Andrew Bassey Vs Ekpo Archibong Young (1963)

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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 Stratified, J., in re Kensington North Parliamentary Election [1960] 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 con of the passage makes it clear that Stratified, 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) 1 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 1, 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.