THE LAW ON TENDERING EVIDENCE FROM THE BAR

OYETUNJI O. & ANOR V. INEC & ORS (2019) LPELR-49151(CA)

JUDGMENT DATE: 12TH NOVEMBER, 2019

PRACTICE AREA: ELECTION PETITION

LEAD JUDGMENT: JIMI OLUKAYODE BADA, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Election Petition.

FACTS

The 1st Appellant (MR. OLAWALE OYETUNJI O.) was the candidate of the 2nd Appellant (ALL PROGRESSIVES CONGRESS (APC)) while the 1st Respondent (INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)) conducted the Election between 1st Appellant and 2nd Respondent (HON. AKEEM MUSTAPHA) for the House of Assembly seat for Kajola Constituency in Oyo State. The 2nd Respondent was sponsored by the 3rd Respondent (PEOPLES DEMOCRATIC PARTY (PDP)) for the said Election. At the conclusion of the voting exercise, the 2nd Respondent with 12,943 votes was declared as the winner of the Election as against the Appellants who scored 12,885 votes.

The Appellants who were dissatisfied with the outcome of the Election filed a Petition before the lower Tribunal to challenge the return of the 2nd Respondent as the winner of the State House of Assembly Election into Kajola Local Government Constituency of Oyo State.

The grounds upon which the Election was challenged are that the 2nd Respondent was not duly elected by a majority of lawful votes cast at the House of Assembly Election held on 9/3/2019. ​Secondly, the Election was invalid by reason of non-compliance with the provisions of the Electoral Act (2010) as amended.

At the conclusion of trial before the Tribunal, the Petition of the Appellants was dismissed for lacking in merit. The Appellants who were dissatisfied with the outcome of the trial before the Tribunal appealed to​ the Court of Appeal.

ISSUES FOR DETERMINATION

The appeal was determined on the following issues:

(1). Whether the lower Tribunal was wrong when it failed to nullify the result of Ward 02 and Unit 003 considering the fact that the Appellants proved non-compliance and irregularities in the conduct of the said Election in the Unit.

(2). Whether the lower Tribunal did not introduce extraneous facts into its consideration of the issues in Ward 3 before it, which said introduction resulted in its failure to nullify the result of Ward 08 Unit 003 complained about by the Petitioners/Appellants.

(3). Whether the Appellants proved non-compliance and irregularities in the conduct of the Election in the 6 Units complained of in the Petition which substantially affected the return in Kajola State Constituency to warrant the nullification of the results and the return of the 2nd and 3rd Respondents.

In determining the appeal based on the above issues, the Court of Appeal reiterated the position of the law on the burden on a party seeking an order of nullification of an election and what such party must establish to move the Court to declare such election a nullity.

The Court also expressed the position of the law on the duty imposed on a party tendering document(s), especially from the bar.

DECISION/HELD

On the whole, having failed to move the Court by concrete evidence to declare the election a nullity, the Court of Appeal held that the appeal lacked merit and was accordingly dismissed.

RATIOS

• ELECTION PETITION – BURDEN OF PROOF: Burden on a party seeking an order of nullification of election
• EVIDENCE – DOCUMENTARY EVIDENCE: Duty of a party tendering documents from the bar to relate each document tendered to the part of the case he intends to prove; effect of failure
• EVIDENCE – DOCUMENTARY EVIDENCE: Effect of failure to call the maker of a document as witness
• ELECTION PETITION – OVER-VOTING: How to prove over-voting