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APPEAL COURT JUDGMENT ON EKITI GUBER ELECTION PETITION

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This is an appeal against the majority judgment of the Ekiti State Governorship and Legislative Houses Election Tribunal delivered by Hon. Justice's Hamman Barka (Chairman), S. U. Dikko and M. B. Goji delivered on 5th May, 2010. In the judgment contained at pages 4631-5063 of the record of appeal, the learned majority judges dismissed the petition of the Appellants herein.

Dissatisfied with that judgment of the lower Tribunal, the appellants have appealed on 24 grounds of appeal in the Notice of appeal spanning pages 5948 to 5972 of the record, and contained in Volume VII.

The complaint from which this appeal arose emanates from the supplementary elections conducted by the 3rd and 4th respondents on 25th April, '2009 and 5th May, 2009. The said supplementary elections are in respect of office of governor of Ekiti State. For a clear understanding, it is important to give a succinct summary of the facts leading to the above supplementary election.

It is common knowledge that gubernatorial elections were held throughout Nigeria on 14th April, 2007, Ekiti State inclusive. At the end of this election, the candidate of the Peoples Democratic Party (PDP), Olusegun Adebayo Oni was declared and returned as the winner of the election by the 3rd and 4th respondents. Consequent upon this declaration and return, the 1st petitioner who is to be called the 1st appellant herein, challenged the election of Olusegun Adebayo Oni as the Governor of Ekiti State before the then National Assembly, governorship and Legislative Houses Election Petition Tribunal sitting in Ado-Ekiti on diverse grounds.

The Election Tribunal in its considered judgment of 28th August, 2008 dismissed the petition. Dissatisfied with the judgment of the Election Tribunal, the 1st Appellant appealed against the judgment to the Court of Appeal. The Court of Appeal sitting in Ilorin in its penultimate judgment delivered on 17th February, 2009 allowed the appeal in part and ordered that a supplementary election be conducted in named sixty-three wards spreading across ten (10) Local Government Areas of Ekiti State. It added that the results of the election in the six (6) uncontested Local Governments (including Ilejemeje) would remain as declared by the Independent National Electoral Commission (INEC) and shall be added to the result of the ordered supplementary elections when conducted.

In compliance with the order of the Court of Appeal, the Independent National Electoral Commission (3rd Respondent herein) on 25th April, 2009 and 5th May, 2009 conducted supplementary elections in the 63 wards spreading across ten (10) Local Government Areas as contained in the judgment of the Court of Appeal. Both the 1st appellant (Dr. John Olukayode Fayemi) and the 1st Respondent (Olusegun Adebayo Oni) contested this supplementary elections.

While the 1st appellant on the one hand contested under the platform of Action Congress which is the second petitioner also to be known as the 2nd appellant herein, the said 1st respondent on the other hand contested under the platform of the Peoples Democratic Party (PDP). Eleven (11) other political parties participated and sponsored candidates at the said election. At the end of the supplementary elections, the 3rd and 4th respondents after adding the votes obtained by the respective political parties in the supplementary elections as well as that obtained in the six (6) Local Governments not affected by the supplementary elections, declared and returned the 1st respondent as the winner having said to have polled the highest votes of 111,140. The 1st appellant came 2nd with total votes of 107,017.

Being aggrieved by the declaration and return of the 1st respondent as the Governor of Ekiti State, the appellants through their counsel, Mallam Yusuf O. Ali SAN filed a petition the 2nd June, 2009. The grounds and facts upon which the petition was anchored are as adumbrated in paragraph 42 at page 49 Vol.1 of the record wherein the petitioner alleged that:

'That 1st respondent is not duly elected by the majority of lawful votes cast at the election.

The election and return of the 1st respondent is invalid by reason of corrupt practices and/or non compliance with the provisions of the Electoral Act 2006.'

Particulars were given predicating and supporting the grounds of the petition wherein the following reliefs were sought in paragraph 133 at pages 85 and 86 of the record of appeal.

WHEREOF the petitioner prays:-
' (i) That it may be determined and doth declared that the 1st respondent Olusegun Adebayo Oni who was the candidate of the 2nd respondent was not duly elected or returned by the majority of lawful votes cast at the Ekiti State supplementary elections held on 25th April, 2009 and 5th May, 2009.

(ii) That it may be determined and doth declared that the said election and return of the 1st respondent, Olusegun Adebayo Oni are voided by acts which clearly violate and breach the provisions of the Electoral Act, 2006.

(iii) That it may be determined and doth declared that the purported elections in Ifaki Wards I and II, Usi Ward and Orin/Ora Ward of Ido-Osi Local Governments and Ipoti Wards A&B of Ijero Local Government be nullified and cancelled.

(iv) That it may be determined and doth declared that if the lawful votes cast at the said supplementary elections are added to the lawful votes already distilled and/or certified in the judgment of the Court of Appeal sitting in Ilorin in Appeal No. CA/IL/EP/GOV/25/2008, dated 17th February, 2009, your 1st petitioner ought to have been returned and should be returned as the elected Governor of Ekiti State having satisfied the requirements of section 70 of the Electoral Act 2006 and Section 179(2) of the Constitution of the Federal Republic of Nigeria, 1999.'

Upon being served the petition, all the respondents filed their respective replies debunking all the allegations contained in the petition. The 1st respondent further contended – that the 1st petitioner was not qualified to contest as a Governor of Ekiti State having not fulfilled the constitutional requirement to that effect while all the respondents contended that the election was free, fair, devoid of corrupt practices and that it was conducted in substantial compliance with the provisions of the Electoral Act, 2006. Consequently, they therefore urged the tribunal to refuse the reliefs sought by the petitioners, dismiss the petition with substantial costs and affirm the declaration and return of the 1st respondent.

At the close of pleadings and pursuant to an application of the petitioners dated 29th June 2009, the petition proceeded to pre-hearing session in line with the provisions of the Election Tribunal and Court Practice Directions 2007 (as amended). During the pre-hearing sessions several applications filed by the parties to the petition were heard and disposed of. Issues were also narrowed down, and it was agreed that document not in dispute shall be tendered from the bar during trial while those in dispute shall be tendered through the appropriate witnesses. The Honourable Tribunal having considered the totality of the pleadings and the issues submitted for determination by the parties herein which are not totally dissimilar, formulated the following three issues thought as apt and germane for the determination in the report of the pre-hearing session.

'1. Whether the supplementary election held on the 25th of April, 2009 and 5th May 2009 at Ifaki Wards I and II, Usi Ward, Orin Ora Ward of Ido-Osi Local Government and Ipoti Wards A and B of Ijero Local Government should be nullified for corrupt practices and/or non compliance with the provisions of the Electoral Act, 2006 and the Manual for the Election made thereunder.

2. Whether the 1st respondent ought be returned as duly elected Governor of Ekiti State having regard to the lawful votes cast at the supplementary elections held on the 25th of April 2009 and 5th of May, 2009 and the lawful votes already validated and certified by the Court of Appeal judgment in the case No: CA/IL/EP/GOV/25/08 between Dr. John Olukayode Fayemi v Olusegun Adebayo Oni & 16 Ors. Delivered on the 17th February, 2009 and;

3. Whether the petitioner proved any dereliction of duty against the 7th and 8th Respondents at the said elections.'

After reading the pre-hearing report on Wednesday, 12th August, 2009, the stage was then set for hearing of the petition which commenced on 2nd August, 2009.

At the hearing, the petitioners called forty-seven (47) witnesses five of whom were on subpoena and styled PW1 to PW47 in support of their petition and tendered numerous documents and marked Exhibits 1 to 46 respectively. They finally closed their case on 8th October 2009. The 1st respondent called sixty-seven (67) witnesses, 2nd respondent called thirty two (32) witnesses while 3rd and 4th respondents called thirty-seven (37) witnesses. On their own part, the 5th and 6th respondents called two (2) witnesses while the last set of respondents i.e 7th and 8th called only one (1) witness. The witnesses called by the five sets of respondents were styled RW1 to RW139, while the exhibits tendered on their behalf were marked Exhibits 47 to 171.

Upon the conclusion of hearing on the 15th March, 2010 and in compliance with paragraph 5(12), (13) and (14) of the Practice Directions, 2007, the tribunal ordered the filing and exchange of written final addresses. Consequently, the tribunal therefore adjourned the petition to 13th of April, 2010 for adoption of final addresses which same were duly complied with and the matter was adjourned sine die for judgment. On the 5th of May, 2010 the Tribunal delivered its judgment with that of the majority dismissing the petition and thereby made the following specific findings;

(a) That the allegations of non-compliance with the provisions of Electoral Act, 2006 and the Election Manual were largely unproven and where acts of non-compliance with the Electoral Acts were established, the petitioners failed to show how the said acts of non-compliance affected the conduct and result of the election as stipulated by section 146 of the Electoral Act, 2006.

(b) That the Petitioners failed to establish beyond all reasonable doubt the criminal allegations including ballot box stuffing, ballot box snatching, manipulation of votes contained in several paragraphs of the petition.

(c) That the petitioners in the circumstances of the case had the onus to produce voters registers used in Ida Osi Local Government in order to rebut the presumption of regularity raised by the various forms EC SA'S tendered by the 1st Respondent in counter to the original allegations of the petitioners that no election took place in the contested wards.

(d) That in all probability based upon the evidence including some provided by the petitioners themselves, the agents of the petitioners were responsible for the destruction of the Ido Office of the 3rd Respondent which served as the Local Government Collation Centre for Ido-Osi Local Government.

The Tribunal also annulled the results of the Election in some units spread —across the six contested wards.

This appeal is against the majority judgment which same is also a subject-of cross-appeal by the 1st, 5th and 6th sets of respondents. The appellants notice of appeal which is contained and spanning at pages 5948 to 5972 of the record contained 24 grounds of appeal filed on the 24th May, 2010. The 1st respondent's notice of cross-appeal is also contained at pages 5973-5985 wherein 15 grounds of appeal were raised.

On behalf of the 5th and 6th respondents, their counsel Tayo Oyetibo, SAN also filed a notice of cross appeal dated 9th July, 2010 but which was by the leave of this court sought and obtained on the 19th July, 2010 deemed properly filed, the same raised only one ground of appeal.

In accordance with the rules of court, briefs were filed and exchanged by all parties and the appeal was heard on the 23rd September, 2010. At the hearing of the appeal, Mallam Yusuf O. Ali, SAN appeared with a number of senior colleagues and other counsel to represent the appellants. Just before the said appellants' counsel could argue the appeal, the learned counsel Adebayo Adenipekun, SAN quickly interjected and sought to first argue a motion on notice filed on behalf of his client, the 1st respondent. The motion seeks an order striking out certain paragraphs of the appellants reply brief dated 23rd July, 2010 and which was filed in response to the respondent's brief.

On the application of the learned appellants' counsel, the motion was sought to be taken along with the appeal. The learned senior counsel for the appellants also intimated the court of their notice of preliminary objection which argument thereon was embedded in their reply brief and which was to be taken at the appropriate time.

Learned senior counsel for the purpose of arguing the appeal related to the appellants brief dated and filed on the 11th June, 2010. Reference was also made on the one hand to the reply brief in response to the 1st respondent's brief filed 23rd July, 2010 contained at pages 4-51 of the harmonized appellants' replies to Respondents' Briefs of Argument; on the other hand, the replies to other respondents briefs -viz: 2nd, 3rd, and 4th, and 6th as well as 7th and 8th are also contained at pages 52-70, 71-79, 80-89 and 94-95 of the same reply brief respectively. The appellants brief as cross respondent on the cross appeal by the 5th & 6th respondents is further contained in the same appellants replies to Respondents' briefs of argument at pages 90-93.

In a separate response, to the 1st respondent's cross appeal however, the appellants filed a response, namely 'Cross-Respondents'

Brief' on the 23rd June, 2010, wherein a preliminary objection was raised as to the competence of the cross appeal. Argument advanced on the preliminary objection is contained at pages 2-8 of the said brief. The learned senior counsel for the appellants thereupon sought to adopt and rely on all the briefs of arguments, the reply briefs and also their cross respondents brief to the 1st respondent's cross appeal and that to the 5th and 6th respondents cross appeal.

For purpose of expatiating and highlighting the appeal before us, the learned appellants' senior counsel emphasized and lamented the failure of the majority decision by the tribunal to have taken advantage of their seeing and hearing of the witnesses, and hence inability to have properly evaluated the evidence both oral and documentary. That the evidence of PW43 at pages 2146-2147 confirmed that a member of the PDP did set ablaze the INEC Office. Hence, the trial tribunal therefore wrongly somersaulted and arrived at a conclusion that it was a member of the 2nd appellant that was responsible. Further reference was also drawn to pages 4431-4432 of the record at the evidence of RW99 the respondents' witness whom the learned senior counsel argued confirmed the evidence of PW43. That the lower tribunal ought to have invoked section 149(d) of the Evidence Act and which would have nullified the result of Ido-Osi. Learned counsel also referred to pages 5047-5048, volume 7 of the record of appeal. The senior counsel in the prevailing circumstance impressed upon this court to allow the appeal of the appellants, dismiss the cross appeals and uphold their preliminary objections to the cross-appeal.

Representing the 1st respondent was also the learned senior counsel Chief Adebayo Adenipekun SAN assisted by a number of his brothers silk as well as other counsel in their company. The .said senior counsel adopted and relied on their brief dated and filed the 8th July, 2010. The cross appellants' brief of argument dated and filed 18th June, 2010 was also adopted and relied upon. A further brief namely cross appellants' reply brief dated and filed 8th July 2010 was also adopted and relied upon. The learned senior counsel therefore urged this court to dismiss the appeal and allow the cross appeal.

The learned senior counsel for the 1st respondent also informed the court of their motion on notice dated and filed 6th September, 2010· which same, counsel moved in terms and urged that the appellants' reply brief dated 23rd July, 2010 filed in response to the 1st respondent's brief of argument be struck out or in the alternative, that an order be made for purpose of expunging certain paragraphs of the said reply brief dated herein and listed in the schedule attached as Exhibit A to the affidavit in support of the application.

In respect of the appeal, the counsel urged that the court should be guided by its decision in Awuse v Odili (2005) 16 NWlR (Pt.952) 416 at 485 where it is not open to this court except in exceptional circumstances to review the findings of the lower court.

On the burden of proof, the senior counsel, while challenging the submission by the appellants, cited and recommended that the court should adopt the view held in the case of Eweke v Amodu (2010) 11 NWlR (Pt.1204) page 1 at 47 also the case of Adejie v Nwaogu (2010) 12 NWlR (Pt.1209) 419 at473. Further reference on burden of proof was also made to the appellants' numerous paragraphs.

On the question as to who burnt the INEC's office, the senior counsel submitted forcefully that the petition of the appellants did not in any way give a clue to this disclosure. However, that in the 1st respondent's reply to the petition, it was raised for the 1st time in paragraphs 111-114 at pages 934-936 of the record. That the evidence of PW43 was brought towards the close of hearing and which was not front loaded. Learned counsel urged the court not to attack the findings of the lower court at pages 5047-5048 of the record.

That the issue relating to subpoena is not correct because the appellants were provided materials and which they said they did not need as evidenced at paragraph 21.4 of their reply to the 1st respondents reply at pages 1429-1430 of volume 2 of the record of appeal.

Learned counsel Obafemi Adewale Esq. also represented the 2nd respondent in company of several other counsel and adopted and relied on their brief dated 7th July 2010 and filed 8th July, 2010. Copious reliance was also made on all the authorities cited in support. In addition, the said counsel sought to align with the brief of arguments by the 1st respondent as well as the arguments advanced thereon. Substantiating on the issues raised in their brief, learn ed counsel applauded the conclusion arrived at by the learned majority tribunal judges which he argued was right in declaring the 1st respondent as the winner of the election based on the evidence adduced before it.

That the appellants have failed to prove the allegation of crime beyond reasonable doubt and hence the reason why the court should uphold the majority findings of the tribunal. On the evidence of PW43, counsel submitted the absence of any evidence adduced and petition establishing that the witness PW43 was a registered member of the 2nd respondent contrary to the submission by the appellant. Reference was made to the-ruling of the lower court at pages 4006-4009 volume 6 of the record where PW43 was not proved as being a member of the 2nd respondent. Furthermore and on the evidence of PW43, counsel related same to that of RW102 at pages 4461 to 4463 where the evidence of the said witness was denied contrary to the submission by the learned senior counsel to the appellants. The counsel argued especially where the alibi by RW102 was never challenged. Learned counsel on the totality urged that the court upholds the principles of substantial compliance as enshrined in section 146(1) of the Electoral Act and to dismiss the appeal and uphold the majority judgment of the tribunal.

Mr. Rowland Otaru SAN led a number of counsel and in their representing the 3rd and 4th respondents, identified their brief filed on behalf of the said respondents which was dated 8th July, 2010 and filed on the 9th July, 2010. The said brief was by the order of this court made on the 19th July, 2010 regularized and deemed filed on the said same date. The brief was accordingly adopted and relied upon for purpose of arguing the appeal, which counsel urged, it should be dismissed. At this stage, the learned senior counsel intimated the court of a pending notice of preliminary objection which arguments in respect of same had been embedded in the main brief objecting to the competence of grounds 12, 13, 18, 20 and 21 of the appellants' grounds of appeal.

The senior counse1 therefore sought also to adopt and rely on the submissions relating and connected to the said notice of preliminary objection. In further argument, the learned counsel affirmed the admission by the appellants at their paragraph 21(IV) of their reply to 1st respondent's reply at page 1430 volume 2 of the record wherein they agreed that INEC made available and gave them all the documents before they filed the petition. That the obtaining of the documents was sequel to a motion exparte supported by an affidavit of urgency to inspect the documents which order was made and granted on the 1st June, 2009. The documents were therefore obtained before the filing of the petition on the 2nd June, 2009.

On the issue of burning down of the INEC office, the senior counsel referred to paragraph 80 of the petition at page 64 of volume 1 of the record. That the tribunal at pages 5029 right through to page 5047 reviewed and evaluated the evidence of the witnesses before arriving at that conclusion. That the appellants at page 1400 paragraph 23, admitted that it was Saliu Adeoti PW46 and the other hoodlums that burnt the INEC office. That the court should therefore dismiss the appeal for being unmeritorious and an abuse of court process.

Next in line consideration are the 5th and 6th respondents who were represented by the sets of counsel led by Mr. Tayo Oyetibo SAN. The senior counsel identified the brief of his client which was dated and-filed 9th July, 2010 but deemed properly filed pursuant to the order of this court sought and obtained on the 19th July, 2010. A notice of cross appeal dated and filed 9th July, 2010 was also filed consequent to the order of this court made on the same 19th July, 2010. The arguments on the cross appeal is contained at pages 193-205 of the said brief which the learned senior counsel sought to adopt and rely thereon.

That having regard to the said paragraphs 44-52, 57, 94, 95 and 107-109 at pages 49-74 of the record, volume 1, that they all raise criminal allegation against the presiding officers, who were not made parties to the petition. That even though the said paragraphs were sought to be struck out at the lower court, it was refused by the tribunal. That section 144(2) of the Electoral Act which deals with refused by the tribunal. That section 144(2) of the Electoral Act which deals with joinder of INEC does not cover allegations of Commission of Crime. Reference in support was made to the case of Dina v Daniel (2010) 11 NWLR (Pt.1204) page 137 at 156-158. The counsel urged for the dismissal of this appeal while the cross appeal should be allowed.

The 7th and 8th respondents were represented by the counsel Chief Amaechi Nwaiwu SAN in company of other counsel with him. The said counsel in his submission related to the said respondents' brief of argument dated 2nd July 2010 and which was, pursuant to the order of this court, deemed filed and served on the 19th July, 2010. He sought to adopt and rely on same. That the tribunal below was right in holding that the appellants failed to prove their case before it and also the acts of dereliction of duty against the 7th and 8th respondents. Reference was made to volume 7 of the record of appeal at page 5067 lines 12-14, also page 5071 lines 1-3 where the totality of the appellants' case was reviewed and that no evidence of such allegation existed.

The learned counsel urged that the specific findings of the tribunal should be upheld since it has not been impugned by the appellants. That both on proof beyond reasonable doubt and preponderance of evidence, the appellants have failed to prove the burden placed on them. That the court should therefore dismiss the appeal in its entirety and uphold and affirm the majority judgment of the learned lower tribunal.

Mallam Ali, SAN in further submission on points of law argued the significance of pleadings which should be taken as a whole and not in piecemeal or disjointedly. That the issue of burning was raised in the respondents' brief and that there was no admission by the appellants of the facts averred by the respondents especially the than 8th respondents. That the case of Igbeke v Emodi cited by the 1st respondent supra is completely upside down and does not 'apply 'to this case. That with the appellants' assertion of the absence of any election at Ido-Osi, the-respondents who aver the contrary have the burden shifted unto them to prove.

That the case of Dina v Daniel is also not applicable in this case. That the law is also clear that it is only the person affected that can complain on the non joinder of parties. That it is not therefore open to the 5th and 6th respondents to lodge a complaint on behalf of the presiding officers who should have done so themselves. See, the case of Mobil Oil Unlimited v Lagos State Environmental Ltd. (2002) 18 NWLR (Pt. 798) page 1 at 34-35 and 37.

Submitting on the motion by the 1st respondent, the learned senior counsel argued same as lacking in merit in view of the absence of anything to the contrary and outside the provision of order 17 rule 5 of the rules of court. Counsel urged for the dismissal of the cross appeal and in favour of allowing the appeal.