Nasiru Garba Dantiye & Anor V. Ibrahim Yushua’u Kanya & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
JOHN INYANG OKORO, J.C.A
This is an appeal against the judgment of the Governorship and Legislative Houses Election Petition Tribunal sitting in Dutse, Jigawa State in Petition No. EPT/JG/006/07 delivered on 7th September, 2007 wherein the Tribunal dismissed the petition of the Petitioners. The first Petitioner was a candidate sponsored by the second Petitioner the All Nigeria Peoples Party (ANPP) in the April, 28th 2007 election into the House of Representative seat far Babura/Garki Federal Constituency of Jigawa State. The 1st Respondent was also a candidate in the said election and was sponsored by the 5th Respondent, the Peoples Democratic Party. The 2nd Respondent, the Independent National Electoral Commission with the assistance of the 3rd, 4th, 6th to 114th Respondents conducted the said election. There were five other candidates in the election. At the end of the said election which was originally scheduled far 21st April, 2007 but had to be cancelled halfway due to violence all aver the constituency, the 2nd Respondent declared the 1st Respondent winner with majority of lawful votes of 36, 439 while the 1st Appellant came second with 23, 318 votes.
Dissatisfied with the declaration of the 1st Respondent as the winner of the election, the Appellant as petitioner filed his petition an 21st June, 2007. All the Respondents filed their replies. At the end of trial, the Tribunal dismissed the petition and upheld the return of the 1st Respondent, Unable to agree with the stance of the lower Tribunal on the matter, the appellants have appealed to this court. The notice of appeal is dated and filed on the 28th day of September, 2007 containing nine grounds of appeal. From these nine grounds of appeal, the appellants’ Counsel has decoded four issues for the determination of this appeal as contained in their joint brief.
The issues are:-
“1. Whether the allegation of arbitrary collation and manipulation of results, illegal declaration of three results at two (2) different dates before final collation of votes/results, disenfranchisement of voters and other acts of corrupt practices and non-compliance are not pleaded, proved and substantial enough to upturn the election and return of the 1st Respondent at the election to the Garki/Babura Federal Constituency?
(See Grounds 1, 2, 4, 6 and 9)
(2) Whether in the peculiar circumstance of this petition the Repeat election and use of illegal forms without lawful permission was/is lawful, proper and not substantial enough to upturn the election of the 1st Respondent at the election?
(See Grounds 3, and 5)
(3) Whether the written statement on oath of the RTA (PW2) and the 1st petitioner (PW3) dated 28th May, 2007 are inadmissible in evidence in the circumstances of this ,matter.
(See Ground 7)
(4) Whether the judgment was valid having been delivered by a panel of judges which included Han. Justice Kate Abiri who did not participate in the proceedings.
(See Ground 8) .
The 1st and 5th Respondents in their joint brief dated 12th November, 2007 and deemed filed on 14th January, 2008 by the order of this court, did not formulate any issue for determination but adopt the issues as distilled by the Appellants.
On the other hand, the 2nd, 3rd, 4th, 6th – 114th Respondents (hereinafter referred to the 2nd set of Respondents ) submitted four issues for determination as follows:-
(1) Whether the use of the Forms meant for the collation of the Governorship Run off Election to collate the results of the House of Representative election held on the 28th April, 2007 and the use of the word “Repeat Election” to describe the postponed election held on the 28th April, 2007
were in contravention of the provisions of the Electoral Act, 2006 and also substantially affected the result of the said election to the detriment of the Appellants and to warrant the nullification or invalidation of the result of the election.
(2) Whether the Honourable Tribunal rightly rejected the evidence of the Appellants’ witnesses No.2 BASHIR DAN UMMA and No.3 HON. NASIRU GARBA DANTIYE, as contained in their respective written witnesses statements on oath because of the said witnesses’ denial of the signatures of the deponents in the respective written witnesses statements on oath.
(3) Whether the Appellants have established that the Honourable Justice Kate Abiri did not take part in the proceedings at the Honourable Tribunal and if the answer is in the affirmative, whether
the presence of Honourable Justice Kate Abiri in the Honourable Tribunal’s panel that delivered the judgment on the 7th day of September, 2007 is enough to invalidate and set aside the judgment.
(4) Whether from the evidence adduced before the Honourable Tribunal, the appellants established by credible evidence, the allegation of arbitrary collation and manipulation of results, illegal declaration of three results at two different dates before the final collation of the votes cast at the election, disenfranchisement of voters and other acts of corrupt practices and non – compliance with the provisions of the Electoral Act 2006, to warrant the nullification of the election result and setting aside of the judgment of the Hon. Tribunal refusing to nullify the election result and the return of the 1st Respondent as the winner of the Election to the Babura/Garki Federal Constituency seat in the House of Representatives.
A cursory look at the issues formulated by the Appellants and the second set of Respondents shows that they are basically the same in content and purport. Accordingly, I shall determine this appeal based on the issues as cast by the Appellants in this case.
On the first leg of issue No. 1, the Learned Counsel for the Appellants, after a lengthy’ reproduction of both the petition and the reply of the 1st and 2nd set of Respondents, submitted that there were three sets of results announced for the elections which took place on 21st April, 2007 and 28th April, 2007. He submitted further that the Respondents in paragraphs 3 and 4 of their reply to the petition on page 65 of the Record, agreed that three results were announced.
Learned Counsel however admits that the 2nd set of Respondents denied that three set of results were announced. He urged this Court to hold that the Tribunal failed to draw the correct inferences from proved or accepted facts and or has wrongly assessed or ascribed probative values of undisputed evidence. He further urged this Court to make its own findings. He cited the following cases:-
Awuse Vs. Odili & Ors (2005) 16 N.W.L.R. (Pt. 952) 416/503; Buhari Vs. Obasanjo, (2005) 13 N.W.L.R. (Pt.941) 1 at 203. Daggash Vs. Bulama (2004) 14 N.W.L.R. (Pt. 892) 144 at 241.
On the second leg of this issue, the Appellants’ counsel submitted that by the clear evidence before the Court, it is glaring that the declaration and return of the. 28th April, 2007 was illegal since by the said 28th April, 2007, there had been no final collation of results that could bring out any winner in the election. He cited the case of Alabi Vs. Shaaho (1999) 3 N.W.L.R. (Pt. 595) 387 at 397 – 398.
On the allegation of disenfranchisement of voters, he submitted that out of 170, 502 voters, only 60, 000 ballot papers and 4,000 unused cards were provided. That 106, 502 were not provided for. He concluded that, that number not provided for were disenfranchised.
As regards the last leg of this issue which has to do with other acts of corrupt practices and non – compliance, he submitted that free and fair election cannot tolerate disenfranchisement and that apart from calling witnesses to prove disenfranchisement, all the parties have agreed that more than 40% of eligible registered voters were disenfranchised. He urged this Court to hold that there was proved evidence of substantial corrupt practices and non -compliance in the election.
The Learned Counsel for the 1st and 5th Respondents (hereinafter referred to as the first set of Respondents) submitted that they did not admit in paragraphs 3 & 4 of their reply that there were three results of the election. Moreso, that the appellants did not lead evidence to prove that there were three results declared. Also that the Appellants did not tender in evidence any other Form EC 8E (2) showing that the 4th Respondent or the Returning Officer for the Babura/Garki Federal Constituency on the 21st April, 2007 or 28th April, 2007 declared a result or results different from the Form EC 8C (ii) dated 28th April, 2007. Learned Counsel further stated that the alleged result of 21st April, 2007 was part of a report of INEC in Exhibit 11 which the appellants detached and tendered as Exhibit 9 and that there is no trace of the 3rcl result in the evidence as presented on page 17 of the Appellants brief: He urged this Court to discountenance same. Moreso, that the appellants failed to lead evidence to show that votes were arbitrarily collated and allocated in favour of the 1st Respondent.
On allegation of illegal declaration or result. Learned Counsel submitted that there is no evidence in support of same and should be disregarded. He urged this Court to collate the results in FORMS EC 8A (R) to compare the result therefrom with the result declared in FORM EC 8 E (ii) and also the date on the two forms. He cited the following cases Eruotor Vs. Ughumiakpor (1999) 9 N.W.L.R. (Pt. 619) 461 Nwobodo Vs. Onoh (2007) 3 EPR 180 at 188.
Learned Counsel then urged this Court to hold that the lower Tribunal was right when it held that the issues of Declaration of Three Results, illegal declaration of result and date of result raised in the address of counsel for the Appellants lack basis as they were not made allegations in the petition since address of counsel cannot constitute evidence.
On issue of disenfranchisement, he submitted in the main that there is no evidence of such before the Court. He cited the case of Martin J. C. Ebebe Vs. Patrick Ezenduka (1998) 7 N.W.L.R. (Pt. 556) 74.
As regards other acts of corrupt practices. Learned Counsel urged this Court to disregard it as no evidence was adduced at the lower Tribunal to establish them.
Learned Counsel for the 2nd set of Respondents submitted on the first issue that acts of corrupt practices or malpractices in an election constitute Criminal Acts which require proof beyond reasonable doubt and that the Appellants failed to prove this. He relied on the cases of Boni Haruna Vs. Modibo (2004) 16 N.W.L.R. (Pt. 900) 487, Prof. Eric Opia Vs. Chief Alex Ibru (1992) 3 N.W.L.R. (pt 321) 658.
Also that the authentic result declared by the appropriate and authorized Returning Officer i.e. 4th Respondent is that in FORM EC 8 E (11) and that the results stated in the Final Report i.e. Exhibit 11 signed by the Resident Electoral Commissioner of Jigawa State is only a report on the April, 2007 general elections held on the 14th, 21st and 28th April, 2007. That there were no three results as alleged by the Appellant and urged the court to discountence the said submission. He also urged this court to hold that the Appellants failed to establish the allegations of corrupt practices and non-compliance against the Respondents.
One issue which has to be settled from the outset is the fact that this election was originally fixed for the 21st day of April, 2007 and that midway into the elections, the 2nd Respondent, on the advise of the Commissioner of Po lice had to cancel further proceedings and postpone the said election to the 28th of April, 2007 on the ground that it was characterized and marred by violence. At least all the parties in this appeal agree that the election of the 21st April, 2007 was cancelled and are – run ordered. I find it difficult therefore to appreciate the submission of Learned Counsel for the Appellants that the 4th Respondent declared a result based on the cancelled election. The 4th Respondent was the only authorised officer to declare the result of the Garki/Babura Federal Constituency election and no other person. Thus only the result contained in Form EC 8 E (11) ie Exhibit 9 and signed by the 4th Respondent was the only result of the election as endorsed by the lower Tribunal.’
The Final Report, in Exhibit 11 which the appellants allege was another result is erroneous. ‘That was the general report on the elections held in Jigawa State in April, 2007 and was not a declaration of result as envisaged by the Electoral Act, 2006. And in any case, the Appellants failed to lead evidence to show the three results allegedly declared and it is my view that the lower Tribunal properly found that there were no such three results.
It was contended by the Appellants that the declaration of Result Form is dated 28th April, 2008 whereas the collation of the result was concluded on 29th April, 2007. They submitted that the result was declared before collation was completed. I think the Returning Officer on pages 474 – 475 of the Record of Proceedings has given explanation on why the Result was dated the 28th of April, 2007 even though collation of result was completed in the early hours of the 29th April, 2007. He stated emphatically that he dated the Result the 28th April, 2007 because that was the date the election was held. That explanation was never impugned in any way nor was it shown how the said date on the result form affected the result of the election. It was not also shown that this occasioned a miscarriage of Justice. Certainly this does not mean that the result was announced before collation was completed as opined by the Learned Counsel for the appellants. I think this argument is in the realm of technicality and Courts have since moved away from this realm. I hold therefore, that the, date on the declaration of result form did not in any way affect the result of the election.
On the issue of disenfranchisement of voters, the Learned Counsel had submitted that although he did not call any witness to show that he was disenfranchised, the petitioners had in several paragraphs of their petition alleged several malpractices by which the election of 28th April, 2007 was characterised. It has long been settled that any petitioner seeking a nullification of an election on ground of insufficient provision of ballot papers by the electoral body ie INEC in the instant case, during the election must show that if the number of ballot papers withheld were all released, all the voters deprived of voting would have voted for him.. See Ebebe Vs. Ezenduka (1998) 7 N.W.L.R. (Pt. 556) 74. In the instant case, apart from the fact that the, appellants did not call any voter to testify to the effect that he went to the polling station but there was no ballot paper for him to vote, they fail to lead evidence to show that had the alleged 106, 502 ballot papers been released, they would have been voted for him. It must be noted that even the 60,000 ballot papers, released for the election were not exhausted as 4,000 unused ballot papers were returned at the end of voting on that date. This clearly shows that a case of disenfranchisement anchored by the appellants does not avail them at all.
As regards acts of malpractice and corrupt practices, let me state here that electoral offences are criminal in nature and generally, the onus of proof lies on the petitioner who alleges same. The petitioner owes it as a basic duty to prove that no other person other than the Respondent committed the acts or that he authorised his agents to commit the nefarious acts on his behalf. Until there is credible evidence in that direction, the respondent cannot be held liable for the alleged criminal acts as no one can be punished for the acts of another. See Haruna Vs. Modibo (Supra) Eboh Vs. Ogyifor (1999) 3 N.W.L.R. (Pt. 595) 419 Anazodo Vs. Audu (1999) 4 N.W.L.R. (Pt. 600) 530., Eseduwo Vs. INEC (1999) 3 N.W.L.R. (Pt. 594) 215., Oyegun Vs. Igbinedion (1992) 2 N.W.L.R (Pt. 226) 474.
Having made allegations of corrupt practices against the Respondents, the appellants had the burden of proving same beyond reasonable doubt. This is so because the burden of proof required in criminal matters or civil matters in which claims are founded on conduct bordering on crime differ from the burden which a claimant in a pure civil matter bears. In the instant case, the appellants’ petition was essentially grounded on the conduct of the Respondents’ that bordered on criminality. It was therefore incumbent on the appellants to prove their allegations by credible evidence beyond reasonable doubt. This burden does not shift. It remains with the appellant until it has been fully discharged. See Nsirim Vs. Nsirim (1995) 9 N.W.L.R. (pt 418) 144, UBA Ltd Vs. Odusote Bookstores Ltd (1995) 9 N.W.L.R. (pt 421) 558.
Finally on this issue, in an election petition which alleges mutilation or falsification of result as in this case, the allegation is also criminal in nature and the evidence required in proof thereof must be clear and unambiguous. In other words, the proof must also be beyond reasonable doubt. In the instant case, the allegation of falsification of result was never proved against the Respondents. In circumstance therefore, the appellants have failed to prove allegation of corrupt practices in the said election. This issue cannot, in the circumstance avail them. I resolve this issue against the appellants accordingly.
The second issue for determination in this appeal, ie “whether the repeat election and use of illegal forms without lawful permission was or is lawful, proper and not substantial enough to upturn the election of the 1st Respondent at the election”, is divided into two parts. The appellant in his brief of argument terms the first part “Repeat election” while the second part is termed “use of illegal forms”.
On the repeat election, the learned counsel for the appellant submitted that although section 27 of the Electoral Act, 2006 provides for postponement of election, there is no evidence that it was the commission that ordered the postponement of the election held on 21st April, 2007.
Rather, that it was the Commissioner of Police who ordered the stoppage of the election on that date. That the notice of cancellation of the election was not produced. That since the election held on 28th April, 2007. is called “Repeat Election” which is not known to the Electoral Act, 2006, the said election should be held to be null and void.
On the use of what the appellants call “illegal forms”, their counsel submitted that the use of Form EC 8 A (R) which is meant for Governorship election run – off to record result for the house of Representative election was substantial non- compliance. He submitted further that the approval by a Director of special Duties, INEC Headquarters for the use of the forms was irregular as the said Director cannot be said to be INEC. That only INEC can order an election and use of specific forms and not individual officers. He urged the court to hold that the use of this form was substantial irregularity to nullify the election. He cited these cases:-
- Engr Adamu M. Yahaya Vs. Prof Jubril Aminu & Ors (2007) 7 N.W.L.R. (pt 871) 159
- Biyu Vs. Ibrahim (2006) 8 N.W.L.R. (pt 981) 1 In reply the first set of Respondents submitted that the Respondents’ witnesses evidence as to the reason why the election of the 21st April, 2007 was cancelled, suspended and postponed was never challenged or controverted by the appellants and should be accepted by this court. He cited the case of Edilco NIG. Ltd Vs. UBA Plc (2000) F.W.L.R. (pt 21) 792 at 829. That although the Electoral Act 2006 does not use the phrase “Repeat Election”, the use of the phrase to describe the election held on 28th April, 2007 was not irregular. He urged the court to discountence the argument.
On the use of forms, the learned counsel submitted that the appellants failed to tender any form EC 8 A (11), EC 8B (11) and EC 8 C (11) which they allege to be the appropriate forms to enable the Tribunal compare them with the alleged inappropriate Forms EC 8 A (R), EC 8B (R) and EC 8 C (R) used for the conduct of the election.
That the lower Tribunal was therefore invited to speculate on the alleged changes or differences in the two set of Forms. He urged this court to uphold the Tribunals’ conclusion that the Forms (EC 8 A (R) EC 8 B (R) and EC 8C (R) used in the collation of the results of the election held on 28th April, 2007 were authorised by the Commission (INEC) relying on the evidence of the Respondents’ witnesses and Exhibit 1. And finally that the appellants failed to show how the use of the alleged inappropriate or wrong forms. affected the result of the election. He referred to S.163 of the Electoral Act 2006 Obun Vs. Ebu (2006) All F.W.L.R. (pt 327) 419, Orji Vs. Emoron (1999) 1 N.W.L.R.(pt 168) 476 and Nnaji Vs. Agbo (2006) 2 E.P .R. 895. He urged this court to resolve this issue in favour of the Respondents.
The submission of the learned counsel for the second set of Respondents on this issue is substantially the same as that made by learned counsel for the 1st set of Respondents.
I find it inappropriate to repeat it here.
Although the parties in this appeal are not contesting the propriety or otherwise of the cancellation of the House of Representative election into the Babura/Garki Federal Constituency of Jigawa State held on 21st April, 2007, it is however pertinent to observe that the evidence of the Respondents’ witnesses as to the reason for the cancellation, suspension or postponement of the said election was never challenged or controverted by the appellants. The reason so given was that there was violence due to the fact that the logo of some political parties were not on the ballot papers. It is also in evidence that, acting on the advice of the Commissioner of Police, INEC, through its accredited officials ordered the stoppage and postponement of the election which was subsequently fixed for the 28th April, 2007. It is my view that the lower Tribunal acted within the law by accepting this unchallenged and uncontroverted evidence as to why the election had to be put on hold midway into voting. See Adams Vs. AG Federation (2006) 11 N.W.L.R. (Pt.991) 34 Gege Vs. Nande (2006) 10 N. W.L.R. (Pt 988) 256, Baba-Iya Vs. Sikeli (2006) 3 N.W.L.R. (pt 968) 508. Up till now, no other reason has been proffered as to why the election had to be postponed. A Court is always unfettered to act on an unchallenged or uncontroverted evidence duly admitted at the trial unless it is shown to be unreliable.
The appellants had argued that a repeat election is not provided for by the Electoral Act, 2006 and as such, the election held on 28th April, 2007 into the House of Representatives for Babura/Garki Federal Constituency being a repeat election was unknown to the Electoral Act, 2006 and therefore invalid. I think this is an erroneous submission as the Electoral Act 2006 clearly provides for such a situation. Section 27 (1) of the Electoral Act 2006 provides as follows:-
“where a date has been appointed for the holding of an election, and there is reason to believe that a serious breach of the peace is likely to occur if the election is proceeded with on that date or it is impossible to conduct the elections as a result of nature disasters or other emergencies, the Commission may postpone the election and shall in respect of the area, or areas concerned, appoint another date for the holding of the postponed election.”
It may be observed that the phrase “repeat election” is nowhere state in the Electoral Act, 2006. However, Section 27 of the Act reproduced above provides for an election to b e postpone ed to a substituted date for reasons therein contained which presupposes that the election originally fixed for a particular date has to be repeated on the substituted date. I think this is not an issue which one should split hairs or make much weather of. The truth is that there was violence during the election on the 21st April, 2007 ad it had to be postponed. Both parties were aware of it and also took part on the rescheduled date being the 28th of April, 2007. There is no miscarriage of justice and the appellants have not shown how that affected them adversely. This issue, to my mind, is of no moment and I so hold.
As regards the alleged use of “illegal forms”, I hereby refer to section 77 of the Electoral Act 2007 which provides for the use of Forms for the election. That section provides thus:-
“Section 77 – The forms to be used for the conduct of election to the offices mentioned in section 41 of this Act and election petition arising therefrom shall be determined by the commission.”
The decision as to what Form should be used for which election is entirely the prerogative of the 7nd Respondent -INEC. That is the purport of section 77 of the Electoral Act 2006. Where a form, originally designed for a particular election is subsequently improvised for another election for example, forms meant for House of Representatives being used for the House of Assembly election, unless it can be shown by credible evidence that it was done calculative to give advantage to one party against the other or that it pas led to a miscarriage of justice or that a party has suffered adversely as’ a result, I think there is patently nothing wrong with the practice. See Honourable Clatus Mbia Obun Vs. Alex Abang Ebu & Ors (2006) All F.W.L.R. (pt 327), 419, Orji Vs. Emovon (1999) 1 N.W.L.R. (pt 168) 476, Nnaii Vs. Agbo (2006) 2 E.P .R. 867. Thus, the use of Forms EC 8 A (R), EC 8B (R) and EC 8 C (R) meant for Governorship (Runoff) election for the House of Representative’ election has not been shown to have affected the result of the election.
Section 163 of the Electoral Act 2006 is very clear on this issue and states:-
“Notwithstanding any other provisions of this Act, any defect or error arising from any actions taken by an official of the Commission in relation to any notice, form or document made or given or other thing whatsoever done by him in pursuance of the provisions of the constitution or of this Act, or any rules made thereunder remain valid, unless otherwise challenged and declared invalid by a competent court of law or Tribunal.”
I think the use of the Form having not been shown to have conferred undue advantage to any of the parties against the other is hereby held to be proper.
The appellants had contended that it was not INEC that ordered the use of the Form but one Director of Special Duties, INEC Head quarters who directed the use of the said form. This argument, to my mind is lame. INEC as an entity performs its duties through its accredited officials.
Therefore, it is of no consequence to argue that it was an INEC Director who ordered the use of the form and not INEC. The argument is neither here nor there and I have no difficulty in discountenancing same. On the whole, I am satisfied to hold that this issue does not avail the appellants and is accordingly resolved against them.
It was contended for the appellants by their counsel on the third issue that the inadvertence in swaping the signatures of their 2nd and third witnesses in their sworn depositions, although an error, did not mislead anybody and was not substantial enough for the Tribunal to have struck out the two statements. Learned Counsel urged this court to hold that the evidence of PW2 and PW3 are admissible and ought to be considered in evidence.
It was however the view of the learned counsel for the first set of Respondents that the deponent of a witness statement on oath is a witness and as such, where the Appellants’ PW2 and PW3 who were called as witnesses have denied being the signatories of the witnesses’ statements on oath of RTA, and Hon. Nasiru Garba Dantiye respectively, they cannot be competent witnesses as they had no witnesses statement on oath to adopt. He urged this court to uphold the decision of the lower Tribunal on this issue.
Learned counsel for the second set of Respondents submitted in the main that it was the intention of paragraph 1 (b)of the Election Tribunal and Court Practice Directions 2007 that the witnesses statements made on oath should be the evidence in chief of the witnesses who must sign as deponent. That the contention of the appellants that the PW 2 as R.T .A. and PW 3 as the 1st Petitioner signed vice versa their witnesses statements on oath is ,not supported by any evidence. Learned Counsel also urged this Court to uphold the lower Tribunal’s verdict as regards this issue.
The substance in this issue has to do with the rejection by the Tribunal of the evidence of the Appellants’ witness NO.2 ie Bahiru Dan Umma as RTA and witness No. 3, Honourable Nasiru Garba Dantiye as contained in their respective written statements on oath. The witnesses statements as filed by the Petitioners were not properly signed. The PW 2 testified on page 441 of the Record of appeal and this is what he said:-
“I was shown the document. The Petitioner relies on my facts. I signed at the wrong place. It was an honest error, somebody signed on my place.”
The PW 3 at page 445 of the Record of Appeal testified as follows:-
“The signature on my deposition is not my signature.”
Based on the above testimony of the two witnesses, the lower Tribunal had this conclusion to make:-
“Where as in the instant case, the witness admits that the deponents’ signature on the statement is not his own. it implies that the said statement was made and deposed to by a different person.
We hold that the duo witnesses have no written statements on oath as required by paragraph I (a) and (b) of the Election Tribunal and Court Practice Directions 2007 and has none to adopt under paragraph 4 (1) thereof. In the consequence, we discountenance their evidence as stated in the statements. We strike out the said statements on oath of RTA and Honourable Nasiru Garba Dantiye dated 28th May, 2007.”
That was the decision of the lower Tribunal in this issue which has given rise to this complaint.
Paragraph 1 (a) of the Election Tribunal and Court Practice Directions 2007 states as follows:-
“1. Mode of filing petitions (i) All petitions to be presented before the Tribunal or Court shall be accompanied by.
(a) List of all the witnesses that the Petitioner intends to call in proof of the petition.
(b) Written statements on oath of the witnesses; and
(c) Copies or list of every document to be relied on at the hearing of the petition.
Also, paragraph 4 of the said Practice Directions contains the following provision:-
“4. Evidence at Hearing (i) Subject to any statutory Provision or any provision of these paragraphs relating to evidence, any fact required to be proved at the hearing of a petition shall be proved by written deposition and oral examination of witnesses in open Court.
(2)……
(3) There shall be no oral examination of a witness during his evidence-in-chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the deposition.”
It is based on the above provisions that the Petitioners while filing their petition also filed written statements on oath meant to be that of the PW 2 and PW 3. Unfortunately, both the PW2 and PW 3 denied the signature on what should be their respective depositions. The PW 2 as RTA admitted in evidence that “somebody signed on my place.” Throughout the entire gamut of evidence, that “somebody” was never disclosed. It leaves the witness statement on oath of RTA as having’ been signed by an unknown, and an unidentified person. I need to emphasis here that a signature by an unknown person on behalf of another is an incompetent signature. See Orizu Vs. Uzoegu (1999) 6 N.W.L.R. (Pt.605) 32, Honourable Engr Bako Sarai & Anor Vs. Inusa Haruna & 78 Ors, Appeal No CA/K/EP/27/07 (unreported) delivered on 27th March, 2008. The PW3 also confirmed that the signature on his alleged’ statement was not his. I think, a deponent who failed to sign the deposition has rendered the said document worthless as it is his signature that authenticates the document and differentiates it from another one.
It must be stated here that a written statement of a witness on oath is akin to an affidavit which is required by Section 90 (i) of the Evidence Act to be signed by the deponent or witness. Failure to sign such a document will not only render it worthless but will also render it inadmissible in evidence. See Adeleke Vs. Anike (2006) 16 N.W.L.R. (Pt.1004) 131. I hold the view that the PW2 and PW3 having disowned the signatures of the deponents of the witnesses statements on oath of RTA and Hon. Nasiru Garba Dantiye respectively, the implication is that the said statements were not made and deposed to by them and therefore they had no written witnesses statement on oath to adopt. I share the same view with the Lower Tribunal that the statement were inadmissible and were liable to be struck out. I affirm the order of the lower Tribunal which struck out the two statements. This issue is therefore resolved against the appellants.
The grouse of the appellants in the fourth issue is that Honourable Justice Kate Abiri was in court and sat with the panel which delivered the judgment on 7th September, 2007 when she did not take part in the proceedings. On one hand Learned Counsel for the appellants contended that the record of appeal has been tampered with and on the other hand he concedes that the record of appeal as compiled is proper and urged this Court to rely on it in determining this appeal. He further urged this Court to hold that the judgment is liable to be impugned by reason of the said participation of Justice Abiri in the reading of the judgment.
Learned Counsel for the first set of Respondents submitted that apart from the fact that the appellants failed to properly attack the record of appeal, they also failed to show that Honorable Justice Kate Abiri did not take part in the proceedings. Moreover, that Justice Abiri, assuming that she did not take part in the proceedings, did not sign the judgment.
Learned Counsel for the 2nd set of Respondents submitted that the appellants have not shown how the presence of the Honorable Justice Kate Abiri in the panel on the day of the judgment ie 7th September, 2007, affected the judgment that was signed by the Chairman and three other members of the Tribunal. He urged this Court to hold that there is no merit in this issue.
The first thing I want to say here is that there is only one record of appeal filed in respect of this appeal. There is no application to attack this record of proceedings. Therefore, the submission of Learned Counsel for the appellants on the incorrectness of the record of proceedings goes to no issue.
The record of proceedings of a Court is presumed by law to be correct until the contrary is proved by credible evidence. The procedure where a party seeks to attack the correctness of the record is that the challenger swears to an affidavit setting out the facts of part of the proceedings wrongly stated in the record. Such affidavit must be served on the trial judge and/or on the Registrar of the Court or Tribunal who would then if he desires to contest the affidavit, swear to and file a counter – affidavit. See Agwarangbo Vs. Nakande (2000) 9 N.W.L.R. (Pt.672) 34; Abatan Vs. Awudu (2004) 17 N.W.L.R. (Pt. 902) 430. The appellants failed to take the steps outlined above and they are accordingly foreclosed from raising their voice against the authenticity of the record of proceedings before this Court.
Learned Counsel for the appellants had further contented that only the Chairman of the Tribunal signed the proceedings of 7th September, 2007. I think this is taking the matter beyond the level of reasonableness. It is the Chairman’ s record that is the record of the Tribunal. Yes the other members do have their records which they jot down notes.
Theirs is not, the record of the Tribunal but that of the Chairman and it is only one record that is produced. It was therefore justified for the Chairman only to have signed the record alone on 7th September, 2007. All the other members signed their individual records. See Ngige Vs. Obi (2006) 14 N.W.L.R. (Pt. 999) 1. I therefore dismiss with a wave of the hand the complaint of the appellants about the incorrectness of the record of proceedings even as they conceded to the use of the record before this Court.
Section 285 (4) of the Constitution of Federal Republic of Nigeria 1999 provides as follows:-
“The quorum of an election Tribunal established under this section shall be the Chairman and two other members.”
Generally, a Chairman and four other members are appointed for all election petition Tribunals in this Country. Therefore, by the above section of the Constitution, the Chairman and two other members do form a quorum for that Tribunal. The judgment being appealed against is found on pages 558 – 606 of the Record of appeal. On page 558, it shows that five Justices sat at the reading of the judgment, But on page 606, only the Chairman and three other members signed the judgment. That is to say, although Honorable Justice Kate Abiri was part of the panel when the judgment was delivered, she did not sign the judgment. I seem to pitch my tent with the Learned Counsel for the Respondents that Honourable Justice Kate Abiri did not sign the judgment because she did not take part in the proceedings or the writing of the judgment. It goes without any modicum of doubt that those Judges who signed the judgment were those who took part in the proceedings and the writing of the judgment. The judgment is not vitiated by lack of quorum as more than the minimum number required by section 285 (4) of the 1999 Constitution took part in the hearing of the petition and writing of the judgment. The appellants, apart from not leading any evidence to show that Honourable Justice Kate Abiri did not take part in the proceedings, at that she signed the judgment she did not take part in writing, they also failed to show how the presence of Honourable Justice Kate Abiri who did not sign the judgment has affected the judgment or that her presence had occasioned a miscarriage of Justice. This issue, to my mind, lacks merit and is accordingly resolved against the appellants.
On the whole, I am of a well considered opinion that this appeal lacks merit and is hereby dismissed in its entirety. I affirm the judgment of the National Assembly Election Tribunal sitting in Dutse in Petition No. EPT/JG/006/07 delivered on 7th September, 2007:
The Appellants shall pay costs of N20,000.00 (Twenty Thousand Naira) to the first Respondent only.
Other Citations: (2008)LCN/3056(CA)
