Ahmed Bala Ishaq & Anor. V. Independentnational Electoral Commission (INEC) & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
UWANI MUSA ABBA AJI, J.C.A.
This is an appeal against the decision of the National Assembly/Governorship and Legislative Houses of Assembly Election Petition Tribunal sitting in Lafia, Nasarawa State, delivered of the 10th December, 2007.
The 1st Appellant herein, Bala Ishaq Tafida was a candidate of the 2nd Appellant, the Action Congress (AC) at the election held on the 21st April, 2007 to the Nasarawa West Senatorial District. The 3rd Respondent, senator Abubakar D. Sodangi contested the said election on the platform of the 2nd Respondent, peoples Democratic Party (PDP). The 1st Respondent, Independent National Electoral Commission (INEC) declared the 3rd Respondent, the winner of the election having polled the highest number of votes cast at the election and returned him accordingly as the winner of senatorial seat of Nasarawa West Senatorial District of Nasarawa State.
The Appellant’s not satisfied with the election and return of the 3rd Respondent filed a petition before the Nasarawa State, National Assembly/Governorship and Legislative Houses of Assembly Election Petition Tribunal upon the following grounds:.
- That the election was marred with irregularities, malpractices and corrupt practices which is not incompliance with the provisions of the Electoral Act, 2006.
- In all the five local government areas of Nasarawa West the election materials arrived late/materials hijacked, people intimated by the army, multiple voting and thumb printing of ballot papers in hideouts etc.
The petitioners prayed for the following reliefs:-
i. An order nullifying the election in part of Nasarawa Toto, Kokona and Karu local government Areas where affected.
ii. An order invalidating the return of the 3rd Respondent as the winner of the 21st April, 2007 election to the House of Senate, Nasarawa having scored unlawful vote.
iii. An order for fresh election to be conducted by INEC which will be credible, transparent and free and fair.
iv. A declaration that the 1st Petitioner is the winner of the elections on the 21st April, 2007 having scored the lawful votes in Nasarawa West Senatorial District.
All the Respondents jointly and severally denied all the allegations raised in the petition.
The matter went to full trial whereby the petitioners called a total number of 6 witnesses.
The petitioners’ case ended with the PW 6 whereby all the Respondents jointly and severally rested their case on that of the petitioners. Written Addresses were filed by the various Respondents and adopted same at the hearing. The appellants choose not to file any written addresses.
In a considered judgment delivered by the Tribunal on the 10th December, 2007, the tribunal dismissed the petition of the Appellants. This is what he said in dismissing the petition at page 391 of the Records of Appeal.
“In the case before us, we have found herein before that the allegations of over voting, multiple voting, violence, non-voting, intimidation and thuggery have not been established to the satisfaction of this Honourable Tribunal. We dare add that they are electoral malpractices and/or irregularities which are criminal in nature, and as such they have not been proved beyond all reasonable doubt. We therefore find an (sic) hold the petitioners have failed to establish by evidence, any non-compliance with the electoral Act 2006. Therefore we do not deem it necessary to look into whether the same has substantially affected the results of the election.
The result is that this petition fails in it entirety as it is devoid of merit and same is hereby dismissed accordingly.”
The Appellants are aggrieved and appealed to this court vide a Notice of Appeal dated 29th December, 2007. The grounds of appeal without their particular are hereby reproduced.
Grounds of Appeal
Grounds One: the election petition tribunal erred in law when it discountenanced the deposition on oath of P.W 9.
Ground Two: the learned trial judge erred in law by discountenancing the deposition on oath of P.W.9 and thereof denying the petitioners their right of fair hearing.
Ground Three: the tribunal erred in law when it discountenanced the P.w.9 statement on oath.
Ground Four: the election petitioner (sic) tribunal erred in law when it refused the petitioners’ application for adjournment to call another witness in replace of p.w.9.
Ground Five: the election petitioner (sic) tribunal erred in law when it dismissed the petition on the ground that the petitioners did not prove the facts alleged in the petition.
As is the practice in this court, parties filed and exchanged briefs of argument. In the Appellant’s brief, settled by Edwin Anikwen, Esq. the following two issues were formulated for determination:-
- Whether the Appellants were given right to fair hearing, (Grounds 1, 2, 3 & 4).
- Whether the Honourable Lower Tribunal laws right in dismissing the petition.
In the 1st, 4th, 6th – 155th Respondents brief settled by Hassan M. Uman, Esq” two issues were also formulated, namely:-
i. Whether the lower tribunal was right when it disallowed the testimony of P.W.6 after it discovered that the signature on the statement on oath was forged.
ii. Whether the lower tribunal was right when it dismissed the Appellant’s Petition as lacking in merit.
The 2 Respondent’s brief was settled by Abdulkarim A. Kana, Esq. In it, learned Counsel also formulated two Issues for determination, namely:
“1. Whether the trial Tribunal was right in discountenancing the witness deposition of PW6.
- Whether the Tribunal was right in refusing to grant an adjournment for the Petitioners, now Appellants to call another witness in place of PW6.”
In the 3rd Respondent’s brief settled by Uye Ogedegbe, Esq., the following issues were formulated:
“1. Whether the Petition was competent and ought to have been heard having regards to para. 4(1) (a-d) of the First Schedule to the Electoral Act.
- Whether PW6 ought to be heard when his Statement on Oath was found to have been forged or fraudulent.
- Was the Tribunal right in closing the Petitioner’s case when they had no further witnesses?”
At the hearing of the Appeal on the 8th May, 2008, learned Counsel adopted and relied on their respective briefs of argument.
The Appellants adopted their brief of argument filed on the 18/3/2008 and their reply brief filed on the 26/3/2008 and urged the Court to allow the appeal.
The 1st, 4th, 6th, and 155th Respondents adopted and relied on their joint brief of argument dated and filed on the 28/3/2008. Uman, Esq. for the said Respondents submitted that the witness being referred to is PW6 and not PW9 as stated by the Appellant’s Counsel and urged the Court to dismiss the appeal.
The 2nd Respondent adopted and relied on its brief of argument filed on the 28/3/2008. Learned counsel for the 2nd Respondent, Kana, Esq., referred to paragraphs 4. 23 and 5.13 at pages 9 and 14 of their brief of argument and the additional authorities filed and urged us to dismiss the appeal. The 3rd Respondent also adopted and relied on his brief of argument dated and filed on the 18/3/2008. Learned Counsel referred to the unreported case of Diehard I. Akanmode &. Anor. Vs Melaye DanieLDino &. 108 Ors. Apneal No. CA/A/EP/310/07 delivered on the 27/2/2008 and urged the Court to dismiss the appeal.
Anikwen, Esq., for the Appellants submitted that the unreported -case referred to, strongly supports the Appellant’s case and urged the Court to allow the appeal.
It is the case of the Appellants as can be gleaned from the Records of Appeal that, PW6 Eddy Adigwe was an expert witness who conducted finger print examination and comparison on ballot papers used for the conduct of the Senatorial election held on the 21st April, 2007. It is their case that the Tribunal discountenanced the statement on oath on PW6 and refused to grant them further adjournment to call another witness to testify in place of the said PW6 and closed the case of the Petitioners/Appellants. That this paved way for the Respondents to have an advantage over the Petitioners/Appellants.
It is observed that throughout the 406 page record of appeal, there is no PW9 in the proceedings yet Mr, Anikwen as if unmindful of the implication continue to refer to PW6 as PW9 especially the Notice of Appeal. PW6 is the last witness in the proceedings. The attention of Mr. Anikwen, Esq. for the Appellants has been drawn to this fact at the hearing of this appeal, yet learned Counsel remained adamant and did not deem it necessary to make any application to regularize this fact by effecting the necessary correction. The continued reference to PW9 where one does not exist by the Appellant’s Counsel himself, is a misrepresentation of his own case. However, we refuse to be misled. We hereby suo motu effect the correction of PW6 in place of PW9.
I have carefully considered the issues for determination formulated by the Appellants and the respective Respondent’s counsel and it appears to me that all the issues are related. In other words, they referred to the Appellant’s grounds of appeal, except issue No. one as formulated by the 3rd Respondent’s counsel, Mr. Ogedegbe which has no correlation with the Appellant’s grounds of Appeal. The 3rd Respondent’s first issue for determination, even at the risk of repetition, reads:
1) whether the petition was competent and ought to have been heard having regards to paragraph 4(1) (a-d) of the First Schedule to the Electoral Act.
The learned Appellant’s Counsel Anikwen Esq., in his reply brief submitted that the said issue did not arise from any of the grounds of appeal filed by the Appellants; it is his view that in the absence of any Cross-appeal by the 3rd Respondent, this issue and the argument canvassed thereon ought to be discountenanced and struck out. In aid of his submission, he recited and relied on the case of Ehikhamwen Vs. Iluobe (2002) FWLR (pt, 117) 1087 at 1096 and urged the Court to strike out Issue I formulated by the 3rd Respondent.
It is settled that a Respondent wanting to raise fresh issue(s) for determination not flowing from the Appellant’s grounds of appeal must cross appeal. In the instant case, the 3rd Respondent’s 1st issue for determination is challenging the competence of the petition for the first time before this court and by extension, the jurisdiction of the Tribunal to entertain the petition. This issue not having emanated from the grounds of appeal filed by the Appellants is incompetent. See NEPA VS Savage (2001) 9 NWLR (Pt.717) 230; C.O.P. Vs. Omanukwe (1999.) 2 NWLR (Pt. 59) 190 and Onifade VS. Olayiwola (1990) 1 NWLR (Pt. 161) 130. It is only a respondent who has filed a respondent’s notice who can formulate Issues which are not dependent on the Appellant’s grounds of appeal. In the instant case, it was not in dispute that the 3rd Respondent did not cross appeal nor did he file respondent’s notice of contention pursuant to Order 9 Rule 1 of the Rules of this Court. Thus, issue one formulated by the 3rd Respondent is incompetent and liable to be struck out along with the argument canvassed thereon. See Williams Vs Daily Times (1990) 1 NWLR (pt. 124) 1, Thus, the 3rd Respondent issue No. one is irrelevant and is hereby discountenanced and struck out along with the argument canvassed thereon. See also Ehikhamwen Vs Iluobe (supra).
All the issues formulated for determination by the Appellants and the respective Respondents are centered on one thing, the right to fair hearing and the alleged wrongful dismissal of the petition by the Tribunal. I therefore adopt the issues as formulated by the Appellants in the determination of the appeal.
Learned Counsel for the Appellant Anikwem, Esq. argued issues one and two together. Arguing these issues learned Counsel submitted that one of the pillars and cardinal principles of justice is the right to fair hearing, that is, the right to be heard and be given the opportunity to be heard. He referred to Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria. It is submitted that by the provisions of paragraphs 1(1)b, 4(3) and 4(6)a of Election Tribunal and Court Practice (Amendment) Directions, 2007, a party is expected or enjoined to prepare and file witness(es) Statements on oath in form of written/sworn depositions which is to be later adopted by the witnesses. Mr. Anikwern submitted that, it is upon identification and adoption of such a sworn deposition, that the witness is then exposed to cross examination by the adversary in accordance with the provisions of Section 189(1) of the Evidence Act, cap 112, LFN, 1990. Learned counsel submitted that the Appellants obtained leave of the Tribunal to file the sworn deposition of the witness PW6 along with the report, being analysis and comparison of ballot papers used in the election to be tendered before the Court. He submitted that the witness was about to adopt his sworn deposition when objection came from the Respondents as to the witness signature on the written deposition. Learned Counsel submitted that the Court demanded the witness to sign his signature and upon comparison concluded that the two signatures are not the same and immediately discountenanced the sworn deposition of the witness PW6. It is therefore submitted that the procedure adopted by the Tribunal is unknown to law as it is only during cross examination that the veracity of a witness can be tested and not before he has given his evidence in chief. It is the view of learned Counsel that the procedure adopted by the Tribunal renders the proceedings null and void citing Sections 189(1), 199 and 200 of the Evidence Act (supra) and the case of Menakaya VS. Menakaya (2001) 16 NWLR (Pt. 738) 203. It is his view that the procedure adopted by the Tribunal in respect of the signature of PW6 on his sworn deposition and its subsequent rejection smacks of technicality of the highest order and that technicality is now a thing of the past, the ghost of which has long been interred in the grave of substantial justice, citing in support the cases of Abubakar Vs Yar’adua (2008) 4 NWLR (pt.1078) 588 per Tobi, JSC, at pages 510-512, Ajudua Vs Nwogu (No.1.) (2004) 16 NWLR (Pt.899) 56 at 73-75. It is thus submitted by Mr. Anikwen Esq. that by reason of the uncertain procedure adopted by the Tribunal before discountenancing the sworn deposition of P.W.6, the appellants were denied their constitutional right to fair hearing.
It is also submitted, having discountenanced the deposition of P.W.6, the Tribunal proceeded to close the petitioner’s case immediately even when the 1st Respondent, INEC had not fully complied with the subpoena to produce election materials in respect of some wards. It is therefore submitted by the learned counsel that both the refusal of the application for adjournment and the hasty and premature closure of the petitioners’ case deny the petitioners their right to fair hearing. It is further submitted that by discountenancing the sworn deposition of P.W.6, the Appellants were barred from leading expert evidence on the thumb printing of ballot papers used for the election and tendering the expert report thereto, thus denying the appellants the opportunity of establishing multiple thumb printing of ballot papers which is the fulcrum of the appellant’s petition before the lower court.
It is thus submitted that assuming the rejection of the sworn deposition of P.W.6 was proper, the only logical option open was to allow the appellants call another member of the team of experts to testify but who at that material time was testifying before another tribunal in Lagos and the appellants’ application for adjournment was refused and consequently was ordered to close his case. It is the view of learned counsel that if the adjournments sought have been granted, no party would have lost anything as the respondents are yet to open their case and they would have the opportunity of cross examining the proposed witness. He referred to the case of Salu Vs Egeibon (1994) 6 NWLR (Pt.348) 23 at 41-42.
It is also submitted that the appellants were denied the opportunity of presenting their case. That reliance on paragraph 5 (7) of the Election Tribunal and Court Practice (Amendment) Directions, 2007 by the Tribunal was done in violation of the provisions of Section 36(1) and 36(5) (b) & (d) of the Constitution which allows a party adequate time and facility to conduct his case and the right to examine to his witnesses.
Learned counsel further contended that the essence of section 36(1) of the 1999 Constitution allowing fair hearing within a reasonable time is to allow justice to be dispensed without in ordinate speed. That the section frowns at justice been sacrificed at the alter or expense of speed, thus the slogan, “justice rushed is justice killed.”He cited in aid the cases of Unongo Vs Aku (1983) 2 SCNLR 233 and Abubakar &. Ors Vs Yar’adua and others (Supra) Per Tobi, JSC at page 503.
Learned counsel contended that the rejection of the sworn deposition of P.W.6 and the subsequent closure of the petitioner’s case by the Tribunal rendered the Appellants case weak and technically knocked out as lacking in strength and therefore paved way for technical victory for the Respondents, thereby refusing to lead evidence and rested their case on that of the Appellants. It is also the view of learned counsel that the tribunal was wrong in holding that the witness statement was not sworn before Commissioner for Oath and that the tribunal unnecessary equated witness statement on oath to the status of an affidavit, that the tribunal would not have dismissed the petitioners’ petition. It is also submitted that if the principle of fair hearing is denied or violated, it does not matter whether if the proper thing had been done the Election would have been the same, the proceedings will still be null and void, citing in support the cases of Adigun Vs A.G. Oyo State (1987) 1 NWLR (Pt.53) 678; and Salu vs Egeibon (supra) per Adio, JSC at page 44. In conclusion, learned counsel urged us to allow the appeal and set aside the decision of the tribunal dismissing the petition as null and void and to order a retrial of the petition by another constituted panel.
Arguing issue No. one, the 1st, 4th, 6th-155th Respondents counsel Liman Esq. submitted that the Appellants were allowed to put the supposed P.W.6 in the witness box after leave was granted the Appellants to file his statement on oath out of time by the tribunal. That it was after P.W.6 claimed to have identified his witness statement on oath that the sets of Respondents raised objections on the imposition of witness signature on the document. He submitted that it was as a result of the objection by the respondents that brought to light that the signature on the document supposedly signed by the P.W.6 was indeed forged. Learned counsel referred to the record of appeal as regards what transpired before the Tribunal that necessitated the discountenancing the P.W.6 statement on oath.
Learned counsel submitted that the decision of the tribunal to discountenance the written deposition of the P.W.6 after allowing the statement on oath to be filed out of time was clearly done within the letters and spirit of the law, It is his view that what transpired on the 15/11/2007 as reflected in the record of proceedings is a classical case of fraud which could not have been allowed by any court of law to see the light of the day. It is submitted that the witness himself (P.W.6) stated in open court that he gave his hand written statement to his counsel and when objection was raised, the P.W.6 was asked to make his signature in open court which turned out to be different from the signature on the statement on oath. It is submitted by the learned counsel that the tribunal has power to verify the authenticity of the genuineness or otherwise of the making of a signature in the event of dispute as to the veracity of claim or counter claim of the making of the signature. He referred to Section 108 of the Evidence Act and also the following cases in support of his submission: – Akalomu Vs Omokaro (2003) FWLR (Pt.175) 493 at 502-503, per Salami, JCA; ACB vs. Ndoma-Egba (2001) FWLR (Pt.53) 81 at 92-93. Learned counsel further submitted that the Appellants have never denied the finding of facts of the Tribunal that the signature on the witness statement on oath was imposed and was patently different from the signature made by the said P.W.6 and compared in open court.
It is also submitted by the Mr. Liman that the submissions of the learned counsel for Appellants on this issue are unfounded and that the reference to section 36(1) of the 1999 Constitution and the cases of Abubakar vs. Yar’adua (supra); Ajudua Vs Nwoju (No.1.) (supra) and Unongo vs. Aku (Supra) will not avail the Appellants. He submitted that the Tribunal did not breach Sections 189(1), 199 and 200 of the Evidence Act. That the rejection of witness statement on oath of P.W.6 by the Tribunal does not amount to breach of the provisions of section 189(1) 199 and 200 of the Evidence Act. It is submitted that it is settled law that a party will not be allowed to benefit from his own wrong, which flows from the Latin maxim:- nollus commodum capere posttest degaris sua propia, citing in support the case of Adedeji vs MBN Ltd (1989) 1 NWLR (Pt.96) 212 at, 216. per Akpata, JCA, (as he then was). It is submitted that the rejection of the sworn deposition of P.W.6 by the tribunal after it was discovered to be shrouded in fraud does not amount to denial of fair hearing. That the principles of fair hearing can only apply in a case where a party has the right to be heard in a court process. He cited the case of Sosanya Vs Onadeko (2005) All FWLR (pt.255) 1000 at 1031. He submitted that it was as a result of fraud which was discovered by the Tribunal that necessitated it to discountenance the said witness deposition of P.W.6.
On the issue of adjournment, learned counsel submitted that this is a matter entirely at the discretion of the court which must be exercised judicially and judiciously. It is submitted that the tribunal granted an adjournment to the Appellants to call the expert witness and filed the sworn deposition of the said P.W.6 along with the report to be tendered in court. That the tribunal granted the Appellant’s leave to file the sworn deposition of P.W.6, and that the court rejected the deposition on oath of the said p.W.6 because of the signature that was superimposed on the deposition, not being P.W.6’s signature and that the Appellants had no other witness to call and the Appellant’s case was closed pursuant to paragraph 5(7) of the Election Tribunal and Court Practice Directions, 2007. It is submitted that a party who is given opportunities to prosecute his case cannot be heard to complain of lack of fair hearing. The following cases were relied upon: -Okeke Vs Petmacy (Nig.) Ltd. (2005) All FWLR (Pt.263) 760 at 777 and Fagbule Vs Rodrigues (2002) 7 NWLR (Pt.765) 188 at 212. Learned counsel urged us to resolve this issue in favour of the Respondents and to dismiss the appeal.
On the 2nd issue for determination, that is whether the tribunal was right when it dismissed the appellant’s petition as lacking in merit, Liman Esq., of counsel submitted that a party who alleges must prove the particulars of his allegation and referred to Section 135 of the Evidence Act. That the onus is on the petitioner to prove the allegations, failure of which the petition will fail citing in aid the following cases; Buhari Vs Obasanjo & Anor (2005) SCNJ 1 at 47; Chief Ojukwu Vs Chief Obasanjo & Ors (2004) 1 EPR 626 at 653. Learned counsel submitted that the Appellants alleged irregularities, malpractices, corrupt practices, hijacking of electoral materials, multiple thumb printing of ballot papers which are classes of electoral offences, malpractices whose substance are criminal in nature the proof of which is proof beyond reasonable doubt. He cited Section 138(1) of the Evidence Act in support. The following cases are also referred to Nwobodo Vs Onoh (2007) 3 EPR 180 at 205; Ogu Vs Ekwerenmadu (2005) All FWLR (Pt.260) 1 at 20; Edet Vs Eyo (1999) 6 NWLR (Pt.605) 18 at 29. It is also submitted that the testimonies of PW1- PW4 are full of hearsay and manifest contradictions and speculations and the witnesses were discredited during cross examination by the various Respondents. It is therefore submitted that because of the manifest weightlessness of the evidence of the Appellant’s witness, the trial tribunal was right in dismissing the Appellant’s petition as unproved and lacking in merit. It is his view that by virtue of Sections 135 and 138 of the Evidence Act, and the cases of Buhari vs. Chief Obasanjo (supra); Nwobodo and Onoh (supra) and Ogu Vs Ekwerenmadu (supra), the trial tribunal rightly dismissed the Appellants petition as lacking in merit.
On the attitude of the Respondents resting their case on that of the Appellants, it is submitted that the failure of the Respondents to call witness does not amount to lack of evidence on their part, rather, it is now settled that evidence elicited under cross-examination is as good as evidence adduced/proffered in examination in chief, citing also the case of S.P.C.D. Nigeria Ltd Vs Abba (2005) All FWLR (Pt.257) 1533 at 1548, wherein it was decided that evidence elicited from cross examination is evidence before the court and that, that made the Respondents to rest their case on that of the Appellants. We were urged to also resolve this issue against the Appellants and to dismiss the appeal.
The 2nd Respondent counsel, Kana, Esq. arguing issue one for determination, which is whether the trial tribunal was right in discountenancing the witness of P.W.6, examined the nature of the evidence of PW6 and the circumstance that led to discountenancing of the evidence of PW6 by the tribunal, and submitted that the requirement for witness deposition on oath is a requirement of the Election Tribunal and Court Practice Directions, 2007 as amended which is in accordance with Section 78 of the Evidence Act which makes a witness deposition on oath the same with an affidavit requiring swearing before a Commissioner for Oath, failure of which renders the document a mere piece of paper citing in support the case of Maraya Plastic Ltd vs Inland Bank Nig Plc (2002) 7 NWLR (Pt.765) 109 at 120. On qualification of witness deposition on oath as on affidavit, the case of Chemiron International Ltd Vs Egbujyonuma (2007) All FWLR (Pt.395) 444 at 447 was referred to. It is the view of learned counsel that the defect of the rejected witness deposition is not one that can be cured by Section 84 of the Evidence Act because the Tribunal was not satisfied that it was sworn before a person duly authorised since the witness stated that he wrote his statement in his own handwriting and gave it to his lawyer and that the said hand written statement was not before the tribunal. It is also submitted that there is nothing before the tribunal to indicate that the witness signed the discountenanced witness deposition. It is therefore submitted that the procedure adopted by the trial tribunal in asking the witness to make a specimen signature for comparison with the one on the witness deposition was correct, as that was the only way the tribunal could have satisfied itself that the issues and allegations raised by the objections by the respondents as to the signature on the witness deposition were true.
Learned counsel referred to Section 108 of the Evidence Act and the following cases; Teith vs. Northern International Market Ltd. (1987) 4 NWLR (Pt.65) 631 and Ndoma-Egba Vs A.C.B. (2006) 11 WRN 1 at 10. It is also submitted that P.W.6 is already a soiled witness and his evidence could not have been relied upon by the tribunal and that the rejection of his evidence would not be futile because even if it was admitted it would not have changed or affected the outcome of the judgment. He cited Section 227 of the Evidence Act and the cases of; Anvawu Vs Mbara (1992) 5 NWLR (Pt.242) 385 at 5000 and Abraham Akpabio & Ors. Vs The State (1994) 7 – 8 SCNJ (Pt.111) 429.
It is further submitted by the learned counsel that the Appellants were never denied right to fair hearing in that after the tribunal rejected the witness deposition of P.W.5, the matter was adjourned to the 16 of November, 2007 for further hearing which the Appellant would have taken benefit of by either filing a fresh witness statement or bring in an application which the appellants have failed to do, and that they cannot now be heard to complain of fair hearing. It is submitted that all the authorities cited in respect of fair hearing by the Appellants counsel are not applicable to this case and urged the court to discountenanced same and resolve this issue in favour of the respondents.
Arguing, the 2nd issue for determination, that is, whether the tribunal was right to grant an application, Kana Esq., submitted that it is not the law simplifier that substantial justice is only realizable when a court or tribunal exercises its discretion in granting adjournment on request. That it is also not the intendment in all the authorities cited by the appellant’s counsel that it is every refusal of application for adjournment that would automatically result in deprivation of fair hearing. The cases of Adeyemj Vs Fafamisi & Ors (1985) 11 SC 55 and Ariori & Ors Vs Elemo &. Ors (1981) 1 SC 12 were referred to and submitted that in certain circumstances granting the adjournment will in itself work injustice against the other parties. Learned counsel referred to the record of proceedings from pages 324 and 327, especially the ruling of the learned tribunal on pages 325-327 and submitted that the Appellants had clearly informed the tribunal that PW6 would be their last witness who was brought in via a leave of court for additional witness whose statement on oath was not included or attached to the petition and further submitted that the period of making such applications as of right had expired by paragraph 6 (1) of the Election petition and Court Practice Directions, 2007. It also submitted that there was no formal application before the court from the Appellants to call any other witness after PW6 and the witness deposition of the proposed witness was not before the court. Learned counsel referred to the proceedings of 14th November, 2007 at pages 317-318 where the tribunal refused to count additional four days wasted by the petitioners out of the time granted them by the tribunal. It is the view of learned counsel that in this circumstance, the tribunal had no option but to have acted the way it did by refusing to grant further adjournment to the Appellants. Learned counsel referred to page 326 of the record of proceeding wherein the tribunal had to comment on the conduct of the petitioners thus:-
“This Honourable Tribunal should not be taken for granted. Giving parties and their counsel leverage to conduct their respective cases do not mean they should take liberty for license. The circumstances surrounding this application are suspect and not in good faith. We cannot wait for a party to fish and keep fishing for witnesses.”
Learned counsel further submitted that in the consideration of an application for adjournment which the court or tribunal is called upon to exercise its discretion the court or tribunal must consider not only the convenience and comfort of the Applicant, but also that of the Respondent and upper most is the interest of justices to both parties citing in aid the case of Odusote Vs Odusote (1991) 1 All NLR 219. It is submitted that the case of Salu vs. Egbeibon (supra) referred by the Appellant’s counsel would not apply to this case because in that case it was the defendants that were denied adjournment to open and present their defence even though they have filed a statement of defence. The trial court proceeded and gave judgment for the plaintiffs on the plaintiffs’ case alone, and the Appellate Court over turned the decision. It is his view that in the present case, the application for adjournment was made without any cogent reason by the Appellants who had been given all the leverage and liberty to present their case, but chooses to conduct their case in a tardy manner and dragging all other Respondents and the tribunal along. It is also submitted by learned counsel that the case of Abubakar Vs Yar’adua (supra) cited by the Appellants’ counsel would not apply to this case, because it relates to a formal application for additional witnesses that were inadvertently left out when filing Respondents’ reply to the petition leaving the Respondents with only two witnesses on the list of witnesses.
He submitted, in the instant case, the application for adjournment was without stating any reason and there was no formal application before the Tribunal to call additional witnesses and that the Tribunal’s discretion in refusing the application for adjournment was exercised judicially and judiciously in the circumstances of this case. The case of Menakaya Vs Menakaya (2001) 9 SCNJ at 6 was also referred to. It is also submitted that the Appellants have admitted that their entire case rests on the evidences of PW6 that was discountenanced by the trial tribunal because the other 4 witnesses PW1, 2, 3 and 4 have failed to establish any of the allegations in any single polling unit. Learned counsel referred to paragraph 3.33 of the Appellants’ brief of argument and submitted that this is a direct admission that the analysis and findings of the trial tribunal on the failure of the petitioners’ witnesses to prove any of the allegations in the petition is correct. We were urged to discountenance the arguments of the petitioners counsel in its entirety and to dismiss the appeal as lacking in merit.
Mr. U. Ogedegbe for the 3rd Respondent, argued his issues 2 and 3 together, issue NO.1 has been discountenanced in this judgment and already struck out. Issues 2 and 3 are in substances the same with the Appellant’s issues one and two for determination.
Arguing the two issues together, Ogedegbe, Esq. submitted that the entirety of the appeal centred on the disqualification of PW6. He referred to page 321-323 of the record of proceedings and submitted that when PW6 was about to adopt his witness statement it was discovered that the statement was not made before a Commissioner for Oath; that signature page was different from the other pages in character and form; also, that the signature was superimposed on the document; and also that the witness signature on the statement and report was different from what he signed in the open court.
Learned counsel referred pages 321-327 of the record of proceedings on the account of what transpired at the trial tribunal, and posited whether, after the tribunal discovered the fraud by the petitioners, they can be allowed to benefit from it. It is his view that the decision of the tribunal to discountenance the fraudulent document is justified by the legal term “nemo ex suo delicto meliorem suam conditionem facere potes” meaning. “No one can improve his position by his own wrong doing”. It is submitted that no one obtains a cause of action by his own fraud- Nemo ex proprio do lo consequitur actionem. It is also submitted that the document sought to be tendered being a proceed of corrupt and fraudulent action fell like pack of cards and that you cannot build something on nothing and expect it to stand, citing UAC Vs Mcfoy.(Citation not supplied).
On whether the Tribunal was right in closing the case of the petitioners Ogedegbe, Esq. submitted that there was no witness statement on oath nor an application for leave to bring a further witness and the tribunal could not have adjourned the petitioners’ case invacuo. Learned counsel urged the court to dismiss the appeal and uphold the judgment of the tribunal. After a careful consideration of the issues for determination and the arguments canvassed therein in the appeal, it is my view that the main contention of the Appellant’s centres on the propriety or otherwise of the Order of the Tribunal discountenancing the witness deposition on oath sought to be adopted by PW6 and the refusal of the Tribunal to grant an application for adjournment to call another witness who would take the place of PW6. This issue cannot be adequately appreciated and addressed without reference to the events that transpired before the Tribunal on the day the said PW6 deposition on oath was discountenanced.
It is deducible from the Appellants arguments as contained in the brief of argument that PW6 was engaged and fielded as an expert witness to testify as to his observations and findings resulting from an examination of the electoral materials used in the conduct of the elections to show that there was multiple thumb printing. Initially the deposition of the said witness PW 6 was not part of the petitioners’ petition but the petitioner applied for leave to file the witness deposition on oath pursuant to Order 6 Rule 1 of the Practice Directions, 2007 which was granted by the tribunal.
At the continued hearing of the petition on the 15th November, 2007, this is what transpired as contained on pages 321-323 of the record of appeal. PW6 “Christian and affirmed that the evidence he shall give shall be the truth, the whole truth but nothing but the truth.
My names are Eddy Adigwe; I live at No. 21 Ogunyemi Street, Surulere, Lagos. I am a retired Assistant superintendent of Police, presently running a Security Company known as Pabo guards, Ltd.
I made a statement before this Honourable Tribunal. I can identify if seen because I signed it This is the statement. I hereby adopt same.
Mr. Oyeyipo objects that the document is a deposition on oath. The signature thereon is supper imposed and the document is not made before commissioner for oath. Cites MARAYA PLASTICE LTD VS. INLAND BANK NIG. PLC 2002 7 NWLR part 765, page 109 at 120 paragraphs c-e swearing thereto that makes the documents an affidavit) if not sworn to it is only a piece of paper. The signature was not made before a commissioner for oath. The document does not qualify as an oath and cannot qualify as evidence of a witness before this Honourable Tribunal. He urges this Honourable Tribunal to reject it.
In his reply, P.A. Akubo SAN oppose the supposed deposition on oath. He therefore associates himself with submissions of Mr. Oyeyipo.
At the introductory paragraph, the names were coded, but curiously on the last pager the full identify comes out. That the character of the last page is markedly and surprisingly different from the rest of the four pages.
Inquires at the Registry reflecting the original signature of this deponent is nowhere to be found in the Registry.
Urges this Tribunal to take judicial notice of the original copy of the Court copy.
He urges this Honourable Tribunal to reject this document.
Mr. Liman associates himself with the submissions of the two SAN and urges this Tribunal to protect the processes of this Honourable Tribunal and ensure that it is not abused by any party. That this is a matter that calls for proper inquiring and if there is any original, let it be produced.
TRIBUNAL:- Witness, you said signed this documents.
WITNESS:- Yes my lords.
TRIBUNAL:- How come your signature is superimposed
WITNESS:- I only wrote my statement in my hand writing and gave it to my lawyer.
TRIBUNAL:- Mr. Anikwem did you hear that
MR. ANIKWEM: – Sorry my lords.
The Tribunal tells the witness to sign. His signature is different.
TRIBUNAL:- what I discover here is a mess. It is a disgrace to the Legal profession from the circumstances surrounding this document where proposed witness said he gave a written deposition to type out for him and he signed – (which we do not believe).
The proposed witness signature is different from what I observed when I told to sign on a piece of paper. He did not sign the document in our view.
We are poised to sustaining the objection that this witness statement cannot be admitted as the statement of this witness. It is not only patently defective, but certainly so. It is fraught with lie and fraud, which has not been explained by learned counsel.
Accordingly, the statement sought to be adopted is hereby discountenanced in its entirety.
Mr. Anikwem sincerely apologize. This matter is hereby adjourned to the 16th of November, 2007 for further hearing.”
The hearing continued the following day being 16th November, 2007. This is what the tribunal recorded for Mr. Anikwem at the adjourned sitting:-
“Mr. Anikwen says he has just today to conclude his case but he was no witness ready. He intends to call an expert – i.e. another member of the team of experts who is currently testifying today in Lagos. He asks for adjournment and seeks an order to vary its earlier order to conclude his case today. Assuming the expert witness is here; all the ballot papers are not yet produced by INEC. He asks for adjournment.”
The Respondents counsel opposed the application for adjournment. They submitted that the adjournment will serve no usual purpose as the earlier leave granted to the Appellants was for one additional witness statement which was rejected. They submitted that there was also no formal application before the tribunal to file additional witness statement on oath. The objection was upheld by the Tribunal. It stated at pages 325-327 as follows:-
TRIBUNAL: “As observed in an earlier case, the grant or refusal of adjournment is at the discretion of the Tribunal and one which depends on the circumstances of each case.
Learned Counsel Mr. Anikwem has filed a subpoena to call evidence. The subpoena brought in a witness whom this Tribunal found incompetent to testify and not only so, the alleged report which the witness was to produce in Court was found patently fraudulent. This Honourable Tribunal has a choice to investigate that matter, but it chose not to……….
Learned Counsel for the petitioners has even told this honourable Tribunal these:
(1) That he has only more witness to call (which witness has been disqualified on the 15/11/07.)
(2) That the expert witness he has is busy in Lagos.
This honourable Tribunal should not be taken for granted. Giving parties and their Counsel leverage to conduct their respective cases do not mean they should take liberty for licence.
The circumstances surrounding this application are suspect and not in good faith. We cannot wait for a party to fish and fishing for witnesses. The petitioners have had their days and it terminates today.
The subpoena earlier served on INEC is hereby set aside, as it no longer serves any useful purpose, while the application for adjournment is hereby refused in its entirety as it is devoid of merit.
The petitioners are hereby called upon to conclude their case now or this Tribunal could close it for them forthwith.
Mr. Anilkwem says that on issue of dosing the petitioner’s case, it should be left for discretion of this Honourable Tribunal.
TRIBUNAL: By virtue of paragraph 5 (7) of the election tribunal and court practice Direction 2007 (as amended) this Honourable tribunal hereby orders that the petitioners case be closed and same is hereby declared closed.
The Respondents are hereby called upon to commence their respective defence.”
The question that may be asked is, was the tribunal right in discountenancing the witness deposition of PW6 and if the answer is in the negative, whether the refusal by the tribunal to grant further adjournment and the subsequent closure of the Appellants case amounted to a denial of the right of fair hearing.
The Appellant contended that the tribunal was wrong in discountenancing the witness deposition on oath of PW6 and that the same amounts to a denial of fair hearing. It is also contended that the procedure followed by the tribunal is legally wrong and smacks of technicality as the procedure offended sections 189(1), 199 and 200 of the Evidence Act. The following cases were referred to; Menakaya Vs Menakava (supra); Abubakar vs Yar’adua (supra) and Ajudua Vs Nwogu (supra). All the three sets of Respondents contended that the rejection of the witness statement on oath by the Tribunal was proper in that the statement was not sworn before commissioner for oath and the signature thereon was superimposed on the document as same was completely different from what he signed in open court.
The requirement of witness deposition on oath to be filed along with petition is novel. It is novel because it is a creation of Election Tribunal and Court Practice Directions’ 2007 introduced for the first time into our rules of court. The witness has to depose to his statement that is, his evidence before a Commissioner for Oath, so that at the hearing the witness will only adopt his witness statement on oath as his evidence before the tribunal. It is when such has been concluded then the witness will now subject himself for cross examination pursuant to Section 189(1) of the Evident Act. It is clear from what transpired before the Tribunal on the 15th November, 2007 that objection was raised as to the entire witness statement on oath of P.W.6, The Tribunal discovered that the statement of the witness was not signed before a Commissioner for Oath and that the signature on the document was superimposed and the witness signature on both the report and the witness deposition was completely different from what he signed in open court on that day. This scenario leads the tribunal to switch the Respondents objection and completely discountenanced the witness deposition on oath.
It is clear from what happened before the Tribunal on the 15/11/2007 that the pw6 sought to adopt his written deposition on Oath and there was objection to that effect from various respondents. The objection was founded on the fundamental defect observed in the document not being sworn to and the signature thereon on the document superimposed. The Tribunal sustained the objection and the document was rejected. That was exactly what happened. The Tribunal found the witness statement on Oath and the signature on the documents superimposed. It is not a case where the witness adopts his sworn deposition and is ready for cross-examination. Infact there was no any evidence before the Tribunal upon which the witness will be cross-examined. In my view there is no breach of provisions of sections 189(1), 199 and 200 of Evidence Act as contended by the Appellant’s Counsel. The witness has not adopted his written deposition there is therefore nothing for him to be cross examined upon. It is only when the Tribunal accepts the witness deposition after having been adopted by the witness and forms part of the proceedings of the Tribunal, that the witness will now subject himself for cross examination by the respondents. In the instant case, the stage has not yet matured for cross examination of the witness.
Where a witness deposition is not sworn to before a Commissioner for Oath; the statement does not qualify as the witness statement on oath. It is the swearing of the witness statement before a Commissioner for Oath that qualifies the document as a witness deposition on oath which the tribunal will accept as the evidence of the witness before it. Without the oath therefore, there is no witness statement before the tribunal. See Marava Plastics Ltd Vs Inland Bank Plc (2002) NWLR (Pt.765) Pg.109 at 120. On the issue of signature, it is not in dispute that the signature of pw6 on the witness statement is not the signature of the PW6 made in open court as directed by the tribunal.
A trial judge has the undisputed power to make comparison of signature or handwriting independent of an expert evidence, see ACB Plc vs Ndoma Egba (2001) FWLR (Pt.53) 81. By virtue of section 108 of the Evidence Act, Cap 112, L.F.N, 1990, in order to ascertain whether a signature, writing or finger impression is that of the person by whom it purports to have been written or made, any signature, writing or finger impression admitted or made by that person may be compared with the one which is to be proved although that signature writing or finger impression has not been produced or proved for any other purpose. See the case of Akalonu vs Omokaro 2003 FWLR (Pt.175) 493. In the instant case, it is clear from the proceedings of the Tribunal that the comparison took place in court where the signature on the witness statement on oath appeared to have been superimposed that is, not that of the witness whereupon the Respondents objected to the said statement. The trial Tribunal then called on the witness to make his signature on a paper which the witness did and the tribunal observed a follows at pages 322-323 of the record of proceedings:-
Tribunal “what I discover here is a mess. It is a disgrace to the legal profession from the circumstances surrounding this document where the proposed witness said he gave a written document to type out for him and he signed (which we do not believe).
The proposed witness signature is different from what I observed when I told him to sign on a piece of paper. He did not sign the document in our view. We are poised to sustaining the objection that this witness statement cannot be admitted as the statement of this witness. It is not any patently defective, but certainly so. It is fraught with lies and fraud, which has not been explained by the learned counsel.
Accordingly, the statement sought to be adopted is hereby discountenanced in its entirety.
Mr. Anikwen sincerely apologies. This matter is hereby adjourned to the 16th November, 2007 for further hearing.”
It is therefore my view that the trial Tribunal was right in the circumstances of this case to discountenance the written deposition of the said PW6 having found that the said statement was patently defective and same was fraught with lies and fraud which has not been explained by the learned counsel.
Now, the question is, of what legal benefit or weight would the court attach to such a document even if it is adopted and the witness cross examined? The Tribunal found the document fraudulent. There was no explanation from the learned counsel as to how this mess happened. The submission of Mr, Anikwen for the Appellants that the procedure adopted by the Tribunal with respect to the sworn deposition of PW6 and the subsequent discountenance smacks of technicality of the highest order is of no moment. The case of Abubakar Vs Yar’adua (supra) and Ajudua Vs Nwoju (No.1) (supra) cited by the Appellant’s counsel are not the same with the present appeal and therefore not applicable to the present circumstances of this case. This first arm of the question therefore answered in the negative. The procedure followed by the tribunal does not in any way breach the provisions of Sections 189 (1), 199 and 200 of the Evidence Act. The Appellant cannot create a crises situation and seek to rely on it. The legal maxim being “nemo exprorio do lo consequitu actionem” meaning no one obtains a cause of action by his own fraud. The 2nd arm of the issue is whether the refusal by the Tribunal to grant the Appellants further adjournment to call another witness in place of PW6 amounts to a denial of fair hearing as guaranteed by Section 36(1) of the 1999 Constitution.
The learned counsel for the Appellants submitted that both the refusal of the application for adjournment and the hasty or premature closure of the petitioner’s case did deny the Appellants their right to fair hearing. It is submitted that, after the witness deposition of PW6 was discountenanced, the only logical option was to allow the Appellants call another member of the team of experts to come and testify who was in Lagos at the material time. That the tribunal not only refused the grant of an adjournment but ordered the Appellants’ case closed. The application for adjournment sought by Mr. Anikwen for the Appellants was opposed to by the Respondents on the ground that same will serve no useful purpose as the leave earlier granted to the Appellants was to call one expert witness whose written deposition was also filed before the court. They contended that there was no any formal application before the court and no witness deposition filed and the leave granted was only for one additional witness being the last witness for the Appellants. The adjournment sought was not granted and the Tribunal ordered the petitioners/Appellants’ case closed.
Adjournment is a matter of discretion to be exercised judicially and judiciously. The law however imposes a corresponding obligation on the court while adjudicating to weigh and strike a balance between competing interests of the parties involved to the extent that none of the parties is favoured at the expense of the other. In the instant case, the Tribunal was not convinced that there were good and acceptable reasons anymore why the matter should be further delayed. The Appellants right into the hearing of the petition applied for leave to call additional expert witness whose deposition had not been filed along with the petition and the report filed as documents to be relied upon. The Tribunal granted the Appellants leave to call the expert witness being PW6 and whom the Appellants informed the Tribunal would be their last witness.
Now the Appellants sought to vary the court order, to grant them further adjournment to call another expert witness who would replace the PW6 whose written deposition was discountenanced. It is to be noted there was no formal application to that effect before the Tribunal as none has been filed before it. In rejecting the application, the Tribunal observed as follows at pages 326 of the records of appeal:-
“This Honourable Tribunal should not be taken for granted. Giving parties and their counsel leverage to conduct their respective cases do not mean they should take liberty for license.
The circumstances surrounding this application are suspect and not in good faith. We cannot wait for a party to fish and keep fishing for witnesses.
The petitioners have had their days and it terminates today ……………..
……….. , the application for adjournment is hereby refused in its entirety as it is devoid of merit.
The petitioners are hereby called upon to conclude their case now or this Tribunal could close it for them forthwith. The Tribunal pursuant to paragraph 5(7) of the Election Tribunal and court Practices Directions, 2007 ordered the petitioner case closed.”
The Tribunal had done all that is necessary to accommodate the Appellants but as observed by the Tribunal that the circumstances surrounding the application are suspect and not in good faith. It is true the Tribunal should not wait for a party to fish and keep fishing witnesses; A party must always be ready to prosecute his case at any given moment and not to be bringing in withness in piece meal. The Tribunal had done the right thing in the circumstances.
In M.F.A.Vs Inongha (2005) 7 NWRL 0Pt 923) 1; and Akpan vs State (1991) 3 NWLR (Pt.182) 646 at 662, both this court and supreme court had held that the grant of an adjournment is at the discretion of the court which must be exercised judicially and judiciously under certain rules and that where a refusal of adjournment would cause or result in a serious injustice to the party requesting it, the adjournment should also be refused if that is the only way to do justice to the other party. See Acka Vs Akure (1987) 1 NWLR (pt 47) 74; Adeboanu Manufacturing Industries (Nig.) Ltd. Vs Akiyode (2000) 13 NWLR (Pt.685) 576.
Where an application is made for adjournment, the court should bear in mind the requirement that justice should be done to both parties and that it is in the interest of justice that the hearing of the case should be unduly delayed. There is nothing before the court warrant to grant of further adjournment. See also Fagbule Rodrigues (Supra) and L.I.C. (Nig) Ltd… Vs Alao (1990) 3 NWLR (Pt.141) 793
In Election matters, there is always the need for urgency. The essentiality of time in electoral matters imposed a duty on the Tribunal, the parties and their counsel to dispose of same expediously. It is clear that the spirit of the Tribunal and Court Practice Directions, 2007 is that election matters are given expeditious adjudication to enable the parties know their status and this is one feature which runs through ‘Sue Generis’ nature of elections petitions in that election matters should be tried and completed expeditiously. It is the right of the electorate to know within a reasonable time frame who of the contending parties is their elected representative, but this knowledge becomes merely academic if hearing is delayed perhaps even up to the expiration of the term for which the election was held. This cannot be allowed to happen. In the circumstances of this case, it is my considered view that the Tribunal rightly exercised its discretion and refused the Appellants application for further adjournment in this matter. It is only in the interest of justice that the hearing of the petition should not be delayed. See Salu VS Egejbon (supra): Odusote Vs Odusote (1971), NMLR 2008; Solanke Vs Ajibola (1969) 1 NMLR 253.
Having arrived at this conclusion, it is also my view that the Appellants cannot be heard to complain of a denial of their right to fair hearing. The general saying is that “justice delayed is justice denied.” Section 36(1) of the 1999 Constitution gives to every person the right to have his civil rights and obligations determined by court after a fair hearing within a reasonable. Section 36(1) of the 1999 Constitution provides:-
”In determination of his civil right and obligations, Including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and Impartiality.
It is submitted by the Appellant’s counsel that fair hearing within a reasonable time is to allow justice to be dispensed without “inordinate speed” that it frowns at justice been scarified at the alter or expense of speed, so that in essence justice rushed is justice killed, citing Unongo vs Yar’adua (supra). With respect to the learned counsel for the Appellant the time honoured principle of our justice system is the principle that “justice delayed is justice denial” and the courts are there to adjudicate on the rights and obligations of the parties according to what is fair and just. Therefore justice can never be sacrificed at the alter of or expense of speed. It should be borne in mind that each case is decided on its own peculiar circumstances. The circumstances surrounding the refusal of the application for adjournment in the instant case was judicially and judiciously exercised.
Where a party was given ample opportunity to present his case within the confines of the law, but he chose not to utilize same, he cannot be heard to complain that his right to fair hearing has been breached. The duty of the court is to create the environment for fair hearing, but it is the decision of the party to take advantage of the environment created. Thus a party cannot blame the Court if he failed to take advantage created by the court See Bill Const. Co. Vs Imani & Sons Ltd. (2006) 19 NWLR (Pt 1013) 1, Akinduro vs. Alaya (2007) 15 NWLR (Pt.1057) 312.
In the case of Bill Const. Co. Ltd. Vs Imani &. Sons Ltd. (supra).
Onnoghe, JSC, observed particularly at page 14 paragraph C-A as follows:
“It is settled law that where a party is given ample opportunity to present his case within the Confines of the law but he chooses not to utilize same, he cannot later be heard to complain that his rights to fair hearing has thereby been breached” The position taken by Onnoghen, JSC has recently been reached by another of our most erudite justices of the Supreme Court, Tobi, JSC, in the case of Akinduro Vs Alaya (2007) 15 NWLR (Pt 1057) 312 at 337, paragraph E-F, when he stated inter alia:
“I have said in the past and I will say it again that the duty of court is to create the environment for fair hearing and it is the decision of a party to take advantage of the environment created by the court. A party cannot blame the court if he fails to take advantage of the environment created by the court. I see such a situation in this matter. The appellant cannot blame the court of appeal he has himself to blame. In the instant case, the appellants were granted leave to file additional witness statement of oath of the said PW6 and having failed to take full advantage of the opportunity granted by the Tribunal cannot now complain of fair hearing. See Okeke Vs Petmag (Nig.) Ltd (2005) 4 NWLR (Pt 915) 245, and Kaduna iles Ltd. v. Umar (1994) 1 NWLR (Pt 319) 143.
In the circumstances therefore, the Tribunal was right to have invoked the provisions of paragraph 5(7) of the Election Tribunal and Court Practice Directions, 2007 to close the case of the Appellants. This issue is therefore resolved against the Appellants and in favour of the Respondents.
The second issue for determination is whether the Tribunal was right to have dismissed the case of the Appellant, Mr. Anikwen, for the Appellants himself answered the question in the affirmative. He submitted that with rejection of the witness deposition on oath of PW6, the petitioners’ case suddenly became bereft of a prima facie case to be defended. Their case became weak and technically knocked out and lacking in strength.
Be that as it may, in matters of civil proceedings including election petitions, the onus is always on the petitioners to prove the particulars of the allegations contained in the petition and failure to establish the allegations in the petition, the petition is bound to fail. See section 35(1) of the Evidence Act and Buhari Vs Obasanjo (supra). The Appellants alleged irregularities, malpractices, corrupt practices, hijacking of electoral materials, multiple thumb printing of ballot papers etc. In an attempt to establish these facts, the petitioners called 4 witnesses.
I have considered the testimonies of these witness as contained in the records of appeal and as a matter of fact, are herein briefly reproduced.
PW.1 is Joshua Auta A.C. agent for Gangi, he stated that himself and INEC officials and security personnel were being conveyed in a vehicle to Gangi when at a certain point he was forcefully removed from the vehicle by the security personnel (a soldier). As a result, he picked a motorcycle and followed the vehicle, but on reaching Gangi the INEC officials disappeared and were seen at the polling station. He stated that there was no voting and that it was one oath. Isa Wasankudi who ordered the soldier to remove him from the vehicle. Under cross-examination, PW1 maintained that there were no elections so there was no result declared in Gangi polling unit.
This piece of evidence neither establishes nor prove non voting, malpractices or hijacking of electoral materials.
PW2 is Adamu Osu Agam, a native of Agam in Akun Ward Nasarawa Local Government. He was a supervisory agent of A.C. in Akun Ward. In his statement on oath, he stated that the election to the senate could not hold in Akun Ward for reasons such as late arrival of materials and late starting of election, army intimidation of voters and carrying away of materials. Injury sustained by some agents like Sabo Onukpo, Onarigu Oga and Audu Iduwa and there was no counting of votes at polling units and collation centre.
The evidence of PW2 also does not sufficiently establish late arrival of voting materials or to find as a fact that no voting took place or voter intimidation and those alleged to have been injured did not testify. In short the evidence is hearsay.
PW3 is Adamu Habu resident of Mararaba in Odu ward. In his witness statement on Oath, PW3 stated that it was the army that intimidates the voters and carried away the election materials and that he has made a written report on that to both INEC and DPO still under cross-examination. PW3 said there are eleven (11) polling units in Akun out of which he visited seven (7). The A.C. agents were injured by security agents when they tried to resist the carrying away of the election materials, and that he was himself a registered voter at Agum polling unit but he did not vote, That he served as agent/voter/observer of Mararaba polling unit/ward of Nasarawa LGA. That the election to the office of SENATE could hold in ODU WARD for reasons such as late arrival of materials and late starting of election, That election materials were hijacked at ODU, stuffed and results manufactured at Angwam mission. Signatures are not made by “us” or “me”
Under cross-examination, PW3 said he is a registered voter at Fadan Sarki 005 Mararaba that he did not visit the whole of Odu Ward but he knows that elections did not take place. PW3 said he was not there when the ballot boxes were stuffed.
The evidence of this witness has not established voter intimidation, hijacking of electoral materials, and non holding of the election in all the eleven (11) units in Aku ward.
PW4 is Hussaina Otto. In his statement on oath dated 10th May, 2007, he stated that the election to the office of SENATE could not hold in ONDA/KANA/APAWU ward for reasons such as late arrival of materials and late starting of elections, hijacking of materials by agents of PDP and thump printing and stuffing of ballots, intimidating and chasing away of agents of AC by PDP e.g. Alex Oga’s son at Obeni, Eka Oriki, Ingiri Ombi, Abogana, endo, Kama, Onda Kadu etc. that there was no counting of votes at units and ward centres.
As can be seen from testimonies of PW1, PW2, PW3 and PW4, reproduced above, the testimonies are full of hearsay and manifest speculations. Their evidence failed to establish any of the allegations in the polling units. All the allegation are bordering on electoral offences which must be established beyond reasonable doubt. These people mentioned by the witnesses were not before the tribunal to give an account of what happened to them.
PW5 was the INEC officer subpoenaed to produce INEC documents for the election into the Nasarawa West Senatorial District of 21st April, 2007.
PW6 Sworn deposition was rejected.
The Tribunal after a careful analysis found the testimonies of these witnesses in their attempt to buttress the various allegations spreading across the paragraphs of the petition, as not taking beyond the realm of averment and thus the Tribunal found herein that the allegations of over voting, multiple voting, violence, non voting, intimidation and thuggery have not been established before it.
The Appellants have not proved their case as required by sections 135 and 138 of Evidence Act which provides as follows:
Sections 135(1) and 138(1) of the Evidence Act Provides as follows: 135(1):
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he assets must prove that those facts exists”
138(1)
“If the commission of a crime by a party to any Proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubts”
See Buhari Vs Obasanjo (2005) SCNJ 1 at 47, Ojukwu Vs Obasanjo ((2004) 1 EPR (Pt.626); Nwobodo vs. Onoh (2007) 3 EPR at 205 and Ojo vs. Ekweremadu (2005) All FWLR (Pt.260) 1 at 20. In the instant case, the Tribunal rightly dismissed the Appellants’ case as unproved and lacking in merit. This issue is also resolved against the Appellants and in favour of the Respondents.
Based on the foregoing, it is my candid view that this appeal lacks merit and same shall be and is hereby dismissed. The decision of the Tribunal that the 3rd Respondent Abubakar D. Sodangi is the winner of the elections into the Nasarawa West Senatorial District of the House of senate of the Federal Republic of Nigeria is hereby affirmed.
There shall be costs of N30,000 in favour of the Respondents against the Appellants.
Other Citations: (2008)LCN/2816(CA)
