Abatan Olorunjuwon V. Abiodun Samuel Idowu & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of the Governorship and Legislative House Election Petition Tribunal holden at Osogbo (hereinafter referred to as “the Tribunal”) delivered on the 14th day of March, 2008.

On the 14th of April, 2007, elections were held into the Osun State House of Assembly for Ifedayo Constituency. The Appellant contested the election on the platform of the Action Congress (A.C.) while the 1st Respondent contested on the platform of People’s Democratic Party (P.D.P.). At the conclusion of the election, the 3rd and 4th Respondents returned the 1st Respondent as the winner. The Appellant was dissatisfied with the return of the 1st Respondent and filed a petition before the Tribunal challenging the said return on the ground, inter alia, that the election was characterized by numerous electoral malpractices, irregularities and non-compliance with the provisions of the Electoral Act, 2006. He sought for a declaration that the election was invalid and therefore vitiated by reason of non-compliance with the Electoral Act, an order nullifying the elections, and an order directing the 3rd Respondent to conduct fresh elections for the said constituency.

The parties duly filed and exchanged pleadings. Witness statements on oath and list of documents to be relied upon at the hearing in compliance with the Practice Directions, 2007. After the conclusion of the pre-hearing session, the matter proceeded to trial. The Appellant called five (5) witnesses and tendered various documents through them. The 1st and 2nd Respondents also called five (5) witnesses. The 3rd to 68th Respondents (INEC at its officials) and the 69th and 70th Respondents (the land enforcement agents) did not call any witness. At the conclusion of the trial, the parties filed and exchanged written addresses. In a considered judgment delivered on the 14th of March, 2008, the Tribunal dismissed the petition.

The Appellant being dissatisfied with the decision, filed a Notice of Appeal dated 2nd day of May, 2008 containing eleven (11) grounds of appeal. The Appellant, 1st and 2nd Respondents and the 69th and 70th Respondents filed and exchanged their respective Briefs of Argument. The 3rd to 68th Respondents did not file any Brief. Ajibola Basiru, Esquire, learned Counsel to the Appellant, adopted and relied on the Appellant’s Brief of Argument dated 18th day of August, 2008 and filed same day and the Reply Brief to the 1st and 2nd Respondents dated and filed 22nd February, 2010. Tewo Lamuye, Esquire adopted and relied on the 1st and 2nd Respondents’ Brief dated 14th January, 2010, filed on the 14th January, 2010, but deemed properly filed on the 23rd February, 2010. Mr. Nureni Okunlola, Senior State Counsel, Ministry of Justice, Osun State, adopted and relied on the 69th and 70th Respondents’ Brief of Argument dated and filed the 3rd February, 2010. While the Appellant in adopting his Brief, had urged the Court to allow appeal; all the Respondents after adopting their respective Briefs, had urged the Court to dismiss the appeal.

From the eleven (11) grounds of appeal contained in the Notice of Appeal, the Appellant formulated six (6) Issues for determination thus:-

(1) “Whether the Tribunal was right in its Ruling of September 19th, 2007 when it ruled that witnesses subpoened ad testificandum could not testify because their written statements on oath did not accompany the petition at time of its presentation. (Ground 7 of the Notice of Appeal).

(2) Whether the Tribunal was right in its Ruling of December 11th, 2007 when it dismissed the Petitioner/Appellant’s application to enable him bring additional witness and tender inspection report which application was necessitated by an inspection order granted by Tribunal, pursuant to Section 159 of the Electoral Act, 2006. (Grounds 8, 9,10 and 11).

(3) Whether the Tribunal did not err in law in holding that the allegations that elections were inconclusive, votes were not counted, results were not announced at the polling units, etc, border on criminal conduct and must be proved beyond reasonable doubt. (Ground 1 of the Notice of Appeal).

(4) Whether the Tribunal gave adequate consideration to the evidence adduced before it in arriving at its judgment when it rejected the evidence of PW1-PW5 and characterized same as hearsay evidence while ascribing probative value to the discredited evidence of DW1-DW5. (Grounds 2, 3 and 5 of the Notice of Appeal).

(5) Whether by Sections 46 (1), 62, 63 and 64 (1) and (2) of the Electoral Act 2006 evidence of what transpired or polling units can only be given by polling agents thereby rendering the testimonies of persons not mentioned in the stated provisions of the Electoral Act, 2006 hearsay evidence. (Ground 4 of the Notice of Appeal).

(6) Whether the Tribunal was right in holding that the Appellant, pleadings in respect of wards 3, 6, 8, 9 and 10 had been abandoned when the Tribunal admitted documentary evidence tendered by the Appellant but wrongfully prevented the Appellant from leading evidence in respect thereof. (Ground 6).

The 1st and 2nd Respondents formulated the following Issues for determination thus:-

(1) “Whether the lower Tribunal did not adopt the correct or proper approach in the assessment and evaluation of the pieces of evidence proffered by the parties vis a vis their pleadings in arriving at its decision. (Grounds 1, 2, 3, 4, 5 and 6).