Chief Jim Ifenyichukwu Nwobodo V. Chief Christian Chukwuma Onoh & Ors (1983)

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SOWEMIMO, J.S.C. 

This appeal was brought to this Court from the Federal Court of Appeal, Enugu. The judgment of the Federal Court of Appeal, given unanimously, set aside the judgment given by a High Court of Anambra State sitting as a panel of five judges to decide on an election petition.

The election petition was filed by appellant before us, Chief Jim Nwobodo. He was the unsuccessful candidate in the gubernatorial election for the office of Governor of Anambra State. The 1st respondent before us, Chief C. Christian Onoh, was declared by FEDECO as the successful candidate in the same election. It is against this declaration that the petitioner has filed this petition. The other respondents before us are (a) the Chief Federal Electoral Officer for Anambra State, one

Mr. Ejeh, (b) the Resident Federal Electoral Commissioner, one Brigadier Ignatius N. Obeya (Rtd.), and (c) the Returning Officer, one Mr. E. N. Mbonu.

For the purpose of this judgment the appellant will be referred to as the petitioner, Chief J. I. Nwobodo and the 1st respondent as Chief C. C. Onoh.

This judgment will deal generally with my opinion on each item argued before us but fuller and considered reasonings and opinions on all of them will be given later.

I hold that the Chief Judge, was competent to order security and order substituted service on the combined effect of sections 119(3) of the Electoral Act and sections 237 and 238 of the Constitution.

It is my opinion that although the payment of security was not made, in compliance with sections 147(3) of the Electoral Act 1982, I do not consider such noncompliance as fatal to the hearing of the petition.

The petitioner based his complaints on paragraphs 5(a), (b) and (f) of his petition. Further and better particulars were later filed during the course of the proceedings.

This was done after the respondents had filed their replies and issues had already been joined on the pleadings. It is my opinion that the filing of further and better particulars do not affect the issues already joined in the pleadings.

It is my opinion, and I so hold, that all the allegations complained of are crimes, and although, under Electoral Act 1982, election petition is a peculiar type of civil proceedings the proof of a crime, requisite or burden of where alleged, is that provided under section 137(1) of the Evidence Act, that is proof beyond reasonable doubt. The onus of proof is therefore on the petitioner and this has not been discharged. Having so decided I hold at this stage that the petitioner has not proved all his relevant complaints beyond all reasonable doubt against any of the respondents.

On the issue of the admissibility of elections returns in election petitions, which I regard as a peculiar civil proceedings, I will prefer to consider all the documents in this case as relevant, whether primary, secondary or duplicate originals, for a determination of this matter on the merits.

In conclusion I will dismiss the appeal and it is hereby ordered to be dismissed.

I will affirm the judgment of the Federal Court of Appeal, Enugu, and set aside, the judgment of the High Court of Anambra State, which upheld this petition as having succeeded. I will, therefore, award costs of N300.00 to each respondents against the appellant.

Order of Court

The order restraining the swearing-in of any person until the determination of this appeal is hereby discharged. The swearing- in ceremony of the successful candidate, Chief C.C. Onoh, may now proceed.

Reasons for judgement to be given on 6/1/84.

IRIKEFE, J.S.C.: This is a petition in respect of the recently concluded election to the office of Governor of Anambra State of Nigeria. The petitioner/appellant herein, brought this petition against the return of the 1st respondent by the Federal Electoral Commission (hereinafter called FEDECO) at the High Court of Anambra State, in the ENUGU JUDICIAL DIVISION thereof, as prescribed by law. The petitioner won by a split decision of three to two of the judges of the election panel. The first respondent appealed to the Federal Court of Appeal, which court, in a unanimous decision, on the main issues canvassed, reversed the lower court and restored FEDECO’S declaration. The petitioner has now appealed to this court. The issues canvassed before us are of such far reaching legal significance, that I propose to deal with those essential for a decision in the case, briefly here, and give my full and considered reasoning at a later date.

Competency of the Chief Judge, of Anambra State to entertain the ex-parte motion for substituted service and to fix the amount of security for the prosecution of the petition alone, before formally setting up a panel of five judges made up of himself and four other judges for the purpose of hearing evidence in the petition.

I rule that the respondents having taken further steps in the matter and having regard to the provisions of section 147(5) of the Electoral Act, 1982 these proceedings are neither null nor void.

Grounds for bringing this petition.

I rule that on the pleadings and evidence the petitioner was relying on two grounds for questioning the election – namely-section 122(1)(b) and (c).

Section 122(1)(b) provides:-

”that the election was invalid by reason of corrupt practices.”

This would, had the petition succeeded, led to the return being nullified and a new election held. Section 122(1)(c) provides –

”that the respondent was, at the time of the election, not duly elected by majority of lawful votes at the election.”

Parties

In a petition to challenge the return of a governor such as this, the Chief Federal Electoral Officer of the State is a necessary party. So, also, is the Returning Officer deemed, under section 121 of the Electoral Act, a party, where the conduct of the returning officer is the subject of complaint. I would also hold that where, as in this petition, allegations are made against deputy returning officers and other servants or agents of FEDECO, and having regard to the combined effect of section 64 and section 121 of the Electoral Act, 1982, a petition panel is properly constituted when the Chief Electoral Officer and the returning officer are made parties.

The petitioner alleges that between the polling stations and the State Electoral Commission headquarters, results validly credited to him were deliberately falsified and “jacked-up” by officials of FEDECO; and specifically the Deputy Returning Officers. This allegation, if true, would constitute a crime leading to invalidity of the elections under the Electoral Act and the offence of forgery and uttering under the Criminal Code. In such a case, under section 137(1) of the Evidence Act, the standard of proof is that beyond reasonable doubt. Such proof has not been produced in this case. It has not been disputed in this case that the competent agency under the Constitution for conducting elections and declaring results is FEDECO. This is why even where an election succeeds on the basis of a court petition, the court still has to send its order to Fedeco to enable it declare the successful party as elected. The petitioner sought to rely on and thus get himself elected on the basis of documents allegedly collected by some assistant returning officers and others at some polling stations. This would be, in effect, granting candidates’ in an election, the Constitutional right to elect themselves! There being evidence that the DROs called by the petitioner handed certain results to DROs who later handed same to the returning officer, I hold that the petitioner is obliged in law to prove the falsity of the return exhibit RR1 and the supporting documents from which the return was produced. The petitioner did not pretend to have done so. His case vested on the infallibility of his own documents, but what he has to prove as false, is the return. No amount of castigation of the defence witnesses by the trial court can remedy this vital flaw in the case. Indeed, an English man of letters it was, who said that a liar, is a man, who has so much respect for truth, that he uses the commodity most sparingly. Thus calling the respondents’ witnesses liars cannot explain how the figures on RR1 got there. Again on the election by counsel to prove their case on only three local government areas, I have my doubts as to whether this is proper. The Constitution provides that the person to be elected, should have a majority of lawful votes in the entire State, it being one constituency.

On the admissibility of documents produced in this case, I hold that all are admissible as primary evidence.

On the question as to whether the further particulars supplied by counsel have amended the petitioner’s pleadings, I hold as a matter of law that they have not.

In conclusion, I hold that the petitioner failed woefully to establish the complaints made by him and that the petition ought to have been dismissed in the Anambra State High Court. Accordingly this appeal fails and it is dismissed and the return made by FEDECO in this matter (exhibit RR1) is upheld. The decision of the Federal Court of Appeal in this matter is also affirmed.

I adopt the order as to costs made by Sowemimo, J.S.C. the presiding Justice.

BELLO, J.S.C.: My conclusions on the several issues canvassed at the hearing of the appeal before us are as follows:

1. Jurisdiction of the panel constituting the trial court to entertain the petition because of the orders for the security for costs and substituted service made by Araka, C.J, sitting alone.

I hold that Araka, C.J, was competent to make the two orders and that the trial court had jurisdiction to entertain the petition.

2. Failure of the petitioner to comply with section 127 of the Electoral Act, 1982, to wit to deposit the security for costs at the time he filed the petition.

I hold that the non-compliance with the provisions of the section was a mere irregularity which was saved by the provisions of section 147(5) of the Electoral Act.

3. Whether or not the petition as pleaded put directly in issue the commission of a crime by a party.

I hold that the petition had put directly in issue the commission of crime by all the respondents other than the 1st respondent.

4. The quantum of proof under the circumstances of the case.

Having held that the petitioner had put directly in issue the commission of crime by the respondents other than the 1st respondent, I further hold that the petitioner must prove the allegations of the crime beyond reasonable doubt in accordance with the provisions of section 137 of the Evidence Act.

5. Admissibility of the documents tendered by the petitioner at the trial, which were admitted in evidence as exhibits B to H2 inclusive.

I hold all the said documents as admissible.

6. Discharge of the burden of proof by the petitioner as required by section 137 of the Evidence Act.

I hold that the petitioner failed to discharge the burden of proof within the purview of the provisions of section 137 of the Act.

Accordingly, I dismiss the appeal and affirm the decision of the Federal Court of Appeal:

BECAUSE in his petition the appellant directly had put in issue the commission of crime by parties in the proceeding but failed to prove the crime beyond reasonable doubt as was required by the provisions of section 137 of the Evidence Act.

I agree with the order as to costs made by Sowemimo, J.S.C. I shall give reasons for my judgment on 6th January, 1984.

OBASEKI, J.S.C.: Three main issues arise for determination in this appeal. They give rise to the following questions

(1) was the election panel of the High Court of Anambra State headed by Araka, C.J., competent to hear and determine the election petition presented by the appellant having regard to the fact that Araka, CJ. had sat alone to deal with

(a) the application for an Order fixing the amount of security the appellant was to give under S. 127(1) of the Electoral Act and

(b) the application for an Order that service of the petition on the respondents be effected on the respondents in a manner other than by personal service.

(2) was the election petition filed by the appellant properly before the court the appellant having failed to pay the amount of security ordered by the court at the time the petition was filed

(3) was the onus of proof the law placed on the appellant as petitioner in relation to the allegations of falsifications made in the petition discharged

The appeal also raised four subsidiary questions and these issues are:

(1) whether on the pleadings the allegations of falsification of figures constituted an allegation of commission of a crime by a party to the proceedings

(2) whether documents tendered by the witnesses called by the petitioner exhibits A, B, C, D, E, F, H, H1 and H2 were admissible

(3) whether the standard of proof to be discharged by the petitioner was the high standard of proof beyond reasonable doubt required for proof of crimes or the standard of proof by preponderance of evidence based on balance of probabilities for civil causes.

(4) whether the payment of the amount of security on the day following the day the petition was filed was non- compliance with the order for security sufficient to nullify the petition and deprive the court of its jurisdiction in the matter.

As I propose to deliver full reasons for my judgment at a later date, I will only deal with these issues briefly and summarily now.

On the first main issue I hold that the election panel of the High Court of Anambra State was competent. I also hold that Araka, C.J. was competent to deal with the interlocutory applications.

My short answer to the second main issue is that the election petition was properly before the court and the election panel had jurisdiction to hear it.

On the third issue, I am of the firm view that the allegation of falsification in the most severe con made by the petitioner was withdrawn and in any case there were no particulars to satisfy a proper charge under the criminal law. The onus of proof was therefore in such circumstances discharged.

On the first subsidiary question raised, I am of the opinion that the allegations of falsification and inflation of figures without more could not properly found a charge of commission of a crime against any of the parties.

On the, question, I hold that all the exhibits tendered by the petitioner are admissible as primary evidence.

On the third question, the short answer is that the standard of proof required is as in civil cases, which is one of a preponderance of evidence based on balance of probabilities.

On the fourth question, I hold that failure to pay the amount of security on the day the petition was filed was not fatal to the petition and did not deprive the court of its jurisdiction to hear it.

On the whole, the appeal succeeds and it is allowed.

I hereby set aside the judgment of the Federal Court of Appeal delivered on the 28th September, 1983 and restore the judgment of the majority in the High Court (Araka, C.J. Aneke, J. and Ora, J). And each of the respondents shall pay to the appellant costs assessed at N300.00.

In order to protect our institutions for ensuring the establishment and existence of democratic institutions in this country and having regard to the evidence of massive falsification and inflation of votes disclosed in the proceedings, it is hereby ordered that the proceedings be referred to the Attorney-General of the Federation for appropriate action.

ESO, J.S.C.: I intend to give here just a brief summary of the decisions I have come to on the points urged upon us in this appeal. I would at a later date, deal in much fuller detail with these issues and give fuller reasons for the decisions I have taken.

Chief Williams, SAN., learned counsel for the appellant, has dealt with this appeal under what he termed six heads. Though the learned counsel for the respondents, especially Chief Onyiuke, SAN., has said, and rightly in my view, that the Federal Court of Appeal dealt only with the, issue of burden of proof and the question of security for costs and service of the petition, I will set out the heads under which I have taken my decisions.

1. Constitution of the Court:

The High Court derives its jurisdiction from s.237 of the Constitution of the Federation 1979, and under s.238 thereof, it is only constituted if it consists of at least one judge. Under section 119(3) of the Electoral Act 1982, the Chief Judge of a State shall determine the number of judges that shall constitute the court.

Whether the Chief Judge as a member of the panel of judges set up under s.119(3) of the Electoral Act sits alone or the entire membership sits to order substituted service of the petition and, or security for costs, the order thus made is valid as the jurisdiction of the court is derived from the Constitution and not from the Electoral Act 1982.

2. Late Compliance with the Order for Security for Costs:

I do not consider this to be fatal. I do not consider payment of security for costs as a condition precedent to bringing a petition. S.147(5) of the, Electoral Act is a complete answer to this objection. If the jurisdiction of the High Court (s.237 of the Constitution) is to hear and determine any question whether a candidate has been validly elected and the candidate is required to have a majority of the votes and the adequate, territorial spread s. 164(6), to employ such technicalities as late compliance with the, order for security for costs is to prepare a ground for appointment of a Governor or any elected member of an office by mere technicality and not by majority of votes. Our Constitution is very clear about providing for the election of a Governor who has the majority votes of the electorate and not one by MERE technicality.

3. Pleadings, Nature of Allegation & Burden of Proof:

The petitioner alleged falsification of the results of the election. The question is whether that allegation as contained in the pleadings alleges a crime. It is being suggested here that the crime of forgery is alleged. Forgery does not consist of falsification only. It must also allege that the falsifier knows the document or writing to be false. There is no allegation whatsoever in the pleading that any of the parties to this case knows the document to be false. That allegation must be present before question of proof arises. An indictment for forgery without this important ingredient is faulty and will be, struck out. I find it difficult to hold a general allegation of wrong doing to be an indictment for a specific crime as requested by s.137 of the Evidence Act. See Davy v. Garrett 7 Ch.D 489, Wollington v. Mutual 5 A.C. 697 at 701 and 704. Again, s.137(1) of the Evidence Act requires that the allegation should be made against a party to the case; that the commission of the crime shall be directly in issue. It is only then that the crime should be proved beyond reasonable doubt. If the commission of the crime is the sum total of the case of the civil proceeding that Is, the proof of the commission of the crime must be the proof of the case of the plaintiff, then the civil case has to be proved beyond reasonable doubt. If however the civil case can be proved, even without proof of the crime that is, whether the crime has been committed or not the act of the accused is sufficient proof, then the proof is on the balance of probabilities. See also Jules v. Ajani 1980 5 S.C. 98.

It is clear to me in this case that failure to prove forgery is not fatal to the proof of the case of the petition which proof he produced adequately though he might not have proved forgery of the figures. In any event, and this is important, having regard to the better and further particulars filed by the petitioner at the request of the respondents, the oral statement as recorded in record of proceedings, narrowing the issues to allegation against the deputy returning officer ONLY, the expressed satisfaction of counsel for the respondents about this also as recorded, the open admission of counsel for respondents in this court that only the deputy returning officer is accused of falsification, the fact that the deputy returning officer has never at any time been a party to this case, S.137 of the Evidence Act does not apply, for as the section provides, the allegation of crime must be against a party to the civil proceedings before the section could be invoked, this is obviously a case that should be proved only on the balance of probabilities.

S.129 of the Electoral Act treats election petitions as civil proceedings. To ask for proof, as in a criminal case. except when s.137(1) of the Evidence Act applies, and the crime is one that is like corrupt practices, treating, disqualification as a result of commission or a crime. (see s.122(1)(a)(b) of the Electoral Act) will be putting a near-impossible burden of proof on the petitioner in this type of cases and creating the FEDECO as THE UNTOUCHABLE.

4. Discharge of Burden of Proof:

The petitioner called evidence of the assistant returning officers to prove the figures he scored. This was corroborated by his party agents who were there and who had copies from the assistant returning officers, the NSO men who were present and who made copies of the declared figures, and even by telegraphic message of the figures to FEDECO. FEDECO, that possessed all the documents pertaining to the election, never discredited the Assistant Returning Officers (their own officials and representatives at the election) by challenging them with any of the documents those assistant returning officers were alleged to have given to Fedeco which in turn, gave respondent his figures. (See s. 198 of the Evidence Act; and the authorities referred to by Chief Williams). I hold that all the documents tendered by the assistant returning officers, the party agents, the NSO, for the petitioner are primary evidence and admissible under section 93 of the Evidence Act, and were correctly admitted in evidence. The High Court accepted the evidence of the petitioner’s witnesses. There is nothing said in this court so far to discredit that evidence which shows that he won the election by scoring a majority of the votes. The petitioner has eminently discharged the onus placed on him. The appeal is allowed. The judgment of the Federal Court of Appeal is hereby set aside and the judgment of the High Court is restored. The appellant, Jim Nwobodo, is declared the winner of the election according to law. He shall be declared the Governor of Anambra State. Costs of N300.00 each are awarded against each respondent in favour of the appellant.

NNAMANI, J.S.C.: The petitioner and the 1st respondent were among 6 candidates who on 13th August, 1983 contested the gubernatorial elections in Anambra State. On 14th August, 1983, the Federal Electoral Commission, FEDECO, declared the 1st respondent, Chief C.C. Onoh, elected with total votes of 901,390 as against Chief Jim Nwobodo’s 887,221. Dissatisfied with this result, Chief Nwobodo filed an election petition in the Anambra State High Court pursuant to section 237 subsections 1 and 2(b) of the Constitution of the Federal Republic of Nigeria 1979 and section 119(1) of the Electoral Act No.8 of 1982. His complaint was as per section 122(1)(c) of the Electoral Act 1982

‘that the 1st respondent was, at the time of the election, not duly elected by majority of lawful votes at the election”.

The Anambra State election court gave judgment in the petitioner’s favour but this was reversed by the Federal Court of Appeal Enugu. The petitioner has appealed to this Court and has filed and argued 11 grounds of appeal.

Learned Senior Advocate appearing for the petitioner, Chief Rotimi Williams, and learned Senior Advocates for the 2nd and 3rd respondents, Chief Onyiuke and Chief Umeadi, as well as Mr. Mogboh learned counsel to the 1st respondent, have fought this case most gallantly and painstakingly. They have raised issues of immense Constitutional importance. The resolution of those issues calls for a reasoned judgment. Having regard to the time constraints, I intend also to give my decision and give my reasons for same later. In the meantime, I intend to indicate hereunder the conclusions I have arrived at on the major issues raised before us and which I shall later elaborate. I shall take them as near as possible to the headings under which they were 1() argued.

1. Jurisdiction

Under this I shall take (a) the contention that the order for security for costs and substituted service made by the Chief Judge of Anambra State (not the election court) was invalid (b) the contention that in this case the order for security for costs was made on 17th August, 1983, the petition filed that same day, but that as the costs were not paid until the 18th August 1983 there was a breach of section 127(1) of the Electoral Act 1982 and so there is no petition before the court. As to (a) I do not accept this contention. The short answer lies in sections 237, 238 of the Constitution and section 119(3) of the Electoral Act. As to (b) non-compliance is not fatal to the petition having regard to the express provisions of section 147(5) of the Electoral Act particularly the reference to doing of any act therein. With respect I find the cases of Obate v Nnawo, (1972) 2 E.C.S.L.R. and Emenue v Nke-reuwem 9 E.N.L.R. 120 and 1966 1 All N.L.R. 63 and others cited by respondents’ counsel easily distinguishable and inapplicable.

I would wish to add however that the objections raised by respondents in (b) above were fundamental and not such as could be waived or defeated by taking some steps in the proceedings. Nevertheless, those Justices of the Court of Appeal who held otherwise than as above erred in law.

2. Nature of Allegation in the Petition:

This concerns the question of imputation of crime. I would wish to predicate my conclusion on this point by saying that each case has to be strictly limited to its particular facts especially the pleadings. In the case in hand the petitioner in paragraph 5(iii) of his petition pleaded as follows – ”The results of the said elections were falsified by the 2nd, 3rd,4th and 5th respondents or their agents, servants or privies in most of the local government areas within the State constituency for the election”.

There was also reference in paragraph (iii)(a), (b) and (f) of the petition to votes scored by 1st respondent being jacked up. Although in the further and better particulars which he filed Chief Williams specifically denied any allegation of collusion and narrowed his complaints to the deputy returning officers, I find it difficult to accept his contention that the manner in which what was alleged to have happened between the deputy returning officers and the returning officer was averred could be innocent misrepresentation or arithmetical error and not fraudulent misrepresentation.

But allegation of crime if it is vague and imprecise cannot be the basis of a charge. It has to be a specific crime or at least embody the ingredients of a crime known to the law. The averments here in my view can for the moment come within section 105(e) of the Electoral Act 1982.

The subsidiary issue to the nature of allegation is standard of proof. If there is allegation of crime, as I hold is contained in the petition, the burden of proof must be beyond reasonable doubt. See section 137(1) of the Evidence Act. For this purpose the deputy returning officer is a party to these proceedings. See paragraph 5(iii) of the petition as well as sections 121 (2)(d) and 64(4)(d) of the Electoral Act, 1982.

3. Admissibility of Exhibits:

I hold that the majority Justices of the Federal Court of Appeal erred in law in holding that exhibits C-H2 were inadmissible in evidence. They are admissible as primary evidence. I may mention that I also disagree with the view of some Justices of the Court of Appeal that the exhibits were public documents and the petitioner could only tender copies certified by FEDECO. To so hold would in my view make it unlikely that anyone in this country could ever successfully prosecute an election petition. Could FEDECO have certified the petitioner’s documents knowing he was to challenge their figures with those documents

4. Discharge of Burden of Proof:

Did the petitioner discharge the burden of proof in him First whether the burden is beyond reasonable doubt or on a balance of probabilities the nature of the proceedings of an election petition is equated to a civil proceeding. See section 129(1) of the Electoral Act. The entire evidence must therefore be considered by the court before determining this. The petitioner led evidence of a assistant returning officers as well as other witnesses. The, assistant returning officers it must be remembered are officials of FEDECO. The respondents were at all material times in possession of the returns allegedly sent to them by those assistant returning officers through the deputy returning officers. I hold that when they gave evidence (i.e. the AROs and tendered exhibits C-H2 the respondents ought to have cross-examined them (the AROs) so as to discredit them with exhibits RB2-RQ4 which were allegedly also submitted to FEDECO by them (the AROs). See section 198 of the Evidence Act. This was never done. Copies of the results in Ezeagu, Isi Uzo and Igbo Etiti, pursuant to section 70(b) of the Electoral Act were given to the NSO, the police and petitioner’s party agents. They gave evidence confirming the petitioner’s figures. They not only signed exhibits C-H2 but testified as to the announcement of the results in those 3 collation centres and confirmed the petitioner’s figures as announced. A signal was sent to FEDECO Headquarters, Enugu, as to the petitioner’s and 1st respondents correct votes in Isi Uzo. Even the person who received the message at Enugu was identified. None of this was contradicted. As against all this, the respondents called one Deputy Returning Officer Ude who was rejected as totally untrustworthy by the High Court. The exhibit RBI which he claimed represented the total votes scored by the candidates in Ezeagu LGA was stigmatised as worthless. Neither the Court of Appeal nor this court has or can alter that finding. Following this exhibits RB2, RB3, RB4 must also be of no value. These are part of the documents on which the State certificate of return exhibit RRI was prepared.

The petitioner is to prove his case beyond all reasonable doubt, not beyond all shadow of doubt. See Miller vs Minister of Pensions, (1947) 2 All E.R 372, 373.

I find considerable merit in this appeal and I would allow it. I hereby set aside the judgment of the Federal Court of Appeal Enugu dated 28th September, 1983.

In its place I restore the judgment of the majority members of the Anambra State election court dated 12th September, 1983. I award costs to the petitioner against each of the respondents which I assess at N300. As I indicated earlier I shall give more detailed reasons for this judgment later.

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SC.96/1983(2)