Adeleke Jelili A. V. Orimidara Adesanya Adebomi & Ors (2009)
LawGlobal-Hub Lead Judgment Report
MODUPE FASANMI, J.C.A.
This is an appeal against the judgment of the Election Tribunal in the Governorship and Legislative House Tribunal Holden at Ibadan delivered on the 5th of Dec. 2007 wherein the declaration and return of the Appellant was nullified on wrongful exclusion of the 1st & 2nd, Respondents from, the election conducted on the 14th of April, 2007 by the Independent National Electoral Commission (INEC) and consequently ordered a bye election to be conducted into Akinyele Constituency I of the Oyo State House of Assembly.
Briefly, the facts are that Adesanya Orimidara Adebomi and Alliance for Democracy who are the 1st and 2nd Respondents before this Court by a petition dated the 14th of May, 2007 challenged the declaration and return of the Appellant by the Independent National Electoral Commission based on valid nomination but wrongful exclusion of the 1st & 2nd Respondents from the election conducted on the 14th of April, 2007. It is the case of the 1st & 2nd Respondents that the 2nd Respondent (Alliance for Democracy) sponsored the 1st Respondent Adesanya Orimidara Adebomi for the election of 14/4/07 to the Akinyele Constituency I of Oyo State House of Assembly. Consequent upon the nomination and sponsorship of the 1st Respondent by the 2nd Respondent, the Independent National Electoral Commission included their names in the list of candidates for the general election of April 2007 to be conducted.
Subsequent to the inclusion of the names of the 1st Respondent in the list of cleared candidates, the Independent National Electoral Commission failed to put or endorse the logo of the 2nd Respondent on the ballot papers which were used for the election of 14/4/2007 and 21/4/2007 as released and certified by the Independent National Electoral Commission. The Certified True Copy of the list of nominated candidate as prepared by Independent National Electoral Commission was tendered as Exhibits PE2 and PE3.
The Appellant and 3rd & 5th Respondents denied that the 1st Respondent was a candidate at the election of 14/4/2007 and they pleaded a list of cleared candidates for the election of Akinyele Constituency 1.
Contrary to the pleadings, the Appellant and 3rd & 5th Respondents tendered a list for Akinyele Constituency II.
The Tribunal after evaluating the oral and documentary evidence placed before it found that the 1st & 2nd Respondents were validly nominated but unlawfully excluded from the election of 14/4/2007. The election and return of the Appellant were thereby nullified.
The Appellant being dissatisfied with the judgment of the Election Petition Tribunal appealed. He filed his notice of appeal on the 24th of Dec. 07 containing 13 grounds of appeal to which a sole issue was formulated. The notice of appeal is at pages 188-192 of the record of appeal.
Learned Counsel for the Appellant filed the Appellant’s brief of argument dated and filed on 21/4/08 while learned Counsel for the 1st & 2nd Respondent’s filed his brief of argument on the 28th of April, 08. Learned Counsel for the 3rd – 5th Respondents filed his brief of argument on the 28th of April, 08. The Appellant’s reply brief to the 1st & 2nd Respondents brief of argument was filed on the 5th of May, 08.
Learned Counsel for the 1st & 2nd Respondents informed the court that he had a preliminary objection on behalf of the 1st & 2nd Respondents which had already been embedded in the brief filed on 28th April 08. The preliminary objection is contained on page 2 paragraphs 3-3.2 of the brief. He adopted and relied on the argument on the preliminary objection in the brief. He submitted that the only issue raised by the Appellant did not relate to any of the 13 grounds of appeal. The consequence of this is that the issue will be struck out and the appeal dismissed. He referred to the issue will be struck out and the appeal dismissed. He referred to SHANU V. AFRIBANK NIG. PLC (2002) 17 N.W.L.R Part 795 page 185 at 225-227 and IBATOR V. BARAKURO (2007) 9 N.W.L.R Part 1040 page 475 at 503 paras B-E. He submitted that the issue was not formulated from the grounds of appeal
In response to the preliminary objection, the Appellant filed a reply brief at page 1 para 1.1 of the Appellant’s reply brief to 1st and 2nd Respondents brief of argument. Learned Counsel to the Appellant submitted that the 1st & 2nd Respondents ought to have filed a formal notice of objection pursuant to Order 10 rules 1-3 of the Court of Appeal Rules. She relied on LAGGA V. SARHUNA (2009) ALL F.W.L.R Part 455 pages 166-167 at 1660 paras A-D.
Learned Counsel submitted that the lone issue covered the 13 grounds of appeal and therefore does not affect the competency of the appeal. The lone issue is the stratum of the entire appeal. Learned Counsel to the Appellant urged the Court to discountenance the objection.
It is the law that issues for determination in an appeal must flow from or be predicated on the grounds of appeal filed by the Appellant challenging the decision of the lower Court. No party or Court is allowed to formulate any issue which is not related to the grounds of appeal. See the cases of NWOSU V. UDEAJA (1990) 1 N.W.L.R Part 99 at 514, OBASANJO V. YUSUF (2004) 9 N.W.L.R Part 877 at 144 and STATE V. OKOYE (2007) 16 N.W.L.R Part 1061 page 607 at 667 paras E-G.
In the instant appeal, I have gone through the 13 grounds of appeal at pages 188-192 of the record and I agree with the learned Counsel for the Appellant that the lone issue formulated by the Appellant is the stratum of the appeal. It is not the number of issues that matters but how relevant the issues are to the grounds of appeal. See the cases of ANIMASHAUN V. U.C.H. (1996) 10 N.W.L.R Part 476 at 65; OGUNDERE V. OGUNLOWO (1997) 6 N.W.L.R Part 509 at 360; ATANDA V. AJAYI (1988) 3 N.W.L.R Part 111 at 511 and MERCANTILE BANK OF NIGERIA PLC. V. NWOBODO (2000) 3 N.W.L.R Part 648 at 297. The Court held that the lone issue is not wide and it is supported by the grounds of appeal. The purpose of issues for determination is to enable the parties narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity. See IBIKUNLE V. LAWANI (2007) 3 N.W.L.R Part 1022 PAGE 580 at 590-591 paras H-H.
A Respondent intending to rely upon a preliminary objection to the hearing of an appeal is required to give the Appellant three clear days notice there-of before the hearing, setting out the grounds of the objection, and to file such notice together with twenty copies thereof with the Registrar within the same time. If the Respondent fails to comply with the rules, the Court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the Respondent or may make such order as it thinks fit. However, the notice can be given in the Respondent’s brief but the party filing it in the brief must ask the Court for leave to move the objection before the hearing of the appeal commences. This provision has been given judicial interpretation in a plethora of cases. The three clear days notice is mandatory and must be complied with before argument can be heard on the preliminary objection even where raised in the brief of argument. See NSIRIM V. NSIRIM (1990) 3 N.W.L.R Parts 138 at 285; AREWA ILES PLC V. ABDULLAHI (1998) 6 N.W.L.R Parts 554 at 508; MARAYA PLASTICS LTD V. INLAND BANK (NIG) PLC (2002) 7 N.W.L.R Parts 765 at 109: BANK OF THE NORTH LTD V. AKINTOYE (1999) 12 N.W.L.R Parts 631 at 392.
The purpose of Order 10 rules 1-3 of the Court of Appeal Rules 2007 is to enable the Appellant prepare to meet the objection at the hearing of the appeal. Where no notice is served on the Appellant, the preliminary objection will be incompetent and will not be considered in the determination of the appeal. In the instant appeal the Respondent incorporated the preliminary objection in the 1st & 2nd Respondents brief which was dated and filed on the 28th of April 08. The Appellant filed a reply brief where he responded to the objection. The Respondents paid for filing and service of the brief. The appeal was argued on the 29th of Sept. 09. Rather than 3 days notice, they gave one year and five months notice. The Court therefore holds that 1st & 2nd Respondents have complied with the Court of Appeal Rules. See OKOLO V. UNION BANK LTD. (1998) 2 N.W.L.R Part 539 at 618 and STATE V. OKOYE (2007) 16 N.W.L.R Part 1061 page 607 at 642 paras C-D and 643 paras C-D. The preliminary objection has complied with the 3 clear days notice. However, as the only issue relates to or is relevant to the grounds of appeal, the preliminary objection lacks merit, misconceived and should be discountenanced. I therefore hold that the preliminary objection of the 1st & 2nd Respondents lacks merit. It is hereby overruled and accordingly dismissed.
On the main appeal, briefs of argument were filed and exchanged in accordance with the practice of this Court. At the hearing of the appeal, learned Counsel for the Appellant and 1st – 2nd Respondents Counsel adopted and relied on their respective briefs of argument. In addition, learned Counsel expatiated on the briefs filed on behalf of their respective clients. Learned Counsel for the 3rd – 5th Respondents wrote to Court explaining his absence from Court. He adopted and relied on the brief of argument filed on behalf of the 3rd-5th Respondents. The brief was deemed as properly argued. The sole issue identified by the Appellant as calling for determination is whether on the admissible evidence and the pleadings before the Court, the 1st Respondent was validly nominated but unlawfully excluded from the election.
1st-2nd Respondents formulated the following issues for determination:
(i) Whether the Election Tribunal Justices were right in holding and relying on exhibits PE2 and PE3 as the final list of nominated candidates for the April 2007 general election as compiled by Independent National Electoral Commission (INEC) for the purpose of determining the cleared candidates for the election into Akinyele Constituency I of Oyo State House of Assembly, Grounds 2, 8, 9, 10 and 12 of the notice of appeal.
(ii) Whether in all circumstances of this petition, the Election Tribunal was right in making the order nullifying the election and return of the Appellant (1st Respondent)and in granting an order for bye-election to be conducted for the entire Akinyele Constituency I of Oyo State House of Assembly. Grounds 1, 3, 4, 5, 6, 7, 11 and 13 of the notice of appeal.
Learned Counsel for the 3rd-5th Respondents in his brief of argument agreed with the Appellant’s counsel that the sole issue for determination is whether on the admissible evidence and the pleadings before the court the 1st Respondent herein was validly nominated but unlawfully excluded from the election.
The purpose of issues for determination is to enable the parties narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity See IBIKUNLE V. LAWANI (2007) 3 N.W.L.R Part 1022 page 580 at 590-591. Proliferation of issues which serve no useful purpose should be avoided as appeal is not won based on the quantity of issues that are formulated but on the quality of such issues. See OGUNYADE V. OSHUNKEYE (2007) ALL F.W.L.R. Part 389 at 1179 and NEBO V. OKWELUME & 3 OTHERS (2009) ALL F.W.L.R Part 484 page 1508 at 1516 paras F-G.
Having set out in extenso the issues raised in the appeal, I intend to consider the appeal on the lone issue raised by the Appellant as it deals with the substantive issue in controversy in the appeal filed. The issue is also relatively the same with the issues formulated by the 1st & 2nd Respondents. I will deal with the parties as they are numbered in the process filed before this Court since the matter is now on appeal before us.
Learned Counsel for the Appellant submitted that the main contention of the parties was whether the 1st Respondent was validly sponsored and nominated by the 2nd Respondent. She referred to paragraphs 3 and 7 of the petition where it was averred thus;-
“(3) The right of the Petitioners to present this petition is that the Petitioner was a candidate at the election while the 2nd Petitioner was the registered political party that sponsored the 1st Petitioner for the said election on 14th of April, 2007.
(7) The Petitioner avers that he was validly nominated and cleared by the 2nd – 4th Respondents for the election of 14th April, 2007. The Petitioner will at the trial rely on the list of nominated and cleared candidates for the election”
Learned Counsel submitted that the Appellant and I.N.E.C, i.e. the 3rd Respondent denied the averment in the petition in their replies. The 1st-2nd Respondents in their reply to the Appellant & the 3rd-5th Respondents maintained that 1st Respondent was the only candidate whose name was ever submitted to I.N.E.C. She submitted that since the case of the 1st & 2nd Respondents is that the 1st Respondent was the original and only candidate ever sponsored by Alliance for Democracy and no name or list was submitted in December 2006, the document evidencing the submission of his name should have been tendered in proof of his case. Learned Counsel referred to Section 106 of the 1999 Constitution of the Federal Republic of Nigeria which States that a person shall be qualified for election as a member of a House of Assembly if:-
“(d) he is a member of a political party and is sponsored by that party” she also referred to Section 32 (1) of the Electoral Act 2006 which states:
Every political party shall not later than 120 days before the date appointed for a general election under the provisions of this Act submit to the commission in the prescribed from the list of the candidates the party proposes to sponsor at the election.”
Learned Counsel for the Appellant submitted that 1st Respondent must tender the list submitted by the 2nd Respondent not later than 16th December, 2006 being a date not less than 120 days before the 14th April, 2007 when the election took place. Any list submitted after 16th December, 2006 is invalid unless such list is to substitute the candidate but must comply with Section 34 of the Electoral Act as interpreted by the Supreme Court in UGWU V. ARARUME (2007) 12 N.W.L.R Part 1048 at 367. She argued further that if the 2nd Respondent did not supply a list of names before the expiration of the date stipulated by the Act, its right to submission of name is statute barred and it could not talk of substitution of any name since it cannot build anything on nothing. She argued further that since the 1st Respondent contradicted himself during cross examination that should have been the end of the 1st & 2nd Respondents case thereby entitling the tribunal to dismiss the petition. According to learned Counsel for the Appellant, Exhibit IRE1 is the only list of candidates in the record of proceedings that was duly signed by I.N.E.C officials. She contended that there was no basis for the lower tribunal not to put full value to this exhibit and there was no basis to insinuate that the document refers to any constituency other than Akinyele I. She referred to the cases of (1) NWANCHO V. ELEM (2004) ALL F.W.L.R Part 225 page 93 at 104; (2) AUMAN (NIG) LTD V. LEVENTIS MOTORS (NIG) LTD (1990) 5 N.W.L.R Part 151 at 458.
She argued that the procedure for sponsorship is not by form EC4B (iii) a form for nomination of member of State House of Assembly and that the steps under Section 32(1) and (2) are sine qua non to a valid sponsorship. 1st Respondent did not fulfill these conditions before jumping to Form EC4B (iii).
She further argued that it was wrong for the lower tribunal to disbelieve 1RW2 the Administrative Secretary of the 2nd Respondent before this Court. Since the evidence of 1 RW2 is evidence made against interest, judgment should have been given in favour of the Appellant. The lower tribunal was wrong in relying on Exhibits PE2, PE3 and PE6 to hold that the 1st Respondent was sponsored by 2nd Respondent.
Learned Counsel finally urged the Court to hold that there is no evidence that the 2nd Respondent sponsored the 1st Respondent. Both did not participate in the election and could not expect the name and logo of AD to be on the ballot paper. They lacked the locus.
Learned Counsel for the 1st & 2nd Respondents in his brief of argument submitted that the issue borders on the relevance of exhibits PE2 and PE3 and the weight which the lower tribunal attached to the said exhibits. The 1st and 2nd Respondents in their petition at the lower tribunal pleaded the list of nominated and cleared candidates for the election of 14th April, 2007 into the Akinyele Constituency I of Oyo State House of Assembly. He referred to pages 22-24 of the record where the 1st Respondent averred thus:
“The Petitioner avers that he was validly nominated and cleared by the 2nd-4th Respondents for the election of 14/4/2007. The Petitioner will at the trial rely on the list of nominated and cleared candidates for the election.”
He also referred to pages 6-7 of the record where a list of nominated candidates for election into Oyo State House of Assembly was attached to the petition. This is at page 8 of the record. The Appellant and 3rd-5th Respondents contrary to the 1st & 2nd Respondents pleading denied that the 1st Respondent was screened, cleared and included in the list of candidates for the election into Akinyele Constituency I of Oyo State House of Assembly. Learned Counsel submitted that exhibits PE2 and PE3 were admitted without objection from the Appellant and 3rd-5th Respondents Counsel at the lower tribunal. The exhibits are Certified True Copies of a public document. The documents were pleaded by the Petitioners in para 4 (vi) of the Petitioner’s reply. Learned Counsel to the 1st & 2nd Respondents submitted that the documents are relevant to the issue in contest between the parties. He argued that since the 1st & 2nd Respondents pleaded the final list of cleared and nominated candidates for the April 2007 general election which facts were specifically denied by the Appellant & 3rd-5th Respondents at the lower tribunal in their replies, the parties have joined issues on the contents of the list of nominated and cleared candidates for the election as prepared by Independent National Electoral Commission (I.N.E.C). The content of the said final list of cleared and nominated candidates must be in evidence for the Court to come to a just determination of the case. He cited OYEDIRAN V. ALEBIOSU II (1993) N.W.L.R Part 249 page 550 at 559. He submitted that the tribunal was therefore right to have admitted exhibits PE2 and PE3 having been pleaded and relevant to the proceeding before it.
He argued further that 1st & 2nd Respondents challenged the return and the declaration of the Appellant as the winner of the election into Akinyele Constituency I of Oyo State House of Assembly based on the unlawful exclusion of the 1st & 2nd Respondents from the election of 14/4/07. Exhibit PE6 complied with the provisions of Section 33(i) of the Electoral Act 2006 which stipulates that candidates must be nominated in writing by such member of person as may be prescribed by the Commission. He submitted that it is only the 1st Respondent’s party that could complain that he has not sponsored the 1st Respondent. It is not open to the Appellant or even a court to question the validity of such nomination. He referred to OGUNBIYI V. OGUNDIPE (1992) 9 N.W.L.R Part 263 page 24 at 37. The issue is therefore settled as it is the duty of political party to nominate and that of the electoral body to accept the nomination. Learned Counsel submitted that the argument canvassed by the Appellant borders on pre-election matters which an election tribunal has no jurisdiction to inquire into. Counsel referred to JANG V. DARIYE (2003) 15 N.W.L.R Part 843 page 436 at 459-460.
Learned Counsel for the 1st-2nd Respondents finally urged the Court to hold that on the preponderance of evidence, which were placed before the Court and not challenged by the Appellant, the 1st & 2nd Respondents were wrongfully excluded from the election of 14/4/07 and the nullification and bye – election ordered by the tribunal was justified in the circumstance.
Learned Counsel for the 3rd-5th Respondents in his brief before the Court submitted that the 1st Respondent was never nominated and cleared for the election or any other purpose by the 2nd Respondent Rather it sponsored one Ajao Samuel Olugbenga who eventually withdrew from the election. 3rd-5th Respondents predicated their assertion on exhibit 1RE2. He argued further that Section 32(i) of the electoral Act 2006 stipulates the method of sponsorship. These are:-
(a) Submission of the list
(b) Not later than 120 days before the date of the election.
He referred to the case of INAKOJU V. ADELEKE (2007) ALL F.W.L.R Part 3 at 88 paras G-H where his Lordship Tobi J.S.C had thus to say:-
“It is good law that where the Constitution or a Statute provides for a pre-condition to the attainment of a particular situation the pre-condition must of a particular situation be fulfilled or satisfied before the particular situation will be said to have been attained or reached. Our common and popular pet expression is “condition precedent” which must be fulfilled before the completion of the Journey…”
Before any of exhibits PE2, PE3 and PE6 could be valid, the 1st Respondent must first establish that his name was included in the list of candidates submitted to the 3rd-5th Respondents in Exhibit 1RE2 otherwise he could not validly claim to have been sponsored. Since 1st Respondent’s name is not in Exhibit 1RE2, 1st Respondent has the onus of proving that his name was substituted and that the substitution complied with Section 34 of the Electoral Act 2006.
He finally argued that the 1st & 2nd Respondents have no locus as their pleadings do not support the evidence given. Since there is no evidence of sponsorship of the 1st Respondent by the 2nd Respondent. He urged the Court to allow the appeal.
I have carefully gone through the record of proceedings, the briefs filed by the parties and the authorities cited.
In order to prove that 1st Respondent was validly nominated by his party i.e. 2nd Respondent but unlawfully excluded from the election, 1st Respondent has to prove:
(i) That he was validly nominated by his party
(ii) That the election was conducted
(iii) That a winner was declared
(iv) That his name was not indicated in the list of contestants.
See the case of EFFIONG V. IKPEME (1999) 6 N.W.L.R Part 606 page 260 at 274-275 where it was held that the Petitioner must not only state the above requirement in his petition, he must specifically prove them at the trial.
The pleadings of the 1st Respondent dated 14/5/07 at pages 1-3 of the record wherein he stated that he was the validly sponsored and nominated candidate for Alliance for Democracy i.e. 2nd Respondent for the election to the Oyo State House of Assembly for Constituency I, Akinyele Local Government held on 14/4/07 referred. He stated inter alia in paras 3 & 7 thus:-
(3) The right of the Petitioners to present thus petition is that the Petitioner was a candidate at the election while the 2nd Petitioner was the registered political party that sponsored the 1st Petitioner for the said election on 14/4/07
(7) The Petitioner avers that he was validly nominated and cleared by the 2nd – 4th Respondents for the election of 14/4/07.
In proof of this assertion, 1st Respondent tendered 8 exhibits.
Amongst the exhibits are:-
(i) A subpoena issued to the Secretary of the Election Tribunal to tender Court processes relating to nominated candidates for Oyo State House of Assembly Election filed by Independent National Electoral Commission (INEC) in suit no. LH/EPT/IB/14/07 between Saliu Adebayo &. Aro. V. John Laoye Ojedokun &. Anor Exhibit PE1
(ii) The Independent National Electoral Commission (I.N.E.C) Court processes in suit no. LH/EPT/IB/14/07 Exhibit PE2
(iii) The Independent National Electoral commission (I.N.E.C) list of nomination candidates for the election in Oyo state Exhibit PE3
(iv) The declaration of result form for Akinyele constituency I Exhibit PE4
(v) A certified True Copy of ballot paper for the election of 14/4/07 Exhibit PE5
(vi) A certified True copy of the 1st petitioners nomination form – Form EC4B (iii) Exhibit PE6
(vii) Temporary voters card of Ademola Asawale (PW3) Exhibit PE7
The Appellant in his reply to the 1st Respondent’s pleading stated that 1st Respondent was not a candidate at the State Assembly Election held in Akinyele Local Government Constituency as the 2nd Respondent did not sponsor any candidate at the said election. He went further to state that:
(i) The 2nd Petitioner presented the name of one Ajao Samuel Olugbenga for the House of Assembly Election in Akinyele Constituency I
(ii) The said Ajao Samuel Olugbenga failed, neglected or registered to present himself for the verification screening at I.N.E.C’s office.
(iii) That I.N.E.C therefore was unable to screen or clear the said Ajao Samuel Olugbenga for the election.
An election petition being a civil matter in nature, the determination is on a preponderance of evidence placed before the court. See MOGAJI & OTHERS V. ODOFIN & OTHERS (1978) 4 S.C PAGE 91 AT 94 AND 95; I.N.E.C V. A.C (2009) ALL F.W.L.R Part 480 at 732 particularly at 784.
Pleadings per se are not evidence themselves and if not substantiated by evidence in proof of same, are deemed abandoned and liable to be struck out. See ATTORNEY GENERAL OF ANAMBRA STATE V. ATTORNEY GENERAL, FEDERATION (2005) ALL F.W.L.R Part 268 at 1557, (2005) 9 N.W.L.R part 931 at 572; EZEANAH V. ATTAH (2004) 7 N.W.L.R PART 873 AT 468; ALAO V. AKANO (2005) 11 N.W.L.R PART 935 AT 160; BALOGUN V. AMUBIKANHUN (1985) 3 N.W.L.R PART 11 AT PAGE 27 AND I.N.E.C V. A.C (2009) ALL F.W.L.R PART 480 AT 732 PARTICULARLY AT 803 PARAS F-H.
1st Respondent led evidence in support of his pleadings and tendered exhibits. 3 witnesses were called by the 1st Respondent. The Appellant too testified and called in all 4 witnesses and tendered exhibits 1RE1-1RE3.
The evidence of the 1st Respondent who was PW2 at the lower Tribunal and evidence of PW3 established the sponsorship and nomination of the 1st Respondent by the 2nd Respondent.
Exhibits PE2 and PE3 are the same documents, the I.N.E.C’S final list of nominated and cleared candidates for the April 2007 General Election in which the name of the 1st Respondent is reflected therein. Exhibit PE6 is the 1st Respondent’s nomination form i.e. form EC4B (iii) indicating his sponsorship by the 2nd Respondent. 1st Respondent’s evidence at page 138N of the record goes thus:
P.W2 – “Exhibit PE in Akinyele Constituency I my name is the last name of the seven names for that Constituency (column). The party that is list against my name is Alliance for Democracy (AD)”
P.W 2 – Exhibit 5 the logo of my party is not there. Exhibit PE4 no score or result is recorded for me or my party therein and at page 138P of the record 1st Respondent says:
P.W 2 – “Exhibit (PE2), PE3 and document attached to them are Exhibit PE2 is the same. I pray the tribunal to grant my petition”
The evidence of P.W3 Ademola Asawale also supported the assertion of P.W2 i.e. the 1st Respondent. Exhibits PE2 and PE3 were admitted without objection from the Respondent’s Counsel. The Exhibits were Certified True Copies of a public document which facts and documents were pleaded by the 1st & 2nd Respondents in para 4 (vi) of their reply. In OBADINA FAMILY V. AMBROSE FAMILY (1969) 1 N.M.L.R PAGE 25 AT 30 the Supreme Court held that Certified True Copy is the only secondary evidence of public document that is admissible. The argument of the Appellant and 3rd – 5th Respondents that they are not certified will not hold.
In proof of the assertion of the Appellant and the 3rd-5th Respondents that the 1st Respondent was not a candidate sponsored by the 2nd Respondent to contest the election into the Oyo State House of Assembly Akinyele I, the Appellant and his witnesses tendered Exhibit IRE1 which is the list of candidates for Constituency 2 Akinyele 1 which has no relevance to Constituency 1 Akinyele local Government which is in dispute in the petition. Exhibit IRE2 is the list of candidates of the Alliance for Democracy (AD) for the 2007 General Election tendered by IRW2 Michael Akinropo the Administrative Secretary of Alliance for Democracy (AD) to show that the 1st Respondent was not the nominated candidate for Alliance for Democracy in the Election of 14/4/07 Oyo State House of Assembly for Constituency I, Akinyele Local Government but one Ajao Samuel Olugbenga. Although IRW2 said that Ajao Samuel Olugbenga was not substituted with the 1st Respondent, he admitted under cross-examination that there was a substituted list of exhibit IRE2. That substituted list was not placed before the Tribunal. IRW2 is therefore caught by the provision of Section 149 subsection (d) of the Evidence Act which says:
“That evidence which could be and is not produce would if produced be unfavourable to the person who with holds it”
The confirmation by 2RW1 the Electoral Officer for Akinyele Local Government that exhibit IRE 1 was the list given to him for the conduct of the election into Akinyele Local Government Constituency I will not hold in view of the fact that exhibit IRE1 is the list of candidates for Constituency 2 as reflected on the face of the exhibit. A document speaks for itself.
The findings of the learned Justices of the Tribunal at pages 170-171 of the record are apt and are not perverse. The tribunal had this to say:
“By the material contradiction in the evidence of IRW2 and 2RW1 they are not witnesses of truth whose evidence can be relied upon. Now coming to the evidence of the 1st Respondent who testified as IRW1 and the evidence of IRW3, Taoreed Jimoh that the 1st Petitioner was not a candidate at the election as he was not sponsored by the 2nd Petitioner. Under cross-examination IRW1, the 1st Respondent admitted that he does not attend the meetings of alliance for Democracy (AD) while IRW3 also under cross-examination admitted that he is not a member of Alliance for Democracy (AD) (2nd Petitioner), From the admissions of the 1st Respondent and IRW3, it follows that since they are not members of Alliance for Democracy (AD) (2nd Petitioner) do not attend their meetings, they are not therefore in a position to know the nominated candidates of Alliance for Democracy (AD)”
The evidence of the 1st & 2nd Respondents therefore remained unchallenged and the lower Tribunal was right to have acted on it. See AGOMUO & ANOR V. OGWUEGBU & ORS (1999) 4 N.W.L.R Part 599 page 405 at 413 where Aderemi J.C.A as he then was held that where evidence is unchallenged and un-contradicted the Court must act on such evidence. Again an appellate court will not interfere with the findings of a lower Court if they are not erroneous and it is right in the assessment of the evidence before it. See WOLUCHEM V. GUDI (2004) 3 W.R.N 20; KOYE V. ACTION CONGRESS (2009) 36 W.R.N PAGE 30 AT 76 lines 25-30 and JINADU V. ESUROMBI ARO (2009) 35 W.R.N PAGE 1 at pages 24-25 lines 35-5. I therefore hold that there was adequate evidence on record to support the findings and as such this Court will not interfere.
Para 4 (3) of the Election Tribunal and Court Practice Directions 2007 permits a witness to tender two categories of documents, those disputed and those referred to in the deposition. It therefore follows that a document is admissible if it satisfies anyone of the two conditions. See I.N.E.C. V. A.C. (2009) ALL F.W.L.R Part 480 at 732 particularly at 789 paras C-F. The Appellant and 3rd-5th Respondents were put on notice by the 1st & 2nd Respondents that they will tender at the trial the final list of nominated candidates for the April 2007 general election as prepared by Independent National Electoral Commission I.N.E.C. There was therefore no element of surprise in exhibits PE2 & PE3. Exhibit PE6 complied with the provision of Section 33(1) of the Electoral Act 2006 which stipulates that candidates must be nominated in writing by such member of person as may be prescribed by the Commission.
Appellant’s submission that exhibit PE2 is inadmissible under Section 34 of the Evidence Act is misconceived and inapplicable in the instant case because the purpose for which exhibit PE2 was tendered and admitted was to expose the double position taken by Independent National Electoral commission in a similar petition before the same election Tribunal. The sole purpose was to impugn and or discredit the testimony of the witness.
It is the law that objection to admissibility of a document must be made at the tendering of the document; otherwise the opposing party cannot afterwards be heard to complain about it. See ETIM V. EKPE (1983) 3 SC 12 at pages 36-38; RAIMI V. AKINTOYE (1986) 3 N.W.L.R Part 26 at page 97 SC and ALADE V. OLUKADE (1976) 2 SC 183 at 184.
The findings of the Tribunal on exhibit IRE1 is unassailable because a document speaks for itself and oral evidence is not permissible to vary the content of a document. See ADIKE V. OBIARERI (2002) F.W.L.R Part 131 at 1907. At page 39 of the record exhibit IRE1 is titled Constituency 2 Akinyele 1. This exhibit has no relevance to Akinyele Local Government Constituency I which is in dispute in the petition. I therefore hold that the exhibit is a stranger to the instant appeal.
The submission of the learned Counsel to the Appellant and the 3rd-5th Respondents that 1st Respondent was not sponsored, nominated screened or cleared have been laid to rest by the tendering of exhibits PE2, PE3, PE6 which are relevant to the issue in dispute. 1st Respondent was cleared by 3rd Respondent i.e. I.N.E.C to contest the election of 14/4/07 into the Oyo state House of Assembly Constituency I, Akinyele Local Government. In the case of IBRAHIM V. I.N.E.C (1999) 5 N.W.L.R Part 614, the Court of Appeal held that a decision of the Electoral commission allowing a candidate to contest the election is final and shall not be reviewed by an Election Tribunal or any Court of law. In UGWU V. ARARUME (2007) 12 N.W.L.R Part 1048 at 367 particularly at 400 the Supreme Court held that the issue of nomination or sponsorship of a candidate to an election is within the domestic affairs of the political parties and the court have no jurisdiction to determine who should be sponsored by any political party as its candidate to any election. See also DAILATU V. TURAKI (2003) 15 N.W.L.R PT 843 PAGE 310 AT 318 AND TSOHO V. YAHAYA (1999) 4 N.W.L.R AT 657.
The issuance of form EC4B (iii) exhibit PE6 which is the nomination form by I.N.C.E i.e. the 3rd Respondent showed that the 1st Respondent had complied with the provisions of Section 32 (2) of the Electoral Act 2006.
On the question of the locus standi of the 1st and 2nd Respondents to bring the petition there are two sets of conflicting decisions. One set of decisions endorses the concept that only a political party can file an election petition while the other is firmly of the opinion that a candidate who is denied of his mandate is entitle to present a petition. The first school of thought is reflected in the cases of OKONKWO V. I.N.E.C (2004) 1 N.W.L.R PART 854 AT 242; OKON V. BOB (2004) 1 N.W.L.R PART 854 AT 378 OR (2005) ALL F.W.L.R PART 243 PAGE 674 AT 692 AND ASINYA V. IN.E.C (2005) ALL F.W.L.R PART 247 AT 1495 OR (2005) 16 N.W.L.R PART950 AT 157.
The other school of thought that believes that either a political party or its candidate or both can present an election petition on the question of exclusion are ADEBUSUYI V. ODUYOYE (2004)1 N.W.L.R Part 854 at 406 particularly at 428; KALU V. UZAR (2004) 12 N.W.L.R PART 886 PAGE 1 AT 35 AND PPA V. SARAKI (2007) 17 N.W.L.R PART 1064 PAGE 453 AT 512.
I have carefully considered the implications of the two schools of thought I am of the firm view that the school up-holding the right of the candidate, or political party or both to present a petition where a political party’s candidate was validly nominated but was unlawfully excluded from the election to present an election petition is correct The first school by its holding that a candidate validly nominated but unlawfully excluded from the election could not present an election petition challenging the exclusion on the ground that the candidate or candidates did not contest the election is in effect rendering otiose the provisions of Section 145 1 (d) of the Electoral Act 2006. See I.N.E.C V. A.C (2009) ALL F.W.L.R Part 480 page 732 at 763-767 paras E-E per Salami J.C.A.
From the evidence on record in the instant appeal 1st Respondent was validly nominated by his party 2nd Respondent His name was submitted to I.N.E.C i.e. 3rd Respondent, the body statutorily charged with responsibility for the conduct of the election which 3rd Respondent accepted as a candidate. Going by the above premise, I am of the firm view that 1st Respondent is entitled to challenge his unlawful exclusion. 2nd Respondent i.e. the party who sponsored and nominated 1st Respondent also has locus to file petition where Exhibit PES which is the ballot paper did not reflect the logo and names of the 1st & 2nd Respondents. Where unlawful exclusion is proved, as in the instant appeal the Court is enjoined to nullify the election. See JOHN LAOYE OJEDOKUN V. FATOKUN SALIU ADEBANJO AND 2 OTHERS un-reported CA/I/EPT/LH/16/07 delivered on 7th May 2008 by this same division. The sole issue is hereby resolved against the Appellant.
I hereby affirm the decision of the lower Tribunal nullifying the election of the Appellant Adeleke Jelili A of the People’s Democratic Party (P.D.P) in respect of the election of 14/4/07 to the Oyo State House of Assembly Akinyele Constituency I delivered on the 5th of Dec. 2007. I further affirm that the consequential order made by the lower tribunal is still valid and the 3rd Respondent i.e. I.N.E.C is to conduct a fresh election for the entire Akinyele Constituency I to the Oyo State House of Assembly within 60 days from the date of this Judgment.
The cost of N30,000.00 is awarded to each set of the 1st & 2nd Respondents.
Other Citations: (2009)LCN/3449(CA)
