Chief Reece Edukugho V Jemide Awani (1965)

LawGlobal-Hub Lead Judgment Report

ADEMOLA JSC

This is an appeal by Chief Reece Edukugho who claimed that on the 3rd February, 1964 he was elected for the Warri South West Constituency in a three cornered contest at the election to the House of Assembly of the Mid-West Region. The present respondent, Jemide Awani, was the petitioner in the High Court of the Mid-West Region at which the present appellant was declared not duly elected and the election was nullified. The third party to the contest, Henry Brown, is not a party to this petition.

The petition was based on three grounds; but at the hearing in the High Court the third ground was abandoned. The remaining two grounds are as follows:-

“(1) On the election day Monday 3rd February, 1964 at Saba polling station in the Warri South-West Constituency, voting was suspended for several hours and very many registered voters who had come in the interval to cast their votes could not therefore do so and they had to return to their distant and scattered homes in the creeks; furthermore, that time for voting was not extended at this station to make up for the loss of time.

(2) On the election day, Monday 3rd February, 1964, at Saba polling station, during voting hours, the Presiding Officer, James Atotuoma Atsigbede was found inside the polling booth near the ballot box bearing the symbol of 1st respondent with 50 stamped ballot papers already detached from two booklets.”

The facts which were proved before the High Court, and were not disputed, are shortly as follows:-

That at Saba polling station (one of the 24 polling stations in the Constituency) there were 179 registered voters; that voting started at 9.00 a.m. instead of 8.00 a.m. on the election day; that during the first hour of voting only three voters cast their votes, and about this time the Presiding Officer was seen near the ballot boxes with some ballot papers in his hands. It is clear that none had been put in the ballot boxes by him. He was arrested by the policeman on the spot; voting was suspended by the policeman and an announcement was made to this effect. A few men, about 40 or 50 in all, who formed a queue at the time ready to cast their votes then dispersed, and the Supervisory Presiding Officer, Paul Sibe, was sent far. On his way to Saba Paul Sibe met a group of men, fifteen in number, in three canoes who informed him that voting had been “spoilt” at Saba and that they were returning to their homes.

It is not clear whether these men returned to Saba with Paul Sibe or not; neither side asked this question. When Paul arrived at Saba he appointed one Donoloromi as the Presiding Officer in place of the man who was alleged to have ballot papers in his hands. Voting was resumed after a suspension of about two hours. Later, the poll was closed at the official time, namely at 5.00 p.m. When the votes were counted it was found that 87 votes in all were cast at Saba and that 92 voters did not cast their votes. Votes recorded in all the constituencies of about 7,000 voters are as follows-for the petitioner Awani, 1,503 votes; for the respondent Chief Edukugho 1,541 votes; for Henry Brown 613 votes. Thus the respondent polled 38 more votes than the petitioner. In the Saba polling station where the dispute leading to this petition arose, the petitioner Awani polled 25 votes and the respondent Chief Edukugho 57 votes; that is, 32 votes more than the petitioner.

The learned judge based his judgment largely on the matter of the Presiding Officer who was later appointed by the Supervisory Presiding Officer. He said:-

“By this unforeseen incident very early in the poll it turned out that there was no legal Presiding Officer at Saba when poll resumed at 12.05 p.m. until the close of the poll at 5.00 p.m.”

This, it is to be observed, is not one of the grounds put forward in the petition to set aside the election; it was introduced for the first time before the learned judge in the address of counsel for the petitioner without any objection by the court or by the respondent’s counsel. The learned judge found that the appointment of Donoloromi to act as Presiding Officer was irregular and unauthorised by law and that Paul Sibe the Supervisory Presiding Officer had no authority to appoint a Presiding Officer. He held that all votes cast from the time he was so appointed at Saba (12.05 p.m.) were invalid votes.

We cannot agree with the view of the learned judge on this point; an election should not be avoided on such a trifling defect: Reg. 74(2) of the Parliamentary Electoral Regulations 1960, in support of this view, reads:-

“(2) An election shall not be liable to be questioned by reason of a defect in the title, or want of title, of the person conducting the election, if that person was then in actual possession of, or acting in, the office giving the right to conduct the election.”

Thus, it is clear that irregularities to upset an election must be substantial and not mere informalities. See Borough of Hackney Case (1874) 31 L.T. 69.