Adeyinka Ajayi V. Kayode Idowu & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A, (Delivering the Leading Judgment)

The Appellant as Petitioner challenged the victory of the 1st Respondent at the National Assembly election held on the 21st day of April, 2007 into the Osun Central Federal Constituency II before the Governorship and Legislative Houses Election Petition Tribunal sitting in Osogbo, Osun State (hereafter called the Tribunal). Before the Tribunal, the Appellant prayed that the 1st Respondent ought not to have been returned as the winner at the election, in that he did not score the majority of lawful votes cast at the election and that he (the Appellant) should have been returned as winner having scored the highest number of valid votes cast at the election and satisfied the requirement of the Constitution and the Electoral Act, 2006.

The Petition was opposed by the 1st and 2nd Respondents who filed a Joint Reply dated 1st of August, 2007 on the 2nd day of August, 2007 in which the Tribunal was prayed to dismiss the petition.

The 3rd – 312th Respondents filed a Joint Reply dated 26th October, 2007, on the same date in which the Petition was opposed.

The Petitioner filed a reply to the Reply of the 1st and 2nd Respondents dated 10th of August, 2007 on 11th of August, 2007.

On 14th day of July, 2007 the Appellant obtained an order of the Tribunal permitting him to inspect all electoral materials said to have been used in conducting the disputed election.

In course of the trial, the Appellant called 21 witnesses after which the Tribunal on the 29th -day of November, 2007 directed that he should close his case even though he had informed the Tribunal he had more witnesses to call and had just briefed a new counsel, Niyi Akintola (SAN) & Co. The Appellant is said to have asked for adjournment till the 3rd day of December, 2007 but the Tribunal refused and instead adjourned the case till the 7th day of December, 2007 for the Respondents to open their defence.

The PW1 – PW21 testified to the effect that there were massive electoral malpractices, thuggery, violence etc that characterized the election in their various Local Government Areas.

In response, the 1st and 2nd Respondents called 15 witnesses contending that the 1st Respondent was duly elected by the majority and highest number of lawful votes cast at the said election and that the said election was held in substantial compliance with the provisions of the Electoral Act, 2006, while the 3rd – 312th Respondents called no witness.

On the 15th day of April, 2008, in its judgment the Tribunal dismissed the Petition having disbelieved the Appellant’s witnesses while believing the witnesses of the Respondents.

The Appellant was dissatisfied with the said judgment and on the 6th day of May, 2008 filed his Notice of Appeal containing four (4) Grounds of Appeal in which three (3) issues were raised for determination by this court. The issues are as follows:-

“1. Whether the lower Tribunal was not in grave error, despite the oral evidence led before it by the Appellant’s witnesses, and on the strength of AMAECHI VS. INEC (2008) 17 NWLR (PART 1080) PAGE 1, not to have nullified the election in Osun Central Federal Constituency, in the face of the electoral malpractices, corrupt practices, acts of thuggery and violence complained (sic) by the Appellant, which acts were established to have been perpetrated by the 1st and 2nd Respondents’ agents, and from which acts the 1st and 2nd Respondents benefited immensely. (Distilled from Ground 1).

2. Whether the lower Tribunal was right in view of the provisions of Section 77 (a) – (d), Section 155(1) & (2) of the Evidence Act, 1990 and Section 62(1) of the Electoral Act, 2006, and the oral testimonies of the Appellant’s witnesses, who gave evidence that they were witnesses of what happened during the election in question, to hold that such testimonies of the Appellant’s witnesses, could at best be described as hearsay evidence, and that the Appellant did not prove his Petition. (Distilled from Grounds 2 & 3).
3. Whether the Appellant’s right to fair hearing as enshrined in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria was not breached by the lower tribunal when it refused to grant an adjournment to the Appellant, but rather ordered the case of the Appellant closed, before it on 29th November, 2007, though the Appellant still had other witnesses to called in proof of his Petition.”

From the records of Court, on 17/3/10 when this appeal first came up for hearing, the learned counsel to the 1st and 2nd Respondents A. Moronkeji Esq. was in court and his brief of argument dated 16/10/08 had been filed out of time on 22/10/08. On that date, the appeal was adjourned to 12/5/10 to enable him regularize his brief of argument, following which learned counsel filed an application to regularize his brief of argument re-filed on 22/3/10 along with the motion paper dated and filed the same day.

On 12/5/10 when this appeal was heard, the learned counsel to the 1st and 2nd Respondents was not in court to move his application, the learned counsel to the Appellant, F. A. Aofolaju (Miss) applied that the application be struck out since there was no reason given for the absence of the learned counsel to the 1st and 2nd Respondents. The application was thereafter struck out for want of diligent prosecution. It was therefore deemed that there was no brief of argument in respect of the 1st and 2nd Respondents.