CHIEF JIM IFEANYICHUKWU NWOBODO v. CHIEF CHRISTIAN CHUKWUMA ONOH & 2 ORS (SC 96/1983) [1984] 1 (06 January 1984);

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IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 6TH DAY OF JANUARY 1984

SC 96/1983

BETWEEN

CHIEF JIM IFEANYICHUKWU NWOBODO ............................................... APPELLANTS

AND

CHIEF CHRISTIAN CHUKWUMA ONOH  AND 2 ORS ........................................... RESPONDENTS

BEFORE: Sowemimo C.J.N. Irikefe, Bello, Obaseki, Eso, Nnamani, Uwais; JJ.S.C.

 

At the election of the office of Governor of Anambra State held on the 13th of August 1983 the returning officer (herein after referred to as the fifth respondent) returned Chief Onoh (hereinafter referred to as the first respondent) as having been duly elected. Dissatisfied with the result of the poll, Chief Nwobodo (hereinafter referred to as the petitioner) who was one of the unsuccessful candidates at the election, filed an election petition in the High Court of Anambra State against the five respondents–namely the first respondent, and the second, third and fourth respondents who were the Chief Federal Electoral officers for Anambra State, the Federal Electoral Commission and the Resident Electoral Commissioner respectively and the fifth respondent–complaining that the first respondent was not duly elected by majority of lawful votes at the election but that he, the petitioner had the highest votes and had not less than one-quarter of all votes cast in each of at least two thirds of all local government areas in the state. He prayed that he ought to have been returned as duly elected. On the application of the petitioner during the proceedings the third and fourth respondents were struck out.

At the conclusion of the trial of the petition, the High Court by a majority of 3 to 2 judges that constituted the Court gave judgment in favour of the petitioner and determined that he had been duly elected to the office. The ministry dismissed the petition.

The first, second, and fifth respondents were not satisfied with the decision of the High Court and consequently appealed to the Federal Court of Appeal which unanimously reversed the decision of the High Court and restored the return of the first respondent as being duly elected candidate. The petitioner has appealed to the Supreme Court against the judgment of the Federal Court of Appeal.

At the hearing of the petition at the election Court, objection was taken in limine on the issue of jurisdiction which arose from two orders for security for costs and substituted service made by Araka, C.J. sitting alone, before he empanelled five judges including himself that constituted the election Court. The two orders had not been made by election Court. It was also contended as the order for security had been made on 17th August 1983 which was the very day the petition was filed but that the costs were not paid until on 18th of August 1983, there was a breach of Section 127(1) of the Electoral Act and so there was no valid petition before the electoral Court. The election court overruled the objection.

On appeal to the Federal Court of Appeal, the majority were of the opinion that there was no valid order for security for costs and for substituted service and consequently there was no valid petition in the election court. They held that the petition ought to have been struck out on that ground.

 

HELD:

(1) The provisions of the constitution, in my opinion, are clear that a judge of the High Court sitting alone has jurisdiction to entertain all matters relating to an election petition including conducting pre-trial proceeding and making any order arising there from and also hearing and determining the petition itself. The provisions of section 119(3) of the Electoral Act which empower the Chief judge of a state to determine the number of judges that shall constitute an election Court cannot derogate from the provisions of section 238 of the constitution. The orders made by Araka, C.J. before the election panel was constituted had constitutional backing and the power of a Chief judge to determine a panel of more than one judge to constitute an election Court under section 119(3) of the Electoral Act would not affect the validity of the orders.

(2) It appears to me that the provision of section 127(1) of the Electoral Act are unique and the previous decisions relied on cannot assist in its construction. From the literal meaning of the first limb of the sub-section, there can be no doubt in the absence of any extension of time or direction by the Court, security must be deposited in Court at the time of filing the petition. In that event a petitioner who fails to so deposit may be said to have failed to comply with the sub-section. But the sub-section does not stop there. On the contrary, the second limb of the sub-section imperatively directs to deposit the security fixed by the Court in a Treasury. Since the Treasury in Enugu is not situated in any within the premises of the High Court, Enugu, where the petition was filed and amount of security as shown by evidence, it would be physically impossible to comply with the two limbs of the sub-section at the same time. It follows therefore any construction of section 127(1) to the effect that a petitioner must comply with the provisions of the two limbs at the same time is absurd. The two limbs ought to be read disjunctively.

(3) Even if section 127(1) of the Electoral Act is capable of the interpretation put to it by the majority of the Justices of Court of Appeal that security must be deposited at the time of filing the petition, the failure to do so in the case on appeal was a mere irregularity which is saved by the provisions of section 147(5) and (6) of the Act.

(4) On consideration of the evidenced relating to the falsified results alleged in paragraph 5 and the authentic results averred in paragraph 6, one cannot properly determine the authenticity of the results relied on in paragraph 6 independently of the falsified results in paragraph 5. To prove the results on which the averments in paragraph 1, 6 and 7(ii) were founded, the petitioner must prove the FEDECO results in paragraph 4 and 5 to have been forged. In the circumstances the innocent paragraphs in the petition could not be divorced from criminality. Accordingly, I was unable to severe the petition.

(5) There is in law a rebuttable presumption that the result of any election declared by the FEDECO is correct and authentic and the onus is on the person who denies its correctness and authenticity to rebut the presumption. In my view, where the such denial is based on allegation of crime against FEDECO officials responsible for the declaration of the results, the rebuttal must be proved beyond reasonable doubt.

(6) I am of the firm opinion that this is a proper case for an appeal Court to interfere with the finding of fact of the trial Court. For the proper determination of the issue before the trial Court, the advantage of seeing the witnesses and assessing their demeanour which is within the province of the trial Court were not the main determinant factors. The issue rested on the conveyance of undisputed votes scored by the political parties at the polling booths and recorded in the FEDECO forms thereat.

Appeal dismissed.

Per Obaseki, J.S.C. (dissenting):

“In my view, the commission of a crime by a party to this proceeding is not directly in issue and the petitioner is not required in law to discharge the burden of proving the crime of offence of falsification against any party to the proceeding. The Standard of proof required of the petitioner in this proceedings to succeed is that of balance of probabilities, this being a civil matter.”

Per Eso, J.S.C. (dissenting):

“Even where the allegation of a crime has been made in the pleading, it may be possible to prove the case without the proof of the crime. Where that is so, and I think this case is a good instance, then the mere fact that the crime has not been proved is no bar to proving the case on some other evidence on the balance of probabilities. It is to be noted that what section 137(1) of the evidence Act requires is that the crime Not the case shall be proved beyond reasonable doubt. If it is possible to prove One’s case by lesser evidence, non offering of the major evidence does not detract from the validity of the proof of the case for the case for the plaintiff or petitioner as the case may be”

Per Nnamani, J.S.C. (dissenting):

“It seems to me incredible that men who in effect are being suspected of issuing different documents to two different parties should having given evidence in the witness box which is against the interests of their employers (in this case FEDECO) not to be confronted immediately with the other documents which were at all material times in the custody of their employers.

There is no doubt therefore in my view that it was the respondents who should have recalled those assistant returning officers who gave evidence for the petitioner to confront them with a series exhibits allegedly prepared by them and sent to FEDECO. That failure cannot be used in discrediting those witnesses. Nor can it be fairly held that the petitioner’s case has not been proved beyond reasonable doubt..”

Chief FRA. Williams, S.A.N. with Chief A. Ogunsanya, J. H. C. Okolo, L. Williams, Dr. B. O. Okere, O. K. E. Irukwu and T. E. Williams for the Appellants.

A. O. Mogboh, With him Chief J. S. Ifebunandu, EE Odanwu, and C. N. Okeke for the first Respondent.

Chief G. C. M. Onyiuke, S. A. N. With him Chief C. Ikeazor, Jnr for second Respondent.

Chief P. G. E. Umeadi, S. A. N. With him A. O. Okunna, and E. O. Ometan for third Respondent.

Cases referred to:

(1) Ahmed v. Alhaji Haruna Kassim

(2) Benson v. Allison (1955-1956) WR NLR 58

(3) Emenue v. Nkeruwen (1966) 1 All NLR 63

(4) Ihenacho v. Mgbaraonye & 2 Ors (1960) 9 ENLR 106

(5) Ikoku v. Obi (1962) 1 All NLR Vol 1 part 1 194 at 99

(6) Jules v. Ajani (1980) 5-7 S.C. 96 at 116

(7) Lawal v. Dawodu (1972) 1 All NLR part 2 270 at 286

(8) Ngoh v. Ndoke (1960) 5 FSC 90

(9) Nwankwere v. Adewunmi (1967) NMLR 45 at 48

(10) Obele v. Nwaowo (1972) 2 ECSLR 484

(11) Ogbolumani v. Okobi & Ors 1959 WNLR II

(12) Obuoja v. Ishola (1982) 7 S.C. 314 at 349

(13) O. S. Benson v. Allison (1955-56) WRNLR

(14) Pinson v. Lloyds Bank (1941) 2 KB 72 at 75

(15) Shaw v. Reckit (1893) 1 QB 779

(16) Williams v. Mayor of Tenby & Ors (1879) L.R. 5 CP

(17) Woluchem v. Gudi (1981) 5 SC 291 at 295

Statutes referred to:

(1) Constitution of the Federal Republic of Nigeria 1979

(2) Electoral Act 1982

(3) Evidence Act

 

Bello J.S.C. At the election to the office of Governor of Anambra State held on 13th August, 1983, the returning officer (hereinafter referred to as the fifth respondent) returned Chief Onoh (hereinafter referred to as the fifth respondent) returned Chief Onoh (hereinafter referred to as the first respondent) as having been duly elected. Dissatisfied with the result of the poll, Chief Nwobodo (hereinafter referred to as the petitioner), who was one of the unsuccessful candidates at the election, filed an election petition in the High Court of Anambra State against the five respondents–namely the first respondent and the second, third and fourth respondents who were the Chief Federal Electoral Officer for Anambra State, the Federal Electoral Commission and the Resident Electoral Commissioner respectively and the fifth respondent–complaining that the first respondent was not duly elected by majority of lawful votes at the election but that he, the petitioner, had the highest votes and had not less than one-quarter of all the votes cast in each of at least two-thirds of all the local government areas in the State. He prayed that he ought to have been returned as duly elected. On the application of the petitioner during the proceedings the third and fourth respondents were struck out.

At the conclusion of the trial of the petition, the High Court by a majority of 3 to 2 of the judges that constituted the court gave judgment in favour of the petitioner and determined that he had been duly elected to the office. The minority dismissed the petition.

The first, second and fifth respondents were not satisfied with the decision of the High Court and consequently appealed to the Federal Court of Appeal which unanimously reversed the decision of the High Court and restored the return of the first respondent as being the duly elected candidate. The petitioner appealed to this Court against the judgment of the Federal Court of Appeal on 11 grounds of appeal. The appeal was canvassed on six main issues and I shall consider them seriatim.

Jurisdiction of the trial court: The issue on the jurisdiction arose from two orders for security for costs and substituted service made by Araka, C.J., sitting alone, before he empanelled five judges including himself that constituted the election court. Sections 127 (1) and 119 (3) of the Electoral Act 1982, hereinafter referred to as the Act, provide:

“127.

(1) At the time of filing the petition or within such extended time as may be allowed by the Court the petitioner shall give security for an amount filed by the Court and as directed by the Court; the petitioner shall deposit the amount in any Treasury or give security by recognisance for the amount.”

“119.

(3) For the purpose of exercising any jurisdiction conferred by this Act upon the Federal High Court or the High Court of a State, in any case involving the office of the President, Vice-President, Governor or Deputy Governor, the Chief Judge of the Federal High Court or the High Court of a State as the case may be, shall determine the number of judges that shall constitute the Court.”

At the hearing of the petition objection was taken in limine that since the two orders had not been made by the election court, that court had no jurisdiction to entertain the petition. It was also contended that as the order for security had been on 17th August, 1983, which was the very day the petition was filed, but that the costs were not paid until on 18th August, 1983, there was a breach of section 127(1) of the Act and so there was no valid petition before the election court. The election court over-ruled the objection.

On appeal to the Federal Court of Appeal, the majority namely Nasir, P., Kazeem, Belgore and Aikawa JJ.C.A. were of the opinion that there was no valid order for security for costs and for substituted service and consequently there was no valid petition in the election court. They held that the petition ought to have been struck out on that ground.

I think, it is pertinent to set out the views expressed by the learned Justices on this issue. Belgore J.C.A. who delivered the lead judgment, after stating that security for costs is a condition precedent for the petition to be filed or to mature into a petition under section 127 (1) of the Act, continues:

“It is either the security is given first or it is given contemporaneously with the petition as the majority judges of the election court even held in the judgment. The learned Chief Judge, Araka in Obale v. Nnaowo (1972) 2ECSLR 484 was not in doubt about this. Neither the Supreme Court of Nigeria in earlier cases of Emene v. Nkeruwen (1966) 1 All NLR 63, Ahmed v. Alhaji Haruna Kasim (1958) 3 FSC 51, and Ngoh v. Ndoke (1960) 5 FSC 90. There are cases that never went beyond High Courts but follow the same principle (see Ihenacho v. Mgbaraonye and 2 Ors (1960) 9 ENLR 106; O.S. Benson v. Allison (1955-56) WRNLR 50; and Ogbolumani v. Okobi & Ors 1959 WNLR 11). No security was given and there was no petition before the court.”

In agreeing with the lead judgment, Nasir, P. had this to say:

“COMPETENCE OF ELECTION COURT

This matter has well been covered by some of my brothers in their respective judgments. I need only to say that the issue of substituted service as ordered by the learned Chief Judge is not so fundamental as to be beyond an irregularity which can be cured under section 147 (5) of the Act. The issue of order for security is in my opinion fundamental. I am therefore in agreement with the judgment of my brother Belgore, J.C.A., on this issue. It is sufficient to vitiate the proceedings of the election court which was constituted after the order for security was made not only was the order made by the learned Chief Judge alone but there is the more fundamental issue that the security was not paid when the election was filed. This may be rather strict but the wording of section 127 (1) is unambiguous as to what it directs. We must accept the special nature of election petition and its special requirements.”

Kazeem, J.C.A., expressed his concurrence in these terms:

“I agree with the reasoning in the lead judgment that the order for security for costs was not validly made by the Chief Judge alone before setting up the panel that heard the petition itself. I also hold the view that the payment of the security for costs a day later after the filing of the petition is fatal to the whole proceedings for the following reasons:

(i) Under the provisions of sections 127 (1) of the Electoral Act 1982 (hereinafter referred to as the Act) the payment of the security for costs is a sine qua non to the filing of a petition and it must be so paid at the time of filing the petition or within such extended time as may be allowed by the court.

(ii) The security for costs in this case was not paid at the time of filing the petition; and no extension of time within which to pay it was applied for or allowed.

(iii) The time within which to file a petition (14 days from the time of announcement of result by virtue of section 119 (4) of the Act) or to grant an extension has already expired in this case.

(iv) It is too late for this Court to exercise its power (if any) to extend the time for payment of such security since the time within which to present the petition has already expired in this case.

(v) The provisions of section 147 (5) of the Act cannot in my view be invoked to remedy the situation as urged on us by Chief Williams since the matter here relates to the time within which a petition should be filed.

(vi) Section 147 (5) of the Act is in pari materia with section 150 of the Electoral Act 1962 which was considered by the Supreme Court of Nigeria in the case of Emenue v. Nkerenwen (1966) 1 All NLR 63 where at page 68 the court observed as follows:

The section makes it clear that whilst failure to comply as to time may not be fatal in other respects, in respect of time within which to file a petition or to lodge an appeal, compliance is a sine qua non, and non-compliance is fatal. See also Ngoh v. Ndoke (1960) 5 FSC 90.

In the circumstances, I agree that the petition was not properly before the lower courts and it should have been struck out. For that reason I would also strike out the petition and that would have disposed of this appeal.”

Aikawa, J.C.A., was crisp in his conclusion thus:

“The two orders for the payment of security and substituted service were made by Chief Judge not on the panel. There is no provision which could empower him to make these orders on behalf of the panel. In Shaw v. Reckit (1983) 1 QB, 779 a judge not on the rota set up to hear election petition made an order in respect of the petition. On appeal it was held that the order was a nullity. I therefore find the two orders to be a nullity.”

The three other Justices that constituted the appeal panel dissented. Phil-Ebosi, J.C.A., held that under section 238 of the Constitution Araka, C.J., as a single judge had jurisdiction to make the orders complained of and the non-payment of security for costs at the time of filing the petition was a mere irregularity cured by section 147 (5) of the Act. Aseme, J.C.A., was of the opinion that the objections to the two orders and non-payment should have been taken before the respondents entered appearances and they should have been entitled to have the petition struck out. However, he went on to state, since they slept over their rights to object and proceeded to take part in the proceedings by filing replies, they could not thereafter take such objections as the irregularities were saved by section 147 (5) and (6) of the Act.

In his judgment Olatawura, J.C.A., simply agreed with the conclusion reached by majority judgment of the trial court on the issue of the orders for security and substituted service. With regard to the time for payment of security, he held that certainty of recovery of costs was the sole reason for the security and not the time for its payments. He further stated, if he was wrong, then section 147 (5) of the Act saved the situation.

At the hearing of the appeal before us, learned Counsel for the parties except Mr. Mogboh conceded to the validity of the two orders made by Araka, C.J. However, Mr. Mogboh contended that election petition is a special jurisdiction conferred on the High Court by section 237 (2) of the Constitution but one judge cannot exercise such jurisdiction by virtue of the provision of section 119 (3) of the Act.

Now, it seems to me that for invalidating the orders made by Araka, C.J., the majority of the Justices of the Court of Appeal relied heavily on section 119 (3) of the Act and the decision in Shaw v. Reckitt (1893) 1 QB 779 in which it was decided that, because of section 56 of the Corrupt Practices Act, 1883 which prescribed that leave to amend an election petition should only be given by one of the judges on the rota for the trial of election petitions, a judge not on the rota had no jurisdiction to grant leave. It is sufficient to say there is no such provision in our Electoral Act, 1982.

I think, it was only Phil-Ebose, J.C.A., that hit the nail right on the head when he stated, quite rightly in my view, that the jurisdiction of the High Court to hear and determine election petitions is conferred upon it by section 237 of the Constitution and section 238 of the same provides:

“238. For the purpose of exercising any jurisdiction conferred upon it under this Constitution or any law, a High Court of a State shall be duly constituted if it consists of at least one judge of that court.”

The provisions of the Constitution, in my opinion, are clear that a judge of the High Court sitting alone has jurisdiction to entertain all matters relating to an election petition including conducting pre-trial proceedings and making any order arising there from and also hearing and determination of the petition itself. The provisions of section 119 (3) of the Act which empower the Chief Judge of a State to determine the number of judges that shall constitute an election court cannot derogate from the provisions of section 238 of the Constitution. In my view, the orders made by Araka, C.J., before the election panel was constituted had constitutional backing and the power of a Chief Judge to determine a panel of more than one judge to constitute an election court under Section 119 (3) of the Act would not affect the validity of the orders.

On the issue of security for costs Chief Williams for the appellant adopted the reasoning of Aseme, J.C.A., whereas Chief Onyiuke contended that security is a condition precedent to filing a petition and it goes to jurisdiction. He urged us to accept the reasoning of the majority of the Justices of the Court of Appeal, particularly that of Kazeem, J.C.A. With due respect, it seems to me all the cases cited by Chief Onyiuke to support his submission that security is a condition precedent to filing an election petition were decided on statutes which were not in pari materia with section 127 of the Electoral Act, 1982. Ifeanacho v. Ngbaraonye and Emenue v. Nkerenwen (1956) 9 ENLR 106 and 120 respectively were based on section 98(1) of the Electoral Act, 1962 which stated “Before presenting a petition the intending petitioner shall apply to the court ... for an order ... of security.” Section 99(4) further prescribed “No petition shall be received without payment of the fees and the deposit.” Williams v. Mayor of Tenby & Ors (1879) LR5CP 135 was decided on the clear provisions of section 13 of the Municipal Elections Act 1872 which made security a condition precedent to the trial of a petition. Again, Obele v. Nwaowo & Ors (1972) 2 ECSLR 484 was a product of section 193 (1) of the Divisional Administrative Edict, 1971, which reads:

At the time of presenting an election petition, or within such time as the Court may order, the petitioner shall give security for the payment of all costs, charges and expenses which may become payable by him to a witness summoned on his behalf or to a respondent.” (Italics mine).

I have perused all the cases relied on by the majority of the Justices of the Court of Appeal relating to their decision on security. I find the statutes or subsidiary legislations that governed those cases were not in pari materia with section 127 of the Act or the facts and the circumstances of some of those cases were not the same as of the case on hand. I may deal briefly with those cases: Benson v. Allison (1955-56) WRNLR 58 was decided on rules 4 and 8 of the Supreme Court (Election Petitions) Rules, 1951 which stated that security must be given before presenting a petition and not at any subsequent time. In Ahmed v. Kassim 5 FSC 51 the application of an intending petitioner to fix security for costs was dismissed because he was out of time for filing the petition under regulation 140 (3) of the Northern House of Assembly (Elected Members) Electoral Regulations, 1956. Ngoh v. Ndoke 5 FSC 90 dealt with the filing of the petition out of time contrary to reg. 91 of the Electoral Regulations, 1957. I have earlier considered Emimue v. Nkerenwen (1966) 1 All NLR 63.

It appears to me that the provisions of section 127 (1) of the Act are unique and the previous decisions relied on cannot assist in its construction. The sub-section has two limbs thus:

(1) At the time of filing the petition or within such extended time as may be allowed by the Court the petitioner shall give security for an amount fixed by the Court and as directed by the Court; and

(2) the petitioner shall deposit the amount in any Treasury or give security by recognisance for the amount.

From the literal meaning of the first limb of the sub-section, there can be no doubt in the absence of any extension of time or direction by the court at the time of filing the petition. In that event a petitioner who fails to so deposit may be said to have failed to comply with the sub-section. But the sub-section does not stop there. On the contrary, the second limb of the sub-section imperatively directs the petitioner to deposit the security fixed by the court in a Treasury. Since the Treasury in Enugu is not situated within the premises of High Court, Enugu, where the petition was filed and the amount of security fixed by Araka, C.J., as shown by the evidence, it would be physically impossible to comply with the two limbs of the sub-section at the same time. It follows therefore any construction of section 127 (1) to the effect that a petitioner must comply with the provisions of the two limbs at the same time is absurd. In my view, the two limbs ought to be read disjunctively. The words “At the time” ought to be limited to the requirements of the first limb. Such construction will enable a petitioner to comply with the provisions of the second limb, i.e., after the court has fixed the security at the time of filing his petition, he will then go to the Treasury as the petitioner did in the case in hand to deposit the security. The evidence shows that the petitioner found the Treasury closed when he went to deposit the security on the day it was fixed. He deposited it the following day. To me, he complied with the provisions of section 127 (1).

Finally, even if section 127 (1) is capable of the interpretation put to it by the majority of the Justices of the Court of Appeal that security must be deposited at the time of filing the petition, I think the failure to do so in the case on appeal was a mere irregularity which is saved by the provisions of section 147 (5) and (6) of the Act which say:

“147.

(5) No failure to comply with this Part of this Act as to the time for the giving of notice or the doing of any act, matter, or thing other than as to the time for filing a petition or lodging any appeal shall avoid any proceedings, and in any proper case the proceedings may with the consent of the Court be amended or otherwise dealt with so as to give proper effect thereto; but if any proceedings are avoided, they shall, if commenced, be set aside in whole or in part, as the case may require.

(6) An application may be made at any reasonable time to set aside any proceedings for irregularity, and the application shall be by motion of which notice shall be given to any other party setting out the objections intended to be insisted upon, but no application shall be heard if the party moving has done any act, matter or thing with knowledge of the irregularity, or if the irregularity objected to is merely as to form or as to use of certified copies instead of duplicates.”

The grounds of appeal relating to jurisdiction therefore succeed.

I think, I may end this part of my judgment with this observation. In the application of the provisions of a statute to a particular case, a court should not blindly adhere to the ratio decidendi of a previous case founded on the interpretation of a former statute without having first carefully examined that statute and meticulously compared it with the statute governing the case for determination by the court in order to ascertain whether the two statutes are in pari materia. It is only when the two statutes are similar and identical that the interpretation placed on one can be a precedent to the interpretation of the other.

Pleadings: The grave men of the allegations in the petition were that all the respondents other than the first respondent including the Federal Electoral Commission, hereinafter referred to as FEDECO, deliberately falsified and inflated the results of the poll in the local government areas of the State mentioned in the petition to the advantage of the first respondent and to the detriment of the petitioner and that in consequence of such manipulations the returning officer, the fifth respondent, returned the first respondent as having won the election. The particulars of the alleged falsifications were averred in paragraph 5 (iii)(a) to (k) as follows.

 

         

Para No

Local
Government

Actual Votes
at Polling
Booths

Falsified
Results
Declared

 

 

For 1st
Respondent

For
Petitioner

For 1st
Respondent

For
Petitioner

(a)

Ezeagu

21,252

17,058

60,980

19,058

(b)

Isi-Uzo

17,782

23,031

44,367

27,863

(c)

Uzo-Uwani

15,600

16,611

30,200

27,747

(d)

Udi

47,356

12,855

77,532

14,661

(e)

Oji River

4,082

21,688

23,518

27,591

(f)

Igbo-Etiti

11,532

13,293

59,652

56,767

(g)

Igbo-Eze

24,008

33,976

61,955

46,569

(h)

Njikoka

30,643

38,686

80,832

76,178

(i)

Nkanu

13,987

44,308

33,070

58,885

(j)

Ishielu

27,322

20,488

101,021

23,769

(k)

Aguata

39,679

53,031

43,967

51,788

Before the hearing of the petition the respondents applied to the trial court for an order that the petitioner did furnish further and better particulars of the names and addresses of the persons alleged in paragraph 5 (iii) (a) to (k) of the petition to have colluded with the respondents to falsify the election results. In complying with the order of the court for further and better particulars, the petitioner replied that he did not rely on any collusion with the second, third, fourth and fifth respondents to falsify the election results in the local government areas mentioned in the petition but that he relied only on the fact that the return submitted by each of the deputy returning officers in respect of the voting results in the polling stations in each of the local government areas was false and did not represent the true and correct votes cast in favour of the petitioner or the first respondent. At the hearing of the application, Chief Williams, S.A.N., for the petitioner stated that the deputy returning officers were the only functionaries whose conducts were challenged as being responsible for falsifications of the election results. He further stated that although the petitioner did not know at what place the falsifications were done but he knew that the deputy returning officers had done so between the time collations had ended at the headquarters of each of the local governments and the time the results were handed to the returning officer.

It may be observed that it is not the function of particulars to take the place of necessary averments in the pleading: Pinson v. Lloyds Bank (1941) 2 KB 72 at 75. In other words, particulars do not amount to amendments of the pleading. It follows therefore that although by the particulars the deputy returning officers were alleged to have been solely responsible for the falsifications of the election results, the allegations in paragraph 5 of the petition against the respondents remained in the petition. Furthermore, the deputy returning officers were deemed to be respondents under section 121 (2) of the Act since the petition complained of their conducts.

Now, the allegations against the respondents other than the first respondent and the deputy returning officers were that knowing the true and correct results of the elections at the collection centres of the local governments, they deliberately falsified those results to the advantage of the first respondent and delivered the false results to the returning officer who acted on them. In my view, the allegations constituted the offences of forgery and uttering false documents under sections 467 and 468 of the Criminal Code of Anambra State. Section 465 of the Code defines forgery thus:

“465. A person who makes a false document or writing knowing it to be false, and with intent that it may in any way be used or acted upon as genuine, whether in Eastern Nigeria or elsewhere, to the prejudice of any person, or with intent that any person may, in the belief that it is genuine, be induced to do or refrain from doing any act, whether in Eastern Nigeria or elsewhere, is said to forge the document or writing.”

The term ‘make a false document or writing’ includes altering a genuine document or writing in any material part, either by erasure, obliteration, removal, or otherwise: and making any material addition to the body of a genuine document or writing; and adding to a genuine document or writing any false date, attestation, seal or other material matter.”

Again, the allegations also tantamount to an offence under section 99 of the Act:

“99. Any officer appointed for the purposes of this Act, who without lawful excuse is guilty of any act or omission in breach of his official duty commits an offence against the Act and shall be liable on conviction to a fine of N1,000 or to imprisonment for 12 months or to both.”

Burden of proof: Specific allegations of crimes in the petition appear to be clear in that the commission of forgery, uttering and dereliction of official duty can properly be said to be the basis or foundation of the petition. Since the respondents denied the allegations, the commission of crimes by parties to the petition was directly in issue and, consequently, section 137(1) of the Evidence Act came into play. The section stipulates:

“137.

(1) If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.” (Italics mine).

Section 2 of the Act defines “fact in issue”:

‘ “fact in issue” includes any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right liability or disability asserted or denied in any suit or proceeding necessarily follows.’

The issue of a crime must arise on the pleadings. The sub-section only applies where there is specific allegation of a crime so that its commission can properly be said to be a basis or foundation of the claim or defence as the case may be: Ikoku v. Obi (1962) 1 all NLR Vol. 1 Part 1 194 at 99 and Jules v. Ajani (1980) 5-7 SC 96 at 116.

However, where a plaintiff makes an allegation of a crime in his pleadings but nevertheless can succeed in his claim without proving the crime it cannot then be said that the alleged crime was a fact in issue or directly in issue: Nwankwere v. Adewunmi (1967) NMLR 45 at 48. Denning L.J. stated the rule aptly in Arab Bank v. Ross (1952) QBD 216 at 229 in these terms.

“Under the rules of pleading, as I have always understood them, a pleader who has pleaded more than he strictly need have done, can always disregard the unnecessary or surplus averments and rely simply on the more limited ones.”

The scope of section 137 (1) of the Evidence Act may be summarised: Where in an election petition the petitioner makes an allegation of a crime against a respondent and he makes the commission of the crime as the basis of his petition, the sub-section imposes strict burden on the petitioner to prove the crime beyond reasonable doubt. If the petitioner fails to discharge the burden, his petition fails. However, the provisions of section 137(1) are subject to the principle of severance of pleadings which may be stated thus: If in any civil proceeding the averments alleging a crime are severable and if after such severance there still remain in the pleadings of the plaintiff or the petitioner sufficient averments devoid of the criminal imputation against any party to the proceeding and on which the plaintiff or the petitioner can succeed in his claim or petition, then the burden of proof upon the plaintiff or petitioner is to prove his case within the balance of probability.

I may emphasize that the application of section 137 (1) of the Evidence Act to a civil proceeding depends on the contents of the pleadings in a particular case. Each case should be decided on its pleadings.

With these considerations in mind, when I applied the principle of severance to the petition and disregarded all the averments alleging crimes against the respondents, I found what remained of the petition could not be sustained having regard to the totality of the evidence adduced by the parties. The allegations of crimes were contained in paragraphs 4, 5, and 7(i) which covered six pages of the petition. In my view the three paragraphs were made to be the centre of gravity to which the other paragraphs in the petition were attracted. The petition consisted of nine paragraphs. Paragraph 2 described the parties while paragraph 3 averred that although the petitioner had won the election the first respondent was returned. Paragraph 8 simply alleged that falsified results for Abakaliki and Anambra Local Government Areas were corrected on protest by the petitioner and paragraph 9 furnished addresses of the parties.

Superficially, the averments in paragraphs 1, 6 and 7 (ii) which are devoid of imputation of any crime against a party may appear to sustain the petition. They read:

“1. Your petitioner is a person who claims to have had a right to be elected and/or returned as the Governor of Anambra State and your petitioner states that he won the majority votes and twenty-five per cent of the votes cast in more than two-thirds of the twenty-three Local Government Areas (for the purposes of the election) in Anambra State.

6. Your petitioner shall rely on the relevant results recorded by the officials of Federal Electoral Commission supporting the authentic results in attached Schedule ‘B’ to this petition. The respondents are hereby given notice to produce at the hearing of this petition the originals of all such relevant records in their possession, supporting the results in the attached Schedule ‘B’.

7.

(ii) your petitioner has the highest number of votes cast at the said election of Saturday, 13th August, 1983, and has not less than one-quarter of all the votes cast in each of at least two-thirds of all the local Government Areas in Anambra State.”

On consideration of the evidence adduced relating to the falsified results alleged in paragraph 5 and the authentic results averted in paragraph 6, one cannot properly determine the authenticity of the results relied on in paragraph 6 independently of the falsified results in paragraph 5. To prove the results on which the averments in paragraphs 1, 6 and 7 (ii) were founded, the petitioner must prove the FEDECO results specified in paragraphs 4 and 5 to have been forged. In the circumstances, the innocent paragraphs in the petition could not be divorced from criminality. Accordingly, I was unable to sever the petition.

Admissibility of Statements of Results of the Poll: In accordance with the provisions of section 62 of the Act and directions of the FEDECO, the ballot papers were counted by the presiding officers at the polling booths immediately after the close of the poll. The presiding officers entered in the forms provided by the FEDECO the scores of each candidate and gave signed copies of the forms to the candidates or their agents, kept copies for themselves and forwarded the originals to the assistant returning officers at the primary collation centres. After having collated the results of all the polling booths at the primary centres in the forms provided by the FEDECO, the assisting returning officers also gave out signed copies of the forms to the candidates or their agents, kept copies for themselves, and forwarded the originals to the secondary collating centres, which were the headquarters of the local government areas, whereat the deputy returning offices collated all the results from the primary centres in the forms provided by the FEDECO, gave signed copies to the candidates or their agents, kept copies for themselves and delivered the originals to the returning officer at the State capital. The returning officer declared the result of the election on the strength of the returns submitted to him by the deputy returning officers. The evidence shows that the police and the officers of the Nigeria Security Organisation were given copies of the results by the assistant and the deputy returning officers.

To prove his case, the petitioner called his agents, some assistant returning officers and two officers of the N.S.O. as witnesses who rendered their own copies of the results and the trial court admitted the same in evidence and acted upon them in reaching its decision. The Federal Court of Appeal, Olatawura, J.C.A., dissenting, held the documents to be copies and as such were secondary evidence admissible only after the conditions laid down by section 96 of the Evidence Act had been satisfied. Since the original documents in possession of the FEDECO were available and the petitioner did not tender them, the Court of Appeal concluded that the trial court erred in admitting their copies.

Chief Williams submitted before us that because the documents under consideration were made by the FEDECO officials in the ordinary course of their duties, they were admissible in evidence against the FEDECO; that they were also admissible as duplicate originals and again as documents tendered without objection. In reply, Chief Onyiuke contended that it is evident that not only the petition but also the trial court had treated the documents as secondary evidence and so had the Federal Court of Appeal and consequently, he argued, being secondary they were inadmissible as the petitioner had not satisfied the condition precedent to their admissibility.

I accept the submission of Chief Williams that all the documents in question constituted admissions within the meaning of sections 19 and 20 of the Evidence Act and were relevant and admissible against the FEDECO and its representatives, i.e., all the respondents, other than the first respondent, under section 23 of the Act.

Furthermore, in spite of the description of the documents as “copies” in sections 62 and 70 of the Electoral Act, I think, when all the circumstances under which the documents were made and tendered in evidence are taken into account it is legitimate to treat them as primary evidence under section 93 of the Evidence Act and the trial court had wide and unfretted discretion under section 90 of the Evidence Act to admit them as evidence of the results of the poll at the polling stations and the collation centres. Section 91 of the Evidence Act takes care of the weight to be attached to such evidence. Regard must be had to all the circumstances from which any inference can reasonably be drawn as to their accuracy or otherwise. I hold that the Federal Court of Appeal was in error in treating the documents in question as inadmissible. The trial court rightly, in my view, admitted them in evidence.

Did the petitioner discharge the burden of proof: The petitioner did not adduce an iota of evidence to falsify the results declared by the FEDECO for eight from the 11 local government areas the result for which were alleged in paragraph 5(iii) (a) to (k) of the petition to have been falsified. The petitioner attempted to prove the allegations in respect of three local government areas, namely Ezeagu, Igbo-Etiti and Isi-Uzo. In considering whether the petitioner had discharged the burden of proof on the results for the three local government areas, the trial court properly adverted itself to section 137 (1) of the Evidence Law and found as follows:

“Considering the evidence of all the witnesses that had been called by the petitioner and the respondents, and considering all the documents tendered by the petitioner as against those tendered by the respondents which we have also evaluated, we are fully and perfectly satisfied beyond all reasonable doubts that the petitioner has established the facts alleged in his petition, that the figures as published by the fifth respondent had been grossly inflated to his prejudice in Ezeagu, Isi-Uzo and Igbo Eze Local Government Areas. We are under no doubt whatsoever that the petitioner had fully established the fact that incorrect results had been announced and published by the fifth respondent with regard to Ezeagu, Isi-Uzo and Igbo Etiti elections.”

In reversing this finding of fact by the trial court, all the seven Justices of the Federal Court of Appeal were unanimous that the petitioner had not proved the alleged falsifications beyond reasonable doubt. Ground of appeal No. 9 complained against the reversal in these terms:

“(9) The Federal Court of Appeal erred in law in deciding to reverse the findings of fact of the High Court when the said findings were based on their satisfaction beyond reasonable doubt and/or alternatively on the balance of probabilities that the number of votes cast in favour of the first respondent was inflated in Ezeagu, Igbo-Etiti and Isi-Uzo Local Government Areas.”

Arguing the appeal, Chief Williams submitted that sections 148 (c) and 149 (1) of the Evidence Act raised the presumption that the result of the election declared by the FEDECO was correct and authentic and the onus was on the petitioner to rebut the presumption. He said the trial court found that the petitioner had adduced sufficient evidence which rebutted the presumption and established that the FEDECO result had been based on falsified premises.

Chief Williams referred us to the evidence of the witnesses called by the petitioner whose evidence clearly showed, from the copies kept by the witnesses, exhibits B1 to H2, of the statements of the results of the poll collated by the assistant returning officers at the primary collating centres, the result to be as follows:

 

   

Local
Government
Area

Votes
for
Petitioner

Votes
for first
Respondent

Ezeagu

21,252

17,031

Igbo-Etiti

13,293

11,732

Isi-Uzo

23,031

17,782

The witnesses testified that the original results collated at the primary collation centres were delivered by the assisting returning officers to the deputy returning officers at the secondary collating centres but when the latter officers collated the results delivered to them instead of arriving at the foregoing figures, their collations read:

 

   

Local
Government
Area

Votes
for
Petitioner

Votes
for first
Respondent

Ezeagu

19,058

60,980

Igbo-Etiti

56,767

59,652

Isi-Uzo

27,863

44,367

Consequently, Chief Williams argued, the votes scored by the parties according to the copies kept by the petitioner’s witnesses (exhibits B1 to H2) of the collated results at the primary collation centres were inflated thus:

 

           

Local
Government
Area

Votes
for
Petitioner

Votes
for first
Respondent

Ezeagu

2,027

39,728

Igbo-Etiti

43,474

47,920

Isi-Uzo

4,832

26,585

 

 

50,333

 

 

114,233

 

Chief Williams finally contended that if the inflated collated results in favour of both parties were subtracted from the results declared by FEDECO, to wit, 887,231 votes for the petitioner and 901,890 votes for the first respondent the resultant votes would be 846,898 for the petitioner and 787,657 for the first respondent and, that being the case, the petitioner had scored the majority votes and ought to have been declared as duly elected.

In reply, Chief Onyiuke and other learned Counsel for the respondents drew our attention to the evidence of the witnesses who testified for the respondents, particularly the three deputy returning officers, i.e. DW2, DW10 and DW15, who produced the original collated results delivered to them by the assistant returning officers for the three local government areas in dispute and also produced their original results which they had collated at the secondary collation centre and which they later delivered to the returning officer at Enugu (DW16) who declared the final return of the poll on the basis of those results. Learned counsel for the respondents submitted that on the totality of the evidence the Federal Court of Appeal was right in holding that the petitioner did not prove the allegation of crime beyond reasonable doubt.

I think, at this stage I may say that I accept the submission of Chief Williams that there is in law a rebuttable presumption that the result of any election declared by the FEDECO is correct and authentic and the onus is on the person who denies its correctness and authenticity to rebut the presumption. In my view, where such denial is based on allegation of crimes against the FEDECO officials responsible for the declaration of the results, the rebuttal must be proved beyond reasonable doubt. The trial court found the petitioner in this case on appeal had discharged the onus. The Federal Court of Appeal thought otherwise. Who was right?

Now, it is settled law that a court of appeal does not interfere with the findings of fact of a court of first instance which has had the opportunity of seeing the witnesses and watching their demeanour unless it is satisfied that that court has not made any use of that advantage or the finding is perverse and cannot reasonably be supported having regard to the evidence or the finding is an inference from established facts so that an appeal court is entitled to draw its own conclusion or the trial court has applied wrong principle of law: Okuoja v. Ishola (1982) 7 SC 314 at 349; Woluchem v. Gudi (1981) 5 SC 291 at 295 and 326; Lawal v. Dawodu (1972) 1 All NLR (Part 2) 270 at 286.

With these considerations in mind, I think, it is pertinent to highlight the reasons stated by the learned Justices of the Federal Court of Appeal for interfering with the finding of the trial court on the issue of proof beyond reasonable doubt.

After having reviewed the evidence, Nasir, P., stated:

“The accusation by Chief Williams was specifically directed against the deputy returning officers (See Record page 74 from line 25 to page 75 lines 1-10 and page 68 lines 5-30). There is no evidence adduced to show that any particular deputy returning officer had falsified any figure.

If one compares exhibits C1 to H2 and RB2 to RQ4 as relevant one cannot escape from the conclusion that if there are culprits in this matter they are to be found among the assistant returning officers as can clearly be seen from these documents bearing the signatures of all or definitely some of them on the pairs of contradicting documents. I fail to understand why the trial court has made no finding on this fundamental issue. In my opinion the issue is not whether the assistant returning officers called, had given evidence in respect of the votes in the constituencies concerned but whether these witnesses have succeeded in disowning the authorship of the documents sent to FEDECO or in proving that the documents sent to FEDECO were falsified. Whichever standards of proof one accepts in this case I fail to see how the parallel and unconnected evidence called (in relation to the figures given to FEDECO) can be accepted as sufficient proof of the petitioner’s allegation. I am also of the opinion that the returning officer has no burden to disprove the petitioner’s case which was completely presented to its end without reference to the FEDECO figures. If this is to be allowed in our courts any person can, after the event, produce his own set of record in order to challenge the authentic record compiled at the material time according to law. It seems to me that the petitioner has not discharged the burden of proof as the person who asserts.”

Phil-Ebosie, J.C.A., expressed the view that although there was some proof that on the level of the collations by the assistant returning officers the correct votes cast for the petitioner were not what the FEDECO released that proof was below the required standard for an allegation of a crime.

Kazeem, J.C.A., stated his opinion thus:

“Moreover, no attempt was made by the petitioner’s counsel to apply for an order that the FEDECO be produced before the close of the petitioner’s case to enable the petitioner’s witnesses to be confronted by them. As the situation was when the documents were subsequently produced, it happened that there were two different sets of documents prepared and signed by the same persons, but bearing different figures. It is my view that if the exhibit RB series in possession of FEDECO, are presumed to be genuine in law until the contrary is proved, the onus was there on the petitioner to prove them to be false. He had so pleaded in paragraph 5 of his petition that they were falsified by the returning officers or their agents, servants or privies and those could be anybody including the assisting returning officers themselves. But I am firmly of the view that he has failed to prove those documents to be false. Furthermore these petitioner’s witnesses are said to have made and signed the exhibits RB series in possession of FEDECO in respect of Ezeagu, Igbo-Etiti and Isi-Uzo Local Government Areas and those documents are found to be inconsistent with the ones they tendered in court–see exhibits B-G series).”

In his turn, Aseme, J.C.A., had this to say:

“In my view a petitioner who joins issue with the respondent with respect to the accuracy or falsity of FEDECO documents must see to it that the documents are produced and that the allegation averred by him that the figures therein are false is proved by credible evidence. In this case FEDECO documents were not produced until after the close of the case for the petitioner. This is unfortunate and it is difficult to see how the election tribunal came to the conclusion in the majority decision that the allegation that the figures contained in those FEDECO documents were false (sic) without calling or recalling the makers of those documents to testify in that behalf.”

Belgore, J.C.A., after he had referred to the allegations in paragraph 5 of the petition and section 137 (1) of the Evidence Act, continued:

“It is incumbent on the petitioner to prove that second, third, fourth and fifth appellants made false returns and thereby committed corrupt practice whereby they would be criminally liable. The petitioner woefully failed to do this. The proof required is very high one–beyond reasonable doubt. Certainly there are discrepancies between exhibits B to H2 but it is not known who perpetrated these. It could be anybody, FEDECO officials, party agents, etc. But the original documents in possession of FEDECO and tendered in court have not been impeached and unfortunately they are the one (sic) admissible in evidence and not exhibits B to H2. In the absence of failure to prove (sic) beyond reasonable doubt the petitioner has not proved his case.”

In their concurring judgments Olatawura and Aikawa JJ.C.A., emphasized that the petitioner failed to prove beyond reasonable doubt the falsification of results as alleged in the petition.

From the outset, it may be appreciated that in an election petition such as the one on appeal where the complaint does not allege any rigging or irregularity of the election at the polling booths but the issue is based on falsification of the results in the course of collation process, the dispute which calls for the proof of the issue beyond reasonable doubt cannot in the main be adjudicated on the credibility of the witnesses from their demeanour. Where there is a substantial difference between the results collated by the assistant returning officers and those collated by the deputy returning officers, it is not enough for the trial court to believe the assistant returning officers and accept their results and to disbelieve deputy returning officers and reject their results.

To prove the falsity beyond reasonable doubt of the collated results of the deputy returning officers, a petitioner must not only prove the results collated by assistant returning officers but must also prove the votes counted by the presiding officers and the scores of each candidate at the polling booths which were the basis of collation. Production of the results of the poll counted at the polling booths by the presiding officers is an essential element of the burden of proof under the circumstances of the petition. Except for Ezeagu South constituency in respect of which the petitioner through his witness produced the result at the 96 polling stations, exhibits A, A1-95, in the constituency no such evidence was led in respect of all the other constituencies in the three local government area in dispute.

In the alternative, the original results collated by the assistant returning officers which they delivered to the deputy returning officers may be used to discredit the returns of the deputy returning officers. It appears the petitioner was fully appreciative of this fact by serving notice on FEDECO in paragraph 6 of his petition to produce the documents and they were produced after the close of his case when Chief Williams made proper application for their production in accordance with the provisions of section 72 (3) of the Electoral Act. The petitioner did not tender any of the original forms the assistant returning officers had submitted to the deputy returning officers. The petitioner’s case therefore left a gap in the chain by which the results of the poll from the primary collation centres had been conveyed to the returning officers.

On the other hand, the respondents proved the nexus between the results of the poll collated at the primary and secondary centres and the final result declared by the returning officer. Their witnesses tendered exhibits RB2 to 4, RO2 to 4 and RQ2 to 4 which were the results collated by the assistant returning officers for Ezeagu, Igbo-Etiti and Isi-Uzo respectively. The sums of these exhibits, to wit exhibits RB1, RO1 and RQ1, the collations of the deputy returning officers, were also tendered. The returning officer declared the result of the election upon collation of exhibits RB1, RO1 and the other results from the other 20 local government areas. In this respect not only the petitioner failed to prove the allegation of crime beyond reasonable doubt but the evidence for the respondents stood unrebutted and uncontradicted.

Finally, I may make a cursory observation on the submission made before us by Chief Williams relating to the conduct of the respondents’ case in the trial court. He strenuously emphasized the failure of the respondents to call certain witnesses to cross-examine some of the petitioner’s witnesses on certain aspects of their evidence and to tender some documents. I do not think this submission would by any means improve the petitioner’s case. It is trite law that a plaintiff or a petitioner for that matter must succeed on the strength of his case and not on the weakness of the defence.

From the premises, I am of the firm opinion that this is a proper case for an appeal court to interfere with the finding of fact of the trial court. For the proper determination of the issue before the trial court, the advantage of seeing the witnesses and assessing their demeanour which is within the province of the trial court were not the main determinant factors. The issue rested on the conveyance of undisputed votes scored by the political parties at the polling booths and recorded in the FEDECO forms thereat. The journey was from the polling stations through the collation processes to the returning officer. With the necessary data available to wit the undisputed results at the polling stations, not only the trial court and the Federal Court of Appeal but any reasonable person with a little effort in arithmetical calculations may determine the correct result of the election. Polling stations are the concrete foundation on which the pyramid of an election process is built. Primary and secondary collation centres are administrative machinery devised by the FEDECO in order to enhance efficiency and speedy declaration of the final result of the election. There is no provision in the Electoral Act, 1982, for collations at the constituency and local government area levels in a gubernatorial election. At the price of long delay in announcing the result of the election, the results counted at the polling booths may be directly sent to the returning officer who will declare the result of the election after he has collated the results from all the polling stations in the State. The trial court, the Federal Court of Appeal and this Court could do the same exercise, if the results of the poll at the polling booths were before the court. So could any reasonable person. The petitioner failed to furnish the necessary data to the trial court to resort to this exercise and so he did not discharge the onus of proof required of him by section 137 (1) of the Evidence Act.

Accordingly, the decision of the Federal Court of Appeal reversing the finding of fact by the trial court is impeccable. I share the same view with the learned Justices of that Court that the petitioner did not prove the commission of the crimes against the respondents alleged in his petition and I dismissed his appeal on this ground.

SOWEMIMO, C.J.N. This election petition was heard at the Anambra State High Court sitting at Enugu and the petitioner/appellant was successful. In the appeal to the Federal Court of Appeal, Enugu, the judgment of the lower court was set aside. Now being dissatisfied with that judgment, he has appealed to this Court. He was represented by Chief F.R.A. Williams, S.A.N. He chose to base his argument on three local government areas, but for the purpose of this appeal, I wish to set out his petition in full for the better understanding of those who chose to feel that the Supreme Court of Nigeria applied an ordinary standard not applied to all appeals which had been heard in this Court. This Court will continue to maintain its integrity and impartiality whatever may be the views of an unsuccessful appellant.

For the better understanding of this case, I set out in full the petition which was adjudged upon. “The petition of Chief Jim Ifeanyichukwu Nwobodo of Anambra State showeth that:—

1. Your petitioner is a person who claims to have had a right to be elected and/or returned as the Governor of Anambra State and your petitioner states that he won the majority votes and twenty-five percent of the votes cast in more than two-thirds of the twenty-three Local Government Area (for the purposes of the election) in Anambra State.

2. The first respondent is the NPN gubernatorial candidate who was declared elected by the second, third, fourth and fifth respondents as Governor of Anambra State. The second, fourth and fifth respondents are officers of the third respondent which is a body established under the Constitution of the Federal Republic of Nigeria 1979.

3. Your petitioner states that the election was held on the 13th day of August, 1983 when he was a successful candidate, and the returning officer, Mr. E. N. Mbonu has returned the first respondent, Chief Christian Chukwuma Onoh, as being duly elected by the result announced on 14th August, 1983.

4. The candidates for the said election were Chief A. O. Mbah for the UPN who purportedly scored a total of 21,347 votes; Chief A. Nwankwo for PRP who purportedly scored a total of 14,515 votes; petitioner as the candidate for the NPP who purportedly scored 887,221 total votes; Mr. R. C. Okafor for the GNPP who purportedly scored a total of 22,863 votes; Chief C. C. Onoh for the NPN who purportedly scored a total of 901,390 votes; and T. C. Onyemelukwe for NAP who purportedly scored a total of 21,866 votes.

5. And your petitioner says that the results of the election as certified by the third re judged upon. “The petition of Chief Jim Ifeanyichukwu Nwobodo of Anambra State spondent and announced by the returning officer were falsified in various areas within the State constituency:—

(i) Out of the total falsified results of 1,867,192 votes purported to have been cast at the election, the petitioner was credited with the false score of 887,221 total votes while the first respondent was falsely credited with 901,390 total votes as indicated in the Schedule ‘A’ attached to this petition.

(ii) By the said falsification of results the first respondent had a total of 14,169 votes more than the score credited to the petitioner who by the correct number of votes scored had a majority of all the votes cast at the entire election as shown in the Schedule ‘B’ attached to this petition.

(iii) The results of the said election were falsified by the second, third, fourth and fifth respondents or their agents, servants or privies in most of the Local Government Areas within the State Constituency for the election including the following Local Government Areas:—

(aEzeagu Local Government Area: Particulars of Falsified Result

The first respondent’s correct score was 21,252 votes while the petitioner’s correct score was 17,031 votes but these were falsified to read 60,980 for the first respondent, 19,058 votes for the petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to fifth respondents was jacked up by as much as 37,701 which represented the difference between 39,728 votes and 2,027 votes wrongly credited to the first respondent and petitioner respectively by the said results.

(bIsi-Uzo Local Government Area: Particulars of Falsified Result

The first respondent’s correct score was 17,782 votes while the petitioner’s correct score was 23,031 votes but these were falsified to read 44,367 votes for first respondent and 27,863 votes for petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to fifth respondent was jacked up by as much as 21,585 votes which represents the difference between 26,585 votes and 4,832 votes wrongly credited to the first respondent and the petitioner respectively by the said results.

(cUzo-Uwani Local Government Area: Particulars of Falsified Result

The first respondent’s correct score was 15,600 and the petitioner’s correct result was 16,611 votes, but these were falsified to read 30,200 votes for first respondent and 27,747 for the petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to fifth respondents was jacked up by as much as 3,464 votes which represents the difference between 14,600 votes and 11,136 votes wrongly credited to the first respondent and the petitioner respectively by the said results.

(dUdi Local Government Area: Particulars of Falsified Result

The first respondent’s correct score in this Local Government Area was 47,356 votes and the petitioner’s correct score was 12,855 votes, but these were falsified to read 17,532 votes for first respondent and 14,661 votes for the petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to fifth respondents was jacked up by 28,370 votes which represents the difference between 30,176 votes and 21,806 votes wrongly credited to the first respondent and the petitioner respectively by the said results.

(eOji River Local Government Area: Particulars of Falsified Result

The first respondent’s correct score was 4,082 votes and the petitioner’s correct score was 21,688 votes, but these were falsified to read 23,518 votes for the first respondent and 27,591 votes for the petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to the fifth respondents was jacked up by as much as 13,533 votes which represents the difference between 19,436 votes and 5,903 votes wrongly credited to the first respondent and the petitioner respectively by the said results.

(fIgbo-Etiti Local Government Area: Particulars of Falsified Result

The first respondent’s correct score was 11,732 votes and the petitioner’s correct score was 13,293 votes but these were falsified to read 59,652 votes for the first respondent and 56,767 votes for the petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to fifth respondents was jacked up by as much as 4,446 votes which represents the difference between 47,920 votes which represents the difference between 47,920 votes and 43,474 votes wrongly credited to the first respondent and the petitioner respectively by the said results.

(gIgbo-Eze Local Government Area: Particulars of Falsified Result

The first respondent’s correct score was 24,008 votes and the petitioner’s correct score was 33,976 votes but these were falsified to read 61,955 votes for the first respondent and 46,569 votes for the petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to fifth respondents was jacked up by as much as 25,354 votes which represents the difference between 37,974 votes and 12,593 votes wrongly credited to the first respondent and the petitioner respectively by the said results.

(hNjikoka Local Government Area: Particulars of Falsified Result

The first respondent’s correct score was 30,643 votes and the petitioner’s correct score was 38,686 votes but these were falsified to read 80,832 votes for the first respondent and 76,178 votes for the petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to fifth respondents was jacked up by as much as 12,697 votes which represents the difference between 50,189 votes and 37,492 votes wrongly credited to the first respondent and the petitioner respectively by the said results.

(iNkanu Local Government Area: Particulars of Falsified Result

The first respondent’s correct score was 13,987 votes and the petitioner’s correct score was 44,308 votes but these were falsified to read 33,070 votes for the first respondent and 58,885 votes for the petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to fifth respondents was jacked up by as much as 4,506 votes which represents the difference between 19,083 votes and 14,577 votes wrongly credited to the first respondent and petitioner respectively by the said results.

(jIshielu Local Government Area: Particulars of Falsified Result

The first respondent’s correct score at the election was 27,322 and the petitioner’s correct score was 20,488 votes but these were falsified to read 101,021 votes for the first respondent and 23,769 votes for the petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to fifth respondents was jacked up by as much as 70,418 votes which represents the difference between 73,699 votes and 3,281 votes wrongly credited to the first respondent and the petitioner respectively by the said results.

(kAguata Local Government Area: Particulars of Falsified Result

The first respondent’s correct score was 36,679 votes and the petitioner’s correct score was 53,031 votes but these were falsified to read 43,788 votes for the petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to fifth respondents was jacked up by as much as 5,531 votes which represents the aggregate of 4,288 votes and 1,243 votes wrongly credited to first respondent and debited against the petitioner respectively by the said results.

6. Your petitioner shall rely on the relevant results recorded by the officials of Federal Electoral Commission supporting the authentic results in attached Schedule ‘B’ to this petition. The respondents are hereby given notice to produce at the hearing of this petition the originals of all such relevant records in their possession, supporting the results in the attached Schedule ‘B’.

7. Your petitioner relies on the following grounds:—

(i) That the first respondent, Chief Christian Chukwuma Onoh was, at the time of the election not duly elected by majority of lawful votes at the election held on Saturday, 13th August, 1983.

(ii) That your petitioner has the highest number of votes cast at the said election of Saturday, 13th August, 1983 and has not less than one-quarter of all the votes cast in each of at least two-thirds of all the Local Government Areas in Anambra State.

8. Your petitioner further says that the falsified results recorded by the third respondents office in Enugu in the election for Abakaliki and Anambra Local Government Areas in favour of the first respondent to read 105,000 instead of 31,446 votes and 71,029 instead of 21,226 votes respectively were subsequently corrected after the protest registered thereto by the petitioner at the third respondent’s office.”

For reasons best known to the learned Senior Advocate in this petition, but definitely without amending the pleadings, he limited all his allegations against the deputy returning officer. No mention was made as to the original documents which were in the custody of FEDECO, and which they were requested to produce. They were produced as requested but were never tendered by the petitioner. As far as evident in this case, they were tendered through witnesses of the respondent. I should have thought that from the allegations made by the petitioner, these documents should have formed part of this case but as far as this Court is concerned, a case is conducted on the instructions given by the client to the counsel, and I will say no more on this matter. I agree, however, with that part of the judgment of Kazeem, J.C.A., that the FEDECO documents are public documents.

Academic lawyers have indicated that the courts of justice are not competent to deal with election petitions. I do not intend to deal with the arguments which had been advanced by them since there were indications in all the provisions of the Constitution and the Electoral Act 1982, which granted jurisdiction to competent courts to deal with these matters.

I wish to draw attention to the provisions of section 119 and other sections of the Electoral Act 1982 which conferred the jurisdiction on competent High Courts to deal with legal proceedings arising from petitions filed in court. In some cases the decisions of the court were regarded as an assumption of jurisdiction of voters in their different decisions as to who they voted for to govern or represent them. This is a misconception. What the courts are called upon to deal with are the application of legal principles, to the different election petitions filed before them. It is only academic to conclude that such decisions displaces voters decisions. It is, therefore, necessary to read with some understanding the provisions of our law governing election petitions which read:—

“119.

(1) No election and no return to the Senate, the House of Representatives or any State Assembly or to any elective office shall be questioned in any other manner except by a petition complaining about the election or the return and presented to the competent High Court in accordance with the provisions of this Act.

(2) In this section ‘competent High Court’ means—

(a) in any case involving the office of President or Vice-President, the Federal High Court and on the coming into force of section 262 of the Constitution, the High Court of the Federal Capital Territory established pursuant to section 263 of the constitution;

(b) in any case involving any other office, the High Court of the State as respects which such office is established under the Constitution; and

(c) in any case involving the membership of or the seat of a person in a Legislative House, the High Court of the State where the Senatorial district, Federal constituency or State constituency of that member or person is located.

(3) For the purpose of exercising any jurisdiction conferred by this Act upon the Federal High Court or the High Court of a State, in any case involving the office of the President, Vice-President, Governor or Deputy Governor, the Chief Judge of the Federal High Court or the High Court of a State as the case may be, shall determine the number of judges that shall constitute the Court.

(4) A petition to question an election or result shall be presented to the competent High Court not later than 14 days from the date that the result of the election is declared and shall be commenced—

(a) in the case of the election of President or Vice-President, in the Federal High Court established in the place where the capital of the Federal Republic of Nigeria is situated:

(b) in the case of the election of Governor or Deputy Governor of a State, in the High Court established in the place where the capital of the State is situated at; and

(c) in all other cases, the High Court of the State established for or having jurisdiction in the Senatorial district, Federal constituency or State constituency for which the candidate was elected.”

My brother Bello, J.S.C., has dealt adequately with the grounds of appeal which were argued before us. Whilst appreciating that I could express my views on some of them, I have come to the conclusion that they will ultimately amount to a repetition of the views already expressed by Bello, J.S.C., and with which I am in complete agreement. The only point which I wish to deal with is that which raises the burden of proof on crimes in civil matters referred to section 137 (1) and (2) of the Evidence Law of the former Eastern Nigeria Law which is applicable in Anambra State, and it is identical with the same section of the Evidence Act of the Federation which reads:—

“137.

(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.

(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provisions of section 140, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.”

My brother Bello, J.S.C., has drawn attention to the fact that all the allegations made in the pleadings of the plaintiff were of crimes, forgery of election returns by the deputy returning officers. In the evidence led by the petitioner, suggestions were made that a particular individual was responsible for the alleged forgery committed in the areas and which was subsequently declared valid by the returning officer of the Anambra State. Chief Williams, S.A.N., made strenuous efforts that the allegations were not meant to be of a criminal character but mere arithmetical error or irregularities. With respect my understanding of the allegations of crimes in the pleadings constituted forgery of electoral returns. It was this aspect of what a person who alleges the commission of a crime has to prove that brought in the consideration of our law. It is obvious that the petitioner having chosen to base his claim on alleged commission of criminal offences, it is his duty to prove the alleged criminal offences by evidence which should be beyond reasonable doubt.

The court of the first instance misdirected itself no doubt on this point where it said:

“However, we agree that in a case like this instant one before us, if the standard of proof is said not to be beyond reasonable doubt, it ought to be of the highest standard, and certainly beyond a mere balance of probabilities. Considering the evidence of all the witnesses that had been called by the petitioner and the respondents, and considering all the documents tendered by the petitioner as against those tendered by the respondents which we have also evaluated, we are fully and perfectly satisfied beyond all reasonable doubts that the petitioner has established the facts alleged in his petition, that the figures as published by the fifth respondent had been grossly inflated with prejudice in Ezeagu, Isi Uzo and Igbo Eze local government areas. We are under no doubt whatsoever that the petitioner had fully established the fact that incorrect results had been announced and published by the fifth respondent with regard to Ezeagu, Isi Uzo and Igbo Etiti elections.”

I had had the occasion to state earlier that before the conclusion of the case in the election petition court, Chief Williams, S.A.N., on behalf of the petitioner had narrowed his allegations to the deputy returning officers. The fifth respondent in this case the returning officer. It is, therefore, difficult to appreciate how the election petition court associated allegations of forgery against the fifth respondent, the returning officer, when that was not the case of the petitioner at all. This misdirection is of such a serious nature as to nullify the relevant pleading of the petitioner.

It has also been suggested that mere allegation of crime without reference to a particular culprit does not amount to one which requires proof under section 127 (1) of the Evidence Act. That might be so but in this case the petitioner had not only mentioned person but he had called evidence to prove the commission of the crimes against the deputy returning officers.

It has also been suggested that when criminal acts are alleged to have been committed by any person, sufficient ingredient of that crime must be indicated. The petitioner in this case without amending his pleadings had sufficiently set out these people who he alleged had committed the criminal offences. All that the court had to decide was whether in law the forgeries alleged had been committed by the named individuals by evidence beyond reasonable doubt. Any suggestion that these criminal offences should be regarded as mere irregularities or arithmetical mistakes is mere after-thought and therefore should be ignored.

Lastly, the Supreme Court of Nigeria does not constitute itself as a political party and therefore suggestions of partisanship are borne out of ignorance and should be ignored.

As I have stated earlier, I adopt all the reasons set out by my brother Bello, J.S.C., in the opinion which he is about to read today and dismiss the appeal of the petition as was done at the hearing. I confirm the judgment of the Federal Court of Appeal, Enugu, and set aside the three to two judgment of the election petition court of the Anambra High Court sitting at Enugu.

I wish to draw attention to the Electoral Act 1982. This Court has had the occasion in other cases to declare as unconstitutional the provisions dealing with the hearing and the determination of election petitions. There are other provisions of the Act which I believe need reconsideration. It is the duty of the Courts to administer the legislation made by the legislature. The Courts do not legislate but it is our hope that this country under a presidential Constitution, should be guided in its legislative acts by the provisions of that Constitution. The Federal system of government operated by each arm of government within certain provisions thereby determining what each arm is limited to in its functions. The academic exercise to oust the jurisdiction of a court in election petitions is welcome, but I do hope that such attempts should be directed to the legislature. To challenge by subtle means the independence and impartiality of the judiciary should be discouraged. Matters or cases are heard in public and everyone is given a chance to have a say to allow the courts to give their judgments. It is too delicate for legal practitioners of any grade to under-mine the judiciary. That should be left to the news media which does not understand what the institution of an independent and impartial judiciary stands for. I do not ask for encomium from any sector but I will appreciate very much productive criticism which will lead us all to the goal of justice. Every judge in this country is dedicated to see that justice is done and those who assist in the achievement of this role will go a long way in its achievement.

Irikefe J.S.C. I delivered my judgment in this matter on 8th October, 1983, and stated then that I would elaborate on same on 6th January, 1984. In view of the recent change in the Government of this country, I can do no more than adopt and stand by my earlier judgment aforesaid. Any further reasons would be, at best, a sterile and worthless academic exercise.

Obaseki J.S.C. On the 8th day of October, 1983, I dissented from the judgment of the majority of this Court dismissing the appeal in this matter and I allowed the appeal reserving my reasons for that judgment till today. I now proceed to give my reasons.

The appellant was one of six candidates who contested the general election held in Anambra State to the office of Governor of Anambra State on the 13th day of August, 1983. He was sponsored by the Nigeria Peoples’ Party (NPP). The other candidates were (1) Chief Christian Chukwuma Onoh, the first respondent herein, sponsored by the National Party of Nigeria (NPN); (2) Chief A. O. Mbah, sponsored by the Unity Party of Nigeria (UPN); (3) Chief A. Nwankwo, sponsored by the Peoples’ Redemption Party (PRP); (4) Mr. R.C. Okafor, sponsored by the Great Nigeria Peoples’ Party (GNPP); and (5) Mr. T. C. Onyemelukwe, sponsored by the National Advance Party (NAP).

At the conclusion of the counting of the votes cast for each candidate, Chief Christian Chukwuma Onoh, the first respondent herein, was declared duly elected and returned by the returning officer–Mr. E. N. Mbonu, the third respondent herein.

Being dissatisfied with this declaration and return, the appellant filed a petition in the High Court of Anambra State at Enugu challenging the validity of the return and praying the court:

“that it may be determined that the said Chief Christian Chukwuma Onoh was not duly elected and/or returned and that his election was void and that your petitioner, Chief Jim Ifeanyichukwu Nwobodo was duly elected and ought to have been elected and/or returned.”

The main issue was therefore who between the petitioner and the first respondent was duly elected. The appellant made

“(1) Chief Christian Chukwuma Onoh,

(2) Chief Federal Electoral Officer for Anambra State, Mr. E. C. Eje,

(3) The Federal Electoral Commission;

(4) The Resident Electoral Commissioner, Brigadier Ignatius N. Obeya (Rtd), and

(5) The Returning Officer, Mr. E. N. Mbonu”

respondents to the petition.

All the respondents to the petition filed their replies denying all the material facts in the petition and putting the petitioner to their strict proof.

The second, third, fourth and fifth respondents filed an application under section 126 of the Electoral Act for further and better particulars.

The fifth respondent also filed an application to strike out the petition on four grounds, to wit:

“(1) The petition is contrary to section 122 of the Electoral Act and discloses no cause of action;

(2) the proper parties are not before the court;

(3) the petition is contrary to section 137 of the Electoral Act; and

(4) the petition is not filed in accordance with section 127 of the Electoral Act.”

Also the fifth respondent separately field a motion for further and better particulars specifying the particulars required.

These will be set out and commented on later in the judgment.

In reply to the request for further and better particulars and in compliance with the order of the court on the application of the second to fourth respondents, counsel to the petitioner filed the following:

“(1) In reply to paragraph (1) the petitioner does not rely on collusion with the second, third, fourth and fifth respondents to falsify the election results in the local government areas mentioned in the petition. The petitioner relies only on the fact that the return submitted by each of the deputy returning officers in respect of the voting results in the polling stations located in each of the local government areas mentioned is false and does not represent the true and correct number of votes cast in favour of the petitioner or the first respondent.

(2) The only local government areas where the returns are challenged are those mentioned in the petition.”

On the application of the petitioner for an order fixing the amount to be deposited as security, the court (the Chief Judge sitting alone) on the 17th day of August, 1983, made the following order:

“The applicant is hereby ordered to deposit the sum of N5,000.00 into court pursuant to section 127(1) of the Electoral Act 1982, the said amount to be paid into Treasury and receipt shown to the Registrar.”

The petition was filed on the 17th day of August, 1983, the day the order was made but the security could not be paid that day due to the fact that by the time the order was made the Government Treasury had closed and the amount could not be paid into the treasury.

The following day, i.e., 18th August, 1983, the court (Chief Judge sitting alone) made an order for substituted service of the petition on the first, second, third and fourth respondents. They were to be served by making one publication of the petition in the Daily Star, the first respondent was also to be served by leaving a copy of the petition with the administrative secretary at the office of the National Party of Nigeria (NPN) at Enugu. This was varied the following day to an order to paste the copy of the order and the petition on the door of the principal office of the NPN at Ogui Road, Enugu.

On the application by counsel for second, third and fourth respondents (Chief Onyiuke), Chief Williams, counsel for the petitioner, said that the only servants whose conducts were challenged were the deputy returning officers. The record reads:

Chief Onyiuke says results falsified by agents, servants or privies–paragraph 5 (iii) of the petition—

Chief Williams says only servants whose conducts are challenged are the deputy returning officers;

Chief Onyiuke accepts the explanation from Chief Williams but asks for the names of the deputy returning officers to be filed.

Court orders Chief Williams to file the particulars of the names of the deputy returning officers.”

It does not appear from the record that the particulars of the names of the deputy returning officers were ever given.

Also, in regard to the application for further and better particulars by Chief Umeadi, counsel for the fifth respondent, the record reads:

“Mr. Umeadi says he has another motion for further and better particulars.

Chief Williams says that he can narrow the issue by saying:

(1) with regard to particulars (1) officials concerned are the deputy returning officers–we do not know their addresses but we will give their names and we do not know what place the falsification was done–but we know that they did it between the time collation ended at headquarters of each of the local governments and the time results were handed to the returning officers;

(2) as to polling stations–we says falsification did not concern constituencies levels or counting at polling stations;

(3) the names and addresses of falsifiers already dealt with;

(4) deputy returning officers–we say do not know their party affiliations;

(5) not concerned with agents, servants or privies other than deputy returning officers;

(6) not concerned with this too—

Mr. Umeadi says he is satisfied provided it is filed. Court–The particulars to be filed today.”

In compliance with this order, the statement already referred to and set out above was filed by counsel to the petitioner.

At this stage, it is necessary to refer to the further particulars demanded by Chief Umeadi, S.A.N., on behalf of the fifth respondent.

The schedule to the motion requesting the particulars reads:

“(i) who and where and at what time were the results falsified with reference to paragraph 5 of the petition?

(ii) in what constituencies and polling stations were the results falsified?

(iii) the names and addresses, and party affiliations of falsifiers

(iv) the names and addresses and party affiliation of the persons who falsified the result at Ezeagu and Isi-Uzo, Uzo-Uwani, Udi, Oji-River, Igbo Etiti, Igbo Eze, Njikoka Nkanu, Ishielu and Aguata Local Government Areas and jacked up the same.

(v) the names, addresses and occupation of the agents, servants and privies alleged in all the affected local government areas guilty of falsification of scores.

(vi) the nature of the unlawful votes, whether by minors voting, plural voting, personation and voting by unregistered persons.

Dated at Enugu this 27th day of August, 1983.”

In his affidavit in support of the application, Philip Umeadi, S.A.N., deposed paragraphs 3 and 4 of the affidavit as follows:

“(3) That the petitioner/respondent alleged that the election results were falsified in several local government areas without naming any culprits

(4) that to enable the fifth respondent prepare himself for his defence a detailed particulars of the allegation is necessary.”

I make reference to the demand for the particulars, the deposition of counsel in his affidavit and the stand of counsel for the petitioner before the court and the statement filed by counsel for the petitioner as the issue of the standard of proof required in this matter assumed great importance in the Federal Court of Appeal and the Supreme Court at the hearing of the appeal.

The petition came up for hearing before a panel of five High Court judges consisting of: Araka, C.J.; Awogu, J.; Onwuamaegbu, J.; Aneke, J.; and Oran, J. In all, 15 witnesses testified at the instance of the petitioner. They are:

(1) Nicholas Aninzechukwu Obodo, p.w. 1 an assistant returning officer in charge of Ezeagu North constituency;

(2) Godwin Nwokolo Alo, p.w. 2 an assistant returning officer in charge of Ezeagu Central constituency;

(3) Joseph Obiesie Arimah, p.w. 3 an assistant returning officer in charge of Ezeagu South constituency;

(4) Gabriel Ufio, p.w. 4 the secretary to the Ezeagu Local Government Area. He was present on 13th August, 1983, when the results were collated;

(5) Augustine Onyeharam Nnoli, p.w. 5 a radio communicator at Ezeagu Local Government Area who transmitted the result to FEDECO Headquarters, Enugu;

(6) Patrick Emehelu, p.w. 6 an NPP collating agent for Ezeagu North constituency;

(7) Richard Anichebe, p.w. 7 NPP polling agent for Ezeagu Central constituency;

(8) Cyprian Madueke Eze, p.w. 8 collation agent for the petitioner at Ezeagu South constituency;

(9) Isaac Ebokaiwe (referred to as Mr. X) p.w. 9 an NSO officer who was present at the collation of result at Ezeagu Local Government Area;

(10) Chekwa Hyginas Ajuluchi (Mr. Y) p.w. 10 an NSO official present at the collation of result for Igbo Etiti West at Girls Secondary School, Aku, Igbo Etiti South constituency collation centre Igbo Etiti;

(11) Crescent Nnebuike Ejionneme, p.w. 11–an assistant returning officer for Igbo Etiti South constituency;

(12) Anthony Anazodo Odiama, p.w. 12 an electoral officer for Isi Uzo Federal constituency (i.e. Isi Uzo North, Isi Uzo Central and Isi Uzo South State constituencies making up Isi Uzo Local Government Area). He received results from Dr. Ochu, assistant returning officer for Isi Uzo North, from Mr. Simeon Egbagu, assistant returning officer for Isi Uzo Central, and engineer F.U.C. Ugwu, assistant returning officer for Isi Uzo South after collation of results for transmission to FEDECO Headquarters at Enugu. Collation by the deputy returning officer, Mr. Raphael Okwor, was done in his presence.

(13) Festus Uchenna Chiedu Ugwu, p.w. 13 an assistant returning officer for Isi Uzo South State constituency;

(14) Alfred Agu Ochu, p.w. 14 an assistant returning officer for Isi Uzo North constituency;

(15) John Chigozie Odoh, p.w. 15 an NPP polling agent.

The first respondent did not adduce any evidence before counsel closed his case. At this stage, Chief F. R. A. Williams, S.A.N., applied to strike out sub-paragraphs 5 (iii) (c, d, e, g, h, i, j, and k) of the petition but the court refused the application.

The second respondent, Mr. Ephraim Chukwunyelu Eje, testified as D.W. 1.

Mr. Benjamin Ude the deputy returning officer for Ezeagu testified as D.W. 2. Akpan Essien, the Principal Library Officer at the National Library of Nigeria, Enugu, testified as D.W. 3. Felix Chuke Mbonu testified as D.W. 4. He was deputy returning officer for Oji River. Mathew Ogbugo testified as D.W. 5. He was deputy returning officer for Ishielu Local Government Area. Nelson Agu testified as D.W. 6. He was deputy returning officer for Ikanu Local Government Area. Brigadier Ignatius Obeya, Resident Federal Electoral Commissioner, testified as D.W. 7. Benedict Chukwuemeka Adimora testified as D.W. 8. He was deputy returning officer for Aguata Local Government Area. Elekana Olowowewe Makinde, an acting superintendent of police, testified as D.W. 9. Paul Otunko testified as D.W. 10. He was deputy returning officer for Igbo Etiti. Eric Uchenna Eze testified as D.W. 11. He was an assistant returning officer for Udi South. Ferdinand Obiora Aneke testified as D.W. 12. He was assistant returning officer for Uzo Uwani. Edmund Agu Ozokwo testified as D.W. 13. He was assistant returning officer for Ishielu South. Robinson Ngozi Eze testified as D.W. 14. he collated results for presiding officers and handed over to deputy returning officer at Oji River local government headquarters. Raphael Ede Okwor testified as D.W. 15 (he was deputy returning officer for Isi Uzo Local Government Area) to close case for second, third and fourth respondents Eugene Mbonu testified as 16th D.W. He was the returning officer. His testimony closed the case for the fifth respondent.

At the close of counsel’s addresses, the court considered the evidence led, the addresses of counsel and delivered a well considered judgment in favour of the petitioner (Awogu, J. and Onwuamaegbu, J. dissenting) and granted his prayer. The judgment signed by Araka, C.J., Aneke, J. and Orah, J., the majority judges of the election panel of the High Court reads inter alia:

“The point was taken that the court is not properly constituted in that the orders for security for costs, and for substituted service were made by the Chief judge before the election court was empanelled while the hearing of the petition is before the election court of five judges. ... There are so many jurisdictions that are conferred upon the High Court by the Electoral Act. One such jurisdiction is the jurisdiction under section 127 (1) of fixing the amount of security or directing the manner the security is to be given. Another jurisdiction is one of hearing and determining the petition. . . It must be borne in mind that section 238 of the Constitution clearly provides that for the purpose of exercising any jurisdiction conferred upon it by this Constitution or any law, a High Court of a State shall be duly constituted if it consists of at least one judge of that court. ... Therefore for the purpose of exercising jurisdiction conferred upon the High Court by the Electoral Act in making an order for security for costs the High Court is duly constituted if it consists of at least one judge, that judge being the State Chief Judge. ... It is clearly our view that there ought to be no need to constitute a court consisting of say five judges merely for the purpose of exercising any jurisdiction conferred by the Electoral Act in the High Court at the pre-trial stages. ... On the issue of parties, it is clearly our view that it is only one against whom a complaint has been made that should be a necessary party at an election petition. ... Chief Onyiuke had submitted in his final address to the court that there is no petition before the court as the petition had been filed without incorporating the name of the occupier of the petitioner’s address. ... We agree with Chief Williams’ submission that it is now too late in the day to raise this issue. ... We are therefore of the view that the failure of the petitioner to disclose the name of the occupier of the Government House Enugu, which is the address the petitioner has stated in the petition as his address for service is not fatal to this petition. ... With regard to the facts of the case, the petitioner had alleged that at the governorship election held on the 13th August, 1983, he won the majority votes and that the fifth respondent returned the first respondent as being duly elected. ... The petitioner led evidence only in regard to three local government areas, namely Ezeagu, Isi Uzo and Igbo Etiti. ... The petitioner relied on the evidence of assistant returning officers who had conducted the collation of results in these local government areas coupled with the evidence of two local government secretaries, two officers of the NSO and some party agents. In respect of these three local government areas, the second, third and fourth respondents called three witnesses. All the three witnesses were the deputy returning officers at the three local government areas. The witnesses are D.W.2 ... for Ezeagu ... D.W. 10 for Igbo Etiti and ... D.W. 15 for Isi Uzo.

These witnesses also tendered documents purported to have been prepared and signed by the assistant returning officers who had earlier testified for the petitioner. The documents tendered were exhibits RQ2, RQ3, and RQ4 for Isi Uzo. Exhibits RO1, RO2, RO3 and RO4 for Igbo Etiti and exhibits RB1, RB2, RB3 and RB4 for Ezeagu.”

The learned judges then observed:

“It is pertinent to note that no witness that was called by the petitioner was cross-examined as to any of those exhibits that were tendered by the respondents and said to have been made and signed by the petitioner’s witnesses. ... It has not been denied that the petitioner did give notice to the respondents to produce the said exhibits before the petitioner’s case was opened. ... The question may be asked what is the evidential value of documents said to have been made by a witness who had been fully cross-examined and without the documents being shown to the witness? ... Section 198 of the Evidence Law states: “... but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.” ... It is our view that if the purpose of the cross-examination of the witness is to contradict him by the writing his attention must be drawn to the writing or signature. This is so whether the document is FEDECO document or not. ... The documents the petitioner is relying upon are for Ezeagu exhibits B, C, C1, D, E and F; for Igbo Etiti exhibits G, G1, G2 and for Isi Uzo, exhibits H, H1 and H2. ...

Looking at these witnesses that had been called by the petitioner in proof of Ezeagu, Igbo Etiti and Isi Uzo results and at the same time comparing their evidence with the evidence of the three witnesses that had been called by the respondents in proof of the Ezeagu, Igbo Etiti and Isi Uzo results, that is to say, Mr. Benjamin Ude (D.W. 2) for Ezeagu, Mr. Paul Otunko (D.W. 10) for Igbo Etiti and Mr. Raphael Okwor (D.W. 15) for Isi Uzo, we are left in no doubt whatever that all the witnesses called by the petitioner on this issue had spoken the truth, the whole truth and nothing but the truth. We are left in no doubt whatsoever that Benjamin Ude, Paul Otunko and Raphael Okwor are nothing but incorrigible liars who after collating the results from their respective centres at Ezeagu, Igbo Etiti and Isi Uzo and after having given the true results to the party agents, the police, the NSO, the local government secretaries at the collating centres then went on to submit to FEDECO headquarters at Enugu results quite unrelated to the results that they had collated thereby causing the final results of some of the candidates to be inflated. ...

We are left in no doubt whatsoever that the results taken to FEDECO headquarters by the witnesses called by the respondents–Benjamin Ude, Paul Otunko and Raphael Okwor–were not the results that they had declared and had given to party agents and or NSO and the police at their respective collating centres. Turning more particularly to the evidence of Benjamin Ude (D.W. 2), it would be borne in mind that he had testified that he had taken his collation result exhibit RB1 personally to FEDECO headquarters at Enugu and that he delivered exhibit RB1 to the fifth respondent ... He was then asked ‘when you were taking exhibit RB1 to Enugu were the signatures of the five party agents at the back of exhibit RB1? Benjamin Ude answered that the signatures were not on the exhibit and that none of the five signatures of the party agents was on exhibit RB1. ... And when later the document was produced from the so-called FEDECO proper custody, the document was found to have five counter-signatories at the back. The witness on being confronted with this situation still said that the document had no signature of party agents at the time he handed the document to the fifth respondent. ... In our view this document exhibit RB1 is worth no more than the paper on which it is prepared. ...

With regard to the production and admissibility of documents generally, we agree with Chief Williams that a document produced in court is admissible as evidence if (1) it is relevant to the issue; (2) the maker of the document is established or admitted; and (3) that it is the original document or a copy if that can be admissible as secondary evidence under section 96 of the Evidence Law. ...

Indeed, we do not see anything in section 72 (3) of the Electoral Act which precludes the court from admitting by way of secondary evidence these documents that were produced by the petitioner’s witnesses. Some of these documents were given to some of these witnesses as they did testify by either the assistant returning officers or Mr. Ude the deputy returning officer. ... All these documents are admissible in evidence.

As to the burden of proof, it is agreed that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt–section 137 (1) of the Evidence Law. ... However, we agree that in a case like the instant one before us, if the standard of proof is said not to be beyond reasonable doubt it ought to be of the highest standard and certainly beyond a mere balance of probabilities. Considering the evidence of all the witnesses that had been called by the petitioner and the respondents and considering all the documents tendered by the petitioner as against those tendered by the respondents which we have evaluated, we are fully and perfectly satisfied beyond all reasonable doubts that the petitioner has established the facts alleged in his petition, that the figures as published by the fifth respondent had been grossly inflated to his prejudice in Ezeagu, Isi Uzo and Igbo Etiti Local Government Areas. We are under no doubt whatsoever that the petitioner had fully established the fact that incorrect results had been announced and published by the fifth respondent with regard to Ezeagu, Isi Uzo and Igbo Etiti. ... There had been complaint that the word falsification had been used and an argument whether the elements in the allegation are complete. We are not concerned with the language used. We are not concerned whether there had been falsification in the true sense or not or whether the mens rea has been proved or not. All that we know has been fully established is that the figures as published by FEDECO as the results of the election are not correct. We are fully satisfied that the figures have been inflated and that they should be corrected so as to reflect the true and accurate results of the election . . .

1. For the NPN candidate i.e. first respondent the position is as follows:

(a) Ezeagu–Inflated FEDECO figure is 60,980; the correct figure established in evidence is 21,252 and FEDECO figure was inflated by 39,728;

(b) Isi Uzo–Inflated FEDECO figure is 44,356; the correct figure established in evidence is 17,782 and FEDECO figure was inflated by 26,585;

(c) Igbo Etiti–Inflated FEDECO figure is 59,652; the correct figure established in evidence is 11,733 and FEDECO figure was inflated by 47,920;

The total inflated figure for the NPN candidate for the three Federal constituencies of Ezeagu, Isi Uzo and Igbo Etiti is 114,233.

2. For the NPP candidate, i.e. the petitioner the position is as follows:

(a) Ezeagu–Inflated FEDECO figure is 19,058, the correct figure established in evidence is 17,031 and FEDECO figure was inflated by 2,027;

(b) Isi Uzo–Inflated FEDECO figure is 27,863, the correct figure established in evidence is 20,031 and FEDECO figure was inflated by 4,832;

(c) Igbo Etiti–Inflated FEDECO figure is 56,767; the correct figure established in evidence is 13,293, and FEDECO figure was inflated by 43,474.

The total inflated figure for the NPP candidate for the three Federal constituencies of Ezeagu–Isi Uzo and Igbo Etiti is 50,333. The total FEDECO figure for the NPP candidate for the election in all the 23 local government areas in Anambra State is 887,221. Subtracting the inflated FEDECO figures of 114,233 from the FEDECO figure of 901,390 for NPN the correct figure for the votes scored by the NPN candidate in the election is 787,157. Subtracting the inflated FEDECO figure of 50,333 from the FEDECO figure of 887,221 for the NPP candidate, the correct figure for total votes scored by the NPP is 836,888; that is to say that the NPP candidate’s correct total votes in the said election is 836,888. Thus giving the NPP candidate, a majority vote of 49,731 over and above that of the first respondent. ... Therefore, so long as the said election was conducted substantially in accordance with the provisions of Part II of the Act, we hereby determine and hold that the petitioner Chief Jim Ifeanyichukwu Nwobodo is a person who ought to have been duly returned as the Governor of Anambra . . . and it is hereby ordered that this return be certified to the Federal Electoral Commission, Enugu.” (Italics mine).

Awogu, J., held that since Araka C.J., sitting alone made the order for security and for substituted service, the petition was improperly before the panel of five judges who heard the petition and as such it should have been struck out. On the merits, he held that in view of the falsifications the proper prayer should have been that the said election be declared null and void, and a new election ordered.

Lastly, he held that the exhibits, i.e. returns handed by the petitioner in proof of the falsifications, were not the official returns in the custody of the FEDECO but their own private copies of the returns which they made and that they could only have great weight if official returns made to FEDECO were not produced. He therefore dismissed the petition. Onwuamanegbu, J., held that:

“there is no evidence that the petitioner paid any security in connection with this petition I hold that it is incompetent and that in law there is no petition before this Court.”

He further held that the petition was defective failing to name the occupiers of the address for service of the petition. On the merits, he preferred the defence case and dismissed the petition.

The two dissenting judges were in the minority and their judgments did not constitute the judgment of the court. It was the judgment of the majority that constituted the judgment of the court.

On the status of the results certified in Form EC8A, the evidence of Godwin Nwokolo Alo, p.w. 2 establishes that the duplicate originals. In chief, he testified as follows:

“After I had collected the figures in the governorship election, I entered the figures in my own form EC8A and I signed the copies. The agents of the NPP and NPN were present and they both countersigned my Form EC8A. ... There were many forms EC8A prepared by me. I gave a copy each to the agents and I gave the deputy returning offices two copies... The copies I gave to the deputy returning officer were countersigned by the agents. The deputy returning officer’s name was B. Ude.”

To a question by Awogu, J., on the election panel of the High Court to wit “from your evidence you appeared to have issued not less than ten copies of Form EC8A?” the witness answered: “yes, I copied the figures on all the Forms EC8A–not in duplicates.”

On the necessity of dispensing with proof of schedule A attached to the petition which was admitted in the replies, the court records read:

“Chief Williams observes that Schedule A attached to the petition is admitted and the figures need not be proved–the figures being the figures published by FEDECO. Chief Onyiuke, Mogboh and Umeadi all agree that FEDECO actually published the figures in Schedule A, what they say they dispute are the figures in Schedule B.

Court–therefore notes that the petitioner needs not prove that FEDECO published the figures contained in Schedule A of the petition.”

Chief Christian Chukwumah Onoh, Mr. E. C. Ejeh (Chief Federal Electoral Officer for Anambra State) and Mr. E. N. Mbonu (the Returning Officer) being aggrieved by the majority decision appealed to the Federal Court of Appeal. Their complaints were contained in 12 grounds of appeal filed by the first respondent herein; 17 grounds filed by the second respondent; and five grounds filed by the third respondent herein. These grounds included:

“(1) the learned trial Judges erred in law by holding that C.J.s order of security while sitting alone and before constituting the panel is constitutional in view of the provision of section 238 of the Constitution.

(2) the learned trial Judges were wrong to have refused to strike out the petition when it became obvious to them that no security was proved before the panel to have been given.

(3) the learned trial Judges ought to have struck out the petition as being incompetent since the order made by the Chief Judge long before constituting the panel of judges for the service of processes on the first appellant was void.

(4) the learned trial Judges erred in law in allowing the petition when the allegations of falsification were not proved beyond reasonable doubt.

(5) the allegations of falsification of figures having been made against the deputy returning officers in the 11 local government areas mentioned in paragraph 5 of the election petition, the said deputy returning officers should have been made parties and failure to do so makes the election petition incompetent.

(6) exhibits B, C, C1, D, E, and F for Ezeagu Local Government Area; exhibits G, G1, and G2 for Igbo Etiti; exhibits H, H1, and H2 for Isi Uzo Local Government Area; relied upon by the petitioner were not originals but copies of the alleged originals and before these copies could be tendered in evidence as secondary evidence, the petitioner should have applied for an order of court under s. 72 (3) of the Electoral Act for the originals to be produced and if the respondents did not comply with the order then and only then could they have been tendered and acted upon by the court.

(7) the learned trial majority judges erred in law by acting and relying heavily at the trial on documents which were clearly inadmissible in law and this results in substantial injustice to the respondents.

Particulars

(1) Exhibits G, G1, G2, H, H1, H2, B, C, C1, D, E, F, A to A95 are secondary evidence of the contents of ballot boxes in the constituencies under question.

(8) the judgment of the majority learned judges is against the weight of evidence

(9) the learned judges who handed down the majority judgment erred in law in holding that the burden of proof in this case where the respondents were alleged to have falsified or doctored the election results was other than proof beyond reasonable doubt. The fact that the learned judges ended up by stating that they were satisfied beyond reasonable doubt did not remedy the situation. The accusations had not been proved beyond reasonable doubt.”

Briefs of argument were filed and after hearing oral submission by counsel, the Federal Court of Appeal, (Nasir, P., Phil-Ebosie, Kazeem, Aseme, Belgore, Olatawura and Aikawa, JJ.C.A.) allowed the appeal and set aside the judgment of the election panel of the High Court. The Federal Court of Appeal upheld all the grounds set out above except ground three. The lead judgment of the Federal Court of Appeal delivered by Belgore J.C.A., was concurred in by Nasir, P., Phil-Ebosie, Kazeem, Aseme, Olatawura, Aikawa, JJ.C.A. However, Aseme J.C.A. did not uphold the ground that failure to pay the amount of security on the date of filing was fatal. He also rejected as fatal the order made by Araka, C.J., sitting alone for substituted service.

Phil-Ebosie, J.C.A., was of the view that the petitioner’s documents exhibits A to H2 were duplicate/originals. He also held that failure to pay the security on the day of filing the petition could not avoid the petition and that section 147 (5) of the Electoral Act saved the petition. He held that the pre-trial jurisdiction exercised by Araka, C.J., sitting alone did not deprive the election panel of the jurisdiction to hear and determine the petition. Olatawura, J.C.A., rejected the contentions that failure to pay the amount of security on the day of filing the petition and that the exercise of the jurisdiction of the court by Araka, C.J., sitting alone to make the orders for payment of security and for substituted service were fatal to the petition. He also held that exhibits B to H2 were admissible.

Dealing with the various points, Belgore, J.C.A., observed, commented and concluded inter alia:

“The only method of questioning the validity of an election is contained in Part VI of the Act which in section 119 thereof is very clear.

119

(1) ...

(2) ...

(3) ...

The provisions of this section are very clear. The Chief Judge must first empanel the election court for the purpose of questioning the validity of the election to the office of the Governor of State. The election court came into existence by the order drawn up by Araka, C.J., on 22nd August, 1983. Nothing that was ordered before then was valid.

The competent court to give any order for security is the election court. ... To my mind, such orders would be ultra vires and of no effect. ... I hold that by 31st day of August, 1983, when hearing commenced there was a court for the purpose of s.119 (3) of the Act but unfortunately no petition was before that court ... There is hardly any hiding place under the provisions of section 238 of the Constitution ... Similarly, order for substituted service was given by a court not competent to give the order ... The security was not deposited on 17th August, but on 18th August, there was no extension of time given. No security has been given in law ... security for costs is a condition precedent for the petition to be filed or to mature into a petition ... The other point raised in the briefs and in arguments concerns admission of exhibits B, C, C1, D, E, F, G, G1, G2, H, H1 and H2 as evidence ... Are the documents exhibits B-H2 primary or secondary evidence ... section 93 Evidence Act has amply defined primary evidence and documents being referred to are not the same as Form EC8A or any FEDECO Form or documents mentioned in section 72 of the Act. ...

The originals are in the commission’s custody. None of the provisions of section 96 Evidence Act can render the exhibits now in ... question admissible. The Act makes for easy production of the originals through court order certainly there is no ‘duplicate original’ ... in any of the exhibits now in question ... The petitioner alleges in paragraph 5 of the petition that false returns were made and accused the second, third, fourth and fifth respondents of the falsifications in various local government returns on Form EC8A ... It is incumbent on the petitioner to prove that second, third, fourth and fifth appellants made false returns and thereby committed corrupt practice whereby they would be criminally liable. The petitioner woefully failed to do this. The proof required is a very high one–beyond reasonable doubt. Certainly there are discrepancies between exhibits B-H2 but it is not known who perpetrated these. But the original documents in possession of FEDECO and tendered in court have not been impeached and unfortunately they are the ones admissible in evidence and not exhibits B to H2. ...

The learned trial majority judges rightly held that the standard of proof ought to be of the highest possible standard and certainly beyond a mere balance of probabilities in their judgment, but I cannot see the rationale in their holding in the same breath that they were satisfied the petitioner (sic) proved the alleged facts in his petition beyond reasonable doubt when not a single crime was proved against second, third, fourth and fifth appellants.”

Aggrieved by the decision of the Federal Court of Appeal, petitioner/appellant appealed to this Court on 11 grounds of appeal viz:

“(1) The judgment of the Federal Court of Appeal (apart from those of Phil-Ebosie, J.C.A., and Olatawura, J.C.A.) were wrong in law in failing to uphold the petitioner’s submission that the returns in Form EC8 put in evidence by his (petitioner’s) witnesses were each primary evidence and were admissible as such.”

There is much substance and merit in this ground.

“(2) Further and in the alternative to (1) above, the said documents were admissible because (a) they are relevant to the facts in issue and/or (b) relevant and admissible under section 91 of the Evidence Act and/or (c) relevant and admissible as secondary evidence produced after serving notice to produce the original and/or (d) being documents which are admissible under certain conditions they were tendered and admitted without objection.”

The merit in ground 1 overshadows the substance in ground 2 which is an alternative ground. The documents are primary not secondary evidence:

“(3) The judgment of the Federal Court of Appeal (in particular that of Kazeem, J.C.A.) was wrong in law in treating the aforesaid documents as public documents of which only certified true copies thereof are admissible when

(a) the said documents are duplicate originals;

(b) as against the second and third respondents the said documents are originals; and

(c) there is no basis in law for treating the said documents as public documents under the provisions of the Evidence Act.”

There is substance in this ground. The merit in ground 1 covers this ground.

“(4) The Federal Court of Appeal was wrong in law in failing to uphold the petitioner’s submission that none of the returns or purported returns tendered in evidence by the witnesses for the respondents can be used to discredit the witnesses for the petitioner or as evidence of what the said returns or purported returns contain and having regard to the common law and the provisions of section 198 of the Evidence Act.”

There is substantial merit in this ground.

“(5) The Federal Court of Appeal erred in law in failing to observe that the returns tendered in the course of the case for the second and third respondents are of no evidential value on the question of the number of votes cast in favour of the candidates at the disputed election or return.” ...

“(6) The Federal Court of Appeal (apart from Olatawura, J.C.A.) erred in law in construing section 72 (3) of the Electoral Act as making provision for the exclusive and/or conclusive evidence of the result of the election when as a general rule of the law of evidence, public records are not to be regarded as exclusive evidence of facts stated therein in the absence of statutory provisions to that effect.”

“(7) The judgment of the Federal Court of Appeal is against the weight of evidence. In the alternative the said judgment is unreasonable and cannot be supported having regard to the evidence.”

“(8) The Federal Court of Appeal erred in law in holding that on his pleadings, the petitioner was bound to prove that fraud or an offence under section 105 (4) of the Electoral Act had been committed.

Particulars of Error

(a) Although it is conceded that the allegations made in the petition will be established if the petitioner was able to establish fraud or an offence as aforesaid nevertheless, the petitioner’s case on the pleading will also be established once he proves that in announcing the result of the election the third respondent relied on the wrong figures.

(b) the term falsify is wide enough to include (at the other extreme) fraudulent alterations of the true result as well as (at the other extreme) innocent or accidental alteration.

(c) Even if it be correct to say that the allegation in the petition was one of fraudulent alteration, once the petitioner succeeded in proving that votes cast in favour of the first respondent were in fact inflated, the petitioner is entitled to succeed because a pleader who has pleaded more than he strictly need have done, can always disregard the unnecessary or surplus averments and rely simply on the more limited or lesser allegation.

(dIn any event when asked to supply particulars of his allegations, the petitioner did so (P.68 of record) in terms which left the other parties in no doubt that the petitioner did not intend to prove that fraud or any offence had been committed.

“(9) The Federal Court of Appeal erred in law in deciding to reverse the findings of fact of the High Court when the said findings were based on their satisfaction beyond reasonable doubt and/or alternatively on the balance of probabilities that the number of votes cast in favour of the first respondent was inflated in Ezeagu, Igbo Etiti and Isi Uzo Local Government Area.”

“(10) Some of the members of the Federal Court of Appeal were wrong in law in deciding that the High Court presided over by Araka, C.J., had no jurisdiction or was not competent to try the petition.

Particulars of Error

(a) The said decision failed to give full effect to provisions of section 236, 237 and 238 of the Constitution;

(b) The jurisdiction and competence of the High Court are derived from the Constitution and not from the Electoral Act.”

“(11) Some of the members of the Federal Court of Appeal were wrong in law in deciding that there was no petition properly before the High Court presided over by Araka, C.J.”

Ground 7, 8, 9, 10 and 11 are well founded and have substantial merit.

Submissions of counsel:

Learned counsel particularly Chief F. R. A. Williams, S.A.N., for the appellant and Chief G. C. M. Onyiuke, S.A.N., for the second respondent made very useful submissions on the grounds of appeal set out above. Mr. Mogbo for the first respondent and Chief Philip Umeadi, S.A.N., for the third respondent adopted most of the submissions of Chief Onyiuke, S.A.N. Counsel also dealt extensively with the facts of the case and made interesting comments on the findings of facts by the courts below.

Chief Williams, S.A.N., dealt at length with the results of the election from three local government areas, i.e., Ezeagu, Isi Uzo and Igbo Etiti. He submitted that the facts were not seriously in dispute. The dispute, he said, was confined to a small area which is the area of activity of the deputy returning officers. The figures submitted by them to the returning officer in the gubernatorial election are according to him at variance with the results submitted by the assistant returning officers to the deputy returning officers. The results of votes cast at the polling stations are ascertained by the presiding officers in a state constituency. The presiding officers handed over their results to the assistant returning officers for the constituency for collation. The assistant returning officers in turn handed over the collated results from the constituency to the deputy returning officer for the local government area for collation. The deputy returning officer in turn handed over the collated result for the local government area to the returning officer for the state for final collation and declaration of the result of the election or return.

As to the above facts on record and as found by the trial court, there was no dispute; Chief Williams presented his arguments under six heads. These are:—

(1) Proof of petitioner’s case. Under this head grounds 6, 7 and 9 were dealt with.

(2) Impeaching the credit of p.w. 1; p.w. 2; and p.w. 3. Under this head, grounds 4, 5 and 9 were dealt with.

(3) Admissibility of exhibits tendered by petitioner’s witnesses. Under this head, grounds 1, 2, 3 and 6 were dealt with.

(4) Pleadings and nature of allegations by petitioner. Under this head, ground 8 was dealt with.

(5) Failure of the appellant to comply with the order for security for costs. Under this head, ground 11 was dealt with.

(6) Jurisdiction or competence of election court. Ground 10 was dealt with under this head.

Learned counsel, under head 1, took this Court through the facts established by the evidence on record and submitted that the facts were accepted by the High Court and sufficiently proved the case of the appellant.

On head 2, learned Counsel submitted that the credit of none of the petitioner’s witnesses particularly their vital witnesses p.w. 1, p.w. 2 and p.w. 3 was impeached according to law. He referred the court to section 198 of the Evidence Act which made provision on the procedure to be followed to discredit a witness who has made a previous written statement. Learned counsel cited in support the following cases:

(1) Crowley & Ors. v. Page 173 ER 74 at p. 344.

(2) North Australian Territory Co. v. Goldbough Malt & Co. (1892) 2 Ch 381 at 386 per Lord Esher MR.

(3) Brown v. Dunn (1894) 6 R 67.

(4) R. v. Hart 42 Cr. App R. 47 at 50.

(5) B. G. Tilak v. Shrinivas (1915) All India Law Report 7.

(6) Naba Kuma v. R. Narayan (1923) All India Law Report 7 at 97.

He drew the court’s attention to the fact that p.w. 1, p.w. 2 and p.w. 3 were never confronted with any return in writing signed by them which were at variance with the ones tendered by them (i.e. exhibits B, C, C1, D, E, F, G, G1, G2, H, H1, and H2) during their cross-examination to make those returns admissible for the purpose of discrediting them. Learned counsel also referred to Phipson on Evidence 12th Edition paragraph 1620 at p. 677 and cited in support the case of R. v. Sullwen 1923 1 KB 27; R. v. Mackenna (1956) 40 Cr App 2 65; South East Gas Board v. Cooper (1968) Sol. J. 823; R. v. Golder (1960) 1 WLR 1169; The Queen v. Yesufu Akanni (1960) 5 FSC 120.

Dr. Obodo (p.w. 1) tendered exhibit C1 for Ezeagu North; Mr. Godwin Alo (p.w. 2) tendered exhibit D for Ezeagu Central; Mr. Joseph Arimah (p.w. 3) tendered exhibits A to A95 for Ezeagu South and issued exhibit E to Mr. Ude (D.W. 1). D.W. 2 tendered exhibit RBI for Ezeagu; RB4 returns alleged given to him by Arimah; RB2 alleged given to him by Mr. Alo; RB3 alleged given to him by Obodo; RB2, RB3 and RB4 had signatures which D.W. 2 testified were not made in his presence. D.W. 2 did not know the signatures of p.w. 1, p.w. 2 and p.w. 3. He came to the conclusion that the signature on exhibits E and RB4 were made by Arimah by comparing them. According to his testimony, he did not see him sign exhibit E. Exhibit E had already been signed before submitting it to him.

Chief Williams submitted and I agree with him, that neither the assistant returning officer (ARO) nor the deputy returning officer (DRO) is required by law to deliver anything directly to FEDECO. But the returning officer is. Hence the third respondent submitted exhibit RR1 the certificate of return. Counsel then submitted quite rightly, that reference to form EC8 in section 70 Electoral Act applies only to exhibit RR1 not to the forms used by the assistant returning officers and deputy returning officers. But section 72 (1) of the Electoral Act requires the returning officer to deliver all documents relating to the conduct of the election to the Commission for their safe custody.

Chief Williams further submitted that the certificates of results forms EC8A tendered by the petitioner’s witnesses are primary evidence since they were forms completed by the assistant returning officer signed by him and delivered to the petitioner or his agent. The fact that another copy called original of the forms completed and signed by the returning officer is in the possession of FEDECO does not make it conclusive or exclusive evidence. Counsel then referred to Phipson on Evidence 12th Edition paragraph 1877. Public documents do not constitute exclusive evidence and or exclude independent proof of the facts contained in them.

I agree with the submission of Chief Williams that all the exhibits A to H2 are admissible. I am of the opinion that

(a) as against the third respondent they are admissible as admission by his assistants the assistant returning officers in favour of the petitioner;

(b) they are documents made in the ordinary course of business of FEDECO officials by FEDECO officials in the performance of their duties and so are admissible against all the respondents;

(c) they are admissible as duplicate originals under the common law and under section 93 of the Evidence Act.

Section 93 of the Evidence Act reads:

“(1) Primary evidence means the document itself produced for the inspection of the court;

(2) where a document has been executed in several parts, each part shall be primary evidence of the document.”

Section 95 of the Evidence Act provides that:

“Documents must be proved by primary evidence except in the cases hereinafter mentioned.”

Primary evidence is therefore the best proof of contents of a document. When in section 70 of the Electoral Act 1982 it is provided that

“After counting the votes and ascertaining the results of the polls the returning officer shall—

(acomplete and sign the certificate of return in Form EC8 in the schedule to this Act;

(bdeliver a signed copy of the certificate to each candidate or his counting agent.”

the clear intention is that the certificate of return is to be executed in several parts and that each signed copy is a duplicate/original and ranks equally with the original certificate read aloud in the place of counting which is delivered to the Commission.

Exhibits A1 to A95 and exhibits B, C, C1, D, E, F, G, G1, G2, H, H1 and H2 which were rejected by the Federal Court of Appeal are hereby declared admissible as primary evidence and restored to their full weight and effect. I also hold that their evidential value is of the highest quality and untouched by the contrary documentary evidence tendered by the respondents which were not admitted for the purpose prescribed by section 198 of the Evidence Act to contradict and discredit the evidence of p.w. 1, p.w. 2 and p.w. 3.

RB1 was described as a worthless document by the majority judges of the election panel. Onwuamaegbu, J., said it was of no evidential value. The petitioner’s certificates exhibits B to H2 therefore stand uncontradicted. Chief Williams’ submission under head 4 was brief and simple.

He pleaded falsification not fraudulent falsification. Counsel further submitted that when further and better particulars were sought by counsel for the respondents, they were left in no doubt that no crime is alleged against any of the parties to the petition and none was intended to be proved. This was abundantly emphasised in the statement of further and better particulars filed in the order of the High Court. The principal objective of the petition was to satisfy section 164(7) of the Constitution and prove that he scored a majority of lawful votes which entitled him to be duly returned as Governor. Counsel then referred to the case of Arab Bank Ltd. v. Ross (1952) 2 KB 216 at 229 where Denning, L.J., as he then was, said that:

“Under the rules of pleading, as I have always understood them, a pleader who has pleaded more than he strictly need have done can always disregard the unnecessary and surplus averments and rely simply on the more limited ones.”

Under head 5, Chief Williams submitted that failure to comply with the order for payment of security for cost the same day is not fatal to the petition especially having regard to the nature of the order, the time the order was made, and the provision of section 147 (5) and (6) of the Electoral Act, 1982.

He then cited the dictum of Harrison, J., in Kefi v. Isa & Anor. (1965) NNLR 17 at p. 19 and the dictum of Bello, J.S.C., in Attorney-General of Bendel State v. Attorney General of the Federation and Ors. (1981) 10 SC1 at 59 lines 26-33.

Under head 6 dealing with jurisdiction, he submitted that the jurisdiction of the election petition panel of the High Court derives not from the Electoral Act 1982 but from the Constitution of the Federal Republic 1979 and that under section 238 of the Constitution a single judge can exercise any of its jurisdictions.

Chief Onyiuke, S.A.N., for the second and third respondents with whose submissions the other respondents’ counsel agreed in his reply to Chief Williams’ submission made the following points:

(1) He contended that the petitioner/appellant could have insisted on a recount to settle the question of falsification;

(2) He admitted that the deputy returning officers relied on the returns submitted to them by the assistant returning officers to back up their collated results and that by virtue of the procedure laid down the results announced by FEDECO flows from the presiding officers to the assistant returning officers to the deputy returning officers to the returning officers.

He submitted that FEDECO opted to follow the procedure laid down in section 62 and not section 65 of the Electoral Act on counting. He observed that the deputy returning officers were not made parties to the petition. He urged the court to consider the documents tendered by the petitioner’s witnesses along with the documents tendered by FEDECO officials. He referred to section 220 Evidence Act. He then submitted that the Federal Court of Appeal gave its decision allowing the appeal justifiably on two grounds:

(1) that the case has not been proved beyond reasonable doubt; and

(2) that there was no petition before the High Court.

On the first ground, the judgment was unanimous, but on the second ... three justices dissented. He submitted that the majority decision on ground two had followed a long line of decisions of the High Court, the West African Court of Appeal and the Supreme Court of Nigeria. He cited Obale v. Nnadiwo (1972) 2 ECSLR 484 at 496 per Araka, J.; Ifeacho v. Iwaronye (1965) 9 ENLR 106. He submitted that the failure to comply with the order for security goes to the jurisdiction of the court and the very existence of the petition. It is a condition precedent he said. He cited in support the cases of Williams v. Mayor of Tenby (1879) 5 CPD 135; Emerue v. Nkereuwen & Ors. (1965) 2 All NLR 120; Oranye v. Jibowu 13 WACA 41; Ohene Moore v. Akesseh Tayee 2 WACA 43 at 45.

On the question of the nature of the documents tendered by the petitioner’s witnesses, i.e. whether they are primary, secondary or duplicate originals, Chief Onyiuke submitted that they were tendered as secondary evidence and treated as secondary evidence by the High Court. He submitted that they cannot be otherwise as FEDECO has the custody of the original. He submitted that it was not open to the petitioner to treat the document other than as secondary evidence and cited the case of Tomlinson v. LMS (1944) 1 All ER 537. He referred to section 72 (3) of the Electoral Act to support his contention. He also cited Skenconsult v. Ukey (1981) 1 SC 6; Peacock v. R. (1858) LJCP 244; Aspinall v. Sutton (1894) 2 QB 349.

Dealing with the burden of proof learned Counsel, Chief Onyiuke, submitted that the allegation of falsification of figures made by the petitioner in his petition amounted to the allegation of a criminal offence which attracts the high standard of proof stipulated in section 137 (1) of the Evidence Act. It must be proved beyond reasonable doubt. When his attention was drawn to page 68 of the record, he stated that the further particulars filed could mean that the petitioner was withdrawing the allegations of falsification against the second, third and fifth respondents to the petition. He then submitted that the deputy returning officers must be deemed to be parties to the case for the purpose of proving falsifications. He admitted that all the results covered by exhibits RB1, RB2, RB3, RB4 for Ezeagu Local Government Area; RQ1, RQ2, RQ3, RQ4 for Isi Uzo Local Government Area; and RO1, RO2, RO3, and RO4 for Igbo Etiti appeared in schedule A attached to the petition. He admitted he did not cross-examine the assistant returning officers on the figures the deputy returning officers supplied FEDECO.

Mr. Mogbo adopted the submissions of Chief Onyiuke, S.A.N. Chief Umeadi also associated himself with the submissions of Chief Onyiuke.

This appeal has, in the light of the submissions of counsel on the grounds of appeal filed, raised very many important questions for determination. As the facts pleaded in the petition pertaining to the issue of falsification evoked sharp disagreement on the standard and burden of proof to be discharged by the appellant, I shall immediately hereafter reproduce the relevant paragraphs, i.e. paragraphs 1, 2, 3, 5(i), (ii), (iii) (a), (b), and (f); 6 and 7 of the petition.

“1. Your petitioner is a person who claims to have had a right to be elected and/or returned as the Governor of Anambra State and your petitioner states that he won the majority votes and twenty five per cent of the votes cast in more than two-thirds of the twenty-three local government areas (for the purposes of the election) in Anambra State;

2. The first respondent is the NPN gubernatorial candidate who was declared elected by the second, third, fourth and fifth respondents as Governor of Anambra State. The second, fourth and fifth respondents are officers of the third respondent which is a body established under the Constitution of the Federal Republic of Nigeria, 1979.

3. Your petitioner states that the election was held on the 13th day of August, 1983, when he was a successful candidate, and the returning officer, Mr. E. N. Mbonu has returned the first respondent, Chief Christian Chukwuma Onoh as being duly elected by the result announced on 14th August, 1983.

5. And your petitioner says that the results of the election as certified by the third respondent and announced by the returning officer were falsified in various areas within the state constituency:

(i) Out of the total falsified results of 1,867,192 votes purported to have been cast at the election, the petitioner was credited with the false score of 887,221 total votes while the first respondent was falsely credited with 901,390 total votes as indicated in the schedule A attached to this petition;

(ii) by the said falsification of results the first respondent had a total of 14,169 votes more than the score credited to the petitioner who by the correct number of votes scored had a majority of all the votes cast at the entire election as shown in exhibit B attached to this petition.

(iii) The results of the said election were falsified by the second, third, fourth and fifth respondents or their agents, servants or privies in most of the local government areas within the state constituency for the election including the following local government areas:

(aEzeagu Local Government Area: Particulars of Falsified Result

The first respondent’s correct score was 21,252 votes while the petitioner’s correct score was 17,031 votes but these were falsified to read 60,980 for the first respondent and 19,058 votes for the petitioner. In the net result, the number of votes scored by the first respondent and credited to him by the second to fifth respondents was jacked up by as much as 37,701 which represent the difference between 39,728 votes and 2,027 votes wrongly credited to the first respondent and the petitioner respectively by the said results;

(bIsi Uzo Local Government Area: Particulars of Falsified Result

The first respondent’s correct score was 17,782 votes while the petitioner’s correct score was 23,031 votes but these were falsified to read 44,356 votes for the first respondent and 27,863 votes for the petitioner. In net result, the number of votes scored by the first respondent and credited to him by the second to fifth respondents was jacked up by as much as 21,585 votes which represent the difference between 26,585 votes and 4,832 votes wrongly credited to the first respondent and the petitioner respectively by the said results.

(fIgbo Etiti Local Government Area: Particulars of Falsified Result

The first respondent’s correct score was 11,732 votes and the petitioner’s correct score was 13,293 votes but these were falsified to read 59,652 votes for the first respondent and 56,767 votes for the petitioner. In the result, the number of votes scored by the first respondent and credited to him by the second to the fifth respondents was jacked up by as much as 4,446 votes which represents the difference between 47,920 votes and 43,474 votes wrongly credited to the first respondent and the petitioner respectively by the said results. (Italics mine).

6. Your petitioner shall rely on the relevant results recorded by the officials of Federal Electoral Commission supporting the authentic results in attached schedule B to this petition. The respondents are hereby given notice to produce at the hearing of this petition the originals of all such relevant records in their possession supporting the results in the attached schedule B. (Italics mine).

7. Your petitioner relies on the following grounds:

(i) that the first respondent, Chief Christian Chukwuma Onoh was at the time of the election not duly elected by majority of lawful votes at the election held on Saturday, 13th August, 1983.

(ii) that your petitioner has the highest number of votes cast at the said election of Saturday, 13th August, 1983, and has not less than one-quarter of all the votes cast in each of at least two thirds of all the local government areas in Anambra State.”

The prayer with which the petition was concluded has been set out at the beginning of this reasons for judgment but would for emphasis be repeated here. It reads:

“whereof your petitioner prays that it may be determined that the said Chief Christian Chukwuma Onoh was not duly elected and/or returned and that his election was void, and that the petitioner, Chief Jim Ifeanyichukwu Nwobodo was duly elected and ought to have been elected and/or returned.”

The respondents filed their replies to the petition and denied that the petitioner won the majority of lawful votes at the gubernatorial election and denied all the averments tending to establish this fact set out in all the paragraphs above. They denied the allegations of falsification and put the petitioner to the strictest proof. The second, third and fourth respondents in their paragraph 9 of their reply specifically asked for further and better particulars of their alleged agents, servants or privies. This was followed by a motion for further and better particulars.

They pleaded in their paragraph 10 as follows:

“In further answer to paragraph (5) of the petition, the respondents aver that the results in schedule A of the petition are the official and authentic results based on the entries in the official forms as required by the Electoral Act by the authorised officials of the third respondent (Federal Electoral Commission) (name in brackets supplied by me). The respondents further aver that schedule B was not prepared by the fifth respondent or any authorised official of the third respondent and aver that they do not reflect the correct results.”

The fifth respondent to the petition now third respondent in this appeal denied paragraphs 1,2 and 3 of the petition in so far as the petitioner claimed majority of lawful votes at the election. He denied paragraphs 4, 5 and 7 completely and demanded strict proof of the averment.

Looking at the pleadings (1) can it be said that the issue of falsification is not severable from the issue of the alleged correct votes cast for the petitioner and the first respondent at the election? (2) Can it be said, having regard to the record of proceedings for the application for further and better particulars and the statement of further particulars filed, that any charge of falsification was made against any party to these proceedings?

In answer to the first question, I would say that the pleadings served the issue of falsification from the issue of correct return. It is my observation that every sub-paragraph of paragraph 5 pleaded the correct votes cast separately from the inflated votes. Likewise, schedule B attached to the petition was pleaded as the correct and authentic results while schedule A was pleaded as containing the falsified results. By denying schedule B the respondent joined issue with the petitioner to prove the figures which is a totally different issue from the issue of falsification which was joined when the respondents denied the existence of inflation and the votes pleaded as votes added illegally to the correct votes cast. Furthermore, I find that the charge of falsification was not made against the respondents.

In answer to the second question, I would say that before further and better particulars were asked for and filed, paragraph 5 (iii) of the petition made the general allegations tending to show that it was the second, third, fourth and fifth respondents OR their agents, servants or privies who made the falsifications. The use of the disjunctive word OR meant that there was no static or definite allegation against the respondents. When the motion for the further and better particulars were argued and the particulars filed, all floating allegations of falsifications against the second, third, fourth and fifth respondents were erased. The schedule of particulars demanded included:

(1) the names, addresses and party affiliations of the falsifiers;

(2) names and addresses of those alleged to be in collusion with second, third, fourth and fifth respondents to falsify the election results;

(3) who and where and at what time were the results falsified with reference to paragraph 5 of the petition.

In answer to the request, the petitioner filed the statement to wit “the petitioner relies only on the fact that the return submitted by each of the deputy returning officers in respect of voting results in the polling stations located in each of the local government areas mentioned in the petition is false and does not represent the true and correct number of votes cast in favour of the petitioner or the first respondent.”

It is therefore my firm view that no allegation of falsification or crime was at that stage made against the first, second, third, fourth and fifth respondents to the petition who were parties to the proceedings. They are a distinct class of officers of the Federal Electoral Commission distinct from the returning officers to whom they are subordinate.

I make these observations and comments because of the submission of the respondents’ counsel that the petitioner has to discharge the onus of proof imposed by section 137 (1) of the Evidence Act. That section reads:

“If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”

This section has been interpreted in Benson Ikoku v. Enoch Oli (1962) 1 All NLR 194 at 199; Nwankwere v. Adewunmi (1966) 1 All NLR 129 at 132. In Benson Ikoku v. Enoch Oli, Unsworth F.J., delivering the judgment of the majority of the FSC, said at p.199

“Counsel for the respondent, in reply to this ground of appeal submitted that section 137 (1) of the Evidence Act means an issue raised in the pleadings and no crime was put in issue in paragraph 3 of the statement of claim. The allegation was that the respondent had maliciously presented and falsity is not a necessary ingredient in the allegation . . . The provisions of section 137 (1) were considered by this Court in the case of Sunday E. Oso v. Chief Festus Okotie Eboh (FSC 407/1959) where we held that the issue of a crime must arise on the pleadings. We have not, however, previously considered the scope of the subsection. In my view, the subsection only applies where there is a specific allegation of a crime in the pleadings, so that the commission of a crime can properly be said to be a basis or foundation of the claim or defence as the case may be. For example, the subsection would apply where a defendant in an action for libel pleaded justification of an allegation that the plaintiff committed a criminal offence or where a petitioner sought divorce under the Matrimonial Causes Act, on the grounds of rape, sodomy or bestiality. In the present case, the matter directly in issue is not whether a crime has been committed but whether the prosecution was without reasonable and probable cause and malicious . . .”

In Nwankwere v. Adewunmi, Brett, J.S.C. (delivering the judgment of the Supreme Court) said at p.132.

“The standard of proof required by section 137 (1) of the Evidence Act in cases in which it applies is not equally elementary and we do not think it can safely be assumed that the magistrate regarded it as having been satisfied unless this appears from his actual words in his judgment. In the present case, this so appears ... Thus even if section 137 (1) of the Evidence Act applies it was complied with ... In the one reported case in which the applicability of this subsection has been considered by this Court, Ikoku v. Oli (1962) All NLR 196, the members of the court were divided in their opinion but the nature of the present action is quite different from that of the claim in Ikoku v. Oli and the judgments in that case were concerned with a question which does not arise here. The subsection applies where the commission of a crime by a party to any proceedings is directly in issue. The Act gives a number of words and phrases a special and precise meaning and in construing any particular provision of the Act it is essential to give effect to that meaning. Section 2 contains a definition of fact in issue which is far from including every allegation which might properly be made or denied in a pleading. The definition reads:

‘Facts in issue includes any fact from which either by itself or in connection with other facts the existence non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceedings necessarily follows.’ ”

In my view, the commission of a crime by a party to this proceeding is not directly in issue and the petitioner is not required in law to discharge the burden of proving the crime or offence of falsification against any party to this proceeding. The standard of proof required of the petitioner in these proceedings to succeed is that of balance of probabilities, this being a civil matter as enunciated by this Court in the case of A.R. Mogaji & Ors. v. R. Odofin (1981) 4 SC 91 at p.93. On the issue of standard of proof, I accept the submission of learned Counsel for the appellant and reject the submission of counsel for the respondents.

I now turn to the question of admissibility of the documents exhibits A to A95, B, C, C1, D, E, F, G, G1, G2, H, H1 and H2 tendered by the petitioner’s witnesses. These were certificates of results issued by the presiding officers, assistant returning officers and deputy returning officers. Learned counsel for the respondents contended that the submission of counsel for the appellants that they are primary evidence should be rejected. In my opinion, there is no basis for treating the said exhibits other than as primary evidence. They were forms completed and signed by the FEDECO officials mostly assistant returning officers and party agents in several parts and these were the signed copies delivered to each candidate or his agent. Their preparation was in the course of the official duties of the assistant returning officers and as required by law.

The are primary evidence under section 93 (2) of the Evidence Act and are admissible under section 95 of the Evidence Act. It is observed that their rejection by the majority of justices of the Federal Court of Appeal as inadmissible evidence led inevitably to their decision to allow the appeal and dismiss the petition for lack of proof. Their rejection in effect wiped out all the evidence led in proof of the petition. Now that I have declared the exhibits admissible as primary evidence, their full weight and evidential value given to them by the election court are automatically restored.

Turning to the issue of jurisdiction, I find that there are three questions posed. They are (1) was Araka, C.J., competent to sit alone and make the order fixing the amount of security? (2) was Araka, C.J., competent to sit alone and make the order for substituted service? (3) Araka, C.J., having sat alone to hear interlocutory applications, was the panel of five judges set up by Araka, C.J., to constitute the High Court to hear and determine the petition competent to hear and determine the petition?

The jurisdiction of the State High Court to hear and determine election petitions derives from the 1979 Constitution of the Federal Republic of Nigeria, section 237 (1). The High Court of each State in the Federation of Nigeria is also established by the Constitution. See section 234 (1) of the Constitution. The 1979 Constitution also made provision in section 238 for the valid exercise of the jurisdiction conferred on the court by the Constitution or any law. The general jurisdiction that any State High Court exercises derives from section 236 (1) of the Constitution. In addition to such other jurisdiction as may be conferred upon it by any law, the Constitution by that section 236 (1) conferred unlimited jurisdiction upon each State’s High Court in the Federation. The question of how many judges shall sit in a State High Court to exercise any jurisdiction was settled by section 238 of the constitution which reads:

For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any law, a High Court of a State shall be duly constituted if it consists of at least one judge of that court.” (Italics mine).

It is also to be observed that Section 119 (3) of the Electoral Act 1982 reads:

For the purpose of exercising any jurisdiction conferred by this Act upon the Federal High Court or the High Court of a State, in any case involving the office of the President, Vice-President, Governor, Deputy Governor, the Chief Judge of the Federal High Court or the High Court of a State as the case may be, shall determine the number of judges that shall constitute the court.” (Italics mine).

Having regard to the provisions of section 238 of the Constitution and section 119 (3) of the Electoral Act, I am of the opinion and I hold that Araka, C.J., sitting alone to hear and make orders on the interlocutory applications duly constituted the Anambra State High Court. Similarly, the panel of five judges set up by him to hear and determine the petition already filed legally constituted the Anambra State High Court. In my view, the election panel of the High Court had jurisdiction to hear and determine the petition and I reject the submission of learned Counsel for the respondents that the court was incompetent.

The only other question left is whether the failure of the petitioner to pay the amount of security ordered on the day of filing of the petition deprived the High Court of its jurisdiction to entertain the petition. It is on record that the order was made by Araka, C.J., at 3.00 pm. on the 17th August, 1983. By the order, the petitioner was ordered to deposit the amount of “N5,000.00 in the Government Treasury and file the receipt in court.” As the Government Treasury had closed, the order could not be complied with till the following day, 18th August, 1983.

Section 127(1) of the Electoral Act which makes provision for the giving of security does not make its payment a condition precedent to filing of the petition as was the case in the 1962 Electoral Act. The section reads:

“At the time of the filing or within such extended time as may be allowed by the court the petitioner shall give security for an amount fixed by the court and as directed by the court; the petitioner shall deposit the amount in any Treasury or give security by recognisance for the amount.”

The plain meaning of the section is that the amount of security shall be given at the time of filing or after filing. The giving of the security is therefore not a condition precedent to the filing and the failure to give security before filing or at the time of filing does not make the petition incompetent null and void or deprive the competent High Court of its jurisdiction to hear it. Further, section 147 (5) of the Electoral Act 1982 expressly bars such a failure from having the effect of voiding the petition. It reads:

No failure to comply with this Part of the Act (i.e. Part VI for sections 119 to 150) as to the time for the giving of notice or the doing of any act, matter or thing other than as to the time for filing a petition or lodging any appeal shall avoid any proceedings. ... (Italics mine).

This, in my view, is a complete answer to the objection of the respondents and the justices of the Federal Court of Appeal who held that the failure avoided the proceedings were very much in error.

All the cases cited by counsel based on the 1962 Electoral Act are totally inapplicable and of no assistance to the respondents on this issue.

For the above reasons, I allowed the appeal of the appellant on the 8th day of October, 1983, set aside the decision of the Federal Court of Appeal and restored the decision of the High Court, Enugu.

Eso J.S.C. On 8th October, 1983, I allowed the appeal of Chief Jim Nwobodo in this case against Chief C. C. Onoh. I declared the appellant Chief Nwobodo as the winner of the gubernatorial election held for Anambra State on 13th August, 1983, and also declared him as the lawful Governor of the State. I however reserved my reasons for those decisions until today. I now give my reasons for the decisions.

The facts which gave rise to the appeal are summarised hereunder:

The appellant Jim Nwobodo who would hereinafter be referred to as Nwobodo had served as the Governor of Anambra State for four years that is, 1979 to 1983. Elections were due to be held for the 1983 to 1987 period and Nwobodo was nominated by his political party, the Nigerian Peoples’ Party (NPP) to contest the governorship election under its platform albeit for a second term. The respondent Chief C. C. Onoh, who also would hereinafter be referred to as Onoh was nominated by the National Party of Nigeria (NPN) to contest the election. There were four other political parties in the contest, but for the purpose of this case only two, the NPP and the NPN, are relevant. The Federal Electoral Commission (the FEDECO), the body constitutionally provided to conduct the elections, fixed the gubernatorial election for the 13th August, 1983. The election was held and the FEDECO declared Onoh as winner of the contest. He was declared the Governor of Anambra State.

Nwobodo filed a petition before the High Court, again constitutionally constituted for the purpose and the court (Araka C.J., Aneke, Orah, Awogu and Onwuamaegbu J.J.) with Awogu and Onwuamegbu J.J. dissenting held that the FEDECO was wrong in returning Onoh as the winner of the election. It further held that Nwobodo scored the majority of the lawful votes. I will refer to the details of the findings of the court, as they affect this appeal, later, but suffice it to say meanwhile, that Onoh, dissatisfied with the decision of the High Court, appealed to the Federal Court of Appeal, hereinafter referred to as the Court of Appeal. That court, Nasir, Phil-Ebosie, Kazeem, Aseme, Belgore, Olatawura and Aikawa, J.J.C.A., allowed the appeal filed by Onoh, set aside the decision of the High Court and declared Onoh as the rightful governor of Anambra State.

It is from that decision of the Court of Appeal that Nwobodo has appealed to this Court. Many issues were raised, some of which were not relevant to the final determination of the appeal. However, I intend to deal with the issues, as they are relevant, in detail.

The issues raised in the appeal are however as follows:

(a) The constitution of the High Court which tried the petition: whether the court which was a panel of five could, without constituting that panel, order security for costs. Or to put it more succinctly, whether the Chief Judge of the State, Araka, C.J., who set up the panel of five judges, could, alone, give order for security for costs. There was also the question of a late compliance with the order for security for costs.

(b) Whether or not it was necessary to join the candidate for the office of Deputy Governor as a petitioner or respondent while filing the petition.

(c) Whether or not it was necessary to disclose the occupier of the petitioner’s address for service and whether or not disclosure would be fatal to the petition.

Chief F. R. A. Williams, S.A.N., leading counsel for Jim Nwobodo, submitted and I agree, that all these three issues which I have stated herein are ancillary.

The most pertinent issues, in the submission of learned Counsel are—

(a) The issue of pleadings in the petition and the nature of the allegations of the petitioner. Whether or not the allegations, as contained in those pleadings, allege the commission of a crime.

(b) The standard of proof of the allegations when such crime has been alleged, whether the allegations should be proved beyond reasonable doubt as in a criminal case, or, on the balance of probabilities, as in a civil case.

(c)Whether or not Nwobodo has discharged the burden of proof placed upon him in this case, having regard to the evidence led.

This last issue leads me to discuss the pertinent facts in the case. I have earlier on stated that the contest between the two parties is as regards who won the gubernatorial election. Though Nwobodo in his pleadings complained of falsification of figures in 11 local government areas, the petitioner, Nwobodo, restricted his case to Ezeagu, Igbo Etiti and Isi Uzo Local Government Areas. His case was that votes were wrongly credited in these three local government areas to Onoh, thus the NPN candidate had a net gain as follows—

 

   

 

Ezeagu

37,701

 

 

Igbo Etiti

4,446

 

 

Isi Uzo

21,753

 

making a total net gain of 63,900 of wrongful votes in favour of Onoh, whereas by the result announced by the returning officer, and published by FEDECO, Onoh won the election by a majority of 14,169 votes. It means therefore that if Nwobodo could successfully prove that Onoh’s votes were wrongfully inflated by more than the 14,169 (in this case he claimed 63,900) he would have succeeded in his claim. I will deal more with those facts when I examine the issue of proof by Nwobodo of his case.

The contents of the petition filed by Nwobodo is of extreme importance to this case and I would like to set out the relevant paragraphs. I think Nasir P. reproduced the salient paragraphs and I will adopt this. I set hereunder paragraphs 1, 2, 3, 4, 5 (i), 5 (ii), 5 (iii) (a), 5 (iii) (b), 5 (iii) (f), 6, 7 and 8 and also the prayers of the petitioner. They are—

“1. Your petitioner is a person who claims to have had a right to be elected and/or returned as Governor of Anambra State and your petitioner states that he won the majority votes and twenty-five percent of the votes cast in more than two-thirds of the twenty-three local government areas (for the purposes of the election) in Anambra State.

2. The first respondent is the NPN gubernatorial candidate who was declared elected by the second, third, fourth and fifth respondents as Governor of Anambra State. The second, fourth and fifth respondents are officers of the third respondent which is a body established under Constitution of Federal Republic of Nigeria 1979.

3. Your petitioner states that the election was held on the 13th day of August, 1983, when he was a successful candidate, and the returning officer, Mr. E. N. Mbonu, has returned the first respondent, Chief Christian Chukwuma Onoh, as being duly elected by the result announced on 14th August, 1983.

4. The candidates for the said election were Chief A. O. Mbah for the UPN who purportedly scored a total of 21,347 votes; Chief A. Nwankwo for PRP who purportedly scored a total of 14,515 votes; petitioner as the candidate for the NPP who purportedly scored 887,221 total votes; Mr. R. C. Okafor for the GNPP who purportedly scored a total of 22,253 votes; Chief C. C. Onoh for the NPN who purportedly scored a total of 901,890 votes; and T. C. Onyemelukwe for NAP who purportedly scored a total of 21,866 votes.

5. And your petitioner says that the results of the election as certified by the third respondent and announced by the returning officer were falsified in various areas within the State constituency:—

(i) Out of the total falsified results of 1,867,192 votes purportedly to have been cast at the election, the petitioner was credited with the false score of 887,221 total votes while the first respondent was falsely credited with 901,390 total votes as indicated in the Schedule ‘A’ attached to this petition.

(ii) By the said falsification of results the first respondent had a total of 14,169 votes more than the score credited to the petitioner who by the correct number of votes scored had a majority of all the votes cast at the entire election as shown in the Schedule ‘B’ attached to this petition.

(iii) The results of the said election were falsified by the second, third, fourth and fifth respondents or their agents, servants or privies in most of the local government areas within the State constituency for the election including the following local government areas:—

(aEzeagu Local Government Area: Particulars of Falsified Result

The first respondent’s correct score was 21,252 votes while the petitioner’s correct score was 17,031 votes but these were falsified to read 60,980 for the first respondent and 19,058 votes for the petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to fifth respondents was jacked up by as much as 37,701 which represents the difference between 39,728 votes and 2,027 votes wrongly credited to the first respondent and the petitioner respectively by the said results.

(bIsi-Uzo Local Government Area: Particulars of Falsified Result

The first respondent’s correct score was 17,782 votes while the petitioner’s correct score was 23,031 votes but these were falsified to read 44,367 votes for the first respondent and 27,863 votes for the petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to fifth respondents was jacked up by as much as 21,585 which represents the difference between 26,585 votes and 4,832 votes wrongly credited to the first respondent and the petitioner respectively by the said results. . . .

(fIgbo-Etiti Local Government Area: Particulars of Falsified Result

The first respondent’s correct score was 11,732 votes and the petitioner’s correct score was 13,293 votes but these were falsified to read 59,652 votes for the first respondent and 56,767 votes for the petitioner. In the net result the number of votes scored by the first respondent and credited to him by the second to fifth respondents was jacked up by as much as 4,456 votes which represents the difference between 47,920 votes and 43,474 votes wrongly credited to the first respondent and the petitioner respectively by the said results.

6. Your petitioner shall rely on the relevant results recorded by the officials of Federal Electoral Commission supporting the authentic results in attached Schedule ‘B’ to this petition. The respondents are hereby given notice to produce at the hearing of this petition the originals of all such relevant records in their possession, supporting the results in the attached Schedule ‘B’.

7. Your petitioner relies on the following grounds:—

(i) That the first respondent Chief Christian Chukwuma Onoh was, at the time of the election not duly elected by majority of lawful votes at the election held on Saturday, 13th August, 1983.

(ii) That your petitioner has the highest number of votes cast at the said election of Saturday, 13th August, 1983, and has not less than one-quarter of all the votes cast in each of at least two-thirds of all the local government areas in Anambra State.

8. Your petitioner further says that the falsified results recorded by the third respondent’s office in Enugu in the election for Abakaliki and Anambra Local Government Areas in favour of the first respondent to read 105,000 instead of 31,446 votes and 71,029 instead of 21,226 votes respectively were subsequently corrected after the protest registered thereto by the petitioner at the third respondent’s office.

Whereof your petitioner prays that it may be determined that the said Chief Christian Chukwuma Onoh was not duly elected and/or returned and that his election was void and that the petitioner, Chief Jim Ifeanyichukwu Nwobodo was duly elected and ought to have been elected and/or retuned.”

All the appellants denied all the material allegations made against them and in particular denied any allegation of falsification of figures in the various areas specified by the respondent in the petition. At the end of their respective replies each of the appellants prayed the election court that the petition be dismissed. In the original petition as filed the petitioner had challenged the results of the election in 11 local government areas but at the trial only the challenge to the election in three local government areas was pursued to the end of the trial.

Onoh and of course the other respondents to the petition, that is, the Chief Federal Electoral Officer, the FEDECO, the Resident Electoral Commissioner and the Returning Officer denied the allegations thereby putting Nwobodo to the proof of his allegations.

It was as a result of the proof so preferred by the petitioner that the High Court found in favour of Nwobodo, which decision was set aside by the Court of Appeal and appeal against which was brought before this Court.

I must acknowledge the tremendous help of learned Counsel in this case, Chief F. R. A. Williams (S.A.N.) for the appellant, Nwobodo, Mr. A. I. Mogboh for first respondent, Chief G. C. M. Onyiuke (S.A.N.) for the second respondent, and Chief P. Umeadi (S.A.N.) for third respondent. Learned counsel gave us the advantage of the briefs they filed though in the Court of Appeal, and advanced formidable arguments in favour of their respective clients.

Now to take the issues which have arisen in this appeal seriatim:

The Competence or The Jurisdiction of the High Court Panel: The Chief Judge of Anambra State Araka C.J. by an order made by him on 22nd August, 1983, set up a panel of judges to hear the petition. This was under subsection (3) of section 119 of the Electoral Act 1982. The section itself provides—

“119

(1) No election and no return to the Senate, the House of Representatives or any State Assembly or to any elective office shall be questioned in any other manner except by a petition complaining about the election or the return and presented to the competent High Court in accordance with the provisions of this Act.

(2) In this section ‘competent High Court’ means—

(a) in any case involving the office of President or Vice-President, the Federal High Court and on the coming into force of section 262 of the Constitution, the High Court of the Federal Capital Territory established pursuant to section 263 of the Constitution;

(b) in the case involving any other office, the High Court of the State as respects which such office is established under the Constitution; and

(c) in any case involving the membership of or the seat of a person in a Legislative House, the High Court of the State where the Senatorial district, Federal constituency or State constituency of that member or person is located.

(3) For the purpose of exercising any jurisdiction conferred by this Act upon the Federal High Court or the High Court of a State, in any case involving the office of the President, Vice-President, Governor or Deputy Governor, the Chief Judge of the Federal High Court or the High Court of a State as the case may be, shall determine the number of judges that shall constitute the Court.”

The Chief Judge, sitting alone, had given order for security for costs. The question before the High Court, the Court of Appeal and this Court was whether the order made by the Chief Judge sitting alone, even, before the election panel was set up, was valid. The Court of Appeal, as per Belgore J.C.A., answered this question in the negative. The learned Justice of the Court of Appeal, after referring to s. 127 (1) of the Electoral Act 1982 which provides—

“127.

(1) At the time of filing the petition or within such extended time as may be allowed by the Court the petitioner shall give security for an amount fixed by the Court and as directed by the Court; the petitioner shall deposit the amount in any treasury or give security by recognisance for the amount;”

held—

“No doubt the Court envisaged by section 127 (1) of the Act is the election court and for the purpose of this petition the court empanelled under section 119 (3) of the Act. The competent court to give any order for security is the election court.”

With great respect to the learned Justice and to the Court of Appeal itself, the court which tries election petitions is set up, NOT by the Electoral Act, but by the Constitution. See sections 236, 237 and 238 of the Constitution which provide—

“236.

(1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a State shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.

(2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction.

237

(1) Without prejudice to the generality of the provisions of section 236 of this Constitution, the competent High Court shall, to the exclusion of any other court, have original jurisdiction to hear and determine any question whether any person has been validly elected to any office or to the membership of any legislative house, or whether the term of office of any person has ceased or the seat of a person in a legislative house has become vacant.

(2) In this section, ‘competent High Court’ means—

(a) in any case involving the office of President or Vice-President, the Federal High Court and on the coming into force of section 262 of this Constitution the High Court of the Federal Capital Territory established pursuant to section 263 of this Constitution;

(b) in any case involving any other office, the High Court of the State as respects which such office is established under this Constitution; and

(c) in any case involving the membership of or the seat of a person in a legislative house, the High Court of the State where the Senatorial district, Federal constituency or State constituency of that member or person is located.

238. For the purpose of exercising any jurisdiction conferred upon it under this Constitution or any law, a High Court of a State shall be duly constituted if it consists of at least one Judge of that court.”

Section 236 and 237 (which latter section, in conferring a special jurisdiction upon the High Court states it is “without prejudice to the generality . . . of section 236”) provide adequate jurisdiction for the High Court not only to try election petitions but also to make security for costs. When Araka C.J. made the order as to security of costs, he had jurisdiction to make that order under sections 236, 237 and 238 of the Constitution read together, for under s. 238, which I have reproduced above, the High Court is legally constituted once it consists of at least one Judge of the State court. Section 127 of the Electoral Act which was relied upon by the Court of Appeal could only derive its validity from section 111 of the Constitution. Paragraph (b) of subsection (1) of the section provides—

“The National Assembly shall make provision as respect

(b) The circumstances and manner in which and the conditions upon which, such application (that is application for the determination of any question as to whether any person has been validly elected as a member of a House of Assembly (see subsection (1)) may be made.”

In any event, I think it will be travesty of justice to permit such trivial point (that assuming that the Chief Judge’s order was ultra vires) to vitiate the very important constitutional issues as to the determination of who the Chief Executive of a State was. In my view even when a petitioner in an election petition fails to seek or abide by an order for security for costs, the court shall still hear and determine the election petition, the irregularity not being a fundamental failure to comply with the Electoral Act. In this case, the order was made on 17th August but complied with as per the Treasury Receipt on 18th August. In any event s. 147 (5) of the Electoral Act is a complete answer to the objections.

Non Joinder of Deputy Governor as a Party

This point was not seriously argued in this Court. I only make reference to it as counsel’s briefs dealt exhaustively with it. It is to be appreciated however that those briefs were actually prepared for the Court of Appeal which has dealt with the matter. In regard to this, I adopt the view held by Nasir P. that he did not consider it necessary that the Deputy Governor must be joined see also Peenock Investment Ltd. v. Hotel Presidential Ltd. (1982) 12 SC as per Idigbe JSC pp 35-51 and my judgment pp 92-105.

PLEADINGS, NATURE OF ALLEGATION & BURDEN OF PROOF

I now come to the important aspects of this appeal.

I have already set out in this judgment the relevant paragraphs of the petitioner’s pleadings. The first question to answer is whether or not those allegations as contained in the pleadings allege a crime. Paragraph 5 of the petition reads—

“And your petitioner says that the results of the election as certified by the third respondent and announced by the returning officer were falsified in various areas within the State constituency—

(i) Out of the total falsified results of 1,867,192 votes purported to have been cast at the election, the petitioner was credited with the false score of 887,221 total votes while the first respondent was falsely credited with 901,390 total votes as indicated in the Schedule ‘A’ attached to this petition.

(ii) By the said falsification of results the first respondent had a total of 14,169 votes more than the score credited to the petitioner who by the correct number of votes scored had a majority of all the votes cast at the entire election as shown in the Schedule B attached to this petition.”

As to who falsified the results, the petition alleges—

“The results of the said election were falsified by the second, third and fifth respondents or their agents, servants or privies.”

The question is what crime has been alleged of the second, third and fifth respondents, their agents, servants or privies? In my respectful view, falsification per se or simpliciter does not constitute an offence. Chief Onyiuke did urge upon us that an offence of forgery has been alleged herein. With respect, has it? Forgery does not consist of falsification only. There must be an additional allegation that the falsifier knows the document or the writing which has been falsified to be false. Until this allegation has been made, the question of proof does not arise. Forgery as defined under the Criminal Code reads—

s. 465

A person who makes a false document or writing knowing it to be false, and with intent that it may in any way be used or acted upon as genuine, whether in Nigeria or elsewhere to the prejudice of any person, or with intent that any person may be in the belief that it is genuine be induced to do, or refrain from doing any act whether in Nigeria or elsewhere is said to forge the document or writing.

To bring an indictment for the offence of forgery under s.465 of the Criminal Code, it must contain the important ingredient of knowledge except the word “forgery” is used in the indictment.

The whole essence of an examination of the pleading for the purpose of determining whether it alleges a criminal offence or not is brought about by s. 137 (1) of the Evidence Act. The sub-section provides—

“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”

It amounts to this therefore—

(1) that the allegation must be made to a party to the case; and

(2) that the commission of the crime shall be directly in issue, or in other words, that it is the commission of the crime that must be proved before the plaintiff or the petitioner (as in this case) could succeed in his action.

If this were the case, then the allegation which constitutes the crime must be proved beyond reasonable doubt as if it were a criminal case that was on and not on the balance of probabilities.

It seems to me, and on this I am of the firm view, that the whole essence of s. 137 (1) of the Evidence Act is to prevent a litigant being adjudged guilty of a criminal offence except the proof of the crime was beyond every reasonable doubt. It is not to restrict the civil right of a plaintiff or petitioner or absolve a defendant or respondent as the case may be from civil liability. Indeed this was the provision of the law in England up to about 1927 when in Lek v. Mathews (1927) 29 LLL Rep 141 in the House of Lords put it decidedly that to ask for proof beyond reasonable doubt in a civil case involving criminal allegation would be putting too high a burden on the plaintiff. In that case Lord Summer had said—

“On a civil issue I do not think more is required than a correct appreciation of the incidence and the shifting of the onus of proof and a reasonable estimate of the weight pro and con of the various parts of evidence . . .

I am just as reluctant to make the underwriter pay Mr. Lek many thousands of pounds, if he has been guilty of making a false claim, as to find him guilty of it if he has not. The whole question is whether it has been proved; and I think it has.”

As Denning, L.J., put it in a later case of Hornal v. Neuberger Products Ltd (1957) 1 QB 247 at p. 259 the House of Lords in the Lek v. Mathews case made it apparent that proof was only necessary according to the civil standard. See also later cases of Re Dellons Will Trusts (1964) 1 WLR 451. Post Office v. Estuary Radio 1967 1 WLR 847 and compare earlier cases of Thurtell v. Beaumont 1823) 1 Bing. 339; Issaias v. Marine Insurance Co. Ltd. (1923) 15 WLR 186. I think the time is ripe in this country when the Federal Military Government should give a serious consideration to amending the provision of s. 137 (1) of the Evidence Act in line with the English situation as already discussed. To leave the law as it is, especially as it has now been interpreted once for all by this Court, and my own interpretation is a mere dissent from the majority, will, in my respectful view, lead to injustice being done to litigants who have a just claim but which claim is based upon an allegation of a crime. This may also be a matter for the consideration of the Law Reform Commission.

To go back to my own interpretation of s. 137 (1) of the Evidence Act, I will find it difficult to hold a general allegation of wrong doing, as in this case, which is falsification of results and no more to amount to such a serious offence as forgery and thereby overlooking the real crux of the matter in this case, which is determination of who has the majority of lawful votes in an election. For a general discussion on a general allegation of wrong doing see the case of Davy v. Garrett 7 ch D 489 and Woolmington v. Mutual ... 5 AC 697 at 701, at 704.

But then, even where the allegation of a crime has been made in the pleading, it may be possible to prove the case without the proof of the crime. Where that is so, and I think this case is a good instance, then the mere fact that the crime has not been proved is no bar to proving the case on some other evidence on the balance of probabilities. It is to be noted that what s. 137 (1) of the Evidence Act requires is that the crime–NOT the case–shall be proved beyond doubt. If it is possible to prove one’s case by lesser evidence, non-offering of the major evidence does not detract from the validity of the proof of the case for the plaintiff or petitioner as the case may be–see the observation of Lord Denning M.R. in Arab Bank Ltd. v. Ross 1952 2 KB 216. The learned master of the Rolls said—

“Under the rules of pleading as I have always understood them, a pleader, who has pleaded more than he strictly need have done, can always disregard the unnecessary or surplus averments and rely simply on the more limited ones.”–see P. 229 ibid.

I totally endorse this dictum.

One last point, and it is important, on this issue of s. 137 (1) of the Evidence Act. The respondent, Onoh, asked for Better and Further Particulars. The application and the affidavit in support read as follows—

“APPLICATION FOR ORDER FOR FURTHER PARTICULARS
s. 126 OF THE ELECTORAL LAW 1982

TAKE NOTICE that this Honourable Court will be moved on ... the ... day of ... 1983 at 9 o’clock in the forenoon or so soon thereafter as Counsel for the second, third, fourth, and fifth respondents can be heard for an ORDER that the Petitioner do furnish further and better particulars of the allegations made in paragraph (5) and all the subparagraphs of paragraph (5) (iii) from (a) to (k) of the Petition as indicated hereinafter and for such further order or orders as to the Court may deem fit to make.

PARAGRAPH (5) (iii):—

(a) NAMES AND ADDRESSES OF THOSE ALLEGED TO BE IN COLLUSION WITH THE SECOND, THIRD, FOURTH AND FIFTH RESPONDENTS TO FALSIFY THE ELECTION RESULTS IN THE LOCAL GOVERNMENT AREAS ALLEGED IN THE SAID SUB-PARAGRAPH.”

AFFIDAVIT IN SUPPORT OF MOTION

“I, EPHRAIM C. EJEH, Administrative Secretary, Federal Electoral Commission, Enugu, Nigeria Citizen of No. 7 Ridgeway, Enugu, make oath and state as follows:—

1. That I am the second respondent in the above petition and I make this affidavit with the knowledge and consent of the third, fourth and fifth respondents.

2. That the petition in this case has been served on the respondents in this case.

3. That after consultations with our leading Counsel, Chief G. C. M. Onyiuke (S.A.N.), it has become necessary to ask for better and further particulars of certain allegations made in the petition as we have no knowledge of those involved nor at what places the alleged incidents too place.

That I make this affidavit in support of the Motion hereto attached.”

“MOTION ON NOTICE

Take notice that this Honourable Court shall be moved on ... the ... day of August, 1983, at the hour of 9 o’clock in the forenoon or so thereafter as the business of the court shall permit as applicant or counsel on his behalf can be heard praying the court for an order that the Petitioner/Respondent do deliver to the Applicant further and better particulars of the allegations contained in paragraph 5 and subdivisions thereof, 7 and 8 of the petition and for such further Orders and other orders as the Court may deem fit in the circumstances.

Schedule of Particulars to wit:—

(i) Who and where and at what time were the results falsified with reference to paragraph 5 of the petition.

(ii) In what constituencies and polling stations were the result falsified.

(iii) The names, addresses and party affiliation of the falsifiers.

(iv) The names and addresses and party affiliation of the persons who falsified the result at Ezeagu and Isi-Uzo, Uzo-Uwani, Udi, Oji-River, Igbo-Etiti, Igbo-Eze, Njikoka, Nkanu, Ishielu and Aguata Local Government Areas and Jack up the same.

(v) The names, addresses and occupation of the agents, servants and privies alleged in all the affected local government areas guilty of falsification of scores.

(vii) The nature of the unlawful votes, whether by minors voting, plural voting, personation and voting by unregistered persons.

Dated at Enugu this 27th day of August, 1983.”

AFFIDAVIT

1. “I, Philip Umeadi S.A.N., Nigerian Citizen of 4 Old Hospital Road, Onitsha, do solemnly make oath and declare as follows:—

2. That I am the counsel for the fifth respondent in the application.

3. That the petitioner/respondent alleged that the election results were falsified in several local government areas without naming any culprits.

4. That to enable the fifth respondent to prepare himself for his defence a detailed particulars of the allegation is necessary.

5. That it will be in the interest of justice and also to expedite the hearing and determination of the real issues in this petition without any party laying ambush for the other.

6. That I make this affidavit believing the same to be true to the best of my knowledge and belief.”

The appellant in giving the Further and Better Particulars said as follows—

“FURTHER PARTICULARS AS PER ORDER OF COURT ON THE
APPLICATION OF THE SECOND TO FOURTH RESPONDENTS

1. In reply to paragraph (a) the petitioner does not rely on collusion with the second, third, fourth and fifth respondents to falsify the election results in the local government areas mentioned in the petition. The petitioner relies only on the fact that the return submitted by each of the deputy returning officers in respect of the voting results in the polling stations located in each of the local government areas mentioned in the petition is false and does not represent the true and correct number of votes cast in favour of the petitioner or the first respondent.

2. The only local government areas where the returns are challenged are those mentioned in the petition.”

During the argument of the motions, the record is as follows—

Chief Onyiuke says he has a motion for further and better particulars–Chief Williams says that the petitioner does not rely on collusion and will not lead any evidence on collusion–says word collusion does not even appear in the petition–as to particulars of other local government areas–says relies on only the local government areas mentioned in the petition. Chief Onyiuke says results falsified by agents, servants or privies-paragraph 5 (iii) of the petition—

Chief Williams says only servants whose conducts are challenged are the deputy returning officers–Chief Onyiuke accepts the explanation from Chief Williams but asks for the names of the deputy returning officers to be filed.

Court orders Chief Williams to file the particulars of the names of the deputy returning officers today—”

Then, in this Court, during the oral arguments in his case Chief Onyiuke confirmed that he understood the allegation of falsification made by the petitioner to be limited against the deputy returning officer ONLY. This having happened the case has been narrowed down to an allegation of falsification against the deputy returning officer. No one has in fact contested this point. But then the deputy returning officer was never a party to this case. No one has suggested, either, that he was a party to this case. As s. 137 (1) of the Evidence Act is only applicable to a case where the allegation is against a party to the case, it is my view therefore that whichever way one looks at it, this is not a case to which s. 137 (1) of the Evidence Act is applicable and the petitioner only had responsibility to prove his case on the balance of probabilities like an ordinary civil case.

DISCHARGE OF BURDEN OF PROOF

Whether proof should be beyond reasonable doubt or on the balance of probabilities, what proof did Nwobodo offer? It is necessary to go over the evidence in more detail than I have hitherto. Figures in three local government areas, I have already indicated, were challenged. They are Ezeagu, Igbo-Etiti and Isi Uzo. To understand the case of the petitioner as presented by evidence, one should understand the procedure as presented by the Electoral Act 1982, from the voting, to the declaration of result. Chief Williams made an admirable summary in his brief. For the gubernatorial election, there were four categories of electoral officers.

1. The presiding officers: These preside at the polling booths or stations which are scattered all over the areas of the State Assembly constituencies. At the end of polling fixed by FEDECO for 7 p.m., these presiding officers count the votes in the various boxes (and according to FEDECO direction though not provided for by the Electoral Act) at the polling stations in the presence of party political agents, submit their returns to the next electoral officer—

2. The Assistant Returning Officer: He is in charge of a State Assembly constituency. He adds up all the returns in respect of the constituency and submits them to—

3. The Deputy Returning Officer: He collates all the returns in the State Assembly constituencies within a local government area. The deputy returning all the scores in the local government areas to the—

4. Returning Officer who adds up all the votes in the State and delivers a return to FEDECO in Form EC8.

Now what is the evidence offered by Nwobodo in the three local government areas complained of. I will take them one by one.

Ezeagu Local Government Area: In this local government area, there are three constituencies. Three witnesses gave evidence for Nwobodo. They are the assistant returning officer for the constituency, Dr. Obodo, an NPP agent Emehelu and an NSO officer. They all gave evidence in support of Nwobodo’s case that he in fact scored 17,031 as against Onoh’s 21,252 and not 19,058 as against 60,980 recorded by FEDECO.

Ezeagu Central Constituency: Here the assistant returning officer for the constituency and the NPP agent gave evidence for Nwobodo, while for Ezeagu South Constituency: the assistant returning officer for the constituency and the NPP agent.

These witnesses were all believed by the trial court. They were either officials of the FEDECO, the police (NSO) or the political parties.

It is very significant that during cross-examination of the assistant returning officers who indeed were FEDECO officials, no suggestion was made to them nor any document put to them to contradict the evidence oral and documentary they gave.

However the respondents tendered some documents after the close of the petitioner’s case for the sole purpose of discrediting the evidence of these FEDECO officers. Chief Williams drew our attention to the dictum of Lord Herschell in Brown v. Dunn, (House of Lords), 1894 6 R 67 when the learned law lord said—

“If you intend to impeach a witness you are bound, while he is in the box, to give him an opportunity of making any explanation which is open to him ... It will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.”

Learned counsel Chief Williams, concentrated on the Ezeagu Local Government Area in this Court having regard to the fact that the net gain credited to the respondent in this local government area was 31,701 whereas the overall majority recorded by FEDECO to the respondent in the election was 14,169.

As learned Counsel rightly said, proof of petitioner’s case in this local government area alone is sufficient to give him success in the case. His evidence was accepted by the trial court after careful assessment of this evidence and that of the respondent and the trial court said that even if proof beyond reasonable doubt is required, the case of Nwobodo was proved. I find it difficult to follow the reasoning of the Court of Appeal that the proof in this case has not met the required standard. FEDECO officials were called, the NSO was called. What further evidence would have been called even in a criminal court?

And similarly there was proof by the petitioner of a net award of 4,446 votes in Igbo-Etiti and 21,753 in Isi Uzo.

Looked at from any angle, I think Nwobodo succeeded in proving his case especially as I consider the documents tendered by his counsel as primary evidence.

It is for all these reasons therefore that I allowed his appeal on October 8, 1983.

Nnamani J.S.C. On 8th October, 1983, I delivered judgment in this appeal allowing the appeal with costs of N300 in favour of the appellant. I indicated then that I would give my reasons for that judgment. I now give my reasons.

As I stated in the earlier judgment, the appellant and the first respondent were among six candidates who on 13th August, 1983, contested the gubernatorial elections in Anambra State. On 14th August, 1983, the Federal Electoral Commission, FEDECO, declared the first respondent, Chief C.C. Onoh, elected. Dissatisfied with this result, Chief Nwobodo filed an election petition in the Anambra State High Court his main complaint being as per section 122(1)(c) of the Electoral Act 1982—

“that the first respondent was, at the time of the election, not duly elected by a majority of lawful votes at the election.”

The Anambra State election court (Araka C.J., Aneke and Orah J.J. with Onwuamaegbu and Awogu J.J. dissenting) gave judgment in the petitioner’s favour but this was reversed by the Federal Court of Appeal Enugu. The petitioner then appealed to this Court. He filed 11 grounds of appeal which were ably and extensively argued on his behalf by learned Senior Advocate of Nigeria, Chief Rotimi Williams. An equally able and extensive reply to this argument was made by Mr. A. O. Mogboh, learned Counsel to the first respondent and Chief G.C.M. Onyiuke, S.A.N., and Chief P.E.G. Umeadi, S.A.N., for the second and third respondents respectively. I shall deal with the submissions where necessary in the course of this judgment. Also, in the course of these arguments several issues of legal and constitutional importance were raised. I had on 8th October, 1983, indicated my conclusions in respect of these matters, reserving my reasons for such conclusions to today.

For ease of reference I shall give these reasons under the same headings as my earlier conclusions.

1. JURISDICTION

Under this the contentions of the respondents could be grouped under two heads:–(a) that the order for security for costs and substituted service made by the Chief Judge of Anambra State (not the election court) was invalid; (b) that as in this case the order for security for costs was made on 17th August, 1983, the petition filed that same day, but costs not paid until the 18th day of August, 1983, there was a breach of section 127 (1) of the Electoral Act, 1982, and so there was no petition before the Court. It is pertinent to mention that from the records an order for both security for costs and substituted service was duly made by Araka C.J. on 17th August, 1983. The security so ordered was given on the 18th August, 1983, but the petition had been filed on the 17th August, 1983. As regards (a), the main contention of the respondents was that power to make these orders rested with the election court and not Araka C.J. Sections 119 (1) and (3) of the Electoral Act, No.8 of 1982 provide as follows:

“119.

(1) No election and no return to the Senate, the House of Representatives or any State Assembly or to any elective office shall be questioned in any other manner except by a petition complaining about the election or the return and presented to the competent High Court in accordance with the provisions of this Act.”

“119.

(3) For the purpose of exercising any jurisdiction conferred by this Act upon the Federal High Court or the High Court of a State in any case involving the Office of President, Vice President, Governor or Deputy Governor, the Chief Judge of the Federal High Court or the High Court of a State as the case may be shall determine the number of Judges that shall constitute the Court.”

Section 127 (1) of the Electoral Act also provides as follows—

“at the time of filing the petition or within such extended time as may be allowed by the Court the petitioner shall give security for an amount fixed by the Court and as directed by The Court; the petitioner shall deposit the amount in any Treasury or give security by recognisance for the amount.” (Italics mine).

Pursuant to the provisions of section 119 (3) of the Electoral Act set down above, the Chief Judge of Anambra State on 22nd August, 1983, made an order constituting himself and Hon. Justices Awogu, Onwuamaegbu, Aneke and Orah the election court to hear and determine the petition. It was this Court that it was contended ought to have made the orders for security for costs and for substituted service. As I said in my earlier judgment the answer to this is quite short. The contention has not taken into full cognisance the implications of the provisions of section 119 (3) of the Electoral Act 1982 set down above nor did it fully appreciate the combined meaning of sections 237 and 238 of the Constitution of the Federal Republic of Nigeria 1979 (hereinafter referred to as the Constitution). The two provisions are in these terms:

“237.

(1) Without prejudice to the generality of the provisions of section 236 of this Constitution, the Competent High Court shall to the exclusion of any other court, have original jurisdiction to hear and determine any question whether any person has been validly elected to any office or to the membership of any legislative house, or whether the term of office of any person has ceased or the seat of a person in a legislative house has become vacant.

(2) In this section competent High Court means—

(b) In any case involving any other office, the High Court of the State in respect of which such office is established under the Constitution.”

and section 238:

“For the purpose of exercising any jurisdiction conferred upon it under this Constitution or any law, a High Court of a State shall be duly constituted if it consists of at least one Judge of that court.”

It is in fact section 237 of the Constitution which gave power pursuant to which section 119 (3) of the Electoral Act was enacted. The jurisdiction to determine election petitions relating to the office of Governor is vested in the High Court of the State and by the express provisions of section 238 of the Constitution at least one Judge of the High Court is sufficient to constitute the court.

Further, one has to look closely at the provisions of section 119 (3) of the Electoral Act 1982. That subsection says that for the purpose of exercising any jurisdiction conferred by this Act on the High Court of a State the State Chief Judge shall determine the number of judges, i.e., the election court. The subsection significantly does not read “for the purpose of exercising the jurisdiction” for if that were so the totality of the jurisdiction would have been only exercisable by the election court. Since, however, it was any jurisdiction it seems to me that it was quite within the competence of the learned Chief Judge to exercise some of that jurisdiction in making the orders for security for costs and for substituted service. One of such jurisdictions conferred on the High Court is the jurisdiction under section 127 (11) of the Electoral Act 1982 of fixing the amount of security. It is this jurisdiction that the learned Chief Judge decided, rightly in my view, that he could handle. The other jurisdiction conferred on the High Court–that of the hearing and determination of the petition–was left for the election court. It is pertinent to note that the order constituting the election court to which reference was made above specifically stated in paragraph (a) thereof “that the number of Judges to hear and determine the petition for the election for the office of Governor, Anambra State held on the 13th day of August, 1983, at the Anambra State constituency shall be five.”

As regards (b), it is true that the order for security for costs was made on the 17th August 1983, the petition filed that day while the costs were not deposited until 18th August, 1983. This it was argued was so contrary to the provisions of section 127 (1) of the Electoral Act 1982 that it vitiated the petition. Section 127 (1) of the Electoral Act has already been set down above.

Technically the security for costs must be given contemporaneously with the filing of the petition and it can be argued that if such security was given after the petition was filed, it would not be in accordance with the provisions of the relevant law. But this would, with due respect, be a case of importing undue technicalities to defeat the ends of justice. I still hold the views which I expressed in Attorney General of Bendel State v. Attorney General of the Federation and 22 Ors. (1981) 10 SC1 at 225 and Nafiu Surakatu v. Nigeria Housing Development Society Ltd. and Anor. (1981) 4 SC 26 that the courts ought to be concerned with doing substantial justice and not allow themselves to be bogged down by technicalities. To my mind there could be no greater injustice than to vitiate an election petition and refuse to hear it on its merits because the security for costs was given a few hours after the petition was filed. Besides no where else in my view is the need to do substantial justice greater than in an election petition case for the court is not only concerned with the rights of the parties inter se but the wider interests and rights of the constituents who have exercised their franchise at the polls. I agree with Chief Onyiuke, S.A.N., who relying on the case of Ohene Moore v. Akessah Taye 2 WACA 43 argued that if the question is that there is in fact no petition before the court no issue of substantial justice can be raised. But that is clearly not the case here. A petition had been filed within time, the only issue in controversy was whether the payment of costs (following the order on security for costs) the next day vitiated the petition. The situation would certainly have been different if the petition had been filed out of time or if having been filed there was no compliance with the order for security.

Before referring to the sections of the Electoral Act 1982 which seem to me designed to deal with such eventualities as happened here, I shall mention just briefly two of the cases on which so much reliance was placed in contending that the petition was vitiated. These are Obale v. Nwaowo and 2 Ors. (1972) 2 ECSLR, 484; Emenne v. Nkereuwen 9 ENLR 120 and (1966) 1 All NLR 63. As I said in my earlier judgment on 8th October 1983 the facts in these cases can be easily distinguished for the facts in the present case and they are therefore inapplicable. The Obale case was concerned with Sections 101 and 103 (1) of the Divisional Administration Edict 1971, (Edict No. 18 of 1971). The petition had been filed while the order for security for costs and execution of the bond were done well after the filing. Under those two provisions the security for payment of all costs was to be made before the presentation of the petition. Under section 101 of that Edict an election petition may be presented within 30 days from the date of the publication of the result whereas under section 103 (1) of the Edict the petitioner shall give security for payment of all costs at the time of presenting the election petition. More specifically while the petition was filed on 23rd February, 1972, the order for entering into bond for payment of costs was made on 6th March, 1972, and was not executed until 9th March, 1972. Although therefore the court held as per Araka J. (as he then was) that it could not hear the petition it was rather on the ground that the order for cost was made more than 30 days after the date of the result of the election–a power which the court which made the said order did not possess.

Emenne v. Nkereuwen Supra was concerned with sections 90 and 98 of the Electoral Act 1962. Under section 90 the intending petitioner must before presenting his petition apply to the court with a copy of his intending petition for an order as to the security to be given by him. In this case on the last day available for filing the petition and without paying those fees or making the deposit (i.e. for security), the petitioner filed his motion about security and the registrar gave him a receipt for the petition. The petitioner paid the filing fee three weeks after the said last day. Section 98 is in these terms:

Before presenting a petition the intending petitioner shall apply to the Court by motion exparte accompanied by a copy of the intended petition for an order as to the amount of the security to be given by him and as to the manner in which it is to be given. If the petitioner is for any sufficient reason unable to give the security at the time of presenting the petition he shall set out the reason in an affidavit to be filed with the motion and the application shall include a request as to the time at or within which the security is to be given.” (Italics mine).

The Supreme Court held that the petition was properly struck out by the High Court. It also held that section 150 of the Electoral Act 1962 which is on all fours with section 147 (5) of the Electoral Act 1982 was not applicable. Again this case can be easily distinguished. The express words of the section of the Electoral Act 1962 set down above speak of before presenting the petition. That is not the provision in section 127 (1) of the Electoral Act 1982. It is also pertinent to mention that section 150 of the Electoral Act 1962 could not save the noncompliance for part of what was involved, as distinct from what was involved in the instant case as I shall show hereunder, included the time for filing the petition. The petitioner in the Nkereuwem case filed and presented his petition more than 21 days after the election and this was an incurable defect. The third case relied on by the respondents–Williams v. Mayor of Tenby and others (1869) LRSCPD 135–is equally inapplicable for in that case the Municipal Elections Act 1872 required the security for costs to be given within three days after presenting the election petition.

On this head of the case as I had hinted above, it seems to me that the legislature in enacting the Electoral Act 1982 must have strained to ensure that undue technicalities did not hamper the hearing of election petitions on their merit. It was clearly for this purpose that section 147 (5) was inserted therein. The section is in these terms.

“No failure to comply with this part of this Act as to the time for the giving of notice or the doing of any act, matter, or thing other than as to the time for filing a petition or lodging an appeal shall avoid any proceedings and in any proper case the proceedings may with the consent of the Court be amended or otherwise dealt with so to give proper effect thereto; but if any proceedings are avoided they shall if commenced be set aside in whole or in part as the case may require.”

This is in my view a complete answer to the wrangle over non-payment of the security on 17th August, 1983, particularly with regard to that part of this section which says or the doing of any act. I would wish to reiterate my earlier view that the objections by the respondents were fundamental and went to the issue of jurisdiction and were not such as could be waived or defeated by taking some steps such as accepting service, entering appearance, replying to the petition, etc. (See Attorney General of Bendel State v. Attorney General of the Federation & 22 Ors (1981) 10 SC1 at 226.

Also see Tozier v. Hawkins (1855) 15 QBD 650 and Boyle v. Sucker (1888) 39 CHDD 249 CA. Nor do I think that the contention that the respondents ought to have raised their objection at the earliest possible time and by way of motion pursuant to section 147 (6) of the Electoral Act 1982 is tenable having regard to the nature of the objections and having regard particularly to the fact that the respondents as clearly shown from the record of proceedings did just that. The motion was duly argued and the trial court delivered its ruling in the course of its main judgment in the suit.

2. NATURE OF ALLEGATION IN THE PETITION

On this I made some conclusions on the 8th October, 1983, on which I still stand. The material part is as follows:... “This concerns the question of imputation of crime. I would wish to predicate my conclusion on this point by saying that each case has to be strictly limited to its particular facts especially the pleadings. In the case in hand the petitioner in paragraph 5 (iii) of his petition pleaded as follows—

“The results of the said elections were falsified by the second, third, fourth and fifth respondents or their agents, servants or privies in most of the local government areas within the State constituency for the election.”

There was also reference in paragraph 5 (iii) (a) to (c) of the petition to votes scored by first respondent being jacked up. Although in the further and better particulars which he filed Chief Williams specifically denied any allegation of collusion and narrowed his complaints to the deputy returning officers, I find it difficult to accept his contention that the manner in which what was alleged to have happened between the deputy returning officers and the returning officer was averred could be innocent misrepresentation or arithmetical error and not fraudulent misrepresentation. But allegation of crime if it is vague and imprecise cannot be the basis of a charge. It has to be a specific crime or at least embody the ingredients of a crime known to the law. The averments here in my view can for the moment come within section 105 (e) of the Electoral Act, 1982.

The subsidiary issue to the nature of the allegation is standard of proof. If there is allegation of crime, as I hold is contained in the petition, the burden of proof must be beyond reasonable doubt. See section 137 (1) of the Evidence Act. For this purpose the deputy returning officer is a party to these proceedings. (See paragraph 5 (iii) of the petition as well as sections 121 (2) (d) and 64 (4) (d) of the Electoral Act, 1982). I would wish to add for purposes of emphasis that I was indeed unable to give the word falsified the broad interpretation which learned Senior Advocate representing the appellant had urged on us when that word is taken together with the words jacked up which occurred in the petition. I found it and still find it difficult to interpret it as innocent misrepresentation. On page 68 the petitioner filed further and better particulars in these terms:

“In reply to paragraph (a) the petitioner does not rely on collusion with the second, third, fourth and fifth respondents to falsify the election results in the local government areas mentioned in the petition. The petitioner relies only on the fact that the return submitted by each of the deputy returning officers in respect of the voting results in the polling stations located n each of the local government areas mentioned in the petition is false and does not represent the true and correct number of votes cast in favour of the petitioner or the first respondent.”

This certainly did remove some of the sting of allegation of crime in the petition but not all. Further and better particulars do not amend pleadings or take the place of pleadings. They rather explain the pleadings so as to ensure that the other side is not taken by surprise. As Scott L.J. said in Pinson v. Lloyds and National Provincial Foreign Bank Limited (1941) 2 KB 72 at 75

“It is a well recognised canon of pleading that the defendant need not and indeed ought not to, plead to ‘particulars,’ whether contained in or delivered with the statement of claim. The reason for that canon is plain. All the material facts constituting the case of action ought already to have been plainly stated in the pleading itself, as required by Order xix, r.4. The plainest and most fundamental of all the rules of pleading. The proper function of particulars is not to state the material facts omitted from the statement of claim in order, by filling the gaps, to make good an inherently bad pleading, however common that pernicious practice may have become… I still hold the opinion that it is not the function of particulars to take the place of necessary averments in the pleading, their function is to put the opposite party on his guard and prevent him being taken by surprise at the trial of an action the material facts of which should have been averred.”

The pleadings therefore remained unamended. Although at the trial the petitioner did not lead any direct evidence of fraud severance was made extremely difficult as the allegations of falsification and jacking up ran through all the 11 subparagraphs of paragraph 5 (3) of the petition.

3. ADMISSIBILITY OF EXHIBITS

On this heading I would readily adopt my conclusions in my earlier judgment. There I said as follows:—

“I hold that the majority Justices of the Federal Court of Appeal erred in law in holding that exhibits C to H2 were inadmissible in evidence. They are admissible as primary evidence. I may mention that I also disagree with the view of some Justices of the Court of Appeal that the exhibits were public documents and the petitioner could only tender copies certified by FEDECO. To so hold would in my view make it unlikely that anyone in this country could ever successfully prosecute an election petition. Could FEDECO have certified the petitioner’s documents knowing he was to challenge their figures with those documents?”

I would only wish to add that having regard to section 70 of the Electoral Act 1982 I cannot see how those exhibits could have been held inadmissible. Section 70 provides as follows:—

“After counting the votes and ascertaining the result of the polls the returning officer shall—

(a) Complete and sign the certificate of return in Form E.C.8 in the schedule to this Act;

(b) deliver a signed copy of the certificate to each candidate or his counting agent;

(c) declare the result of the poll by reading the completed certificate of return aloud in the place of counting;

(d) cause to be delivered to the commission the original of the certificate of return.”

It seems to have been agreed on all sides that for administrative convenience the Federal Electoral Commission adapted some of the forms. Form EC8A which was used by deputy returning officers and assistant returning officers was clearly not included among the forms in the schedule to the Electoral Act 1982. If one looks closely at section 70 of that Act the only Certificate of Return was in fact the one signed in the instant case by Mr. Mbonu the State returning officer i.e. exhibit RR1. I think it was right to regard the documents produced by the deputy and assistant returning officers as working papers. From the evidence on record the modus adopted by the assistant returning officers at the collation centres was, at the end of collation, to enter the scores of the candidates in the form and sign same. The “original” of this form is what was handed over to the deputy returning officer. “Copies” of this duly filled form signed by the assistant returning officer were given to the candidate or his polling or counting agents, NSO, police, etc. I have deliberately used “original” and “copies” in quotes as I am not so sure that in the circumstances of this case there was really an original and copy in the conventional sense. It seems that in most cases the assistant returning officers entered the figures in each form, signed and stamped same, and gave a copy to each of the parties mentioned above. It is for this reason that I am of the view that the use of the word duplicate-originals in describing these documents by Chief Williams seems to me apt. If they were mere copies I do agree that they would be admissible as secondary evidence under section 96 of the Evidence Act the original being the only one which the deputy returning officer has handed over to the Federal Electoral Commission. But I do agree with Chief Williams that though every original is primary evidence there are circumstances in which duplicates or copies of an original document are admissible as primary evidence. I think that in this case the documents Exhibits C to H2 were either duplicate originals or in those cases in which copies were made by assistant returning officers and given to agents, etc., such copies can be regarded as originals as against the assistant returning officers and therefore FEDECO. (See sections 93 (2) and (3) of the Evidence Act.) It was for these reasons that I held that the documents tendered by the petitioner exhibits C to H2 are not only admissible in evidence (being a record of what the assistant returning officers did which is relevant to the facts in issue) but admissible as primary evidence. I think that Olatawura J.C.A. dealt with the issue of admissibility of the exhibits in a most practical and realistic manner and I agree with that portion of his judgment in which he said—

“Objection to the admissibility was based on the ground that these returns were signed copies and not originals as provided for under section 70 (d) of the Act and coupled with the fact that no order was sought to produce those filed with the Commission as stipulated under section 72 (3) of the same Electoral Act. Before going into the admissibility of the exhibits one may ask if a witness present at the polling station where the results are declared in accordance with s. 70 (c) of the Electoral Act is incompetent to give evidence of the results declared. I don’t think so, such evidence will be admissible. What then is the use to be made of the signed copy provided for under s. 70 (b)? Is it to be kept as a souvenir? It is to be used as proof of the votes scored as shown in that copy. Once that copy is signed by the appropriate officer, it authenticates the figures stated therein.”

4. DISCHARGE OF BURDEN OF PROOF

In my conclusions on this heading I tried to deal with evidence adduced by the petitioner and the respondents and to state my reasons for holding that the petitioner had discharged the burden placed on him by law. I intend to adopt those conclusions here. There I said—

“Did the petitioner discharge the burden of proof on him? First whether the burden is beyond reasonable doubt or on a balance of probability is the nature of the proceedings of an election petition is equated to a civil proceeding. See section 129 (1) of the Electoral Act. The entire evidence must therefore be considered by the court before determining this. The petitioner led evidence of three assistant returning officers as well as other witnesses. The assistant returning officers it must be remembered are officials of FEDECO. The respondents were at all material times in possession of the returns allegedly sent to them by those assistant returning officers through the deputy returning officers. I hold that when they gave evidence (i.e. the AROs and tendered exhibits C to H2 the respondents ought to have cross-examined them (the AROs) so as to discredit them with exhibits RB2 to RQ4 which were allegedly also submitted to FEDECO by them (the AROs). See section 198 of the Evidence Act. This was never done. Copies of the results in Ezeagu, Isi Uzo and Igbo Etiti, pursuant to section 70 (b) of the Electoral Act were given to the NSO, the police and petitioner’s party agents. They gave evidence confirming the petitioner’s figures. They not only signed exhibits C to H2 but testified as to the announcement of the results in those collation centres and confirmed the petitioner’s figures as announced. A signal was sent to FEDECO headquarters, Enugu, as to the petitioner’s and first respondent’s correct votes in Isi Uzo. Even the person who received the message at Enugu was identified. None of this was contradicted. As against all this, the respondents called one deputy returning officer Ude who was rejected as totally untrustworthy by the High Court. The exhibit RB1 which he claimed represented the total votes scored by the candidates in Ezeagu LGA was stigmatised as worthless. Neither the Court of Appeal nor this Court has or can alter that finding. Following this exhibit RB2, RB3, RB4 must also be of no value. These are part of the documents on which the State Certificate of Return exhibit RR1 was prepared.”

It is necessary to add that it was the figures in exhibits RB2, RB3, RB4 that were added up to give the figures in exhibit RB1.

I would also wish to add that it is only on this issue of discharge of burden of proof that the learned Justices of the Federal Court of Appeal reached a unanimous decision. From the judgments of the learned Justices, it would seem that the area which the petitioner ought to have touched was the figures in Schedule A–the FEDECO Schedule. More particularly, the view seems to be that the petitioner should not have rested with tendering exhibits C to H2 but should have gone on to show that the R series of exhibits (e.g. Exhibits RB1, RB2, RB3 and RB4 in respect of Ezeagu) which were tendered by the respondents and which were allegedly prepared and submitted by the same assistant returning officers who gave evidence for the petitioner were false. It is further contended that these documents should have been put to the assistant returning officers by the petitioner while they were giving evidence for him. It is necessary to start by stating that although the petitioner had in paragraph 6 of his petition given notice to the respondents to produce “the originals of all such relevant records in their possession, supporting the results in the attached Schedule B, the R series of exhibits which were in the custody of the Federal Electoral Commission were not produced in court until the petitioner had closed his case. They were produced in court pursuant to an order of court made under section 72 (3) of the Electoral Act 1982 and were put in evidence by the respondents. There is no doubt that the duty to prove his case rested on the petitioner but it is the law that though a party in a civil matter cannot depend for the success of his case on the weakness of the defendant’s case, he is entitled to rely on those week points in the defence. (See Akinola & Anor v. Oluwo & Ors (1962) 1 All NLR pt 2 224, 227).

It must not be forgotten that it is an acceptable principle of our system of jurisprudence that when a witness is giving evidence the other party may try to contradict him with any material it has which would tend to challenge his credit. If this is not done while he is giving evidence it would not only be unjust but unfair to impeach his credit after he has left the witness box or to challenge the standard of proof tendered by the party which called him because that party did not confront him with the materials which are in controversy. In the instant case, it seems to me incredible that men who in effect are being suspected of issuing different documents to two different parties should having given evidence in the witness box which is against the interest of their employers, tendered copies of documents which they claim they sent to their employers (in this case FEDECO) not be confronted immediately with the other documents which were at all material times in the custody of their employers. Section 198 of the Evidence Act provides as follows:—

“A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must before the writing can be proved be called to those parts of it which are to be used for the purpose of contradicting him.”

Lord Herschell, Lrd Chancellor, in Browne v. Dunn H.L. (1894) 6 R. 67 said

“My Lords I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses… All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.”

In Naba Kumar v. R. Narayan 1923 AIR 7 the Privy Council (Viscount Heldane, Lord Dunedun and Sir John Edge) decided that “a witness cannot be disbelieved without his attention being drawn to the documents inconsistent with his deposition even though the documents were produced after his examination. In such a case he should be recalled for further cross-examination.”

There is no doubt therefore in my view that it was the respondents who should have recalled those assistant returning officers who gave evidence for the petitioner to confront them with the R series exhibits allegedly prepared by them and sent to FEDECO. That failure cannot now be used in discrediting those witnesses. Nor can it be fairly held that the petitioner’s case has not been proved beyond reasonable doubt. Finally, I need only add on this issue of discharge of burden of proof that I found no fault with the evaluation of the evidence before it by the majority judges of the election court. Indeed it did not appear to me that the learned Justices of the Court of Appeal found fault either. It seems to me that the difference between the two courts lay in law–the question of the standard of proof, admissibility of documents, and jurisdiction (i.e. order for security for costs and substituted service). I feel fairly certain that in determining whether the petitioner had established the standard of proof, many of the learned Justices may have been influenced by their decision that exhibits C-H2 tendered by the petitioner were not admissible in evidence. As the petitioner did not give evidence, it may have meant in their thinking that there was no evidence by the petitioner on the basis of which Schedule A could be challenged.

I am of the view that the petitioner proved his case beyond all reasonable doubt. I would wish to reiterate that the burden placed on him by the law even under section 137(1) of the Evidence Act is proof beyond reasonable doubt and not beyond the shadow of doubt.

In Miller v. Minister of Pensions (1947) 2 A11 E.R. 372, 374 Denning J. (as he then was) put it in this way in a case under article 4 (2) and article 4(3) of the Royal Warrant in England in which proof was also beyond reasonable doubt.

“That degree is settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to defeat the course of justice. If the evidence is so strong against a man as to have only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible but not in the least probable’ the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

It was for all these reasons that I allowed the appellant’s appeal and awarded costs of N300 in his favour.

Uwais J.S.C. I dismissed this appeal on the 8th October, 1983 and my reasons for doing so were reserved. I now give the reasons.

The election to the office of the Governor of Anambra State took place on the 13th day of August, 1983. The appellant and the first respondent were among the candidates that contested the election. The first respondent was returned as duly elected. The appellant who was then the incumbent Governor of the State brought a petition in the Anambra State, High Court, Enugu against five respondents, three of whom are now the respondents in this appeal.

As a preliminary step to the filing of the petition the appellant brought an ex parte application for an amount to be fixed as security in accordance with the provisions of section 127 sub-section (1) of the Electoral Act, 1982. The application was heard on 17th August, 1983, by Araka C.J. alone who made the order that the appellant should deposit the sum of N5,000.00 in the Treasury of Anambra State. The amount was deposited and a receipt to that effect was issued. Thereafter the petition which had earlier been in the custody of the Registrar of the High Court was deemed filed on 18th August, 1983. Another interlocutory application by the appellant was heard ex-parte by Araka C.J. on 18th August, 1983; and it was granted in accordance with the provisions of section 134 subsection (3) of the Electoral Act, 1982. The application was for a substituted service on the petition on the respondents.

On 22nd August 1983 a panel of 5 judges of the High Court of Anambra State was constituted by Araka C.J. in exercise of his powers under section 119 subsection (3) of the Electoral Act, 1982. The learned Chief Judge was the Presiding Judge while the other four members of the panel consisted of Awogu, Onwuamaegbu, Aneke and Orah JJ.

Replies to the petition were filed by the respondents and the petition was heard. By a majority judgment, (Araka C.J., Aneke and Orah JJ with Awogu and Onwuamaegbu JJ dissenting) the High Court granted the petition and declared the petitioner as duly elected.

Dissatisfied with this decision the respondents appealed to the Federal Court of Appeal. The decision of the High Court was reversed by the Federal Court of Appeal which held, per the lead judgment of Belgore JCA:—

(a) That the learned Chief Judge had no jurisdiction to entertain the exparte applications made before him alone for the amount of security to be fixed and for substituted service, since section 119 sub-section (3) of the Electoral Act, 1982 provided that only a panel of five judges had the power to exercise jurisdiction in the election petition, and no such panel was constituted until 22nd August, 1983.

(b) That the appellant failed to give security at the time of filing the petition on 17th August, 1983 because the payment of the security was not made until 18th August, 1983.

(c) That the appellant by making the averment that the results of the election were falsified by the second and third respondents made an allegation of crime against them and the onus was on him to prove the crime beyond reasonable doubt in accordance with the provisions of section 137 subsection (1) of the Evidence Act. And that the appellant failed to do so; and

(d) That the documents tendered in evidence by the appellant’s witnesses were secondary evidence by virtue of the provisions of section 70 sub-section (b) of the Electoral Act, 1982.

Now, section 119 sub-section (3) of the Electoral Act, 1982 provides:

“(3) For the purpose of exercising any jurisdiction conferred by this Act upon the Federal High Court or the High Court of a State, in any case involving the office of the President, Vice-President, Governor or Deputy Governor, the Chief Judge of the Federal High Court or the High Court of a State as the case may be, shall determine the number of judges that shall constitute the Court.”

It is clear from this sub-section that it was intended by the National Assembly that any election petition brought in a governorship election must be heard by a panel of five judges as constituted by the Chief Judge. However the sub-section runs contrary to the provisions of section 238 read with section 237 sub-section (1) of the Constitution of the Federal Republic of Nigeria, 1979 (hereinafter referred to as “the Constitution”) which read:

“237.

(1) Without prejudice to the generality of the provisions of section 236 of this Constitution, the competent High Court shall, to the exclusion of any other court, have original jurisdiction to hear and determine any question whether any person has been validly elected to any office or to the membership of any legislative house, or whether the term of office of any person has ceased or the seat of a person in a legislative house has become vacant.”

“238.

For the purpose of exercising any jurisdiction conferred upon it under this Constitution or any law, a High Court of a State shall be duly constituted if it consists of at least one Judge of that Court.”

There can be no doubt from the foregoing provisions of the Constitution that a single judge of the High Court, and therefore the learned Chief Judge of Anambra State, had jurisdiction to hear not only the ex-parte applications made by the appellant but also the petition. By providing that only a panel of five judges had the jurisdiction to hear a petition pertaining to a governorship election, section 119 sub-section (1) of the Electoral Act, 1982 was superfluous since the Constitution had already vested the jurisdiction in a single judge.

It is true that at the time of leaving the appellant’s petition with the Registrar of the High Court on 17th August, 1983, the appellant had not paid security in accordance with the provisions of section 127 sub-section (1) of the Electoral Act, which state—

“127.

(1) At the time of filing the petition or within such extended time as may be allowed by the Court the petitioner shall give security for an amount fixed by the Court and as directed by the Court; the petitioner shall deposit the amount in any Treasury or give security by recognisance for the amount.”

Election petitions are by their nature peculiar from other proceedings and are very important from the point of view of public policy. It is the duty of the courts therefore to endeavour to hear them without allowing technicalities to unduly fetter their jurisdiction. The failure of the appellant to pay security at the time of filing the petition should have been disregarded by the Federal Court of Appeal in exercise of its discretion under section 147 sub-section 5 of the Electoral Act, 1982 which provides:

“No failure to comply with this Part of this Act as to the time for the giving of notice or the doing of any act, matter, or thing other than as to the time for filing a petition or lodging any appeal shall avoid any proceedings …”

The essence of section 127 sub-section (1) was the payment of security before the hearing of the petition commenced, but this condition is not rigid either, as it is permissible by the provisions of the same sub-section of the Electoral Act to extend the time. In my opinion therefore the failure to pay the security at the time of filing the petition was not fatal and it should have been waived.

By section 70 of the Electoral Act—

“After counting of the votes and ascertaining the result of the polls the returning officer shall—

(a) complete and sign the certificate of return in Form EC8 in the Schedule to this Act;

(b) deliver a signed copy of the certificate to each candidate or his counting agents,

(c) declare the result of the poll by reading the completed certificate of return aloud in the place of counting;

(d) cause to be delivered to the commission the original of the certificate of return.” (Italics mine).

It seems that the Federal Court of Appeal considered the certificates mentioned under sub-sections (a) and (d) as copies and originals respectively for the purpose of admissibility in evidence. I think, with respect, that that was a misdirection. The Electoral Act did not refer to such certificates as “copy” and “original” for the purpose of their admissibility in evidence but to show the difference between the first copy of a certificate and any subsequent copy made thereafter by the returning officer. The law that deals with the admissibility of the certificates whether “original” or “copy” is the Evidence Act. Undoubtedly the certificates tendered by the appellant and which were admitted in evidence by the High Court were copies of the original certificates made by the returning officers. The majority judgment of the High Court also so found. The question however is: Were those copies primary or secondary evidence? In my opinion they were primary evidence because they were signed as required by section 70 sub-section (b) of the Electoral Act, 1982 before they were delivered to the counting agents of the appellant and the officers of the National Security Organisation. They became primary evidence in view of the signatures of the returning officers, which were appended on them. See section 93 sub-section (2) which reads:

“(2) Where a document has been executed in several parts, each part shall be primary evidence of the document.”

Therefore the copies issued to the appellant’s witnesses which were tendered in the course of the proceedings were admissible and the Federal Court of Appeal was in error to have considered them as secondary evidence and inadmissible in the absence of the appellant satisfying the provisions of section 96 of the Evidence Act.

Section 72 sub-sections (1) and (3) of the Electoral Act provide:

“72.

(1) The returning officer shall deliver all documents relating to the conduct of the election to the Commission who shall be responsible for their safe custody.”

(3) Documents in the custody of the Commission shall not be available for any purpose except as required under an order for inspection made by a court of law on an election petition.”

Surely these provisions do not mean that only the original copies of the certificates in the custody of the Federal Electoral Commission would be admissible in evidence at the hearing of an election petition.

Now the most significant point in this appeal is: What is the standard of proof and was the standard met by the evidence adduced by the appellant?

Paragraph 1 of the appellant’s petition reads as follows:

“1. Your petitioner is a person, who claims to have had a right to be elected and/or returned as the Governor of Anambra State and your petitioner states that he won the majority votes and twenty five per cent of the votes cast in more than two-thirds of the twenty-three local Government Areas (for the purposes of the election) in Anambra State.”

And paragraph 5 thereof reads in part as follows:

“And your petitioner says that the results of the election as certified by the third respondent and announced by the returning officer were falsified in various areas within the State constituency:—

(i) Out of the total falsified results of 1,867,192 votes purported to have been cast at the election, the petitioner was credited with the false score of 887,221 total votes while the first respondent was falsely credited with 901,390 total votes as indicated in the (sic) Schedule “A” attached to this petition.

(ii) By the said falsification of results the first respondent had a total of 14,169 votes more than the score credited to the petitioner who by the correct number of votes scored had a majority of all the votes cast at the entire election as shown in the (sic) Schedule “B” attached to this petition.

(iii) The results of the said election were falsified by the second, third, fourth and fifth respondents or their agents, servants or their agents, servants or privies in most of the local government areas within the State constituency for the election including the following local government areas…” (Italics mine).

The import of these averments appear to me to be that the appellant won the election but that the first respondent was made the winner due to the falsification of the result by inter alia the second and third respondents. The falsification of the result is therefore directly in issue. It remains so notwithstanding the further and better particulars provided by the appellant to the effect that

“… the petitioner does not reply on collusion with the second, third, fourth and fifth respondents to falsify the election results in the local government areas mentioned in the petition. The petitioner relies only on the fact that the return submitted by each of the deputy returning officers in respect of the voting results in the polling stations located in each of the local government areas mentioned in the petition is false and does not represent the true and correct number of votes cast in favour of the petitioner or the first respondent.”

Because the further and better particulars did not affect the averments made in the petition. It was not an amendment to the petition. It had been observed in Pinson v. Lloyds and National Provincial Foreign Bank, Ltd (1941) 2 K.B. 72 at p. 75 that —

“The proper function of particulars is not to state the material facts omitted from the statement of claim in order, by filling the gaps, to make good an inherently bad pleading, however common that pernicious practice may have become…I still hold the opinion that it is not the function of particulars to take the place of necessary averments in the pleading. Their function is to put the opposite party on his guard and prevent him being taken by surprise at the trial of an action, the ‘material facts’ of which should have been already averred.” (Italics mine).

By section 105 sub-section (e) of the Electoral Act, 1982 —

“Any returning officer who causes to be delivered a false certificate of return to the Federal Electoral Commission shall be guilty of corrupt practice and on conviction shall be sentenced to a term of imprisonment not more than two years.”

Furthermore the falsification of results is capable of amounting to the offence of dereliction of official duty which is defined by section 99 of the Electoral Act, 1982 as follows:

“Any officer appointed for the purposes of this Act, who without lawful excuse is guilty of any act of omission in breach of his official duty commits an offence against the Act and shall be liable on conviction to a fine of N1,000 or to imprisonment for twelve months or to both.”

It is clear therefore that the allegation of falsification of result made against the third appellant is an imputation of crime under both sections 99 and 105(e) of the Electoral Act. The same allegation had been made against the second appellant, and in his case the allegation was an imputation of crime under section 99 of the Electoral Act.

Now section 137 sub-section (1) of the Evidence Act states:

“137.

(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.” (Italics mine).

It follows that the allegation that the second and third respondents falsified the result of the election to deprive the appellant of his victory must be proved beyond reasonable doubt and not on the balance of probabilities as in the case of a petition where no allegation of crime is directly in issue.

In discharging the onus of proof the appellant put in evidence copies of Form EC8, which were the declaration of result of poll, showing final figures of the collation exercise carried out by assistant returning officers at collating centres. These copies were issued to polling agents of candidates and the officers of the National Security Organisation. Although the appellant applied to the trial court for the original copies of the forms, which were in the custody of the Federal Electoral Commission, to be produced and they were so produced, he made no use of them. The original copies should have been put in evidence by the appellant to help his case. If this were done the original forms would have added considerable weight to the copies. For example, if by comparison the figures on both the originals and copies became the same that would confirm that Schedule B was accurate and the appellant’s averment that the figures in Schedule A were falsified could have been proved. Similarly, if the figures shown by the originals and the copies were different and the differences were resolved in favour of the copies, Schedule A would have been discredited and it would have been proved that it was compiled by the use of false results. Therefore the omission to put the original copies in evidence left Schedule A unscathed and the appellant’s case inconclusive.

The importance of the originals to the appellant’s case was in fact brought out by the averment in paragraph 6 of his petition which reads:

“6. Your petitioner shall rely on the relevant results recorded by the officials of Federal Electoral Commission supporting the authentic results in attached Schedule ‘B’ to this petition. The respondents are hereby given notice to produce at the hearing of this petition the originals of all such relevant records in their possession supporting the results in the attached Schedule ‘B’.” (Italics mine).

Since the appellant had failed to prove beyond reasonable doubt that the results of the election were falsified by the second and third respondents, as alleged, I was of the opinion that the appeal had failed. It was accordingly for these reasons that I dismissed the appeal with costs.