AJIBOLA ISRAEL FAMUREWA v.OLUGBENGA ONIGBOGI & 334 ORS. (2010)

AJIBOLA ISRAEL FAMUREWA v.OLUGBENGA ONIGBOGI & 334 ORS.

(2010)LCN/3710(CA)

In The Court of Appeal of Nigeria

On Friday, the 16th day of April, 2010

RATIO

APPEAL: WHEN WILL A MISDIRECTION OCCUR

A misdirection occurs when the judge misconceives the issues whether of fact or of law or summarizes the evidence inadequately or incorrectly, which could be committed by a positive act or by non-direction. Whereas, his error relates to his finding, it cannot properly be termed misdirection, it would be an error in law. See CHIDIAK V. LAGUDA (1964) 1 NWLR 12 AT 125. Also relevant is the case of LABIYI V. ANRETIOLA (1992) 8 NWLR (Pt.258) PAGE 139; per NNAEMEKA AGU, J.S.C. at page 169, five years after Nwadike’s case reiterated thus:

“a ground of appeal which is a misdirection is different from, and in fact mutually exclusive of, one which is an error in law for which see NWADIKE V. IBEKWE (1987) 4 NWLR (Pt.67) 718 AT 774 for the simple reason that the former relates to the court’s statement of a party’s case whereas the later relates to the determination by the court the question being one which derives from the rules.”

See also the cases of LESSERE IDAAYOR & ANOR. V. CHIEF SAMPSON TIGIDAM (1995) 2 NWLR (Pt.377) 359, GODWIN LOKE V. INSPECTOR GENERAL OF POLICE & ANOR. (1997) 11 NWLR (Pt.527) 57 CA, AKUCHIE V. NWANADI (1992) 8 NWLR (Pt.258) 214 and more recently, UFAYO V. DABIRI (2008) 6 NWLR (Pt.1083) 225, PER CHIDI NWAOMA UWA, J.C.A

EVIDENCE: CRITERIA FOR EVIDENCE TO BE PROPERLY EVALUATED BY A TRIAL COURT

COURT: ARE COURTS ALLOWED TO LOOK AT THE RECORD OF PROCEEDINGS BEFORE IT

The law allows the court to look at the record in its possession and make use of the information. See WEST AFRICAN PROVINCIAL INSURANCE CO. LTD. V. NIGERIAN TOBACCO CO. LTD. (1987) 2 NWLR (Pt.56) 299 AT 306. Similarly in the case of TEXACO PANANMA INC. V. SPDC LTD. (2002) 5 NWLR (Pt.759) 209 AT 234, the Apex Court per Kalgo J.S.C. held that an Appeal Court is fully and correctly entitled to look or refer to the record of appeal before it in consideration of any matter before it. See also FUNDUK ENGINEERING CO. LTD. V. MC ARTHUR (1995) 4 NWLR (Pt. 392) 640. PER CHIDI NWAOMA UWA, J.C.A

PROCEDURE: ESSENCE OF THE PRACTICE DIRECTION

The Practice Direction was made to be utilized along with the Electoral Act to aid in speedy disposal of Election matters considering their special nature where time is of the essence, as a guide, and cannot be too strictly adhered to; it is to operate alongside the constitution of the Federal Republic of Nigeria, all with a common purpose, for parties to attain justice, otherwise as in the present case, the Appellant’s constitutional right to fair hearing would be muffled or denied on the basis of ‘over adherence to the Rules of this court or Tribunal whatever the case may be. Justice must not be sacrificed for speedy trial. See YUSUF V. OBASANJO (2003) 9 – 10 SC 53; OLANIYAN V. OYEWOLE (2008) 5 NWLR (Pt.1079) 114 at 137 AND 139; and ABUBAKAR V. YAR’ADUA (2008) 1 SC (Pt.11) 77 at 122 LINES 1 – 7. PER CHIDI NWAOMA UWA, J.C.A

CHIDI NWAOMA UWA, J.C.A (Delivering the Leading Judgment).: This appeal is against the judgment of the Governorship and Legislative Houses Election Petition Tribunal, Holden at Osogbo (hereafter referred to as the Tribunal) delivered on the 14th day of May, 2008.

The background facts are that the Appellant contested for the House of Representative for Atakumosa East, Atakumosa West, Ilesha East, Ilesha West Federal Constituency seat in the Federal House of Representative for Osun State on the platform of the Action Congress, challenged the declaration of the 1st Respondent who contested under the Peoples Democratic Party as the winner of the said election on the ground inter alia that the said election was vitiated by substantial non-compliance with the mandatory statutory requirements of both the Constitution of the Federal Republic of Nigeria and the Electoral Act, 2006 which was alleged to have substantially affected the results, and that the 1st Respondent could not have been validly returned as having won in the said election. Widespread acts of thuggery perpetrated by thugs of the 1st Respondent was alleged by the Appellant, also disruption of the voting exercise by the said thugs in connivance with the law enforcement officers detailed to ensure peaceful, free and fair election, illegal stuffing and thumb printing of ballot papers by agents of the 1st Respondent, hijacking and carting away of ballot boxes. These acts were said to have recurred in Wards 1 – 10 of Ilesha West, Wards 1 – 11 of Ilesha East, Wards 1 – 11 of Atakumosa West and Wards 1 – 10 of Atakumosa East Local Government Areas of Osun State. The Petitioner prayed before the Tribunal for a nullification of the said election and an order for a re-run by the 3rd Respondent.

On the part of the 1st and 2nd Respondents, each denied the allegations of the Petitioner. The 3rd – 333rd Respondents (INEC and its officials) and the 334th – 335th Respondents (the Police) reacted to the Petition and also filed their various responses.

At the close of pleadings, the Petitioner by a Motion filed on 11/7/07, granted on 14/7/07 obtained an order to inspect all polling documents and materials used for conducting the said election as listed in the Motion papers, pages 347 – 353 of the printed Records of Appeal.

The Tribunal on 20/1/08, issued a Subpoena duces tecum et ad testificandum on the Osun State Resident Electoral Commissioner to bring all the electoral materials enumerated in the Subpoena and give evidence.

The Subpoena is at pages 464 – 466 of the records.

In course of hearing, the Petitioner moved the Tribunal to swear the representative of the Resident Electoral Commissioner present in Court upon the Subpoena, to be examined on the documents he produced, the Tribunal refused the application to examine the said INEC official on the grounds that the giving of notice to produce as contained in the Petitioner’s Petition had dispensed with the Subpoena already issued and that the Petitioner did not frontload the witnesses’ statement of the INEC official sought to be examined, pages 474 – 476 of the records and covered by Ground 15 in the Notice of Appeal.

The Petitioner in addition, sought an order to be allowed to call additional witnesses and to tender the inspection report of the said inspection exercise; the application was refused on the ground that the witnesses statements were not frontloaded with the Petition, page 476 of the records. The application was dated 29/1/07 and the refusal was on 21/2/08.

While the 1st and 2nd Respondents called witnesses in defence, the 3rd – 333rd and 334th – 335th Respondents did not call any witness but, parties presented their written addresses and on the 14th day of May, 2008, the Tribunal in its Judgment held that the Petitioner/Appellant had not proved its case and dismissed the Petition in its entirety for lacking in merit.

Dissatisfied with the judgment, the Appellant filed his Notice of Appeal on 3rd of June, 2008 containing fifteen (15) Grounds of Appeal from which six (6) issues were distilled for determination by this Court. The issues are:-

“1. Whether the Tribunal was right when it held that the evidence led by Petitioner’s witnesses from the PW1 to the PW32, party supervisors of the Petitioner can be characterized as hearsay in the face of their uncontroverted assertions that they were present in the various units and saw the alleged acts of malpractices and irregularities committed by the agents and thugs of the Respondents. (Grounds 2 and 3 of the Notice of Appeal).

2. Whether the Tribunal properly evaluated the evidence before it when it rejected the unimpeached evidence led by PW1 to the PW32, and later held evidence led by DW1, DW2, DW3, DW4, DW5, DW6 and DW7 to be credible as to conclude that the said election was free and fair.

(Grounds 1 & 7 of the Notice of Appeal).

3. Whether the Tribunal, in its determination of the petition, was right in refusing to look at the electoral materials admitted which were produced by the 3rd and 4th Respondents pursuant to a subpoena duces tecum et ad testificandum.

(Grounds 5, 6 and 10 of the Notice of Appeal).

4. Whether it is in accordance with the law that a witness subpoenaed should have been listed among the witnesses of the person who caused him to be subpoenaed together with such witness’s deposition having been front-loaded by the party who caused him to be subpoenaed.

(Grounds 14 and 15 of the Notice of Appeal).

5. Whether the Ruling of the Tribunal delivered on the 21st day of February, 2008 is in accordance with the Practice Direction of the Election Petition, rules of natural justice, equity and good conscience when the Tribunal refused the Appellant’s application to call an additional witness to tender the report of inspection of electoral materials and for such witness to give evidence in respect thereof the same inspection process having been conducted by the Appellant pursuant to an order of the Tribunal in order for the Appellant to maintain his petition.

(Grounds 11, 12 and 13 of the Notice of Appeal).

6. Whether the Tribunal was right in holding that the irregularities, violence, thuggery and other malpractices alleged by the Appellant were not shown to have substantially affected results and were not linked in evidence to the 1st Respondent thereby refusing to void the 1st Respondent’s election.”

(Ground 8 of the Appeal).

The 1st and 2nd Respondents on their part formulated three issues as appropriate from the fifteen (15) grounds of appeal, they are:-

“1. Whether the Tribunal having regard to the quality of evidence led by the Appellant at the trial of the Petition adopted the proper approach of evaluation of evidence in arriving at the verdict.

(Grounds 1, 2, 3, 4, 5, 6 and 7).

2. Whether the Tribunal rightly exercised its discretion in refusing the Appellant’s application to call additional witnesses and disallowing him to tender inspected documents. (Grounds 11, 12, 13, 14 and 15).

3. Whether the Appellant has by credible evidence proved or established allegations of electoral malpractices, thuggery and/or violence and/or substantial non compliance with Electoral Act 2006, having regard to the quality of evidence led at the lower court.”

(Grounds 8, 9 and 10).

The 3rd – 333rd Respondents did not file any brief of argument therefore, formulated no issue for resolution.

The 334th – 335th Respondents on their part formulated a sole issue for determination by this court, that is:-

“Whether the petitioner has been able to prove the allegation of incidence of widespread incidence of electoral malpractices which include violence, thuggery, irregularities, multiple thumb printing, ballot box hijacking and stuffing against Law Enforcement Agencies beyond reasonable doubt to vitiate the totality of the result of the election” (Ground 1, 2, & 3).

At the hearing of the appeal, the learned counsel to the 1st and 2nd Respondents, O. Moronkeji Esq. raised an objection to the appeal incorporated and argued same in his brief of argument dated 26th day of September, 2008, filed on 2/10/08, he withdrew grounds (a) and (b) of the said objection leaving only ground (c). Grounds (a) and (b) were struck out. The learned counsel adopted and relied upon the arguments in the said brief, at pages 10 – 13 of the brief of argument. The said ground (c) reads:-

“(c) AN ORDER striking out Grounds 2, 4, 5 and 14 of the Grounds of Appeal which alleges error in law and misdirection and consequently issues 1 and 4 purportedly distilled therefrom.”

It was argued that a ground of appeal cannot be an error in law and misdirection at the same time as the Appellant’s Grounds 2, 4, 5 and 14 postulated. See NWADIKE V. IBEKWE (19871 4 NWLR (Pt.67) 718; SOSANYA V. ONADEKO (2000) 21 W.R.N. 43. We were urged to strike out the Appellant’s Grounds 2, 4, 5 and 14 as they are incompetent.

See UFAYO V. DABIRI (20008) 6 NWLR (Pt.1083) 225. We were also urged to strike out the issues distilled from these grounds, being incompetent. See AGBAKA V. AMADI (1988) 11 NWLR (Pt.572) PAGE 16. We were urged to strike out issues 1, 3 and 4 distilled from the incompetent grounds of Appeal.

In reaction to the preliminary objection (even though the learned counsel to the Appellant filed a reply dated and filed on the 29th day of September, 2009), he objected to the preliminary objection and submitted that even though the argument on the preliminary objection was incorporated into the 1st and 2nd Respondent’s Brief of Argument, that by Order 10 Rule 1 of the Court of Appeal Rules, 2007, the 1st and 2nd Respondent sought to have filed a formal application stating the grounds of the objection and file twenty (20) copies and within three clear days before the hearing, which was not done in this case.

Further that by Order 10 Rule 1, this court has the discretion to entertain the objection or to adjourn the hearing at the cost of the Respondents. The Respondents not having sought such indulgence, that the court should refuse the application and discountenance the objection.

In the event of being overruled by this court, the learned counsel to the Appellant adopted and relied on his reply brief in arguing ground (c) of the preliminary objection. It was argued that a ground of Appeal does not become incompetent because it alleges both an error in law and misdirection in fact. Reference was made to the case of ADEROUNMU VS. OLOWU (2000) 4 NWLR (Pt.652) PAGE 265. It was argued that the grounds of appeal did not offend the provisions of Order 6 Rules 2(3) of the Court of Appeal Rules.

It was submitted that the objection raised in ground (c) is unfounded.

Further that the grounds of appeal are competent and satisfied the requirements of Order 6 Rules 2(3) of the Court of Appeal Rules, the case of HAMBE VS. HUEZE (2001) 4 NWLR (Pt.703) 372 was relied upon.

Further that a ground of appeal does not become incompetent merely because it alleges both error in law and misdirection in fact, that a ground of appeal could only be struck out if it is misleading and devoid of meaning.

We were urged to dismiss the 1st and 2nd Respondents’ preliminary objection for lacking in merit.

In reply, the learned counsel to the 1st and 2nd Respondents submitted that the objection to the preliminary objection is misconceived in that the essence of Order 10 Rule 1 of the Rules of this Court is to avoid springing surprises on the other side and that all the requirements of the said Rule were met and adhered to.

It was argued that the preliminary objection having been incorporated into the brief of argument, the required Notice has been given, the said brief having been filed over a year ago. What is important being adequate Notice and that the Appellant has not been misled. We were urged to overrule the objection to the preliminary objection.

Since there was an objection raised by the learned Appellant’s counsel objecting to the hearing of the preliminary objection in that it was not properly raised, even though it was incorporated into the 1st and 2nd Respondent’s Brief of Argument, in that the provision in Order 10 Rule 1 of the Rules of this Court was not followed in raising the said objection; it is therefore pertinent that the objection be determined first and if need be the main preliminary objection by the 1st and 2nd Respondents.

I have perused the printed records of Appeal and the entire case file; it is true that the 1st and 2nd Respondents objectors did not file a Notice of Preliminary Objection. When the objections and appeal were argued, the learned counsel to the 1st and 2nd Respondents Mr. Moronkeji did not claim to have filed any but, clearly stated that his objection was incorporated and argued in his brief of argument dated 26/9/08, filed on 2/10/08 which he adopted and relied upon. The learned Appellant’s counsel acknowledged this fact in his objection, but his grouse is that he should have followed the procedure laid down in Order 10 Rule 1 of the Rules of this Court. Order 10 Rule 1 provides as follows:

“A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time.”

From the wordings of the above provision, it is clear that the rule is guarding against a party springing a surprise preliminary objection on the other side without adequate Notice to that other side to react to same. The important thing is that the other party is given Notice of the Preliminary Objection to allow adequate time to respond one way or the other. In the present case the 1st and 2nd Respondents’ brief was filed on 2/10/08. The Appellant responded to it by filing a reply brief dated and filed on 29/9/09 (almost one year later) in which he reacted to the preliminary objection and incorporated his argument into the reply brief. The Appellant had ample time to respond adequately and he did. The Appellant was therefore not taken by surprise and was not misled in any way. On the other hand, in the said reply brief, the Appellant did not as a preliminary issue raise the noncompliance with Order 10 Rule 1 but, went straight ahead to respond fully to the preliminary objection as raised in the 1st and 2nd Respondent’s Brief of Argument. The learned Appellant’s counsel raised his objection in court when the preliminary objection and the appeal were argued, he cannot now complain, not having lost out by the way the preliminary objection was raised and argued in the 1st and 2nd Respondents’ brief of argument. The required Notice as envisaged in Order 10 Rule 1 has been met and given.

The end result is that the objection raised by the Appellant on the competence of the preliminary objection is overruled.

Coming to the merit of the preliminary objection, that complained in ground (c)(a) and (b) having been withdrawn and struck out that grounds 2, 4, 5 and 14 of the Grounds of Appeal which alleged error in law and Misdirection are incompetent.

For ease of reference, I will reproduce the said grounds hereunder without their particulars.

“Ground 2: Error of Law/Misdirection:

The Tribunal erred in law and misdirected itself when it held that the evidence of Petitioner witnesses are hearsay or improbable evidence.

Ground 4:

The Tribunal erred in law and misdirected itself when it held that facts averred in the testimonies of the Petitioner’s witnesses are not pleaded and go to no issue.

Ground 5: Error in Law:

The Tribunal erred in law and/or misdirected itself when it held that issues of the defects in the electoral materials tendered as exhibits are not pleaded and go to no issue.

Ground 14: Error in Law/Misdirection:

The Tribunal erred in law in its Ruling of 21st day of February, 2008 when it held that the deposition sought to be filed ought to have been brought along with the Petition and which ruling affected the judgment of the Tribunal delivered on the 14th day of May, 2008.”

It is apt at this point to reproduce Order 6 Rule 2(2) of the Court of Appeal Rules, it provides as follows:

“Order 6 Rule 2(2):

Where a ground of Appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.”

It is the law and by decided legal authorities that a ground of appeal cannot be an error in law and at the same time misdirection as set out in the Appellant’s reproduced grounds 2, 4, 5 and 14 above. The “or” in the above rule is disjunctive. Order 6 Rule 2(2) of the Court of Appeal Rules, 2007 which is in pari materia with Order 3 Rules 2(2), Court of Appeal Rules, 2002 was interpreted in the case of NWADIKE V. IBEKWE (1987) 4 NWLR (Pt.67) 718 AT 744, also cited and relied upon by the learned counsel to the 1st and 2nd Respondents where NNAEMEKA AGU, J.S.C. stated as follows:-

“A ground of appeal cannot be an error in law and a misdirection at the same time, as the Appellant’s grounds clearly postulate. By their very nature one ground of appeal cannot be the two, for the word “misdirection” originated from legal and constitutional right of every party to a trial by jury to have the case which he had made, either in pursuit or in defence, fairly submitted to the consideration of the Tribunal”

The terms “misdirection” and “error” in the present con were also well defined in NWADIKE’S case. A misdirection occurs when the judge misconceives the issues whether of fact or of law or summarizes the evidence inadequately or incorrectly, which could be committed by a positive act or by non-direction. Whereas, his error relates to his finding, it cannot properly be termed misdirection, it would be an error in law. See CHIDIAK V. LAGUDA (1964) 1 NWLR 12 AT 125. Also relevant is the case of LABIYI V. ANRETIOLA (1992) 8 NWLR (Pt.258) PAGE 139; per NNAEMEKA AGU, J.S.C. at page 169, five years after Nwadike’s case reiterated thus:

All the above line of cases made it clear that a ground of Appeal which is based on misdirection and error of law as in grounds 2,4, 5 and 14 in the present appeal are incompetent grounds of appeal under Order 6 Rule 2(2) of the Court of Appeal Rules, 2007. These grounds being incompetent are liable to be struck out as urged by the learned counsel.

In this appeal, issues have been formulated from the incompetent grounds of appeal. The resultant effect is that the issues formulated from the incompetent grounds of appeal have the effect of contaminating the other grounds of appeal used or that formed part of the grounds for the issue raised. As rightly argued by the learned counsel, all the issues formulated from the incompetent grounds or to which the incompetent grounds form part of cannot stand, the issues are also incompetent. In other words, where an incompetent ground forms part of the grounds used to formulate an issue, it renders the competent grounds part of which formed the issue incompetent and those are also liable to be struck out along with the incompetent grounds. See ROTIMI V. FAFORIJI & ORS. (1999) 6 NWLR (Pt. 606) 305 AT PAGES 317 – 318.

The end result is that grounds 2, 4, 5 and 14 are struck out along with the Appellant’s issues 1, 3 and 4 formulated therefrom.

The learned Appellant’s counsel had argued that the grounds of appeal in question did not offend Order 6 Rule 2(3) of the Court of Appeal Rules, I am afraid this argument is not tenable in the present situation, the grounds offend Order 6 Rule 2(2) which is in issue. The case of ADEROUNMU VS. OLAM (supra) relied upon by the learned Appellant’s counsel is not applicable here as the said case applies where even though a misdirection and error in law are lumped together in the same ground of appeal; there is no doubt as to what the Appellant’s real complaint is.

It is trite that where some grounds of appeal are struck out for whatever reason, the surviving grounds if competent are enough to sustain the appeal. Therefore I shall go into the merits of the surviving grounds of appeal and the issues formulated there from. Having struck out Grounds 2, 4, 5 and 14 in the Notice of Appeal as well as the Appellant’s issues 1, 3 and 4, his surviving issues 2, 5 and 6 are enough to sustain this appeal and I so hold.

I will therefore limit the argument and responses of counsel concerning only these issues and resolve same accordingly.

In the substantive appeal, the learned Appellant’s counsel Olayinka Okedara Esq., in his brief of argument in support of his second issue, contended that the Tribunal did not properly evaluate the evidence of the witnesses in concluding that the election was free and fair and in holding as unreliable the evidence of the Appellant’s witnesses, and ascribed no value to them, reference was made to pages 264-265 of the records. It was argued that there was no contrary evidence that these witnesses did not move from unit to unit to monitor the election and that the tribunal was wrong to have held that these witnesses could not have been present at the various polling units.

It was submitted that the fact that one was not supposed to be at a particular place as held by the Tribunal does not make his testimony of what he saw at such a place unreliable. It was argued that what is important is whether the incidents claimed to have been witnessed actually happened. We were urged to reject the evaluation of evidence by the Tribunal as it is perverse.

On the Appellant’s issue five, upon the refusal of the tribunal for the subpoenaed Resident Electoral Commissioner to produce documents and give evidence on oath, the Appellant sought the leave of the Tribunal to call additional witnesses to give evidence of the documents produced, the application was refused. It was argued that the application was necessary upon discovery of evidence pursuant to the order of inspection granted by the Tribunal after the petition had been instituted, it was submitted that the Tribunal ought to have allowed the Appellant to adduce the said evidence.

Further, that the refusal contravenes the provisions of Section 159 of the Electoral Act, 2006 which made provision for evidence obtained from orders for inspection to be used for the purpose of maintaining a petition. It was also argued that Section 159 of the Electoral Act, 2006 ought to have taken precedent over Paragraph 1 of the Practice Direction utilized by the tribunal.

It was submitted that an indication of an intention to apply for leave to call additional witness in answer to Form TF008 is not a condition precedent to bringing an application for leave to call additional witnesses.

Learned counsel relied upon the case of OLANIYAN V. OYEWOLE (2008) 5 NWLR (Pt.1079) 114 AT 137, he argued that it was wrong for the Tribunal to have held that the Appellant ought to have indicated intention to call an additional witness after obtaining the order for inspection which learned counsel submitted is not just. The case of AMADI VS. NNPC (2000) 10 NWLR (Pt.674) 76 was cited and relied upon.

On this issue, it was finally argued that the Practice Directions cannot override Section 36(1) of the 1999 Constitution. We were urged to overrule the Tribunal on this point.

In respect of the Appellant’s sixth issue, learned counsel cited Section 147 of the Electoral Act, 2006 and the case of KUNDU SWEM V. DZUNGWE (2007) 3 EPR 341 at 353-355 in submitting that the malpractices complained of affected the result of the election as the 1st Respondent would not have won the election in the absence of the substantial non-compliance shown in evidence.

It was contended that there was no contrary evidence led by the Respondents to show that the malpractices did not affect the results.

It was further argued that the 1st Respondent ought not to have benefited from the electoral malpractices; learned counsel cited and relied on the case of ROTIMI AMAECHI V. INEC & ORS. (2008) 5 NWLR (Pt.1080) 227. Further, that had the Resident Electoral Commissioner been allowed to testify on oath the irregularities and malpractices as alleged by the Petitioner would have been exposed, for instance in Exhibits 33A and 34. Also that the Tribunal having declared those Exhibits forged, ought not to have utilized same in declaring the 1st Respondent winner.

We were urged to grant the prayers as contained in the Appellant’s Notice of Appeal.

On the merits of the appeal, the learned counsel to the 1st and 2nd Respondents Yemi Giwa Esq. in their joint brief of argument submitted that the Appellant’s grounds of Appeal are proliferated and verbose, and could have been compressed into fewer grounds, he said such practice was frowned at by this court in the case of SOSANYA V. ONADEKO (2000) 21 WRN 43 at 55 PARAGRAPH 20.

The learned counsel argued his three issues as formulated. It was submitted that the Tribunal correctly and appropriately appraised, evaluated and considered every stand of evidence proffered by the parties in the petition before arriving at its sound decision. The learned counsel reviewed the Appellant’s various allegations of electoral malpractices against the Respondents which included thuggery and violence which allegedly affected the results of the election. It was argued that he who asserts must prove the assertion in line with Section 137 of the Evidence Act, Cap 112 LFN 1990 and the case of NETWORK SECURITY LIMITED V. ALHAJI UMARU DALURU & ORS. (2008) ALL FWLR (Pt.419) PAGE 475 at 482.

Further that the alleged acts complained of by the Appellant border on the commission of crime and that the Appellant ought to prove his case beyond reasonable doubt in line with the provision of Section 138(1) of the Evidence Act. Also relied Upon are the cases of PROF. AJIBAYO AKINKUGBE V. EWULUM HOLDINGS NIGERIA LIMITED & ANOR. (2008) ALL FWLR (Pt.423) PAGE 1269 AT 1276 and CLEMENT OBRI V. THE STATE (1997) 53 LRCN PAGE 2582 at 2586.

It was argued that all the 32 (thirty two) witnesses the Appellant called gave low quality evidence which was below the required standard that would entitle the Appellant to the reliefs claimed. The witnesses were.

Ward Supervisors who stated in their evidence that their Party (AC) had polling agents in all the polling units. The polling agents did not testify, Section 46(1) of the Electoral Act, 2006 was referred to and relied upon, also the case of SAFIU AMUSA & ORS. V. THE STATE (1980) 3 NWLR (Pt.30) PAGE 536 at 537 to the effect that a witness whose evidence will settle an issue one way or the other ought to be called to testify. It was argued that the Appellant’s failure to call the polling agents was fatal to his case, also those allegedly assaulted and beaten up were not called as witnesses, as well as those scared away by thugs. Further that not tendering in evidence those reports or items listed in paragraph 29 of the Petition are also fatal to the Petitioner’s case. Reference was made to the following cases, cited and relied upon by learned counsel, ONEHI OKOBIA VS. MAMODU AJANIJA & ANOR. (1998) 59 LRCN 3839 AT 3845, NIGER MILLS CO. PLC V. ENGR. SAM I. AGUBE (2008) ALL FWLR (Pt.427) PAGE 86 at 89 to the effect that averments in pleadings that are not supported by evidence are deemed abandoned. Also, DUROSARO V. AYORINDE (2005) ALL FWLR (Pt. 260) PAGE 167; (2005) 8 NWLR (Pt.927) PAGE 407 and BONIFACE ANYIKA & CO. LAGOS NIGERIA LTD. V. KATSINA U.D. UZOR (2006) ALL FWLR (Pt.334) PAGE 1836 at 1838.

It was contended that the Appellant failed to prove his case as required by law and that the decision of the tribunal is justified. It was submitted that the Appellant failed to adduce credible evidence in support of the allegations in the petition. The evidence of PW1 and PW2 were reviewed showing some contradictions, similarly learned counsel reviewed the evidence of PW3,4, 5, 6, 10, 17, 20 and 23.

It was argued further that the evidence of the PW1 is hearsay and cannot be the basis for the grant of the reliefs sought by the Appellant.

Further, that all the reports admitted by the trial court from all the witnesses without the maker being called to give evidence amounts to hearsay evidence and that no weight can be attached to such evidence.

We were urged to resolve this issue in favour of the Respondent and not upturn the judgment of the Tribunal.

We were urged to hold that the Appellant has not by credible evidence proved or established the allegations of electoral malpractices, thuggery and/or violence and/or substantial non-compliance with the Electoral Act, 2006.

In their second issue, the learned counsel to the 1st and 2nd Respondents, submitted that the Tribunal’s refusal to allow the Appellant call additional witnesses to give evidence on the inspection report does not amount to a breach of the Appellant’s fundamental right to fair hearing.

Reliance was placed on Paragraphs 6(1), (2) and (3) of the Practice Directions, 2007 which states that a motion would only be allowed to be moved outside the Pre-hearing Session by the Tribunal in exceptional or extreme circumstances. It was argued that the Tribunal exercised its discretion correctly in refusing the application. YESUFU V. ILORI (2008) 6 NWLR (Pt.1083) 333, was relied upon in arguing that the Appellant failed to show that extreme circumstances existed through the affidavit in support of the application to explain why the application was brought at that stage of the proceedings. See also WILLIAMS V. HOPE RISING VOLUNTARY FOOD SOCIETY (1992) NSCC 36.

The learned counsel queried why the Appellant refused to state in his petition the fact that (1) he would conduct an inspection of electoral materials (2) that he will tender the inspection report through a witness and (3) name such witnesses in the list of witnesses and (4) front load the written statement intended to be relied upon.

It was submitted that the Appellant did not state in his application for inspection that he would be calling additional witnesses, also, that the Appellant failed to indicate at the pre-hearing session, that the inspection report when obtained will be tendered through a particular witness. Further that allowing the Appellant call additional witnesses would be contrary to the provision of paragraph (1) of the Practice Directions, 2007 and that any person not included in the list of witnesses that accompanied the petition as well as their depositions cannot be called as a witness by the petitioner.

It was argued that allowing the calling of additional witnesses would have the effect of amending the petition through the back door, introducing fresh facts and issues and a waste of time. It was submitted that election matters ought to be disposed of quickly. The following cases were cited and relied upon. AHMED V. KACHALLAH (1994) 4 NWLR (Pt.599) 426 AT 433; AREGBESOLA V. OYINLOLA: NO. CA/I/EPT/GOV./31/2008; BUHARI V. INEC: SUIT NO.CA/A/EP/2/07 AND CA/EP/3/07.

We were urged to follow the above decisions.

It was argued that the Appellant acted to his peril when he refused to follow the Rules of the Practice Directions, 2007 and the Electoral Act, 2006. See MMS LTD. V. OTEJU (2005) 14 NWLR (Pt.945); 517 &. 543.

Finally, that the refusal of the Tribunal to allow the calling of additional witnesses to give evidence on the Inspection of the documents is not tantamount to the breach of the Appellant’s right to fair hearing. We were urged to resolve this issue against the Appellant.

On their third issue, it was contended by the learned counsel that the Appellant failed to show that the non-compliance substantially affected the outcome of the election as required by law, it was reiterated that none of the Appellant’s agents at the polling units was called to testify and that the evidence of PW1-32 remains hearsay. See HASHIDU V. GOJE (2006) EPR 279 and CHIMA I. JIOFFOR VS. THE STATE (2001) 86 LRCN 1318. It was further argued that the evidence of PW1-32 (Appellant’s witnesses) confirmed under cross-examination that they voted and that normal procedure was followed in conducting the election.

Further, that the allegation of non-compliance with Section 64 of the Electoral Act was introduced by the Appellant only at the address stage and that no evidence was led to that effect. See AWONUSI V. AWONUSI (2007) ALL FWLR (Pt.391) 1642 at 1655, to the effect that addresses no matter how well presented cannot make up for the lack of evidence.

It was argued that the alleged electoral malpractices are criminal in nature and must be proved beyond reasonable doubt and must also be linked to the Respondents. See BUHARI V. OBASANJO (2005) 50 WRN PAGE 1 AT 18, PARTICULARLY at PAGE 118. Also the case of AWOLOWO V. SHAGARI (1979) 6-8 S.C. 51, where it was held that the alleged non compliance substantially affected the result of the election.

Also relied upon were the cases of OPIA. V. IBRU (1992) 4 NWLR (Pt.599) 426 and WALI V. BAFARAWA (2004) 16 NWLR (Pt. 898) 1 at PAGES 42 – 43.

It was finally submitted that the alleged non-compliance was not proved to warrant the nullification of the election of 21/4/08 into the Atakumosa East, Atakumosa West, Ilesha East and Ilesha West of the Federal Constituency.

As earlier stated in this judgment, even though the 3rd – 333rd Respondents participated in defence of the Petition before the Tribunal, they did not file any brief of argument before this Court, an attempt to adopt that of the 1st and 2nd Respondents was struck out on 23/3/09, and therefore have no issue for resolution. On the date of hearing of this appeal even though the 3rd – 333rd were put on Notice on 6/1/10 as to the hearing of the appeal, they were neither in court nor represented by counsel.

On the part of 334th-335th Respondents in their joint brief of argument dated 27th January, 2009, filed same day but on application deemed as properly filed and served on 25th May, 2009, Mr. Femi Adedokun Esq. in arguing the sole issue formulated in response to those of the Appellant’s submitted that the burden is on the Appellant to prove any allegation of misconduct or electoral malpractices against the 334th – 335th Respondents. See CHIEF OJUKWU V. CHIEF OLUSEGUN OBASANJO & ORS. (2004) 1 EPR PAGE 653.

It was submitted that various acts of electoral malpractices were said to have been committed, by “Law Enforcement Agents”. It was argued that the above term does not necessarily mean the Police; the term includes the Army, Navy, Civil Defence Corps., Immigration, Customs etc. Further, that no particular Police Officer was identified to have been involved in any act of corrupt or electoral malpractices and that no relief was claimed against the 334th and 33Sth Respondents. It was contended that their names should have been struck out from the petition as they should not have been made parties. We were urged to strike out their names, as they are not necessary parties that would be affected by the outcome of the petition.

See MOHAMMADU BUHARI & ANOR. V. YUSUF (2003) 14 NWLR (Pt.841) PAGE 446; OBASANJO & ANOR. V. MOHAMMADU BUHARI & ORS. (2003) 17 NWLR (Pt.850) 510 at 560 – 563.

Further, that if such police officer was identified then he should have been made a party and also the allegations which are criminal in nature should have been proved beyond reasonable doubt against particular police officers, which the Appellant failed to do. We were urged to resolve the 334th – 335th Respondents’ sole issue in their favour and uphold the judgment of the Tribunal dismissing the Appeal as lacking in merit.

In the Appellant’s reply brief dated and filed on the 29th day of September, 2009, we were urged to discountenance the Appellant’s argument that the makers of some documents were not called to testify, that no evidential value should be ascribed to the evidence. Reliance was placed on the case of AYENI & ORS.V. DADA & ORS. (1978) 11 NSCC 147, that held a contrary view.

The Appellant’s Issue 2 covers the 1st and 2nd Respondents’ Issues 1 and 3, while his Issue 5 covers their Issue 2. The resolution of these issues 1 will resolve the sole issue formulated by the 334th – 335th Respondents. I will resolve the issues as formulated in the Appellant’s issues 2, 5 and 6.

The Appellant alleged that the Tribunal did not properly evaluate the evidence of PW1 to PW32 but believed that of DW1 to DW7 to conclude that, the election was free and fair. The reason was that the Electoral Act, 2006 did not permit these witnesses to be at the polling units and/or they had no business to be at any polling unit. Reliance was placed on Sections 46(1), 62(1), 63 and 136(1)(i) of the Electoral Act, 2006. (Page 677 of the records) in preferring the evidence of those the Tribunal considered as authorized by law to be at the polling Units. At page 677 of the record, the Tribunal held thus:

“The evidence of a person who was authorized by the law to be and was actually at the unit permanently would be preferable to that of a person who has no place in the Electoral Act who was moving from unit to unit and who was not accredited by INEC”.

What is relevant here is Section 62(1) of the Electoral Act, 2006, which provides as follows:-

Section 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 including accredited observers and the Presiding Officer shall keep order and comply with the requirements of this Act at the polling station.”

There is no doubt that the PW1- PW32 are the party supervisors of the Appellant, the parties agreed on this fact and this was acknowledged by the Tribunal. In their evidence as reviewed by the learned Appellant’s counsel to the effect that their duty was to supervise and co-ordinate the activities of the entire Appellant’s polling agents. (See pages 17 – 106, 361 – 416 of the records). As reviewed by the Tribunal, their evidence was that they moved from unit to unit to monitor the election and the malpractices which they alleged were carried out by the 1st and 2nd Respondent’s supporters.

The PW1 to PW32 gave evidence as the Appellant’s party (AC) Ward Supervisors who were present at the election and monitored same from unit to unit, they did not claim to have participated in the counting or collation of the ballot papers, by which Sections 62(1) and 46(1) would have been applicable. Their role was supervisory. It was therefore wrong for the learned counsel to the 1st and 2nd Respondents to have argued that their evidence was of low quality and the Tribunal correct in not utilizing same and the holding that the polling agents should have been called to testify. Their evidence was tagged as hearsay by the learned counsel and the Tribunal, this is also erroneous as their evidence was direct evidence of what they witnessed, not what they were told.

The Tribunal was therefore wrong to have preferred the evidence of the Respondent’s witnesses while it rejected that of PW1 to PW32. The ward supervisors were rightly at the various polling units as persons lawfully entitled to be there. There was no evidence led by the Respondent’s witnesses that they did not supervise or monitor the election or that they were not present at all. In my view even if these witnesses were not ward supervisors for the Appellant’s party (AC), as ordinary citizens who have a stake in the outcome of the election and/or party members, are they not entitled to observe the activities on the election day and give evidence if called upon to do so, guided by the provisions of the Evidence Act, especially Sections 77 and 155 as to giving of oral evidence and who may testify? I hold that they have the right to testify as to what they saw. See LASUNV. AWOYEMI (2009) 16 NWLR (Pt.1168) PAGE 513, a recent decision of this Court and division; OMONGA V. STATE (2006) 14 NWLR (Pt.1000) 532 and OBINWUNNE V. TABANSI-OKOYE (2006) 8 NWLR (Pt.981) 1004.

For evidence to be properly evaluated by a trial court, it must be balanced, the two sides must be given equal opportunity to put all their cards on the table, on equal footing, without one side being shut out, which is what the Tribunal did in respect of the evidence given by PW1 to PW32. The Tribunal was wrong in a wave of the hand to hold that their evidence was hearsay since they could not have been present at various polling units and believed that of DW1 to DW7 as a whole. The Ward Supervisors gave details of what they saw, for instance, hijacking of ballot boxes, illegal stuffing and thumb printing, amongst others in respect of the alleged malpractices, not what they heard. I hold that the direct evidence of the PW1 to PW32 was admissible evidence that ought to have been utilized by the Tribunal by a proper evaluation of same. On admissibility of evidence, see also the following cases OMORIBOLA II V. MIL GOV. ONDO STATE (1995) 9 NWLR (Pt.418) 2001 AT 221, GAJI V. PAYE (1.003) 8 NWLR (Pt.823) 583 and OMOZEGHION V. ADJARHO (2006) 4 NWLR (Pt.969) 33 also cited LASUN V. AWOYEMI (supra). I therefore resolve the appellants’ issue two in his favour.

In resolution of the Appellant’s issue five which as earlier said in this judgment covers the 1st and 2nd Respondent’s second issue, resolution of which will resolve the 334 – 335th Respondents’ sole issue, challenges the Ruling of the Tribunal of 21st of February, 2008 in which the Tribunal refused the Appellant calling additional witness to tender the report of Inspection of the electoral materials and for such witness to give evidence in respect thereof. It is noteworthy that the Inspection process was conducted by the Appellant pursuant to an order of the Tribunal to enable the Appellant maintain his petition.

Even though the Appellant’s issue three earlier struck out concerns the Tribunal’s of the Resident Electoral Commissioner of his representative to give evidence on oath following the issuance of a subpoena duces tecum et ad testificandum, the Tribunal did not utilize the electoral materials produced by the 3rd and 4th Respondents pursuant to the order of the Tribunal, this information can be gathered from the records of court. The law allows the court to look at the record in its possession and make use of the information. See WEST AFRICAN PROVINCIAL INSURANCE CO. LTD. V. NIGERIAN TOBACCO CO. LTD. (1987) 2 NWLR (Pt.56) 299 AT 306. Similarly in the case of TEXACO PANANMA INC. V. SPDC LTD. (2002) 5 NWLR (Pt.759) 209 AT 234, the Apex Court per Kalgo J.S.C. held that an Appeal Court is fully and correctly entitled to look or refer to the record of appeal before it in consideration of any matter before it. See also FUNDUK ENGINEERING CO. LTD. V. MC ARTHUR (1995) 4 NWLR (Pt. 392) 640. I am therefore empowered by the above legal authorities to utilize the records of court to note that, it was the refusal of the Tribunal for the Representative of the Resident Electoral Commissioner to testify, that led to the Appellant’s counsel to seek the leave of the Tribunal to call additional witnesses for the purpose of giving evidence on the documents produced.

It was rightly argued by the learned Appellant’s counsel that the Appellant’s constitutional right entitles him to a right to fair hearing, which means to fully present his case before the Tribunal, Section 159(1) of the Electoral Act, 2006 provides:-

Section 159(1):

“An order for an inspection of a polling document or an inspection of a document or any other packet in the custody of the Chief National Electoral Commissioner or any other officer of the Commission may be made by the Election Tribunal or the Court if it is satisfied that the order required is for the purpose of instituting or maintaining the election petition.”

(underlining mine for emphasis)

The learned Tribunal on the application of the Appellant granted the order for Inspection, after the petition had been instituted. Following the inspection, the Appellant discovered evidence which he said he needed to maintain his petition. It is rather strange that the same Tribunal that granted the order for Inspection would not allow the Appellant to adduce evidence discovered on inspection of the documents. I am of the opinion that the application should have been allowed.

This is certainly a denial of the Appellant’s right to fair hearing.

Section 159(1) empowers the Tribunal to grant the said Order of Inspection for the purpose of instituting or maintaining a petition. The essence or purport of the above section is as rightly argued by the learned counsel to the Appellant that evidence obtained following an order for inspection would be utilized to maintain a petition. As a result, the Tribunal’s refusal of the application to call additional witnesses and to tender the Inspection report is contrary to the intendment of the provisions in Section 159 of the Electoral Act, 2006 and the Appellant’s fundamental right to fair hearing and I so hold.

At page 471 of the records, the Tribunal in refusing the application of the Appellant to call additional witnesses in its Ruling of 21/2/08 held thus:

” … In Form TF008, the Petitioners answers to the Pre-hearing information sheet, he did not indicate any intention to apply for leave to call additional witness or witnesses outside the pre-hearing session.”

Paragraph 6(1) of the Election Tribunal and Court Practice Directions, 2007 provides:

“6. (1) No motion shall be moved. All motions shall come up at the pre-hearing session except in extreme circumstances with leave of Tribunal or Court.”

In agreement with the learned Appellant’s counsel an indication to apply for leave to call additional witnesses in answer to Form TF008 is not a condition precedent to bringing an application for leave to call additional witnesses. Further, Paragraph 6(1) above did not limit the grant of such application to where there is such indication, as held by the Tribunal and argued by learned counsel to the 1st and 2nd Respondents.

The above paragraph permits motions to be heard after the pre-hearing session with the leave of the Tribunal “in extreme circumstances” and does not provide that applications can be moved and granted during hearing only if indicated in the answer to the pre-hearing information sheet.

All that was therefore required of the Tribunal to consider is whether there are “extreme circumstances” that would warrant the grant of the application.

At the same page 471 of the records, the Tribunal further held:-

“We further note that the learned counsel for the Applicant has placed reliance on the order of Inspection granted on the 14th of July, 2007 one of the basis upon which the application is being brought. The order of the Tribunal is clear and unambiguous. It was only granted to enable the Petitioner maintain his Petition which in effect means to continue with his petition and not to call additional witness as doing so will run contrary to the provisions of the Practice Directions. (underlining mine for emphasis).

The above holding is that the grant of the inspection order by the Tribunal is to enable the Petitioner maintain his petition, which is in order, and in line with the provision in Section 159(1) of the Electoral Act. But further holding that it does not include calling additional witnesses is contradictory to its earlier holding and inconsistent with the provisions of the Electoral Act and Practice Directions as earlier reproduced.

No doubt, the application for inspection of electoral materials dated 11/7/07 was moved on 14/7/07 when the petition had been filed and witnesses’ statement front loaded as required by paragraph 1 of the Practice Directions. On the face of the motion paper (pages 347 – 348 of the records), the Petitioner made it clear as provided by the law, that it was for the purpose of maintaining his petition against the Respondents and listed the forms and materials he required for that purpose. In his supporting affidavit at Pages350 -351 of the records, he gave the grounds for bringing the application. The averments in paragraphs 10, 11, 12 and. 13 of the said supporting affidavit are reproduced hereunder:-

“10. I know that the grounds of the petition include, among others, electoral malpractices, rigging, multiple voting, over voting, snatching of ballot boxes and papers in different Polling units of Atakumosa East/Atakumosa West/Ilesha West Federal Constituency in Osun State.

11. The Petitioner/applicant require inspection of the polling documents and other electoral materials described in the motion paper herein in which are in custody of the 3rd & 4th Respondents and which were allegedly used in the conduct of the House of Representative election on the 21st day of April, 2007 leading to the return of the 1st Respondent as duly elected.

12. That the Applicant require the inspection of the documents and materials stated on the motion paper to enable it maintain its petition.

13. That I believe the Respondents will not be prejudiced by this application.

14. That this application is necessary in the interest of justice and equity.

The crux of the Petitioner’s petition are allegations of various acts of electoral malpractices as also averred in paragraph 10 above, which the petitioner contended affected the results of the election in which the 1st Respondent was declared as having won. This is the reason for the application, to inspect the electoral materials and other polling documents allegedly used in the election, see paragraph 11, it was also made clear in Paragraph 12 that the inspection order was required to enable the petitioner maintain his petition. The Tribunal rightly granted the order to enable the petitioner fully present/maintain his petition. I am of the view that the Tribunal was wrong to have refused the application to call additional witnesses to throw more light on the inspected documents in proof of the serious allegations of electoral malpractices against the Respondents. These documents were not available to the Petitioner at the time his petition was filed and witnesses’ statements frontloaded, this is enough to qualify as “extreme circumstances” to have allowed the calling of the additional witnesses. What the Tribunal did by its refusal is give the Petitioner an equal opportunity to put all his cards on the table as against the Respondents in one hand by granting the order for inspection and taking it away with another hand by the refusal to call additional witness for the reason that the witness’ statement was not front loaded with the Petition. The Appellant had contended that with the discoveries on inspection, evidence would need to be led. The question is: would it have been possible for the Petitioner to obtain the statement of a witness when he filed his petition and had not at the time made the discoveries that he felt would help him maintain his petition? I think not.

The Tribunal had held that the Appellant did not comply with Order 1 (1) of the Practice Directions that is, that the witness’ statement the Petitioner intended to call was not front loaded with the petition. The Practice Direction was made to be utilized along with the Electoral Act to aid in speedy disposal of Election matters considering their special nature where time is of the essence, as a guide, and cannot be too strictly adhered to; it is to operate alongside the constitution of the Federal Republic of Nigeria, all with a common purpose, for parties to attain justice, otherwise as in the present case, the Appellant’s constitutional right to fair hearing would be muffled or denied on the basis of ‘over adherence to the Rules of this court or Tribunal whatever the case may be. Justice must not be sacrificed for speedy trial. See YUSUF V. OBASANJO (2003) 9 – 10 SC 53; OLANIYAN V. OYEWOLE (2008) 5 NWLR (Pt.1079) 114 at 137 AND 139; and ABUBAKAR V. YAR’ADUA (2008) 1 SC (Pt.11) 77 at 122 LINES 1 – 7.

In my considered opinion, the Tribunal was wrong to have refused the grant of the application which is a breach of the Appellant’s constitutional right to fair hearing as envisaged by Section 36(1) of the 1999 Constitution.

The resultant effect is that the Appellant was not given an opportunity to put forward all he had in proof of the various allegations in challenging the return of the 1st Respondent as winner in his petition. The fifth issue is resolved in favour of the Appellant.

Having resolved issues 2 and 5 in favour of the Appellant, there is no need to go into the resolution of the Appellant’s sixth issue, and 1st and 2nd Respondents third issue which encompasses the 334th – 335th sole issue, that is, whether the malpractices alleged by the Appellant affected the results and linked to the 1st Respondent.

Resolving these issues would be a waste of precious judicial time.

In the final analysis, I hold that the appeal succeeds, it is accordingly allowed in terms of the alternative reliefs sought in the Notice of Appeal filed on 3rd June, 2008.

In the prevailing circumstances, I make the following orders, the Rulings delivered on 21st February, 2008, 10th March, 2008 and Judgment of 14th May, 2008 respectively by the Governorship and Legislative Houses

Election Petition Tribunal, sitting at Osogbo in Petition No. NA/EPT/OS/06/01 are hereby set aside.

It is further ordered that the Petition be re-tried de novo by a different panel of Judges to be constituted by the Honourable President of the Court of Appeal. The trial should be accelerated.

Each party to bear its costs.

SIDI DAUDA BAGE, J.C.A. I have had the opportunity of reading in draft the judgment of my learned brother, Chidi Nwaoma Uwa, just delivered. I entirely agree with the reasoning and conclusion.

For the reasons ably advanced therein, I also ordered that, the decisions of the Governorship and Legislative Houses Election Petition Tribunal sitting at Osogbo in Petition No. NA/EPT/OS/06/01 be set aside and the Petition should be heard before another Panel.

MODUPE FASANMI, J.C.A. I read before now the judgment delivered by my learned brother C. N. UWA J.C.A.

The issues have been exhaustively dealt with. I entirely agree with the decision arrived at in holding that the appeal succeeds. The Judgment of the lower tribunal is hereby set aside. I also abide with the consequential orders made therein.

Appearances

T. A. Abdulwahab with O. OkedaraFor Appellant

AND

O. Moronkeji for 1st and 2nd

M. O. Adedokun, Senior State Counsel, Osun State, Ministry of Justice for 334th – 335th

3rd – 333rd Respondents not in Court and not represented, but, notified of the hearing date.For Respondent