IN THE NATIONAL ASSEMBLY/GOVERNORSHIP AND
LEGISLATIVE HOUSES ELECTION PETITION TRIBUNAL
HOLDEN AT ILORIN, KWARA STATE
ON WEDNESDAY THE 16TH DAY OF JULY, 2008
BEFORE THEIR LORDSHIPS:
HON. JUSTICE M.T.M ALIYU – CHAIRMAN
HON. JUSTICE A.S. RINGIM – MEMBER
HON. JUSTICE M.A.A. ABASS – MEMBER
HON. JUSTICE L. ABAI – MEMBER
HON. JUSTICE U. ONYEMENAM – MEMBER
CONSOLIDATED PETITION NO. KWS/GBEPT/1/07
BETWEEN:
- MR. GBENGA TOYOSI OLAWEPO …………………………… PETITIONER
VS
- BUKOLA SARAKI & 3 ORS. ………………………….……… RESPONDENTS
AND
PETITION NO. KWS/GBEPT/3/07
- CHIEF THEOPHILUS BAMIGBOYE & 2 ORS…….…….. PETITIONERS
VS
- BUKOLA SARAKI & 45 ORS………………………………….. RESPONDENTS
3rd Petitioner in GBEPT 3 represented by Funsho Dare, its State Secretary.
Other Parties absent.
Appearances:
Dayo Akinlaja with him A.A. Ibrahim (Miss) and C.B. Kekemeke for Petitioner in GBEPT 1. A.A. Ibraheem with him Gani Tufai, K.K. Eleja, S.U. Solagberu, B.A. Ajanaku, Y.O. Aluko, R.O. Balogun and Shade Olajuyi (Miss) for 1st Respondent.
Dayo Akinlaja also holding the brief of Salman Jawondo, counsel for Petitioner in GBEPT 3.
A.S. Oyinloye with him Tunde Olomu, Dr. M.M. Akanbi, Y.L. Akanbi, Adio Murtala, Abdulmalik M.A. (Miss) for 1st, 2nd, 21st, – 42nd, 45th and 46th Respondents in GBEPT 3.
Toyin Oladipo with him M.O. Aminu and Adeola Sotayo-Aro (Miss) for 2nd Respondent on GBEPT 1 and 3rd Respondent in GBEPT 3.
A.O. Mohammed with him Akin Akintoye II, I.K. Iman Eleshinla, D.A. Gidado, Tahir Abdulmalik and Tunde Salako for 3rd and 4th Respondents in GBEPT 1 and 4th – 20th Respondents in GBEPT 3.
Judgment in KWS/GBEPT 1
At the Governorship Election held in Kwara State on 14th of April, 2007, the petitioner herein, Gbenga Toyosi Olawepo was the candidate of the Democratic People’s Party (DPP) while the 1st Respondent, Dr. Bukola Saraki was the candidate of the Peoples Democratic Party (PDP).
At the end of the election, the 1st Respondent, Dr. Bukola Saraki was returned elected by the 4th Respondent who was the Resident Electoral Commissioner of the 3rd Respondent in Kwara State and the Returning Officer of the election. The 1st respondent was credited with 572,938 votes while the Petitioner was credited with 63,736 votes.
The Petitioner who was dissatisfied with the declaration and return of the 1st Respondent as the winner of the said election presented this Election Petition on 11th May, 2007 where he is praying this Tribunal to nullify the 1st Respondent’s election. In paragraph 13 of the Petitioner’s petition, the grounds of the petition are stated thus; “Your Petitioner avers that the return, declaration, announcement or proclamation of the 1st Respondent as the winner of the said election by the 4th Respondent is wrongful as the election was invalid by reason of corrupt practices widespread and massive malpractices and substantial non-compliance with the provisions of the Electoral Act, 2006.”
In paragraph 21 of the Petition, the Petitioner is seeking the following reliefs from this Tribunal; Whereof your Petitioner prays as follows: What we have in this case are bundles of documents tendered from the bar with no appropriate facts in the petition particularly linking them. There is also no evidence of witnesses of the Petitioner touching them. Even where there are such evidence from the Petitioner’s witnesses, they will go to no issue as evidence not supported by pleadings.
We agree with Respondents’ counsel that the entire exhibits tendered in this case were only dumped on the Tribunal without the appropriate pleading and evidence to back them up. Such evidence though admitted in evidence are bound to be expunged from the Tribunal’s record. See Buhari vs Obasanjo (supra) at 239, where the Supreme Court said; “But where the Court in the consideration of it judgment found that some of the pieces of evidence earlier admitted were not pleaded, then the Court has the duty to strike-out such evidence and would therefore not be considered in the determination of the dispute between the parties.”
See also; George vs Dominion Flour Mills (1963) AllNLR 70.
We also agree with the learned counsel to the respondents that entire documents tendered as Exhibits in this case on the premise of above consideration are bound to be struck-out from the records of Tribunal. In the case of Hashidu vs. Goje (2003) 15 NWLR (pt 843) 352 at 381, the Court said;
“The Court has power to expunge the inadmissible evidence that is wrongly admitted. See Ajayi vs. Fished (1959) 1 FSC 90; Owonyin vs. Omotoshe (1961) 2 SCNLR 57; (961) 1 All NLR (pt 11) 304 at page 307. In Agbaje vs. Adigun (1993) 1 NWLR (pt 269) 261. It was held by the Supreme Court that when evidence has been wrongly admitted, the law is that the evidence must be expunged from the record when the judgment is being considered. The Supreme Court went further to say that the basis for the rule is that the evidence does not go on to any issue and that being so it cannot be legal evidence upon which the Court can make a finding of fact.”
All the Exhibits tendered and admitted in this petition by the Petitioner are accordingly expunged from the record.
It is the submission of the learned counsel to the Petitioner at page 6 of his written address that the oral evidence led by the witnesses called by the Petitioner simplicita cannot suffice for the nullification of the election. Having expunged the documents tendered as Exhibits upon which the Petitioner intends to lean to establish his case for the nullification of the 1st respondent’s election, the claim of the Petitioner is left without credible evidence to support it. There is therefore no need to embark upon the evaluation of the evidence of Petitioner’s witnesses which on the admission of the counsel to the Petitioner can not suffice for the nullification of the election.
We shall also not embark on the fruitless exercise of a witness by witness evaluation of the Respondents witnesses as the Respondents can only, in law, be called upon to disprove what the Petitioner has succeeded in proving. See Jang vs. Dariye (2003) 15 NWLR (pt 843) 436.
The petitioner is duty bound to prove all the various allegations in his petition by credible and legally admissible evidence. We have no doubt that the Petitioner has failed to discharge the evidential burden of proof imposed on him by the law. The sole issue for determination in this petition is accordingly resolved against the Petitioner and in favour of the Respondents. The petition is bound to fail. It fails and it is accordingly dismissed.
SGD
……………………………………….
HON. JUSTICE M.T.M. ALIYU
CHAIRMAN
SGD
SGD
…………………………..
HON. JUSTICE A.S. RINGIM
HON. JUSTICE M.A.A. ABAS
MEMBER
MEMBER
SGD
SGD
……………..…………………………..
HON. JUSTICE L. ABAI
HON. JUSTICE U. ONYEMENAM
MEMBER
MEMBER
