ADEGBOYEGA ISIAKA OYETOLA v. SENATOR ADEMOLA NURUDEEN ADELEKE & ORS
(2019)LCN/13224(CA)
In The Court of Appeal of Nigeria
On Thursday, the 9th day of May, 2019
CA/A/EPT/246/2019
RATIO
APPEAL: RECORD OF APPEAL: PARTIES ARE BOUND BY RECORDS OF THE COURT
It is an elementary principle of law that parties, as well as the Court, are bound by the Record of the Court.PER JUMMAI HANNATU SANKEY, J.C.A.
RECORD OF PROCEEDINGS: NATURE AND IMPORTANCE
In Omaghoni V Nigeria Airways Ltd (2006) LPELR-7609(CA) 22-23, CA, Rhodes-Vivour, JCA (as he then was) pronounced exhaustively on the purport of a Record of proceedings in this way:
The record of proceedings is the only indication of what took place in Court. It is the final reference of events, step by step, that took place in Court. See: Fawehinmi Construction Co. Ltd v Obafemi Awolowo University (1998) 5 S.C. p. 48; (1998) 6 NWLR (Pt. 553) 195. Record of proceedings and the notice of appeal after compilation become the record of appeal. The Court of Appeal is bound by the record of appeal. The record of appeal is presumed to be correct unless shown by affidavit evidence to be otherwise and in the absence of any complaint an appellate Court and parties are bound by it. The Appeal Court has no jurisdiction to go outside the record and if it does go outside the record and comes to a conclusion not borne out from the record, such a conclusion or finding would be held to be perverse by the Supreme Court. The two volumes of the record of appeal represent what transpired in the Court below. See Agbeotu v Brisibe (2005) 10 NWLR (Pt. 932) p.1; Julius Berger (Nig.) Ltd. v Femi (1993) 5 NWLR (Pt. 295) p. 612.PER JUMMAI HANNATU SANKEY, J.C.A.
PRESUMPTION THAT ALL THINGS ARE PRESUMED TO HAVE BEEN CORRECTLY DONE( OMNIA PRAESUMMATUR RITE ESSE ACTA)
The maxim in law is omnia praesummatur rite esse acta, that is, all things are presumed to have been correctly done. See Section 168(1) of the Evidence Act, 2011 (as amended); and SeaMarine Int. Ltd V Ayetoro Bay Agency (2015) LPELR-24785 (CA) 28-28, per Augie, JCA (as he then was); CITEC Int. Estate Ltd V Francis (2014) LPELR-22314(SC) 444, B-E, per Kekere-Ekun, JSC; Shitta-Bey V AG Federation (1998) LPELR-3055(SC) 54-55, per Onu, JSC Aliyu Bello V AG Oyo State (1986) 12 SC 1.PER JUMMAI HANNATU SANKEY, J.C.A.
LEGAL DOCUMENT: WHAT AUTHENTICATES A LEGAL DOCUMENT
In addition, it is also settled law that it is a persons signature that authenticates a legal document. This is even more so when the document is the Record of the proceedings of a Court of law. Indeed, it is a legal requirement for the record of proceedings of each day to be signed by the Judge.PER JUMMAI HANNATU SANKEY, J.C.A.
RECORD OF PROCEEDINGS: WHERE IT REVEALS THAT ONE OR MORE JUDGES DID NOT PARTICIPATE FULLY IN A PROCEEDINGS WHAT IS THE IMPLICATION
The law is now settled that, where the Record of a Court/Tribunal discloses that one or more of the Judges out of a Panel of Judges did not fully participate in all the proceedings to conclusion and gave an opinion in the matter; the proceeding arising from such a proceeding, is a nullity. See Nyesom V Peterside (2016) 7 NWLR (Pt. 1512) 452, 504; Star Deep Water Petroleum Ltd V AIC Ltd (2011) LPELR-4979(CA) 9-10; per Okoro, JCA (as he then was); Sokoto State Government V Kamdex Nig. Ltd (2007) LPELR-3039(SC).PER JUMMAI HANNATU SANKEY, J.C.A.
WHETHER A JUDGE WHO DID NOT PARTICIPATE FULLY IN A PROCEEDINGS CAN BE SAID TO PRESUME TO WRITE AND DELIVER A JUDGMENT
The law is therefore firmly settled that it is not open for a Judge who did not participate in full in all the proceedings of a case or Petition, to presume to write and deliver a Judgment in the Petition. This is tantamount to an injustice as a miscarriage of justice is likely to occur. The reason is not far to look – a Judge who did not give a party a full hearing on a complaint brought before the Judge against him, will end up pronouncing on his fate. Certainly, the party is not likely to get his Petition decided fairly or justly due to the absence of the Judge when a portion of the evidence was adduced before the Tribunal. The principle of fair hearing is thereby breached.PER JUMMAI HANNATU SANKEY, J.C.A.
JUDGEMENT: A JUDGMENT IS VALID ONLY WHEN IT IS MADE BY A COMPTETENT
It is also well established that the decision of a Court is valid only when that decision was made by a competent Court. The question which must therefore be answered is, was the lower Tribunal competent when it delivered Judgment in the Petition on 22nd March, 2019 In the locus classicus case in Madukolu V Nkemdilim (1962) 1 All NLR 587, the Supreme Court set down three preconditions to jurisdiction. The Supreme Court ended by saying that
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided, the defect is extrinsic to adjudication.PER JUMMAI HANNATU SANKEY, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
Between
ADEGBOYEGA ISIAKA OYETOLA Appellant(s)
AND
1. SENATOR ADEMOLA NURUDEEN ADELEKE
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. ALL PROGRESSIVES CONGRESS (APC) Respondent(s)
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the Osun State Governorship Election Petition Tribunal sitting in Abuja in Petition No: EPT/OS/GOV/2/2018 wherein by the majority Judgment of the Tribunal, Coram: P.C. Obiorah, J. and A.A. Gbolagunte, J., it was resolved in favour of the 1st and 2nd Respondents herein. The Chairman of the Tribunal, M.I. Sirajo, J., dissented with the majority Judgment and delivered his minority Judgment in favour of the Appellant.
A succinct account of the facts leading to the Appeal is stated as follows: The Appellant, along the 1st Respondent and 46 others, contested election into the office of Governor of Osun State conducted by the 3rd Respondent (INEC) on 22nd September, 2018. At the close of polls, the 3rd Respondent declared the election inconclusive and subsequently scheduled a re-run election in 7 Polling Units.
The re-run election took place on 27th September, 2018, and the Appellant was returned as the winner of the election and the duly elected Governor of Osun State by the 3rd Respondent (INEC), who declared that the Appellant had
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garnered a cumulative score of 255, 505 votes, being the highest votes scored amongst the contestants at the election, and having satisfied all other constitutional prerequisites.
Dissatisfied with the declared results, the 1st and 2nd Respondents filed a Petition dated 16th October, 2018 at the lower Tribunal wherein they complained on the following 3 grounds set out in Paragraph 15(i)-(iii) of the Petition (at pages 9-10 Vol. I of the Record of Appeal) as follows:
?15. Your Petitioners aver that the grounds for this Petition are as follows:
i. That the 2nd Respondent was not duly elected by a majority of the lawful votes cast at the Governorship election in Osun State held on September 22, 2018 and the Rerun election held on September 27, 2018.
ii. That the declaration and return of the 2nd Respondent as the elected Governor of Osun State is invalid by reason of substantial non-compliance with the provisions of the Electoral Act 2010 (as amended) during the Governorship Rerun election in Osun State of September, 2018.
iii. That the declaration and return of the 2nd Respondent as Governor elect of Osun State is invalid
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by reason of corrupt practice, during the Governorship Rerun election in Osun State of September 27, 2018.?
The reliefs sought by the Petitioners against the Respondents jointly and severally, are set out at pages 74 to 78 Vol. I of the Record of Appeal, as follows:
I.?That it may be determined and thus declared that the 2nd Respondent Adegboyega Isiaka Oyetola was not duly elected and/or returned by a majority of lawful votes cast in the Osun State Governorship election held on Saturday 22nd September and the Rerun election of Thursday, 27th September, 2018 and therefore his declaration and return as the governor elect of Osun State is null, void and of no effect whatsoever;
II. That it may be determined and thus declared that the 1st Petitioner having fulfilled the requirements of Section 179(2) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, in respect of the Osun State Governorship Election held on 22nd September, 2018, is the winner by 353 votes margin in the said Election having scored a total votes of 254,698 while 2nd Respondent scored 254,345 votes.
III. That it may be determined and thus
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declared that the 1st Petitioner having satisfied the provisions of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and the Electoral Act, 2010, as amended, in respect of the election of 22nd September, 2018, the act of the Respondents in ordering a Rerun election of 27th September, 2018 is invalid, void and of no effect whatsoever howsoever.
IV. That it may be determined and thus declared that the Rerun Election held on 27th September, 2018 is invalid by reason of corrupt practices, substantial non-compliance and offences against the provisions of the Electoral Act, 2010 (as amended).
V. That it may be determined and thus declared that the rerun election of 27th September, 2018 and the return of the 1st Respondent are voided by acts which clearly violate and are in breach of the provisions of the Electoral Act, 2010 (as amended), including but not limited to rigging and manipulation of election results, unprecedented acts of violence, unlawful allocation of votes, thuggery and coercion of voters, committed at towns, villages and other communities, wards and Polling Units aforementioned in Osun State as well as unlawful
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interference in the electoral process by the Respondents.
VI. That it may be determined and thus declared the the results of the Rerun Governorship election of Osun State held on Thursday 27th September, 2018 as declared and announced by the 3rd Respondent be nullified and to be of no effect whatsoever.
VII. An Order of the Honourable Tribunal nullifying the Certificate of Return issued to the 2nd Respondent by the 1st Respondent.
VIII. A declaration that Paragraph 44(n) of the 1st Respondent?s Approved Guidelines and Regulations for the Conduct of the Osun State Governorship Election 2018 is void because it (a) is in conflict with the Electoral Act, 2010, as amended and the Constitution of the Federal Republic of Nigeria 1999 (as amended) and/or (b) has the effect of expanding or amending the Electoral Act, 2010, as amended and the Constitution of the Federal Republic of Nigeria 1999 (as amended) and/or (c) confers additional powers on the 1st Respondent which were neither conferred nor envisaged in the Electoral Act, 2010, as amended and Constitution of the Federal Republic of Nigeria, 1999 (as amended).
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IX. An Order striking down and nullifying Paragraph 44(n) of the 1st Respondent?s Approved Guidelines and Regulations for the Conduct of the Osun State Governorship Election 2018 because it (a) is in conflict with the cumulative provisions of Sections 69 and 70 of the Electoral Act, 2010, as amended and Section 179 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and/or (b) has the effect of expanding or amending the cumulative provisions of Sections 69 and 70 of the Electoral Act, 2010, as amended, and the Constitution of the Federal Republic of Nigeria 1999 (as amended) and/or (c) confers additional powers on the 1st Respondent which were neither conferred nor envisaged by the cumulative provisions of Sections 69 and 70 of the Electoral Act, 2010, as amended, and Section 179 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
X. A declaration that the Respondents manipulated, altered, amended the card reader accreditation data/accreditation on Forms EC8A at Oshogbo, Olorunda,Ola Oluwa, Boripe, Ilesha East, Atakumosa East, Ife Central, Ife North, Ife South, Iwo, Egbedore, Ayedire, Ayedaade and Ejigbo Local Government Areas of
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Osun State.
XI. A declaration that by virtue of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Electoral Act 2010 (as amended), the 1st Respondent?s press release and pronouncement (through the Returning Officer) on the 23rd September%
