VICTOR AIMEPOMO O. OMAGE OFR JUSTICE, COURT OF APPEAL,
ABUBAKAR ABDULKADIR JEGA JUSTICE, COURT OF APPEAL,
MOHAMMED LADAN TSAMIYA JUSTICE, COURT OF APPEAL,
RAPHAEL CHIKWE AGBO JUSTICE, COURT OF APPEAL,
BODE RHODES VIVOUR JUSTICE, COURT OF APPEAL.
The Gubernatorial Elections were held on the 14th day of April, 2007 to fill the offices of Governors for all the States in Nigeria. The elections were conducted by the 4th respondent. The 1st appellant and the 1st respondent contested the election for Osun State.
In Osun State, the Peoples Democratic Party (PDP) fielded Prince Olagunsoye Oyinlola as its candidate while the Action Congress (AC) fielded Mr. Rauf A. Aregbesola as its candidate. After the elections, the 4th respondent, The Independent National Electoral Commission (INEC), credited the PDP candidate with 426,669 votes and the AC candidate with 240,722 votes. INEC declared Prince Olagunsoye Oyinlola, the winner of the election.
Dissatisfied with the results declared by INEC, Mr. Rauf A. Aregbesola and his party filed a petition on the 11th day of May, 2007 at the Governorship and Legislative House Election Petition Tribunal which sat at Oshogbo challenging the declaration or the 1st respondent as Governor of Osun State.
- Atakumosa West Local Government,
- Ayedaade Local Government,
- Boluwaduro Local Government,
- Boripe Local Government,
- Ede North Local Government,
- Ife Central Local Government,
- lfedayo Local Government,
- Isokan Local Government,
- Odo-Otin Local Government and,
- Ola-Oluwa Local Government,
do not represent lawful votes cast in the said Local Government Areas in Osun State Governorship Election held on 14th April, 2007 and as having been obtained in vitiating circumstances of substantial non-compliance with mandatory provisions of Electoral Act, 2006, violence and malpractices which substantially affected the validity of the said elections, that none of the candidates in the said election can be returned as having validly won in the said affected Local Government Areas.
2. That the said Olagunsoye Oyinlola was not duly elected by majority of lawful votes cast in the Osun State Governorship Election held on April, 14th, 2007 and that his election is void.
3. That Rauf Aregbesola was elected and ought to have been returned having scored the highest number of votes cast in the Osun State Governorship Election held on April 14th, 2007, and satisfied the requirements of Section 179 Constitution of the Federal Republic of Nigeria, 1999 and the Electoral Act, 2006.
4. That the 1st petitioner be declared validly elected as returned.
ALTERNATIVELY, the Petitioner prays: –
1. That the Osun State Governorship Election held on April, 14th, 2007 is void on the ground that the election was not conducted substantially in accordance with the provisions of Part lV of the Electoral Act, 2006.
2. That the said election was vitiated by substantial noncompliance with the mandatory statutory requirements which substantially affected the validity of the said elections; that none of the candidates in the said election can be validly returned as having validly won the said election. .
3. That the Osun State Governorship Election held on the 14th of April, 2007 be nullified or cancelled and the 4th Respondent is to conduct fresh elections for the office of the Governor of Osun state.
The Grounds upon which the Petition was brought are as follows: –
1. The 1st respondent was not duly elected by majority of lawful votes cast at the election and did not score 1/4 of the Lawful votes cast in 2/3 majority of the Local Government Areas of
Osun State where lawful votes were cast as required by the provisions of the Constitution and the Electoral Act, 2008.
2. No election was conducted in several polling stations and wards in the aforementioned Local Government Areas.
3. In the few areas where elections were held, the e1ections were disrupted by acts of
violence in several polling units and wards in the aforementioned Local Government Areas by acts of violence perpetrated on the voters by thugs and/or Law enforcement agents acting in concert with chieftains and members of the 3rd respondent on the said day of election.
4. Elections were not conclusive and votes were not counted and results were not recorded in FORM EC8A and were not announced and/or declared in most of the polling stations and wards in the aforementioned Local Governments due to disruption of voting exercise by acts of violence perpetrated on the voters by thugs and/or Law enforcement agents acting in concert with chieftains and members of the 3rd respondent on the election day.
5. Electoral materials, especially, ballot papers and ballot boxes were snatched, seized and later stuffed with illegal ballot papers thumb-printed in favour of the 1st and 2nd respondents by thugs and Law enforcement agents.
6. These ballot boxes with already thumb-printed papers were later returned and forcefully deposited at Local Government Area collation centres and were counted as valid votes on the Electoral FORM EC8A and Eventually announced in favour of the 1st respondent.
7.All the widespread disruptions, irregularitiesand/or malpractices referred to in this Petition were done with the express and/or Implied consent, authority or instruction of the 1st, 2nd and 3rd respondents acting severally or in concert.
The Respondent duly filed Replies to the Petition.
The petition was heard by Justices T. D, Naron, the Chairman, S. Mohammed, J. N. Akpughunum, A. T. Badamasi and J.E. Ekanem.
After pre-hearing formalities, trial commenced on 3/ 10/2007 with PW giving evidence and ended with the delivery of judgment on I5/7/2 008.
At the trial, the petitioner (1st Appellant) called 102 witnesses. Several documents were admitted as exhibits.
The 1st to 3rd respondents called 28th witnesses.
The 4th respondent (lNEC) did not call any witness. This was also the case with the 5th to 1,367th respondents.
They did not call evidence in support of their pleadings.
In a unanimous judgment delivered on 15/7/2008, the Tribunal entered judgment in favour of the 1st respondent as the Governor of Osun State.
Dissatisfied with the judgment, the 1st appellant filed an appeal on the 4th of August, 2008. But before the 4th August, 2008, the appellant had filed four Interlocutory Appeals. For ease of reference, I shall set out the Briefs filed by the parties.
1. Notice of Appeal filed on 9/5/08. Brief filed on 1/9/08.
2. Notice or Appeal filed on 29/7/08. Brief filed on 1/9/08.
3. Notice of Appeal filed on 29/7/08. Brief filed on 1/9/08.
4. Notice of Appeal filed on 3/3/08. Brief filed on 27/3/08.
Learned counsel for the 1st, 2nd and 3rd respondents filed their briefs on the substantive appeal on 15/9/08 and on the Interlocutory Appeals, briefs filed as follows: –
1. Brief filed on 15/9/08. It also contains a Preliminary Objection.
2. Brief filed on 15/9/08. It also contains a Preliminary Objection.
3. Brief filed on 15/9/08.
4. Brief filed on 4/4/08. It also contains a Preliminary Objection.
Learned counsel for the 4th–1365th respondents filed briefs on 8/10/08 on the substantive appeal.
No brief was filed on the Interlocutory Appeal.
Brief on the 2nd and 3rd Interlocutory Appeals were filed on 8/10/08 while Brief on the 4th Interlocutory Appeal was filed on 1/12/08.
Learned counsel for the 1366th -1367th respondents filed Brief on the substantive appeal on 17/2/09.
No briefs were filed on the Interlocutory Appeals.
The appellants filed Reply Briefs on 22/9/08, 10/12/08, 6/3/09.
The reliefs claimed by the appellants are: –
1. An order allowing the appeal.
2. An order setting aside the judgment and rulings of the Osun State Governorship and Legislative Houses Election Petition Tribunal, Holden at Osogbo which judgment and rulings were delivered on 15th July, 2008.
3. An order nullifying the judgment of the Tribunal dated 15th July, 2008.
4. An order directing a retrial of the petition.
5. An order remitting this petition to the President of the Court of Appeal and directing that the same be heard by a fresh Tribunal.
6. An order directing the President of the Court of Appeal to constitute a fresh Osun State Governorship Ejection Petition Tribunal for the purpose of hearing this petition afresh.
7. Further and or alternatively to 1,2,3,4,5 and 6 above.
An order that votes recorded and/or returned in the following Local Government Areas, namely;Atakumosa West Local Government Area, Boluwaduro Local Government Area, Ife South Local Government Area, Ifedayo Local Government Area, Isokan Local Government Area and Boripe Local Government Area do not represent Lawful votes in the Osun State Governorship election held on 14th April, 2007 and as having been obtained in vitiating circumstances of substantial non-compliance with mandatory provision of Electoral Act, 2006, violence and malpractices which substantially affected the validity of the said election, that none of the candidates in the said election can be validly returned as having validly won in the said affected Local Government Areas.
8. An order that the said Prince Olagunsoye Oyinlola was not duly elected by majority of lawful votes cast in the Osun State Governorship election held on 4th April, 2007 and that his election is void.
9. An order that Rauf Aregbesola was elected and ought to have been returned having scored the highest number of votes cast in the Osun State Governorship Election held on 14th April, 2007 and satisfied the requirements of Section 179 of the Constitution and Electoral Act.
10. An order that the 1st Petitioner/Appellant be declared validly elected or returned. Further and in the alternative to 7, 8, 9 and 10 above.
11. That the Osun State Governorship Election held on April, 14th 2007 is void on the ground that the election was not conducted substantially in accordance with the provisions of Part IV of the Electoral Act, 2008.
That the said Election was vitiated by substantial non-compliance with the mandatory statutory requirements which substantially affected the validity of the said elections that none of the candidates in the said election can be validly returned as having validly won the said election.
That the Osun State Governorship Election held on 14th of April, 2007 be nullified or cancelled and the 4th Respondent is to conduct fresh election for the office of the Governor of Osun state.
Learned counsel for the 1st -3rd respondents, Mr. Yusuf Ali, SAN and the learned counsel for the 1366th – 1367th respondents filed Notice of Preliminary Objection. Arguments on the preliminary objection were incorporated in their respective Briefs of argument. It is now the accepted practice to incorporate arguments on the preliminary objection in the Briefs; and I do allow this now. By so doing, there would be no need to file a separate Notice of Preliminary Objection, See Maigoro Vs. Garba (1999),10 NWLR (Part 624) P 570.
In the Preliminary Objections filed by learned counsel for the 1st – 3rd respondents. The grounds of the objection read as follows: –
1. The substratum of the complaint in grounds 3, 4, 7 and 31 relate to interlocutory decisions of the Tribunal and therefore not part of the judgment.
2. The appellants did not seek nor obtain any leave of Court to raise the purported grounds.
3. The said grounds are incurably defective, incompetent and liable to be struck out.
4. The other grounds of appeal are vague, prolix, verbose, unwieldy, argumentative and generally offend the provisions of the rules of the Court of Appeal.
5. Particulars subjoined to most of the grounds are unrelated to and independent of and extraneous to the grounds of appeal.
6. Some of the grounds are unintelligible, incomprehensible and
7. The Grounds or Appeal liable to be struck out for various reasons of incompetence.
8. The complaint in some of the grounds of appeal are directed at mere obiter as opposed to the ratio of the Tribunal decision.
9. The upholding of the objection would lead to the dismissal of the appeal.
Learned counsel for the 1366th -1367th respondents in his preliminary objection also prayed that the reliefs and grounds and all issues thereon be dismissed.
The grounds of the 0bjection are that: –
1. Grounds 3, 4 and 31 or the Grounds of Appeal do not relate to the judgment of the trial Tribunal.
2. Grounds 3, 4 and 31 relate to interlocutory decision and the Appellants did not file any Notice of Appeal against the said interlocutory decision/Rulings, neither is there any application for leave to appeal out of time and/or to raise issues of mixed facts and Law.
3. The Appellants’ case both at the Lower Tribunal and before this
Honourable Court does not justify the granting of the Reliefs prayed for.
Grounds 1, 2 and 3 of the 1st to 3rd respondents.
Preliminary Objection and Grounds 1 and 2 of the 1366th -1367th respondents’ Preliminary objections are saying the same thing. I shall take them together since they are allied.
It is necessary to reproduce the grounds of appeal for better understanding of the complaint.
The Honourable Tribunal erred in Law when in course of trial, it rejected a certified true copy of the Police final Security Report on the Governorship Election in Osun State dated 28/4/08 on the ground that the same was stamped “Secret” and was therefore not a public document.
The learned Judges of the Tribunal erred in Law in rejecting in evidence the certified true copy of the of the Final Security Report of the Nigeria Ploice4 Force on the 14th of April, 2007 Governorship Election in Osun state and thereby refused to give it its true probative value and to nullify both votes allegedly scored and the election in the 10 contested Local Government Areas of Osun State as sought by the 1st Appellant.
The Honourable Tribunal erred in Law when it held that it could not reverse and admit the Nigeria Police final Security/Intelligence Report on the election dated 28/4/2007 on the ground it would amount to sitting on appeal over its own ruling.
The Honourable members of the Tribunal erred in Law in proceeding to deliver the judgment on 15th July, 2008 when it had in the circumstances become improperly constituted, was no longer competent and had no more jurisdiction to do so, thereby rendering its judgment a nullity.
Learned counsel for the 1st to 3rd respondents observed that complaint in Ground 3,4, 7 and 31 reproduced above relate to interlocutory decisions of the Tribunal, contending that the appeal is incompetent since there is no right of appeal. Reliance was placed on: –
ORUBU VS. INEC (1988) 3 NSCC P 333.
OKON VS. BOB (2004) 1 NWLR (part 854) p. 378.
On grounds 3, 4 and 31, learned counsel for the 1366th-1367th respondents observed that they did not flow from the judgment of the trial Tribunal.
He submitted that a ground of Appeal that is not related to the judgment appealed against is incompetent and ought to be struck out. Reference was made to: –
ROBERT IKWEKI & ORS VS. JAMES EBELE & ANOR. 21 NSC QR p. 450.
SARAKI VS. KOTOYE (1992) 19 NWLR (Part 26) p. 156.
He urged the Court to strike out the incompetent grounds of appeal and the issues raised thereon. Responding, learned counsel for the appellant observed that complaints in Grounds 3 and 4 are complaints against wrongful rejection of evidence and that Ground 31 is an issue of jurisdiction.
Relying on ONWE VS. OKE (2001) 3 NWLR (Part 700) p. 406.
OBIAKOR VS. THE STATE (2002) 10 NWLR (Part 776) p. 612.
He submitted that a decision on admissibility is not an interlocutory decision but part of the main decision that can be raised as of right in the main appeal.
On Ground 31, he submitted that leave is not required to raise a fresh issue of jurisdiction on appeal.
The submission of both counsels on their preliminary objection is that grounds 3, 4 and 31 in the Notice of Appeal arose from interlocutory appeals, and that this court has no jurisdiction to hear interlocutory appeals on election petitions. The Court of Appeal hears only appeals from final decisions. That no leave was sought before filing the said grounds and the said grounds were filed outside the statutory period of 14 days.
GROUNDS 3 and 4 are grounds of appeal that the appellant consider to be wrongful rejection of evidence by the trial Tribunal.
My Lords, the position of the Law is that where the complaint of the appellant is that the ruling is concerned with the wrongful admission of evidence or the wrongful rejection of evidence, an appellant seeking to appeal does not need the leave of Court before he can appeal. The ground of appeal against the ruling can be included when appealing against the final judgment of the trial Court. See ONWVE VS. OKE (2001) 2 NWLR (Part 700) p. 406.
The complaint of the appellant in Grounds 3 and 4 of their amended grounds of appeal is that the trial Tribunal wrongly excluded the Certified True Copy of the Police Report in its Ruling on 15/5/08. In view of what I have been saying supra, Grounds 3 and 4 are competent Grounds of Appeal. The preliminary objection of the 1st-3rd and 1366th -1367th respondents on the said grounds is overruled accordingly,
The complaint in ground 31 is that members of the Tribunal had no jurisdiction to deliver judgment when it refused to disqualify itself in its Ruling delivered on 15/7/08,
The issue of jurisdictions is so fundamental to proceeding in Court that where there is no jurisdiction, the entire proceedings is a nullity.
Consequently, jurisdiction can be raised informally at any stage of the proceedings, although it is desirable that some process be filed so that the adverse party ‘is taken by surprise. Ground 31 is that process. No leave is required. The objection is misconstrued.
On the other ground or Appeal, learned counsel for the 1st to 3rd respondents observed that the appeal is incompetent on the grounds that Particulars are unrelated to or at variance with the grounds.
Particulars are argumentative, narrative, verbose, and/or unwieldy and the grounds are vague. Relying on Order 6 rules 2(3) of the Court of Appeal Rules, 2007,
ABDULLAHl VS. OBA (1995) NWLR (Part 554) .420.
ADELEKE VS. ASANI (‘2002) S NWLR (Part 768) p.26.
Counsel submitted that the grounds of appeal should be struck out; and said this was n not a ground of objection in the Preliminary Objection filed by learned counsel for the 1366th-1367th respondents.
In response, counsel to the appellants observed that the grounds do not offend Order 6 rules 2(2) and 3 of the Court of Appeal Rules, 2U07. Referring to: ADELEKE VS. ASANI (2002) 8 NWLR (Part 768) p. 26 cited by Mr. Yusuf, SA N. Mr. Kola Awodein, SAN observed that the case was not applicable as it is on grounds of appeal which are not clear enough to enable the other party and the Court appreciate the complaint of the appellant. He relied on ADEROUNMU VS. OLOWU (2000) 4 NWLR (Part 652) p. 253.
Contending that the submissions of learned counsel for the 1st-3rd respondents are clearly misconceived.
My Lords, Older 6 rule 2(3) or-the Court of Appeal Rules 2007 states that;-
(3.) The notice of appeal shall set forth concisely and under distinct heads the ground upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
3. A ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its
own motion or on application by respondent.”
Where there is non-compliance with the above stated provisions this Court has jurisdiction to strike out any or all of the grounds of appeal.
This discretion must be exercised judicially and judiciously. That is to say the discretion must be exercised with correct and convincing reason,
ICC LTD. VS GRANVILLE & ORS LTD. (1996) 8 NWLR (Part 405) p. 187.
My Lords, I have diligently examined the grounds of appeal and I am satisfied that they are not vague, argumentative, neither are the Particulars at variance with the grounds, rather the grounds relate to exactly the complaints of the appellant at the trial Tribunal. These grounds as with all grounds of appeal have given good notice and information to the respondents of the exact nature of the appellant’s grievances/complaints.
Once the ground of appeal satisfies the purpose, it should not be struck out; and I will not strike it out.
ADEROUNMU VS. OLO\VU (2002) 4 NWLR (Part 625) p. 253, a Supreme Court decision is clear on this point.
Submission of learned counsel for the 1st-3rd respondents arc hereby overruled.
Finally learned counsel for, the 1366th -1367th respondents raised a third ground of objection and it is that the appellant does not justify the granting of the Reliefs prayed for. On this I say it would be premature and impossible at this stage to address this ground of objection. The grant of a reliefs can only be properly considered after the appeal has been heard. The said ground is clearly incompetent. In sum, both preliminary objections lack merit.
They are overruled.
On the 11th of March, 2009, learned counsel for the appellants, Mr. Kola Awodein, SAN moved a Motion before us wherein he sought an order to consolidate his four Interlocutory appeals with the substantive appeal. The application was granted by this Court. Thereafter, learned counsel for the appellants adopted his brief.
He urged us to admit the Police Security Report and Forms EC8D and nullify the votes in ten Local Government Areas, contending that it if this is done, the 1st appellant t would be the clear winner of the elections.
Mr. Y, Alli, learned counsel for the 1st, 2nd and 31d respondents adopted his briefs and observed that the appellant was unable to prove any of his claims. On the documents that were marked Rejected, he submitted that they were useless and worthless; he said the appellant failed to tender and exhibit the election results.
In conclusion, he submitted that there is nothing in this case for section 15 of the Court of Appeal Act to declare the appellant winner.
Reference was made to OBI VS INEC11 NWLR (Part 1046) p.505. He urged us to dismiss each of the grounds of appeals.
Learned counsel for the 4th-1365th respondents and observed that INEC did not call any witness because the appellant failed woefully to prove his case. He adopted Mr. Y. Alli’s submission and further observed that the appeal should be dismissed.
Learned counsel for the 1366th- 1367th respondents adopted his brief and urged us to dismiss the appeal.
In his reply on points of Law, Mr. Kola Awodein, SAN referred us to the definition of polling agent in the Manual for election officials, 2007.
My Lords, 1 have examined the issues formulated by the parties and I consider issue NO.3 in the appellants amended brief of argument and the issues in the Interlocutory appeals to be crucial and important, they being on rejection of evidence, procedure and the discretionary powers of a trial
Judge. I shall now consider Issue No.3. It reads: –
“Whether the Tribunal was right when it rejected in evidence a certified
True copy of the Police Final Security Report on the Governorship election in
Osun State dated 28/4/08 on the ground that the same was stamped “Secret” thereby
causing a serious miscarriage of justice”.
Before I examine the merit of this issue, I wish to consider the objection raised by learned counsel for the 1st- 3rd respondents on the issue. Learned counsel for the 1st – 3rd respondents observed that the grounds from which the issue is distilled is predicated on an interlocutory ruling. He contended that the grounds are incompetent. He adopted the legal arguments already reproduced in this judgment. Issue No.3 examines whether the trial Tribunal was right or wrong to reject the Police Final Security Report on the Governorship election in Osun State.
On 15/5/2008, the learned counsel for the appellant, Mr. Kola Awodein, SA N sought to tender from the Bar the Police Final Security Report and some other documents, this was in the course of trial.
He was unsuccessful; because the Court overruled him.
In a Ruling delivered on the same day, the Tribunal rejected the exhibit and marked the document Rejected. It is now the contention of learned counsel for the 1st-3rd respondents that the said Ruling is interlocutory, and there was failure to comply with the statutory requirements for the riling of such appeals and in any case, Appeals Tribunal deals only with appeals from final decisions.
I have said earlier in this judgment that the rejection by the Tribunal of the Police Final Security Report is an issue on whether the said Report. was wrongly rejected, and in such cases, leave is not necessary before appeal on it can be taken. The appellant may include the ground of appea1 against the ruling of the trial Tribunal when appealing against the final judgment.
In this case, that was what the appellant did. He has included the ground of appeal against the Ruling wherein the Report was rejected in the main appeal as grounds 3 and 4 and formulated Issue 3 thereform. Issue No. 3 is thus very much in order. 1 wish at this stage to state the position of Law on Interlocutory appeals in election petition cases.
In election petition cases, there has been fluctuations in opinion on whether a dissatisfied party can appeal from a decision made in the course of an election petition trial or whether only a final decision on the merit is appeal able. See:
OKON VS. BOB (2004) 7 NWLRL (Part 854) p. 378
USANI VS. DUKE (2004) 7 N\VLR (Part 871) p. 116
These are the decision of the Court of Appeal.
In AWUSE VS ODILI (2003) 18 NWLR (Part 851) p.116
The Supreme Court made pronouncements on the issue of appeal able decisions from decisions of the
Governorship and Legislative Houses Election Tribunal to the Court of Appeal and in the process examined the provisions of Section 233(2) and 146(2)(b) of the 1999 Constitution and laid to rest the matter once and for all that “decision” as bas been defined under Section 318 of the 1999 Constitution included interlocutory ruling in any proceeding. ‘Okon’s case and Usani ‘s case were decided on 31/712003 and I 5/1 112003 respectively before the decision in Awuse on 28/11/2003.
In the light of the decision of the Supreme Court in AWUSE VS. ODILI (supra) decision as defined under Section 318(1) of the 1999 Constitution makes no difference between an interlocutory decision and a final decision in an election petition. In the circumstances an objection to an appeal from an interlocutory decision is clearly misconceived, all that the appellant needs do is include the ground of appeal against the interlocutory
decision in the substantive appeal. It is now time to consider Issue No. 3
Learned counsel for the 1st – 3rd respondents observed that the Tribunal was right to reject the Police final Security Report when the learned counsel for appellants sought to tender it as an exhibit, and the Tribunal was also right to refuse to admit it as an exhibit after it was marked Rejected.
Reliance was placed on; NIGIGE VS. OBI (2006) 14 NWLR (Part 999) p.1, that the trial
Tribunal could not overrule itself since the decision to reject the document is unassailable. Learned counsel observed that the document is a security document that is highly classified, and that though it is certified, it is not a public document. Reliance was placed on;
SHYLLON VS. UNIVERSITY OF IBADAN (2007) 1 NWLR (Part 1014) p. 1 and
GOVERNOR OF EKITI STATE VS. OJO (2006) 17 NWLR (Part1007) p. 95
He further observed that this Court can admit document as an exhibit only if it was made part of the Record of proceedings of the lower Court. Relying on – EZEWUZIN VS. OKOH (1993) 5 NWLR (Part 294 – 478).
He submitted that the said document is not part of the Record or Proceedings of the lower Court and so could not be admitted on appeal by this Court.
Concluding his submissions, learned counsel observed that the decision of the Tribunal would have been the same even if the said Report had been admitted. He contended that the
Report would have been accorded
no weight being documentary hearsay since the maker is unknown, nor testified before the Tribunal. He further observed that the information in the Report was substantially exaggerated and that the content of the report to a considerable extent is outside the pleading.
Learned counsel for the 4th -1365th respondents and learned counsel 1366th -1367th respondents made no submission on the said Report in their respective briefs.
In his submissions, learned counsel for the appellants observed that the Police Security Intelligence Report is a public documents. He referred to Section I09(a)(iii) of the Evidence Act.
UTB NIG. LTD. VS. UKPABI (2000) 2 NWLR (Part 670) p. 570.
He further observed that the said document being a certified true copy of a public document is admissible without calling a witness or laying any foundation. Reliance was placed on –
ANATOGU VS. lWEKA (1995) 8 NWLR (Part 415) p. 547.
Appellants’ counsel submitted that the Report is admissible in evidence, notwithstanding that it is marked “Secret” because it contains a report of the widespread cases of malpractices, thuggery, violence, ballot snatching and stuffing, obstruction and intimidation of voters, facts relevant to this petition/appeal.
Concluding his submission, counsel submitted that if the Report had been admitted the decision would have gone in favour of the appellants. He urged us to answer Issue 3 in the negative. Relevant extracts from the proceedings in the trial tribunal on 15/5/2008 read as follows: –
Awodein, SAN………I wish to consider from the Bar two documents;
“1. Report of the Police Monitoring group from Abuja, It is a CTC of it.
In urging the Tribunal to admit the report, I wish first to rely on the decision of this
Tribunal in the case of Hon. Julius S. O. Akinremi Vs. Mr. Binuyo & 36 others-
Petition No. HA/EPT/05/8/2007 delivered on 28/9/2007 when the Tribunal held that
The Certified True Copy of a Public Document is admissible and could be tendered from
the Bar. I urge the Tribunal, in the same vein to admit this document which is pleaded and
which meets the requirements of the Law. I urge the Tribuna1 to hold itself bound by the
decision in that Case………”
In a considered ruling delivered on the same day (15/5/08), the Tribunal noted that the Report is marked “Secret” relied on the cases-
SHYLLON VS. UNIVERSITY OF IBADAN (2007) 1 NWLR (Part 1014) p. 15 and
GOVERNOR OF EKIT) STATE VS. OJO (2006) 17 NWLR (Part 1007) p. 95 and concluded as follows:-
…………… the Tribunal holds that the report sought to be tendered is not a public document and cannot be tendered from the Bar even though certified. The document is therefore rejected and shall be so marked.
My Lords, 1 must state straight away that a document marked Rejected can not be tendered again in that trial. Put in another way, once. a document is marked rejected it stays rejected for the purposes of the trial in which it was marked rejected and the defect cannot be cured during the said trial. See:-
AGBAJE VS. ADIGUN & OTHERS (1993) 1 NWLR (Part 269) p. 271
BELLO VS. GOV. OF KOGI STATE (1997) 9 NWLR (Part 521) p. 520 .
This Court, by virtue of Section 15 of the Court of Appeal Act-1976 has the jurisdiction over the proceedings in the trial Tribunal. That is to say this Court can make any order or give judgment which the trial Tribunal ought to have made or given. See:-
UNION BANK OF NIG. PLC VS. SPARKLING BREWERIES LTD. (1997)
3 NWLR (Part 491) PT. 589, p. 267
NTEOGWUIJA VS. IKURU (1998) 10 NWLR (Part 589) p. 267
It is now our duty to examine whether the trial Tribunal was right to mark the Report Rejected. I quote here examples of the documents. The Report is titled:-
“Final Security Report on April, 14th 2007, Gubernatorial/House of Assembly Elections in Osun State.”
It emanates from B Department Operations of the Inspector General of Police Office in Abuja. Its Reference No. is CL: 2341/B Dept/FhQQ/Vol.29/113 dated 28/4/07. It is marked Secret and it is a Certified True Copy. It is signed by C.S.P Ahmed Muhammed (Team Leader).
Section 1099(a) (iii) of the Evidence Act Stated that:-
109 The following documents are public documents-
(a) documents forming the acts or records of the acts –
(iii) of public officers, Legislative, judicial and executive, whether
in Nigeria or elsewhere and by virtue of the provisions of’ Section 111 of the evidence Act, a certified true copy public document becomes admissible under Section 112 of the evidence Act as proof of the contents of the original.
A document is a public document if:-
(a) It was made under a strict duty to inquire into all the circumstances
(b.) It was concerned with a public matter although the public matter need not be the concern of the entire community.
(c) It is meant for public inspection.
A public document is thus a document that is made for the purpose of the public or at least a section of the public making use of it.
The Final Security Report on the Governorship election in Osun State was made by a Police Officer under a strict duty by the Inspector General of Police to inquire into the conduct of the elections. The said document marked Rejected is a Public document. The position of the Law is that once a public document is signed and certified as required by Section 110, 112 of the Evidence Act, it becomes admissible on production, and it is not necessary to call a witness to prove custody or to verify the document. See:-
ANATOGU VS. IWEKA (1995) 8 NWLR (Part 415) p. 547.
AGAGU VS. DAWODU (1990) 7 NWLR (Part 160) p. 56.
ANYAKORA VS. OBISKOT (1990) 2 NWLR (Part 130) p. 52.
Such a document can be tendered from the Bar by the counsel who produced it.
See OGBUINYINYA VS OBI OKUDU (9179) 6-9 sc p.24.
This is so because the Court presumes such a document to be genuine. See section 114(1) and (2) of the Evidence Act.
Once a document is certified, the court ought to accept the authenticity of its contents. The final Security Report is a Certified True Copy of the original. A document marked Secret usually concerns affairs of State. State privilege. “Section 219(1) provides that the Minister, or in respect of matters to which the executive authority of a State extends, the governor of a state or any person nominated by him, may in any proceedings object to the production of documents or request the exclusion of oral evidence, when after consideration, he is satisfied that the production of such document or the giving of such oral evidence is against public interest; any such objection taken before the trial shall be by affidavit and if at trial then by a certificate produced by a public officer.
Subsection (2) goes on to say that an objection so taken, whether by affidavit or certificate is conclusive and the Court shall not inspect such document. The court shall give effect to the affidavit or certificate……”
This provision. apparently makes the decision of a functionary named there as to the exclusion of evidence on grounds of state privilege or that the document is marked SECRET, final and the Courts cannot inquire.
This is not tenable in view of the provisions of Section 36(1) of the Constitution which states that in the determination of his civil rights and obligations, a person shall be entitled to a fair hearing within a reasonable time by a Court or Tribunal. A trial cannot be fair when document necessary for determination of her civil right is excluded for her trial.
For a trial to be fair as envisaged by the Constitution, it is important that before a party is denied the use of a document vital to his case, the public interest involved in its exclusion should be dispassionately weighed against the injury thereby caused to the litigant as to determine which way the balance tilts.
In CONWAY VS. RIMMER (1968) 2 WLR P.998, the House of Lords held that the Courts have powers to order production of a State document and to overrule the ministers’ decision to withhold it on ground of privilege if such a course is dominantly necessary to ensure the proper administration of justice.
My’ Lords, in this case, no functionary of State ordered the Report withheld. The said Report is necessary to ensure the proper administration or justice. This is so because the Report is on the state of affairs on Election day in Osun State in some of its Local Governments, and the observations therein if proved, supports the appellant’s pleadings, The two cases, to wit: –
SHYLLON VS. UNIVERSITY OF IBADAN (supra) and
GOVERNOR OF EKITI STATE VS. OJO (supra) relied on by the Tribunal are not helpful since the Report here concerned a community/public while the documents in the cases above concerned the affected lectures. In EZEQUZIM VS. OKOH (supra) is also irrelevant since the Report is part of the Record of Proceedings. See page V111 of Volume 1 of the Record of Proceedings.
I am satisfied and hold that rejecting the Report was wrong. I say so because according to the pleadings of the appellants, they are contesting the Results in twelve of the thirty Local Government Areas, having conceded that the elections were properly conducted in eighteen Local Government Areas.
The Report, being the observations of the Police on the conduct of the elections in most of these twelve Local Government Areas is a relevant document. The issue in the petition/appeal is the conduct of the elections in the twelve Local Government Areas. They are: –
1. Atakumosa West Local Government Area.
2. Aiyedaade Local Government Area.
3. Boluwaduro Local Government Area.
4. Boripe Local Government Area.
5. Ede Local Government Area.
6. Ife Central Local Government Area.
7. lfe East Local Government Area.
8. Ife South Local Government Area.
9. Ifedayo Local Government Area.
10 Isokan Local Government Area.
11. Odo Otin Local Government Area.
12. Ola Oluwa Local Government Area.
On 22nd day of May, 2007, on an application by the appellants (as petitioners, the Tribunal granted an order directing INEC and the Resident Electoral Commissioner T (the 4th and 5th respondents) to make available for
inspection by the Petitioner’s counsel all polling documents ballot papers and other electoral materials in their custody which were used for the conduct of the Gubernatorial election in Osun State. This was done according to the Tribunal for the purpose of enabling the applicants to maintain their petition against the respondents. See Vol. VII page 307 of the
Record of Appeal.
On the 10th of August, 2007, the appellants (as petitioners) brought another application wherein they sought two reliefs. Its reads: –
1. Leave and order of this Honourable Tribunal permitting the Petitioner forensic experts to inspect by way of machine/electronic scanning, all ballot papers which were used for the conduct of the Governorship election in Osun State on 14/4/2007 in the following Local Government Areas: –
(a) Atakumosa West Local Government Area.
(b) Aiyedaade Local Government Area.
(c) Boluwaduro Local Government Area.
(d) Boripe Local Government Area.
( e) Ede Local Government Area.
(f) Ife Central Local Government Area.
(g) Ife East Local Government Area.
(h) Ife South Local Government Area. .
(i) Ifedayo Local Government Area.
(j) Isokan Local Government Area.
(k) Odo Otin Local Government Area.
(1) Ola Oluwa Local Government Area.
2. Leave and order of this Tribunal permitting handwriting and forensic experts to conduct an inspection of FORMS EC8A, EC8B, EC8C, EC8D, EC8E and all forms and material used for the conduct of the Governorship election in Osun State on 14/4/2007 in the aforesaid Local Governments.
The application was granted on 14/8/2U07.
And so there was compliance with these orders. On completion of the exercise the Petitioners (appellants) brought an application praying for:-
1. An order granting leave of the Petitioners/Applicants to bring and move the application outside pre-hearing session of the Tribunal.
2. All Order granting the Petitioners an extension of time within which to seek Leave to file, serve and rely upon in the prosecution of this petition additional documents and witness statement on oath of Adrian Forty who has been listed as a witness for the Petitioners as at the time of presentation of the petition.
3. An order granting the Petitioner an extension of time within which to file and serve written statement on oath of Adrian Forty who has been listed as a witness for the Petitioner as at the time of filing the petition.
4. An order deeming as having properly filed and served the witness statement on oath of Adrian Forty and the accompanying documents referred to in the affidavit in support of this application and separately filed along herewith the necessary fee having been paid.
In a Ruling delivered on 18/2/2008, the Tribunal dismissed the application. On 16th of April, 2008, the petitioner brought another application, this time praying for the following orders:-
1. An order granting leave to the Petitioner/Applicants/Appellants to bring and move this application outside Pre-Hearing Session of the Tribunal.
2. An order for extension of time to include Tunde Yadega as one of the witnesses of the Petitioner/ Applicants/Appellants.
3. Leave and order of this Honourable Tribunal permitting the Petitioners/ Applicants/Appellants to call Tunde Yadega as an additional witness.
4. An order granting the Petitioners/Applicant/Appellants an extension of time within which to file, serve and rely upon written deposition of Tunde Yadega together with Exhibits attached thereto.
5. An order deeming as having been properly filed and served the witness statement on oath of Tunde Yadega together with Exhibits attached thereto and referred to in the affidavit in support or this application and separately filed along herewith the necessary filing fees having been paid.
6. And for such other or further orders as this Tribunal may deem fit in the circumstances of this application.
The application was moved and the Tribunal in a Ruling delivered on the 28th of April, 2008, dismissed the application in its entirety.
Two interlocutory appeals were then filed by the Petitioners/Appellants. They are Notice of Appeal filed on 9/5/2008 and 3/3/2008. Briefs in respect of both appeals were filed by the appellants 011 1/9/2008 and 27/3/2008.
Briefs were filed by learned counsel for the 1st, 2nd and 3rd respondents on 4/4/2008 and 15/9/2008 while learned counsel for the 4th – 1365th respondents filed briefs on 27/5/2008 and 8/10/2008.
Learned counsel for the 1366th -1367th respondents did not file any Brief on these two interlocutory appeals. Both appeals shall be taken together
I have diligently examined all the briefs filed on the two interlocutory appeals and I am satisfied that the central issue for determination is:
Whether the Tribunal correctly exercised its discretion by dismissing both applications?
Indeed this Court has power to adopt or formulate issues that would determine the real grievance in an appeal. See
IKEGWUOHA VS. OHA WUCHI (1996) 3 NWLR (Part 434) p. 146.
ADUKU VS. ADEGOH (1994) 5 NWLR (Pad 346) p. 582.
Learned counsel for the appellants argued that the refusal of the Tribunal to grant the application was perverse. He submitted that the tribunal did not exercise its discretion judicially and judiciously contending that this is a proper case for this Court to interfere, Counsel relied on: –
ATOLAGBE VS. SHORUN (1985) 2 NWLR (Part 360) /375.
UNIVERSITY OF LAGOS VS. AlGORO (1985) 1 NWLR (Pt.1) p.143.
Learned counsel for the 1st, 2nd and 3rd respondents submitted that the Tribunal exercised its discretion judicially and judiciously in refusing the application of the appellants. He observed that the case of University of Lagos Vs. Aigoro (supra) does not enure in favour of the appellants since the Tribunal took all relevant materials into consideration before dismissing the application.
Concluding his submission, he contends that no injustice has been occasioned by the appellants who have failed to present their case properly. Reliance was placed on FOLARIN VS. ABRAHAM (2005) 10 NWLR (Part 881) p.434 and M.M.S. LTD. VS. OTAJU (2005) 14 NWLR (Part 954) p. 517.
Learned counsel for the 4th-1365th respondents observed that the Tribunal properly exercised its discretion, it is not the province of this Court to interfere. He submitted that the Tribunal exercised its discretion properly by dismissing both applications. In the Interlocutory appeals, CA/I/EPT/GOV./98/2008, the reason given for dismissing the application is that Section 159 of the Electoral Act does not contemplate the bringing of inspection report/evidence of inspection of polling documents to be admitted in evidence. It further held that it did not make an order that the inspection report be brought to the Tribunal.
In Interlocutory appeal CA/I/EPT/GOV./31/ 2008 the Tribunal dismissed the application because it was of the view that no extreme circumstance existed to warrant the grant of the leave sought.
In the first interlocutory appeal-supra, the application was brought under section 159(1) of the Electoral Act, 2006. It reads: –
An order for an inspection or polling document or an inspection of a document or any other packet in the custody of the Chief National electoral Commissioner or any other officer of the Commission may be made by the Election tribunal or the Court if it is satisfied that the order required is for the purpose of instituting or maintaining an election petition.
The above provision enables a petitioner to inspect documents in the custody of INEC for the purpose of instituting or maintaining an election petition. To my mind, it is so obvious that the intention of the Legislature is that evidence obtained upon the orders for inspection/scanning will support the petition. Dismissing the application shuts out the result of the scanning and inspections which the same Tribunal earlier ordered. This is wrong.
This Court will not interfere with the way a trial judge exercises his discretionary power but will be quick to interfere if the Court is satisfied that the discretion was wrongly exercised or the exercise was tainted with some illegality or substantive irregularity or that it is the interest of justice to do so. See:
CAEKAY TRADERS LTD VS. GEN. MOTORS LTD. (1992) 2 NWLR (Part 122) p. 132.
ANYAH VS. A.N.N. LTD. (1992) 12 NWLR (Part 583) p. 632.
AKUJINWA VS. NWAONUMA (1998) 13 NWLR (Part 583) p. 632.
My Lords, in this appeal, I find I am compelled to interfere in the way the Tribunal exercised its discretion. It is necessary to avoid a perverse judgment. All the documents that the petitioners/appellants sought to bring to the Tribunal were refused by the dismissal of applications, which ought to have been allowed in to enable the petitioners/appellants support the petition.
I have observed that in election petition cases, oral evidence and/or the demeanour of witnesses are not as important and decisive in settling the issues as documentary evidence tendered. Documents used in an election and all documents containing facts relevant to the issues in a petition are the best form of evidence for resolving election matters . On no account should a party be denied the opportunity to place before the Court all the documents that would assist him in proving his case; a defence of name.
In NWOBODO VS. ONOH (1984) 2 SC NLR P.1, the Supreme Court obse rved that: -“Election petitions are by their nature peculiar from any other proceedings……. it is the duty of the Court therefore to endeavour to hear them without allowing technicalities to unduly batter their jurisdiction.”
In my view, the need to do substantial justice is greater in an election petition case than in cases between any other case. This is so because the Court is not only concerned with the rights of the parties inter se but also the larger interests and the rights of the people in the various Local Government Areas who had exercised their franchise on election day. Election petitions must always be handled with elasticity. See CHIA VS. UMA (1998) 7 NWLR (Part 556) P. 98.
Too much technicality should be avoided; but not at the expense of our general Law.
Rejection of FORMS EC8D, EC8E.
In the proceedings on 18/4/2008, learned counsel for the petitioners/appellants had this to say to the Tribunal:
“The next set of items we would like to tender is item 1 which is Forms EC8A, EC8B, EC8C, EC8D and EC8E. These have been jointly inspected and agreed to be tendered by consent.”
Well over 100 documents were tendered. Petitioners/Appellants’
counsel forgot to tender Forms EC8D and EC8E. He claims inadvertence. Of what harm is a document that all parties agree could be admitted as exhibit? The Tribunal was clearly in the wrong to refuse to admit in evidence as exhibits Forms EC8D and EC8E.
In MOHAMMED VS. KANO N. A. (1968) 1 ALL NLR (P. 424), Ademola CJN stated the test for fair hearing. He said:
“It has been suggested that a fair hearing does not mean a fair trial.
We think a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing.
We therefore see no difference between the two. The true test of fair hearing it was suggested by counsel is the impression of a reasonable person who was present at the trial whether, from his observation, justice has been done in the case. We here feel obliged to agree with this. See also ANPP VS. INEC (2004) 7 NWLR (Part 871) p.16.
In my view, the impression of a reasonable man would be one of surprise as to why vital documents to maintain the petition were not allowed as exhibits in the proceeding. Miscarriage of justice is a failure of justice and it varies from case to case depending on where it fails. Once what occurs in trial is not justice according to Law, a miscarriage of justice has occurred. See:-
H. OKONKWO VS. G. UDOH (1977) 9 NWLR (PART 519) P. 16.
ANPP VS. INEC & ORS (2004) 7 NWLR (PART 871) P. 16.
NNAJIOFOR VS. UKONU (1986) 4 NWLR (PART 36) P. 505.
The rejection of documentary evidence to wit: Police Security Report, Forms EC8D, EC8E and the Rulings of the Tribunal on 18/2/2008 and 28/4/2008 wherein the petitioner/appellant was denied the use of vital documents to support the petitioner’s case amounts to a miscarriage of justice.
By virtue of the provisions of Order 4 Rule 9 of the Court of Appeal Rules 2007, this Court has the power to order a new trial. In OKOMAH VS. AKINBODE (2006) 9 NWLR (Part 985) P. 338, the Supreme Court stated the instance when an Appeal Court will not make an order of retrial:
1. Where a retrial will result in injustice or a miscarriage of justice
2. Where it is sought as a matter of course, routine or fun and not based on valid procedural reasons.
3. If there is no special circumstances warranting retrial.” These are some but not all the instances when the appellate Court will not order a retrial, but will order retrial when a judge misdirects himself as to the nature of a party’s case or upon wrongful admission or rejection of material evidence, or/and to refuse a retrial would occasion a greater injustice than the grant of it.
I am satisfied that substantial justice would be achieved by a retrial where all the parties are given the opportunity to present before the Court documentary evidence to maintain/or support his petition.
In the light of all that has been said in this judgment, the President of the Court of Appeal is hereby directed to constitute a fresh Osun State Governorship Election Petition Tribunal for the purpose of hearing this petition afresh.
VICTOR AIMEPOMO O. OMAGE, OFR
JUSTICE, COURT OF APPEAL.
Charles Edosomwan, SAN, Deji Sasegbon, SAN,
Adewale Afolabi Esq., Adetunji Ajagbe, Esq.,
Jide Omoworare Esq., Kunle Adegoke Esq.,
Gbenga Akano Esq., Ajibola Basir Esq.,
Olusegun Olatoye Esq., M.B.O. Ibrahim Esq.,
Olayinka Okedara Esq., Yinka Ajayi Esq.,
Nath Agunbiade Esq., Adewumi Oke Esq.,
T. A. Abdul-Wahab Esq., Kayode Tinubu Esq.,
Tayo Olatubosun Esq., Kolapo Alimi Esq.,
Daud Akinloye Esq., Tope Adebayo Esq.,
Osumah Charles Esq., Dapo Akinosun Esq.,
Olufemi A. Ifaturoti Esq., Ayo Olugbenro (Mrs), .
Kunle Abass Esq., Lanre Obadina Esq., W.A. Salman Esq. for the Appellants;
Yusuf Ali, SAN, Otunba Kunle Kalejaiye, SAN,
N.O.O. Oke, SAN, J.A. Ogundere Esq.,
Esq., ChiefYomi Alliyu, Wole Olukanmi Esq.,
Tewo Lamuye Esq., Tope Elusogbon Esq.,
Kunle Akinyemi Esq., Adebisi Raimi Esq.,
Luwole Adeosun Esq., K. K. Eleja Esq.,
A. Olaoba-Efuntayo Esq., Prince Odogiyan A.,
Olaitan Olabode Esq., Sola Ajayi Esq.,
Kehinde Adesiyan Esq., Oluwole Kupoluyi Esq.,
Jola Akintola Esq., Kanmi Ajibola Esq.,
Kose Adewolce Esq., Ademola Adeyemo Esq.,
Wahab Ismail Esq., Yemi Giwa Esq., E. Ekpo Esq.,
Adetunji J. Muraina Esq., Bola Ogungbe Esq.,
1. O. Babakekere Esq., Thelma Otaigbe Esq.,
O. A. Oyeleke Esq., N. N. Adegboyega Esq.,
Yakub Dauda Esq., Tolulope Omidiji Esq. for the 1st, 2nd & 3rd Respondents;
J. K. Gadzama, SAN with R. O. Yusuf for the 4th _1365th Respondents.
Hon. Niyi Owolade (Att-General of Osun State),
Alh. K.M. Akano (Solicitor Gen. of Osun State),
A. A. Adewemimo Esq. ( Director of Public Prosecutions),
A.O. Adeniji Esq. (Director of civil litigation),
Jide Obisakin Esq. (Chief’ State Counsel),
Funmi Lamuye Esq. (S. A. Legal Matters),
Tijani Adekilekun Esq. (Principal State Counsel),
Leke Fadeju Esq, (Senior State Counsel),
J.A. Abiboye Esq. (Senior State Counsel) for the 1366th & 1367th Respondents.
ABUBAKAR ABDULKADIR JEGA, JUSTICE, COURT OF APPEAL.
CA/I/EPT /GOV./98 /08
MOHAMMED LADAN TSAMIYA, JUSTICE, COURT OF APPEAL.
RAPHAEL CHIKWE AGBO, JUSTICE, COURT OF APPEAL
BODE RHODES-VIVOUR, JUSTICE, COURT OF APPEAL.