HON. BASHIR ADEYELA V. OLAJIDE ADEYEYE & ORS.
(2010)LCN/3646(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 24th day of March, 2010
CA/I/EPT/HA/73/2008
RATIO
INTERPRETATION: HOW SHOULD THE COURT INTERPRETE CLEAR AND UNAMBIGUOUS STATUTES
This Court stated in the case of Akintunde vs. Yinka (2009) 48 WRN 57 At 61, on how Court should interprete clear and unambiguous statutes.
“The principle remains that in interpreting statutes made up of clear and. unambiguous words, the Courts ascribe to these, words their literal, and ordinary meaning. See:- N.P.A. Plc. vs. Lotus Plastics Ltd. (2008) 3 WRH 133; (2005) 12 NWLR (Part 989) 409 SC, (2005) 24 NSCQR 566 and Elabanjo vs. Dawodu (2006) 50 WRN 79; (2006) 15 NWLR (Part 1001). PER SIDI DAUDA BAGE, J.C.A.
ORDER: MEANING AND NATURE OF A SUBPOENA
Subpoena is an order or writ of Court used for securing a witness’s attendance in Court of trial for the purpose of testifying and/or produce some documents on behalf of the party who applied for the issue of such subpoena, where the order is to secure the attendance of a witness for the purpose of testifying in Court; it is simply called subpoena ad testificandum where the order commands the witness to produce certain documents at trial of an action. It is also called subpoena duces tecum. If it is expected that, apart from producing the documents, the person is also to give evidence, the subpoena would be a subpoena ad testificandum et duces tecum. PER SIDI DAUDA BAGE, J.C.A.
ELECTORAL LAW: MEANING OF NON-COMPLIANCE WITH THE ELECTORAL ACT
Non-compliance with the Electoral Act in relation to an election may simply be defined as the conduct of an election contrary to the prescribed mode under the Act; or the rules and regulations made there-under. Non-compliance may result not only from the defence of, but also from the nature of a complaint, and the question in every case is, whether or not in view of the findings the constituency as such was allowed to elect its representative. See:- Nwole vs. Iwuagwu (2004) 15 NWLR (part 895) 61; Swem vs. Dzunqwe (1966) 1 SCNLR 111; (1966) NMLR 297; Basheer vs. Same (1992) 4 NWLR (Part 236) 491; Angbazo vs. Ebye (1993) 1 NWLR (part 268) 113; Na’Bature vs. Mahuta (1992) 9 NWLR (Part 263) 85; Ojukwu vs. Onwundiwe (1984) 1 SCNLR 247 at 305 – 306; Chibok vs. Bello (1993) 1 NWLR (Part 267) 109. PER SIDI DAUDA BAGE, J.C.A.
FAIR HEARING: IMPORTANCE OF FAIR HEARING
Section 36(1) of the 1999 Constitution guarantees the right to fair hearing to all citizens. It is the bedrock of our judicial system. There is thus a constitutional duty on courts and tribunals to afford all parties that appeal before them equal opportunity to present their respective cases. See ALSTHOM VS. SARAKI (2005) 3 NWLR (911) 208; SALAU VS. EGEIBON (1994) 6 NWLR (348); DIDE VS. SELEKETIMIBI (2008) 15 NWLR (1110) 221; NDUKAUBA VS. KOLOMO (2005) 4 NWLR (915) 411.
In election petition proceedings, which are sui generis, it is perhaps even more vital that no party should be denied the opportunity of placing before the court all the evidence that would assist him in proving his case. See AREGBESOLA VS. OYINLOLA (2009) 14 NWLR (1162) 429 at 478 G. He must not be shut out by undue reliance on technicalities. See NWOBODO VS. ONOH. (1984) 19 SC NLR 1; DIDE VS. SELEKETIMIBI (supra), LASUN VS. AWOYEMI. (2009) 16 NWLR (1168) 513. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
FAIR HEARING: EFFECT OF A BREACH OF THE RIGHT TO FAIR HEARING
The effect of a breach of the right to fair hearing is to render the hearing liable to be set aside or declared invalid by the court, See NDUKAUBA VS. KOlOMO [supra) at 438 E-F; SALAU VS. EGEIBON (Supra) A.G. RIVERS STATE VS. UDE (2006) 17 NWLR 1008) 436; ABEGBESOLA VS. OYINLOLA (supra). PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
HON. BASHIR ADEYELA Appellant(s)
AND
OLAJIDE ADEYEYE & 98 ORS. Respondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal by the Appellant who was the Petitioner at the Governorship/National Assembly and Legislative Houses Election Petition Tribunal, Osun State, sitting at Oshogbo in Petition No. HA/EPT/OS/18/2007 against the judgment of the Tribunal Coram:- Honourable Justices T.D. Naron, S. Mohammed, J.N. Akpughunum, A. T. Badamosi, J. E. Ekanem, delivered on the 12th of May, 2008, wherein the Honourable Tribunal dismissed the petition as lacking in merit.
The facts leading up to this appeal are briefly set out as follows:-
“Elections were conducted into the Osun State House of Assembly on the 14th April, 2007. The Appellant, a member of the Action Congress (A.C.) contested the seat for Ife East Constituency. At the conclusion of the election, the 3rd to 9th Respondents declared the 1st Respondent who was the candidate of the Peoples Democratic Party (P.D.P.) as the winner. The Appellant was dissatisfied with the outcome of the election and filed a petition dated 14th May, 2007 before the tribunal, seeking the nullification of the said election and make an Order for a re-run of the said election for substantial non-compliance with the provisions of the Electoral Act. The Petitioner further pleads that, he contested the election on the platform of the Action Congress (A.C.) and has the right to be returned as having been duly elected.
The Appellant filed a Notice of Appeal dated the 30th of May, 2008 containing Twelve (12) Grounds of Appeal from which the Learned Counsel distilled Eight (8) issues for determination of the Court. The said Notice of Appeal was filed on the 7th of May, 2009. Learned Counsel to the 1st and 2nd Respondents in their Brief of Argument dated 14th May, 2009, filed on 15th May, 2009, incorporated a Notice of Preliminary Objection and formulated three (3) Issues for determination. Learned Counsel to the 98th and 99th Respondents in their Brief of Argument, deemed filed on the 9th of February, 2010 formulated one (1) Issue for determination.
When this appeal came up for hearing on the 9th of February, 2010, the learned Counsel to the 1st and 2nd Respondents, A.A. Abimbola, drew the attention of the Court to the Notice of Preliminary Objection contained in the 1st and 2nd Respondents’ Brief of Argument. Learned Counsel to the 1st and 2nd Respondents stated as follows:-
NOTICE OF PRELIMINARY OBJECTION:
“TAKE NOTICE that the 1st and 2nd Respondents hereby raise a Preliminary Objection, notice of which is hereby given to the Appellant and shall urge the Court to:-
Strike out Grounds 8, 9, 10, 11 and 12 of the Notice of Appeal filed on the 30th day of May, 2008 and issue 5 of the Appellant’s Brief of Argument purportedly distilled from the said Grounds of Appeal on the ground that the Grounds of Appeal and the issue purportedly, distilled therefrom are incompetent.
Assuming though not conceding that this Honourable Court can exercise jurisdiction on it that Grounds 8, 9, 10, 11 and 12 being grounds flowing from an interlocutory ruling, the Appellant ought to have filed his Notice of Appeal within 21 days or thereafter; with leave of this Honourable Court in compliance with the provisions of Section 1 of the Practice Direction No.2 of 2007.”
In arguing the Preliminary Objection, learned Counsel to the Applicant formulated One (1) Issue for determination by this Court, that is, whether this Court can assume jurisdiction in respect of Grounds 8, 9, 10, 11 and 12 of the Notice of Appeal filed by the Appellant dated 30th day of May, 2008 which bothers on interlocutory appeal. Learned Counsel to the Applicant submitted that, this Court is not clothed with the competence to entertain interlocutory appeals that arise from Election Petitions. Learned Counsel to the Applicant further submitted that, the Petitioner in the course of the trial of this petition, had brought several applications before the Tribunal, which the Tribunal by its unanimous Rulings, delivered on the 8th day of December, 2007 and 24th day of January, 2008; dismissed the applications as being incompetent. Learned Counsel to the Applicant submitted further that, Section 246 (1) of the Constitution of the Federal Republic of Nigeria, 1999, empowers the Court of Appeal to adjudicate on matters. These constitutional provisions did not in any way, make provisions for interlocutory appeals from the decision of Election Petition Tribunals. It provided for only final appeal which is as of right, pursuant to Section 246 (1) of the Constitution of Nigeria, 1999. See:- Amgbare Vs. Sylva (2007) 18 NWLR (Part 1065) 1 At 19. Also, Dr. Maxwell M. Gidado & Another Vs. Mrs. Grace Folashade Jackson Bent and 12 Others (unreported Appeal No. CA/I/EPT/SN/237M/2007).
Learned Counsel to the Applicant further submitted that, if this Court has power to entertain such interlocutory decision on appeal, the appeal in respect of it was not brought within the time allowed by the Election Petitions Practice Direction No. 2 of 2007. The Rules stipulate 21 days within which to file a Notice of Appeal challenging an interlocutory decision.
Learned Counsel to the Applicant further submitted that, a careful look at the Grounds 8, 9, 10, 11 and 12 revealed that, the Appellant rather than filing separate Notice of Appeal after the Ruling of the Tribunal dated 8th December, 2007 and 24th January, 2008, chose to embed in the Notice of Appeal against the final decisions of the Election Petition Tribunal, delivered on the 12th day of May, 2008 – a period of close to five months after the Ruling being appealed against was delivered. The interlocutory appeal on interlocutory issues having not been filed within the time allowed by law is incompetent and should be struck out.
Learned Counsel to the Applicant submitted further that Issue Five (5) distilled from Grounds 8, 9, 10, 11 and 12 of the Grounds of Appeal, is an issue distilled from incompetent grounds of appeal; such issue is also crippled with in competency which affected the Grounds of Appeal. See:- Agbaka Vs. Amadi (1998) 11 NWLR (Part 572) 16 At 24. Learned Counsel to the Applicant submitted further that, if this Court finds the submission made otherwise, it was simply an exercise of Court’s discretion. Where it involves the exercise of judicial discretion, only the Court exercising the discretion can hint itself. Discretion by Court depends on the facts and peculiarity of each case as discretion in a case has no force of binding even in the same Court. See:- Yusuf Vs. Ilori (2008) 6 NWLR (Part 1083).
Learned Counsel to the Applicant submitted further that, by Paragraph 1 (1) (a) (b) and 2 of the Practice Direction, the non-indication of the intention by the Appellant to bring this application during the pre trial; and failure to the depositions of the additional witnesses is fatal; this is a matter of compulsion. Learned Counsel to the Applicant further submitted that, the Rules of Court at the Tribunal, are meant to be obeyed. A situation where a litigant chooses which rules of the Tribunal he will obey shall certainly not be in the interest of adjudication. See:- Williams Vs. Hope Rising Voluntary Food Society (1992) NSCE 36; Inyang Vs. Ebong (2002) FWLR (Part 125) 715 At 744 Ratio II: Okereke Vs. Yar’Adua (2008) All FWLR (Part 430) 626 At 635. Learned Counsel to the Applicant finally submitted that the decisions of the Election Petition Tribunal to dismiss both applications were based purely on exercise of judicial discretion. The judicial discretion was justiciably and justifiably exercised in favour of the Respondent, The facts and circumstances for the refusal of the applications as shown above are known to the Tribunal. We urge this Court to dismiss grounds 8, 9, 10, 11 and 12 as being incompetent grounds.
The Appellant did not file a reply to the said Notice of Preliminary Objection; save that in respect of Issue 5, he referred this Court to the case of Aregbesola Vs. Oyinlola (2009) 14 NWLR (Part 1162) 429. Learned Counsel to 98th and 99th Respondents had no objection to the said Notice of Preliminary Objection. The said Notice of preliminary Objection seeks for the striking out of Grounds 8, 9, 10, 11 and 12 of the Notice of Appeal filed by Appellant and also to strike out Issue 5 of the Appellant’s Brief of Argument distilled from the said grounds, The grounds complained about in the Appellant’s Notice of Appeal are as provided hereunder:-
Ground 8 – Error in Law:
“The Tribunal erred in law when it ruled on the 8th day of December, 2007 and breached the Appellant’s right to fair hearing by dismissing his applications to enable him bring additional witnesses 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 and which ruling affected the judgment of the Tribunal delivered on the 12th day of May, 2005”.
Ground 9 – Error in Law:
“The Tribunal erred in law when it ruled on the 8th day of December, 2007 by disregarding the provision of Section 159 of the Electoral Act, 2006 in dismissing the Appellant’s application to enable him bring additional witnesses and tender inspection report which application was necessitated by the inspection order granted by the Tribunal and which ruling affected the judgment of the Tribunal delivered on the 12th day of May, 2008”.
Ground 10 – Error in Law:
“The Tribunal erred in law when it ruled on the 8th day of December, 2007 by dismissing the Petitioner’s application to enable him bring additional witnesses and tender inspection report by holding that the Petitioner did not indicate in the answer to pre-hearing information answer sheet (Form TF 008) that the application will be brought and which ruling affected the judgment of the Tribunal delivered on the 12th day of May, 2008.
Ground 11- Error in Law/Misdirection:
“The tribunal erred in law in its ruling of December 8th, 2007, when it held that the deposition sought to be filed ought to have been brought along with the petition and which ruling affected the judgment of the Tribunal delivered on the 12th day of May, 2008”.
Ground 12-Error in law.
“The Tribunal erred in law when it ruled on 24th day of January, 2006 disallowing the Resident Electoral Commissioner in respect of whom subpoena duces tacum et ad testificandum had been issued by the Tribunal upon application by the Appellant from being sworn on oath and to testify by the Tribunal holding that there is no compliance with the Practice Direction in that Resident Electoral Commissioner was not listed as a witness in the petition and the witness statement of the Resident Electoral Commissioner was not frontloaded by the Petitioner and which ruling affected the judgment of the Tribunal delivered on the 12th day of May, 2006.”
The issue No. 5 of the Appellant’s Brief of Argument, distilled from the affected grounds of the Notice of Appeal, state thus:-
Issue 5:
“Whether the Ruling of the Tribunal delivered on the 8th day of December, 2007, is in accordance with the Practice Direction of election petition Tribunal, rules of natural justice, equity and good conscience; when the Tribunal refused the Appellant’s application to call an additional witness to tender the report of inspection of electoral materials and for such witness to give evidence in respect thereof the same inspection process having been conducted by the Appellant, pursuant to an Order of the Tribunal in order for the Appellant to maintain his petition (Grounds 8, 9, 10 and 11 of the Notice of Appeal)”,
The enabling power of the Court of Appeal to take appeals’ from Tribunal and other Courts and Tribunals is as provided for by Section 246 (1)(b)(2)(3) of the 1999 Constitution of the Federal Republic of Nigeria.
Section 246(1) provides:
An appeal to the Court of Appeal shall be as of right from:
(b) decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether:
(i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution;
(ii) any person has been validly elected to the office of Governor or Deputy Governor;
(iii) the term of office of any person has ceased or the seat of any such person has become vacant”,
(2) “The National Assembly may confer jurisdiction upon the Court of Appeal to hear and determine appeals from any decision of any other Court of Law or Tribunal established by the National Assembly”.
(3) “The decision of the Court of Appeal in respect of appeal arising from election petitions shall be final”.
The matters of the Grounds of the Notice of Appeal of the Appellant complained about by the learned Counsel to the 1st and 2nd Respondents are matters of interlocutory decisions taken by the lower Tribunal, after appropriately ruling upon each application. When the provisions of Section 246 (1) of the Constitution of the Federal Republic of Nigeria, 1999 is considered, it is already settled by this Court, that there is no provision made for bringing any interlocutory appeal other than the final appeal. The case of Amgbare Vs. Sylva (Supra) cited by the learned Counsel to the 1st and 2nd Respondents is quite apt and relevant to this subject. Per Galadima, JCA, at Page 18, he stated thus:-
“It is pertinent to note that a decision on an election petition refers to the conclusion of an election proceedings. It does not contemplate decisions in an election petition made before the final determination. In other words, the phrase “a decision on an election petition” could only mean a determination of any question whether any person has been elected; or that, the election was avoided, that is, a determination on the merit of the petition. Therefore, any other decision made in the course of the election proceedings would only be a decision in an election.”
To my mind, the decision of the learned jurist above, has aptly answered the question posed by the Notice of Preliminary Objection. There were interlocutory decisions made by the lower Tribunal, which gave rise to the Grounds of the Notice of Appeal being complained of. The Appellant did not raise any separate appeal in respect thereof, but waited until the final decision was given by the Tribunal strictly complying with Section 246 (1) of the Constitution. He made those interlocutory decisions to form part of the Grounds of his appeal. I think the Appellant is obedient to the Constitution. Those are grounds which form the basis of the Notice of Preliminary Objection which the learned Counsel to the 1st and 2nd Respondents is seeking to have them struck out. I see more of the argument of the learned Counsel to the 1st and 2nd Respondents more fortifying the correct approach taken by the Appellant in filing this appeal. This Court remains very consistent on its interpretation to the provisions of Section 246 (1) of the Constitution. It was stated in the case of Dr. Maxwell M. Gidado & Another Vs. Mrs. Grace Folashade Jackson Bent & 12 Ors. (Supra) (Unreported) from Jos Division of this Court in Appeal No. CA/J/EPT/SN/237M/2007 as follows:-
“and it is the only logical conclusion that omission to provide for situation where appeals can be with leave from the decision of Election Tribunals to this Court is a clear indication that the Legislative does desire that this Court should entertain interlocutory appeals from Election Tribunals.” It will be inconsistent for the Legislative to provide for expeditions determination of election petitions and at the same time provide for delay via interlocutory appeals. In sum, this Court lacks the necessary jurisdiction to entertain interlocutory appeals from the Election Petitions Tribunal and I so hold. This is so, because, there is no statutory or constitutional provisions enabling appeals to be brought in that behalf.”
I will only need to add that, there is no statutory or constitutional provision that prevents a desiring Appellant the right to appeal; and make those decisions reached at the interlocutory stage grounds or part of the grounds of his final appeal. To prevent a desiring Appellant to appeal after the conclusion of the trial by the lower Tribunal is denying him a constitutional right, which provides that an appeal is as of right. The Appellant in this appeal acted appropriately according to law, by making those decisions of his interlocutory application as grounds in his Notice of Appeal. For this Court to strike out those grounds complained of; and Issue No. 5 of the Appellant’s Brief, as sought by the learned Counsel to the 1st and 2nd Respondents, will be tantamount to denying the Appellant his right to fair hearing; and it will go against natural justice, equity and good conscience in favour of the Appellant.
In the final analysis, I find no merit in the Notice of Preliminary Objection embedded into the 1st and 2nd Respondents’ Brief of Argument dated 14th May, 2009 and filed on the 15th May, 2009. The said Notice of Preliminary Objection is hereby struck out.
In his Brief of Argument dated and filed 7th of May, 2009, the Appellant formulated Eight (8) Issues for determination as follows:-
(1) “Whether the Tribunal’s judgment is not against the weight of evidence adduced by the parties when it held that evidence led by PW1, PW2, PW3, PW4, PW5 and PW6 was not credible but that, the 1st and 2nd Respondents’ witnesses gave credible evidence and were unshaken in their testimonies most especially when the 3rd to 99th Respondents did not lead any evidence (Grounds 1 and 7 of the Notice of Appeal).
(2) Whether the tribunal did not err in law and thereby occasion miscarriage of justice when it held that evidence of malpractices alleged by the Appellant at various polling units ought to have come from Electoral Officers, Party Agents and Polling Clerks, or a Voter and not the Appellant’s Ward Supervisors who vehemently testified as direct witnesses of the said malpractices (Ground 3 of the Notice of Appeal).
(3) Whether evidence led by PW1, PW2, PW3, PW4, PW5 and PW6, Party Supervisors of the Petitioner can be characterized as hearsay. In the face of 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 thugs of the Respondents (Ground 2 of the Notice of Appeal).
(4) Whether the Tribunal did not misdirect itself when it held that facts averred in the testimony of the Appellant’s witnesses are not pleaded and therefore go to no issue (Ground 4 of the Notice of Appeal).
(5) Whether the Ruling of the Tribunal delivered on the 8th day of December, 2007, is in accordance with the Practice Direction of Election Tribunal, rules of natural justice, equity and good conscience when the Tribunal refused the Appellant’s application to call an additional witness to tender the report of inspection of electoral materials and for such witness to give evidence in respect thereof the same inspection process having been conducted by the Appellant; pursuant to an Order of the Tribunal in order for the Appellant to maintain his petition (Grounds 8, 9, 10 and 11 of the Notice of Appeal).
(6) Whether it is in accordance with the law that the Resident Electoral Commissioner subpoenaed at the instance of the Appellant should have been listed among the witnesses of the person who caused him to be subpoenaed together with such witness’s deposition having been frontloaded by the party who caused him to be subpoenaed before he could be sworn to give evidence (Ground 12 of the Notice of Appeal).
(7) Whether the Tribunal, in its determination of the petition, was right when it held that the electoral materials produced by the Resident Electoral Commissioner, pursuant to a subpoena duces tecum et ad testificandum and admitted from the bar with consent of the parties were unreliable because, they were tendered from the bar and not through their makers (Ground 6 of the Notice of Appeal).
(8) Whether the Tribunal did not misdirect itself and thereby occasion miscarriage of justice when it held that issues of the defects in the electoral materials tendered as Exhibits are not pleaded and go to no issue (Ground 5 of the Notice of Appeal).”
The 1st and 2nd Respondents, in their Brief of Argument dated 14th May, 2009, filed on the 15th May, 2009, three (3) Issues were formulated for determination and they are as follows:-
(1) “Whether the Appellant had by credible evidence established the alleged acts of non-compliance with the Electoral Act, 2006, the widespread irregularities, electoral malpractices and violence and if so whether they are substantial enough to affect the result of the election.
(2) Whether the Election Petition Tribunal sitting in Osun State, had properly evaluated the evidence of both the Appellant and the Respondent at the trial before dismissing the petition.
(3) Whether there is substantial compliance with the Electoral Act, 2006 in the election of 14th April, 2007, in Ife East Local Government State Constituency.”
The 98th and 99th Respondents, in their Brief of Argument dated 22nd May, 2009, but deemed filed on the 9th of February, 2010, formulated only One (1) issue for determination which is:-
“Whether the Appellant has by credible evidence proved or established the allegation of electoral malpractices, thuggery and or violence and or substantial non-compliance with Electoral Act, 2006; having regard to the quality of evidence led at the trial of the petition.”
In arguing his first Issue for determination, learned Counsel to the Appellant submitted that, the learned Judges of the Tribunal did not properly evaluated evidence led by the parties; and this is premised on points elicited from the Record of proceedings of the Tribunal. Learned Counsel to the Appellant further submitted that, the evidence of PW1, PW2 – the Appellant’s Supervisor for Okewere Ward 1, PW3, PW4 ” the Appellant’s Supervisor for Okewere Ward 2, PWS – the Appellant’s Supervisor for Ilode Ward 2 and PW6 – the Appellant’s Supervisor for Okewere Ward 3; they gave direct evidence of how the thugs invaded the various units and perpetrated the various acts of malpractices.
Learned Counsel to the Appellant submitted further that, the Tribunal questioned, how these witnesses moved around the polling units on the day when there was restriction of movement? It is non sequitor. The fact of how they moved round the polling units is not in issue. That question was not even put to the witnesses by the Counsel to the Respondents. How can the Tribunal make that an issue to determine whether the witnesses could be behaved or not. Learned Counsel to the Appellant further submitted that in evaluation of evidence, a reasonable Tribunal would consider both oral and documentary evidence tendered and admitted. Exhibits 3 and 4, particularly “EC8A (1)” Nos. 013776 and 013775 for both Ife City Units 1 and II support our claim that election in the units were inconclusive. The results were not signed by any of the polling agents of the parties, the 1st Respondent’s agent inclusive. This is a clear indication that elections were not concluded in the units and that results were not answered thereat.
Learned Counsel further submitted that, the Tribunal’s conclusion that witnesses could not be believed, was not based on any observation of the demeanour of the witnesses, but rather based on the arbitrary exercise of freedom of choice of what and whom to believe and whom not to believe. This is below the exhortation of this Court and the Supreme Court in many cases that Judges should not believe and disbelieve. Such belief must be sound in reasoning, logic and law. Such can only come after a proper evaluation through the dexterous use of the judicial scale and not a blind declaration of faith. See:- Mogaji vs. Odofin (1978) 4 SC 91; Victor Woducham vs. Simeon Gudi (1981) 5 SC 291; Vincent Bello vs.Magnus Iweka (1981) 1 SC 101.
Learned Counsel to the Appellant further submitted that, the various Supervisors who tendered the various polling agents’ reports actually had personal knowledge of the facts contained in the reports as they were present in the various polling units when the events alleged occurred.
Also, the various reports were admitted by consent of all parties in this case. As regards units not visited by witnesses, but in respect of which reports of agents were tendered, the Appellant shall rely on the provisions of Section 91(2) of the Evidence Act which empowers the Tribunal to admit such documents once it is clear that, undue delay or expense would otherwise be caused if all the makers more than 100 in number, were to be called in evidence.
Learned Counsel to the Appellant submitted further that, the conductor of the election – INEC, who are 3rd to 99th Respondents, together with 98th and 99th Respondents did not lead evidence to disprove all allegations of malpractices pleaded by the Appellant. The implication is that, the pleadings of the 3rd to 99th Respondents in that regard, are deemed abandoned. The implication of this also, is that, all evidence led by the Appellant with regards to the activities of the 3rd to 99th Respondents were admitted and uncontroverted. See:- the case of Alhaji Muhammadu Mangari Dingyadi & Another vs. Aliyu Magatakauda Wamako & 42 Others (Unreported) in Appeal No. CA/K/EP/GOV/60/2007 delivered on the 11th day of April, 2008; Samson Ajibade vs. Mohowa & Another (1978) 9/10 SC 1; Associated Discount Houses ltd. vs. Amalgamated Trustees Ltd. (2006) 10 NWLR (Part 909) 635 At 647.
On Issue Two (2), learned Counsel to the Appellant submitted that, there is no provision of the Electoral Act, 2006 and any applicable law that regulates giving of evidence or competence thereof. It is therefore wrong in law to say that, it is only Polling Agent 3, the Presiding Officers, Polling Clerks, Voter and Observers that can give evidence of what happened at a polling unit or collation centre. Learned Counsel to the Appellant further submitted that, the Tribunal should or ought to be concerned with whether the witnesses brought forward have come to give first hand evidence of what they saw and or did or did not do. See:- Section 77 of the Evidence Act.
Learned Counsel to the Appellant submitted further that, a testimony will only be regarded as hearsay, where the person making the statement is not the one who neither saw it, heard it, perceived it, nor gave it as his own personal opinion, but rather as what was said to him by another person. See: Omonga vs. The State (2006) 14 NWLR (Part 1000) 532; Obinwunne vs. Tabamsi Okoye (2006) 8 NWLR (Part 981) 1004. Learned Counsel to the Appellant further submitted that Section 62 (1) of the Electoral Act, 2006 provides for persons entitled to be at the polling station. The persons lawfully entitled to be admitted ………….. Learned Counsel to the Appellant further submitted that, the Appellant does not need to call a host of witnesses to prove his case. One …. witness is enough if his/her evidence proves the essential issue in dispute. See: Osazuwa vs. Osubor (2004) 3 NWLR (Part 859) 16 At 37.
On Issue Three (3), learned Counsel to the Appellant submitted that, a piece of evidence is hearsay if it is derived from secondhand information given to the person testifying. Thus, hearsay evidence occurs where a witness gives evidence on fact relying on information by another person and not what he witnessed himself. See:- Ezeazo Dosiako vs. Okeke (2005) 16 NWLR (Part 952) 630-631; Ajadi vs. Ajibola (2004) 16 NWLR (Part 898) 91.
On Issue Four (4), learned Counsel to the Appellant submitted that, in various parts of the judgment, the Tribunal while evaluating the evidence of the Appellant’s witnesses, repeatedly held the facts deposed t to by the Appellant’s witnesses which were not pleaded. Specifically, the Tribunal held that the specific mentioning of the names of the invading thugs who were members and leaders of the 2nd Respondent in the witness’s statement of PW5 is a fact not pleaded since such names were not specifically mentioned in the petition. Learned Counsel to the Appellant further submitted that what is required to be pleaded, is facts upon which evidence is to be given and not the evidence itself is to be pleaded. Learned Counsel to the Appellant further submitted, in Paragraphs 29 and 32 of the petition that PW5 and PW6 gave evidence of the specific persons who led the attack on the polling units in the wards. They both further affirmed, the elections in, the said wards were inconclusive.
On issue Five (5), learned Counsel to the Appellant submitted that, it is the clear purport and intendment of Section 159 of the Electoral Act, 2006 that evidence obtained upon orders of inspection will be used for the purpose of maintaining the petition, which was the purpose of the order of inspection granted to the Appellant after the institution of the petition. It is therefore, indubitable that the decision of the Tribunal refusing the application to bring additional witnesses and tender inspection report clearly contravenes the provision of Section 159 of the Electoral Act, 2006.
Learned Counsel to the Appellant submitted further that, the Tribunal ought to have recourse to the provisions of Section 159 of the Electoral Act, 2006 rather than Paragraph 1 of the Practice Direction specifying the minimum requirements for a valid petition. Paragraph 1 of the Practice Direction only prescribes the minimum requirements for a presentation and does not preclude bringing of additional witnesses, particularly when the purpose of the application for additional witness is pursuant to the statutory provision in Section 159 of the Electoral Act, 2006 and order of inspection granted by the Tribunal. The provision of the Practice Direction cannot be applied to infringe upon express provision of Section 159 of the Electoral Act, 2006. Learned Counsel to the Appellant further submitted that, the constitutional right to fair hearing need not be sacrificed to strict adherence to the rules of Court. See:- Amadi vs. N.N.P.C. (2000) 10 NWLR (Part 674) 76 At 110; Olaniyan vs. Oyewole (2008) 5 NWLR (Part 1079) 114 at 139; U.T.C. vs. Pamotei (1989) 2 NWLR (Part 103) 244 at 296.
On Issue Six (6), learned Counsel to the Appellant submitted that a subpoena is a Court process commanding any person to attend the Court and produce a document or give evidence before the Court. See: Muhammed Buhari & Anor vs. Chief Olusegun A. Obasanjo (2005) 1 NWLR (Part 941) 1 at 259. Learned Counsel to the Appellant further submitted that the person by subpoena ad testificandum, has an obligation to give evidence. No witness shall give evidence without being sworn. It is therefore wrong for the lower Tribunal to have disallowed the Resident Electoral Commissioner from being sworn in to give evidence simply because, he was not listed among the Appellant’s witnesses and his witness’s statement was not front-loaded.
Learned Counsel to the Appellant further submitted that, it is an indisputable fact that a party in a matter is entitled to produce evidence that would assist him in proving his case. It is also the duty of the Court to allow a party to present his case and not help his adversary to suppress relevant evidence.
On Issue Seven (7), learned Counsel to the Appellant submitted that, the Tribunal ought to have relied on the electoral materials produced by the Resident Electoral Commissioner since they were produced from proper custody in line with the decision in United Nigeria Insurance Company Ltd. vs. Universal Commercial and Industrial Company Ltd. (1999) 3 NWLR (Part 593) 17. Also, the documents were fully certified. See:- Daggash vs. Bulama (2004) 14 NWLR (part 892) 144 at 230.
A proper consideration of these documents proves the case of the Petitioner that, there was no valid election in the various wards challenged by the Appellant; as figures recorded in Form EC8A in most cases would depart from figures recorded in EC8B. In cases, evident tampering with figures directly occurred, for instance, in St. John’s Primary School, Abategba, the figures on Form EC8A (1) – SIN 013799 was seriously manipulated. The votes cast for P.D.P. was changed from 177 to 477 and total valid votes was also tampered with. This Court is urged to overrule the Tribunal on this point.
On Issue Eight (8), learned Counsel to the Appellant submitted that parties are bound by their pleadings. It is trite law that a Court or Tribunal ought to advert its mind to the pleadings of the parties in determining any matter before it. Thus, the lower Tribunal failed to do when it held that, the revelations discovered upon inspection of the electoral materials were not pleaded and therefore go to no issue. Learned Counsel to the Appellant submitted further that the Appellant alleged in paragraph 16 of the petition that, there was no voting in most polling units in the entire constituency. Where voting held, the election was disrupted by the agents of the 1st and 2nd respondents who carried dangerous weapons and unleashed terror on the electorate. No polling agent of the Appellant was afforded the opportunity to sign any result. In Paragraph 17, the Appellant alleged various acts of thuggery, violence, hijack of ballot papers and boxes, illegal thumb-printing of ballot papers, etc.
Learned Counsel to the Appellant submitted further that, the revelations made upon inspection of ballot papers showed a lot of vagaries and inconsistencies among the document produced by the INEC upon subpoena which vagaries and inconsistencies further stress and buttress the allegation that results were not recorded or announced at the polling units as no voting took place, but rather that the result by which the 1st Respondent was declared winner were not validly obtained at the polling units. Learned Counsel to the Appellant further submitted that revelations discovered during inspection were evidence necessary to the case of the Appellant. It would be wrong and contrary to rules of pleading for the Appellant to plead in his petition these pieces of evidence. It is not the function of pleadings to contain evidence by which facts averred in the pleadings are to be proved. See: M.M. Alli Coy. Ltd. vs. Goni (2006) 10 NWLR (Part 987) 88 At 107 F-G,. Unipetrol Nigeria Plc. vs. Adsireje (WA) Ltd. (2005) 14 NWLR (Part 946) 639-640 H-A. The main function of pleadings is to focus on the various matters actually in dispute between the parties without pleading evidence. See:- Ngige vs. Obi (2006) 14 NWLR (Part 999) 1 at 141-142 (H-C); Ezemba vs. Ibeheme (2004) 14 NWLR (Part 894) 617 at 649-650 H-A and 651 G.
Learned Counsel to the Appellant submitted further that, the Tribunal is wrong to have held that evidence revealed through examination of documents admitted by the Tribunal, are not pleaded and thus goes to no issue. Documents speak for themselves. See:- Section 132 of the Evidence Act. The said documents only corroborate the evidence of the Appellant and cannot be treated with levity in proving the case of the Appellant most especially, when it was the Tribunal itself that made it impossible to examine on Oath deposed by the Resident Electoral Commissioner who produced the said documents. Learned Counsel to the Appellant submitted finally that, this Court should overrule the Tribunal on this issue and give consideration to the contents of the reports of’ inspection together with the said documents.
In reply, the learned Counsel to the 1st and 2nd Respondents submitted on Issue One (1) of the Brief of Argument that, they have subsumed the Appellant’s Issues 1 and 2 of his Brief. We maintain the fact that, the Tribunal was right when it held that, evidence of malpractices alleged by the Appellant at various polling units ought to have come from Electoral Officers, Party Agents, Polling Clerks or a Voter and not the Appellant’s Ward Supervisors. Learned Counsel further submitted that, in the judgment being appealed against, the Tribunal did not hold that, the Appellant’s witnesses who were ward supervisors are not competent witnesses. The finding of the Tribunal was that, the quality of evidence given by these ward supervisors fall short of evidence that could be believed and credible.
Learned Counsel submitted further that, the Appellant’s witnesses gave evidence on alleged widespread malpractices from non-counting of votes, non announcement of results, irregularity, endorsement of electoral forms, etc. The witnesses that are known to law, who ought to have given credible evidence in respect of these alleged widespread malpractices, were not called by the Appellant at the hearing of the petition. These categories of people among others are polling agents of the political parties including that of the Appellant’s voters that exercise their voting rights at all the polling stations where such malpractices were alleged, polling clerks, electoral officers and their ad-hoc staffers. None of these categories of people were called by the Appellant at the hearing of the petition.
Learned Counsel further submitted that, it follows that the evidence of the ward supervisors who did not fall within the purview of these categories of people are hearsay and inadmissible in law. See:- Sections 46(1), 63, 64 and 75 of the Electoral Act, 2006; See:- also Buhari vs. Obasanjo (2005) 13 NWLR (part 941) 1 At 315-317. Paragraphs B-A; also, see:- Pages 294, 295 and 299 of the Record of Appeal; INEC vs. Onvinbah Enekwechi C. Ray (2005) All FWLR (Part 265) 1047 At 1076 Paragraphs B-E; Remi vs. Sunday (1999) 8 NWLR (Part 68) 92. Learned Counsel submitted further that, the reference to Sections 77 and 155 of the Evidence Act by the Appellant would not in any way avail the Appellant in this regard. This is because, the Tribunal having not held that the Appellant much flouted witnesses, that is, ward supervisors, are not competent witnesses the pieces of evidence adduced by them suffered the test of credibility. They are competent witnesses within the meaning of Section 77 and 155 of the Evidence Act Cap. 122 Laws of the Federation of Nigeria, 200D, but their evidence did not pass the test of credibility. Neither, the provision of Section 62 (1) of the Electoral Act, 2006, as canvassed by the Appellant in its Brief will avail the Appellant’s witnesses. This is because, the ward supervisors who are the Appellant’s witnesses, were not in its ordinary meaning within the contemplation of the legislators who drafted it. They are unknown to law.
On Issue Two (2), learned Counsel to the 1st and 2nd Respondents submitted that the tribunal had properly evaluated the evidence of both the Appellant and the respondents at the trial before dismissing the appeal. In evaluating the pieces of evidence before it, the Tribunal considered the testimonies of the Appellant’s witnesses against the back drop of the pleadings as contained in the petition before it. It was observed while given evidence that the Appellant’s witnesses give evidence that it not in tandem with the Appellant’s pleadings in the petition. Learned Counsel submitted further that any evidence that is not supported by the pleadings goes to no issue. See:- Njiokwuemai vs. Odiei (2004) 15 NWLR (Part 895) 196 at 236-237 Paragraphs B-A and Page 243 Paragraph C.
Learned Counsel further submitted that the law is settled as to whom in the hierarchy of Courts had power to asses and evaluate evidence primarily. The evaluation and assessment of evidence is a duty thrust on the trial Court by law. A trial Court has a duty under the law to appraise and evaluate all the evidence of both parties before it. It is therefore the primary duty of the trial Court to ascribe probative value thereto. See:- Osolu vs. Osolu (2003) FWLR (Part 172) 1777 or (2003) 11 NWLR (Part 832) 608. Learned Counsel submitted further that, we are not unmindful of the power of this Court to interfere with the findings of facts by a trial Court. In doing so, this Court has a guiding principle. See:- Gatah Nigeria limited & Another vs. Odu Jacob Abu & Another (2005) All FWLR (part 278) 1186 At 1210 Paragraph Dr Page 1201 Paragraph G. Learned Counsel finally submitted on this issue that, from the totality of evidence before the Tribunal and the evaluation and assessment adventure of the trial Tribunal, there is nothing to impugn or show that, the Tribunal evaluation of evidence before it is pervasive and we urge this Court to so hold. On Issue Three (3), learned Counsel to the 1st and 2nd Respondents submitted that, the evidence led at the Tribunal by both Appellant and 1st and 2nd Respondents, point to the direction of substantial compliance with the Electoral Act 2006. All witnesses at the trial confirmed the presence of electoral officials together with the electoral materials at all the polling units on the day of the election. The Appellant’s witnesses, who confirmed they voted, stated the procedure adopted in voting during the election. The procedures as explained by the witnesses are in tandem with the election manual given for the conduct of election.
Learned Counsel to the 1st and 2nd Respondents further submitted that, we concede that INEC abandoned their pleadings by not calling witnesses. The legal curiosity that arose is whether the testimonies elicited from the Petitioner’s witnesses both in chief and cross-examination can stand to challenge the substantial compliance with all known laws that governed the election, i.e., the Constitution of 1999, the Electoral Act, 2006, the electoral manuals used for the election and other subsidiary legislations that govern the election of 2007. The evidence of the Petitioner fall short of this question. All the Petitioner’s witnesses confirmed while under cross-examination that INEC officials with all electoral materials were present at all the polling centres. They also confirm the notice of the presence of the security operatives at all the polling stations.
Learned Counsel submitted that at Paragraph 3.39 and 33.40 of the Appellant’s Brief, Counsel relied on the agents reports tendered as Exhibits and juxtaposed with Section 91(1) of the Evidence Act. This submission cannot avail the Appellant for the following reasons:
(a) The reports though admissible in evidence which were in fact admitted, are documentary hearsay.
The maker of the reports were alive to give evidence but were not invited to give evidence.
(b) The witnesses who tendered the reports cannot be cross-examined on the report, being not the makers.
(c) Most of the reports were either written in English or Yoruba; and where written in Yoruba, most of them were not interpreted to English which is the general language of the Court. See:- Flash Fixed Odds Ltd. vs. Akatuqba (2001) FWLR (Part 76) 709.
Learned Counsel submitted further that, the learned Counsel for the Petitioner relied on the decision of the Kaduna Division of Court of Appeal in the case of Alhaji Muhammed Maigari Dingyadi & Another vs. Aliyu Magatakauda Wamako & 42 Ors. (Appeal No. CA/K/EP/GOV/60/2007), delivered on the 11th day of April, 2008, to state that, INEC having refused to lead evidence on its pleadings, should be deemed to have conceded the allegation of malpractices by the Appellant. That decision is not applicable in the present case. This is because, the primary duty of INEC which is the 3rd to 99th Respondents in this petition, is to ensure that, on the day of the election, all electoral officials including their ad-hoc staffers with all electoral materials promptly and timeously reach the polling stations. They are also to follow all legally acceptable norms that conform with manuals of electoral regulator in the conduct of the election.
Learned Counsel further submitted that, in the course of trial of this petition, all Petitioner’s witnesses while answering questions under cross-examination from the 1st and 2nd Respondents, 3rd to 99th Respondents, confirmed that INEC Officials together with all electoral materials were present at the polling stations on the day of the election. Most of the witnesses also confirmed that, they voted on the day of the election and while voting, they followed all electoral regulations. It is therefore not compulsory for the 3rd to 99th Respondents to call witnesses to debunk the allegation made against them in examination-In-chief. It will amount to wasting of the precious time of the Court to now call evidence to either confirm or debunk what is in dispute.
Learned Counsel submitted further that the Appellant made heavy weather on the Electoral Forms and Certified True Copies of which were tendered as Exhibits, There is no doubt that Certified True Copies of public documents are admissible in evidence. The Tribunal rightly admitted all the electoral materials that are certified and produced before it in evidence. The Appellant however failed woefully at the trial to make use of the document through credible witnesses. None of the electoral materials that were produced before the Tribunal was tied with any evidence. The Appellant failed to call party agents who were supposed to be issued with Form EC8A. The Appellant failed to call any voter who will confirm whether his name was on the register of voters or not, no other officers known to the Electoral law who has something done with the electoral materials was frontloaded and called to give evidence relating to the materials; yet the Appellant insinuated that the Tribunal decline to allow evidence to be given on them. The question is, would the Tribunal manufacture witnesses for the Appellant? The answer is to this question is in the negative.
Learned Counsel further submitted that the Tribunal in dealing with these electoral materials was right when it held that, the electoral materials were tendered from the bar and not through their makers who could have been cross-examined. Indeed, no witness testified on them at all. The position of the Tribunal in this regard was fortified by the decision in Buhari vs. Obasanjo (2005) 18 NWLR (Part 941) 2 At 182 F-G; Awuse vs. Odili (2005) All FWLR (part 261) 248 At 321-322 Paragraphs G-A.
Learned Counsel submitted finally that the Appellant has not proven all sorts of malpractices alleged before the Tribunal by any credible evidence. The Tribunal’s findings of facts through the Appellant’s witnesses and the 1st and 2nd Respondents’ witnesses were properly evaluated and assessed. The alleged non-compliance with the Electoral Act, 2006 was never proved, therefore, the question whether they are substantial enough to affect the results of the election does not arise in the circumstances. This Court should hold that, the Appellant had failed to sustain all the grounds formulated in his Notice of Appeal and dismissed the appeal in its entirety.
Learned Counsel to the 98th and 99th Respondents formulated One (1) Issue for determination of this appeal. Learned Counsel submitted that, it is the Appellant’s contention that the judgment is against the weight of evidence. The Appellant to realize this, went into the voyage of analyzing all over the evidence of all his witnesses, but his analysis did not evaluate objectively the conclusion of same as reflected in the judgment.
Learned Counsel further submitted that, it is trite law that he who asserts must prove his assertion. See:- Yank Yan Ortsega vs. Musa Labaran (2003) FWLR (Part 179) 1212 At 1224 F-G; George vs. U.B.A. (1972) 3-4 SC 1; Odulaja Vs. Haddad (1973) 11 SC 357; Elias vs. Omobare (1982) 5 SC 25. Learned Counsel submitted further that, it is not in all cases that uncontroverted evidence which cannot satisfy the standard of proof be accepted by the Court. See:- Isola Olusegun Lawson vs. Afani Continental Coy. (Nig.) Ltd. (2002) FWLR (part 109) 1736 At 1754 Paragraphs G-H; Consolidated Breweries Plc. & Another vs. Joshua Alsowieren (2002) FWLR (Part 116) 959 At 990 Paragraphs A-E. Learned Counsel submitted further that, the trial Court in its findings was right to say that, all the Appellant’s witnesses were not credible as most of them gave accounts of what was witnessed by a third party (Party agents at the polling units). Other evidence was not supported by pleadings; so, the 98th and 99th Respondents have nothing to butt.
Learned Counsel submitted further that, it is not in doubt that all the Appellant’s witnesses curiously did not report any of the crime alleged in their pleadings and statement to the Police. If this is the case, the Police could not be found wanting in their statutory duty of maintaining law and order and being impartial. Learned Counsel submitted finally that, this Court should dismiss the appeal, because, the Appellant has failed to establish or prove any credible evidence the allegation of election malpractices, thuggery, violence or substantial non-compliance with the Electoral Act, 2006 as required by law. The findings of the lower Tribunal are amply supported by evidence before it and that, such findings ought not to be disturbed.
On a very careful perusal at the issues raised by both the Appellant and the Respondents, they are more or less the same, but differently couched. I tend to be guided by the issues as raised by the 1st and 2nd Respondents in the determination of this appeal. Issue One (1) of the 1st and 2nd Respondents’ Brief of Argument covered Issues 1, 2, 3 and 4 of the Appellant’s Brief of Argument. Also, Issue Two (2) of the 1st and 2nd Respondents’ Brief covered Issue Five (5) of the Appellant’s brief. Again, Issue Three (3) of the 1st and 2nd Respondents’ Brief covered Issues 6, 7 and 8 of the Appellant’s Brief. Again, Issues 1, 2 and 3 of the 1st and 2nd Respondents’ Brief covered the only Issue One (1) raised by the learned Counsel to 98th and 99th Respondents.
Issue 1 of the 1st and 2nd Respondents’ Brief, on whether the Appellant had by credible evidence, established the alleged acts of non-compliance with the Electoral Act, 2006, the widespread irregularities, electoral malpractices and violence and if so, whether they are enough to affect the result of the election. The Appellant in his argument to the issue maintained that, the judgment of the Tribunal is against the weight of evidence, adduced by the parties when it held that, the evidence of PW1, PW2, PW3, PW4, PW5 and PW6 was not credible but that of the 1st and 2nd Respondents’ witnesses who gave credible evidence and were unshaken in their testimonies. The Appellant maintained that, the evidence of his witnesses is direct evidence of those with first hand information of what they actually saw; and should have been believed in the absence of contrary evidence. The Tribunal’s conclusion that the witnesses could not be believed was not based on any observation of the demeanour of the witness, but rather based on the arbitrary exercise of freedom of choice of what and whom to believe and whom not to believe. This Court and the Supreme Court maintain in many cases that Judges should not just believe and disbelieve. Such belief must be sound in reasoning, logic and law. Such can only come after a proper evaluation through the dexterous use of judicial scale and not blind declaration of faith. See:- Mogaji vs. Odofin (Supra); Wolucham vs. Gudi (Supra).
The 1st and 2nd Respondents in reply to the Appellant, said, the Appellant’s witnesses gave evidence on alleged widespread malpractices from non-counting of votes, non-announcement of results, irregular endorsement of Electoral Forms, etc. The witnesses that are known to law who ought to have given credible evidence in respect of these widespread malpractices were not called by the Appellant at the hearing of the petition. These categories of people amongst others, are not polling agents of the political parties, including that of the Appellant, voters that exercise their voting rights at all polling stations where such malpractices were alleged, polling clerks, electoral officers and their ad-hoc staffers. None of these categories of people were called by the Appellant at the hearing of the petition. It follows that, the evidence of the ward supervisors who did not fall within the purview of these categories of people are hearsay and inadmissible in law. See:- Section 46(1) and 61(1) of the Electoral Act, 2006 and the case of Buhari. vs. Obasanjo (Supra).
The Tribunal itself at Pages 294 – 300 of the Record stated about the Appellant’s witnesses, thus:-
“In their evidence in chief; they said their party had agents at each polling unit and they reported to them accurately. Yet, none of these polling agents was called to testify. They are not polling agents. See:- Buhari Vs. Obasanjo (Supra). The Electoral Act, 2006 does not recognize “a Ward Supervisor”. No such person or office is mentioned. Therefore, in the light of Sections 46 (1) and 62 (1) of the Electoral Act, 2006, the evidence of such person as to what happened at the polling units is highly questionable, …. Not being a polling agent, poll clerk or presiding officer, his testimony as to non-counting of votes and non-announcement of results at polling units is hearsay. On the whole, for reasons given above, we don’t find the witness worthy of credit. We disbelieve them”.
For the purposes of clarity, this Court will set forth the provisions of Sections 46 (1) and 62 (1) of Electoral Act, 2006, Section 46 (1) of the Act provides:
“Each political party may by notice in writing addressed to the Electoral Officer of the Local Government or Area Council appoint a person (in this Act referred to as a “Polling Agent”) to attend at each polling unit in the Local Government or Area Council for which it has candidate and the notice shall set out the name and address of the polling agent and he be given to the Electoral Officer at least seven (7) days before the date fixed for the election..”
Section 62 (1) of the Act provides:
‘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 including accredited observers; and the presiding officer shall keep order and comply with the requirements of this Act at the polling station.”
This Court stated in the case of Akintunde vs. Yinka (2009) 48 WRN 57 At 61, on how Court should interprete clear and unambiguous statutes.
“The principle remains that in interpreting statutes made up of clear and. unambiguous words, the Courts ascribe to these, words their literal, and ordinary meaning. See:- N.P.A. Plc. vs. Lotus Plastics Ltd. (2008) 3 WRH 133; (2005) 12 NWLR (Part 989) 409 SC, (2005) 24 NSCQR 566 and Elabanjo vs. Dawodu (2006) 50 WRN 79; (2006) 15 NWLR (Part 1001).
A community reading of both Sections 46 (1) and 62 (1) of the Electoral Act, 2008, will show that for the purposes of political parties, only polling agents duly appointed by law will be allowed at the polling units and the candidates in person. Candidates therefore cannot in proxy at the polling station. A “Ward Supervisor” therefore appointed by the candidates to oversee the polling agents at the polling units is therefore stranger to provisions of the Electoral Act cited above. I therefore agree with the finding of the trial Tribunal on this score. I only need to add that, where a statute provides for a particular method of performing a duty regulated by the statute whether that method and no other must have to be adopted. See:- Tanko vs. The State (2009) 14 WRN 1 At 12 Ratio 13 which states thus:-
“Where a statute provides for a particular method of performing a duty regulated by the statute, the method and no other, must have to be adopted. See:- C.C.B. (Nig.) Plc. Vs. Attorney General (Anambra State) (1992) 8 NWLR (Part 261) 528.”
I therefore agree with the trial Tribunal’s decision that the evidence of PW1, PW2, PW3, PW4, PW5 and PW6 – the ward supervisor, are not credible as they are persons not known to law to make reports of events and happenings at the various polling stations on the day of the election. The Respondents’ Issue One (1) which covered the Appellant’s Issues 1, 2, 3 and 4 is resolved in favour of the Respondents.
The 2nd Issue in the 1st and 2nd Respondents’ Brief which covered Issues 5, 6 and 7 of the Appellant’s Brief as to whether the Election Petition Tribunal sitting in Osun State had properly evaluated the evidence of both the Appellant and the Respondents at the trial before dismissing the petition.
The Appellant argued that it was not only the case of proper evaluation of evidence alone by the Tribunal, but that of a denial of constitutional right to fair hearing. The Appellant at pages 172 -173 of the record of proceedings wherein pursuant to a motion the Tribunal granted the Appellant an Order to conduct an inspection of all INEC materials used for the election for the purpose of maintaining his petition. The said inspection was conducted to conclusion by the Appellant, and it was necessary to give a report of the said inspection order to sustain the allegations made by the Appellant to the petition. Therefore, the application to call additional witness became necessary, consequent upon evidence discovered; pursuant to orders of inspection granted by the Tribunal after the petition had been instituted; and to be fairly heard the Tribunal ought to have allowed the Appellant to call the said witness and adduce the said evidence. The Tribunal refused the application on the ground that, there was no extreme circumstances to warrant granting the application and that the deposition sought to be brought in was not filed with the petition. The Tribunal also held that Section 159 of the Electoral Act, 2006, deals with polling documents, but the polling documents brought before the Tribunal did not fall under Section 159 (2) of the Act. This Court examined the provision of Section 159(1)(2) of the Electoral Act, 2006, which the trial Tribunal relied upon to reject the result of the inspection materials conducted by the Appellant at INEC.
Section 159 (1) provides:-
“An order for an inspection of a polling document or an inspection of a document or any other packet in the custody of the Chief National Electoral Commissioner, or any other officer of the commission may be made by the Election Tribunal or the Court if it is satisfied that the order required is for the purpose of instituting or maintaining an election petition.”
Section 159 (2) provides:-
“A document other than a document referred to in sub-section (1) of this section relating to an election and which is retained by the Chief National Electoral Commissioner or any other officer of the commission in accordance with this section shall be Open for inspection on order made by the Election Tribunal or a Court in the exercise of its powers to compel production of documents in legal proceedings, but shall not otherwise be open for inspection.”
The only reason given by the trial Tribunal for refusing to look at the report of the inspection of INEC documents by the Appellant is that, Section 159(1) of the Electoral Act, 2006, deals with polling documents; but the polling documents brought before it did not fall under Section 159(2) of the Act. This Court has examined the provisions of Section 159(2) of the Act as provided above. This Court is in agreement with the submission made by the Appellant in this respect that Section 159(2) of the Act does not limit the type of documents mentioned in Section 159(1) of the Act. The interpretation placed by the Tribunal on the section cannot therefore be correct. This Court has made a pronouncement on the essence of the provisions of Section 159 (1) of the Electoral Act, 2006 in the case of Aregbesola vs. Orinlola (20091 14 NWLR (Part 1162) 429 At 448 Ratia 16, the Court held as follows:-
“The provision of Section 159 (1) of the Electoral Act, 2006, enables a Petitioner to inspect documents in the custody of the Independent National Electoral Commission for the purpose of instituting or maintaining an election petition. The intention of the legislative is that evidence obtained upon the orders for inspection/scanning will support the petition. In the instant case, dismissing the application to tender the result of the scanning carried out by the Appellants shut out the result of the scanning and inspections, which the same trial Tribunal earlier ordered and that was wrong.”
The decision cited above is in all fours with the present appeal. The same Tribunal ordered for the inspection of the electoral materials as sought for on an application by the Appellant before it. The same Tribunal refused to look at the result of the inspection it earlier made an order upon. It no gain saying that in an election petition, there is the need to do greater substantial justice. In the same case of Aregbesola vs. Oyinlola (Supra) Ratio 20, this Court held:-
“The need to do substantial justice is greater in an election petition case than in any other case. This is so; because, the Court is not only concerned with the rights of the parties inter set but also the larger interests and the rights of the people in the various Local Government Areas who had exercised their franchise on election day.”
It is also clear from the record that, the refusal of the Tribunal to allow the Appellant call additional witness sequel to its own order allowing him to conduct inspection will work counter to the rules of natural justice. The Supreme Court stated in the case of Amadi vs. N.N.P.C (2000) 10 NWLR (Part 674) 76 at 101.
‘That regulations of the rights of access to Court abound in the rules of rules of procedure and are legitimate. However, where the particular requirement constitutes an infringement of the exercise of judicial power by the Courts or abridges the citizen’s right of access to Court, it will be inconsistent with the constitution.”
This Court, per Ogunwumiju (JCA), added his voice to this subject when it said:-
“The claimant’s constitutional right to fair hearing must not be sacrificed on the altar of strict adherence to the rules of Court. The rules of Court should not be interpreted to mean that the names and statement of all witnesses must be loaded upfront and that there is no room for adjustment during the course of trial.”
I do not have anything more useful to add upon what the eloquent jurist stated above. The Supreme Court in the case of U.T.C. vs. Pamotei (1989) 2 NWLR (Part 103) 244 at 296 stated:-
“Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The Rules are therefore aids to the Court and not masters of the Court. For Courts to read Rules in the absolute without recourse to the justice of the cause, to my mind, will be making the Courts slavish to the Rules. This certainly is not the reason of the Rules of Court”.
Another Issue is the refusal of the trial Tribunal to allow the Appellant to put the Resident Electoral Commissioner to the Witness box to testify while he was on subpoena ad testificandum et duces tacum. Before considering the said action of the Tribunal, it is pertinent to Consider what a subpoena is.
Subpoena:-
Order 41 Rule 27 of the Federal High Court (Civil Procedure) Rules which is applicable to election petiton by virtue of Paragraph 50 of the First Schedule of the Electoral Act, 2006, stipulates:-
“Any party in any action, may be subpoena ad testificandum or duces tecum require the alterance of any Witness before an officer of the Court or other person appointed to take the examination, for the purpose of using his evidence upon any proceeding in the cause or matter in like manner as such witness would be bound to attend and be examined at the hearing or trial and any party or Witness having made an affidavit to be used or which shall be used on any proceeding in the action shall be bound on being served with the subpoena to attend before the officer or person for cross-examination.”
Subpoena is an order or writ of Court used for securing a witness’s attendance in Court of trial for the purpose of testifying and/or produce some documents on behalf of the party who applied for the issue of such subpoena, where the order is to secure the attendance of a witness for the purpose of testifying in Court; it is simply called subpoena ad testificandum where the order commands the witness to produce certain documents at trial of an action. It is also called subpoena duces tecum. If it is expected that, apart from producing the documents, the person is also to give evidence, the subpoena would be a subpoena ad testificandum et duces tecum.
From the record, the Appellant had served the last kind of subpoena on the Resident Electoral. Commissioner, who indeed appeared in the Tribunal. The trial Tribunal on its own from the record suo motu excluded the Resident Electoral Commissioner from entering the witness box to testify and be cross-examined. The Tribunal at Page.194 of the record refused the application. The refusal of the Tribunal to allow the Resident Electoral Commissioner or his representative to be sworn, to give evidence was a great error on its part since the subpoena for which he was commanded to appear in Court from the record was subpoena ad testificandum et duces tecum. This act of the Tribunal only shielded the witness from giving such evidence which evidence was required by the Appellant in proof of his own case before the Tribunal. The Tribunal by its action has not ensured justice done to all the parties to a cause or matter.
See:- Military Governor of Imo State vs. Agbara (1977) 1 NWLR (part 481) 293; Atefiove vs. Aveni (1998) 6 NWLR (part 532) 129.
Also, although the trial Tribunal was right on the electoral materials produced by the Resident Electoral Commissioner, pursuant to a subpoena duces tecum et ad testificandum and admitted from the bar with the consent of the parties could not be cross-examined upon, but it denied the Appellant a lawful right to have the Resident Electoral Commissioner cross-examined on them. The most crucial point which the documents represent according to the Appellant is that, there was not valid election in various wards challenged by the Appellant.
On the whole therefore, the Court is duty bound to evaluate the whole evidence adduced by the parties before it in order to come to the conclusion that the case before it has been proved. It is not for the Judge to pick and choose which set of witnesses to believe and which to reject, but must evaluate the totality of evidence adduced before it. The Judge cannot simply accredit one set of witnesses and discredit the other without cogent action explaining the discrepancy in the testimonies by the witnesses. See:- Onubogu vs. The State (1974) 9 SC 1; Ateji vs. The State (1976) 2 SC 79; Asuquo Williams vs. The State (1975) 9 -11 SC 139; Eze Ibeh vs. The State (1997) 1 SCNJ 256 At 271; Boy Muka vs. The State (1976) 9 & 10 SC. The trial Tribunal denied itself the right to have balanced evidence from either side of the parties in this appeal, which would have assisted it in arriving at a fair decision. Issue No. Two (2) is resolved in favour of the Appellant.
On Issue No. Three (3), whether there is substantial compliance with the Electoral Act, 2006 in the conduct of the election of 14th April, 2007 in Ife East Local Government State Constituency which also covers Issue No. Eight (8) of the Appellant’s Brief of Argument.
The Electoral Act, 2006 in Section 146 (1) stipulates that:
“An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.”
Non-compliance with the Electoral Act in relation to an election may simply be defined as the conduct of an election contrary to the prescribed mode under the Act; or the rules and regulations made there-under. Non-compliance may result not only from the defence of, but also from the nature of a complaint, and the question in every case is, whether or not in view of the findings the constituency as such was allowed to elect its representative. See:- Nwole vs. Iwuagwu (2004) 15 NWLR (part 895) 61; Swem vs. Dzunqwe (1966) 1 SCNLR 111; (1966) NMLR 297; Basheer vs. Same (1992) 4 NWLR (Part 236) 491; Angbazo vs. Ebye (1993) 1 NWLR (part 268) 113; Na’Bature vs. Mahuta (1992) 9 NWLR (Part 263) 85; Ojukwu vs. Onwundiwe (1984) 1 SCNLR 247 at 305 – 306; Chibok vs. Bello (1993) 1 NWLR (Part 267) 109.
The big task before the Election Tribunal is to ask itself, whether the person elected would still have won or whether the Petitioner would have won. This task can only be effectively discharged where the trial Tribunal had created a free atmosphere, allowing the parties in contest to prove their respective claims before it. The situation in the present appeal before us, as resolved by this Court in Issue No. Two (2) is that, the Petitioner was shut out by the Tribunal from being heard in the proof of his petition before it, based on same technicalities at the expense of real justice and fairness. The Tribunal was left with only the evidence of the 1st Respondent and other Respondents. The Tribunal denied itself a balance evidence from either side to arrive at a fair decision. In this regard therefore, the Tribunal was not in a position to say whether there was substantial compliance with the Electoral Act, 2006 or not.
In Chibok vs. Bello (Supra), Oquntade, JCA, now JSC, at Page 116 of the report noted that:-
“In other words, the Election Tribunal asks itself whether the person elected would still have won or whether the Petitioner would have won. This is arrived at by a mathematical process of deducting the nullified votes from the overall figures scored at the election by the candidate. If following that exercise, it is determined that, the person declared the winner would have lost, the conclusion to be arrived at is that, the candidate elected was not duly elected for the whole of the constituency affected. The Tribunal cannot order a bye-election for polling stations. It can only use the results from the polling stations which are being cancelled or nullified for determination whether or not a candidate was duly elected.”
The rejection of the documentary evidence to wit: INEC documents/materials and the refusal by the Tribunal to allow the Resident Electoral Commissioner on a subpoena to enter the witness box and be cross-examined on thereon. INEC documents/materials denied the Petitioner the use of vital documents to support his case. This appeal is therefore allowed.
This Court therefore by virtue of the provisions of Order 4 Rule 9 of the Court of Appeal Rules, 2007, make an order for a new trial. In Okomadu vs. Akinbode (2006) 9 NWLR (Part 985) 338, the Supreme Court stated the instance when an appellate Court will not make an order of retrial:-
(1) Where a retrial will result in injustice or a miscarriage of justice;
(2) Where it is sought as a matter of course, routine or fun and not based on valid procedural reasons;
(3) If there is no special circumstances warranting retrial.
There are some, but not all the instances when the appellate Court will not order a retrial, but will order retrial when a Judge misdirect himself as to the nature of a party’s case or upon wrongful admission or rejection of material evidence, and/or, to refuse a retrial would occasion a greater injustice than the grant of it.
I am satisfied that substantial justice would be achieved by a retrial where all the parties are given the opportunity to present before the Court documentary evidence to maintain/or support his petition.
In the light of all that has been said in this judgment, the President of Court of Appeal, in the exercise of his constitutional powers, is to constitute a fresh Election Petition Tribunal, for the purposes of hearing this petition afresh.
Appeal succeeds. No cost is awarded.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the benefit of reading in draft the judgment of my learned brother Sidi Dauda Bage, JCA just delivered. I agree with him that there is merit in this appeal and it should be allowed.
Section 36(1) of the 1999 Constitution guarantees the right to fair hearing to all citizens. It is the bedrock of our judicial system. There is thus a constitutional duty on courts and tribunals to afford all parties that appeal before them equal opportunity to present their respective cases. See ALSTHOM VS. SARAKI (2005) 3 NWLR (911) 208; SALAU VS. EGEIBON (1994) 6 NWLR (348); DIDE VS. SELEKETIMIBI (2008) 15 NWLR (1110) 221; NDUKAUBA VS. KOLOMO (2005) 4 NWLR (915) 411.
In election petition proceedings, which are sui generis, it is perhaps even more vital that no party should be denied the opportunity of placing before the court all the evidence that would assist him in proving his case. See AREGBESOLA VS. OYINLOLA (2009) 14 NWLR (1162) 429 at 478 G. He must not be shut out by undue reliance on technicalities. See NWOBODO VS. ONOH. (1984) 19 SC NLR 1; DIDE VS. SELEKETIMIBI (supra), LASUN VS. AWOYEMI. (2009) 16 NWLR (1168) 513.
I agree with the view expressed by my learned brother in the lead judgment that the refusal of the Lower Tribunal to allow the appellant to call additional witnesses and tender the inspection report after it had made an order allowing him to conduct an inspection of the electoral materials and its refusal to allow subpoenaed witnesses to testify amounted to a breach of his right to fair hearing.
The effect of a breach of the right to fair hearing is to render the hearing liable to be set aside or declared invalid by the court, See NDUKAUBA VS. KOlOMO [supra) at 438 E-F; SALAU VS. EGEIBON (Supra) A.G. RIVERS STATE VS. UDE (2006) 17 NWLR 1008) 436; ABEGBESOLA VS. OYINLOLA (supra).
For these and the more detailed reasons contained in the lead judgment, I also allow this appeal. I abide by the consequential orders made including the order on court.
Appearances
Ajibola Basiru, Esquire;
Mutiu Olaoye, Esq.For Appellant
AND
A.A. Abimbola for the 1st and 2nd Respondents
A.O. Adeniji, DCL, Ministry of Justice, Osun State, for the 98th and 99th RespondentsFor Respondent
