Oluwarotimi Akeredolu, San & Anor V. Rahman O. Mimiko & Ors. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment)

This is an interlocutory appeal against the ruling of the Governorship Election Tribunal sitting in Akure, Ondo State, delivered 25th February, 2013. The tribunal had in the ruling dismissed an oral application by the petitioners (herein the appellants) to demonstrate through the PW35, one Sunday Adekunle the content of Exhibits P50(A) and P50(B) using electronic gadgets. The tribunal in its ruling refused the application.

The brief and relevant facts leading to the appeal are that sequel to the Governorship election in Ondo State conducted by the 3rd respondent on 20th October, 2012, the 1st respondent and eleven other candidates took part in the said election as candidates of their parties. The 1st respondent was declared the winner of the election and accordingly returned as the Governor of Ondo State.

The appellants were dissatisfied with the return of the 1st respondent and so challenged his declaration and return before the Governorship Election Petition Tribunal sitting in Akure, in Petition No. EPT/OD/GOV/02/12.

In the course of the proceedings at the tribunal, the appellants had sought and obtained the order of the tribunal for their experts to testify and tender reports of analysis conducted by them. The appellants called PW35 who was alleged to have conducted physical inspection with his team on electoral materials and particularly the 2011 and 2012 Voters Registers. While leading the witness in evidence, the learned senior counsel applied that the appellants be allowed to demonstrate through the said PW35 the electronic voters registers for 2011 and 2012 already in evidence as Exhibits P50(A) and P50(B). The said exhibits were earlier produced before the tribunal by the 3rd respondent as a result of Subpoena Duces Testificondum issued on her.

Learned counsel for the respondents each opposed the application. The tribunal in its ruling agreed with the respondents and accordingly refused the application. The appellants not satisfied with the ruling has appealed to this court vide a Notice of Appeal filed 7th March, 2013 containing a sole ground of appeal. See pages 450-452 of the record.

Parties duly filed and served their briefs of argument. In the appellants’ brief of argument dated 26th March, 2013, filed 27th March, 2013 and prepared by Chief Akin Olujinmi, SAN and 3 other counsel, a sole issue was distilled for the determination of the appeal. The issue reads:

“Whether having regards to the pleadings of the parties, the tribunal was right in law in disallowing the petitioners to demonstrate the electronic voters registers for 2011 and 2012 which form major aspects of the appellants’ case.”

In the 1st respondent’s brief dated and filed 2nd April, 2013 and settled by Chief Wole Olanipekun, SAN, and 11 other counsel, they formulated one issue for the hearing and resolution of this appeal and it reads:

“Whether having regard to the appellants’ pleadings, the terms of the lower tribunal’s order of 13th December, 2012 vis-a-vis the provisions of the Evidence Act and the Electoral Act in relation to procedure for leading evidence in chief, the lower tribunal was not right in disallowing PW35 from “demonstrating” the contents of P50 (A) and P50 (B) through electronic gadgets when the witness neither made nor tendered the said Exhibits in evidence at the trial.”

The 2nd respondent in its brief dated 1st April, 2013, filed 2nd April, 2013 and settled by Yusuf O. Ali, SAN, and 8 other counsel formulated the following lone issue for determination:

“Whether the tribunal was not right by (sic) in refusing to grant the application of the Appellants to demonstrate the purported irregularities in the 2011 and 2012 Voters Registers by the use of electronic gadgets having regard to the rules or procedures governing Election petition proceedings and peculiar circumstances of the case?”

In like vein the 3rd respondent, in its brief of argument dated and filed 2nd April, 2013, and settled by Chief Adegboyega Awomolo, SAN and 17 other counsel, came up with two issues for determination of the appeal. The issues are:

“1. Whether the right of the appellants’ to fair hearing was violated by the refusal to allow them to demonstrate Exhibits P50A and P50B, the same having been demonstrated in Exhibits p55-p57.