Charles Ehigie Airhiavbere, Major General (Rtd) V. Comrade Adams Aliyu Oshiomhole & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment)

The appellant, along with his political party – the Peoples Democratic Party (PDP) had on 2nd August, 2012 filed a petition at the Edo State Governorship Election Petition Tribunal, holden at Benin City, against the election of the 1st Respondent on 14th July, 2012 as the duly elected Governor of Edo state. The petitioners’ witnesses were listed as thirty-one (31) and each of their written depositions on oath were all contemporaneously filed and frontloaded along with the said petition.

In an application filed on 10th August, 2012 at the instance of the 2nd Petitioner – the PDP, that it was no longer desirous of prosecuting and/or maintaining the aforesaid petition, her name was struck out as a party to the petition.

Each set of the respondents reacted to the petition by filing their replies to it. They also filed each of their witnesses’ statements on oath contemporaneously with their Replies to the petition. In response to the aforesaid Replies, the appellant as the sole petitioner filed his own Replies to each of the 1st, 2nd, 3rd – 5th Respondents’ Replies to the petition. Hence, by 7th September, 2012, all pleadings were filed and exchanged amongst the parties.

The appellant, thereafter on 22nd September, 2012 filed an application dated 20th September, 2012 at the lower tribunal and prayed for an enlargement of time within which to file “Petitioner/Applicant’s additional witnesses’ Written Statements on oath” etc. The additional witnesses’ Written Statements on oath were attached to the affidavit in support of the application.

The grounds for the application were that since the then 2nd petitioner -the Peoples Democratic Party (PDP) had withdrawn from the petition and the “State Secretary of PDP who was to have deposed to witness deposition for the petitioner declined to do so on the instruction of the leadership of the PDP”, it became necessary for the “Petitioner and other witnesses to make witness depositions and testify in this petition”.

The additional witnesses including the petitioner/appellant whose written depositions on oath were filed with the application, were eighteen (18). Each set of the respondents resisted and opposed the application.

The lower tribunal, on 9th October, 2012, in a considered ruling, granted the application, in part, to wit: in respect of the appellant’s own written statement on oath only, as an additional witness, but refused the written statements on oath of the other seventeen (17) additional witnesses. It is against that ruling that the appellant appealed to this Court.

The appeal is anchored on two grounds of appeal, which for ease of reference and appreciation, are reproduced, namely:

“GROUND 1

The learned chairman and member of the Governorship Election Petition Tribunal sitting at Benin City erred in law when they struck out the various Appellant’s additional Witnesses’ Written Statement on Oath except that of the Appellant contained in Exhibit “A”

PARTICULARS OF ERROR

(a) The Appellant made out a case for exceptional circumstances to warrant the grant of the Appellant’s application for additional Witnesses.

(b) The exit of the 2nd Petitioner – the People Democratic Party (PDP) from the petition created the exceptional circumstances for the grant of application for additional Witness Deposition.