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BRETT AND TAYLOR, F.J.J
COKER, ACTING F. J.
Chief F. R. A. Williams, Q.C. (with him O. B. Akin-Olugbade) for the appellant.
Obi Okoye for the respondent.
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Eleanya Kalu, Eleanya Ugochi Vine]
Legislation-Eastern Nigeria Elections (House of Assembly) Regulations, 1961,
Election Petitions-Burden of proof. – petitioner’s; when shifting to respondent Poll opening very late without notice. Appeal by successful candidate:
BRETT, F.J.:-The appellant was the successful candidate at the election for the Eastern House of Assembly held on the 16th November, 1961, in the Calabar West constituency. The respondent was the only other candidate, and the appellant was returned as elected by a majority of 183 votes. The total number of registered voters seems to have been 34,662, and the returns showed 14,741 valid votes as having been given, a proportion of roughly 3 in 7. The respondent brought an election petition challenging the return, and Idigbe, J., gave judgment on the petition, declaring the election of the appellant invalid. The present appeal is brought against that judgment.
The petition alleged various irregularities which were said to have affected the result of the election, and concluded with a general allegation that the appellant had been guilty of corrupt practices and that he had not been elected by a majority of lawful votes. No further particulars of these general allegations were asked for, and Mr. Obi Okoye, for the respondent to this appeal, submits that in view of regulation 32 of the House of Assembly (Disputed Seats) Regulations, 1961, he is entitled to rely on the unlawfulness of any votes of which evidence was given, where the evidence warrants it, even though the petition did not specify those votes as not being lawful ones. For reasons which will appear, I do not think it is necessary, for the purposes of this appeal, to determine this question and I express no opinion on it. As regards corrupt practices, the judge expressly found that none had been proved, and this is not disputed.
It will also be convenient at this stage to deal with the general burden of proof in an election petition. Mr. Obi Okoye cited to us a passage from the judgment of Streatfield, J., in re Kensington North Parliamentary Election  2 All E.R. 150, in which he said:-
“The question of the burden of proof does not, on the strict wording of s. 16, really arise. If it did arise, it seems that, under the wording of the corresponding section of the Ballot Act, 1872, the burden rested on the respondent: see Islington, West Division, Case, Medhurst v. Lough and Gasquet. I think that with the changed wording under s. 16 (3) of the Act of 1949 it is for the court to make up its mind on the evidence as a whole whether there was a substantial compliance with the law as to elections or whether the act or omission affected the result.”
I have two comments to make on that. The first is that I think the context of the passage makes it clear that Streatfield, J., was not considering the burden of proof on the question, whether irregularities had taken place, but on the question, whether, if they had taken place, they affected the result of the election. The second is that the Kensington North case was one of a number of cases cited to this court in Akinfosile v. Ijose (1960) i F.S.C. 192, where the court held that a petitioner who alleges in his petition a particular non-compliance and avers in his prayer that the non compliance was substantial must so satisfy the court. If there should be any inconsistency between the two decisions, it is the decision of this court that binds us, and it would appear to me that we are bound by the authority of Akinfosile v. Ijose to hold that the petitioner must show both that irregularities took place and that they might have affected the result of the election. I shall consider the burden of proof on a particular issue later.
To conclude the points of law which were discussed before us, Mr. Obi Okoye relies on the judgment of Grove, J., in The Borough of Hackney (1874) 31 L.T. Rep. 69, as authority for saying that an irregularity which affects the size of the majority by which the successful candidate is elected is always sufficient ground for annulling the election. On the view which I take of the facts the question does not arise in the present appeal, and I will only say that if Grove, J., meant to lay down a general rule the rule was not followed in the Kensington North case, which was approved on the point by this court in Sorunke v. Odebunmi (1960) 5 F.S.C. 175.
Voting in the constituency was conducted at 85 polling stations in all, and the petition alleged irregularities at 11 of them. In a long and careful judgment, the trial judge found that irregularities had been proved at 7 stations, but he did not regard the irregularities at stations l, 2 and 3 as proved at stations 3A, 6, 22 and 23. As regards stations 3A and 6, the petition alleged as follows-
“Contrary to advertised places of polling, station 6 was removed to another site in the morning of 16th November, without prior notice. Station 3A had been cancelled with instruction that voters there would vote in station 10. But the voters who were scheduled to vote in station 3A were turned out at station 10. In consequence many voters for stations 6 and 3A did not cast their votes. These were Petitioner’s strong-hold.”
The evidence in support of the petition was that station 3A was to have been opened at the U.P.E. School, Isong Inyang, and while there was no direct evidence on the point the court was asked to infer that no station 3A was opened there or elsewhere, although forms were completed showing 96 votes cast for the appellant and 8 for the respondent at station 3A. The judge regarded it as doubtful on the whole of the evidence whether a station was ever established at the U.P.E. School, and whether the votes shown on the return were genuine votes. Having regard to the burden of proof, I do not consider that this finding warranted the judge in basing the declaration in part on his findings as to station 3A, and in my opinion Mr. Obi Okoye, who appeared for the respondent in the appeal, was right in abandoning his attempt to support the judgment so far as it rested on this finding.
Two polling stations, nos. 5 and 6, were to have been established at the U.P.E. School, Ukim Ita, but a Mr. E. E. Cole, who was the principal candidate’s agent for the petitioner, said that he visited the place and found only station 5
Opened there. He added that later he found that station 6 was established in a village called Ikot Inyang, two miles away. Here again returns were made showing that 127 votes were cast at station 6, out of a total of 213 registered voters, and describe the station as Ukim Ita II. For the appellant Chief Williams invites us to say that the number of votes cast tends to discredit Mr. Cole’s story; Mr. Obi Okoye, on the other hand, is prepared to go to the length of submitting that the returns are fraudulent, and that no votes at all were cast at station 6, wherever located. It is certainly worthy of comment that the person who signed the return Exhibit E.17 as agent for the petitioner does not bear the name of either of the polling agents nominated by her for station 6, but the trial judge was content to accept Mr. Cole’s evidence and hold that station 6 was established, though in a place other than that advertised, and I should not be prepared on the evidence to say that he was wrong in declining to hold that any greater irregularity than that took place.
Accepting Mr. Cole’s evidence as he did, the judge held not only that certain voters had been deprived of the opportunity of voting, but that the votes cast at a station established in the wrong place were not lawful votes. I do not consider that the appellant has shown that the judge was mistaken in accepting Mr. Cole’s evidence, and I agree that the change of the place of station 6 may have deprived a certain number of voters of the opportunity of voting, though the proportion of votes cast to registered voters in that station seems to be above the average for the constituency. I should wish to hear further argument before accepting the view that the votes actually cast are not to be regarded as lawful votes, but it is unnecessary to decide this question, since the majority of 61 obtained by the appellant at station 6 was less than his majority in the constituency as a whole, and might be deducted without affecting the final result. The appeal must turn, in my opinion, on the correctness of the judge’s findings as to stations 22 and 23.
These two stations were both established at the Town School, Adiabo, and the petition alleged that polling at them commenced at 12.15 noon and closed at 4 p.m., instead of the advertised times of 8.30 a.m. and 4.30 p.m., and that in consequence many voters were unable to cast their votes. In fact from a combined electoral roll of 898, 238 votes were cast, which is less than 2 in 7, and considerably below the average for the whole constituency, and if the allegation that the stations were not open for the required period is true the irregularity is certainly one which might have affected the result of the election. The evidence showed that in this part of the constituency the polling boxes and polling tickets were to be distributed to the various polling stations on the day of the election by a Mr. L. E. Nya, who was to be assisted by a Mr. Inyang.
Mr. Nya was called as a witness by the appellant. Each of these two persons was responsible for the distribution to various stations, and stations 22 and 23 were allocated to Mr. Nya, but on the afternoon before election day Mr. Nya discovered that through some error only two out of the four boxes for stations 22 and 23 had been sent to him, and that the other two boxes, and the polling tickets, had been sent to Mr. Inyang. He saw Mr. Inyang later that evening, and it is to be presumed that he told him of this. At all events, Mr. Nya set off from Creek Town to distribute his materials at 5.15 a.m., and arrived at Adiabo at 8.10 a.m. He delivered the materials he had, but polling could not start until Mr. Inyang arrived with the other two boxes and the tickets, and the question is when Mr. Inyang did arrive there. According to Effiong Essien Akpa, a customary court messenger who was employed about the station to search prospective voters,
Mr. Inyang did not arrive until about 12.15 p.m. Mr. Cole said he visited the place at about 11 a.m., and found that polling had not yet started. Lance-Corporal Raphael Okpara of the Nigeria Police said that he accompanied Mr. Inyang on his round and that after starting from Akpap Okoyong at about 8 a.m. they arrived at Adiabo at about noon, when polling had not started. Mr. Nya arrived there a second time at about 12.30 p.m. with Mr. Cole, who had complained to him about the late starting, and what he described is consistent with polling having only just started.
No evidence was called to contradict this and in my view the only possible conclusion from the evidence called was that polling did not start at stations 22 and 23 until about noon. Without necessarily accepting the estimates given by various witnesses of the numbers of voters present at different times, I also think it was sufficiently proved that a substantial number of voters had grown tired of waiting and gone away before the poll opened. Of the two witnesses as to when the poll closed, the only one whom the judge thought worthy of credit was the court messenger, Akpa, who said that at 4 p.m. “one Mr. Nya asked the presiding officers to close polling”. The only Mr. Nya mentioned in the evidence is Mr. L. E. Nya, and he was not asked about this by counsel for either party. Mr. Ekpe, the polling agent for the petitioner, whom the judge thought unreliable, agreed as to the time of closing but said that he did not see Mr. L. E. Nya at Adiabo at the time the stations were closed. There is a certain improbability about the details of the story, particularly as Akpa says that when the stations were closed there were about 50 people actually inside the stations waiting to vote, and it becomes important to decide where the burden of proof lies, and what it is that has to be proved.
Regulation 34 of the Elections (House of Assembly) Regulations, 1961, reads as follows:-
“The hours fixed for the taking of the poll shall normally be from 8.30 a.m. to 4.30 p.m. but shall be a period of not less than 8 hours and subject to Regulation 56 shall be a continuous period; and varying periods may with the approval of the Electoral Commission be prescribed in respect of different constituencies.”
The advertised hours at all polling stations on the day in question were 8.30 a.m. to 4.30 p.m., but Mr. Nya said that he had instructed the presiding officers of the stations which opened late that they were to remain open for eight hours and Chief Williams submits that there is a presumption of regularity, which the petitioner failed to rebut, the more so as it would be an offence punishable under regulation 78 for an officer to be guilty of an act or omission in breach of his official duty without reasonable cause. The expression “presumption of regularity” is, if I may say so, one which lends itself to imprecise usage, and I see no warrant in the Evidence Act or elsewhere for any presumption that stations 22 and 23 remained open until 8 p.m., an hour or more after dark. In my opinion, once the petitioner had shown that polling started nearly four hours late the burden was on the appellant to show that the poll remained open for eight hours if he wished the court so to find, and it is not pretended that he made any attempt to discharge this burden. But that would not have concluded the matter. Even if the appellant had proved that the stations were open for eight hours, from noon to 8 p.m., the court would have had to consider the circumstances prevailing in that polling area and decide whether, after such a departure from the advertised hours of polling, made without previous notice, it could be said that the election was conducted substantially in accordance with the regulations, or that the non-compliance did not affect the result of the election. It is useless to keep the poll open for eight hours if the voters do not know, and have no means of finding out, what the hours during which it will be open are to be. While it may be a question of some nicety, how much persistence a voter is expected to show, people wishing to exercise their constitutional right of voting cannot reasonably be asked to neglect their other affairs indefinitely while waiting for the poll to open, and I do not consider that a voter who had lost patience by 11.30 a.m. and gone away, with no information as to when polling was likely to start, could be expected to make another visit to the polling station later in the day in case the poll should be open. Chief Williams, wisely perhaps, did not touch on this aspect of the question, which would seem to me to be fatal to the appeal.
On these grounds I would uphold the finding that a substantial irregularity was proved in relation to stations 22 and 23, and I would dismiss the appeal with costs assessed 40 guineas.
TAYLOR, F.J.: I concur.
COKER, Ag. F.J.: I concur.