OMOBORIOWO V. AJASIN

• Pages: 81-101

OMOBORIOWO V. AJASIN

81

OMOBORIOWO V, AJASIN

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1.

CHIEF AKIN OMOBORIOWO

2.

THE CHIEF ELECTORAL OFFICER



APPELLANTS

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FOR ONDO STATE

3.

CHIEF J. A. ADENIYI

V

CHIEF MICHAEL ADEKUNLE AJASIN

RESPONDENT

SUIT NO. SC 98/1983

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SUPREME COURT OF NIGERIA

SOWEMIMO,

C.J.N.

IRIKEFE,

J.S.C.

BELLO,

J.S.C.

OBASEKI,

J.S.C.

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ESO,

J.S.C.

NNAMANI,

J.S.C.

UWAIS,

J.S.C.

6th January, 1984

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Election Petitions - Parties - Non joinder of returning officer - Allegation of

misconduct - Effect on competence of election panel.

Evidence - Standard of proof - Petition alleging crimes - Averments insufficient

to sustain claims - Absence of evidence of alleged crimes - Petition rightly

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allowed on proof of remaining averments on balance of probabilities.

ISSUES:

1. What is the standard of rebuttal of the presumption of the correctness and

authenticity of election results and on whom is the burden of rebuttal.

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2. Whether it is necessary for a court to decide issues that arise out of pleadings,

whether or not evidence is led in support of the averments contained therein.

3. Whether a High Court Judge sitting alone can validly determine interlocutory

applications in relation to an election petition.

4.

Whether the non-joinder of a returning officer in an election petition, makes it

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incompetent for the Court to hear and determine an electoral petition.

5.

Whether statements of results of polls prepared and signed by electoral officers

are admissible as primary evidence.

6.

What is the standard of proof in an election petition where the commission of

a crime is not directly in issue.

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7. When will an allegation of fraud in pleadings become an issue for investigation

and determination by a Court.

8. Whether the averments in pleadings can be severable.

FACTS:

At the election to the office of Governor of Ondo State, held on 13th August,

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1983, the returning officer returned Chief Omoboriowo, as having been duly

elected. Chief Ajasin, one of the unsuccessful candidates at the election, filed a

petition in the High Court of Ondo State, against the return of Chief Omoboriowo

as Governor. The petitioner contended that Chief Omoboriowo, the first respond-

ent in the petition, was not duly elected by a majority of lawful votes at the elec-

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NIGERIAN SUPREME COURT CASES

[1984] N.S.C.C.

tion, but that he the petitioner was duly elected. The High Court unanimously gave

judgment for the petitioner, and declared that he was duly elected and ought to

have been returned.

The appellants appealed to the Federal Court of Appeal, which dismissed the

appeal, they appealed to the Supreme Court against the decision.

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HELD:

1.

That 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

10

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.

2.

That if 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

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pleadings. The respondent 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.

3.

That the Ondo State High Court being the competent High Court in election

petition matters in Ondo State, derives its original jurisdiction in election cases

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from Section 237(1) of the Constitution of the Federal Republic of Nigeria, 1979.

Section 238 of the said t979 Constitution made provision for the minimum

number of Judges to constitute the Court for the purpose of exercising any

jurisdiction vested in the High Court under the 1979 Constitution or any Law.

The minimum number to constitute the Court validly was fixed at one. Therefore,

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the trial Court (Orojo, C.J.) was duly constituted when he sat to consider the

two interlocutory applications, one for an order fixing the amount of security

and the other for substitutional 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

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the said Act is not in conflict with Section 238 of the 1979 Constitution and lends

support to the competence of the Judge sitting alone to entertain the two

interlocutory applications.

4.

That the non-joinder of the returning officer, in no way detracts from the

competence of the election Panel of the High Court to hear and determine the

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petition. There are only two compulsory necessary 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. The effect of non-joinder of the returning officer

where allegations of misconduct are made against him is that proof of the

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misconduct will not be entertained by the Court in the absence of a joinder. The

issue of joinder 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.

5.

That the various certificates of results issued and signed by the assistant

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returning officers and deputy returning officers and delivered to the petitioners'

agents are all duplicate of originals and are admissible under Section 93 and

95 of the Evidence Act.

6.

That any allegation of commission of an offence under the Criminal Code or

the Electoral Act is not directly in issue here. The standard of proof beyond

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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.