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.