Barrister Dozie Ike V. Godfrey N. Ofokaja & Ors (1992)

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MOHAMMED, J.C.A. 

At the National Assembly Election, held on the 4th of July, 1992, to the House of Representatives for the Orumba North L.G.A. Constituency, of Anambra State, the appellant was declared the winner, having scored a majority of 12,435 votes against the score of the 1st respondent which was 12,209 votes. The appellant was sponsored by the National Republican Convention (N.R.C). and the 1st respondent was fielded by the Social Democratic Party (S.D.P.).

Soon after the National Electoral Commission (N.E.C) had declared that the appellant was the winner, the 1st respondent filed a petition before the National Assembly Election Tribunal, sitting at Awka, and challenged the return of the appellant, on the following ground:

“(A) That the 1st respondent was not duly elected by a majority of lawful votes at the election because of forgeries, and falsification of votes perpetrated by all the respondents in favour of the 1st respondent in the final result.”

The 1st respondent disclosed in the petition that the original result sheet in Form EC 8A(1), No. AN 002359, for the polling station, at Ndikelionwu ward, known as Town School, Aronota Ndike, had been falsified and or forged. In the falsification votes the appellant score at the polling booth were altered to read 690 votes, instead of90 votes which were lawfully recorded by the Presiding Officer.

The petition was concluded with a claim for the following relief:

“WHEREOF your petitioner prays that it may be determined that the said Barrister Dozie Ike (1st respondent) was not duly elected or returned and that the petitioner was duly elected and ought to

have been returned and should be so returned.

In proof of the allegation that the original result sheet, in Form EC8A(1) had been falsified, the 1st respondent called 8 witnesses, including the Presiding Officer who was appointed by N.E.C to conduct the election, at Town School, Aronota Polling Booth. The learned counsel for the 1st respondent tendered two Forms ECSA(1) the original and a copy which were admitted and marked as exhibits 1 and 2. The appellant denied the claim and called 4 witnesses to buttress his defence that he had never been a party or privy to any falsification of the returns made at the election. The officials of N.E.C viz, the 2nd and 3rd respondents, also denied the claim and explained that there was no falsification and or forgery of the election result in respect of Town School, Aronota Polling Booth.

The Electoral Tribunal considered all the evidence adduced by the parties, in this petition, and in a considered judgment, accepted the submission of the 1st respondent that in exhibit 2 the number of accredited voters was changed and falsified from “090” to read “690”. The tribunal also agreed that the number of accredited voters in queue and votes scored by the 1st respondent at Town School, Aronota Ndikelionwu polling station, was unlawfully increased or inflated by 600 votes. The tribunal went further and said that if the 600 unlawfully inflated votes deducted from the total votes of 12,435 scored by the appellant, there would be a balance of 11,835 votes. That figure of 11,835 votes would be less than 12,209 scored by the petitioner (1st respondent in this appeal) at the election held on 4/7/92. In conclusion the tribunal held that the appellant, Barrister Dozie Ike, was not duly elected by a majority of lawful votes, at the election held on 4th July, 1992, for Orumba North Local Government Area Federal Constituency to the House of Representatives.

In consequence, the tribunal nullified the election and ordered for a bye-election to be conducted in the constituency by the Federal Electoral commission (N.E.C). Dissatisfied with the said judgment the appellant appealed to this court on seven grounds of appeal. The grounds and the particulars given to them cover seven pages of a foolscap paper and I do not think it necessary to reproduce all of them in this judgment, because the six issues formulated by the learned Senior advocate, J .A.C. Okola, against those grounds cover all the arguments and points raised in those grounds. The issues are as follows:

“(i) Whether on the sale complaint raised in the petition, the Presiding Officer whose return was being questioned and who testified as P.W.1, was a competent witness in support of the petition, in the light of the provisions of Decree No.18 of 1992?

(ii) Whether the tribunal was right in avoiding the election of the appellant and ordering a bye-election when the petitioner did not seek any of such reliefs in his prayer.

(iii) Whether in view of Exhibit 6, a previous affidavit sworn to by P.W.1 on 10/7/92 contradicting his present testimony before the tribunal on the pertinent issue of the alleged falsification, did not in law render him an unreliable witness, totally unworthy of credence?