Dixon Ojiegbe and Anor Vs Marcus W. Ubani and Anor (1961)

LawGlobal-Hub Lead Judgment Report

ADEMOLA, C.J.F.

This is an appeal from the dismissal by Hughes, J., in the High Court of the Aba Judicial Division of an election petition arising out of an election held on the 12th December, 1959, to the House of Representatives in respect of the Aba Central Constituency No. 238. The first petitioner who is the 1st appellant, claimed that he voted at the election; the second petitioner who is the 2nd appellant claimed he had a right to vote at the election but that for reasons I shall mention later in this judgment, he did not vote. Counsel for the petitioner who appeared in the court below and in the appeal now before us was the defeated candidate at the election.

For convenience, I will say a word here about this invidious position. Undoubtedly Mr Ubani-Ukoma’s interest was identical with that of the petitioners, although ostensibly he was appearing as their counsel. I think it is undesirable for a barrister to put himself into a situation in which he can-not be “counsel” in the true sense of the word, because he is in substance the party – the petitioner. Mr Ubani-Ukoma should have brought the election petition himself.

The petitioners filed various grounds of objection to the result of the election, but they were all rejected by the learned trial Judge. We are con-cerned in this appeal with a few of the grounds but it is unnecessary to set them down as they are clearly shown in the grounds of appeal which I shall consider later.

Of the ten grounds of appeal filed, five were opposed by counsel for the Respondents and were later abandoned by counsel for the appellant.

Grounds 1, 2, 3, 9 and 10 which were argued are as follows:-

(1) The learned trial Judge erred in Law in the interpretation placed on sections 7 and 11 of Schedule VI to Nigerian (Constitution) Order in Council 1954 – Fundamental Rights. The denial of the right of Franchise to sabbath keepers was an act of discrimination and negation of freedom of conscience and Religion.

(2) The learned trial Judge was wrong in Law by the construction put to the proviso to regulation 43 of the Election (House of Rep-resentatives) Regulations 1958 in that part of his judgment which stated that the right to vote on a holy day rested with the consci-ence of each individual, etc.

(3) The judgment was unwarranted and against the weight of evidence.

(9) The learned trial Judge was unreasonable to reject “Notice to Candidate No. 3”, an admissible document which was sought to disprove the evidence of the principal witness of the 2nd Respondent, and leave of this Honourable Court will be sought to admit it to confirm the allegations made against Mr Odinamadu.

(10) The cost awarded in the Court below is excessive. Additional grounds may be filed on receipt of record of proceedings.

Grounds (1) and (2) were argued together. Shortly put the complaint is that in this particular constituency, many voters belong to a religious sect known as the Seventh Day Adventists, whose rights, it was submitted, were violated; that they were subjected to disability or restrictions in that it is contrary to the ethics of their religion to do anything or any manner of work on a Saturday which is their Sabbath Day. Thus many of them for fear of being excommunicated from the Church refrained from going to the polls. When the polling date was fixed by the Governor-General, protests were made by this sect that it was contrary to their religious belief to exercise the right to vote on a Saturday and therefore the polling day should be changed to Fri-day, 11th December, 1959. After due consideration, the request for a change was refused.

Counsel now argues that the political rights of members of this religious body have been interfered with and this in effect is a matter affecting the Fundamental Human Rights of the various individuals concerned.

Questioned by the Court why no application was made to the Judge in the Court below to refer the matter of Fundamental Human Rights to this Court, Mr Ubani-Ukoma gave no satisfactory reply, nor was he able to explain why an issue of it was not made at the earliest, namely, as soon as the Chairman, Electoral Commission, refused to alter the polling date, and to state that such refusal constitutes an infringement of Fundamental Human Rights of a class.