Debo Kamar Akanbi V. Rafiu Adejare Bello & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

In the general elections of 14th April, 2007 into Ede North State Constituency seat of the Osun State House of Assembly in which the Appellant contested on the platform of Action Congress (AC) while the 1st Respondent who was returned as having won the election by the 3rd Respondent, Independent National Electoral Commission (INEC) contested on the platform of the 2nd Respondent (People’s Democratic Party).

Aggrieved by the return of the 1st Respondent, the Appellant on 14th May, 2007 filed a petition before the Governorship and Legislative Houses Election Petition Tribunal sitting at Osogbo (hereinafter referred to as the Tribunal) in Petition No. HA/EPT/OS/11/07 challenging the return and declaration of the 1st Respondent as the candidate returned as the winner of the election on the ground of non-compliance with the mandatory requirements of both the Constitution of the Federal Republic of Nigeria 1999 and the Electoral Act, 2006. The Appellant alleged that the election was affected by the said non-compliance and the 1st Respondent not validly returned.

In the Petition, there were allegations of wide spread acts of violence, thuggery, disruption of election, illegal stuffing, hijack and carrying away of ballot boxes perpetrated by the 1st Respondent and his thugs with the connivance of the law enforcement agents whose duty and responsibility was to ensure peaceful, free and fair election. The Appellant prayed for nullification of the election before the Tribunal. The 1st and 2nd Respondents on being served with the Petition filed their joint reply dated 12th June, 2007 on the 14th day of June, 2007 in which all the allegations were denied.

The 3rd – 128th Respondents filed their reply dated 14th June, 2007 on the same day, the 129th and 130th Respondents also filed their reply. All the Respondents denied the allegations against them. Thereafter, the Appellant by an application filed on 27th June, 2007 and granted on 28th June, 2007 obtained an order of inspection of all the materials used for the election, which were all listed in the motion paper at pages 170 – 179 of the Record of Appeal. The order was granted by the Tribunal (page 182 of the record) and on 27th October, 2007 issued two subpoena duces tecum et ad testificandum on the Resident Electoral Commissioner (4th Respondent) and Electoral Officer, Ede North Local Government INEC to produce all the materials listed in the subpoena and to give evidence, page 196 to 200 of the record.

In a motion dated 3rd December, 2007 the Appellant sought the leave and order of the Tribunal to call one Tiamiyu Adegboyega as an additional witness and tender inspection reports of the electoral materials.

In its Ruling of 18th January, 2008 the tribunal refused the application on the ground that the petitioner did not indicate in the pre-hearing information sheet that he would be calling additional witnesses and that there were no exceptional circumstances to warrant the bringing of the application (page 278 of the records).

The person subpoenaed to be examined on the produced documents was not allowed to testify, on the ground that the witness’ statement on oath was not front loaded.

The Appellant called ten (10) witnesses, the 1st and 2nd Respondents called four (4) witnesses, the 3rd – 128th Respondents and 129th – 130th Respondents respectively did not call any witness. At the close of trial on the 30th day of May, 2008, the Tribunal in its judgment dismissed the Petition on the ground that the Appellant as Petitioner had not given credible evidence to prove his case, for which the Appellant appealed to this Court.

The original Notice of Appeal dated and filed on 17/6/08 was later, on application amended on 30/9/09 in which Fifteen (15) Grounds of Appeal were raised, from which seven (7) issues were distilled for determination by this Court. The issues are as follows:-

“(1) Whether documents admitted as Exhibits become irrelevant and unreliable because they were tendered from the bar and no evidence led on them. (Ground 6 of Amended Notice of Appeal).

(2) Whether facts averred in the testimonies of Petitioner/Appellant witnesses’ and defects in some of the Electoral forms were not pleaded and therefore go to no issue. (grounds 4 and 5).

(3) Whether evidence of what transpired at the Polling units can only be given by Polling Agents or other persons authorized by Electoral Act to be at the Polling Units thereby rendering the testimonies of Petitioner’s witnesses who are supervisors not mentioned by 46(1) & (2), 62, 63, 64(1) & 2 and 136(1) of Electoral Act 2006 improbable of belief on the face of unchallenged and uncontradicted evidence of the witnesses. (Grounds 2, 3 and 7 of the Amended Notice of Appeal).

(4) Whether the Tribunal was right when it held that it is unnecessary for the Respondents to call evidence to deny the allegation of electoral malpractices, violence and intimidation led in evidence by the Petitioner’s witnesses.