PRINCE ADETULEWA SIJUADE V. ROPO OYEWOLE
(2011)LCN/4328(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of February, 2011
CA/EPT/NA/78/2008
RATIO
COMPETENT PARTY TO TESTIFY: WHETHER A WARD SUPERVISOR OF A POLITICAL PARTY, WHO CLAIMS TO HAVE BEEN AUTHORIZED BY HIS PARTY, TO CARRY ON SOME FUNCTIONS ON A DAY OF ELECTION OR DURING ELECTION, IS COMPETENT TO TESTIFY ON WHAT HE SAW, HEARD, WITNESSED OR EXPERIENCED NOTWITHSTANDING THAT HIS CONDUCT CONFLICTS WITH THE PROVISIONS OF THE ELECTORAL ACT
The authorities are clearly to the effect that a Ward Supervisor of a political party, who claims to have been authorized by his party, to carry on some functions on a day of election or during election, is competent to testify on what he saw, heard, witnessed or experienced notwithstanding that his conduct conflicts with the provisions of the Electoral Act. In the fairly recent case of AREGBESOLA V. OYINLOLA (supra), this Court, per OGUNBIYI, JCA held, inter alia, as follows: “In the absence of any provision in the Electoral Act 2005 which precludes officers of a political party who are not polling agents from testifying on behalf of a party the only guiding principle ought and should be section 77 of the evidence Act. In other words, the pre-occupation and concern of the tribunal should be whether the witnesses sought to testify “are competent to give account of what they saw, heard or perceived,” in their bid to give first hand evidence.” In a later case – MUHAMMED OLATUNJI IBRAHIM V. OLATUNJI ADEWALE OGUNLEYE and ORS. (APPEAL NO. CA/I/ETP/HA/93/2008) decided on Thursday the 9th day of December, 2011, I stated, inter alia, as follows: “I agree with the tribunal that a “Ward Supervisor of a political party” is not one of the categories of persons specially mentioned in the Electoral Act (sections 45 (1) and 62 (1) and the INEC Manual for the 2007 election; 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 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”. I do not find any reason to deviate from my early decision. It is clear that the circumference of the competence of a witness can only be circumscribed by the provisions of the Evidence Act, of which sections 77 and 155 are apt and relevant, and not by the illegality of the manner, means or method by which the witness obtained his evidence. PER MOORE A. A. ADUMEIN, J.C.A.
EFFECT OF TENDERING EVIDENCE ON UNPLEADED FACTS
The law is well settled that evidence relating to facts not pleaded goes to no issue and cannot be countenanced. See BUHARI V. OBASANJO (2005) 18 NWLR (Pt.94t) 1 at 240. PER MOORE A. A. ADUMEIN, J.C.A.
ACADEMIC QUESTIONS: WHETHER IT IS PART OF THE FUNCTIONS OF THE COURT TO RESOLVE ACADEMIC QUESTIONS
Resolution of purely academic questions is not part of a Court’s function as it is an exercise in futility. See U.B.N. LTD. v. EVIOSERI(1988) 1 NSCC 603 at 510 and BHOJWANI v. BHOJWANI (1996) 7 SCNJ 16 at 20-21. PER MOORE A. A. ADUMEIN, J.C.A.
INTERFERENCE WITH THE FINDINGS OF FACTS: CIRCUMSTANCES WHERE AN APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF FACTS OF A TRIAL COURT THAT WAS BASED ON ITS ASSESSMENT OF THE CREDIBILITY OF A WITNESS
The tribunal fully and reasonably utilized its advantage of seeing and watching the witnesses and hearing from them directly. There is nothing in this case to show that the tribunal “failed to make proper use of its singular opportunity of seeing and hearing the witnesses.” Please, the case of ALHAJI S. A. KAZEEM & ANOR. V. MADAM WEMIMO MOSAKU & ORS. (2007) 17 NWLR (pt. 1064) 523 at 545, where the Supreme Court, per TABAI, JSC, stated the position of the law as follows: “It is a settled law therefore that where a finding of the trial court is based on its assessment of the credibility of a witness, the appellate court will be wary to interfere. The reason is that because of the appellate court’s inability to see and hear the witness it cannot properly assess the credibility of the witnesses and make findings thereon in substitution for the findings of the trial court. See FRANCIS ASANYA V. THE STATE (1991) 3 NWLR (pt. 180) 422 at 471 and 475; BALOGUN v. AGBOOLA (1974) 1 ALL NLR (pt. 2) 66; KPONUGLO v. KODADJA (1933) 2 WACA 24; BAMGBADE v. BALOGUN (1994) 1 NWLR (pt. 323) 718. Where however such a finding of the trial court on the credibility of witnesses is manifestly seen to be unreasonable or otherwise faulted on the ground that it failed to make proper use of its singular opportunity of seeing and hearing the witnesses, an appellate court can intervene to set aside the resultant findings. See KALIO v. WOLUHEM (1985) 1 NWLR (pt. 4) 610; POPOOLA v. ADEYEMO (1992) 8 NWLR (pt.257) 1 at 331; 610; POPOOLA v. ADEYEMO (1992) 8 NWLR (pt. 257) 1 at 331; EBAA v. OGODO (1984) 1 SCNLR 372; NIGERIAN AIRWAYS LTD v. ABE (1988) 4 NWLR (pt. 90) 524; AJAYI V. TEXACO (Nig.) LTD. (1987) 3 NWLR (Pt. 62) 577.” 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
PRINCE ADETULEWA SIJUADE Appellant(s)
AND
ROPO OYEWOLE Respondent(s)
MOORE A. A. ADUMEIN, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on the 16th day of April, 2008 by the Governorship and Legislative Houses Election Petition Tribunal, Osun State. The appellant – Prince Adetilewa Sijuade of the Action Congress, the 1st respondent – Robo E. Oyewole of the Peoples Democratic Party and four other candidates contested the election for the Ife Central Constituency of Osun State House of Assembly held on the 14th day of April, 2007. The 1st respondent was declared and returned elected by the 3rd respondent – Independent Electoral Commission (INEC). The appellant was not satisfied and filed a petition in the tribunal on four (4) grounds. (Pages 3 – 5 of the record of appeal) The appellant’s petition was dismissed by the trial tribunal. The judgment of the tribunal spans pages 569 to 595 and the appellant’s notice and grounds of appeal cover pages 597 to 609, respectively, of the record of appeal. With leave of this Court, granted on the 12th day of April, 2010 the appellant filed an amended notice of appeal.
At the hearing of the appeal, learned counsel for the appellant – Ajibola Basiru, Esq. adopted and relied on the appellant’s brief and replies brief respectively filed on the 26th day of April, 2010 and 8th day of June, 2010 and urged the Court to allow the appeal and set aside the judgment of the tribunal. A. Moronkeji, Esq. on the other hand, adopted and relied on the 1st and 2nd respondents’ brief of argument filed on the 12th day of May, 2010 and urged the Court to dismiss the appeal and affirm the judgment of the tribunal. It should be noted that Mr. Moronkeji had earlier withdrawn the preliminary objection and argument thereon, contained at pages 3 to 9 of his brief, and the same was struck out.
The learned counsel for the 343rd and 344th respondents, Jide Obisakin, Esq. adopted and relied on his brief of argument filed on the 12th day of May, 2010 and also urged that the appeal be dismissed while the judgment of the tribunal be affirmed.
The appellant’s brief is of 58 pages and in it 7 (seven) issues were refined and argued. The 7 (seven) issues distilled by the appellant, from his amended notice, are:
1. Whether evidence of what transpires at a polling unit can only be given by polling agents and the testimonies of persons not authorized by the stated provisions the Electoral Act, 2005 is hearsay evidence (Grounds 3 of the Notice of Appeal).
2. Whether facts averred in the testimony of petitioner/Appellant’s witnesses and issues of defects in the electoral materials were not pleaded and therefore went to no issue. (Grounds 4 and 5 of the Notice of Appeal).
3. Whether documents admitted as exhibits become irrelevant and unreliable because they were tendered from the bar. (Ground 6 of the Notice of Appeal)
4. Whether the Tribunal gave adequate consideration to the evidence adduced before it, before arriving at its judgment (Grounds 1, 2 and 7 of the Notice of Appeal).
5. whether the Tribunal was right when having held INEC (3rd – 342nd Respondents) and police (344th -345th respondents) have abandoned their pleadings, it did not further hold that such abandonment of pleading by INEC 13rd -342nd Respondents) and police (344th -345th Respondents was an admission of the allegations in the petition. (Ground 13 of the Notice of Appeal)
6. Whether the Tribunal was right when it failed to hold that the 1st and 2nd Respondents did not lead evidence in support of the averments in their Reply to the petition and that the effect of same amounts to abandonment of the averments.
7. Whether the Tribunal was right in its ruling of December 12, 2007 when it dismissed the petitioner/Appellant’s application to enable him call additional witness and tender inspection report which application was necessitated by an inspection order grant by the Tribunal pursuant to section 159 of the Electoral Act, 2006. (Grounds 8, 9, 10 and 11).
The 1st and 2nd respondents, on their part, distilled and formulated the following two issues, namely:
1. Whether the Tribunal adopted the correct or proper approach in evaluating the pieces of evidence proffered by the parties vis-a’- vis their pleadings in arriving at its decision. (Grounds 1, 2, 3, 4, 5, 6, 7, 13 and 14 of the Notice of Appeal)
2. Whether the Tribunal was wrong in dismissing the Petitioner/Appellant’s application to call additional witness to tender inspection report on December 12, 2007. (8, 9, 10 and 11)
The 343rd and 344th respondents also formulated two issues for determination.
I will adopt the issues formulated by the learned counsel for the appellant as they cover all the issues calling for determination in this appeal.
ISSUE No 1
Whether evidence of what transpires at a polling unit can only be given by polling agents and the testimonies of persons not authorized by the stated provisions the Electoral Act, 2006 is hearsay evidence.
The appellant’s argument on this issue is from pages 4 to 8 of his brief. The response of the 1st and 2nd respondents is from pages 1.0 to 13 of their brief.
The kernel of the appellant’s argument is that the tribunal was wrong to have held that the appellant’s witnesses (PW1 – pw 12), being ward supervisors of their party – Action Congress, could not give evidence of what happened at a polling station or a collation centre. Mr. Kunle Adegoke, learned counsel who settled the appellant’s brief, referred the court to sections 77 and 155 of the Evidence Act and the cases of OMONGA v. STATE (2006). 14 NWLR (pt. 1000) 532 and OBIWUNNE V. TABANSI- OKOYE (2006) 8 NWLR (Pt.981) 1004 and argued as follows:
“The fact that the Electoral Act, 2006 limits access to the polling and collation centres to polling agents, the presiding officers, polling clerks, voter and observers does not by any means say others who were there, whether rightfully or wrongly, cannot give evidence of what they saw. It is a misconception of the law which should be condemned. We submit on the point that the position of the Tribunal in its judgment particularly at 574-592 of the Record of Appeal is incorrect.”
At the hearing of the appeal, Ajibola Basiru, Esq. learned counsel who appeared for the appellant further referred the Court to the recent case of RAUF ADESOJI AREGBESOLA AND ORS. V. OLAGUNSOYE OYINLOLA AND ORS. (APPEAL No. CA/I/EPT/GOV/02/2010) delivered on Friday, the 26th day of November, 2010, particularly pages 48 – 54 thereof and urged the Court to resolve this issue in favour of the appellant.
On the other hand, Mr. Moronkeji, learned counsel for the 1st and 2nd respondents, argued that “the so-called Ward Supervisors of the AC (PW1 – PW12) were illegally present at the various wards indicated in their statement on oath”. He contended that the word “shall” in section 62(1) of the Electoral Act, 2006 should be interpreted in its mandatory meaning – LION BANK (NIG.) PLC V. AMAIKON (2008) ALL FWIR (Pt. 417) 85 at 113 and ANIBI V. SOTIMEHIN (1993) 3 NWLR (Pt.282) 455 at 47 were cited and relied upon. It was contended that the actions of PW1 – PW12 on that day of election were in breach of the provisions of the Electoral Act, 2006 and, therefore, “invalid, illegal and altogether void”.
I have read the judgment of the tribunal. For example, while analyzing the evidence of DEACON KAYODE OJO (PW3) who gave evidence in respect of Iremo Ward II, the tribunal held at page 579 of the record of appeal, inter alia, as follows:-
“Evidence as to what happened at various Polling Units ought to have come from the Electoral Officers, Party Agents, Polling Clerks or any voter who was entitled to be present and was actually present when alleged incidents occurred. See Section 46(1) and 62(1) of the Electoral Act, 2006 and the case of BUHARI VS. OBASANJO (2005) 13 NWLR (part 941) 1at 315.”
Section 46(1) of the Electoral Act, 2005 provides that a Political party may appoint a “Polling Agent” to serve as its agent in an election, either at a polling unit or a collation centre. On the other hand, section 62 (1) of the said Electoral Act allows certain specified persons to be admitted at a polling station/unit.
The question of the competence of an official or a member of a political party, who is not specifically covered by sections 46 (1) and 62(1) of the Electoral Act, giving evidence of what he personally saw, heard or experienced during an election or on an election day, has been settled by this Court in a number decisions.
The authorities are clearly to the effect that a Ward Supervisor of a political party, who claims to have been authorized by his party, to carry on some functions on a day of election or during election, is competent to testify on what he saw, heard, witnessed or experienced notwithstanding that his conduct conflicts with the provisions of the Electoral Act.
In the fairly recent case of AREGBESOLA V. OYINLOLA (supra), this Court, per OGUNBIYI, JCA held, inter alia, as follows:
“In the absence of any provision in the Electoral Act 2005 which precludes officers of a political party who are not polling agents from testifying on behalf of a party the only guiding principle ought and should be section 77 of the evidence Act. In other words, the pre-occupation and concern of the tribunal should be whether the witnesses sought to testify “are competent to give account of what they saw, heard or perceived,” in their bid to give first hand evidence.”
In a later case – MUHAMMED OLATUNJI IBRAHIM V. OLATUNJI ADEWALE OGUNLEYE and ORS. (APPEAL NO. CA/I/ETP/HA/93/2008) decided on Thursday the 9th day of December, 2011, I stated, inter alia, as follows:
“I agree with the tribunal that a “Ward Supervisor of a political party” is not one of the categories of persons specially mentioned in the Electoral Act (sections 45 (1) and 62 (1) and the INEC Manual for the 2007 election; 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 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”.
I do not find any reason to deviate from my early decision. It is clear that the circumference of the competence of a witness can only be circumscribed by the provisions of the Evidence Act, of which sections 77 and 155 are apt and relevant, and not by the illegality of the manner, means or method by which the witness obtained his evidence.
To be very direct, this issue is hereby resolved in favour of the appellant against the respondents.
ISSUE NO. 2 AND ISSUE NO. 3
2. Whether facts averred in the testimony of Petitioner/Appellant’s witnesses and issues of defects in the electoral materials were not pleaded and therefore went to no issue.
3. Whether documents admitted as exhibits become irrelevant and unreliable because they were tendered from the bar.
The appellant’s argument, on issue No. 2 is at pages 8, 9 and 10 of his brief argument. He referred to the cases of M.M. ALLI AND CO. LTD .V. GONI (2006) 10 NWLR (Pt. 987) 88 at 107; UNIPETROL NIG. PLC V. ADIREJE (W.A.) LTD (2005) 14 NWIR (Pt. 945) 639 at 640; EKE V. OKWARENYIA (2001) 12 NWLR (pt. 726) 181 at 203; EZEMBA V. IBENEME (2004) 14 NWIR (pt. 894) 617 at 649 – 550 and OKAGBUE V. ROMAINE (1982) 5 SC 133 at 153 and argued that pleadings should not contain evidence.
The learned counsel for the appellant submitted that “all the facts adduced in the testimonies of PW1 to PW12 were sufficiently pleaded by the petitioner/Appellant”.
The appellant argued that the tribunal was in error “when it held at page 593 of the Record of Appeal that the defects shown in the electoral materials admitted as exhibits were not specifically pleaded…..” He referred to paragraphs 12.1, 12.2, 13, 14, 15, 18, 20, 24, 25 and 26 of the petition (pages 4 to 9 of the record of appeal).
The appellant urged the court to invoke section 15 of the court of Appeal Act and evaluate the documentary evidence.
In his reaction, learned counsel for the 1st and 2nd respondents referred to the case of BUHARI v. OBASANJO (2005) ALL FWLR (pt. 273) 1 and contended that evidence not supported by pleadings should not be countenanced by a tribunal or court. He argued that the tribunal rightly found that “some pieces of evidence proffered by PW1 – PW12 were not pleaded and therefore go to no issue”.
The 1st and 2nd respondents submitted that the issues raised by appellant’s counsel, in his final address in respect of exhibits 1 – 10 were not specifically pleaded and that address of counsel cannot replace pleadings or evidence.
I have examined the judgment of the tribunal and it is clear that the tribunal made some specific statements or pronouncements that some aspects of the evidence adduced by the appellant related to facts not specifically pleaded. These specific pronouncements are at pages 575, 577, 582/583 and 584 of the record of appeal and they respectively relate to some aspects of PW6- Mr. Taofeeq Adediji, PW1 – Mr. Adewoye Akeem Adewale, PW11 – Mr. Bagboye Ayo and PW4 – Mr. Akinnuga Olusoga who testified in respect Iremo ward V. In the case of aspects of the evidence of Mr. Akinnuga Olusoga, the tribunal held at page 584 0f the record, inter aria, as follows:
“His evidence in paragraph 9 of his written deposition in relation to the 3rd petitioner is not pleaded; it therefore goes to no issue, so also his evidence in paragraph 11”
The statement on oath of PW4 – Mr. Akinnuga Olusoga is from pages 24 – 26 of the record and in paragraph 9 and 11 thereof, the witness stated thus:-
“9. The agents of 3rd Petitioner were ordered to deliver the box and leave, therefore, no collation was done the presence of the agents of the 3rd petitioner.”
“11. Upon discovering that AC led in the results, Hon. Wale Ojo ordered his thugs to deal with the 3rd petitioner’s agents thereat present which they thoroughly did by subjecting the 3rd petitioner’s agents to merciless beating.”
The appellant’s averments in respect of Iremo ward can be found in paragraph 30 (up to 30.4) of his petition (pages 11- 12 of the record).
A juxtaposition of the testimony of PW4, rejected by the tribunal, with the facts pleaded in paragraph 30 of the petition, reveals clearly that the evidence adduced in paragraphs 9 and 11 of Mr. Olusoga’s written statement on oath has no bearing with what the appellant pleaded. For example, there is no pleaded fact relating to a “3rd petitioner” in the appellant’s petition. In any case, the appellant was the only petitioner in the lower tribunal.
In my view, paragraphs 9 and 11 of the statement on oath of Mr. Akinnuga Olusoga cannot be linked to any fact pleaded by the appellant, such evidence did not go to any issue and it was rightly rejected by the tribunal.
I have also compared the aspects of the evidence of PW6 – Mr. Adediji, PW1 – Mr. Adewale and PW11 – Mr. Ayo, rejected by the tribunal, with the relevant parts of the appellant’s petition and I am satisfied that the tribunal was right in its decision refusing some pieces of their of evidence as relating to facts not pleaded.
The law is well settled that evidence relating to facts not pleaded goes to no issue and cannot be countenanced. See BUHARI V. OBASANJO (2005) 18 NWLR (Pt.94t) 1 at 240.
The last question on this issue relates to the views of the tribunal at page 592 of the record whereby the tribunal held as follows:
“It was submitted by the petitioner’s counsel, that it was incumbent on the Tribunal to look at the exhibits tendered in making its findings, he invited us to look at forms EC8A1 and the schedule of distribution of electoral materials, he then set out what he believed they reveal in a table running into 5 pages. Again, he set out a long list of what he considered to be defective about the ballot papers and also submitted that the quantity of unsupplied ballot papers (which) he did not specify) is equal to the number of persons disenfranchised.”
The part of the judgment of the tribunal complained of relates to the argument of the appellant’s counsel in respect of issue No. 2 in the trial tribunal. The address of the appellant’s counsel on the said issue, raised in the tribunal, covers pages 518 to 527 of the record of appeal. At page 518 of the record, the appellant argued, inter alia, as follows:
“It is in evidence that ballot papers were deliberately short supplied to the polling units in the bid of the Respondents to disenfranchise the electorates in the areas were the petitioner has large numbers of supporters.”
The appellant in paragraph 12.4 of his petition (page 5 of the record) pleaded that “There was wide spread disenfranchisement of many voters” which substantially affected the result of the election. However, there is no pleading of the fact that materials were in short supply and that the alleged disenfranchisement was in areas where the appellant had “large numbers of supporters”. The fact of short supply of materials and the areas or units where the appellant had large supporters are relevant facts which ought to have been specifically pleaded to enable the respondents, especially the 1st and 2nd respondents, to join issues with the appellant. Furthermore, although the appellant pleaded facts relating to EC8A (1.) forms, the facts relating thereto were that no votes were recorded therein (paragraph 18 of the petition – page 6 of the record of appeal); they were not supplied or they were forcefully taken from electoral officials (paragraphs 26 (f) 27 and 37 of the petition at pages 8, 9 and 14 -15 of the record of appeal).
The tribunal was eminently right in its finding that the issues raised in the address of the learned counsel in respect of EC8A (1) forms did not go to any issue as they did not flow from the facts pleaded by the appellant in his petition.
Furthermore, the EC8A (1) forms analyzed by the appellant’s counsel were not shown to be the EC8A (1) forms admitted by the tribunal as they were not tied to or identified by any of the exhibits (exhibits 1 – 10) before the tribunal.
Issue No. 2 is hereby, accordingly, resolved in favour of the respondents against the appellant.
In view of the way Issue No. 2 has been resolved, the appellant having failed to pin or tie any of the exhibits (exhibits 1 to 10) to any part of his case or pleadings, resolution of Issue No. 3 has become a matter of mere academic significance. Resolution of purely academic questions is not part of a Court’s function as it is an exercise in futility. See U.B.N. LTD. v. EVIOSERI(1988) 1 NSCC 603 at 510 and BHOJWANI v. BHOJWANI (1996) 7 SCNJ 16 at 20-21.
ISSUE No.4
Whether the Tribunal gave adequate consideration to the evidence adduced before it, before arriving at its judgment.
The appellant’s argument on this issue spans pages 13 to 38 of his brief. The summary of the argument of the 1st and 2nd respondents is at page (paragraph 5.1.7) of their joint brief. The 343rd and 344th respondents dealt with this issue in paragraphs 4.1 to 4.15 of their brief of argument. I have carefully read the arguments of all the parties and the legal authorities cited and relied upon by them. Whereas the appellant contended that the tribunal failed to adequately evaluate the evidence adduced by the parties before arriving at its judgment, dismissing his petition, the respondents were of the contrary view.
I have again examined the judgment of the tribunal, especially pages 6 – 24 thereof (pages 574 to 592 of the record of appeal). The tribunal, in my view and from the available record, critically analyzed and evaluated the evidence adduced by the principal parties to the petition, namely the petitioner (appellant in this court) and the 1st and 2nd respondents, before arriving at its conclusion dismissing the petition. As a fact, the tribunal evaluated the evidence adduced by each of the 12 (twelve) witnesses who testified for the petitioner/appellant. It also analyzed the evidence proffered by the 6 (six) witnesses called by the 1st and 2nd respondents. It is on record that the tribunal evaluated the evidence of the parties, in relation to the disputed wards, on ward by ward basis.
In my opinion the tribunal eminently discharged its primary function, as a trial tribunal, by adequately evaluating the evidence before it. It sufficiently took advantage of its observance of the physical presence and behaviour of the witnesses before preferring the testimonies of the witnesses called by the 1st and 2nd respondents. The conclusion of the tribunal, on the evidence before it, that “the Petitioner has not by credible evidence established the alleged acts of non-compliance with the Electoral Act, 2006 wide spread irregularities, electoral malpractices and violence ” is clearly unimpeachable and cannot be disturbed.
For example, in respect of the evidence of PW1 Mr. Adewoye Akeem Adewale, the tribunal painstakingly reviewed and evaluated his evidence before concluding, inter alia, as follows:
“On the alleged disappearance of Polling Materials, the witness offered no explanation as how and where the disappearance took place. Furthermore, this evidence contradicts his testimony that the Polling officers of the said Polling units struggled for and got ballot papers and stamp pad…
By paragraphs 1 and 2 of the witness deposition he claimed to be the representative of the 3rd petitioner at INEC office and a Supervisor for AC in Iremo Ward one, under cross-examination he stated that he was a local Government Supervisor and not a Ward Supervisor. We are in a serious difficulty as to which of the 2 versions to believe. We are not allowed to pick and choose out of the 2 versions.”
(Pages 578 of the record of appeal)
In the case of PW 3 – DEACON KAYODE OJO, the tribunal, after analyzing his evidence, held as follows:
“By paragraph 14 of his deposition, he stated in effect that he visited all the 15 Polling Units, yet under cross examination, he admitted that he did not visit all the Units. AC Agents Kunle Ojo and Michael Awosunmi alleged to have been mercilessly beaten were not called to testify. None of the voters alleged to have been scared away were called either. So also one Arole a furniture maker whose cloth were alleged to have been torn. In the light of the foregoing we find that this witness is unreliable we disbelieve him”
(Page 580 of the record of Appeal)
The tribunal fully and reasonably utilized its advantage of seeing and watching the witnesses and hearing from them directly. There is nothing in this case to show that the tribunal “failed to make proper use of its singular opportunity of seeing and hearing the witnesses.” Please, the case of ALHAJI S. A. KAZEEM & ANOR. V. MADAM WEMIMO MOSAKU & ORS. (2007) 17 NWLR (pt. 1064) 523 at 545, where the Supreme Court, per TABAI, JSC, stated the position of the law as follows:
“It is a settled law therefore that where a finding of the trial court is based on its assessment of the credibility of a witness, the appellate court will be wary to interfere. The reason is that because of the appellate court’s inability to see and hear the witness it cannot properly assess the credibility of the witnesses and make findings thereon in substitution for the findings of the trial court. See FRANCIS ASANYA V. THE STATE (1991) 3 NWLR (pt. 180) 422 at 471 and 475; BALOGUN v. AGBOOLA (1974) 1 ALL NLR (pt. 2) 66; KPONUGLO v. KODADJA (1933) 2 WACA 24; BAMGBADE v. BALOGUN (1994) 1 NWLR (pt. 323) 718. Where however such a finding of the trial court on the credibility of witnesses is manifestly seen to be unreasonable or otherwise faulted on the ground that it failed to make proper use of its singular opportunity of seeing and hearing the witnesses, an appellate court can intervene to set aside the resultant findings. See KALIO v. WOLUHEM (1985) 1 NWLR (pt. 4) 610; POPOOLA v. ADEYEMO (1992) 8 NWLR (pt.257) 1 at 331; 610; POPOOLA v. ADEYEMO (1992) 8 NWLR (pt. 257) 1 at 331; EBAA v. OGODO (1984) 1 SCNLR 372; NIGERIAN AIRWAYS LTD v. ABE (1988) 4 NWLR (pt. 90) 524; AJAYI V. TEXACO (Nig.) LTD. (1987) 3 NWLR (Pt. 62) 577.”
The only error committed by the tribunal is in its holding that the appellant’s witnesses were not among persons mentioned in sections 46(1) and 62 (1) of the Electoral Act, 2006 and, therefore their evidence was hearsay. This forms the kernel of issue No.1, resolved earlier in this judgment. The tribunal, however, made up for this error by adequately analyzing and evaluating the evidence adduced by each of the 12 witnesses who testified for and on behalf of the appellant before arriving at its final decision. The evaluation, by the tribunal, of the evidence adduced by the appellant’s 1.2 witnesses can be found in the record of appeal as follows: PW1 – pages 576 to 578, PW2- pages 588 to 589, PW3 – pages 578 to 580, pw4 – pages 593 to 584, PW5 – pages 587 to 588, PW6 – pages 574 to 576, Pw7- pages 589 to 591, PW8 – page 585, PW9 – page 586, PW10 – pages 580 to 580, PW11- pages 581 to 583 and PW12 – pages 591 to 592.
A trial tribunal or court is not a science laboratory where facts, issues and matters can be tried, tested and resolved with scientific certainty or exactitude. while in a chemistry laboratory, for example, the question of whether a substance, liquid or solution is acidic or alkaline can be determined by a simple but standard litmus test, Trial tribunals or courts have no such standard scientific tests in their resolution or determination of disputes, legal questions and issues. Courts only apply the test of “a reasonable man” which is prone to human errors. Even in a scientific test, errors are not completely eliminated or ruled out and room is given to accommodate such errors.
In mathematics, for example, notwithstanding diverse and sundry formulae including one known as and called “almighty formula”, solutions are not static but dynamic and subject to human error. For this reason, Lord FITZGERALD acknowledged in the case of CAIRD v. SIME (1887) 57 L.J. REP. P.P. CAS 13, L.R. 12 APP. CAS. 354 as follows:
“Even in pure mathematics there may be alterations and additions, and ethical science is not free from the inexorable law of mutability.”
That Judges are fallible is a matter of ancient acclamation and acknowledgement: “fallibility must be admitted – humanum est errare” – Perrin, J., CONWAY and ORS. V. THE QUEEN (1945) 1 COX C. C. 216. Judges will continue to acknowledge their fallibility, as only God is omniscient and infallible. In this respect, the statement of LORD ELLENBOROUGH in the case of REX V. LAMBERT & ANOR. (1810) 2 CAMP.402 is very apt. In that case, the Law Lord stated thus:
“I know of one being to whom error may not be imputed.”
The error committed by the trial tribunal, as stated earlier, did not affect the justice of the case. The said error did not occasion any miscarriage of justice. It cannot be a basis to disturb its judgment. see LARMIE v. D. P. M. S. LTD. (2005) 18 NWLR (Pt. 958] 438 (C.A); OJENGBEDE V. ESAN (2001) 18 NWLR (pt.746) 771 (S.C); OSENI OMOMEJI & ORS. V. JAMES KOLAWOLE & ORS. (2008) 14 NWLR (pt. 1106) 180 AT 202 (S.C); ALHAJI RANFU OKEGBEMI V. AYISATU AKINTOLA & ORS (2008) 4 NWLR (Pt. 1076) 53 at 66 (C.A) and NIGERIAN COMMINCATIONS COMMISSION v. MTN NIGERIA COMMNICATION LIMITED (2008) 7 NWLR (pt. 1085) 229 at 269 -270. In the case of TSOKWA MOTORS (NIG.) LTD. v. UNITED BANK FOR AFRICA PLC (2008) 2 NWLR (Pt. 1071) 347 at 376, the supreme court, per OGBUAGU, JSC, held as follows:
“Lastly, it is now firmly established that it is not every error or mistake of a court that will cause a reversal of a decision on appeal except there is a miscarriage of justice”.
In the instant, the error committed by the tribunal did not occasion any miscarriage of justice.
This issue is hereby resolved in favour of the respondents against the appellant.
ISSUE NO.5
Whether the Tribunal was right when having held INEC (3rd -342nd Respondents) and Police (344th -345th Respondents) have abandoned their pleadings, it did not further hold that such abandonment of pleading by INEC (3rd -342nd Respondents) and Police (344th -345th Respondents was an admission of the allegations in the petition.
The appellant’s argument on this issue is at pages 38 – 41 of his brief. The brief I have read both arguments.
Admission can be by pleadings. Admission in pleadings by a defendant or respondent can be ascertained by examining all the pleadings of the contending parties, see BUHARI v. OBASANJO (2005) 13 NWLR (pt. 941) 1 at 71, ratio 48. In the instant petition, I have examined the averments in the petition and those in the joint reply of the 343rd and 344th respondents. In particular, the joint reply spans pages 179 to 185 of the record of appeal. In their joint reply, the 343rd and 344th respondents adequately traversed the averments in the petition and fully denied the allegations made against them. There is no admission, by the 343rd and 344th respondents, in their pleading.
However, it is true that the 343rd and 344th respondents did not lead any evidence in support of their reply or pleadings and this, in law, is an admission on their part. See the cases of AJIBADE v. MAYOWA and ANOR. (1978) NSCC (vol.11) 458 and FCDA V. NAIBI (1990) 3 NWLR (pt. 138) 270 at 281, per ANNMANI, JSC; ably cited by the learned counsel for the appellants.
The technical admission on the part of the 343rd and 344th respondents notwithstanding, I is inclined to agreeing with Mr. Obisakin, learned counsel for the 343rd and 344th respondents, when he submitted as follows:
“A defendant who is of the view that the plaintiff has failed to discharge the burden on him may decide not to call any evidence.
Where a defendant takes this course, it is submitted that this does not guarantee automatic judgment in favour of the plaintiff. The Supreme Court in OGUNYADE v. DAWODU (2007) 12 SCM pt. 2 PAGE 490 at 496 held as follows:
“Failure on the part of a defendant to give evidence does not automatically mean that judgment must be given in favour of a plaintiff who has a duty to prove his case. Where a plaintiff fails to prove his case on the balance of probability or on preponderance of evidence, his case will be thrown out notwithstanding the fact that the defendant did not give any evidence. That is the basis of the principle of Law that a plaintiff cannot rely on the weakness of the case of the defendant”.
I wish to add that in the present case the prayers, sought by the appellant, in his petition, are declaratory in nature. (See paragraph 40 of the petition at page 15 of the record of appeal).
The appellant sought two prayers in his petition. The second relief for an order nullifying the election is predicated on the first prayer which is clearly declaratory, although the word “declaration” is not specifically used. For the sake of clarity the appellant’s principal relief is reproduced thus:
“Wherefore your Petitioner prays that it may be determined as follows:
That the election to the Osun State House of Assembly Election for Ife Central Constituency held on April 14, 2007 is invalid by reason of non-compliance with the provisions 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 said elections that none of the candidates in the said election can be validly returned as having validly won the said election”
The law is trite that in an action that seeks declaratory relief, admission on the part of a defendant will not independently entitle the plaintiff or claimant to judgment. The plaintiff or claimant, in such circumstances, is not relieved of the burden placed on him to establish his case by positive and credible evidence. See MOTUNWASE V. SORUNGBE (1988) 5 NWLR (pt. 92) 90 at 92.
A declaratory relief cannot be granted merely because of default of pleadings or on the admission of a defendant. See AYANRU v. MANDILAS LTD. (2007) ALL FWLR (Pt. 382) 1849.
The tribunal having found that the appellant did not lead sufficient credible evidence to establish his petition, and which finding has just been upheld under issue No.4, this issue is hereby resolved against the appellant in favour of the respondents.
ISSUE No.6
Whether the Tribunal was right when it failed to hold that the 1st and 2nd Respondents did not lead evidence in support of the averments in their Reply to the petition and that the effect of same amounts to abandonment of the averments.
I have read the arguments of the parties on this issue. This issue is self – explanatory.
It is on record that the 1st and 2nd respondents called 6 (six) witnesses (DW1 – DW6) to testify on their behalf (pages 490 – 494 of the record of appeal). The tribunal evaluated the evidence of the six witnesses who testified for the 1st and 2nd respondents and believed their testimonies when compared with those of the appellant’s witnesses.
It is, therefore, very wrong to claim globally, as done by the appellant, that the 1st and 2nd respondents abandoned their pleadings or reply.
This issue is hereby resolved in favour of the respondents against the appellant.
ISSUE No.7
Whether the Tribunal was right in its ruling of December 12, 2007 when it dismissed the Petitioner/Appellant’s application to enable him call additional witness and tender inspection report which application was necessitated by an inspection order granted by the Tribunal pursuant to section 159 of the Electoral Act, 2006.
The argument on this issue, by the appellant, is contained in pages 44-52.
The appellant contended, among other things, that the ruling by the tribunal refusing him to call additional witness and tender an inspection report breached his right to fair hearing. He referred to and relied on section 35 of the Constitution of Federal Republic of Nigeria and the cases of NNAJIOFOR V. UKONU (1985) 2 NWLR (Pt. 9) 689 AT 703, and A.G. RIVERS STATE V. UDE (2006) 17 NWLR (pt. 1008) 436 AT 456.
The reply of the learned counsel for the 1st and 2nd respondents at page 21, of his brief is as follows:
‘The 1st and 2nd Respondents hereby wish to adopt and rely on the arguments canvassed under the said preliminary objection…as the issues distilled and argued under the incompetent grounds have no legal foundation.”
As indicated earlier in this judgment, the preliminary objection and the argument of the 1st and 2nd respondents thereon were withdrawn and accordingly, struck out. The 1st and 2nd respondents cannot rely on argument duly withdrawn and struck out. The result is that 1st and 2nd respondents have proffered no argument on this issue.
I have examined the record of appeal. The appellant was granted an order by the tribunal, on the 14th day of July, 2007 to inspect the election materials used in the disputed election. The appellant’s motion on notice for leave to call an additional witness and “to bring before the court the report of the inspection” was filed on the 26th day of November, 2007 (page 234 of the record). The affidavit in support of the said motion is at pages 236 – 238 and it contains 10 (ten) paragraphs. There is nothing in the appellant’s affidavit indicating the date the election materials were made available to him and when the report of his inspection became ready. The period between 14th July 2007 and 26th November 2007 is over 4 (four) months. An election petition is sui generis and time is usually of the essence.
The appellant failed to establish any special circumstances for bringing his motion on notice late. The tribunal was right in refusing the application. I find no merit in the appellant’s complaint.
This issue is hereby resolved against the appellant.
Conclusion
Having resolved all threshold issues against the appellant, I find no merit in this appeal.
This appeal is hereby dismissed.
The sum of N30, 000.00 (thirty thousand naira only) is hereby awarded as costs against the appellant in favour of the 1st and 2nd respondents.
NWALI SYLVESTER NGWUTA, J.C.A.: I have read before now the Judgment just delivered by my learned brother Adumein JCA and I agree with the reasoning therein contained and the resolution of the issues in the appeal against the appellant.
I wish to comment, by way of emphasis, on issue one.
Accepted that election Petitions are sui generis the provisions of the Evidence Act apply, except where a provision of the Act is expressly excluded by the Electoral Act which is not the case under Electoral Act 2006.
In making provision as to who may legitimately be present at the polling booth during actual elections in Secs. 46(1) 62 (4) of the Electoral Act 2006, the Act did not expressly or impliedly limit the evidence as to what happened at the polling units to those who were authorized by the Act to be at the polling units at the material time. In my view once the witness is not disqualified and his evidence is relevant to the issue in contention. See Sections 77 and 155(1) of the Evidence Act.
It is immaterial that the Act does not authorize his presence at the locus at the material time. The witness could be a passer-by, he could be a thief but once he is not disqualified by any provision of any law and his evidence is relevant and not inadmissible hearsay he is competent to testify for either side in an electoral contest. See the yet unreported case of Aregbesola & Ors. v. Oyinlola & Ors. (Appeal No. CA/I/EPT/GOV./02/2010) in which Judgment was delivered on 26/11/2010.
For the above and the fuller reasons in the lead Judgment, which I adopt as mine, I also dismiss the appeal as devoid of merit. I adopt the order for costs.
CHINWE E. IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, MOORE ADUMEIN JCA. Upon perusal of the record of appeal and the briefs of argument of the parties, I am of the view that my learned brother considered and resolved all the issues in contention in the appeal. I agree with the reasoning contained therein and the conclusions arrived thereat.
The 3rd issue formulated by the appellant in his brief of argument is whether documents admitted as exhibits become irrelevant and unreliable because they were tendered from the bar. At page 592 of the record of appeal, the lower tribunal in its judgment on the issue observed:
“It was submitted by the Petitioner’s counsel, that it was incumbent on the Tribunal to look at the exhibits tendered in making its findings, he invited us to look at forms EC8A1 and the schedule of distribution of electoral materials, he then set out what he believed they reveal in a table running into 5 pages. Again he set out a long list of what he considered to be defective about the ballot papers and also submitted that the quantity of unsupplied ballot papers (which he did not specify) is equal to the number of persons disenfranchised. These issues were not specifically pleaded by the petitioners. They therefore go to no issue. See the case of Buhari v. Obasanjo [2005] 18 NWLR (Pt 941) 1 @ 240 B-D. Besides these documents were not tendered by their makers and there was no evidence from their makers on them. The documents were part of Exhibits 1 – 10 tendered from the Bar on 28/11/07. They are therefore unreliable, see Buhari v. Obasanjo (supra) @ 182 F-G where the documents involved were INEC documents. See also Awuse v. Odili [2005] All FWLR (Pt. 261) 248 @ 321 A-C. Haruna v. Modibo [2004] 16 NWLR (Pt. 900) 487 @ 543-545 G-E. Furthermore, the documents were tendered as part of a bundle without leading evidence as to the use to be made of them, or tying them to any particular unit or ward, in that circumstance the Tribunal has no business ferreting out facts there from as that would amount to investigation. See the case of Onmeje v. Otokpa [1999] 4 NWLR (Pt. 600] 518 @ 529 C-E” often, counsel run into difficulties when documents are tendered in a bunch by consent or through the bar. The fact that a document is tendered through the bar does not mean that the document should not be pleaded or that evidence should not be led as to what the party wants the document to be used for. It is clear from the observation of the Tribunal that counsel in his address invited the court to look at documents tendered through the bar and in his address prepared tables from the documents and tried to tell the tribunal what to do with the documents. The Tribunal was right in declining the invitation. Counsel ought to have pleaded the documents and linked them up in his pleadings to the polling units they relate to and then led oral evidence on oath on the documents. It is advisable that documents intended to be tendered through the bar be tendered first at the commencement of hearing. Being now exhibits in the proceedings, each witness testifying can then use the relevant exhibit to prove his case as the need arose. If this is not done, doing so at the address stage is unhelpful to the party seeking to rely on such document as the Tribunal cannot be turned into an investigating panel to look through the documents to, as the lower Tribunal put it “ferret” out facts for the party. In the case of Onmeje v. Otokpa (supra) @ 528 C-E, this court upheld the refusal of the lower Tribunal to examine and use Exhibits (ballot papers) dumped on the tribunal without leading evidence as to what use the tribunal was to make of them. The Tribunal took the view rightly, that it is not their function or responsibility to examine the voters registers, the ballot papers etc to see whether there was over voting or other irregularities. The position was aptly expressed in Haruna v. Modibo (supra) by Aderemi JCA (as he then was) in the Latin maxim in judicio non creditur nisi juratis – in judicial proceedings, there is generally no credit, save to things sworn.
If the documents tendered from the bar are public documents duly certified, it is not necessary that evidence be given by the makers of the document. The fact that they are tendered through the bar does not make them unreliable. What is important is that they must be pleaded and that evidence must be led as to the use they are to be put.
I too find no merit in this appeal. I also dismiss it and abide by the consequential orders in the lead judgment including the order as to costs.
Appearances
KUNLE ADEGOKE, ESQ.For Appellant
AND
1. DEGBILE MORONKEJI, ESQ. (for the Respondents)
2. JIDE OBISANKIN, ESQ. (for 343rd and 344th Respondents)For Respondent
