Congress For Progressive Change V. Independent National Electoral Commission & Ors. (2012)

LAWGLOBAL HUB Lead Judgment Report

CHUKWUMA-ENEH, J.S.C.

The appellant in this matter has appealed to this court against the unanimous decision of the Court of Appeal Yola Division given on 6/1/2012 dismissing the appellant’s appeal in this matter for lack of merit. The appeal to the lower court is against the decision of the Taraba B State Governorship Election Tribunal that has as well dismissed the appellant’s petition. The petitioner has been the appellant in the proceedings in this court and before the two lower courts. The appellant (C.P.C) and the 3rd respondent (P.D.P.) as political parties have sponsored respectively one Engineer Ahmed Yusuf and the C 2nd respondent as candidates for the position of governorship position for Taraba State in the general election of 2011. The 1st, 4th and 5th respondents have returned the 3rd respondent as duly elected governor of Taraba State.

The parties herein have filed and exchanged their respective D briefs of argument; the same have been adopted and relied on at the oral hearing of the appeal before us in this court on 1/3/2012; and to save the instant appeal from elapsing by effluxion of time (i.e. 60 days from the decision of the Court of Appeal as per Section 285(7) supra) the judgment of this court in the instant matter has E been fixed for 5/3/2012. The appellant’s case in its brief of argument has been predicated on 3(three) issues raised for determination to wit:

“1. Whether considering the provisions of section 285(8) of the Constitution of the Federal Republic of Nigeria p 1999 (as amended) the Court of Appeal has the jurisdiction to deliver judgment in the this case and reserve its reasons to a later date.

(2) Whether the Court of Appeal was right when it affirmed the decision of the Trial tribunal that since witnesses did not lead evidence in support of the documents tendered will not look at them.

(3) Whether considering that election petition is sui generis, the Court of Appeal was right in holding that since the relief sought by the appellant are declaratory the burden is fixed on the appellant to prove its case notwithstanding the fact that the 2nd respondent admitted substantial part of the petition.”

The 1st, 4th and 5th respondents have filed a joint brief of argument in this matter and have raised similar issues for determination as encapsulated in the appellant’s brief of argument that I see no need repeating them. The 2nd respondent however has in his brief of argument formulated the issues for determination as follows:

“(1) Whether the decision made by the Court of Appeal on 6/1/2012 dismissing the appeal of the appellant in this case is unconstitutional or invalid simply because the court stated thus in the course of its judgment. “I will elaborate on this on a later day” having regard to Section 285(7) and (8) and 294(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999?

(2) Whether the Court of Appeal was wrong when it upheld as unassailable the decision of the governorship Election Petition Tribunal Taraba State that it could not be called to supply the evidence which the appellant failed to do from the recess of its chambers in order to assist the appellant prove his allegation of corrupt practices against the respondents?

(3) Whether the Court of Appeal was wrong in holding that the burden of proving his allegation of corrupt practices and establishing entitlement to declaratory reliefs sought lay on the appellants?”

The 3rd respondent has raised a preliminary objection in which it has maintained that the appeal is incompetent as the court has no jurisdiction to hear the same under Section 285(7) of the 1999 Constitution (as amended). It has relied on 7 grounds of objection which on the whole have raised the simple question of whether the court can remit the appeal for hearing before another panel of justices of the Court of Appeal after the expiration of 60 days provided in section 285(7) of the 1999 Constitution (as amended). The appellant has not reacted to the objection as no reply brief has been filed by the appellant in that regard. Having considered the objection cum the grounds in expatiation, I think the issue raised therein is coterminous with the issues to be resolved in the main appeal itself and so not a matter which can be taken at an interlocutory stage. The objection is most unnecessary in the light of the issues raised for determination even by the 3rd respondent in its brief of argument. I therefore overrule the same as it amounts to using two similar processes to achieve the same purpose which in my view is even then an abuse of process.

Furthermore, it is my view that the objection has to be taken at one fell swoop with the appeal itself in order to obviate unnecessary repetition of the parties’ entrenched positions in this matter. The 3rd respondent has also enuciated its arguments in the appeal in its brief of argument in the event of its objection being overruled.

The 3rd respondent’s brief of argument filed in this matter has raised three issues for determination which in content and substantiality are very similar to the issues raised by the other respondents in this appeal. I see no need repeating the issues all over again as I go ahead to review its case in this matter.

The 3rd respondent has submitted that the Court of Appeal decision has determined the merits or otherwise of the appellant’s appeal and therefore the inadvertence in referring to section 285(8) (supra) is a mere surplusage and has not occasioned a miscarriage of justice. It has D relied on a number of decided cases of this court in support of the point. See Ihesi v. Arinze & Anor. (2007) 5 NWLR (Pt. 1027) 241 at 251; INEC v. Musa & Ors. (2002) 9/11 SCNJ 1 at 6, (2002) 17 NWLR (Pt. 796)412.

It also argued that the law is clear and settled that documents £ tendered from the bar are not a conclusive evidence of proof of the particular facts therein unless such documents have been positively proved by oral evidence connecting them. See Jang v. Dariye (2003) 15 NWLR (Pt. 843) 436; Anyanwu v. Uzowuaka (2009) 13 NWLR (Pt. 1159) 445 at 468. And so that where a petitioner fails to prove the facts alleged, in his petition is liable to be dismissed. See Haruna v. Modibbo (2004) 16 NWLR (Pt. 900) 487.

On the question of declaratory reliefs claimed by appellant, the 3rd respondent has posited that the appellant has to proffer cogent and credible evidence to show the strength of his case and rely on the same in order to succeed thereof as against the weakness of the respondents’ case. See Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 189 at 214 to support the case that the court does not grant declarations in default of defence or indeed on admission without hearing evidence and being satisfied by such evidence. The instant appellant must therefore adduce oral evidence to establish this item of its claim. The court is urged to n resolve all the issues in this appeal in favour of the respondents.

If I may observe the issues raised by the 2nd respondent as set out above and the 1st, 4th and 5th respondents (although not set out here) as I have said above are in all material particulars identical to the appellant’s issues as set herein. Again, in that vein I may paraphrase the three common issues raised for determination herein by all the parties in this appeal; they have culminated firstly on whether there is the want of jurisdiction to deliver the decision of the lower court pursuant to section 285(8) of the 1999 Constitution as amended i.e. to elaborate the same at a later date as stated in the said judgment; also that upon the upholding of the findings of the trial tribunal that the appellant (as petitioner before the trial tribunal) has failed to discharge the burden of proof placed on it to link by evidence the documentary evidence i.e. exhibits P1- P201 with any particularity to the relevant facts as pleaded in the petition; and failing to establish by oral evidence the entitlement to the declaratory reliefs claimed by the appellant. The 6th respondent as a true umpire so to speak having no decisive stake in this matter has maintained its neutrality by filing no brief.

However, it has happened that on 6/]/2012 the Court of Appeal has delivered its decision in this matter having captioned it by stating that it has done so pursuant to section 285(8) supra and ending the decision by saying that “I shall elaborate on this on later date” thus it has tasked the appellant to appeal this matter to this E court urging that the Court of Appeal has no jurisdiction to give its decision piecemeal. See Section 285(8) (supra).

In challenging the decision the appellant has considered the combined provisions of Section 285(8) supra on the backdrop of 233(2) and 246(1) (b) (ii) and (3) both of the 1999 Constitution (as F amended) and has submitted that the Supreme Court is the court in all final appeals albeit in the causes in regard to the governorship Election Petition matters appealed from the Court of Appeal; in other words, that such matters have to be covered under Section 233(2) (e) (iv) supra. Similarly that the Court of Appeal is by virtue Q of Section 246(1) (b) (ii) and (3) (supra) also the court in all final appeals from the election tribunal where the causes pertain to the National and State Houses of Assembly election matters. The point is taken even then that the Court of Appeal has not up till now given any reasons for its decision as per the decision of 6/1/2012. In this regard the appellant has claimed to be greatly disadvantaged and so that both the 14 clays from 6/1/2012 allowable within which to appeal the decision by filing a notice of appeal and 60 days within which to prosecute the appeal it is submitted have elapsed. The appellant has also construed the meaning of the words “decision” and “judgment” and relied as per Bamaiyi v. Attorney-General of A the Federation (2001) 7 SCNJ 346 at 355, (2001) 12 NWLR (Pt. 727) 468 to suggest that the decision of the Court of Appeal is neither a decision nor a judgment and has posited that the appellant in the situation has been denied its constitutional right of appeal amounting to a denial of fair hearing and has urged the court to set B aside the decision of the Court of Appeal of 6/1/2012 for reserving its reasons to a later date for want of jurisdiction to do so. This issue is the appellant’s trump card in this appeal.

On issue 2: the appellant relying on a plethora of authorities to wit: Anyanwu v. Uzowuaka (2009) 13 NWLR (Pt. 1159) 445 at 451; Emeje v. Positive (2010) 1 NWLR (Pt. 1174) 48 at 49 paragraph 6-11; Igbeke v. Emordi (2010) 11 NLR (Pt. 209) 1, (2010) 11 NWLR (Pt. 1204) 1; Tangale Traditional Council v. Fawu (2002) FWLR (Pt. 117) 1137 at 1163 paragraphs G-H, (2001) 17 NWLR (Pt. 742) 293 and Omoju v. F.R.N. (2008) 2 SCNJ 97 at 215, (2008) D 7 NWLR (Pt. 1085) 38 but excluding Arabambi v. A.B.L.L. (2005) 12 SCNJ 331 at 354 – 355 reported as Arabambi v. A.B. Ind. Ltd. (2005) 19 NWLR (Pt. 959) 1 has submitted that the Court of Appeal has affirmed the decision of the Election Petition Tribunal on the erroneous premise which has alleged that the appellant has E led no evidence to connect the relevant documents tendered in the tribunal to support the pleadings as per the petition even as it is trite that documentary evidence is the best form of evidence and more reliable. It is contended that the documents exhibit P1-P201 have practically been dumped on the court (untied).

On issue 3: It has been submitted that the burden of proof as per declaratory reliefs is fixed on the appellant and being aware of this onus the appellant it is contended has discharged the burden satisfactorily even on a minimal scale as the 22nd respondent has admitted substantial averments of the petition. It is also its Q contention that this burden even then does not extend to election petition matters. No authorities I must confess have been cited to court to support this novel proposition. It must be taken as clearly unsubstantiated.

In the premises the court is urged to set aside the decision J_J of the Court of Appeal and to affirm the decision of the Court of Appeal.

The 1st, 4th and 5th respondents having submitted that the appellant wrongly has misconstrued the wrong law as per Section 285(8) of the 1st, Amendment Act which does not contain the words “or Court” immediately before the words “may adopt” as per the 2ncl Amendment Act i.e. being the correct provisions of Section 285(8) it has naturally missed the salient point as the Court of Appeal has rightly acted in pursuance to Section 285(8). It is opined that regard has to be had as to the other relevant and similar provisions of the Constitution in construing these provisions including in this case, section 246(1) (c) (ii) supra to show that the provisions of section 285(8) can be invoked by the Court of Appeal in all final appeals from the Election Petition Tribunal in regard to the National and State House Assembly Election matters if I may observe over which it is the final court. They have relied on a host of authorities for so contending including Inakoju v. Adeleke (2007) All FWLR (Pt. 353) 3 at 104D, (2007) 4 NWLR (Pt; 1025) 423; Attorney-General of Abia State v. Attorney-General of the Federation (2003) FWLR (Pt. 152) 131 at 201G, (2003) 4 NWLR (Pt. 809) 124; Kraus Thompson Organisation v. N.I.P.S.S. (2004) All FWLR (Pt. 218) 797 at 809 F-G, (2004) 17 NWLR (Pt. 901) 44; Balogun v. Ode (2007) 4 NWLR (Pt. 1023) 1; Attorney-General of Kaduna State v. Hassan (1985) 2 NWLR (Pt. 8) 483; Attorney-General of Lagos State v. Eko Hotels Ltd. (2006) All FWLR (Pt. 342) 1398 at 1471 H-1472A, (2006) 18 NWLR (Pt. 1011) 378 and thus having construed the said provisions it has been submitted that even though the Court of Appeal has as stated proceeded to deliver a brief judgment all the same it has delivered a comprehensive judgment consistent in every respects with a regular and full judgment which has affirmed crucial findings of the trial tribunal’s judgment and that it has actually been delivered pursuant to section 285(8) supra. It is a full judgment with reasons for its findings that is to say, notwithstanding having stated that it will elaborate on the judgment later.

SC.33/2012