Chief Akeuphel I. Sam V. Hon. Raphel Ekpelu & Ors (1999)

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IKONGBEH, J.C.A.

The only real issue involved in this appeal is one of fact. Did election hold in Ward 13 of Abua/Odua Local Government Area on 20/3/99 or did it not? Although the appellant framed five issues for determination, this is the only one on which the appeal can, having regard to the decision appealed from and the grounds of appeal (unnecessarily proliferated as they were), be disposed of.

The appellant was the 1st respondent before the Rivers State Local Government Election Tribunal. The 1st respondent herein was the petitioner before that Tribunal. He and the 1st respondent/appellant contested the seat of chairman of the Abua/Odual Local Government. At the end of polls, the 3rd respondent, i.e., the local government returning officer, returned the 1st respondent/appellant as duly elected on the ground that he had scored the majority of the valid votes cast at the election.

Dissatisfied with the results as thus announced, the petitioner/1st respondent presented his petition before the Tribunal. The petition was based on one ground, namely, that the petitioner/1st respondent, and not the 1st respondent/appellant, was the one duly elected by a majority of the valid votes cast at the election.

The facts in support of this ground relate to what transpired in Wards 1 and 13. It was the petitioner’s complaint that no election at all took place in Ward 1. Consequently no results were declared at the unit level and so none was, or ought to have been, received for collation at the ward and local government levels. Yet, somehow, the 3rd respondent managed to conjure up some figures, which he credited to the candidates (to the advantage of the 1st respondent/appellant) as the votes they scored at the election. I have deliberately avoided going into any detail on this aspect of the case because there is no appeal against the finding by the Tribunal that there was election in Ward 1. The attempt by the petitioner/1st respondent to complain about it failed as his notice of cross-appeal was filed out of time. It was struck out.

In respect of Ward 13, the petitioner stated the following facts in paragraph 3B(vi – (viii) of his petition:

“(vi) in ward 13 voting took place in all the polling stations but could not collate at the ward collation centre because the Returning/Collation officer for the ward was abducted by some unknown persons. The supervisory Presiding officer collected all the Form EC8As at the end of the polling and returned them to the Local Government Collation centre where he also reported the abduction of the collation/Returning officer for the ward. Upon submitting the results Form EC8As to the 3rd Respondent he was directed to go back to ward 13 with some policemen to rescue the abducted Returning/Collation officer for ward 13. Upon his return from that mission, it was discovered that all results had been taken to Port Harcourt for final collation.

(vii) in collating the final results of the said election the 3rd Respondent, however failed to include the results in respect of ward 13 wherein the petitioner had a majority of the lawful votes cast at the election. The Petitioner will at the trial found on all the Form EC8AS in respect of all the polling stations in said ward 23 and the 2nd Respondent is hereby given Notice to Produce the said Form EC8As.

(viii) In ward 13, the Petitioner scored a total of 8132 votes while the 1st Respondent scored a total of 702 votes. When the result of ward 13 is taken into account the overall score of the Petitioner will come to 32703 votes while the overall score of the 1st Respondent will come to 19646 votes. The petitioner will at the trial urge that the votes in respect of ward 13 be taken into account”.

In answer to the petitioner’s case as it related to Ward 13 the 1st respondent/appellant pleaded in paragraph 8 of his Reply thus:-

“8. The 1st Respondent denies the allegations of fact contained in paragraph 3B(vi) vii and shall put the Petitioner to the strictest proof of the said allegation. The 1st Respondent shall in answer to the said paragraphs contend the following:

(i) That no election took place in any polling station in ward 13 and that no collation took place as there was no election.

(ii) The materials for the conduct of elections in ward 13 were not distributed because the Supervisory Presiding Officer for the ward in connivance with the Petitioner extricated the top copies (original) of the ward result sheets (Form EC8A) and disappeared with them.

(iii) The returning Officer upon not seeing the Supervisory Presiding Officer sought to distribute the materials.