The court berated the appellants for attempting to overreach and ambush the respondents.
The Court of Appeal sitting in Akure has dismissed an appeal by the Action Congress of Nigeria, ACN, governorship candidate in the last October election in Ondo State seeking to nullify the lower Tribunal’s ruling which refused the electronic demonstration of the 2011 and 2012 voters’ registers.
The lower tribunal had on February 25 refused an application by the ACN Candidate to allow his witness to demonstrate the contents of the voters’ registers to prove alleged multiple registrations and voting during the last governorship election
The judgement did not go down well with Rotimi Akeredolu, the ACN candidate, who challenged the tribunal’s judgment at the appellate court.
In a unanimous judgment of the five-man panel read by Justice Jombo-Offor, the court berated the appellants for attempting to overreach and ambush the respondents by bringing in the application at that stage when the respondents would have no opportunity of replying.
Citing the case of Orji v Ugochukwu, the judge said the appellants cannot at reply brief bring in such facts which he ought to have pleaded in the main petition to remove element of surprise and give the respondents time to reply.
“The witness was not originally listed in the petition but in reply brief which was totally irregular. The petitioner cannot at reply stage be allowed to bring in such substantial evidence as it will be prejudicial for the appellants to bring in PW35 being a time the respondents cannot reply to the brief.”
According to Mr. Jombo-Offor, the order of inspection of election material granted the appellants by the Tribunal did not include demonstration of the documents.
“The order of inspection granted by the tribunal was restricted to only the materials used during the election such as the Certified True Copies (CTC) of forms and the ballot papers. The order never included demonstration of the Voters Registers.”
Relying on Sec. 84 0f the Evidence Act as well as Para 41 (3) First Schedule of the Electoral Act 2010, the court ruled that “since PW35 was not the maker of the registers, it will be unlawful to allow him to demonstrate it.”
“Moreover, PW35 who is not the maker of the documents, and they were never tendered by him or through him, will be ignorant of the contents of the documents. It is a fact that since one cannot give what he does not have, he cannot even educate others on it.
“Appellants have failed to lay necessary foundation as spelt out in the Evidence Act in respect of processes of demonstration. There is no doubt that such electronic gadgets are not immune to hacking or manipulation.
“Who knows whether the said demonstration could have caused more confusion in the matter at the lower tribunal? Since the exhibits were already in its custody, the tribunal should have been left alone to take a decision on it.”
Concluding, Mr. Jombo-Offor said, “Having regard to the pleadings of the parties, the tribunal was right in refusing the appellants application for demonstration of the exhibits and its decision is hereby upheld. This appeal lacks merit and it is accordingly dismissed.”
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