EFFECT OF THE DECISION OF AN ELECTION TRIBUNAL PREVENTING SUBPOENAED WITNESSES FROM TESTIFYING ON GROUND OF NON-FILING OF WITNESS DEPOSITIONS ON OATH

If you find this case helpful and would like to access more cases like this, please subscribe to LawPavilion PRIME here

CASE TITLE: BASHIR & ANOR v. KURDULA & ORS LPELR-48473(CA)

JUDGMENT DATE: 7^TH SEPTEMBER, 2019

PRACTICE AREA: ELECTION PETITION

LEAD JUDGMENT: AMINA AUDI WAMBAI, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Election Petition.

FACTS

This is an appeal against the decision of the National and State Houses Election Petition Tribunal, sitting in Sokoto State. The facts of the case are that on the 23/2/2019, the 3rd Respondent (the Independent National Electoral Commission – INEC) conducted the Nationwide National Assembly Elections. In the election for Tangaza/Gudu Federal Constituency of Sokoto State, the 1st Appellant was sponsored by the 2nd Appellant, the PDP, to contest the seat of a member of the Federal House of Representatives for the constituency. The 2nd Respondent, the A.P.C, sponsored the 1st Respondent to contest the same seat. At the conclusion of the election, the 3rd Respondent on the 25/2/2019, returned the 1st Respondent as the winner of the election having scored a total vote of 27, 220, higher than the 26, 047 polled by the 1st Appellant.

​The Appellants who were unhappy with the return of the 1st Respondent, entreated the Tribunal via an election petition filed on 16/03/2019, challenging the return of the 1st Respondent on the grounds set out at paragraph 9 of the petition, inter alia; that the 1st Respondent was at the time of the election not qualified to contest the election; that the 1st Respondent was not duly elected by a majority of lawful votes at the election; and that the 1st petitioner was the candidate who scored the highest number of lawful votes cast at the election and ought to have been declared the winner and so returned. Consequently, they sought from the Tribunal among other reliefs, a determination that the 1st Respondent was not qualified to contest the election as the candidate of the 2nd Respondent (the APC); that the election of the 1st Respondent was invalid on ground of non-compliance with the provisions of the Electoral Act 2010 (as amended) and INEC Regulations and Guidelines for the conduct of the 2019 General Elections; that the return of the 1st Respondent was a nullity; that the 1st petitioner was entitled to be returned by the 3rd and 5th Respondents as having been duly elected to the office/membership of House of Representatives for Tangaza/Gudu Federal Constituency of Sokoto State.

​Pleadings accompanied with the necessary processes were filed and exchanged. After the pre-hearing conference, the matter went to trial. The Appellants called seven (7) witnesses including the 1st Appellant who testified as PW7. They tendered in evidence, several exhibits. None of the Respondents called any witness. At the conclusion of trial, parties filed and exchanged their written addresses. In a 72-page unanimous judgment delivered on 5/8/2019 the Tribunal dismissed the Appellants’ petition in its entirety. Dissatisfied, the Appellants appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The Court determined the appeal on this sole issue couched as follows:

“Whether the Appellants’ right to fair hearing was violated when the lower Court held that Appellants’ subpoenaed witnesses could not give oral evidence without written deposition on Oath.”

DECISION/HELD

On the whole, the Court found merit in the appeal and accordingly allowed same. The decision of the Tribunal was set aside. The matter was remitted to the second National and State Houses Election Petition Tribunal, Sokoto, other than the one constituted by Hon. Justice P. A. Akhihiero (Chairman), Hon. Justice A. N. Yakubu (Member I) and His Worship S. T. Bello (Member II) for hearing de novo.

RATIOS:

• APPEAL- FORMULATION OF ISSUE(S) FOR DETERMINATION: Whether a respondent can formulate issue from an abandoned ground of appeal
• ELECTION PETITION- DECISION OF ELECTION PETITION TRIBUNAL: Effect of the decision of an Election Tribunal preventing subpoenaed witnesses from testifying on the ground of non-filing of witness depositions on Oath; whether same amounts to a denial of fair hearing.