Dauda Ademola Lawal V. Sikiru Adebayo & Ors (2009)

LawGlobal-Hub Lead Judgment Report

ISTIFANUS THOMAS, J.C.A.

This is an appeal against the judgment of the Governorship and Legislative Houses Election Petition Tribunal, sitting in Ibadan which was delivered on 6th day of March, 2008.

The brief fact of the appeal is that the tribunal nullified the April, 14th 2007 House of Assembly Election for Lagelu Constituency, Oyo State and made an order that a fresh election be conducted into the same House of Assembly for the seat of Lagelu Constituency.

The present Appellant was the candidate sponsored by his party, Peoples Democratic Party (PDP) and at the end of the aforesaid election on 14th April, 2007, the 2nd Respondent, namely INEC, declared him as the winner having scored 13,237 votes, and the present 1st Respondent, who contested as the sponsored candidate of All Nigeria People Party, (ANPP), scored 6,188 votes.

The 1st Respondent, being dissatisfied with the result that, the present Appellant was the winner, filed an election Petition at the said lower Tribunal at Ibadan. In the said petition, the 1st Respondent hinged it on two basis, namely, that:-

“(a) The election was in valid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act, 2006.

(b) That the 1st Respondent (now Appellant) was not duly elected by majority of lawful votes cast at the election.”

At the Tribunal, 1st Respondent prayed for the following reliefs in his petition:-

“(i) That the election and the return of the 1st Respondent are voided by acts which clearly violate and breach the provisions of the electoral Act, 2006 and the Regulations including but not limited to manipulation, mutilations, irregular cancellation as well as unprecedented acts of violence,

thuggery, brazen brigandage and coercion of opponents committed at most of the polling stations and at the ward levels.

(ii) That the 1st Respondent was not duly elected by the majority of lawful votes cast at the election.

(iii) That the election be nullified or set aside and a fresh election be ordered.”

During the proceedings at the lower tribunal, the Petitioner, now 1st Respondent, called 18 witnesses and he also testified, while the then 1st Respondent but now Appellant testified and called 13 witnesses against the petition respectively. After the normal addresses of both counsel, the lower tribunal found in its judgment at pages 367 – 372 of the record that, there were irregularities and non compliance of the electoral Act, 2006 by over voting and lack of accreditation in the units pleaded. The lower court also found that unlawful votes were added to both parties i.e. the present Appellant and the present 1st Respondent and after deductions of the unlawful votes, the trial Tribunal nullified the entire election and ordered for a fresh election into the Lagelu Constituency of Oyo State House of Assembly.

Dissatisfied with the decision of the trial Tribunal, the Appellant filed his first Notice of Appeal on 10-03-2008 and later another Notice of Appeal filed on 25-03-08 which he is now relying upon. The notice of appeal contains 7 grounds from which he has raised five (5) issues for determination and they read as follows:-

“1. Whether the Lower Tribunal was not wrong in nullifying the election and the return of the Appellant having held that minus the lawful votes of the affected units, the Appellant still won the majority of the lawful votes cast at the election (grounds 1, 2 and 3).

2. Whether the Lower Tribunal correctly interpreted and applied the provisions of Section 54 (e) of electoral Act, 2006 in view of the provisions of section 146(i) of the Act (ground 4).
3. Whether the Lower Tribunal did not assume investigative duties as opposed to its adjudicative functions in its consideration of the case submitted to it, for consideration by the parties (ground 5).
4. Whether the Lower Tribunal had not denied the Appellant its constitutional right of right of fair hearing by a denial of its right of cross-examination in respect of Exhibits not led in evidence in the open court (ground 6).
5. Whether the judgment of the Lower Tribunal is not against the weight of evidence in view of the documentary evidence especially Exhibits P.E9 and P.E10 and facts from the printed record before the Lower Tribunal (ground 7).”

On the part of the 1st Respondent he has re-framed Appellant’s issue one (i) as follows:-

“1. whether in view of the provisions of section 146(i) of the Electoral Act, 2006 the Tribunal was justified in law in nullified the election of the appellant notwithstanding its finding of a marginal difference of 95 votes in his favour.”

The 1st Respondent adopted the Appellant’s issues NO.2 and 5 as his own issues for determination. In other words the 1st Respondent is of the view that only 3 issues are relevant for determination. To support this matter on relevant issues, the Appellant has admitted in paragraph 17.00 of his brief that – “grounds 5 and 6 and issues formulated thereon are hereby abandoned.”

Before I proceed to determine the relevant issues 1, 2 and 3, the Appellant’s issues 4 and 5 having been abandoned are hereby struck out.

ISSUE 1

The Appellant’s gravamen in the first issue is that, the lower tribunal, having found the true evidence of over voting and over balloting or non-accreditation, considered the documentary evidence namely exhibits 1, P.E9 and P.E10. That the lower tribunal carried out a very misleading arithmetic calculation of the affected units and made wrong deductions. Learned counsel for the Appellant referred to the lower tribunal’s judgment as contained at pages 374 – 376 of the record where the tribunal tabulated the votes received by each of the then Petitioner and the then 1st Respondent in the units where the accreditation was proved not to have been carried out along with the number of registered voters as gathered from the aforesaid exhibits P.E9 and P.E10 respectively. The Appellant has submitted that the lower tribunal subtracted virused votes from the votes scored by 1st Respondent and the Appellant; but still found the Appellant leading with a wrong simple majority of 95 votes over the 1st Respondent in the majority of the units, and that the tribunal should have sustained the election of the Appellant. Appellant contends that, it was speculative by the register of voters, whose names appeared on the document and then concluded that the votes were denied their right or opportunity of voting. Counsel then posed a question as to how many witnesses had testified that their names appeared on the voters register but were not allowed to vote? That some could have died, or could have relocated, or some could have become dis-interested in the whole electoral system. Learned counsel for the appellant has argued that the lower tribunal in its haste to nullify the election of the Appellant carried out a very wrong arithmetic calculation of the scored valid votes of the parties, but to the detriment of the Appellant. Learned counsel referred to the wrong calculation of the tribunal at page 376 of the record, where it is stated as follows:-

“By Exhibit P.E1, the 1st Respondent won the election and was so declared by 13,237 votes while the Petitioner scored a total of 6,954 votes. This tribunal has voided 5,596 votes credited to the 1st Respondent which must then be subtracted from his overall total:-

13,237 – 6,954 = 6,283

The total valid votes now received and allowed for the 1st Respondent is 6,283. For the Petitioner, the tribunal had earlier voided 766 votes. This number must now be deducted from the total votes

he scored which is 6,954 – 766 = 6,188. By a simple arithmetic the valid votes for the Petitioner and the 1st Respondent shall now be:-

1. Petitioner = 6,188
2. 1st Respondent = 6,283”

Learned counsel for the Appellant has forcefully submitted that the above reproduced wrong simple arithmetic carried out by the lower tribunal is totally wrong. At page 9 of Appellants brief learned counsel made arithmetic calculation as follows:-

“The reason is this:-

1. The original score of the 1st Respondent (now Appellant) was 13,237. His voided votes = 5,596.

1st Respondent valid votes = 7,641.

2. The original score of the Petitioner (now 1st Respondent) was 6,954

His voided votes = 766

Petitioner valid votes =6,188

1st Respondent (Petitioner) valid votes = 7,641

Minus Petitioner (1st Respondent) valid

votes = 6,188.

Leading valid votes of the 1st Respondent (Appellant) over the Petitioner (1st Respondent) 1,453″

In his paragraph 9.05 of the brief, Appellant has forcefully argued that the unpardonable arithmetic error committed by the lower tribunal at page 376 of the record, is that instead of deducting the voided votes of 5,596 from the voided score of 13,237 of the Appellant, it was the original score of 6,954 of the Petitioner that was deducted from the Appellant score. That this erroneous calculation has caused a grave miscarriage of Justice to the Appellant by arithmetically reducing valid votes by which the Appellant defeated the 1st Respondent from 1,453 to 95 votes.

This shows that the Appellant had a majority valid votes of 1,453 votes over and above the valid votes of the 1st Respondent.

Learned counsel for the Appellant has relied on the cases of NA GARUBA & ORS. VS. NEC (1993) 1 NWLR (pt. 267) 94; SORUNKE VS. ODEBUNMI (1960) SCNLR414; OLUWALE VS. ABUBAKAR (2004) 10 NWLR (pt. 882) 549; NGIGE VS. OBI (2006) 14 NWLR (pt. 999) 1 and ADUN VS. OSUNDE (2003) 16 NWLR(pt. 847) 643 and urged the court to resolve issues 1 and 5 in favour of the Appellant and set aside the decision of the lower tribunal in which it order for a fresh election. On the part of the 1st Respondent in this appeal, he has contended that upon the review of evidence led by the parties, the trial tribunal found violence, thuggery, snatching and stuffing of ballot boxes as heads and incident of malpractices alleged to have been perpetrated during the election. That on the basis of the 2nd Respondent’s declaration and return of the Appellant which was being challenged, the tribunal held at page 364 of the record thus:-

” …As for these allegations are concerned, the tribunal finds and holds that the evidence on record is grossly insufficient to satisfy the requirement of prove beyond any reasonable doubt.”

Counsel for the 1st Respondent contended further, that the lower tribunal carried out a most realistic, meticulous, careful and judicious evaluation of the documentary evidence i.e. exhibits 1, PE.9 and PE. 10 tendered before it which were in regard of the allegations of over voting and noncompliance in all units listed by him at the trial proceedings. That the trial tribunal also found that noncompliance by way of non accreditation was duly established by the 1st Respondent as contained at page 372 of the record. That the lower tribunal put exhibits PE.9 and PE.10 under rigorous scrutiny and found that total number of voters on the voters register in the affected units by non-accreditation was 6,153 voters, which was added with the result of over-voting with a view to determine the substantiality of the non-compliance which was arrived at a total figure of 10,714 votes. That it was right when the trial tribunal held that “with the wide and colossal 10,714 votes voided by them, a case of substantial noncompliance was evidently established by the 1st Respondent and that this was the reason the tribunal nullified the declaration and return of the Appellant. At this stage, the 1st Respondent has submitted that, the Appellant has not appealed against that findings and decisions of the trial tribunal, and that the grounds of appeal and the issues formulated especially in grounds 1, 2 and 3 are not challenging the unequivocal, definitive and specific findings of the trial tribunal, counsel relied on the case of ILONG VS. IDAKWO (2003) ALL FWLR (pt. 171) 1715, 1736.

Learned counsel for the 1st Respondent has conceded that the lower tribunal actually erred in its arithmetic calculation in what was deducted from the total votes credited to the Appellant.

The 1st Respondent has added that, in adding up the voided votes of the Appellant, the trial tribunal also mistakenly, used the amount of 2,895 instead of 2985 on account of non accreditation to arrive at 5,596 votes as voided votes for the Appellant.

Counsel then contended that the correct computation shall now be as follows:-

(i) Appellant

(a) Votes from over-voting – 2701

(b) Votes from non accreditation- 2985 instead of 2895 as mistakenly stated.

Total = 5,686.

(ii) 1st Respondent

(a) Votes from over voting – 206

(b) Votes from non accreditation – 560

Total = 760

The total valid votes for the Appellant and the 1st Respondent shall now read:-

Appellant

(a) Votes credited = = 13,237

(b) Votes voided by tribunal = 5,686

Total = 7,551

1st Respondent

(a) Votes credited = 6,954

(b) Votes voided by Tribunal = 766

Total valid votes = 6,188

Learned counsel for the 1st Respondent has therefore accepted that, the Appellant’s majority votes shall now be 1,363 votes and not 1,453 votes as canvassed by the Appellant or 95 votes as mistakenly and wrongly stated by the lower tribunal.

At this stage, learned counsel for the 1st Respondent has postulated that despite the victory of valid votes scored by the appellant, the trial tribunal had made a finding of substantial noncompliance against the election which resulted in the voiding of a wide and colossal 10,714 votes, and that the trial tribunal was right in not upholding the declaration and return of the Appellant.

That the lower tribunal’s nullification of the election was based on the provisions of section 146(1) of the Electoral Act, 2006.

Learned Counsel referred to sections 147 (i) as well as section 145 (i) of the Electoral Act, and relied on the cases of NWOSU VS. IMO STATE ENVIRONMENTAL AUTHORITY (supra);

OPUTEH VS. ISHIDA (1993) 3 NWLR (pt. 279) 34 and urged this court to resolve issues 1 and 5 in their favour and against the appellant.

On the part of the 2nd to 84th Respondents, learned Attorney General of Oyo State filed their brief of argument dated 10-05-2008 but filed on 12-05-08. The Respondents raised solo issue for determination as follows:-

“Whether on the state of facts presented and the law, the lower tribunal did not err in nullifying the Appellant’s election.”

Learned Attorney General reproduced the claim reliefs sought by the 1st Respondent at the lower tribunal which were two grounds namely:-

(a) That the election was invalid by reason of non-compliance with the provisions of the Electoral Act; and

(b) That the 1st Respondent was not duly elected by majority of lawful votes.

The other set of Respondents have argued that the lower tribunal found that the criminal allegations of thuggery, brazen brigandage and coercion were not proved, and that therefore the ground of corrupt practices is no longer an issue, though the same lower tribunal, by relying on exhibits 1, PE.9 and PE.10, held that there were over voting and non-accreditation based on which the Appellant’s and 1st Respondents votes were deducted before it arrived at the parties’ valid votes. Learned counsel has submitted that, it is trite law that a tribunal has the right to compute figures where there is a dispute as to the correctness of the figures as the situation in the instant appeal, and relied on the cases of NGIGE VS. OBI (2006) ALL FWLR (pt. 330) 1041- 1139 SAM VS. EKPELU (2000) 1 NWLR (pt.642) 582, 596.

In regards to the Appellant’s argument on section 54(2) of the Electoral Act, the 2nd – 84th Respondents have contended that, the trial court should have considered the other subsections (1) (2) (3) and (4) of section 54 of the Act and not only subsection (2) as done by the lower tribunal. In their analysis, the 2nd to 84th Respondents are urging that having found that after cancelling the results in the affected units, the Appellant still won, the lower tribunal ought to have dismissed the petition on the ground that the second ground of the petition had failed. In other words, learned counsel for INEC and its agents (2nd – 84th Respondents)are in accord with the Appellant in this appeal.

Now, I have carefully considered the parties briefs of arguments and the findings of the lower tribunal on which the entire election was nullified and ordered a fresh election in the entire House of Assembly election in Lagelu Constituency of Oyo State.

As stated earlier on in this judgment, the 1st Respondent who was the Petitioner based his petition on two grounds and three reliefs. The two grounds are:

(a) That the election was invalid by reason of corrupt practices or non compliance with the provisions of the Electoral Act, 2006.

(b) That the 1st Respondent was not duly elected by majority of lawful votes.

In my considered view, 1st Respondent alleged thuggery, brazen brigandage and coercion of opponents, being criminal offences in election matters. The Petitioner called a total of 18 witnesses who forcefully testified in connection with the crimes. The petition-hearing commenced on 20-11-07 and Petitioner’s witnesses PW1- PW17 testified and were all cross examined as contained at pages 339M – 339JJ of the record. Petitioner witnesses (PW) PW1, PW7, PW8, PW9, PW10, PW12, PW13, PW14, PW15, PW16, PW17, PW18 and PW24 adopted and relied on their written statements on oath. All parties and the tribunal were given the written statements on oath and were properly admitted without objection by the Respondents. The Petitioners witnesses went further in their additional evidence in chief before the trial court. PW1 named Isau Ajetomobi said in his statement on oath as contained at page 23 of the record is relevant. He testified as follows at page 338N – 339Q – Under cross examination he said 1st Respondent was there.

“(9) This issue was still being contested when the 1st Respondent emerged with some Political thugs heavily armed with guns and other dangerous weapons.

(10) The 1st Respondent having threatened us and assaulted some people with the thugs, directed some people dressed in Mopol uniforms but without name tags to go and keep us inside one classroom.

(11) From where we were kept, I saw the thugs brought by the 1st Respondent stuffing the ballot box proved with ballot papers.

(12) After the exercise, the 1st Respondent directed that we be released.”

PW9 named Basiru Akinosun stated in his statement on oath and during evidence in-chief at pages 29 and 3397 of the record as follows:-

“( 4) On getting there I saw Femi Akintunde leading wild looking political thugs heavily armed with dangerous weapons and they threatened to attack me,”

PW2 named sule Fajobi stated in his statement on oath and evidence in-chief as contained at pages 34 and 339S respectively of the record as follows:-

” ……………………….

(3) I succeeded in forcefully retrieving the already thumb printed ballot papers in favour of the 1st

Respondent from the two people but no sooner had I done this than the 1st respondent arrived at the station with some political thugs and wild looking supporters.

(4) The thugs who were led to the station attacked me and collected the ballot papers from me which they immediately stuffed into the ballot boxes.

(5) The 1st Respondent later personally supervised the massive multiple voting that ensued with the remaining unused papers and this led to overvoting at the unit.

(6) …………………………

(7) The 1st Respondent infact brought out some ballot Papers from his pocket, which were also freely used in the multiple voting exercise.

The statement on oath of PW-Ayuba Oladejo is at page 36 of the record and is similar to the evidence of Sule Fajobi stated at page 34 of the record.

The evidence of PW12 named Ogundiran Ismail is at page 339BB to page 339CC of the record. He adopted his statement on oath as contained at page 67 of the record. It reads as follows:-

” …………………………..

(4) Voting had just started and about 30 voters must have cast their votes when thugs invaded the polling station and ordered all voters and agents who were not for P.D.P. to vacate and disappear from the polling unit.

(5) The thugs were armed with weapons such as guns, cutlasses, charms, cudgels and clubs.

(7) I took to my heels and from my hiding place not too far from the polling station, I saw how the thugs engaged in massive multiple voting and the thumb printing ballot were being stuffed into the two ballot boxes.”

The evidence of PW16, Pastor Abayomi Sunday, is very relevant to the issue of brigandage, thuggery, violence and threat relied upon by the Petitioner. The statement on oath and the evidence in chief as well as cross examination are contained at pages 39 – 40 and 339FF of the record., The statement on oath was adopted and tendered which was marked as Exhibit PE6(xiv) is as follows:-

“…………………………..

4 …..I saw the party agent of the 1st Respondent with some Political thugs engaging in massive multiple voting for the 1st Respondent.

5. I also observed that the ballot box was placed inside a classroom but the inkpad outside on the Presiding Officers table with which the party agent of the 1st Respondent was carrying out the wrongful act.
6. All this stage, one of the stalwarts of the P.D.P. in the area, Dr. Banjo Laditi challenged me and expressed my reservations that a person of his statue would engage in such exercise.
7. In the process, one Kehinde Olajire (a.k.a. Adole) who had earlier threatened me left in anger and came back with Political thugs loaded in three buses and armed with guns and other dangerous weapons and now disrupted the poll, chasing away all voters.
8. Before I left, I witnessed massive multiple voting.
9. I swear to this affidavit in good faith, believing the contents to be true and in strict compliance with the Oaths Act.”

During examination in chief, PW16 adopted the said statement as his evidence before the tribunal and there was no any serious cross-examination.

PW17 Rasheed Alaro also made a statement on oath and adopted the statement as his evidence in chief. At page 339FF the witness further re-iterated that the election in his unit 005 ward II was not free and fair as thugs were at the polling unit on the election date.

PW18 Engineer Oyelami made his statements on oath as contained at pages 69 – 70 of the record. He adopted his statements on oath as his evidence in chief which is contained at page 339GG. The relevant statement on oath and his further evidence in chief are as follows:-

2. In most of the polling units I visited, the poll was marred by corrupt practices, massive irregularities or malpractices and stupendous violence.
3. On the Election Day, I visited most of the polling stations in wards 04, 07, 08 and 09.
4. In units 001 and 002 of ward 04, a notorious stalwarts of the 1st respondent’s party (PDP) led political thugs and garage touts to cart away ballot boxes, papers and other materials having chased away all party agents of contestant except that of the 1st respondents party.
5. Also, units 004, 005, 006 and 010 witnessed incidents of multiple voting in public glare in favour of the 1st respondent as Alhaji decimal forced presiding officers to give ballot paper to the thugs led to the station by him who then voted massively for the 1st respondent in turn.
6. Duly accredited voters at Odo Oba unit 008 of ward 07 were held hostage for hours by thugs who in the public glare snatched ballot papers and voted massively for the 1st Respondent without any assistance from the presiding officers.
7. At Lalupon Central Mosque unit 004 in ward 08 (my own ward), 1st respondent’s agents and supporters led by Messrs Tola Ajayi, Lafioye Akinmoyede, Azeez Ajayi and Kola Salala led political thugs sponsored by the 1st Respondent to cart away the ballot box and other materials which incident was reported at the Lalupon Police station.
8. Similar ugly scenes were recorded in most polling stations of ward 09 visited by me.” (the underlines are for emphasis)

It is very pertinent at this stage, to critically look at the basis on which the lower tribunal set aside the entire election held on 14-04-07 and ordered for a retrial. It is the principle of appellate Courts that the evaluation of evidence and ascription of probative value are the primary functions of the trial court or the Tribunal as the case may be, who saw, heard and assessed the witnesses.

No doubt, the role of the appellate court is limited where the parties’ complaints are questioning the evaluation of the trial court or Tribunal’s. Where however, the lower trial court failed to employ the advantage of its seeing, hearing and assessing the evidence of witnesses in its evaluation, the evidence led orally and by documentary evidence is there for the appellate court to evaluate and ascertain whether or not it can be relied upon. See MAIJAMA’A VS. THE STATE (1964) ALL NLR 205; AWUDU VS. DANIEL (2004) ALL FWLR (pt. 225) 10; NWACHUKWU VS. NWOSU (1990) 7 NWLR (pt. 162) 72. As earlier pointed out in this judgment, the lower tribunal found in its judgment at page 367 – 373 of the record that there were irregularities and noncompliance of the Electoral Act, 2006 by over voting and lack of accreditation in the units complained and pleaded. But the lower tribunal also said that the criminal allegations of thuggery, brazen brigandage and threat and violence were not proved. The tribunal was of the view that criminal offence’s pleaded and proffered by the Petitioner’s witnesses were not proved beyond reasonable doubt. At pages 363 & 364 of the record, the tribunal in its judgment states as follows:-

” with respect to other allegations in its petition, most of which we have set out before to proof them, and from such allegations to have any effect in the election, there must be cogent and compelling evidence, linking the perpetrators of the offence with the respondent, generally it must be proved that the perpetrators were agents of and had express authorization of the 1st Respondent to carry out the acts constituting the misconduct. See FALAE VS. OBASANJO NO.2 (1999) 4 NWLR.

Here apart from PW1 and PW2, who mentioned the name of the 1st Respondent as being among thugs in Olorunde, all other witnesses mentioned separate and different persons whose relationship with the 1st Respondent was not established by evidence. Even if they alleged to be members of the same political party with the 1st Respondent the Court of Appeal said that it is not enough to hold that the 1st Respondent responsible for their misconduct again. See. FALAE VS. OBASANJO NO.2 (supra) ”

In my firm believe, the above decision of the lower tribunal was a serious omission on its part because, it did not consider the impact of the underlined statement on oaths of PWs which were admitted as exhibits and were further cross-examined before the trial court. It is no more in dispute that PW1 and PW2 clearly proved that 1st Respondent came along with his thugs and physically assaulted PW1 and PW2 and others by threat of life and body, with heavy arms like gun and other weapons. Not only that, the 1st Respondent personally directed how PW1 and PW2 were to be punished by beating and locking them in a class room.

In my view, the proof of criminal act on the 1st Respondent but now appellant had shifted to him to disprove. His statement on oath and his oral evidence was not enough. He merely denied it by saying that he contested the election on the platform of P.D.P. and he cast his vote at Ekerin Ijanram in ward 3 of Lagelu Local Government and remained in the village throughout the conduct of the election. The 1st Respondent’s weak evidence can not remove his criminal act in moving and directing his thugs by violence. Moreover, the totality of the evidence of all the Petitioners witnesses (Pws) is that the other criminal thugs who were directed were agents of the 1st Respondent. The names that were mentioned are Dr. Banji Laditi, Alhaji Decimal, Tola Ajayi, Lalioye Akinmoyede Azeez Ajayi, Kalil Solala. Femi Akintunde etc. All these thugs were referred to as agents of the 1st Respondent. Since the tribunal had the oral and documentary evidence, it is settled that where there is oral and documentary evidence, documentary evidence should be used as a hanger to assess oral testimony – see the decision of this court per Salami, JCA in JINADU VS. ESURONBI – ARO (2005) All FWLR (pt.251) 349, 382.

I am of the considered opinion that if the lower tribunal had properly adduced its mind to the documentary exhibits named by the Petitioners witnesses’ statements on oath which were lawfully tendered and adopted without any objection, it would not have fallen into the wrong conclusion that the allegation of criminal offence was not established beyond reasonable doubt. That wrong finding and conclusion is hereby set aside because the Tribunal was selective in accepting and rejecting the documentary and oral evidence of the Petitioner’s witnesses. The choice of selection is perverse. The Tribunal accepted only the evidence of the Petitioner, that, over-voting occurred in all the units listed as well as non-accreditation in the same units, and then used over-voting and non-accreditation as their basis on which they set aside the election. In my considered view, the proper order is to set aside the entire election in Lagelu Constituency of Oyo State House of Assembly based on section 145 (1) (b) (c) of Electoral Act, 2006.

The 2 grounds, namely:-

(b) That the election is invalidated by reason of corrupt practices or noncompliance with the provisions of Electoral Act, 2006.

(c) That the respondent (now appellant) was not elected by majority of lawful votes cast at the election.

This order is made pursuant to section 145 (i) (b) and (c) of the Electoral Act, 2006 and I so declare.

The Appellant’s issue 2 is related to issue No.1. Learned counsel for the appellant and the 1st Respondent had meticulously argued the wrong arithmetic calculation of valid votes declared, minus the invalid votes carried out by the lower Tribunal at page 376 of the record which I had earlier reproduced above in this judgment. I am in total agreement with the argument of both parties that the Tribunal was wrong in its arithmetic calculation in respect of valid votes minus the invalid votes. The original score declared by 2nd Respondent (INEC) of the then 1st Respondent but now appellant, was 13,237. His voided votes is 5,596 votes and not 6,954 votes, as wrongly calculated by the Tribunal. The correct valid votes for the Appellant now is 7,641.

Learned counsel for the 1st Respondent conceded that the lower Tribunal actually erred in its arithmetic calculation in what was deducted from the total votes credited to the Appellant.

Counsel for the 1st Respondent has also pointed the further wrong calculation made by the Tribunal in respect of voided votes for the Appellant where it used the figure of 2,895 instead of the correct figure of 2,985 of non-accreditation. There is no doubt in my considered view that, despite the victory of valid votes minus voided votes, the present appellant is still leading with a valid votes of 7,641 against the 1st Respondent’s valid votes of 6,188 votes, thus leading ahead with 1454 votes. In my considered view, the Tribunal’s erroneous calculation and nullified the entire election has not occasioned a miscarriage of Justice on the appellant. The main basis, was on the ground that the election was nullified for non-compliance by way of non accreditation and over-voting which amounted to colossal figure of 10,714 votes and that it amounted to substantial non compliance as petitioned by the then Petitioner, but now 1st Respondent.

At this stage, I have to re-iterate that, my finding is that, not only was the election marred by non-compliance by way of non accreditation and over-voting, but the entire election was marred by violence, brigandage and criminal acts which were committed by the present appellant and his agents. That acts of criminality was fully established by the 1st Respondent’s witnesses especially PW1 and PW2 whose evidence were not dislodged and they remained solid like Rock of Gibralter. The provisions of section 146 (1) of the Electoral Act, 2006 is not applicable to this appeal matter because the Tribunal had found that there was glaring fact that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act, which is pursuant to section 145(1) (b) and (c) of the Act, 2006, that read as follows:-

“S.145 (1) An election may be questioned on any of the following:-

(b) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act.

(c) That the Respondent was not duly elected by majority of lawful votes cast at the election, or

(d) (not applicable).”

I had earlier stated that the provisions of section 146(1) of the electoral Act is not applicable in the instant appeal because the provision has stated as follows:-

“S.146(1).

An election shall not be invalidated by reason of non-compliance with the provisions of this Act if it appears to the election Tribunal or court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially

the result of the election.”

The principles of interpretation of statutes is that where the words are unambiguous and clear, the court is enjoined to avoid going beyond the meaning and intendment of the legislative interpretation of that statute. See BUHARI VS. OBASANJO (2005)13 NWLR (pt. 941) 1; YUSUF VS. OBASANJO (2005) 18 NWLR (pt. 956) 96; N.P.A. PLC VS. LOTUS PLASTICS LTD (2005) 19 NWLR (pt. 959) 158 and A.D.H. LTD. VS. A. T. LTD. (2006) 10 NWLR (pt. 898) 635.

In the instant matter, section 147(1) of the Electoral Act, 2006 provides;-

“147(1) Subject to subsection (2) of this section, if the Tribunal or the Court as the case may be determined that a candidate who was returned as elected was not validly elected on any ground, the tribunal or the Court shall nullify the election.”

In the instant appeal, I have found that the return of the then 1st Respondent, but now Appellant, made by the 2nd Respondent (INEC) is nullified on the ground that the election was marred by violence, thuggery, and armed brigandage which affected the conduct of the election, substantially by frightening legal voters from lawful voting on the election day of 14-04-2007.

I therefore resolve Appellant’s issues 1 and 2 respectively against the Appellants and in favour of the 1st Respondent. I order that the election is completely nullified and I order that the 2nd Respondent (INEC) is to conduct a new election in the House of Assembly Constituency in Lagelu, Oyo State, within 90 days from today.

I am of the view that it is no more necessary to consider the remaining Appellants or parties issues no 3-5 as it will amount to academic exercise. Moreover, it is settled principle of law that an appellate court is not bound or under a duty to take all issues formulated by the parties before it can determine the outcome of the appeal. See the cases of OKORO VS. THE STATE (1988) 12 SC 191, LEMOLE VS. THE REGISTERED TRUSTEES OF CHERUBIM & SERAPHIM CHURCH OF ZION (2003) 3 SCNJ 39; LATUNDE VS. BELLA LAFUFIN (1989) 5 SC 59 and the unreported decision of this court in CA/I/EPT/HA/30/2008 between AHMED SAKA VS. PELUMI ADEBOYE delivered on 1-06-2009.

In the final analysis, the appeal has no merit and is hereby dismissed by me. Costs of N30,000.00 in favour of the 1st Respondent and against the Appellant.

I order that the election is to be conducted timeously in accordance with the principles of the Electoral Act, 2006.

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Other Citations: (2009)LCN/3367(CA)