O. Akinfosile Vs J. A. Ijose (1960)
LawGlobal-Hub Lead Judgement Report
ABBOTT, F.J.
This is an appeal by Mr. Olu Akinfosile, the respondent to an Election Petition brought in the High Court, Akure, by Mr. J.A. Ijose. The order of the Court below was, in brief, that the Election must be declared null and void for non compliance with the Elections (House of Representatives) Regulations 1958, as provided for by regulations 6(1)(b) of the Federal Legislative Houses (Disputed Seats) Regulations 1959. The former Regulations will be referred to in this Judgment as the 1958 Regulations and the latter as the 1959 Regulations.The petition was brought against Mr. Akinfosile as first respondent, and Mr. T.E. Aduba the Returning Officer for Okitipupa North Constituency as second respondent.
The petition made, in all, three allegations of irregularity or noncompliance with the 1958 Regulations, but it is only the third and the prayer of the petition with which this Court is now concerned. The third allegation appears in paragraph 6 of the petition, which reads as follows;-
[“Wherefore your petitioner prays that it may be determined that the said Olu Akinfosile was not duly elected and that the election has been invalidated by substantial non compliance with the Nigeria (Electoral Provisions) Order in Council 1958.”]
It may be mentioned in passing, at this point, that the reference to the Nigeria (Electoral Provisions) Order in Council, 1958, is mistaken. The reference should be to the 1958 Regulations which were made under the power conferred by that Order in Council.
The first respondent in his reply to the petition, dealt with paragraph 6 in these words:
“With regard to paragraph 6 of the petition, the 1st respondent states that it was at the insistence of the petitioner that ballot papers not bearing the official secret mark were counted.”
The second respondent dealt with this paragraph in paragraphs 5 and 6 of his reply, and these paragraphs read as follows:-
“5. This respondent admits that some ballot papers which did not bear the official seal or mark were counted with the knowledge and consent of the petitioner, but says that such ballot papers bore such other distinguishing official marks by which the prevention of fraud could be assured.
6. This respondent avers that the election was conducted substantially in accordance with the Elections (House of Representatives) Regulations, 1958, and if there was any non compliance with the said regulations (which is denied) such non compliance did not affect the result of the election.”
It is important to remember here that Chief Rotimi Williams, Q.C., who appeared for the petitioner at the Court below, said at the end of his opening address:
“A subpoena was issued on the Electoral Officer. I understand that he has not been served, but I understand from Mr. Ogundere, counsel for the 2nd respondent, that the ballot papers are here and that his client will put in the ballot papers.”
However, the evidence for the petitioner consisted of only one witness, the petitioner himself, and the material part of his evidence reads:
I was present at the counting of votes. There were ballot papers which did not bear official marks. They were counted. I do not know how many were there. I am unable to say who would have won the election if these ballot papers had not been included with those counted.
At the close of the petitioner’s evidence, and as I have above indicated, the close of the petitioner’s case, Mr. R.A. Fani-Kayode, Q.C. who appeared for the first respondent, announced that he was calling no evidence on his client’s behalf.
The case for the second respondent then began with the evidence of the second respondent himself, and in the course of his evidence-in-chief he produced and tendered sealed packets of ballot papers for the Constituency, the election to which was in question, and they were admitted without objection and marked Exhibit 3.
The witness went on to say:-
“Some of these ballot papers do not bear the official stamp. I do not know how many they are. I noticed these unstamped ballot papers during the counting.”
When invited to cross-examine this witness, Mr. Kayode stated that he was taking no further part in the proceedings, although it appears from the Record that he did, as he was entitled in my view to do, address the Court when all the evidence had been concluded. It is unnecessary in this judgment to refer to the evidence of the other witnesses for the second respondent.
The learned trial Judge in his judgment, quite correctly, as a result of the evidence before him, disposed of the irregularities alleged in paragraphs 4 and 5 of the petition, and then went on to deal with paragraph 6 above set out. He first pointed out, again correctly, that the first respondent (a) admitted that ballot papers were counted which did not bear the official secret mark and (b) averred that the petitioner insisted on these papers being counted. The learned Judge then pointed to a similar admission made by the second respondent, and went on to set out the last half of paragraph 5 of the second respondent’s reply to the petition.
Next the learned Judge draws attention to the fact that when the petitioner was giving evidence neither respondent suggested to him in cross-examination that he had consented or insisted, as had been alleged, to the unmarked ballot papers being included in the count, and again perfectly correctly, stated that the parties, even if there were any such consent, could not circumvent the regulations in this manner. The regulation concerned is 92(2) of the 1958 Regulations which provides:-
“Any ballot paper which does not bear the official mark shall not be counted.”
and the learned Judge adds:
“There can be no doubt that the inclusion of these unmarked ballot papers was manifestly illegal.”
Then he goes on to state in these words where, in his opinion, the onus must lie:
“The first respondent having admitted in his reply that unmarked ballot papers had been included in the count, the onus was thereupon on him to prove the quantity of such unmarked ballot papers and that their inclusion did not affect the final result of the election.”
Next in the judgment comes the reference to the submission of Counsel for the second respondent that “all the ballot papers having been tendered during the trial, the Court could sort them out for itself and establish the facts.” The learned Judge dealt with this submission by expressing the view that he could not accept it and as was suggested, “sort out the facts” for himself, and gave five reasons for coming to this conclusion:
1. That no evidence had been tendered before him as to what was the official mark.
2. The unmarked ballot papers were not separately tendered.
3. There was no evidence in support of the second respondent’s averment that the ballot papers not bearing the official mark bore other distinguishing marks by which the prevention of fraud could be assured.
4. There was no evidence as to the source from which the unmarked ballot papers had come.
5. There was no evidence as to how they got into the ballot boxes or how they were distributed amongst the 96 polling stations in the constituency because the second respondent had not, up till the date when the learned Judge was giving judgment, signed all the ballot paper accounts.
At that point the learned Judge was in doubt as to whether or not the election was conducted substantially in accordance with the 1958 Regulations, because later he says that the irregularities to which he draws attention reinforce his doubts, and he goes on to say:
“It would therefore serve no useful purpose if I were to proceed to scrutinize the thousands of ballot papers which have been tendered “en bloc” in the absence of evidence to assist me in the task of deciding which of the ballot papers were genuine or otherwise.”
After quoting Regulation 7 of the 1959 Regulations the learned Judge goes on to say:
“1 am not in a position to say that owing to the relatively insignificant number of those ballot papers, the quantity could be excluded and that the final result of the election would not be affected. I cannot on the other hand say, from the evidence before me, that they were so many that the final result of the election was thereby affected. It is in my view open to reasonable doubt in view of the pleadings and the evidence tendered, whether the counting of these unmarked ballot papers may not have affected the result.”
and the final paragraph of the judgment of the Court below, important for the purpose of this appeal, reads as follows:-
In the final result and after a review of the whole of the evidence, the cumulative effect of the evidence has left me with the settled impression that the election was not conducted substantially in accordance with the Nigeria (Electoral Provisions) Order in Council 1958 and I am unable to say that the noncompliance did not affect the result of the election.”
The second respondent has not appealed against this judgment and the first respondent filed four grounds of appeal, but the argument before this Court was really concentrated on the last of these, which read as follows:-
The learned trial Judge erred in law in holding that the onus is on the respondent to show that the result of the election was not affected by noncompliance with the regulations.”
The arguments on both sides before this Court were of considerable length and In my view Chief Rotimi Williams, who appeared for the petitioner, who was the respondent to this appeal, said everything that could possibly be said on his client’s behalf.
It is material here to set out the provisions of Regulations 6(1) (b) and 7 (1):-
6. (1) “An election may be questioned on the following grounds:
(b) that the election was invalidated by corrupt practice or (subject to the provisions of regulation 7) noncompliance with the Elections (House of Representatives) Regulations, 1958;
7. (1) [An election shall not be invalidated by reason of non compliance with the Elections (House of Representatives) Regulations, 1958, if it appears to the court having cognizance of the question that the election was conducted substantially in accordance with those Regulations, and that the noncompliance did not affect the result of the election.]
It is necessary now to refer to paragraph 6 of the Petition and the prayer thereof, which I have set out above. In the first place I find that paragraph 6 is extremely vague and this vagueness could have been avoided or cured after the filing of the Petition, had the petitioner obtained from the Court an order under Regulation 139 (2) of the 1958 Regulations and application could then have been made to amend the Petition by adding the necessary details. Not only was this not done, but no attempt was made, during the conduct of the petitioner’s case in the Court below, to say how many ballot papers were comprised in the “large” number said to have been counted although not bearing the official secret mark. It seems to me that that evidence ought to have been adduced by the petitioner if he was to have any chance to success in his Petition. The person who makes allegations in a pleading is, by the ordinary rules of pleading, bound to produce evidence to substantiate them as part of his case, and it is not sufficient for him to rely upon the emergence of evidence from the opposite party for the purpose of proving allegations in his own pleading. Moreover, in this case such evidence as there was of the counting of ballot papers not bearing the official mark, was hopelessly vague. There were no details of how many unmarked ballot papers were counted and the Court below was not in a position to say whether there was one of such ballot papers or any other number. Chief Rotimi Williams, as stated above, apparently relied upon Counsel for the second respondent telling him that the second respondent would put in the ballot papers as evidence. With respect, I consider Chief Rotimi Williams erred here, and also in not cross-examining the second respondent on this point.
In view of the absence of any evidence, at the close of the case for the petitioner, of the number of ballot papers counted which did not bear the official mark, Mr. Kayode in my view was fully justified in calling no evidence on behalf of his client.
It was submitted by Chief Rotimi Williams that once any non compliance with the Regulations is shown then that is all that a petitioner has to do, and thereafter the onus shifts to the respondent or respondents to the Petition to show that the non compliance did not affect the result of the election; counsel endeavoured to divide the latter part of Regulation 7(1) of the 1959 Regulations into two parts (1) If it appears to the Court having cognizance of the question that the election was conducted substantially in accordance with the 1958 Regulations, and (2) If it appears to the Court having cognizance of the question that the noncompliance did not affect the result of the election. In view of the wording of the prayer of the Petition it is my view that Regulation 7(1) cannot be bifurcated in this manner for the purposes of this case. The prayer alleges that the election has been invalidated by “substantial noncompliance” with the 1958 Regulations. In other words, in my view, these words in the prayer amount to a conglomeration of the two portions into which it was submitted Regulation 7(1) should be divided. Having thus effected this union between those two parts, I am of opinion that the petitioner cannot now be heard to submit that the union, which he himself created, should be dissolved.
The following authorities were cited to this Court in the course of the argument:
1. Hackney case 31 L.T. 69;
2. Cheltenham case 19 L.T. 816;
3. Woodward v. Sarsons (1874) L.R. 10 C.P. 733;
4. Abengowe v. Wachuku 21 N.L.R. 56;
5. South Newington case (1948) 2 A.E.R. 503;
6. Islington case 17 T.L.R. 210;
7. Kensington North case (1960) 2 A.E.R. 150: (1960) 3 W.L.R. 762.
8. Fallon v. Calvert (1960) 1 A.E.R. 218;
9. R v. Teschemaker 1 J.R. 78 (New Zealand).
I do not find it necessary to say more about these cases than that in my view none of those cited by counsel for the petitioner supports the proposition contended for by him namely, that once any noncompliance with the regulations has been shown by the petitioner, the onus shifts to the Respondent to satisfy the Court trying an election petition that the noncompliance did not affect the result of the election.
I am firmly of the view as above indicated, that a petitioner who alleges in his petition a particular noncompliance and avers in his prayer that the noncompliance was substantial, must so satisfy the Court. This the petitioner failed to do.
It follows therefore, that I would allow this appeal, set aside the judgment of the Court below with the order for costs so far as the first respondent is concerned, and order that the petition should be dismissed. The first, respondent is entitled to costs in the Court below which I would assess at 100 guineas, and also to the costs of this appeal which I would assess at 75 guineas.
Appeal dismissed.
Other Citation: (1960) LCN/0839(SC)
