Hon. Clarence Olafemi & Anor V. (Alara) Abereoran Ben Ayo & Ors (2008)

LawGlobal-Hub Lead Judgment Report

OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.

This is an appeal against the judgment of the Governorship/Legislative Houses Election Petition Tribunal sitting at Lokoja Kogi State delivered on the 18th of September 2007.

The facts of the case in brief are that on Saturday the 14th of April, 2007 the Governorship and legislative Houses Election was held throughout the country. Independent National Electoral Commission also an appellant in this appeal, conducted election into Kogi State House of Assembly in Mopamuro Constituency. The 1st and 2nd petitioners, now 1st and 2nd Respondents in this appeal, Alara Abereoran Ben Ayo contested the election on the platform of Action Congress, now 2nd Respondent in the appeal. The appellant who was 3rd Respondent before the Election Petition Tribunal Lokoja contested the election on the platform of Peoples Democratic Party – the 2nd Respondent before the Tribunal.

Independent National Electoral Commission declared the following figures for the contestants at the return of the polls –

(1) Joshua Peter Kayo (ANPP) 170

(2) Hon. Clarence Olafemi (PDP) 12,749

(3) Olatunji Tremi Dele Edward (PPA) 13

(4) Alara Ben Ayo Abereoran (AC) 3,884

The 1st and 2nd petitioners Alara Ben Ayo Abereoran and Action Congress challenged the election on the following two grounds:-

(a) That the election was invalidated by reason of corrupt practices and non-compliance with the provisions of the Electoral Act.

(b) The 1st Respondent/appellant, Clarence Olafemi was not duly elected by-majority of the lawful, votes cast at the election.

Pursuant to the two grounds the 1st and 2nd petitioners/respondents prayed for the following two reliefs:-

(i) That the election held on 14th day of April 2007 wherein the appellant Hon. Clarence Olafemi was returned as winner by 3rd Respondent be declared as invalid by reason of corrupt practices and the election be declared null and void and a fresh election be ordered by the Honourable Tribunal in all the following wards of Mopa-Muro Local Government, Odole 1, Odole 2, Ileteju 1, Ileteju 2, Aiyedayo/Aiyedero, Itekete/Otatun, Ilai Okagi Wards.

(ii) That the election be cancelled for non-compliance with the provisions of the Electoral Act substantially affected the election.

Pre-trial conference was held before the lower tribunal on the 12th July 2007 in accordance with the Election Tribunal and Court practice Directions 2007 (as amended). The Tribunal dismissed the application for enlargement of time to file their reply to the petition filed by INEC and 15 ORS. At the trial of the petition on the 13th – 14th August 2007, 1st and 2nd petitioners/Respondents called eight witnesses including the 1st petitioner/Respondent. The 3rd Respondent/appellant called seven witnesses. The two documents tendered by him were rejected particularly collation of results at Local government level.

Both INEC and the Peoples Democratic Party participation in the trial was cross-examination of witnesses. The Tribunal delivered its judgment on the 18th of September 2007 and found for the 1st and 2nd Petitioner/Respondents, and that the 1st Respondent/Appellant was not validly returned as the winner of the election held on 14th of April 2007 for Kogi State House of Assembly in respect of Mopamuro Constituency. The Tribunal nullified the election, and ordered that a fresh election be conducted in the constituency.

Being dissatisfied with the said judgment of the lower Tribunal -the 1st Respondent – now appellant appealed to this court. The appellant filed eighteen grounds of appeal (vide pages 415-427 of the Record). At the hearing of the appeal – Mr. P.A. Akubo (SAN) adopted the brief of the appellant filed on 23/10/07, and the Reply brief filed on 8/11/07 in the appellant’s brief, nine issues were distilled from the grounds of appeal as follows:-

(1) Whether upon a careful and dispassionate evaluation of evidence in this case, the National Assembly/Governorship and Legislative Houses Election Petition Tribunal sitting in Lokoja, Kogi State was right in believing the evidence of the witnesses of the 1st and 2nd Respondents particularly PW 1 and PW 2 on the ground that they were categorical straight forward and honest and/or not shaking or discredited during cross-examination notwithstanding the evidence of the Appellant and his witnesses in rebuttal and the sum total of the area affected is more than 50% of the entire constituency substantial enough to alter and/or affect the result of the entire election.

(2) Whether the entire trial including the judgment of the National Assembly/Governorship and Legislative Houses Election Petition Tribunal, was not altogether a nullity for gross violation of the doctrine of fair hearing by reason of the Tribunal disallowing the 3rd -18th Respondents from filing their respective replies in defence of the petition and also for entertaining and acting on averments in the petition and evidence thereof in relation to allegation of being armed with dangerous weapons, thuggery, violence, intimidation of voters, hijacking of electoral materials, mass thumb printing of ballot papers, disruption of the process of election et al against some persons not parties to the petition to the prejudice of the appellant.

(3) Whether the trial Tribunal was right to have utilized the further deposition of the 1st Respondent attached to the petitioners Reply to the 3rd Respondent’s Reply to the petition having regard to paragraph 16(1)(a) and (b) of the First Schedule to the Electoral Act 2006 as Amended not withstanding the striking out of the name of the Peoples Democratic Party (PDP)

(4) Whether the trial tribunals came to right conclusion when it said the entire testimony/evidence of all the 7 witnesses of the appellant is unreliable on the ground of inconsistency, clear and manifest material contradictions tissues of lies including that of R.W.1, R.W.6 and R.W.7

(5) Whether the trial Tribunal was right in rejecting admissible evidence to wit the statement of result for Baptist Primary School – Ileteju Mopamuro Unit 04 in ward 03 tendered through R.W.2 as well as the result of the collation of results at the Local Government level as tendered through the appellant.

(6) Whether the trial tribunal was correct in law in affirming its earlier Ruling on the issue of non-joinder and/or failure to join named persons to the petition who allegedly committed various criminal acts having regard to the authority of Egolum V. Obasanjo (1997) 7 NWLR (pt.611) pg 355 at 397

(7) Whether the Honourable Tribunal was right in resolving the issue of competence of the Reply filed by the 1st and 2nd Respondents herein on 16th of June 2007 in response to the Reply filed by the peoples Democratic Party having regard to paragraph 16(1) (a) of the First Schedule to the Electoral Act, 2006

(8) Whether the 1st and 2nd Respondents discharged the requisite burden of proof on them to justify the conclusion of the trial tribunal that the alleged Acts of (supposed) PDP thugs had been linked to Appellant that the Appellant leading his agents and thugs did commit acts of corrupt practices and noncompliance with the Electoral Act by disrupting the conduct of the election, harassing and intimidating eligible voters and that the 1st and 2nd Respondents (petitioners) adequately and effectively rebutted presumptions of correctness of results thereby entering judgment for the 1st and 2nd Respondents by nullifying the election of the appellant as not validly returned as winner of the election or duly elected by majority of lawful votes.

(9) Whether the trial tribunal was biased against the appellant.

Mr. Abalaka learned counsel for the 2nd set of appellants – INEC and 15 others, in their joint appellant’s brief filed on 25/10/07 formulated two issues for determination as follows:-

(i) Whether upon a careful and dispassionate evaluation of the evidence in this case the honourable tribunal was right in giving judgment for the 1st and 2nd Respondents, and allowing the petition?

(ii) Whether the entire trial including the judgment of the honourable tribunal was not altogether a nullity for gross violation of the Appellant’s constitutional right to fair hearing by reason of the Honourable Tribunals refusal to enlarge the time for appellant to file their Reply to the petition.

The 1st appellant filed his Notice of Appeal before the lower tribunal on the 5th of October 2007 in which he had eighteen grounds of Appeal. In the Appellant’s brief filed on 23/10/07 nine issues were distilled from the eighteen grounds of appeal. I observe that the issues are not only cumbersome – they are clumsy and verbose. The Practice Direction No.2 states in clear terms in paragraph 5 that a brief is a succinct statement of an appellant argument in the appeal. According to the Rules of the Court of Appeal Order 17, briefs shall contain what are in the appellants view, the issues arising in the appeal as well as amended or additional grounds of appeal. All briefs shall be concluded with a numbered summary of the points to be raised and the reasons upon which the argument is founded. Except to such extent as may be necessary to the development of the argument, briefs need not set out or summarise judgments of the lower court, nor set out statutory provisions nor contain an account of the proceedings below nor of the facts of the case (vide Order 17 Rules 2, 3, 4 and 5.)

In decided cases a good brief has been held to possess essentially three qualities, which are clarity, precision and accuracy. Any brief which fails to possess these distinctive characteristics leads to incomprehension of the contents and makes it difficult to discern what a party is asking the court to resolve. The essence of brief writing is to assist the appellate court in the delicate task of decision making.

Ansa V. Ishie (2005) 15 NWLR (pt.948) pg 210 SC

Adeosun V. Jibesin (2001) 11 NWLR (pt.724) pg 290

Obiora V. Osele (1969) 1 NWLR (pt.97) pg 279

For ease of reference and clarity of understanding I wish to compress the 9 issues settled for determination by the appellant into four issues which read:-

(I) Whether upon a careful and dispassionate evaluation of the evidence before the Honourable Tribunal, it was right in giving judgment for the 1st and 2nd Respondents and consequently nullifying the election. (issues 1, 2, 4 & 5)

(II) Whether the tribunal had breached the appellant’s constitutional right of fair hearing in the trial of the petition

(III) Whether the honourable tribunal had rightly exercised its discretion in procedural matters during the course of hearing of the petition

(IV) Whether tribunal was biased towards the 1st Respondent/appellant in the hearing of the petition.

ISSUE NO ONE

Whether upon a careful and dispassionate evaluation of the evidence before the Honourable Tribunal, it was right in giving judgment in favour of the 1st and 2nd Respondents and consequently nullifying the election.

The learned senior counsel for the appellant argued and submitted that the Tribunal did not properly and dispassionately evaluated the evidence before it particularly the testimony of the witnesses. The Tribunal dismissed the evidence of the appellant and his witnesses on the ground that their testimony was unreliable for reasons of inconsistency, material contradictions, also watching the demeanour of witnesses and dismissed same as not worthy of any form of credibility. The reamed senior counsel submitted further that a careful and dispassionate evaluation of the evidence will show that the evidence led by the 1st and 2nd Respondents particularly regarding the issue of violence and thuggery was not only self defeating but thoroughly discredited and converted. The deposition on oath of the 1st Respondent in respect of thuggery and violence in all the four wards of Mopa was given to him on phone by his agents whereas election had taken place before he arrived there. There was no restriction of movement – security officers were around to maintain law and order.

The admissions of the 1st Respondent on the allegations of thuggery and violence was highly suspect and improbable especially as he did not report the incident to the security personnel or police. PW4 said that electoral materials were not supplied to her unit ward 2 and unit 2, under cross-examination – but she gave evidence in her deposition that thugs took control and thumb printed the ballot papers for PDP. If INEC did not provide electoral materials there could be no materials for the thugs to thumb-print. PW 5 deposed that he got information on the telephone through agents that no election took place due to thuggery but did not report the matter at the police station in Mopa PW6 claimed to have relied on hearsay for the evidence in the deposition particularly in relation to units 1 to 3 as he did not visit this units. He testified that a large number of voters were disenfranchised – but he was able to vote. He admitted that the incumbency factor assisted the appellant to win election in the consistency.

PW7 who claimed that voting took place in the ward before thugs came to dispute the process of voting – turned round to say under cross-examination that voting did not take place.

PW8 testified on the other hand that voting took place but it was not democratic as a result of thuggery and stuffing of ballot papers. PW8 however said that he was not close enough to see the party symbols on the ballot papers that were allegedly thumb-printed. He was not aware that ANPP and PDP had candidates for the election.

The complaint of the 1st and 20d Respondents covered 27 units spread across the eight wards but no directs evidence was adduced in 22 units. No evidence was led as to the number of voters who were prevented from voting at the respective polling units on account of thuggery neither were the voters cards of any prospective voters tendered before the Honourable Tribunal. PW4 stated that the appellant was not a thug but a responsible citizen. No report of the incident of thuggery was made. No evidence to link any of the thugs to the 1st appellant. The 1st and 2nd Respondents did not call any neutral witnesses like security personnel or agents of other political parties, though they were present at the polling units when the alleged thuggery occurred. The appellant offered rebuttal evidence to controvert the evidence of the 1st and 2nd Respondents and their witnesses. The appellant himself vehemently denied the allegation of thuggery. Having failed to evaluate the evidence properly the Tribunal was in error to the prejudice of the appellant. This court is to resolve this issue in favour of the appellant.

The learned counsel for the 2nd set of appellants Mr. Abalaka submitted on this issue that a careful evaluation of the evidence of petitioner’s witnesses will show that they were thoroughly shaken and discredited under cross examination, and they were not as straight forward or honest as claimed by the Tribunal. The learned counsel touched upon the evidence of PW2 after the 1st Respondent claimed that he had agents in each of the polling units in the four wards – but called only the PW2.

PW2 claimed that as early as 10 am on the day of the election the appellant and one Shola Ojo came to the unit and disrupted, the election and the ballot papers for PDP – but said under cross-examination that voting started at 12pm and closed at 3pm and that he remained in the unit throughout the voting period. The evidence is not only contradictory but unreliable. The complaint in respect of ward 7 occurred in unit 5. There was no evidence about what occurred in unit 5 but the witness gave evidence about units 2, 3 and 4.

PW4 – Janet Abereoran was the petitioner’s mother. She stated in her deposition that Shola Ojo, the Secretary to the government and the appellant the PDP candidate for House of Assembly took control and prevented eligible voters from voting and thumb-printed ballot papers – but she later under cross examination held that both of them were not thugs but gentlemen.

PW5 Isaac Ishola gave evidence that he confined himself to his voting in unit 1 of ward 4 on that day whereas under cross examination at the Tribunal he claimed to have visited some units in the ward. It turned out to be that he received the information through phone calls from other units. The agents who passed the information to him were not called.

PW7 claimed that a few voters had voted before the disruption – but later testify that no voting took place. He claimed to be number one and number four on the queue for voting. There was no evidence to support the findings of the Tribunal that out of ten wards only two wards were not affected – wards 006 and 009.

The learned counsel for the appellant further submitted that the testimonies of witnesses for the appellant/1st respondent were categorical, straightforward and devoid of material contradictions. He reviewed the evidence of R.W.1 to R.W. 7 which pointed to the fact that the election was peacefully conducted on the day, and that it was not disrupted by thugs. He sufficiently explained his movements on the day. His testimonies did not contradict that of R.W. 1 and R.W.2 as erroneously concluded by the Tribunal. In short the judgment of the Tribunal based on the improper evaluation of evidence of both parties is not supported by evidence, is unreasonable and unsustainable. This court is urged to set aside the judgment and resolve this issue in favour of the appellant.

The learned counsel for the 1st and 2nd Respondents submitted that the Tribunal carefully and dispassionately considered and evaluated the evidence of all the witnesses of the appellant and those of the 1st and 2nd Respondents and gave well considered reasons to support its conclusion on the evidence of witnesses. The lower Tribunal as a court of facts and demeanour had total control of the facts. The Tribunal diligently carried out its function of evaluation and appraisal of the facts in the case before it. It is an established principle of law that where a court of trial unquestionably evaluates evidence and appraises the facts it is not the business of a court of appeal to substitute its own view for that of the trial court.

Hasidu V. Goje & 16 ors 2 EP 2 Pg 289 on page 400 -403 the Tribunal gave reasons as it believed each of the individual witnesses called by the 1st and 2nd Respondents. Three of the witnesses of the 1st Respondents identified the Appellant and one Shola Ojo among those who leads thugs to the wards. PW2, PW4 and PW5, PW6 gave evidence of thugs who invaded the polling units chanting war songs as they drove voters away. The Tribunal found their evidence as straight forward and honest. None of them was shaken or discredited during cross examination.

The Tribunal summarised the evidence of the appellant as contradictory and unreliable. The appellant failed to give proper account of his movement which was important at the material time in view of the allegation of leading political thugs. R.W. 4 changed his testimony of visiting 10 wards to 10 units. The Respondent gave statistics of the wards affected, and put the area affected as more than fifty percent of the entire constituency, which are in the opinion of the Tribunal substantial enough to alter and to affect the result of the entire election substantially and did actually alter same in the same manner. The Tribunal concluded that the evidence of PW1, PW2, PW4 and PW8 had connected the appellant with proved acts of corrupt practices and non-compliance with the provision of the Electoral Act. The disruption of election affected more than 50% of the wards in the entire constituency. The conclusion of the Tribunal was impeccable. This court has no reason to interfere with it. The Tribunal was also right in its conclusion that the appellant was not validly returned as the winner of the election of the 14th April, 2007. The learned counsel submitted that evaluation of evidence and attaching probative value to them is the primary duty of the Tribunal, and not that of an appellate court. The appellate court has no business to interfere with the conclusion and decision which the Tribunal arrived at correctly in law and in fact. The court is urged to grant this issue in favour of the 1st and 2nd Respondents. The 1st and 2nd Respondents cited cases in support of the foregoing submission.

Consolidated Brewery V. Adeolu (2006) 2 FWLR (pt.316) pg 3105

Hasidu V. Goje 16 2 EPR pg 289 at pg 799

Yusuf V. Obasanjo (2006) All FWLR (pt.294) pg 382 at pg 400

Oyegun V. Igbinedion (1992) 2 NWLR (pt.226) pg 747

Olu Falae V. Obasanjo No.2 (1999) 4 NWLR (pt.599) pg 476 at pg 487

ISSUE NO. TWO

Whether the tribunal had breached the appellant’s constitutional right of fair hearing in the trial of the petition

The learned senior counsel for the appellant submitted that the judgment of the lower tribunal delivered on the 18th of September 2007 was a nullity. The tribunal disallowed the 3rd – 18th Respondents, INEC and the officials from filing their defence contrary to the principles of fair hearing laid down in the Constitution of the Federal Republic of Nigeria 1999. The 1st and 2nd Respondents before the date of the election had alerted security agents about the plans of the appellant and the Returning Officer Mopamuro Constituency to rig the elections. The 1st and 2nd Respondents in this appeal intended to confront the appellant and INEC through the Returning Officer of their meditated plan to rig the elections. The 1st and 2nd Respondents accused the appellant and INEC of having collective interest in the outcome of the election. The appellant, INEC and the 4th Respondent – the Returning Officer of Mopamuro were not accorded full opportunity to defend themselves. They were not given an opportunity of fair hearing granted to all the other parties in the case. The 2nd, 4th – 15th Respondents before the Tribunal prayed for an order enlarging time within which to file their reply out of time, and to deem as properly filed and served the proposed reply. The Tribunal refused the application on the ground that 2nd, 4th – 18th Respondents were clearly out of time and the matter was already at the pre-trial conference stage, and to grant the application would entail adjourning the matter for a few more days to enable the petitioner response to the reply. The tribunal proceeded to the pre-hearing session thereafter.

Section 43(1) and (2) of the First Schedule to the Electoral Act 2006 provides for enlargement of time for doing any act or taking any proceedings as the justice of the case may require. The appellant further submitted that if the tribunal had adhered to the doctrine of fair hearing; it would have deemed it necessary to have accorded opportunity to all parties to be heard and not to have acted on averments and evidence bordering on criminality against persons who were not parties to the petition. The allegations against the appellant were corrupt practices and non-compliance with the provisions of the Electoral Act 2006.

The appellant concluded that a hearing can only be fair when all parties to the dispute are given a hearing or an opportunity of hearing. If one of the parties is refused or not given an opportunity to be heard the hearing cannot qualify as fair hearing, and without fair hearing the principles of natural justice are abandoned. The learned counsel Cited cases as follows:-

Otapo & Ors V. Sunmonu & Ors. (1987) 2 NWLR (pt.58) pg 587

Ekuma V. Silver Eagle Shipping Agencies Ltd. (1987) 4 NWLR (pt.65) pg 472

Egolum V. Obasanjo (1999) 7 NWLR (pt.611) pg 355

Ika Local Gov. Area V. Mba (2007) 12 NWLR (pt.1049) pg 676

Alabi V. Lawal (2004) 2 NWLR (pt.856) pg 134

This court is urged to resolve this issue in favour of the appellant. The appellant in the 2nd appeal INEC and fifteen others submitted that the doctrine of fair hearing impugns the validity of the entire proceeding shaving regard to the refusal of the Tribunal to enlarge time for the appellant to file their Reply in defence to he petition challenging the election conducted by them, The election was conducted by INEC who returned the 3rd Respondent/appellant the winner of the election.

The 1st and 2nd Respondents in the appeal alleged that the 1st appellant had planned with INEC through the Returning Officer of the Local Government to rig the election. Furthermore it was alleged by the 1st and 2nd Respondents that the 1st appellant and his party – Peoples Democratic Party and his thugs hijacked the entire process of election and manipulated the process to favour the 1st appellant. In view of this allegation – they should have been given the opportunity of ventilating their defence, The application for extension of time to file such defence was refused by the Tribunal. The tribunal could have invoked paragraph 43(1) and (2) of the First Schedule to the Electoral Act 2006 to grant the application. The rule of Natural justice implies in our law that a court or tribunal must hear all sides in the case before reaching a decision, gave equal treatment, equal opportunity and equal consideration to all concerned. The judgment of the Tribunal delivered on 18/9/07 and the entire proceeding are fatally flawed for non-adherence to the doctrine of fair hearing and consequently becomes a nullity. The 2nd set of appellants cited the same cases as the 1st appellant. The appellants urged this court to resolve this issue in favour of the appellants.

The learned counsel for the 1st and 2nd Respondents submitted as rebuttal to the points raised by the appellants that the 3rd – 13th Respondents refused to take advantage of the opportunity granted to them by the Electoral Act to file their reliefs. A party who fails to take advantage of opportunity of being heard cannot turn round to complain of lack of fair hearing. The appellants were fifty days instead of twenty-one days out of time. The refusal of the application by the Tribunal did not cause miscarriage of justice to any party. The Respondent cited the Raji v. University of Ilorin (2006) 3 FWLR at pg 533 at 5726 at 5732. The court is urged to resolve this issue in favour of the 1st and 2nd Respondents

ISSUE NO THREE

Whether the Honourable Tribunal had rightly exercised its discretion in procedural matters during the course of hearing of the petition. The learned senior counsel for the 1st appellant submitted that the Honourable Tribunal:-

(a) was wrong to have utilized the further deposition of the 1st Respondent particularly having struck out the name of the People Democratic Party and bearing in mind paragraph 16(1) (a) and (b) of the First schedule to the Electoral Act 2006

(b) The Tribunal was wrong in rejecting admissible evidence to wit, statement of Result for Baptist Primary School Ileteju Mopamuro unit 04 in ward 03 as well as the collated result for Mopamuro Constituency.

(c) The Honourable Tribunal was equally wrong in affirming its waiver ruling on the issue of non-joinder to the petition persons who allegedly committed various criminal acts having regard to the authority of Egolum V. Obasanjo (1999) 7 NWLR (pt. 611) pg 355

(d) The Reply filed by the 1st and 2nd Respondents on the 16th June 2007 was patently incompetent having regard to paragraph 16(10 (a) of the First Schedule to the Electoral Act 2006.

The appellant submitted that in as much as there is no provision for further deposition in paragraph 16(1) (a) and (b) of the 1st schedule, in as much as the further deposition contains new facts in gross violation of paragraphs 14 and 16(1) (a) and (b) of the first schedule, all be it without prior leave of the Lower Tribunal, it was most in appropriate to have utilized the said further deposition. The substratum of the further deposition by the 1st Respondent was gone when the party (PDP) was struck out as unnecessary party by the Honourable Tribunal. The further deposition of the 1st Respondent was of no consequence. The filing of a Reply is governed by paragraph 16(1) of the First Schedule. The purpose of the petitioner’s Reply is to answer to new issues of facts that may have been raised in the defence of the Respondent. The petitioner is not at liberty to bring in new facts which may tend to amend or add to the contents of the petition filed. The Tribunal was wrong in resolving the issue of the petitioner’s Reply the way it did in this case as the petitioner’s reply is not meant to reassert or restate averments already contained in the petition. The 1st and 3rd Respondents seized the opportunity of the Reply Brief to add new facts in their Reply. The appellant cited the case of Iwuoha V. Nipost Ltd (2003) 8 NWLR (pt. 822) pg. 308.

Before the Lower Tribunal the Respondent pleaded all the polling Results and the collated results as recorded on the relevant declaration forms of the 2nd Respondent. The appellant in offering rebuttal evidence sought to tender the statement of result in respect of Baptist Primary School- Ileteju Mopamuro Unit 04 in ward 03 through PW 2 – the PDP agent at the polling unit, who signed the result. The tribunal rejected the document as they were neither attached nor listed by the applicant in violation of paragraph 1(1) (c) of the Practice Directions and paragraph 4(8). In the same manner the result collated at the local government collation centre – the declaration of result for Mopamuro constituency Form EC8E (1) was rejected by the tribunal as though pleaded was not listed or attached to the petition. In invoking paragraph 1(1) (c) of the First Schedule to exclude the two documents the Tribunal resorted to undue technicalities. The courts do not adhere to technicalities any longer and the emphasis now is more on doing substantial justice. The learned senior counsel concluded that the wrongful exclusion of the documentary evidence in this case worked against the interest of the appellant.

This court is to reverse the wrongful exclusion of evidence and resolve this issue in favour of the appellant. The appellant cited the case of Elias V. Disu (1962) All NLR (pt.1) pg 215 Okobia V. Ajanya (1998) 6 NWLR (pt.554) pg 348 at pg 360

The learned senior counsel submitted that the lower tribunal was wrong in affirming its earlier ruling on the issue of non-joinder to the petition persons who allegedly committed various criminal acts having regard to the authority of Egolum V. Obasanjo (1999) 7 NWLR (pt.611) pg 355. Going by the doctrine of stare decisis the decision in Egolum V. Obasanjo is binding on the lower tribunal.

The 1st and 2nd Respondents learned counsel submitted that tribunal rightly rejected the statement of result for Baptist Primary School Ileteju Mopamuro unit 04 wards 03 and the collation of the result of Local Government tendered through the appellant as they violated the provisions of the Election Tribunal and Court Practice Directions 2007. A Respondent must attach copies of all documents to his reply or list them in order to be admissible at trial. The Election petitions are peculiarly regulated and distinct from the approach and procedure relating to tendering of evidence in ordinary civil matters.

Court Practice Directions must be adhered to strictly in view of the expeditious and urgent nature of election petitions – their provision cannot be circumvented. This court is urged to resolve this issue I favour of the 1st and 2nd Respondents. The Respondents referred to the case of APGA V PDP 2 FWLR (pt.193) pg 266

The learned counsel further submitted that the tribunal was right in affirming its earlier ruling on the non-joinder to the petition, person who allegedly committed various acts because the case of Egolum V. Obasanjo (1999) 7 NWLR (pt.611) pg 355 cited the facts are clearly distinguishable from the facts the case before the tribunal. The reply filed by the 1st and 2nd Respondents on the 16th of June 2006 was within time and was in compliance with paragraph 16(1) (a) of the First Schedule to the Electoral Act 2006, as amended it was therefore quite competent. The court is urged to resolve this issue in favour of the 1st and 2nd Respondents.

ISSUE NO. FOUR

Whether tribunal was biased towards the appellant in the hearing of the petition.

The learned senior counsel submitted that tribunal exhibited bias towards the 1st appellant right from the hearing of the petition. The tribunal rejected the testimonies of all the witnesses called by the appellant.

The tribunal treated the evidence of the appellant with profound contempt as glaring tissues of lies and accordingly jettisoned their testimonies into the dust bin. The tribunal was full of praises for the Respondent and his party – the 2nd Respondent. The evidence of the 1st Respondent was believed on the act of thuggery and consequently linked same to the appellant. The Tribunal picked on that portion of the judgment. Bias in relation to a court or tribunal is an inclination or a disposition to decide a cause or matter in a certain way without regard to any rules or law. What is important is that any person looking at what the court, tribunal or judge has done will have the impression in the circumstances of the case that there was real likelihood of bias. It is the law that justice must not only be done but also manifestly be seen to be done. The judgment of the tribunal is fundamentally flawed on ground of bias. The appellant cited cases Usani V. Duke (2006) 17 NWLR (pt.1009) Pg 610 at 641 Kenon V. Tekam (2007) 14 NWLR (pt.732) Pg 121 at 41-42.

R V. Essex Justices Exh Parte Perkins 7927 All ER 393

The learned counsel for the 1st and 2nd Respondents submitted that the issue was not raised by any of the parties at the tribunal. The issue can therefore not be raised now without leave of court. The issue of bias did not arise from the evidence on the record. The court is urged to strike out ground 18 of the ground of appeal and issue 9 in the appellant’s brief of argument as being clearly incompetent, and the court should discountenance the entire argument of the learned counsel based on this issue. The court is urged to resolve this issue in favour of the 1st and 2nd Respondents.

I have painstakingly considered the submission of all parties to this appeal. I wish to consider first and foremost the preliminary objection raised by the 1st and 2nd Respondents/applicants to grounds 2, 6 and 9 of the grounds of appeal. The grouse of the Respondents/applicants are that the appellant did not take any step to appeal against those interlocutory decisions when they were made by the lower tribunal but instead participated thereafter in the entire proceedings. The appellant requires the leave of the Court of Appeal to raise fresh issue of bias. The appellant did not obtain leave of this court to file this appeal whereas the decisions were final and appeallable. By not appealing timeously the appellants waived their rights. The 1st Appellant by way of reply to the Notice of Preliminary Objection filed by the 1st and 2nd Respondents in their brief argued that:-

(1) The purported Notice of Preliminary Objection is manifestly incompetent

(2) No argument has been canvassed in support of the Notice of Preliminary Objection and as such same is deemed abandoned, hence ought to be struck out

(3) The purported Notice of Preliminary Objection is lopsided and a bunch of confusion having haphazardly lumped together Issues involving two separate appeals.

I have observed that the 1st and 2nd Respondents raised a preliminary objection to the competency of this appeal. By virtue of Order 10 Rule 1 of the Court of Appeal Rules 2007, a respondent intending to rely upon a preliminary objection to the hearing of an appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection. Notice of Preliminary Objection can also be given in the Respondents brief, but a party filing it in the brief must ask the court for leave to move the objection before the oral hearing of the appeal commences. The essence of the foregoing is to give the appellant adequate notice of what to meet at the hearing of the appeal.

Ajide V. Kelani (1985) 3 NWLR 12 pg. 248

Tiza V. Begha 22 NSCQR (pt. 11) pg 642

The applicant in the preliminary objection failed to ask for leave to move the objection before the hearing of the appeal. The applicant did not canvass any argument in support of the objection – hence the preliminary objection is to be deemed as abandoned and liable to be struck out. However the appellant does not require any leave of this court to file this appeal in that by virtue of Section 246(1) (b) of the constitution of the Federal Republic of Nigeria 1999:-

“An appeal to the Court of Appeal shall lie as of right from:-

(i) Decisions of the National Assembly Election Tribunal and Governorship and Legislative Houses Election Tribunals on any question as to whether

(ii) Any governor has been validly elected to the office of Governor or Deputy Governor. In view of the Sui generis nature of election petition, an appeal to the Court of Appeal from the Election Petition Tribunal by virtue of section 246(1) (b) (11) on the validity of an election to the post of governor and Deputy Governor is as of right hence no need of leave of the Court of Appeal or the Lower Tribunal. Kalu V. Uzo (2006) 8 NWLR (pt.901) pg 66.

Section 246 of the 1999 Constitution has not made provisions for an appeal from the lower Tribunal to the Court of Appeal on interlocutory applications – which has not finally determined the rights of the parties in the case but merely a decision made within the election petition proceedings. In effect the appeal court has no jurisdiction to hear any interlocutory appeals arising from the decision of the lower Tribunal during the hearing of election matters. The issue raised on the doctrine of fair hearing is not a mere interlocutory decision but forms an integral part of the proceedings before the Lower Tribunal up to the stage of judgment – and so also is the issue of bias. Issue of bias also affects the jurisdiction of a court. Where a judge is found to be biased he has to automatically disqualify himself from hearing the case. It is trite that an issue of jurisdiction being a fundamental arid radical issue of competence can be raised at any stage of the proceedings even at the Apex Court.

Saleh V. Monguno (2003) 1 NWLR (pt.801) pg 221

NDIC V. SBN Plc (2003) 1 NWLR (pt.801) pg 311

NDIC V. CBN (2002) 7 NWLR (pt.766) pg 272

The preliminary objection is on the whole misconceived, it lacks merit and is hereby struck out.

ISSUE NO ONE

This issue challenges the evaluation of evidence of the lower Tribunal, whereupon it entered judgment for the 1st and 2nd Respondents by nullifying the election of the appellant that he was not validly returned as winner of the election or duly elected by majority of lawful votes. In the judgment of the Lower Tribunal on the evaluation of evidence adduced by the witnesses of the 1st and 2nd Respondents vis-a-vis the evidence of the Appellant and his witnesses – the Tribunal commenting on the testimony of the witnesses of the 1st and 2nd Respondents said:-

“We must say that the testimony of those witnesses have been categorical straight forward and honest. None has been shaken or discredited during cross-examination. They are witness of truth and quite believable”.

On the evidence of the Appellant and his witnesses the lower Tribunal said:-

“Thus the entire testimony of all the 7 witnesses of the Respondents is coupled with their demeanour, so unreliable, apart from the clear and manifest material contradictions. Consequently, we do not find the testimonies of all the witnesses called by the Respondents worthy of belief. They are glaringly tissues of lies which should be jettisoned with profound contempt into the dust bin”.

The witnesses for the 1st and 2nd Respondents and the 1st Appellant had made efforts to address the tribunal on the conduct of the election. While the Respondents said that the conduct of the Senatorial Election was turbulent in the Mopamuro Constituency – as the appellant made use of political thugs to disrupt the conduct of the elections thereby preventing eligible voters from voting, thumb printed ballot papers for the PDP, and that the election was marred by thuggery, violence and related malpractices.

The Appellant and his witnesses who were present at their various units in the wards – gave evidence that the election in the units where they served mostly as agents of parties DPP, PDP, AC gave evidence of peaceful, free and fair election after which poll results were recorded.

As at the time the petition was filed the 1st and 2nd Respondents sought the following reliefs before the Tribunal:-

(1) That the election held on 14th April 2007 wherein 1st Respondent. Han. Clarence Olafemi were returned as winner by the 2nd, 4th and 5th Respondents of the said Mopamuro House of Assembly constituency election be declared null and void and a fresh election be ordered by the Honourable Tribunal in all the following wards of Mopamuro Local Government, Odole 1, Odole II, Ileteju I, Ileteju II, Aiyedero, Irakete/Otafun, Ilai Okagi ward.

(2) That the election be cancelled for non-compliance with the provisions of Electoral Act that substantially affected the election”.

It is important to note that allegation of thuggery, violence, as groups of thugs led by one Shola Ojo and the Appellant armed with guns, cutlasses, axes, daggers and other dangerous weapons chased away eligible voters, seized ballot boxes, hijacked election materials and mass thumb printed electoral materials, hired thugs and agents of the Peoples Democratic party (PDP) who committed crimes of the rank and file dominated the petition of the 1st and 2nd Respondents. The nature of the complaints leveled against the appellant and his cohorts are grave allegations of crime. Thuggery and violent disruption, and deprivation of rights to vote are criminal acts which are covered by the Electoral Act 2006.

The law is that the burden of proof is on him who asserts -Section 137 of the Evidence Act. In this case where the allegations are criminal in nature the burden of proof on the 1st and 2nd Respondents is that of proof beyond reasonable doubt Section 138 of the Evidence Act.

In criminal matters or claims founded on criminal conduct, in an election petition the allegation has to be proved beyond reasonable doubt. In a criminal matter the burden of proof is static, as it ever remains on the claimant or the prosecution as the case may be. In this case as the petition was essentially grounded on the conduct of the appellants that bordered on criminality it was therefore incumbent on the respondents to prove their allegation beyond reasonable doubt. The burden does not shift; it remains until it has been fully discharged.

Ezike V. Ezeugwu (1992) 4 NWLR (pt.236) pg 462

Ofodile V. Chuwuba (1993) 1 NWLR (Pt.268) pg 151

Eseduwo V. INEC (1999) 3 NWLR (pt.594) pg 215

Nnachi V. Ibom (2004) 16 NWLR (pt.900) pg 614 at 635

Omoboriowo V. Ajasin (1984) 1 SCNLR pg 108

Adamu V. Gwadabawa (1999) 3 NWLR (pt.594) pg 257

Nsirim V. Nsirim 1995 9 NWLR pt. 418 pg. 144

Omorinbola II V. MIL Gov. Ondo State (1995) 9 NWLR (pt. 418) pg. 201.

U.B.A. Ltd V Odusote Bookstores Ltd. (1995) 9 NWLR (Pt.421) pg 558.

Ugbo V. Aburime (1994) 8 NWLR (Pt.360) Pg. 1

Edokpolo Co. Ltd. V. Ohenhen (1994) 7 NWLR (Pt.358) pg 511.

Buhari V. Obasanjo (2005) 2 NWLR (Pt.910) P9 241.

Going by the evaluation of evidence by the Lower Trial Court and the credibility attached to the evidence of the witnesses of the 1st and 2nd Respondents, can this court arrive at the conclusion that they discharged the burden placed on them to establish the election malpractices at Mopamuro constituency beyond reasonable doubt? This court shall examine the evidence on Record to answer this poser. What is certain is that allegations of election malpractices are criminal in nature. Therefore the evidence proffered in such circumstances must be clear and unequivocal.

Egemasi V. Onyekwere (1983) 9 SC 7

Elebe V. Ezenduka (1998) 7 NWLR (pt. 556) pg 74

In the instant case the appellant and his witnesses called evidence to show that the election was held peacefully and that there were election materials available.

In the scenario the 1st and 2nd Respondents has to do more than the identification of the appellant to show the veracity their of position.

(1) Whether there is a compliant about violence or thuggery in an election petition, a nexus must be established between the perpetrators and the appellant by credible evidence.

(2) It must be shown that the act adversely affected the conduct of the election

(3) That the act substantially affected the result of the election.

Oyegun V. Igbinedion (1992) 2 NWLR (pt.226) Pg747

Ebebe V. Ezenduka (1998) 7 NWLR (pt.556) pg 74

Aya V. Adasu (1992) 3 NWLR (pt.231) Pg 611

Ajadi V. Ajibola (2004) 16 NWLR (pt.893) pg 91

In establishing the nexus the petitioners must have proved the following before the Tribunal:-

(a) That the respondent was the person who actually committed the alleged corrupt practice or undue influence

(b) Where the act was alleged to have been committed by the agent, that he was authorised by the respondent.

(c) That the act was committed with express consent or knowledge of a person who was acting under the general or special authority of the respondent and

(d) That the alleged corrupt practices or unue influence has substantially affected the outcome of the election.

In the instant case the allegation of corrupt practices was not properly proved beyond reasonable doubt and therefore it could not be said that the election of the appellant was not invalid by reason of corrupt practices.

Opia V. Ibru (1992) 3 NWLR (pt.231) pg658

Ekpe V. Morah (1999) 3 NWLR (pt.617) Pg146

Falae V. Obasanjo (1999) 4 NWLR (pt.599) pg 426

Wali V. Bafarawa (2004) 16 NWLR (pt.898) pg 1

The 1st and 2nd Respondents failed to establish a direct nexus between the appellant and the thugs or agents hired by the party PDP.

A candidate cannot be held responsible for what other people did in the form of “unsolicited aid” of which he or his election agent was ignorant.

Ayua V. Adasu (1992) 3 NWLR (pt.231) pg 598

Agomo V. Iroakazi (1998) 19 NWLR (pt.568) pg 133 Even if a political party engaged in criminal activities which would disqualify a candidate, it cannot affect the candidate unless it is established and shown that the candidate authorised or ratified the offending act.

Nnachi V. Ibom (2004) 16 NWLR (pt.900) pg 614

P.W.4 gave evidence that the 1st appellant is a gentleman and not a thug.

For merely canvassing for a candidate in whose success one is interested is not sufficient to ascribe to the candidate any unlawful act of the canvasser of which the candidate and his agent are ignorant.

Musa V. Nel (1989) 1 NEPWL pg 20

The testimony of 1st Respondent as confirmed by his witnesses like PW2, PW4, PW5 and PW8 was that thugs armed with guns and other dangerous weapons took over the wards chased away eligible voters who were there to exercise their civic rights and thumb printed ballot papers in favour of PDP. The remarkable aspect is that the ballots papers allegedly thumb printed by the thugs were not produced. The case of Haruna V. Modibbo (2004) 16 NWLR (pt.900) Pg 487 specified the nature of evidence required for proof of allegation of stuffing ballot boxes. In an election petition where there is allegation of stuffing of ballot boxes – the ballot boxes in which the ballot papers were allegedly stuffed must be tendered before the Tribunal and opened there. It is only when the ballot boxes are tendered before the Tribunal and opened before it that such an allegation is sustainable. The 1st and 2nd Respondents did not tender any ballot boxes before the lower Tribunal. They did not call a single expert evidence to demonstrate that certain ballot papers contained thumb prints of one or few persons linked to the appellant.

Haruna V. Modibbo (2004) 16 NWLR (pt.900) Pg 487

By virtue of Section 136(1) of the Electoral Act 2006, acts which if carried out at polling stations or within a distance of 300 meters of a polling station on election day amounts to offences subject to payment or fine or imprisonment for six months, include:-

(e) Persuading a voter to vote for a particular candidate or not to vote at the election,

(f) Be in possession of any offensive weapons calculated to intimidate voters.

(g) Snatch or destroy election materials.

The 1st and 2nd Respondents did not produce and tender any weapons recovered from the thugs and used to commit the acts of thuggery and violence at the polling stations on the Election Day.

No unstamped and unsigned voters card, or illegally thumb printed voters card were produced and tendered before the Tribunal. The difference in the figure of votes between the voters register and the illegally thumb printed votes cast by the appellant and his agents were not produced or made known to the Tribunal. The figures in the result of the election as produced by the 1st Respondent in the petition before the Tribunal reads:-

(1) Joshua Peter Kayo (ANPP) 170

(2) Hon. Clarence Olafemi (PDP) 12,749

(3) Olatunji Tremi Dele Edward (PPA) 13

(4) Alara Ben Ayo Abereoran (AC) 3,884

The figure did not support the testimony of the 1st and 2nd Respondents and their witnesses that voters were prevented from voting and no election took place in eight out of ten wards in Mopamuro Senatorial Constituency. The number of registered voters and the voters who actually cast their vote must declare.

The voters purportedly driven away from the polling units and disenfranchised by the armed thugs were not called to testify by the 1st and 2nd Respondents. Independent witnesses or those who will give neutral testimony in respect of the events at the polling Stations were not called.

The 1st and 2nd Respondents pleaded in paragraph 6 of their Petition that the overall result sheet and forms EC8A, EC8B and EC8C will be relied upon at the trial. This court observes that though these documents were tendered, they were rejected by the Tribunal. By virtue of Section 150(1) of the Evidence Act, when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. In the absence of a compliant against the conduct of an election by an Electoral Officer, there is the presumption of regularity of the Electoral Officers conduct at the election, and a further presumption that the result of the election is correct.

In the facts in support of the grounds for the petition – the petitioner stated that security agents were alerted well before elections over plans by the 1st and 4th Respondents to rig elections. The 4th Respondent before the Tribunal was the returning officer Mopamuro Constituency. The 1st and 2nd Respondents did not adduce any evidence the show his role or participation in the election. In the instant case the presumption of regularity enures in favour of the Returning Officer for Mopamuro Constituency. Similarly where the documentary evidence tendered by the respondents in proof of their assertion that the election was held in a local government area does not on its face show any irregularities, the court would hold that the election was conducted in substantial compliance with the principle of the Electoral Act 2006.

Jalingo V. Nyame (1992) 3 NWLR (pt. 231) pg. 538

Omoboriowo V. Ajasin (1984) 1 SCNLR pg. 108

Fine bone V. Brown (1999) 4 NWL (pt. 600) pg. 613

Amako V. The State (1995) 6 NWLR (pt. 399) pg. 11

SPDC Ltd. V. Jiebo VII (1996) 4 NWLR (pt. 445) pg. 657

Majoroh V. Fassasi (1986) 5 NWLR (pt. 48) pg. 243

Odudu V. Atoyebi (1987) 2 NWLR (pt. 68) pg. 660

Odunsi V. Odunsi (1979) 12 NSCC pg. 57

UBN Plc. V. Idrisu (1999) 7 NWLR (pt. 609) pg. 105

Nwobodo V. Onoh (1984) 1 SCNWL pg 1

Regrettably this court does not have the benefit of looking into such documents – as the lower Tribunal rejected all documents vital to the determination of the petition and also disallowed INEC officials from putting in a defence to the allegations levied against them for non-compliance with the provisions of the Election Act, and Court Practice Direction.

During the hearing of the Petition, the Independent National Electoral Commission, the Returning officer Mopamuro Constituency and other officials of INEC – as 2nd, 4th-18th Respondents applied for enlargement of time within which to file their Reply to the petition out of time, and for a deeming order, and attached same to the application, which was refused by the Tribunal on the 10th of July 2007 pursuant to paragraph 10(2) of the First Schedule, to the Electoral Act 2006.

The Tribunal also rejected two documents, the statement of result of Baptist Primary School Ileteju Mopamuro Unit 04 in ward 03 and the declaration of result for the entire Mopamuro Constituency form EC8E (1) as they were neither attached not listed by the applicant in violation of paragraph 1(1) (c) and paragraph 4(8) of the Election Tribunal And Court Practice Directions 2007. The pieces of document would have rebutted the evidence that election did not take place in eight out of ten words in the Mopamuro Constituency due to allegations that the appellant and his agents were armed with dangerous weapons, thuggery, violence, intimidation of voters, hijacking of electoral materials, mass thumb printing of ballot papers and disruption of the process of election. The absence of such documentary evidence was used by the Tribunal to enter judgment against the appellant. The appellant submitted that the exclusion of evidence left far reaching effect on the entire case. Furthermore the exclusion of these documents dealt a fatal blow on the case of the 1st and 2nd Respondents. It cannot be concluded that they have discharged their burden of proof in the petition beyond reasonable doubt as required in the circumstances of the case.

It is the duty of this court to explain that Practice Directions are rules touching on the administration of justice. It is made to attain justice with ease, certainty and dispatch. Practice Direction is a direction given by an appropriate authority stating the way and manner a particular Rule of court shall be complied with, observed and obeyed. They are instructions in aid of practice in court. They cannot by themselves overrule court decisions.

Solanke V. Somefun (1974) All NLR (pt. 1) pg 141

University of Lagos V. Aigoro (1985) 1 NWLR (pt. 1) pg. 143.

Section 43 (1) – (5) of the First Schedule of the Electoral Act 2006 gives a Tribunal power to enlarge time for doing any act as the justice of the case may require. Equally Order 23 Rule 3 (10 and (2) of the Federal High Court (Civil Procedure) Rules 2000 applicable to election matters by virtue of paragraph 50 of the First Schedule to the Electoral Act allows for enlargement of time.

It is the attitude of the courts now that cases where a strict adherence to the Rules of court or practice Direction would clash with that of fundamental principle of justice, the courts have invariably leaned heavily on the side of doing justice. Strict Reliance on Technicalities lead to injustice as justice can only be done if substance of the matter rather than form is examined. Election matters are to be heard without regard to technicalities which may unduly fetter the jurisdiction of the Tribunals Egolum V. Obasanjo (1999) 7 NWLR (Pt.611) Pg. 355.

Nwobodo V. Onoh (1984) 1 SCNR 1

Ogbebor V. Danjuma (2003) 15 NWLR (pt. 803) pg. 403

Bayo V. Njidda (2004) FWLR (pt. 192) Pg. 10

University of Lagos & Anor V Aigoro (1984) 11 SC Pg. 152.

In the case of Ohia V. Uma (1998) 7 NWLR (pt. 556) pg. 95 it was held that election petition must be handled with some elasticity – too much technicality should be avoided.”

Alhaji Atiku Abubakar 12 Ors V. Alhaji Umaru Musa Yar’adua & 5 Ors an unreported judgment of the Supreme Court in suit SC288/2007 delivered on the 25th of January 2008, the Apex Court aptly pronounced on this that:-

“Rules of court are meant to be obeyed of course that is why they are made. There should be no argument about that. But there is an important qualification or caveat and it is that their obedience cannot or shall not be slavish to the point that justice in the case is destroyed or thrown overboard. The greatest barometer as far as the public is concerned, is whether at the end of the litigation process, justice has been done to the parties”.

The Tribunal has dealt an indelible blow to justice in the hearing of the petition by disallowing vital documents to be tendered, and this had adversely affected the decision of the court.

It is also worthy of note that no single report was made to security agents in all the eight wards affected by the malpractices – and no single arrest was made of any of the thugs lastly since the 1st Respondent cannot be at all the affected wards at the same time reports of the acts of the appellants and the thugs were passed down to him. Where a witness gives evidence on a vital fact relying on information by another person, the evidence amounts to hearsay and would have no evidential value. The hearsay evidence would not be that of an eyewitness.

Ajadi V. Ajibola (2004) 16 NWLR (Pt. 898) Pg. 91

Buhari V. Obasanjo (2005) 2 NWLR (Pt. 910) pg. 241.

The evaluation of evidence and ascription of probative value thereto is the primary duty of the trial court. This duty is based on the fact that the trial court has the advantage of seeing and observing the witnesses demeanour, candor or partisanship as the case may be, their integrity, manners and comportment and assessing the background from which the witnesses testify while testifying and drawing necessary inferences. These are advantages which are not available to this appellate court.

Woluchem V. Gudi 1981 SCC 291

Onowan V. Iserhien (1976) 1 NWLR Pg. 263

Ifer V. Ikyanyon (2001) 4 NWLR (Pt. 203) Pg. 324

Abisi V. Ekwealor (1993) 6 NWLR (Pt. 302) Pg. 643.

Atolagbe V. Shorun (1985) 1 NWLR (Pt. 2) pg. 360

Adeleye V. Iyanda (2001) 13 MWLR (Pt. 729) Pg. 1

What evaluation entails or what(sic) the trial court discharges that primary duty has to do with the trial courts sense of justice in terms that it has to receive admissible evidence, assess and give it probative value and finally makes specific findings from the evidence. Wrong facts stated or principles of law applied by the court are inimical to justice. Therefore the trial court must carefully examine facts, understand and appreciate them in relation to the issues involved before resolving them. The appellate court will be reluctant to differ from a trial court on a finding of fact.

A distinction must however be drawn between findings of fact based on the credibility of witnesses and findings based on an evaluation of evidence which has been accepted. In the latter case, an appellate court is in as good a position to evaluate the evidence as the trial court, though it will give weight to the opinion of the trial court. Haruna V. Modibbo (2004) 16 NWLR (pt. 900) pg. 487.

Where the trial court fails to evaluate or properly evaluate the evidence adduced before it and miscarriage of justice occurs the appellate court will be obliged to interfere and evaluate or re-evaluates the evidence particularly where there is non-evaluation or improper evaluation or appraisal of evidence before the trial court.

Balogun V. Ayoola 1974 10 SC 111

Karibo V. Grend 1992 3 NWLR Pt.230 Pg. 426

Awudu V. Daniel 2005 NWLR pt. 909 Pg. 199

Odofin V. Ayoola 1984 11 SC72

Where there is a complaint about violence or thuggery as in this case there must be nexus between the appellant and the perpetrations by credible evidence- it must be shown that the act adversely affected the conduct of the election and further that the act substantially affected the result of the election. The entire trial before the Tribunal is devoid of evidence oral or documentary to establish that all the allegations complained of in the petition adversely affected the conduct of the election, and substantially affected the result of the election. Eight wards out of ten wards in the Mopamuro Constituency were supposed to be affected covering 27 units but evidence was called in respect of only five units out of the twenty seven units. This court can only take this to mean an abandonment of the complaints in the 22 units

The Lower Tribunal in adherence to the Practices Direction rejected vital documents which it could have admitted in the interest of justice to all, and proper determination of petition by the court. An appellate court will always set aside the decision of the trial court which has wrongfully excluded evidence in the trial if the appeal court cannot reasonably hold that the decision would have been same if the wrongfully excluded evidence had been admitted.

Okobia v. Ayanya 1998 6 NWLR Pt. 554 Pg. 348

Elias v. Disu & Ors 1962 All NLR Pt. Pg. 215

In considering whether or not an election was conducted substantially in accordance with the 1999 Constitution and the Electoral Act 2006, the court will look at the circumstances of the case, including the state of the pleadings especially the credibility of the petitioner and the nature and substance of the complaints of the petitioner, the attitude of the functionaries charged with the conduct of the election and whether the omissions complained of by the petitioner even if proved, affected the conduct of the election.

Okoroji V. Ngwu 1992 9 NWLR Pt. 263 Pg. 113

Ajadi V. Ajibola 2004 16 NWLR Pt. 898 Pg. 91

Non compliance with the clear provisions of the electoral law and guidelines made pursuant to the electoral law which can render an election void must be so great as to amount to a conducting of the election in manner contrary to the principle of election by ballot and must be so great as to satisfy the court that it did affect or might have affected the majority of votes or in other words the result of the election. In determining whether or not non-compliance with electoral rules alleged in an election petition is substantial, or substantially affected the result of the election; depend on circumstance of each peculiar case. Where an election is not conducted in substantial conformity with the electoral law it ought to be nullified. The evidence adduced before the court shall be relied upon by the court. Where an allegation of non- compliance with the electoral law is made, the onus lies on the petitioner firstly to establish the substantial non-compliance, and secondly that it did or could not have affected the result of the election in accordance with Section 146 of the Electoral Act 2006. Incidents of thuggery, intimidation, together with snatching of ballot boxes are not only acts in breach of Electoral Act 2006, they constitute non-compliance and also capable of placing obstacles on the way or obstructing willing voters from exercising their rights of franchise. In the instant case, on the evidence before the court, the 1st and 2nd Respondents as petitioners did not establish that the acts complained of substantially affected the election in the Mopamuro Constituency to warrant the nullification of the entire election.

Buhari V. Obasanjo 2005 2 NWLR Pt. 910 Pg. 241.

Adebiyi V. Babalola 1993 4 NWLR Pt. 267 Pg.1.

Awolowo V. Shagari 1979 All NWLR Pt. 120

Ibrahim V. Shagari (1983) 2 SCLR pg. 176

Akinfosile V. Ijose (1960) SCNLR (pt. 447)

Swen V. Dzungwe (1966) NWLR pg. 297

Ojukwu V. Onwudine (1984) 1 SCNLR pg. 247

Anazodo V. Audu (1999) 4 NWLR (pt. 600) pg. 530

Ogbu V. Nnaji (1999) 4 NWLR (pt. 597) pg. 87

Daggash V. Bulama (2004) 14 NWLR (pt. 892) Pg. 144.

The first issue is resolved in favour of the appellant.

ISSUE NO 2

Whether the entire trial including the judgment of the Honourable Tribunal was not a nullity for gross violation of the appellant’s constitutional right to fair hearing.

The learned senior counsel for the 1st appellant submitted that this issue impugns on the doctrine of fair hearing because of the refusal of the Lower Tribunal to allow the 3rd – 18th Respondents to file their respective replies to the petition in defence of the allegation levied against them. The appellant learned senior counsel referred to the averment in paragraph one of the petition that the 4th Respondent the Returning officer for Mopamuro Constituency had connived with the appellant to rig the election. Fair hearing demands that they should be allowed to defend the allegation. The 2nd and 4th – 18th respondents applied for leave out of time for filing their respective reply to the petition which the court refused on the ground that the matter is already at the pre-trial conference stage, and to grant the application would entail adjourning the matter for a few more days to enable the petitioner respond to the reply. The refusal was predicated on paragraph 10 (2) of the First Schedule to the Electoral Act 2006. Paragraph 43(1) and (2) of the First Schedule to the Electoral Act 2006 provide for enlargement of time for doing any act or taking any proceedings on such terms as the justice of the case may require.

The 1st and 2nd Respondents in the averments in their petition made allegations of being armed with dangerous weapons, thuggery, violence, intimidation of voters, hijacking of electoral materials, mass thumb printing of ballots papers, disruption of the process of election against some persons not parties to the petition. The Tribunal acted on the evidence of the Respondents to give judgment in respect of all the allegation bordering on crime levied against those not parties in the petition.

The learned counsel to the 2nd set of appellants, INEC and 15 ors made similar submission. Both learned counsel argued that the doctrines of fair hearing have been breached and that the Tribunal should have invoked paragraph 43 of the First Schedule to the Electoral Act 2006 to grant the application to enlarge time for the Respondents/appellant to file their Replies in the interest of justice. They cited cases of Haruna V. Moddibo (2004) 16 NWLR (pt. 900) Pg. 487 University of Lagos & Anor v. Aigoro (1984) 11 SC pg. 152 Olatubosun V. Niser Council (1998) 3 NWLR (pt. 80) pg.25 Otapo & Ors. V. Sunmonu & Ors (1987) 12 NWLR (pt. 58) pg 587 at pg 605 Ekuma V. Silver Eagle Shipping Agencies Ltd (1987) 4 NWLR (pt. 65) Pg. 472.

The appellants cited the unreported decision of the Court of Appeal in case No: CA/A/EP/2/2007 Buhari V. INEC & Ors delivered on 14th August 2007, where it was held that &lit is a fundamental principle of fair hearing that a party who has shown seriousness to pursue his case should not be shut out.” I agree with the foregoing submission of counsel and I wish to add that the right to fair hearing is a fundamental constitutional right guaranteed by the 1999 constitution Section 36(1) and a breach of it in trials vitiates such proceedings-rendering same null and void. A hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his case or call witnesses.

Mohammed V. Kano Native Authority 1968 1 All NLR 424.

Kenon V. Tekam (2007) 14 NWLR (pt. 732) Pg 12

Alsthom S.A. V. Saraki (2005) 3 NWLR (pt. 911) Pg. 208

In the determination of the issue of fair hearing the Court of Appeal would scrutinize the printed record of proceedings in the trial court carefully as compiled in the records in order to find out if the principle was complied with or there is a breach in the conduct of such proceedings. I have looked at the record; I cannot help arriving at the conclusion that justice was thrown overboard by the Tribunal through undue and strict adherence to the Rules of court – the practice Direction. The 2nd, 4th – 18th, now INEC and 15 others in this appeal – can rightly claim that their right to fair hearing was breached by the Tribunal Egolum v. Obasanjo 1999 1 NWLR Pt. 611 pg. 423.

Furthermore in the petition of the petitioners it was averred that:-

“Your petitioners state that prior to the elections at Mopamuro Local Government Area the security agents were alerted well before the elections over plans by the 1st and 4th Respondents to rig the elections, the letters to the 2nd Respondent will be relied upon at the trial”.

Even in the judgment of the Tribunal, it acknowledged the allegations made by holding that:-

“The petitioners have proved beyond reasonable doubt that the 1st Respondent Hon. Clarence Olafemi Leading his agents and thugs did commit acts of corrupt practices and non-compliance with the Electoral Act by disrupting the conduct of election, harassing and intimidating eligible voters who were sent away from polling units without voting. And as pointed out the disruption affected more than 50% of the Wards in the entire constituency.

The position in electoral matters is that joinder of an electoral officer against whom there is a complaint of his conduct in an election is not at the discretion of the Petitioner. Once the Petitioner complains of the conduct of an official of the electoral commission, the petitioner is duty -bound to join that officer. The reason being that it would be unfair for a Tribunal to have the conduct of such on officer damnified without giving such officer a hearing. It is also equally most unfair to set aside the declaration or return of an officer of the electoral commission who was not given a hearing. Moreover allegations of malpractices, irregularities, corrupt practices, allocation of fictitious votes through seizure of ballot boxes directed at polling units are directed aginst presiding officers who are in charge of the polling units. The proof of the alleged misconduct will not be established by the court where the said electoral officer is not joined as a party. In the instant case the allegations of the 1st and 2nd Respondents cannot be determined by the Tribunal in the absence of the officers of INEC who were in charge of the polling units in the Wards. The non-joinder or disallowing INEC & 15 Ors to file their Replies to the petition and henceforth becoming a party, makes the petition incompetent and the tribunal lacks jurisdiction to entertain it.

Omoboriowo V. Ajasin (1984) 1 SCNLR Pg. 108

Chime V. Ndu (1993) 2 NWLR (Pt. 277) pg. 533

Gbadamosi V. Azeez (1998) 9 WLR (pt. 566) pg.471

Ikpatt V. Iyabo (1999) 7 NWLR (pt. 601) pg. 58

Nwankwo V. Atta (1999) 5 NWLR (Pt. 601) pg. 134

PDP V. APP (1999) NWLR (pt. 594) pg. 238 53

Kallamu V. Gurin (2003) 16 NWLR (Pt. 847) Pg. 493.

The Electoral Act 2006 has created various functions to be performed by various officials such as Presiding Officers, Returning Officers, Collation Officers etc. and all of them fall within the definition of

“Any other person who took part in the conduct of an election” as envisaged by Section 144(2) and 47(1) of the First Schedule of the Electoral Act 2006. These enabling statutes make their joinder mandatory. Biyu V. Ibrahim (2006) 8 NWLR (pt.981) pg. 1 Omoboriowo V. Ajasin (1984) 1 SCNLR Pg. 108 Jidda v. Kachallah (1999) 4 NWLR (Pt. 599) pg. 246. Lamido V. Turaki (1999) 4 NWLR (pt.600) pg 578

The effect of not joining the officers of polling units, wards or collation centres in this instant petition by Section 144(2) of the Electoral Act 2006 and 47(1) of the First Schedule to the Electoral Act 2006 is that the petition cannot be proceeded against. No evidence ought to be led in respect of such units, wards or centres. At the hearing of the petition any evidence led by the petitioners and their witnesses in respect of units or wards supposed to be affected by the mal-practices, corrupt practices, thuggery and violence averred in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13, virtually all the paragraphs in the petition, must be discountenanced by this court. No court of justice should proceed against a party in a matter which may damnify his actions without making him a party thereto.

This is the tenet of the doctrine of fair hearing which is firmly entrenched in our 1999 Constitution. Section 36 (1). This issue is resolved in favour of the two sets of appellants.

ISSUE NO.3

I have dealt with most of the points raised in this issue under issues one and two except the point raised on joinder of parties. Those who can be joined as parties in an election petition are as stipulated in Section 144(1) and (2) of the Electoral Act 2006 and Section 47(1) of the First Schedule to the Electoral Act 2006.

Section 144(1) states that:-

144(1) “An election petition may be presented by one or more of the following persons:-

(a) A candidate in an election.

(b) A political party which participated in the election.

144(2) “The person whose election is complained of is in this Act referred to as the Respondent, but if the petitioner complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a Respondent and shall be joined in the election petition in his or her official status as a necessary party.”

Paragraph 47(1) of the First Schedule to the Electoral Act 2006 reads:-

47(1) “Where an election petition complains of the conduct of an electoral officer, a Presiding Officer, Returning Officer or any other official of the commission, he shall for all purposes be deemed to be a respondent and joined in the election petition as a necessary party.”

No other person or persons can be made a party particularly those who committed various criminal acts Egolum v. Obasanjo (1997) 1 NWLR (Pt. 611) pg. 355 did not make any pronouncement to that effect,

Issue NO.3 is resolved in favour of the appellants.

ISSUE NO.4

Whether tribunal was biased towards the appellant in the hearing of the petition.

I must categorically draw attention to the fact that this Issue does not arise from the judgment of the trial Tribunal which is subject-matter of this appeal. The learned senior counsel submitted that the lower Tribunal showed bias against the appellant. I must sound a note of warning that to charge a court with bias or likelihood of bias is clearly a grave matter and the accuser must be able to establish the facts and grounds he relies upon before he can succeed in his complaint. In cases involving the allegations of bias or real likelihood of bias, there must be cogent and reasonable evidence to satisfy the court that there was in fact such bias or real likelihood of bias as alleged. The mere vague, capricious observation of unreasonable people should not be a standard to constitute proof of such serious complaints. I have read through the Record, I cannot but conclude that the appellant’s reasons for holding that the Lower Tribunal was biased were brought out of the judgment of the Tribunal. They are to my mind attacking the style adopted by the Tribunal in writing the judgment. The Judges of the Tribunal might have failed to give dispassionate consideration to the available facts that surely does not amount to bias. Parties must be cautious to draw a distinction between the words bias and perverse in relation to the judgment of a court. Whether there is a reasonable suspicion of bias should be looked at from the objective stand point of a reasonable person and not from the subjective stand point of an aggrieved party. The actual test is the impression of a reasonable person who was present at the trial, and whether from his observation justice has been done.

There will be proof of bias in the following circumstance and a judge will be precluded from hearing a case when –

(I) He would seem to be a judge in his own matter

(II) Having dealt with the same issue and it comes or resurfaces when he is in a superior court and is being called upon to decide an appeal against his own decision.

(III) Because of some obvious or latent connection of his with either of the parties or all of them, it would not be conscionable of him to participate in hearing the case.

(IV) Generally his being a member of the Tribunal would not appear to be in the interest of justice as he will not be seen to do justice.

Adefulu V. Okulaja (1998) 5 NWLR (pt. 580) pg 435

Ojengbede V. Esan (2001) 18 NWLR (pt.746) pg 771

PDP V. K.S.I.E.C (2005) 15 NWLR (pt. 948) pg 230

A judgment is perverse where –

(i) It is speculative and not based on any evidence or

(ii) The court took into consideration matters which it ought not to have taken into account

(iii) The court shut its eyes to the obvious Atolagbe V. Shorun (1985) 1 NWLR (pt.2) pg 360 Adimora V. Ajufo (1988) 3 NWLR (pt.80), pg 1

From the facts and circumstance of this case no reasonable person will jump at the conclusion that the Tribunal was unduly favouring any party. Issue No.4 is resolved in favour of the Respondents.

In the final analysis this appeal is meritorious and it thereby succeeds.

The judgment of the Governorship/Legislative Houses Election Tribunal sitting at Lokoja delivered on 18/9/2007 is hereby set aside for reasons as follows:-

(1) The 1st and 2nd Respondents failed to discharge the onus of proof beyond reasonable doubt under Section 138 of the Evidence Act considering that the bulk of the allegations of violence, thuggery, hijacking of electoral materials, mass thumb printing by hired thugs, stuffing of ballot boxes, disruption of process of election, presence of thugs armed with guns, witnesses and dangerous weapons at polling units who scared away eligible voters, are criminal in nature.

(2) Vital documents were rejected like statement of Result for Baptist Primary School Ileteju

Mopamuro Unit 04 in Ward 03 and form ECBA (1) collation of Results for Mopamuro Constituency which could have decided whether election took place or not at the affected polling units. The Court of Appeal will set aside the decision of the court which has wrongfully excluded evidence in the trial, if the Appeal Court cannot reasonably hold that the decision would have been same if the wrongfully excluded evidence had been admitted pursuant to Section 227 of the Evidence Act this is applicable to this petition.

(3) Fair hearing is in most cases synonymous with natural justice an issue which is clearly at the threshold of our Legal System.

Once there has been a denial of fair hearing as guaranteed under Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria, the whole proceedings become automatically vitiated with a basic and fundamental irregularity which renders them null and void.

As necessary parties under the Electoral Act were not joined which automatically denied them fair hearing in the petition and deprived the Tribunal of jurisdiction to hear the petition, the entire proceedings and judgment of the Tribunal becomes a nullity.

In effect this court declares that the appellant remains the winning candidate on the platform of PDP at the Legislative Houses Election held on the 14th of April into State House of Assembly for the Mopamuro Constituency and us so hold.

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Other Citations: (2008)LCN/2677(CA)