marked Exhibit No.2 and from the totality of evidence we so find as a fact.”
On the standard of proof I have no hesitation in accepting that the Original Election Result, in form EC.8A(1) has been falsified and the petitioner had proved such offence beyond reasonable doubt. Chief Ikeazor, S.A.N., who earlier opposed the petition told this court on the instruction of his clients, which they did following his advice, the judgment could not be faulted, He associated himself with the submission of Chief Onyali and urged us to dismiss the appeal.
This appeal has no merit at all and it is dismissed. The judgment of National Assembly Election Tribunal, sitting at Awka, in which it nullified the election of Barrister Dozie Ike as the member of the House of Representative, representing Orumba North Local Government Area, of Federal Constituency, in Anambra State, and ordered a bye-election, to be held in the Constituency, is hereby affirmed. The appellant shall pay N500.00 costs to each set of the respondents.
OGUNDERE, J.C.A.: I had the privilege to read the lead judgment of my learned brother Othman Mohammed, J.C.A. I am in full agreement with him in his reasoning, conclusion and orders made.
The gravemen of the appeal hangs on the neck of P.W.1, Eugine Onyemaechi who was the Presiding Officer at the Town School, Aronota Polling Booth who confessed that on his way to the collation centre, he was ambushed by some thugs, forced into a vehicle which drove to Ndikelium, where, in an unoccupied house, the two copies of the result with him was altered with a black biro by the 1st respondent who changed the figure “090” to read “690” and was forced to sign the same when a ,gun was held against his right ear.
In normal circumstance an electoral officer cannot be made to testify in favour of a petitioner unless the permission of the Attorney-General of the Federation was obtained under Schedule 4 paraA2(1) of Decree No. 18 of 1992.
In this case however, the witness was compelled by a subpeona ad restificadum et duces tecum to testify for the petitioner in which case the necessity to obtain the written permission of the Attorney-General of the Federation became superfluous.
The Petitioner was able to prove beyond a shadow of doubt the said forgery by Exhibits 1 and 2, Exh. I being the original and Exh. 2 being one of the carbon copies. The correct number of votes was 090 for the petitioner/1st respondent and the forgery was by ‘adding ‘6’ before ’90’ and the words “six hundred and” smuggled before the word ‘ninety’ in the said document.
Thus contrary to the submissions of J.A.C. Okolo, S.A.N., with him Messrs Z.C. Anyaogu and E.O. Ike together with Mrs. J.A. Okolo for the appellant, the forgery or falsification of the result was proved beyond reasonable doubt as provided in S.138 of the Evidence Act, Cap. I 12 Laws of the Federation, 1990.
Chief O.B. Onyali for the 1st respondent in his submissions both in his brief and orally at the hearing demonstrated clearly the falsification of the results by comparison of Exhibits 1and 2 and urged on us that it was the petitioner/respondent who won the election by a majority of lawful votes.
Chief C. Ikeazor, S.A.N., with him, Messrs O. Akpudoand V.O.C. Amechina, for the 2nd and 3rd respondents, the Electoral Officer and the Returning Officer respectively, submitted that contrary to the pleadings, settled and filed for 2nd and 3rdrespondents to the effect that there were no falsification of results, the evidence of D.WA, Godwin Dunu, the Electoral Officer exposed the clear falsification of results shown in Exhibit 2. He regretted that his witness did not come up to prove before the Election Tribunal. Accordingly, he had a duty to support the judgment of the Election Tribunal that a bye-election should be held in that constituency. Having regard to the foregoing, the election tribunal, in the face of evidence of forgery of election results, was right to order a bye election as it did.
One would have thought that a more equitable order would be to deduct the offending six hundred votes from the total votes cast for the appellant so as to declare the petitioner/1st respondent winner of the election. However, Section 41 (1) of the Decree No. 18 of 1992 provides that an election shall only be vitiated if the election was not conducted substantially in accordance with the decree and also if non-compliance substantially affected the result of the election. In this case the falsification of the result in the Aronota Polling Station substantially affected the result. Section 42(3) leaves an appellate court no option in the circumstances of this case but to order a bye-election. It provides:
“42(3) Where the Tribunal or the Court of Appeal finds that a candidate elected was not duly nominated or elected, the Tribunal or the Court of Appeal shall order a bye-election and no more.”
The appeal is accordingly dismissed and N.E.C shall arrange a bye-election in the same constituency without further delay. I also award N500.00 costs against the appellant in favour of each of the respondents.
EJIWUNMI, J.C.A.: I have had the advantage of reading in its draft form the judgment just delivered by my learned brother, Mohammed. J.C.A., and I agree with him for the very lucid reasons given in the said judgment that the appeal lacks merit and must be dismissed. This appeal relates to the question as to whether the 1st respondent/appellant was duly elected on the platform of the National Republican Convention at the House of Representatives Election for Orumba North Local Government Area Federal Constituency in Anambra State. Before the National Election Tribunal where this matter was first heard following the declaration of the election result, the main complaint against the present appellant/1st respondent is that the 1st respondent could not have been and was not duly elected by a majority of lawful votes at the election because of the falsification of the 1st respondents’ result at Town School, Aronota Polling Station. The falsification being that the 1st respondent/appellant was given 690 votes for the said Aronota Polling Station town of Ndikelionwu.
I do not intend to review the facts as they have been eloquently set down in the lead judgment of my learned brother, Mohammed, J.C.A. However, I wish to comment on the following aspects of the argument of counsel in their brief and the oral submission made before us at the hearing of this appeal.
I will begin with issue I as set down in the appellant/1st respondent’s brief.
That issue reads thus:
“Whether on the sole complaint raised in the petition, the Presiding Officer whose return was being questioned and who testified as P.W.1 was a competent witness in support of the petition in the light of the provisions of Decree No. 18 of 1992,”
Arguing this issue, learned Senior Counsel for the appellant/1st respondent invited our attention to the provisions of paragraph 42(1) of Schedule 4 of Decree No. 18 of 1992, and urged this court to hold that P.W.1, E.C. Onyemaechi the Presiding Officer at the Town School, Aronota Polling Station Ndikelionwu was not a competent and compellable witness for the petitioner. It is the submission of learned Senior Counsel for the appellant/1st respondent that, by virtue of the provisions of paragraph 42(1) of Schedule 4 of Decree No.14, Electoral Officers are precluded from allowing themselves to be parties to an election petition. In support of this submission our attention was drawn to the following cases Obih v. Mbakwe (1984) 1 S.C. 325; (1984) 1 SCNLR.192; Orubu v. NEC. (1988) 5 NWLR (Pt.94) 323.
In the Obih’s case (supra) the salient point that arose for the decision of the Supreme Court is whether the 1st respondent, Chief Samuel Onunaka Mbakwe, who was the incumbent Governor of Imo State was immune from Legal proceedings by section 267 of the 1979 Constitution of Nigeria. After due consideration of the provisions of the said section of the I979 Constitution Bello, J.S.C. (as he then was) held thus:
“From the provisions of the Constitution referred to above, I am of the opinion that election petitions were special proceedings completely divorced and separated from civil proceedings within the context of section 267 of the constitution and consequently a Governor was not immune from legal proceedings against him in o respect of an election petition.”
Obaseki, J.S.C. in his own judgment after referring to what his Lordship, Sir Udo Udoma said with regard to the proper interpretation of the 1979 Constitution in Rabiu v. the State (1980)8-11 S.C.130 at pages 148-149, (1981) 2 NCLR 293 then referred to what his Lordship also said in Attorney-General of Bendel State v. Attorney General of the Federation and 22 Others (1982) 3 NCLR 1 at p. 13. His Lordship Obaseki, J.S.C.; at p. 343 of Obih v. Mbakwe (supra) then said:-
“I will not engage myself in the exercise of considering the nature of the proceeding initiated by an election petition, i.e. whether it is a civil proceeding or not. I am of the firm view that it is a civil proceeding. It is not a criminal proceeding. Proceedings before courts of law fall broadly into two classes viz (1) civil proceedings and (2) criminal proceedings. Civil stands for the opposite of criminal, of ecclesiastical, of military or of political (see Mozley and Whiteley’s Law Dictionary).
In his own contribution to the judgment, it is instructive to also refer to the judgment of Eso, J.S.C., where at pages 355 – 356 His Lordship said:-
It appears to me that to have a provision which will protect a governor from being challenged in court in an election petition, it has to be so specific that it will admit of no equivocation. Certainly a governor after completing a term of four years has every right to seek a second term once he can satisfy the pre-requisites as set out in the Constitution and the Electoral Act. But where he is declared elected by the FEDECO and his election is challenged, he cannot hide under the immunity provided for governors by section 267 of the Constitution.
I think the purpose of section 267 of the Constitution is clear. It is to prevent the governor from being inhibited in the performance of his executive functions by fear of civil or criminal litigation arising of such performance during his tenure of office. I do not intend to extend the provision beyond this. With respect, to extend the immunity to cover the governors from being legally challenged when seeking a second term will spell injustice. I am conscious of the fact that in my interpretation of s.267 of the Constitution, I am giving that provision a narrow interpretation. This is deliberate, for in my view, in the interpretation of the Constitution, care should be taken not to diminish form the justice of the matter. From what the learned Justices of the Supreme Court has said above in Obih v. Mbakwe (supra) and although the provisions of Decree 18 of 1992 are not strictly the provisions of the Constitution, yet it is my view that the provisions of this Decree are very far reaching in its effect on the electoral process, and I therefore consider that its interpretation must be strictly construed in order to ensure that its intendment is not defeated.
Now the provision of paragraph 42(1) of Schedule 4 of Decree No. 18 of 1992 reads:
“When an election petition complains of the conduct of the Chief Electoral Officer of the Federation, a Resident Electoral Officer, the Presiding Officer or Returning Officer, he shall for all purposes be deemed to be a respondent, but an Electoral Officer, Presiding Officer or Returning Officer shall not be at liberty to give notice that he does not intend to oppose the petition except with the written consent of the Attorney-General of the Federation or State Government concerned, and if such consent is withheld the Federal or State Government shall indemnify the Electoral Officer, Presiding Officer or Returning Officer against any award of costs made against him by the tribunal upon the hearing of such petition.”
In my view the provisions of paragraph 42(1) of Schedule 4 of Decree 18 may be divided into two parts. The first part clearly is to the effect that the Chief Electoral Officer of the Federation, a Resident Electoral Commissioner, the Electoral Officer, the Presiding Officer or Returning Officer are for the purposes of an election petition deemed to be respondents. However, the second half of the provisions seem to suggest that none of the above named officers are not at liberty to oppose the petition except with the written consent of the Attorney-General of the Federation or the States Government concerned.
In my own humble view the distinction being made here is that these officers ordinarily are obliged to be respondents in an election petition. In such cases they are obviously not opposing the petition, as they are obliged to give evidence as statutory respondents to the election. In that sense they cannot be said to be opposed to the election and would only be said to be opposed to the election where any of them should have served notice that he would want to oppose the election.
He would then have declined his role as statutory respondents. I think that it ought to be borne in mind that the fact that these officers identified in paragraph 42(1) of Schedule 4 of Decree 18 are deemed as respondents in an election petition, and are usually joined as respondents with the 1st respondent being the person against whom the petitioner is complaining about his victory at the election, does not necessarily mean that in every case that those whom I refer to as statutory respondents are obliged to give evidence in support of the 1st respondent. It may be necessary as has happened in the instant case that the statutory respondents may be obliged to give evidence in support of the petitioner.
It is not therefore right for the learned Senior Counsel and with the greatest respect to him, to argue that the presiding officer in the instant appeal is precluded from giving evidence for the petitioner/respondent in this appeal. The reference to the Obih v. Mbakwe, and also Orubu v. NEC. (1988) 5 NWLR (Pt.94) 323, do not support the contention that election petitions are not part of the civil process. All that can be said to have emerged from Orubu’s case in particular is that election petitions must be governed by the rules and law under the statute establishing it.
I think I must conclude by referring to the salutary advice of Nnaemeka-Agu, J.S.C., in Adegoke Motors v. Adesanya (1989) 3 NWLR (Pt.109) 250 at pages 265 – 266, where His Lordship said:-
“It also appeared in rather bold relief that there is now a tendency among our lawyers, and sometimes among some of our Judges, to consider pronouncements made by Justices of the Supreme Court in unnecessary isolation from the facts and surrounding circumstances of those particular cases in which those pronouncements were made. I think it ought to be obvious by now, that it is the facts and circumstances of any given case that frame the issues for decision in that particular case. Pronouncements of our Justices whether they are rationes decidendi obiter dicta must therefore be inextricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their proper context, for without known facts, it is impossible to know the law on those facts.”
The above excerpt from the judgment of Nnaemeka-Agu, J.S.C., also applies with equal force to the argument advanced by learned Senior Counsel in respect of issue II. In that issue it is the contention of learned Senior Counsel that the tribunal was wrong to have granted to the petitioner a relief not sought by the petitioner in his pleadings. In support of this contention reference was made to Mohammed v. Ibrahim Alli (1989) 1 N.E.P.L. 110, and Ige v. Olunloyo (1984) 1 S.C. 258; (1984) 1 SCNLR 158. True enough the Supreme Court held in the Ige v. Olunloyo’s  case that in so far as there was no prayer to the effect that the election be declared void.
the court cannot entertain an appeal seeking such a relief. Also, in Mohammed v. Ibrahim Alli (supra), this court came to a similar conclusion for the same reasons.
There can be no doubt that those decisions cannot be questioned in principle having regard to the rule of pleadings that parties are bound by their pleadings and the statute or the provision of the law which the courts were called upon to interprete in those two cases. But the pertinent question that calls for consideration in respect of the instant appeal is whether by virtue of the provisions of section 42(2) of the Decree 18 of 1992, it would be improper for this court to order a bye-election.
S.44(2):-
“Where the Court of Appeal determines that a candidate returned as elected was not duly elected or that the election was void, then, it shall declare the seat vacant and order a bye-election.”
It would appear that this court by virtue of the above provisions is empowered and indeed bound to order a bye-election where it has determined either that the candidate returned as ejected was not duly elected, or that the election was void. In this case the petitioner in paragraph 5a of his petition had pleaded that the 1st respondent/appellant was not duly elected by a majority of lawful votes at the election because of forgeries and falsification of votes perpetrated by all the respondents in favour of the 1st respondent in the compilation of the final result of the election. This court has had the opportunity of reading the records and studying the exhibits, particularly Exhibits 1& 2, tendered at the trial. It became abundantly clear from these exhibits and the testimony of P.W.1, the presiding officer at the election that Exhibit 2 was unlawfully altered to read “690” votes in favour of the 1st respondent, when, in respect of that particular polling station only 90 persons were duly registered as voters for the election on voting day. From all we have seen and read from the exhibits it is clear that the 1st respondent/appellant was not duly elected by a majority of lawful votes.
It follows therefore that having found that the 1st respondent/appellant was not, for the reasons given above, duly elected by a majority of lawful votes, an order for a bye-election can be properly ordered by virtue of the provisions of section 44(2) of Decree 18 of 1992. In the result, the 1st respondent/appellant’s appeal is dismissed by me, for the reasons stated above, and he has not been duly elected by a majority of lawful votes, I hereby order that a bye-election be held for the Orumba North Federal Constituency in the House of Representatives, and which is hereby declared vacant.
OKEZIE, J.CA.: I was privileged to have read in draft the judgment just delivered by my learned brother, Mohammed, J.C.A. I find myself in agreement with him that this appeal ought to be dismissed for the reason given in the lead judgment. It is clear in my view that the paragraph 5(3) of Schedule 4 to Decree No. 18 of 1992 makes provision for concluding an election with a prayer as follows:-
Paragraph “5(3) that some specified persons may be duly returned or elected or that the election may be declared void as the case may be. In the present case the petitioner prayed the Tribunal that it may be determined that the said Barrister Dozie Ike (1st respondent) was duly elected or returned ”
From the above prayer there can be no doubt that the Tribunal is vested with the jurisdiction to determine and decide whether the 1st respondent was duly elected by majority of lawful votes. The Tribunal has to declare the election void and order a bye-election by virtue of section 42(3) of the Decree No. 18 of 1992.
The Tribunal may grant the prayer in a petition based on the aforesaid ground if there is evidence before it to sustain the allegation in the petition. Section 42(3) of the Decree No.18 of 1992 provides:
“Where the Tribunal or the Court of Appeal finds that a candidate elected was not duly nominated or elected; the Tribunal or the Court of Appeal shall order a bye-election and no more.” In any event, the petitioner’s prayer in this petition is quite in order: See Opia v. Ibru (1992) 3 NWLR (Pt.231) 658 at p. 686 paragraph H, the Court of Appeal held that:
“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 bye-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 (1984) 1 SCNLR 158.”
The Tribunal was right to have voided the election in terms of Decree No.18 of 1992 as the 1st respondent was not declared winner by majority of lawful votes cast.
Without a further repetition of the facts which had been admirably set out in the lead judgment, my observation upon the issue of the alleged competency of the presiding officer P.W.1 as a witness in support of the petition was the submission of learned counsel for the appellant in the light of the provisions of paragraph 42(1) ofSchedule4 National Assembly (Basic Constitutional and Transitional Provision) Decree, 1992 which states:-
“When an election petition complains of the conduct of the Chief Electoral Officer of the Federation, a Resident Electoral Commissioner, the Electoral Officer, the Presiding Officer or Returning Officer shall for all purposes” be deemed to be a respondent but an Electoral Officer, Presiding Officer or Returning Officer shall not be at liberty to give notice that he does not intend to oppose the petition except with written consent of the Attorney-General of the Federation or State Government concerned, and if such consent is withheld the Federal Government or State Government shall indemnify the Electoral Officer, Presiding Officer or Returning Officer against any award of costs made against him by the Tribunal upon the hearing of such petition.”
Indeed paragraph 5(a)(1) of the petition specifically alleges that the said falsification was done by the said Presiding Officer, Onyemachi E.C. It is to be borne in mind that he conducted the election at the Town School Aronota Polling Station Ndikelionwu and made returns thereat for the Senate – Exhibit 8 and House of Representatives – Exhibit 2, He is for the purpose of this Decree deemed a respondent.
From the evidence before the Tribunal application for subpoena issued on P.W.1 on the 24th and 25th August, 1992. This made him a competent as well as compellable witness as provided in section 154 of the Evidence Act. There is no doubt P.W.1 was involved in the falsification as a result of duress exerted on him and so not out of his free will. Paragraph 5(a)(1) of the petition alleged that the said falsification was done by the said Presiding Officer, Onyemachi E.C” at a house near the Umunze-Ekwulobia Road at Ndikelionwu under very serious duress by the 1st respondent and his armed thugs who forcibly took the said presiding officer to the house about six kilometres away from the polling station at Aronota Town School. The Tribunal believed this evidence and there is no reason to disturb this finding. The 2nd and 3rd respondents who announced the results were the proper parties to the petition. I agree with the counsel for the 1st respondent that section 40(2) of the Decree No.18 of 1992 relied upon by the appellant in his submission is not all embracing. This is so because a petitioner has a right to sue others outside
the ones mentioned in S.40(2) of the said Decree. See Waziri Ibrahim v. Shehu Shagari (1983) 9 S.C. 59 p. 85; (1983) 2 SCNLR 176.
Learned counsel for the appellant referred to paragraph 42(1) of Schedule 4 to Decree No.18 of 1992 and submitted that it is not applicable in the circumstance of this case. This is because P.W.1 was not sued as a party and so there was no need for a written consent from the Attorney-General to give evidence. The P.W.1 did not apply to give notice that he does not want to oppose the petition which is what section 42(1) of the Decree is all about.
An election petition is not considered to be identical with other civil proceedings. It is submitted by learned counsel for the appellant that a statute creating election process and procedures for election petitions lays down specific ambits regulating the process. He relied upon the case of Oruhu v. NEC (1985) 5 NWLR (Pt.94) 323 Uwais, J.S.C. at page 347 said:-
“Applicable rules and law in election petitions must be found exclusively in the statute establishing such special rights either to contest or question the result of the election.”
Even though an election petition is not a civil action per se. Decree No. 18 of 1992 National Assembly Elections paragraphs 44(1) and 44(2); paragraphs 45(1) and (2) of Schedule 4 which are very relevant to the point in issue show that the High Court Civil Procedure Rules shall be “assimilated as nearly as may be” in Election Petition Matters. There is no provision in Decree No. 18 of 1992 which prohibits a respondent from being a witness for the petitioner and vice-versa. The enactment in its ordinary meaning is plain and unambiguous. See Moses Iruobe v. Chief J.S. Oni & Anor (1989) 2 NEPLR 101 at p. 106. Since the wording of the Decree are clear and unambiguous, the P.W.1 was a competent witness for the petitioner at the trial.
I will therefore for the fuller reasons given in the judgment of my learned brother, Mohammed, J.C.A., dismiss the appeal. I will also affirm the judgment of the Tribunal. I order that the election held on the 4th day of July, 1992, in Orumba North Local Government Federal Constituency be and is hereby declared vacant. I also abide with consequential orders and order that a bye-election be held in Orumba North Local Government Federal Constituency.
OGEBE, J.C.A.: I agree with the reasoning and conclusions of the lead judgment of my learned brother, Uthman Mohammed, J.C.A., just delivered and accordingly I dismiss the appeal and abide by the consequential orders made in the lead judgment.
Appeal dismissed.
Appearances
J.A.C. Okolo, S.A.N. (with him, Z.C. Anyaogu, E.O. Ike and J.A, Okolo (Mrs.) For Appellant
AND
Chief O.B. Onyali
Chief Ikeazor, S.A.N., (with him, O. Akpudo and V.O.C. Amechina) For Respondent
