Dr. Abideen Olaiya V. Hon. Oladepo Oyedokun & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
ISTIFANUS THOMAS, J.C.A.
The appeal is against the judgment of the House of Representatives Election Petition Tribunal held at Ibadan, Oyo State delivered on 7th December, 2007 in which the Petitioner’s but now appellant’s petition was heard on merit but dismissed and therefore the appeal.
The appellant’s petition at the lower Tribunal was based on three grounds, namely, that:-
(i) he was validly nominated by his party- labour party but was unlawfully excluded from a rescheduled election of 28/4/2007 (ii) that the election held on 21/4/07 was invalid by reason of non-compliance with Electoral Act, 2006 as contained in sections 46, 64, 74, 75 and 145 of the afore said Electoral Act, 2006; and
(iii) the 1st respondent was not elected by a majority of lawful votes as the election conducted by the 2nd – 4th Respondents was not concluded in respect of the Federal Constituency for Oluyole Oyo State on 21/04/2007.
At the lower Tribunal, a pre-trial conference was conducted whereby, all parties identified just one issue for determination, that is, whether the election held on 21/04/2007 in respect of the Oluyole Federal Constituency of Oyo State, was conclusive or, was the election cancelled and or suspended and therefore, re-scheduled for the 28/04/2007 election? This fact is contained at page 199 paragraphs 3-4 of the record. During the proper trial at the lower Tribunal, the Appellant testified as PW7, and then called 6 other witnesses who tendered Exhibits PE1- PE6, These exhibits are as follows:-
- Exhibits PE1 is subpoena whereby PW6 named Kolopo Ademola was called to testify.
- Exhibits PE2 is form EC8E(ii) showing list of nominated candidates for Oluyole Federal Constituency.
- Exhibit PE3 is identical to exhibit PE2. Exhibits PE1-PE3were tendered by PW6 and admitted without objection. See pages 196D-196E of the record.
- Exhibits PE4-PE6 are the certified True copies of Punch Newspaper of 23/04/2007, National Newspaper of 27/04/2007 and the Punch Newspaper of 27/04/2007 respectively.
At the Tribunal, the 1st respondent who contested the election held on 21/04/2007 on the platform of PDP and was declared the winner by the 2nd – 4th Respondents. He called a total of 9 witnesses, while the 2nd – 4th Respondents called one witness. The 1st respondent also tendered Exhibits 1st RE2 and 1st RE3 (1- 10) which are the unit results for Oluyole Federal Constituency election to the House of Representatives held on 21/04/2007. These exhibits are contained at pages 196R, 196T, and 196HH of the record.
After the close of hearing of parties witnesses and the address of learned counsel, the lower Tribunal dismissed the appellant’s petition and declared that the 1st respondent was duly elected and returned as the winner of the House of Representative of Oluyole Federal Constituency Oyo State with majority votes of 9231 at the election held on 21/04/2007.
Dissatisfied, the appellant filed within time, his Notice of Appeal containing 17 grounds of appeal which was dated and filed on 28th December, 2007. It is to be noted that, the judgment of the lower Tribunal was delivered on 7th December, 2007. By paragraph 1 of the Practice Direction NO.2 of 2007, in an election petition matter, an Appellant is to file his Notice of Appeal within 21 days from the date of the decision appealed. From the above findings, I am satisfied that this appeal was filed within the statutory period of 21 days from the date of the delivery of the judgment.
From the 17 grounds of appeal, the Appellant distilled and raised 6 issues for determination. Appellant’s brief was filed on 11/9/2008.
The issues read thus:-
(i) Whether the Tribunal was right to have held that the election was conclusive in view of no defence filed legally by the 2nd-4th respondents. (ground 16).
(ii) Whether Tribunal was wrong when it allowed the 2nd – 4th Respondents to withdraw from tendering the set of forms EC8A(ii) sought to be tendered after argument had been taken from parties on the admissibility or otherwise of the document. (ground 8).
(iii) Whether the refusal by the Tribunal to expunge exhibits 1st RE3 (1-10) which was wrongfully admitted from the records of the court in its judgment did not occasion a miscarriage of justice. (grounds 9, 14 and 15).
(iv) Whether in view of contradictions uncredible and unreliable evidence of the RW1, the trial court was right in placing reliance on the evidence in giving judgment to the 1st respondent. (grounds 2).
(v) Whether the election Tribunal was wrong when it relied on the case of LAWAL VS GOVERNOR OF KWARA STATE in not giving effect and according weight to Exhibits PE4, PE5 and PE6 which evidence were not denied or controverted by the Respondent. (Grounds 3 and 4).
(vi) Whether on the preponderance of evidence, the Petitioner/Appellant proved the non-conclusiveness and re-schedulement of the election on 21/04/2007 to 28/4/2007 Oluyole Federal Constituency. Appellant abandoned grounds 1, 5, 7, 10, 11 and 12 and were struck out on 29/09/09.
The 1st Respondent’s brief of argument was filed on 6/10/08 but was deemed filed on 7/04/2009 after due payment of penalty fees of N900.00. Learned counsel for 1st Respondent filed a Notice of preliminary objection and urged this appellate court to determine whether the election Tribunal was right to have issued a pre-hearing conference notice when the Petitioner did not apply for issuance of the pre-hearing notice as directed under paragraph 3(2) of the Election Tribunal and Practice Direction 2007.
The 1st respondent’s issues are identical to appellant’s six issues and have relied seriatim. There is therefore no need to reproduce the issues. In the same manner, 2nd, 3rd and 4th Respondents joint brief of argument was duly filed on 6/10/2008 and adopted and relied on same issues for determination as their own. There is no need for re-production of the Respondents issues.
On 29/09/2009, when this appeal was heard, both parties adopted and relied on their respective briefs of argument.
During the hearing of the appeal, learned counsel for the appellant, Mr. Yakub A. Fadare clearly stated that their major argument is that the election held on 21/04/07 did not take place at all in Oluyole Federal Constituency. Counsel urged this court to set aside the decision of the lower Tribunal and order for a re-election.
THE PARTIES ISSUE NO. 1.
The Appellant’s argument in issue 1 is that, the 2nd – 4th Respondents were saddled with the responsibility to conduct the election and also to defend by filing a reply to a petition where their conduct in the election is challenged. Counsel is of the view that in the instant appeal, 2nd – 4th Respondents reply at the lower Tribunal was prepared signed and filed by one FABUNMI & FOLARIN as contained at page 92 of the record. Counsel then submits that by the provision of sections 2(1) and 24 of the Legal Practitioners Act, Cap 207 Laws of Nigeria 1990, it is only a person who has his name on the roll of legal practitioners can practice as a Solicitor or Legal Practitioner and file court processes in courts or tribunals. Counsel is of the view that in the instant appeal, it is not in doubt that the name FABUNMI & FOLARIN is not a Legal Practitioner and cannot practice as such. Counsel referred to and relied on the case of OKAFOR VS NWEKE (2007). All FWLR (Pt. 368) 1016 at 1025 – 1027. Counsel is of the further view that, in law, the 2nd – 4th Respondents did not file Respondents brief of argument at the lower Tribunal, and that what the Petitioner/Appellant pleaded and supported by evidence, should be deemed admitted by the Respondents, especially 2nd – 4th Respondents, and relied on the decision of this appellate court in the case of ALH. MOH. MAIGARI VS. ALIYU MAGATAKANDA WAMAKO in appeal NO. CA/I/EPT/GOV.60/2007 delivered on 11/04/2008 which is to the effect that where INEC had failed or refused to lead evidence on its pleadings, that failure was deemed to have conceded to the allegations of malpractices raised by the Appellant. Appellant’s Counsel has urged this appellate court to allow the appeal on issue 1 and set aside the decision of the lower Tribunal.
The 1st and 2nd – 4th Respondents, have conceded that the 2nd – 4th Respondents reply to the petition were prepared and signed by FABUNMI &. FOLARIN, but that the petitioner now Appellant did not raise this issue at the trial stage, and that what the Appellant is now raising is completely incompetent because, leave to raise the fresh issue was not sought, let alone to be granted. The two sets of Respondents referred to and relied on the cases of ADELAKUN v. ORUKU (2007) 17 WRN 89; MBANG VS STATE (2007) 16 WRN 94; OKUSANYA V. ADESANYA (2007) 32 WRN 31. The duo of Respondents are of the view that, it will amount to reliance on technicalities if the name of FABUNMI & FOLARIN is accepted that it is a name unknown in law as Legal Practitioner.
I have carefully perused the reply to the petition. At pages 90-92 of the record, the 2nd – 4th Respondents reply to the petition was prepared, dated 2nd August, 2007 and signed by:-
FABUNMI & FOLARIN,
2nd – 4th Respondents’ Solicitors
C/o T. Alake, Esq.,
Badejoko Complex,
Idi-Ape – Bashorun Road,
Ibadan.
In my considered view, by virtue of sections 2 (i) and 24 of the Legal Practitioners Act, 1990, “FABUNMI AND FOLARIN are not enrolled as Legal Practitioners in our esteemed Roll of Legal Practitioners.
Having said that the 2nd – 4th Respondents reply which was filed on 02/08/07 at the trial Tribunal, was signed by a group of persons not known in law, the objection should have timeously raised, and no doubt, the lower Tribunal who had the privilege to hear the matter, would have thrown the 2nd – 4th Respondents brief as being incompetent. In the instant appeal, lower Tribunal was never confronted with an issue that 2nd – 4th Respondents reply was wrongly signed by an unknown Legal Practitioners. The present Appellant did not object the incompetency of the 2nd – 4th Respondents at the lower Tribunal and he went ahead and filed his petitioner’s reply to the 2nd – 4th Respondents reply. In my considered opinion, it is now too late to raise the issue on a matter that was never moved or objected to at the lower stage. Not only that, the Appellant should have specifically seek leave of this appellate court, to file a ground of appeal as contained in ground 16, and also to seek leave of this court to argue a fresh issue which was never raised at the lower Tribunal. It is not in doubt that the Appellant did not seek leave of this court to raise and argue a fresh issue. Failing to seek leave means the Appellant is a legal smuggler. He wants to come through the back door, which is unacceptable. There is no smuggling in the Temple of justice. In the case of ADELAKUN VS. ORUKU (Supra) it is well settled that fresh issue cannot be raised without first seeking and obtaining leave of either this appellate court or the trial court or Tribunal to tender or canvass any argument in support. Any ground or grounds of appeal raising fresh issue without proper leave is completely incompetent and will be struck out or just discountenanced. In the instant appeal, Appellants ground 6 from which he formulated the first issue is unwillingly saying that, the trial court had no jurisdiction to dismiss the petition because there was no defence filed by the 2nd – 4th Respondents. The fact is that the lower Tribunal heard and determined the petition based on the pleadings and evidence by both parties. The issue of jurisdiction of the Tribunal on the ground that the other Respondents did not defend was never raised.
In the case of ADELAKUN VS. ORUKU (Supra) at page 108 that “the question of locus standi (jurisdiction) was not made an issue at the trial court. It is therefore too late in the day with the case having been concluded and without objection and consequent to which the raising of a new issue does not arise”. My learned brother, Ogunbiyi, J.C.A. went further in Orukus case, (Supra) that-
“Furthermore, it is trite law that raising fresh issue on appeal is not a matter of course but ought to be with the leave of the court, absence of which renders the said issue raised being incompetent and therefore struck out”.
In the Supreme Court case of OKEREKE VS. NWANKWO (2003) 9 NWLR (Pt. 826), an irrelevant issue for determination should be discountenanced or struck out. In the instant Appellant’s first issue, it is irrelevant and is therefore struck out. Issue one is resolved in favour of the 1st Respondent and the 2nd – 4th Respondents.
APPELLANTS ISSUE NO.2
The Appellants argument is that at the lower Tribunal, the 2nd – 4th Respondents wanted to tender from the bar, a documentary evidence, namely FORM EC8(2). That the Petitioner/Appellant objected to its admissibility on two grounds, namely:
(i) Non pleading of the document sought to be tendered;
(ii) Non compliance with the election tribunal and Practice Directions 2007 which directed front-loading of documents.
That the 2nd – 4th Respondents joined issues with the Appellant and argued that the objection was misconceived and then concluded that 2nd – 4th Respondents had pleaded. Appellant is of the view that the lower Tribunal should have ruled on the admissibility or otherwise of the document sought to be tendered, but that no ruling was made and the 2nd – 4th Respondents just withdrew the document and the Tribunal sustained the withdrawal. Appellant has submitted that, having joined issues on the admissibility, it was too late for the 2nd – 4th Respondents to withdraw and also wrong for the trial Tribunal who failed to make a ruling. Counsel referred to and relied on HASTRUP VS RORO TERMINAL CO. LTD (2003) 7 NWLR (Pt.8A 358. Counsel has urged this court to act vide section 16 of the Court of Appeal Act and make a ruling on the admissibility of the document which was not done by the lower Tribunal.
In response, the two sets of Respondents, have argued profusely that issue 2 is purely an academic exercise which a court of competent jurisdiction would not embark upon and referred to and relied on the case of BMN LTD Vs CHEVRON NIG. LTD. (2007) 2 WRN 1, 16-17; ADELAJA VS. ALADE (1999) 6 NWLR (PT.608) 544.
In my considered view, this Appellant’s 2nd issue does not arise because when the 2nd – 4th Respondents tried to tender the documents, the Petitioner/Appellant profusely objected to and the applicants latter saw reason and applied to withdraw, which was granted. In my view, since the document sought to be tendered was withdrawn, on what exhibits could this appellate court make a ruling as the Appellant would want this court to do? As ably argued by Mr. A. Babatunde, learned counsel for the 1st Respondent, the issue of whether the withdrawal of the documents were proper or not, will not matter since the documents were not tendered subsequently, and they do not form part of the record, nor have they influenced one way or the other the decision of the court. It is trite law that courts of record do not bother itself with matters that are mere moot. Courts do not concern with academic matters. All courts of law are enjoined to adjudicate between parties in relation to their legal interests and not to engage in mere academic issues, no matter how brilliant or erudite it may be to the general public at large, as such exercise will be speculative into the unknown-see the erudite decision of OGBUAGU, JSC in B.M.N LTD. VS. CHEVRON NIG LTD . (Supra) at 16-17; and ADELAJA VS. ALADE (1999) 6 NWLR (PT. 608) 544. Issue 2, being academic is resolved against the Appellant.
ISSUE NO.3
The Appellants argument in issue No.3 is that, there was no conclusive election on 21/04/07 in the Oluyole Federal Constituency in which the 2nd – 4th Respondents declared the 1st Respondent as the winner. The Appellant contents that in his Petition at Page 31 of the record, he did not plead any result in respect of any unit and wards in the Oluyole Federal Constituency. At the trial, the petitioner opposed the Respondent’s need to tender the Electoral Forms EC8A1, EC8E1, EC8AII and EC8EII which formed the result and sheet forms, which were pleaded by both sets of Respondents at the trial. The Appellant submitted that the election into the Oluyole Federal Constituency was suspended and not concluded on 21/04/07 as there was no counting of votes and let alone the collation of votes.
Still in his issue No.3, the Appellant is of the view that the 1st Respondent pleaded Forms EC8Aand EC8E, and that it was unlawful for the lower Tribunal, who admitted the Forms EC8AII and EC8EII which were never pleaded by the duo Respondents. Counsel urged this appellate court to expunge the admissibility of the EC8A5 which were admitted as Exhibits 1st RE 3(1-10) on the ground that the exhibits were not specifically pleaded:
On the part of the 1st and 2nd – 4th Respondents, they have accused the Appellant of deliberately misleading the fact that he pleaded and relied on Forms EC8E1, which is the summary of result from all units and wards in Oluyole Federal Constituency. The Respondents referred to Appellants paragraph 4 of his Petition; and that, not only did the Appellant plead forms EC8E1, he subpoenaed the 4th Respondent as a witness, and the Appellant then, tendered form EC8A1 as shown on page 2 lines 27-29 of the record.
I have carefully perused the Appellant’s pleadings as well as the duo of Respondents pleadings. At page 2 of the record, the petitioner Appellant pleaded in his paragraph 4 as follows:-
(4) “………………………..
The petitioner will rely on Form EC8E(1) issued by the 2nd – 4th Respondents but not given to the petitioner despite repeated demands, the 2nd – 4th Respondents are given notice to produce the same”.
The 1st Respondent in his reply to the petition had clearly pleaded in his paragraph 6 on page 37 of the record as follows:-
“6. The Respondent denies paragraph 7 (v) and states in reply that votes were counted in all the units forming the wards in Oluyole Federal Constituency. The Respondent will rely on Form EC8A, EC8E at the trial of this petition and notice is hereby given to the 2nd – 4th Respondents to produce them at the trial.”
The 2nd – 4th Respondents in their reply to the petition, pleaded paragraph 6 at page 90 of the record as follows:-
“6. The 2nd – 4th Respondents issued copies of the said result to all candidates and agents at the election. The 2nd – 4th Respondents shall rely on forms EC8A1, EC8E1 etc at the trial. ” (underlines are for emphasis).
From the above quoted pleadings of all parties, it is not in dispute that the Appellant and the Respondents pleaded election results namely, forms EC8A and EC8E. In election petition proceedings before the trial Tribunal, pleadings are not evidence, see INEC VS. A.C. (2009) All FWLR CPT480) 732, 779 para E; NEPA VS. EDEGBERO (2002) 18 NWLR (Pt.798) 79. In the instant appeal, the Appellant who subpoenaed 4th Respondent Mr. Kolapo Ademola to testify in terms of the Form EC8E(1), testified as PW6. His evidence is contained at page 196 D of the record where he testified as follows:-
“Pw6: I have Form EC8Eii and list of nominated candidates for Oluyole Federal Constituency.
Gbadamosi:
We seek to tender both the certified True copy of the 2 documents in evidence.
Abdulsalam;
We are not objecting.
Alasha:
No objection.
TRIBUNAL:
Both the 2 documents are admitted and marked (i) Form EC8E(ii) Exhibit PE2.
List of Nominated candidates for Oluyole House of Representatives are marked Exhibit PE3”.
It is now to be noted that, the evidence of PW6 (4th Respondent) who tendered Form EC8E(1) as requested by the Appellant are the result sheets. He also testified as RW1. His further evidence is contained at pages 196 DD – 196 GG, of the record, where he testified that, election to the House of Representative Oluyole Federal Constituency on 21/04/07 was conclusive, and that votes were counted and collated in all the units and wards of the Constituency. The same PW6 or RW1, tendered all the Form ECSA, ECSAI, ECSAII and ECSE1 etc. The Appellants objection was properly considered by the lower Tribunal who effectively ruled on the objection. It is contained at pages 196 GG to 196 HH of the record, where it is thus stated:
“………The Tribunal is satisfied that the documents Forms EC8A(ii) are fully captured by the combined effect of paragraphs 6 and 7 of the 1st Respondent’s reply to the petitioner. Also by paragraphs 6 of 2nd – 4th Respondents reply to the petition, the “ejusdem generis rule” are fully captured. The documents are fully pleaded. It says EC8A1, EC8EII etc. etc. That means, it can be more than one. We are satisfied the documents sought to be tendered are adequately pleaded and they are relevant to this proceedings. Documents Forms EC8A(II) units results from Rolling stations, 10 in number for Oluyole Local Government Federal Constituency are admitted in 10, numbered and marked Exhibit 1st RE 3 – (1-10) respectively”. (Underlining is for emphasis).
The above quoted findings and conclusion on the election result in Forms ECSA to EC8A1 or EC8AII to EC8E- EC8EI and II,
being of similar nature on the principle of “ejusdem generis rule”, is unassailable.
The words “ejusdem generis” means of the same kind, class or nature. The Appellant’s argument that the Respondents did not plead Forms EC8A II and EC8EII is completely uncalled for or is even a total misconception of what is called election result forms. There is a clear authority of the Independent Electoral Commission to use appropriate forms for the use of election results. In section 77 of the Electoral Act, 2006 is unambiguous. It states thus:-
“77 – The forms to be used for the conduct of election to the offices mentioned in section 41 of this act and elections petition arising there from shall be determined by the Commission”.
The powers of the Commission in issuing election forms EC8A, EC8B to EC8E for results of Local Government, House of Assembly, Governorship, National Assembly and Presidential Elections, respectively, are governed by Section 77 of the Act. In every election, there is a result form for every polling unit irrespective of whether it is for House of Assembly or National Assembly or Governorship or Presidential. After the Polling unit, there is ward result and then collation centres. In the instant appeal, the lower Tribunal found the truth that the 1st and 2nd – 4th Respondents had clearly pleaded in their respective replies, all the result forms used in the Oluyole Federal Constituency petitions. It is therefore an idle argument for the Appellant to complain that the Respondents did not plead EC8A II and EC8EII. The Appellants issue 3 is resolved against the Appellant. The Respondents effectively pleaded the totality of election results.
ISSUE NO. 4 AND 5
Appellant’s argument in issue 4 is that, the evidence of RW1, Bolatito Safuratu Adeyemi, was contradictory, un-credible and unreliable, and that it was wrong for the lower Tribunal who relied on her evidence which was to the effect that the election held on 21/04/07 was conclusive and that 1st Respondent won the election.
Appellant’s argument in his issue No. 5 is that the Tribunal was wrong in relying on the decision of LAWAL VS. GOVERNOR OF KWARA STATE in (2006) WRN (PT.5) 134 at 136.
The argument of the two sets of Respondents on issue No.4, is that, the evidence of RW1 at the trial was consistent and credible which convinced the lower Tribunal that the election of 21/04/07 into Oluyole Federal Constituency, was conclusive. The Respondents referred to and relied on the evidence of RW1 at Page 71 of the record that states as follows:-
“That I affirm that the Presidential/National Assembly Election took place at Oluyole Federal Constituency on Saturday, 21st April, 2007”, and that the above evidence of RW1 quoted above was effectively corroborated by the evidence of Appellants PW4, namely Odeleye Sikiru Bamidele who adopted and relied his statement on oath at page 17 of the record, where he asserted
“that I am aware of the fact that the Presidential and National Assembly Elections were conducted throughout Nigeria (Oluyole Local Government inclusive )on 21st of April, 2007”.
The Respondents submitted further, that RW1, Bolatitu Safiratu Adeyemi, fortified her assertion on conclusiveness of the election by stating that the election on 21/04/07, commenced at 10.00 a.m and that she voted at Ward I where she was informed of the missing of her party logo whereby, she protested and that INEC official, rightly informed her, that it was too late to stop the elections at the material time. That RW1 also testified that she was physically present at the collation centres, where INEC Officer, reiterated the commissions decision of concluding the election of 21/04/07.
The Respondents are of the view that, the Appellants issue No.4, is just on hypothesis and speculation, as the issue was not raised at the lower Tribunal and they have urged the court to discountenance Appellants argument.
In my considered view, Appellant’s issue No.4, is entirely a new issue which was never raised at the lower Tribunal. It is not in doubt that RW1 testified on behalf of 1st Respondent. But throughout the address of the petitioner now Appellant contained at pages 135 – 147 of the record, there was no complaint by the Appellant that the evidence of RW1 was contradictory, un-reliable and un-credible as the Appellant has raised and argued. The Appellant should have applied by virtue of Order 7 Rule 2 of the Rules of this court, 2007, to raise and argue a new issue that was not raised at the lower- Tribunal. At page 143 of the record in his paragraph 4.13, Appellant’s address is as follows:-
“What is however certain is the confirmation by the 1st RW Bolatito Safuratu Adeyemi to the effect that there would have been a bye-election on the 28/04/07 but for the withdrawal of his complaint. The 2nd – 4th Respondents’ witness also confirmed that there would have been a bye-Election on 28/04/07 but for the agreement and withdrawal of……….”
The words-
“that there would have been a bye election on 28/04/07”, are nothing, but mere hypothesis and speculations by the Appellant. The fresh issue having not applied nor leave to argue was granted by this court, the issue is of no moment, see MOSES VS THE STATE (2006) 11 NWLR (Pt. 992) 458. SEHINDEMI VS. GOV. OF LAGOS STATE (2006) 10, NWLR (Pt. 987) 1; ONYEKHIRE VS STATE (2006) 15 NWLR (PT.1001) 157.
Appellants issue No.4, having not been sought to raise is hereby struck out and is therefore against the Appellant.
The Respondents reply to Appellant’s issue 5 is that, the Appellant is under the erroneous impression, that once the Tribunal had admitted Exhibits PE4, PE5 and PE6, despite the objections of the Respondents, the Tribunal was under an order to believe and act the exhibits. Counsel for the 1st Respondent referred to the Supreme Court case of ABUBAKAR VS CHUKS (2008) 2 M.I.S.C 190, 204 that says, the admissibility of a document is one thing and the weight the court will attach to the document will depend on the circumstances of the case as contained or portrayed in the evidence. The Respondents contended that the lower Tribunal properly evaluated the exhibits PE4- PE6 which are mere Newspapers that were published, days after the election of 21/04/07 had been concluded. That the intention of the Appellant in tendering the Newspapers to establish that the election of 21/04/07 was not conclusive and therefore postponed to 28/04/07 was punctured by the Appellants’ evidence contained at pages 196J and 196H of the record that reads:-
“My party was not communicated on the suspension of any election” and “Oluyole was not specifically mentioned in Exhibit PE5”.
The Respondents have urged this court to dismiss the Appellant’s argument on issue 5.
It is trite law, that, admissibility of an exhibit is a different thing, while the weight the trial court will attach to the exhibit is another matter; See LAWAL VS U.T.C NIG. PLC. (2005) 13 NWLR (Pt. 943) 601; AWUSE VS. ODILI (2005) 16 NWLR (Pt. 952) 416; ABUBAKAR VS. CHEEKS (Supra) at page 204. In the instant appeal, the Appellant tendered at the lower Tribunal, the Punch Newspaper of 23/4/07 and was admitted and marked exhibit PE4, despite the objections raised by the duo Respondents. Also, the Nation Newspapers of 27/04/07 was also admitted and marked Exhibit PE5, and another Punch Newspaper of the same 27/04/07 was also tendered, admitted and marked Exhibit PE6, despite objections. Under cross-examination, the Appellants PW7 who tendered the newspapers was asked whether the name of Oluyole Federal Constituency election was mentioned as being postponed, and the witness clearly admitted at page 196H of the record as follows:-
“……….Oluyole (Constituency) was not specifically mentioned in Exhibit PE5, page
2 . ………….. Exhibit PE6 page 10 reads where All National Peoples Party (ANPP) Chairman said Independent National Election Commission (INEC) wrote a letter to conduct bye- election in 4 Constituency excluding Oluyole……………………..
My party was not communicated on the suspension of any election ……………….. I did not send the names of my agents to INEC”.
From the above clear admission by the Appellant himself PW7, Dr. Abideen O. Olaiya, exhibits PE5 and PE6 had no evidential value to establish that INEC had postponed the election of Oluyole Federal Constituency from 21/04/07 to 28/04/07, because the Appellant had admitted that Oluyole Constituency was not listed on exhibit PE5 at page 2. In the same manner, the Appellant had clearly conceded that, the purported exhibit PE6 at page 10, did not state the Oluyole Constituency as four of the areas on which INEC was to conduct a bye election. Not only that, the information contained at page 10 of exhibit PE6,was said to have been stated by the Chairman of ANPP, who claimed to have been informed by INEC. On this point, the information is a hearsay evidence which is un-acceptable in law. The Appellant should have called the maker of the information, namely, the Chairman of ANPP to testify. This was not done.
The lower Tribunal admitted exhibits PE4- PE6on the ground only, that the three certified true copies (CTC) of the National Newspapers, were secured from the National Library and therefore were admissible under sections 109(B), 112 and 116 of the Evidence Act, 1990 being public documents. But after proper admission of the public documents, it was the trial Tribunal that had the advantage to consider its value in connection with the issue as to whether the election was postponed or not as parties had joined issues. I have carefully read the lower Tribunals’ findings in respect of the newspapers that were admitted, and at pages 234 – 236 of the record, their Lordships effectively said as follows:-
“……….. Exhibit PE4, the certified True copy of the Punch Newspaper of 23/4/07, though admitted in evidence by this Tribunal, the weight to be attached to it is not more than a news item. It does not have the force of the evidence of the fact recorded in it. The same effect goes to the Nations Newspaper of 27/04/07 (exhibit PE6″…………………………………….. .
The sum total of all is that the petitioner is left with no Concrete evidence before the Tribunal to show that the Election of 21/04/07 for Oluyole was postponed and or it was interrupted…………….” (Italised is mine).
In my considered view, the Tribunals finding was on sound consideration of Exhibits PE4- PE6 and therefore, it was in order when the Tribunal revisited the reasons contained in the case of LAWAL VS. GOVERNOR OF KWARA STATE (Supra) by not giving effect or weight in the Punch and Nation newspapers marked exhibits PE4, PE5 and PE6- Issue 5 is therefore resolved against the Appellant.
APPELLANT’S ISSUE NO.6
Appellant’s argument in his issue 6 is that, the lower Tribunal did not properly consider the parties pleadings and evidence before it delivered its judgment. In other words, the Appellant is accusing the Tribunal of not putting on each side, the imaginary scale on pleadings and the totality of evidence led before it delivered its final judgment. Counsel referred to the case of MOGAJI VS ODOFIN (1978) 4 SC, 91, which is the classicus criteria for trial courts in evaluating the pleading and evidence on the imaginary scale of justice.
The Appellant has specifically attacked the 2nd – 4th Respondents on the ground that they did not offer any evidence denying the allegations of post-ponding or rescheduling the election from 21/04/07. Appellant’s Counsel then urged this appellate court to expunge Exhibits 1st RE3 (1-10) from the record, and then re-evaluate the evidence and ascribe value and weight to Exhibit PE4- PE6 which the Appellant himself tendered. Counsel urged the court to allow the appeal and nullify the election and return of the 1st Respondent and then order for a re-election.
In opposing Appellant’s issue No.6, the 2nd – 4th Respondents as well as the 1st Respondent have argued that the declaration of result sheet is a proof of the conclusiveness of the election and referred to the case of INEC VS RAY, (2004) (Pt. 892) 92 and then wondered that, while the Appellant was contending at the lower Tribunal that the election was not conclusive and was re-scheduled, it was the same Appellant who tendered in evidence the statement of declaration of the election result Form EC8E (ii) and Exhibits PE5, while also, the 1st Respondent tendered and were admitted Exhibits 1st RE 3 (1-10), which are collated results from all the ten (10) wards of the Oluyole Federal Constituency 07, and relied on the case of OBUN VS EBU (2007) 6 WRN 105,44 that states that:-
“In proof of lawful votes cast at an election, the Tribunal is duly bound to rely on the statement of result or summary of results from the polling units or both.”
Counsel for the 1st Respondent, concluded his argument on issue 6, that the findings of the Tribunal, were based on proper evaluation on the preponderance of evidence which was in favour of the duo of Respondents. Counsels have urged this court to affirm the decision of the lower court and dismiss the appeal.
At this stage, I deem it necessary to state that the Appellant’s argument in this issue No. 6 is similar to his arguments in his issues 1, 4 and 5, which earlier on were determined and resolved against the Appellant.
In my considered view, in an election matter, the Electoral Commission result on any election is presumed valid until properly set aside by a competent Election Tribunal. The only proof of a valid election result, is the presentation of the election result sheets on which the voting sheets, counting sheets, collation sheets and the resultant declaration sheets are presently tendered and accepted by the Tribunal, see INEC VS RAY (Supra). In the instant appeal, the Appellant was a candidate in the Federal House of Representative Election for Oluyole Constituency, and he asserted at the lower Tribunal, that he voted at St. Michael Primary School on that Election Day and that the 2nd – 4th Respondents did not write to his party that the election of 21/04/07 had been reschedule. The Appellant had also conceded the fact that exhibit PE6, one of the Punch Newspapers he personally tendered, did not include the Oluyole Federal Constituency as one of the Constituencies to be re-elected on 28/04/07; and not only that, as arguably contended by the Respondents, the Appellant and his agent, whose lists names were not given to the 2nd – 4th Respondents, were not informed in writing or orally of the suspension or rescheduling of the election as he claimed. As earlier determined in this judgment, the purported information that the election had been rescheduled to 28/4/07, was from the statement of a Chairman of ANPP, and therefore, a hearsay evidence and unacceptable, more so, the Appellant did not deem it necessary to call the said Chairman of ANPP to support his claim that the election was not conclusive. RW2, a party of the Alliance for Democracy (A.D) had testified that at no point in time on 21/04/07 were the party agents or the voters informed that the election into Oluyole Federal Constituency had been suspended, see page 62 of the record. The statement on oath was adopted and relied, and was therefore a sold evidence in chief and the Appellant could not dislodge that evidence. Based on these facts I entirely agree with the position of all Respondents on this appeal, which is that the Appellant could not adduce credible evidence to show that the election was conclusive.
In the final analysis, I find that the Appellant’s appeal is completely unmeritorious and is hereby dismissed by me. I affirm the decision of the lower Tribunal which was delivered on 7th day of December, 2007.
I award costs of N30,000.00 to each set of the Respondents and against the Appellant.
Other Citations: (2009)LCN/3447(CA)
