Mr Osazee Ojo V. Mrs Jacob Esohe & Ors (1999)

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TABAI, J.C.A.

In the election into the Edo State House of Assembly, held on the 9th of January 1999, both the petitioner/appellant, Mr. Osazee Ojo, and the 1st respondent, Mrs. Esohe Jacob contested for the seat in the Egor Local Government Constituency. At the close of the election the result announced by the 2nd and 3rd respondents was that while the appellant of the All peoples Party (APP) scored 10,694 votes, the 1st respondent of the Peoples Democratic Party (PDP) scored 10,709 votes. The 1st respondent was therefore declared and returned as the duly elected representative for the Egor Local Government Constituency of Edo State having secured a majority of lawful votes. Exhibit ”A” dated the same 9th January, 1999 was the evidence of such election and return.

On the 22nd January 1999, the petitioner/appellant presented an 8 paragraph petition to the Governorship and Legislative Houses Elections Tribunal. In paragraphs 6 and 7 thereof the appellant asserted that the 1st respondent’s declaration and return was wrong and that the result declared contained arithmetic or mathematical errors. In paragraph 7 in particular, he gave a table containing the scores of each candidate in each of the ten wards that make up the constituency and asserted, in conclusion, that he scored 10,668 votes as against the 1st respondent’s score of 10,668 votes and prayed, therefore, that he be declared and returned as duly elected having won a majority of lawful votes. With reference to the scores in ward 09 it was his assertion that while he scored 1,281 votes the 1st respondent scored 1,521 Votes.

In her reply of 8 paragraphs, the 1st respondent denied any arithmetic or mathematical errors in the results in Exhibit “A” which she asserted, therefore contained the valid and lawful votes of 10,709 for her and 10,694 for the appellant. With respect to ward 09 she asserted that she scored 1,562 votes and not 1,521 alleged in paragraph 7 of the petition. The 2nd and 3rd respondents also filed a five paragraph reply in which they denied the allegations contained in paragraphs 6, 7 and 8 of the petition.

At the trial the petitioner/appellant and one other witness testified in support of the petition. In the course of the proceedings the petitioner sought to tender through the PW1, 18 units results of Ward 09 but the tribunal sustained the 1st respondent’s objection to their admissibility on the ground that they were not pleaded. At the end of the trial the tribunal dismissed the petition.

Against that decision the appellant has now appealed to this court, the grounds of appeal without their particulars being:

(i) Tribunal erred in law in dismissing the petitioner/appellant’s petition when it was clear on the record that the petitioner/appellant scored majority of lawful votes case at the said election; and (ii) The tribunal erred in law in refusing to admitted results in Ward 9 as exhibit.

In his brief of argument the appellant formulated the following two issues for determination.

(a) Whether the petitioner/appellant scored majority of lawful votes cast at the election and ought to be declared elected and/or returned.

(b) Whether the tribunal was right in rejecting the result of Ward 9 of the said constituency.

The 1st respondent formulated only one issue for determination and that is whether or not the appellant’s petition was rightly dismissed by the Election Tribunal.

In his argument, the appellant contended that the only issue is whether the 1st respondent scored 1,521 votes or 1,562 votes in Ward 9 and submitted that since it was the appellant that adduced evidence in support of his assertion which was not rebutted, the figure 1,521 ought to have been accepted by the tribunal. He relied on Nwabuoku v. Ottih (1961) ANLR 57; (1961) 2 SCNLR 232. He also relied on the evidence of the PW1 to the effect that it was the ward’s returning officer, one Mr. Osaigbovo Monday that inflated the results for Ward 9 to favour PDP with extra 41 votes which affected the result in favour of the 1st respondent. He argued that the PW1 corroborated the evidence of the petitioner and submitted that their evidence about the scores of the parties ought to have been accepted. It was the contention of the appellant that the tribunal was wrong to have rejected the results from the units in Ward 9 since the overall results of the said units make up the result for the ward. He submitted that a pleader must plead only material facts and not evidence and that documents in support of a pleaded fact need not be pleaded. In support of this argument he cited Odunsi v. Bamgbala (1995)27 LRCN 187 at 218; (1995) 1 NWLR (Pt.374) 641. It was the contention of the appellant that had the documents been admitted the petitioner/appellant would have scored 1,281 votes and the 1st respondent 1,523 votes in Ward 9 bringing the total scores to 10,688 votes for the appellant and 10,670 for the 1st respondent. He concluded by contending that with the rejection of the documents no substantial justice had been done and re-emphasised the warning by the Supreme Court against the perpetuation of injustice in Samson Awoyala v. Joshua Ogunbiyi (1985) 10 S.C. 35 at 76. he urged that the appeal be allowed.

In the 1st respondent’s brief of argument, it was contended that in view of the averments in paragraph 7(a) of the petition the issue whether or not the petitioner/appellant scored a majority of lawful votes cast at the election and ought therefore to be declared or returned did not arise for the determination of the Election Tribunal because it was not a ground for the petition. According to her whether or not a person was elected by a majority of valid votes cast at the election is a specific ground for election petition under Section 134(1) (c) of Decree No.3 of 1999. According to the 1st respondent the only reference to a majority of lawful votes was contained in the prayer in paragraph 8 of the petition and since it was not specifically pleaded that the appellant had a majority of lawful votes the issue did not arise for the determination of the Election Tribunal and by extension does not arise for determination in this court.

The 1st respondent referred to the evidence of alteration or inflation of results in units 1 and 9 of Ward 9 and contended that since there was no pleading of these facts the evidence in respect thereof goes to no issue and ought to be expunged from the record.