Yusuf Sulaiman Lasun V. Leo Adejare Awoyemi & Ors (2009)

LawGlobal-Hub Lead Judgment Report

CLARA BATA OGUNBIYI, JCA

The appellant commenced his petition before the National Assembly Election Petition Tribunal sitting in Osogbo, Osun State by way of petition filed on the 21st day of May, 2007. The appellant who contested for Irepodun/Olorunda/Osogbo/Orolu Federal Constituency seat in the Federal House of Representative on the platform of the Action Congress challenged the declaration of the 1st respondent as the winner of the said election on the ground inter alia that the said election into 15 wards in the said Federal Constituency was vitiated by substantial non-compliance with the mandatory statutory requirements of both the Constitution of the Federal Republic of Nigeria and the Electoral Act, 2006 which substantially affected the results.

The appellant alleged wide spread acts of thuggery perpetrated by thugs of the 1st respondent, disruption of voting exercise by the said thugs in connivance with the law enforcement officers detailed to ensure peaceful, free and fair election, illegal stuffing and thumb-printing of ballot papers by agents of the 1st respondent in manner devoid of all civilized rules of universal adult suffrage, hijack and carting away of ballot boxes, substantial non-compliance with the provisions of the Electoral Act and Electoral Guidelines issued pursuant thereto, etc.

That based on the above acts which substantially occurred in the 15 wards, the appellant by the amended petition dated the 10th day of August, 2007 (pages 69 to 79 of the record of appeal) prayed for the following reliefs:-

“i. That the said 1st respondent was not duly elected by majority of lawful votes cast in the Irepodun/Olorunda/Osogbo/Orolu Constituency in the House of Representatives Elections held on April 21, 2007.

ii. That votes recorded and/or returned in the following wards in the Irepodun/Olorunda/Osogbo/Orolu Federal Constituency Federal House of Representatives Election held on the 21st of April, 2007 namely, Ward 7, Irepodun Local Government, Ward 8, Irepodun Local Government, Ward 9, Irepodun Local Government, Ward 10, Irepodun Local Government, Ward 11, Irepodun Local Government; Ward 1, Oroiu Local Government, Ward 2, Orolu Local Government, Ward 3, Orolu Local Government, Ward 4, Orolu Local Government, Ward 5, Orolu Local Government, Ward 6, Orolu Local Government, Ward 7, Orolu Local Government, Ward 8, Orolu Local Government, Ward 9, Orolu Local Government, Ward 10, Orolu Local Government did not represent lawful votes cast in the said Wards of Irepodun/Olorunda/Osogbo/Orolu Constituency in the House of Representatives Elections held on April 21, 2007 and as having been obtained in vitiating circumstances of substantial non-compliance with mandatory provisions of Electoral Act, 2006, violence and malpractices which substantially affected the validity of the said elections that none of the candidates in the said election can be validly returned as having validly won in the said affected wards.

iii. That the Petitioner was elected and ought to have been returned having scored the highest number of votes cast in Irepodun/Olorunda/Osogbo/Orolu Constituency in the House of Representatives Election held on April 21, 2007, and satisfied the requirements of the Constitution of the Federal Republic of Nigeria and the Electoral Act, 2006.

iv. That the petitioner be declared validly elected or returned.”

In the Alternative, the Appellant prayed as follows:

“i. That the National Assembly Elections for Irepodun/Olorunda/Osogbo/Orolu Federal Constituency in the House of Representatives held on April 21, 2007 is invalid by reason of non-compliance with the mandatory statutory requirements which substantially affected the validity of the said elections that none of the candidates in the said election can be validly returned as having validly won the said election.

ii. That the National Assembly Elections for Irepodun/Olorunda/Osogbo/Orolu Federal Constituency in the House of Representatives held on April 21, 2007 is nullified and the 3rd Respondent is to conduct fresh elections for the National Assembly Elections for Irepodun/Olorunda/Osogbo/Orolu Federal Constituency in the House of Representatives.”

The 1st and 2nd Respondents filed their reply to the petition dated the 23rd day of July, 2007 in which they denied the allegations of the appellant. The 3rd-148th Respondents also filed their Reply to the petition on the 19th day of July, 2007 while the 149th-150th Respondents, pursuant to an order extending time in their favour, filed their Reply to the petition on the 1st day of August, 2007.

Before the closure of pleadings, the appellant, by a motion dated the 11th day of July, 2007 was granted on the 14th day of July, 2007, an order to inspect all polling documents and materials used for conducting the said election as listed in the said motion paper (the supplementary record of appeal is evident). During the course of the trial, the Tribunal upon an application by the appellant issued a subpoena duces tecum et ad testificandum on the Osun State Resident Electoral Commissioner to bring all the electoral materials enumerated in the said subpoena and give evidence thereon (the supplementary record of appeal is also evident).

The petitioner to prove his case called 15 witnesses. On the 17th November, 2007, the Petitioner moved the Tribunal to swear the representative of the Resident Electoral Commissioner present in court upon subpoena to be examined on the documents he had produced.

The said application to examine the said INEC official was refused by the Tribunal on the grounds, inter alia, that the giving of notice to produce as contained in the petitioner’s petition had dispensed with the subpoena already issued and that the petitioner did not frontload the witness’s statement of the INEC official sought to be examined at the time of presentation of the petition. (Reference can be made to pages 527-528 of the record of appeal.) The appellant had appealed the said ruling by an interlocutory Notice of appeal the grounds of which are incorporated as ground 15 of the amended Notice of Appeal dated 20th August, 2008.

With regards to the order of the Tribunal permitting the petitioner to inspect the electoral documents and materials, the petitioner also sought an order to allow him call additional witness and tender the inspection report of the said inspection exercise. The said motion dated 22nd November, 2007, was refused by the Tribunal on the 4th December, 2007 on the ground that the petitioner in his Form TF 008, pre-hearing information sheet, did not indicate that he was going to call additional witness (es) and also that extreme circumstances as to warrant the grant of the application was not shown by the appellant. The appellant has also appealed the said ruling by an interlocutory Notice of appeal the grounds of which are incorporated as grounds 11, 12, 13 and 14 of the said amended Notice of appeal dated 20th August, 2008. The 1st and 2nd Respondents on their behalf called six witnesses.

The 3rd to 148th Respondents and also the 149th to 150th Respondents did not call any witness. The 1st – 2nd Respondents having closed their case and without the 3rd -148th and also 149th and 150th Respondents calling any witness, parties presented their written addresses and the learned Tribunal on the 12th day of May, 2008 delivered its judgment wherein it held that the petitioner/appellant had not adduced credible evidence to prove his case and therefore dismissed the petition.

Being dissatisfied with the total outcome of the decision and judgment of the learned trial Tribunal, the appellant has therefore come before this court by filing a notice of appeal on the 20th May, 2008 at pages 738-752 of the record wherein 14 grounds of appeal were raised.

Subsequently and also within time, the appellant again filed another notice of appeal on the 27th May, 2008 which is contained at pages 753 to 768 of the record of appeal. The said notice contains 16 grounds of appeal. Pursuant to an application made to this court on the 12th January, 2009 the notice of appeal was amended and same dated and filed 20th August 2008 was deemed filed on the 12th January, 2009. The amended notice further contains 18 grounds of appeal and is against 3 interlocutory rulings and the final judgment by the learned trial tribunal delivered on 17th November 2007, 4th December 2007, 5th December 2007 and 12th May 2008 respectively.

At paragraph 4 of the Amended Notice of Appeal, the appellant is seeking for the following reliefs from this court as follows:

“1. An order allowing the Appeal of the appellant and setting aside the judgment of the Tribunal dismissing the petitioner’s petition.

2. An order that the National Assembly election to the lrepodun/Olorunda/Osogbo/Orolu Federal Constituency held April 21, 2007 in Irepodun Local Government; wards 7, 8, 9, 10 and 11, Orolu Local Government; wards 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 do not represent lawful votes cast in the said wards of the federal constituency, having been obtained in vitiating circumstances of substantial non-compliance with the mandatory provision of Electoral Act 2006, violence and malpractice which substantially affected the validity of the elections as none of the candidates could be validly returned as having validly won in the said wards.
3. An order that Leo Adejare Awoyemi was not duly elected by majority of lawful votes cast in the Irepodun/Olorunda/Osogbo/Orolu Federal Constituency in the April 21, 2007 election.
4. That Yusuf Sulaimon Lasun was elected and ought to have been returned having scored the highest number of votes cast in the Irepodun/Olorunda/Osogbo/Orolu federal constituency in the April 21, 2007 election having satisfied the requirement of the applicable laws.
5. That the petitioner be declared validly elected or returned.

Or in the alternative –

6. An order allowing the appeal of the Appellant and setting aside the judgment of the Tribunal dismissing the Petitioner’s petition.
7. An order ordering a re-trial of the petition for having occasioned a miscarriage of Justice.
8. An order that the petition be heard and determined by another panel of judges.”

In accordance with the rules of court, briefs were filed by the respective parties wherein the appellant’s brief was dated 19th January, 2009 and filed the same day. The 1st and 2nd respondents in response to the appellant’s brief also filed their brief dated 10th and filed 16th March, 2009 but deemed properly filed and served on the 27th April, 2009. There was no brief filed on behalf of the 3rd – 148th respondents.

On behalf of the 149th and 150th respondents however, a brief dated 4th February, 2009 was filed on the same day. The appellant further filed a reply brief in response to the 1st and 2nd respondents’ brief dated and filed 23rd April, 2009 but deemed properly filed on the 27th April, 2009.

On the said same 27th April, 2009 when the appeal was called up for hearing, the learned appellant’s counsel Mr. Adekunle Adegoke led a team of lawyers. He adopted and relied on both the appellant’s brief as well as the reply brief to that of the 1st and 2nd respondents. Learned counsel for purpose of further elucidating on his arguments, cited an additional authority by this court in the case of Rauf Aregbesola & others v. Olagunsoye Oyinlola and others in appeal No.CA/I/EPT/GOV/98/08 delivered on the 30th March, 2009 particularly at pages 23, 40 and 41 of the judgment. The counsel urged that the appeal be allowed therefore.

Mr. A. A. Abimbola, also in company of other counsel and following the submission by the appellant’s counsel, intimated the court of a notice of preliminary objection raised on behalf of the 1st and 2nd respondents on the competence of the notice of appeal. Counsel however informed that he did not allude to the said notice early enough before the hearing of the appeal. Counsel proceeded to adopt and rely on the brief filed on behalf of his clients and urged that the appeal be dismissed. Submitting on the additional authority cited by the appellant’s counsel, he argued that same is inapplicable to the case at hand because the circumstances are very different and therefore distinguishable. In other words and unlike the case under reference, that there was no rejection of any evidence by the lower court in the case at hand and hence its exercise of discretion judicially and judiciously. That this appeal should therefore be dismissed.

The learned counsel Mr. Olufemi Ayandokun, in the absence of any brief filed had no submission to make on behalf of the 3rd -148th respondents. Mr. A. A. Adejumo adopted and relied on their brief reference supra and which was filed on behalf of the 149th and 150th respondents. He also urged that the appeal be dismissed in its entirety while the judgment of the lower tribunal should be upheld.

The general principle of law relating to preliminary objections intended to be raised at the hearing of the appeal is that the respondent is expected to inform the court timeously and as a pre-requisite first argues before the appellant’s arguments of his appeal. Plethora of authorities avail that in the event the respondent fails to act promptly, he is deemed to have abandoned the objection sought to be raised.

This I say because even though it was canvassed or argued in the 1st and 2nd respondents’ brief of argument, it was however not taken before the hearing of the appeal. It was rather intimated only after the appeal had been argued. The situation was founded on the apex court’s decision in the case of Lagga v. Sarhuna (2008116 NWLR (Pt.1114) 427 at 480-1. The same principle was also applied in the case of Offorkire & Anor v. Madiuke & others (2003) 5 NWLR (Pt.812) 166 at 178-179. Also in the case of Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285 at 296-297 the apex court on the same proposition per Obaseki JSC made this pronouncement wherein he said:

“The Respondent in the instant appeal has contended that although the objection was stated in the brief the court was not moved at the oral hearing of the appeal to strike out the grounds for failure of particulars of errors. He therefore submitted that the appellant herein should be taken to have abandoned the objection moreso as it was not an issue for determination in the appeal before the Court of appeal. In my opinion, there is substantial merit in the contention of the Respondent.

Being a preliminary objection, the objection should have been by motion or notice before the hearing of the appeal so that arguments on it can be heard by the court. While notice of objection may be given in the brief, it does not dispense with the need for the respondent to move the court at the oral hearing for the relief prayed for. This preliminary objection not having been raised and argued at the oral hearing the Court of Appeal cannot be condemned as having erred in allowing the then appellant (now Respondent) to argue his appeal.”

All the preliminary objections in that case and concerning the Grounds of appeal filed by all the appellants were therefore and a consequence disposed of. The situation at hand unfortunately therefore is very much similar and belated. As a consequence, the argument embedded at pages 6 to 14 of the 1st and 2nd respondents’ brief of argument is abandoned and accordingly struck out.

On the merit of the appeal, the appellant in his brief of argument distilled a total of nine issues from the 18 grounds of appeal and they are as follows:-

“1. Whether the Tribunal did not err in law and thereby occasion miscarriage of Justice in holding in its judgment that Exhibits 16 to 31, electoral forms and materials tendered from the bar by the appellant are unreliable because they were tendered from the bar and not through the makers.

2. Whether the Tribunal was right when it held that comments in the Appellant’s final written address on the documents admitted as Exhibits before the Tribunal was a way of bringing in the inspection report it had refused through the back door and thereby failing to examine the arguments proffered on the admitted Exhibits.
3. Whether the Tribunal did not misdirect itself when it held that the facts averred in the testimonies of the petitioner’s witnesses and the defects in electoral materials tendered as Exhibits are not pleaded and, therefore, go to no issue.
4. Whether the evidence of what happened at various polling units led by PW1, PW2, PW3, PW4, PW5, PW6, PW7, PW8, PW9, PW10, PW11, PW12, PW13, PW14and PW15who are party supervisors of the petitioner can be characterized as hearsay notwithstanding their uncontroverted assertions that they were present in the various units and saw the alleged acts of malpractices and irregularities committed by the agents and thus of the Respondents.
5. Whether the Tribunal properly evaluated the evidence before it when it failed to look at the documentary evidence led by the appellant and rejected the unimpeached evidence led by PW1, PW2, PW3, PW4, PW5, PW6, PW7, PW8, PW9, PW10, PW11, PW12, PW13, PW14 and PW15 and later held that evidence led by DW1, DW2, DW3, DW4, DW5 and DW6 were credible as to conclude that the said election was free and fair without taking into cognizance, the fact that the 3rd -148th Respondents and the 149th-150thRespondents did not lead evidence.
6. The Tribunal erred in law when it failed to hold that the 1st and 2nd Respondents, the 3rd-148th Respondents and the 149th-150thRespondents having not led evidence on their pleadings with respect to all the units and wards in which the Appellant made sundry allegations of malpractices and produced evidence, have abandoned their pleadings and admitted all the allegations of the Appellant as to found in favour of the Appellant and return him as winner of the said election.
7. Whether the Tribunal did not err in law in disallowing the Resident Electoral Commissioner in respect of whom subpoena duces tecum et ad testificandum had been issued from being sworn on oath and to testify in relation to the documents he had produced.
8. Whether the tribunal was right in its ruling of December 4, 2007 when it dismissed the petitioner/appellant’s application to enable him bring additional witness and tender inspection report which application was necessitated by an inspection order granted by the Tribunal pursuant to section 159 of the Electoral Act, 2006.
9. Whether the Tribunal did not err in law and/or misdirect itself when it held that the appellant did not establish that the 1st Respondent was not elected by a majority of lawful votes cast at the election for the Irepodun/Olorunda/Osogbo/Oloru Federal Constituency in the House of Representatives.”

The 1st and 2nd respondents’ learned counsel distilled only 2 issues from the appellant’s 16 grounds of appeal and are as follows:-

“1. Whether the Tribunal having regard to the quality of evidence led by the appellant at the trial of the petition adopted the proper approach of evaluation of evidence in arriving at its decision.

2. Whether the Tribunal rightly exercised its discretion judicially and judiciously in refusing the appellant’s application to call additional witnesses.”

12

On behalf of the 149th and 150th respondents, the only one issue formulated arose from ground I of the notice of appeal and states as follows:

“Whether by evidence at the lower Tribunal the Appellant has been able to prove the allegation made against the 149th and 150th “Respondents”

From the analysis of the three issues formulated by the 1st and 2nd respondents and also the 149th and 150th respondents put together, it is evident that they are all subsumed and therefore submerged into those raised by the appellant, whose summary of his nine issues amount to total prolixity. In other words, it is necessary to streamline and narrow all the appellant’s nine issues into three for the purpose of determining this appeal. The three issues therefore are:

1) Having regard to Issues 1, 2, 3, 4, 5 and 9 raised on the appellant’s brief of argument, they are all interwoven and closely related and pose the following one issue therefrom:

Whether the trial Tribunal erred on the evaluation of evidence before it and on the refusal to accord credibility to the appellant’s witnesses as well as in disregarding the admissibility of exhibits 16 to 31 tendered before the court.

2) Whether having regarded to the totality of the pleadings of the parties and evidence adduced, the appellant had proved the criminal allegation lodged against all or any of the respondents.

3) This issue combines appellant’s issues 7 and 8 and should read:-

Whether the tribunal rightly exercised its discretions judicially and judiciously in refusing the appellant’s application to call additional witnesses.

In respect of the 1st issue for determination, the learned appellant’s counsel submitted an error by the learned tribunal in holding that the tendering of exhibits 16 to 31 from the bar instead of through their makers were unreliable. To buttress his submission counsel cited the case of Ogbunyiya v. Okuda & ors (1979)12 NSCC p. 77 and also section 115 of the Evidence Act wherein there is a presumption of genuineness in favour of public documents. That the documents in question are certified true copies of electoral forms and materials duly produced by the Resident Electoral Commissioner pursuant to a subpoena issued by the tribunal at the instance of the appellant.

Further reference was also made to the case of Longe v. F.B.N. Plc (2006) 3 NWLR (pt. 967). That the tribunal ought to have attached weight to the said exhibits. Further authorities cited was the case of Daggash v. Bulama (2004) 14 NWLR1.pt. 892} 144 at 230, also section 132 of the Evidence Act where at that the documents speak for themselves and cannot be contradicted, altered, added to or varied by oral evidence. Another authority in support was the case of Fagunwa v. Adibi (2004.1-17NWLR (ft. 903) 544 at 567. That the failure of the Tribunal to consider exhibits 16 to 31 before it, had greatly affected its judgment. Learned counsel urged the court to reverse the decision of the Tribunal and attach weight to Exhibits 16 to 31 by exercising the power of court under section 15 of the Court of Appeal Act. That it was the very act of the tribunal by its ruling of 17th November 2007 wherein it prevented the appellant from tendering the said Exhibits 16 to 31 through the Resident Electoral Commissioner, when it refused the officer, (who produced the said Exhibits through the force of a subpoena duces tecum et ad testificandum), from testifying. That this court should not therefore allow the approbation and reprobation of the Tribunal to stand. That the decisions (both ruling of 17th November, 2007 and judgment) of the tribunal, no doubt amounts to breach of the appellant’s constitutional right to fair hearing. That the court is implored to look at the said exhibits by invoking section 15 of the Court of Appeal Act and find in favour of the appellant accordingly.

On the question of whether comments in the appellant’s final written address on the documents admitted as Exhibits amounted to a way of bringing in the inspection report through the back door, the counsel submitted that such comments are independent and therefore unrelated to the inspection report. The counsel called upon this court to refer to pages 586-594 of the record of appeal for the analysis tabulated and which purpose was to assist the tribunal in discovering patent irregularities committed by the respondents. The counsel had urged that the decision of the Tribunal be reversed and consideration be given to the said analysis made by the appellant both in the written address and the annexure to the written address.

On a further question of whether facts averred in the testimonies of the petitioner’s witnesses and the defects in electoral materials tendered as exhibits were pleaded, the counsel submitted a misdirection of the tribunal’s holding of that view. Specific references were made to the record of appeal relating to the views held by the learned Tribunal as against the averments on the petition as well as the evidence adduced at the trial. That there exists a remarkable contradiction by the Tribunal of its finding in the same judgment. Counsel, to support his submission referred to the case of Eke v. Okwarenyia (20Q.l) 12 NWLR (Pt. 726) 181 at 203. The cases of Unipetrol Nig. Plc v. Adureje (W.A.) Ltd. (2005) 14 NWLR (pt. 946) 639-640 and Ezemba v. Ibeneme (2004) 14 NWLR (pt. 894) 617 at 649-650 were also cited on the function of pleadings.

Also on the testimonies of the witnesses PW5, PW6, PW7, PW8, PW9, PW10, PW12, PW13 and PW15, the learned counsel vehemently submitted that contrary to the findings of the learned tribunal, all the material facts upon which the evidence were based are contained in the paragraphs of the amended petition. Specific reference was made to paragraphs 19.1 to 19.9, 16 to 30 and 32 to 36 of the amended petition at pages 72 to 76 of the record of appeal. That the appellant in accordance with the pleading procedure is not obliged to set out the subordinate facts that may help as evidential materials. Learned counsel impressed upon this court to hold that the facts leading to the evidence of the appellant’s witnesses are all pleaded.

On whether or not the evidence of the petitioner’s party supervisors amounted to hearsay, the learned appellant’s counsel sought reliance upon the provisions of sections 77 and 155 of the Evidence Act which he argued serve to regulate the giving of oral evidence as well as persons who are competent to testify. That there is no comparable provision of the Electoral Act, 2006 or any applicable law that regulates giving of evidence or competence thereof. That all that the Tribunal should have, and ought to have been concerned with was whether the witnesses brought forward did give first hand evidence of what they saw and or did or did not do. Further reference was also made to section 62(1) of the Electoral Act, 2006 which provision states: “persons lawfully entitled to be admitted may include party supervisors”. That the evidence of PW1-PW15 related to what they directly witnessed and did not therefore amount to hearsay and which learned counsel argued should not have been inadmissible. That in the absence of any contradiction of the appellant’s evidence by the respondents’ witnesses that the petitioner’s witnesses were not present at the various polling units they visited, the holding of the tribunal that the petitioner/appellant’s witnesses could not have been present in the various polling units they claimed to have visited is rather perturbing.

This court is therefore invited by the learned counsel to examine and act upon the evidence of the appellant’s witnesses. Further still and on the question of whether the Tribunal properly evaluated the evidence before it, the learned counsel submitted in the negative and ascribed an error on the tribunal’s conclusion that the election was free and fair. Rather, he argued, that the tribunal’s conclusions are wild speculations and mere conjecture devoid of any legal or factual basis. That the conclusion arrived at by the tribunal on the evidence of PWI being unreliable for instance is incomprehensible. The learned counsel went further to analyse the evidence of all the petitioner/appellant’s witnesses and submitted the absence of proper evaluation made by the lower tribunal and thus resulting into wrongful rejection of valid evidence.

In further submission and having regard to the respondents’ witnesses, DW1 to DW6, counsel argued that the lower tribunal, notwithstanding the damaged evidence of the said witnesses, still went ahead to put up a defence in favour of the Respondents’ witnesses.

That the evidence of the witnesses was not only weak, but riddled with so many inconsistencies that it could hold as much water as a basket. Counsel also analysed and submitted on certain documents produced by the 3rd and 4th respondents during the course of the proceedings, and admitted in evidence and marked Exhibits 16 to 31. That a cursory look at the said exhibits shows several material irregularities which, without more, warrant the nullification of the election in several wards.

Taking on of Orolu Local Government as an example, the counsel went further to list a detailed and graphic analysis of where the names of presiding officers on EC8A(11) (Exhibit 15) are different from names on the list of presiding officers (Exhibit 30). The specific wards and units were considered in great detail wherein the names of presiding officers are all shown to be different in the two Exhibits in respect of the same polling unit. Counsel pointed out glaring further irregularities in the other local government areas ranging from multiple listing, failure to sign schedule of distribution of ballot papers and hosts of others untold.

On the totality of his submission on the 1st issue raised, the appellant has urged this court to hold that the Tribunal grossly erred in law when it held that the petitioner did not establish that the 1st respondent was not elected by majority of lawful votes cast at the election for the Irepodun/Olorunda/Osogbo/Orolu Federal Constituency in the said House of Representatives election. Furthermore that from the evidence proffered by the petitioner (both oral and documentary), the election of Irepodun/Olorunda/Osogbo/Orolu Federal Constituency in the House of Representatives election held on April 21, 2007 in Wards 7, 8, 9, 10 and 11 of Irepodun Local Government and the entire Orolu Local Government was totally marred by massive rigging by the known agents of the 1st and 2nd respondents and substantial non-compliance with the provisions of the Electoral Act, which substantially affected the results of the election.

Learned counsel urged this court to therefore hold that the elections in Wards 7, 8, 9, 10 and 11 of Irepodun Local Government and the entire Orolu Local Government are not lawful and should as a result be nullified. That from the totality of evidence and Exhibits before this Court, the petitioner/appellant was duly elected and ought to have been returned as having scored the highest number of lawful votes cast in Irepodun/Olorunda/Osogbo/Orolu Constituency in the House of Representatives Elections held on April 21, 2007 and having satisfied the requirements of the Constitution of the Federal Republic of Nigeria and the Electoral Act, 2006. Counsel urged finally that this appeal be allowed on terms of the reliefs and prayers as contained on the amended Notice of appeal.

In response to the appellant’s submission, the 1st and 2nd respondents dwelt at great extent on the general principle of law relating to onus of proof which lies on him who asserts. The respondents’ learned counsel in supporting the decision of the lower tribunal related copiously to the appellant’s 15 witnesses whom he submitted were “Ward Supervisors”. That in either the appellant’s pleadings or their evidence no mention was made as to whether they were voters, candidates, polling agents, poll clerks and persons lawfully entitled to be admitted including accredited observers as clearly indicated in section 62 of the Electoral Act 2006. That the appellant’s 15 witnesses do not fall into the category of those whom the Act describes as “persons lawfully entitled to be admitted into the polling units on the day of the said election”. Counsel emphasized the use of the word “shall” contained in section 62(1) of the Electoral Act which he interpreted as mandatory. He cited the following authorities for the interpretation thereof: Lion Bank (Nig.) Plc v. Amaiko (200B) All FWLR (pt, 417) page 85 at 113 wherein reliance was made on the Supreme court decision in the case of Anibi v. Osotimehin (1993) 3 NWLR (pt, 282) 465 at 475. That in as much as the Electoral Act or any other law does not preclude Ward supervisors or other officers of a political party from testifying in an election petition, the weight to be attached to their evidence is however a different matter in view of the combined effect of sections 77 and 155 of the Evidence Act. That on the authority of Gbafe v. Gbafe (1996) 6 SCN] 166 at 177, the law has drawn a distinction between the admissibility of evidence and the weight to be attached to it. Counsel related the function of the polling agents as clearly stated by Akintan JSC in the case of Buhari v. Obasanjo (2004) 114 LRCN 2802 at 2822. That the failure on the part of the appellant to call as witnesses his party agent is fatal to his case on the authority of the case of Safiu Amusa & ors. v. The State (1980) 3 NWLR (pt. 30) P. 536 at 537. Further still, that in the absence of the Ward supervisors not stationed at any polling unit, their evidence amounted to a hearsay and therefore of no evidential value.

The learned counsel cited at great extent a number of authorities on evidence of documents admitted without probative value and which have been rendered as worthless.

Learned counsel further submitted that the complaints of the appellant borders on the commission of crime and that it was incumbent upon him to prove his case beyond reasonable doubt and which he had failed to do. A number of authorities requiring proof beyond reasonable doubts were cited in that behalf. That the case of the appellant lacks legal life and should be given a burial as it is hearsay evidence which has no place in our law of evidence. Counsel for purpose of buttressing his submission further cited the case of Boniface Anyika & Co. Lagos Nigeria Ltd. v. Katsina U. D. Uzor (2006) All FWLR (pt. 334) p.1836 at 1838, a Supreme Court decision. Also cited on the standard of proof of criminal allegation, was the decision of this court in the case of Haruna v. Modibbo (2004) 16 NWLR (Pt. 900) 487.

In his further submission, the learned counsel argued the absence of any compelling reason advanced by the appellant that could warrant this court to disturb the findings of the lower Tribunal in its appraisal of the evidence of the appellant’s witnesses. That the appellant totally failed to tender in evidence all the relevant reports, items or documents listed in paragraph 37 of the petition and which he argued was fatal to his case and thus calls for the invocation of section 149 (d) of the Evidence Act 1990. That the tribunal gave cogent and logical reasons why the appellant’s witnesses or their evidence could not be believed.

Counsel therefore urged for the dismissal of the appeal on this issue.

On behalf of the 149th and 150th respondents, their learned counsel Mr. A. A. Adejumo principal state counsel, Ministry of Justice Osogbo, Osun State submitted that the nature of allegation against his clients is criminal. The counsel therefore cited the provision of sections 135(1) and (2) and 137 of the Evidence Act and copiously relied thereon. He also sought the support of the apex court’s decision in the case of Ogunyade v. Dawodu (200&1-12 SCM (Pt. 2) p. 480 at 496. On the need to prove criminal allegation beyond reasonable doubt, the counsel aligned himself with the earlier submission by the 1st and 2nd respondent’s counsel. He also relied on the decision in the case of Buhari v. Obasanjo (2006) 2 EPR p. 295 at 538. That the failure of the appellant to establish any link between the alleged criminal conducts and the 149th and 150th respondents cannot in anyway be sufficient proof of irregularity, malpractices, violence, fraud or corrupt practices allegedly perpetrated by the 149th and 150th respondents.

That the names of the said respondents ought to have been struck out for the reasons that no link has been established between the alleged criminal conducts of the so called “policemen” or “law enforcement agents” or “mobile policemen” and the 149th and 150th respondents.

That there is also no reason to hold them vicariously liable for alleged criminal conducts of their officers. That the petitioner had failed woefully to prove the allegation of malpractices made against the 149th and 150th respondents therefore beyond reasonable doubt as required by the law and that this court should so hold.

On the totality, the learned counsel urged that the said issue be resolved in favour of his clients and consequent to which the court should uphold the judgment of the lower Tribunal and dismiss the appeal as it is lacking in merit.

The appellant’s reply to the 1st and 2nd respondents’ brief of argument only relate to the response in respect of the preliminary objection raised by the said respondents. With the objection having been struck out earlier in this judgment, the reply serves no purpose and effect.

For the determination of the 1st issue, same largely relates to the evaluation of evidence both oral and documentary by the lower Tribunal.

While the appellant alleges the absence of fair hearing and thereby occasioning a fundamental miscarriage of Justice, the respondents on their briefs of arguments applauded the trial Tribunal for a job very well done on the proper evaluation of all the precise of evidence proffered by the parties in the petition and thereby arriving at a just decision.

It is trite law that the duty lies on he who asserts to prove. The case of Network Securities Limited v. Alhaji Umaru Dahiru & ors (2008) All FWLR (pt. 419) page 475 at 482 is in point. It is also trite law that while the trial court have the duty to evaluate and appraise evidence of witnesses; the responsibility does not lie with the appellate court. This has been well spelt out in the case of Charlie & ors v. Gudi & ors (2007) 2 NWLR {pt. 1017) 91 at 113 where it was held that:

“The duty of evaluating evidence particularly where same hinges on the credibility of the witnesses is primarily that of the trial court which, unlike the appellate court, was opportune to see and observe the witnesses in the course of their testimonies. The appellate court would only set in to re-evaluate where the decision of the trial court, following the evaluation of the evidence before it, is either not supported by any evidence or otherwise perverse.”

With reference to paragraph 37 of the petition at page 10 of the record of appeal the petitioner/appellant averred and said:

“37. The petitioner hereby gives the 3rd and 4th respondents notice to produce used and unused ballot papers (including but not limited to the ballot papers with the serial numbers listed in the Schedule attached herewith), ballot boxes, schedule of distribution of election materials inclusive of but not limited to ballot papers and ballot boxes, Forms EC8A1,Forms EC8B1, Forms EC8C1, Forms EC8D1, EC8E1, EC2S, ink pads and other electoral materials used for the National Assembly election held on 21 April, 2007. Further, the petitioners shall rely on expert Forensic evidence, video clips, medical reports of injured persons, photographs of injured persons, newspapers, letters, reports of individuals, officials and law enforcement agents and other documentary evidence in prove of the petitioners’ case.”

It is apparent from the reproduction of paragraph 37 that the 3rd and 4th respondents were parties before the lower tribunal and against whom the petitioner’s complaint was lodged. The lower tribunal by its ruling delivered on the 17’h day of November, 2007 and at pages 527 and 528 of the record of appeal disallowed the Resident Electoral Commissioner (4th respondent), in respect of whom subpoena duces tecum et ad testificandum had been issued by the tribunal, from being sworn in on oath to testify. 5pecifically at page 528 of the record per its ruling, the learned tribunal had the following to say:

“In the instant petition, the petitioner has given the 3rd and 4th Respondents a notice to produce all the documents and materials enumerated in paragraph 37 of the petition. We therefore hold that the issuance of the subpoena was superfluous.

We had also further held that it is a condition precedent that by virtue of paragraph l(i)(a)(b) and (2) of the Practice Directions that all witness depositions and number of witness shall accompany the petition at the time of filing, the failure of which, such a petition shall not be accepted for filing by the secretary.

From the list of witnesses before the Tribunal, the witness sought to be sworn in is not one of those listed nor her statements front loaded in the petition.

We therefore disallow the witness from being sworn.”

Consequent upon an application by the appellant’s learned counsel, by the consent of all counsel to the parties, the CTC of the documents exhibits 16-31 were all admitted in evidence on the 30th November and 5th December 2007 at pages 534 and 542 of the record of appeal respectively. Thereupon and in its final judgment at page 735 of the record of appeal, the lower Tribunal also amongst others proceeded and said:

“We also observe that some electoral forms or materials were tendered by counsel from the Bar and admitted by consent as Exhibits 16-31, thus meaning that they were not tendered through their makers, who would have testified and be cross-examined on them by the respondents. These exhibits are on the authorities of Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1; and Haruna v. Modibbo (2004) 16 NWLR (Pt. 900) 481 at 545; and Awuse v. Odili (2005) All FWLR (Pt. 261) 248 at 321 are unreliable since they were tendered as a bundle and no evidence was led as to the use to be made of them. It is not our duty to ferret facts therefrom as to their use as to do so would amount to doing cloistered Justice or setting out on a voyage of discovery.

See also Onimeje v. Otokpa (supra) 525 paragraph D-E …………………………..

………………………………………………………………..

Having said all these, the petitioner has not established by credible evidence the alleged acts of vidence, non-compliance with the provisions of the Electoral Act, 2006, widespread irregularities and electoral malpractices which substantially affected the result of the election and we so hold.”

The petition was therefore dismissed in its entirety. The appellant in the result is therefore alleging serious breach of fair hearing by the tribunal.

It is pertinent and from all indications that it was the learned Tribunal by it ruling of 17ty November, 2007 as stated somewhere in this judgment that prevented the appellant from tendering the said Exhibits 16-31 through the Resident Electoral Commissioner despite the force of a subpoena duces tecum et ad testificandum and relied on paragraph 1 (i) (a), (b) and (c) of the Practice Directions which provision state:

“All petitions to be presented before the Tribunal or court shall be accompanied by:

a. List of all witnesses that the petitioner intends to call in proof of the petition.

b. Written statement on oath of the witnesses and

c. Copies or list of every document to be relied on at the hearing of the petition.”

In other words, the interpretation is to the effect that written statements on oath of all witnesses shall accompany the petition; but upon failure, it shall not be accepted for filing by the secretary.

The 1st and 2nd respondents’ learned counsel submitted therefore that the non-indication of the intention by the appellant to bring the application during the pre-trial and failure to file the depositions of the additional witnesses are both fatal to his case because it is a matter of compulsion. Counsel cited a number of authorities in support to reaffirm that rules of court are meant to be obeyed. By the provision of the Practice Direction it is expected that the written depositions of all witnesses ought to be attached to the petition.

It is pertinent to restate that the party to whom the subpoena in question was issued is a respondent. It cannot therefore be within the contemplation of the provision of the Practice Direction that the respondent should sign a witness statement or deposition on behalf of the petitioner whose allegation of irregularities was against the said party. In other words, it is not within the expectation of the said Practice Direction that the petitioner would frontload the statement of the respondent. By the mere fact of the subpoena having been issued, the witness is bound to be sworn in on oath to testify and be cross-examined. The authority in the case of Onyekekwe v. L. D. Albert (20011 FWLR (pt. 83) 2166 at 6184 is relevant. As rightly submitted by the appellant’s learned counsel, the trial tribunal in the circumstance had approbated and reprobated in its stand.

In other words, it is not comprehensible that the Tribunal, who had prevented the appellant from tendering Exhibits 16 to 31 through the 4th respondent, should proceed to say in its final judgment that the said same exhibits could not be relied upon because they were not tendered through the makers.

The general provision of the Practice Direction on frontloading of witness’s deposition on oath only contemplates willing and voluntary witness and not one who had to be compelled by an order of court to testify by way of a subpoena. It is not logical therefore that a party should prepare witness’s deposition for his adversary who is a respondent against the petition. Expecting that such witness would sign and adopt the deposition is beyond human reasoning as rightly submitted by the learned appellant’s counsel. On the authority of the case of Michael Okaroh v. The State (1988) 3 NWLR (pt. 81) 214 at 220 their Lordships of the apex court said:

“The courts should see to it that Justice is never defeated by technical rules of procedure. These rules should be seen as subservient hand-maid to Justice, not as omnipotent masters at war with Justice.”

Relevant and further in support is the case of Nwachukwu v. The State (2004) 17 NWLR (pt. 902) 262 at 274 per Adeniyi JCA. Also of significance is the maxim ‘let non cogit ad impossibilia i.e. to say the law does not command the impossible. Moreso where the petitioner at page 16 of the record of appeal clearly and in bold print stated that he “shall be calling about twenty five (25) persons as witnesses”. The number had thus, not been exhausted.

It is further pertinent to emphasize that a subpoena is a court process commanding any person to attend to court and produce a document or evidence before it. This principle was well enunciated by their lordships of the apex court in the case of Muhammed Buhari & Anor. v. Chief Olusegun Aremu Obasanjo (2005) 1 NWLR (Pt.941) 1 wherein same was interpreted as an order or writ of court, which may be for the person to attend the court and testify only, in other words called subpoena ad testificandum or for him to produce document in his possession or control referred to as subpoena duces tecum. A subpoena simplicita could also require the person to do both. See the case of Ambassador Odu v. Duke & ors. (2006) 1 NWLR (Pt. 961) 375 at 391 a decision of this court citing Fidelis Nwadialo:

Civil Procedure in Nigeria, 2nd Edition, 2000 at 652. The effect of subpoena ad testificandum is that there is an obligation on the person subpoenaed to give evidence. The Resident Electoral Commissioner was therefore producing the required documents pursuant to the subpoena duces tecum et ad testificandum issued by the chairman of the Tribunal at the instance of the appellant and not on account of the “Notice to produce”, mentioned in the Petitioner’s petition. The tribunal as rightly submitted by the learned appellant’s counsel should not have shielded a witness on whom there was an order of court to give evidence, which was required to prove the appellant’s case against the respondent.

It is indisputable that, an aggrieved party has the responsibility and duty to produce evidence that would assist him in proving his case.

The court also has the corresponding duty to allow a party to present his case and not help his adversary to suppress relevant evidence. As rightly submitted and argued by the appellant’s learned counsel therefore the effect of the failure to comply with this principle of fair play is nothing short of the defeat of the appellant’s fundamental right to fair hearing. The term fair hearing signifies a trial which is conducted according to dictates of legal principles and rules formulated to ensure that Justice is done to all the parties to a cause or matter. This is as clearly set out in the cases of Military Governor, Imo State v. Nwauwa (1997) 2 NWLR (pt, 490) 675, Egbo v. Agbara (1997) 1 NWLR (pt, 481) 293 a Supreme Court decisions and Atejioye v. Ayeni (1998) 6 NWLR (pt. 532) 129 a decision of this court. The concept in other words has been judicially interpreted to involve situations where, whether having regards to all the circumstances of the case, the hearing may be said to have been conducted in such a manner that an impartial observer will conclude that the tribunal was fair to all the parties to the proceedings.With the tribunal having issued subpoena duces tecum et ad testificandum on a competent and compellable witness but prevented him from giving evidence, such tribunal cannot be said to have obeyed the hallowed principles of natural Justice, equity and good conscience.

More intriguing also was the holding and substitution of “notice to produce” for “subpoena duces tecum et ad testificandum’: The case of the appellant, as rightly submitted by his learned counsel, has not received fair treatment in the circumstance.

Also on the evaluation of the evidence of witnesses, the court has unfettered duty to be very objective for the just determination of the case to all parties. In other words, it should not place itself in a critical and an impartial position of a purposeful sponsor arbiter, wrongfully favouring the evidence of one of the parties to the detriment of the other. In the case of Udo v. Okupa (1991) 5 NWLR (Pt. 191) 365 at 385 for instance Niki Tobi, JCA (as he then was) said:

“In the evaluation exercise, the trial judge should remind himself of his adversary and accusatorial role and deal with the evidence of the witnesses evenly and equally across the board to the egalitarian advantage or disadvantage of the parties. On no account should he sponsor the evidence of one of the parties at the expense of or to the detriment of the other party.” With reference to the findings of the lower Tribunal at pages 704 and 720 of the record, it had the following to say on the petitioner/appellant’s witnesses:

“It is pertinent to point out that all the witnesses called by the petitioner were ward supervisors in their respective wards. Their responsibilities were to supervise and coordinate all the activities of the Action Congress polling agents in all the polling units and monitor election results at the ward levels during collation and to receive written reports from the agents in the wards after election. Further, each polling unit had a polling agent who reported to the ward supervisor accurately as the ward supervisor did not stay in any unit permanently but was moving round from one unit to another.

………………………………………………………………………….

The Electoral Act, 2006, does not recognize a ward supervisor and has no place for such a person or office. In the light of the said provision of the Electoral Act, the evidence of such a person on what happened or occurred at the polling unit and not being a voter at that particular unit at the relevant time is questionable.”

No probative value was therefore ascribed to the evidence of the witnesses, who were characterized as hearsay and also on the account that there was no specific pleading of the facts given in their evidence.

As against the petitioner/appellant’s 15 witnesses, the trial tribunal found and upheld the credibility of the respondents’ witnesses whom it, found remained unshaken under cross-examination and were therefore believed. The learned tribunal Judges in the final result therefore had the following to say at page 734:

“In the petition at hand, the evidence adduced by the petitioner, which we have carefully analyzed or reviewed, is not sufficient to enable us hold that the election of 21st April 2007 was not conducted substantially in accordance with the Electoral Act, 2006. Having not discharged this evidential burden placed on him by law, the calling of witnesses by the 1st and 2nd respondents did not arise but was merely out of abundance of caution.”

The 1st and 2nd respondents’ learned counsel submitted at great length on the effectual interpretation of section 62(1) of the Electoral Act 2006 and also sections 77 and 155 of the Evidence Act relating to the testimonies of the petitioner/appellant’s witnesses being ward supervisors. Counsel argued that they do not fall into the category of those whom the Act describes as “persons lawfully entitled to be admitted” into the polling units on the day of the said election and that neither the pleading nor the evidence of the appellant said they were so admitted. Counsel emphasized the relevance of the use of the word “shall” which is contained in section 62(1) of the Act and its mandatory nature.

The reproduction of sections 62(1) of the Electoral Act and also 77 and 155 of the Evidence Act are all very relevant and state as follows:

“62(1) The Presiding Officer shall regulate the admission of voters to the polling station and shall exclude all persons other than the candidates, polling agents, poll clerks, and persons lawfully entitled to be admitted ”

While section 77 of the Evidence Act regulates giving of oral evidence section 155 of same provides for who may testify; the two sections state as follows:

“77. Oral evidence must in all cases whatever, be direct –

(a) If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw that fact;

(b) If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard that fact;

(c) If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner; (d) If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:

155. (1) All persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions by reason of tender years, extreme old age, disease, whether of body or mind, or another cause of the same kind.

(2) A person of unsound mind is not incompetent to testify unless he is prevented by his mental infirmity from understanding the questions put to him and giving rational answers to them.”

It is pertinent to mention that there is no provision of the Electoral Act, 2006 and any applicable law that regulates giving of evidence or competence thereof. The interpretation of section 62(1) of the Electoral Act if given its literal meaning is very clear and unambiguous. The phrase, “shall exclude all persons other than”, is very relevant wherein the exclusion does not affect “persons lawfully entitled to be admitted”. Suffice to state therefore that the finding of the tribunal at page 704 is very clear and succinct as reproduced earlier in this judgment. In other words, the tribunal found as a fact that all the witnesses called by the petitioner were ward supervisors in their respective wards. It also went on further to specify their responsibilities which were, to supervise and coordinate all the activities of the Action Congress polling agents in all the polling units and monitor election results at the ward levels during collation, and to receive written reports from the agents in the wards after election. Having specified and concluded thus far, it is out of place for the same tribunal to find at page 720 that the Electoral Act, 2006, does not recognize a ward supervisor and has no place for such a person or office. This I say especially in the light of the phrase “persons lawfully entitled to be admitted to the polling station” as provided for by section 62(1) of the Electoral Act, 2006. With the schedule and responsibilities of the word supervisors so specified by the lower Tribunal, one wonders who else other than such officers, should be those persons lawfully entitled to be admitted. I hold therefore that it is totally out of place for the 1st and 2nd respondents’ learned counsel to submit that the ward supervisors were illegally present at the various wards indicated. The use of the word “shall” in section 62(1) of the Electoral Act is certainly mandatory and the operation which I hold is in favour of the Ward supervisors being persons lawfully entitled to be admitted. As rightly submitted by the learned counsel for the appellant, the tribunal’s concern and pre-occupation should be whether the witnesses brought forward have come to give first hand evidence of what they saw and or did or did not do per section 77 of the Evidence Act. It is totally alien to our law I hold, to say that only polling agents, the presiding officers, polling clerks, voters and observers that are competent to give evidence of what happened at a polling unit or collation centre. Any person can qualify as a competent witness upon satisfying the conditions laid down in sections 77 and 155 of the Evidence Act.

A testimony will only be regarded as hearsay where the person making the statement is not the one who either saw it, heard it, perceived it, or gave it as his own personal opinion, but rather as what was said to him by another person. The decisions of this court in the cases of Omonga v. State (2006) 14 NWLR (pt. 1000) 532 and Obinwunne v. Tabansi-Okoye (2006) 8 NWLR (Pt. 981) 1004 are relevant and in point. With the witnesses having given evidence as to what they saw at the various polling units, their testimonies could not rightly be branded as hearsay. The reasoning for the rejection of the evidence adduced by the appellant’s witnesses being ward supervisors was I hold, very wrongful and erroneous. At pages 17 to 19 of the record of appeal for instance PW1 in his witness statement said that he moved from one polling unit to another in order to coordinate and monitor the polling units. He also testified to some thugs armed with dangerous weapons and who invaded his ward. Under XXn at page 497 of the record, the same witness testified that he was beaten up at unit 6 immediately he casted his vote.

PW2 also in his witness statement at pages 24 to 27 of the record said that when he resisted stuffing, the hoodlums inclusive of Hon. Adeyemo Asimiyu nearly killed him. That multiple voting was allowed at unit 1. That in general, at units 2, 4, 6, 7, 10 and 11 people who did not vote were marked in the voters register as having voted. The witness was XXnd at pages 499 to 501 of the record. Specifically at page 500 he said: “I saw the ballot boxes stuffing. It was openly done.”

PW3’s witness statement is at pages 20 to 23. Specifically at page 21 he said as follows:

“At unit 4, Hon. Dauda Ibraheem and Councilor Quadri Jamiyu led thugs who engaged in multiple voting tore already cast ballot papers in favour of AC and beat the polling agents and some other people around.”

Similar assaultive behaviours were also stated as having taken place in the other polling units. At pages 21 & 22 the same witness PW3 further said:

“The polling unit was outside Alhaji Ajilate’s house. His son was the presiding officer. They took the box into Aihaji Ajilate’s house and brought it out at about 12.15 noon filled with already thumb-printed ballot papers. Polling agents were chased away with machetes, charms and other dangerous weapons.”

Under XXn at pages 502 to 503 the witness said thus:

“One of those who did the multiple voting was Alhaji Tego. They were voting for PDP.

……………. He said they should ignore me including the poll clerk.

Alhaji Ajilete was not a contestant but PDP chairman for the WARD.”

In respect of PW4, the lower tribunal at page 714 of the record of appeal held that the evidence of the witness as to multiple voting, voting without voters card and violence is too general to establish the allegation. At page 713 of the said record of appeal the trial tribunal held and said thus in respect of this witness:

“On units 6, 7, 8 and 10, he (PW4) testified that there was multiple voting; Salami Badru led thugs who stuffed ballot box with ballot papers after scaring voters. PDP thugs prevented AC members and sympathizers from voting and thumb-printed available ballot papers. There was impersonation of registered voters and voting without voters’ card.”

From the foregoing deductions by the lower tribunal, same, and again as rightly submitted by the appellant’s counsel, cannot sustain its finding that the allegations of PW4 as regards multiple voting, voting without voters’ card and violence as being too general to establish.

PW5 in his witness statement at pages 31 to 33 of the record said that he moved from one polling unit to another in order to coordinate and monitor the polling units. At page 32 the witness said:-

“At about 1.30 p.m., Hon Ibraheem Dauda (representing Orolu Irepodun Local Government at the House of Assembly) invaded the polling unit with mobile policemen and heavily armed thugs and disrupted the voting exercise by scaring people away.

After this, they stuffed the ballot box with illicitly thumb-printed ballot papers. I and the presiding officer were forced to sign the result sheet.”

Under XXn at page 507 of the said record, the witness testified that he was not allowed to vote at unit 6 where he was the ward agent.

PW6’s witness statement is contained at pages 53 to 56 of the record wherein he said thus amongst others that he:

“………….. moved from one polling unit to another to coordinate and monitor the polling units.

On the said day at unit 1, the presiding officer did not disclose the number of ballot papers allocated to the unit and the serial numbers of the ballot papers.

Certain people were allowed to vote with other people’s voters’ cards.

Thugs invaded the polling unit and intimidated the electorate to vote for PDP. PDP thugs led by one Tajudeen Araoye invaded the polling unit, snatched the ballot box and took it to an unknown place.”

Under XXn at page 508 of the record of appeal, the witness said:

“Tajudeen Araoye was not a candidate but a PDP member.”

PW7’s witness statement is also at pages 44 to 45 of the record.

In a similar testimony like the other witnesses he also moved from one polling unit to another to coordinate and monitor the polling units. At page 45 of the record, he also alleged intimidation of the electorates at the polling unit. That the Olufon of Ifon’s messengers came with thugs who carried the ballot box to the palace of Olufon. That armed thugs led by Mr. Soji Olayinka invaded the polling unit and stuffed the ballot box with illicitly thumb-printed ballot papers. Furthermore and under XXn at page 509 of the record, the witness said he was not beaten but the agents were.

The same horror stories also applied to all the other witnesses to the petitioner/appellant who narrated their ordeal on the day of the election, both in their witnesses’ statements and confirmed under cross examination.

On the part of the 1st and 2nd respondents; the summary of their evidence was that contrary to the testimonies of the petitioner/appellant’s witnesses, the election was free and fair. They denied the allegations made by the appellant and his witnesses therefore.

Despite the detailed and graphic analysis of the evidence by the petitioner/appellant’s witnesses, the learned tribunal judges nonetheless went ahead and dismissed the petition in its entirety. It is apparent from all deductions, I hold, that the dismissal of the witnesses evidence either on account of being a ward supervisor or branding same as mere hearsay does not tally with the intendment and interpretation of section 62(1) of the Electoral Act 2006 read along with sections 77 and 155 of the Evidence Act reproduced supra. Contrary to the findings of the lower Tribunal, the witnesses’ statements and evidence, inclusive of those not specifically contained in the initial depositions were based on what they saw, which was a direct evidence and therefore admissible.

This was the situation laid down in the case of Omorinbola II v. Mil. Gov. Ondo State (1995) 9 NWLR (Pt. 418) 201 at 221. Another related and relevant authority is the apex court’s decision in the case of Gaji v. Pave (2003) 8 NWLR (Pt. 823) 583 at 611 wherein Niki Tobi J5C held and said:

“It is new learning to me that evidence procured from cross-examination is inadmissible.

Evidence procured from cross-examination is as valid and authentic as evidence procured from examination-in-chief. Both have the potency of relevancy and relevancy is the heart of admission in law of Evidence.”

Further still and on credibility of evidence, the case of Omozeghian v. Adjarho (2006) 4 NWLR (Pt. 969) 33 at 61 is also in point. The learned trial tribunal I hold with all respect also totally misdirected itself by wrongfully rejecting the evidence and thereby erroneously declined to consider the same adduced by the petition/appellant’s witnesses.

The other point for consideration under this issue relates to the tribunal’s pronouncement in holding that facts averred in the testimonies of the petitioner’s witnesses and the defects in the electoral materials tendered in evidence were not pleaded. At page 706 of the record of appeal for instance, the tribunal found the following on the evidence of PW1 and said:

“His evidence as relates to the issues of conduct of the elections in the polling units is unreliable.

Further, there is no specific pleadings in respect of the units in which he has given evidence; so also facts as to people being unable to vote because the presiding officer told them that the ballot papers have been exhausted and thus was due to multiple voting.

In every case, the two most important aspects are pleadings and evidence in proof thereof.

Apart from that, the witness testified to the effect that people who were not accredited to vote were allowed to do so. This again was not pleaded.”

The learned appellant’s counsel in defence of the tribunal’s pronouncement drew the court’s attention to certain aspects of the amended petition specifically at paragraphs 19.6, 19.9, 28 and 34 at pages 72, 73 and 75 of the record of appeal. The reproductions which are as follows:-

“19.6 All the widespread disruptions irregularities and/or malpractices referred to in this petition were done with express and/or implied consent, authority or instruction of the 1st, 2nd and 3rd Respondents acting severally or in concert.

19.9 The conduct of the election is in the fifteen wards mentioned in paragraph 13 above is marred by widespread irregularities and malpractices resulting in substantial noncompliance with the mandatory provisions of the Electoral Act, 2006 in particular sections 28, 63(1)-(2), 64(1)-(4), 66 and 75.

28. There was widespread disenfranchisement of so many voters and thus substantially affected the results as declared.
29. There was widespread disenfranchisement of so many voters and this substantially affected the results of the election.”

It is on record again that the tribunal at its earlier reasoning at page 704 of the record of appeal gave the summary of the petitioner/appellant’s complaints wherein it stated as follows:

“The Petitioner has in paragraph 14, 16, 17, 18, 19, 20, 21, 24.1, 24.2, 24.3, 25, 26, 27, 28, 31, 34, 35 and 36 of the petition pleaded facts to the effect that elections in Irepodun; Olorunda; Osogbo and Orolu Federal Constituency were marred by violence, malpractices and widespread irregularities in several polling units of the Federal Constituency.”

By the above holdings and as rightly submitted by the learned appellant’s counsel, the tribunal has in its judgment presupposes and admitted that the appellant actually pleaded facts to the effect that elections in the above-mentioned local governments were marred by violence, malpractices and widespread irregularities in several polling units. The subsequent further holding by the tribunal on the absence of specific pleadings in respect of the units in which PW1 has given evidence is contradictory and not consistent. Relevant on this point is the pronouncement by the apex court in the case of Eke v. Okwarenyia (2001) 12 NWLR {Pt.726L181aJ: 203 wherein Uwaifo J.S.c. made the following pronouncement and said:

“…there is no obligation as a pleading procedure to set out the subordinate facts that may help as evidential materials. In that case, the parties must only plead in such a way as to prevent surprise when leading evidence in support of their case.”

It is not therefore the function of pleadings to contain evidence by which facts averred in the pleadings are to be proved. Authorities relevant are the cases of M. M. Alli Co. Ltd. v. Goni (2006) 10 NWLR {Pt. 987} 88 at 107 and Unipetrol Nig. Plc. v. Adireje (W.A.) Ltd. (2005) 14 NWLR (Pt. 946) 639-640. The main function of pleadings therefore is to focus on the various matters actually in dispute between the parties without having to plead evidence. See also the case of Ngige v. Obi (2006) 14 NWLR1 at 141-142 also a decision of the apex court in the case of Ezemba v. Ibeneme (2004) 14 NWLR.1Pt. 894) 617 at 649-650.

I would wish to relate back to the witness statement of PW1 at pages 17 to 19 of the record of appeal which had been earlier considered in this judgment. Having regard to paragraphs 19.6, 19.9, 21 and 28 of the amended petition the facts averred therein contain material facts with respect to the said ward 7 of Irepodun local government, given in evidence by PWI. The respondents, contrary to the submission by their counsel, were neither left to grope in the dark nor were any surprise sprang on them.

Also at pages 709 and 710 of the record of appeal, the lower tribunal further held thus in respect of the testimony of PW2:

“The facts given in evidence in respect of particular units, namely Abelemure, Ayemeye, Arogun, Epa, Elemo, Ahankin, Seriki, Health Centre, Alaia and Arije are not specifically pleaded in the petition. Similarly names of the persons linked to the alleged malpractices in these units, viz Adegboye Abiodun, Hon. Adeyemo Asimiyu, Lateef Oba, Aderinola Joseph, Engineer Rufus Oyegbile, Fatai Olukotun, Mr. Apata, Alhaji Fasansi and Mr. Saka Najeein are not peladed The facts that saka Najeeim impersonated the residing officer is not specifically pleaded.”

With reference to pages 72 to 74 of the record of appeal the averments at paragraphs 19.1-19.9; particulars 17, 18, 19, 21, 24.1, 24.2, 24.3 and 28 of the amended petition are very clear and evident. In other words, the facts leading to the evidence adduced by PW2 in relation to all the units in ward 9 of Irepodun local government have been unambiguously pleaded. Also on whether or not names of the persons who led the invasion were specifically pleaded paragraph 24.3 of the amended petition at page 74 of the record of appeal is relevant wherein it states:

“…..voting was completely disrupted at all the said polling units by several persons including in some cases known members of the 2nd respondent carrying various offensive weapons .”

It is trite law that the function of pleading is not to contain evidence by which facts averred in the pleadings are to be proved.

Rather, its main function is to focus on the various matters actually in dispute between the parties without having to plead evidence. The case of Eke v. Okwarenyia (supra) is again in point.

In the same vein and similarly, as it was the case with the foregoing witnesses, the lower tribunal also rejected all the rest of the evidence by the other witnesses on the grounds that they were not specifically pleaded. Contrary to the lower tribunal’s findings paragraphs 19.1 to 19.9, 16 to 30 and 32 to 36 of the amended petition at pages 72 to 76 of the record of appeal would reveal that the facts leading to the testimonies of the witnesses PW5, PW6, PW7, PW8, PW9, PW10, PW12, PW13 and PW15 have all been adequately pleaded. The authorities of M. M. Alli Co. Ltd. v. Goni, Unipetrol Nig. Plc. v. (Adireje) (WA) Ltd. and Ngige v. Obi all under reference are again relevant to support the contention.

On the totality of the deductions arrived at on the determination of the 1st issue, it is apparent that the appellant had proved sufficiently that the act of the lower tribunal in disallowing the witness, the Resident Electoral Commissioner, in respect of whom subpoena duces tecum et at testificandum had been issued by the same tribunal, upon application by the appellant, from being sworn on oath and to testify, amounted to a breach of fair hearing against the appellant. In other words, the tribunal did greatly err in its ruling of the 17th day of November, 2007 which as a consequence affected its final judgment delivered on the 12th of May, 2008. That is to say wherein exhibits 16 to 31 were recorded as unreliable because they were tendered from the bar and not through the makers.

Furthermore, the lower tribunal’s total and outright rejection of all the evidence by petitioner/appellant’s witnesses was glaringly wrongful having regard to the interpretation of section 62(1) of the Electoral Act 2006 and also sections 77 and 155 of the Evidence Act. The consequential effect of the foregoing was the absence of any evaluation of their evidence and thereby occasioning gross miscarriage of Justice against the appellant.

Further still and on the question relating to the absence of pleading of the evidence by the appellant’s witnesses, it is sad to say that the lower tribunal totally misconstrued and confused itself with the facts which should be contained in the pleading as against evidence to be led in proof of the facts thereof and which are not subject of pleading. Pleadings are to contain facts but not evidence whereby the facts are to be proved. The misconception fallen into by the trial tribunal had certainly worked in Justice against the appellant and thus resulting into a wrongful rejection of the totality of his evidence which also amounted to a denial of fair hearing and thus culminating into a miscarriage of Justice.

The learned appellant’s counsel had called upon us to invoke the provision of section 15 of the Court of Appeal Act 2004 and decide the case in his favour. This court as rightly submitted by the said counsel has the powers under that section to assume full jurisdiction as court of 1st instance to re-hear in whole or in part or remit to the court below for the purpose of such re-hearing or give further directive as appropriate.

However and that notwithstanding, I hasten to add that the purpose and the use of that power is applicable in appropriate situational circumstances. In other words, it cannot be invoked in situations where there is a clear cut and absolute absence of fair hearing as it is in the case at hand which would require the taking of evidence. This court is not a court of evidence but of law. The matter at hand and in issue therefore goes far beyond the need to review the record of the trial tribunal. This is because the errors are so fundamental and had gone right deep into the very foundational root of the entire proceedings as conducted at the lower tribunal.

Issues 2 and 3 are both predicated on the outcome of the 1st issue which proceeding in that behalf had been declared a mere sham and grossly lacking a foundational footing. Any attempt to therefore consider the issues 2 and 3 in the light of the conclusion would only amount to an academic exercise which the court should not engage itself therein. It suffices that the entire appeal is disposed off on the 1st issue.

It is trite law and as laid down again in a plethora of authorities that an appellate court will not as a general rule interfere with the findings of fact by a tribunal or trial court except however in certain circumstances as laid down in this court’s decision in the case of Nnaji v. Agbo (2006) 2 EPR867 at 893 wherein the conditions laid down are, where:

1. The findings and decision of the trial tribunal is not supported by evidence.
2. The tribunal did not make a correct assessment of the evidence before it.
3. It is found that the tribunal wrongly accepted or rejected evidence; or

4, It is found that there has been an erroneous appraisal of the facts leading to an erroneous conclusion.

The situation in the case at hand is on all fours with the authority of Nnaji v. Agbo under reference and consequent to which this appeal has merit and it is accordingly allowed in terms of the alternative reliefs sought for as per the amended Notice of appeal filed 20th August 2008 but deemed properly filed on the 12th January, 2009.

In the result therefore I make an order setting aside all the 3 rulings and the final judgment of the Governorship and Legislative Houses Election Petition Tribunal holden at Osogbo and delivered on 17th November, 2007, 4th December, 2007, 5th December, 2007 and 12th May, 2008 respectively. In its place however, and having allowed the appeal therefore, I make the following further orders:

1. An order ordering a petition for having miscarriage of Justice. re-trial of the occasioned a
2. An order that the petition be heard and determined by another Panel of Judges.

I shall make no order as to costs but parties are to bear their own costs of the appeal.

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Other Citations: (2009)LCN/3320(CA)