ADEREMI OLATUNDE AYELERU v. MUKAILA ADEGBOLA & 120 OTHERS
(2010)LCN/3902(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of June, 2010
CA/I/EPT/HA/86/08
RATIO
INTERPRETATION OF STATUTE: ESSENCE OF THE PROVISIONS OF SECTION 159(1) OF THE ELECTORAL ACT 2006
Of the provisions of section 159(1) of the Electoral Act 2006 it was stated in AREGBESOLA v. OYINLOLA (2009) 14 NWLR (Pt.1162) 429 at 448 that, “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 Legislature 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 Tribunal earlier ordered and that was wrong.” PER STANLEY SHENKO ALAGOA, J.C.A.
WHETHER THE COURT HAS A DUTY TO AFFORD THE PARTIES FULL OPPORTUNITY TO PRESENT THEIR CASES
In the adjudication of any matter, parties should be given every and full opportunity to present their cases and in so doing to call witnesses that they consider vital to the prosecution of their cases. See AUDU V. GUTA (2004) 4 NWLR (PART 864) 463 at 882. PER STANLEY SHENKO ALAGOA, J.C.A.
DUTY OF THE COURT TO DO SUBSTANTIAL JUSTICE IN ELECTION PETITION
In AREGBESOLA V. OYINLOLA (supra) page 429 ratio 19, it was held that, ‘The need to do substantial justice is greater in election petition cases. This is so because the court is not only concerned with the rights of the parties inter se but also the larger interests and rights of the people in various local government areas who had exercised their franchise on Election Day.” In ABUBAKAR V. YAR’ADUA (2008) 11 SC (PART 11) 77 at 122, the Supreme Court affirmed the decision of the Court of Appeal by which leave was granted to the Applicants to call 213 additional witnesses. This was in compliance with section 36(1) of the 1999 Constitution which guarantees the right to fair hearing. The position of the law is that no matter how well a case has been conducted a breach of the right to fair hearing vitiates the entire proceedings rendering same null and void and of no effect. See ADIGUN V. ATT. GENERAL OF OYO STATE (1997) 1 NWLR (PART 531 678. I do not think it is necessary to go on further to consider further submissions of Counsel on this appeal as such would amount to an academic exercise. PER STANLEY SHENKO ALAGOA, J.C.A.
EFFECT OF A COURT PROCEEDING CONDUCTED WITHOUT OBSERVING THE PRINCIPLES OF NATURAL JUSTICE
The law is settled that, any proceeding conducted without observing the principles of natural justice is null and void and liable to be set aside no matter how well conducted. PER SIDI DAUDA BAGE, J.C.A
JUSTICES
STANLEY SHENKO ALAGOA 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
ADEREMI OLATUNDE AYELERU Appellant(s)
AND
MUKAILA ADEGBOLA & 120 OTHERS Respondent(s)
STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment) This is an appeal by the Appellant who was the Petitioner in the Governorship and Legislative Houses Election Petition Tribunal, Osun State Holden at Osogbo in Petition No. HA/EPT/OS/10/2007 against the judgment of the said Tribunal Coram: Honourable Justices T. D. Naron (Chairman), Saadu Mohammed (Member), J. N. Akpughunum (Member), A. T. Badamosi (Member) and J. E. Ekanem (Member) delivered on the 27th June 2008 wherein the petition was dismissed by the Honourable Tribunal as lacking in merit.
It is pertinent to state at the outset and in a nutshell the facts that have led to the present appeal. Elections were held into the Osun State House of Assembly on the 14th April 2007 and the present Appellant Aderemi Olatunde Ayeleru contested the election on the platform of the Action Congress for Odo Otin Constituency.
The 1st Respondent Mukaila Adegbola Oyekunle was sponsored for the said election to the Odo Otin Constituency seat to the Osun State House of Assembly by the 2nd Respondent, the Peoples Democratic Party (PDP) being one of the Registered political parties in Nigeria. At the end of the election the 3rd Respondent – The Independent National Electoral Commission (INEC) which conducted the election declared the 1st Respondent winner and returned him as having been duly elected to the said Osun State House of Assembly representing the Odo Otin Constituency.
Dissatisfied with this declaration, the Petitioner filed a petition in which he claimed the following reliefs as per paragraph 42 of the Petition as follows –
42.1 That the election to the Osun State House of Assembly for Odo Otin Constituency held on the 14th April 2007 is invalid by reason of non-compliance with the provisions of the Electoral Act 2006 and that the said election was vitiated by substantial 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.
42.2 “That the Osun State House of Assembly Election for Odo Otin Constituency held on the 14th April 2007 is nullified and the 4th Respondent is to conduct fresh elections for the Osun State House of Assembly Elections for Odo Otin Constituency.
The Petitioner gave as grounds and facts upon which the petition relies, the following –
Paragraph 12.1 of the Petition – The House of Assembly election for Odo Otin Constituency in the Osun State House of Assembly in the said election are not correct (are untrue in every respect) and thus invalid by reason of non-compliance with the Electoral Act and or its principles which said non-compliance substantially affected the result at the said State House of Assembly election in Osun State.
Paragraph 12.2 – Your Petitioners claim that the House of Assembly election for Odo Otin Constituency in the Osun State House of Assembly in the said election 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 validity of the said elections that none of the candidates in the said elections can be validly returned as having validly won in the House of Assembly election for Odo Otin Constituency in the Osun State House of Assembly in the said election.
Paragraph 12.3 – The Conduct of the election is marred by widespread irregularities and malpractices resulting in substantial non-compliance with the mandatory provisions of the Electoral Act 2006 in particular sections 28, 63(1)-(2), 64(1)-(4), 66 and 75.
Paragraph 12.4 – There was widespread disenfranchisement of so many voters and this substantially affected the results of the election thus vitiating the said election.
The Respondents filed their respective replies to the Petition. After the exchange of pleadings and filing of answers to pre-hearing questions, trial commenced and upon the adoption of final written addresses by the Counsel to the parties, the Tribunal delivered its judgment on the 27th June 2008 giving rise to this appeal by the Appellant. The Appellant filed a Notice of Appeal on the 17th July 2008 which is contained at pages 483-497 of the Record of Appeal. This Notice of Appeal was by order of this Court amended and an Amended Notice of Appeal filed on the 3rd September 2008 was deemed properly filed and served on the Respondents on the 30th September 2009. The said Amended Notice of Appeal consists of twelve Grounds of Appeal itemized hereunder as follows-
Ground 1: Error in Law
The judgment of the Tribunal is against the weight of evidence adduced at the hearing of the petition which rendered that judgment perverse.
GROUND 2: Error of Law
The Tribunal erred in law when it held that the evidence of the Petitioner’s witnesses are hearsay or improbable evidence or not credible and attracted no probative value.
GROUND 3: Error in Law
The Tribunal erred in law when it held evidence of what happened at various polling units ought to have come from the persons who were entitled to be legally present at the polling unit.
GROUND 4:
The Tribunal erred in law when it held that facts averred in the testimony of the Petitioner’s witnesses and document admitted in Exhibits are not pleaded and go to no issue.
Ground 5: Error in Law
The Tribunal erred in law when it held that issues of the defects in the electoral materials tendered as exhibits as analysed by the petition in the written address were not pleaded and go to no issue.
Ground 6: Error in Law
The Tribunal erred in law when it held that the documents tendered from the bar as exhibit from the bar are unreliable because they were tendered from the bar and not through the makers.
Ground 7: Error of Law
The Tribunal erred in law when it held that the evidence of respondent’s witnesses were unshaken under cross-examination which rather left the impression that they are witnesses of truth.
Ground 8: Error in Law
The Tribunal, erred in law when it ruled on the 18th day of January, 2008 by relying on the case of Alhaja Ayo Omidiran v. Etteh Patricia Olubunmi & ors in petition No. NA/EPT/OS/7/07 and breach the Appellant’s right to fair hearing by dismissing his 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 Sec. 159 of the Electoral Act 2006 and which ruling affected the judgment of the Tribunal delivered on the 27th day of June 2008.
Ground 9: Error in Law
The Tribunal erred in law when it ruled on the 18 day of January, 2008 and relied on the case of the case of Alhaja Ayo Omidiran v. Etteh Patricia Olubunmi & Ors in petition No. NA/EPT/OS/7/07 by disregarding the provision of Section 159 of Electoral Act, 2006 in dismissing the Appellant’s application to enable him bring additional witness and tender inspection report which application as necessitated by the inspection order granted by the Tribunal and which ruling affected the judgment of the Tribunal delivered on the 27th day of January, 2008.
Ground 10: Error in Law
The Tribunal erred in law when it ruled on the 18 day of January, 2008 and relied on the case of the case of Alhaja Ayo Omidiran v. Etteh Patricial Olubunmi & Ors in petition No. NA/EPT/OS/7/07 by dismissing the Appellant’s application to enable him bring additional witness and tender inspection report by holding that the Petitioner did not indicate in the answer to the 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 27th day of June 2008.
Ground 11: Error in Law
The Tribunal erred in law in its ruling of the 18th day of January, 2008 by relying on the case of the case of Alhaja Ayo Omidiran v. Etteh Patricial Olubunmi & Ors in petition No. NA/EPT/OS/7/07 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 27th day of June 2008.
Ground 12
The decision of the Justice Naron led panel of the Governorship and Legislative House Election Petition Tribunal, Osun State is vitiated by bias or real likelihood of biese-against (sic) the Petitioner/Appellant and his party the Action Congress and biased in favour of the respondent and his party the Peoples Democratic Party.
RELIEFS SOUGHT FROM THE COURT OF APPEAL
1. An order allowing the appeal of the Appellant and setting aside the Judgment of the Tribunal dismissing the Petitioners’ petition.
2. An order that the election to the Osun State House of Assembly election for Odo-Otin Constituency held on April
14, 2007 is invalid by reason of non-compliance with the provisions of the Electoral Act, 2006 and that the, said election was vitiated by substantial 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 won the said election.
3. An order that the Osun State House of Assembly election for Odo-Otin State Constituency held on the 14th April is nullified and the 3rd Respondent is to conduct fresh elections for the Osun State House of Assembly elections for Odo Otin constituency.
Or in the alternative
4. An order allowing the appeal of the Appellant and setting aside the Judgment of the Tribunal dismissing the Petitioner’s petition.
5. An order ordering a re-trial of the petition for having occasioned a miscarriage of justice.
6. An order, that the Petition be heard and determined by another Panel of Judges.
From these grounds of appeal the Appellant in paragraphs 3.1-3.5 at pages 5 & 6 of his Brief of Argument dated the 2nd October 2009 and filed on the 8th October 2009 formulated the following five issues for determination by this court viz –
3.1 – Whether by the totality of evidence adduced during the trial the Tribunal was right in its evaluation of the evidence placed before it and adequately considered it before arriving at its judgment.
(Grounds 1, 2 and 7 of the Notice of Appeal)
3.2 Whether the Tribunal was right in its Ruling of the 18th day of January 2008 when it dismissed the Petitioner/Appellant’s application for additional witnesses and tender inspection report which application was necessitated by an inspection order granted by the Tribunal on the 3rd July 2007 pursuant to section 159 of the Electoral Act 2006.
(Grounds 8, 9, 10 and 11 of the Notice of appeal)
3.3 – Whether the Tribunal was right when it held that facts averred in the testimony of the Petitioner/Appellant’s witnesses and some of the electoral tendered were not pleaded and therefore went to no issue.
(Grounds 4 and 5 pf the Notice of appeal)
3.4 – Whether evidence of what transpired at a polling unit can only be given by polling agents or any other person authorized by the provisions of the Electoral Act 2006 to be at polling unit and the testimonies of persons not authorized by the stated provisions of the Electoral Act is hearsay evidence. (Ground 3 of the Notice of appeal)
4. Whether only certified true copies of a Public document that would be tendered from the bar. (Ground 6 of the Notice of Appeal).
5. Whether evidence of what transpired at various polling units ought to have come from the polling agents, and other persons who are lawfully in the unit.
6. Whether in the circumstances of this matter i.e. the revelation in the News Magazine, Volume 3 No. 1 of July 14, 2008 the Judgment delivered by Justice Naron led Tribunal on the 27th day of June 2008 is not vitiated by bias or likelihood of bias.”
The 3rd – 110th Respondents filed no brief of argument whilst on the 17th February 2010 the Appellant withdrew against the 111st – 120th Respondents.
This appeal came up for hearing before us on the 20th April, 2010. Chief Yomi Alliu appeared as Counsel for the 1st & 2nd Respondents with him were Thelma Otaigbe (Miss) and A. Makinde. Chief Alliu drew the attention of this Court to the Notice of preliminary objection filed by the 1st & 2nd Respondents which is incorporated at pages 5-9 of the 1st & 2nd Respondents. Brief of Argument deemed filed on the 17th February 2010. He adopted and relied on the said Notice of preliminary objection and urged us to dismiss grounds 8, 9, 10
3.5 – Whether documents admitted as exhibits become irrelevant and unreliable because they were tendered from the bar.
(Ground 6 of the Notice of Appeal)
The 1st and 2nd Respondents in the Brief of Argument dated the 27th January 2010 and filed same day and deemed filed and served on the 17th February 2010 distilled the following six issues for determination of this Court in paragraph 4.01 at pages 9 & 10 of their said brief –
“1. Whether the Tribunal properly evaluated the evidence led by the parties or did not evaluate at all before arriving at their judgment. (Grounds 1, 2 & 7 of the Notice of Appeal.)
2. Whether the Tribunal was right in its Ruling of the 18th of January 2008 when it dismissed the
Petitioner/Appellant’s application for additional witnesses and tender inspection report which application was necessitated by an inspection order granted by the Tribunal on the 3rd day of July 2007 pursuant to section 159 of the Electoral Act 2006. (Grounds 8, 9, 10 and 11 of the Notice of Appeal).
3. Whether or not parties are bound by their pleadings in civil matters.
(Grounds 4 and 5 of the Notice of Appeal) and 11 of the Amended Notice of Appeal. Mr. Kolapo Alimi, Counsel for the Appellant submitted that the objection raised by Chief Alliu is misconceived in law and posited that the purport of the grounds of the objection of the 1st & 2nd Respondents is that grounds 8, 9, 10 and 11 of the Amended Notice of Appeal are incompetent being decisions in an interlocutory ruling upon which the Appellants have no right of appeal. This position he said is misconceived because the right of appeal is a constitutional matter which cannot be taken away. Counsel referred to section 246 of the 1999 Constitution of the Federal Republic of Nigeria which he said has been given judicial interpretation in the case of ORJI V. UGOCHUKWU (2009) 14 NWLR PART 1161 page 207 esp. page 272 paragraphs A-C and also in OSUNBOR V. OSHIOMOLE (2007) 18 NWLR PART 1065 page 32 at page 40 paragraphs D-H. Mr. Alimi submitted that all the authorities relied upon by Counsel for the 1st & 2nd Respondents Chief Yomi Alliu should be discountenanced and urged this Court to discountenance the said objection against grounds 8, 9, 10 and 11 of the Amended Notice of Appeal. Immediately thereafter Mr. Alimi adopted and relied on the Appellant’s brief of argument already earlier referred to as dated 2nd October, 2009 and filed same day and urged us to allow the appeal; Appellant did not file a reply Brief he said. On Issue 3, Mr. Alimi referred to LASUN V. AWOYEMI (2009) 16 NWLR (PART 1158) page 513 at 553-554 paragraphs H-B and urged this Court to allow the appeal.
Chief Yomi Alliu, Counsel for the 1st & 2nd Respondents adopted and relied on the 1st & 2nd Respondents’ brief of Argument already referred to earlier as dated 27th January, 2010 and filed same day but deemed properly filed on the 17th February, 2010 and urged this Court to dismiss the appeal.
A necessary first step in the determination of this appeal is to consider the preliminary objection raised in the Brief of Argument of the 1st & 2nd Respondents. This objection is as to the competence of grounds 8, 9, 10 and 11 of the notice of appeal. The grounds of the objection are that:
(a) Grounds 8, 9, 10 and 11 of the Notice of Appeal are incompetent being decisions on interlocutory rulings of the Tribunal against which the Appellant has no right of appeal.
(b) The Court lacks jurisdiction to entertain the said grounds 8, 9, 10 & 11 of the Notice of Appeal.
Before delving into arguments on the objection it is necessary to spell out the said grounds 8, 9, 10 and 11 of the Amended Notice of Appeal. They are as follows –
GROUND 8: Error in law – The Tribunal erred in law when it ruled on the 18th day of January, 2008 by relying on the case of the case of ALHAJA AYO OMIDIRAN V ETTEH PATRICIA OLUBUNMI & ORS in Petition No. NA/EPT/OS/7/07 and breached the Appellant’s right to fair hearing by dismissing his 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 and which ruling affected the judgment of the Tribunal delivered on the 27th June 2008.
GROUND 9: Error in law –
The Tribunal erred in law when it ruled on the 18th day of January 2008 and relied on the case of ALHAJA AYO OMODIRAN V. ETTEH PATRICIA OLUBUNMI & ORS in Petition No. NA/EPT/OS/7/07 by disregarding the provision of section 159 of the Electoral Act 2006 in dismissing the Appellant’s application to enable him bring additional witness 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 27th day of January 2008.
GROUND 10: Error in law –
The Tribunal erred in law when it ruled on the 18th January, 2008 and relied on the case of ALHAJA AYO OMIDIRAN V. ETTEH PATRICIA OLUBUNMI & ORS in Petition No. NA/EPT/OS/7/07 by dismissing the Appellant’s application to enable him bring additional witnesses and tender inspection report by holding that the Petitioner did not indicate in the answer to the pre-hearing information answer sheet (Form TF 008) that the application will be brought and which ruling affected the judgment of the Tribunal on the 27th day of June 2008.
GROUND 11: Error in Law –
The Tribunal erred in law in its ruling of the 18th day of January, 2008 by relying on the case of ALHAJA AYO OMIDIRAN V. ETTEH PATRICIA OLUBUNMI & CO. in Petition No. NA/EPT/OS/7/07 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 27th June 2008.
These grounds (8, 9, 10 & 11) sought to be dismissed by the 1st & 2nd Respondents are with respect to the motion on Notice dated 26th November, 2007 and filed on the 27 November 2007 (page 314 of the Record of appeal) for –
1. Leave and order of this honourable Tribunal permitting the Petitioner to bring this application outside pre-hearing session.
2. Leave and order of this Honourable Tribunal permitting the Petitioner to call Adeola Olayiwola as additional witness and to file written deposition to the said Adeola Olayiwola.
3. Leave and order of this honourable Tribunal permitting the Petitioner to file the report of Adeola Olayiwola.
The 1st & 2nd Respondents opposed the application to call additional witness. The Tribunal dismissed the application of the Petitioner/Applicant in its ruling on the 18th January 2008.
The Contention of the 1st & 2nd Respondents is that this ruling of the Tribunal is an Interlocutory ruling against which the Petition/Appellant has no right of Appeal. However section 246(1)(b)(i) of the Constitution of the Federal Republic of Nigeria 1999 provides as follows,
“An appeal to the Court of Appeal shall lie as of right from decisions of the National Assembly Election Tribunal and Governorship and Legislative Houses Election Tribunal on any question as to whether 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.
(Underlining mine for emphasis).
This provision is in no way ambiguous. The preliminary objection therefore lacks merit and is accordingly dismissed. I shall now proceed to deal with the appeal proper.
On Issue 1 which covers Grounds 1, 2 and 7 of the Notice of Appeal, Appellant submitted that evaluation of the evidence by a trial court is of utmost importance in the adjudication process. Reference was made to OSOZUWA V. ISIBOR (2004) FWLR (PART 57) 366 SC and that in the instant case the Tribunal’s judgment is against the weight of evidence adduced before it at the trial of the petition. Appellant submitted that although the Petitioner called witnesses that gave credible evidence and tendered documentary evidence in proof of the allegations made in the petition, the Tribunal held that it- found the evidence unreliable and dismissed the Appellant’s petition. Reference was made by the Petitioner/Appellant of the evidence of PW1 Amusa Kamali Ward Supervisor for the Action Congress in Ward 5 in Odo Otin Local Government whose evidence was that on the day of the election, thugs led by one S. O. Idowu invaded polling units in the Ward wielding guns, machetes and some other weapons and also shot into the air and forcefully stuffed ballot boxes with already thumb printed ballot papers in favour of PDP in seven out of the eight polling units in the Ward; that polling agents of the Petitioner/Appellant and agents of other parties and voters were scared away by the acts of intimidation, thuggery and violence carried out by the aforesaid persons.
Voting was completely disrupted or irregularly conducted in PW4’s evidence is that on the day of the election some armed thugs led by Bamidele Adeniyi (a.k.a. Zangaruwa), Dr. R. A. Bello and Adeniyi Bamidele known leaders of the PDP invaded the polling units in the Ward; they shot into the air and forcefully snatched and carried away ballot boxes. The violence and intimidation was carried out by known members of the 3rd Respondent and their armed thugs. Voting was completely disrupted in the polling units and agents of the 3rd Petitioner and agents of other parties were scared away by the violence. Elections were irregularly conducted as well as totally disrupted in all the polling units. Votes were not conducted and were not announced at any of the polling units.
PW5 testified that on the day of the elections armed thugs led by Kola Ojo, Alhaji Folorunso Arekoju and Alhaji Oloyede, all known PDP members invaded the polling units in the Ward; they shot into the air to scare away the voters and electoral officers and forcefully snatched the ballot papers and ballot boxes and carried them away. Voting was completely disrupted, polling agents of the 3rd Petitioner and those of other political parties were scared away by the violence. The thugs beat him up when he tried to resist them. Some of the 3rd Petitioner’s agents who also tried to resist the thugs were arrested by security agents on the instructions of Alhaji Shuaib out of 8 polling units in the Ward and votes were not counted in any of the polling units in the Ward. Appellant submitted that, the evidence of PW1 is credible and worthy of belief.
Reliance was placed on OMOZEGHIAN v. ADJARHO (2006) 4 NWLR (PART 969) page 33 at 61 A-B.
PW2’s evidence was that on the day of the elections some armed thugs, came in a blue 18 seater bus and invaded the polling units. They shot into the air to scare away the voters and intimidate the electoral officers and forcefully snatched the ballot boxes and carried them away. Voting was completely disrupted, polling agents of the 3rd Petitioner as well as other political parties and the voters were scared away by the acts of the thugs. All the ballot boxes were carried away and all voters scared away. Voting was totally disrupted and irregularly conducted; votes were not counted and results not announced in any of the polling units.
P.W.3.testified that on the day of the election armed thugs led by PDP leaders Kunle Alao, Bisi Jinadu and Shuaib Oyedokun invaded the polling units. They shot into the air to scare away the voters and intimidate electoral officers; they snatched ballot boxes and ballot papers and carried them away. Voting was disrupted at all the polling units; votes were not counted and results not announced.
Oyedokun. Voting was disrupted at all the polling units; votes were not counted and results not announced.
PW6 testified that on the day of the elections at polling unit 8 ballot papers already thumb printed for the PDP were stuffed into the ballot boxes after attempts to snatch them proved abortive and the polling agent of the Petitioner was threatened and compelled to participate in the counting and forced to sign the result sheet.
At polling unit 2 and polling unit Oyedele 1, some armed thugs led by Alhaji Shuaib Oyedokun, a PDP leader came in two 18 seater passenger buses and 1 station wagon filled with mobile policemen and invaded the polling unit. They shot into the air to scare away voters and forcefully thumb printed the remaining ballot papers in all the polling units except unit 5; votes were not counted and results not announced at the polling units except polling unit 005 and unit 008 where the polling agent was forced to participate in the counting of votes and signing of the result sheet.
PW7 in evidence testified that voting went on peacefully until 12 noon when a policeman attached to unit 4 Konta called some people and informed them that the electorates were massively voting for the Action Congress in the unit. Some fifteen minutes later armed thugs led by Bamidele Adeniyi (a.k.a. Zango) and Ezekiel arrived in the Ward in three 18 seater buses.
Upon their arrival all the voters and polling agents took to their heels while some of them stayed at a safe distance to watch what these thugs would do. The thugs moved from one polling unit to another and emptied all the ballot boxes of their ballot papers and stuffed them with already thumb printed ones in favour of the PDP. Voting was disrupted at all the polling units in the Ward.
PW8 testified that on the day of the elections armed thugs led by Lekan Oyediran and Soji Ibikunle went round all the polling units and scared away all the electorates and party agents by shooting into the air. She and some others stood at a distance and watched the activities of these thugs who she said took away all the ballot boxes containing ballot papers and other election materials. The votes were not counted or results announced as voting was completely disrupted.
PW9 stated in evidence that on the day of the election armed thugs led by Bamidele Adeniyi (a.k.a. Zangaruwa), Segun Babalola, A. S. Adetunji and Samson Odunoye went to all polling units in the Ward and scared away polling agents and voters by shooting into the air. They took away all the ballot boxes, ballot papers and other voting materials without any of the votes being counted or results announced. Voting was completely disrupted in the Ward.
PW10’s evidence is that on the day of the election armed thugs led by Abdul Rasaq Oyelami (a.k.a. KKK) invaded polling units in the Ward, shot into the air scaring away voters and polling agents of the 3rd Petitioner and of other parties. They snatched and carried away ballot boxes and ballot papers.
Voting was disrupted or irregularly conducted in all the polling units in the Ward; votes were not counted and results not announced at any of the polling units.
PW11 testified that on the day of the election, armed thugs led by known PDP leaders like Ganiyu Lawal, Zacheus Adeniran and Lateef Adedeji invaded the polling units in Ward 15 Osolo/Oparin/Ola and scared away the voters and electoral officers and forcefully snatched away the ballot boxes and ballot papers and carried them away. Voting was irregularly conducted and/or totally disrupted; votes were not counted and results not announced at any polling unit in the Ward.
PW12 testified that on the day of the election armed thugs led by Fatai Adeboye and Sarafa Oyewole in two eight seater buses invaded polling units in his Ward 6. They threw certain liquid substance suspected to be acid at some people. Voting was completely disrupted at all the polling units. Polling agents were scared away by the thugs who made away with the ballot boxes, ballot papers and other election materials in all the polling units and there was no voting in any of the polling units.
PW13 testified that on the day of the election some armed thugs led by known PDP leaders like Ganiyu Lawal invaded the polling units in Ward 14 (Oloyan/Elemesho/Esa) and forcefully snatched the ballot boxes and ballot papers and carried them away. Voting was completely disrupted, the polling agents of the 3rd Petitioner as well as other political parties were scared away by the violence. Votes were not counted and results were not announced in any of the polling units in the Ward.
PW14 testified that Ward 1 Okuku some thugs led by Duro Falowo, a PDP leader disrupted voting; ballot boxes and ballot papers were snatched from some of the polling units in the Ward and taken away. Thumb printed ballot papers were stuffed into ballot boxes and re-presented as valid votes; this was done by violence or threat of violence by known members of the Respondent and their armed thugs. He also witnessed multiple voting in all the ten units in the Ward.
It was submitted that the evidence of the Appellant’s witnesses was not shaken by cross-examination and that the Appellant discharged the burden placed on him thereby shifting the burden on the Respondents which they failed to discharge.
On Issue 2, the Petitioner/Appellant submitted that he filed a motion on notice on the 27th November 2007 for an additional witness and to file the report made pursuant to the order of inspection granted by the Tribunal on the 3rd July 2007 by the Tribunal. The 1st and 2nd Respondents filed their counter affidavit in opposition to the motion for additional witness. The application was refused by the Tribunal on the ground that no extreme circumstances existed to warrant the grant of the application for additional witness. It also held that the grant of the application would be contrary to paragraph 1(1) of the Practice Direction. Petitioner/Appellant submitted that sufficient facts were placed before the Tribunal in the affidavit in support of the application showing extreme circumstances to warrant the leave for application for additional witness. Appellant submitted that the test of extreme circumstance for the purpose of satisfying paragraph 6(1) of the Practice Direction is and should be whether the relevant application could have been made during the pre-hearing session. If the answer is in the negative as in this case, then extreme circumstance is established by the Petitioner/applicant.
Appellant submitted that the circumstance of this application is such that the Tribunal ought to grant leave to bring the application for additional witness outside the period of pre-hearing session. It was also submitted that the Tribunal ought to have granted leave sought in the application in order to give effect to the aforesaid order of the Tribunal as well as the spirit and intendment of Section 159 of the Electoral Act 2006 and section 36 of the 1999 Constitution.
Appellant submitted that the extreme circumstances referred to in the affidavit in support ought to have been considered by the Tribunal so as to permit the additional witness to tender in evidence report of the inspection. It was further submitted by the Appellant that parties ought to be given every opportunity to present their cases fully. Reliance was placed on AUDU V. GUTA (2004) 4 NWLR (part 864) 463 at page 887. Appellant went on further to submit that section 159 of the Electoral Act 2006 gave the Tribunal the power to grant the order of inspection for the purpose of instituting or maintaining the petition. The order of inspection granted the Appellant was after the institution of the petition and the order was expressly for the purpose of maintaining the petition. It was also submitted that it is the clear purport and intendment of section 159 of the Electoral Act used for the purpose of maintaining the petition. It was therefore contended by the Appellant that the decision of the Tribunal refusing the application to bring additional witnesses and tender inspection report clearly contravenes the provisions of section 159 of the Electoral Act 2006, and there is nothing in the Practice Direction to the effect that an application for additional witness cannot be granted after the petition has been instituted. Appellant went further to submit that the need to do substantial justice and the Petitioner/Appellant’s right to fair hearing as enshrined in section 36 of the Constitution of the Federal Republic of Nigeria ought to have been the consideration for the Tribunal in looking at the merit of the application.
Appellant went on further to submit that the Supreme Court has held in the case of NNAJIOFOR v. UKONU (1985) 2 NWLR (PART 9) page 689 at 703 paragraph F that so many essential elements make up the legal concept of fair hearing and these include access to Court, the right to be heard which entails the right of a litigant to call the number of witnesses that he intends to call to enable him present his case fully before the Court. In this regard, the Appellant submitted that the Practice Direction should not be applied in a way which denies a party fair hearing. Reliance was placed on CHIEF AMBROSE OWALA V. INEC & ORS (1991) 10 NWLR (PART 622) 201 at 212: MICHAEL OKARO V. THE STATE (1988) 3 NWLR (PART 81) 214 at 220- S.B.N. PLC V. CROWN STAR & CO. LTD. (2003) 6 NWLR (PART 815) 1 at 5 & 6: PSYCHIATRIC HOSPITAL MANAGEMENT BOARD V. EDOSA (1991) 13 NWLR (PART 636) 572.
Appellant submitted that the refusal by the Tribunal for the Appellant to call an additional witness amounted to a fundamental breach of the Petitioner/Appellant’s constitutional right to fair hearing which rendered the Tribunal’s judgment perverse and ought to be set aside. Reliance was placed on A.G. RIVERS STATE v. UDE (2006) 17 NWLR (Pt.1008) 436 at 456 where Musdapher JSC held as follows:
“The right to fair hearing is a vitiates the proceedings rendering the same null and void and of no effect. Any judgment which is given without due compliance and which has breached fundamental right of fair hearing is a nullity and capable of being set aside by the Court that gave it or by an Appellant Court.”
Appellant contended that he had not received fair hearing in the hands of the Tribunal.
As has been seen the question of fair hearing has assumed such an important dimension in this appeal as highlighted in Issues 1 and 2 of the Appellant’s Brief of Argument which covers Grounds 1, 2 and 7 on one hand and Grounds 8, 9, 10 & 11 respectively of the Notice of Appeal that I think, it’s appropriate at this juncture to consider the same question which incidentally cover the same Issues 1 and 2 and Grounds 1, 2 and 7 on one hand and 8, 9, 10 & 11 of the Notice of Appeal in the 1st & 2nd Respondents’ Brief of Argument. I say so because should the question of fair hearing be found to have been absent for instance, there is a long line of authorities to the effect that that in itself could determine the outcome of the appeal. It is only after the determination of the question whether there has been fair hearing that it will become worthwhile to determine the other issues canvassed by the parties.
1st & 2nd Respondents on Issue 1 as to whether the Tribunal properly evaluated the evidence led by the parties before arriving at its judgment which cover Grounds 1, 2 and 7 of the Notice of Appeal have stated that it is trite that the burden of proof rests on the person who asserts and the burden is on a balance of probabilities but where the commission of a crime is in issue the standard of proof is beyond reasonable doubt. Reference was made to sections 137 & 138 of the Evidence Act and to the case of INEC V. RAY (2004) 14 NWLR (PART 892) 92 at 121-122.
1st & 2nd Respondents further submitted that it is settled law that a Court of Appeal does not interfere with the findings of a Court of first instance except it is satisfied that the lower court has not made good use of the advantage which it enjoys of seeing the witnesses and watching their demeanour when it can then draw its own opinion. Reliance was placed on NWOBODO V. ONOH (1984) 1 SC 1 at 53-611, WOLUCHEM v. GUDI (1981) 5 SC 1. at 295 and 326. 1st & 2nd Respondents also submitted that if the lower court has evaluated the evidence before it, it is not the duty of the Appellate Court to re-evaluate the evidence before it except the finding of the lower trial court is perverse or a lack of proper exercise of judicial discretion. Reliance was placed on ONWUKA v. EDIALA (1988) 1 NWLR PART 961 182 at 208; KODILINYE v. ODU 2 WACA 336 at 338; ETOWA v. IKOR ADU (1981) 11-12 SC 25 at 38; MOGAJI v. ODOFIN (1978) 2 SC 91 at 91-95.
Respondents submitted that none of the Ward Supervisors who testified for the Petitioner was a polling agent at any of the polling units or of the other persons lawfully entitled to be at the various units they testified on. Moreover none of the polling agents whom they said were alive and none of the voters allegedly scared away was called to testify. On the contrary the evidence of DW1 – DW4 were consistent and the Tribunal found them reliable. Respondents further submitted that it had not been contended that the findings are perverse or not the proper exercise of judicial discretion. It is not therefore the duty of the Court of Appeal to re-evaluate the same evidence which the Tribunal has unquestionably evaluated. Respondents submitted further that in an election petition such as this one the burden on the Appellant is even more stringent. Reliance was placed on S. 137 of the Evidence Act and the following cases – AWUSE v. ODILI (2004)16 NWLR (pt.876) 520; WALI v. BAFARAWA (2004) 16 NWLR (pt.899) 1 at 35; IMAM v. SHERIFF (2005) 4 NWLR (pt.914) 80 at 203; FAYEHUN v. FADOGU (2000) 4 SCNJ 77 at 84; SOSANYA v. ONADEKO (2005) 2 & 3 SCNJ 103 at 127-128; YUSUF v. OBASANJO (2006) 2 EPR 30; WAZIRI IBRAHIM v. SHAGARI (2007 3 EPR 99. Respondents submitted therefore that the Appellant’s witnesses had clearly failed to discharge the burden placed on them and that the question of linking the crimes alleged on the 1st Respondent does not arise.
issue 2 on page 10 of the 1st and 2nd Respondents’ Brief of Argument is whether the Tribunal was right in its ruling of 18th day of January 2008 when it dismissed the Petitioner/Appellant’s application for additional witnesses and tender inspection report which application was necessitated by an inspection order granted by the Tribunal on the 3rd July 2007 pursuant to section 159 of the Electoral Act 2006 (Grounds 8, 9, 10 & 11 of the Notice of appeal). This issue has not been argued as an issue by the 1st & 2nd Respondents though so listed as an issue for argument and is deemed abandoned as an issue. I am not however unaware that if formed the basis of the 1st & 2nd preliminary objection and argued as such.
At this juncture it is necessary to have a look at Petitioner/Applicant’s motion at pages 314-318 of the Record of Appeal. It is for an additional witness and to file the Report made pursuant to the order of inspection granted by the Tribunal on the 3rd July 2007. The 1st & 2nd Respondents filed their counter affidavits in opposition to this application to call additional witness. The Tribunal rejected or dismissed the application on the ground that no extreme circumstance existed for the grant of the application to call additional witness.
Paragraphs 8, 9, 10 and 11 of the supporting affidavit are instructive and are hereunder as follows-
8. That in the course of carrying out inspection, the Petitioners discovered that there was a need to a forensic inspection of the election materials and particularly the ballot papers to be scanned electronically for forensic analysis, in order to confirm the allegations of multiple thumb printing of the ballot papers already pleaded in the petition.
9. That in carrying out the aforesaid order of the Tribunal the Petitioner through their experts carried out both physical and forensic examinations and inspection of the ballot papers and other election materials used for the elections.
10. That the Petitioner considers it necessary to bring the evidence of the findings of both physical and forensic examinations and inspection of ballot papers and other election materials before the tribunal by calling additional witnesses.
11. That Adeola Olayiwola the proposed additional witness participated in the inspection of election materials pursuant to the order granted to the Petitioner by this Honourable Tribunal. His proposed witness statement/written deposition is now ready. Now produced, shown to me and marked Exhibit A1 is the proposed witness statement.
It is not therefore in doubt that sufficient facts were placed before the Tribunal in the supporting affidavit for the grant of the application for additional witness and also to give effect to the order made on the 3rd July 2007 as well as the spirit and intendment of section 159 of the Electoral Act 2006 and section 36 of the 1999 Constitution.
Section 159(1) of the Electoral Act 2006 provides as follows,
“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.”
The Tribunal had held in refusing the application for additional witnesses to be called, the Petitioner/Appellant’s failure to indicate in his answer to pre-hearing information sheet that he was going to call additional witness. The question is whether extreme circumstances have been established under paragraph 6 of the Practice Direction. It is also necessary to state that the Practice Direction is only complimentary to the provisions of the Electoral Act 2006.
What is not in doubt is that the order for inspection granted the Appellant was after the institution of the petition and the order made was expressly for the purpose of maintaining the petition.
Of the provisions of section 159(1) of the Electoral Act 2006 it was stated in AREGBESOLA v. OYINLOLA (2009) 14 NWLR (Pt.1162) 429 at 448 that,
“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 Legislature 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 Tribunal earlier ordered and that was wrong.”
In the adjudication of any matter, parties should be given every and full opportunity to present their cases and in so doing to call witnesses that they consider vital to the prosecution of their cases. See AUDU V. GUTA (2004) 4 NWLR (PART 864) 463 at 882.
In AREGBESOLA V. OYINLOLA (supra) page 429 ratio 19, it was held that,
‘The need to do substantial justice is greater in election petition cases. This is so because the court is not only concerned with the rights of the parties inter se but also the larger interests and rights of the people in various local government areas who had exercised their franchise on Election Day.”
In ABUBAKAR V. YAR’ADUA (2008) 11 SC (PART 11) 77 at 122, the Supreme Court affirmed the decision of the Court of Appeal by which leave was granted to the Applicants to call 213 additional witnesses. This was in compliance with section 36(1) of the 1999 Constitution which guarantees the right to fair hearing. The position of the law is that no matter how well a case has been conducted a breach of the right to fair hearing vitiates the entire proceedings rendering same null and void and of no effect. See ADIGUN V. ATT. GENERAL OF OYO STATE (1997) 1 NWLR (PART 531 678. I do not think it is necessary to go on further to consider further submissions of Counsel on this appeal as such would amount to an academic exercise.
The Appeal succeeds and is accordingly allowed and the Judgment of the Governorship and Legislative Houses Election Petition Tribunal, Osun State holden at Osogbo delivered on the 27th June 2008 in Petition No. HA/EPT/OS/10/07 CORAM: Hon. Justice T. D. Naron (Chairman), Hon. Justice Saadu Mohammed (Member), Hon. Justice J. N. Akpughunum (Member), Hon. Justice A. T. Badamosi (Member) and Hon. Justice J. E. Ekanem (Member) is hereby set aside.
The President of the Court of Appeal in exercise of its powers under the 1999 Constitution is to constitute a fresh Election Petition Tribunal for the hearing of this petition de novo. I make no order as to costs.
SIDI DAUDA BAGE, J.C.A.: I have had the opportunity of reading in draft the judgment of my learned brother, S. S. Alagoa, JCA, just delivered.
I entirely agree with his reasoning and conclusion reached therein. The law is settled that, any proceeding conducted without observing the principles of natural justice is null and void and liable to be set aside no matter how well conducted.
For this and the more detailed reasons contained in the lead judgment, I also find merit in the appeal. I accordingly allow it. I abide by all the consequential orders therein. I also abide by the order awarding no Costs.
MODUPE FASANMI, J.C.A: I have had the advantage of reading the Judgment of my learned brother S. S. Alagoa J.C.A. The issues have been comprehensively and adequately dealt with. I agree with the reasonings and conclusions reached therein. The appeal is meritorious and I allow it. I also abide by the consequential orders made.
Appearances
Kolapo Alimi Esq.For Appellant
AND
Chief Yomi Alliu with him Thelma Otaigbe (Miss) and A. Makinde for the 1st & 2nd Respondents.For Respondent
