Prince Adetulewa Sijuade V. Ropo Oyewole (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOORE A. A. ADUMEIN, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment delivered on the 16th day of April, 2008 by the Governorship and Legislative Houses Election Petition Tribunal, Osun State. The appellant – Prince Adetilewa Sijuade of the Action Congress, the 1st respondent – Robo E. Oyewole of the Peoples Democratic Party and four other candidates contested the election for the Ife Central Constituency of Osun State House of Assembly held on the 14th day of April, 2007. The 1st respondent was declared and returned elected by the 3rd respondent – Independent Electoral Commission (INEC). The appellant was not satisfied and filed a petition in the tribunal on four (4) grounds. (Pages 3 – 5 of the record of appeal) The appellant’s petition was dismissed by the trial tribunal. The judgment of the tribunal spans pages 569 to 595 and the appellant’s notice and grounds of appeal cover pages 597 to 609, respectively, of the record of appeal. With leave of this Court, granted on the 12th day of April, 2010 the appellant filed an amended notice of appeal.

At the hearing of the appeal, learned counsel for the appellant – Ajibola Basiru, Esq. adopted and relied on the appellant’s brief and replies brief respectively filed on the 26th day of April, 2010 and 8th day of June, 2010 and urged the Court to allow the appeal and set aside the judgment of the tribunal. A. Moronkeji, Esq. on the other hand, adopted and relied on the 1st and 2nd respondents’ brief of argument filed on the 12th day of May, 2010 and urged the Court to dismiss the appeal and affirm the judgment of the tribunal. It should be noted that Mr. Moronkeji had earlier withdrawn the preliminary objection and argument thereon, contained at pages 3 to 9 of his brief, and the same was struck out.

The learned counsel for the 343rd and 344th respondents, Jide Obisakin, Esq. adopted and relied on his brief of argument filed on the 12th day of May, 2010 and also urged that the appeal be dismissed while the judgment of the tribunal be affirmed.

The appellant’s brief is of 58 pages and in it 7 (seven) issues were refined and argued. The 7 (seven) issues distilled by the appellant, from his amended notice, are:

1. Whether evidence of what transpires at a polling unit can only be given by polling agents and the testimonies of persons not authorized by the stated provisions the Electoral Act, 2005 is hearsay evidence (Grounds 3 of the Notice of Appeal).
2. Whether facts averred in the testimony of petitioner/Appellant’s witnesses and issues of defects in the electoral materials were not pleaded and therefore went to no issue. (Grounds 4 and 5 of the Notice of Appeal).
3. Whether documents admitted as exhibits become irrelevant and unreliable because they were tendered from the bar. (Ground 6 of the Notice of Appeal)
4. Whether the Tribunal gave adequate consideration to the evidence adduced before it, before arriving at its judgment (Grounds 1, 2 and 7 of the Notice of Appeal).
5. whether the Tribunal was right when having held INEC (3rd – 342nd Respondents) and police (344th -345th respondents) have abandoned their pleadings, it did not further hold that such abandonment of pleading by INEC 13rd -342nd Respondents) and police (344th -345th Respondents was an admission of the allegations in the petition. (Ground 13 of the Notice of Appeal)
6. Whether the Tribunal was right when it failed to hold that the 1st and 2nd Respondents did not lead evidence in support of the averments in their Reply to the petition and that the effect of same amounts to abandonment of the averments.
7. Whether the Tribunal was right in its ruling of December 12, 2007 when it dismissed the petitioner/Appellant’s application to enable him call additional witness and tender inspection report which application was necessitated by an inspection order grant by the Tribunal pursuant to section 159 of the Electoral Act, 2006. (Grounds 8, 9, 10 and 11).

The 1st and 2nd respondents, on their part, distilled and formulated the following two issues, namely:

1. Whether the Tribunal adopted the correct or proper approach in evaluating the pieces of evidence proffered by the parties vis-a’- vis their pleadings in arriving at its decision. (Grounds 1, 2, 3, 4, 5, 6, 7, 13 and 14 of the Notice of Appeal)
2. Whether the Tribunal was wrong in dismissing the Petitioner/Appellant’s application to call additional witness to tender inspection report on December 12, 2007. (8, 9, 10 and 11)

The 343rd and 344th respondents also formulated two issues for determination.

I will adopt the issues formulated by the learned counsel for the appellant as they cover all the issues calling for determination in this appeal.

ISSUE No 1

Whether evidence of what transpires at a polling unit can only be given by polling agents and the testimonies of persons not authorized by the stated provisions the Electoral Act, 2006 is hearsay evidence.

The appellant’s argument on this issue is from pages 4 to 8 of his brief. The response of the 1st and 2nd respondents is from pages 1.0 to 13 of their brief.

The kernel of the appellant’s argument is that the tribunal was wrong to have held that the appellant’s witnesses (PW1 – pw 12), being ward supervisors of their party – Action Congress, could not give evidence of what happened at a polling station or a collation centre. Mr. Kunle Adegoke, learned counsel who settled the appellant’s brief, referred the court to sections 77 and 155 of the Evidence Act and the cases of OMONGA v. STATE (2006). 14 NWLR (pt. 1000) 532 and OBIWUNNE V. TABANSI- OKOYE (2006) 8 NWLR (Pt.981) 1004 and argued as follows:

“The fact that the Electoral Act, 2006 limits access to the polling and collation centres to polling agents, the presiding officers, polling clerks, voter and observers does not by any means say others who were there, whether rightfully or wrongly, cannot give evidence of what they saw. It is a misconception of the law which should be condemned. We submit on the point that the position of the Tribunal in its judgment particularly at 574-592 of the Record of Appeal is incorrect.”

At the hearing of the appeal, Ajibola Basiru, Esq. learned counsel who appeared for the appellant further referred the Court to the recent case of RAUF ADESOJI AREGBESOLA AND ORS. V. OLAGUNSOYE OYINLOLA AND ORS. (APPEAL No. CA/I/EPT/GOV/02/2010) delivered on Friday, the 26th day of November, 2010, particularly pages 48 – 54 thereof and urged the Court to resolve this issue in favour of the appellant.