IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 6TH DAY OF JANUARY 1984

SC 98/1983

BETWEEN

CHIEF AKIN OMOBORIOWO & ANOR ............................................ APPELLANTS

AND

CHIEF MICHAEL ADEKUNLE AJASIN .................................................. RESPONDENT

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

At the election of the office of governor of Ondo State held on the 13th of August 1983, the returning officer returned Chief Omoboriowo herein-after referred to as the petitioner who was one of the unsuccessful candidates at the election filed a petition in the High Court of Ondo State complaining against the return.

He joined the 1st respondent and Chief Electoral Officer for Ondo State, hereinafter referred to as the 2nd respondent, as the respondents on the ground 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 lawful votes and that he ought to have been returned. The High Court which consisted of five judges unanimously gave judgments to 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 the Supreme Court.

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 of 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.

HELD:

(1) By virtue of the provisions of sections 237 and 238 of the constitution a single judge has jurisdiction to make the orders for security for costs and substituted service in an election petition.

(2) 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 because during the hearing of the petition the petitioner abandoned the allegations of crimes and when these were exercised 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.

(3) Although neither party produced any of the statements of 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 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.

Appeal dismissed.

Per Irikefe, J. S. C. (Dissenting):

“I delivered my judgment in this matter on 15th October, 1983 (allowing the appeal) and stated then I would elaborate on same on 6th January 1984. In view of the recent change in the government of this country, I can do no more than adapt and stand by my earlier judgment. Any further reasons would be, at best, a sterile and worthless academic exercise.”

Dr. M. O. Odje, S. A. N. (With him Dr. K. Balogun, S. S. Obaro, D. Ajayi, Chief A. Adedeji, Dr. H. Kusamotu, I. Filani, G. Adurota, and B. Olateju Olagbegi (Mrs)) for the 1st Appellant.

Professor A. B Kasunmu, S. A. N. (With him J.O. Sadoh, O. Lawal, S. T. Lawson, and T. Tienabeso (Miss)) for 2nd Appellant.

G. O. K. Ajayi, S.A.N. (With him A. Adebanjo, E.K. Ogunleye, Professor I. A. Agbede, S. Omodunbi, J.O. Akinbamidele, Chief B. Adeniji, O. Anifowose, N. Disu, D. Segun, P.A. Omotayo, A. Ogunsola (Miss) and S.O. Shonibare) for Respondent.

Cases referred to:

(1)

Arab Bank v. Ross (1952) Q. BD 216 at 229.

(2) Lawal v. Dawodu (1972) 1 All NLR Part 2 270 at 286.

(3) Mogaji v. Odofin (1978) 4 SC 91 at 93.

(4) Nwankwere v. Adewunmi (1967) NMLR 45 at 48.

(5) Nwobo v. Onoh & 2 Ors SC 96/1983.

(6) Okuoja v. Ishola (1982) 7 SC 314 at 349.

(7) Woluchem v. Gudi (1981) 5 SC 291 at 306.

Statutes referred to:

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

(2) Electoral Act 1982.

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 first 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 respondents, 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 judges 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 summarized 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 the ‘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 agent. He would sign and stamp it and the agents 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 ad 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 area, namely Ekiti East, Ekiti North, 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, to 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 area. 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 the 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 because paragraphs 5, 7, 9(i), 9(iii), 9(v), 9(vi), 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 on 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 commissions 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 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.

2. 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.

3. Chief Akin Omoboriowo was, at the time of the election, not duly elected by a majority of lawful votes at the election.

4. Chief Michael Adekunle Ajasin received a total of 1,652,795 of the votes cast 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, 401votes.”

PARTICULARS

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 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:—

(ii) The petitioner received a total of 120,384 lawful votes whilst the 1st respondent received a total of 33,377 votes and the petitioner further avers that in each of the four constituencies the petitioner and the 1st respondent received votes as follows:—

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 South 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:

(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 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:—

(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.

18. 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:—

(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:—

(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 Results Form EC8A for Constituencies II and III.

21. 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:—

(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.

27. The 2nd respondent was wrongfully declared the 1st respondent, Chief Akin Omoboriowo to be duly elected and wrongfully declared him to have received 1,288,981 votes and at the same time wrongly declared the petitioner, Chief Michael 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, endorse 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 to the local government level whereas the witnesses for the respondents failed to satisfy the trial court of the genuineness 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 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 the 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 cast 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 of 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 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.R. (part 2) 270 at 286 and Okuoja v. Ishola (1982) 7 SC. 314 at 349. The decision of the trial court is impeccable.

These are my reasons for dismissing the appeal on 15th October, 1983.

SOWEMIMO C.J.N. I have had the opportunity of reading in draft the reasons given by my brother Bello, J.S.C., in a very exhaustive manner and I agree absolutely with everything he has to say.

There is one point on the issue of pleading which seems to cause some confusion. There is no doubt that in a court of record, issues are settled by pleadings. Such issues are subject to certain rules which for the purpose of this appeal are not material. As my brother Bello, JSC, has pointed out the whole case was fought in the election petition court of Ondo State, sitting at Akure, on the basis of the civil aspect of the claim as to who scored the majority of lawful votes, and therefore, under the Electoral Act of 1982 ought to be duly elected. He concluded, confirming the judgments of the lower courts, that the respondent, Chief Ajasin, was duly elected.

It has been urged upon us that when pleadings are filed and issues joined, the court must of necessity decide on such issues whether evidence is led in support of any averments by either parties. This in my opinion is fallacious. With respect, I am unable to be persuaded, without any legal justification, to hold that such pleadings are nothing but mere averments; and judgments on such pleadings are based strictly on evidence led. If, therefore, issues are joined on any averments but no evidence is led to support such, the result is a striking out or a dismissal of such averments in the pleadings.

There is no doubt that the respondent, Chief Ajasin, made some allegations indicating that some crimes were committed, but no iota of evidence was given to support such allegations. There is, therefore, nothing for any court to decide. It is, therefore, not enough to say that in this particular case the issue of the committal of crimes or crimes which were never raised in the Court of Appeal, ever formed part of the matter of appeal before this Court.

I wish to draw attention to the relevant section of the Constitution, section 213(1) especially section 213(2)(e) which gives right of appeal to the Supreme Court:

“213

(1) The Supreme Court shall have jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Federal Court of Appeal.

(2) An appeal shall lie from decisions of the Federal Court of Appeal to the Supreme Court as of right in the following cases—...

(e) decisions on any question whether any person has been validly elected to any office under this Constitution or to the membership of any legislative house or whether the term of office of any person has ceased or the seat of a person in a legislative house has become vacant;”

Appeals come to the Supreme Court from the Federal Court of Appeal, and it is hoped that strict observance of this law will be followed. Some laxity no doubt was allowed in the election petitions for references to be concentrated on the decision of the High Court because of time restrictions, but they should not be taken as a general rule.

As earlier stated, I will adopt the reasons of my brother Bello, JSC, and wish to draw the distinction between this case and that of Nwobodo and Onoh, in that all the averments in the latter case were based on alleged crimes committed by deputy returning officers and the evidence led if believed, and in accordance with the law, might have sustained the claim in that case. We have expressed our opinion in the majority judgment in that case as to why the court did not accept that section 137(1) of the Evidence Law of Eastern Nigeria, applicable in the Anambra State, which is the same as that in the Evidence Act had been complied with. That case, therefore, bears no resemblance to the instant case. What has to be decided in this case, which I wish to emphasize is the civil claim, and to that extent the burden of proof was properly applied.

I, therefore, hold as I previously held that the judgment of the High Court of Ondo State, sitting at Akure, as confirmed by the Federal Court of Appeal, Benin, be affirmed by this Court.

Irikefe J.S.C. I delivered my judgment in this matter on 15th October, 1983 and stated then that I would elaborate on same on 6th January, 1984. In view of the recent change in the Government of this country, I can do no more than adopt and stand by my earlier judgment aforesaid. Any further reasons would be, at best, a sterile and worthless academic exercise.

Obaseki J.S.C. On the 15th day of October, 1983, after reading the record of proceedings in the High Court and the Federal Court of Appeal together with the judgments of the two courts, the briefs filed both in the Federal Court of Appeal and in this Court, the notice and grounds of appeal filed in this Court, and after hearing counsel’s submissions at the oral hearing in this Court on the grounds of appeal and considering the questions for determination I dismissed the appeal and affirmed the decisions of the Federal Court of Appeal, Benin Branch and the election of the panel of the High Court of Justice of Ondo State. I did not give reasons for the judgment then but reserved them till today. I now proceed to give my reasons.

The 1st and 2nd appellants were the 1st and 2nd respondents to an election petition filed in the High Court of Justice of Ondo State at Akure challenging the election or return of the 1st appellant, Chief Akin Omoboriowo as Governor of Ondo State in the gubernatorial election held in Ondo State on the 13th day of August, 1983.

As difficulties were encountered by the High Court bailiff in effecting personal service of the petition on the respondents, on the application of the petitioner by motion, an order for substituted service was made by Orojo, CJ, sitting alone on the 23rd day of August, 1983.

Subsequently, Orojo, CJ, empanelled 5 judges of the High Court to constitute the court to hear and determine the petition. The judges are (1) Orojo, CJ.; (2) Ojuolape, J; (4) Akintan, J; and (5) Ogunleye, J.A bond for N500.00 (Five hundred naira) security was entered into by the petitioner in pursuance of the provisions of section 127(1) of the Electoral Act. There is however no record of the court having made any order fixing the amount.

The main complaints or contentions of the petitioner can be found in paragraphs 3, 4, 25, 26 and 27 of the amended petition which read—

“3. Chief Akin Omoboriowo was, at the time of the election, not duly elected by a majority of lawful votes at the election.

4. Chief Michael Adekunle Ajasin received a total of 1,652,795 of the votes cast in all the 17 local government areas of the 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

25. The petitioner further avers that the final figures for the election were declared arbitrarily in favour of the 1st respondent, Chief Akin Omoboriowo, in utter disregard of the figures properly declared and verified at the polling stations and collating centres.

26. The 2nd respondent has besides the figures given on the radio aforesaid, up till the date hereof refused or failed to supply to the petitioner the break-down of the total votes credited to each of the petitioner and the 1st respondent according to local government areas and constituencies.

27. 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 the petitioner Chief Michael Adekunle Ajasin to have received 1,015,385 votes.

Wherefore

Your petitioner prays that it may be determined that the 1st respondent, Chief Akin Omoboriowo was not duly elected or returned, and that the petitioner, Chief Michael Adekunle Ajasin was duly elected and ought to have been returned.”

The respondents filed their replies and the petitioner filed a rejoinder or reply to the respondent’s replies.

Issues were joined and the question who had the majority of lawful votes–the petitioner or the 1st respondent? became the main issue.

Both the petitioner and the 1st respondent filed their notices of objection to certain votes as is required under the provisions of section 137(1) of the Electoral Act to enable them to adduce evidence in support of their contentions.

Each party called witnesses who gave evidence and their counsel addressed the election panel at length before the judges retired to consider their judgment. In a well considered judgment the court of 5 judges unanimously found in favour of the petitioner as follows:

“We therefore hold that the total votes received by the petitioner in the gubernatorial election for Ondo State held on 13th August, 1983 is 1,563,327 and that the total votes received by the 1st respondent is 703,592.

We also find and hold that the petitioner obtained 25% or more of the total votes cast in 16 of the 17 local governments of Ondo State while the 1st respondent received 25% or more of the votes cast in 7 of the 17 local governments of the State.

Accordingly, by virtue of the provisions of section 164(7) of the Constitution of the Federal Republic of Nigeria 1979 we hold that the petitioner, Chief M.A. Ajasin was duly elected and ought to have been returned. This petition succeeds and it is hereby declared that the first respondent Chief Akin Omoboriowo was not duly elected or returned and that the petitioner Chief M.A. Ajasin was duly elected and ought to have been returned and this determination shall be certified to the Federal Electoral Commission in accordance with section 149 of the Electoral Act 1982.”

Against this decision, the two appellants herein appealed unsuccessfully to the Federal Court of Appeal consisting of 7 justices, namely Omo-Eboh, Ete, Ademola, Okagbue, Pepple, Nnaemeka-Agu and Mohammed, JJCA. The Federal Court of Appeal (Nnaemeka-Agu and Mohammed dissenting) dismissed the appeal and affirmed the decision of the High Court election panel.

In other words, the court held that Chief Akin Omoboriowo was not duly elected or returned and that Chief M.A. Ajasin was duly elected and ought to have been duly returned.

Aggrieved by the dismissal of their appeals, the two appellants have lodged their appeals against the decision of the Federal Court of Appeal to this Court.

Each appellant filed 7 grounds of appeal. The grounds of appeal relied on by the 1st appellant read as follows:

“1. The appeal court was in error in holding that the trial and/or petition court had jurisdiction to try this case when the conditions precedent to the latter courts acquisition and/or exercise of jurisdiction were not fulfilled before it embarked upon adjudication.

PARTICULARS

(a) No order and/or valid order as to security for an amount was ever sought and/or made by the trial and/or election court.

(b) The petitioner did not contrary to section 127(1) of the Electoral Act 1982, give security for an amount fixed and as directed by the court as constituted by the learned Chief Judge of Ondo State by virtue of the provisions of section 119(3) of the Electoral Act.

(c) The order for substituted service on the appellant was not issued by the court aforesaid but, with respect, invalidly made by the learned Chief Judge contrary to the provisions of section 134(2) of the Electoral Act.

(d) The learned Chief Judge of Ondo State fully participated in the hearing and determination of the election petition when he was not a member of the panel of judges constituted as court under section 119(3) of the Electoral Act. In the premises, the judgment and entire proceedings in this case are null and void and of no effect whatsoever.

2. The appeal court was wrong in law in holding that it was proper and right in law for the lower court to have tried and determined the petition when the returning officer whose conduct was complained of therein was not made a party to the proceedings.

3. The appeal curt erred in law in upholding the judgment of the trial court by declaring the petitioner as duly elected when such determination is contrary to the petitioner’s pleadings, particularly paragraph 5 of his amended rejoinder dated 7th September, 1983, which averred that the elections were void for substantial non-compliance with the provisions of the Act.

4. The appeal court was in error in affirming the decision of the trial court which misdirected itself in law in finding for the petitioner on the balance of probabilities when the standard of proof required in this case is proof beyond reasonable doubt, having regard to the allegation of crimes of falsification and/or forgery of figures, returns and documents as well as electoral offences mutually made by and against the parties both in their pleadings and in the evidence before the court.

PARTICULARS

(a) Paragraphs 7, 12(1), 14(1), 15(1), 19(1) and 21(1) of the amended petition aver that the result of the election was falsified by the 2nd appellant in favour of the appellant; while the appellants made similar charges against the petitioner in their re-amended reply particularly in paragraphs 14, 15, 16 and 17 thereof.

(b) Similarly, there are allegations and counter-allegations of falsification and/or forgery by and against the parties in their evidence, particularly at pages 14, 18, 21, 22, 39, 47, 56, 58, 61, 62, 63, 65, 66, 68, 70, 72, 74, 80 and 87.

5. It is wrong in law for the appeal court to have upheld the decision of the trial court with respect to the admissibility of, and reliance on exhibit PETI-40, and thereby it came to a wrong decision.

PARTICULARS

(a) The genuineness of exhibits PETI-40 is suspect, while exhibits PET 3, 9A, 15, 22, 32, 34, 35, 36 and 37 are void and/or inconsistent with the evidence led on behalf of the petitioner;

(b) The court did not advert its mind to the provisions of section 22 of the Interpretation Act 1964 requiring it to ascertain if the differences between the forms prescribed by the Electoral Act 1982 on the one hand and the exhibits in question on the other, are in material particulars and calculated to mislead.

(c) The alleged signatories to exhibits PET 17, 18, 19, 20, 20A, 22 and 23 denied, on oath signing the same.

6. The appeal court was in error in holding that the trial court gave due weight and consideration to the various declarations of results of polls duly recorded in forms EC8 and EC8B tendered as the exhibits RE series by the appellant when the RE series of exhibits was not treated by the court as the official returns and declaration of the result of polls enjoying the presumption of genuineness under section 115 of the Evidence Act.

7. The judgment is against the weight of evidence.”

The complaints embodied in the above grounds of appeal filed by the 1st appellant were repeated in the grounds of appeal filed by the 2nd appellant. It is therefore unnecessary to set out the grounds of appeal filed by 2nd appellant.

Ground 1 complains of lack of jurisdiction and competence of the election court to hear and determine the petition. Ground 2 complains that the Federal Court of Appeal erred in holding (1) that the Chief Judge was competent to make the preliminary interlocutory orders; (2) that the petition was competent; (3) that the court of five judges had jurisdiction to hear it. Ground 3 complains that the Federal Court of Appeal erred when the majority judges held that the order for security for costs and the order for substituted service made on the 23rd day of August, 1983 were validly made. Ground 4 complains that the Federal Court of Appeal erred in law when the majority judges held that the commission of a crime was not directly in issue and that the standard of proof of all issues raised in the petition was the civil burden, that is on a balance of probabilities. Ground 5 complains that the Federal Court of Appeal erred in law when the majority judges held that the election results lodged with the Federal Electoral Commission for safekeeping do not come within the contemplation of section 115 of the Evidence Law.

Ground 6 complains that the Federal Court of Appeal erred when the majority judges held that exhibits PET 1 to 40 were legally admissible.

Finally, ground 7 complains that the Federal Court of Appeal erred in law and/or the facts when the majority judges failed to resolve the issue of the genuineness of exhibits PET 1 to PET 40 and the disputed identities of the makers thereof.

Having set out the grounds of appeal, it now remains for me to ascertain the questions posed by them or the issues arising for determination in this appeal. The learned Counsel for the 1st appellant, Dr. Mudiaga Odje set them out in his brief as follows:

“(1) did the court of 1st instance have jurisdiction to try this case?

(2) was it proper for the election petition court to have tried and determined the petition without the joinder of the gubernatorial returning officer for Ondo State whose conduct was complained of in the petition?

(3) was the trial court justified in declaring the petitioner duly elected at the elections, as affirmed by the appeal court when on the state of the pleadings particularly paragraph 5 of his amended rejoinder the issue was that the said election was void for not having been conducted in accordance with Part II of the Electoral Act, and for substantial noncompliance with the Act?

(4) was the appeal court right in holding that the lower court correctly approached its duty of assessing the evidence and deciding as it did on the basis of balance of probabilities in the face of allegations of falsification and/or forgery of figures returns and documents contained in both the pleadings and the evidence led in the case?

(5) was the appeal court right in affirming the decision of the High Court to the effect that the petitioner on the printed evidence and in all the circumstances proved his case for a determination that he was duly elected and ought to have been returned?”

A vital issue for determination was omitted from the above list of questions. It is

“Are exhibits PET 1 to 40 i.e. the various documents tendered to establish the votes scored by the respondent admissible?”

Identical issue for determination arose in the case of Jim Ifeanyichuku Nowbodo vs. Onoh and another SC.96/1983 decided on the 8th day of October, 1983. The reasons for that judgment were delivered this morning and I dealt with these issues in such substantial detail that I will in this case adopt those reasons as the reasons for my judgment in this case delivered on the 15th day of October, 1983. However, I will go briefly over them here.

Jurisdiction:

The Ondo State High Court being the competent High Court in election petition matters in Ondo State, derives its original jurisdiction in election cases from section 237(1) of the Constitution of the Federal Republic of Nigeria in 1979. It is therefore the 1979 Constitution that has conferred jurisdiction, i.e. the special jurisdiction, to hear and determine any question whether any person has been validly elected to any office, in this case the office of governor of Ondo State, or to membership of a legislative house. Section 238 of the said 1979 Constitution made provision for the minimum number of judges of the High Court to constitute the court for the purpose of exercising any provision vested in the High Court under the 1979 Constitution or any law. The minimum number to constitute the court validly was fixed at one. I therefore hold that Orojo, CJ. duly constituted the High Court when he sat to hear the two interlocutory applications one for an order fixing the amount of security and the other for substituted service. Section 119(3) of the Electoral Act 1982 which empowered the Chief Judge to determine the number of judges that shall constitute the court for the purpose of exercising any jurisdiction conferred by the said Act is not in conflict with section 238 of the 1979 Constitution and in my view lends support to the competence of the Chief Judge sitting alone to entertain the two interlocutory applications. All the cases supporting a contrary view cited by counsel are based on the earlier Electoral Acts whose texts are not in pari materia with the 1982 Act. Ground 1 of the 1st appellant’s grounds of appeal therefore fails.

Non-joinder of the Returning Officer:

The non-joinder of the returning officer, in my view, in no way detracts from the competence of the court the election panel of the High Court to hear and determine the petition. There are only two compulsory necessary statutory respondents namely, (1) the successful candidate and (2) the Chief Federal Electoral Officer of Ondo State for the proper constitution of the election petition. See section 121(a) and (c) of the Electoral Act 1982.

Where the petition complains of the conduct of a returning officer, he shall for all purposes be deemed to be a respondent.

The effect of non-joinder of the returning officer where allegations of misconduct are made against him is that proof of the misconduct will not be entertained by the court in the absence of a joinder. The issue of the misconduct of a returning officer is quite separate and distinct from the issue whether a person has been validly elected to an office as required by the Constitution. Ground 2 of the grounds of appeal of 1st appellant fails.

Pleadings and the Prayer of the Petitioner

There was at no time any prayer that the gubernatorial election be declared void for non-compliance with Part II of the Electoral Act before the court. Whatever the pleadings might be without the proper prayer the court will not grant a prayer outside the one set down in the petition. See section 125(3) of the Electoral Act.

In this petition the prayer was set out in clear and unambiguous terms as already reproduced above. To remind ourselves of the text, I would reproduce it again. It reads:

“Your petitioner prays that it may be determined that the 1st respondent, Chief Akin Omoboriowo was not duly elected or returned and that the petitioner, Chief Michael Adekunle Ajasin was duly elected and ought to have been returned.”

Paragraph 5 of the petitioner’s rejoinder never pleaded or alleged that the said election was void. That paragraph was a denial of the averments in paragraph 4 of the amended reply of 1st and 2nd respondents now appellants. Ground 3 of the 1st appellant’s grounds of appeal fails.

Admissibility of Exhibits PET 1 to 40

These are various certificates of results issued and signed by the assistant returning officers and deputy returning officers and delivered to the petitioner’s agents. They are all in my view duplicate originals and are admissible under section 93 of the Evidence Act and section 95 of the same Evidence Act. Ground 5 of the 1st appellant’s grounds of appeal fails.

Standard of Proof and Burden of Proof

The burden of proof lay on the petitioner to prove the averments and allegations in his petition in areas where issues have been joined. Contrary to the submissions of Dr. Mudiaga Odje, SAN. counsel appearing for the 1st appellant and Professor A. B. Kasunmu, SAN. counsel appearing for the 2nd appellant, any allegation of commission of an offence under the Criminal Code or the Electoral Act is not directly in issue. The standard of proof beyond reasonable doubt prescribed by section 137(1) of the Evidence Act does not therefore arise.

It is only the issue of who scored a majority of lawful votes to satisfy section 164(7) of the Constitution that was directly in issue. To resolve this issue, the standard of proof is that based on the balance of probabilities as enunciated by this Court in the case of A. R. Mogaji & Ors. v. R. Odofin & Ors. (1978) 4 SC.91 at 93.

Fraud and crime must be strictly pleaded and details or particulars sufficient to found a proper charge given to warrant the issue being investigated by the court. In Wallingford v. Mutual Society (1879-90) 5 App Cas 687, Lord Selborne, LC. at P.697 said:

“With regard to fraud, if there be any principle which is perfectly well settled, it is that general allegations, however strong be the words in which they are stated, are insufficient even to amount to an averment of fraud, of which any court ought to take notice.”

The constitutional right of the petitioner to be declared duly elected or returned is not founded on the allegations of falsification but on the averment that he had a majority of lawful votes cast at the election and supported by the certificate of results of polling issued by the officials of the Federal Electoral Commission. These certificates of result give the number of votes received by each gubernatorial candidate at the election. While falsification may be an issue, it is totally a separate issue which is independent of the issue which is the foundation of the right claimed by the petitioner. Furthermore, the allegations of falsification made in the petition were not made in language that implicated the 2nd appellant with certainty. The allegations were against the 2nd appellant or his servant or agents. There was no evidence adduced against the 2nd appellant on the issue. Furthermore, the allegations complained of occurred only in 6 out of 27 paragraphs in the petition and so the issue of falsification was severable. They are totally absent from the 5 main paragraphs 3, 4, 25, 26 and 27 reproduced above. The pleadings were therefore excessive and the excess could be abandoned. See Arab Bank Ltd. v. Ross (1952) 2 KB 216 at 229.

Cases of claims for damages for assault and for damages for criminal libel are good examples where the issue of commission of an offence arises directly if made against a party to the proceedings, for the right to damages depends directly on the proof of the assault or criminal libel.

Ground 4 of the grounds of appeal of the 1st appellant fails.

The cases of Egbe v. Etchie (1955-56) WRNLR 134, Kefi v. Isa (1965) I All NLR 17 at 20, Dzungwe v. Sweni (1965) NRNLR 33 at 36, (1966) NMLR 297 and Okuarume v. Obabokor (1966) NMLR 47 at 49 are, in my view, of no assistance to the appellants having regard to the state of the pleadings.

The Merit of the Printed Evidence

Both appellants complain that the judgment is against the weight of evidence. Learned counsel for the 1st appellant as well as learned Counsel for the 2nd appellant contended that on the printed evidence, the respondent was not entitled to judgment and be declared duly elected or returned by a majority of lawful votes.

I find this contention totally devoid of substance. Throughout the petition, the petitioner pleaded that he will rely upon the statement of the result of poll issued by the presiding officers, assistant returning officers and deputy returning officers. These statements were admitted as primary evidence and marked exhibits PET 1 to 40.

The judges of the election panel of the High Court unanimously preferred the evidence of the petitioners’ witnesses to that of the respondents’ witnesses on the issue of votes cast and received by each candidate in the various disputed areas in the State. They accepted the evidence of the petitioners’ witnesses and rejected the evidence adduced by the respondents on the issue. The learned trial Judges went meticulously through the evidence and made an unbiased analysis of it before arriving at their conclusion that the petitioner received a total of 1,653,327 lawful votes at the election as against 703,592 votes received by the 1st respondent. Ground 6 and 7 of the grounds of appeal filed by the 1st appellant also fail. All the grounds of appeal filed by the 2nd appellant, being substantially the same and raising the same questions as those of the 1st appellant also fail.

For the above reasons, I dismissed the appeal brought to this Court by the appellants on the 15th day of October, 1983.

Eso J.S.C. On 15th October, 1983 when I dismissed the appeal of the appellant, Omoboriowo, against Ajasin I gave full reasons for the decision I took. I have no cause to add to or modify those reasons. I stand by them.

Nnamani J.S.C. I adopt the conclusions I reached in this appeal as delivered by me on 15th October, 1983.

Uwais J.S.C. We dismissed this appeal on 15th October, 1983 and reserved our reasons for doing so. I now give my reasons.

I have had the privilege of reading in advance the reasons for judgment just read by my learned brother Bello JSC. As it was for the same reasons that I agreed that the appeal should be dismissed I adopt his reasons as mine. I would like, however, by way of emphasis to add the following comment on the issue of standard of proof.

In paragraph 5 of his amended petition the petitioner (now respondent) averred as follows:—

“5. On the 15th of August 1983 the 2nd respondent (i.e. 2nd appellant), the Chief Federal Electoral Officer for Ondo State caused to be announced on the Federal Radio Corporation of Nigeria radio in Ondo State the figures shown on the document attached to the petition herewith marked as ‘Appendix’.”

Clearly the allegation in this paragraph is an imputation of corrupt practice which is a criminal offence under section 105 subsection (f) of the Electoral Act, 1982. The section reads:

“105.

(f) Any officer of the Federal Commission who causes to be delivered a false certificate of return to any radio and/or television broadcasting station shall be guilty of corrupt practice and on conviction shall be sentenced to a term of two years imprisonment.”

Further allegations were made against the 2nd appellant in paragraphs 12(i) and (iv), 13(i) and (iv), 14(i) and (v), 16(i) and (v), 18(i) and (v), 19(i) and (v) and 21(i) and (v). The allegations severally charged the 2nd appellant with the falsification of figures, inflation of votes won by the 1st appellant and the reduction of votes won by the respondent. Each of these is a criminal offence punishable under section 99 of the Electoral Act, 1982; which provides—

“Any officer appointed for the purposes of this Act, who without lawful excuse is guilty of any act or omission in breach of his official duty commits an offence against the Act and shall be liable on conviction to a fine of N1,000 or to imprisonment for twelve months or both.”

By the provisions of section 137 subsection (1) of the Evidence Act all the allegations which were, undoubtedly, directly in issue must be proved beyond reasonable doubt. The section reads—

“137–

(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”

Mr. Ajayi learned Counsel for the respondent conceded that no evidence was called at the trial to prove any of the allegations, so that the standard of proof as laid down by section 137 subsection (1) of the Evidence Act, was not satisfied. Consequently could it be rightly said that the respondent proved his case at the trial?

Apart from the allegations of the commission of crime made, there were the averments made in paragraphs 3 and 4 of the amended petition which read—

“3. Chief Akin Omoboriowo was, at the time of the election, not duly elected by a majority of lawful votes at the election.

4. Chief Michael Adekunle Ajasin received a total of 1,652,795 of the votes cast 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 of the votes according to local government areas of the State were given in paragraph 4. Mr. Ajayi doggedly argued that if all the paragraphs of the amended petition which imputed the commission of crime were severed the averments in paragraphs 3 and 4, which are quoted above, were sufficient ground under section 122 subsection (1) of the Electoral Act, 1982 for bringing the petition.

In my opinion this submission is right, because as observed in Arab Bank Ltd. v. Ross, (1952) 2 Q.B. 216 at p.229—

“Under the rules of pleading, as I have always understood them, a pleader who has pleaded more than he strictly need have done can always disregard the unnecessary or surplus averments and rely simply on the more limited ones.”

Here lies the difference between the present case and that of Chief Jim I. Nwobodo v. Chief C. C. Onoh and Ors., Suit No. 96/1983, (unreported) reasons for judgment delivered earlier today. While in the former no attempt was made to prove the crime alleged, the opposite was the case in the latter. In other words the averments of crime in the present case were abandoned but retained in Nwobodo’s case.

The standard of proof required to prove the averments in paragraphs 3 and 4 of the amended petition was that ordinarily based on the balance of probabilities since no allegation of the commission of crime had been made in the paragraphs against any of the parties. The appellant called 40 witnesses and tendered a number of documents to prove his case. There had been concurrent findings by the trial court and the Federal Court of Appeal in his favour. I therefore see no reason why we should interfere with their decisions. This follows the well established practice of this Court which is supported by a long line of decided cases.

It was for these and the reasons so ably stated by my learned brother Bello J.S.C. that I dismissed this appeal and endorsed the order as to costs made by my learned brother Sowemimo, C.J.N.