3PLR – ABENGOWE & ANOR. V. WACHUKU & 2 OTHERS
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]
ABENGOWE & ANOR.
V.
WACHUKU & 2 OTHERS
THE SUPREME COURT
3PLR/1955/2 (HC)
OTHER CITATIONS
______________________
ELECTION LAW/MATTERS:- Election Petition – Spoilt and invalid ballot papers – Grounds for invalidating elections – Breach of regulations by presiding officer –How treated
ELECTION LAW/MATTERS:- Breach of election regulations by election officers – When would lead to cancellation of election outcome – Nature of non-compliance required to invalidate an election
______________________
BEFORE: MBANEFO, J.:
BETWEEN
- WACHUKU ABENGOWE
- OKOLO AMOBI
AND
- J. A. WACHUKU
- S. W. UBANI-UKOMA..
- G. W. THOM
REPRESENTATION
Udoma for 1st and 2nd respondent.
Briggs, Attorney-General for 3rd respondent.
MAIN ISSUES
INTERPRETATION OF STATUTES:- Elections (House of Representatives) (General Provisions) Regulations; 1954-Elections (House of Representatives) (Eastern Region) Regulations, 1954
MAIN JUDGMENT
MBANEFO, J.:
This is a petition brought under the Elections (House of Representatives) (General Provisions) Regulations, 1954 questioning the result of the election held in Aba Division on the 10th day of November, 1954 under the above-named Regulations. The election was to elect two members to represent the Aba Division in the Federal House of Representatives.
The petitioners were not candidates but voters who voted at the election. There were altogether four candidates at the election namely:
- Mr J. A. Wachuku,
- Mr S. W. Ubani-Ukoma,
- Mr S. I. Irondi and
- Mr M. E. Iwe.
The votes cast at the election were declared as follows:
Mr J. A. Wachuku………….. 43,875 votes
Mr S. W. Ubani-Ukoma……. 41,613 votes
Mr S. I. Irondi……………… 28,372 votes
Mr M. E. Iwe……………….. 26,041 votes
Mr. J. A. Wachuku and Mr S. W. Ubani-Ukoma the 1st and 2nd Respondents respectively in this petition were on the above figures declared duly elected and their election has been called in question in this petition. The 3rd Respondent is the Electoral Officer for the Aba Division which is an electoral district within the meaning of the Regulations governing the election. The Electoral Officer is responsible for the supervision and conduct of the election within the electoral district.
By paragraph 3 (2) of their petition the petitioners say that the result of the election as set out above was not a true result on the grounds:
(a) that the election was avoided by corrupt practices or offences against the Regional Regulations or the above-quoted Elections (House of Representatives) (General Provisions) Regulations, 1954.
(b) That the 1st and 2nd Respondents were not duly elected by a majority of lawful votes at the election.
The Regional Regulations referred to are the Elections (House of Representatives) (Eastern Region) Regulations, 1954. In and for the purpose of this judgment the Elections (House of Representatives) (General Provisions) Regulations, 1954 will be referred to as the “General Regulations, 1954”, and the Elections (House of Representatives) (Eastern Region) Regulations will be referred to as the “Eastern Region Regulations, 1954”. In paragraphs 3 (3) to 3 (11) of the petition are set out the facts relied upon by the petitioners in support of the grounds mentioned in paragraph 3 (2) above. It is necessary therefore to set out those facts in full and they are:
“Para. 3 (3): “Some of the 36 boxes belonging to the National Council of Nigeria and the Camerons of which Messrs S. I. Irondi and M. E. Iweh are members were broken and the ballot papers therein tampered with”.
Para. 3 (4): “Some ballot papers which were not marked with the letter V were discovered in the ballot boxes for the respondents”.
Para. 3 (5): “Eight ballot boxes belonging to the first respondent contained unmarked ballot papers”.
Para. 3 (6): “During the course of counting the votes ballot papers were discovered in rooms and other parts of the premises of Messrs Mandilas and Karaberis, Aba”.
Para. 3 (7): “The polling agents of Messrs S. I. Irondi and M. E. Iweh were not allowed to serve in rural areas”.
Para. 3 (8): “Some of the ballot boxes were not checked by the Electoral Officer before counting the votes”.
Para. 3 (9): “At Umuaro the pictures of the candidates of the National Council of Nigeria and the Cameroons, Messrs S. 1. Irondi and M. E. Iweh, were removed from the ballot boxes”.
Para. 3 (10) “In some polling stations some returning officers influenced voters to vote against the National Council of Nigeria and the Cameroons candidates”.
Para. 3 (11): “Some ballot papers were found burnt and partially burnt at the premises of Pioneer Oil Mills (E.R.P.D.B.), Aba”.
Nothing is pleaded or given in evidence to support the allegations of corrupt practices and Counsel for the petitioners in his final address did not, as indeed he could not on the evidence, rely on that ground.
Before examining the evidence it may be necessary to deal at this stage with the grounds on which in law an election could be avoided. Section 36 (1) of the General Regulations, 1954 provides that an election may be questioned on any of the five grounds therein set out. For the purpose of this petition only two of those grounds are relevant, namely:
“36 (1) (b): that an election was avoided by corrupt practices or offences against the Regional Regulations or these regulations and
36 (1) (d): that the person whose election is questioned was not duly elected by a majority of lawful voters at the election.”
An election may be avoided on either of these two grounds. Regulation 42 (1) of the same regulations provides that subject to the express provisions of those regulations an election shall not be invalidated by reason of non-compliance with the regulations if it appears to the court having cognisance of the question that the election was conducted substantially in accordance with the principle of those regulations, and that the non-compliance did not affect the result of the election. The principle of those regulations is election by ballot. Regulation 42 (1) is in essence a re-enactment of section 16 (3) of the English Representation of the People Act 1949 which like the other Acts which preceded it gives statutory recognition to the Common Law principle upon which elections may be invalidated. This common law principle was stated by Kennedy J. in Islington West Case (1) in the following terms:
“An election ought not to be held void by reason of transgressions of the law committed without any corrupt motive by the returning officer or his subordinate in the conduct of the election where the court is satisfied that the election was notwithstanding those transgressions, an election really and in substance conducted under the existing election law, and that the result of the election, that is the success of one candidate over the other was not and could not have been affected by those transgressions. If on the other hand the transgressions of the law by the officials being admitted, the court sees that the effect of the transgressions was such that the election was not really conducted under the existing election laws, or it is open to reasonable doubt whether these transgressions may not have affected the result, and it is uncertain whether the candidate who has been returned has really been elected by the majority of persons voting in accordance with the laws in force relating to elections the court is then bound to declare the election void”.
In Woodward v Sarsons (2) a case stated by Lush, J. for the opinion of the Court of Common Pleas the following two questions amongst others were submitted to the Court for decision:
(1) What is the true statement of the rule under which an election may be avoided by the common law of Parliament?
(2) Whether a breach of the Ballot Act can, as such, be a ground for avoiding an election. Delivering the judgment of the Court, Coleridge C. J. said with respect to the first question:
“As to the first, we are of opinion that the true statement is that an election is to be declared void by the common law applicable to parliamentary elections, if it was so conducted that the tribunal which is asked to avoid it is satisfied, as matter of fact, either that there was no real electing at all or that the election was not really conducted under the subsisting laws.”
As regards the second point His Lordship says:
“If this proposition is closely examined it will be found to be equivalent to this: that the non-observance of the rules or forms which is to render the election invalid must be so great as to amount to a conducting of the election in a manner contrary to the principle of an election by ballot and must be so great as to satisfy the tribunal that it did affect or ought to have affected the majority of the voters, or in other words, the result of the election”.
Regulations 36 (1) (d) and 42 (1) of the General Regulations, 1954 are statutory enactments embodying the above stated principles of the common law. The passages quoted above will therefore be helpful in interpreting and applying these regulations.
In support of their case the petitioners called altogether eight witnesses including the 1st Petitioner. The principal points on which they led evidence and rely are:
(a) That 36 ballot boxes were broken.
(b) That some ballot papers had not the official mark (the letter “V”) stamped on them.
(c) That some ballot papers were found in the premises of Messrs Mandilas and Karaberis and of the E.R.P.D.B. in Aba.
(d) That John Ukaibe one of the supporters of Mr Irondi was beaten by a crowd of people after he had voted.
I shall now proceed to deal with the evidence on each of these points.
Mr Onuchima who, it is admitted, was one of the counting agents appointed for Mr Irondi and Mr Iwe said he was at the Catholic Mission School which was used as the counting centre when the ballot boxes were being brought in after polling at about 7 p.m. on the 10th November, 1954, and that he counted 36 boxes that were broken and the votes taken away. He said that 18 of the boxes belonged to Mr Irondi, 15 to Mr Iwe, and 3 to Mr Wachuku. Mr Irondi said that he saw 36 broken boxes and that Mr Onuchima complained to Mr Thom (the Electoral Officer) who told him that the boxes should be checked after the votes had been counted.
Mr Thom in his evidence said that 218 ballot boxes were issued for each candidate and that 52 of them were, for various reasons not relevant here, not used at the polling stations. 205 boxes were used for each candidate. Of these, 203 boxes for Mr Irondi, 202 for Mr Iwe, 203 for Mr Ubani-Ukoma and 203 for Mr Wachuku contained votes. The total number of boxes that did not contain any votes therefore was nine: 2 each for Mr Irondi, Mr Ubani Ukoma and Mr Wachuku and 3 for Mr Iwe. Mr Thom said he had a list of votes for every box issued for each candidate and that some boxes contained as few as one vote. He said that in some areas the electors would not vote for certain candidates. He said he noticed that some of the boxes were broken but that those broken did not exceed 12 in number. Some of the broken boxes had a split across the top and others had the lid half broken. He said that it was after the election was over that he first heard that there were 36 broken boxes.
As between Mr Onuchima and Mr Thom I accept Mr Thom’s evidence. Mr Onuchima is not only interested in the result of the election but is the agent of one of the candidates who lost. He could not even in the witness box disguise his bias and one had the impression that he was exaggerating. Although he was appointed a counting agent he said he did not know that Mr Irondi’s and Mr Iwe’s. votes were all counted in the night of the 10th. Mr Irondi and Mr Okoronkwo and Mr Thom confirmed that they were. Mr Thom said that the boxes got broken owing to vibration and rough handling when they were being collected and brought in from the polling stations. A sample ballot box was brought before the court. It is a cube of 1 foot with a slot in the centre of the lid. I am not impressed by the suggestion that the boxes were broken by vibration but they were likely to have been broken through rough handling throwing them into the lorries instead of quietly putting them inside-in the course of collecting them from the polling stations. There were 48 polling stations and altogether 872 boxes. It is not surprising that some of them would arrive at the collecting centre in an unwholesome state. Mr Osadebay has suggested that some of the presiding officers in the course of bringing the boxes to the collecting centre deliberately broke them and took away the ballot papers in order to make Mr Irondi and Mr Iwe lose.
There is no title of evidence to support this accusation which I consider not only unfounded but reckless. The distribution of used empty boxes is fairly even amongst the four candidates and I have no evidence that any ballot papers were ever put in any of the empty boxes or that any box containing any ballot papers was broken and the ballot papers inside taken away. There is no evidence that any ballot papers were seen lying about in the lorries. I am asked to assume that the boxes contained ballot papers, that the ballot papers were taken away and that the losing candidates lost thousands of votes thereby. I cannot on the evidence before me make that assumption. The onus is on the petitioners to prove what they allege. They have not established satisfactorily that 36 ballot boxes were broken or that the ballot boxes that were broken whatever their number contained ballot papers or that any of the candidates lost any votes by the fact that the boxes were broken.
Mr Onuchima also said in his evidence that he noticed a number of ballot papers that had no official mark stamped on them. He said he classified these and found that 849 belonged to Mr Ubani-Ukoma and 2,356 to Mr Wachuku. Mr Irondi confirms this but was unable to give the exact number of such ballot papers which belonged to Mr Wachuku. He said they were over 2,000. Mr Thom said that on the night of the 10th November when Mr Irondi’s votes were being counted it appeared that a large number of the ballot papers containing votes cast for him were being put aside as invalid either because they contained ink spots or marks to identify the voter or had not the official mark on them. Mr Thom said that, when Mr Irondi’s agents saw that the number of invalid ballot papers out of Mr Irondi’s boxes was becoming so many, they complained to him that the regulation was being applied too strictly, and that, as a result, he called the candidates together. All the candidates came except Mr Wachuku who was represented by his agent, and at that meeting they agreed that all the invalid ballot papers should be taken into the count, and so they were included in the count. I do not agree that the candidates could by any such agreement circumvent the electoral regulations. The election is meant to be carried out in accordance with the regulations and there can be no contracting out of the regulations. I have no evidence as to how many such ballot papers contained votes for Mr Irondi or Mr Iwe. Whatever their number, the number should have been deducted from the figures given above. But even if the figures remain as they are and Mr Onuchima’s evidence as to the numbers of invalid ballot papers containing votes for Mr Wachuku and Mr Ubani-Ukoma were accepted and the votes deducted from the numbers of the votes declared for Mr Wachuku and Mr Ubani-Ukoma, they would still have substantial majorities in their favour. Mr Wachuku would still have a majority of 13,147 (instead of 15,503) over Mr Irondi and 15,478 (instead of 17,734) over Mr Iwe and Mr Ubani-Ukoma would have a majority of 12,392 (instead of 13,241) over Mr Irondi and 14,723 (instead of 15,572) over Mr Iwe. It is clear that the number of such invalid ballot papers assuming they were never taken into the count, would not have made any difference to the result of the election.
It is admitted that a number of ballot papers were found in the premises of Mandilas and Karaberis and of the E.R.P.D.B. Mr Stoodley engineer of the firm named, gave evidence in respect of those found in the premises of the firm. He said that he was the presiding officer for the polling station at Okpuala Ngwa and that the number of voters on the register was 6,000. He said that in the course of the voting his attention was called to some ballot papers which were lying on top of the ballot boxes and on the ground. Some voters instead of putting the ballot papers in the ballot boxes left them on top or threw them on the floor. Mr Stoodley said he collected all such ballot papers. By regulation 24(4)of the Eastern Region Regulations, 1954 an elector shall secretly record his vote or votes by placing his ballot paper or papers in the ballot box or boxes of his choice. Ballot papers left on top of the box or on the floor are invalid and should not be regarded. Mr Stoodley said that he put the ballot papers he collected from the floor and on top of the ballot boxes in his car and at the close of polling took them to the Catholic School Hall to hand them over to Mr Thom but that when he arrived Mr Thom was very busy and he, feeling very faint as he had been at the polling station from 7 a.m. and it was then 8.30 p.m., took the papers home. On the next morning he told his boy to take the papers out of his car before the car was sent to the garage for servicing. The boy took out some of the papers but in the course of servicing the car more of the papers were found, The matter was reported to Mr Thom and he went to the garage and ordered the papers to be collected.
The same explanation was given in respect of the ballot papers found in the premises of the E.R.P.D.B. by Mr Russell, another presiding officer, who said they were papers he had collected from the floor of the rooms or booths where the ballot boxes were kept during the polling and that he put them in his pocket and forgot to hand them over.
Regulation 28 (2) of the Eastern Region Regulations, 1954 says that a ballot paper account shall be prepared by the presiding officer showing the number of:
(a) the ballot papers entrusted to him
(b) the spoilt ballot papers
(c) the unused ballot papers
(d) the returned ballot papers and
(e) the tendered ballot papers.
The ballot papers account is submitted to the Electoral Officer with packets containing the different ballot papers classified as above. Regulation 18 of the General Regulations, 1954 provides that the Chief Electoral Officer shall ensure the safe custody of all documents relating to the conduct of elections and cause the same to be destroyed upon the expiration of six months. Mr Stoodley and Mr Russell have not observed the provisions of these regulations with respect to these spoilt ballot papers. What then would be the consequence of such non-observance? There is no evidence nor is it part of the Petitioners case that their failure to observe the letter of the regulation was corrupt or wilful. If it had been, that would have been sufficient ground for avoiding the election. Counsel for the Petitioners has submitted that mere non-observance of a provision of the regulation automatically renders the election void. On the authorities referred to above and in particular Woodward v Sarsons (2) that is not the law. To render the election void it must appear that the non-observance was such that there was no electing at all or that the election was not conducted in accordance with the principles of an election by ballot or that it would have affected the result. It is not established that the ballot papers found at Mandilas and Karaberis and the E.R.P.D.B. came out of a ballot box though that is the suggestion. Mr Thom said that if the ballot papers had been handed to him he would not have included them in the count, and so indeed it would be under regulation 24 (4) of the Eastern Region Regulations, 1954 referred to above. In Woodward v Sarsons (2) 294 votes were spoilt by the mistake of the presiding officer, but they would not if admitted have turned the scale against the successful candidate and the court held that it did not invalidate the election. In East Clare (3) two of the polling places were closed for two hours by the presiding officers while they went to have lunch, and in one of the polling places the presiding officer had by a bona fide mistake omitted to detach the voting paper from the counterfoil in 195 cases and the votes were thereby rendered bad. It was held that that did not render the election void. In the course of his judgment O’Brien, J. said
“I think that these mistakes, although undoubtedly large, fall within section 13 of the Ballot Act 1872 and that the election ought not to be declared invalid in consequence of this”.
Section 13 of the Ballot Act is the same as regulation 42 (1) of our General Regulations, 1954 and although it was repealed in the subsequent Acts it was re-enacted in the Representation of the People Act 1949 and the interpretation put on it has remained valid to this day; and the principle applies with equal force to this case. I hold therefore that the presence of these spoilt ballot papers in the premises of Mandilas and Karaberis and the E.R.P.D.B. and the failure of the presiding officers to hand them over to the Electoral Officer does not and cannot invalidate the election.
I now come to Ukaibe who, the petitioners say, was beaten after he had voted. This was not one of the grounds mentioned in the petition and Mr Osadebay in his final address did not rely on it. Even assuming that it had been properly pleaded and relied on and that I believe the evidence (about which I must confess I had considerable misgivings) I could not have invalidated the election on that ground. In the Staleybridge Case (4) it was held that, in order to avoid an election on the ground of intimidation or undue influence, either it must be shown that the rioting or violence was instigated by the member or his agents for whom he is responsible, or it must be shown that it was of such an extent as to prevent the election being an entirely free election. The assault in this case, if the evidence is believed, was an isolated incident by a crowd of people none of whom has been identified, and there is no evidence that the assault had the effect of preventing, anybody from voting or voting freely. As I have said I had considerable misgivings about the evidence on this point. There were Police Constables at this particular polling station. Ukaibe said he did not report to any of them. He said he rode to Aba Police Station and complained but that the Police refused to record his complaint.
I am not convinced on the evidence that he was assaulted as he alleged. He said he went to the polling station about 3 p.m. The witness Ugoji who said he saw the assault went there at 11 a.m. Both Ukaibe and Ugoji are teachers working under Mr Irondi.
It remains to consider whether the cumulative effect of the irregularities which 1 have found above could render the election void. After making the deductions about the invalid votes the majorities for Mr Wachuku and Mr Ubani-Ukoma over their nearest challenger were 13,174 and 12,392 respectively. These are considerable and one would have to be satisfied that the irregularities would have the effect of reversing the majorities. I am not satisfied that taken individually or collectively they would have that effect.
Accordingly I hold that the election of Mr Wachuku and Mr Ubani-Ukoma has not been invalidated.
Costs assessed at 50 guineas to each respondent.
Petition dismissed.
