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IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 13TH DAY OF JANUARY 1984

SC 101/1983

BETWEEN

CHIEF BOLA IGE ........................................................... APPELLANTS

AND

DR. VICTOR OMOLULO OLUNLOYO & 2 ORS ............................................. RESPONDENTS

BEFORE: Sowemino C.J.N. Irikefe, Bello, Obaseki,Aniagolu, Nnamani, Uwais; JJ.S.C.

 

On the 13th day of August 1983 the Federal Electoral Commission conducted the gubernatorial election in Oyo state to the Office of the governor of the state. Following the close of counting of the votes cast of the election, the returning officer appointed by the Federal Electoral Commission for gubernatorial election, Mr. S. S. Ajibade declared Dr. Victor Omololu Olunloyo the first respondent duly elected. He contested the election under the sponsorship of National Party of Nigeria. The petitioner was also a candidate at the election, having been sponsored by the Unity Party of Nigeria. There were other four candidates. The petitioner was not satisfied with the results so declared and decided to challenge the election or return of the first respondents in the Oyo State High Court.

The respondent filed their replies to the petition. The first respondent filed his own reply separately while the second, third and fourth respondents filed a joint reply. At the close of evidence, counsel for the petitioner made an unsuccessful oral application to amend the prayer by adding an alternative prayer to read: “And in the alternative that the election is void.” The election panel refused the application on the ground that such an amendment is not permissible after 14 days from the date of announcement of the result. Section 136 (2) of the Electoral Act bars such amendments.

The petition was heard by a panel of 5 judges. At the close of counsel addresses, the panel retired to deliberate on the judgment to give.

In a split judgment of 3 to 2 the panel dismissed the petition and held that the election of 13th of August 1983 on the evidence accepted by us has been held in substantial compliance with the provision of the electoral Act. The panel held further that it will be necessary to order a fresh election where election where election in respect of which petition was brought was voided but no such relief has been claimed in this petition.

Being aggrieved by the decision of the election panel of the High Court, the petitioner appealed unsuccessfully to the Federal Court of Appeal which in a unanimous judgment dismissed the appeal. It is against that judgment that the petitioner has now appealed to the Supreme Court.

 

HELD:

(1) No Court has the power to grant reliefs or remedies not claimed before it. In this case the restriction is even more apparent in section 136 (3) of the Electoral Act which was specific that election petition Court shall confine its inquiry or findings to the issue raised by the petition and reply. There being no prayer to the effect that the election be declared void, this Court cannot entertain an appeal seeking such a relief.

Appeal dismissed.

Chief O. Chukura S.A.N. (With him R.A. Ogunlade, A.I. Adeyemi, A. Ade Obe, F. Akinrinsola) for the Appellant.

Chief G. Ajeigbe (With him Dr. H. Kusamotu, J. Akinjide (Miss) and R. A. Ogunwale) for the first Respondent.

Chief R. O. A. Akinjide, S.A.N. (With him F. Nwadialo) Asst. D. L. Federal for second and third Respondents.

Statutes referred to:

(1) Constitution of the Federal Republic of Nigeria, 1979.

(2) Electoral Act 1982.

Obaseki J.S.C. On the 19th day of October, 1983, after hearing all counsel appearing in this appeal, I dismissed the appeal and reserved my reasons till today. I now give my reasons for the judgment.

On the 13th day of August, 1983, the Federal Electoral Commission conducted the gubernatorial election in Oyo State to the office of Governor of the State. Following the close of counting of the votes cast at the election, the returning officer appointed by the Federal Electoral Commission for Oyo State gubernatorial election, Mr. S. S. Ajibade, declared Dr. Victor Omololu Olunloyo the first respondent, duly elected. He contested the election under the sponsorship of the National Party of Nigeria (NPN). Chief Bola Ige, the petitioner/appellant, was also a candidate at the election, having been sponsored by the Unity Party of Nigeria (UPN). There were four other candidates, one each being sponsored by the NPP, the GNPP, the PRP and the NAP respectively. The result of the election declared by the third respondent i.e. the returning officer showed that Dr. Victor Omololu Olunloyo received a total of 1,603,267 votes while Chief Bola Ige received a total of 1,095,877 votes. Chief Bola Ige was not satisfied with the results so declared and decided to challenge the election or return of Dr. Victor Omololu Olunloyo in the Oyo State High Court. He presented and filed his election petition on the 22nd day of August, 1983. There were four respondents to the petition namely (1) Dr. Victor Omololu Olunloyo, (2) The Chief Electoral Officer for Oyo State (Mr. Stephen Sunmiboye Ajibade); (3) The Returning Officer, Mr. Daniel Adepoju Lapade Laniran and (4) The Federal Electoral Commission (FEDECO). The petition closed with a prayer which reads:

“Wherefore your petitioner prays that it be determined,

(1) that the first respondent, that is to say, the said Dr. Victor Omololu Olunloyo was not duly elected and/or returned and that his election is void.

(2) that your petitioner was duly elected and ought to have been elected and returned.”

The respondents filed their replies to the petition. The first respondent filed his own reply separately while the second, third and fourth respondents filed a joint reply.

At the close of evidence on the 9th day of September, 1983, Mr. Chukura, S.A.N., learned Counsel for the petitioner/appellant, made an unsuccessful oral application to amend the prayer by adding an alternative prayer to read:

“And in the alternative that the election is void.” The election panel refused the application on the ground that such an amendment is not permissible after 14 days from the date of the announcement of the results. The results were announced on the 16th day of August, 1983. Section 136 (2) of the Electoral Act bars such amendments.

The petition was heard by a panel of 5 judges namely, Olowofoyeku, J.; Chairman; Oloko, J; Ayorinde J.; Alao, J; and Popoola, J. At the close of counsel’s addresses, the panel retired to deliberate on the judgment to give. On the 12th day of September, the court (Olowofoyeku, J. and Oloko, J. dissenting) dismissed the petition in a well considered judgment, the closing paragraphs of which read:

“The third respondent has said he prepared exhibit 102 from exhibits 125 and 125U before he declared the results of the governorship election. The second respondent, like the third respondent and the second witness for the respondent was not shaken under cross-examination...

In the circumstances we accept the evidence of the second and third respondents as supported by the evidence of their second witness, Okelola as true and find proved that the results in exhibit 102 are authentic and reliable results of the governorship election held in Oyo State on the 13th August, 1983... It follows that by virtue of the said section 65 (1) above, the votes at Ibadan and Ilesha which have not been returned to any of the appropriate agents of the Federal Electoral Commission or to the Commission cannot be counted. In the two areas, it was said that there were violence resulting in murders and arson. We accept the second respondent’s evidence that there were no returns from these said constituencies. We accept the testimonies of the first, third, fourth, fifth, sixth, and seventh witnesses for the respondents who testified to the acts of violence and other criminal acts... On the issues settled in the parties’ pleadings in this petition in view of what we have said, the purported returns from the petitioner which have been weighed against the final returns from where the third respondent collated and declared the result of the election we hold the view that even on the preponderance of evidence the petitioner has not proved he had a majority of votes in the said election of 13th August, 1983. He is a defaulting party as having been unable to bring sufficient evidence to sustain the relief he is asking for. See Imana v. Robinson (1979) 3-4 at page 9 (from last paragraph to page 10).

It is held that the election of 13th August, 1983 on the evidence accepted by us has been held in substantial compliance with the provision of the Electoral Act and the result declared is authentic. The judgment this Court can give in an election petition is as prescribed in section 149 of the Electoral Act... It will be necessary to order a fresh election where election in respect of which a petition was brought was voided. We have not voided the election of 13th August, 1983 as no such relief has been claimed in the present petition. We cannot proceed to void that election of 13th August, 1983 in the absence of a prayer to that effect as the court can only consider the relief being claimed and the evidence in support of that relief in my view of the words “as the case may be” in the said section 149 of the Act.”

Being aggrieved by the decision of the election panel of the High Court, the petitioner appealed unsuccessfully to the Federal Court of Appeal. That court, in a unanimous judgment, dismissed the appeal. It is against that judgment that the petitioner filed his appeal in this Court.

It is important to observe that the two judges who dissented from the judgment of the majority were in agreement with the majority that the petitioner’s prayer to return him as the true person duly returned failed. In this regard, I quote the relevant portion of their judgment:

“Finally, the respondents have given evidence of serious acts of violence shortly before and during the day of the election in many parts of Ibadan Municipal Government and Ilesha Local Government. Evidence in regard thereto show that on such account there had been no returns from Ibadan and Ilesha collation centres. It is the case of the petitioner that there was voting in the two local government areas amounting on the whole in the case of Ilesha Local Government to 131,860 for him and 182 for the first respondent... should be taken into account. In the case of Ibadan, those votes in his own case amount to 331,218 and for the first respondent 107,091. There is no doubt that the evidence before the court was one that necessarily warrants a conclusion that the situation in those two local government areas was such as to prevent a free and fair election and one could not really say that in the circumstances the elections in these two places were free and fair. The petitioner’s allegation that the election in those two places were voided was not denied by the second and third respondents but they gave reasons relying among others on the doctrine of necessity.

We do not consider that the action of the second and third respondents in voiding the elections in those two places draw support from any of the provisions of the Electoral Act, nor do we appropriate the need to introduce the doctrine of necessity. On the contrary, we consider that the situation described in the evidence on behalf of those respondents is what could have called for the exercise of powers under the provision of section 60 of the Electoral Act which provides: “...”

It is our view that under that provision the presiding officer may adjourn the proceedings in as many polling stations as are affected and if need be, (Sic) warranting the adjournment in all the polling stations in the constituencies. The total number of registered voters in respect of Ilesha Local Government and Ibadan, and having regard to exhibit 98, is 1,030,935. A cancellation of the voting in those two places albeit without any authority, has disenfranchised about one fifth of the entire voters in Oyo State shown to be 5,179,477 and about one third of the total votes of 3,004,715 cast in the election as recorded by the second and third respondents. We are of the view that such would have been valid ground for voiding the election if there had been a prayer to that effect. See G.B. Adeyemi v. M. E. Ogundare & Anor. (1965) WNLR 71; Morgan v. Simpson (1974) QB. 344.

The votes which we have held ought to be disallowed in the case of Oranmiyan North 1 Constituency cannot affect the result of the election as declared by the third respondent and accordingly the petitioner’s prayer to return him as the true person duly returned fails.” (Italics mine).

It was their view, erroneously, in my view, that section 149 (1) of the Electoral Act gave the court power to consider the grant of any alternative prayer whether before the court or not that led them to grant the prayer (that was not in the petition before the court) that the election held on the 13th day of August, 1983 for the office of governor of Oyo State was void.

Being aggrieved by the decision of the election panel of the High Court of Oyo State, the petitioner appealed unsuccessfully to the Federal Court of Appeal. The respondents also appealed against the minority judgment of the Federal Court of Appeal. This was an unusual step and an uncalled for exercise. A dissenting judgment or minority judgment as it is sometimes called is not the judgment of the court under our 1979 Constitution. It is the judgment of the majority that is the judgment of the court. See section 258 (3) of the Constitution of the Federal Republic of Nigeria, 1979. The Federal Court of Appeal quite rightly and properly held that the cross-appeal is incompetent and dismissed it. That section 258 (3) reads:

“A decision of a court consisting of more than one judge shall be determined by the opinion of the majority of its members.”

There is no right of appeal against the minority or dissenting judgment.

The right of appeal granted by the 1979 Constitution is against the decision of the court which means the opinion of the majority of the judges constituting the court. See section 220 (1) and (2) of the 1979 Constitution. The Federal Court of Appeal unanimously dismissed the petitioner’s appeal. It is against that decision that the petitioner has now appealed to this Court. The petitioner’s dissatisfaction found expression in 4 grounds of appeal filed by him in his notice of appeal. They read as follows:

“(1) The Federal Court of Appeal erred in law in holding that the issue of non-compliance with the Electoral Act, 1982 No. 8 was not the basis of the petition, as a result of which it dismissed the appeal when:

(i) The issue was raised and relied on by the respondents (not by the petitioner).

(ii) The court of appeal held that the irregularity complained of was not a trivial one.

(iii) The trial court and the court of appeal accepted the defence of the respondents but failed to apply the statutory sanctions relevant to the accepted defence.

(iv) The respondents did not discharge the onus of proof that shifted on them to establish that the election was conducted substantially in accordance with the provisions of the Act.

(2) The Federal Court of Appeal erred in law in dismissing the appeal when from the reply of the respondents and the evidence tendered by them the third respondent did not make or declare a return of the election as prescribed under Section 70 of the Electoral Act and otherwise.

(a) That there was no return;

(b) Exhibit 102 tendered by the second respondent is invalid and cannot be a return of the election.

PARTICULARS:

(3) The Federal Court of Appeal erred in law in endorsing the erroneous findings of fact made by the trial court when:

(i) the petitioner fully discharged the onus of proof which rested on him as required by law;

(ii) the respondents failed to discharge the onus of proof which rested on them to prove the charges of (a) causing confusion; (b) deceit; (c) falsifying election results; (d) forging signatures of party agents; (e) forging signatures of FEDECO officers; (f) obtaining forms and signatories by duress which they levelled against the petitioner.

(iii) The trial court relied for its findings on presumptions when there was otherwise abundant credible oral and documentary legal evidence.

(iv) The court of appeal failed to consider the material facts and the issues of law raised thereon.

(v) The trial court held erroneously and without reflection that the result that would emerge from taking into consideration the figures in exhibits 13 to 13D, 15 to 21, 23 and 24 (page 199) would not make any difference in the result of the election.

(vi) The court of appeal erroneously held that the petitioner made statements in respect of printing of forms EC8 and EC8A and glossed over the legal effect on exhibit 127.

4. The court of appeal erred in law in failing to declare the election at Oranmiyan North 1 constituency void when at the time of the election there was a subsisting order of the High Court restraining the Federal Electoral Commission from conducting election with the register of voters which the Commission used.”

The issues for determination in this appeal are stated in the appellant’s brief to be six in number. They are as follows:

“(i) Where the defence of respondents in an election petition relies on a statutory defence, is the court not under a duty where it rejects the complaints of a petitioner on the basis of the defence to apply the statutory sanction relevant to such defence?”

The obvious answer to this question is that a petitioner who fails to establish the complaints in his petition whether his failure arises from the statutory defence set up by the respondents or not loses his claim.

“(ii) Whether a disregard of the provisions of sections 19, 60 and 154 of the Electoral Act by electoral officers does not vitiate an election? Failure to postpone polling in an area where widespread violence is evident does not ipso facto vitiate the election. The circumstances of each case have to be considered in the light of the pleadings and evidence.

“(iii) Whether the electoral commission, a presiding officer and/or the Chairman of the Commission on the events stipulated in sections 19, 60 and 154 of the Electoral Act are entitled:

(a) To declare a return when polling has not taken place in some constituencies?

The short answer is that by law it is the returning officer that declares a return.

(b) “To refuse or otherwise neglect to appoint a substituted date for holding such election?”

The short answer is No if the facts fall within the provisions of those sections.

(c) “In the event of an interruption to refuse or otherwise neglect to adjourn the proceedings and thereafter hold the election?”

The interruption if really serious will force adjournment of the proceedings. The presiding officer is however the sole judge at the polling station.

“(iv) Whether a returning officer is permitted by the Electoral Act after he has declared a return under section 70 of the Electoral Act to proceed to alter the number of votes cast for the candidates and whether a return so altered is invalid and void? The validity or invalidity of a return depends on the ineffectiveness or the effectiveness of the challenge in the competent High Court of the election or return.

“(v) Whether returning officers have a discretion where voting has taken place in an election to refuse to count such votes and whether an election court should not have ordered such votes to be counted?” The circumstances influencing a returning officer’s refusal to count must be examined by the court to decide whether the refusal to count is justified.

“(vi) Whether an election court is not bound to give effect to the evidence of a petitioner who tenders unchallenged returns signed by election officers and supported by primary and secondary returns.”

In my view, the main issue for determination in this appeal is whether, in the absence of a prayer by the petitioner in his petition praying that the election be declared void, the election ought, having regard to the evidence before the court establishing circumstances on which such a relief ought to be granted, to be declared void?

The relief sought from this Court by the appellant in the terms expressed in his notice of appeal reads:

“An order setting aside the decision of the Federal Court of Appeal and in its place a decree declaring:

(i) that the first respondent was not duly elected;

(ii) that the election of the first respondent is void;

(iii) that the petitioner was duly elected and ought to have been returned;

(iv) in the alternative, that the election is void on the ground that it was not conducted substantially in accordance with the provisions of Part II of the Electoral Act.”

It was conceded by Chief Chukura, S.A.N. learned Counsel for the appellant that the prayer that the gubernatorial election held on the 13th day of August, 1983 be declared void was not made in his petition. Chief R. A. O. Akinjide quite properly drew this Court’s attention to the oral application made by Chief Chukwura in the High Court for amendment of the petition to include the prayer to void the election. It is on record that the application was refused. As the application was made after the expiration of time for filing the petition the court quite justifiably refused the application.

There was therefore no merit whatsoever in the submission that the Federal Court of Appeal and the trial court erred in refusing to declare the election void.

No court has the power to grant reliefs or remedies not claimed before it. In this case, the restriction is even more apparent in section 136 (3) of the Electoral Act, 1982 which was specific when it provided:

“The court in the trial and determination of the petition shall confine its inquiry or findings to the issue raised by the petition and reply ...”

There being no prayer to the effect that the election be declared void, this Court cannot entertain an appeal seeking such a relief. The appeal being in the main for such a relief, lacked merit. I had no reason to disturb the concurrent findings of fact that ‘on the evidence accepted the petitioner did not get a majority of lawful votes’ arrived at in the High Court and the Federal Court of appeal.

For the above reasons, I dismissed the appeal on the 19th day of October, 1983.

SOWEMIMO C.J.N. This was an appeal by an unsuccessful candidate in the Oyo State governorship election. His petition was dismissed by the court of first instance by a majority of three to two. His appeal to the Federal Court of Appeal was unanimously dismissed.

The first point raised dealt with issue of facts. Apart from the reason that no leave was given either by the Federal Court of appeal or this Court, this point cannot be discussed. Mr. Olisa Chukura, S.A.N., for the appellant understandably appreciated the points and proceeded no further.

The second main point which was extensively dealt with by him was that two constituencies were not taken into consideration because voting in these areas could not be said to be validly conducted. I drew the attention of Mr. Olisa Chukura, S.A.N., to the fact that this point had been dealt with under the Electoral Act 1982. It was correct for the two courts to hold as they did that the failure to consider the results of those constituencies did not affect the result of the State election.

The third matter which he raised was that whilst an injunction was outstanding against the Modakeke people from taking part in the election, they, nevertheless did so. It was pointed out to him that the injunction order by the Ibadan High Court, was not served on the people who conducted the election in Modakeke, and one does not see how that could have affected the result in that constituency. Apparently the injunction was set aside by the Federal Court of Appeal.

For these reasons this appeal was dismissed and the judgments of the election petition court, Ibadan and of the Federal Court of Appeal, Ibadan, were affirmed.

IRIKEFE J.S.C. I delivered my judgment in this matter on 19th October, 1983 and stated then that I would elaborate on same on 13th 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.

BELLO J.S.C. I adopt the reasons for judgment written by my learned brother, Obaseki, J.S.C.

ANIAGOLU J.S.C. On 19th October 1983 I concurred in the dismissal by this Court of the appeal filed by Chief Bola Ige (hereinafter called the appellant) against the dismissal of his appeal to the Federal Court of Appeal, by that Court, and reserved my reasons for so doing to today. I now give my said reasons.

The matter arose out of the gubernatorial election in Oyo State in which the appellant and Dr. Victor Omololu Olunloyo (hereinafter referred to as the first respondent) were among the contestants for the office of the Governor of Oyo State. The Federal Electoral Commission (the body constitutionally responsible for the conduct and supervision of the election (hereinafter simply referred to as FEDECO)) declared the first respondent as having been duly elected by a majority of votes cast by the electorates in the State. Dissatisfied with the verdict, the petitioner filed an election petition in the High Court of Oyo State holden at Ibadan. The matter was heard by five judges of the High Court who constituted the competent High Court in accordance with section 119 of the Electoral Act of 1982. The majority (Ayorinde, Alao and Popoola JJ.) dismissed the petition while the minority (Olowofoyeku (Chairman), and Oloko, JJ.) rejected the petitioner’s claim that he was duly elected, but held that the election was void and that there should be a fresh election.

The appellant, as hereinbefore stated, appealed to the Federal Court of Appeal (Nasir P.J.C.A., Omo, Dosunmu, Karibi-Whyte, Ikwechegh, Omololu-Thomas, and Sulu-Gambari, JJ.C.A) which, by a unanimous verdict, dismissed the appeal giving rise to the present appeal. The appellant had, therefore, lost all the way and had two concurrent judgments of the courts below pronounced against him.

An incident of fundamental proportions and legal dimension has occurred since 19th October 1983 when we adjourned the date for the delivery of these reasons to the 13th January 1984. In the early hours of the morning of 31st December 1983 the civilian government of the Federal Republic of Nigeria headed by Alhaji Aliyu Shehu Shagari was toppled in a coup d’etat which ushered in a military government which in turn suspended and/or dismissed, among others, the civilian Federal Government, the National Assembly, the States’ Houses of Assembly; the Executive Office of the president, the Vice-President, the Governors and their deputies. It also announced that it had suspended immediately the portion of the 1979 Constitution relating to elective offices. In the result there are now no legislative or executive offices which the successful contestants in the 1983 elections can assume, they having now been abolished or suspended. But having been seized with this matter and having adjourned it for delivery of these reasons before the coup, I must, consistent with judicial principle of strict adherence with practice and procedure, deliver these reasons even after the occurrence of the coup d’etat.

The complaints of the appellant were contained in four grounds of appeal which, with the attached elaborate and comprehensive particulars, read as follows:

“3. GROUNDS OF APPEAL

(1) The Federal Court of Appeal erred in law in holding that the issue of non-compliance with the Electoral Act 1982 No. 8 was not the basis of the petition, as a result of which it dismissed the appeal, when:

(i) The issue was raised and relied upon by the respondents (not by the petitioner).

(ii) The court of appeal held that the irregularity complained of was not a trivial one.

(iii) The trial court and the court of appeal accepted the defence of the respondents but failed to apply the statutory sanctions relevant to the accepted defence.

(iv) The respondents did not discharge the onus of proof that shifted on them to establish that the election was conducted substantially in accordance with the Electoral Act.

(2) The Federal Court of Appeal erred in law in dismissing the appeal when from the reply of the respondents and the evidence tendered by them the third respondent did not make or declare a return of the election as prescribed under Section 70 of the Electoral Act: and otherwise:

(a) That there was no return of the election.

(b) Exhibit 102 tendered by the second respondent is invalid and cannot be a return of the election.

PARTICULARS

(i) The alterations made in the return after declaration affected both the separate figures making up the total votes and the final figures arrived at.

(ii) The respondents did not in any way explain the difference in the votes ascribed to the first respondent (from 1,603,267 to 1,815,440 i.e. 212,173 votes) nor did the difference otherwise appear from the pleadings and other processes on record.

(iii) It is only the High Court in our (sic) election petition which has jurisdiction to make the alterations which the third respondent admitted that he made.

(iv) The declaration of return which is at variance with the certificate of return declared is illegal under section 105 of the Electoral Act and is accordingly invalid and void.

(v) Oral evidence is not admissible to supplement the return.

(vi) The court failed to give effect to section 136 (3) of the Electoral Act.

(3) The Federal Court of Appeal erred in law in endorsing the erroneous findings of fact made by the trial court when:

(i) The petitioner fully discharged the onus of proof which rested on him as required by law.

(ii) The respondents failed to discharge the onus of proof which rested on them to prove the charges of (a) causing confusion, (b) deceit, (c) falsifying election results, (d) forging signatures of party agents, (e) forging signatures of FEDECO officers, (f) obtaining forms and signatures by duress, which they levelled against the petitioner in their reply.

(iii) The trial court relied for its findings on presumptions when there was otherwise abundant credible oral and documentary legal evidence.

(iv) The court of appeal failed to consider the material facts and the issues of law raised thereon.

(v) The trial court held erroneously and without reflection that the result that would emerge from taking into consideration the figures in exhibits 13 to 13D, 15 to 21, 23 and 24 (page 199) would not make any difference in the result of the election.

(vi) The court of appeal erroneously held that the petitioner made statements in respect of printing of form EC8 and EC8A and glossed over the legal effect of exhibit 127.

“(4) The court of appeal erred in law in failing to declare the election at Oranmiyan North I constituency void when at the time of the election there was a subsisting order of the High Court restraining the Federal Electoral Commission from conducting election with the register of voters which the Commission used.”

Arguing Ground 1 of the grounds of appeal, counsel for the appellant, Chief Olisa Chukura, S.A.N., submitted that contrary to what the court of appeal held that the appellant did not make the non-compliance with the Electoral Act, 1982 the basis of his complaint before that court, he, on behalf of the appellant, had made the submission before the two courts below that the election be voided by reasons of non-compliance with the provisions of the Act. Relying on England v. Palmer (1955) 14 W.A.C.A. 659 at 660-661 which deals with the necessity of allowing amendments especially when evidence adduced justified them, Chief Chukura argued that the Federal Court of Appeal ought to have amended the prayer in order to accommodate the evidence received and facts proved, and suggested that this Court ought to do that which the court of appeal failed to do.

In his reply, counsel for the second and third respondents, Chief Richard Akinjide pointed (and in my view quite correctly) to the amendment which was made to paragraph four of the petition, by court, on the application of Chief Chukura, in the course of trial at first instance. The said paragraph four of the petition reads:

“4. AND your petitioner states that the election was duly held on 13th August 1983 following which the third respondent returned the first respondent as being duly elected by an announcement made in the early hours of Tuesday, 16th August 1983.”

At pages 136 to 137 of the record of proceedings Chief Chukura applied to court for leave to amend the said paragraph. The record contains the following:

“At this stage he withdraws from tendering the document. He also applies to amend paragraph four of the petition by inserting immediately after the letter 1983 therein the words:

‘in accordance with the Electoral Act, 1982 No. 8 and the guidelines and instructions issued by the Federal Electoral Commission’.

Application is brought under S. 136(1). Chief Akinjide and Mr. Latinwo do not object.

Court: Application is granted as prayed.

Paragraph four of the petition is hereby amended by inserting immediately after the figure 1983 in the second line thereof the following words:

‘in accordance with the Electoral Act, 1982 No. 8 and the guidelines and instructions issued by the Federal Electoral Commission’.”

And so, having pleaded that the election was conducted in accordance with the Electoral Act, 1982, it was too late in the day for the appellant to argue that the election was not conducted substantially in accordance with the said electoral Act. It could, of course, be argued that what the appellant was saying was that the election was conducted under the Electoral Act, 1982, as the basis law which applied, and that when he used the words “in accordance with” he did not mean “in compliance with.” It is a possible argument but I consider it a plausible one. There is no merit, having regard to all the evidence adduced, in that ground of appeal which fails.

The complaint on Ground 2 centres around S.70 of the Electoral Act. It was contended that the return of the first respondent as duly elected was a nullity in that exhibit 102 is a correction of the figure by which he was returned. The announcement was therefore made, it was argued, on a figure which was different from exhibit 102 and at variance with it. The figures as amended were not the figures contained in the certificate delivered to the candidates or their agents.

It was further contended that S. 70 of the Electoral Act, 1982, was an absolute section which must be fully complied with. Section 70 of the Act reads:

“70. 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 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.”

It is necessary to reproduce exhibit 102 here. By reason, however, of the size of the document it is photocopied and attached herewith as Annexure A.

The evidence has disclosed that the appellant admitted in cross-examination that he ordered several thousands of Forms EC8 and EC8A to be printed by the Government Printed by the Government Printer at Ibadan. This was what he said at page 155 of the record of proceedings.

“I know that on the 11th of August, thousands of Form EC8 and EC8A were printed by the Government Printer on instructions given on the 10th of August, I cannot swear to the number. I do not know the colours of the printed forms but I know that white colour was printed. I took delivery of some of those forms and sent some to Alhaji Liman Umoru on the 11th of August.”

In addition he admitted that some of these forms were cyclostyled and also used for the election. Exhibits 77(XV)–77(XXXIII), he admitted, were some of these forms. Some of the forms appeared, on his admission, to have been made by FEDECO but the origins of some others were not determinable. Exhibit 102 was a cumulative compilation of genuine results made, from the genuine FEDECO papers, disregarding appellant’s forms printed by his Government Printer, Ibadan, and those obviously non-genuine cyclostyled forms. Some mistakes were bound to occur in a general election but as the court below found, the amendments made had not made “the former loser winner or former winner loser.” Having, however, set the ball rolling in the direction of falsification, by getting his Government Printer to produce these forms without the authority of FEDECO–denials in that respect notwithstanding–it would hardly lie in the mouth of the appellant to complain about the outcome of the jiggery-pokery. He who comes to equity must come with his hands clean. The two courts below have found against the conduct of the appellant in printing the FEDECO documents; those concurrent findings may not, except for serious reasons, be disturbed in this Court. (See Chief Obafemi Awolowo v. Alhaji Shehu Shagari (1979) 6-11 SC.51). There is, in my view, no substance in this ground of appeal which is hereby rejected.

These reasons for the rejection of the said Ground 2 sufficiently cover Ground 3 of the grounds of appeal in which the appellant has complained that the court of appeal.

“erred in law in endorsing the erroneous findings of fact made by the trial court ...”

in relation to the conduct of the appellant. The admissions of the appellant as herein before stated are sufficient justification for the findings of the trial court and for the affirmation of those findings by the court of appeal.

More important is the legal point taken by the appellant in Ground 4. In that ground the appellant argued that there was a subsisting order of injunction made by the High Court, restraining FEDECO from conducting election in ORANMIYAN NORTH 1 constituency with the register of voters complied for that constituency; that in violation of this order FEDECO proceeded with the election in the constituency with the said register of voters; that the court of appeal ought to have declared the said election in the said constituency null and void on the ground that an election held contrary to the order is unlawful; that not having done so, this Court ought to make the declaration, and that if the results in that constituency were ignored and subtracted from the total votes cast for the first respondent, he would not have secured the highest vote cast in the election entitling him to be returned as duly elected.

In his reply on this issue Chief Richard Akinjide drew attention to the facts and circumstances under which the said order for injunction was made by Lajide, J. Firstly, he said, no party in the present suit was a party in the case in respect of which Lajide, J., made the order; Secondly, the order was not served on the defendants in the present suit; Thirdly, the Gubernatorial election was held on 13th August 1983 whereas the affidavit detailing the events in ORANMYAN North 1 constituency was sworn to on 15th August 1983; Fourthly, the same judge (Lajide, J) had refused an application for interim injunction restraining election with the register being held in that constituency, made on 5th August 1983, and then on 10th August 1983, the judge entertained oral application for the same order which he refused on the 5th and proceeded to make an order; and Fifthly, the applicant for the order was not a party to the election petition and therefore had no locus standi to make the application: this argument was upheld by the court of appeal (see exhibits 126, 126A and 126B) whose judgment nullified the injunction order.

Chief Chukura, in reply, contended that FEDECO was a party to the proceedings for the interim injunction since FEDECO–a creature of the Constitution (see S. 140(1) (c) thereof)–conducted the election.

In resolving the matters raised in this ground of appeal, it is necessary to bear in mind that the conduct of the 1983 elections was done under the Electoral Act, 1982, it not being possible for the Legislature to pass the anticipated 1983 electoral Bill through the National Assembly before the elections and S.18 thereof provides for the use of the register of voters for the election. Claims and Objections to the voters register are provided for in S.11 The voters or ORANMIYAN North 1 constituency were entitled and had a clear legal right to vote in the election and therefore not to be disfranchised by a removal of their register of voters.

The Federal Court of Appeal had held on appeal that the applicants in the injunction proceedings had no locus standi in the election petition to which the appellant and respondents were parties. With that judgment subsisting–not having been set aside by any court–the order made by Lajide, J. was therefore wiped out, much respect, I agree with the judgment of the said court of appeal. With much respect, I agree with the view expressed by Onyeama, Ag. J. (as he then was) in Nwokeleke and Ors. v. Osele of Onicha and Ors. 1955-6 W.R.N.L.R. 87 that the judgment of an appeal court, allowing an appeal, has the effect of substituting the appeal court judgment for the judgment of the court below set aside, making the decision appealed against disappear altogether.

In any event the circumstances under which Lajide, J., made the order for injunction, even without the judgment of the court of appeal on the issue of locus standi, placed much doubt on the jurisdiction of the said judge to make the order. The present parties were not parties in the application and it is extremely doubtful that a judge presiding over suit ‘A’ could in that suit, decree an injunction to bind the parties in another suit B’. To say the least the making of such an order would appear to be irregular.

Ground 4, like the other grounds of appeal, thereby failed.

It was for the above reasons that on 19th October, 1983 I dismissed this appeal with costs.

Nnamani J.S.C. On 19th October, 1983, I delivered my judgment in this appeal dismissing the appellant’s appeal with N300 costs to the respondents. I indicated then that I would later give my reasons for that judgment. I now give my reasons.

The appellant and the first respondent were among the six candidates who contested election to the office of Governor of Oyo State. The election was conducted on 13th August, 1983 and on 16th August, 1983 the third respondent announced the first respondent as having been duly elected. The first respondent was said to have scored 1,603,267 votes as against 1,095,877 votes by the appellant.

The appellant dissatisfied with this result filed a petition with the Oyo State election court praying that court to determine:

“(i) that the first respondent that is to say: the said Dr. Victor Omololu Olunloyo was not duly elected and/or returned and that his election is void;

(ii) that your petitioner was duly elected and ought to have been elected and returned.”

The Oyo State election court by a majority decision (3 Justices to 2) handed down on 12th September, 1983 dismissed the petition. The petitioner/appellant appealed to the Federal Court of Appeal Ibadan Judicial Division. That court by a unanimous decision handed down on 23rd September, 1983 affirmed the judgment of the majority judges of the election court and dismissed the appeal. The appellant then appealed to this Court. Four main grounds of appeal were filed and argued in this Court. These grounds were as follows:

“GROUNDS OF APPEAL

(1) The Federal Court of Appeal erred in law in holding that the issue of non-compliance with the Electoral Act 1982 No. 8 was not the basis of the petition, as a result of which it dismissed the appeal, when:

(i) The issue was raised and relied upon by the respondents (not by the petitioner).

(ii) The court of appeal held that the irregularity complained of was not a trivial one.

(iii) The trial court and the court of appeal accepted the defence of the respondents but failed to apply the statutory sanctions relevant to the accepted defence.

(iv) The respondents did not discharge the onus of proof that shifted on them to establish that the election was conducted substantially in accordance with the Electoral Act.

(2) The Federal Court of Appeal erred in law in dismissing the appeal when from the reply of the respondents and the evidence tendered by them the third respondent did not make or declare a return of the election as prescribe d under section 70 of the Electoral Act: and otherwise:

(a) That there was no return of the election.

(b) Exhibit 102 tendered by the second respondent in invalid and cannot be a return of the election.

PARTICULARS

(i) The alterations made in the return after declaration affected both the separate figures making up the total votes and the final figures arrived at.

(ii) The respondents did not in any way explain the difference in the votes ascribed to the first respondent (from 1,603,267 to 1,815,440 i.e. 212,173 votes) nor did the difference otherwise appear from the pleadings and other processes on record.

(iii) It is only the High Court in our (sic) election petition which has jurisdiction to make the alterations which the third respondent admitted that the made.

(iv) The declaration of return which is at variance with the certificate of return declared is illegal under section 105 of the Electoral Act and is accordingly invalid and void.

(v) Oral evidence is not admissible to supplement the return.

(vi) The court failed to give effect to section 136 (3) of the Electoral Act.

(3) The Federal Court of appeal erred in law in endorsing the erroneous findings of act made by the trial court when:

(i) The petitioner fully discharged the onus of proof which rested on him as required by law.

(ii) The respondents failed to discharge the onus of proof which rested on them to prove the charges of (a) causing confusion, (b) deceit, (c) falsifying election results, (d) forging signatures of party agents (e) forging signatures of FEDECO officers, (f) obtaining forms and signatures by duress, which they levelled against the petitioner in their reply.

(iii) The trial court relied for its findings on presumptions when there was otherwise abundant credible oral and documentary legal evidence.

(iv) The court of appeal failed to consider the material facts and the issues of law raised thereon.

(v) The trial court held erroneously and without reflection that the result that would emerge from taking into consideration the figures in exhibits 13 to 13D, 15 to 21, 23 and 24 (page 199) would not make any difference in the result of the election.

(vi) The court of appeal erroneously held that the petitioner made statements is respect of printing of forms EC8 and EC8A and glossed over the legal effect of exhibit 127.

(4) The court of appeal erred in law in failing to declare the election at Oranmiyan North 1 constituency void when at the time of the election there was a subsisting order of the High court restraining the Federal Electoral Commission from conducting election with the register of voters which the commission used.”

The grounds of appeal were ably argued before us by Chief Olisa Chukwura, S.A.N., for the appellant. An equally able reply was given by chief R.A.O. Akinjide, S.A.N., for the respondents. I do not propose to set down counsels’ submissions in detail but I shall refer to them where necessary in the course of this judgment.

In respect of ground 1, the appellant urged this Court to allow an amendment of the prayer since he contended that both parties fought the case on the basis of non-compliance with Part II of the Electoral Act 1982. Learned Senior Advocate appearing with for the appellant further urged this Court to hold that the election was void and this notwithstanding what-ever the two lower courts may have said.

On the other hand it was the main contention of the respondents, as per the argument of Chief Akinjide, that the appellant could not now ask for a relief he did not ask for in his pleadings. The cases he argued was fought on the basis that there was compliance with the Electoral Act 1982. He contended that the petitioner cannot now ask for the election to be voided having regard to the pleadings. The Court and the parties it was submitted are bound by the pleadings.

From the prayer to which I made reference at the beginning of this judgment, it is clear that the appellant never asked that the election be declared void. Indeed paragraph four of the petition as amended read as follows:

“And your petitioner states that the election was duly held on 13th August, 1983 in accordance with the Electoral Act 1982 No. 8 and the following which the third respondent returned the first respondent as being duly elected by an announcement made in the early hours of Tuesday 16th August, 1983.”

The omission to put in such a prayer was all the more astounding as one can see in the petition complaints of illegalities and malpractices. The appellant tried to amend the petition to bring in the prayer that the election be declared void but both the High Court and the Federal Court of Appeal rejected the application. I do not see on what grounds this Court could allow such a plea. When the application was made to the election court it was rejected pursuant to the mandatory provisions of section 136 (2) and 125 (3) of the Electoral Act 1982. These provisions are in these terms:

“136

(2) After the expiry of the time limited by this part of this Act for presenting a petition, no amendment shall be made for the purpose of introducing any fresh prayer into the petition or effecting any alteration of substance in the prayer–”and

“125

(3) The petition shall conclude with a prayer that the person specified therein may be declared duly returned, or that the election may be declared void as the case may be and the petition shall be signed by the petitioner or if he has a legal practitioner by his legal practitioner named at the foot of the petition.”

As regards the earlier provisions, the election having been announced on 16th August, 1983, any application for amendment pursuant to section 136 (2) of the Electoral Act had to be made within 14 days from that 16th August. It was being made about the 19th of September, 1983.

Besides, it is trite law that the parties are bound by their pleadings. The respondents had replied to the petition as amended and the whole case had proceeded on the basis of these pleadings. There is also the provisions of section 136 (3) of the Electoral Act to contend with. That section provides that:

“The Court in the trial and determination of the petition shall confine its inquiry of findings to the issues raised by the petition and the reply and subject to the provisions of this Part of this Act as to time for presentation of a petition may with or without ordering or allowing the amendment to any statement of the facts and grounds relied upon in support of the petition or the amendment of any admission or denial contained or facts or grounds set out in the reply inquire into any other issue otherwise raised or apparent or any matter otherwise raised or apparent or any matter otherwise appearing as to the Court may seem necessary for the proper determination of the petition.”

See Waghorm v. George wimpy (1969) 1 W.L.R. 1764.

In ground two of the grounds of appeal the appellant’s complaint centred on exhibit 102 which was the certificate of return of the basis of which the result of the gubernatorial election was announced.

Learned Senior Advocate appearing for the appellant contended that at the time the third respondent announced the results he knew that there was possibility of error in exhibit 102. In his evidence in the election court the second respondent actually said:

“The figure which I had for the first respondent early on the 16th of August was 1,603,267. Today the figure is 1,815,440. Exhibit 102 was handed over to me at about 6.00 a.m. on the 16th of August. The erasures in 11 places were made by the returning officer. The figures as at first announced were not the correct ones. The returning officer detected the errors immediately after the announcement.”

It was on the basis of this that appellant’s counsel further submitted that the announcement was made on a piece of paper and that the paper was then altered to become Exhibit 102. in other words that the result was not announced on the basis of Exhibit 102; or put in another way there were two returns. He said the figures announced were not the same as the figures given to FEDECO under section 70 (d) of the Electoral Act 1982 i.e. the certificate of return which had to be handed to FEDECO. In sum total he contended that Exhibit 102 was a nullity; that there was no return of the election up to now and that the election was void.

Section 70 (d) of the Electoral Act provides as follows:

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

(d) cause to be delivered to the Commission the original of the Certificate of Return.”

It seems clear that there can only be one certificate of return for the State. It is on this certificate that the result shall be published as per section 71 of the Electoral Act 1982.

The question of what is a return, amendment or alteration of the return etc., came up in Alhaji Waziri Ibrahim v. Alhaji Shehu Shagari S.C. 94/ 1983 unreported and delivered by this Court on 29th September, 1983. The facts were slightly different from the present case because there the corrections and alterations were in the returns from the States and in another result sheet compiled after the result had been declared. There I dealt with the returns thus:

“ ‘Return’ is defined in section 164 (1) of the Electoral Act as the declaration of the result of the election in accordance with the appropriate provisions of this Act and includes a certificate of Return in Form EC8 in the Schedule to this Act. From this definition, and having regard to section 71 of the Electoral Act, I am of the view that for a presidential election in which the whole country is one constituency there can only be one return. The results from the States are not “returns” but results sent in for the compilation of the Result i.e. the presidential result for purposes of section 126 (2) of the Constitution. There was only one declaration of the presidential result and this is contained in exhibit B. Exhibit B is in my view the only return. On this construction the petitioner cannot make any valid case of substantial non-compliance based on irregular amendments or obliterations. There is no evidence that there was only obliteration or amendment on Exhibit B. Not much cognisance Ought to be taken on Exhibit B which though it contained alterations, was on the evidence Before the lower court, never used to declare the presidential election result but was in fact made after the declaration.”

The difference between this and the instant appeal is clear. Exhibit B was the certificate of return on which the result was declared hence Exhibit B Carrying alterations could be ignored. In this appeal Exhibit 102 which was tendered as the certificate of return was the one that contained alterations and seemed different from the result sheet with which the result was declared. On the face of it therefore it seemed that the appellant had a substantial point. But first, in their reply the respondents pleaded in paragraph 20 that:

“(i) the original election result score sheets and the final result sheet read by the third respondent to the media are one and the same.

(ii) the votes obtained by each candidate in each local government area remain the same, what were corrected were the mistakes in addition of the figures.”

Secondly, in their evidence before the election court the second and third respondents testified that the difference between the sheet with which the result was declared and exhibit 102 was just that some wrong additions were corrected. There were no two returns on which two candidates could be returned. The election court and the Federal Court of Appeal seemed to have accepted this explanation and I see nothing to indicate that it was anything other than this. I would accept the views expressed by the majority judges of the election court on Exhibit 102.Their Lordships said:

“In the circumstances we accept the evidence of the second and third respondents as supported by the evidence of their second witness Okalola, as true and find proved the results in Exhibits 102 as authentic and reliable results of the governorship election held in Oyo State on 13th August, 1983. This is in our view the conclusion that the laws of our land and evidence adduced in this petition can suggest. It had been said that exhibit 102 was amended after the declaration of result by the third respondent. The amendments effected have not made a former loser winner or a former loser. It has not affected the chances of any party. The correction made in the circumstances cannot help the subsisting prayer of the petition. See Okunola v. Ogundiran (1962) All N.L.R. 83.”

In any case it has to be remembered that section 70 (d) of the Electoral Act of which it is contended there has been breach falls within Part II of the Electoral Act. It is only substantial non-compliance with that part that a court would agree voids an election. See section 123 (1) of the Electoral Act, 1982.

In ground 3 of the grounds of appeal the appellant was concerned with issue of facts. The appellant referred particularly to paragraphs 10 and 22 of the respondents’ reply in which they had alleged that the results allegedly received by the appellant were forgeries and contended that contrary to the decision of the lower court the burden lay on the respondents (and not on the appellant) to prove these forgeries and the standard of proof required was beyond reasonable doubt. I am still of the firm view that argument on issue of facts was not open to the appellant since he did not obtain leave of this Court to argue issue of facts. See section 213 (3) of the constitution of the Federal Republic of Nigeria, 1979. Nevertheless, the issues of facts were settled by the High Court and the Federal Court of Appeal, and being concurrent findings of fact, and there being no miscarriage of justice etc., I see no basis to interfere with those findings. It was the view of both courts that the appellant did not discharge the burden which lay on him as petitioner. See Enang v. Adu (1981) 11-12 S.C. 25 at 42.

As regards the allegations of forgery made by the respondents they actually pleaded in paragraphs 10 & 22 of their reply as follows:

“10. Although the Federal Electoral Commission supplied all the necessary forms adequately and copiously to all the election officials and officers for the purpose of the election to the office of Governor in Oyo State, the petitioner or the political party sponsoring him or both, printed, without authority Federal Electoral Commission Forms for the use during the said election and for the purpose of causing confusion, deceit, and falsifying election results.

This matter was raised in at least one newspaper–‘National Advocate’ of August 11th 1983”...

(22) The respondents will also contend at the trial that many of the forms on which the so-called election results are entered and on which the petitioner relies are either forms he or his party or supporters printed without authority or are FEDECO official forms with falsified election figures entered and signatures of party agents or FEDECO officers or both either forged or obtained under duress by the agents or supporters of the petitioner.”

The learned Counsel to the third respondents in argument before us submitted that though this had been pleaded no evidence was led on it as the petitioner had not made out a case at the time he closed his case. The respondents he claimed had in cross-examination destroyed the petitioner’s documents so there was no need to lead evidence on the averments in paragraphs 10 and 22.

Nevertheless, the second respondent in his evidence testified that the appellant was never authorized to print FEDECO Forms. Besides the trial court rightly exhibit 127 tendered by the petitioner as it could not be tied to any particular election as to authority to print forms.

The fourth and final ground of appeal was a complaint about the conduct of elections by FEDECO in Oranmiyan North 1 constituency contrary to an order of court contained in Exhibit 3 in the proceedings. Learned Senior Advocate for the appellant contended that the moment the order it was binding on FEDECO; service of the order was only necessary for purposes of contempt. On the non-service of the order on second and third respondents he argued that the order was potent even if not served on second and third respondents personally. The main reply of the respondents was that the order was not served on the served on the second and third respondents personally. In fact they argued that no one who is a party in this suit was a party in the suit in which that order was made. They pointed out that the order was made on 10th August 1983 following an oral application before the same judge who had earlier refused a similar application on a motion on notice.

It would be useful to note the findings of the two lower courts on this order of court. The election court i.e. the majority judges observed as follows:

“It has been suggested that the votes from Oranmiyan North 1 constituency should not have been taken into consideration in the said result of the elections as there was a subsisting order of this Court by Lajide J. at the time of the elections restraining the conduct of an election in the constituency. There is no evidence before this Court that the said order was served on the present respondents or on any person in the Federal Electoral Commission before the election was held. The order of this Court also has been wiped out by the judgment of the Federal Court of Appeal i.e. exhibits 126, 126A and 126B where it was held inter alia that none of the plaintiffs in the case had a locus standi to institute the action.”

Although opinion differed on this order in the Federal Court of Appeal, Dosunmu J.C.A. who wrote the lead judgment of that court observed:

“Special mention was however made of the voting in Oranmiyan North 1 during the subsistence of an order of injunction that the register of voters in the area should not be used. It seems to me that the penalty for disobeying any such order is to punish the contemnor, and not to disenfranchise the electorate of the constituency by disregarding the votes cast by them.”

It would appear from the evidence that counsel represented FEDECO in the suit in which the order was made but his clients were obviously not informed of this order of court. Second and third respondents were neither parties to the relevant suit not were they served with the order before 13th August 1983 prohibiting election in Oranmiyan North 1 Constituency. I do not accept the submission of learned Senior Advocate appearing for the appellant that once the order was made it was potent and binding on persons who have not even been served with it. Of course if there is an order of court such as there was in relation to the Oranmiyan North 1 constituency it has to be obeyed and penalty for disobedience is contempt of court. But it follows that such punishment will only follow after such an order is served on those against whom it is made and they disobey it. The second and third respondents (or indeed any official of FEDECO) having not been served with the order of the High Court, conducted elections on 13th august, 1983 in Oranmiyan North 1 constituency. On what justifiable grounds could the innocent voters in that constituency be disenfranchised by the election being held invalid? I can find none. Indeed so firm am I in this view that even if the order had been served on second and third respondents and they nevertheless proceeded to conduct election in that constituency, I would have been reluctant to disenfranchise the voters.

In all it was for these reasons That I came to the conclusion on 19th October, 1983 that this appeal lacked merit. I therefore dismissed it with costs as stated earlier in this judgment.

Uwais J.S.C. This appeal was dismissed on 19th October, 1983 and our reasons for dismissing it were reserved until today. I now give my reasons.

The first respondent was declared duly elected in the governorship election that took place on 13th August, 1983 in Oyo State. The appellant, who was one of the defeated candidates, bought an election petition in the Oyo State High Court, Ibadan, challenging the declaration. Paragraphs 5, 7, 10 and 11 of the petition read:

“5. Your petitioner states that he had the highest number of votes cast at the said election and also had more than one-quarter of all the votes cast in each of at least two-thirds of all the local government in Oyo State. Oyo State consists of 24 local governments which altogether contain 126 constituencies.”

“7. Your petitioner states that the results of the election as certified by the second respondent and announced by the third respondent falsified in various areas within the State constituency.”

“10. Your petitioner states that the first respondent was at the time of the said election not duly elected by majority of lawful votes and has less than one quarter of all the votes cast in each of at least two thirds of all the locals government areas in the State.

“11. The second, third and fourth respondents and their servants and against falsified the results of the voting at the said election and returned false scores in 19 of the 24 local governments without reference to the true figures recorded by the election officers at the election ...”

The petition ended with the following prayers:

“Whereof your petitioner prays that it is determined:

(i) that the first respondent, that is to say, the said Dr. Victor Omololu Olunloyo was not duly elected and/or returned and that his election is void.

(ii) that your petitioner was duly elected and ought to have been elected and returned.”

Replies to the petition were filed by the respondents who denied the averments made therein.

The petition was heard by a panel of five judges. In a joint judgment Ayorinde, Alao and Popoola, J.J., jointly dismissed the petition but nullified the election on the interpretation of the words “as the prayer may be” in section 149 subsection (1) of the Electoral Act, 1982.

Dissatisfied with the decision of the High Court the appellant appealed to the Federal Court of Appeal. A cross-appeal against the judgment of Olowofoyeku and Oloko, J.J., was brought by the second and third respondents.

The Federal Court of Appeal treated the judgment of Ayorinde, Alao and Popoola, J.J., as the majority judgment of the High Court. Both the appeal and the cross-appeal were respectively dismissed. Hence this further appeal by the appellant.

Without the particulars thereof the grounds of appeal filed read as follows:

“(1) The Federal Court of Appeal erred in law in holding that the issue of non-compliance with the Electoral Act, 1982 No. 8 was not the basis of the petition, as a result of which it dismissed the appeal...

(2) The Federal Court of Appeal erred in law in dismissing the appeal when from the reply of the respondents and evidence tendered by them the third respondent did not make or declare a return of the election as prescribed under section 70 of the Electoral Act: and otherwise:

(a) That there was no return of the election.

(b) Exhibit 102 tendered by the second respondent is invalid and cannot be a return of the election ...

(3) The federal Court of Appeal erred in law in endorsing the erroneous findings of fact made by the trial court ... and;

(4) The (Federal) Court of Appeal erred in law in failing to declare the election at Oranmiyan North 1 constituency void when at the time of the election there was a subsisting order of the High Court restraining the Federal Electoral Commission from conducting election with the register of voters which the Commission used.’

Arguing the first ground, Chief Chukura, learned senior Advocate, for the appellant contended that the Federal Court of appeal was in error when it refused to void the election since there was evidence that the second and third respondents failed to comply with the provisions of Part II of the Electoral Act, 1982. Replying, chief Akinjide, learned senior Advocate for the second and third respondent drew our attention to paragraph four of the appellant’s petition, as amended, and the respondents’ replies. He submitted, rightly too, that no issue was joined in the pleading on the non-compliance four of the amended petition reads:

“4. AND your petitioner states that the election was duly held on 13th August, 1983 following which the third respondent returned the first respondent as being duly elected by an announcement made in the early hours of Tuesday, 16th August, 1983, in accordance with the Electoral Act, 1982 No. 8 and the guidelines and instructions issued by the Federal Electoral Commission.” (Italics mine)

This averment was admitted by all the respondents. It is mandatory under section 136 subsection (3) of the Electoral Act, 1982 that a trial court, like the parties to a petition, is bound by the pleadings. The subsection states in part thus:

“136.

(3) The court in the trial and determination of the petition shall confine its enquiry or findings to the issues raised by the petition and reply; ...”

It therefore follows that the appellant cannot now be heard to complain about non-compliance with the provisions of the Electoral Act in the conduct of the election. The appropriate time to raise the point was in the course of proceedings in the trial court when the petition could have been amended; however this was not done. The point could not now be raised since the issue was not joined in the pleadings. This ground of appeal therefore fails.

In the second ground of appeal the appellant complained that Form EC8 (exhibit 102) on which the result of poll was declared was altered and that on the authority of Okunola v. Ogundiran, (1962) I ALL NLR 83, the alteration could only be validly made after the order of a court had been obtained, The respondents admitted in their replies that exhibit 102 was altered after the results were at the first announced. They explained that the alteration was due to arithmetical error. By the alteration the votes scored by the first respondent rose from 1,603,267 to 1,815,440.

In Alhaji Waziri Ibrahim v. Alhaji Shehu Shagari & Anor. Suit No. 94/1983 (unreported) judgment delivered on 29th September, 1983, the decision in Okunola v. Ogundiran (supra) was distinguished. So that where the alteration in the certificate of result is made in good faith merely to correct an arithmetical error, as in the present case; and the candidate declared winner at first, still remained the winner, then no order of court is necessary before the alteration could be made.

Accordingly there is no substance in the complaint that exhibit 102 was not made in accordance with the provisions of section 70 of the Electoral Act, 1982. Both the trial court and the Federal Court of Appeal were right in considering exhibit 102 as a valid certificate of the election result. This ground of appeal also fails.

With regard to the third ground of appeal, the substance of the appellant’s complaint is that he had proved his case by putting in evidence a number of returns to show that he won more votes than the first respondent. Chief Akinjide had shown that most of the returns were discredited when the appellant was cross-examined on them. There had been concurrent findings of fact on this point; both the trial court and Federal Court of appeal held that the appellant had failed to prove that he won the highest votes in the election. Chief Chukura had argued that the respondents alleged in their replies that the returns relied upon by the appellant were falsified and that the (respondents) failed to prove the allegation beyond reasonable doubt as required by section 137 subsection (1) of the Evidence Act.

It is trite law that where there is a concurrent finding of fact this Court will not disturb the finding unless it is shown to be perverse or no reasonable tribunal could come to the same finding on the same facts—

Enang v. Adu, (1981) 11/12 S.C. 25 at p.42. This has not been shown to be the case in this appeal. The burden of proving the case rested on the appellant and as the lower courts held he failed to discharge it. Although the respondents failed to establish that the returns tendered were falsified as pleaded, their failure could not enhance the appellant’s case since the burden to proving his case was not shifted to the respondents. I therefore see no merit in this ground of appeal.

Finally on ground 4, Chief Chukura argued that there was a subsisting injunction granted by Lajide, J. Which restrained the Federal Electoral Commission from using the register of voters. However the register was used in the governorship election held at Oranmiyan North 1 constituency in defiance of the injunction. He therefore submitted that the Federal Court of Appeal should have voided the voting in that constituency. If this were done the votes scored by the both the appellant and the first respondent would have been reduced by 489 and 214, 246 respectively. In the Federal Court of Appeal Uche Omo, J.C.A. observed as follows:

“I am of the view that the order of injection by Lajide, J. in Chief Olagunju Adesakin & Ors. V. Federal Electoral Commission was a subsisting order as at the day of the relevant election and there was no justification for flouting the order ... All that was required of FEDECO was to postpone the election in that constituency until the issue being canvassed in court were sorted out. Were it necessary for a decision of this case I would have taken the view that the penalty for a such flouting of an order of court would be to avoid the election in that constituency.”(Italics mine)

The remaining six justices of the Federal Court of Appeal held the view that although it was improper for the federal Electoral Commission to disregard the injunction issued against it, the contempt was a matter for the judge who issued the injunction and the Federal Court of Appeal would not nullify the electoral held at the Oranmiyan North 1 constituency since there was no such prayer in the appellant’s petition. I quite agree with this view taken by the majority of the court. The Federal Electoral Commission which committed the contempt ceased to be a party to the petition before the hearing commenced in the trial court. None of the remaining parties to the petition was guilty of the contempt. It would have been wrong therefore for the Federal Court of Appeal to visit the wrath of Lajide J. on them. In any event the point seems to me academic since there was no prayer in the appellants petition that the electoral conducted in the constituency should be nullified. The fourth ground of appeal therefore fails.

It was these reasons that I dismissed the appeal on 19th October, 1983 and awarded N300.00 costs to each of the respondents.