NWOBODO V. ONOH & ORS

• Pages: 1-80

NWOBODO V. ONOH & ORS.

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NWOBODO V. ONOH & ORS.

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CHIEF IFEANYICHUKWU NWOBODO

APPELLANT

V

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1. CHIEF CHRISTIAN CHUKWUMA ONOH

2.

CHIEF FEDERAL ELECTORAL OFFICER

RESPONDENTS

FOR ANAMBRA STATE, (Mr. E.C. Ejeh)

3.

THE RETURNING OFFICER

(Mr. E.N. Mbonu)

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SUIT NO. SC 96/1983

SUPREME COURT OF NIGERIA

SOWEMIMO,

C.J.N.

IRIKEFE,

J.S.C.

BELLO,

J.S.C.

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OBASEKI,

J.S.C.

ESO,

J.S.C.

NNAMANI,

J.S.0

UWAIS,

J.S.C.

6th January, 1984

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Constitutional Law - Election petitions - Jurisdiction - Competence of election

petition panel to entertain petition notwithstanding (a) Interlocutory order made

by Chief Judge sitting alone before constituting panel; (b) Petitioner's late

compliance with order for security - Competence of Chief Judge to hear

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petition sitting alone - Validity - Petition alleging falsification of results and

inflation of figures - Standard of proof - Parties - Non joinder - Deputy

returning officers deemed respondents under s.121 of Electoral Act 1982.

Evidence - Documentary Evidence - Statement of results of poll prepared and

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signed by electoral officials in multiple 'copies' and issued to candidates or

polling agents - Admissibility as primary evidence and as admissions.

ISSUES:

1.

Whether the Chief Judge of a State sitting alone has jurisdiction to grant

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interlocutory orders for security for costs and for substituted service.

2.

Whether a petitioner's late compliance with an order for security can preclude

the hearing of the petition.

3.

Whether section 147(5) of the Electoral Act can cure an irregularity consisting

of a mere lapse in complying with the strict provisions of s.127(1) of the same

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Act.

4.

Whether statements of results of polls prepared and signed by electoral officers

in multiple copies are admissible as primary evidence.

5.

Whether there is a presumption in favour of the correctness and authenticity of

election results and how may such presumption be rebutted where a crime is

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alleged.

6.

What is the effect of section 137(1) of the Evidence Act where the commission

of a crime is the basis of an election petition.

7.

Whether the doctrine of severance of pleadings applies to s.137(1) of the

Evidence Act where a crime has been alleged in an election petition.

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NIGERIAN SUPREME COURT CASES

[1984] N.S.C.C.

8.

Whether it is the function of "further and better particulars" to amend the

pleadings in a case.

9.

When does section 137(1) of the Evidence Act actually become applicable in

an election petition involving an allegation of crime.

FACTS:

The appellant was one of the gubernatorial candidates to the governorship of

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Anambra State in the election held on the 13th of August, 1983. He lost to the re-

spondent, and being dissatisfied with that state of affairs, filed an election petition

on the 17th of October, 1983. He first obtained, by an

ex parte

motion, an order

for security for costs and for substituted service from the Chief Judge of Anambra

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State sitting alone. Finding the treasury closed on the day of filing the petition, the

appellant was obliged to deposit his security the following day. Thereafter, the

Chief Judge, pursuant to his powers in that behalf, conferred by s.119 (3) of the

Electoral Act, empanelled an election court of 5 Judges of which he was a mem-

ber. At the hearing, the respondents took objection to the jurisdiction of the court,

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contending that there was no petition before the court as section 127(1) of the Elec-

toral Act had not been complied with as to the deposit of security for costs and

that the Chief Judge sitting alone, could not make the two orders afore- mentioned.

The court overruled the objection and held that it had jurisdiction. On the merits,

the court held (by a majority of 3 - 2) that the appellant had proved his case be-

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yond reasonable doubt having regard to the evidence, even in view of the allega-

tions of falsifications in the petitioner's averments. The court of first instance did

not think that the burden on the petitioner, even on the pleadings, was one beyond

reasonable doubt. The respondents appealed to the Court of Appeal which by a

majority judgment, allowed the appeal; holding

inter alia,

that copies of election

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results tendered by assistant returning officers were not primary evidence and were

therefore inadmissible. The court also held that the appellant had to prove his case

beyond reasonable doubt having alleged falsification in his petition which would

amount to an offence under s.105(e) of the Electoral Act. The appellant then ap-

pealed to the Supreme Court.

HELD:

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1.

That the provisions of the Constitution are clear that a Judge of the High Court

sitting alone has jurisdiction to entertain all matters relating to an election

petition, including conducting pre-trial proceedings and making any order

arising therefrom. He can also hear and determine the petition itself. The

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provisions of section 119(3) of the Electoral Act which empowers the Chief

Judge of a State to determine the number of Judges that shall constitute an

election court cannot derogate from the provisions of section 238 of the

Constitution. The orders made by the Chief Judge before the Election Panel

was constituted had constitutional backing which cannot be affected by section

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119(3) of the Electoral Act.

2.

That as to the issue of security, subsection (1) of section 127 of the Electoral

Act has two limbs. As regards the first limb, there can be no doubt that in the

absence of any extension of time or direction by the court, security must be

deposited in court at the time of filing the petition. In that event, a petitioner who

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fails so to deposit may be said to have failed to comply with the subsection.

The second limb however imperatively directs the petitioner to deposit the

security fixed by the court in a treasury. Since the treasury in Enugu is not situate

within the premises of the High Court where the petition was filed and having

regard to the amount of money involved, it would be physically impossible to

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comply with the two limbs of the subsection at the same time. A construction

to that effect would be absurd. The two limbs ought to be read disjunctively

and the words "at the time" limited to the requirements of the first limb, to enable

a petitioner comply with the second limb. The petitioner could not deposit the

NWOBODO V. ONOH & ORS.

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security on the day it was fixed because he found the treasury closed, but he

did so the following day, that was sufficient compliance with the subsection.

3. That even if section 127(1) of the Electoral Act is capable of the interpretation

put on it by the majority of the Court of Appeal that the security must be deposited

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

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at the time of filing of the petition, the failure to do so in the instant case was a

mere irregularity which is saved by the provisions of section 147(5) of the

Electoral Act.

4a.That all the documents in question (certificate of election results signed by

assistant returning officers) constituted admissions within the meaning of

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sections 19 and 20 of the Evidence Act and were relevant and admissible against

FEDECO and its representatives, i.e., all the respondents other than the first

respondent under section 23 of the Act.

4b.That the documents (certificate of results) signed by the returning officers were

primary evidence because they were signed as required by section 70,

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subsection (b) of the Electoral Act, 1982, before they were delivered to the

counting agents of the appellants and the officers of the National Security

Organisation. They became primary evidence in view of the signatures of the

returning officers, which were appended on them. See section 93 of the

Evidence Act by virture of which every part of a document executed in parts

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constitute primary evidence of the document. Therefore, the copies issued to

the appellants' witnesses which were tendered in the course of the proceedings

were admissible and the Federal Court of Appeal was in error to have

considered them as secondary evidence and inadmissible.

4c.That in spite of the description of the documents as "copies" in sections 62 and

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70 of the Electoral Act, and when all the circumstances under which the

documents were made are taken into account, it is legitimate to treat them as

primary evidence under section 93 of the Evidence Act. The trial court had wide

and unfettered jurisdiction under section 90 of the Evidence Act to admit them

as evidence of the results of the poll at the polling stations and collation centres.

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Section 91 of the Evidence Act takes care of the weight to be attached to such

documents.

5.

That there is in law, a rebuttable presumption that the results of any election

declared by the FEDECO is correct and authentic and the onus is on the person

who denies its correctness and authenticity to rebut the presumption. Where

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such denial is based on allegation of crime against FEDECO officials

responsible for the declaration of the results, the rebuttal must be proved

beyond reasonable doubt.

6.

That where in an election petition the petitioner makes an allegation of a crime

against a respondent and he makes the commission of the crime the basis of

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his petition, subsection (1) of section 137 of the Evidence Act imposes a strict

burden on the petitioner to prove the crime beyond reasonable doubt. If the

petitioner fails to discharge the burden, his petition fails.

7.

That the provisions of section 137(1) of the Evidence Act are, however, subject

to the principle of severance of pleadings which may be stated thus: If in any

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civil proceeding, the averments alleging a crime are severable and if after such

severance, there still remain in the pleadings of the plaintiff or petitioner,

sufficient averments devoid of criminal imputations against any party to the

proceedings and on which the plaintiff or petitioner can succeed in his claim

or petition; then the burden of proof upon the plaintiff or petitioner is to prove

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his case within the balance probability. The application of the section depends

on the contents of the pleadings in a particular case and each case should be

decided on its pleadings. When all the averments alleging crime are

disregarded in the instant case, what remained of the petition could not be

sustained having regard to the totality of evidence adduced by the parties.