COURT’S NOTE OF 23/04/2013 of Olukayode Ajulo of counsel; Ondo State Election Tribunal.
ORAL ADOPTION OF ADDRESS:
BETWEEN Oluwarotimi Akeredolu ( A C N)
AND
Dr. Olusegun O. Mimiko

PETITIONER: A.C.N. AKIN OLUJIMI (SAN)
1ST RESPONDENT: WOLE OLANIPEKUN (SAN)
2ND RESPONDENT: MALLAM YUSSUF ALLI (SAN)
3RD RESPONDENT: ONYECHI IKPEAZU (SAN)

WOLE OLANIPEKUN (SAN), COUNSEL TO THE 1ST RESPONDENT:

My lord, our reply was dated 27th of March 2013, and filed 28th of March 2013. In the said address my lord; only one issue has been formulated for determination. First respondent filed a reply address dated 8th April 2013 and signed the same day (reply address to the petitioners address). Whereby, first respondent replied to the five issues formulated by them for determination.
My lord, we adopt the address or the addresses and urge your lordship to dismiss this petition. My lord, we urge your lordship or your lordships to consider the state of the law and decided authorities in coming to your decision in this matter.

My lord, may we reiterate, as per paragraph 1.2 on page 1, that there is the need for politicians as democrats to display the spirit of sportsmanship. That is, the need for politicians as democrats, to display the spirit of sportsmanship, respecting the wishes of the people as demonstrated through the ballot box. That is the decision of the court of Appeal in Agbaje and Fashola.
My lord, it is apt for this petition. This particular one. My lord, in paragraph 3.19, on page 8, to 3.94 on page 33, we have done a summary and critique of all the witnesses called by the petitioners. My lord and on page 34, particularly, paragraph 3.96 and 3.97, we have referred your lordships to the decision in A C N and Nyanko, bringing out the very important and the imperative of a petitioner, calling agents at the polling units not relying on hearsay evidence to the forth power and one relying on as it were, my learned friend, who is PW 41 playing the roles of the omnipotence and omnipresence, seeing everything. We have cited cases, staying somewhere in Owo and saying I monitor, I saw everything. It is only God who has that attribute of seeing all, hearing all, witnessing all, appreciating all. No human being, no SAN (laughter).
My lord, it is very important that we draw your lordships attention to a recent decision of the Court of Appeal in this matter, that’s Akeredolu against Mimiko, my lord, just decided this Friday 19th April 2013, by the Court of Appeal, it is not reported. Akeredolu against Mimiko, my lord, it is CA/EPT/AK/GOV/05/13. My lord, it is a decision of a Court of Appeal which is binding on this honourable court. In that decision, my lord, it is still fresh from the oven, particularly pages 14, and 15 to 17. The Court of Appeal reiterated the very importance of section 84 of the Evidence Act vis-à-vis computer generated evidence and came to the conclusion that any computer generated evidence that does not comply with the provisions of the act, is inadmissible. Not my lord. I am going to submit sir, that the bottom has been completely knocked out from this matter. Exhibits E50 A E50B, Exhibit B51, B52A, B52B, B55, B56, B57, B1 to B57, B20, D57, A1 to A20 are all computer generated documents.

My lord, when we were at the trial stage, we all said let documents come in, we would object to them at the appropriate stage. My lord, this is the appropriate stage, and we have also referred your lordship to the case of OSIJI and UNION BANK to the effect that even at the judgment stage, your lordships would discountenance this document.
My lord, may we also refer to the case of KUBOR and DICKSON, it is a Supreme Court decision, the first Judicial Authority interpreting Section 84 of the Evidence Act, where your brothers of the Supreme Court said it is mandatory. “This is the very first time we are introducing computer generated document, admissibility of same into our Evidence Act and that any document that does not comply with the provisions, that document is inadmissible.”
My lord, having said all these sir, may I also draw your lordships attention to the list of addition of authority….cases no. 1,2 to 17 are all unreported decisions of tribunals, Court of Appeal and Supreme Court under this present dispensation, the Electoral Act 2010 as amended.
My lord, Certified True Copies supplied. My lord in the first case which he cited OMAR and INEC, it was a case handled by my very able learned friend Akin Olujimi and lost with a narrow margin in Nasarawa of just 3,000 votes, from the Election Petition, to the Court of Appeal, to the Supreme Court. The Supreme Court said you did not prove your case….and then, let me commend him (Akin Olujimi), he did better than this, he performed better than this and he lost woefully.
My lord, then the summary of it sir, why are we here? What exactly are we here for? They are talking of injected voters, that is the crux of their matter. I submit sir, that the crux of this matter relates to injected voters, talking of the discrepancies of 2011 voters register and 2012 register, and my lord, very important, they did not call anybody except PW 41-my learned friend, who said here at the witness box that he was in Ibadan, he never registered as a voter in his life in Ondo state, his name was not on the register of voters in 2011, but his name was there in voters register of 2012. If anybody has been injected, I submit sir, if anybody has been injected into the voters register, it is the PW 41, the first petitioner(laughter). If anybody… that is the only one that has been proven, he admitted under cross examination.
And my lord, assuming you are not a medical doctor, if everybody has been given five miligrammes of injection, I think his own (Akeredolu) is hundred miligrammes. His own is overdose…He said it.

My lord, therefore sir, I submit further sir, question of injection or no injection of voters, you don’t have jurisdiction to even countenance it, you don’t have jurisdiction, tribunals don’t have jurisdiction. And lastly my lord, witnesses came here and that is what they have been hammering on….in their written address ticking of register, non ticking of register, did you thick to the left or to the right, to the left to the right….Are we soldiers?
My lord, it is irritating, my lord, it is a non issue in election matters, and Supreme Court has decided it in the case of CPC and INEC….It is in our reply, my lord, we have cited this in our reply, it is in our reply address. My lord, permit me to read sir, permit me to read what Odili JSC said sir, “learned counsel on their behalf submitted that there is nothing in the electoral act provision which made the failure to count the number of Q or U…….Mr Rotimi Ojo” and, he went further…His lordship held, my lord, “that is irritation, is a non issue”.
My lord instead of them to be facing the substance, they were facing the shadow. He said on this matter of ticking or marking, “appellant seemed to take shelter in their quest to establish either over voting or irregularities or malpractices…..which count the base for election, however, in setting up this adventure, is an adventure, appellant went on a journey without the necessary pleadings that would have been able to make them establish over voting, malpractices as enunciated by the electoral act, rather, they went empty handed and dwell into the minor details of ticking or marking on the right and left. A situation akin to blowing hot air which has no value.”

Quoting the Supreme Court, they have come here to blow hot here, which is valueless. My lord, may I urge you to dismiss this petition, and to hold sir, with respect to the petitioner, they have come on an adventure, on a picnic. It is not the serious business of this tribunal, and as it has been said, right from the period election started, even from the Greek city states now to England.., it is not your duty my lord, it is not the duty of the tribunal to change or substitute the wishes of the electorates as demonstrated through the ballot box by a mere petition, this is a mere petition, which is very very flimsy. My lord, may I thank you for the audience, and I urge u to dismiss the petition. Thank you my lord.

ALLI YUSSUF (SAN)(SECOND RESPONDENT):
My lord, may I with respect sir, adopt all the adumbration of the learned senior counsel for the first respondent, as mine, and I will make short synoptic submissions. My lord, on the need for your lordship to reject the exhibit 50 series, your lordships have been empowered by the Supreme Court and the Court of Appeal that such exhibits are not only inadmissible, and that even if for any reason that due to inadvertent, they are admitted, the only duty your lordships have is to reject them at the point of writing of your judgment.
My lord, I want to cite to your lordships an authority already cited, unreported decision of the court of Appeal, Akure Division, delivered on the 19th of April in which your lordship’s earlier ruling was affirmed by the Court of Appeal here, your lordship decision was affirmed last Friday. At page 18 up to 19, their lordship gave a stamp of authority to your lordship’s decision in the following words. In interpreting Section 84 subsection 1 of the Evidence Act “going by the foregoing provision, it is discernible that the Appellants and the present petitioners who are desirous in demonstrating electronically the content of Exhibit P15A and P15B failed.”

This is very important, ‘failed to lay the necessary foundation regarding the condition,’ your lordship cannot overrule this at this point because this is binding; this is the important aspect of this case. Your lordship cannot overrule this because the higher court has held that they did not demonstrate, they did not lay the necessary foundation regarding the conditions for the electronic gadget or computer they were going to use. Those are the exhibits they purported to have tendered here, to the extent that those conditions as spelt out in Section 84 are unfulfilled, the demonstration ought not to have been allowed and should not be allowed. And the Court of Appeal went further, very instructive, “to my mind since exhibit P15A and P15B are already before the tribunal whether rightly or wrongly, the tribunal should be left alone to take a decision on it one way or the other, who knows the envisaged demonstration may have ended creating confusion on the line of the tribunal rather than educating it.” Your lordship should not entertain it, I pray you sirs, that you should not allow yourself to be confused.

My lord, on the second, may I also refer to the KUBOR against DICKSON supra, my lord, Kubor is no. 13 on our list, particularly paragraphs B to G, there is no evidence or record to show that the appellants tendered exhibits D and F, certified any of the above condition….In fact, they did not, as documents were tendered and admitted from the bar, no witness expert before the tendering of documents, so there was no opportunity to lay the necessary foundation for their admission as…..under Section 84 of the Evidence Act 2011.

No wonder therefore, that the lower court held at page A8 of the record thus; “a party that seeks to tender computer generated document needs to do more than just tendering same from the bar. Evidence in relation to the issue of computer must be called to establish the condition set out under Section 84.” And I agree entirely with the above conclusion, since appellant never fulfilled the conditions by the law, exhibit D and F were inadmissible as computer generated evidence.
My lord, on severance, there have been arguments that ‘though I pleaded crime, but they are severable,’ I submit first and foremost sir, that by the nature of the pleadings in this case my lord, the allegation of commission of crime and non-compliance are two intertwined, interrelated that head or tail, petitioners will lose. My lord, severance can only take place in matters which a petitioner or a party has deploy so much care in drafting his pleadings, that allegation of crimes are pleaded separately and those of non-compliance separately, but in this instance which is replete from the petition, there is no where anybody can do any scientific separation, in fact, they are bound Siamese twins that any attempt to separate them will lead to death.

My lord, I so urge, I refer your lordships to case number 2 on our list, no. 12 and no. 14 and 15. My lord, there are these general allegations as submitted by my learned friend of the first respondent, that, ‘oh! There is injection of 164,000 of the voters register.
I submit as follows:
(1) the only way they can prove that allegation,( 1) they must demonstrate before your lordships that the total number of voters on the original voters register of 2011 was not up to the people who cast their votes on Oct. 2012, in other words, if there have been ten thousand people on the original list, we now have 12,000, 15,000 votes, then u can now say oh! the injection has influenced the result of the election, but in this case, u have demonstrated that there are more than 1.5 million voters on the original voters register out of which less than 700,000 voters voted, so clearly, injection quote and unquote, is neither here nor there. That is no. 1.
(2) Number 2, they would have to plead and prove to your lordships that the purported 164,000 people were to vote for them.
(3) No. 3, My lords, they would have to bring substantial evidence of those purported persons whose names were injected to come before this tribunal and prove to this tribunal that they would have voted otherwise, or that they voted at all.
(4) No. 4 sir, I have never heard this before, this is strange to me because this is a strange petition because, there used to be petition filed by somebody who came second.
(5) Now, fifthly, for them to succeed on that allegation my lord, they must show to your lordships at the inception of the trial that all those on the second voters register were not qualified by law have been registered by INEC, that is very important because what u are saying as a matter of fact is that look what they have done is illegal but the law is clear that for u to register in Nigeria as a voter, age is very important, u must be more than 18, u must be a Nigerian, u must be resident of that area. So they must show that there was no fulfilment of these conditions for those people whose names appear on that register. It is only then they can succeed.
Having failed in all these parameters my lord, your lordships should treat those allegations with the pinch of salt, and I pray u to do so. My lord, there have been hues and cries that oh u didn’t call witnesses and so, u are….
I submit sir, that where a petitioner like in this case, has failed to lead or show credible evidence, there is no duty on the respondents to lift a finger. No. 2, and this has been settled, the relief sought by the petitioners are in nature, in fact they are declaratory reliefs, they cannot be granted even on admission, even if we have folded our arms, even if we didn’t file a reply, it is their onerous duty. May I refer your lordships…having not discharged those burdens, their duty.
Then thirdly my lord, we have been able to demonstrate even from their own witnesses, we have put our defence across through them and the witnesses called by the first respondents. So what else do we need to do? So my lord, I refer your lordships and I rely on cases no. 4, 5,6,7,8 and 9. My lord, we have heard argument from the other side, that oh we tendered so many documents, I say with respect sir, that though they fathom, they have brought many documents sir…there are no documents sir. That is my submission. If they have to dump documents sir, not here they have put them inside Ghana Must Go, we don’t know what is there, lets assume they were documents, I hope we consult party registration of A C N whatever they are, they were not documents in the eyes of the law because they were not demonstrated as require by law before your lordships, and without demonstrating them, it is just a waste of everybody’s time by bringing them in the first place.
I therefore pray your lordships in dismissing this petition, to hold sir, that on all parameters of standard of prove; either beyond reasonable doubt or of the preponderance of evidence, sadly, the petitioners failed on all fronts, so we pray u sir, that they have to fail sir, like they failed elsewhere, they have taken us to Appeal Court they failed, because they didn’t do the needful.
Finally sir, the last authority on the list, unreported decision of the Supreme Court, in a matter that was similar to this between, virtually between the same political parties in Kwara state. So my lord, I pray u sir, case no. 15….. I pray u to dismiss it, and in that case, that Belgore’s own at least, he came second before he challenged the governor. So, I thank u sirs.

THIRD RESPONDENT:
My lord, we reiterated by the Supreme Court the case of CPC vs INEC in the Presidential Election Petition where the Appellate court deducted from the rather incongruous situation created by the Court of Appeal on the issue of shifting of burden of proof in cases on the guises of the incomprehensible so called negative allegations, it was on this pedestal that we scrutinize the case by the petitioners in this case. They assume the burden of establishing by evidence beyond reasonable doubt of the allegations. The majority of allegations they presented in this court based on allegation of criminality. Whichever way their case is viewed, they have not alleged infraction which amount to offences under the Electoral Act, whether they called it injection, it amounts to inflation which is criminal in nature, that burden, my lord, therefore cannot be satisfied by highlighting the perceived inadequacy of the respondents case. My lord, I say so because the petitioner can remember the case of …. vs WAMAKKO… It is remarkable my lord that simply, the Court of Appeal indicted the INEC for not calling any witness, but in that case, INEC did not call any witness, INEC rather chose to cross examine based on documents tendered by the first respondent.
My lord, in the final analysis, the documents from which the evidence under which cross examination were elicited were eventually ruled inadmissible as at the end of the case, there was no evidence whatsoever either direct or under cross examination. My lord, that is a different situation, the situation we have here is exactly the same as CPC vs INEC, the Presidential Petition because again, INEC called no witnesses and then there was heavy weather that INEC did not abandon the case and did not call any witnesses. My lord in that case, just like here, exactly the same thing. The Supreme Court held categorically that when the parties exhibit evidence under cross examination that there would be a difference between not calling a witness and not introducing evidence, different between a witness and evidence.
And in this case, just like the Presidential Election case, there was an agreement by the parties of the documents that will be tendered, and the documents so tendered are INEC documents, our own documents, so the moment they tendered INEC documents, they are as well as us, called evidence at every polling unit in Ondo state. My lord, it is fair that we cannot introduce oral evidence to alter the contents of our own documents, we are going to enhance them…… my lord, and this cannot be presumption of regularity of INEC result, the legal presumption of legal regularity of INEC result. The petitioners must assume the burdens of calling polling agents if they disagreed with the documents that are presumed valid, and they must call polling units agents. Unfortunately in this case, outside PW 3 and PW 22, all other witnesses from PW 1 to 41 did not give evidence of what transpired at identified polling units, they were at large, roaming….there is an interesting case of A C N vs YANKO 2012, 11 SC 21 particularly my lord, at page 50 paragraph A to D….the question of whether the evidence of ward supervisors are worthy evidence, there is no doubt that the evidence given by the witnesses at the events that occurred at the various polling units which were under their supervision was not based on their personal knowledge alone as they told the tribunal that they also got their information from polling agents at the various polling units, but PW 1 and PW 55 failed as they are unable to disclose the source of their information…………….

AKIN OLUJIMI SAN, (PETITIONER’S COUNSEL):
My lord, on the evidence before your lordships, including the exhibit tendered by the petitioners, it is our humble submission that petitioners have proved their case, I urge your lordship to give them judgment. My lord, the attempts made by the second and third respondents in their address to extenuate their failure to call evidence, is with due respect, contravened. The authorities they cited are quite unhelpful because in those cases which they relied on, the petitioners failed to prove their cases….. and what we require in law in situation like this is minimal proof when the respondents failed to call evidence and we give more than minimal proof.
My lord, I need to demonstrate sir, that the call of the petitioners case my lord, is founded on the 2012 voters register which we alleged and proved, was heavily compromised, there is no reason this tribunal can uphold any election based on the register. My lord, there are three main sources by which your lordship could determine the allegation that the voters register was heavily compromised. We refer my lord, to the voters registers which have been tendered in evidence in Exhibit B1 to B16. We also refer to Exhibit P57 pages B1 to B20 tendered by PW 25, they were extracts from the electronic voters register, prepared and tendered by PW 35….My learned friend for the first respondent referred to the case of Court of Appeal and said Section 84 of the Evidence Act was not on that note, in regard to that evidence, I think he missed the point, that is the evidence of PW 35.
My lord, I humbly refer to Exhibit B55 which is the report of PW 35, and page 3 thereof, my lord could see sir, that we comply fully with Section 84 of the evidence Act. We are much aware of that provision and we took care to comply with it. It is clear on page 3 of Exhibit B55. All the argument he made on the court of Appeal decision, with due respect, are of no assistance whatsoever. And one additional point I should make on that submissions sir, is that, even there was no case made….we were the appellant in the Court of Appeal and what we went there to do was to challenge on orbiter, so my lord, the second point I am making on it sir, apart from compliance because we have done that, even that decision he relied on, with due respect sir, there was no issue before the court of Appeal turning of Section 84, no issue whatsoever, they just strayed……in law it binds nobody, it binds nobody, that is the law. That even the issue was properly raised and was returned by the court of Appeal, what we are saying is that the it lies in the Section 84 of the evidence Act.

My lord as said sir, that there are three sources by which your lordship can determine the allegation that the voters register was heavily compromised, and I have referred to voters register in Exhibit B1 to B16 and then Exhibit B57 volume 2. Then the third one is electronic register itself Exhibit B50 and B50B which the Court of Appeal said your lord could make up your minds on. My lord, incidentally, my learned friend for the third respondent admitted here that all documents tendered by us are their documents and that they are regular documents, he is even relying on them. So my lord, we urge your lordships sir to compare Exhibit B1 to B16 with Exhibit E27, P1 to P20, it refers my lord, that all the names, photographs and details in Exhibit B57, B to B20 are contained in Exhibit B to B16, that is the voters register used for the election. So we urge your lordship to further call to the open Exhibit B 50 and Exhibit B50B.
My lord, it was from these electronic registers that PW35 extracted Exhibit 57 B1 to B20 which is before your lordship which he demonstrated; it is evident in the court here. My lord, what your lordship will find sir in these Exhibits mentioned on the electronic register, there are multiple registrations, that is undeniable. Even they were affirmed by the witnesses that were called by the first respondents, 14 of them said yes, it was INEC, I registered 4 times, I registered twice, INEC allowed us to vote, so that was the evidence they gave under cross examination, so there are cases of multiple registrations. My lord, u will even find while looking at Exhibit…..that they even registered twice as a human being. And they gave them numbers. These allegations have been clearly brought out in PW 35. My lord, u will also find that there were injections of over a hundred thousand voters into the 2012 voters register. INEC in fact admitted it……

OLANIPEKUN’S REPLY:…..
that the election is or was invalid. He narrows it down, he moves from the position of the petition, his moves from the reliefs. My lord, may I guide u to be guided by two provisions of the electoral act Section 138 1 and 139. My lord, Section 138 1 says that your lordships cannot void any election petition outside the ground stipulated therein. Injection of voters’ registers cannot be accommodated under any of the grounds. Challenging an election cannot be accommodated. There are 4 grounds of point of law, my friend knows that. You don’t have that jurisdiction to void an election on the basis that injection of voters register for 2012, cannot be accommodated on any of the four grounds, and your lordships cannot go outside those 4 grounds. Yar’ Adua and INEC’s list, my lord is on the list. Then Section 139, my lord, is talking of non calling of evidence. My lord, the position in electoral jurisprudence which is sue generis is different from the practice of other civil proceedings, my lord it says and you are mandated sir, “an election shall not be liable to be invalidated by the reason of non compliance with the provisions of this Act, if it appears to election petition tribunal, appearing to u that non compliance with the provisions of this act that the election was conducted substantially like other principles of this act and that non compliance did not affect substantially the result of the election.

My lord, civil law do not apply. My lord, this is the law. My lord, lastly sir, the issue of voters register and the computer generated documents, the Court of Appeal has held emphatically that the computer generated documents are not admissible. If you find your lordships to the judgment, my learned friend said it was not submitted before them, he said it was not raised. My lord, it was raised; it is on pages 14, 16. The court held in page 14 my lord, “this is to say that one month prior to the election in issue that the appellant was already in the custody of the voters register, both hard and soft copies (pre-election matters, the court will decide on that, pre election)(laughter). Then page 16, it was in the case of being led in evidence in this and the oral application to allow him carry out the demonstration was made motion on…..there shall be no oral adumbration.” And now they concluded on page 17 “ now for PW 35, I observe that there was nothing on it to the fact that the computer used to generate the exhibit to carry on the demonstration before the tribunal, had been used regularly to store or process the information for the purpose of any activity severally carried out over that period.” We are saying my lord, that this is binding, my lord, we just refer your lordship to cases no. 35, 36 and the case No. 32 AG FEDERATION and CNPP, this is a decision of Supreme Court in that case, there was a motion before them by Chief Afe Babalola, the motion was argued and the Supreme Court dismissed the Appeal. He went further; he went again to say he didn’t argue, and they said the matter has been decided. On this issue on this matter my lord, DALHATU and TUNRAKI……… there is a decision, if they don’t like it they could have appealed against it. My lord, they (petitioners) were the one who went to appeal sir. Lastly my lord, assuming that that document even the exhibits were…..meaning my lord it was dumped, the documents were dumped on the court, yes, even by their own contention, they said they wanted to demonstrate, the court did not allow them, they went to the Court of Appeal, and up till now, they have not demonstrated, the documents also were dumped. We urge your lordship to take the documents as dumped in the alternative.

That is my submission sir.