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.