Olawuyi Raheem Tunji & Anor V. Elder David Bamidele & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIMA CENTUS NWEZE, J.C.A (Delivering the Leading Judgment)

Elections were conducted into the Kwara State House of Assembly, Irepodun Constituency, on April 26, 2011. The third respondent declared and returned the first respondent as the winner. The appellants were dissatisfied with that declaration. By their petition, filed on May 17, 2011, they challenged the said return of the first respondent before the National and State Houses of Assembly Election Petitions Tribunal, (hereinafter referred to as the tribunal).

In a considered judgement delivered on November 13, 2011, the tribunal dismissed the petition. Expectedly, the appellants were aggrieved, hence this appeal. They formulated three issues for the resolution of this appeal [paragraph 2,1.1 of the brief of argument].

On their part, the first and second respondents set out six issues for the determination of this appeal. The third respondent entreated this court to resolve three issues it set out in paragraph 4.01 of its brief.

We have had a hard and close scrutiny of he above issues. We are persuaded that the issues which the appellant articulated are sufficient for the determination of this appeal. We shall, therefore, adopt them as the issues for determination herein. We have, however, taken the liberty to reframe and condense them into only two issues thus:

Whether, in view of the civil allegations, the tribunal was right to have discountenanced the doctrine of severance of pleadings and held that the allegations were criminal in nature and ought to be proved beyond reasonable doubt?

Whether the tribunal was right in holding that the documents which the appellants tendered were not demonstrated before the tribunal?

ARGUMENTS OF COUNSEL

ISSUE ONE

Whether, in view of the civil allegations, the tribunal was right to have discountenanced the doctrine of severance of pleadings and held that the allegations were criminal in nature and ought to be proved beyond reasonable doubt.

This issue, which the appellants split into issues one and two, was argued extensively in their brief of argument, [paragraphs 3.0.0-3.1.8]. They compartmentalised the allegations in the pleadings into two categories, The first category related to the criminal allegations of acts of violence; thuggery; intimidation; harassment; cash inducement and rigging, citing paragraphs 11 (ii); 11 (viii); 11 (A); 11 (C); 11 (g) and 11 (h) of the petition. The second category of allegations which, in their view, were civil in nature could be found in paragraphs 11 (i); 11 (iii); 11 (iv); 11 (vi) and (vii) of the petition.

It was contended that the civil allegations were sufficient, if proved, to sustain the petition if the criminal allegations were excised from the pleadings, [paragraphs 3.0.8-3.0. 13 of the brief], citing cases such as Omoboriowo v Ajasin (1984) All NLR 105 etc. Counsel faulted the tribunal for holding that all the allegations were criminal in nature and must be proved beyond reasonable doubt. This, in their view, was a wrong direction on the nature of the allegation: an error that occasioned a miscarriage of justice, [paragraphs 3.1.5-3.1.8 of the brief]

For the first and second respondents, the view was canvassed that the testimonies of PW1-PW4 did not relate the averments in paragraphs 11 (i); 11 (iii); 11 (iv); 11 (vi); 11 (vii); 11 (ix); 11 (A) and 11 (D) of the appellants’ petition. In effect, no evidence was led in respect of the averments in the said paragraphs and they were thus deemed abandoned, [paragraphs 4.25-4.26 of the brief of the first and second respondents].

It was further observed that the statements on oath of PW1-PW11 [pages 443-472 of the record] did not, also, relate to the civil allegations cited above. Their testimonies were, thus, at variance with the pleadings, citing Kalu v Uzor (2006) 8 NWLR (pt 981) 66, 87; Ehimare v Emhonyon (1985) 1 NWLR (pt.2) 177. Worse still, the totality of evidence which the said PW1-PW11 adduced related only to five polling units out of the one Hundred and thirty three polling units in the constituency.