ALHAJI WAZIRI IBRAHIM v. ALHAJI SHEHU SHAGARI AND OTHERS (SC 94/1983) [1983] 10 (29 September 1983);

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IN THE SUPREME COURT OF NIGERIA

ON THURSDAY, THE 29TH DAY OF SEPTEMBER 1983

SC 94/1983

BETWEEN

ALHAJI WAZIRI IBRAHIM .................................................. APPELLANT

AND

ALHAJI SHEHU SHAGARI AND OTHERS ..................................................... RESPONDENTS

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

The appellant brought an election petition under the electoral Act 1982 against the Respondents at the Federal High Court challenging the return of the first respondent in the presidential Election held on 6th August 1983 and seeking the nullification of the said return and thus the election of the said first respondent.

In the petition as filed the Federal Electoral Commission was made the third respondent and the Inspector–General of Police the 4th respondent. But following an objection by the Honourable Attorney–General who appeared as Counsel to the third and fourth respondents to the joinder as parties, the trial Court struck out the third and fourth respondents’ names from the petition and the case against them was struck out.

The petition was heard by a panel of 3 Federal High Court judges headed by the Chief Judge as Chairman. The petitioner gave evidence and called witnesses who also testified at his instance. The respondents called no evidence. The election panel after hearing evidence and addresses delivered a well considered judgment dismissing the petition in its entirety.

The appellant was dissatisfied with the judgment of the Election petition panel and therefore appealed to the Court of Appeal which also dismissed the appeal. The appellant therefore further appealed to the Supreme Court.

HELD:

(1) The fact that Returning Officers amended and altered the returns exhibits C to V from 15 States does not ipso facto mean that the returning officers have not complied with sections 66(4), 66, 70 and 119 of the Electoral Act 1982. There must be evidence of indictment or of immoral, unlawful or illegal motive.

(2) There is only one return for the Presidential Election and that is contained in exhibit B. All the other exhibits referred to as return by the appellant cannot individually qualify as return for the Presidential Election as defined in sections 70 and 71 of the Electoral Act and having regard to section 126(1) of the 1979 Constitution.

(3) In view of the concurrent finding of fact by both the Federal Court of Appeal and the Federal High Court and the absence of any special circumstances establishing that justice demands a re-opening of the question of fact, this appeal must fail.

Appeal dismissed.

Cases referred to:–

(1) Lamai v. Chief Obbih 1980 5-7 SC 28.

(2) Mogo Chikwendu v. Mbamali 1980 3-4 at 31.

(3) Okunola v. Ogundiran (1961) All NLR 394.

(4) Edward Kindu Swan v. Benjamin Aio Dzunowe and Co. (1960) NMLR 297.

(5) O. Adinfosile v. J. A. Ijose (1960) 5 FSC 192.

(6) Okunola v. Ogundiran and Or. (1962) 1 All NLR 83.

(7) Enang v. Adu (1981) 11-12 SC 25.

(8) Mogo Chinwendu v. Nwanegbo Mbamali (1980) 3 SC 31.

(9) Ukpe Ibodo and others v. Enarofia and others (1980) 5-7 SC 42, 55.

Statutes referred to:–

(1) Electoral Act 1982. Section 164(1) 121(2).

(2) Evidence Act. Section 148(c).

(3) Supreme Court Rules 1977, Order 9, rule 6(5).

(4) Section 71 of the Electoral Act, 1982. Section 11, 164(1). . .

Fola Akinrinsola (with him Dr Tunji Abayomi and J.O. Ogunbode) for the Appellant.

Dr Mudiaga Odje S.A.N. (with him E.O. Ometan, Mrs T. Ekuwnah and Mr Idris Abubakar) for first Respondent.

Chief R. O. A. Akinjide S.A.N. Attorney–General of the Federation (with him F. Nwadialo, Asst. Director Litigation–-Federal Ministry of Justice) for second Respondent.

Sowemimo, J.S.C. The petitioner/appellant is dissatisfied with the judgment of the Federal Court of Appeal which confirmed the judgment of the Federal High Court and thereby dismissing his own appeal.

The petitioner in his petition set out various grounds of malpractices and corruption in the conduct of the Presidential Election. He also complained of alterations, amendments and obliterations made in at least 15 States’ election results. Unfortunately, the evidence he called in support, especially that of the 2nd, 15th and 16th witnesses disproved all these allegations. Their evidence was believed by the trial Court and confirmed by the Federal Court of Appeal. Of the other witnesses called by the petitioner, they were regarded as unreliable and therefore disbelieved by the trial Court and again confirmed by the Federal Court of Appeal.

Faced with these concurrent findings, the learned Counsel for the appellant was unable to urge any ground, legal or otherwise, why this Court should disturb the concurrent findings of fact.

Although evidence was called by the petitioner, that is, that of the 15th witness, who is the Chairman of FEDECO, and who said that the election was free and fair, and, that he scrupulously checked the returns and found them correct, the Federal High Court based its judgment on section 123 of the Electoral Act, that is, substantial compliance with electoral provisions.

The learned Senior Advocate for the first respondent and the Attorney–General of the Federation for the second respondent have drawn our attention to all the above observations. It may be pointed out, as the learned Attorney–General has drawn our attention to section 164, subsection (1) of the Electoral Act 1982, the word “return” means “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 EC.8 in the Schedule of this Act”, which is exhibit B in this appeal. No complaint has been established against it.

There does not appear to be any substance or merit in all the grounds of appeal argued on behalf of the petitioner. The appeal is hereby dismissed. The judgment of the Federal Court of Appeal is affirmed. Costs of N300 are hereby awarded to each respondent against the petitioner.

Irikefe, J.S.C. The appellant brought an election petition under the Electoral Act, 1982 against the respondents herein challenging the return of the first respondent in the Presidential Election held on 6th August, 1983 and seeking the nullification of the said return–and thus, the election of the said first respondent.

Two parties, namely (a) the Federal Electoral Commission and (b) the Inspector–General of Police were made parties to the petition initially, but were later dismissed from the petition as having been improperly joined upon objection taken by Counsel to the first and second respondents.

The petitioner/appellant in his amended petition at paragraph 10 thereof averred as follows:—

“And your petitioner says that the Presidential Election held on the 6th August, 1983 in all the States of the Federation mentioned in paragraph 3 (9) above were grossly irregularly and improperly conducted which facts were revealed to me by several of the State Chairman and Gubernatorial candidates of the said G.N.P.P. and confirmed to your petitioner by the field agents based on the following categories of malpractices perpetrated by the third respondent in collusion with the fourth respondent and/or their agents: (a) that elections in the said States were conducted without the voters’ list (b) that people who were not registered were given the chance to vote whereas in some places of the aforementioned eight States under-aged children with fake voters’ cards were allowed to vote (c) that agents of the third respondent refused to supply sufficient number of copies of Form EC8 to all polling stations in Kaduna and Niger States and to several polling stations in the other seven States (d) that the officials of the third respondent in collusion with agents of the fourth respondent refused to allow majority of polling agents appointed by me to represent me at polling booths in Niger, Kano, Kaduna, Plateau, Rivers, Borno and Gongola States.”

The above allegations, grave as they undoubtedly are, are such as may be made to question an election under section 122 (1) (b) of the Electoral Act, 1982. It reads—

“that the election was invalid by reason of corrupt practices or non-compliance with the provisions of Part II of this Act.”

The appellant’s Counsel, Mr Fola Akinrinsola, admitted in the course of argument before us that his case rested on electoral malpractices and non-compliance with the provisions of Part II of the Electoral Act, which should result in the nullification of the election. The return in the case is exhibit B and the amended return which dealt with results from Gongola State wherein the votes scored by the presidential runner-up was enhanced is exhibit B1. This enhancement or revision, which improved slightly on the performance of the appellant as I shall show presently, is relied upon as unauthorised interference to be treated as an electoral malpractice carrying with it the penalty of nullification.

As could be seen from exhibit B the first respondent scored a total of 12,047,648 votes nation-wide while the appellant did so with 640,928. After the revision the first respondent scored 12,081,471 nation-wide while the appellant did so with 643,805. It would be seen, therefore, that the appellant as stated above had slightly improved upon his performance nation-wide. The reason for the revision is stated in the evidence of the FEDECO Chairman (the 15th witness) and there appears to be no controversy on this testimony. Again, while the first respondent scored 384,978 or 48.60% of the total votes cast in Borno State, the home state of the appellant, as per the revised result, the appellant only made 179,265 or 24.96 percent of the total votes.

The framers of our 1979 Constitution in the fullness of their wisdom deliberately entrenched therein a provision which would put behind the reach for all time, the highest executive office in the land, to wit: the presidency, or any aspiring politician of a recognised political party whose political support, as in the case of the appellant here, does not spill over to other states so as to ensure a vote-spread of 25 percent in at least 13 states. The appellant even failed, albeit marginally, to attain this spread in his home state. He did not make it in any other state either.

One strange aspect of this case is that apart from the ipse dixit of the appellant, and this did not amount to much by way of admissible credible evidence, the totality of the evidence relied upon in proof of the serious allegations carried earlier in this judgment is the testimony of: PW2 GAMBO GUBIO, the Executive Secretary of FEDECO and the Chief Federal Electoral Officer of the Federation who is the second respondent, PW15–HON. JUSTICE VICTOR OVIE-WHISKEY–The Chairman of FEDECO and PW16–MORRIS ASUQUO NYA, the Returning Officer of the Federation who actually declared the first respondent as duly elected in the election the subject of this petition. As would be expected in such a situation, these witnesses as it were helped the petitioner to disprove all the allegations he had sought to rely upon. In other words the petitioner with his eyes wide open pulled down brick by brick, the edifice he had erected. The result of this poor strategy was that the Federal High Court had no difficulty in arriving at the conclusion, which it did, that this petition had not been proved-and in dismissing it. Thereafter the aggrieved petitioner took his case to the Court of Appeal where he fared no better.

In the appeal to this Court, the appellant is faced with two concurrent findings of fact against him and the attitude of this Court when such a situation arises may be found in our decisions in Lamai v. Chief Orbih (1980) 5-7 SC 28 and Mogo Chikwendu v. Mbamali (1980) 3-4 SC 31. This court would always be loathe to disturb two concurrent findings of fact against an appellant. No new issue was raised on behalf of the appellant to warrant such a disturbance.

It is not disputed that only one return is contemplated within the intendment of section 71 of the Electoral Act, 1982 and that exhibit B in this case, is such a return. A return to an election will not be voided if it appears to any court hearing the petition that challenges the return that there was substantial compliance with the provisions of Part II of the Electoral Act. (See section 123(1) of the Electoral Act.) This is that part of the Act relied upon by the appellant and which deals with electoral malpractices. The word used in the section is substantial, which does not carry the same clout as absolute compliance. It is significant, however, that the witness called by the appellant put at rest any lingering doubts that one might have had by stating under oath that insofar as this election was concerned, the provisions of the Act were scrupulously complied with. With the foregoing record of performance, it does not seem to me to lie in the mouth of the appellant to shout “FOUL” against the first respondent. While it may be conceded that the appellant was entitled to have his day in court, a clear vindication of the resilience of our democratic institutions, the judiciary inclusive, the evidence available to him was palpably unreliable as to reduce the proceedings to a farce.

This appeal is clearly unmeritorious and I would dismiss it. Appeal dismissed and the decisions and orders of the two lower courts are affirmed, I would also adopt the order as to costs made in the judgment of my learned brother, SOWEMIMO, J.S.C.

Bello, J.S.C. The appellant was an unsuccessful candidate for the election to the office of the President of the Federal Republic of Nigeria held on 6th August 1983 at which the first respondent Alhaji Shehu Shagari, was returned as having been duly elected to the office in accordance with the provisions of section 126(2) of the Constitution of the Federal Republic of Nigeria 1979 in that he had a majority of the votes cast at the election and he had not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the states in the Federation.

The appellant presented a petition in the Federal High Court complaining about the election and the return. The substance of his complaints averred in the amended petition is that in Borno, Gongola, Kano, Kaduna, Benue, Plateau, Niger, Cross River, River and Imo States the election was conducted without the voters register; that some registered voters were not allowed to vote while people who had not been registered were allowed to do so; that under-aged children with fake voters’ cards were allowed to vote; that the officials of the Federal Electoral Commission in collusion with the police prevented the polling agents appointed by the appellants from performing their duties at the polling booths and at the counting centres; that in many polling stations no votes had been cast but that the results were declared in favour of the first respondent; that ballot boxes were illegally stuffed with ballot papers and that there was widespread rigging and blatant electoral malpractices in the conduct of the elections; that statements of results and returns on Form EC8 and other forms were fraudulently prepared and mutilated by the agents of second respondent, the Chief Federal Electoral Officer of the Federation and the Federal Electoral Commission.

On account of the aforementioned alleged irregularities and malpractices, the appellant prayed the Federal High Court to invalidate the election of the first respondent by reason of non-compliance with the provisions of Part II of the Electoral Act 1982 and to order the second respondent and the Federal Electoral Commission to hold a fresh Presidential Election throughout the Federation.

At the hearing of the petition, 23 witnesses including the appellant testified for the appellant. In its well considered judgment, the trial Court rejected the evidence of all the witnesses other than four whom it believed as reliable witnesses. The evidence of the three reliable witnesses, namely Alhaji Gambo Gubio the Executive Secretary of the Federal Electoral Commission (PW2), Justice Ovie-Whiskey the Chairman of the Federal Electoral Commission (PW15) and Mr Asuquo Nya the Returning Officer for the Federation (PW16), did not assist the petitioner at all. Instead of proving his case, their evidence disproved all the allegations contained in the petition and completely demolished the very basis of the petition. The totality of their evidence is that none of the serious irregularities and malpractices complained of ever took place in the conduct of the election; that all the election returns from all the states of the Federation from which the result of the poll was collated by the Returning Officer for the Federation in exhibit B were authentic; that the election was conducted scrupulously in accordance with the provisions of the Electoral Act and the Constitution and that it was free and fair.

Mohammed Kuru Goni (PW 21) was the fourth reliable witness who testified that he was the Presiding Officer at the polling station BO/15/5/E in Maiduguri, Borno State and when he delivered the result, which was 81 votes for the G.N.P.P. the political party of the appellant and 62 voters to the N.P.N. the political party of the first respondent, to the Electoral Officer at the collation centre the officer asked him to falsify the result by adding figure 1 in the N.P.N. result to read 162 votes. The witness said when he refused to do so, the officer ordered a police man to beat him out of the centre. The witness left the result with the Returning Officer and ran away. The trial Court found that there is no evidence that the result in question was in fact falsified and it further held that, even if the said result had been falsified, it would not affect the validity of the election since the first respondent had scored 12,047,648 votes while the petition had only 640,928 votes when the result of the poll was declared.

Upon the preponderance of the foregoing evidence, particularly coming from the lips of the petitioners’ witnesses, the trial Court had no alternative other than to dismiss the petition. It would not surprise any reasonable tribunal that the Federal Court of Appeal also dismissed the petitioner’s appeal to that court.

Although 7 grounds of appeal were strenuously canvassed in his brief and oral argument before us, it appears to me there is no serious issue on any question of law for determination in this appeal. An election may be invalidated upon the grounds specified by sections 122 and 123 of the Electoral Act 1982, which provides:

“122

(1) An election may be questioned on any of the following grounds that is to say—

(a) that a person whose election is questioned was, at the time of the election, not qualified to be elected;

(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of Part II of this Act;

(d) that the petitioner was validity nominated but was unlawfully excluded from the election.

(2) An act or omission which is contrary to any instruction or direction of the Commission or any officer appointed for the purpose of the election, but which is not contrary to Part II of this Act shall not of itself be a ground upon which an election may be questioned.

123

(1) An election shall not be invalidated by reason of non-compliance with Part II of this Act if it appears to the court having cognisance of the question that the election was conducted substantially in accordance with the provisions of the said Part II and that the non-compliance did not affect the result of the election.”

In his petition, the appellant questioned the election on the ground of the second limb of section 122(1)(b) i.e. alleging non-compliance with the provisions of Part II of the Act and also on the ground of section 122(1)(c) alleging that the first respondent was not duly elected by majority of lawful votes at the election. The petitioner’s witnesses not only failed to prove his case but the three witnesses, namely PW2, PW15 and PW16 proved the contrary. Their evidence established that the election had been conducted in scrupulous compliance with the Act and that the first respondent was duly elected by majority of lawful votes at the election.

That being the case, I consider the question which learned Counsel for the appellant has urged us to decide as to whether in an election petition the law requires allegation of facts amounting to criminal offences to be proved beyond reasonable doubt in accordance with the provisions of section 137(1) of the Evidence Act or to be proved within the balance of probability does not arise. Furthermore, I consider irrelevant the decision in Okunola v. Ogundiran (1961) All NLR 394 upon which learned Counsel heavily relied on the alleged alteration of the election return. In that case after one candidate had been declared successful at the election, the Returning Officer realised that he had made an arithmetical mistake which he corrected in the return and declared another candidate as the winner. The court held that under the law that governed that particular election the Returning Officer, having declared the first candidate as duly elected, had no power to amend the return and declare the second candidate as the winner on the ground the power to do so was vested in the court. The court then exercised its power in favour of the second candidate. In the case in hand the Returning Officer for the Federation did not alter the result of the poll, exhibit B, and did not declare two candidates as having been duly elected. The amendment of exhibit B made by the Chairman of the Federal Electoral Commission (PW15), exhibit B1, did not affect the result of the election and no other candidate than the first respondent was declared as having been duly elected on account of the amendment which was caused by the late arrival of returns from some constituencies in Gongola State.

All the other grounds of appeal canvassed are devoid of merit. I agree the appeal should be dismissed with costs as awarded by Sowemimo, J.S.C.

Obaseki, J.S.C. The appellant, Alhaji Waziri Ibrahim, was a candidate for election to the office of President of the Federal Republic of Nigeria held on the 6th day of August, 1983. He was not the only candidate but one of the 6 candidates that ran for the election. He was sponsored by the Great Nigeria Peoples’ Party (G.N.P.P.) an association registered as a political party under the provisions of the section 79 of the Electoral Act 1982. The other candidates were:

(1) Alhani Shehu Shagari sponsored by the National Party of Nigeria (N.P.N.).

(2) Chief Obafemi Awolowo sponsored by the Unity Party of Nigeria (U.P.N.).

(3) Dr Nnamdi Azikiwe sponsored by the Nigeria People’s Party (N.P.P.).

(4) Alhaji Hassan Yusuf sponsored by the Peoples’ Redemption Party (P.R.P.).

(5) Mr Tunji Braithwaite sponsored by the Nigeria Advance Party (N.A.P.).

The election was conducted and supervised by the Federal Electoral Commission of which Alhaji Gambo Gubio is the Executive Secretary. Alhaji Gambo Gubio is also the Chief Electoral Officer of the Federation and the second respondent in this appeal. He was also the Chief Returning Officer at the Presidential Election on the 6th of August, 1983 who returned the first respondent as duly elected to the office of President of the Federal Republic of Nigeria. Following the declaration of the result of the election, i.e. by reading aloud the completed certificate of return, the appellant filed his petition in the Federal High Court, Lagos challenging the return and complaining generally about the conduct of the election throughout the 19 States. This is more particularly highlighted in paragraph 3 of the amended petition as follows:

“And your Petitioner states that the Presidential Election held on the 6th of August, 1983 in Kaduna, Ondo, Ogun, Oyo, Lagos, Bendel, Sokoto, Anambra, Borno, Benue, Kano, Gongola, Bauchi, Kwara, Plateau, Niger, Rivers, Cross River and Imo States (hereinafter referred to as “all the states of the Federation”) are irregular, unconstitutional, invalid and void on the grounds:

(1) That the election was avoided by reason of substantial irregularities and corrupt practices and the failure to comply substantially with the provisions of Part II of the Electoral Act 1982 particulars of which are enumerated in the facts contained in this petition,

(b) That the first respondent was not duly elected or returned by the lawful votes cast in Kaduna, Benue, Kano, Borno, Gongola, Lagos, Pateau, Niger, Rivers, Cross River, Imo, Ogun, Oyo, Ondo, Bendel, Bauchi, Sokoto, Anambra and Kwara States in that the majority of the votes cast to elect or return the first respondent were unlawful.

(c) That voting was suspended in Zaria, Kaduna State, Calabar and Eket in Cross River State for several hours and a day respectively and very many registered voters who had come in the interval to cast their votes could not do so and they had to return to their distant and scattered homes in the rural areas and creeks.

(d) That the third respondent amended the Presidential Election return in respect of Gongola State without an order of court.”

Paragraph 23 contains further material allegations and reads:

“And your petitioner says that part of the irregularities and malpractices that were executed by the respondents particularly the third and fourth respondents in all the States of the Federation include the following amongst others:

(a) In many polling stations voting did not commence until 4:00 pm on 6th August, 1983 so that many voters of the G.N.P.P. who held cards did not find their names on the lists available in most of the stations;

(b) polling officers were no where to be found;

(c) polling agents of the G.N.P.P. who made themselves available at the respective stations were cleared out with horsewhips with the connivance of the agents of the third and fourth respondents;

(d) in several rural areas of Cross River, Borno and Gongola States, the returning officers influenced voters against the said G.N.P.P.;

(e) ballot papers were tampered with;

(f) statement of result and schedule of total valid votes account forms EC8, and other forms of the third respondents were fraudulently prepared, irregular and sometimes unsigned and invariably manipulated by the agents of the second and third respondents to the disadvantage and loss of your petitioner. These documents and other related documents are hereby pleaded especially those used in numerous polling booths in many parts of Borno, Gongola and other States of the Federation;

(g) illegal alteration and amendment of results declared by the second and third respondents without an order of court which gives credence to a fact of malpractice and irregularity.”

Paragraph 24 which alleges non-performance against the Federal Electoral Commission reads:

“And your petitioner says that the third respondent failed generally to perform the duties imposed on it by law and in particular did not, as it was bound to do, make necessary arrangement to ensure that voters were able to cast their votes or that the said Presidential Election was free and fair.”

Paragraph 27 which made a serious allegation against second respondent reads:

“And your petitioner says that the result of the Presidential Election of the 6th of August, 1983 as certified by the third respondent and announced by the Returning Officer and/or the second respondent were falsified or manipulated by the second and third respondents or their agents, servants or privies in various areas within each of the nineteen states of the Federation.”

The appellant concluded his petition with 4 prayers that

(1) it may be determined that the said Alhaji Shehu Shagari was not duly returned in Kaduna, Benue, Kano, Borno, Gongola, Lagos, Plateau, Niger, Rivers, Cross River, Imo, Ogun, Oyo, Ondo, Bendel, Bauchi, Sokoto, Anambra and Kwara States and that his return was void; and

(ii) that it may be determined that the election of the 1st respondent, Alhaji Shehu Shagari was invalid by reason of non-compliance with the provisions of Part II of the Electoral Act 1982 and was not duly elected by a majority of lawful votes cast in all the states in the Federation in accordance with section 126 of the Constitution of the Federal Republic of Nigeria 1979;

(iii) that the second and third respondents be ordered to arrange for a fresh Presidential Election to be held in Kaduna, Benue, Kano, Borno, Gongola, Lagos, Plateau, Niger, Rivers, Cross River, Imo, Ogun, Oyo, Ondo, Bendel, Bauchi, Sokoto, Anambra and Kwara States in accordance with the provisions of the Electoral Act 1982 and the Third Schedule Part 1(c) of the Constitution of the Federation Republic of Nigeria 1979;

(iv) that it may be determined that the second respondent is not entitled to declare a presidential candidate as being duly elected unless in accordance and/or compliance with section 70 and 71 of the Electoral Act 1982.

In the petition as filed, the Federal Electoral Commission was made the third respondent and the Inspector–General of Police the 4th respondent. But following objection by the Hon. Attorney–General, Chief Richard Akinjide, who appeared as Counsel to the third and fourth respondents to the joinder as parties, the trial Court struck out the third and fourth respondents’ names from the petition and the case against them was struck out. The petition was heard by a panel of three Federal High Court judges headed by the Chief Judge as Chairman.

The petitioner gave evidence and called witnesses who also testified at his instance. Among those who testified at the instance of the petitioner were the 2nd respondents (PW2) and the Chairman of the Federal Electoral Commission (PW15) Mr Justice Victor Ovie-Whiskey–The respondents called no evidence.

The election panel after hearing evidence and addresses delivered a well considered judgment dismissing the petition in its entirety.

The court (Anyaegbunam, C.J., Belgore and Sowemimo, JJ.) observed, commented and found inter alia:

“From the oral evidence before us, we do not find any evidence of substantial irregularities or corrupt practices or non-compliance substantially with the provisions of Part II of the Electoral Act. . . The petitioner has alleged in his petition a lot of what he regarded as irregularities in the election, in the return and in the announcement of the result. We viewed and pondered on the evidence adduced in support. We are of the firm opinion that they are not cogent enough to sustain the prayer. We believe that the election was conducted substantially accordance with the provisions of Part II of the Electoral Act 1982. See section 123 (1) of the Act. See also the case of Edward Kundu Swem v. Benjamin Ako Dzungwe and Co. (1966) NMLR 297 cited to us by Chief Akinjide, S.A.N.

The Federal High Court Election Panel examined the case of O. Akinfosile v. J.A. Ijose (1960) 5 FSC 192 on the onus of proof where non-compliance with the current Election Laws and Election Rules is alleged and held:

“We wish to point out that the case of Akinfosile v. Ijose (supra) was decided on its own facts and the pleadings delivered therein. As already observed, once a petitioner establishes non-compliance and the court or other tribunal cannot say whether or not the results of the election could have been affected by such non-compliance, the election will be avoided. . . Proof that a party to an election petition has committed an election offence must be proved beyond reasonable doubt. This has not been proved in the instant petition (See Bala Kaffi v. Isa (1965) NNLR 7.) We have made it abundantly clear that the petitioner has not made out a case to entitle him to the Decree he prays for. We in the result dismiss the petition.”

Aggrieved by the above decision of the Federal Court Election Panel, the petitioner appealed to the Federal Court of Appeal. His complaints were contained in the 10 grounds of appeal set out in the notice of appeal filed. In his brief filed by his Counsel, the issues for determination set out were:

(1) Whether or not the second respondent by his agents to wit, returning officers, could alter, amend or obliterate election returns from the state without an order of court.

This was the main issue arising from the amendments to the result of the poll declared state by state. Counsel also raised 5 additional issues classified as subsidiary issues.

(2) Was the Federal High Court right in not giving separate consideration to the prayers and grounds of the petitioner as stipulated distinctively in sections 149 and 122 respectively of the Electoral Act 1982?

(3) Did it make any difference to the admissibility, weight and materiality of the documentary evidence tendered by the second and 16th witnesses in relation to the subject matter of the petitioner notwithstanding the fact that it was the petitioner that called them?

(4) Is section 132(1) of the Electoral Act 1982 not unconstitutional having regard to sections 33, 237, and 258 amongst others of the 1979 Constitution in that it inhibits and fetters the constitutional power and jurisdiction of the Federal Court of Appeal to hear and determine the petition fairly and within a reasonable time?

(5) Was the lower court right in not granting leg 4 of the petitioner’s prayer despite overwhelming evidence in support of the claim?

(6) Was the lower court right in striking out the third and fourth respondents when as the petitioner contended they are a necessary party?

The Federal Court of Appeal (Nasir, P., Kazeem, Ademola, Nnaemeka-Agu, Mohammed, Karibi-Whyte and Sulu Gambari, JJ.C.A.) heard the appeal and on the main issue unanimously dismissed the appeal.

Ademola, J.C.A. delivering the lead judgment on the issue of joinder of the Federal Electoral Commission (Nasir, P., Kazeem, Nnaemeka-Agu, Mohammed and Sulu Gambari, JJ.C.A. concurring but Karibi-Whyte dissenting) observed and held:

“I now deal with the question of joining the Federal Electoral Commission, (FEDECO) the third respondent at the trial as a party. . . the appellant’s submission on section 121(2) of the Electoral Act 1982 on this issue is that since that provision did not say that no other person should be joined besides those mentioned in section 121(2) of the Act therefore FEDECO could be joined. This is bad logic and bad law. The rule of construction is expressio unius est exclusio alterus or put in another way expressum fact cessare tacitum (that which is expressed puts an end to that which is silent). What is expressed in section 121(2) of the Act puts an end to what any rule of court may say about joinder of parties in this type of action generally. . . It is my view that FEDECO cannot be joined as a party in an election petition.”

On the returns exhibits B and B1; exhibits C to X and exhibits C5 to C6 which the appellant dealt with at length the learned Justice of the Federal Court of Appeal, Ademola, J.C.A., said (Nasir, P., Kazeem, Nnaemeka-Agu, Mohammed, Karibi-Whyte and Sulu Gambari concurring) observed and commented as follows:

“While not disputing the fact that it is the appellant that called the witnesses who tendered them, the appellant’s Counsel cannot quarrel with the conclusion the court rightly reached on the exhibits and the testimony of those witnesses. . . The lower court has, in my view, rightly arrived at the right conclusion when it said on these aforementioned exhibits thus:

‘The Returns as stated above were tendered by the petitioner through his witnesses PW2 Gambo Gubio who incidentally is the second respondent. The petitioner never questioned the genuineness of the Returns. We accept them as genuine. The alteration in some of the Returns were done in the normal course of business. See section 148(c) of the Evidence Act cited by Chief Akinjide, S.A.N. There are some alterations in exhibits C to X. The amended figures have been confirmed on oath by the petitioner’s witnesses as correct. These amended figures are in the returns. There is no evidence that the returns were read before the alterations or amendments were made. It is significant to note that there was no suggestion by the petitioner or his witnesses that these alterations were forgeries. On the contrary, the witnesses called by the petitioner on this issue testified that all documents were perfect and in order.’

On exhibits B and B1. . . The principle of law decided in Okunola v. Ogundiran (1961) All NLR p.394 is hardly applicable to those exhibits.”

On the issue of non-compliance with Part II of the Electoral Act Ademola, J.C.A. observed, commented and held (Nasir, P., Kazeem, Nnaemeka-Agu, Mohammed, Karibi-Whyte and Sulu Gambari, JJ.C.A. concurring)

“Finally it does not appear to me that the appellant has challenged seriously in his grounds of appeal and the brief filed on his behalf the findings of fact eminently made by the court below which said thus:

‘We would like to state that from the oral evidence before us, we do not find any evidence directly or vicariously through an agent of any act done or undone by the 1st respondent which in any way amounted to an irregularity or a malpractice. There is no evidence also of any direct act of irregularity or malpractice against the second respondent and we do not find any connection between the act of the Electoral Officer who asked the 21st witness to alter a figure and the second respondent. We cannot say the second respondent instructed him to do what he was alleged to have done. From oral evidence before us we do not find any evidence of substantial irregularities or corrupt practices or non-compliance substantially with the provisions of Part II of the Electoral Act’

That being the position, I am of the firm view that this appeal lacks merit and must be dismissed.”

The petitioner was not satisfied with the decision of the Federal Court of Appeal and appealed to this Court on 8 grounds of appeal. He prays this Court to set aside the judgments of the Federal Court of Appeal and the Federal High Court and grant all his prayers contained in his petition.

The appellant’s Counsel filed a brief of argument on the appellant’s behalf and relied on his brief. The second respondent also filed a reply brief. The 1st respondent did not file a reply brief but on the application of his Counsel Dr Odje the court decided to hear any submission he may wish to make orally in exercise of our powers under Order 9, rules 6(5) and 8 of the Supreme Court Rules 1977.

The principal question for determination in this appeal is, according to the appellant’s Counsel, Mr Akinrinsola:

“Whether a Returning Officer or an Assistant Returning Officer as an agent of the second respondent or any other official of the Federal Electoral Commission can amend, alter or obliterate Returns of figures contained in Returns described in the exhibits admitted in this petition as Form EC. 8B–Declaration of Result of Poll Presidential Election, without a High Court order by way of an election petition in accordance with sections 65(4), 66, 68, 70 and 119(1) of the Electoral Act, 1982, and under the principle laid down by the Supreme Court in the case of Okunola v. Odgundiran and another (1962) 1 All NLR 83.”

Learned Counsel also raised the 5 additional questions raised before the Court of Appeal.

The findings of the two courts below, in my opinion, were overwhelming and formidable. When facts necessary to establish a case are absent and the court so holds, all the issues of law formulated and raised fall to pieces and become non-issues. Nothing said so far by Counsel either in his brief or at the oral hearing has led me to have the view that the learned Justices of the Federal Court of Appeal and the learned Judges of the Federal High Court erred in their assessment of the evidence of findings of fact and the application of the law.

The findings of fact by the two courts below have not been shaken and no ground has been established for this Court to interfere with the findings of fact.

With regard to the exercise of power by the court to invalidate an election on grounds of non-compliance, I need to draw attention to the express provision of section 123 (1) of the Electoral Act 1982. It reads:

“An election shall not be invalidated by reason of non-compliance with Part II of this Act if it appears to the court having cognizance of the question that the election was conducted substantially in accordance with the provisions of the said Part II and that the non-compliance did not affect the result”

The appellant must by evidence have proved (1) non-compliance with Part II of the Act and (2) that the non-compliance affected the result. In other words, he must prove that the non-compliance affected the results to his disadvantage.

As said earlier, the Federal High Court Election Panel found, quite rightly, a total absence of any evidence of substantial irregularities or corrupt practices or substantial non-compliance with the provisions of Part II of the Electoral Act to warrant the grant of the appellant’s prayer. The Federal Court of Appeal agreed with the findings.

I myself have not been persuaded from giving my concurrence to the findings.

It should be borne in mind that courts do not decide questions that have no relevance to the facts. In the absence of facts to which the law can be applied, the courts will not embark on the exercise. Courts are established to decide cases based on real and actual facts not to pontificate on imagined or hypothetical facts.

The facts found by the two courts below are a negation of the existence of the complaints the appellant made in his petition and the repetition of the complaints a hundred times does not amount to proof of the facts to attract the sympathy of the courts.

It would appear that the appellant holds a contrary view of the evidence of the PW2 and PW15, i.e. Gambio Gubio and Hon. Victor Ovie-Whiskey, respectively the Secretary and Chairman of the Federal Electoral Commission.

An amended document by itself does not speak of the motive behind the amendment. Without more, an altered or amended document is as genuine as an unamended one. Therefore, the admission of exhibits C to V, the returns from the states form which exhibits B and B1 were collated without any evidence to add a sting to the innocent amendment appearing on some of them offers no help to the case of the appellant.

I find myself therefore unable to accept the submission of the learned Counsel for the appellant that because returning officers amended and altered the returns exhibits C to V from 15 States that fact ipso facto means that the returning officers have not complied with sections 65(4), 66, 70 and 119 of the Electoral Act 1982. There must be evidence of indictment or of immoral, unlawful and illegal motive.

There is only one return for the Presidential Election and that is contained in exhibit B. All the other exhibits referred to as returns by the appellant cannot individually qualify as return for Presidential Election as defined in sections 70 and 71 of the Electoral Act and having regard to section 126(1) of the 1979 Constitution. Even on the face of exhibit B which was the return read or declared, there is no alteration on the face of it. Falsification is quite different from mere alteration. It presumes the existence of a genuine return and a false return. I can therefore find no merit in this appeal.

In view of the concurrent findings of fact by both the Federal Court of Appeal and the Federal High Court earlier referred to and set out in this judgment, and the absence of any special circumstances establishing that justice demands a re-opening of the question of fact, this appeal must fail and I hereby dismiss it. See Enang v. Adu (1981) 11-12 SC 25; Mogo Chinwendu v. Nwanegbo Mbamali (1980) 3 SC 31; Ukpe Ibodo and others v. Enarofia and others (1980) 5-7 SC 42, 55.

The appellant will pay the first and second respondents costs in this appeal assessed at N300.00 each.

Eso, J.S.C. This appeal of Alhaji Waziri Ibrahim, the presidential candidate for the Great Nigeria Peoples Party in the 1983 Presidential Election from the decision of the Federal Court of Appeal is based on eight grounds of appeal.

That court has dismissed his appeal from the decision of the Federal High Court which sat as a panel of three (Anyaegbunam C.J., Belgore and Sowemimo JJ) on his petition, which complained against the Presidential Election. The appellant had alleged that the Presidential Election which was held on 6th August, 1983 contained such substantial irregularities as to render the election unconstitutional and void. The grounds for his complaint as stated by the appellant are—

“(a) that the election was avoided by reason of substantial irregularities and corrupt practices and the failure to comply substantially with the provisions of Part II of the Electoral Act 1982 particulars of which are enumerated in the facts contained in this petition.

(b) that the 1st respondent was not duly elected or returned by the lawful votes cast in Kaduna, Benue, Kano, Borno, Gongola, Lagos, Plateau, Niger, Rivers, Cross River, Imo, Ogun, Oyo, Ondo, Bendel, Bauchi, Sokoto, Anambra and Kwara States in that the majority of votes cast to elect or return the 1st respondent were unlawful.

(c) that voting was suspended in Zaria, Kaduna State, Calabar and Eket in Cross River State for several hours and a day respectively and very many registered voters who had come in the interval to cast their votes could not do so and they had to return to their distant and scattered homes in the rural areas and creeks.

(d) that the third respondent amended the Presidential Election return in respect of Gongola State without an order of court.”

In regard to the conduct of the election the appellant complained—

“(10) AND Your Petitioner says that the Presidential Election held on the 6th August, 1983 in all the states of the Federation mentioned in paragraph 3 (9) above were grossly irregularly and improperly conducted which facts were revealed to me by several of the State Chairman and gubernatorial candidates of the said G.N.P.P. and confirmed to Your Petitioner by the field agents based on the following categories of malpractices perpetrated by the third respondents in collusion with the four respondent and/or their agents: (a) that election in the said states were conducted without the voters’ list; (b) that people who were not registered were given the chance to vote whereas in some places of the aforementioned eight states under-aged children with fake voters’ card were allowed to vote; (c) that agents of the third respondent refused to supply sufficient number of copies of Form EC.8 to all polling stations in Kaduna and Niger States and to several polling stations in the other seven states; (d) that the officials of the third respondent in collusion with agents of the four respondent refused to allow majority of polling agents appointed by me to represent me at polling boots in Niger, Kano, Plateau, Kaduna, Rivers, Borno and Gongola States.

It would seem that the allegations of the appellant were very weighty indeed, but as would be seen anon, to prove these weighty allegations as they obviously appear to be, the appellant relied upon the evidence of the very people he complained of to wit:

(1) the second respondent who gave evidence as the second petitioner’s witness: the second respondent was the Executive Secretary of FEDECO.

(2) Victor Erereko Ovie-Whiskey who is the Chairman of FEDECO and who said in evidence that the whole FEDECO is subject to his control; and

(3) Morris Asuquo Nya who was Returning Officer for the Presidential Election.

The appellant thus put forward these people, against whom he complained heavily, as credible witnesses. He neither treated them as hostile witnesses throughout the hearing of the petition nor did he in his address pray the court not to believe them. I will refer to some portion of the evidence of these witnesses presently insofar as the complaints of the appellant are concerned but how the appellant could have thought he would prove allegations especially while some of them are criminal, against his adversaries by calling those very adversaries–indeed the most important of them–as his allies and witnesses remains to me still unfathomable.

A court of law can only decide issues on the evidence put before that court. The rules governing the procedure in the court are so elementary when it comes to presentation of evidence. Hence the person who alleges, presents his witnesses who give evidence in chief, that is as per the case he intends to put forward; the witnesses are cross-examined so as to put the case of the defendants across and also to test whether or not the witnesses are witnesses of truth. Indeed, during cross-examination the defendant is at liberty to put as many questions as are material to his case. He could even be “cross” with the witness in his examination as the word “cross-examination” implies. There could thereafter be re-examination to put right any adverse points wrongly elicited during the cross-examination.

However, in this case though the appellant alleged:

(a) that the election in the states were conducted without voter’s list;

(b) that people who were not registered were given chance to vote and under-aged children with fake voters’ cards were allowed to vote;

(d) that officials of FEDECO refused to allow majority of polling agents to represent him at polling booths, his witnesses, the highest officials of FEDECO, contradiction all these averments. The second petitioner’s witness, Gubio, who is the Executive Secretary of FEDECO in giving evidence for the appellant said everything went on well in the Presidential Election. He said the exhibits complained of were authentic, that the result of elections in Borno, Oyo, Anambra were correct, that agents were not driven away, ballot papers not tampered with thus destroying the major complaints of the appellant. Ovie-Whiskey, on behalf of the appellant, said the figures were checked and were in order, that he gave his approval before the announcement and that he scrupulously complied with the Electoral Act while Asuquo Nya said that all the forms were authenticated by the Executive Secretary.

It remains a mystery why the appellant preferred to call witnesses to destroy his own case! This made it easy for the High Court to find that the evidence led was not cogent enough to sustain his prayer. The Federal Court of Appeal, as per Ademola, J.C.A., in a concurring finding on the facts said—

“the appellant’s Counsel cannot quarrel with the conclusion the court rightly reached on the exhibits and the testimony of those witnesses.”

In this Court the learned Counsel for the appellant, Mr Fola Akinrinsola has not, in fairness to him, sought to impugn the concurrent findings on the facts as we did point to him the indiscretion of relying on his adversaries to prove allegations against themselves.

He however made a heavy weather both in his brief and oral submissions before us of what he referred to as the principal question for determination in this appeal that is

“whether a Returning Officer or an assistant officer as an agent of the second respondent or any other official of the Federal Electoral Commission (FEDECO) can amend, alter or obliterate returns or figures contained in returns described in the exhibits admitted in this petition as ‘Form EC.8B–Declaration of Result of Poll: Presidential Election’ without a High Court order by way of an election petition in accordance with sections 65(4), 66, 68, 70 and 119(1) of the Electoral Act 1982 and under the principle laid down by the Supreme Court in the case of Okunola v. Ogundiran And another.”

Now, what learned Counsel referred to as returns are exhibits C-V. They are in fact the results of the election from the various states. They record scores from state constituencies whereas exhibit B1 records totals of scores from the nineteen states and Abuja. exhibit B is the corrected version of exhibit B1 wherein the figure for Gongola State had been corrected.

Mr Akinrinsola has submitted, and relying on the judgment of this Court in Okunola v. Ogundiran (1962) 1 ALI NLR 83, that the Returning Officer has no right except with the order of the court to alter a return. Now what this Court decided in that case, is that a Returning Officer would be wrong to make a second return after the first one as the proper way to question the first return was by a petition to the High Court.

I will apply that case to this matter before us. The word “return” has been defined in section 164 of the Electoral Act 1982 No. 8 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 EC.8 in the Schedule to this Act.”

It is my view that the result of the election is in exhibit B and exhibit B1. It was by exhibit B1 that the 1st respondent was declared as winning the election. Exhibits C to V are not “the return.” They are statements from various states to prepare the return that is exhibit B1.

I will hold that on the authority of Okunola v. Ogundiran (supra), a second return cannot be made except by a petition to the High Court.

Any declaration of result made after exhibit B1 is invalid. If a declaration has been made even in exhibit B it would to my mind have been invalid.

But both exhibit B1 and exhibit B have declared the 1st respondent as elected. In other words, insofar as the exhibits have not made different returns, no harm has been done.

This in fact is the crux of the case of the appellant and there is no merit whatsoever in his complaint. The other complaints, which are whether or not there has been proof beyond reasonable doubt and joinder of FEDECO hardly arise. There could be no proof of the appellant’s case either beyond reasonable doubt or in the balance of probabilities with the aid of the evidence of his adversaries. Though I am inclined to the view that in this case FEDECO could be joined notwithstanding the provisions of 121 (2) of the Electoral Act and in this regard I agree with the views expressed by Karibi-Whyte, J.C.A., this has no effect on the result of this appeal.

It is sad, very sad indeed, that what started as very serious allegations have been so presented to give an appearance as if the appellant himself was not serious about his case.

The appeal is hereby dismissed with costs assessed at N.300.00.

Nnamani, J.S.C. The petitioner/appellant, Alhaji Waziri Ibrahim, was one of the 6 candidates who on August 6, 1983 contested election to the office of President of the Federal Republic of Nigeria. On 11th August, 1983 the Returning Officer of the Federation, Mr Maurice Asuquo Nya, declared the 1st respondent winner as per exhibit B tendered in these proceedings. As per that exhibit the 1st respondent winner as per exhibit B tendered in these proceedings. As per that exhibit the 1st respondent polled 12,047,648 (with more than 25 percent of the votes cast in 16 states of the Federation) as against 640,928 by the petitioner and not up to 25 percent in any State of the Federation.

The petitioner, apparently dissatisfied with the said results, filed a petition in the Federal High Court, Lagos pursuant to sections 119, 121, and 122 of the Electoral Act, 1982. It is pertinent to mention that in his amended petition the petitioner complained in paragraph 3(a) as follows:—

“your petitioner states that the Presidential Election held on the 6th of August 1983 in Kaduna, Ondo, Ogun, Oyo, Lagos, Bendel, Sokoto, Anambra, Borno, Benue, Kano, Gongola, Bauchi, Kwara, Plateau, Niger, Rivers, Cross River and Imo States (hereinafter referred to as “all the states of the Federation”) are irregular, unconstitutional, invalid and void on the grounds:—

(a) that the election was avoided by reason of substantial irregularities and corrupt practices and the failure to comply substantially with the provisions of Part II of the Electoral Act 1982 particulars of which are enumerated in the facts contained in this petition.”

In the allegation to support his petition, the petitioner complained of extensive rigging by agents of the second and third respondents. He also made several other serious allegations ranging from corrupt practices to voting by young children, chasing out of his polling agents from polling booths, his polling agents not being allowed into the counting centres, absence of polling officers from several polling booths, voting without voting registers etc. It is also pertinent at this stage to mention that in the further and better particulars which he filed allegations of incidents which were alleged to have taken place in various parts of the Federation were stated.

At the trial before the Presidential Election Panel of the Federal High Court, the petitioner gave evidence and called 23 witnesses, significantly and fatally for reasons which will appear hereinunder, including the second respondent, the Chairman of the Federal Electoral Commission and the Returning Officer of the Federation. The Federal High Court by a unanimous verdict dismissed his petition on 5th day of September, 1983. Not satisfied with that judgment the petitioner appealed to the Federal Court of Appeal. That court again by a unanimous verdict delivered on 22nd September, 1983 dismissed his appeal. Still not satisfied with this decision, the petitioner has now appealed to this Court.

In approaching this appeal, and before dealing with the petitioner’s grounds of appeal, it seems to me necessary to emphasise the point that the petitioner’s complaints seem to centre around alleged non-compliance with Part II of the Electoral Act 1982. Part II encompasses sections 19-73 of the Electoral Act dealing with such matters as returning officers and their assistants, poll clerks, nomination, ballot boxes, ballot papers, polling agents, polling stations, counting of votes and declaration of results. But section 123 subsection 1 of the Electoral Act 1982 provides as follows:—

“An election shall not be invalidated by reason of non-compliance with Part II of this Act if it appears to the court having cognisance of the question that the election was conducted substantially in accordance with the provisions of the said Part II and that the non-compliance did not affect the result of the election” (Italics mine).

As was rightly submitted by the learned Attorney–General of the Federation, Chief R.O. Akinjide, S.A.N. (for the second respondent) the court is the sole judge and if it is satisfied that the election has been conducted substantially in accordance with Part II of the Act it will not invalidate it. The wording of section 123 is such that it presumes that there will be some minor breaches of the regulations but the election will only be voided if the non-compliance so resulting and established in court by credible evidence is substantial. Further the court will take into account the effect if any which such non-compliance with the provisions of Part II of the Electoral Act 1982 has had on the result of the election.

This Court had cause to construe a similar provision (section III in Part IV of the Electoral Decree, 1977) in Chief Obafemi Awolowo v. Alhaji Shehu Shagari (1979) 6-9 SC 51 at 68 and 110-114. From that consideration, the duty to satisfy the court having cognisance of the question that a particular non-compliance with the provisions of Part II of the Electoral Act which he has averred in his petition, lies on the petitioner.

It is against this background that the petitioner’s eight grounds of appeal must be considered. In grounds one, two and three Mr Fola Akinrinsola, learned Counsel to the petitioner complains about the alterations and amendments made in exhibits B1, and C-X. Exhibit B is the sheet on which the presidential result was declared pursuant to section 71 of the Electoral Act 1982 while exhibit B1 contains the same result except that there are alterations therein. Exhibits C-V are the result sheets from the individual states of the Federation. Mr Akinrinsola was of the view that both the results from the states and the Result in exhibit B are returns within the meaning of section 164(1) of the Electoral Act 1982. He submitted in respect of the alterations that returning officers or assistant returning officers as agents of the second respondent have no power to amend or obliterate election results without an order of the High Court in accordance with provisions of the Electoral Act. He relied on sections 65, 66, 68, 70 and 119 1) of the Electoral Act, 1982 and the decision of this Court in Okunola v. Ogundiran (1962) 1 All NLR Part 1 83. He contended that because the returning officers amended the returns in 15 states i.e. exhibits C-V they have not complied with the provisions of the Electoral Act referred to above and these exhibits are therefore irregular and invalid. In his submission this would amount to substantial non-compliance with Part II of the Electoral Act.

“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 EC.8 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 purpose 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 any obliteration or amendment on exhibit B. Not much cognisance ought to be taken of exhibit B1, 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. But even if the petitioner’s Counsel’s contention were conceded and exhibits C-V were treated as returns, his case of substantial non-compliance would still not succeed. This is in the main due to the evidence before the trial Court of the second respondent which evidence that Court accepted. The second respondent who tendered exhibits C-X and who was erroneously in my view called as his witness by the petitioner, explained those alterations and amendments as having been made in the course of official duties.

See section 148(c) of the Evidence Act. He also stated that the documents in question are authentic and the he was satisfied with them. It is also pertinent to mention too that the Chairman of the Federal Electoral Commission, Justice Victor Ovie-Whiskey who was also called by the petitioner as his witness said of the same documents

“I checked and gave my approval before announcement. The Returning Officers were present when I checked. I was satisfied with exhibit B in view of the supporting document.”

Although learned Counsel has continued to insist that he called the two witnesses referred to “to lay bare the facts of alterations, amendment, obliterations, falsifications and manipulation before the lower court to enable it to arrive at a proper impartial and legal conclusion and decision on the real issues in controversy” and that the subsequent evidence of these two witnesses cannot validate the unlawful act of the returning officers in amending exhibits C-X, yet I cannot see how he can approbate and reprobate. For these reasons I would agree with the observation of the trial Court (which was also accepted by the Federal Court of Appeal) when in their judgment they dealt with the documents in question in these words

“There are some alterations in exhibits C-X. The amended figures have been confirmed on oath by the petitioner’s witnesses as correct. These amended figures are in the returns. There is evidence that the returns were read before the alterations or amendments were made. It is significant to note that there was no suggestion by the petitioner or his witnesses that these alterations were forgeries. On the contrary the witnesses called by the petitioner on this issue testified that all the documents were perfect and in order. For some inexplicable reason the petitioner decided to call the second respondent and the Chairman of Federal Electoral Commission Justice Victor Ovie-Whiskey as his witnesses of truth and presented them to us as such.”

Nor is the case of Okunola v. Ogundiran (supra) of any assistance to the petitioner. As Dr Mudiaga Odje, S.A.N., learned Counsel to the first respondent rightly pointed out, the case is clearly inapplicable here. That was a case in which there were two inconsistent returns of two candidates because the Returning Officer had made an arithmetical error in the counting of votes and had returned the wrong candidate. When he discovered the error, the Returning Officer declared the other candidate returned. This Court decided that if an arithmetical error is discovered after the Return has been made, the Returning Officer cannot make a second return. Any such subsequent return would be invalid. In the case in hand, there was no question of returning two candidates nor were there two inconsistent returns. Nobody was returned on exhibit B1. What was involved in the relevant exhibits were no more than corrections. Those grounds of appeal must therefore fail.

Grounds five, six, seven and eight were really not argued before us and although learned Counsel to the petitioner dealt with them in his brief, I do not, with respect, see much substance in them to justify his complaint against the decision of the Federal Court of Appeal on them except that with respect to the issue of standard of proof required, I am inclined to the view that proof of the averments on a preponderance of evidence would suffice. If of course there are specific allegations of definite criminal offences such as that children under age voted (which would be a criminal offence) the standard required would be proof beyond reasonable doubt though not beyond any shadow of doubt. See Aiyedun T.Jules v. Raimai Ajani (1980) 5-7 SC 96 at 115-116.

Finally in ground eight, the petitioner complains about weight of evidence which is no more than a complaint about the lower courts’ findings of facts. The petition has very little ground on which to so complain. There are concurrent findings of fact by the Federal High Court and the Federal Court of Appeal and the petitioner has not persuaded me that there is any basis on which this Court can interfere with those findings. It is well settled that where there is sufficient evidence to support concurrent findings of fact the higher court ought not to interfere Kofi v. Kofi 1 WACA 284. See also Enang and others v. Adu (1981) 11-12 SC 26 at 41, 42.

If it were possible for this Court to interfere I do not see how the findings of fact could have been otherwise than as found by the Federal High Court and affirmed by the Federal Court of Appeal. The evidence led in the trial Court by the petitioner in support of the serious allegations referred to above and in support of his contention that there was substantial non-compliance with Part II of the Electoral Act 1982 was poor and inadequate in the extreme. Although the petitioner alleged corrupt practices as defined by section 164 of the Electoral Act 1982 he did not lead a shred of evidence to substantiate it. Moreover, though he averred that the allegations of irregularities and malpractices extended to all the states of the Federation he led evidence in only Borno, Gongola, Cross River, Sokoto, Kaduna and Plateau States. Furthermore, it would have been physically impossible for the petitioner to have called witnesses to substantiate the detailed averments in his further and better particulars e.g. allegations about late start of the poll, absence of poll officers from particular polling stations etc. having regard to the time constraints and he ought to have known this. As already indicated such evidence as he had was discredited and not accepted by the trial Court. The situation appears to have been compounded by the three witnesses called by the petitioner as indicated earlier in this judgment. For instance as against the testimony of the petitioner and some of his witnesses that there were irregularities and malpractices in the Presidential Election amounting to substantial non-compliance with Part II of the Electoral Act, Justice Ovie-Whiskey a witness of the petitioner, said in cross-examination

“I scrupulously complied with the Electoral Act and the Constitution which applied. All electoral materials were sent to all the states. We sent more. We made provisions for run-off election which did not come off. All the polling stations had voting register. . . I am satisfied that elections were free and fair as the Chairman of the FEDECO.”

Although it seems fairly obvious it needs emphasis that courts of law can only decide issues in controversy between parties on the basis of the evidence before them. It would be invidious if it were otherwise.

In all these circumstances, I am satisfied that this appeal lacks substance and ought to be dismissed. It is hereby dismissed. I also affirm the judgment of the Federal Court of Appeal dated 22nd September, 1983. The order for costs is as contained in the judgment of the learned Presiding Justice Sowemimo, J.S.C.

Uwais, J.S.C. The appellant and the first respondent were candidates in the Presidential Election that took place on 6th, August, 1983. The first respondent was declared winner of the election. The appellant therefore filed a petition in the Federal High Court against, among others, the first and second respondents. In the petition the appellant averred that the election was “irregular, unconstitutional, invalid and void” for the following reasons:

“(a)”That the election was avoided by reason of substantial irregularities and corrupt practices and the failure to comply substantially with the provisions of Part II of the Electoral Act, 1982 particulars of which are enumerated in the facts contained in this petition.

(b) That the 1st respondent was not duly elected or returned by the lawful votes cast in Kaduna, Benue, Kano, Borno, Gongola, Lagos, Plateau, Niger, Rivers, Cross River, Imo, Ogun, Oyo, Ondo, Bendel, Bauchi, Sokoto, Anambra, and Kwara States in that the majority of votes cast to elect or return the first respondent were unlawful.

(d) That the third respondent amended the Presidential Election return in respect of Gongola State without an order of court.”

At the hearing of the petition by the trial Court the appellant testified and called some twenty-three witnesses, one of whom was the second respondent. The defence (i.e. first and second respondent) did not call evidence but rested their cases on the evidence adduced by the appellant.

In considering the evidence the trial Court rejected the testimony of the appellant. It also rejected the evidence of most of the members of the appellant’s party–the Great Nigeria Peoples Party (G.N.P.P.)–and those it regarded as having affinity with him. However, the trial Court accepted the testimonies of the official witnesses who were the second respondent (PW2), the Chairman of the Federal Electoral Commission, Hon. Victor Ovie-Whiskey (PW15) and the Returning Officer for the Federation, Mr Maurice Asuquo Nya (PW16). I propose to quote the observations made by the trial Court on the evidence of these official witnesses. It said with regard to the testimony of the second respondent—

“As we have stated this was the petitioner’s witness and he must have been put forward as a witness of truth. He admitted some alterations in the exhibits he tendered but explained that many were done by the returning officers and that he was satisfied with the documents and their contents. He was adamant on cross-examination about his satisfaction with the figures in exhibits C-X (State Results Sheets) and that the election on the whole was free and fair. The petitioner did not put any incident of irregularity or malpractice to him. So, his evidence remained unchallenged. We have no cause to disbelieve his evidence and we accept it. We accept that he was satisfied that the conduct of the election was free and fair.”

On the testimony of PW15 it stated:

“He testified that insofar as the Presidential Election was concerned, after the figures of all the States and Federal Territory results had been added up, by the Returning Officers of Deputy Returning Officers and duly signed by either of them, the results were passed to him and he had checked them and found them to be in order. . . He said that results from states were being sent by telex, radio and in some cases by hand and later comprehensive results were sent by hand. He was satisfied with exhibit B (i.e. Form EC.8B–Declaration of Poll) in view of the supporting documents. It (i.e. exhibit B) was the final result when it was read on 11th August, (1983) but it was later slightly amended on his instruction on the following day when Gongola’s State’s figure arrived and he discovered that Chief Obafemo Awolowo had scored just over 25 percent of the votes. The earlier result was announced without that one of Gongola Constituency (sic) as that result would not materially affect the overall result. Exhibit M was the final Gongola result.

When cross-examined by Counsel for first respondent, the witness stated that in the discharges of his duty he complied with the provisions of the Electoral Act and those of the Constitution.

Under cross-examination by Counsel for second respondent, the witness stated that more than enough materials were sent to the states as there were materials sent should there be a run-off of the presidential and gubernatorial elections. . . The petitioner’s witness also did not give any evidence of irregularity or malpractice but evidence of normalcy and excellence. We have no reason to doubt him and we accept his evidence.”

And it said this in respect of PW22:

“This witness called by the petitioner did not confirm any of the allegations in the petition. He was not treated as a hostile witness and we believe and accept his testimony.”

Finally, the trial Court concluded its review of the evidence called by appellant with the following remarks:

“We would like to state that from the oral evidence before us we do not find any evidence directly or vicariously through an agent of any act done or undone by the first respondent, which in any way amounted to an irregularity or malpractice. There is no evidence also of any direct act of irregularity or malpractice against the second respondent and we do not find any connection between the act of the Electoral Officer who asked the 21st witness to alter a figure and the second respondent. We cannot say the second respondent instructed him to do what he was alleged to have done. From oral evidence before us we do not find any evidence of substantial irregularities or corrupt practices or non-compliance substantially with the provisions of Part II of the Electoral Act. (Italics mine).

Subsequently the petition was dismissed with costs. The appellant being dissatisfied with the decision of the Federal High Court appealed to the Federal Court of Appeal. That appeal was dismissed in a lead judgment delivered by Ademola, J.C.A. with which other members of the court concurred (Nasir, P., Kazeem, Nnaemaka-Agu, Karibi-Whyte and Sulu-Gambari, JJ.C.A.). Hence the present appeal. Eight grounds of appeal were filed. However the appellant’s brief of argument summarised the questions for determination to be as follows:

(1) “Whether a Returning Officer or an Assistant Returning Officer as an agent of the second respondent or any officer of the Federal Electoral Commission can amend, alter or obliterate returns or figures contained in returns described in the exhibits admitted in the petition as ‘Form EC 8B–Declaration of Result of Poll: Presidential Election’ without a High Court order by way of an election petition in accordance with sections 65(4), 66, 70 and 119(1) of the Electoral Act, 1982 and under the principle laid down by the Supreme Court in the case of Okunola v. Ogundiran and another (1962) 1 All NLR 83.”

(2) “Were the Federal High Court and the Federal Court of Appeal right in not giving separate consideration to the prayers and grounds of the petitioner as stipulated distinctively in sections 149, 125 and 122 respectively of the Electoral Act, 1982?”

(3) “Did it make any difference to the admissibility, weight and materiality of the documentary evidence tendered by the 2nd and 16th witnesses in relation to the subject matter of the petition, notwithstanding the fact that it was the petitioner that called them?”

(4) “Was the lower court right in not granting leg four of the petitioner’s prayer despite overwhelming evidence in support of the claim?”

(5) “Was the lower court right in striking out the third and fourth respondents with the concurrence of the majority members of the Court of Appeal panel when as the Petition contended they are necessary parties?”

I think the first point to be determined is: what is a “return?” Mr Akinrinsola learned Counsel for the appellant had referred to exhibits B to X, which are the statement of the votes counted state by state, as returns. Now by section 164 of the Electoral Act, 1982 the word “return” is said to mean:

“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 EC.8 in the Schedule to this Act.”

The word “election” has also a prescribed meaning which is given in section 164 of the Electoral Act, 1982. It is defined as:

“an election of a person to a Legislative House or to the office of President or Vice-President or Governor or Deputy Governor.

By the provisions of section 124 subsection (4) of the Constitution of the Federal Republic of Nigeria, 1979 the whole country is one constituency for the purpose of an election to the office of the President. Therefore there can only be a single return for the purpose of the declaration of the result of the Presidential Election. The various statements of votes cast in the states, that is to say exhibits C to X, do not qualify as returns and it is a misnomer to refer to them as such. There was evidence, which was accepted by the trial Court, that exhibits C to X were altered in some respect by the returning officers in the states of the Federation. Learned Counsel for the appellant has submitted that by virtue of the provisions of sections 65(4), 66, 68, 70 and 119(1) of the Electoral Act, 1982 no Returning Officer or his Assistant can properly alter or amend or question any entry in his returns except by a petition to a court of law. Of the sections of the Electoral Act relied upon for this submission I can only find section 65 (4) to be apposite. The section reads:

“65–

(4) The decision of the Returning Officer on any question arising in respect of a ballot paper shall be subject to review only in proceedings before a court of law by way of election petition instituted in accordance with the provisions of this Act.”

It seems to me that section 65 (4) is not saying that a Returning Officer has no right to alter or amend a statement of results (such as exhibits C to X) but rather that whatever decision he takes in that regard can only be challenged in a court of law. It is conceivable that the occasion may genuinely arise when a statement of votes cast may of necessity be altered or amended. For instance where a mistake in arithmetic is discovered during the counting of the votes or when a recount is made under section 68 of the Electoral Act, 1982.

Since the sections of the Electoral Act relied upon by the learned Counsel for the appellant do not avail him it will be necessary to consider the ratio decidendi in Okunola v. Ogundiran and another (1962) 1 All NLR 82 to see if it applies to exhibits C to X in the present case. It was not decided in that case that a Returning Officer should not make another return after a recount, where he has already declared a candidate the winner of the election. It is to be noted that, that case was concerned with a “return” and not a statement of votes cast in part of a constituency, which exhibits C to X are. I am therefore of the opinion that the decision in Okunola v. Ogundiran and another does not apply to exhibits C to X.

It remains to consider the alterations made in exhibit B1. The evidence of the alteration made was given by the Chairman of the Federal Electoral Commission–PW15. He said that exhibit B was first made and the result of the Presidential Election was declared. However later the correct figure in respect of Gongola State was received and the new figure raised the votes of one of the candidates, namely Chief Obafemi Awolowo, to 25 percent of the total votes for Gongola State. He therefore directed that a new return be made by the Returning Officer PW16 to reflect the correct result received from Gongola State. This was done in exhibit B1. The appellant has complained that on the authority of Okunola v. Ogundiran and another it was wrong to alter the return and that only a court of law can order the alteration. The decision in Okunola’s case was based on the provisions of Regulation 46 of the Western Region of Nigeria Electoral Regulations, 1960 (WRLN 227). The provisions of sections 70 and 71 of the Electoral Act, 1982 are in pari materia with those of Regulation 46 of the Western Region of Nigeria Electoral Regulations, 1960.

It is significant to mention that exhibits B and B1 are not the same as Form EC.8 which is prescribed in the Schedule to the Electoral Act, even though they are marked Form EC.8B. Exhibits B and B1 contain more details than Form EC.8. They have a column with the names of the 19 states specified, a column for the total votes cast in each state, names of the presidential candidates and their parties and a column for each candidate showing how many votes he received in each state and the percentage received of the total votes cast. So that exhibits B and B1 are not the Form EC.8 prescribed by the Act. In light of the difference between Form EC.8 and exhibits B and B1 can it really be said that exhibits B and B1 were “returns” as defined by section 164 of the Electoral Act? Since exhibits B and B1 were made for the purpose of declaring results I am of the view that they qualify as “returns.”

Now to return to the decision in Okunola’s case. I think the facts of that case are distinguishable from those of the present case. In the former the return was altered to declare another candidate, different from the one previously declared, as winner. In the present case the alteration did not alter the winner previously so declared. That is to say the 1st respondent remained the winner despite the alteration. The distinction notwithstanding I think it was palpably wrong for the Returning Officer to alter exhibit B by making exhibit B1. I am in saying so following the decision of the Federal Supreme Court in Okunola’s case.

Next the appellant complained that both the Federal High Court and the Federal Court of Appeal failed to consider the admissibility and the weight to be given to the documentary evidence put through the 2nd, 15th and 16th witnesses for the appellant since the facts of alterations, amendment, obliterations, falsifications and manipulation of the documents were proved. I am afraid I do not think, apart from the evidence of the alteration made to exhibits B to X, that any other allegation of alteration, obliterations or falsification was proved. Although the trial Court found that the alteration made in exhibits B-X were made, it accepted, on the evidence of the witnesses, that they were made in good faith.

It was also contended that the Federal High Court was wrong in striking out the Federal Electoral Commission and the Inspector–General of Police from the case as 3rd and 4th respondents respectively and that the Federal Court of Appeal was in error to uphold the decision. I think there is substance in this complaint. Section 121 subsection (2) of the Electoral Act provides:

“(2) In any petition, the respondent to such petition shall be—

(a) the successful candidate, and

(b) the Chief Federal Electoral Officer of the Federation where the petition relates to the election of the President or Vice-President; or

(d) . . .and where a petition complains of the conduct of a Returning Officer, he shall for all purposes be deemed to be a respondent.”

It is clear that although the provisions of section 121 subsection (2) provide the list of those who must be made parties to a petition the list is by no means exhaustive. The provisions do not specifically say that only the functionaries so mentioned should exclusively be respondents to a petition. There may well be other instances where a functionary intermeddles with the functions of another functionary mentioned under section 121(2). In such event it may well be necessary to join the intermeddler as a respondent. And as the other rules of court apply to election petitions by virtue of section 128 subsection (2) of the Electoral Act 1982, occasions may well arise, within the ambit of the Civil Procedure Rules of the High Court concerned, where a party, other than those mentioned in section 121(2), can become a necessary party to the petition. I am therefore of the opinion that it was wrong to strike out the Federal Electoral Commission and the Inspector–General of Police from the petition.

Now, by section 123 subsection (1) of the Electoral Act, 1982—

“(1) An election shall not be invalidated by reason of non-compliance with Part II of this Act if it appears to the court having cognisance of the question that the election was conducted substantially in accordance with the provisions of the said Part II and that the non-compliance did not affect the result of the election.”

By the rejection of the evidence of the appellant and the witnesses called by him at the trial, except the evidence of PW2, PW15 and PW16, the appellant failed to prove the allegations of substantial non-compliance with Part II of the Act as averred in his petition. It is true that he successfully proved the alterations made in exhibits B-X. But that in itself is not sufficient to effect the result of the election, since the alterations were not shown to have been made fraudulently. Furthermore, the alteration made in exhibit B is saved by the provisions of section 123 subsection (1) of the Electoral Act and I do not see how the inclusion of the Federal Electoral Commission and the Inspector–General of Police as respondents could have enhanced the appellant’s case as pleaded in the petition.

There had been concurrent findings of fact in the lower courts that the appellant did not prove the facts alleged and on principle this Court will not interfere with the findings unless there are special circumstances to warrant the interference–Enang and others v. Adu (1981) 11-12 SC at 38-40. The appellant has not shown that such circumstances exist in this case.

Accordingly, I see no reason to interfere with the decision of the Federal Court of Appeal. The appeal therefore fails and it is hereby dismissed with costs as proposed in the judgment of my learned brother Sowemimo, J.S.C.

Nigeria LII

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