Chief Reece Edukugho V Jemide Awani (1965) LLJR-SC

Chief Reece Edukugho V Jemide Awani (1965)

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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.

The only other point which needs our consideration is the first ground upon which the petition is based. It was argued that about 40 or 50 men who were ready to cast their votes had to disperse when the election machinery broke down about 10.00 a.m. that morning, and it is doubtful if they returned to vote 21/2 hours later and that this suspension did affect the result of the election. Also that voting closed at 5.00 p.m. without due notice taken of the fact that voting started an hour late in the morning and also that there was a break of two hours.

On this point the learned judge considered whether on these facts the election in this constituency was conducted substantially in accordance with the principles of the Electoral Regulations. He then examined the case popularly known as the Hackney case. He said:-

“In the Hackney case Gill v. Reed & Holmes (1874) 31 L.T. 69 Gore J. inter-alia applied the following test:- `but I am perfectly certain, so far as my judgment goes, that an election which is conducted in such a way, and which whether by accident or by design, does not afford to a very large mass of the electors an opportunity of voting, cannot be a true election of members; and there, for the moment, leaving the Statute out of the question, it appears to me that there was no real election here which was in any sense a fair representation of the views of the electors of the Borough of Hackney.’ It is impossible to decide accurately at this point of time how the minds of the electorate at Saba were affected by the interruption of the polls after only 3 persons had cast their vote. From the evidence before me it is possible that some might have gone with the intention of returning but somehow did not return or, having heard that the voting was spoilt at Saba and the Presiding Officer placed under arrest, did not bother to go. It must be borne in mind that transport is not too easy or frequent in the area which is in the creeks ”

We cannot appreciate how the minds of the electorate at Saba could be adversely affected by the interruption of the poll since steps were taken to announce that polling was suspended temporarily. At the time of the suspension there were about 40 or 50 voters waiting to record their votes. About 84 in all voted later. When it is realised that Saba is a small fishing village and people had come home from neighbouring creeks to record their votes, it is more likely that they would not go away without recording their votes merely because voting was temporarily suspended. From evidence on record, many of the voters had come home, so to speak, for the occasion; some had traveled a whole day arriving the night before the election. In the main, witnesses called by the petitioner himself said they waited and cast their votes in the afternoon as the vote was “spoilt” in the morning.

The fact that 87 out of about 179 registered electors had recorded their votes does not to our mind justify the view taken by the learned judge that the majority of the electors were not afforded the opportunity of recording their votes; it is to be remembered that in the whole constituency of about 7,000 registered electors only 3,652 (including 87 from Saba) voted. Thus about half of the registered electors voted on the whole, the position is that about the same half voted in Saba area.

Much has been made by counsel for the petitioner that the poll should not have been closed at the normal closing time of 5.00 p.m. since about two hours had been lost in the morning. There would have been some force in this argument had there been evidence that at 5.00 p.m. there were voters waiting who were unable to record their votes. The evidence before the learned judge was that about 15 persons were standing about (none of them voters) by the polling station when it was closed at 5.00 p.m. It appears therefore that all those who went to the polling station to vote had the opportunity of doing so if they wished.

The learned trial judge based his judgment primarily on what happened at Saba. The appointment of a new Presiding Officer at Saba he thought was improper, and everything which followed from it, the

Other Citation: (1965) LCN/1207(SC)

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