DEBO KAMAR AKANBI V. RAFIU ADEJARE BELLO & ORS.
(2010)LCN/3772(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of May, 2010
CA/I/EPT/HA/92/08
RATIO
WORDS AND PHRASES: MEANING OF A SUBPOENA
A subpoena is a command on a person from the court to produce documents under compulsion and give evidence in their respect. PER CHIDI NWAOMA UWA, J.C.A
FAIR HEARING: CONSEQUENCE OF INFRINGEMENT OF FAIR HEARING RIGHT
The Tribunal’s refusal to allow the subpoenaed witness or his representative to testify in the proceedings amounted to an infraction of the Appellant’s right to fair hearing as enshrined in Section 36(1) of the 1999 Constitution.
As I stated earlier in this judgment, the infringement is a fundamental principle of law, which renders a decision and the entire proceedings null and void, in fact it is in law regarded as no decision at all, no matter how seemingly well the case was conducted. Justice must not be biased in favour of one party and to the prejudice of the other. The Court or Tribunal must always be fair to both parties; there should be no standard in favour of one side. The “hearing” I must re-iterate must be a hearing which is fair to both parties. In the present case both parties were heard but, was the Appellant fully heard? No. See EKIYOR V. BOMAR {1997) 9 NWLR (PART 519) 1 AT 12, ISIYAKU MOHAMMED V. KANO NATIVE AUTHORITY (1968) 1 ALL N.L.R. PAGE 424. In EZEJI VS. IKE (1997) 2 NWLR (PART 486) PAGE 206, AT PAGE 224, Okezie J.C.A. (as he then was) had this to say an this issue of fair hearing:-
“The true test of a fair hearing is the impression of a reasonable person at the trial, whether from his observation, justice has been done in the case……..”
See also PAUL UNONGO V. APER AKU & ORS. (1983) 2 S.C.N.L.R. 322; (1983) 11 S.C. 129 AT 179, ROSOKI ARIORI & ORS. V. M. ELEMO & OTHERS (1983) 1 S.C.N.L.R. (1983) 1 S.C. 13 AT 59. PER CHIDI NWAOMA UWA, J.C.A
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
Between
DEBO KAMAR AKANBI Appellant(s)
AND
RAFIU ADEJARE BELLO & 129 ORS. Respondent(s)
CHIDI NWAOMA UWA, J.C.A (Delivering the Leading Judgment): In the general elections of 14th April, 2007 into Ede North State Constituency seat of the Osun State House of Assembly in which the Appellant contested on the platform of Action Congress (AC) while the 1st Respondent who was returned as having won the election by the 3rd Respondent, Independent National Electoral Commission (INEC) contested on the platform of the 2nd Respondent (People’s Democratic Party).
Aggrieved by the return of the 1st Respondent, the Appellant on 14th May, 2007 filed a petition before the Governorship and Legislative Houses Election Petition Tribunal sitting at Osogbo (hereinafter referred to as the Tribunal) in Petition No. HA/EPT/OS/11/07 challenging the return and declaration of the 1st Respondent as the candidate returned as the winner of the election on the ground of non-compliance with the mandatory requirements of both the Constitution of the Federal Republic of Nigeria 1999 and the Electoral Act, 2006. The Appellant alleged that the election was affected by the said non-compliance and the 1st Respondent not validly returned.
In the Petition, there were allegations of wide spread acts of violence, thuggery, disruption of election, illegal stuffing, hijack and carrying away of ballot boxes perpetrated by the 1st Respondent and his thugs with the connivance of the law enforcement agents whose duty and responsibility was to ensure peaceful, free and fair election. The Appellant prayed for nullification of the election before the Tribunal. The 1st and 2nd Respondents on being served with the Petition filed their joint reply dated 12th June, 2007 on the 14th day of June, 2007 in which all the allegations were denied.
The 3rd – 128th Respondents filed their reply dated 14th June, 2007 on the same day, the 129th and 130th Respondents also filed their reply. All the Respondents denied the allegations against them. Thereafter, the Appellant by an application filed on 27th June, 2007 and granted on 28th June, 2007 obtained an order of inspection of all the materials used for the election, which were all listed in the motion paper at pages 170 – 179 of the Record of Appeal. The order was granted by the Tribunal (page 182 of the record) and on 27th October, 2007 issued two subpoena duces tecum et ad testificandum on the Resident Electoral Commissioner (4th Respondent) and Electoral Officer, Ede North Local Government INEC to produce all the materials listed in the subpoena and to give evidence, page 196 to 200 of the record.
In a motion dated 3rd December, 2007 the Appellant sought the leave and order of the Tribunal to call one Tiamiyu Adegboyega as an additional witness and tender inspection reports of the electoral materials.
In its Ruling of 18th January, 2008 the tribunal refused the application on the ground that the petitioner did not indicate in the pre-hearing information sheet that he would be calling additional witnesses and that there were no exceptional circumstances to warrant the bringing of the application (page 278 of the records).
The person subpoenaed to be examined on the produced documents was not allowed to testify, on the ground that the witness’ statement on oath was not front loaded.
The Appellant called ten (10) witnesses, the 1st and 2nd Respondents called four (4) witnesses, the 3rd – 128th Respondents and 129th – 130th Respondents respectively did not call any witness. At the close of trial on the 30th day of May, 2008, the Tribunal in its judgment dismissed the Petition on the ground that the Appellant as Petitioner had not given credible evidence to prove his case, for which the Appellant appealed to this Court.
The original Notice of Appeal dated and filed on 17/6/08 was later, on application amended on 30/9/09 in which Fifteen (15) Grounds of Appeal were raised, from which seven (7) issues were distilled for determination by this Court. The issues are as follows:-
“(1) Whether documents admitted as Exhibits become irrelevant and unreliable because they were tendered from the bar and no evidence led on them. (Ground 6 of Amended Notice of Appeal).
(2) Whether facts averred in the testimonies of Petitioner/Appellant witnesses’ and defects in some of the Electoral forms were not pleaded and therefore go to no issue. (grounds 4 and 5).
(3) Whether evidence of what transpired at the Polling units can only be given by Polling Agents or other persons authorized by Electoral Act to be at the Polling Units thereby rendering the testimonies of Petitioner’s witnesses who are supervisors not mentioned by 46(1) & (2), 62, 63, 64(1) & 2 and 136(1) of Electoral Act 2006 improbable of belief on the face of unchallenged and uncontradicted evidence of the witnesses. (Grounds 2, 3 and 7 of the Amended Notice of Appeal).
(4) Whether the Tribunal was right when it held that it is unnecessary for the Respondents to call evidence to deny the allegation of electoral malpractices, violence and intimidation led in evidence by the Petitioner’s witnesses.
(Grounds 14 & 1 of the Notice of Appeal).
(5) Whether the Tribunal was right in its evaluation and consideration of evidence placed before it when it held that evidence led by PW1 – PW10 are not credible rather ascribed probative value to the evidence of DW1 – DW4. (Ground 1 of the Notice of Appeal).
(6) Whether the Tribunal was right when it directed that the Resident Electoral Commissioner of Osun State in respect of which Subpoena duces Tecum ad Testificandum was issued cannot enter the witness box to testify for the Petitioner thereby occasioning a breach of fair hearing to the Appellant.
(Ground 8 of the Amended Notice of Appeal)
(7) Whether the Tribunal was right in its Ruling of 18/01/08 when it dismissed the Petitioner/ Appellant’s application to call additional witness and to tender inspection report which application was necessitated by the inspection order granted by the Tribunal pursuant to Section 159 of Electoral Act, 2006.
(Grounds 9,10,11,12 and 13 of Amended Notice of Appeal).”
The Appellant’s brief of argument in which the above issues-were argued dated 2/10/09 was filed on 12/10/09. The Appellant also filed a reply brief dated 30/10/09 and filed on 2/10/09.
On behalf of the 1st and 2nd Respondents is a brief of argument dated and filed on 28/10/09 in which two issues were raised for determination. They are:
“1. Whether the Tribunal did not adopt the correct or proper approach in the assessment and evaluation of the pieces of evidence proffered by the parties vis-a-vis their pleadings in arriving at its decision.
2. Whether the Tribunal was wrong in dismissing the Petitioner/ Appellant’s applications to call additional witnesses.”
“On their part, the 3rd – 128th Respondents did not file any brief of argument despite the fact that, on application, they were on 7/4/09 granted an extension of time to file and serve the Respondents’ brief out of time, the time allowed by the rules of this court having elapsed. An attempt to adopt that of the 1st and 2nd Respondents was struck out in the same application of 7/4/09.
The 129th and 130th Respondents filed a joint brief of argument on 4/11/09, dated same day. In the said brief there was a preliminary objection incorporated therein. The preliminary objection was withdrawn without any objection from the Appellant and 3rd – 128th Respondents, same was accordingly struck out. In their brief of argument, three (3) issues were raised for determination. They are:-
“(1) Whether the tribunal properly evaluated and considered the evidence of Appellant’s witnesses.
(Grounds 2, 3, 6 & 7).
(2) Whether the Tribunal was right when it held that it is unnecessary for the Respondents to call evidence to deny the allegation of electoral malpractices, violence and intimidation same having not been proved. (Grounds 1 & 14).
(3) Whether the Tribunal properly exercised its discretion to disallow the Appellant’s application to call additional witness. (Grounds 9, 10, 11, 12 and 13)”
When this appeal was argued the learned counsel to the Appellant Adewale Afolabi Esq. adopted the Appellant’s brief of argument filed by him and relied on same in urging us to allow the appeal.
The issues formulated by the Appellant are appropriate for determination of this appeal.
I will start with the sixth issue which complained about a breach of the Appellant’s right to fair hearing and the arguments proffered in respect of this issue by both parties. This issue of fair hearing in my humble view also runs through the other issues raised by the Appellant. The issues were earlier reproduced in this judgment and speak for themselves, therefore there would be no need to reproduce or recouch the issues as raised by the Appellant.
The issue of fair hearing or the breach of it is an old Rule which forms the bedrock of our country’s legal system and this can be seen as also enshrined in Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria. It is fundamental to our legal system. See ADIGUN V. A-G OYO STATE (1987) 1 NWLR (PART 53) 678 AT 694. In support of his issue six (6) Mr. Afolabi in his brief of argument submitted that the Tribunal disallowed the representative of the 4th respondent (the Resident Electoral Commissioner, Osun State) summoned to the Court via a subpoena duce tecum et ad testificandum to produce documents and give evidence on the ground that their witness’ statements were not filed alongside the Petition. The first subpoena duces tecum et ad testificandum is dated 30/10/07 while the second is dated 21/2/08, issued by the Tribunal after the time to file witness’ statements had passed. It was argued that not allowing the representative of the 4th Respondent to give evidence for the reason given above was erroneous on the part of the Tribunal.
Further, that the Tribunal ought to have allowed the 4th Respondent to testify, being agents of the adversary, could not have deposed to a witness’ statement at the instance of the Appellant. The learned counsel highlighted the objective of a subpoena as, amongst others a command to whom it is directed to come to court and give evidence or produce documents.
It was submitted that the Appellant was denied the opportunity of examining these witnesses on the allegations of irregular conduct of the election. It was argued that by such refusal, the Tribunal disallowed vital evidence the Appellant required to sustain his case. We were urged to resolve this issue in favour of the Appellant.
The 1st and 2nd Respondents responded to the issue of fair hearing in part of their 2nd issue as argued in their joint brief of argument from pages 50 – 51 of the records.
In summary, it was argued by the learned counsel Mr. Abimbola that the Tribunal exercised its discretion in refusing to allow evidence to be given on behalf of the Resident Electoral Commissioner (REC) in line with the Practice Direction, 2007 and considered the surrounding circumstances of the application to examine on oath the subpoenaed REC in disallowing same. Further, that there is no precedent for the Court or Tribunal to exercise its discretion. It was submitted that the Practice Direction and the Electoral Act have made adequate provisions for parties in an election petition to obtain justice. Learned counsel contended that where a party fails to follow the laid down procedure, or has committed procedural blunder in the presentation of the petition, prosecution or conduct of the case, such a party ought not to be heard to complain of breach of fundamental right to fair hearing, we were urged to resolve this issue against the Appellant.
As stated earlier in this judgment, the 3rd to 125th Respondents did not file any brief of argument and have nothing to urge this court.
On the part of the 129th and 130th Respondents in their joint brief of argument the learned counsel Mr. Tewo Lamuye in response to the Appellant’s issue six (6) argued in his third issue, in summary submitted that at the time the Appellant presented his petition before the Tribunal, he ought to have known he would require to inspect the electoral materials and would tender the report of the inspection. Further, that the Appellant ought to have stated the following in his petition:
(i) that he would conduct an inspection of electoral materials;
(ii) he would tender the inspection report through a witness;
(iii) name such witness in the list of witnesses; and
(iv) front load the written statement he intended to rely on.
It was argued that the issue of breach of fundamental right to fair hearing does not arise and that a complaint of denial of fair hearing would have substance when no opportunity was offered to the Appellant to be heard. Reference was made to the case of YESUFU V. ILORI (2008) 6 NWLR (PART 1083) 333 AT 352.
It was submitted that allowing the representative of the REC to testify on subpoena would spring a surprise on the Respondents. We were once again urged to resolve this issue against the Appellant.
It is observed that the learned Appellant’s counsel in his brief of argument gave the wrong dates as to when the two subpoenas were issued and the wrong pages where same appear in the printed records. Counsel ought to be more careful in making reference to the records of appeal or processes which he desires to utilize, that would assist the court in not having to comb through bulky records and files to fish out the exact process being referred to by learned counsel. This would make the work of the court less tedious and less stressful.
It is clear from page 197 of the records that the Appellant applied for the issuance of the subpoena duces tecum et ad testificandum on 2/10/07 to be issued on the Osun State Resident Electoral Commissioner of the Independent National Electoral Commission, specifically for him to give evidence and tender documents and electoral materials listed in the application, see pages 197 – 198 of the printed records. Following the application the learned Tribunal on 27/10/07 granted the application, the subpoena specified that it was for the purpose of the Resident Electoral Commissioner of INEC Osogbo to give evidence on behalf of the Appellant as Petitioner and also to produce at the time specified documents therein. It was signed by the Chairman of the Tribunal, at page 196 of the printed records.
The second application dated 5/10/07 at page 199 of the Records was also granted on 27/10/07, to be issued to the Supervisory Officer, Ede North Local Government Area, INEC.
At pages 279 – 285 of the records it is clear that the documents and materials were produced and tendered from the bar. Also pages 290 – 291 of the records.
On the 1st of February and 22nd February, 2008 the learned Tribunal held that the issuance of subpoena duces tecum et ad testificandum is superfluous the Petitioner having inserted a Notice to produce in his Petition. At this juncture I would state that this view is erroneous in that the two are not one and the same thing. Utilization of a Notice to produce documents by a witness cannot prevent the Appellant from utilizing documents produced via another witness on subpoena.
A subpoena is a command on a person from the court to produce documents under compulsion and give evidence in their respect. Whereas Notice to produce documents relates to mere production of documents and has no other obligation or compulsion as a subpoena, as rightly argued by the learned counsel to the Appellant.
Paragraph 50 of the 1st Schedule to the Electoral Act, 2006 provides as follows:-
“50. Subject to the express provisions of this Act the practice and procedure of the Tribunal or the Court in relation to an election petition shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction and the Civil Procedure Rules shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of this Act, as if the petitioner and the respondent were respectively the plaintiff and the defendant in an ordinary civil action. ” (underlining mine)
The resultant effect of the above provisions is that where the Practice Direction did not make provision for subpoena duces tecum et ad testificandum and same has been provided for by the Federal High Court Rules, same would be applicable and utilized to attain the same justice which is what the Practice Direction also seeks to attain for both parties. No doubt, the Practice Direction requires that witness’ statements be front loaded with the Petition, this provision cannot defeat the clear provisions of the rules of the Federal High Court or the Electoral Act. The Practice Direction was made to be utilized alongside the Electoral Act and the Federal High Court Rules which guides the procedure to be followed in determining Election Petition. It is meant to be obeyed but not to stifle justice. See DUKE V. AKPABUYO LOCAL GOVERNMENT (2005) 19 NWLR (PART 959) PAGE 130 AT 142 – 143 H-A, ONI V. FAYEMI (2008) 8 NWLR (PART 1089) 400 AT 442 – 443 H – B, UNILAG V. AIGORO (1984) NSCCPAGE745; 1985 1 NWLR (PART 1) 143 and more recently, a decision of this division in CA/I/EPT INA/95/08 OMIDIRAN V. OLUBUNMI & 343 OTHERS delivered on 22/3/10, per Kekere-Ekun, J.C.A. AT PAGE 30 TO 31.
On the other hand, the representative of the 4th Respondent (REC) was an agent of the Appellant’s adversaries. The question is: would it have been possible for the Appellant to have obtained their witness’ statement at the Appellant’s instance? I doubt the possibility. As rightly argued by the learned Appellant’s counsel, if the Appellant could obtain the witness’ statement of the 4th Respondent there would have been no need for the Application for a Subpoena to be issued in the first place. The object of a subpoena is for the person to whom it is directed to come to court and give evidence or produce documents or both as in the present case.
In the present case, the required documents and materials were produced in court. It is the testimony of the witness from whom these documents came from that required evidence would be obtained by the Appellant to enable him put his case forward, for which purpose the application was made in the first place. The refusal by the Tribunal upon application by the Appellant to swear on oath the Resident Electoral Commissioner on whom the subpoena was served and the holding that there is non compliance with the Practice Direction for non listing of the REC as a witness in the Petition and the witness statement not front loaded by the Petitioner is erroneous.
Since the Practice Direction did not make any provision for subpoena, the Tribunal ought not to have relied on it on the issue of subpoena and I so hold. The refusal of the 4th Respondent or his representative to give evidence on oath and be examined on the produced documents and alleged irregular conduct of the election, by so doing the Tribunal disallowed and excluded evidence which the Appellant feels is vital to sustain his case.
If the Tribunal had allowed the REC or his representative to testify on oath having been on subpoena, the produced documents and materials used to conduct the election complained about would have been better scrutinized by the Tribunal in eventually arriving at a decision. The Tribunal would have been in a better position to determine the usefulness or otherwise of the produced documents rather than not allow evidence on oath from those that conducted the election, on the materials used to conduct same. This is certainly shutting out the Appellant from fully presenting all the required evidence to maintain his petition. See OBIODU V. DUKE (2006) 1 NWLR (PART 961) 375 AT 419, BUHARI V. OBASANJO (2005) 1 NWLR (PART 941) PAGE1 and ABUBAKAR V. YAR’ADUA (2008) 4 NWLR (PART 1078) 538 AT 543 D – F, AREGBESOLA V. OYINLOLA (2009) 14 NWLR (PART 1162) 429, LASUN V. AWOYEMI (2009) 16 NWLR (PART 1168) 513 AT 550, recently, OMIDIRAN V. OLUBUNMI (2010) SUPRA) and my recent decision in FAMUREWA VS. ONIGBOGI & 334 ORS. in CA/I/EPT/NA/91/08 delivered on 16/4/10.
The Appellant was not on equal footing to place all his cards on the table, to put in all what he considers vital for a proper determination of his case. Evidence is balanced when both parties are given equal opportunities to put in all their evidence, oral and documentary to prove their cases within the ambit of the law to enable the court determine the case of the parties, whatever the outcome, then justice would have been seen to be done.
The Tribunal’s refusal to allow the subpoenaed witness or his representative to testify in the proceedings amounted to an infraction of the Appellant’s right to fair hearing as enshrined in Section 36(1) of the 1999 Constitution.
As I stated earlier in this judgment, the infringement is a fundamental principle of law, which renders a decision and the entire proceedings null and void, in fact it is in law regarded as no decision at all, no matter how seemingly well the case was conducted. Justice must not be biased in favour of one party and to the prejudice of the other. The Court or Tribunal must always be fair to both parties; there should be no standard in favour of one side. The “hearing” I must re-iterate must be a hearing which is fair to both parties. In the present case both parties were heard but, was the Appellant fully heard? No. See EKIYOR V. BOMAR {1997) 9 NWLR (PART 519) 1 AT 12, ISIYAKU MOHAMMED V. KANO NATIVE AUTHORITY (1968) 1 ALL N.L.R. PAGE 424. In EZEJI VS. IKE (1997) 2 NWLR (PART 486) PAGE 206, AT PAGE 224, Okezie J.C.A. (as he then was) had this to say an this issue of fair hearing:-
“The true test of a fair hearing is the impression of a reasonable person at the trial, whether from his observation, justice has been done in the case……..”
See also PAUL UNONGO V. APER AKU & ORS. (1983) 2 S.C.N.L.R. 322; (1983) 11 S.C. 129 AT 179, ROSOKI ARIORI & ORS. V. M. ELEMO & OTHERS (1983) 1 S.C.N.L.R. (1983) 1 S.C. 13 AT 59.
In my considered view, the Appellant was not given the opportunity to state his case fully before the final judgment was delivered. He was shut out by being deprived of the opportunity permitted and given to him by law for the REC, or his representative to testify and give evidence and be examined on the documents and materials used to conduct the challenged election. See also CHIEF OYEYEMI VS. COMMISSIONER FOR LOCAL GOVERNMENT KWARA STATE AND ORS. (1992) 2 S.C.N.J. 266; 1992 2 NWLR (PART 221) 661.
It is unfortunate that the Tribunal did not give the Appellant full opportunity as required by law to air and attempt to prove his grievances. Whether he succeeds or not is a different thing, it is not for the Tribunal to shut him out from doing so. Justice must be balanced; it is for both parties, no shielding one while shutting out the other, that would be setting different standards which in my considered view is not permitted in proper administration of Justice, moreso in an election petition that affects not only the parties but the electorate. The Appellant was right that the Tribunal not allowing a witness on subpoena to testify for him in the witness box occasioned a breach of fair hearing to the Appellant’s Petition, raised in the Appellant’s issue six (Grounds 8 and 9 in the Amended Notice of Appeal). The sixth issue is therefore resolved in favour of the Appellant.
The resolution of the Appellant’s sixth issue has adequately taken care of his issue one which questioned the relevance or otherwise of the Exhibits tendered from the bar without evidence led on them, similarly his issue seven.
At this point, like flogging a dead horse, having resolved the Appellant’s sixth issue in his favour there is no need to go into resolution of the other issues raised by the Appellant but, I would, short of being superfluous refer to the Judgments of my learned brothers decided in this division in which similar situations as arose in this case were comprehensively dealt with. See LASUN VS. AWOYEMI (2009) NWLR (PART 1168) 513, ALHAJA AYO OMIDIRAN VS. ETTEH PATRICIA OLUBUNMI & 343 ORS. in CA/I/EPT/NA/95/08 delivered on 22/3/10 (supra). HON. BASHIR ADEYELA V. OLAJIDE ADEYEYE & 98 ORS in CA/I/EPT/HA/73/08 delivered on 24/3/19 and CA/I/EPT/NA/91/08 AJIBOLA ISREAL FAMUREWA VS. OLUGBENGA ONIGBOGI & 334 ORS. delivered on 16/4/10 (supra). I rely on all the above decisions, in which the appeals were as a result of the decision of the same Tribunal in similar situations.
In the final analysis, the appeal succeeds, I allow same, and grant the alternative prayers sought as follows: The judgment of the Tribunal sitting at Osogbo in Petition No.HA/EPT/OS/11/07 delivered on 30th May, 2008 is hereby set aside, including the earlier Rulings delivered on 18/1/08, 1/2/08, and 22/2/08 respectively for lack of fair hearing.
It is hereby ordered that the Petition be tried de novo by a differently constituted Panel of Judges. The matter should be given accelerated hearing. Each party to bear its respective costs.
STANLEY SHENKO ALAGOA, J.C.A.: I have had the advantage of reading in draft the lead judgment of my learned brother Uwa, J.C.A. just delivered. I agree with the reasoning and conclusion reached. The appeal succeeds and is allowed by me. I abide by all the consequential orders made therein including the order on costs.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother, C. N. UWA, JCA just delivered. I agree entirely with the reasoning and conclusion therein. In his petition before the lower Tribunal the appellant complained inter-alia of non-compliance with the provisions of the Electoral Act 2006 through acts of violence, illegal stuffing of ballot boxes, hijacking of ballot boxes etc. In order to prove some of the irregularities complained of he applied for and the Tribunal ordered the issuance of subpoena duces tecum et ad testificandum on the Resident Electoral Commissioner of INEC to produce documents and testify in respect thereof. The Tribunal also granted leave to the appellant to conduct inspection of electoral materials used in the election. In granting these orders, the Tribunal must have been satisfied that they were necessary to enable the appellant sustain his petition. By refusing to allow the representative of INEC to testify and refusing to allow the appellant to call as an additional witness the person who participated in the inspection of electoral materials, the tribunal took back with one hand what it had given with the other. The appellant was certainly denied the opportunity of putting his case fully before the court. In the recent decision of this court in OMIDIRAN VS. ETTEH CA/I/EPT/NA/95/08 delivered on 22/3/2010, I referred to the opinion of Tobi JSC in ABUBAKAR VS. YAR’ADUA (2008) I SC (pt.11) 77 at 122 lines 23-29 wherein his Lordship stated inter alia:
“Full opportunity should be given to parties in the interest of justice without undue regard to technicalities. ….Election petitions are sui generis and should be treated in that domain or realm.”
I adopt the view I expressed in Omidiran’s case (supra) and state that in the instant case the Tribunal in its strict technical approach to the application of the Practice directions 2007, breached the appellant’s constitutional right to fair hearing. See also AREGBESOLA VS. OYINLOLA (2009) 14 NWLR (1162) 429 at 478-479 G-B; LASUN VS. AWOYEMI (2009) 16 NWLR (1168) 513 at 550 E-F; FAMUREWA VS. ONIGBOGI & ORS. : CA/I/EPT/NA/91/08 delivered on 16/4/2010.
For these and the more detailed reasons contained in the lead judgment, I also hold that the rulings delivered on 18/1/08, 1/2/08 and 22/2/08 and the judgment delivered on 30/5/2008 by the Governorship and Legislative Houses Election Petition Tribunal sitting at Osogbo in petition No. HA/EPT/OS/11/07 must be set aside for lack of fair hearing. I accordingly allow the appeal and abide by the consequential orders in the lead judgment, including the order on costs.
Appearances
Adewale Afolabi Esq
Kolapo Alimi Esq.For Appellant
AND
A. A. Abimbola Esq
Wole Kupoluyi and K. Ajibola Esq.
Tewo Lamuye
3rd – 128th Respondents absent.For Respondent
