WHAT A PETITIONER MUST SHOW TO PROVE SUBSTANTIAL NON-COMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT AND APPROVED GUIDELINES

 CASE TITLE: ADESINA & ANOR v. INEC & ORS (2019) LPELR-48662(CA)

JUDGMENT DATE: 14TH OCTOBER, 2019

PRACTICE AREA: ELECTION PETITION

LEAD JUDGE: NONYEREM OKORONKWO, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on election petition.

FACTS

The Petitioners/appellants filed a petition before the trial Tribunal and challenged the election and return of the 2nd respondent in respect of the election held on March 9, 2019, for the office of a member of the Oyo State House of Assembly representing Ibadan North East Local Government Constituency 1.

Appellants prayed that the election of the 2nd respondent be declared invalid and for an order for a fresh election to be held in the Constituency. The second and third respondents filed separate replies to the petition. In their respective reply, the respondents denied the allegations that the election of the second respondent was not by a majority of lawful votes cast of the election and that the election was tainted or marred by electoral malpractices and non-compliance with the Electoral Act, guidelines and manual prepared and issued for the election.

The tribunal heard the case of the parties and in its judgment, dismissed the petition. Not satisfied with the outcome of their petition, appellants appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

Appellants raised the following issues for determination:

1. Whether the lower tribunal was right and not in breach of the right to fair hearing of the appellants when it discountenanced the unopposed list of additional authorities filed and served on the respondents on the incompetence of the purported notice of preliminary objection of 3rd respondent already argued and pending for ruling along with judgment and whether the lower tribunal had jurisdiction to entertain the purported objection.
2. Whether the lower tribunal was right when it held that grounds (ii) and (iii) of the appellants’ petition was not in compliance with Section 138 (1) of the Electoral Act as amended.
3. Whether the lower tribunal was right when it held that paragraphs 48, 57, 58 and 64 of the petition raised an allegation of a crime of dishonesty without sufficient particulars given or prove of same beyond reasonable doubt by the appellants.
4. Whether the lower tribunal did not contradict and overrule itself when it entertained the purported notice of preliminary objection of the 3rd respondent in breach of Paragraph 12 (5) of the First Schedule while it declined to entertain the objection to the hearing of the 3rd respondent also filed in breach of the law.
5. Was the lower tribunal right when it descended into the arena and suo motu made a case of non-tender of agent identification tag by PW2 to PW6 for the respondents as opposed to the case presented by the respondents as shown by the record of the lower tribunal.
6. Was the lower tribunal right in its decision when it ascribed no probative value to Exhibits P2 to P25 tendered by PW1 on a subpoena.
7. Was the lower tribunal right to have held that the oral evidence/testimony of the additional witnesses of appellants (PW2, PW3, PW4, PW5 and PW6) who were subpoenaed were unsafe and unreliable for lack of written statement on oath.
8. Whether identification and linking of documents to the specific aspect of the party’s case by a witness constitute documentary hearsay in law.
9. Whether the probative weight of computer-generated evidence is predicated on the cross-examination of the maker of the document.

​10. Whether the lower tribunal was right when it attached substantial weight to the hearsay evidence and false testimony of RW1.

11. Considering the pleadings, reliefs and evidence led in support of the petition, whether the lower tribunal was not wrong to have dismissed the petition for want of proof of allegations contained in the petition.”

DECISION/HELD

The Court of Appeal dismissed the appeal.

RATIOS:

• ELECTION PETITION- ELECTION PETITION PROCEEDINGS: Whether a petition must be accompanied by a written statement(s) on oath of witness(es); effect of failure
• ELECTION PETITION- ALLEGATION OF NON-COMPLIANCE WITH THE ELECTORAL ACT: Whether an election can be invalidated where non-compliance with Electoral Act did not affect it substantially; what a petitioner must show to prove substantial non-compliance with the provisions of the Electoral Act and approved guidelines.