Ajibola Israel Famurewa V. Olugbenga Onigbogi & 334 Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This appeal is against the judgment of the Governorship and Legislative Houses Election Petition Tribunal, Holden at Osogbo (hereafter referred to as the Tribunal) delivered on the 14th day of May, 2008.

The background facts are that the Appellant contested for the House of Representative for Atakumosa East, Atakumosa West, Ilesha East, Ilesha West Federal Constituency seat in the Federal House of Representative for Osun State on the platform of the Action Congress, challenged the declaration of the 1st Respondent who contested under the Peoples Democratic Party as the winner of the said election on the ground inter alia that the said election was vitiated by substantial non-compliance with the mandatory statutory requirements of both the Constitution of the Federal Republic of Nigeria and the Electoral Act, 2006 which was alleged to have substantially affected the results, and that the 1st Respondent could not have been validly returned as having won in the said election. Widespread acts of thuggery perpetrated by thugs of the 1st Respondent was alleged by the Appellant, also disruption of the voting exercise by the said thugs in connivance with the law enforcement officers detailed to ensure peaceful, free and fair election, illegal stuffing and thumb printing of ballot papers by agents of the 1st Respondent, hijacking and carting away of ballot boxes. These acts were said to have recurred in Wards 1 – 10 of Ilesha West, Wards 1 – 11 of Ilesha East, Wards 1 – 11 of Atakumosa West and Wards 1 – 10 of Atakumosa East Local Government Areas of Osun State. The Petitioner prayed before the Tribunal for a nullification of the said election and an order for a re-run by the 3rd Respondent.

On the part of the 1st and 2nd Respondents, each denied the allegations of the Petitioner. The 3rd – 333rd Respondents (INEC and its officials) and the 334th – 335th Respondents (the Police) reacted to the Petition and also filed their various responses.

At the close of pleadings, the Petitioner by a Motion filed on 11/7/07, granted on 14/7/07 obtained an order to inspect all polling documents and materials used for conducting the said election as listed in the Motion papers, pages 347 – 353 of the printed Records of Appeal.

The Tribunal on 20/1/08, issued a Subpoena duces tecum et ad testificandum on the Osun State Resident Electoral Commissioner to bring all the electoral materials enumerated in the Subpoena and give evidence.

The Subpoena is at pages 464 – 466 of the records.

In course of hearing, the Petitioner moved the Tribunal to swear the representative of the Resident Electoral Commissioner present in Court upon the Subpoena, to be examined on the documents he produced, the Tribunal refused the application to examine the said INEC official on the grounds that the giving of notice to produce as contained in the Petitioner’s Petition had dispensed with the Subpoena already issued and that the Petitioner did not frontload the witnesses’ statement of the INEC official sought to be examined, pages 474 – 476 of the records and covered by Ground 15 in the Notice of Appeal.

The Petitioner in addition, sought an order to be allowed to call additional witnesses and to tender the inspection report of the said inspection exercise; the application was refused on the ground that the witnesses statements were not frontloaded with the Petition, page 476 of the records. The application was dated 29/1/07 and the refusal was on 21/2/08.

While the 1st and 2nd Respondents called witnesses in defence, the 3rd – 333rd and 334th – 335th Respondents did not call any witness but, parties presented their written addresses and on the 14th day of May, 2008, the Tribunal in its Judgment held that the Petitioner/Appellant had not proved its case and dismissed the Petition in its entirety for lacking in merit.

Dissatisfied with the judgment, the Appellant filed his Notice of Appeal on 3rd of June, 2008 containing fifteen (15) Grounds of Appeal from which six (6) issues were distilled for determination by this Court. The issues are:-

“1. Whether the Tribunal was right when it held that the evidence led by Petitioner’s witnesses from the PW1 to the PW32, party supervisors of the Petitioner can be characterized as hearsay in the face of their uncontroverted assertions that they were present in the various units and saw the alleged acts of malpractices and irregularities committed by the agents and thugs of the Respondents. (Grounds 2 and 3 of the Notice of Appeal).

2. Whether the Tribunal properly evaluated the evidence before it when it rejected the unimpeached evidence led by PW1 to the PW32, and later held evidence led by DW1, DW2, DW3, DW4, DW5, DW6 and DW7 to be credible as to conclude that the said election was free and fair.

(Grounds 1 & 7 of the Notice of Appeal).

3. Whether the Tribunal, in its determination of the petition, was right in refusing to look at the electoral materials admitted which were produced by the 3rd and 4th Respondents pursuant to a subpoena duces tecum et ad testificandum.

(Grounds 5, 6 and 10 of the Notice of Appeal).