MUHAMMED BASHIR OLATUNJI IBRAHIM V. OLATUNJI ADEWALE OGUNLEYE & ORS
(2010)LCN/4113(CA)
In The Court of Appeal of Nigeria
On Thursday, the 9th day of December, 2010
CA/I/EPT/HA/93/2008
RATIO
POSITION OF THE LAW ON THE ADMISSIBILITY OF THE EVIDENCE OF WHAT A PERSON WHO BREACHES THE LAW AND UNLAWFULLY FINDS HIMSELF IN A POLLING STATION DURING AN ELECTION, WHEN HE OUGHT NOT TO BE THERE SAW, EXPERIENCED OR WITNESSED AT THAT POLLING STATION
If a person breaches the law and unlawfully finds himself in a polling station during an election, when he ought not to be there, the illegality of his presence at the polling station would not automatically translate to inadmissibility of the evidence of what he saw, experienced or witnessed at that polling station. Such evidence is analogous to evidence illegally or unlawfully obtained. Even in criminal cases, except in the case of involuntary confessional statements, unlawfully obtained evidence, if relevant, is admissible. See KURUMA V. R. (1955)1 All ER 236 at 239-240, where the Privy Council stated, inter alia, thus: “The test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is admissible…..the court is not concerned with how the evidence was obtained”. See also the cases of MUSA SADAU & ANOR. V. THE STATE (1968) NMLR 208; TORTI V. UKPABI (1984) 1 SCNLR 2t4 AT 236 – 237 and 239 24O and LASUN V. AWOYEMI (2009) 15 NWLR (Pt.1168) 513 at 553. PER MOORE A.A. ADUMEIN, J.C.A.
SUBPOENA : WHAT A SUBPOENA ENTAILS
…Subpoena is a very important writ of court or tribunal. A court or tribunal issues this writ “commanding a person to appear before” it, “subject to a penalty for failing to comply”. See BLACK’S LAW DICTIONARY, EIGHTH EDITION, page 1467. According to the learned authors of BLACK’S LAW DICTIONARY, “subpoena ad testificandum” is a subpoena ordering a witness to appear and give testimony” while “subpoena duces tecum” is one “ordering the witness to appear and to bring specified documents or records”. Therefore, a subpoena duces tecum ad testificandum is a jumbo subpoena which combines two qualities or characteristics, namely commanding or ordering a person to “appear and bring specified documents or records” and to also “give testimony”. A subpoena is, therefore, a serious order by a court or tribunal, disobedience to which is sanctionable or punishable. PER MOORE A.A. ADUMEIN, J.C.A.
WHETHER AN ORDER OF A COURT MUST OBEYED
It is trite law that a court order, unless and until set aside or vacated, must be obeyed. PER MOORE A.A. ADUMEIN, J.C.A.
COMPETENT AND COMPELLABLE WITNESS: WHETHER OFFICERS OR OFFICIALS OF INEC CAN BE READY WITNESSES TO TESTIFY ON BEHALF OF A PETITIONER
By the provisions of paragraph 47(1) of the First Schedule to the Electoral Act, 2006 officers or officials of INEC “shall not be at liberty to refuse to oppose an election petition…………except with the consent of the Attorney-General of the Federation” and they cannot, therefore, be ready witnesses to testify on behalf of a petitioner, without the written consent of the Attorney-General of the Federation. To emphasize the potency of a subpoena, when subpoenaed, as in the present case, an official of INEC becomes a competent and compellable witness for a petitioner and the consent of the Attorney-General is obviated. See IKE V. OFOKAJA (1992) 9 NWLR (Pt.263) 42. PER MOORE A.A. ADUMEIN, J.C.A.
WHETHER SUBSTANTIAL JUSTICE SHOULD BE DONE TO PARTIES TO ELECTION CASES WITHOUT BEING UNDULY FETTERED BY LEGAL TECHNICALITIES THROUGH STRICT ADHERENCE TO THE PROVISIONS OF THE PRACTICE DIRECTIONS
The current judicial mood is that substantial justice should be done to parties to election cases without being unduly fettered by legal technicalities through strict adherence to the provisions of the Practice Directions relating, for example, to frontloading. This mood was recently set out explicitly by DOGBAN-MENSEM, J.C.A. in the case of CHIEF GREAT OVEDJE OGBORU & ANOR .V. DR. EMMANUEL EWETAN UDUAGHAN & ORS (Appeal No. CA/B/EPT/38/10) decided by the Court of Appeal (Benin Division) on the 9th day of November, 2010 wherein His Lordship stated, inter alia, as follows: “……….there is the liberal approach founded on a consideration of the attainment of substantial justice. According to this approach, the rejection of documents because they were not frontloaded would occasion a miscarriage of justice. …………………………. We are inclined to the latter views for they are in accord with our understanding of the current mood of the courts in election matters; a mood dictated by the need to eschew technicalities in favour of substantial justice”. Please, see also the cases cited by His Lordship in the said judgment: CHIME V. GWUONWU (2003)2 TRECN 575 at 616; CHIME V. EZEA (2008)2 LRECN 673 744-745; ABUBAKAR V. YAR’ADUA (2008)4 NWLR (Pt. 1078) 465; INEC V. INIYIAMA (2008)5 NWLR (Pt. 1088)182 and OGUNSAKIN V. AJIDARA 5 NWLR (Pt. 1082)1. PER MOORE A.A. ADUMEIN, J.C.A.
WHETHER THE ASCRIPTION OF PROBABTIVE VALUE TO THE EVIDENCE OF WITNESSES IS PRE-EMINENTLY THE BUSINESS OF THE TRIAL COURT
The law is well settled that the “ascription of probative value to the evidence of witnesses is pre-eminently the business of the trial court which saw and heard the witnesses” – FABIYI, J.S.C. in the case of OLALOMI INDUSTRTES LTD. V. NIGERIA INDUSTRIAL DEVELOPMENT BANK LTD.(2009) 16 NWLR (Pt. 1167) 266 at 295. PER MOORE A.A. ADUMEIN, J.C.A.
JUSTICES
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
CHINWE E. IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A.A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
MUHAMMED BASHIR OLATUNJI IBRAHIM Appellant(s)
AND
1. OLATUNJI ADEWALE OGUNLEYE
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION AND OTHERS Respondent(s)
MOORE A.A. ADUMEIN, J.C.A. (Delivering the Leading Judgment): On the 14th day of April, 2007 the Independent National Electoral commission (INEC) the 3rd respondent conducted election to Oriade constituency of Osun state House of Assembly. Seven (7) candidates, including the appellant – Muhammad Bashir Olatunji Ibraheem of Action congress and Olatunji Adewale Ogunleye (the 1st respondent) of Peoples Democratic Party, contested the said election. The results of the election, as announced by INEC, showed that the appellant scored 10,444 votes while the 1st respondent scored 12,810 votes. The 1st respondent was announced and returned by INEC as the candidate duly elected at the said election. The appellant was not satisfied with the outcome of the election and filed a petition on the grounds that the 1st respondent was, at the relevant time of contesting the said the election, not qualified to contest the election and that the election was invalid by reasons of non-compliance with the Electoral Act, widespread irregularities, malpractices and disenfranchisement of many voters. (Pages 3 and 4 of the record of appeal) The prayers sought by the appellant, as set out in his election petition, were “that it may be determined as follows:
That the 1st Respondent was not qualified to stand for the election into the House of Assembly, Oriade State Constituency, Osun State, as the said 1st Respondent made a false declaration to the Independent National Electoral Commission in his nomination form with regard to his academic qualification.
The 1st Respondent was not competent to stand for the said election as he falsely represented by forged
document to the Independent National Electoral Commission.
The election to the Osun State House of Assembly Election in wards, l, 3, 7, 8, 9 and 10 of Oriade constituency
held on April 14, 2007 and is therefore invalid by reason of non compliance with the provision of the Electoral Act, 2006 and that the said election was vitiated by substantial non-compliance with the mandatory statutory requirements which substantially affected the validity of the elections that the 1st Respondent cannot be said
to have validly won the said elections.
That the results of the said wards be declared invalid and should be cancelled thereby leaving the lawful votes in other wards of the constituency for the determination of the winner of the said election.
That your petitioner be declared winner and returned as the member of the Osun State House of Assembly representing Oriade State Constituency.”
The appellant’s election petition was heard and determined by the Osun State Governorship and Legislative Houses Election Petition Tribunal (Coram: Hon. Justice T.D. Naron – Chairman, Hon. Justice Saadu Mohammed – Member, Hon.Justice J.N. Akpughunum – Member, Hon. Justice A.T. Badamasi – Member and Hon. Justice J.E. Ekanem – Member). Judgment in respect of the election petition was delivered on the 13th day of May, 2008 and this appeal, filed on the 30th day of May 2008, is against that judgment and three interlocutory rulings of the tribunal. On the 1st day of September, 2008 the appellant filed an amended notice of appeal in which 17 (Seventeen) grounds of appeal and their particulars were set out.
At the hearing of the appeal, Mr. Adewale Afolabi, leading Messrs J.O Akano, Kolapo Alimi and O.O. Morakinyo (Miss), learned counsel for the appellant adopted and relied on the appellant’s brief dated the 16th day of April, 2010 and filed on the same date and urged the court to allow the appeal. The 1st and 2nd respondents, through their learned counsel – Messrs A.A. Abimbola and A.
Morokenji, adopted and relied on their joint brief of argument dated the 25th day of May, 2010 and filed on the same date but deemed as properly filed and serve on 09/06 /2010 and urged the court to dismiss the appeal and affirm the decision of the tribunal. The 3rd – 37th respondents were absent and they were also not represented. It should be noted, however, that they had earlier indicated, through their learned counsel – F.E. Abbe, Esq., that they “adopt the brief of argument of the 1st and 2nd respondents.” The 38th and 39th respondents, through their learned counsel – K.A Tijani, Esq. (Principal State Counsel, Osun State) adopted their brief of argument dated the 2nd day of June, 2010 and filed on the same date but deemed filed and served on 09/05 /2010. The 38th and 39th respondents’ brief was settled by Ademola Adeyemo, Esq. In his brief of argument, settled by Mrs. F.O. Babafemi, Esq; the appellant distilled 8 (eight) issues for determination. In their response the 1st and 2nd respondents formulated 5 (five) issues as arising for determination in the substantive appeal. The 38th and 39th respondents distilled only 2 (two) issues as arising or calling for determination in this appeal.
I have examined the issues formulated by the parties and I agree with the 1st and 2nd respondents that the issues devised by them adequately cover the appellant’s grounds of appeal and the complaints that arise in this appeal.
Therefore, I adopt them and set them out hereunder as the issues calling for determination in this appeal:
“l. Whether the Appellant was able to prove through oral or documentary evidence that the 1st Respondent was not qualified to contest election into the Osun State House of Assembly. (Ground 1, 2 and 8)
2. Whether the refusal to allow the Appellant call additional witness to give evidence does not amount to denial of the Appellants right to fair hearing (Grounds 9, 10, 11 and 12)
3. Whether denying the witnesses on subpoena to be sworn by the Tribunal amounts to a breach of the Appellant right to fair hearing (Grounds 13 and 14).
4. Whether the Tribunal adopted a proper evaluation to the evidence proffered by the parties with the pleadings in arriving at its decisions (Grounds 1, 3, 4, 5, 6, 7 and 16).
5. Whether the Tribunal can raise and determine an issue not raised by the parties before it suo motu (Ground 15).
I will resolve these five issues in an order that I deem convenient, namely the following order: issue 2, issue 5, issue 4, issue 3 and issue 1.
ISSUE TWO
Whether the refusal to allow the Appellant call additional witness to give evidence does not amount to denial of the Appellants right to fair hearing.
The appellant’s contention, on this issue, is that the lower tribunal was in error to have refused him to call additional witness to tender the report of inspection of the materials used at the election, on the ground that the appellant did not indicate that he would bring an application in that respect in his prehearing information answer sheet (Form TF 008). It was contended by the appellant that the lower tribunal ought to have considered the fact that, at the time the appellant filed his pre-hearing answer sheet, the tribunal had not made the order for inspection and this ought to have been regarded as an extreme circumstance under paragraph 6(1) of the Practice Directions. The appellant referred to the case of ONI V. FAYEMI (2008) 8 NWLR (Pt. 1089) 400 where the court held that the absence of clear copies of documents which ought to be “frontloaded” at the time of filing the petition was an exceptional circumstance. The appellant urged the court to hold that the decision of the tribunal refusing the appellant to call additional witness to tender the inspection report was “an infraction of the petitioner’s (appellant’s) right to fair hearing”.
In their reply, the 1st and 2nd respondents argued that the tribunal had “a discretion to determine whether or not an applicant seeking to move an application outside a pre-hearing session has shown exceptional or extreme circumstance” and that “no one case can be an authority for another”. On this point, reliance was placed on the case of YESUF V. ILORI (2008) 6 NWLR (Pt.1083) 333 at 340. It was contended that from the averments in the appellant’s petition he knew or ought to know that an inspection of the electoral materials would be required and a report of the inspection tendered but that he (the appellant) did not take the appropriate step until it was too late.
The 1st and 2nd respondents contended that, in the present case, the appellant also failed to show by his affidavit “that extreme circumstance exist which will warrant the bringing of the application at that stage of the proceedings”. The 1st and 2nd respondents referred the court to the case of WILLIAMS V. HOPE RISING VOLUNTARY FOOD SOCIETY (1992) NSCC 36.
The 1st and 2nd respondents contended that the Election Petition Tribunal and Court Practice Direction 2007 “has the force of law and it must be obeyed strictly as they constitute conditions precedent for the presentation and maintenance of Election Petition. See Buhari V. INEC (2008) 4 NWLR (Pt. 1078) 546”. The 1st and 2nd respondents relied on the case of CHIME V. UDE (1996) 7 NWLR (pt. 461) 379 at 415 and contended that the appellant “refused to operate within the confines of the law” and would not be allowed to harp on the allegation of supposed breach of right to fair hearing”. They submitted further that a complaint of fair hearing would only have substance if no opportunity was given to the party to be heard. On this point, the case of YESUF V. ILORI (supra) at 352 was cited. They argued that the Rules of Court and Practice Directions must be obeyed. The 1st and 2nd respondents submitted that timeous disposal of election petitions is very important and relied on the case of AHMED JIDDAH V. KALIAH (1994) 4 NWLR (Pt. 599) 526 at 433.
It was also contended by the 1st and 2nd respondents that a similar application to call an “expert who allegedly analysed some polling documents” was refused by this Court in the case of BUHARI V. INEC (Suit Nos. CA/A/EP/E/07 and CA/EP/3/07 consolidated). The 1st and 2nd respondents argued that the case of ONI V. FAYEMI (supra) cited by the appellant was not applicable to this case. They urged the court to resolve this issue against the appellant.
I only wish to add that the argument of the 38th and 39th respondents on this issue, which is issue 2 formulated by them, is substantially the same as that of the 1st and 2nd respondents and there is no need to repeat their submissions.
On the 1st day of December, 2007 the petitioner/appellant filed in the tribunal a motion on notice dated the 30th day of December, 2007(pages 157-198 of the record of appeal). The said motion on notice, which sought leave of the tribunal to allow the petitioner to call an additional witness, was heard and determined by the tribunal on the 19th day of February, 2008 (pages 270-272 of the record). The tribunal dismissed the said motion on the ground, inter alia, that:-
“We have read through the processes filed and are of the view that in Form TF008, the Petitioner’s answers to the pre-hearing information sheet, he did not indicate any intension to apply for leave to call additional witness or witnesses outside the pre-hearing session or Period.”
The reasoning of the tribunal, quoted above, is the crux of this issue. I am of the humble view that the reasoning of the trial tribunal, cited hereinabove, cannot be faulted having regard to the facts of this case.
The petitioner/appellant, contrary to his assertion that when he filed his pre-hearing information sheet “the tribunal had not yet made the order for inspection”, was granted an order by the tribunal to inspect the election materials on the 29th day of June, 2007 (pages 233-234 of the record) The petitioner/appellant filed his answers to the pre-hearing information sheet (Form TF008) on the 2nd day of August, 2007 (PP. 116-117). The time difference between the order for inspection and filing of Form TF008 was reasonably sufficient for a diligent petitioner to know whether or not to apply to call additional witness to enable him to utilize the findings or report of his inspection of the electoral materials and to so indicate in his Form TF008. An election petition, it is trite, is sui generis and time is of the essence.
I agree with the counsel for the respondents that, under the circumstances, the tribunal rightly exercised its discretion by refusing to allow the appellant to call additional witness to testify on the report or result of the inspection of the electoral materials.
Without more, this issue is hereby resolved against the appellant.
ISSUE FIVE
Whether the Tribunal can raise and determine an issue not raised by the parties before it suo motu.
The appellant argued that the lower tribunal suo motu raised the issue of whether or not the following documents: “Letter of 12/7/07 addresses to Messrs.
Biola Ladapo and Co; letter of 12/7/07 addressed to Mr. Michael Olawale; letter of 8/6/07 addressed to Alade A. Gabriel; and letter of 23/12/07 addressed to Biola Ladapo & Co” were public documents and proceeded to determine the issue “without calling for addresses from the counsel”. The appellant, therefore, relying on the cases of DELAM V. OSUN STATE GOVERNMENT (2006)2 NWLR (Pt. 964) 211 at 218-219 and FRN V. OBEGOLU (2005)18 NWLR (Pt. 1010)188 at 228- 229, asked the Court to set aside the decision of the tribunal.
On the other side, the 1st and 2nd respondents contended that the issue was not raised suo motu by the tribunal as “the issue was raised by the Appellant’s counsel in his submission before the tribunal, whereby the said Appellant’s counsel relied on S. 110 of the Evidence Act.” They referred to pages 261 to 263 of the record of appeal. Counsel argued, therefore, that the case of DELAM V. OSUN STATE GOVERNMENT (supra), cited by the appellant, would not apply to this case.
From the printed record before this Court, on the 12th day of December, 2007 the learned counsel for the petitioner (the appellant) sought to tender, from the Bar, some documents produced by one Mr. Samuel Omosanya Aje of Olabisi Onabanjo University, Ago Iwoye, who was in the tribunal on a subpoena. There was an objection by counsel to the respondents. In the course of his argument, the learned counsel for the petitioner (the appellant in this Court) relied on the case of AGAGU V. DAUDA (1990)7 NWLR (Pt. 160)56 at 69 and OKONJI V. NJOKAMA (1939) NWLR (Pt. 114)161 and also “strongly on Section 110 of the Evidence Act” and argued that the documents were admissible because “The documents are Public Documents and are CTC”. In his response, the counsel for the 1st and 2nd respondents urged the tribunal to reject the documents because “No proper foundation has been laid to show that they are Public Documents”.
(See pages 260-261 of the record).The tribunal considered the issue “Whether the documents sought to be tendered are Public documents” and delivered its ruling accordingly. (Pages 262-263 of the record).
It is crystal clear, from th9e record, that nothing can be farther from the truth than the allegation by the appellant that the tribunal suo motu considered the issue of whether the documents under reference were public documents and “without calling for addresses from counsel”. In the present case, the issue of whether the documents in dispute were public documents was raised by the parties and the tribunal merely ruled on it. The case of DELAM V.OSUN STATE GOVERNMENT (supra) is inapplicable to this case. This issue is hereby resolved against the appellant.
ISSUE FOUR
Whether the Tribunal adopted a proper evaluation to the evidence proffered by the parties with the pleadings in arriving at its decisions.
This issue is dealt with by the appellant from pages 11 to 13 of his brief of argument. The appellant argued that notwithstanding that he called credible witnesses and tendered many documents in support of his petition, the lower tribunal dismissed his case without properly evaluating the evidence of his witnesses. The appellant contended that the tribunal, relying on the case of BUHARI V. OBASANJO (2005)13 NWLR (Pt. 941)1, erroneously disregarded the evidence of his witnesses on the ground that they were not the categories of persons recognized by law to be at a polling unit. He distinguished case of BUHARI V. OBASANJO from this case.
The appellant stated that his witnesses (PW1- PW6) were eye witnesses and that they gave evidence of what they saw, heard and experienced and that by the provision of section 7 of the Evidence Act such evidence is “the best evidence”. It is the appellant’s submission that none of the respondents’ witnesses (RW1- RW3) gave evidence showing that PW1- PW6 was not eye witnesses.
The response of the 1st and 2nd respondents on this issue can be found at pages 31 to 35 of their brief of argument and that of the 38th and 39th respondents is set at pages 6 to 23 of their joint brief of argument. The summary of the respondents’ argument is that the lower tribunal properly evaluated the evidence proffered by the parties in arriving at its decision. The respondents referred to the cases of NETWORK SECURITY LTD. V. ALHAJI UMARU DALURU & ORS. (2008) ALL FWLR (pt. 419)475 at 482 and PROF. AJIBAYO AKINKUGBE V. EWULUM HOLDINGS NIG. LTD. (2008) All FWLR (Pt. 423)1269 at 1276 and section 138 of the Evidence Act and argued that the appellant ought to have proved the allegations, in his petition which bordered on crime, beyond reasonable doubt. They contended that the witnesses, called by the appellant, were ward supervisors of the appellant’s political party during the election and their evidence was hearsay evidence of what happened at the various polling stations or units within the various wards that they supervised. On this point, they referred to the cases of AJADI V. AJIBOLA (2004)16 NWLR (Pt. 888)91 at 163, BUHARI V. OBASANJO (2005) 13 NWLR (Pt. 941)1 at 315-317 and OMOBORIOWO V. AJASIN (1984)1 SCNLR 108 at 385.
The respondents argued that the lower tribunal which “had the opportunity to observe the demeanour” of the appellant’s witnesses thoroughly assessed and ascribed probative value to their evidence and that the findings of the tribunal should not be disturbed, in the absence of any special circumstances shown by the appellant. On this point, the respondents referred to the cases of ELERAN V. ADERONPE (2005)11 NWLR (Pt. 1097)50; UNITY BANK PLC V. BUHARI (2008)7 NWLR (Pt. 1086)372 at 419 and KAZEEM V. MOSAKU (2007)17 NWLR 523.
In the tribunal, six witnesses, namely: Mr. Olawale Oladunjoye, Mr. Babatope Merinnbi, Mrs. Bola Fakokunde, Mr. Toyese Adesina, Mr.Solomon Ajimotokin and Mr. Yisau Nasiru, who testified as PW1, PW2, PW3, PW4, PW5 and PW6 respectively, gave evidence on behalf of the appellant. Each of the six witnesses described himself/herself as “Ward supervisor for the Action Congress” during the disputed election and each witness claimed to have covered one ward.
In respect of PW1- Mr. Olawale Oladunjoye, the tribunal, in its judgment, reviewed his evidence, referred to sections 46(1) and 62(1) of the Electoral Act and chapter 1, paragraph 1.4 of the INEC Manual For Election Officials, 2007 (exhibit 11) and concluded as follows:-
“In all the provisions of the Electoral Act, 2006 and the Manual for Elections Officials …….., it is no where stated the rights and responsibilities of a Ward Supervisor nor does a Ward Supervisor fall into the class of persons allowed full access to the Polling Stations, except where he is a voter at a Polling Station.
His evidence therefore as it relates to the events at the Polling Units is inadmissible. It is the responsible of the 17 Party Agents at the 17 Polling Units in the Ward to have given evidence as to the thumb printing of ballot papers by PDP thugs, none counting of votes, none announcement of results, and none collation of same at the Ward level and Local Government Collation Centre. His evidence is hearsay and inadmissible.”(Underlining mine).
With due respect, the evidence of a witness, such as PW1, if direct and not merely a relay or replay of what some other persons informed or told him, cannot be hearsay and inadmissible. If PW1 personally witnessed, observed, saw or experienced what he narrated to the tribunal, his evidence would be direct and, therefore, admissible under section 77 of the Evidence Act. See the case of OJO V. GHARORO (1999)8 NWLR (Pt. 615)374 where this Court held that the evidence of a doctor, who was present when a team of doctors did a surgery, was admissible.
I agree with the trial tribunal that a “Ward Supervisor of a political party” is not one of the categories of persons specifically mentioned in the Electoral Act (sections 46(1) and 62(1)) and the INEC Manual for the 2007 elections; however, the fact that such species of political party personnel is not permitted to be at a polling station on an election day, or during the election, would not, by that fact alone, automatically make the evidence of such a person inadmissible. If a person breaches the law and unlawfully finds himself in a polling station during an election, when he ought not to be there, the illegality of his presence at the polling station would not automatically translate to inadmissibility of the evidence of what he saw, experienced or witnessed at that polling station. Such evidence is analogous to evidence illegally or unlawfully obtained. Even in criminal cases, except in the case of involuntary confessional statements, unlawfully obtained evidence, if relevant, is admissible. See KURUMA V. R. (1955)1 All ER 236 at 239-240, where the Privy Council stated, inter alia, thus:
“The test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is admissible…..the court is not concerned with how the evidence was obtained”.
See also the cases of MUSA SADAU & ANOR. V. THE STATE (1968) NMLR 208; TORTI V. UKPABI (1984) 1 SCNLR 2t4 AT 236 – 237 and 239 24O and LASUN V. AWOYEMI (2009) 15 NWLR (Pt.1168) 513 at 553.
Therefore, because he was physically present when the surgery was effected the evidence of the doctor, who testified in the case of OJO V. GHARORO (supra), in my view, would still be admissible even where, for any professional rules or regulations or otherwise, he was not permitted to be in the surgical room or theatre when the surgery was done.
In my view, the tribunal was, therefore, wrong when it held that some aspects of the evidence of PW1 and the other appellant’s witnesses were inadmissible on the ground only that they were not permitted by law to be present at polling stations during the elections, save for the purpose of voting.
A careful examination of the judgment of the tribunal and the entire record of appeal, as will be clarified later under issues 3 and 1, reveals that the tribunal partially evaluated the evidence of the appellant’s witnesses, vis-a-vis the evidence of the respondents’ witnesses, before finally arriving at its conclusion that the appellant failed to prove his allegations of irregularities, non-compliances and acts of violence as required by law. The tribunal ignored the evidence of PW1 – PW6, in respect of events at some polling stations, on the ground that their evidence was hearsay and inadmissible. Pages 407-428 of the record of appeal.
The duty of a trial tribunal is not partial evaluation but adequate and full evaluation of both oral and documentary evidence proffered before it.
This issue is hereby resolved in favour of the appellant against the respondents.
ISSUE THREE
Whether denying the witnesses on subpoena to be sworn by the Tribunal amounts to a breach of the appellant right to fair hearing.
On this issue, the appellant argued that it was wrong for the tribunal, which had summoned persons by subpoena ad testificandum est duces tecum, to disallow them to be sworn and to testify on the ground that their written depositions were not frontloaded and attached to the petition. The appellant contended that it was curious that the lower tribunal refused the subpoenaed witnesses to be sworn, since “a subpoena is an order of the court, hence failure by a person subpoenaed to attend the court is in contempt of the court and punishable either by fine, imprisonment or both ………unless the person excuses his/her failure to the satisfaction of the court.”
In their reply, the 1st and 2nd respondents argued that “the fact the Lower Tribunal prevented or denied the representative of Resident Electoral Commission (sic) Osun State on subpoena to be sworn and to give does not amount to a breach of the appellant’s right to fair hearing”. They argued that “since the Tribunal merely approved the written application made by the appellant for the issuance of the subpoena, the Tribunal did not issue the said subpoena suo motu” and that the appellant ought to have complied with the provision of paragraph 1 of the Practice Direction 2007.lt was further contended that the tribunal had exercised its discretion in the matter and “there cannot be a precedent for the court or Tribunal to exercise otherwise it is no longer a discretion”.
At page 249 of the record of appeal, the learned counsel for the appellant sought a subpoenaed witness, the Resident Electoral Commissioner, Osun State, represented by an Electoral Officer, to be sworn and to testify on behalf of the appellant. The respondents’ counsel objected on the ground of non-compliance with the provisions of paragraphs 1(i)(a)(b) and (3) of the Practice Directions 2007. The tribunal upheld the objection and disallowed the subpoenaed “witness from being sworn in”. As so, the other subpoenaed witnesses could not testify for appellant.
At pages 152 and 155 of the record, the learned chairman of tribunal issued “SUBPOENA DUCES TECUM ET AD TESTIFICANDIUM” signed on 06/11/07 and 09/11/07 respectively. In the said subpoena, the Resident Electoral Commissioner was “commanded in the name of the President and Commander-in-Chief of the Armed Forces to attend before the tribunal ……. to give evidence on behalf of the Petitioner” and to also produce documents, a list of which was attached thereto.
I agree with the counsel for the appellant that Subpoena is a very important writ of court or tribunal. A court or tribunal issues this writ “commanding a person to appear before” it, “subject to a penalty for failing to comply”. See BLACK’S LAW DICTIONARY, EIGHTH EDITION, page 1467. According to the learned authors of BLACK’S LAW DICTIONARY, “subpoena ad testificandum” is a subpoena ordering a witness to appear and give testimony” while “subpoena duces tecum” is one “ordering the witness to appear and to bring specified documents or records”. Therefore, a subpoena duces tecum ad testificandum is a jumbo subpoena which combines two qualities or characteristics, namely commanding or ordering a person to “appear and bring specified documents or records” and to also “give testimony”. A subpoena is, therefore, a serious order by a court or tribunal, disobedience to which is sanctionable or punishable.
It is trite law that a court order, unless and until set aside or vacated, must be obeyed.
In the instant case, the lower tribunal, having issued the subpoena commanding the Resident Electoral Commissioner, Osun State to appear before it to give evidence and produce certain documents, had a corresponding duty to enforce it or ensure its enforcement. It was erroneous and illogical for the tribunal to have refused the subpoenaed REC or his representative to be sworn and to give evidence on behalf of the petitioner/appellant. Reliance by the tribunal on the provisions of the Practice Directions, in refusing the subpoenaed witness to be sworn, has no legal basis.I agree that the Court and tribunal Practice Directions require that witnesses to an election petition should ‘frontload’ their written depositions with the petition or the reply thereto, as the case may be. However, having regard to the facts and circumstances of this case, the tribunal unfairly trivialized and slaughtered justice on the alter of legal technicalities by refusing a subpoenaed official of the Independent National Electoral Commission (INEC) to be sworn and, therefore, to give testimony in the election petition.
By the provisions of paragraph 47(1) of the First Schedule to the Electoral Act, 2006 officers or officials of INEC “shall not be at liberty to refuse to oppose an election petition…………except with the consent of the Attorney-General of the Federation” and they cannot, therefore, be ready witnesses to testify on behalf of a petitioner, without the written consent of the Attorney-General of the Federation. To emphasize the potency of a subpoena, when subpoenaed, as in the present case, an official of INEC becomes a competent and compellable witness for a petitioner and the consent of the Attorney-General is obviated. See IKE V. OFOKAJA (1992) 9 NWLR (Pt.263) 42.
The current judicial mood is that substantial justice should be done to parties to election cases without being unduly fettered by legal technicalities through strict adherence to the provisions of the Practice Directions relating, for example, to frontloading. This mood was recently set out explicitly by DOGBAN-MENSEM, J.C.A. in the case of CHIEF GREAT OVEDJE OGBORU & ANOR .V. DR. EMMANUEL EWETAN UDUAGHAN & ORS (Appeal No. CA/B/EPT/38/10) decided by the Court of Appeal (Benin Division) on the 9th day of November, 2010 wherein His Lordship stated, inter alia, as follows:
“……….there is the liberal approach founded on a consideration of the attainment of substantial justice. According to this approach, the rejection of documents because they were not frontloaded would occasion a miscarriage of justice. ………………………….
We are inclined to the latter views for they are in accord with our understanding of the current mood of the courts in election matters; a mood dictated by the need to eschew technicalities in favour of substantial justice”.
Please, see also the cases cited by His Lordship in the said judgment: CHIME V. GWUONWU (2003)2 TRECN 575 at 616; CHIME V. EZEA (2008)2 LRECN 673 744-745; ABUBAKAR V. YAR’ADUA (2008)4 NWLR (Pt. 1078) 465; INEC V. INIYIAMA (2008)5 NWLR (Pt. 1088)182 and OGUNSAKIN V. AJIDARA 5 NWLR (Pt. 1082)1.
In my humble view, therefore, the rejection of a subpoenaed witness on the ground supplied by the tribunal, namely non-compliance with paragraph (3) of the Practice Directions was, under the facts and circumstance of this case, wrong and the appellant was denied a fair hearing.
This issue is hereby resolved in favour of the appellant against the respondents.
ISSUE ONE
Whether the Appellant was able to prove through oral or documentary evidence that the 1st Respondent was not qualified to contest election into the Osun State House of Assembly.
On the allegation that the 1st respondent was not qualified to contest the election into Osun State House of Assembly, Mrs. Babafemi, learned counsel for the appellant, stated that, at the instance of the appellant, some officials of Olabisi Onabanjo University were issued and served with subpoena ad testificandum et duces tecum. The officials of Olabisi Onabanjo University appeared, in obedience to the tribunal’s subpoena, but the tribunal refused them from giving evidence and the appellant “had no choice but tender” the documents “through his counsel from the bar”. Counsel then argued as follows:
“The law is now quite trite that a person who is issued with subpoena ad testificandum et duces tecum would not only be required to produce the document in question, he would in additional (sic) be led in evidence on oath as well as lay himself open to cross examination.”
The appellant urged the court not to allow the judgment of the lower tribunal to stand and he cited the case of SOLANKE V. ABED (1962) 1 ANLR 230 in support of his argument.
The appellant contended that it was wrong for the lower tribunal to have refused to give effect to exhibits 12, 13, 14, 15, 16, 17 and 24 which were admitted through his counsel. He submitted that once documents were admitted by a court, effect must be given to them by that court and the case of CAP PLC V. VITAL INV. LTD. (2006) 5 NWLR (Pt. 975) 220 at 267 was cited and relied upon. It was contended by the appellant that, if the said exhibits were considered, the lower tribunal “would have found that the exhibits bear a resounding testimony to the fact that all the credentials which the 1st respondent presented to INEC to contest the election were all forgeries”. The appellant contended, therefore, that since the tribunal failed to consider the said documentary evidence, this court could evaluate them. On this point, the appellant referred to the cases of BUNGE v. GOV. OF RIVERS STATE (2006) 12 NWLR (Pt. 995) 573 at 629 and OKOMALU V. AKINBODE (2006) 9 NWLR (Pt. 985) 338 at 350. The appellant, accordingly, urged the court to evaluate exhibits 12, 13, 14, 15, 15, 17 and 24 and hold that “the 1st respondent having presented false certificates to INEC is not entitled to contest for the election”.
The 1st and 2nd respondents, however, argued that the appellant, who asserted that the 1st respondent presented forged documents to INEC – thereby imputing the commission of crime, had the burden to prove his assertion beyond reasonable doubt. The 1st and 2nd respondents referred to and relied on sections 137 and 138(1) of the Evidence Act and the cases of INEC V. RAY (2004) 14 NWLR (Pt. 892) 92 at 121-122; ADUN V. OSUNDE (2003) 15 NWLR (Pt. 847) 643 at 666 and NNACHI V. IBOM (2004) 16 NWLR (Pt. 900) 614 at 634.
It was contended by the counsel for the 1st and 2nd respondents that none of the witnesses called by the appellant gave evidence on the alleged forgery and that exhibits 12, 13, 14, 15, 16, 17 and 24 “were not tendered through their makers nor were (sic) their makers called to give evidence in relation to the said document” (sic). The 1st and 2nd respondents relied on the case of AWUSE V. ODILI (2005) All FWLR (Pt. 261) 248 at 321-322 and submitted that the appellant ought to have related each of the documents “to that part of his case” in respect of which the documents were tendered but that the appellant failed to do so. The 1st and 2nd respondents stated that the exhibits referred to earlier were “tendered in bundle from the Bar” and they were not singled out for examination by the tribunal or cross examination by the counsel to the respondents. The 1st and 2nd respondents contended that the cases of CAP PLC V. VITAL INV. LTD. (supra); BUNGE V. GOVERNOR OF RIVERS STATE (supra) and OKOMALU V. AKUBODE (supra), cited by the appellant, were not applicable.
The 1st and 2nd respondents argued that exhibits 12, 13, 14, 15, 16, 17 and 24 were “properly, thoroughly considered and evaluated” by the tribunal and urged the court to resolve this issue against the appellant.
I wish to state, immediately, that the tribunal, contrary to the contention of counsel to the respondents, did not evaluate exhibits 12, 13, 14, 15, 16, 17 and 24.
According to the tribunal, the said exhibits, tendered by the appellant’s counsel from the Bar, “were not tendered through their makers nor their makers called to give evidence in relation to the said documents”. See page 405 of the record of proceedings.
Exhibits 12, 13, 14 and 15 are the following documents, respectively, namely:
1. Nomination form CF001 of the 1st Respondent submitted to Independent National Electoral Commission including the Diploma Certificate in Business Administration dated the 31st day of the December, 2004 purportedly issued by Olabisi Onabanjo University, Ago -Iwoye, Consultancy Services.
2. Advanced Diploma Certificate in Business Administration Dated the 31st day December, 2OOS submitted to Independent National Electoral Commission purportedly issued by Olabisi Onabanjo University Ago-Iwoye, Consultancy Services.
3. Statement of Result of the 1st Respondent from the National Examination Council dated November/ December, 2004 submitted to Independent National Electoral Commission from Yewa (Egbado) College, Ilaro Ogun State, attached to the 1st Respondent Nomination form CF001 submitted to Independent National Electoral Commission.
4. Statement of the result of the 1st Respondent from Yewa (Egbado) College, Ilaro Ogun State.
Exhibits 12, 13, 14 and 15 were listed in the subpoena issued on the REC of Osun State and they were accordingly produced by a representative of the REC. However, they were tendered from the Bar because the tribunal refused the subpoenaed witness to be sworn to give evidence on behalf of the petitioner/appellant.
On the other hand, exhibit 16 (List of Diploma Students 2002/2003 Session and Diploma Certificate in Business Administration) and exhibit 17 (Report of investigation into the Certificate of Mr. Ogunleye O. Adewale) were produced by Samuel Omosanya and Prof. (Mrs.) O. Sotonade, both staff or officials or representatives of Olabisi Onabanjo University, Ago-Iwoye. Samuel Omosanya and Prof. (Mrs.) O. Sotonade were subpoenaed witnesses but could not give evidence on behalf of the petitioner/applicant for the reason dealt with under issue 3.
It is even on record (Pages 267-273 of the record) that, notwithstanding that the tribunal had earlier refused the subpoenaed witnesses to be sworn and to testify on behalf of the appellant, he (the appellant) made necessary efforts, through a motion on notice, to ensure that the officials or representatives of Olabisi Onabanjo University testified on the falsity or otherwise of Diploma Certificates allegedly issued to the 1st respondent by the said University and which were presented to the 3rd respondent (INEC) by the 1st respondent. The only way for the appellant to have proved beyond reasonable doubt, that the certificates presented by the 1st respondent to INEC were forged or false, was for him to have had adduced evidence from or by the institutions which allegedly issued the academic certificates or diplomas to the 1st respondent. By such evidence, the tribunal would have been able to juxtapose the disputed Certificates and/or Diplomas with the evidence tendered by the givers or makers of the academic certificates/diplomas and, accordingly, form an opinion on the genuineness or otherwise of the certificates/diplomas, presented to INEC by the 1st respondent. However, the tribunal inexorably denied, refused or disallowed subpoenaed witnesses, from the relevant institutions, to give evidence on behalf of the appellant based on technical excuses, as adumbrated under issue 3. In my humble opinion, the tribunal unfairly denied the appellant the opportunity to prove his allegations in accordance with law.
Under the circumstances of this case, I do not find it necessary to determine whether or not the appellant was able to specifically relate the documents tendered by him to the part of his petition alleging the disqualification of the 1st respondent. This is so because the tribunal unlawfully denied him a fair hearing in that respect.
CONCLUSION
In view of my conclusions on issue 3, and 1, I hold the view that, since the appellant was by the tribunal unfairly and unreasonably denied a fair opportunity to have his witnesses testify on his averments that the 1st respondent was not qualified or was disqualified for presenting forged certificates to the 3rd respondent – Independent National Electoral Commission (INEC), that opportunity should and ought to be restored to him by an order for retrial. The appellant argued that the Court could evaluate exhibits 12, 13, 14, 15, 16, 17 and 24, since they are before the court and arrive at the conclusion that the 1st respondent was not qualified to contest the disputed election. With due respect, in the cases of BUNGE V. GOVERNOR OF RIVERS STATE (SUPRA) and OKOMALU V. AKNIBODE (2006) (supra) the documents were regularly admitted and the contending parties had the opportunity to examine and cross-examine on them. In the present case, that opportunity was completely denied both parties by the tribunal. In the overall interest of justice, the contending parties should be given a fair hearing on the issue.
The appellant, be it kindly noted, also raised questions on exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11:-
-2006/2007 Voters Registration Exercise Result Summary;
-List Number of Ballot Boxes used for April 14 for Ward One, Erin-Oke;
-Allocation of Ballot papers for 2007 House of Assembly election on 14th April, 2007;
-Form EC8A(1) for Oriade (66 copies);
-Form EC8B(1) for Wards 1, 3, 7, 8, 9, and 10 (6 copies for Oriade);
-Form EC8C(1) (1 copy) for Oriade;
-All unused ballot papers for Wards 1, 3, 7, 8, 9, and 10 in one sack;
-serial numbers of Form EC8A(1) and EC8C used for the April 14,2007 election for Oriade L.G. (7 copies);
-Form EC25A Schedule of INEC distribution of electoral materials in Wards 1, 3, 7, 8, 9, and 10 (19 copies);
-List of Ad-hoc staff Oriade L.G. (6 copies);
-Manual for election officials, 2007; and
-Form CF001 for Oriade.
These exhibits were also tendered from the Bar because the subpoenaed REC or his representative was disallowed from being sworn to testify on behalf of the appellant. In my view, these exhibits suffer the same fate as exhibits 12, 13, 14, 15, 16, 17 and 24 hereinbefore fully discussed. I hold that both parties should be given a fair hearing on these exhibits, as well, before a judicial opinion can be formed and pronounced.
The tribunal, as stated earlier, also ignored some aspects of the oral evidence adduced by the appellant’s witnesses on the erroneous ground that such evidence was hearsay and inadmissible. The law is well settled that the “ascription of probative value to the evidence of witnesses is pre-eminently the business of the trial court which saw and heard the witnesses” – FABIYI, J.S.C. in the case of OLALOMI INDUSTRTES LTD. V. NIGERIA INDUSTRIAL DEVELOPMENT BANK LTD.(2009) 16 NWLR (Pt. 1167) 266 at 295.
Without more, in view of my decisions on issues 3, 4 and 1, I hold that this appeal has merit and it succeeds.
Appeal allowed and, accordingly, I make the following orders:
1. The judgment of the tribunal, delivered on the 13th day of May 2008, is hereby set aside.
2. The tribunal, consisting of or constituted by a different panel of Judges, is hereby ordered to retry the appellant’s election petition.
3. The sum of N50, 000.00 (fifty thousand naira only) is hereby awarded as costs in favour of the appellant against the 1st and 2nd respondents.
NWALI SYLVESTER NGWUTA, J.C.A.: I read in draft the lead judgment just delivered by my learned brother Adumein JCA and I agree with the reasoning and conclusion therein contained.
Though issues 2 and 5 are resolved in favour of the respondent issues 1, 3 & 4 resolved against him are in my humble the decisive factors in the appeal as they touch issues of right to fair hearing.
In issue three the summons to the Resident Electoral commissioner was not just for the commission to tender documents but also to testify before the Tribunal. The Tribunal was satisfied on the application of the appellant that the subpoena be issued and having issued same the Tribunal breached the appellant’s right to a fair hearing by not allowing the witness on its subpoena to give sworn evidence on behalf of the appellant.
The Tribunal’s refusal to allow the witness on its subpoena to give sworn evidence tainted the Tribunal’s decision on the evidence sought to be adduced through the witness.
In issue one the Tribunal again infringed on the right of the appellant by its refusal to allow the officials of Olabisi Onabanjo University who appeared in obedience to the Tribunal’s subpoena give evidence for the appellant. The Tribunal did not issue the subpoena in error. It can not approbate and reprobate simultaneously. Appellant cannot prove his pleaded non-qualification of the respondent to contest the election if he is prevented from fielding the witnesses he summoned from the University alleged to have issued the certificates to the respondent.
Every opportunity should have been given to the appellant to substantiate the crucial issue he raised on the qualification of the respondent if only to ensure that Nigeria’s hallowed legislative chambers are no longer discrated and dishonored by the presence therein of men and women of Toronto fame.
For the above and the fuller reasons adduced in the lead judgment I also all the appeal and adopt the order made in the lead judgment.
CHINWE E. IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, Moore A.A. Adumein, JCA. I agree with the reasoning contained therein and the conclusions arrived thereat.
The Appellant was the candidate of Action Congress (AC) while the 1st respondent was the candidate of the 2nd respondent, the Peoples Democratic Party (PDP) in the Oriade Constituency, Osun State House of Assembly election held on the 14th day of April 2007. The appellant was dissatisfied with the declaration of the 1st respondent as the winner of the election by the 3rd respondent, Independent National Electoral Commission. He filed a petition before the Election Petition Tribunal at Osogbo.
In his petition, the appellant challenged the return of the 1st respondent as the winner of the election on the ground of his non-qualification, non-compliance with the provisions of the Electoral Act 2006 and the mandatory requirements of the 1999 Constitution of the Federal Republic of Nigeria which he alleged substantially affected the result of the election. The appellant further alleged acts of violence, thuggery, disruption of election, stuffing of ballot boxes, snatching of ballot boxes, illegal thumb printing, and disenfranchisement of voters.
All the respondents filed replies denying the allegations. The parties complied with the Practice directions. Subsequently, the appellant by motion on notice prayed for an order to inspect the election materials used for the conduct of the election in Oriade State Constituency of Osun State. This prayer was granted by the Tribunal. (Pages 125-135 of the Record of Proceedings). The trial commenced with the appellant calling six witnesses whose statements were front loaded with the petition. He then brought an application seeking the leave and order of the Tribunal to call an additional witness to tender the inspection reports of the materials used in the election.
The application was vehemently opposed and was dismissed by the Tribunal. The appellant also applied for the issuance of a subpoena on some persons to come to court to give evidence as witnesses for the petitioner. The Tribunal granted the application and issued the order of subpoena but when the subpoenaed witnesses were called, the Tribunal refused to have them sworn on the ground that they were not in the list of the witnesses frontloaded by the appellant. The 1st and 2nd respondents called three witnesses. All the other respondents did not call any witness. In line with Practice Direction, the parties filed and adopted their final addresses.
The Tribunal dismissed the petition on the grounds inter alia that the six witnesses who testified for the Petitioner, not being among the persons legally permitted by the Electoral Act to be at the polling unit during the election cannot give evidence of what transpired at the polling units. Out of his 16 grounds of appeal, the appellant distilled 8 issues for determination. The 1st and 2nd respondents formulated 5 issues; and the 38th and 39th 2 issues. These issues were comprehensively set out in the lead judgment. I agree with my learned brother that the five issues formulated by learned counsel for the 1st and 2nd respondents adequately covered all the appellant’s grounds of appeal.
I do not have any doubt whatever that the tribunal was wrong in its refusal to have the resident electoral officer or his representative or officials of Olabisi Onabanjo University testify and tender documents after they were issued and served with subpoena ad testificandum et duces tecum. The reason for the refusal was non-compliance with the provisions of paragraphs 1(i) (a) (b) and a(3) of the Practice Directions 2007- failure to front load the written depositions of the witnesses. This is clearly one of the instances when a tribunal could comfortably exercise its discretion to depart from the rules in the Practice Directions. Witnesses who are on subpoena to testify are not likely to be willing to co-operate with the party responsible for the order. It is expected that the party will be unable to obtain their written deposition up front. How would a petitioner in an election petition obtain the deposition of INEC willingly upfront? It is clearly illogical and a grave miscarriage of justice for the tribunal to have refused the subpoenaed persons to be sworn and to give evidence on behalf of the appellant. The injustice must be reversed. The need to reverse it becomes more profound when taken with the issue of qualification of the 1st respondent to contest the election. This issue was exhaustively dealt with in the lead judgment. I adopt the reasonings therein as mine. I, too hold that this appeal succeeds. The judgment of the tribunal is set aside. I also order that the election petition be sent back to the tribunal for retrial by a new panel. I abide by the consequential order as to cost made by my learned brother in the lead judgment.
Appearances
MRS. F.O. BABAFEMI, ESQ.For Appellant
AND
A.A. ABIMBOIA, ESQ. with F.E. ABBEY, ESQ. and ADEMOLA ADEYEMO, ESQ.For Respondent
