Chief Matthew Atamah & Anor V. Ereghan S. Ebosele & Ors (2008)

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GEORGE OLADEINDE SHOREMI, J.C.A.

On 14th May, 2007 the Appellant filed a petition against the Respondent at the Governorship/Legislative Houses Election Tribunal Benin City challenging the return of the 1st Respondent as the winner of the House of Assembly election for Esan Central Constituency held on 14th April, 2007.

Issues were joined in the petition. The appellant’s application for leave to call additional witnesses was refused by the lower tribunal on 17/10/07. The appellants duly appealed against the decision on 27/10/07. After hearing the witnesses called by the petitioner and after consideration of the written addresses filed by counsel on both sides the tribunal on 22/1/8 delivered its judgment in which it dismissed the appellant’s petition.

Dissatisfied with the judgment the appellant on 8th February 2008 filed their notice of appeal against the judgment see page 587-590 of the record. When the appeal came up for hearing Mr. Obamogie of the learned counsel to the appellant referred to his appeals which were consolidated by the order of this court on 26/5/08. He said before then he filed two appellants brief. The 1st Appellant brief is dated 10/3/08 and filed on 11/3/08. The 2nd Appellants brief is dated 11/3/08 and filed the same day. He also reacted to the entire Respondent brief by filing Reply briefs.

The 1st Reply Brief is his reaction to the 2nd-5th Respondents brief which was dated and filed on 2/6/08 while the Reply to the 1st & 2nd Respondents was also dated and filed on 5/6/08. He adopted and relied on all his briefs and reply brief. He urged the court to allow the appeal as the issue of fair hearing is raised in the 1st Appeal when the tribunal failed to allow the Appellant to call additional Evidence vide his application at page 337 of the record of proceedings which was argued before the pre-hearing season. He referred to the case of ABUBAKAR V. YAR ADUA (2008) 4 NWLR Pt. 1078 page 465 at 535 E-G.

Mr. Orbih – for the 1st & 2nd Respondents adopted and relied on his brief dated 2/6/08 and filed the same day and he urged the court to dismiss the appeal. He further showed that the appellants application to call additional witnesses amounts to amending the petition in that the deposition were at variance with the petition. Furthermore all the documents which the Appellant tried to introduce by his application for subpoena which was refused by the tribunal were subsequently tendered and admitted from the bar. He submitted that the Appellant can not reprobate and approbate He said there was no miscarriage of justice and urged the court to dismiss the appeal.

Chief Uzamere for the 3rd, 4th & 5th Respondent adopted his brief of argument dated and filed on 28/5/08. The brief was filed after consolidation. He adopted the submission of the learned counsel for the 1st & 2nd Respondent’s argument. He said that the appellants were given every opportunity to fair hearing. He urged the court to hold that the appeal lacks merit.

Let me deal with the notice of appeal dated 26th October, 2007. The ground of appeal reads –

“(1) The Honourable Tribunal erred in law in refusing the petitioners application for leave to call additional witness in support of their petition.

Particulars of Error

(a) Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 guarantees the petitioner right of fair hearing.

(b) The deposition of the additional witnesses were exhibited with the petitioners application filed on 19th September, 2007.

(c) Neither the Electoral Act 2006 nor the rules of Honourable Tribunal set a time limit for filing deposition.

(d) The provision of the Constitution of the Federal Republic of Nigeria 1999 Electoral Act 2006 and the Rule of the Tribunal override the Practice Direction.