E. B. Sorunke V. J. D. Odebunmi (1960) LLJR-SC

E. B. Sorunke V. J. D. Odebunmi (1960)

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The respondent in this appeal was the petitioner before Charles, J., in an Election Petition in respect of the election to the House of Representatives for Egba North held on the 12th day of December, 1959, at which election the present appellant was declared returned by a majority of 109 votes. In a considered judgment, Charles, J. declared that the election of the present appellant was invalid on the ground of noncompliance with Regulation 68 of the Elections (House of Representatives) Regulations 1958.

There was very little in dispute at the trial before the learned Judge. It was alleged in the petition in the first instance, and agreed to by the present appellant, that at six of the polling stations, namely Ward C9, C12, C54, B5 and D12, there were a large number of ballot papers which were not counted because they did not bear the official stamp. In the second instance, the petitioner alleged, and it was also agreed to, that in wards C57 and D4 all the ballot papers were rejected. In his petition, the petitioner alleged that as the polling officer failed to produce the official stamp in these wards, the candidates’ agents agreed that a cross be made on the ballot papers.

This was, however, denied. In any case, it was agreed that in ward C57, the number of votes cast for the petitioner (now respondent) was 165 votes as against 4 votes cast for the present appellant. Inward D4 there were 101 votes cast for the present respondent as against 200 cast for the appellant. In all 876 votes cast for the present respondent were rejected whilst 607 votes cast for the appellant were rejected; and be it noted that the election was declared in favour of the present appellant by a majority of 109 votes.

Before the hearing of the appeal, leave was sought and granted to argue additional grounds. Mr. Kayodes argument in the main in support of the appeal may be classified under three heads, as follows:-
1. That the learned trial Judge was wrong and he erred in holding that the presence of unstamped ballot papers in wards C9, C12, C54, B5 and D12 constituted an irregularity since there was no evidence before the Court to prove the irregularity on the part of the polling officer or the presiding officer.
2. That even if there is any irregularity in the course of the election by noncompliance with the Election Regulations, 1958, the election was conducted substantially in accordance with the Regulations, and the noncompliance did not affect the election.
3. That Exhibits A and B were wrongly admitted in evidence.

As I stated earlier in this judgment there was in the Court below no dispute about facts. It was clear there was a breach of Regulation 68 of the Regulations which requires that:
Immediately before the polling officer delivers a ballot paper to a voter:

(a) the ballot paper shall be marked or punched with an official secret mark, and shown to the polling agents who are present.
There was no dispute that these ballot papers do not bear official marks.
I therefore see no substance in the first head of Mr. Kayode’s argument nor do I think it worthwhile to consider the third head of his argument that Exhibits A and B, which were records made by the Returning Officer of valid votes and statement showing rejected ballot papers were wrongly admitted in evidence being secondary evidence, since the evidence was not objected to at the trial and, in any case, they are clearly admissible, the original ballot papers having been put in evidence as well.

This appeal, therefore, must turn on the question whether or not the election was conducted substantially in accordance with the Regulations, and whether the noncompliance, which has clearly been admitted, affects the result of the election.
Now Regulation 6(1)(b) of the Disputed Seats Regulations 1959 reads: An election petition may be questioned on the following grounds……..

(b) That the election was invalidated by corrupt practices or (subject to the provisions of Regulation 7) noncompliance with the Election (House of Representatives) Regulations, 1958.

and Regulation 7(1) of the 1959 Regulations is as follows:-
An election shall not be invalidated by reason of non compliance with the Elections (House of Representatives) Regulations 1958, if it appears to the Court having cognizance of the question that the election was conducted substantially in accordance with those Regulations and that the noncompliance did not affect the result of the election.

This Regulation seems to enact as much as Lord Coleridge said in the case Woodward v. Sarsons, 10 L.R.C.P. 733 at p.743, where he said as follows:-
“As to the first (i.e. as to what is the true statement of the rule under which an election may be avoided by the Common Law of Parliament), we are of opinion that the true statement is that an election is to be declared void by the common law applicable to parliamentary elections if it was so conducted that the tribunal which is asked to avoid it is satisfied, as a matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election laws. As to the first, the tribunal should be so satisfied, i.e. that there was no real electing by the constituency at all, if it were proved to its satisfaction that the constituency had not in fact had a fair and free opportunity of electing the candidate which the majority might prefer.”

Touching whether a breach of the Ballot Act can as suuch be a ground for avoiding an election, at p.746 of the judgment referred to, Lord Coleridge continued.

“In this case, therefore, when the objections to the particular votes have been determined, the effect of the mistakes on the result of the election will be exactly known. If so, there is no room for speculation or doubt as to whether a majority may or may not have been prevented from voting with effect Those who did not vote were not prevented by the errors which occurred; it will be seen how the majority of those who did vote was affected by such errors. In this case, therefore, it becomes necessary, not by way of scrutiny, but in order to determine whether the majority has been prevented from voting with effect, to determine upon the validity or invalidity of the votes which were given, and to which objection has been taken.”

Finally, in considering whether the election was void, by virtue of a breach of the Ballot Act, Lord Coleridge said at page 751 of the Judgment.
“If this proposition be closely examined, it will be found to be equivalent to this, that the nonobservance of the rules or forms which is to render the election invalid, must be so great as to amount to a conducting of the election in a manner contrary to the principle of an election by ballot, and must be so great as to satisfy the tribunal that it did affect or might have affected the majority of the voters, or in other words, the result of the election.”

When Lord Coleridge refers to a majority of the voters, he cannot mean to say that noncompliance may be overlooked unless it affects over half of the votes cast. He referred to a non compliance which “affected the majority of voters, or, in other words, the result of the election.” It cannot be doubted that here Lord Coleridge means that those electors wishing to vote who formed a majority in favour of a particular candidate must have been prevented from casting a majority of votes in his favour with effect.

This does not require that all their votes must have been disallowed; it will be sufficient if enough of their votes are disallowed to give another candidate a majority of valid votes.
This matter came up for consideration in the case In re Kensington North Parliamentary Elections 1960, 1 W.L.R. 762 where section 16(3) of the Representation of the People’s Act, 1949, which is analogous to our Regulation 7(1) of the 1959 Regulations, was considered by Streaffeild, J., as to when a non compliance may not affect the result of an election.

In his judgment, at page 766 of the report, Streatfeild, J., said:-
“Here out of a total voting electorate of 34,912 persons who recorded their votes, three or possibly four are shown by evidence to have voted without having their names marked off in the register, and each of them only voted once. Even if one were to assume in favour of the petitioner that some proportion of the remainder of 111 persons, whom we have not seen, were in somewhat similar case, there does not seem to be a shred of evidence that there was any substantial noncompliance with the provision requiring a mark to be placed against voters names in the register …  Even if all the 111 were similarly affected, it could not possibly have affected the result of this election; therefore, as it seems to me, although there was a breach of the sort alleged in paragraph 3(1) of the petition in that marks were not placed against certain names on the register, I should be prepared to say that there was a substantial compliance with the law in this respect governing elections, and that the omission to place a mark against the names did not affect the result.”

It appears to me that no other conclusion could have been reached in that case where the petitioner polled only 2,821 votes as against 14,925 votes polled by the respondent who was returned and 14,048 votes polled by the second candidate. The 111 votes complained of could not by any stretch of imagination have affected the result of the election one way or the other.

In the present appeal, the total votes cast in the Egba North Constituency were 22,538. Out of these 1,608 were declared invalid as they voted without stamped ballot papers. Of the 1,608, in all 125 were votes cast for the other two candidates not parties to the petition, 876 were cast in favour of the present respondent and the appellant had only 607 in his favour. It seems to me immaterial whether these irregularities (non stamping of the ballot papers) took place in six stations or ninety-six stations. The only question is, did a majority of the electors who voted do so in favour of the petitioner (present respondent), and if so, was failure by him to secure a majority of valid votes due to noncompliance with the Regulations on the part of the electoral officers? Clearly the answer is yes, and therefore the election is bad.

The judgment of the learned trial Judge declaring that the election was invalidated as prayed will be affirmed and this appeal (except as to costs) is dismissed.
With regard to the matter of costs, the learned Judge awarded £150 as costs. It appears from the record that he based this on an out-of-pocket expenses of £41-8s-6d and six appearances. It was, however, not pointed out to him by Counsel that on an adjournment being granted on 5th March, 1960, costs of £10 10s-0d were awarded in favour of the petitioner.

That amount will be deducted from £150 and a cost of £139-10s-0d will be substituted for costs awarded in the Court below.
Costs in this Court in favour of the petitioner (respondent in this Court) are assessed at 30 guineas.

Other Citation: (1960) LCN/0840(SC)

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