AMERE GAFARU AKINTAYO v. GEORGE JOLAOYE & ORS.
(2010)LCN/3890(CA)
In The Court of Appeal of Nigeria
On Monday, the 21st day of June, 2010
CA/I/EPT/NA/88/2008
RATIO
PRACTICE DIRECTION: PURPOSE OF THE PRACTICE DIRECTION
There can be no gain saying the fact that, the purpose of the Practice Direction is to complement the provisions of the Electoral Act by enhancing and facilitating the expeditious hearing of election petitions. Its purpose is to guide and regulate compliance with and observance of the provisions of the First Schedule to the Act and the Federal High Court Rules where applicable. See:- Adams Vs. Umar (2009) 5 NWLR (Part 1133) 41 At 107-108 E-C: Yusuf Vs. Obasanjo (2003) 9-10 SC 53.The Practice Direction therefore remains complimentary to the provisions of the Electoral Act. PER SIDI DAUDA BAGE, J.C.A
STATUTORY PROVISION: ESSENCE OF THE PROVISIONS OF SECTION 159 (1) OF THE ELECTORAL ACT, 2006
This Court has since made a pronouncement on the essence of the provisions of Section 159 (1) of the Electoral Act, 2006, in the case of Aregbesola V. Oyinlola (2009) 14 NWLR (Part 1162) 429 At 448 Ratio 16. This Court held as follows:- “The provision of Section 159 (1) of the Electoral Act, 2006, enables a Petitioner to inspect documents in the custody of the Independent National Electoral Commission for the purpose of instituting or maintaining an election petition. The intention of the legislative is that evidence obtained upon the orders for inspection/scanning will support the petition. In the instant case, dismissing the application to tender the result of the scanning carried out by the Appellants shut out the result of the scanning and inspections which the same Tribunal earlier ordered and that was wrong.” PER SIDI DAUDA BAGE, J.C.A
ELECTION PETITION: NEED FOR THE COURT TO DO GREATER SUBSTANTIAL JUSTICE WITH RESPECT TO ELECTION PETITION
It is no gain saying that in an election petition, there is the need to do greater substantial justice. In the same case of Aregbesola Vs. Oyinlola (Supra) Ratio 20, this Court held:- “The need to do substantial justice is greater in an election petition case than in any other case. This is so because, the Court is not only concerned with the rights of parties interse, but also the larger interest and the rights of the people in the various Local Government Area who had exercised their franchise on election day”. PER SIDI DAUDA BAGE, J.C.A
SUBPOENA: MEANING OF SUBPOENA; DIFFERENT TYPES OF SUBPOENA
Subpoena is an order or writ of Court used for securing a witness’s attendance in Court of trial for the purpose of testifying and to produce some documents on behalf of the party who applied for the issue of such subpoena. Where the order is to secure the attendance of a witness for purpose of testifying in Court, it is simply called subpoena ad testificandum, where the order commands the witness to produce certain documents at trial of an action, it is called subpoena duces tecum. If it is expected that apart from producing the documents, the person is also to give evidence, the subpoena would be subpoena ad testificandum et duces tecum. PER SIDI DAUDA BAGE, J.C.A
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
AMERE GAFARU AKINTAYO Appellant(s)
AND
GEORGE JOLAOYE & 253 ORS. Respondent(s)
SIDI DAUDA BAGE, J.C.A (Delivering the Leading Judgment): This is an appeal by the Appellant who was the Petitioner at the Governorship/National Assembly and Legislative Houses Election Petition Tribunal, Osun State, sitting at Osogbo, in Petition No. NA/EPT/OS/2/2007 against the judgment of the Tribunal Coram:- Honourable Justices, T. D. Naron, S. Mohammed, J. N. Akpughunum, A. T. Badamasi, J. E. Ekanem, delivered on the 30th of May, 2008, wherein the honourable Tribunal dismissed the petition as lacking in merit.
The facts leading up to this appeal are briefly set out follows:-
“Elections were conducted into the National Assembly on the 21st of April, 2007. The Appellant, a member of the Action Congress (A.C.), contested the seat for Ayedire/Iwo/Ola-Oluwa Constituency. At the conclusion of the election, the 3rd to 253rd Respondents declared the 1st Respondent who was the candidate of the Peoples Democratic Party (P.D.P.) the winner. The Appellant was dissatisfied with the outcome of the election and filed a petition dated the 21st of May, 2007 before the Tribunal seeking the nullification of said election and make an order for a re-run of said election for substantial non-compliance with the provisions of the Electoral Act. The Petitioner pleads that, he contested the election on the platform of the Action Congress (A.C.) and has the right to be returned as having been duly elected.”
The Appellant filed a Notice of Appeal dated the 17th of June, 2008 containing sixteen (16) Grounds of Appeal, from which the learned Counsel distilled twelve (12) Issues for determination of the Court. Learned Counsel to the 1st and 2nd Respondents in their Brief of Argument, dated 14th January, 2010, filed same day, but deemed properly filed on the 15 February, 2010, formulated seven (7) Issues for determination. Learned Counsel to the 253rd and 254th Respondents formulated one (1) Issue for determination.
In the Brief of Argument dated 9th of November, 2009 filed same day, but deemed properly filed on the 19th of April 2010, the Appellant formulated the following twelve (12) Issues for determination as follows:-
(1) “Whether the learned Tribunal gave sufficient consideration to the evidence of the Petitioner in its judgment. Relates to Ground 1.
(2) Whether there was any evidence before the learned Tribunal to justify its holding that the evidence of the Petitioner’s witnesses was hearsay or improbable evidence. Relates to Ground 2.
(3) Whether from the circumstances of the case, PW1-PW3 being party agents is not amongst the people legally entitled to give evidence of what happened at the polling units. Relates to Ground 3.
(4) Whether the Petitioner did not plead those facts in respect of which the learned Tribunal held that the evidence of his witnesses went to no issue. Relates to Ground 4.
(5) Whether the Petitioner failed to plead the defects in the electoral material tendered as Exhibits “24” and “25/. Relates to Ground 5.
(6) Whether Certified True Copies of public documents tendered from the bar are ipso facto unreliable. Relates to Grounds 6 and 10.
(7) Whether the learned Tribunal can assess the evidence of the Respondents’ witnesses without evaluating them. Relates to Ground 7.
(8) Whether considering the evidence both oral and documentary led by the Appellant at the learned Tribunal, the Appellant proved his case that the 1st Respondent was not elected by the majority of lawful votes cast at the election. Relates to Ground 8.
(9) Whether the learned Tribunal was right when it held that, the reports of the Petitioners’ polling agents admitted in evidence had no probative value. Relates to Ground 9.
(10) Whether in the circumstances of this case, the learned Tribunal was right when it refused the Appellant’s application to call additional witness. Relates to Grounds 11, 12 and 13 of the Grounds of Appeal.
(11) Whether in the circumstances of this case, the learned Tribunal was right to have refused the application of the Appellant to file written deposition of the proposed additional witness on the ground that it ought to have been filed along With the petition. Relates to Ground 14.
(12) Whether in the circumstances of this case, the learned Tribunal was right when it refused to allow a witness that was summoned by it via subpoena duces tecum et ad testificandum to be sworn and give evidence. Relates to Grounds 15 and 16”.
Learned Counsel to the 1st and 2nd Respondents formulated the following Issues for determination as follows:-
(1) “Whether the Appellant has by credible evidence proved or established the 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 trial of the petition, (arising from Grounds 1, 2, 3 & 8.)
(2) Whether the evidence of Petitioner’s witnesses rejected by the Tribunal was supported by the pleadings before the Tribunal. (Grounds 4 and 5.)
(3) Whether the lower Tribunal is bound in the circumstances of this petition to rely on admitted documents tendered from the bar by the mere fact that the documents are Certified True Copies in the absence of evidence linking the documents to the facts in issue. (Grounds 6 and 10).
(4) Whether the Tribunal was correct in refusing, to rely on the reports of polling agents of Appellant who were never called as witnesses at the Tribunal. (Ground 9)
(5) Whether the Appellant can formulate and or argue an issue on a matter that is not related to the judgment of the lower Tribunal.
(6) Whether the Tribunal rightly exercised its discretion in refusing the Appellant’s application to call additional witnesses. (Grounds 11, 12, 13 & 14).
(7) Whether in the circumstances of this case, the Tribunal was justified when it disallowed a witness that was summoned via subpoena duces tecum et ad testificandum to be sworn and give evidence. (Grounds 15 and 16)”.
Learned Counsel to the 253rd and 254th Respondent formulated a sole issue for determination as follows:-
“Whether the Petitioner has established widespread incidence of electoral malpractice which include violence, thuggery, intimidation 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. See:- Ground 1 of the Appeal.
Learned Counsel to Appellant argued Issues 1, 2 and 7 together; and submitted that, the Tribunal did not properly evaluate the evidence of Petitioner’s witnesses. The Tribunal held as an axiom its assumption that it was impossible for PW1 – PW22 to be in all polling units they said they had been on the day of the election. Learned Counsel submitted further that, the position of law is that, once an election is found substantially not to be free and the electorate, either by violence or intimidation, have not been allowed freely to cast their vote, such election must be nullified. See: Ojukwu Vs. Onwudewe EPR 3 Page 892 at 950 -957. Learned Counsel further submitted that, it is the law that the evidence of a witness who witnessed the happening of an event is the best evidence; also were such evidence are unshaken in cross-examination, it should be accepted as true and correct.
On Issue No. 3 learned Counsel to the Appellant submitted that, there is nothing in the provisions of the Electoral Act 2006 that prevent or exclude a person who is entitled to vote and who was at the polling station to give direct evidence of the events that occurred at the polling station. Learned Counsel further submitted that, the position of law is further reinforced with the fact that Section 77 of the Evidence Act makes a direct oral account of a person who saw, heard or perceived what experience the best evidence. See:- Buhari Vs. Obasanjo C2003) 13 NWLR (Part 941) 1 At 248 Paragraphs B-C.
Learned Counsel submitted further that, a Plaintiff or Defendant can prove or defend a case if he has witnesses who can sufficiently prove or disprove his case in his favour. See:- Cross-Rivers State of Nigeria Newspaper Corporation Vs. Oni & Ors. C1995) 1 NWLR (Part 371)270 At 293: Okerengwo Vs. Imo State Education Board (1989) 5 NWLR (Part 121) 295 At 302. Learned Counsel further submitted, the holding of the Tribunal that the PW1-PW22 not being party agents, are not of the class of persons who are supposed to be at the polling unit and as a result they cannot give evidence of what happened at the unit, is not correct in law in view of the provision of Section 49 (1) (2) of the Electoral Act, 2006.
Learned Counsel further submitted that, documents were tendered through PW1-PW22 and these documents were tendered as Exhibits “1 to 21”. The law is that, where a document by its content does not convey hearsay evidence, then, the parole or oral evidence based on it will not be hearsay. See:- Miss Felicia Osaabede Ojo Vs. Dr. Charoro 25 NSCQR 712 At 736; Union Bank of Nigeria v. Ishola (2OO1) 15 NWLR (Part 735) 47At 75.
On Issues 4 and 5, learned Counsel to the Appellant submitted that, the Tribunal held that, the facts averred in the testimony of Petitioner’s witnesses – PW1-PW22 – were not pleaded and the respective evidence of all these witnesses went to no issue. The main function of pleadings is to focus on various matters actually in dispute between the parties without pleading evidence. The law is now quite well settled that, parties are required to plead facts and not the evidence that will be used to prove the facts. See:- Okagbue Vs. Romaine (1982) 5 SC 133; Thanni Vs. Saibu (1977) 2 SC89.
Learned Counsel submitted further that, the evidence of all these Petitioner’s witnesses (PW1 – PW22), are relevant to the facts pleaded in the petition; and this Court is urged to set aside the holding of the Tribunal that, their evidence was not pleaded. Learned Counsel further submitted that, the holding of the Tribunal as to defects in electoral materials, tendered as Exhibits “24” and “25” which were not pleaded, goes to no issue; and were meant to prove irregularities, over-voting, non-counting of votes, failure to record votes, etc. All these were clearly pleaded by the Petitioner in his amended petition.
On Issue Six (6) which relates to grounds 6 and 10 of the grounds of appeal, learned Counsel to the Appellant submitted that, the Tribunal erred in law when it held that, the Certified True Copies of public documents tendered from the bar as Exhibits “21-34” were unreliable because, they were tendered from the bar and not through their makers. Learned Counsel further submitted that, Exhibits “21-34” are all public documents in custody, of INEC. The Petitioner applied to the Tribunal for subpoena ad testificandum to issue and serve on the Resident Electoral Commissioner, Osun State; the Tribunal granted the application, issued and served the writ of subpoena ad testificandum on the Resident Electoral Commissioner on the 26th of February, 2008, the INEC official produced Exhibits “21-31” which were all tendered from the bar without objection. The Tribunal failed to advert its mind to trite position of law that document speak for itself and that no oral evidence can vary or contradict the content of a written document. See:-General Oil Ltd. v. FSB International Bank Plc. (2005) 5 NWLR (Part 919) 579.
On Issue Seven (7) which relates to ground 8 of the appeal, learned Counsel to the Appellant submitted that in proof that the Respondent was not elected by a majority of lawful votes, the Appellant duly tendered in evidence the election results to the Federal Constituency Exhibits “24” and “24B”. The Appellant’s witnesses gave direct and credible evidence of the irregularities that occurred at the polling units, also the electoral forms admitted in evidence by the Tribunal constitute documentary evidence of the proceedings.
On issue Eight (8) which relates to ground 9 of the grounds of appeal, learned Counsel to the Appellant submitted that the Tribunal held that, the reports of the Petitioner’s polling agents admitted in evidence attracted no probative value. The reports of the polling agents were written as part of their official responsibility to make reports of what transpired in their polling units, the Petitioner did not call the agents because, calling all of them, would cause undue delay and expense. The Tribunal not having quashed the reports, it ought to consider them and give effect to them.
On Issue Nine (9) which relates to grounds 11, 12 and 13 of the grounds of appeal, learned Counsel to the Appellant submitted that, the Petitioner brought an application before the Tribunal to enable him calls Mr. Tiamiyu Adegboyega who prepared the inspection report to give evidence and tender the inspection report. The application was necessitated by the inspection order granted by the Tribunal. At that stage of the order, the proceedings have passed the stage where evidence of the proposed witness could be frontloaded.
Learned Counsel submitted further that, the refusal by the Tribunal to allow the witness called by the Appellant, denied him the right to fair hearing which entitled to fully present his case before the Tribunal. Learned Counsel further submitted that, a denial of fair hearing is therefore a denial of a fair opportunity to present a litigant’s case. See:-Oni V. Fayemi (2008) 8 NWLR (Part 1089) 400 At 430-432H; Attorney General (Rivers State) Vs. Ude (2006) 17 NWLR (Part 1008) 436 At 456 C-E; Afri Bank Vs. Akwara (2006) 5 NWLR (Part 977) 619 At 654-655; University of Lagos Vs. Aigoro (1984) NSCC 745/755-756.
Learned Counsel further submitted that the Tribunal ought to have recourse to the provisions of Section 159 of the Electoral Act, 2006 rather than paragraph 1 of the Practice Direction which only prescribes the minimum requirements for a valid, presentation; and does not preclude bringing of additional witnesses particularly when the purpose of the application for additional witness is pursuant to the statutory provision of Section 159 of the Electoral Act, 2006, and order of inspection granted by the Tribunal.
On Issue Ten (10) which relates to ground 14 of the ground of appeal, learned Counsel to the Appellant submitted that, this is already dealt with in Issue No. 9.
On Issue Eleven (11) which relates to grounds 15 and 16 of the grounds of appeal, learned Counsel to the Appellant submitted that, the Tribunal by its Ruling of 27th day of February, 2008, disallowed the Resident Electoral Commissioner (REC) in respect of whom subpoena duces team et ad testificandum had been issued by the Tribunal upon application by the Appellant from being sworn on oath and testify.
The reason given by the Tribunal for so holding was that, the Petitioner did not comply with the Practice Direction in that he did not list the Resident Electoral Commissioner as a witness in the petition and that the witness statement of the Resident Electoral Commissioner was not frontloaded by the Petitioner.
Learned Counsel further submitted that, the law is now quite clear that, any proceeding in breach of a party’s right to fair hearing is a nullity no matter how well the proceeding was carried out. See:- Oni Vs. Fayemi (supra) Learned Counsel finally submitted that, this Court should allow the appeal on all points canvassed above.
In reply, learned Counsel to the 1st and 2nd Respondents submitted on Issue No. 1 from grounds 1, 2, 3, 4 & 5 the complaint or allegations of electoral malpractices, thuggery and or violence and or substantial non compliance with Electoral Act 2006 by the Appellant boarder on the commission of crime. That being so, it is the obligation of the Appellant to prove these allegations beyond reasonable doubt. See:- Prof. Ajiboyo Akinkugbe Vs. Ewulum Holdings Alfa. Ltd. & Another (2008) All FWLR (Part 423) 1269 At 1276 Learned Counsel further submitted that, the Electoral Act 2006 sets out the class of people whose evidence would be useful in an election petition. See:- Section 46 (1) and 67 (1) of the Electoral Act 2006. Also, see:- Safiu Amusa and Ors. Vs. The State (1986) 3 NWLR (Part 30) 536 At 537; Onah Vs. The State (1985) 2 NWLR (Part 12) 236 At 237.
Learned Counsel further submitted that, the failure of the Appellant to call his party agents as witnesses he had failed to lead credible evidence on facts pleaded in the petition. It is trite law that, failure to tender evidence in support, is fatal to the petition of the Appellant. See:- Niger Mills Coy. Plc.Vs. Engineer Sam I. Agube (2008) All FWLR (Part 427) 86 At 89; Durosaro Vs. Ayorinde (2005) All FWLR (Part 260) 167 or (2005) 8 NWLR (Part 927) 407; Buhari Vs. Obasanjo (2005) 19 WRN1 311-312; Boniface Anyika & Coy. Lagos Nig. Ltd Vs. Katsina U. D. Uzor (2006) All FWLR (Part 334) 1836 At 1838. Learned Counsel further submitted that, the Tribunal below did painstakingly and exhaustively analysed the evidence led by each of the Appellant’s 22 witnesses and those led by the 1st and 2nd Respondents’ witnesses; and upon a dispassionate consideration of the same, came to a conclusion that the Appellant has failed to discharge the burden of proof on him and consequently dismissed the petition. See:- Paul Charlie & Ors. Vs. Chief E. T. Gudi & Ors. (2007) All FWLR (Part 362) 1992 At 1994. Learned Counsel urged this Court to resolve this Issue in favour of the 1st and 2nd Respondents.
On Issue Two (2), learned Counsel to the 1st and 2nd Respondents submitted that, it is trite law that in election petition cases, parties are bound by their pleadings and evidence adduced in respect of a matter not pleaded, goes to no issue and should be discountenanced. A petitioner will not be allowed to set up a claim different from that in his pleadings, just as evidence not supported by pleadings go to no issue, so also do the pleading not supported by evidence goes to no issue unless they are admitted in the opponents’ pleadings. See.-Buhari Vs. Obasanjo (2005) 19 WRN 1, 167-168; Georae Vs. Dominion Flour Mills Ltd. (1965) All NLR 71,78-79; George Vs. U.B.A. Ltd. (1972) 8/9 S.C. 264; Egolum Vs. Obasanjo (2004 ) 1 WRN 87 At 132.
Learned Counsel further submitted that, for the Tribunal to commence an examination of the Exhibits without tying them to the Appellant’s case would be an invitation that the Tribunal should conduct the case of a party for him at the expense and detriment of the other litigant. That will be a flagrant breach of the principle of fair hearing. Learned Counsel further submitted that, apart from merely tendering these documents in bundles and in bags in some instances, no evidence was led as to the use to be made of them. The Appellant failed to make any effort at trial to link or relate these exhibits in a specific manner to the Appellant’s case. It is not the duty of the Tribunal to dig out facts and ferret out evidence from the exhibits. See.-Buhari Vs. INEC (2008) 4 NWLR (Part 1078) 546 At 629; Awuse Vs. Odili (2005) ALLFWLR (Part 261) 248 At 321-322.
On Issue Three (3) on whether the Tribunal was bound to rely on admitted documents tendered from the bar by the mere fact that, the documents are Certified True Copies in the absence of evidence linking the documents to the facts in issue. Learned Counsel to the 1st and 2nd Respondents submitted that, the Tribunal clearly stated that even though Exhibits “21-36” were admissible in law, it found no reason to attach much weight to them in the absence of the makers, and tendered from the bar. See:- Flash Fixed Odds Ltd. Vs. Akatuaba (2001) 9 NWLR (Part 717) At 63: Awuse V. Odili (Supra).
On Issue Four (4) – whether the Tribunal was right in refusing to rely on the reports of polling agents of the Appellant who were never called as witnesses at the Tribunal, learned Counsel submitted that the objective of the polling agents appointed by the respective parties, is to look after their parties interest at their respective polling units. That being the case, the polling agent appointed by a party or candidate is in the best position to give account of what transpired at that particular polling unit.
Learned Counsel submitted further that, by tendering written reports of polling agents (Exhibits “1-20”), it is apparent the Appellant was cognitive of the provisions of Section 46 (1) of the Electoral Act, 2006, as it shows clearly that polling agents were indeed appointed for each of the polling units being contested. These agents were never called; their written reports would not therefore pass the test of credibility weight or cogency for it to be acceptable documentary evidence. See.-Omega Bank Plc. Vs. O.B.C. Ltd. (2005) 8 NWLR (Part 928) 547 At 585; Flash Fixed Odds Ltd. v. Akatugba (2001) 9 NWLR (Part 717) 46 At 63; Safiu Amusa & Ors. Vs. The State (1985) 3 NWLR (Part 30) 536 At 537: Edohn Vs. The State NWLR (Part 173) 29 At 38; Yusuf Vs. Obasanjo (2006) 2 EPR 30; Waziri Ibrahim Vs. Shagari (2007) 3 EPR 99.
On Issue Five (5) – whether the Appellant can formulate and or argue an issue on a matter that is not related to the judgment of the lower Tribunal, learned Counsel to the 1st and 2nd Respondents submitted that, the purpose of formulating issues is to isolate critical issues in the grounds of appeal relevant for determination of the appeal. This Issue is highly speculative and constitutes an abuse of the appeal process. See:- Odeleye Vs. Adegbanke (2008) 4 WRN 44 At 60 (Lines 5-25); U.B.N. Ltd. Vs. Odusote Bookshops Ltd. (1995) 9 NWLR (Part 421) 558.
On Issue Six (6) – whether the Tribunal rightly exercised its discretion in refusing the Appellant’s application to call additional witnesses, learned Counsel to the 1st and 2nd Respondents submitted that, the Tribunal has a discretion to determine whether or not an applicant seeking to move an application outside the pre-hearing session has shown exceptional or extreme circumstance. It follows therefore that, no one case can be authority for another in matters of discretion. See:- Yesufu Vs. Ilori (2008) 6 NWLR (Part 1083) 333 At 340; Hon. Justice E. C. Aauomba Vs. Hon. Justice Mohammed Uwais & Ors. (2007) All FWLR (Part 346) 440 At 444.
Learned Counsel further submitted that, leave to bring such application outside the pre-hearing session is not granted as a matter of course. The applicant must satisfy the Tribunal that exceptional or extreme circumstances exist to warrant the grant of such application at the time it was brought. Learned Counsel further submitted that, the Appellant failed to show from the affidavit evidence before the Tribunal that extreme circumstance existed which would warrant the bringing of the application at that stage of the proceedings. See:- Williams V. Hope Rising Voluntary Food Society (1992) NSCC 36.
Learned Counsel submitted further that, the fact of granting an application to inspect electoral materials does not ipso facto mean that, the Tribunal must also grant an application to call additional witness(es). The Appellant can make use of the facts, materials, information so gathered during the inspection through his witnesses already listed and whose statements before the Tribunal are replete with allegations of multiple voting, over voting, disruption of election, etc. The issue of breach of fundamental right to fair hearing does not arise.
Learned Counsel submitted further that, the Appellant, having failed to follow the procedure laid down by law or rule of practice and having failed to satisfy the Tribunal that the justice of the case demanded the calling of additional witnesses, the refusal by the Tribunal to allow the Appellant call additional witnesses to give evidence of the inspection does not amount to a breach of the Appellant’s right to fair hearing.
On Issue Seven (7) – whether in the circumstances of this case, the Tribunal was justified when it disallowed a witness that was summoned via subpoena duces tecum et ad testificandum to be sworn in and give evidence. Learned Counsel to the 1st and 2nd Respondents submitted that, apart from adopting our submissions on Issue No. 6, the Tribunal gave cogent reasons why it would not allow the witness to be sworn. The Tribunal was guided by the provisions of the Practice Direction, 2007 which makes it mandatory that, parties must indicate in the list of witnesses, such witnesses they intend to call, and that, the statements of such witnesses must be frontloaded. Learned Counsel finally urged this Court to dismiss the appeal.
Learned Counsel to 253rd and 254th Respondents, in arguing Issue No. 1 of their Brief of Argument, submitted that, under the Electoral Law as in civil proceedings generally, the burden of proof rest squarely on the Petitioner or the party who will fail if no evidence is adduced on either side. See:- Chief Ojukwu Vs. Chief Oluseaun Obasanjo & Ors. (2004) 1 EPR 653. Learned Counsel further submitted that, the 253rd and 254th Respondents did not call any evidence witness; because the burden of proof is not on them, particularly; where as in the instant case, no allegation of misconduct or electoral malpractices has been proved against them. See:- Chief Ojukwu Vs. Chief Obasanjo (Supra).
Learned Counsel submitted further that, the particular police officers alleged to be involved in the electoral malpractices, were not joined in the petition. Learned Counsel submitted further that, allegations against the police in the Petitioner’s witnesses’ statements on oaths are criminal in nature and the principle of vicarious liability does not operate in this instance. See:- Muhammadu Buhari & Another V. Chief Olusegun Obasanjo & Ors. (2005) 2 NWLR (Part 910) 241 At 433; Obasanjo Vs. Yusuf (2004) 9 NWLR (Part 877) 144 At 185; General Muhammadu Buhari Vs. INEC & 5 Ors. (CA/A/EPT/2/2007); Alhaji Atiku Abubakar Vs. Alhaii Umaru Musa Yar’Adua & Ors. (CA/EPT/2007).
Learned Counsel submitted finally that, the Petitioner has failed to adduce any legally admissible evidence in proof of his allegations. The evidence adduced at trial was essentially hearsay which in law, is in admissible and with no force of law. See:- Hashidu Vs. Goje (2006) 2 EPR 799 At 827-828 Ratio 13. This Court is urged to dismiss the appeal.
I shall proceed to consider the merits of the appeal.
Having considered the issues formulated by the parties, I am of the view that the following Issues are adequate enough to dispose the appeal. They are as follows:
(1) “Whether the Appellant has by credible evidence proved or established the allegation 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 trial of the petition.
(2) whether the right of the Appellant to fair hearing had not been infringed by disallowing him to call additional witness(es).
(3) Whether the right of the Appellant to fair hearing had not been infringed by the refusal of the Tribunal to allow the witness summoned on subpoena duces tecum ad et testificandum to testify.
(4) Whether the right of the Appellant to fair hearing had not been infringed by the Tribunal’s denial to accord weight to documents tendered from the bar”.
I shall consider Issues Two (2) and Three (3) first, because, they deal essentially with the issue of the right to fair hearing.
On Issue Two (2), whether the Tribunal sitting in Osogbo, Osun State, had properly evaluated the evidence of both the Appellant and the Respondents before dismissing the petition. The” Appellant had argued that, it was not only a case of none proper evaluation of evidence alone by the Tribunal, but that of a denial of a constitutional right to fair hearing. The Appellant argued further that, pursuant to a motion, the Tribunal granted him an order to conduct an inspection of INEC materials used for the election for the purpose of maintaining his petition. The said inspection was conducted to conclusion by the Appellant and it was necessary to give a report of the said inspection in order to sustain the allegations made by the Appellant to the petition.
Therefore, the application to call additional witness becomes necessary, consequent upon evidence discovered, pursuant to orders of inspection granted by the Tribunal after the petition had been instituted. The Tribunal refused to grant the application on the ground that, the Appellant failed to show exceptional circumstances to warrant the grant of the application. The Tribunal relied on paragraph 1 (1) of the Election Tribunal and Court Practice Direction 2007, that a petition must be accompanied by the witnesses statements the list of witnesses and the list of documents to be relied upon at the trial. The Appellant further argued, having filed his application, pursuant to Section 159 of the Electoral Act for the purpose of maintaining the petition after the 30 days specified for filing witness statement had expired, and which application was duly granted, the Tribunal ought to have known that, in order to achieve the objective of the order. It would have been necessary for the person who participated in the inspection and prepared the report to testify and tender the report. He argued that, it was impossible to expect the witness statement to have been filed within 30 days required by the Practice Direction when the order for inspection was made after the time had expired.
The 1st and 2nd Respondent countered this argument and referred to paragraph 6 (1), (2) and 3 of the Practice Direction and submitted that, the Tribunal has the discretion to determine whether or not an applicant seeking to more an application outside the pre-hearing session has to show exceptional or extreme circumstances to warrant the grant of the application. He argued that, the exercise of discretion no one case can, be authority for another.
The 253rd and 254th Respondents did not address on this Issue in their Brief of Argument.
The Appellant’s application was dated 7th of December, 2007, filed same day, for an order of inspection of electoral materials brought pursuant to Section 159 (1) & (2) of the Electoral Act, 2006; Sections 36 and 285 (2) of the 1999 Constitution. Paragraph 43 of the Rules to Election Petition, First Schedule to the Electoral Act, 2006; Paragraph 6 (1) (2) and (3) and Paragraph 4 (5), (6) and (8) of the Election Tribunal and Court Practice Directions. The orders of the Tribunal was made on the 14th of July, 2007 under the inherent jurisdiction of the Tribunal.
In paragraphs 8, 9, 10 and 11 of the affidavit in support which are germane to the application, it is averred as follows:-
8. “That in the course of carrying out inspection, the Petitioner discovered that, there was a need to a forensic inspection of the election materials and particularly the ballot papers to be scanned electronically for forensic analysis in order to confirm the allegation of multiple thumb-printing of ballot papers already pleaded in the petition”.
9. In carrying out the aforesaid order of the Tribunal, the forensic examinations and inspection of the ballot papers and other election materials used for the election.
10. That the Petitioner considers it necessary to bring the evidence of the findings of both physical and forensic examination and inspection of the ballot papers and other election materials before the Tribunal by calling additional witness.
11. That Tiamiyu Adegboyega, the proposed additional witness, participated in the inspection of election materials; pursuant to the order granted to order granted to Petitioner by this honourable Tribunal. His proposed witness statement/written deposition is now ready, now produced, shown to me and marked Exhibit WA1″ in the proposed witness statement.”
The application was opposed by any Counsel representing the different sets of Respondents. It was accordingly granted on the 14th of July 2007 by the Tribunal.
Section 159 (1) of the Electoral Act under which the application was brought provides:-
“(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 Court if it is satisfied that the order required is for the purpose of instituting or maintaining an election petition.”
It is significant that the order was granted on the 14/07/2007 after the time for instituting a petition had elapsed. The order sought was clearly not for the purpose of instituting the petition. It follows therefore that, in granting the order, the Tribunal accepted the averments in the affidavit in support and was satisfied, it was required for the purpose of maintain the petition already filed.
The Tribunal by its order, sequel to the application of the Petitioner, refused to grant the application for additional witness, because according to the petition, was not frontloaded with the statement of the witness; pursuant to paragraph 1 (1) of the Practice Direction. There can be no gain saying the fact that, the purpose of the Practice Direction is to complement the provisions of the Electoral Act by enhancing and facilitating the expeditious hearing of election petitions. Its purpose is to guide and regulate compliance with and observance of the provisions of the First Schedule to the Act and the Federal High Court Rules where applicable. See:- Adams Vs. Umar (2009) 5 NWLR (Part 1133) 41 At 107-108 E-C: Yusuf Vs. Obasanjo (2003) 9-10 SC 53.The Practice Direction therefore remains complimentary to the provisions of the Electoral Act.
This Court has since made a pronouncement on the essence of the provisions of Section 159 (1) of the Electoral Act, 2006, in the case of Aregbesola V. Oyinlola (2009) 14 NWLR (Part 1162) 429 At 448 Ratio 16. This Court held as follows:-
“The provision of Section 159 (1) of the Electoral Act, 2006, enables a Petitioner to inspect documents in the custody of the Independent National Electoral Commission for the purpose of instituting or maintaining an election petition. The intention of the legislative is that evidence obtained upon the orders for inspection/scanning will support the petition. In the instant case, dismissing the application to tender the result of the scanning carried out by the Appellants shut out the result of the scanning and inspections which the same Tribunal earlier ordered and that was wrong.”
The decision cited above, is in all fours with the present appeal. The same Tribunal ordered for the inspection of the electoral materials by the Appellant, the same Tribunal refused to look at the result of the inspection made consequent upon its own order. It is no gain saying that in an election petition, there is the need to do greater substantial justice. In the same case of Aregbesola Vs. Oyinlola (Supra) Ratio 20, this Court held:-
“The need to do substantial justice is greater in an election petition case than in any other case. This is so because, the Court is not only concerned with the rights of parties interse, but also the larger interest and the rights of the people in the various Local Government Area who had exercised their franchise on election day”.
It is also clear from the record that, the refusal of the Tribunal to allow the Appellant call additional witnesses sequel to its own order allowing him to conduct inspection of INEC materials, will work counter to the rules of natural justice. The Supreme Court stated in the case of Amadi Vs. N.N.P.C (2000) 10 NWLR (part 674) 76 at 10 as follows:-
“That regulations of the rights of access to Court abound in the rules of procedure and are legitimate. However, where the particular infringement of the exercise of judicial power by the Courts abridges the citizen’s right of access to Court, it will be inconsistent with the constitution”.
Again, the Supreme Court in the case of U.T.C. V. Pamotei C1989) NWLR (Part 103) 244 At 296 wherein it stated:
“Rules of procedure are made for convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the Court and not masters of the Court. For Court to read rules in the absolute without recourse to the justice of the course, to my mind, will be making the Court’s slavish to the rules. This certainly is not the reason of the rules of Court.”
Also, see:- Abubakar Vs. Yar’Adua C2008) 1 SC (Part 11) 77 At 122 Lines 1-7: Oni Vs. Fayemi (2008) 8 NWLR (Part 1089) 400 At 443 C-E & 451-452 G-B.
I therefore hold the view that, the Tribunal denied the Appellant his right to fair hearing guaranteed by Section 36 (1) of the 1999 Constitution. I therefore resolved this Issue in favour of the Appellant.
On Issue Three (3) which is another issue of denial of fair hearing against the Appellant, the Tribunal’s refusal to allow the Appellant to put the Resident Electoral Commissioner to the witness box to be sworn in and testify after the Appellant had applied for; and the lower Tribunal issued subpoena ad testificandum et duces tecum. Order 41 Rule 27 of the Federal High Court (Civil Procedure) Rules, which is applicable to election petition by virtue of paragraph 50 of the First Schedule to the Electoral Act, 2006 stipulates:-
“Any party in any action may be subpoened ad testificandum or duces tecum require the attendance of any witness before an officer of the Court or other person appointed to examination, for purpose of using his evidence upon any proceeding in the cause or matter in like manner as such witness would be bound to attend and be examined at the hearing or trial, and any party or witness having made an affidavit to be used or which shall be used on any proceedings in the action shall be bound on being served with the subpoena to attend before the officer or person for cross-examination.”
Subpoena is an order or writ of Court used for securing a witness’s attendance in Court of trial for the purpose of testifying and to produce some documents on behalf of the party who applied for the issue of such subpoena. Where the order is to secure the attendance of a witness for purpose of testifying in Court, it is simply called subpoena ad testificandum, where the order commands the witness to produce certain documents at trial of an action, it is called subpoena duces tecum. If it is expected that apart from producing the documents, the person is also to give evidence, the subpoena would be subpoena ad testificandum et duces tecum.
From the record, the Appellant had served the subpoena ad testificandum et duces tecum on the Resident Electoral Commissioner who indeed appeared in the Tribunal. The trial Tribunal on its own, from the record, suo motu excluded the Resident Electoral Commissioner from entering the witness box to testify and to be cross-examined. The Tribunal at page 194 of the record refused the application. The refusal of the Tribunal to allow the Resident Electoral Commissioner or his representative to be sworn and to give evidence was a grave error, since the subpoena had commanded him to do so. This act of Tribunal only shielded the witness from giving such evidence that was required by the Appellant in proof of his own petition before it. It has thus denied the Appellant the right to fair hearing. The Tribunal by its action has not ensured justice done to all parties to a cause or matter. See:- Military Governor of Imo State Vs. Agbara (1977) 1
NWLR (Part 481) 239: Adefioye Vs. Ayeni (1998) 6 NWLR (Part 532) 129: Abubakar Vs. Yar’Adua (2008) 4 NWLR (Part 1078) 538 At 543 D-F: Aregbesola V. Oyinlola (2009) 14 NWLR (Part 1162) 429 At 478-479.
In the case of Lasun v. Awoyemi (2009) 16 NWLR (Part 1168) 513 at 550 E-F, this Court held per Ogunbiyi, JCA thus:-
“With the Tribunal having issued subpoena duces tecum et ad testificandum on a competent and compellable witness but prevented him from giving evidence, such Tribunal cannot be said to have obeyed the hallowed principle of natural justice equity and good conscience. The case of the Appellant… has not received fair treatment in the circumstance.”
This Court also resolved Issue Three (3) in favour of the Appellant. Having resolved Issues 2 and 3 in favour of the Appellant which are all in denial of fair hearing to the Appellant, it will amount to only academic exercise and a waste of the judiciary precious time to consider any other Issue. I will only add that, position of the law is that the breach of right to fair hearing vitiates the entire proceedings rendering same null and void and of no effect. See- Isiyaku Mohammed V. Kano N. A. (1968) 1 All N.L.R. 42; Paul Unongo Vs. Aper Akn & Ors. (1983) 11 SC 129 At 179; Nwafor Elike V. Nwankwoala & Ors. (1984) 12 SC 301.
Finally, the appeal succeeds and is allowed. The judgment of T. D. Naron, Saadu Muhammed, J. N. Akpughunum, A. T. Badamosi and J. E. Ekanem in Petition No. NA/EPT/OS/2/2007 delivered on the 30th day of May, 2008 at the Election Petition Tribunal, Osogbo, Osun State, is hereby set aside.
In the light of all that has been said in this judgment, the President of Court of Appeal, in the exercise of his constitutional powers, is to constitute a fresh Election Petition Tribunal, for the purposes of hearing this petition afresh.
No cost is awarded.
STANLEY SHENKO ALAGOA, J.C.A.: I read before now the judgment just delivered by my brother Sidi Dauda Bage (JCA) and I entirely agree with him that where there is absence of fair hearing the whole proceedings are a nullity. This is the position in this case I also allow the appeal for this reason and set aside the judgment of the tribunal below. The President of the Court of Appeal is to constitute a fresh Election Petition Tribunal to hear the petition afresh. Parties are to bear their own costs.
MODUPE FASANMI, J.C.A: I have had the advantage of reading the Judgment of my learned brother S. D. Bage J.C.A in this appeal. I hereby agree and adopt that the appeal is meritorious. The appeal is accordingly allowed. I also abide by the consequential order made.
Appearances
Oluwagbemiga OlatunjiFor Appellant
AND
A. Moronkeji
Tewo Lamuye, Wole Kupoluyi and Kanmi Ajibola.
H. B. Tsumba
K. A. TijaniFor Respondent
