Chief Akin Omoboriowo & Ors V. Chief Michael Adekunle Ajasin (1984)
LawGlobal-Hub Lead Judgment Report
BELLO, J.S.C.
At the election to the office of Governor of Ondo State held on 13th August 1983, the returning officer returned Chief Omoboriowo, hereinafter referred to as the 1st respondent, as having won the election. Chief Ajasin, hereinafter referred to as the petitioner, who was one of the unsuccessful candidates at the election filed a petition in the High Court, Ondo State complaining against the return.
He joined the 1st respondent and the Chief Electoral Officer for Ondo State, hereinafter referred to as the 2nd respondent, as the respondents. The ground for the petition was that the 1st respondent was not duly elected by a majority of lawful votes at the election but that the petitioner was duly elected by a majority of the lawful votes and that he ought to have been returned.
The High Court which consisted of five judges unanimously gave judgment for the petitioner by declaring that the 1st respondent was not duly elected or returned and that the petitioner was duly elected and ought to have been returned. The respondents appealed to the Federal Court of Appeal which by a split decision of 5 to 2 dismissed their appeal. The respondents further appealed to this Court.
I think, I may deal summarily with the issues of jurisdiction of the trial court and admissibility of the documentary evidence tendered by the petitioner at the trial which were vigorously canvassed at the hearing of the appeal before us.
The issue on jurisdiction arose because before he exercised his power under section 119(3) of the Electoral Act 1982 to determine the number of judges that should constitute the court for the hearing of the petition, the Chief Judge of Ondo State made two orders for security for costs and substituted service. It was contended that since the orders had been made before the trial court was constituted, there was no valid petition before the court. In my reasons for judgment in Nwobodo v. Onoh & 2 Ors. SC.96/1983 delivered this morning I considered the same issues extensively and concluded that by virtue of the provisions of sections 237 and 238 of the Constitution a single judge has jurisdiction to make the orders.
For better understanding of the issue on admissibility of the documentary evidence and the determination of the appeal on the merits, it is pertinent to state the procedure laid down by the Federal Electoral Commission for counting votes and their collations. The trial court so ably summarised the procedure in these terms:
“First, is the procedure from the close of poll to the declaration of results as emerged from the evidence. The evidence of the petitioner’s witnesses is to the effect that after the close of polls, the presiding officer at each polling station would count the votes polled by each candidate in the presence of the political party counting agents in accordance with section 62 of the Electoral Act 1982. He would enter the number of votes scored by each candidate in a form provided for this purpose and sign it.
The candidates or polling agents present would sign to testify to the correctness of the figures and would be given copies.
Thereafter, the results are taken to the collation centre for the constituency.
Here the results brought by presiding officers are submitted to the assistant returning officer (hereinafter called A.R.O.) who, in the presence of party counting agents present, would enter them into a large sheet prepared for that purpose called Form EC8B. He would add up the figures for each candidate in the presence of the agents and enter the results, that is, the total number of votes scored by each candidate, on another form, namely, Form EC40J headed ‘Schedule of Total Valid Votes,’ or sometimes Form EC8A which is ‘Statement of Results’ or both. Where there are no printed forms available, he would type out the results or otherwise improvise a form for the result. The assistant returning officer would read out the results to the hearing of the agents and others present. He would sign and stamp it and the agent would then sign the result as correct. He then gives a copy to the agents of each political party and to the police and representative of the N.S.O., if any.
The next stage is the collation at the local government level. The assistant returning officers from all the constituencies in the local government would submit their collated results as contained in their large sheet Form EC8B and also the summary contained in Form EC8A above to the deputy returning officer (hereinafter referred to as D.R.O.) at the local government collation centre. He adds up the scores of each candidate in all the constituencies of the local government and enters the respective totals in a Form which he stamps and signs and makes other copies of the result. Some used Form EC8A and where none is available they type out the results. These are countersigned by the party agents, and a copy is given to the agents of each political party and to the police and N.S.O. if present.”
The returning officer declared the result of the election as the sum total of the collated results submitted to him by the deputy returning officers. There was no dispute in respect of the total votes scored by the parties in ten local government areas. The petitioner had 885,311 while the 1st respondent had 413,469 votes.
The dispute related to the votes in the seven local government areas, namely Ekiti South, Ekiti West, Idanre/Ifedore, Ifesowapo and Ikale.
In proving his case at the hearing of the petition, the petitioner through his witnesses who were his collating agents and officials of the Federal Electoral Commission, with some assistant returning officers and coordinators, tendered their copies of the results collated by the assistant returning officers for all the constituencies in the seven disputed local government areas. The trial court admitted the documents and relied on them in reaching its decision. The Federal Court of Appeal upheld their admissibility. The issue on the admissibility of the documents was also raised before us. In my reasons for judgment in Nwobodo v. Onoh (Supra) I held the documents, though described under sections 62 and 70 of the Electoral Act as “copies”, to be primary evidence and admissible. It is not necessary to expatiate.
In reaching its decision, the trial court applied the ordinary standard of burden of proof in civil proceedings which is for the plaintiff to prove his case within the balance of probability. The Federal Court of Appeal rejected the contention that the burden of proof on the petitioner under the circumstances of the case was proof beyond reasonable doubt. The same issue was taken before us. It was submitted that because paragraphs 5, 7, 9(i), 9(iii),9(v). 9(iv), 12(i), 12(iii), 12(iv), 13(i), 13(iii), 13(iv), 14(i), 14(iv), 14(v), 15(i), 15(vi), 16(i). 16(iv), 16(v), 18(i), 18(iv). 18(v), 19(i), 19(iv). 19(v), 20(i), 20(v), 20(vi), 21(i), 21(iv), 21(v), 25 and 26 of the petition made allegations of crimes against the 2nd respondent his servants or agents, the petitioner had invoked section 137(1) of the Evidence Act and he had to prove the allegations of the crimes beyond reasonable doubt.
Again, in my reasons for judgment in Nwobodo v. Onoh (Supra), I considered fully the scope of section 137(1) of the Evidence Act and its application to the pleadings of a particular case as qualified by the principle of severance of pleadings as demonstrated in Nwankwere v. Adewunmi (1967) N.M.L.R. 45 at 48 and Arab Bank v. Ross (1952) Q.B.D. 216 at 229.
In the case in hand, at the close of his case during the hearing of the petition, the petitioner abandoned the allegations of crimes. It follows therefore that in so far as the petition was founded on those allegations it must be dismissed. However, if the averments alleging crimes against the 2nd respondent were excised from the petition, there still remained in the body of the petition sufficient averments without putting directly in issue the commission of a crime by a party to sustain the petition. I think, it is essential for better appreciation of the issue to set out the averments relevant to the areas in dispute in the petition stripped of its allegations of crimes. When severed the petition reads:
“1. Your petitioner, Michael Adekunle Ajasin is a person who voted at the above election and claims to have had a right to have been returned or elected and was a candidate at the above election.
- And your petitioner states that the election was held on the 13th day of August 1983 when the 2nd respondent has returned Chief Akin Omoboriowo, the 1st respondent as being duly elected.
- Chief Akin Omoboriowo was, at the time of the election, not duly elected by a majority of lawful votes at the election.
- Chief Michael Adekunle Ajasin received a total of 1,652,795 of the votes case in all the 17 local government areas of Ondo State and received 25% or more in more than two thirds of all the local government areas in the state, whilst Chief Akin Omoboriowo received a total of 421,401 votes.
PARTICULARS
LOCAL CHIEF % Of CHIEF
GOVERNMENT AJASIN TOTAL OMOBORI
OWO
AKOKO NORTH 122,943 90.84% 7,912
AKOKO SOUTH 45,712 79.49% 8,958
AKURE 120,750 92.34% 8,008
EKITI CENTRAL 115,684 60.36% 71,955
EKITI EAST 76,898 73.88% 23,472
EKITI NORTH 120,384 75.28% 33,377
EKITI SOUTH 54,194 69.15% 19,006
EKITI SOUTH WEST 38,210 41.82% 52,069
EKITI WEST 142,130 87.82% 18,089
ERO 153,971 76.31% 46,180
IDANRE/IFEDORE 85,920 91.98% 5,718
IFESOWAPO 106,015 95.07% 3,725
IJERO 53,681 66.89% 24,578
IKALE 109,500 77.66% 26,270
ILAJE ESE ODO 107,517 65.119% 54,897
ONDO 124,238 95. 84% 3,519
OWO 75,048 82.275% 13,659
TOTAL VOTES 1,652,795 77.84% 421,401
12.The petitioner avers in respect of the results announced for Ekiti East Local Government Areas as follows:
(ii) The petitioner received a total of 76,898 votes whilst the 1st respondent received 23,472 votes, but the petitioner avers that –
(a) In the Ekiti East II constituency, the petitioner received a total of 29,281 votes whilst the 1st respondent received a total of 3,839 votes as evidenced by the Schedule of Valid Votes Form EC40J issued by the returning officer for the said constituency;
(b) In Ekiti East constituencies I and III the petitioner received a total of 47,617 lawful votes whilst the 1st respondent received a total of 19,633 votes, but no Schedule of Valid Votes Form EC40J was, to the knowledge of the petitioner, issued by the respective returning officers for each said constituency but the petitioner will rely upon the statement of Result of Poll Form EC8A issued by the presiding officers in respect of each of the polling stations in the said constituencies I and III;
13.The petitioner avers in respect of the results announced for the Ekiti North Local Government Area as follows:
Constituency Petitioner 1st Respondent
EKITI NORTH I 31,253 6,390
EKITI NORTH II 30,220 14,705
10 EKITI NORTH III 34,721 10,375
EKITI NORTH IV 24,190 1,907
120.384 33,377
and the petitioner will rely on the Statement of Poll Form EC8A issued by the assistant returning officer for each of the four constituencies as well as the Collated Local Government Area Result issued by the deputy returning officer for the local government area.
14.The petitioner avers in respect of the results announced for the Ekiti South Local Government Area as follows:
(ii) The petitioner received a total of 54,256 lawful votes whilst the 1st respondent received a total of 19,318 votes and the petitioner further avers that there was no polling at Ekiti Sourth IV because of violence which erupted in the town, but the petitioner avers that in each of constituencies I, II, III and V the petitioner and the 1st respondent received votes as follows –
Constituencies Petitioner 1st Respondent
EKITI SOUTH I 4,622 1,889
EKITI SOUTH II 8,744 5,407
35 EKITI SOUTH III 10,201 4,614
EKITI SOUTH V 30.689 7,408
TOTAL 54.256 19,318
(iii) The petitioner will rely on the Schedule of Valid Votes Form EC40J issued by the respective returning officers for each of constituencies I, II, III and V of the Ekiti South Local Government Area.
16.The petitioner further avers in respect of the results announced for the Ekiti West Local Government Area as follows:-
(ii) The petitioner further received a total of 142,130 lawful votes whilst the 1st respondent received a total of 18,098 votes and the petitioner further avers that in each of the constituencies the petitioner and the 1st respondent received votes as follows:-
Constituency Petitioner 1st Respondent
EKITI WEST I 11,160 2,627
EKITI WEST II 42,381 3,825
EKITI WEST III 36,208 5,155
EKITI WEST IV 17,555 2,918
EKITI WEST V 34,826 3,573
TOTAL 142.130 18.098
(iii)The petitioner will rely on the Schedule of Total Valid Votes Form EC40J issued by the deputy returning officer for the local government area as well as the Declaration of Result of Poll Form EC8 issued by each of the returning officers for Constituencies I-V.
- The Petitioner avers in respect of the results announced for the Idanre/Ifedore Local Government Area as follows –
(ii) The petitioner received a total of 85,920 lawful votes whilst the 1st respondent received a total of 5,718 votes, and the petitioner further avers that in each of the four constituencies the petitioner and the 1st respondent received votes as follows –
Constituency Petitioner 1stRespondent
IDANRE/IFEDORE I 13,298 2,127
IDANRE/IFEDORE II 9,528 1,820
IDANRE/IFEDORE III 40,364 1,241
IDANRE/IFEDORE IV 22,730 530
TOTAL 85.920 5,718
(iii) The petitioner will rely on the Schedule of Valid Votes Form EC40J issued by each of the returning officers for each of the four constituencies and the collated results for the whole of the Idanre/Ifedore Local Government issued by the deputy returning officer for Idanre/Ifedore Local
Government consisting of Constituencies I, II, III and IV.
19.The petitioner avers in respect of the results announced for the Ifesowapo Local Government Area as follows:
(ii) The petitioner received a total of 106,015 lawful votes whilst the 1st respondent received 3,725 votes and the petitioner avers that in each of the three constituencies the petitioner and the 1st respondent received votes as follows –
Constituency Petitioner 1st Respondent
IFESOWAPO I 50,598 1,725
IFESOWAPO II 26,631 885
IFESOWAPO III 28.786 1,115
TOTAL 106.015 3,725
(iii) The petitioner will rely on the Declaration of Result of Poll Form EC8B, the Schedule of Total Valid Votes Form EC40J and the Statement of Result of Poll issued by each of the returning officers for the three constituencies, and the Schedule of Total Valid Votes and Statement of Result of Poll issued by the deputy returning officer for the Ifesowapo Local Government.
(iv)The petitioner will rely on the Polling Station Form EC8A for Constituencies II and III.
- The petitioner avers in respect of the results announced for the Ikale Local Government Area as follows:
(ii) The petitioner received a total of 109,500 lawful votes whilst the 1st respondent received 26,270 votes and the petitioner avers that in each of the five constituencies the petitioner and the 1st respondent received the votes following –
Constituency Petitioner 1st Respondent
IKALE I 23,591 1,777
IKALE II 20,175 1,965
IKALE III 14,448 5,076
IKALE IV 15,118 6,779
IKALE V 15,303 7,036
TOTAL 109.500 26,270
(iii)The petitioner will rely on the Statement of Result of Poll Form EC8A and Schedule of Total Valid Votes Form EC40J issued by the returning officer for each of the constituencies and Form EC8A Statement of Result of Poll issued by the deputy returning officer for the Ikale Local Government Area.
- The 2nd respondent has wrongfully declared the 1st respondent, Chief Akin Omoboriowo to be duly elected and wrongly declared him to have received 1,288,981 votes and at the same time wrongly declared petitioner, Chief Adekunle Ajasin to have received 1,015,385 votes.”
From the foregoing the trial court was entitled to deal with the petition as a claim in a civil action in accordance with the provisions of section 129(1) of the Electoral Act and to apply the standard of proof within the balance of probability in its determination of the petition. The Federal Court of Appeal rightly, in my view, endorsed the stance of the trial court.
Applying the principle stated in Mogaji v. Odofin (1978) 4 S.C. 91 at 93 and Woluchem v. Gudi (1981) 5 S.C. 291 at 306, the trial court with meticulous care reviewed, evaluated and assessed the evidence adduced by the parties in respect of the results in dispute for the seven local government areas and made these specific findings of facts:
(1) For Ifesowapo Local Government, the petitioner had produced documentary evidence all along the line from the receipt of the results from the presiding officers showing the petitioner had received 106,015 votes while the 1st respondent had 3,725 votes;
(2) For Idanre/Ifedore Local Government, the evidence for the petitioner established how the figures for each constituency had been obtained and collated and there was a continuous chain of events leading to the final figures which were 85,920 votes for the petitioner and 5,718 votes for the 1st respondent.
On the other hand, the witnesses for the respondents showed no basis for their final figures;
(3) In respect of Ekiti North Local Government, the evidence for the petitioner was quite cogent and consistent and related directly to the results obtained from the polling booths that the petitioner had scored 120,384 votes and the 1st respondent had 33,377;
(4) For Ekiti West Local Government, that the evidence of the petitioner’s witnesses was more probable that he had received 142,130 and the 1st respondent had 18,098;
(5) In Ikale Local Government, the petitioner’s witnesses itemised the sources of their figures right from the constituency level whereas the witnesses for the respondents failed to satisfy the trial court of the genuiness of the sources of the figures relied on by the respondents;
(6) As regards Ekiti East Local Government, the petitioner failed to prove that no election had been held in constituency No. 1 and also failed to prove that the result declared by the returning officer in respect of that constituency was incorrect and so the court accepted the figures declared by the returning officer. The trial court accepted the figures established by the petitioner for constituencies 2 and 3 which with the figures declared by the returning officer for constituency No.1 gave 54,731 and 38,945 votes to the petitioner and the 1st respondent respectively;
(7) For Ekiti South Local Government, the trial court accepted the evidence of the petitioner’s witnesses except in respect of constituency V for which it accepted the evidence of the returning officer. It found the petitioner had 59,516 votes and the 1st respondent had 63,990.
Finally, the trial court found that the total number of votes received by the petitioner and the 1st respondent in respect of the disputed local governments were 678,196 and 190,123 respectively. When these figures were added to the uncontested results in respect of the ten local governments, which I have earlier shown, then the total votes received at the election cancelled by the petitioner was 1,563,327 and by the 1st respondent 703,592. Accordingly, the petitioner proved his petition.
The issue on the assessment and weight of the evidence led by the parties was not taken in the Federal Court of Appeal but it was argued extensively at the hearing of the appeal before us by learned counsel for the parties. The argument centred around credibility of witnesses, authenticity of the documents tendered and relied on by the parties, failure of the parties to lead evidence to fill certain gaps in the transfer of votes counted at the polling booths to the returning officer and the contention that the trial court did not state sufficient reasons for accepting the evidence of the witnesses for the petitioner and rejecting the respondents’ witnesses.
Now, as I stated in Nwobodo v. Onoh (Supra), there is in law a rebuttable presumption that the result of any election declared by the returning officer is correct and authentic by virtue of sections 115, 148(c) and 149(1) of Evidence Act and the burden is on the person who denies the correctness and authenticity of the return to rebut the presumption. Where such denial is based on a mere complaint that the petitioner scored a majority of lawful votes, the rebuttal needs only to be proved within the balance of probability.
Again, polling booths are the base of the pyramid which forms the electoral process under the provisions of the Electoral Act, 1982. The booths are the roots which nourish the whole electoral process. Where a petitioner challenges the correctness of the return of an election declared by the returning officer then, except in respect of arithmetic errors in collation, the petitioner must lead evidence which will directly or indirectly establish the votes scored by him and his opponent at the polling booths.
It is evident that the trial court was fully cognisant of the burden of proof on the petitioner and it rightly, in my view, directed itself when it stated in its judgment:
“Ideally, the procedure to prove the total number of votes scored by the candidates is:
(a) to prove the votes received at each polling station by each candidate and then add them all up for each constituency and then for each local government; this is the foundation for any calculation;
(b) failing (a) above, to prove the entry of the figures received by each candidate at the polling station in some form and their total for each constituency;
(c) to prove that the addition of all the votes case for each candidate in all the constituencies in each local government is correct.
In practice, it is not practicable in the circumstances to produce the record of the results from each of the polling stations in every local government where issues are joined. In order therefore to ascertain what figures are proved or established, the court will have to bear in mind the need to relate figures submitted, to the very foundation of the figures and in deciding on what is the true or acceptable figures in the light of the evidence adduced, the court will, as an accepted principle in civil proceedings decide on the balance of probabilities.”
Although neither party produced any of the statements or results showing the votes polled by each candidate at the polling booths, nevertheless, upon a careful and thorough consideration of the totality of the evidence the trial court found the petitioner had discharged the burden of proof within the balance of probability because he had produced documentary evidence all along the line from the receipt of the results from the presiding officers; he had established how the figures for each constituency had been obtained and collated and there was a continuous chain of events leading to the total figures; the evidence of his witnesses was cogent and consistent and related directly to the results obtained from the polling booths. On the other hand, the trial court found the evidence led by the respondents failed to connect directly or indirectly the results relied on by the respondents with the polling booths. In consequence, the trial court preferred the evidence of the witnesses for the petitioner to that of the witnesses for the respondents.
On the premises, I am of the firm opinion that this is not a proper case for which an appeal court may legitimately interfere with the findings of facts made by the trial court within the principle stated in Lawal v. Dawodu (1972) 1 All N.L.A. (Part 2) 270 at 286 and Okuoja v. Ishola (1982) 7 S.C. 314 at 349. The decision of the trial court is impeccable.
These are my reasons for dismissing the appeal on 15 October, 1983.
SC.98/1983
