PROFESSOR ERIC AGUME OPIA v. CHIEF FELIX OVUODOROYE IBRU & ORS
(1992)LCN/0115(CA)
In The Court of Appeal of Nigeria
Wednesday, the 8th day of April, 1992
Case Number: CA/B/EP/60/92
RATIO
COURT: WHETHER A COURT CAN GRANT A RELIEF NOT BEFORE IT
it is trite law that the Court will not grant any relief not before it. In the case of David Fabunmi v. Abigail Ade Agbe (1985) 1 NWLR (Pt.2) 299. the Supreme Court per Kazeem JSC stated as follows at page 322 and 323 of the report – “A plaintiff or defendant in his counter-claim cannot claim a relief which is inconsistent with the relief specifically claimed. See Cargill v. Bower (1878) 10 Ch.D. 502. I am of the opinion that the court must have jurisdiction to grant the relief that it thinks appropriate to the facts as proved. If a party seeks to raise a new claim which has not been adumbrated in his p1eadings in the course of trial, in my opinion, the court should not give relief of that kind at any rate without offering the opposing party an opportunity for an adjournment and giving an opportunity to say whether she has been taken by surprise, or has been prejudiced by the fact that that particular form of relief has not been explicitly claimed earlier. See Belmont Finance Ltd. v. William Furniture Ltd. (1979) 1 All E.R. 118 at 131-132; Taiwo Okeowo v. Mrs. Migliore (1979) 11 SC 138 at 197-199 and D.O. Olubode v. Oyesina (1977) 5 SC 79 at 86-88. This. however. does not detract from the law and the decision of this Court that the Court will not grant any relief not before it. PER ISA AYO SALAMI J.C.A.
COURT: COURTS’ DUTY TO GIVE EFFECT TO STATUTE
The courts including tribunals are to give effect to statute and not to breach them or whittle down their effects: See Ojukwu v. Onwudiwe (1984) 1 SCNLR 247.280; Alashe v. Olori-Ilu (1964) 1 All N.L.R, 390, 397; Usenfowokan v. Idowu & Anor (1969) 1 All N.L.R. 125 and National Investmentand Property Ltd. v. The Thompson Organisations Ltd. & Ors. (1969) 1 NMLR 99,103-4. PER ISA AYO SALAMI J.C.A.
JUSTICES:
FRANCIS OLISA AWOGU Justice of The Court of Appeal of Nigeria
ISA AYO SALAMI Justice of The Court of Appeal of Nigeria
AKINTOLA OLUFEMI EJIWUNMI Justice of The Court of Appeal of Nigeria
SUNDAY AKINOLA AKINTAN Justice of The Court of Appeal of Nigeria
JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria
Between
PROFESSOR ERIC AGUME OPIA Appellant(s)
AND
- CHIEF FELIX OVUODOROYE IBRU
2. RESIDENT ELECTORAL COMMISSIONER DELTA STATE (ALHAJI MOHAMMED SIDI KWARU)
3. RETURNING OFFICER, DELTA STATE (BENEDICT A. ULENA) Respondent(s)
AWOGU, J.C.A. (Delivering the Leading Judgment): 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.
SALAMI, J.C.A.: I had a preview of the judgment just delivered by my learned brother Awogu. J.C.A.
I agree with the reasoning contained therein and the conclusion arrived thereat.
I, however, propose to add a few words of my own purely as a matter of emphasis. The Petitioner, the Appellant herein, in the petition sought his relief by praying the Delta State Governorship and Legislative Houses Election Tribunal as follows –
“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.” (Italics mine)
The Tribunal in its judgment and on the strength of the submissions of the learned Senior Counsel for 1st respondent in his final address concluded on the Petitioner’s prayer as follows –
“The tribunal, having read the provisions of paragraph 5(3) of Schedule 6 in the light of the authorities relied upon by learned Senior Advocates 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 it is hereby struck out.”
In spite of this finding, the Tribunal apparently acting on the Latin maxim of ex cautela abundanti proceeded to determine the petition on its merit and dismissed same. I think the Tribunal was entitled to take the course of action it took. This was to avoid a situation whereby its order striking out the petition would be overturned on appeal and time within which to hear the petition would have expired.
The Tribunal’s order for striking out did not find favour, understandably, with the appellant. The learned Senior Counsel for the appellant strenuously argued that the Tribunal, notwithstanding the inadequacy in the Petitioner’s prayer, ought to have avoided the Governorship election. The learned Senior Counsel for the appellant seems to have conceded rightly, in my view, that the appellant did not ask for avoidance of the election nevertheless he thought the Tribunal could still grant such a relief. I believe the contention of the learned Senior Counsel stems from the thought that annulment of the whole result without returning either the appellant or 1st respondent would be in accordance with the doctrine of substantial justice. To act otherwise counsel submitted amounted to enthronement or adoration of technicality.
The learned Senior Counsel for the 1st respondent argued that the tribunal was not entitled to give what the appellant did not ask for. He contended that prayer was sacred and submitted that law should not be sacrificed in our quest for substantial justice.
Mrs. Pemu, the learned Solicitor-General after referring to paragraph 5(3) of Schedule 6 contended that the prayer set out above was incompetent. I will not put it that high especially so when paragraph 5(3) of Schedule 6 relied upon merely gave examples of prayers that could be presented to the Tribunal. The appellant was entitled to ask for the annulment of the election coupled with an order for a bye-election or pray “that some specified person may be duly returned or elected”. The prayer set out above would have met the purpose now being canvassed if it had been disjunctive rather than conjuctive as it now stands. In other words if the italicized word had been substituted with the word ‘or’. Implicit in the latter prayer is voiding the return or election of some other specified person, in this case Ibru ‘s election and the return of the appellant.
This brings me to the contention of the learned Senior Counsel for the 1st respondent to the effect that the appellant cannot eat his cake and have it. He cannot ask for the avoidance of the whole election and still benefit from the voidity by being returned or elected as the Governor of the State under the voided election. The prayer of the appellant before the Tribunal allows for annulment of 1st respondent’s return or election and for the election or return of the appellant provided he established that he had a majority of lawful votes.
The other relief open to him was to pray for the election to be declared void.
This relief he did not seek. And it is trite law that the Court will not grant any relief not before it. In the case of David Fabunmi v. Abigail Ade Agbe (1985) 1 NWLR (Pt.2) 299. the Supreme Court per Kazeem JSC stated as follows at page 322 and 323 of the report –
“A plaintiff or defendant in his counter-claim cannot claim a relief which is inconsistent with the relief specifically claimed. See Cargill v. Bower (1878) 10 Ch.D. 502. I am of the opinion that the court must have jurisdiction to grant the relief that it thinks appropriate to the facts as proved. If a party seeks to raise a new claim which has not been adumbrated in his p1eadings in the course of trial, in my opinion, the court should not give relief of that kind at any rate without offering the opposing party an opportunity for an adjournment and giving an opportunity to say whether she has been taken by surprise, or has been prejudiced by the fact that that particular form of relief has not been explicitly claimed earlier. See Belmont Finance Ltd. v. William  Furniture Ltd. (1979) 1 All E.R. 118 at 131-132; Taiwo Okeowo v. Mrs. Migliore (1979) 11 SC 138 at 197-199 and D.O. Olubode v. Oyesina (1977) 5 SC 79 at 86-88. This. however. does not detract from the law and the decision of this Court that the Court will not grant any relief not before it.”
In any case, as submitted by the learned counsel for the 1st respondent, paragraph 15 of Schedule 6 expressly prohibits amendment of prayer. Proviso (a) to paragraph 15(1) reads thus –
“Provided that –
(a) after the expiry of the lime limit by paragraph 2 of this schedule for presenting the petition, no amendment shall be made introducing any fresh prayer to the petition, or effecting any alteration of  substance in the prayer, or (having anything which may be done under the provisions of sub-paragraph (2) of this paragraph) effecting any substantial alteration in or addition to the statement of facts and grounds relied upon to sustain the prayer:
and” since the appellant, at that stage, could not seek and obtain leave to amend his prayer to have the election declared void, it would be equally wrong for the Tribunal to unilaterally donate to him on a platter of gold what the statute had denied him. The courts including tribunals are to give effect to statute and not to breach them or whittle down their effects: See Ojukwu v. Onwudiwe (1984) 1 SCNLR 247.280; Alashe v. Olori-Ilu (1964) 1 All N.L.R, 390, 397; Usenfowokan v. Idowu & Anor (1969) 1 All N.L.R. 125 and National Investmentand Property Ltd. v. The Thompson Organisations Ltd. & Ors. (1969) 1 NMLR 99,103-4.
This, therefore, puts this case on all fours with the case of Bola Ige v. Victor olunloyo & Ors (1984) 1 SCNLR 158, The learned counsel for the appellant in that case on discovering that the petition did not contain a prayer for voidance of the election unsuccessfully sought for an amendment to the prayer by asking for an additional prayer nullifying the whole election. The application was refused. The refusal by the High Court was upheld by both this Court sitting in Ibadan and the Supreme Court. In upholding the rejection of the application in Bola Ige’ s case (supra) at page 168 the Supreme Court per Obaseki, J.S.C. opined thus –
…… drew this court’s attention to the oral application made by Chief Chukwurah in the High Court for amendment of the petition to include the prayer to make void the election. It is on record that the application was refused, As the application was made after the expiration of time for filing the petition the court quite justifiably refused the application,
There was therefore no merit whatsoever in the submission that the Federal Court of Appeal and the trial Court erred in refusing to declare the election void.
xxxxxxxxxxxxxxxxxxxxxxxxxxxx
There being no prayer to the effect that the election be declared void, this Court cannot entertain an appeal seeking such a relief.
The appeal being in the main for such a relief, lacked merit.”
I am bound by this dictum and adopt and follow it. There is no power in the Tribunal to amend the prayer after the expiration of the time allowed for presenting petition.
It is doubtful if there is much to the complaint that the respondent failed to raise the objection timeously. Since it goes into the competence of the court to grant such a relief it is a matter that could properly have been raised by the tribunal itself suo motu. Not only that the parties to the petition cannot consent to extend or abridge the provisions of the relevant enactment. See Alashe v. Olori-Ilu (supra) at page 397 where the Supreme Court held as follows –
It is the duty of all courts to give effect to legislation and the parties cannot by consent or acquiescence or failure to object nullify the effect of a statute. This court in Owonyin v. Omotosho (1961) 2 SCNLR 57, (1961) All NLR (Pt.11) 304, 308 called attention to the impropriety of relying on inadmissible evidence in arriving at a decision. It was there said, on the authority of Jacker v. International Cable Co. Ltd. (1888) 5 TL.R. 13:
“When matter has been improperly received in evidence in the court below, even when no objection has been raised, it is the duty of the Court of Appeal to reject it and to decide the case on legal evidence.”
When that rule is applied to the case under examination there is no evidence of the extent of the area which was in issue in the native court case. In fact the plan was made after the native court case.”
See also Ojukwu v. Onwudiwe (1984) 1 SCNLR 247, (1984) N.S.C.C. 172, 175 and National Investments and Properties Co. Ltd. v. The Thompson Organisation Ltd & Ors. (1969) 1 All NLR 138; (1969) 1 N.M.L.R. 99,104.
The question of corruption and undue influence canvassed in this Court on behalf of the appellant can be easily disposed of. Although voters were threatened with fire and brimstone and there were some evidence of corrupt practices nevertheless no effort was made to bring the charges to the door steps of the 1st respondent. There is no strand of evidence that the persons alleged to be involved in corrupt practices were agents of the 1st respondent or were receiving instruction from 1st respondent’s accredited agents. I am not unaware of the existence of exhibit C which I reproduce immediately below –
“25TH NOVEMBER 1991
URHOBO ACTION COMMITTEE
DEAR BELOVED BRETHREN
I am directed by Chief D.O. Dafinone to invite you to a meeting of a specially selected Urhobo People which will take place at the home of Chief T. Ogigba at Olomu on Saturday 30th November, 1991 at 3.00 p.m. prompt.
Invitation is strictly limited to only those who received this letter.
God be merciful and helpful to our people.”
The circular letter set out above was issued by one Chief J.E. Ekueku. The purpose of summoning the meeting was not apparent from the face of the letter.
Neither the minutes nor the agenda of the said meeting was produced or tendered before the Tribunal. It is, therefore, not clear what was discussed at the meeting if the meeting ever held. Moreover, there is no evidence that the meeting was summoned at the instance of the 1st respondent nor for his benefit. Exhibit C to say the least is bereft of any evidential value. It looks to me more of a Trojan gift, or a bait to the 1st respondent’s counsel who also adroitly avoided being taken in by it.
In cases of undue influence, it appears to me, that for a petitioner to succeed he has to show that the 1st respondent had knowledge of what took place. For this proposition I rely on the judgment of this Court in the unreported Appeal No. CA/B/EP/49/92: John Odigie Oyegun v. Lucky Nosa Igbinedion & Ors. delivered on 18/3/92 (now reported in (1992) 2 NWLR (Pt.226) 747). In that judgment, after carefully reviewing the authorities, the Learned President of the Court of Appeal,
Nasir, P., concluded thus;
“From the above authorities it is clear that for the Appellant to be held responsible in this Appeal for the acts of Chief Isekhure it has to be proved by credible evidence that the Chief was an agent of the Appellant or that the Chief (D.W.5) was acting on special or general authority of the Appellant or those of somebody who was agent of the Appellant. The Tribunal found as a matter of fact that the Chief was not an agent of the Appellant and that the Appellant was not aware of what the Chief was doing in support of the Appellant’s campaign. It was also found by the Tribunal that the Oba of Benin had not authorised the action of the Chief. It seems to me that even if the Oba and all his Chiefs solicited gratis for votes in support of the Appellant, the Appellant ought not be held liable or accountable for any illegality committed in the process unless clear element of authorisation or request can be proved. In any event the accusation is for a criminal offence created under section 102(2) and punishable under section 107 of Decree 50. Whoever alleges such offences must prove them beyond reasonable doubt: Nwobodo v. Onoh (1984) 1 S.C.N.L.R. I at 17, (1984) 1 S.C. 1 at 13 & 39.”
On the evidence the case of undue influence is not made out. For these reasons and the fuller reasons in the lead judgment of my learned brother Awogu, JCA, I too dismiss the appeal. I abide by all the consequential orders including the order as to costs contained in the said lead judgment.
EJIWUNMI, J.C.A: I have had the privilege of reading the draft judgment of my brother, Awogu J.C.A. and I agree that the appeal should be dismissed for the reasons given.
This appeal is sequel to the election held on the 14th day of December 1991 under the State Government (Basic Constitutional and Transitional Provisions) Decree, 1991 (No. 50 of 1991), hereinafter called Decree 50, to elect the Governor of Delta State. For this election, the contest was between Professor Eric Agume Opia on the ticket of the National Republican Convention, while Chief Felix Ovuodoroye Ibru, contested on the platform of the Social Democratic Party.
At the end of the election, as aforesaid, Chief Felix Ovuodoroye Ibru emerged as the successful candidate, and was so declared by the National Electoral Commission through the Returning Officer of the State, Alhaji Mohammed Sidi Kwaru who was the Resident Electoral commissioner for Delta State.
As Professor Eric Agume Opia was dissatisfied with the result, he. filed an Election Petition before the Delta State Governorship and Legislative Houses Election Tribunal, hereinafter called the Tribunal, established under section 88 of Decree 50, consisting of a Chairman and four members. In his 14 paragraphed petition Professor Eric Agume Opia made several allegations with regard to the conduct of the election but the allegations were succintly stated in paragraphs 13(1),(2) and (3) of the said petition read thus:
“13(1) That the 1st respondent at the time of the said election was not duly elected by the majority of the lawful votes cast at the said election for the Office of the Governor for Delta State held on 14th day of December, 1991.
(2) That the petitioner had the highest number of votes lawfully cast at the said election.
(3) That the said election was invalid by reasons of various corrupt practices and non-compliance with some of the provisions of the State Government (Basic Constitutional and Transitional Provisions) Decree, 1991 and National Electoral Commission Guidelines for the conduct of the said election.”
Based upon the several allegations in the said paragraphs of the petition, the petitioner therefore sought for the following relief. I quote:
“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.”
The first reaction of the 1st respondent to the several allegations contained in the petition of the petitioner was to file a reply dated 23rd January, 1992.
Thereafter, the 1st respondent filed a Motion on Notice dated 23rd January, 1992 pursuant to the provisions of Schedule 6 section 18 of Decree No. 50 of 1991 requiring the petitioner to furnish further and better particulars of the several allegations made in paragraph 8 of the petition.
In the meantime, the 2nd and 3rd respondents also filed a joint reply dated 24th January 1992 to the several allegations made against them by the petitioner.
Upon being served with the 2nd and 3rd respondents reply, the petitioner filed a notice to produce for his inspection the documents referred to in paragraphs 6 and 7 of the said reply dated 24th January, 1992.
By another notice to produce documents dated 27th January, 1992, the petitioner also asked the 2nd and 3rd respondents to produce and show at the trial of this petition, on 31st January 1992 all books, papers, letters, copies of letters, and other writings, and entry, memorandum or minute relating to the matters in question in this petition.
On the 31st of January, when the aforesaid motion for further and better particulars filed by the 1st respondent was heard by the tribunal, the Tribunal after listening to the submissions made for and on behalf of the parties by their learned senior counsel, the Tribunal ruled in favour of the 1st respondent, and ordered the petitioner to file on or before 9 o’clock in the forenoon of Monday the 3rd day of February, 1992 in the registry of the tribunal and serve same on the 1st respondent. And further ordered that if the aforesaid particulars or any part thereof be not duly filed and served as ordered, the petitioner would be debarred from giving evidence of any of the matters to which they refer at the trial of this petition.
It is pertinent to note that in pursuance to orders of the tribunal, the petitioner filed such particulars as were deemed proper responses to the Orders of the Tribunal by an application made to that effect on the 3rd February with the registry of the Tribunal.
At the end of what I may refer to as the preliminary skirmishes, the hearing of the petition commenced on Tuesday the 4th of February 1992. During the hearing the petitioner called eight witnesses while two witnesses testified for the 1st respondent, and the 2nd and 3rd respondents called a witness in support of their respective cases. Also, several documents that were used during the election process, were tendered through the witnesses who testified during the trial.
With the conclusion of the hearing of the evidence learned senior advocates who appeared for the parties addressed the Tribunal, and the Tribunal adjourned to deliver a considered judgment. By that judgment the tribunal held that in the light of the provision of paragraph 5(3) of Schedule 6, and the authorities brought to their attention, the prayer of the petitioner’ is incongruous and incompetent and for that reason the petition was struck out. But the Tribunal did not stop there, but went on to consider the evidence before it, and thereby reached the conclusion that there was no substance in the petition, and dismissed it accordingly.
Being dissatisfied with the judgment of the Tribunal, the petitioner has now appealed to this court. Pursuant thereto, the petitioner filed 14 grounds of appeal.
Based upon the grounds of appeal so filed, the petitioner is therefore seeking the following relief from this court, namely –
“Reversal of the whole judgment and an order that the said election was invalid by reasons of various corrupt practices and noncompliance with some of the provisions of the State Government (Basic Constitutional and Transitional Provisions) Decree 1991 and an order for a bye-election in accordance with the provisions of section 92(3) of the said Decree.”
Briefs were subsequently filed and exchanged by the parties. For the petitioner, who shall from henceforth be referred to as the appellant, the learned senior counsel, who appeared for him, Mr. Kehinde Sofola, SAN, adopted and placed reliance upon the appellant’s brief. Similarly Chief F.R.A. Williams, SAN, who represented the 1st respondent also adopted and placed reliance on the brief filed on behalf of the 1st respondent in the course of the hearing of the appeal. For the 2nd and 3rd respondents, the learned Solicitor General, Mrs. Pemu, who addressed the court with the permission of the Hon. Attorney General Mr. V. N. Adaikpoh, also adopted and placed reliance on the brief filed jointly for 2nd and 3rd respondents. In the appellant’s brief, the issues set for the determination of this appeal are as follows:-
“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:
But, in the 1st respondent’s brief, the issues, adumbrated for the determination of this appeal, and which the 2nd and 3rd respondents also adopted in their brief read thus:
“(1) Whether the tribunal was correct in striking out the petition on the ground that the prayers contained therein are incongruous and incompetent.
(2) If, but only if, question(1) 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.
(3) Was the allegation of want of majority of lawful votes on the part of the appellant properly pleaded?
(4) 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?
(5) 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?
(6) Were the particular types of unlawful votes which the petitioner has alleged (or any of them) duly established by evidence before the tribunal?
(7) Was it right for the tribunal to have ordered the petitioner to file further and better particulars of the petition?
(8) Does non-compliance with the provisions of Decree 50 of 1991 per se justify the invalidation of an election?
(9) What is the effect of undue influence (which includes intimidation) or bribery on an election held pursuant to Decree 50 of 1991.
(10) 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?”
With due respect to learned Senior Advocate for the appellant, my humble view is that the issues framed for the 1st respondent in his brief, being more directly in consonance with the arguments of learned senior counsel before us, including the submissions of the learned Solicitor General for Delta State, this appeal will be considered in the light of the issues raised in the 1st respondent’s brief which I have quoted fully above. Before considering these issues, I think it is only proper to deal with a preliminary point taken by Mr. Kehinde Sofola, learned Senior Advocate for the appellant at the commencement of the hearing of this appeal. The point has to do with the time frame which the tribunal ordered for the hearing of the petition before it. In this regard it is noted at p.66 of the records that the tribunal ruled thus:
“Having consulted counsel on all sides, and with the agreement of all of them, it is hereby decided that the petitioner will conclude his evidence tomorrow Tuesday the 4th of February, 1992, while the respondents will conclude their evidence on Thursday morning, the 6th of February 1992, followed by the address of counsel in the matter which will be limited to one hour for each of the parties.”
It would appear from the submission of learned Senior Advocate that his complaint with regard to the time frame so given for the hearing of evidence did not allow the appellant to call all the witnesses that he would have liked to call to prove his case. And more importantly, learned senior advocate, claimed that his consent was not had and obtained for the tribunal to say that the order made was with the consent of all sides after they had all been consulted. Chief F.R.A. Williams SAN, on the question as to whether the tribunal consulted before making its order, said that there was due consultation. I think that a careful reading of p.65 of the records show that the learned senior advocate for the appellant, Mr. Kehinde Sofola was quoted to have said:
“On the question of limitation of time, we must concede that the Tribunal is fully aware of the limitation of time and will be able to control the proceedings to avoid any counsel unduly delaying the trial.”
After that statement, further exchanges between learned senior counsel and the tribunal before the tribunal made the aforesaid ruling. While it is evident that there is no direct question recorded by the tribunal about the time frame within which evidence would be led, it is apparent from the submission of learned senior counsel that everyone was aware of the constraint of time under which the tribunal was expected by law to hear and determine the petition. It is pertinent to observe that the time frame given does not appear to have favoured a particular side, and where as in this case a petitioner had to present its case, it had all the time between when the election results were known and when the petition was heard to prepare his case and get the witnesses that would be required to establish his case. It is therefore my opinion nothing turns on this point in respect of this appeal, and I say no more thereon.
Arguing the 1st issue dealing with whether the tribunal was correct in striking out the petition on the ground that the prayers contained therein are incongruous and incompetent, it is the contention of learned senior advocate for the appellant. Mr. Kehinde Sofola, SAN, that the tribunal was wrong to have struck out the petition. It is his submission that the tribunal should have read into paragraph 5(3) of Schedule 6 of Decree 50 the provisions of paragraph 50 of the same Schedule 6 and also section 92(3). 102 and 103 of Decree 50 of 1991, before deciding the issue. In his view, the tribunal was wrong to have placed reliance upon Ige v. Olunloyo (l984) 1 SCNLR 158, (1984) 15 NSCC 102;(1984) 1 SC258, as that case docs not apply to the facts disclosed in this appeal. It is further argued that objection should have been raised by the respondents to the petitioner’s prayer and as they did not do so, and they went on to take further steps in the trial. fully aware of the irregularities in the prayer, the tribunal should not have struck out the petition.
Chief F.R.A. Williams SAN, for the 1st respondent, replying, submitted that the tribunal was right to have struck out the petition for the reasons given, and contended that the paragraph 5(3) of Schedule 6 being the regulatory procedure in the trial of election petitions, the tribunal properly relied on its provisions to strike out the appeal. It is the further submission of the learned senior advocate that the provisions of section 92(3) of Decree 50, do not bar the tribunal from holding that an unsuccessful party may not be declared the successful candidate. Referring to paragraph 15(1)(a) of Schedule 6 to Decree 50, it is the submission of learned Senior Counsel that by virtue of its provisions a prayer in a petition cannot be amended after the expiration of the time limited by paragraph 2 of Schedule 6 for presenting the petition. Learned Senior Counsel. Chief F.R.A. Williams, then contended that the only prayer of the appellant being that on p.9 of the records, the petition was properly struck out as the tribunal cannot grant what is not asked for by the petitioner.
The learned Solicitor General also in her submissions associated herself with the submission of Chief F.R.A. Williams, SAN, and urged this court to uphold the decision of the Tribunal striking out the petition.
In view of the reference made to paragraphs 5(3), 15(1)(a) and S.92 of Decree 50, it is desirable that they should be set down. They read thus:
Paragraph 5(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, and shall be signed by the petitioner (or all petitioners if more than one), or by the solicitor (if any) named at the foot of the petition.”
Paragraph 15(1)(a)-
“15( 1) In relation to an election petition, the provisions of the relevant provisions of the Civil Procedure Rules or the Civil Procedure Code relating to amendment of pleadings shall apply as if the words “any proceedings in those provisions there were submitted the words “the petition or the reply in any”.
provided that –
(a) after the expiry of the time limited by paragraph 2 of this Schedule for presenting the petition, no amendment shall be made introducing any fresh prayer to the petition, or effecting any alteration of substance in the prayer, or (having anything which may be done under the provisions of sub-paragraph-(2) of this paragraph) effecting any substantial alteration in or addition to the statement of fact and grounds relied upon to sustain the prayers”
S.92 of Decree 50 of 1991 –
“(1) An election shall not be invalidated by reason of non-compliance with this Decree if it appears to the court of Tribunal that the election was conducted substantially in accordance with the principle of this Decree and that non-compliance did not affect substantially the result of the election.
(2) An election shall not be liable to be questioned by reason of defect in the title, of the person conducting the election or acting in the office giving the right to conduct the election.
(3) Where a court or tribunal finds that a candidate elected or nominated was not duly elected or nominated the court or tribunal shall order a bye-election and no more.”
Now, the submission of Chief F.R.A. Williams, learned senior advocate that paragraph 5(3) of Schedule 6 of Decree 50 of 1991 forms part of the provisions of Decree 50 regulating the procedures that are applicable in respect of election petitions is undoubtedly right. It is only necessary to refer to the side note where the words “contents of petition” would be found, and then the provisions of paragraph 5(1) which read:
“An election petition shall –
(a) specify the right of the petitioner to present the petition; and
(b) state the holding and result of the election; and
(c) briefly state the facts and grounds relied upon to sustain the prayer of the petition.”
Upon this premise of that paragraph 5(3) of Schedule 6 of Decree 50, that forms part or the procedure that a petitioner is bound to follow in the pursuit of his petition, Chief F.R.A. Williams further submitted that the rules of procedure accord a status of immutability to the prayer. That status it is argued is acquired after the expiry of the time limited for the presentation of the petition, which is within one month after the date on which the election is held (see paragraph 1(1) of Schedule 6 of Decree 50). That contention, it is further argued is supported by the provisions of paragraph 15(1) of the 6th Schedule of Decree 50.
I have earlier in this judgment reproduced paragraph 15(1), and after a careful reading of the provisions or that paragraph I am clearly of the view that the learned Senior Advocate is right in his submission that the prayer of the petitioner cannot be amended after the expiry period of one month from when the petition was presented. It is of course not the case of the appellant in his petition. The main point that has arisen however is that a petitioner has filed a petition upon certain grounds and had asked for certain reliefs based on such ground, he is bound by the grounds so filed and the prayers based thereon, except where such grounds and prayers were amended before the period provided in paragraph 1(1) of the Schedule to Decree 50 expire. Thus the parties in respect of an election petition are subject to the rule that is trite in ordinary civil proceedings that parties are bound by the pleadings. In Ige v. Olunloyo (1984) 1 SCNLR 158, (1984) 15 N.S.C.C. 102 Obaseki J.S.C., at page 109 said. It read:
“No court has the power to grant reliefs or remedies not claimed before it.”
Before so holding the learned Justice of the Supreme Court had observed that the main issue for determination in this appeal is whether, in the absence of a prayer by the petitioner in his petition praying that the election be declared void, the election ought, having regard to the evidence before the court establishing circumstances on which such a relief ought to be granted, to be declared void. In that case the appellant was not satisfied with the results of the election he had contested with the 1st respondent and decided to challenge the election or return of the first respondent in the Oyo State High Court. He presented and filed his election petition which closed with a prayer which reads:
“Wherefore your petitioner prays that it be determined
(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.”
The respondents filed their replies to the petition. The 1st respondent filed his own reply separately while the 2nd, 3rd and 4th respondents filed a joint reply. At the close of evidence. Chief Chukwura SAN learned counsel for the petitioner/appellant, made an unsuccessful oral application to amend the prayer by adding an alternative prayer to read: “And in the alternative that the election is void.”
The appeal against the refusal of the trial court to declare the election void to the Appeal Court failed, and a further appeal was made to the Supreme Court.
The Supreme Court also dismissed the appeal. I have earlier referred to what Obaseki. J.S.C. said in dismissing the appeal. But also pertinent is the opinion of Nnamani. J.S.C., who at page 119 said. It reads –
“The omission to put in such a prayer was all the more astounding as one can see in the petition complaints of illegalities and malpractices. The appellant tried to amend the petition to bring in the prayer that the election be declared void but both the High Court and the Federal Court of Appeal rejected the application. I do not see on what grounds this Court could allow such a plea. When the application was made to the election court it was rejected pursuant to the mandatory provisions of sections 136(2) and 125(3) of the Electoral Act 1982. These provisions are in these terms:
136(2) After the expiry of the time limited by part of this Act for presenting a petition, no amendment shall be made for the purpose of introducing any fresh prayer into the petition or effecting any alteration of substance in the prayer and
125(3) The petition shall conclude with a prayer that the person specified therein may be declared duly returned, or that the election may be declared void as the election may be and the petition shall be signed by the petitioner or if he has a legal practitioner by his legal practitioner named at the foot of the petition.”
As regards the earlier provisions, the elections having been announced on 16th August, 1983, any application for amendment pursuant to section 136(2) of the Electoral Act had to be made within 14 days from that 16th August. It was being made about the 9th of September, 1983. Besides, it is trite law that the parties are bound by their pleadings. The respondents had replied to the petition as amended and the whole case had proceeded on the basis of these pleadings.
It is of course not in dispute that in the instant appeal, the appellant has not like in the Ige v. Olunloyo case (supra) asked for or sought to amend his pleadings to include a prayer asking that the election be declared void. But what is inescapable in the instant appeal is that the appellant is bound by his pleadings or the grounds upon which he based the prayer in his petition which for ease of reference is repeated again. It reads:
“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 or returned and that your petitioner ought to have been elected and therefore should be declared elected or returned.”
Thus it must be accepted that no where in the above prayer has the appellant asked that the election be declared a nullity in view of the several allegations made that the election was characterised by fraud, undue influence and non-compliance with the provisions of Decree 50 of 1991. It seems to me clear that what the appellant had asked for, from a careful reading of the above quoted prayer in his petition, is for the tribunal to declare that the election of the Governor be overturned and the 1st respondent be declared as the Governor of Delta State. It is however the
contention of Chief F.R.A. Williams SAN that it is one thing to declare an election void, or a nullity, and another thing to declare that another person, other than the person declared as the winner of an election (in this case of Governor of Delta State), should have been so declared. My first observation is that having regard to the provisions of paragraph 5(3) of Schedule 6 of Decree No. 50, it is incumbent upon a person seeking to challenge the results of an election to select carefully the prayer he wished to have made in his favour upon grounds which clearly support the relief he is seeking. It also seems to me proper to observe that the Ige v. Olunloyo case (supra) is in my view plainly a clear authority for the proposition that parties to an election petition are bound by their pleadings i.e. a prayer not sought cannot be granted by the court or the tribunal: But having said that. I also wish to observe that all the allegations made by the appellant relate to such matters as should have compelled the appellant to ask that the election be declared a nullity, and as that prayer was not included in the petition, the question then is whether the tribunal was right to have decided to strike out the petition.
In order to decide that question it is necessary to refer to the provisions of section 92(3) of Decree No. 50 of 1991, which says that where a court or tribunal finds that a candidate elected or nominated was not duly elected or nominated the court or tribunal shall order a bye-election and no more. It seems to me that upon a careful reflection upon the provisions of the said section, the Tribunal has no other option open to it other than to order a bye-election if it was established that a candidate was not duly elected.
The question that seems to me paramount and which requires resolution is whether the petitioner had established by credible evidence that the candidate who was declared as the Governor won the election upon a majority of lawful votes (see S.16(1) of Decree 50 of 1991), at the election. In my humble view, it does not seem to me that upon a strict interpretation of the provisions of section 92 of Decree 50 of 1991, the only order which was open to a Tribunal if satisfied that the petitioner had succeeded in establishing that the person declared as the Governor, as in this case, did not win the election on a majority of lawful votes was to order a bye-election.
I will therefore hold that an order striking out the petition was not open to the Tribunal having regard to the provisions of section 92(3) of Decree 50.
Be that as it may, the tribunal went on to consider the petition on its merit and came to the conclusion that the appellant did not establish the claim that the 1st respondent was not elected by a majority of lawful votes at the election held on the 14th December 1990. I will now consider issues (iii), (iv), (v) and (vi) in the 1st respondent’s brief as they all relate to whether the appellant properly pleaded the want of lawful votes, and whether the tribunal was correct from the record. In respect of the issues, it is the contention of learned senior advocate that the aim of an election tribunal ought to be directed to doing substantial justice, and should not be allowed to be deflected from that course by mere technicality. In support of this contention reference was made to the judgment of Bello, J.S.C” (as he then was) in Chief Nwobodo v. Chief Onoh & Ors (1984) 1 SCNLR 1, (1984)S.C.1 at 61 line 27 where His Lordship said. It reads:
“Polling Stations are the concrete foundation on which the pyramid of an election process is built. Primary and collation centres are administrative machinery devised in order to enhance efficiency and speedy declaration of the final result of the election.”
Also cited in the brief in support of that view are the following cases. Dogarai v. Gwarzo & Ors (1965) N.N.L.R. 9 at p. 10, and Magawaje v. Umaru & Ors. (1965) N.N.L.R. 29 at page 32 Swera v. DZungwe (1967) N.N.L.R. 297 where the Supreme Court quoted with approval. Halsbury’s Laws of England 3rd Edition at p.150.
The learned Senior Advocate therefore urged in the appellant’s brief that it is trite law that the Court has to look into the substance of the case to see whether the informality is of such a nature as to be fairly calculated in a reasonable mind to produce a substantial effect upon the election. The following cases were cited Bornu Holding Co. Ltd. v. Bogoco (1971) 1 All N.L.R. 324, Bassey v. Young (1963) 1 All N.L.R. 31, Ajao v. Alao (1986) 5 NWLR (Pt.45) 802 at 826.
In his oral submission before us learned Senior Advocate also referred to the provisions of paragraph 16(1) of Schedule 6 of Decree No. 50, and would appear to have suggested that its provisions are not applicable to voting under the system of open balloting that was employed in the election under consideration in this appeal.
For the 1st respondent. it is the contention of his learned senior counsel, that in so far as the appellant relied upon a plea that the respondent did not have a majority of lawful votes, he must clearly indicate the fraudulent manner in which the unlawful votes were introduced. In support of this contention, the-following cases were cited in the 1st respondent’s brief: W.A.P.I.N. v. Nigerian Tobacco Company (1987) 2 N.W.L.R. (Pt.56) 299 at 303; Okunola v. Oduola (1987) 4 N.W.L.R. (Pt.46) 141 at 149-150; Usenfowokan v. Idowu (1969) 1 All N.L.R. 129; George & Ors. v. Dominion Flour Mills (1963) 1 All N.L.R. 71; Oluwo v. Adebowale (1964) 1 All N.L.R. 74. It is also the contention of Chief Williams SAN, that the rules regulating the trial of election petitions contain special provisions dealing with pleas which raise questions concerning want of majority of lawful votes. The relevant being rule 16 of Schedule 6 of Decree No. 50. And it is the further contention of learned Senior Counsel for the 1st respondent, that it is mandatory that the provisions of a statute or law be obeyed, and a person or party to a suit cannot by consent or acquiescence or by failure to object nullify the effect of a statute or law. For this proposition we were referred to the following cases: Ojukwu v. Onwudiwe (1984) 1 SCNLR 247, (1984) N.S.C.C. 172, Minister of Lands etc v. Azikiwe & Ors (1969) 1 All N.L.R. 49; Omoniyi v. Omoloso (1961) 1 All N.L.R. 304 and Alashe v. Olori-Ilu (1964) 1 All N.L.R. 390.
It is undisputed that where there are statutory provisions regulating what has to be done in respect of a particular action, the said statutory provisions have to be complied with. In the instant appeal, it is manifest that the provisions of paragraph 16 of Schedule 6 of the Decree No. 50 were enacted to cover the situation where a party to an election petition is claiming that a candidate in that election has been declared elected having failed to obtain a majority of lawful votes in that election.
The provisions of sections 16(1), 16(2), 16(3) and 16(4) read thus:
“16(1) When a petitioner claims the seat of office for an unsuccessful candidate, alleging that he had a majority of lawful votes, any party complaining or 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 vote intended to be objected to by him and of the heads of objection to each such vote.
16(2) No evidence shall be given against the validity of any vote or upon any head of objection not so specified in the list 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.
16(3) The party delivering the list shall at the same time deliver a duplicate for each other party to the petition and three other duplicates and pay the appropriate fees for services, and in default of such delivery and payment the list shall not be filed unless the tribunal otherwise orders.
16(4) The Secretary shall cause a duplicate of the list to be served on every other party forthwith.”
Now, having read the provisions of section 137 of the Electoral Act of 1982, I am satisfied that its provisions are in pari materia with the provisions of paragraph 16 of Decree No. 50 of 1991, the dictum of Obaseki, J.S.C. in Ojukwu v. Onwudiwe (1984) supra that. It reads:
“The failure to comply with the section has rendered all the evidence challenging the votes cast in the Onitsha N.E. State constituency inadmissible and liable to be expunged from the record. I find myself in agreement with Olatawura, J.C.A., when he said in his judgment at the Federal Court of Appeal that Mr. Ezeuke is on firm ground with the objection raised for noncompliance with section 137(1) of the Electoral Act 1982.”
is also applicable to the instant appeal.
The appellant having failed to comply with the provisions of paragraph 16 of Schedule 6 of Decree 50, the Tribunal was right to have expunged the evidence given thereon.
On whether the Tribunal was right to have ordered the appellant to supply further and better particulars to the 1st respondent with regard to the several allegations made by the appellant in his petition, it is my view that the order was properly made. I am in this respect inclined to the view that the provisions of paragraph 6 clearly allow the Tribunal to make such orders. Paragraph 6 of Schedule 6 of Decree No. 50 reads:
“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,”
The above provisions clearly do not envisage that evidence be stated, and the appellant has not shown that any of the particulars directed by the tribunal was in breach of the above provisions of the Decree. With regard to the provisions of paragraph 50 of Schedule 6 of Decree 50, cannot in my humble opinion be read to arrive at the conclusion that an election tribunal may not make an order that a party before it should supply better and further particulars in respect of the allegations
made by that party upon the application of the opposing party. To my mind, the provisions of paragraph 50 of Schedule 6 of Decree 50 were enacted to avoid the setting aside of Election proceedings upon such matters as non-compliance with the provisions of Schedule 6, and with any other rules of practice for the time being in force.
With regard to the several allegations made in the petition concerning undue influence, corrupt or fraudulent returns of election result, there is no scintilla of evidence linking the 1st respondent with any of these allegations. In the recent case of Chief John Odigie Oyegun v. Lucky Nosa Ighinedion & Ors (1992) 2 N.W.L.R. (Pt.226) p.747, the President of this Court in his lead judgment and with which the other four Justices who sat with His Lordship on this point held thus at pages 760- 61:
“There is no doubt that undue influence forms part of corrupt practice under section 102(2) of Decree 50. What is in issue is not that undue influence is or is not corrupt practice. The issue is whether the appellant was liable for any corrupt practice. We have not been directed to any evidence of undue influence by the appellant himself. What Mr. Onafowokan tried to do with brilliance and industry was to link the action of Chief Isekhure (D.W.5) with the appellant. Alternatively he preferred an argument that once there was corrupt practice it did not matter how it came about or by who it was made. On both points I find it impossible to agree with learned counsel particularly in the light of the authorities cited above”.
In view of the above authoritative pronouncement with which I entirely agree the appellant’s contention in respect of the allegations about corrupt practice in all its dimensions as catalogued in this petition must fail as there was no link direct or indirect with the 1st respondent.
I will therefore dismiss this appeal for all the reasons given above and the fuller reasons given in the lead judgment of my learned brother Awogu, J.C.A., abide also with the consequential orders as to costs.
AKINTAN, J.C.A.: This is an appeal from the judgment of the Governorship and Legislative Houses Election Tribunal for Delta State sitting at Asaba. The case was founded on the election into the Office of Governor of Delta State held on 14th December 1991. The 1st respondent was declared winner by the Resident Electoral Commissioner (2nd respondent) after the election. The appellant was dissatisfied with the result and he filed 14 grounds of appeal against the verdict of
the Tribunal.
The only issue formulated for determination by the appellant in his brief of argument is:
“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 petitioner/appellant’s prayer before the Tribunal is as follows:
“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.”
The petitioner, after pleading the facts he intended to rely upon in support of the petition, went on in paragraph 13 of the petition to state the grounds he intended to rely on as follows:
“(1) That the 1st respondent at the time of the said election was not duly elected by the majority of the lawful votes cast at the said election for the Office of the Governor for Delta State held on 14th day of December. 1991.
(2) That the petitioner had the highest number of votes lawfully cast at the said election.
(3) That the said election was invalid by reasons of various corrupt practices and non-compliance with some of the provisions of the State Government (Basic Constitutional and Transitional Provisions) Decree 1991 and National Electoral Commission Guidelines for the conduct of the said election.”
C The facts of the case have been adequately set out in the judgment just read by my learned brother. Awogu. J .C.A. and I do not intend to repeat them here.
Suffice it to say that at the close of the case for the defence. Chief Williams. SAN Submitted, inter alia, in his address on behalf of the 1st respondent. that the petitioner’s prayer did not come within the provisions of paragraph 5(3) of Schedule 6 to the State Government (Basic Constitutional and Transitional Provisions) Decree 1991 (hereinafter referred to as “the Decree”) which provides that:
“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 learned Senior Advocate then urged the Tribunal to strike out the petition since there was no prayer before it which the Tribunal could lawfully grant.
The second leg of the submission of the learned Senior Advocate was to the effect that the admissible evidence adduced in support of the petition was insufficient to prove the claim before the Tribunal. This was after expunging the evidence inadvertently received by the tribunal contrary to the provisions of paragraph 16(1) of Schedule 6 to the Decree which provides that:
“(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.”
The Tribunal upheld both submissions of the learned Senior Advocate. After quoting the provisions of paragraph 16(1) and (2) of Schedule 6 of the Decree, the Tribunal held as follows on page 197 of the record:
“The petitioner has not filed a list as is required here but has got in documents relating thereto through D.W. 2 or 3. As has been already stated earlier on in this judgment, it is the contention of Chief Williams, learned Senior Advocate that the petitioner is by law debarred from giving any such evidence and if, as in this case he has given it even without him objecting to its admission all such evidence should be expunged from the record.”
The Tribunal then concluded that the remaining evidence after expunging the said evidence was insufficient to prove the petitioner’s claim.
I do not share the view expressed by the Tribunal in this respect. It is clear from the wording of paragraph 16(1) of Schedule 6 already quoted above that before that paragraph could be applicable, the petitioner must be claiming “the seat or office for an unsuccessful candidate, alleging that he had a majority of lawful votes”, In other words, the petitioner is not expected to be a candidate in the election. That was not the position in the instant case because the petitioner was the candidate. The decision in Neil & Ors. v Bally (1874) L.R. 104 cited by Chief Williams. SAN is silent on the point whether the petitioners in that case were in fact candidates in the election even though the provisions of the 7th Rule in issue in the case were in pari materia with the aforesaid paragraph 16(1) of Schedule 6 to the Decree. The Tribunal was therefore in error when it held that paragraph 16(1) of Schedule 6 was breached and accordingly expunged evidence erroneously believed to have been admitted in breach of the provision of that paragraph 16 of the Schedule 6.
The next question that arises therefore is whether there was in fact sufficient evidence on the record to support the contention that corrupt practices were proved at the election. It is now settled law that for a petitioner in an election petition to succeed in a petition founded on corrupt practices, he has to prove beyond reasonable doubt that the respondent personally committed the corrupt act or aided, abetted, counselled or procured the commission of the alleged act of corrupt practice. In Webber G. Egbe v. Gabriel Etchie (1955-56) W.R.N.L.R. 134.
Onyeama, Ag. J., as he then was, stated the requirement of the law as follows while interpreting similar provisions of electoral law:
“Charges of corrupt practices under the regulations are in the nature of criminal charges and in my view, ought to be proved beyond reasonable doubt. It is not sufficient to show that there are reasonable grounds to believe or suspect there have been corrupt practices.”
See also the recent decision of this court in Oyegun v. Igbinedion & Ors. (Suit No. CA/B/EP/49/92 delivered on 18/3/92) (1992) 2 NWLR (Pt.226) 747 where the above principle of law was followed.
In addition to the above requirement, it must also be established, where the alleged act was committed through an agent, that the agent was authorised to act in that capacity or granted general authority. The principle in this respect was well stated in Bala Keffi v. Zakari Isa & Ors. (1965) N.N.L.R. 17 where Hurley, C.J. held at pages 24-25 of the report:
“But Galadiman Pawa was the first respondent’s polling agent. As such, he was to act under a special authority of the respondent with reference to the election; but it was a special authority not a general authority. In threatening people in order to induce them to vote he was not acting under his special authority as a polling agent, and the first respondent is not to be deemed under section 78 to have committed the offence of undue influence as a result of what Galadiman Pawa did.”
The third requirement which the petitioner must prove is the effect the alleged corrupt practice or undue influence has on the outcome of the election. In this respect, the petitioner has to prove, for example, that if the votes scored through the acts of corrupt practice are deducted from the votes scored by the respondent, the result of the election would have changed. Or, as in the instant case, it must be proved that but for the pressure alleged to have been put on Urhobo electorates, the bulk of the Urhobo voters would have cast their votes for the petitioner.
The petitioner failed to adduce any evidence which established that the petitioner directly or indirectly through a general agent, committed any act of corrupt practice or undue influence. The circular letter (Exhibit C) alleged to have been issued by the Urhobo Action Committee inviting certain Urhobos to a meeting failed to pass the tests enunciated above. Similarly, evidence of alleged malpractices given were not linked to the respondent. The appellant therefore failed to prove any act of corrupt practice or undue influence against the respondent directly or against any of his duly authorised agents as required by law. The tribunal was therefore right in dismissing the petition.
On the issue of the wording of the petitioner’s prayer and its being struck out by the Tribunal, I have the privilege of reading the draft of the judgment just read by my learned brother, Awogu, J.CA, I agree with his reasonings and conclusions on that issue and other issues. I accordingly dismiss the appeal and make the same orders as to costs.
OGEBE, J.C.A.: I was opportuned to read in draft the lead judgment of my learned brother Awogu, J.C.A just delivered and I am in complete agreement with his reasoning and conclusions.
I am of the view that the Tribunal was being too technical when it struck out the petition on the ground that the prayer was incongruous and incompetent.
Evidently, the wording of the prayer was inelegant, but in a sensitive matter such as an election petition, a petitioner who otherwise has a good case should not be shut out by undue regard to technicality.
Be that as it may, on the merit of the petition, while the petition made beautifully worded allegations of corrupt practices, the evidence produced in support thereof was most unreliable. Most of the witnesses, if not all the witnesses, for the petitioner were avowed offenders who confessed to the tribunal various offences committed by them against the electoral laws of the land by corrupting or trying to corrupt the electoral process, In my view, therefore, the Tribunal rightly rejected the evidence of these witnesses.
Accordingly, I too dismiss this appeal and affirm the decision of the Tribunal. I also abide by all the consequential orders including orders as to costs made in the lead judgment.
Appeal dismissed.
Appearances
Kehinde Sofola, SAN (with him, A, Ochei, K. E. Ossai, H. Eruomiavwo and A. Sulu-Gambari) For Appellant
AND
Chief F.R.A. Williams, SAN(with him, Dr. Mudiaga Odje, SAN, G.M. Ibru,
U. Itua, Dr. J. O. Akpojaro, E. E. Osifo, E.A. Chukwura, T. E. Williams, C.
Ahoja, T. Osisi and G. O. Boyo)
Vincent Adaikpoh, Esq., Attorney-General of Delta State. (with him, R. N.
Pemu(Mrs.), Solicitor-General, Delta State, A. Uzoka, Assistant Chief
Legal Officer, Ministry of Justice, Delta State and S. O. Onakpoghere, Legal
Officer, Ministry of Justice, Delta State) For Respondent
