Ojo Johnson Ajagbe V. Yidiat Babalola & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, JCA, (Delivering the Leading Judgment)

This is an appeal against the Rulings and Judgment of the Governorship and Legislative Houses Election Petition Tribunal, holden at Osogbo (hereinafter referred to as “the Tribunal”), delivered on 31st of October 2007; 10th November, 2007; 11th December, 2007 and 19th April, 2008 respectively.

On the 14th of April, 2007, elections were held into the Osun State House of Assembly for Ede South Constituency Seat. The Appellant contested the election on the platform of the Action Congress (A.C.) while the 1st Respondent contested on the platform of the People’s Democratic Party (P.D.P.). At the conclusion of the election, the 3rd and 4th Respondents returned the 1st Respondent as the winner.

The Appellant was dissatisfied with the return of the 1st Respondent and filed a petition before the Tribunal, challenging the said return on the ground inter alia, that the election was characterized by numerous electoral malpractices, irregularities and non-compliance with the provisions of the Electoral Act, 2006. He sought a declaration that, the election was invalid and therefore vitiated by reason of non-compliance with the Electoral Act; an order nullifying the elections; and an order directing the 3rd Respondent to conduct fresh elections for the said state constituency.

The parties duly filed and exchanged pleadings, witness statements on oath and list of documents to be relied upon at the hearing in compliance with the Practice Direction, 2007. At the conclusion of the pre-hearing sessions, the matter proceeded to trial. The Appellant called 10 (ten) witnesses and tendered various documents through them. The 1st and 2nd Respondents called 9 (nine) witnesses. The 3rd to 81st Respondents (INEC and its officials) and the 82nd and 83rd Respondents (the Law Enforcement Agents) did not call any witnesses. At the conclusion of the trial, the parties filed and exchanged written addresses. In a considered Judgment delivered on 19th April, 2008, the Tribunal dismissed the petition.

The Appellant, being dissatisfied with the decision, filed a Notice of Appeal dated 2nd of May, 2008 containing 9 (nine) grounds of appeal. The Appellant, 1st and 2nd Respondents and 82nd and 83rd Respondents filed and exchanged their respective Briefs of Argument. The 3rd – 81st Respondents did not file any Brief. Olayinka Okedara, learned Counsel for the Appellant, adopted and relied on the Appellant’s Brief of Argument dated 6th October, 2009; filed on 7/10/2009 and the Appellants Reply to Respondents’ Brief of Argument dated 6th April 2010, filed on the 27/4/2010. He urged the Court to allow the appeal. When the appeal came up for hearing on the 29/4/2010, the learned Counsel to the 1st and 2nd Respondents was absent, even though there was proof before the Court that he was duly served with the hearing notice on the 23/4/2010 against the hearing of the appeal for the 29/4/2010. Learned Counsel to the Appellant – Okedara, urged the Court to discountenance the Notice of Preliminary Objection contained in the 1st and 2nd Respondents’ Brief dated 25/1/2010 and filed on the 27/1/2010.

He had although filed a Reply to the said Notice of Preliminary Objection dated 6/4/2010. Having being satisfied that the Counsel to the 1st and 2nd Respondents was duly served with the hearing notice for 29/4/2010, the Court considered the Notice of Preliminary Objection contained in the 1st and 2nd Respondents’ Brief of Argument as having being abandoned and consequently struck out same. The Brief of Argument of the 1st and 2nd Respondents dated 25/1/2010 filed 27/1/2010 is therefore deemed argued. O. F. Akintayo, State Counsel, Ministry of Justice, Osun State, adopted and relied on the 82nd and 83rd Respondents’ Brief of Argument dated 7/12/2009, and filed on 10/12/2009. He urged the Court to dismiss the appeal and uphold the judgment of the Tribunal.

From the 9 (nine) grounds of appeal contained in the Notice of Appeal, the Appellant formulated 5 (five) Issues for determination thus:-

(1) “Whether the Tribunal was right when it held that the evidence led by PW1, PW2, PW3, PW4, PW5, PW6, PW7 and PW9 – party supervisors of the Petitioner, can be characterized as hearsay in the face of their uncontroverted assertions that they were present in various units and saw the alleged acts of malpractices and irregularities committed by the agents and thugs of the Respondents. (Grounds 2 & 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, PW2, PW3, PW4, PW5, PW6, PW7, PW8, PW9 and later held evidence led by DW1, DW2, DW3, DW4 and DW5 to be credible as to conclude that the said election was free and fair. (Ground 1 of the Notice of Appeal).

(3) Whether insertion of Notice to produce in a Petitioner’s petition renders subpoena duces tecum et ad testficandum superfluous as to produce the witness who answers the subpoena by producing the relevant documents from being sworn in to give evidence. (Ground 4 of the Notice of Appeal).

(4) Whether it is in accordance with the law that a witness subpoened should have been listed among the witness of the person who caused him to be subpoened together with such witness’s deposition having been frontloaded by the party who caused him to be subpoened. (ground 5 of the Notice of Appeal).

(5) Whether the Ruling of the Tribunal delivered on 11th day of December, 2007, is in accordance with the Practice Direction of the Election Petition, Rules of Natural Justice, equity and good conscience when the Tribunal refused the Appellant’s application to call an additional witness to tender the report of inspection of electoral materials and for such witness to give evidence in respect thereof the same inspection process having been conducted by the Appellant pursuant to an order of the Tribunal in order for the Appellant to maintain his petition. (Grounds 6, 7, 8 and 9 of the Notice of Appeal).

The 1st and 2nd Respondents formulated two (2) Issues from the 9 (nine) grounds of appeal as follows:-