Yusuf Sulaiman Lasun V. Leo Adejare Awoyemi & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Leading Judgment)

This appeal is against the Judgment of the National Assembly Election Petition Retrial Tribunal holden at Oshogbo, Osun state.

The National Assembly election was held nation wide on 21st April, 2007. In the election for lrepodun/Olorunda/Osogbo/Orolu Federal Constituency the appellant was sponsored by the Action Congress, one of the many registered political parties in Nigeria. The 1st Respondent was sponsored by the 2nd Respondent – the people’s Democratic Party (PDP), Nigeria’s ruling party then and now. The 3rd Respondent INEC is charged with the conduct of elections for elective positions at the State and the Federal levels.

The 4th – 148th Respondents conducted the said election as the agents of the 3rd Respondent while the 149th to 150th are law enforcement agents who were charged with the duty to maintain Law and order in Osun State during the election. At the conclusion of the said election the 3rd Respondent through its agents returned the 1st Respondent as the winner. The appellant challenged the return of the 1st Respondent as duly elected on diverse grounds, including the assertion that the 1st Respondent was not duly elected by a majority of lawful votes cast at the election. The trial (1st) Tribunal in its Judgment delivered on 12th May, 2008 dismissed the Petition. The appellant appealed the dismissal of his petition to the court. In its Judgment reported as Lasun v. Awoyemi (2009)16 NWLR (Pt.1168) 513 the court allowed the appeal and ordered a retrial of the Petition by a differently Constituted Panel of the Tribunal.

The retrial tribunal composed of Garba J as chairman and Agbattah, Bashir, Aliyu and Obaseki JJ as members started sitting on 4th September 2009. The appellant as petitioner, called 17 witnesses and tendered exhibits, 1st and 2nd Respondent called 9 witnesses and also tendered exhibits.

However none of the 3rd to 148th and 149th to 150th Respondents called any witness at the trial.

In its judgment delivered on 28th May, 2010 the retrial Tribunal dismissed the Petition and upheld the declaration and return of the 1st Respondent as duly elected in the election of 21 April, 2007.

Aggrieved by the said Judgment the appellant filed a notice containing no less than 32 grounds of appeal on 15/6/2010.

In compliance with the rules, and the Practice Direction issued by the Hon. President of the Court, the parties herein, through their respective learned Counsel filed and exchanged briefs of argument.

In the Appellant’s brief of argument 13 issues were set out for the Court to resolve. These are:

“1. Whether the Tribunal was right in refusing to hold that the failure of the 1st – 2nd Respondents to call evidence amounted to abandonment of their pleadings in some areas of the Local Governments in dispute and consequently an admission of allegations in the petition as regards those areas- Ground.

2. Whether the Tribunal was right in refusing to hold that the failure by the 3rd – 148th Respondent and the 149 – 150th Respondents to call evidence amounted to abandonment of their pleading and that through cross-examination the Respondents have challenged the Petitioner’s evidence – Grounds 2, 3 and 5.
3. Whether the decision of the Tribunal that the reports of the Petitioner’s polling agents admitted in evidence had no probative value was erroneous and occasioned a miscarriage of Justice- Ground (sic) 4, 6, 13.
4. Whether the Tribunal was justified in its decision that PW2 did not produce any evidence to show those electorates were not allowed to vote by PDP thugs. Ground 7.
5. Whether the decision of the Tribunal that the evidence of non-counting of votes, non-voting, voting with fake voters cards and impersonation could only have come from a person who is permanently stationed at the polling unit was erroneous and occasioned a miscarriage of Justice. Grounds 10 & 11.
6. Whether the Tribunal’s conclusion that the fact that RW3, RW4 and RW9 did not vote can only affect the weight to be attached to their testimonies but not conclusive proof of leading thugs to commit crime is not erroneous as to occasion a miscarriage of Justice. Ground 12.
7. Whether the decision of the Tribunal that the petitioner did not produce ballot boxes stuffed with ballot papers was not erroneous and did not occasion a miscarriage of Justice. Ground15.
8. Whether the Tribunal did not err in law when it held that the petitioner did not prove his case beyond reasonable doubt and did not link same with the 1st Respondent. Grounds 16 & 25.
9. Whether the decision of the Tribunal that the PW15 possessed no education qualification or skill and that his evidence was hearsay because he was not present at any stage at which the electoral forms documents or materials which formed the basis of his evidence were recorded, prepared or entries therein made is erroneous as to occasion a miscarriage of Justice. Grounds 17, 18, 21, 22.
10. Whether the Tribunal did not err in law when it failed to compare the signature on form EC8A with that at the back of the ballot papers thereby occasioning miscarriage of Justice. Ground19.
11. Whether the Tribunal did not err in law when it failed to find non-compliance despite evidence of non-stamping of ballot papers, signing of form EC8B in Ward1, and Ward 4 by RW1, non – signing of forms EC8A by Presiding Officers and several other irregularities thereby occasioning a miscarriage of Justice. Grounds 20, 26, 27 and 28.
12. Whether the Tribunal was right in its failure to consider the documentary evidence, properly evaluate oral evidence adduced by the petitioner and consider Table (sic) A, B and C in the Petitioner’s address thereby occasioning a miscarriage of Justice. Grounds 14, 23, 24, 25, 26,29 and 30.
13. Whether the Tribunal was right in the circumstances in not annulling the election of the 1st Respondent and not declaring the 1st Petitioner as having been duly elected. Ground 31.

In their joint brief of argument the 1st and 2nd Respondent adopted the issues formulated by the appellant.

The 3rd to 148th Respondent did not deem it fit to file briefs, jointly or severally, and upon the application of the appellant the Court granted an order on 29/10/10 that the appeal be heard and determined on the existing briefs: These are the briefs filed by the appellant, 1st and 2nd respondents and the 149th and 150th Respondents.

In their joint brief of argument the 149th and 150th Respondents formulated a lone issue for the Court to resolve. The issue is “whether by evidence at the lower Tribunal the appellant has been able to prove the allegation made against the 149th and 150th Respondents (Grounds 2, 3, and 5 of the Notice of Appeal)”.