SHUAIB AFOLABI SALISU v. JELILI KAYODE AMUSAN & ORS.
(2010)LCN/4105(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 8th day of December, 2010
CA/I/EPT/NAHR/50A_B/2008
RATIO
ORDER OF COURT: WHETHER ORDER OF COURT MUST BE OBEYED
…order of court must be obeyed as the order stems from the rules of procedure which are made for the convenience and orderly hearing of cases in court. They are made to help the cause of justice. See the case of ADEDIGBA v. OKWU (2005) ALL F.W.L.R. Part 278 Page 1142 at 1154 Paragraphs E – F. PER MODUPE FASANMI, J.C.A.
PRELIMINARY OBJECTION: WHETHER WHENEVER PRELIMINARY OBJECTION IS RAISED ON APPEAL, AN APPELLATE COURT IS DUTY BOUND TO RESOLVE IT FIRST BEFORE DETERMINING THE APPEAL ON MERIT
It is well settled that whenever preliminary objection is raised on appeal, an appellate Court is duty bound to resolve it first before determining the appeal on merit. See ANYAONU vs. CHUKWNMA (2010) 40 W.R.N. page 118 at 137 lines 30-40 and UBE VS. YAWE (2000) 8 N.E.L.R Part 670 at 739. The preliminary objection seeks the disposal of this appeal on technical grounds. The paramount consideration of this Court is to do substantial justice between the parties. PER MODUPE FASANMI, J.C.A.
DUTY OF THE COURT TO ENDEAVOUR TO HEAR PARTIES IN AN ELECTION PETITION WITHOUT ALLOWING TECHNICALITIES TO UNDULY BATTER THEIR JURISDICTION
There is no doubt that rules of Court are prima facie meant to be obeyed. A Court should not in the process allow strict adherence to technicalities to enthrone injustice. In election petition proceedings, it is in the interest of justice that parties are given full opportunity to ventilate their case without undue regard to technicalities. See the cases of ABUBAKAR v. YAR’ADUA (2009) 5 W.R.N. at 1, (2008) 4 N.W.L.R. Part 1078 page 538 at 543 paras D-F AREGBESOLA VS. OYINLOLA (2009) 14 N.W.L.R. Part 1162 page 429 at 478-479 paras G-B. LASUN vs. AWOYEMI (2009) 16 N.W.L.R. Part 1168 page 513 at 550 paras E-F. In NWOBODO VS. ONOH (1984) 1 S.C.N.L.R at page 1 the Supreme Court observed that: “Election petitions are by their nature peculiar from any other proceedings —-it is the duty of the Court therefore to endeavour to hear them without allowing technicalities to unduly batter their jurisdiction” This court added its voice in the case AREGBESOLA vs. OYINLOLA Supra at 479 paras A-B thus: The need to do substantial justice is greater in an election petition case than any other case. This is so because the Court is not only concerned with the right of the parties interse but also the larger interests and the right of the people in the various Local Government Areas who had exercised their franchise on Election Day” PER MODUPE FASANMI, J.C.A.
ISSUES FOR DETERMINATION: WHETHER ISSUES FOR DETERMINATION MUST BE BASED ON A GROUND OF APPEAL
For an issue to be competent, it must be based on a ground of appeal. See CAPTAIN AMADI VS. NNPC (2000)5 W.R.N at 47 (2000) 10 N.W.L.R, Part 674 at 76: BANKOLE & 2 OTHERS V. S. DADA & 3 OTHERS (2003) 5 W.R.N at 40; (2003) 11 N.W.L.R Part 830 at 197 and MOBIL PRODUCING NIG. UNLIMITED & ANOR VS. CHIEF MONOKPO & ANOR (2003) 18 N.W.L.R Part 852 at 346. Again where issue or issues is or are not formulated from a ground or grounds of appeal it or they will either be deemed abandoned or discountenanced see NKADO & ORS VS. OBIANO & ANOR (1997) 5 N.W.L.R Part 503 at 31 and GODWIN VS. THE CHIRIST APOSTOLIC CHURCH & ORS (1998) 14 N.W.L.R Part 584 at 162 Issue three of the Appellant is a repetition of issue 2 but couched differently. It is therefore subsumed in issue two of the Appellant. Appellant formulating three issues from a ground to this Court is prolix and unacceptable. PER MODUPE FASANMI, J.C.A.
PROLIFERATION OF ISSUES IN AN APPEAL: WHETHER PARTIES CAN FORMULATE MORE ISSUES THAN THE GROUNDS OF APPEAL
The law has condemned the practice by some counsel in formulating more issues than the grounds of appeal. The practice has always been to have less number of issues than the grounds of appeal as the purpose of issues for determination is to enable the parties narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity see the cases of ANIE & ORs. vs. CHIEF UZORKA & ORS. (1993) 8 N.W.L.R. Part 309 at 1 and ODUMADE VS. OGUNNAIKE (2010) 39 W.R.N. Page 128 at 143. PER MODUPE FASANMI, J.C.A.
HEARSAY: WHEN CAN A STATEMENT BE REGARDED AS HEARSAY
A testimony will be regarded as hearsay where the person making the statement is not the one who either saw it, heard it, perceived it or gave it as his own personal opinion but rather as what was said to him another person, See the decisions of this Court in the following cases OMONGA VS. STATE (2006) 14 NWLR Part 1000 at 532; OBIWUNNE VS. TABANSI-OKOYE (2006) 8 N.W.L.R. Part 981 at page 1004 and LASUN vs. AWOYEMI (2009) 16 NWLR page 513 at 554 paras B-D. See also Section 77 and 92 of the Evidence Act. The term hearsay has been defined in the Black’s Law Dictionary 7th Edition page 728 as: “A 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…” PER MODUPE FASANMI, J.C.A.
ELECTION PETITION : ON WHOM LIES THE BURDEN OF PROOF IN ELECTION PETITION
The burden of proof in election petition is on the Petitioner. PER MODUPE FASANMI, J.C.A.
JUSTICES
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
SHUAIB AFOLABI SALISU Appellant(s)
AND
JELILI KAYODE AMUSAN & ORS. Respondent(s)
MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment): The interlocutory and the substantive appeals in the matter were filed separately and the briefs were filed separately as well. Both appeals were given the same number as CA/I/NAHR/50A&8/2008. In the circumstance, I shall deal with the interlocutory appeal first before going into the substantive appeal.
This is an appeal against the ruling of the Ogun State Governorship/Legislative Houses Election Petition Tribunal, Abeokuta delivered on the 22nd of November, 2007 in which the Tribunal struck out 18 out of 30 paragraphs of the Petitioner’s petition on the ground that they were vague nebulous, ambiguous and without clarity of facts. Being dissatisfied with the ruling, Appellant appealed to this court vide a notice of appeal dated 28th November, 2007. The said notice of appeal was later amended pursuant to the order of this Court on the 5th of February, 2009.
The amended notice of appeal dated 12th of February, 2009 increased the grounds of appeal from the initial three to four pursuant to the order of this Court.
The Appellant herein contested the election held on 22nd of November, 2007 into the Federal House of Representatives in Abeokuta North/Obafemi, Owode/Odeda Federal Constituency on the platform of the Action Congress while the 1st Respondent contested the election on the platform of the Peoples Democratic Party. At the conclusion of the election, the 1st Respondent was declared winner and returned as the elected member of the Abeokuta North/Obafemi Owode/Odeda Federal Constituency of the House of Representative. Being dissatisfied with the result of the election which returned the 1st Respondent, Appellant filed a petition dated 21st of May, 2007 challenging the result of the said election before the lower Tribunal seeking a relief that:
It be determined that the National Assembly elections for Abeokuta North/Obafemi Owode/Odeda Federal Constituency in the House of Representatives held on 21st 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 election that none of the candidates in the said election can be validly returned as having validly won the said election.
The parties duly filed and exchanged pleadings. By a motion on notice dated 21st November, 2007, 1st Respondent challenged the competence of the petition and sought the following reliefs.
(1) An order striking out the entire petition on the following grounds:
(i) The facts of the petition and the ground(s) sought to be relied upon by the petitioner and on which the petition is based are nebulous, ambiguous, vague and unclear.
(iii) The Petitioner failed to comply with the mandatory requirement of the law by filing an Election Petition as prescribed by paragraph 4(1)(d) of the First Schedule to the Electoral Act 2006 by not stating clearly the facts of the Election Petition and the Ground(s) upon which the petition is based.
IN THE ALTERNATIVE
Striking out all the paragraphs of the averments which are vague, imprecise and unclear in the petition.
The parties filed and exchanged written addresses on the preliminary objection. In a considered ruling delivered on the 22nd of November, 2007, the lower Tribunal struck out paragraphs 15.1-15.8, 16, 17, 22, 24, 25, 26 and 29 (a)-(e) and (g)-(i) of the petition for lack of clarity. Appellant dissatisfied with the ruling appealed to this Court vide a notice of appeal dated 28th of November, 2007.
Appellant filed his 2nd amended brief of argument settled by Osasu Isibor Esq., in respect of the interlocutory appeal on the 18th of May, 2009 while the 1st Respondent’s brief of argument on the interlocutory appeal incorporating a preliminary objection settled by O. O. Ojutalayo Esq., was filed on 18/1/10 but deemed properly filed on 5/10/2010. The 2nd-529th Respondents did not file any brief. At the hearing of the appeal, Appellant and the 2nd – 529th Respondents although duly served with hearing notices against the hearing date were absent and unrepresented by Counsel. Since Appellant has filed his brief of argument, he was deemed to have argued the appeal pursuant to Order 17 rule (9) (4) of the Court of Appeal Rules 2007.
Since the 1st Respondent has filed a preliminary objection, it is necessary to consider it first before delving into the merits of the appeal. 1st Respondent has argued the preliminary objection at pages 3 to 5 of his brief.
1st Respondent challenged the competence of the interlocutory appeal on the ground that there is no legally cognizable brief of argument in support thereof. Learned Counsel contended that the Appellant has three different Appellant’s brief of argument with respect to the interlocutory appeal before this Court. None of which was properly filed accordance with the relevant rules of court. The Appellant neither sought nor obtained the requisite leave of this Hon. Court before filing and serving:
(i) The amended brief of argument dated the 7th of October, 2008
(ii) Appellant’s Further Amended brief of argument though undated but filed on the 12th of December, 2008 and
(iii) Appellant’s 2nd Amended brief of argument dated 18th May, 2009 all in respect of the interlocutory appeal.
Appellant kept amending his briefs of argument without obtaining the leave of court to do so. He contended that the proliferation of Appellant’s briefs before the Court erodes the presumption of regularity of such briefs and as such leave the Court to fish for the appropriate brief out of many before it. Learned counsel for the 1st Respondent further contended that where issues are not formulated from the grounds of appeal put forward by the Appellant, this court will of necessity consider same as non issue deserving of being discountenanced. He placed reliance on the cases of OGUN vs. ASEMAH (2002) 4 N.W.L.R. Part 756 at 208 particularly at 563 paras C-D; DIELO VS. IWUNO (1996) 4 N.W.L.R. Part 445 at 622 and PETGAS RES. LTD. VS. MBANEFO (2007) 6 N.W.L.R. Part 1031 page 563 paras C.D. 1031 page 563 paras C-D. Issues 3 & 4 formulated in the Appellant’s 2nd amended brief of argument dated and fired on the 18th of May, 2009 do not flow from grounds 3 & 4 of the notice of appeal dated the 12th of February, 2009 and filed the same day. Learned counsel urged this court to dismiss the interlocutory appear in its entirety since there is no legally cognizable Appellant’s brief of argument before the Court.
From the Court’s record, the court observes that the Appellant’s brief of argument filed on 7th October, 2008 and 12th December, 2008 respectively on the interlocutory appeal were struck out on 19/1/2010. Appellant moved his motion on notice filed 18/2/10 seeking leave of the Appellant to amend his 2nd amended brief of argument filed on 18/5/09 on the 5th of October, 2010. Appellant was granted leave to amend the brief within 7 days but failed to comply with the order of the court, order of court must be obeyed as the order stems from the rules of procedure which are made for the convenience and orderly hearing of cases in court. They are made to help the cause of justice. See the case of ADEDIGBA v. OKWU (2005) ALL F.W.L.R. Part 278 Page 1142 at 1154 Paragraphs E – F. The Appellant’s 2nd amended brief of argument is therefore not properly before the Court. This is not a situation where the Court can relax the rule being an election petition matter. Appellant came to seek for the order to amend but failed to comply with it after being granted the relief. There is therefore no competent brief before the court to support the interlocutory appeal. The interlocutory appeal is hereby struck out. The preliminary objection succeeds.
I will now go to the substantive appeal
This is an appeal against the Judgment of the Ogun State Governorship/legislative Houses Erection petition Tribunal delivered on the 27th of February, 2008. The Tribunal dismissed the petition as lacking in merit. Being dissatisfied with the judgment. Appellant appealed to this Court vide a notice of appeal dated the 17th day of March, 2008.
The Appellant herein contested the election held on 21/4/07 into the Federal House of Representatives in Abeokuta North/Obafemi, Owode/Odeda Federal Constituency on the platform of the Action Congress while the 1st Respondent contested the action on the platform of the Peoples Democratic Party. Appellant in his petition alleged widespread acts of thuggery perpetrated by the thug of the 1st Respondent, disruption of voting exercise by the said thugs in connivance with the law enforcement officer detailed to ensure peaceful, free and fair election, illegal stuffing and thumb-printing of ballot papers by agents of the 1st Respondent in manner devoid of all civilized rules of universal norms hijacking and carting away of ballot boxes, substantial non-compliance with the provisions of Electoral Act and Electoral guidelines issued pursuant thereto e.t.c.
Based on the above acts which Appellant stated has substantially affected the result of the election, Appellant filed his petition dated 21st of May, 2007 challenging the result of the said election before the lower Tribunal seeking a relief that:
It be determined that the National Assembly elections for Abeokuta North/Obafemi Owode/Odeda Federal Constituency in the House of Representatives held on 21st 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.
The parties duly filed and exchanged pleadings. By a motion on notice dated 12th November, 2007, 1st Respondent challenged the competence of the petition and sought the following reliefs:
(1) An order striking out the entire petition on the following grounds:
(i) The fact of the petition and the ground(s) sought to be relied upon by the petitioner and on which the petition is based are nebulous, ambiguous, vague and unclear
(ii) Particular of the facts and the grounds of the petition pleaded by the Petitioner are vague imprecise, two wide and two general to substantiate the allegations of fraud and non-compliance with the provisions of the Electoral Act 2006
(iii) The Petitioner failed to comply with the mandatory requirement of the law by filing on Election petition as prescribed by paragraph 4(1)(d) of the First Schedule to the Electoral act 2006 by not stating clearly the facts of the Election Petition and the ground(s) upon which the petition is based.
IN THE ALTERNATIVE
Striking out all the Paragraphs of the averments which are vague, imprecise and unclear in the petition.
The parties filed and exchanged written addresses. In a considered ruling delivered on the 22nd of November, 2007 the lower tribunal struck out paragraphs 15.1-15.8, 16, 17,22,24,25,26 and 29 (a)-(e) and (g)-(i) of the petition for lack of clarity. Appellant dissatisfied with the ruling appealed to this Court vide a notice of appeal dated 28th of November, 2007.
The notice of appeal on the ruling was filed separately and the briefs exchanged by the parties were filed separately. Same have been dealt with in the early part of this judgment. The preliminary objection on the interlocutory appeal was sustained and the interlocutory appeal struck out.
At the hearing of the petition, the Petitioner now the Appellant called 15 witnesses. He also tendered in evidence exhibits which the Tribunal marked as exhibits P1-P19 (p) respectively.
The 1st Respondent at the hearing called a total of 8 witnesses and tendered 2 exhibits R (1) – R (2).
The 3rd Respondent called 10 witnesses and tendered no exhibit in support in defence. Parties presented their written addresses and the learned Tribunal on the 27th of February, 2008 delivered its judgment wherein it held that the Petitioner/Appellant had not adduced credible evidence to prove his case and therefore dismissed the petition.
Being dissatisfied with the judgment of the learned Tribunal, Appellant filed a notice of appeal on the 17th of March, 2008 containing two grounds of appeal.
Appellant filed his amended brief of argument on the 7th of January, 2009. The brief was settled by Osasu Isibor Esq. while the 1st Respondent’s brief of argument on the substantive appeal contains a preliminary objection thereto settled by O. O. Ojutalayo Esq. was filed on 17/2/10 but deemed filed on 5/10/2010. The 2nd – 529th Respondents did not file any brief. At the hearing of the appeal. Appellant and the 2nd -529th Respondents although duly served with the hearing notices against the date were absent and unrepresented by Counsel. Since appellant has filed his brief of argument, he was deemed to have argued the appeal pursuant to order 17 rule (9)(4) of the Court of Appeal Rules 2007.
It is necessary to consider the preliminary objection of the 1st Respondent before delving into the merits of the appeal. 1st Respondent has argued the preliminary objection at pages 6-8 of his brief. Learned Counsel adopted and relied on the arguments for the preliminary objection. He challenged the competence of the appeal on the ground that it was not properly filed in accordance with the relevant rules of Court: Appellant did not obtain the requisite leave of this Court before filing and serving the Appellants Amended Final Brief of argument. He placed reliance on the cases of TILBURY CONSTRUCTION CO. LTD & ANOTHER VS. OGUNNIYI (1988) 2 N.W.L.R Part 74 at 64; METAL CONSTRUCTION (WEST AFRICA) LTD VS. MIGLIORE AND OTHERES (1990) 1 N.W.L.R Part 126 at 299; CHIEF OJUKWU VS. MISS ONYEADOR (1991) 7 N.W.L.R Part 203 at 286.
He submitted further that Appellant formulated three issues from one single ground of appeal. The issues have thereby become proliferated and prolix. He referred to the cases of A.C.B.P.T.C. VS. ODUKWE (2005) ALL F.W.L.R Part 276 at 804; DREXEL ENERGY & ORS VS. TRANS INTERNATTONAL BANK LTD & 2 OTHERS (2008) 12 S.C part II page 240 at page 270 paras 23-35 and GWAR vs. ADOLE (2003) F.W.L.R Part 176 page 747 at 750. 1st Respondent urged the Court to strike out the Appellant’s Amended Final Brief of Argument filed on 7th January, 2009 for being incompetent. Appellant’s Counsel did not file a reply brief.
It is well settled that whenever preliminary objection is raised on appeal, an appellate Court is duty bound to resolve it first before determining the appeal on merit. See ANYAONU vs. CHUKWNMA (2010) 40 W.R.N. page 118 at 137 lines 30-40 and UBE VS. YAWE (2000) 8 N.E.L.R Part 670 at 739. The preliminary objection seeks the disposal of this appeal on technical grounds. The paramount consideration of this Court is to do substantial justice between the parties. There is no doubt that rules of Court are prima facie meant to be obeyed. A Court should not in the process allow strict adherence to technicalities to enthrone injustice. In election petition proceedings, it is in the interest of justice that parties are given full opportunity to ventilate their case without undue regard to technicalities. See the cases of ABUBAKAR v. YAR’ADUA (2009) 5 W.R.N. at 1, (2008) 4 N.W.L.R. Part 1078 page 538 at 543 paras D-F AREGBESOLA VS. OYINLOLA (2009) 14 N.W.L.R. Part 1162 page 429 at 478-479 paras G-B. LASUN vs. AWOYEMI (2009) 16 N.W.L.R. Part 1168 page 513 at 550 paras E-F.
In NWOBODO VS. ONOH (1984) 1 S.C.N.L.R at page 1 the Supreme Court observed that:
“Election petitions are by their nature peculiar from any other proceedings —-it is the duty of the Court therefore to endeavour to hear them without allowing technicalities to unduly batter their jurisdiction”
This court added its voice in the case AREGBESOLA vs. OYINLOLA Supra at 479 paras A-B thus:
The need to do substantial justice is greater in an election petition case than any other case. This is so because the Court is not only concerned with the right of the parties interse but also the larger interests and the right of the people in the various Local Government Areas who had exercised their franchise on Election Day”
For the reasons stated above, the Court in applying these principles will not make a heavy weather of the Appellant’s brief for not obtaining the leave of Court before filing same. The Court will draw the best it can out of the inelegant brief of argument to ensure that the appeal is heard on its merit being an election matter see NDUKWE vs. THE STATE (2009) 37 N.S.C.Q.R at 425.The preliminary objection on this score lacks merit and it is accordingly dismissed.
Learned Counsel for the 1s Respondent adopted and relied on his brief of argument filed on 17/2/2010 but deemed properly filed on 5/10/2010 while Appellant who was served with the hearing notice of the appeal but absent is deemed to have argued the appeal on the brief filed by virtue of Order 17 rule 9 (4) of the Court of Appeal Rules 2007. 2nd – 529th Respondents did not file any brief.
Appellant filed two grounds of appeal in the notice of appeal and distilled three issues from ground one of the notice of appeal filed on 17th March, 2008. They are as follows:
(i) Whether the evidence proffered by the Petitioners witnesses who personally monitored the conduct of the 21st April, 2007 election as contained in their statement on oath at pages 16-147 of the record of appeal could be regarded as hear say evidence
(ii) And if no, whether the trial Tribunal in its judgment of 27th February, 2008 carried out a proper evaluation of the evidence as placed before it by the Petitioner’s witnesses particularly at pages 19-76 of the record of appeal
(iii) Whether the written reports of polling agents containing the various events of what transpired on the day of the disputed election 21st April, 2007 which report was submitted to the various ward supervisory polling agents and same tendered as evidence during trial could be regarded as hearsay evidence considering the cooperate status of political parties in Nigeria under the Electoral Act 2006
Learned Counsel for the 1st Respondent formulated two issues from the grounds of appeal filed by the Appellant. They are:
(i) Whether the Hon. Tribunal was not correct in holding that from the totality of the materials and facts before it, the Petitioner had failed to proof and sustain his petition and that same was liable to dismissal.
(ii) Whether the judgment of the Hon. Tribunal is against the weight of evidence
For an issue to be competent, it must be based on a ground of appeal. See CAPTAIN AMADI VS. NNPC (2000)5 W.R.N at 47 (2000) 10 N.W.L.R, Part 674 at 76: BANKOLE & 2 OTHERS V. S. DADA & 3 OTHERS (2003) 5 W.R.N at 40; (2003) 11 N.W.L.R Part 830 at 197 and MOBIL PRODUCING NIG. UNLIMITED & ANOR VS. CHIEF MONOKPO & ANOR (2003) 18 N.W.L.R Part 852 at 346. Again where issue or issues is or are not formulated from a ground or grounds of appeal it or they will either be deemed abandoned or discountenanced see NKADO & ORS VS. OBIANO & ANOR (1997) 5 N.W.L.R Part 503 at 31 and GODWIN VS. THE CHIRIST APOSTOLIC CHURCH & ORS (1998) 14 N.W.L.R Part 584 at 162 Issue three of the Appellant is a repetition of issue 2 but couched differently. It is therefore subsumed in issue two of the Appellant. Appellant formulating three issues from a ground to this Court is prolix and unacceptable. The law has condemned the practice by some counsel in formulating more issues than the grounds of appeal. The practice has always been to have less number of issues than the grounds of appeal as the purpose of issues for determination is to enable the parties narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity see the cases of ANIE & ORs. vs. CHIEF UZORKA & ORS. (1993) 8 N.W.L.R. Part 309 at 1 and ODUMADE VS. OGUNNAIKE (2010) 39 W.R.N. Page 128 at 143. It is hoped that learned Counsel will guide against this in future.
I will adopt issues 1 & 2 formulated by the Appellant in the determination of this appeal as they are more appropriate to the grounds of appeal filed.
Issue 1
Whether the evidence proffered by the Petitioner’s witnesses who personally monitored the conduct of the 21st April, 2007 election as contained in their statement on oath at pages 6-147 of the record of appeal could be regarded as hearsay evidence.
Learned Counsel for the Appellant submitted that for a piece of evidence to fall within the plank of what is constituted as a hearsay evidence, it must be an evidence that is proffered by a person who relates the content of the evidence not as a person who was present at the scene of event in issue that constitutes such evidence. He contended that the Hon. Tribunal erred in law when it came to the conclusion in its judgment dated 27th February, 2008 that the evidence of P.W.1 – P.W.15 were hearsay evidence being evidence of what they were told by their agents who were not called to give evidence.
He urged the court to examine the evidence of P.W.1 – P.W.15 as contained on pages 19-76 of the record of appeal. He submitted that their evidence came to their personal knowledge in their course of monitoring the said election. There is nowhere in their statements on oath apart from where report of agents were submitted to them where any other information or evidence came to their knowledge through any other person who was not called as a witness. P.W.1-P.W.15 gave a recount of the various electoral malpractices that occurred on the day of the disputed election and also stated after such recounts in every 2nd to the last paragraphs of their statements on oath that apart from their personal knowledge of the events at the election when they visited the polling units in the wards, they also received written reports from polling agents in all of the witnesses is not hearsay. He referred to Section 77 of the Evidence Act and the cases of ROSANJE VS. BAKARE (1973) 5 SC at 131 and AMINU v. OGUNYEBI (2004) 10 N.W.L.R. Part 882 page 457 at 465. Learned Counsel urged the Court to resolve the issue in the Appellant’s favour.
Learned counsel for the 1st Respondent in response argued that the Petitioner’s agents were alive and no reason whatsoever was proffered to explain their absence at trial while the petitioner sought to were on the evidence led by these so called faceless agents through the supervisory agents who were witnesses before the Tribunal. All the supervisory agents who were deponents and witnesses before the Honourable Tribunal stated in paragraph 4 of their respective depositions thus:
“Each polling station in ward has a polling agent who reported to me accurately”
He asked why the polling agents were not called to testify at trial. Could it be that they could not survive the barrage of cross-examination. He submitted that the information which culminated in the reports tendered on behalf of these Polling Agents by the petitioners witnesses were not derived from the personal knowledge of the supervisory agents but from the knowledge of the respective polling agents whose respective names were not mentioned and who were not called to testify at trial. He referred to the case of EDU & ORS VS. COMMISSIONER FOR AGRIC WATER RESOURCES AND RURAL DEVELOPMENT (2001) F.W.L.R. Part 55 page 433 at 453 para. D. He urged the Court to resolve issue one against the Appellant.
A testimony will be regarded as hearsay where the person making the statement is not the one who either saw it, heard it, perceived it or gave it as his own personal opinion but rather as what was said to him another person, See the decisions of this Court in the following cases OMONGA VS. STATE (2006) 14 NWLR Part 1000 at 532; OBIWUNNE VS. TABANSI-OKOYE (2006) 8 N.W.L.R. Part 981 at page 1004 and LASUN vs. AWOYEMI (2009) 16 NWLR page 513 at 554 paras B-D. See also Section 77 and 92 of the Evidence Act.
The term hearsay has been defined in the Black’s Law Dictionary 7th Edition page 728 as:
“A 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…”
The burden of proof in election petition is on the Petitioner.
If the allegation borders on malpractices and irregularity, the standard of proof required by law is upon the preponderane of evidence as required by Sections 136 & 137 of the Evidence Act. See the cases of JACKS VS. WHYTE (2001) 6 N.W.L.R. Part 709 at 266 and DAODU VS. N.N.P.C. (1998) 2 NWLR Part 538 at 355. Where electoral malpractices are criminal in nature, the Petitioner is required to prove such allegation beyond reasonable doubt. The statements of the Petitioner’s witnesses on oath are their evidence in Chief-in Court. They don’t have to start repeating what they have stated earlier in their written statements on oath once they have adopted their statements as their evidence. P.w.1 stated that at 8.30a.m election was already completed at Elegunmeta unit before the arrival of the A.C agent. p.w.4 said that their agents were intimidated and scared away. In Orile-Ilugun ward, witness said non of their agents was given form to sign and there was no vote count at Ajobo ward. The Petitioner’s witnesses statements on oath stated that they moved from one polling unit to another to co-ordinate and monitor the polling units. They stated further that some thugs came in different motorcycles, armed with guns and cutlasses, snatched ballot papers from I.N.E.C officials, dispersed electorates and party agents with guns and matchets, thumb-printed the ballot papers and stuffed them into ballot boxes.
The Tribunal found at page 683 of the record as follows:
“But in their effort to prove this case, they relied principally on the evidence led by the Petitioner’s witnesses and reports of the agents who were not called as witnesses. They overlooked the point that these witnesses P.W.1-P.W.15 were not on the field where the results being challenged were counted and entered on the forms. The evidence relied on by P.W.1-P.W.15 are therefore what they were told by their agents who were not called to give evidence. The correct evidence and first hand information ought to come from the polling agents, collation agents, local government collation agents up to the Constituency level, see the case referred to by the learned Counsel for the 3rd – 527th Respondents, HASHIDU vs. GOJE; OMOBORIOWO VS. AJASIN (1984) 1 S.C.N.L.R.W at 8. Agents are the people allowed by the Electoral Act to be at various polling units and collation centre, any other person there is nothing but a busy body. There is no cogent and credible evidence to show people were admitted into the polling stations after the close of the polls, there is no evidence to show voters were permitted to remain in the polling unit or stationed after the close of the polls, if there is any evidence from the persons who were authorized to be at the polling centre, from the opening of the polls to the closing of the polls. The evidence we had were those of supervisory ward agents AC whose evidence amounts to hearsay and therefore inadmissible.”
The reproduction of Section 62(1) of the Electoral Act is relevant to this issue and states as follows:
“62(1) The presiding officer shall regulate the admission of voters to the polling station and shall exclude all persons other than the candidates, polling agents, poll clerks and persons lawfully entitled to be admitted…”
Section 77 of the Evidence Act regulates giving of oral evidence which must be direct while Section 155 of the Evidence Act provides for who may testify. There is no provision of the Electoral Act 2006 and any applicable law that regulates giving of evidence or competence thereof. The interpretation of Section 62 (1) of the Electoral Act if given its literal meaning is very clear and unambiguous. The Phrase “shall exclude all persons other than” is very ‘relevant where in the exclusion does not affect “person lawfully ‘entitled to be admitted” The findings of the Tribunal at page 683 of the record are clear as reproduced earlier in this judgment. The Tribunal found as a fact that all the witnesses called by the Petitioner were ward supervisory agents. The Tribunal went further to state that the correct evidence and first hand information ought to have come from polling agents whereas all the Petitioners witnesses deposed that their responsibility as ward supervisors was to supervise and coordinate all the activities of the polling agents in all the polling units in the ward and monitor election results at the ward level during collation and to receive written report from the polling agents in the ward after election.
It is out of place for the Tribunal to find at page 683 of the record that the Electoral Act does not recognize a ward supervisor and has no place for such a person in the light of the phrase “persons lawfully entitled to be admitted to the polling station” as provided for by Section 62(1) of the Electoral Act 2006. With the schedule and responsibilities of the ward supervisors so specified by the lower Tribunal, one wonders who else other than such officers should be those persons lawfully entitled to be admitted to give evidence. The lower Tribunal erred in law in the reasoning for the rejection of the evidence adduced by the Appellant witnesses which it held was hearsay and not admissible being ward supervisors. Any person can qualify as a competent witness upon satisfying the conditions laid down in Sections 77 and 155 of the Evidence Act. See the case of LASUN VS. AWOYEMI (2009) 16 N.W.L.R Part 1168 page 513 at 554. The witnesses evidence is direct and therefore admissible. See the case of OMORINBOLA II VS. MILITARY GOV.OF ONDO STATE (1995) 9 N.W.L.R Part 418 page 201 at 221 For the Tribunal to hold as it did in its judgment that the evidence of the supervisory ward agents of the AC amounts to hearsay and therefore inadmissible is wrongful and erroneous in law and I so hold. The evidence of P.W1-P.W.15 is admissible. Issue one is hereby resolved in favour of the Appellant.
Issue 2
whether the trial Tribunal in its judgment of 27th February, 2008, carried out a proper evaluation of the evidence as placed before it by the Petitioner’s witnesses particularly at pages 19-76 of the record of appeal.
Learned Counsel for the Appellant submitted that the evidence of P.W.1-P.W.15 as contained at pages 19-76 of the record were direct and first hand evidence of witnesses who gave evidence of what transpired on the 21st of April, 2007, the day of election and not the evidence of a 3rd party who was not himself called as a witness. He argued that the lower Tribunal did not evaluate the evidence of the witnesses. He cited the case of MABOGUNJE VS. ADEWUNMI (2006) Part 991 page 224 at 233 where the trial court in evaluating evidence held thus:
“The trial Court alone has the benefit of hearing and seeing witnesses. It therefore has the duty to fully evaluate all the material evidence proffered by the parties, ascribe probative values to it, place the evidence on an imaginary scale of justice to determine the party in whose favour the balance tilt, make necessary findings, apply the relevant law and come to a logical conclusion”
Having failed to evaluate those evidence as placed before it at pages 19-76 of the record of appeal, the judgment was perverse and the electoral malpractices which came to the personal knowledge of P.W.1-P.W.15 on the disputed election as recounted by them before the trial Tribunal remained unresolved. He referred to the case of ARABAMBI VS. ADVANCE BEVERAGES LTD (2005) 19 N.W.L.R. Part 959 page 1 at 8 where the apex Court stated as follows:
“A trial judge whilst evaluating evidence is at liberty to examine and peruse most carefully, documents and oral evidence before him. That is part of his judicial function and if he fails to do so, this he is failing in his duty. Even where necessary, a Judge ought to comb any crucial evidence before him with the finest tooth comb to ensure that the credibility and reliability of the evidence is ascertained and applied towards the just determination of the case.”
The Tribunal cannot as it has done in this case pick and choose the evidence to be assessed and evaluated. Having failed to evaluate the evidence of the supervisory polling agents for the wards in the disputed election which makes up the Federal Constituency the appropriate steps that the Hon. Court is entitled to take is to invoke Section 15 of the Court of Appeal Act and re-evaluate the evidence of P.W.1-P.W15. On the basis of the evidence on the record and make a finding on them. He urged the court to resolve this issue in favour of the Appellant.
Learned Counsel for the 1st Respondent in response submitted that for an Appellant to succeed in moving the Court to invoke its powers as contained in section 15 of the court of Appeal Act, the Appellant must mandatorily and convincingly show to this court that the Judgment of the trial Court was perverse and must go further to raise that complaint as a ground of his appeal. He referred to INAKOJU VS. ADELEKE (2007) 4 N.W.L.R. Part 1025 page 515 at 613-614 paras H – B.
He submitted that the Tribunal conducted a thorough evaluation of all the evidence and submissions of all Counsel to the parties before arriving at its decision as could be gleaned from its judgment. On the issue of fictitious figures alleged by the Petitioner to have been allocated to the 1st Respondent, Appellant failed to provide the two competing results to prove his allegation. The evidence led by the Petitioner did not support his pleadings to establish allegations of electoral offences which by law must be proved beyond reasonable doubt. The depositions contained in diverse paragraphs 6, 7, 8, 9, 11 or 15 of the respective statements on oath had the following as their contents.
“Apart from my personal knowledge of these events when I visited the polling units in the ward, I also received written reports from the polling agents in all the polling units in the ward. Now produced, shown to me and marked as exhibit—”
Learned Counsel for the 1st Respondent submitted that the depositions on oath of these supervisory agents showed that there were several polling units maned by numerous polling agents. Such polling agents were never called as witnesses. He contended that the Appellant failed woefully to utilize the opportunities afforded by him at the Tribunal to prove his petition. Appellant failed to link allegations of corrupt practices and undue influence to the 1st Respondent personally or his agent as authorized by him. He submitted that there is no error in the judgment of the Tribunal which calls for intervention by this Honourable Court. He urged the Court to resolve this issue against the Appellant.
The relief sought by the Petitioner/Appellant in his petition before the lower Tribunal is that it may be determined that the National Assembly elections for Abeokuta North/Obafemi Owode/Odeda Federal Constituency in the House of Representative held on 21st 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.
In proof of corrupt practices and allegation of irregularities or noncompliance the Appellant has a duty imposed by section 146(1) of the Electoral Act 2006 to prove by credible evidence that such malpractices are substantial enough to invalidate the election.
I will now reproduce the allegations of the Petitioner/Appellant in some paragraphs of his petition for the purpose of clarity of the matter and quick understanding of the petition.
12.2 Your Petitioner claim that the election for Abeokuta North/Obafemi/Odeda Federal Constituency in the House of Representatives in the said election was vitiated by substantial requirements of both the Constitution of the Federal Republic of Nigeria and the Electoral Act, 2006 which substantially affected the validity of the said election as none of the candidates in the election can be validly returned as having validly won in the election for this Constituency.
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 Section 28,63 (1 and 2) 66 and 67.
18. There was no counting of votes or announcement of results by the Presiding Officers in any of the said polling booth in the Constituency where the 2nd Respondent political party had polling agents who were at all material times available.
19. No votes were recorded in any Electoral Form especially but not limited to Forms EC8A1, EC8B1 and EC8C1 as having been scored by each candidate at any of the polling stations by any presiding officer at any of the said polling units and no such form was given to any of the said polling agents who were available to counter sign.
20. The Presiding Officers in all the said polling units did not at all material times declare the poll results at the various units contrary to Section 64 of the Electoral Act, 2006.
21. There was no collation of result and no recording of results at any of wards in the Constituency.
27. The Petitioner will rely on the said reports in the National dailies Newspapers including but not limited to the Nation, the Sun, This Day, The Guardian, Tribune and the Punch Newspaper the petition shall also rely on reports of Local and International observers and election monitors.
30. Further the Petitioner shall rely on expert forensic evidence, video clips, Medical Reports of injured persons/Newspapers and Letters.
1st Respondent denied these allegations in paras. 6, 8, 9, 10 and 11 of their reply at page 90 of the record thus:
(6) “The 1st Respondent denies paragraphs 12, 12.1, 12.4 of the petition in its entirety and avers that the election of 21st April, 2007 was not vitiated by any act of irregularity or widespread malpractices or non compliance with the Electoral Act 2006 and neither was anyone deliberately or otherwise disenfranchised.
(8) With further reference to paras. 15.1-15.8 of the Petition that the 1st Respondent avers that election took place in all the polling stations in the 38 wards of the Constituency, the election was not disrupted by either thugs or law enforcement agents on that day or anyone acting in concert with the 1st & 2nd Respondents on Election Day.
(9) The 1st Respondent further denies all allegations in paragraph 15.1-15.8 relating to illegal ballot thumb printing, ballot boxes snatching and stuffing by the 1st Respondent, his agents or party or any other person acting alone or in concert with him on election day and puts the Petitioner to the strictest proof thereof.
(10) The 1st Respondent denies paragraphs 16-25, 28 and 29 (a-i) of the petition and avers further that the allegation therein are spurious and are designed to mislead the Honourable Tribunal
(11) The 1st Respondent denies paragraphs 18 and 19 of the petition and avers that neither he nor his party (the 2nd Respondent) or his agents employed thugs who allegedly openly used guns, cutlasses, matchets and bottles while formatting trouble on the Election Day.
It is certainly clear from the state of pleadings that the allegations are criminal in nature and the onus was on the Appellant to prove beyond reasonable doubt not only that there were acts of violence that marred the outcome of the election held on 21st April, 2007 but also that the 1st Respondent was directly linked to the acts of violence or that he authorized them. Appellant’s allegations were not supported by his evidence and that of his witnesses which they adopted on the printed record. The Appellant who asserts the position must prove the allegations beyond reasonable doubt. See NWOBODO VS. ONOH (1984) 1 S.C.N.L.R. at page 1.
In the instant case, appellant pleaded reports compiled by the poll agents at the various wards and units to prove his case. The ward supervisors tendered before the Tribunal these reports submitted to them by the poll agents. The poll agents were not called to testify on the report and be cross-examined. No reason was adduced for not calling them and under cross examination P.W.6 Mr. Ayinde Babajide at page 506 of the record had this to say:
“The reports I tendered were by one Mrs. Amidungbe and Lateef Ayinde. They were in respect camp booth and Jagun booth. The two polling agents are still alive”
The polling agents who compiled the reports ought to have been called to give evidence.
It is the law as in the instant case that a person who was not the maker of a document cannot answer questions arising from any cross examination on it. Once the maker of the document is not called to give evidence, the trial Judge will not attach any probative value to the document. See the cases of NBC PLC VS. UBANI (2009) 3 NWLR Part 1129 page 512 at 541 paragraphs C-D; G. CHUTEX IND. LTD V. OCEANIC BANK INTERNATIONAL NIG. LTD (2005) 14 NWLR Part 945 at 392 and ODUMADE v. OGUNNAIKE (2010) 39 W.R.N. Page 128 at 150 lines 25-45. In the case of ALAO vs. AKANO (2003) 11 N.W.L.R. Part 935 page 160 the Supreme Court stated thus:
“Document admitted in evidence no matter how useful they could be would not be of any assistance to the matter in the absence of admissible oral evidence by persons who can explain their purport”
The lower Tribunal rightly observed that the reports were of no evidential value. The video tape pleaded to show violence, rigging e.t.c was not tendered. Appellant and his witnesses have not proved allegation of falsification of figures by producing and placing before the Tribunal two sets of results, showing which is genuine and which is falsified See KALU VS. UZO (2005) 8 N.W.L.R Part 603 at 444 and SABIYA VS. TUKUR (1983) N.S.C.C at 559. No witness testified that he or she was scared from the voting booth.
It is the law that unproved pleadings are deemed abandoned and any evidence which is at variance with one’s pleadings goes to no issue. See FAYEMI VS. ONI (2009) 7 N.W.L.R Part 1140 page 223 at 255 paragraph A; I.N.E.C VS. ACTION CONGRESS (2009) 2 N.W.L.R Part 1126 at 524 particularly at 604. Appellant failed to plead and prove by credible evidence the particulars of the inflated votes and show that if the inflated figures were deducted from the votes credited to his opponent, the result will change in his favour. See ANOZIE vs. OBICHERE (2006) 8 N.W.L.R Part 981 at 140
At page 687 of the record, the Tribunal found as follows:
“We also venture to say in the pleadings of the Petitioner did not contain the requisite particulars. Throughout the trial it was only P.W.7 in his deposition who alleged at Bode Olude 2 that the councilor lead team also stormed the booth with cash reward for both I.N.E.C officers and the Police. I.N.E.C were given N5,000.00 and the Police officers were also given some money. This incident was not reported to the police or any other authority the A.C agents who were alleged to be there and who are still alive and within the reach Mrs. Asofo and Olayinka Jimoh were not called to give evidence more over the witness failed to link the 1st Respondent directly or that he authorized the Councilor lead team to offer the bribe. In this event, we find the petitioner failed to prove this allegation”
A candidate at an election cannot have an election nullified on the ground of corrupt practices or other irregularity committed in the process of the election unless it can be proved that such a candidate either expressly or by necessary implications authorized the illegality or corrupt practices. See OPIA VS. IBRU (1992) 3 NWLR Part 231 AT 658; OYEGUN VS. IGBINEDION (1992) 2 NWLR Part 226 at 747 and WALI VS. BAFARAMI (2004) 16 N.W.L.R. Part 898 page 1 at 45. Appellant has failed to prove that the alleged thugs and acts complained of were authorized by the 1st Respondent.
At page 685 of the record, the Tribunal in its findings had this to say:
“To worsen the matter, even the voters register which was pleaded in paragraph 30 and granted leave to inspect was not tendered in evidence and the whole paragraph abandoned. There is nothing before us so as to enable the Tribunal compare and determine the discrepancies in the result”
The trial Tribunal went further at page 685 thus:
“The Petitioner tendered from the bar exhibits p’s series which were made of forms ECBA2 and ECBB2. This is unacceptable as it offends rules of pleadings. See the case of HASHIDU VS. GOJE (Supra) where similar situation arose and the whole exhibits were discountenanced.”
There is equally nothing in the entire evidence of the Appellant and his witnesses to show that the noncompliance or irregularities as well as the malpractices substantially affected the outcome of the election.
Section 146(1) of the Electoral Act 2006 says;
“An election shall not be liable to be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that noncompliance did not affect substantially the result of the election.”
The lower Tribunal has performed its primary duty of evaluating and ascribing probative value to the evidence before it and arrived at the conclusion that the Appellant has failed to prove the petition or any of the allegations of electoral malpractice and non-compliance as stated in the Electoral Act 2006.
The judgment at the lower Tribunal is not perverse as claimed by the Appellant having not proved the allegations bordering on crime beyond reasonable doubt. A decision is said to be perverse where:
(a) It is speculative and not based on any evidence.
(b) The court took into account matters which it ought not to have taken into account or
(c) The court shut its eyes to the obvious
See Atolagbe v. Shorun (1985) 1 NWLR part 2 page 360 and Osuji v. Ekeocha (2002) 52 W.R.N. Page 1 at 33 Lines 35 – 45.
An appellate court will not interfere or disturb the findings of the lower court except the findings are perverse, not supported by credible evidence and they have resulted in miscarriage of justice or violation of some principles of procedural and substantive law. See the cases of Nwadike v. Ibekwe (2004) 24 W.R.N. at 32 Ayanwale & Ors. v. Atanda & Anor (1988) 1 NWLR Part 68 at 22, Onwugburfor v. Okoye (1996) 1 NWLR Part 424 at 252 and Amusike v. The Reg-Gen. C.P.C. (2010) W.R.N. Page 1 at 44 Lines 40-45. Issue two is also resolved against the Appellant.
Since the appeal has been decided on its merit and Appellant has woefully failed to prove the petition by credible evidence his criminal allegations of malpractices of fraud ballot stuffing, ballot box snatching thuggery, illicit thumb printing, falsification of result and allotment of votes without voters or show that the non-compliance has affected substantially the result of the election, the appeal lacks merit and it is accordingly dismissed. The judgment of the Governorship and Legislative Houses Election Tribunal sitting at Abeokuta, Ogun State delivered on the 27th of February, 2008 is hereby affirmed. Cost of N30,000.00 is hereby awarded in favour of the 1st Respondent.
KUDIMT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the privilege of reading before now the judgment of my learned brother, FASANMI, JCA just delivered. His Lordship has exhaustively considered and resolved the issues in contention in this appeal. I agree entirely with his Lordship that the appeal lacks merit and should be dismissed.
With regard to the interlocutory appeal, the appellant was granted leave on 5/10/2010 to file an Amended Brief of Argument within 7 days of the order. He not only failed to file the Amended Brief within the stipulated 7 days, he did not file it at all. In the face of such an omission, the court should ordinarily have been able to fall back on the original brief filed in order to save the appeal. In the instant case, however, the two earlier briefs filed by the appellant on 7/10/08 and 12/2/08 respectively were withdrawn and struck out on 19/1/2010. There is therefore no competent brief in respect of the interlocutory appeal. In the absence of a competent brief in respect of the interlocutory appeal, the said appeal must be and is hereby struck out.
I agree entirely with the reasoning and conclusion reached in the lead judgment in respect of the main appeal. A careful appraisal of the entire evidence before the lower Tribunal reveals that notwithstanding its views regarding the evidence of PW1 – PW15, the lower Tribunal carefully scrutinized all the evidence placed before it before reaching the conclusion, rightly in my view, that the appellant failed to prove the allegations of electoral malpractices and non-compliance with the provisions of the Electoral Act 2006.
The appellant placed substantial reliance on the reports of party agents tendered by PW1-PW15 who were Ward Supervisors. The agents, who were said to be alive were not called to testify. There can be no doubt that the contents of the reports amount to hearsay and are inadmissible. See Section 77 of the Evidence Act Cap, E14 Laws of the Federation of Nigeria 2004. See also: Buhari vs. Obasanjo (2005) 13 NWLR (941) 194 AT 209C; Nnanyelugo v. Nnanyolugo (2008) ALL FWLR (401) 897 at 914-915 F-A; CASA vs The State (1994) 6 SCN Jr.
The evidence of PW1-PW15 bereft of the reports of the party agents amounted to mere allegations of criminal acts unsubstantiated by any credible evidence. The lower Tribunal properly evaluated the totality of the evidence before it and arrived at a just conclusion. The appellant has failed to show that the findings are perverse. For these and the more detailed reasons ably set out in the lead judgment, I also find no merit in the appeal. It is hereby dismissed. I affirm the judgment of the lower Tribunal delivered on 27/2/2008 and abide by the order for costs as contained in the lead judgment.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in total agreement with the elaborate judgment just delivered by my learned brother, Fasanmi, J.C.A. I adopt same as mine. The alleged perpetration of electoral malpractices and electoral violence were not traced to the 1st respondent. No direct, remote or circumstantial evidence was given clearly linking him to the said acts. In the absence of any agency relationship between the alleged perpetrators of the said acts and the 1st respondent, the latter cannot be held responsible for or accountable to the acts in question and cannot be penalized therefor – see Buhari v. Obasanjo (2005) 2 E.P.R. 295 at 430-431 and 474.
The appeal accordingly lacks merit. It is hereby dismissed. The well written judgment of the lower Tribunal is affirmed in consequence.
Appearances
Appellant absent.For Appellant
AND
O. O. Ojutalayo with A. A. IsiolaotanFor Respondent
