ADEYINKA AJAYI V. KAYODE IDOWU & ORS.
(2010)LCN/3934(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 7th day of July, 2010
CA/I/EPT/NA/77/08
RATIO
HEARSAY: WHEN WILL A TESTIMONY AMOUNT TO HEARSAY
A testimony will be hearsay where the person making the statement is not the person who saw, heard perceived it or gave it as his personal opinion but as what was said to him by another person. See OMONGA VS. STATE (2006) 14 NWLR (PART 1000) PAGE 532 AND OBINWUNNE V. TABANSI-OKOYE (2006) 8 NWLR (PART 981) 1004. PER CHIDI NWAOMA UWA, J.C.A
APPLICATION FOR ADJOURNMENT: WHETHER WHERE THERE IS CHANGE OF COUNSEL, DURING TRIAL, AND THE NEW COUNSEL APPLIES FOR A SHORT ADJOURNMENT TO ENABLE HIM PREPARE AND BE FULLY BRIEFED BY HIS CLIENT THE TRIAL TRIBUNAL OUGHT TO ALLOW THE ADJOURNMENT
The trial Tribunal ought to have allowed the adjournment to enable the new counsel take over the Appellant’s matter fully, since this was the only reason for the application. The Appellant through his counsel who made it clear he had other witnesses to call was shut out from presenting his case fully by the learned trial Tribunal who ordered his case closed. My observation at this juncture is: the Appellant engaged a new counsel for a purpose, and if the, new counsel is not allowed to present his case fully by calling more witnesses as he would want him to do, the essence and/or purpose of having counsel of his choice present his case is defeated. In the case of MOBIL OIL (NIG.) LTD. VS. NABSONS LTD. (1995) 7 NWLR (PART 407) 254 AT 265, his Lordship Mohammed, JSC, of the Apex Court had this to say in a similar situation as has arisen here: “Where there is change of counsel, during trial, and the new counsel applies for a short adjournment to enable him prepare and be fully briefed by his client it will amount to a judicious exercise of discretion if the Courts grant the application. Refusal to adjourn, in such a situation may amount to taking away the right of a party to have a counsel of his choice” Justice is for both parties. Considering the circumstances of this case, the reason for the application sought and the nature of this matter, the interest of justice would have been better served by granting the application than refusing it, the Tribunal ought to have granted the adjournment to enable the new counsel prosecute the Appellant’s petition after the withdrawal of his former counsel from the proceedings before the Tribunal. See USANI V. DUKE (2004) (SUPRA). It is trite that justice delayed is justice denied, in the same vein hasty justice, is no justice and as bad as delayed justice. A few days adjournment would not have hampered the justice of the matter in any way. See UNONGO V. AKU (1983) 2 SCNLR 332, 352: ECOBANK (NIG.) PLC V. GATEWAY HOTELS LTD (1999) 11 NWLR (PART 627) 397, 429. PER CHIDI NWAOMA UWA, J.C.A
APPEAL ON ISSUE FAIR HEARING: WHETHER THE ENTIRE PROCEEDINGS IN THE LOWER COURT MUST BE THOROUGHLY EXAMINED AND SCRUTINIZED WHERE AN APPEAL RELATES TO THE ISSUE OF FAIR HEARING
In considering any appeal which relates to the issue of fair hearing, the entire proceedings in the lower court must be thoroughly examined and scrutinized, in this case the Appellant has not been shown to have caused unnecessary delay of the proceedings up to the point of his application for adjournment and refusal by the Tribunal. See the case of EBELE & ORS. VS. IKWEKI & ORS. 7 NWLR (PART 405) 91 AT 99. PER CHIDI NWAOMA UWA, J.C.A
APPLICATION FOR ADJOURNMENT: DUTY OF THE COURT WHEN FACED WITH AN APPLICATION FOR ADJOURNMENT
The Court ought to, when considering such application as arose in the present case, decide on the competing issues of doing justice and of speedily determining the issues before it, See SOLANKE V. AJIBOLA (1968) 1 ALL N.L.R. 46 AND INTERNATIONAL INSURANCE GROUP LTD. V. ALAO (1990) 3 NWLR (PART 141) 773. The case is different when several unnecessary adjournments have been sought by a party or counsel. Each application for adjournment must be considered on its merit bearing in mind the justice of the case. See USIKARO V. ITSEKIRI LAND TRUSTEES (1991) 22 N.S.C.C. (PART 1) AT 298: 1901 2 NWLR (PART 172) 150 AT 179 – 180. PER CHIDI NWAOMA UWA, J.C.A
FAIR HEARING: WHAT FAIR HEARING ENTAILS
The real issue where the question of fair hearing has been raised is: Whether an opportunity of hearing was afforded to the parties entitled to be heard, hearing here is full hearing, allowing the parties to put in all they have, in this case evidence through witnesses without being stampeded by the court or Tribunal, in this case the Tribunal went ahead and closed the petitioner’s case even though the learned counsel made it clear that the Appellant had other witnesses to call. See J.C.C. INTER LTD. V. N.G.I. LTD. (2002) W.R.N. 91. In order to be fair, “hearing” or “opportunity to be heard” in proceedings must include a party’s right to give evidence by himself, call witnesses, if he likes, and make oral submissions personally or through a counsel of his choice. See NWANEGBO V. OLUWOLE (2001) 37 WRN 101; DAWODU V. N.P.C. (2000) 6 WRN 116 and NJIOKWUEMENI V. OCHEI & ORS. (2004) 15 NWLR PART 895. Fair hearing involves a fair trial, where any reasonable and fair minded observer watching the proceedings would walk away with the conclusion that the trial was fair to all parties. See the cases of AYORINDE V. FAYOYIN (2001) FWLR (PART 75) 483 and KOTOYE V. C.B.N. & ORS. (1989) 1 NWLR (PART 98) 419. It is essential for a fair trial, that the parties are given equal treatment, opportunity and consideration in the conduct of their cases, which was not done in the present case. The question is not whether any injustice has been occasioned but the question of affording both parties equal opportunities to be heard. Justice must not only be done but must always be seen to have been done by the ordinary or reasonable man, an independent observer.See USANI V. DUKE (SUPRA) and ARIORI & ORS. V. ELEMO & ORS. (1983) 1 SC 13 AT 23. PER CHIDI NWAOMA UWA, J.C.A
JUSTICES:
K.M.O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
Between
ADEYINKA AJAYI – Appellant(s)
AND
KAYODE IDOWU & 311 ORS – Respondent(s)
CHIDI NWAOMA UWA, J.C.A, (Delivering the Leading Judgment): The Appellant as Petitioner challenged the victory of the 1st Respondent at the National Assembly election held on the 21st day of April, 2007 into the Osun Central Federal Constituency II before the Governorship and Legislative Houses Election Petition Tribunal sitting in Osogbo, Osun State (hereafter called the Tribunal). Before the Tribunal, the Appellant prayed that the 1st Respondent ought not to have been returned as the winner at the election, in that he did not score the majority of lawful votes cast at the election and that he (the Appellant) should have been returned as winner having scored the highest number of valid votes cast at the election and satisfied the requirement of the Constitution and the Electoral Act, 2006.
The Petition was opposed by the 1st and 2nd Respondents who filed a Joint Reply dated 1st of August, 2007 on the 2nd day of August, 2007 in which the Tribunal was prayed to dismiss the petition.
The 3rd – 312th Respondents filed a Joint Reply dated 26th October, 2007, on the same date in which the Petition was opposed.
The Petitioner filed a reply to the Reply of the 1st and 2nd Respondents dated 10th of August, 2007 on 11th of August, 2007.
On 14th day of July, 2007 the Appellant obtained an order of the Tribunal permitting him to inspect all electoral materials said to have been used in conducting the disputed election.
In course of the trial, the Appellant called 21 witnesses after which the Tribunal on the 29th -day of November, 2007 directed that he should close his case even though he had informed the Tribunal he had more witnesses to call and had just briefed a new counsel, Niyi Akintola (SAN) & Co. The Appellant is said to have asked for adjournment till the 3rd day of December, 2007 but the Tribunal refused and instead adjourned the case till the 7th day of December, 2007 for the Respondents to open their defence.
The PW1 – PW21 testified to the effect that there were massive electoral malpractices, thuggery, violence etc that characterized the election in their various Local Government Areas.
In response, the 1st and 2nd Respondents called 15 witnesses contending that the 1st Respondent was duly elected by the majority and highest number of lawful votes cast at the said election and that the said election was held in substantial compliance with the provisions of the Electoral Act, 2006, while the 3rd – 312th Respondents called no witness.
On the 15th day of April, 2008, in its judgment the Tribunal dismissed the Petition having disbelieved the Appellant’s witnesses while believing the witnesses of the Respondents.
The Appellant was dissatisfied with the said judgment and on the 6th day of May, 2008 filed his Notice of Appeal containing four (4) Grounds of Appeal in which three (3) issues were raised for determination by this court. The issues are as follows:-
“1. Whether the lower Tribunal was not in grave error, despite the oral evidence led before it by the Appellant’s witnesses, and on the strength of AMAECHI VS. INEC (2008) 17 NWLR (PART 1080) PAGE 1, not to have nullified the election in Osun Central Federal Constituency, in the face of the electoral malpractices, corrupt practices, acts of thuggery and violence complained (sic) by the Appellant, which acts were established to have been perpetrated by the 1st and 2nd Respondents’ agents, and from which acts the 1st and 2nd Respondents benefited immensely. (Distilled from Ground 1).
2. Whether the lower Tribunal was right in view of the provisions of Section 77 (a) – (d), Section 155(1) & (2) of the Evidence Act, 1990 and Section 62(1) of the Electoral Act, 2006, and the oral testimonies of the Appellant’s witnesses, who gave evidence that they were witnesses of what happened during the election in question, to hold that such testimonies of the Appellant’s witnesses, could at best be described as hearsay evidence, and that the Appellant did not prove his Petition. (Distilled from Grounds 2 & 3).
3. Whether the Appellant’s right to fair hearing as enshrined in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria was not breached by the lower tribunal when it refused to grant an adjournment to the Appellant, but rather ordered the case of the Appellant closed, before it on 29th November, 2007, though the Appellant still had other witnesses to called in proof of his Petition.”
From the records of Court, on 17/3/10 when this appeal first came up for hearing, the learned counsel to the 1st and 2nd Respondents A. Moronkeji Esq. was in court and his brief of argument dated 16/10/08 had been filed out of time on 22/10/08. On that date, the appeal was adjourned to 12/5/10 to enable him regularize his brief of argument, following which learned counsel filed an application to regularize his brief of argument re-filed on 22/3/10 along with the motion paper dated and filed the same day.
On 12/5/10 when this appeal was heard, the learned counsel to the 1st and 2nd Respondents was not in court to move his application, the learned counsel to the Appellant, F. A. Aofolaju (Miss) applied that the application be struck out since there was no reason given for the absence of the learned counsel to the 1st and 2nd Respondents. The application was thereafter struck out for want of diligent prosecution. It was therefore deemed that there was no brief of argument in respect of the 1st and 2nd Respondents.
The 3rd – 81st Respondents were served with the hearing Notice on 21/2/10, no counsel appeared and no brief of argument was filed on their behalf.
The 82nd – 83rd Respondents were served with the hearing Notice on 26/3/10 through the Osun State Ministry of Justice, Osogbo, there was also no representation by counsel and no brief of argument was filed on their behalf.
Similarly, 84th – 312th Respondents who were served with the hearing Notice on 26/2/10 through INEC Headquarters were not represented by counsel and did not file any brief of argument.
In respect of 313th – 314th Respondents A. F. Adekemi (Miss) of Osun State Ministry of Justice appeared on their behalf confirming that their names were struck out following the application moved on 17/3/10 withdrawing the appeal against them.
The Court, after confirming that all the parties were aware that the appeal was for hearing but the Respondents failed or refused to attend court and not having filed any brief of argument we heard the appeal based on only the Appellant’s brief, the learned Appellant’s counsel having also withdrawn the reply brief dated 9/2/10 and filed on 10/2/10, same was withdrawn and struck out.
The Appellant’s brief of argument dated 22/8/08 filed same day was adopted and relied upon by the learned counsel to the Appellant Miss. F. A. Aofolaju in arguing the appeal.
In arguing the Appellant’s issue one, it was submitted that the Appellant pleaded facts relating to the first issue throughout the entire petition of the Appellant’s, pages 1 – 28 of the printed records especially paragraphs 16, 19, 22, 24, 26, 28, 32, 34, 43 and 49. It was argued that the Appellant’s witnesses gave evidence of the thuggery and violence perpetrated by the agents of the 1st and 2nd Respondents which benefited the 1st Respondent by reason of which he was declared the winner of the election. The learned counsel reviewed the evidence of the PW1 – PW21 before the Tribunal, mainly allegations of violence, multiple thumb printing and rigging leveled against the 1st and 2nd Respondents. It was alleged that these acts were carried out by PDP thugs mentioned by name by these witnesses, to which the 1st and 2nd Respondents did not rebut the allegations by calling the named thugs to testify. It was submitted that no contrary evidence was given by any of the witnesses of the 1st and 2nd Respondents and that an unchallenged or uncontroverted evidence of the petitioner must be taken as correct and accorded credibility, reliance was placed on the cases of EGBUNIKE V. A.C.B. LTD. (1995) 2 NWLR (PART 375) PAGE 34 AT PAGE 55, PARAGRAPHS E – F, KOSILE V. FOLARIN (1989) 3 NWLR (PART 107) PAGE 1 AT PAGE 12, PARAGRAPHS C – D, and BURAIMOH V. BAMGBOSE (1989) 3 NWLR (PART 109) PAGE 352 AT PAGES 363 – 364, PARAGRAPHS H – D amongst others. We were urged to accept and hold that the evidence of the PW1 – PW21 in respect of corrupt practices, electoral malpractices, thuggery and violence perpetrated by the agents of the 1st and 2nd Respondents are correct and credible in absence of any other evidence to the contrary. Reference was made to the case of AMAECHI V. INEC (2008) 5 NWLR (PART 1080) PAGE 227 AT 317 PARAGRAPH H to the effect that it is a party that wins or loses election, a good or bad candidate only enhances or diminishes the prospect of his party winning an election. It was argued that the Tribunal failed to appreciate the overriding importance of the political party over and above the candidates presented by the party.
We were urged to hold that the 1st Respondent is liable for the acts committed by the agents of the 2nd Respondent under whose platform he contested the election of 21/4/10, and acts which he benefited from, and to void the said election because of the massive violence perpetrated by the agents of the 1st and 2nd Respondents. We were urged to resolve issue one in favour of, the Appellant and nullify the election into Osun Central Federal Constituency II into the House of Representatives.
In arguing the Appellant’s issue two, the learned counsel reviewed the provisions of Sections 77 (a) – (d), and 155 of the Evidence Act, and Section 62(1) of the Electoral Act, as well as the evidence of the Appellant’s witnesses in explaining, in an argued version, the evidence of PW1 – PW21.
It was the submission of the learned counsel to the Appellant that these witnesses saw the events that they said took place, and had personal knowledge of the facts of which they gave account of, as ward supervisors who monitored the election. For instance, the PW1 the Ward Supervisor for Ward 15 of odo Otin Local Government during the election in dispute, gave evidence as to the late arrival of the INEC officials at the polling units after 12.00 Noon, and on arrival they were escorted by some thugs led by named PDP stalwarts, who chased away members and sympathizers of his party. He monitored the election in the nine polling units in the ward. He gave evidence of witnessing also the already filled thumb-printed ballot papers which were counted and figures recorded, he was also prevented from voting by PDP thugs.
PW2 gave evidence in respect of Ward 5 in the same Local Government and mentioned one S. O. Idowu as having led the thugs armed with guns, machetes and other weapons. PW4 made similar allegations of no election taking place in any of the units of the Ward and INEC officials arriving with already thumb printed ballot papers, PW5 gave similar evidence, PW6 also mentioned Fatai Adeboye and Sarafa Oyewole as some of the PDP thugs who scared away voters in Ward 6. These accounts of the incident run through the testimonies of the other Appellant’s witnesses. PW14 in a similar manner named those who led the thugs in Ward 8 of Odo Otin Local Government as Bamidele Adeniyi (a.k.a. Zangaruwa) Segun Babalola, A. S. Adetunji and one Samson Oduoye.
Learned counsel to the Appellant reviewed the evidence of the defence witnesses who confirmed that they knew the persons allegations were made against to be leaders of PDP. Each gave evidence that he voted and returned to his home. The evidence of DW1 – DW4 and DW8 – DW11 were highlighted. These witnesses testified in respect of elections in various wards.
It was argued that the evidence of these witnesses should not be accorded any weight in other units apart from where they voted since they were not present in those other units. Reliance was placed on the cases of AWUSE V. ODILI (2005) 16 NWLR (PART 952) 416 AT 509 – 510. PARAGRAPHS B-B; and EZEAZODOSIAKO V. OKEKE (2005) 16 NWLR (PART 952) 612 AT 630 – 631.
In further submission, it was argued that in addition to polling/party agents in line with the provisions of Section 62(1) of the Electoral Act, 2006, relied upon by the Tribunal, Ward Supervisors are also appointed to oversee the activities of the party/polling agents. We were urged to hold that the learned Tribunal was in error when it held in respect of PW1 – PW21, at pages 414 – 628 of the records, that these witnesses not being party/poll clerks or presiding officers and not having shown that they were lawfully entitled to be at the polling units, their evidence as to non counting of votes, stuffing of ballot papers into ballot boxes etc is hearsay and not admissible.
It was submitted that by virtue of Section 155 of the Evidence Act, the PW1 – PW21 are competent witnesses. We were urged to resolve this issue in favour of the Appellant.
On the Appellant’s third issue it was argued that the Tribunal breached the Appellant’s right to fair hearing as provided in Section 36 of the 1999 Constitution when it ordered the case of the Appellant closed on the 29th November, 2007, when the Appellant made it clear that he had more witnesses to call.
It was submitted that on the said 29th November, 2007, the Appellant changed counsel, Ajibade Ismail Esq. was said to have appeared holding the brief of Chief Akintola, SAN and stood the matter down for 30 minutes, after which S. O. Jimoh called two witnesses who testified as PW20 and PW21, pages 500 – 503 of the records, thereafter sought an adjournment to enable him as new counsel confer with the other witnesses in proof of the Appellant’s petition. The adjournment was sought from Thursday 29th November, to Monday, 3rd December, 2007. The learned Tribunal invoked paragraph 5(7) of the Practice Direction, 2007 in refusing the adjournment, page 504 of the records.
Further, that even though an adjournment is not granted as a matter of course but at the discretion of the court depending on the circumstances of the particular case, such discretion must be exercise judiciously and judicially, learned counsel cited and relied on the case of MAINS VENTURES LTD. V. PFTPROPLAST IND. LTD. (2000) .4 NWLR (PART 651) PAGE 151 AT PAGE 164 PARAGRAPHS C – D. It was argued that the refusal was not judicially and judiciously done by the Tribunal and breached the Appellant’s right to fair hearing, when it proceeded to close the Appellant’s case. Other cases cited and relied upon are, USANI V. DUKE (2004) 7 NWLR (PART 871) PAGE 116 AT PAGES 154 – 156, PARAGRAPHS D -E, ETIM V, REGISTERED TRUSTEES, P.C.N. (2004) 11 NWLR (PART 883) PAGE 79 AT PAGE 95, PARAGRAPHS D-F.
It was argued that the Appellant was denied the opportunity to present his case, by calling- evidence. See EZECHUKWU V. ONWUKA (2006) 2 NWLR (PART 963) PAGE 151 AT PAGE 189, PARAGRAPH E, A.G. RIVERS STATE V. UDE (2006) 17 NWLR (PART 1008) PAGE 436 AT PAGE 456 PARAGRAPHS A-C, NEWSWATCH COMMUNICATIONS LTD. V. ATTA (2006) 12 NWLR (PART 993) PAGE 144 AT PAGE 175, PARAGRAPHS D-E, PAGE 181, PARAGRAPHS G-N and PAGES 181 – 182, PARAGRAPHS H-A.
It was the contention of learned counsel that the consequence of such breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void. The following cases were cited and relied upon; ASHIRU V. AYOADE (2006) 6 NWLR (PART 976) PAGE 405 AT 431 PARAGRAPH E, TUBONEMI V. DEKIBO (2006) 5 NWLR (PART 974) PAGE 565 AT PAGE 585 PARAGRAPH B, JOHN ANDY SONS & CO. LTD. V. MFON (2006) 12 NWLR (PART 995) PAGE 461 AT 479 PARAGRAPH G.
We were urged to hold that the proceedings and the judgment of the Tribunal were null and void having breached the Appellant’s right to fair hearing, resolve all the issues in favour of the Appellant, grant all the reliefs sought and allow the appeal.
Finally, we were urged to allow the appeal and set aside the judgment of the Tribunal dismissing the Appellant’s Petition and order that the challenged election is invalid by reason of non-compliance with the provisions of the Electoral Act, 2006 and that none of the candidates in the election could be validly returned as having won the election, we were urged to nullify the election and order that the 4th Respondent should conduct fresh elections for Osun Central Federal Constituency II. In the alternative, an order of re-trial of the Petition for having occasioned a miscarriage of Justice, and the petition be heard and determined by another panel of Judges.
As earlier stated in this judgment, this appeal will be determined based on the Appellant’s brief alone for the reasons earlier given. I will start with the resolution of issues 2 and 3 and if need be, issue 1.
The question raised by the Appellant in his second issue was whether the Tribunal was right to have held that the evidence of the Appellant’s witnesses was hearsay evidence and that the Appellant did not prove his petition, that is, improper evaluation of the evidence of PW1 -PW21 but, preferred and believed the evidence of the defence witnesses DW1 to DW15 who testified that the election was peaceful.
Regarding the evidence of the PW1 – PW21, it is not in dispute that these witnesses were ward supervisors for the Action Congress (AC) who monitored the election in various units of different wards. Each testified as to the supervisory role played in moving from unit to unit within their various wards and in evidefice testified as to the conduct or non conduct of the election in the various wards within the Constituency. Evidence was led as to the late arrival of the INEC officials at about 12 noon, the role played by alleged PDP thugs, some were named, snatching of ballot boxes, stuffing of ballot boxes, already filled thumb printed ballot boxes counted and recorded in relevant result sheets amongst other reported incidents of malpractices. These witnesses gave account of the events they alleged they saw in the various units. There was no controversy or dispute as to what they said they saw, their evidence was direct. For instance, the PW2 named one S.O. Idowu as one of the armed thugs, PW6 in a similar manner namely Mr. Fatai Adeboye and Sarafa Oyewole as those who led the thugs in ward 6 with dangerous weapons and scared away members of other political parties, PW7 named Lekan Oyediran and Soji Ibikunle as the leaders of the thugs in Ward 9, PW14 named those that scared away the electorate and party agents by shooting into the air, these people were said to have accompanied those that carried the ballot boxes with already thumb printed ballot papers.
On the part of the defence witnesses, under cross examination confirmed knowing the persons against whom allegations of thuggery were made to be leaders of PDP.
The Tribunal in its judgment found that the PW1 – PW21 were ward supervisors and could not give evidence in respect of the different wards because they were not lawfully entitled to be at any of the polling units. At page 614 of the record the Tribunal held in respect of PW1 thus:- “Furthermore not being a party agent, poll clerk or Presiding Officer and having not shown himself to lawfully entitle (sic) to be at any of the polling units, his evidence as to stuffing of ballot papers into ballot boxes, counting or non counting of votes and recording same in the electoral Forms is hearsay and so not admissible; See Sections 46(1), 62(1), 63(1), (2), 64(1), (2) and 75 of the Electoral Act, 2006. See BUHARI VS. OBASANJO (2005) 13 NWLR (PART 941) 1 AT 315-317.
The PW1 – PW21 did not claim to be polling agents or anything else but ward Supervisors which was acknowledged by the parties and the Tribunal. Their role was to oversee the activities of its party/polling agents. Their role was supervisory, as their name also signifies or defines what they are. These witnesses did not allege that they took part in the conduct of the election. Sections 62(1) and 46(1) of the Electoral Act, 2006 relied upon by the learned Tribunal in disregarding their evidence, and not utilizing same would have been applicable if the witnesses had testified to the effect that they participated in the counting or collation of ballot papers. Black’s Law Dictionary, 7th Edition by Bryan A. Garner defined a “supervisor” as “one having authority over other; a manager or overseer……, and handle grievances of other employees, by exercising independent judgment.”
From the definition above and the role played by these witnesses, they were there as independent overseers of the conduct of the election from unit to unit in the various wards that make up the constituency in question. As Ward Supervisors as given in evidence, the Appellant’s witnesses were present at the various units and wards, to monitor and supervise the polling/party agents and the general conduct of the election. Their evidence was direct evidence of what they witnessed, not what they were told. Names of some of the perpetrators of the alleged thuggery and malpractices were mentioned. In my considered view, the Tribunal was wrong to have labeled the witnesses as not having shown they were lawfully entitled to be at the polling units and their evidence as hearsay. In the same edition as above of Black’s Law Dictionary, “hearsay” has been defined as follows:-
“testimony that is given by a witness who relates not what he or she knows personally, but what others have said, and that is therefore dependent on the credibility of someone other than the witness.”
In the present case, can the Appellant’s witnesses’ evidence of what they saw fall into the category of hearsay as found by the learned Tribunal and therefore inadmissible under the rules of evidence? I think not. A testimony will be hearsay where the person making the statement is not the person who saw, heard perceived it or gave it as his personal opinion but as what was said to him by another person. See OMONGA VS. STATE (2006) 14 NWLR (PART 1000) PAGE 532 AND OBINWUNNE V. TABANSI-OKOYE (2006) 8 NWLR (PART 981) 1004. In my considered view the Tribunal was wrong to have utilized the evidence of the DW1 – DW15 to the effect that they voted in their respective polling units and returned to their respective homes, they denied the Appellant’s witnesses allegations of violence, thuggery, multiple voting and other electoral malpractices. The tribunal held that their evidence was unshaken while disregarding those of PW1 – PW21. I hold that the Ward Supervisors were rightly at the polling units as persons lawfully entitled to be there. There was no evidence on the side of the Respondents that the witnesses did not supervise or monitor the elections or that they performed some other duties apart from what they said they did, supervised and monitored the elections on that day in line with their testimony before the Tribunal.
As to giving of oral evidence, Section 77 of the Evidence Act provides:-
“77. Oral evidence must, in all cases whatever, be direct –
(a) if it refers fact which could be seen, it must be the evidence of a witness who says he saw that fact;
(b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard that fact;
(c) if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner;
(d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.” (Underlining mine for emphasis).
Complementary to the above Section, Section 155 of the same act provides as to who may testify:
“155(1) – All persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by reasons of tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.”
From the above provision, the Appellant’s witnesses before the Tribunal were competent witnesses as rightly argued by the learned Appellant’s counsel. The Electoral Act, 2006 did not make any provision that is contrary to the above, to regulate giving of evidence or competence of the evidence of witnesses. The important thing is: the Appellant’s witnesses gave evidence of what they saw happen on the election day in line with Section 11 of the Evidence Act, contrary to the, erroneous view of the Tribunal that only polling agents, presiding officers, polling clerks, voters and observers that are competent to give evidence of what happened at the various polling units and collation centres. In my considered opinion, everyone and/or any person that satisfies the condition laid down in Sections 77 and 155 of the Evidence Act is a competent witness to testify as to what they saw during the conduct of the election, and I so hold. Section 62(1) of the Electoral Act, 2006 must be read with Sections 77 and 155 of the Evidence Act, it is clear therefore that the Appellant’s witnesses were lawfully present during the election and monitored same as Ward Supervisors, See a recent decision of this Court and Division in FAMUREWA V. ONIGBOGI ft QRS. CA/I/FPT/NA/91/08, delivered on 16/4/2010. Also LASUN V. AWOYEMI (2009) 16 NWLR (PART 1168) PAGE 513.
It is the law that parties must be given equal opportunity to present their cases. The Tribunal by erroneously labeling the evidence of the Appellant’s hearsay and therefore inadmissible has shut out the entire evidence of the Appellant’s, therefore, took a decision based on one sided evidence, moreso when the witnesses were competent witnesses who gave evidence of eye witness account of alleged electoral malpractices. I hold that the Tribunal ought to have properly evaluated and utilized the direct evidence of the Appellant’s witnesses, then the evidence would have been balanced on both sides before arriving at a decision, failure to do so results in resolving the second issue in favour of the Appellant.
On the Appellant’s third issue, it was alleged that there was a breach of the Appellant’s right to fair hearing as provided by Section 36 of the 1999 Constitution when the Tribunal on 29th November, 2007 refused to allow the Appellant an adjournment on a change of counsel, when the Appellant had more witnesses to call.
From the printed records, the Appellant opened his case on 24/9/07 and called five witnesses, the matter was adjourned to 25/10/07, pages 474 – 480 of the records. Between 25/10/07 and 21/11/07 the Appellant called nineteen (19) witnesses, pages 481 – 499 of the records. It is on record that on 29th November, 2007, the Appellant changed his counsel, Ajibade Ismail Esq. holding the brief of Chief Adeniyi Akintola (SAN) appeared, stood the matter down to enable him meet with his witnesses. There was no objection, the matter was stood down for 30 minutes, after which Mr. Jimoh was announced, two witnesses testified, PW20 and PW21, page 500 – 503 of the records. Learned counsel (Mr. Jimoh) thereafter asked for an adjournment till 3rd (Monday) December, 2007 to enable him bring his witnesses for the reason that the office of Niyi Akintola (SAN) had just come into the matter and if the adjournment was allowed promised to call all the remaining witnesses. At page 503 – 504 of the records the proceedings went thus:
“Mr. Jimoh – I urge the Tribunal not to involve (sic) the provisions of paragraph 5 of the Practice Directions in this petition; Because of the peculiar circumstance of the fault of the petition is that the office of Niyi Akintola (SAN) is just coming into this petition today and inspite of that we have made some progress. We shall call all the remaining witnesses on the next adjourned date. I urge the Tribunal in the interest of Justice to accede to our request.
Tribunal – The Tribunal has offered (sic) the petitioner every available opportunity to present his petition but it seems clear to us that he is not willing to do so. From September, 2007 to November, 2007 is sufficient period for him to have presented all his witnesses.
We refuse to grant indulgence he is asking for and we do involve (sic) the provision of Paragraph 5(7) to close his case.” (Underlined mine for emphasis)
The Tribunal thereafter closed the case of the petitioner and adjourned the petition to 7/12/07 for Defence. In agreement with the learned counsel to the Appellant, even though an application for an adjournment is not granted as a matter of course but, entirely at the discretion of the Court or Tribunal whatever the case may be, depending on the circumstances of the particular case. Such discretion must be exercised judiciously and judicially. In the present case from the records of court (earlier reproduced in this judgment) the only reason the application for adjournment was sought was the change of counsel on the said Thursday, 29th November, 2007. In actual fact, the new counsel even took the evidence of two witnesses (PW20 and PW21) before seeking the adjournment to enable him call all the remaining witnesses he required to call in proof of the petitioner’s case.
There is nothing on record to show that the Appellant had in the past sought unnecessary adjournments or had caused the delay of hearing in any way. The adjournment sought was for a few days, from Thursday 29th November, 2007, to Monday 3rd December, 2007, yet the Tribunal ruled that it had offered the Petitioner every available opportunity to present his petition and the petitioner unwilling to do so, with respect, there is no evidence to support this holding, it is therefore erroneous.
The learned Tribunal in refusing the application for adjournment closed the case of the Appellant and adjourned for Defence, ironically gave a date beyond the date sought by the Appellant, by adjourning the matter for defence to 7/12/07. In my considered opinion, with respect asking for a four day adjournment after taking two witnesses as a new counsel in the matter was not unreasonable. The trial Tribunal ought to have allowed the adjournment to enable the new counsel take over the Appellant’s matter fully, since this was the only reason for the application. The Appellant through his counsel who made it clear he had other witnesses to call was shut out from presenting his case fully by the learned trial Tribunal who ordered his case closed. My observation at this juncture is: the Appellant engaged a new counsel for a purpose, and if the, new counsel is not allowed to present his case fully by calling more witnesses as he would want him to do, the essence and/or purpose of having counsel of his choice present his case is defeated. In the case of MOBIL OIL (NIG.) LTD. VS. NABSONS LTD. (1995) 7 NWLR (PART 407) 254 AT 265, his Lordship Mohammed, JSC, of the Apex Court had this to say in a similar situation as has arisen here:
“Where there is change of counsel, during trial, and the new counsel applies for a short adjournment to enable him prepare and be fully briefed by his client it will amount to a judicious exercise of discretion if the Courts grant the application. Refusal to adjourn, in such a situation may amount to taking away the right of a party to have a counsel of his choice”
Justice is for both parties. Considering the circumstances of this case, the reason for the application sought and the nature of this matter, the interest of justice would have been better served by granting the application than refusing it, the Tribunal ought to have granted the adjournment to enable the new counsel prosecute the Appellant’s petition after the withdrawal of his former counsel from the proceedings before the Tribunal. See USANI V. DUKE (2004) (SUPRA). It is trite that justice delayed is justice denied, in the same vein hasty justice, is no justice and as bad as delayed justice. A few days adjournment would not have hampered the justice of the matter in any way. See UNONGO V. AKU (1983) 2 SCNLR 332, 352: ECOBANK (NIG.) PLC V. GATEWAY HOTELS LTD (1999) 11 NWLR (PART 627) 397, 429.
As much as one would want to dispose of election matters speedily but, it cannot be at the expense of giving equal opportunities to the parties to be heard, in this case the learned Tribunal did not give the Appellant full opportunity to be heard when he had a good and justified reason for seeking an adjournment, the refusal violated his constitutional right to fair hearing. See MENKITI V. MENKITI (2000) 8 NWLR (PART 667) 154 AT 165: 168.
In considering any appeal which relates to the issue of fair hearing, the entire proceedings in the lower court must be thoroughly examined and scrutinized, in this case the Appellant has not been shown to have caused unnecessary delay of the proceedings up to the point of his application for adjournment and refusal by the Tribunal. See the case of EBELE & ORS. VS. IKWEKI & ORS. 7 NWLR (PART 405) 91 AT 99. The Court ought to, when considering such application as arose in the present case, decide on the competing issues of doing justice and of speedily determining the issues before it, See SOLANKE V. AJIBOLA (1968) 1 ALL N.L.R. 46 AND INTERNATIONAL INSURANCE GROUP LTD. V. ALAO (1990) 3 NWLR (PART 141) 773. The case is different when several unnecessary adjournments have been sought by a party or counsel. Each application for adjournment must be considered on its merit bearing in mind the justice of the case. See USIKARO V. ITSEKIRI LAND TRUSTEES (1991) 22 N.S.C.C. (PART 1) AT 298: 1901 2 NWLR (PART 172) 150 AT 179 – 180.
The real issue where the question of fair hearing has been raised is: Whether an opportunity of hearing was afforded to the parties entitled to be heard, hearing here is full hearing, allowing the parties to put in all they have, in this case evidence through witnesses without being stampeded by the court or Tribunal, in this case the Tribunal went ahead and closed the petitioner’s case even though the learned counsel made it clear that the Appellant had other witnesses to call. See J.C.C. INTER LTD. V. N.G.I. LTD. (2002) W.R.N. 91. In order to be fair, “hearing” or “opportunity to be heard” in proceedings must include a party’s right to give evidence by himself, call witnesses, if he likes, and make oral submissions personally or through a counsel of his choice. See NWANEGBO V. OLUWOLE (2001) 37 WRN 101; DAWODU V. N.P.C. (2000) 6 WRN 116 and NJIOKWUEMENI V. OCHEI & ORS. (2004) 15 NWLR PART 895.
Fair hearing involves a fair trial, where any reasonable and fair minded observer watching the proceedings would walk away with the conclusion that the trial was fair to all parties. See the cases of AYORINDE V. FAYOYIN (2001) FWLR (PART 75) 483 and KOTOYE V. C.B.N. & ORS. (1989) 1 NWLR (PART 98) 419. It is essential for a fair trial, that the parties are given equal treatment, opportunity and consideration in the conduct of their cases, which was not done in the present case. The question is not whether any injustice has been occasioned but the question of affording both parties equal opportunities to be heard. Justice must not only be done but must always be seen to have been done by the ordinary or reasonable man, an independent observer. See USANI V. DUKE (SUPRA) and ARIORI & ORS. V. ELEMO & ORS. (1983) 1 SC 13 AT 23.
The learned trial Tribunal’s strict application of Paragraph 5(7) and (6) of the Practice Directions, 2007, in my view was a technical approach and over adherence to the rules of procedure thus breaching the Appellant’s constitutional right to fair hearing.
The issue of fair hearing or lack of it has been comprehensively dealt with over and over again by this court and division in its recent decision in LASUN V. AWOYEMI (2009) 16 NWLR (PART 1168) 513 OMIDIRAN V. ETTEH, CA/I/EPT/NA/08 delivered on 22/3/10, FAMUREWA V. 0NIGBOGI & ORS. in CA/I/EPT/HA/08 delivered on 16/4/10 and CA/I/EPT/HA/92/08 AKANBI V. BELLO & 129 ORS. delivered on 11/5/08.
The refusal of the learned Tribunal to exercise his discretion of granting the adjournment and arbitrarily closing the Appellant’s case obviously amounted to deprivation of the right of the Appellant to obtain substantial justice, the Tribunal did not exercise its discretion judicially, same must therefore be interfered with by this Court. It is clear that the refusal to allow an adjournment to call the remaining Appellant’s witnesses and adjournment for defence occasioned a miscarriage of justice, and I so hold. See I.I.G. LTD. V. ALAO (SUPRA), and A.C.B. LTD. V. AGBANYIM (1960) 5 F.S.C. 19: (1960) SCNLR 57 on the other hand, adjournments which are designed to delay or defeat justice should be refused, see AKPAN V. THE STATE (1991) 3 NWLR (PART 182) PAGE 646 AT 661, which has not been shown to be the case in the present case.
I am in agreement with the learned counsel to the Appellant that the closure of the Appellant’s case was abrupt and premature; therefore it impaired fair trial of the Appellant’s petition. The Court/Tribunal whatever the case may be, must avoid undue adherence to legal technicality by strictly applying as in this case, the rules of procedure. The Practice Direction was made to guide the proceedings and not to be used to stifle justice that would be no justice at all. See NEWSWATCH COMMUNICATIONS LTD. VS. ALHAJI ALIYU I ATTA, 26 NSCQR (PART 1) 438 AT PAGES 467 – 468.
Having held that there was no fair hearing, since the Appellant was denied the opportunity to be heard fully and to present his case by calling all the witnessed he desired, to call through his new counsel, the Tribunal did violate the Appellant’s right to fair hearing, the breach of which renders its decision null and void. See ASHIRU VS. AYOADE (SUPRA), TUBONEMI V. DEKIBO (SUPRA) ANDY V. MFON (SUPRA) The principle of fair hearing is fundamental to all court procedure and proceedings, the absence of it has been held to vitiate the proceedings in the several judicial authorities above no matter how well the case was conducted and decided. The end result is that the Appellant’s issue three would and is hereby resolved in his favour.
Having resolved issues 2 and 3 in favour of the Appellant, resolution of the first issue either way would not make a difference to the outcome of this appeal, it would therefore be a waste of judicial time.
In the prevailing circumstances, the appeal succeeds and is hereby allowed in terms of the alternative relief sought as per the Appellant’s Notice of Appeal filed on 6/5/08.
I order that the Ruling of the Tribunal sitting at Osogbo in Petition No. NA/EPT/OS/10/07 of 29/11/07 and final judgment of 15/4/08 respectively are hereby set aside. In its place, I make the following orders:
(1) An order of re-trial of the Petition for having occasioned a miscarriage of justice.
(2) An order that the petition be heard and determined by another Panel of Judges to be constituted by the Honourable President of the Court of Appeal.
Parties are to bear their respective costs.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: I have had the benefit of reading in draft the judgment of my learned brother, CHIDI NWAOMA UWA, JCA just delivered. His Lordship has meticulously considered the issues in contention in this appeal. I agree with His reasoning and conclusion.
The principle of fair hearing is fundamental to all court procedure and proceedings and like jurisdiction, the absence of it vitiates the proceedings no matter how well conducted. See ATANO VS. BENDEL STATE (1988) 2 NWLR (75) 132; SALU VS. EGEIBON (1994) 6 NWLR (348) 23; CEEKAY TRADERS VS. G.M. CO. LTD. (1992) 2 NWLR (222) 132; AISTHOM VS. SARAKI (2005) 3 NWLR (911) 208.
The test of fair hearing is based on the impression of a reasonable person who was present and witnessed the proceedings and whether from his observation justice has been done in the case. See SHEKETE VS. N.A.F. (2007) 14 NWLR (1053) 159 at 192 D-F.
The first issue I wish to add my comments to is the finding of the lower Tribunal that the evidence of PW1-PW21 is hearsay being that of ward supervisors who are not persons lawfully authorized to be at any of the polling units having regard to the provisions of Section 62 (1) and 46 (1) of the Electoral Act.
Section 62 (1) of the Act provides:-
“(1) The Presiding Officer shall regulate the admission of voters to the polling station and shall exclude all persons other than the candidates, polling agents, polling 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.” (Emphasis supplied)
Section 46 (1) of the Act provides inter alia\-
“Each Political Party may by notice in writing addressed to the Electoral Officer of the Local Government/Area Counsel appoint a person (in this Act referred to as a “Polling Agent”) to attend at each polling unit in the Local Government/Area Council for which it has candidate and the notice shall set out the name and address of the polling agent and be given to the Electoral Officer at least 7 (Seven) days before the date fixed for the election.”
Section 62 (1) of the Act imposes a duty on the Presiding Officer to regulate the admission of voters to the polling station and to exclude all persons other than those stated therein i.e. polling agents, polling clerks etc. It however also refers to “persons lawfully entitled to be admitted.” It seems to me that the expression gives the Presiding Officer discretion to admit persons who have legitimate reasons to be at the polling station. As observed by my learned brother in the lead judgment, the Ward Supervisors were present at the various units and wards to monitor and supervise the polling/party agents and the general conduct of the election. If they were not excluded from the polling station by the Presiding Officer in exercise of his powers under Section 62 (1) of the Electoral Act, they were entitled to testify, and give evidence of what they personally witnessed during the election. Section 46 (1) of the Electoral Act makes specific provision for the appointment of polling agents by political parties. There, is nothing in the wording of the section to suggest that Ward Supervisors may not be appointed by Political Parties.
The evidence of a witness as to what he personally saw or heard cannot be deemed hearsay merely because he ought not to have been at the place where he saw or heard the facts he testified to. By virtue of Sections 77 and 155 of the Evidence Act, the witnesses were competent witnesses. Their evidence ought not to have been jettisoned out of hand.
The probative value to be attached to their evidence would have been a different consideration altogether. Indeed some of their testimony might have amounted to hearsay but not on the ground that they were at the wrong place at the wrong time.
in the circumstances of this case the failure of the Tribunal to consider the evidence of PW1 – PW21 on the ground that they were not persons lawfully entitled to be at the polling stations meant that vital evidence relevant to the appellant’s case was not considered and this amounted to depriving him of his right to fair hearing.
With regard to the application for adjournment, there is no doubt that the grant or refusal of such an application is at the court’s discretion which must be exercised judiciously and judicially taking all the facts and circumstances of the case into consideration. The constitutional right to fair hearing must never be sacrificed on the altar of speed: See OGLI OKO MEMORIAL FASONS LTD. VS. N.A.C.B. LTD. (2008) ALL FWLR (419) 400; SALU VS. EGEIBON (supra) at 34-35 G-D.
In the instant case learned counsel for the Petitioner sought an adjournment from Thursday 29th November, 2007 to Monday 3rd December, 2007 on the ground that the firm of Chief Niyi Akintola, SAN had just been briefed to take over the matter. To show the petitioner’s seriousness learned counsel holding Chief Niyi Akintola SAN’s brief after a short stand down, led two witnesses in evidence, bringing to 21 the number of witnesses so far called by the Petitioner. In refusing the application for adjournment the Tribunal closed the petitioner’s case and adjourned the matter to 7th December, 2007 for defence, a date well after the date requested by the Petitioner’s counsel. There was nothing before the Tribunal to show indolence on the part of the petitioner in prosecuting his case to warrant the invocation of paragraph 5 (7) of the Practice Directions 2007 against him.
It is my respectful view that there was a clear breach of the appellant’s constitutional right to fair hearing in this case. The entire proceedings are therefore a nullity.
For these and the more detailed reasons contained in the lead judgment, I also find merit in this appeal and accordingly allow it. I abide by all the orders contained in the lead judgment including the order for costs.
SIDI DAUDA BAGE, J.C.A.: I had a preview of the judgment just delivered by my learned brother, C. N. Uwa, J.C.A. His Lordship has dealt with the issues raised exhaustively and there is nothing more to add.
I agree with the reasoning and conclusion that the appeal is meritorious. For the reasons ably advanced therein, I also allow the appeal and dismiss the Ruling of the Tribunal sitting at Osogbo in Petition No. NA/EPT/OS/10/07 of 29/11/07 and final judgment of 15/4/08 respectively.
I abide by the order awarding no costs.
Appearances
F.A. Aofolaju (Miss);
S.A. Aborishade Esq.
Temidayo Agboola (Mrs.). For Appellant
AND
3rd – 312th Respondents absent even though served with Hearing Notices.
Adekemi A. O. (Mrs.), Osun State Ministry of Justice for 313-314th
Respondents. For Respondent
