‘Tribunal judgment is perverse’

•Continued from yesterday

Being judgment of the Court of Appeal in the Oyo State governorship election petition

 

In sufficiency of the testimony of PW62 to establish the unlawfulness of the votes credited to the 2nd and 3rd respondent, learned senior counsel submitted that the evidence of PW62 was in respect of the entire area in contention, having identified 4162 exhibits, tendered by the appellants. That he stated that P2 has fictitious figures contrary to the entries made in form EC8A, EC8B, EC8C, and that his evidence was not countered by the respondents. That the evidence of RWI confirmed at page 982 that there were alterations on Exhibit P8. That by AREGBESOLA vs. OYINLOLA (SUPRA), ward collation agents, ward supervisors and Local Government Collation Agents are competent witnesses, if their evidence is direct, credible and reliable.
Since PW62 said that only 5 out of 33 Local Governments in Oyo State were the Total number of votes cast equal to the number of accredited voters and so valid, this was a serious infraction he argued and submitted that the election could not be free and fair. He urged us to resolve the issue in favour of the appellants.
Learned senior counsel for the 1 st respondent submitted that the position of the Tribunal is right as all the 27 witnesses of the appellants in issue were not physically present in the polling units. They were there only in spirit and they cannot give eyewitness account of what transpired. That made their evidence hearsay. Further, that the evidence of PW4 and PW28 were discountenanced by the Tribunal for failure to tender the Yoruba version of the English translation of their statements on oath, Learned senior counsel for the 2 nd respondent re-iterated the position of the Tribunal and other respondents. He cited the cases of DOMA vs. INEC (2012) 13 NWLR (Pt. 1317) 297 at 321; BUHARI vs. INEC (2008) 19 NWLR (Pt. 1120) 246 at 424; EZEAZODOSIAKO vs. OKEKE (2005) 16 NWLR (Pt. 952) 612 at 630 and ANDREW vs. INEC (2018) 9 NWLR (Pt. 1625) 507 at 557 and 583.
It is not controverted that the authorities relied upon by the Tribunal and the respondents, have clearly established the fact that polling agents are important witnesses when it comes to giving evidence as to what they saw in their respective jurisdictions. That would be eyewitness evidence which would be admissible and relevant. In all these authorities, the witnesses gave evidence on issues they did not see or witness with their eyes and their evidence amounted to hearsay and therefore inadmissible. For instance, jn DOMA vs. INEC (SUPRA) the Supreme Court at page 321 held that “It is basic that a person who says he was on/y in the po//ing unit where he voted on the day of the e/ecffon would not know of malpractices that happened in other po//ing units. To that extent, the evidence ofPW14 and PW44 is c/ear/y hearsay, Same is not in tune with the provisions of section 38 of the Evidence Act 2011. “In BUHARI vs. INEC
(SUPRA) at page 424, Tobi JSC of blessed memory held that “An agent is the representative of a// the candidates in the po//ing stations He sees a// the act/vit/&s. He hears every talk in the station. He a/so sees a// actions and inactions in the station, Any evidence given by a person who was not present at the po//ing units orpo//ing booth like the Appe//ant is certain/y hearsay… ,“In ANDREW vs. INEC (SUPRA) at page 557 Okoro Jsc held that
“The requirement of the law is that a Petitioner must cal/ eye witnesses who were present when the entries in the forms were being made and can testify to how the entries in the documents were arrived at…”
Those cases are authorities of what they decided and the central theme in them is that for a person to be able to give evidence of what happened, he had to have observed same. It therefore follows that a person who was present during the process and personally witnessed it, can give evidence and it will not be hearsay, even on the authorities above recounted. See FRANCIS OKOYE vs. ANUBIKE (2015) LPELR – 40664 (CA). The point of emphasis is not whether a witness was a polling agent or a collation agent. Even if he was no agent at all, once a person was present at a polling place or a collating centre during the activity complained about, even if he was there unlawfully, when he was supposed to be somewhere else, he is still a competent person to give evidence as to what he saw or observed, his illegal presence notwithstanding. His evidence will not be regarded as hearsay, since it is coming from an eye witness – YUSUF LASUM vs. ADEJARE (2011) LPELR 5116 (CA) and PDP vs. EL-SUDI (2015) LPELR – 26034.
In the instant appeal, there is evidence that some of the 27 witnesses whose evidence the Tribunal regarded as hearsay said they moved around their wards and Local Governments on motor cycles on the Election Day and saw what happened. That evidence had not been dislodged and the Tribunal did not disbelieve them. We find that evidence relevant, believable and admissible. It is not hearsay, contrary to the finding of the Tribunal. The evidence of PW62 is also relevant, believable and was not dumped on the Tribunal, which is what we earlier held.
However, there is a sore thumb as to the evidence. Since it was only “some” of the witnesses who said so, how many of them? Again, the evidence of PW4 and PW28 were discountenanced not to the failure to tender the Yoruba version of the English translation of their statements on Oath, There was therefore no way to know for certain the correctness of the English translation. Be that as it may, having held that the evidence of some of the 27 witnesses could not be held to be hearsay, Issue No. 4 is resolved in favour of the appellants against the respondent.
Now, from the evidence we have re-evaluated, was it sufficient for PW62 to establish unlawfulness of the votes and did the evidence of the witnesses led properly before the Tribunal establish the non-compliance required to grant the reliefs prayed for by the appellants?
It is clear that the votes did not tally i.e. the total number of the accredited voters and the total number of votes cast have not tallied as required by the INEC Regulation and Guidelines for the conduct of Elections. That is what we held earlier to be the noncompliance. Has there been a comparison with the votes that did not tally with the votes scored to see what the final votes would be, so that the election could be affected?
Furthermore, the non-compliance is in respect of the INEC Regulations and Guidelines for the Conduct of the 2019 Election in Nigeria, not the Electoral Act itself. Whereas, the position earlier held by this Court when it was the final destination for Gubernatorial appeals such as in FAYEMI Vs. ONI (2009) 7 NWLR (Pt. 1140) 223 at 285 H – 286A, is that noncompliance with INEC Manuals amounts to non-compliance with the Electoral Act, the current position for now, is to the contrary.
In NYEMSON vs. PETERSIDE (2016) ALL FWLR (Pt. 842) 1573 at 1660, the Supreme Court held that in section 138 (2) of the Electoral Act 2010 as amended,
“….it is clear that as long an act (commission) or omission in relation to guidelines and regulations is not contrary to the provisions of the Act, it shall not in itself be a ground for questioning an election…. “
In IKPEAZU vs. OTTI (SUPRA) at page 1980 the Supreme Court in considering INEC Regulations and Guidelines held that “more importantly, whichever angle both exhibits PWC2 and PWD are viewed, they cannot ground nullification of the election of the appellant. “
This is sequel to the provision of section 138 (1) (b) of the Electoral Act 2010 as amended, that a challenge on noncompliance is to the provisions of the Electoral Act. It has been argued that it is the provision of the Electoral Act in section 153 that gave INEC the power to make regulations, guidelines or manuals, and so these three instruments if made, should have the same effect with the Act, once they are not contrary to it, otherwise they will be toothless, especially when non-compliance with them is an offence. But until the Supreme Court looks at the issue again, we are bound by its decision, and we cannot nullify an election on the basis of non-compliance with INEC Regulations and Guidelines.
We have already held under Issue No. 1, that the Tribunal had failed to properly evaluate all the material and relevant evidence placed before it, which resulted in its decision to be perverse as it failed to take into consideration relevant evidence it ought to have taken and the finding had been reached as a result of a-wrong-approach or principles ofrlawz-ld-procedure MTN vs. COMMUNICATION INVESTIMENT (SUPRA) at page 453 E — F. We have also re-evaluated the evidence as we are enjoined to so do.
We therefore hold that the judgment of the Tribunal was perverse and had violated the fair hearing principles the appellants ought to have enjoyed from the Tribunal. We set it aside. However in our further evaluation of the evidence led and the current position of the law, we cannot nullify the election. It js only when the election is nullified that the reliefs of either returning the 1 st appellant as duly elected, or ordering a fresh election can be granted. Again, since we have re-evaluated the evidence and have come to a conclusion, the issue of Ordering a re-hearing of the Petition does not arise, even if there is still time to do that. We therefore maintain our position in setting aside the judgment of the Tribunal delivered on the 16th of September 2019.
No Order as costs.

ABUBAKAR A IYAHAYA
JUSTICE, COURT OF APPEAL