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

LawGlobal-Hub Lead Judgment Report

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.

(iv) The Presiding Officers appointed by 2nd Respondent to conduct the elections observed that the result sheets did not have the top copies and this observation was thereby noticed by the respective party agents, security personnel, newsmen and leaders of the community. The said result sheets were distributed in respect of three polling units before it was noticed that the top copies were missing. Reliance will be placed at the trial on the duplicate copies of Form EC8A for polling stations in ward 13.

(v) Based on the said observations concerned efforts were made to trace the Supervisory Presiding Officer to retrieve the original copies of the result sheets for onward transmission to the Presiding Officers.

(vi) All efforts at tracing the Supervisory Presiding Officer proved abortive, a situation that led to the abandonment of relevant electoral materials such as ballot boxes. Ballot papers, voters registers and duplicate result sheets at the collation centre. The materials were subsequently sent to the police for safe-keeping. (The 1st Respondent, had at the trial placed reliance on the aforesaid materials and they are hereby pleaded.

(vii) The 1st Respondent contends that when it became obvious that the supervisory Presiding Officer was not to return the original result sheets and that as a result of electoral materials not been distributed and election not holding, the Ward Returning Officer in the presence of security agents and other interested parties declared that election did not hold in ward 13 and consequently endorsed same on the summary result sheet from polling stations that is, Form EC 8B. The copies of the endorsed result sheet were now distributed to the party agents. The 1st Respondent shall at the trial place reliance on the summary result sheet for ward 13 and it is hereby pleaded.

(viii) The 1st Respondent asserts that at no time was the Ward Returning Officer abducted and that the responsibility for the collation of results from the polling stations is that of the Returning Officer, to whom the respective presiding Officers of the polling stations were expected to submit their results.

(ix) The 1st Respondent asserts that no results were collated in respect of ward 13 as no election took place thereat and so the claim of the Petitioner is baseless”.

For their part the 2nd – 5th respondents pleaded as follows in paragraphs 5(a) – (c):

(a) That Abua/Odual Local Government Area comprises 13 election Wards for election purposes, and that the last local government council chairmanship election held on the 20th March, 1999, was duly conducted in, and results collated from, 12 out of the aforesaid 13 Wards. The only outstanding ward in respect of which the Respondents did not receive evidence of due election thereat was Ward 13.

(b) That based on results collated from 12 Wards as aforestated, the 1st Respondent scored the majority of lawful votes cast at the election with the requisite statutory geographical spread of the votes, and was thereby declared and returned by the Respondents as duly elected. The Respondents shall at the trial found upon the results of the election, inclusive particularly of Ward 1, and the Declaration of Result based on the poll results.

(c) That there was general atmosphere of violence and threat to security of electoral personnel and materials on the Election Day, which marred the conduct of election in Ward 13. The Respondents shall accordingly object to the validity of any votes cast thereat.”

So, as can be seen, it was the petitioner’s case that election was held in Ward 13 and results were got from the various polling units. These results from the units could not be collated at the ward collation centre because the returning officer there had been abducted. Because of this the supervisory presiding officer collected them from the various presiding officers and went with them to the local government collating centre where he handed them over to the collation/returning officer, the 3rd respondent, and reported the situation at the ward collation centre to him. The 3rd respondent assigned some policemen to go with him to the ward to rescue the collation/returning officer there. Before their return from the errand the 3rd respondent had gone to the State headquarters with the results. The results showed that the petitioner scored 8, 132 votes to the 1st respondent’s/appellant’s 702 votes. He pleaded the Form EC8A in respect of the units in the ward. The 3rd respondent, for reasons not known, failed to take account of the results from the ward in collating the overall scores by the candidates.

The 1st respondent/appellant denied all this. His case was that no election took place because election materials were not distributed. This in turn was because the supervisory presiding officer, in connivance with the petitioner had run away with the top copies (originals) of Form EC8A. To confirm that no result took place, the ward returning officer endorsed that fact on Form EC8B, the ward summary result sheet.

The 2nd – 5th respondents did not categorically deny the allegation that election did not take place in ward 13. What they pleaded was that they did not receive evidence of due election in that ward. They pleaded further, as can be seen, that the prevailing state of violence marred the election there. (It may be noted that they did not say that the state of violence completely prevented election from being held. They said it just marred the election). Consequently, they make it clear that their case was that they will “accordingly object to the validity of any votes cast thereat”.

To prove the allegations as pleaded, the petitioner testified as PW7. He tendered 17 duplicate copies of Form EC 8A containing the results from the 17 polling units. These were admitted as Exhibits 10(1-17)). When he tendered them counsel on behalf of the respective sets of respondents expressly stated that he had no objection to their admission in evidence. He called, and relied on the evidence of PW8, PW9, PW10 and PW11 to establish that election did take place in Ward 13. PW8 was the supervisory presiding officer for the ward alleged by the 1st respondent/appellant to have run away with the top copies of the Form EC8A. He confirmed that he collected the results from the various units and took them to the ward collation centre only to discover that the returning officer had been taken hostage, so he proceeded with the results to the local government collation centre. PW9, PW10 and PW11 were presiding officers each assigned to one of the 17 units. Each of them confirmed that he signed for and collected election materials from the supervisory presiding officer, PW8, and used them to conduct election in his unit. Each identified the Form EC8A he had prepared in respect of the results from his unit.

To counter the evidence of these witnesses and establish his own defence the 1st respondent/appellant testified as RW7. Among other documents, he tendered what was supposed to contain the summary of results from the various polling units in Ward 13. It however contained no such results. Rather it contained an endorsement by the ward returning officer that there was no election in Ward 11 because the supervisory presiding officer had run away with voting materials. This document was admitted as Exhibit 23. He admitted in cross-examination that he did not visit ward 13 and that his testimony about there being no election there was based on what his agents told him. RW5 and RW6 had earlier testified on his behalf in respect of this ward. The former was the presiding officer for Anyu Town Hall unit 2. He testified that as election materials were being distributed to them he observed that the top copy in each booklet containing the Form EC8A was missing. They inquired from PW8 to know why. Instead of explaining he just sneaked out of the hall and was not seen again. The returning officer then endorsed on her result summary sheet that there was no election in the ward. Later the community leader called her and sought to know what was going on and she confirmed that there was no election because the supervisory presiding officer ran away with the original copies of Form EC8A. He denied, under cross-examination by Mr. E.C. Ukala, for the petitioner, that the returning officer was beaten or held hostage at the chief’s house. He admitted, however, that she was at the chief’s house to explain what was going on.

The chief testified as RW6. He said he went to the town hall to find out from the returning officer what was going on. She then informed him that the supervisory presiding officer ran away with all election materials, and so there was no election in the ward. She then produced her result summary sheet and recorded the fact thereon. Under cross-examination by Mr. Ukala he denied that he ordered her to be held hostage or beaten or made to make the endorsement she made.

To establish their own defence the 2nd – 5th respondents called RW8. She was the returning officer for Ward 13 alleged by the petitioner to have been abducted. She identified Exhibit 23 as the empty summary result sheet on which she had endorsed the fact of there being no election in the ward. She testified in evidence-in-chief that she had no idea whether or not there was election in the ward. She made the endorsement on Exhibit 23 because no presiding officer brought any results to her. Her testimony under cross-examination by Mr. Ukala and in re-examination, was very revealing:

“XX by Ukala -As Returning officer my duty was to collate results and not to supervise the conduct of the election. Exhibit 23 does not say I did not receive election results but that there was no election. I made exhibit 23 at about 5 to 6 p.m. throughout the day of the election I did not visit any of the polling centres. I made a written report to I.N.E.C and Police about the attack on me at Anyu. My report was that my life was in danger at Anyu. What I passed through at Anyu was an ordeal and only God saved my life. It is true that I signed exhibit 23 while I was still undergoing the ordeal. Re-examination – I shall maintain that my life was in danger even when I made exhibit 23”.

After hearing addresses by counsel the Tribunal delivered its judgment, finding against the petitioner with regards to his complaint that no election was held in ward 1 but results were returned. It found as a fact, on the evidence before it, that election was held in the ward and the results from there were properly used in calculating the final scores attained by the contestants. As I noted earlier on, the petitioner’s attempt to appeal against this failed.

With respect to ward 13, however, the Tribunal found in favour of the petitioner. It found that election did take place there but that the results therefrom were not taken into account in arriving at the overall scores.

This was how it dealt with the evidence before it and arrived at its conclusions:

“The petitioner in his evidence said that there was election in ward 13. He went further that the results of the election were returned to I.N.E.C. and 8,132 votes were credited to him. He tendered in evidence Exhibits 10(1) to 10(17) which are the duplicate copies of form EC8A for Ward 13 in 17 units. The petitioner went further that the said 8,132 votes were not collated in his favour.

PW8 to PW 11 were called to prove the averment that there was election in Ward 13 of Abua/Odual Local Government. PW8 who was the supervisory presiding officer for Ward 13 stated that elections were held in his Ward and that he collected the results from the presiding officer and he took it to Anyu at the collation centre but that the returning officer for the ward was held hostage hence he went to the Local Government Authority collation centre to submit the result and he was given 3 mobile police men to go back and rescue the returning officer.

The evidence of PW8 was supported by that of DW8 called by 2nd to 5th Respondents when she said under cross-examination that she made a report about the attack on her at Anyu. She stated that the reports she made to police was that her life was in danger at Anyu. She went further that what she passed through at Anyu was an ordeal and that only God saved her life. She also stated that she endorsed Exhibit 23 while going through the ordeal.

PW9 also testified that election was conducted in his unit in ward 13 and he said he signed Exhibit 10(2) i.e. form EC8A which is statement of result of Poll for his unit.

PW10 also testified that election was conducted in his unit at unit 007 state school Hall Anyu, he went further that at the end of the election he issued Exhibit 10(1).

PW 11 also gave evidence that there was election to his unit at Ward 13 and at the end of election he issued Exhibit 10(6).

The Respondents on the other hand relied on the evidence of DW5 who testified that he detected that the original copies of unit results being distributed among Presiding officers were missing and he alerted the supervisory presiding officer. Some moments thereafter he said that the supervisory presiding officer disappeared into thin air. And that it was as a result of this that elections could not take place in ward 13

The DW6 and DW7 1st Respondent corroborated the evidence of DW5.

Taking into consideration the evidence of the petitioner, PW8 to PW11 on out (read one?) hand and the evidence of DW5, DW6, DW7 (the Respondent) and DW8 on the other hand, it is the view of this Tribunal that the evidence of DW8 supported the case of the petitioner that the DW8 (Ward returning officer) was held hostage at Anyu and DW8 herself stated that she was attacked at Anyu and her life was in danger, furthermore that what she passed through was an ordeal and only God saved her life. The said Exhibit 23 which the Respondents are relying upon was endorsed while going through the ordeal. And the exhibit did not show that the supervisory presiding officer removed top original copies of result sheets (form EC8A) and disappeared with them. Exhibit 23 merely said that the supervisory presiding officer for Ward 13 ran away with his election materials.

After considering the totality of evidence before the Tribunal we find as a fact that there was election in Ward 13 of Abua/Odual Local Government of Rivers State on 20/3/99.”

I must point out that although the Tribunal referred to witnesses who testified for the respondents as RWs while recording their evidence, in its judgment it referred to them as DWs.

Based on Exhibits 10(1-17), i.e. From EC8A containing results from the 17 polling units in the ward, it re-calculated the scores recorded for each of the candidates and found as a fact that the petitioner/1st respondent scored a total of 32,280 votes to the 1st respondent/appellant’s 29,654. Before it did this it observed that:

“The learned counsel for 2nd to 5th Respondents urged the Tribunal to hold that the purported submission of Exhibits 10(1) to 10(17) is against Decree 36 of 1998. He relied on Tounaregha v. Wilson (1993) 1 NWLR (Pt. 267) page 23 at 31.

It is the view of the Tribunal that the case referred to above is not relevant to this case because it is clear from the evidence before us that the DW8 to whom Exhibits 10(1) to 10(17) was supposed to be submitted was attacked at Anyu and she confirmed in her evidence which we believe that she passed through an ordeal when she endorsed Exhibit 23. The supervisory presiding officer PW8 who was employed by I.N.E.C. can in our view under the circumstance perform the duty of DW8.”

After recalculating the scores by each candidate, taking into account Exhibits 10(1-17), it concluded its judgment in the following words:

“With the foregoing, it is hereby determined that Chief Akeuphel I. Sam did not score the majority or highest votes cast at the chairmanship election for Abua/Odual Local Government of Rivers State which was held on 20/3/99 and therefore did not win the election.

The petitioner with majority of 32,280 votes cast at the said election is hereby declared as the winner of the chairmanship election held for Abua/Odual Local Government of Rivers State in accordance with section 87(2) of Decree No. 36 of 1998. Consequently the return of the 1st respondent as the winner of the election is hereby nullified.”

Not happy with this turn of events, the 1st respondent/appellant has appealed to this Court, silting at the Constitutional Court, on 13 grounds. All 13 grounds are complaining about the Tribunal’s decision as it relates to Ward 13. The attempt by the 2nd-5th respondents to complain about the Tribunal’s decision in this area met with failure as their notice of cross-appeal was filed out of time. It was struck out.

In the appellant’s brief of argument filed on behalf of the 1st respondent/appellant learned counsel identified and formulated the following 5 issues for determination:

“1. Whether the Honourable Tribunal was right in holding that the PW8 (SPO) being employed by INEC could in the circumstance perform the duty of DW8 (The Returning Officer).

2. Whether the Honourable Tribunal was right in holding that elections took place in ward 13.
3. Whether the Honourable Tribunal had valid powers to collate results that were not collated by INEC on the ground that elections were not conducted in the ward.
4. Whether the Honourable Tribunal properly evaluated the evidence before it in coming to the conclusion that elections took place in ward 13.
5. Whether the Honourable Tribunal was right in taking evidence in respect of Ward 13 when the Ward Returning Officer who stated that elections did not hold, was joined as a party.”

On behalf of the petitioner/1st respondent the following one issue was formulated:

“Whether the Election Tribunal was justified in taking into account the results from the election in ward 13 submitted for collation by the Supervisory Presiding Officer in the computation of the Local Government Election result”

Alternatively:

“Whether upon the evidence the Tribunal was justified in holding that there was election in ward 13 and that Exhibits 10(1) – 10(17) were the unit results (Forms EC8A) of the elections in the said ward. Grounds 1- 13 of the 1st respondent/Appellant’s Appeal”

For the 2nd – 5th respondents, the following one issue was formulated:

“Whether the lower tribunal was right in holding that election took place in Ward 13?”

Considering the decision appealed from the complaints raised against it in the grounds of appeal. I think the second alternative issue formulated by Mr. Ukala on behalf of the petitioner/1st respondent is the most appropriate of the three sets of issues formulated. It is not as skimpy as the one formulated by Mr. R.N. Godwins on behalf of the 2nd – 5th respondents, and not as dilatory as the set formulated by Mr. A.R. George on behalf of the 1st respondent/appellant. It raises all the relevant and pertinent questions without becoming diffuse. Mr. Ukala observed in paragraph 2.2 of the respondent’s brief he filed on behalf of the petitioner/1st respondent that Issues 1,3,4 and 5 formulated on behalf of the 1st respondent/appellant are at best subsidiary questions raised by the main issue identified by him (Mr. Ukala). I cannot agree more with him.

For the reason, I have given I shall consider this appeal on the basis of the issue as formulated by Mr. Ukala. As and when the need arises I shall answer any subsidiary questions raised by Mr. George.

There are two main questions raised in the issue as formulated by Mr. Ukala. They are (1) whether or not the Tribunal was justified in its holding that election took place in Ward 13, and (2) whether or not it was justified in placing reliance on Exhibits 10(1-17) to recalculate the scores record for each candidate.

Was there Election in Ward 13?

Arguing this point in the appellant’s brief, Mr. George started by drawing attention to the insistence by the 2nd – 5th respondents that no election took place in Ward 13. Counsel laid particular stress on the testimony of RW8, the Ward Returning Officer, and Exhibit 23, the Ward Declaration Sheet, on which she had endorsed that no election took place in the ward. Citing sections 115, 149 and 150 of Evidence Act, and the cases of Jalingo v. Nyame (1992) NWLR (Pt. 231) at 546 A- B and Omoboriowo v. Ajasin (1984) 1 SCNLR 108, counsel drew attention to the “rebuttable presumption that the result of any election declared by the returning officer is correct and authentic” and the principle of law that “the burden is on the person who denies the correctness and authenticity of the return to rebut the presumption”.

Counsel pointed out further that for the presumption to be rebutted evidence must be led to show that either the declaration was not made by the appropriate electoral personnel empowered to do so, or that the electoral personnel deliberately made a wrong declaration not based on the actual result of the electoral process. Counsel then submitted that whether method was adopted would mean making an allegation of the commission of a crime, i.e., the falsification of results. This would place the burden on the person concerned to prove the allegation beyond all reasonable doubt. The petitioner/1st respondent by his averments in the instant case assumed, but failed to discharge, the burden of rebutting the presumption of regularity that attached to the declaration of result by the respondents. In this regard, counsel pointed out that the only evidence put forward in the discharge of this burden did not suffice.

I have already highlighted the evidence of the witnesses who testified in respect of ward 13 and how the Tribunal had handled it. With all due respect to learned counsel for the 1st respondent/appellant, I can find nothing with which to fault the Tribunal’s finding of fact that election took place in Ward 13 of the manner in which it had dealt with the evidence before it. In addition to recapitulating on the evidence of each witness it assessed each with care, comparing it with other pieces of evidence and generally testing it for intrinsic reliability. It was after this process that it came to its conclusion. What is more, the evidence before it amply supported its conclusion that election did take place in the ward.

No attempt at all was made by the respondents to discredit the evidence of PW8, PW9, PW10 and PW11, the supervisory presiding officer and the three presiding officers, or Exhibits 10(1-17), the Form EC8A in respect of the 17 polling units. As was observed earlier on, the respondents, through their respective counsel, expressly stated that they did not object to the admission of those exhibits in evidence. They have only sought to rely on the evidence of RW5, RW6, RW7 and RW8 as contrary evidence, which, from their point of view, ought to be preferred to that called by the petitioner. As has also been seen, the Tribunal, with much justification, in my view, preferred the petitioner’s story. The evidential value of Exhibit 23 was almost completely depleted the moment RW8 admitted that she made it while she was still undergoing an ordeal at the hands of her tormentors at Anyu and that she had no personal knowledge whether or not there was election in the Ward. Her admission also destroyed the evidence of RW5 that she (RW8) was not held hostage. No such blemish attached to Exhibits 10(1-17).

I noted earlier on the reference by counsel for the 1st respondent/appellant to the principle of regularity in favour of declaration of results by authorised electoral officials. That principle applies here in all its force, especially as I have just noted that no blemish attaches to it as it does Exhibit 23. There was clearly more consistency in the story as told by the petitioner’s witnesses than that told by the respondents’ witnesses. Moreover, as has been noted, the 2nd – 5th respondents, who were responsible for the conduct of the election, and who ought to know, impliedly admitted in their joint reply that election did take place. As the preference by the Tribunal has not been shown to be perverse in any way. I hold that it was justified in making it.

Was the Tribunal justified in relying on Exhibits 10(1-17) to recalculate the scores of the candidates?

If, as I have held, Tribunal was right in its finding- that election did hold in Ward 13, could there have been any justifiable ground for it not to take the results from there into account in calculating the overall scores by the candidates? The Tribunal saw none. I too see none. I find nothing in the Local Government (Basic Constitutional and Transitional Provisions) Decree. No. 36 of 1998 that gives the returning officer the discretion whether or not to use any valid results in the calculation of scores by candidates. He is obliged to take account of all valid votes. He can only reject invalid votes. See paragraphs 32-35 of Schedule 4 to Decree 36 of 1998.

But then, counsel on behalf of the 1st respondent/appellant has contended that Exhibits 10(1-17) ought not to be taken account of because they had been conveyed to the collation centre by the supervisory presiding officer instead of presiding officers. He placed reliance on Tounaregba v. Wilson, Supra, at 31 and paragraphs 3 of Schedule 4 to Decree 36 of 1998 to contend that the Supervisory Presiding Officer acted in excess of his authority.

With the profoundest respect, the contention here is devoid of any merit. In the first place the decision in Tounregha v. Wilson, Supra, cannot have application here. That case is distinguishable from the present case. In that case, it was a policeman, who was not an employee of the electoral authority, who carried the results to the collating centre. In the present case the supervising presiding officer, who, of course is a presiding officer, effected the conveyance. The only difference between him and an ordinary presiding officer is that whereas the latter supervises the conduct of the election in one polling station or unit, the former supervises the conduct of the election in a group of polling stations or units. The presiding officers are under him and he supervises them. So when he collects results entered in Form EC8A from the presiding officer under him for conveyance to the collating centre, it can be said that the presiding officer has done the conveyance. After all, he brings the election materials to the ward for distribution to the presiding officers in the first place. In my view, he has powers and authority under the law to retrieve the materials after the election for conveyance to the appropriate quarters.

In any case, as this Court observed in Tounaregha v. Wilson, supra, the fact that someone other than the presiding officer carries the result to the collating centre does not eo ipso invalidate the results. That effect can only be brought about if the Tribunal is satisfied that something has come amiss by such non-compliance with paragraph 3 of Schedule 4 to Decree 36. Nothing has been shown by the 1st respondent/appellant to have come amiss by reason of the supervising presiding officer, instead of the presiding officers, carrying the results.

For the reasons I have given I have no hesitation whatsoever in resolving either of the alternative issues formulated by Mr. Ukala and the one formulated by Mr. Godwins and Issue 2 Formulated by Mr. George against the 1st respondent/appellant and in favour of the petitioner/1st respondent. The Tribunal was perfectly justified in holding that election took place in Ward 13. The Tribunal was also in order when it took the Form EC8A from there into account in re-calculating the scores by each candidate.

I have in the process of dealing with the issue just disposed of answered some of the subsidiary questions raised by Mr. George in what he terms Issues for Determination. For instance, I have already held that the Tribunal was justified in holding that the Supervisory Presiding Officer was competent to submit results from units under him to the collating centre. I gave my reasons. I also touched on Mr. George’s issue 4 when I considered how the Tribunal went about the evidence before him. That leaves me with only Issues 3 and 5.

Neither of these has any merit. On the so-called Issue 3 my answer is that the Tribunal did not convert itself into a collating officer. It was not collating results. It was exercising its jurisdiction and powers of determining the question whether or not either the petitioner/1st respondent or the 1st respondent/appellant was validly elected. It has powers under section 81(a) of Decree 16 of 1998 to do this. It has further powers under section 87(2) of Decree 16. Under this latter provision, if it determines that the candidate who was returned did not score the majority of lawful votes cast at the election it shall declare the candidate with the majority of valid votes as elected.

Now, what should the tribunal have done when it found that there were valid votes that the returning officer should have, but did not credit to the candidates, especially in a situation, such as this, where the petitioner/1st respondent had complained about the exclusion of the votes’? Should it have thrown up its hands in helplessness and simply referred the matter to the collation or returning officer for fresh collation of votes? In my view, no. The tribunal did the right thing by adding the votes, found to have been wrongly excluded, to the score by the affected candidate. The mandate it has under section 87(2) is to declare the candidate with the majority of valid votes. There is nothing in the Decree to suggest that before making the declaration the Tribunal should first refer the matter to another body. After all, this was just a matter of addition. Nothing stopped the Tribunal from performing this simple arithmetical calculation. By doing it, it did not thereby usurp the functions of the collation officer. It was just following the natural course of things as the law empowered it to do.

Mr. George’s Issue 5 is even more frivolous. The respondents before the Tribunal called RW8, whose testimony is being complained of here. She gave evidence that was detrimental to their case and favourable to the case of the petitioner. Why should the Tribunal not have used it the way it did? The respondents never objected to her giving the evidence. I have said there is no merit in this complaint.

In the result the entire appeal fails as it is lacking in merit. I accordingly dismiss it in its entirely. The decision of the Tribunal nullifying the return of the 1st respondent/Appellant as duly elected is affirmed. So also is the order of the Tribunal declaring the petitioner/1st respondent the winner of the election.

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Other Citations: (1999)LCN/0602(CA)