Emmanuel Goar V. Kelvin Tongrang Dasun & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
ABUBAKAR DATTI YAHAYA, J.C.A,
The 1st appeal No. CA/J/EP/HA/240/07 is an appeal against the judgment of the National Assembly/Governorship and Legislative Houses Election Petition Tribunal (the lower Tribunal), holden at Jos, Plateau State. The lower Tribunal had nullified the election and return of the appellant herein, in respect of the election into the Pankshin North Constituency of the Plateau State House of Assembly, held on the 14th April 2007, and ordered a bye-election, to include the names and logo of the Respondents herein. That decision is what culminated into these appeals.
The 2nd respondent herein, a registered political party, nominated and sponsored the 1st respondent herein, Kelvin Tongrang Dasun, as a candidate for the House of Assembly seat of the Pankshin North Constituency, Plateau State, in the election which was held on the 14th of April 2007. On the day of the election, the names and logo of the 1st and 2nd respondents were missing from the ballot papers. Although they protested to the 3rd to 5th respondents herein, the election was held without them participating. At the close of voting, the appellant was returned as elected, by the 3rd – 5th respondents. The result of the election is as follows:-
Emmanuel Goar (PDP 22,752
Johnson P. Yilwan (AC) 17,332
Barrister Chris Alli (ANPP) 1,640
Felix Kwamek (AD) 247
Annaseh Watyil (PDP) 36
Tongshakka B. Gottom (LP) 1,731
No votes- were recorded for the -1st and 2nd respondents. They as petitioners, challenged the declaration at the lower Tribunal on the grounds
GROUND 1
(a) The 1st petition was validly nominated as the candidate of the 2nd petitioner, but was unlawfully excluded from the election.
PARTICULARS OF UNLAWFUL EXCLUSION
(i) The 1st petitioner was validly nominated by the 2nd Respondent in compliance with the provision of the Electoral Act.
(ii) The 2nd petitioner indicated in its list of candidates she proposed to sponsor at the election and submitted to the 1st Respondent.
iii) The list of Candidates submitted by the 2nd Petitioner was duly accompanied by an Affidavit sworn to by the 1st Petitioner indicating that he had fulfilled all the constitutional requirements for the election to the Plateau State House of Assembly, to represent Pankshin North Constituency.
iv) The 1st Respondent duly screened the 1st Petitioner, and cleared him to stand election as a Candidate sponsored by the 2nd Petitioner.
v) The 1st Respondent published the names of nominated Candidates declared by her, to contest election into the Plateau State House of Assembly, and the Petitioners names appeared under Pankshin North Constituency, with the code SC/16/PL.
vi) The 1st Respondent did not include the names and symbols of the Petitioners in the Ballot Papers distributed and used for the conduct of Elections in the Pankshin North Constituency of the Plateau State House of Assembly, with the Petitioners as candidates in the said election.
The petition went to trial, at the’ end of which the lower Tribunal delivered its judgment on the 27th of November 2007, nullifying the election and return of the appellant, on the ground, firstly –
“that the 2nd petitioner and its candidate the 1st petitioner, who was validly nominated, were, by the non-inclusion of their names and logo in the ballot papers used for the election into the Plateau State House of Assembly, for Pankshin North Constituency on the 14th day of April 2007, unlawfully excluded from the said election;”
Secondly –
“on the ground that the said election is invalid for non-compliance with an express provision of the Electoral, Act 2006, that is to say, Section 45(1) thereof.”
Dissatisfied with the judgment, the appellant has appealed to this Court on 12 grounds of appeal. He filed the Appellant’s Amended Brief of Argument on the 9/6/2008. In it, he distilled three issues for determination (page 3 of the Brief) but went on to argue seven issues. At the hearing of this Appeal, learned Counsel for the appellant, Mr. Olorundare O. I. S.A.N. abandoned three issues – No.1, No.3, and No.6. The issues are hereby struck out, along with the grounds of appeal they were distilled from. I shall therefore set out only those issues remaining, i.e. 2, 4, 5 and 7. They are-
- Whether the Tribunal was right to accept the 1st Petitioner’s affidavit of personal particulars (Ex. P1) and nomination form Ex. P2) as evidence of valid nomination, having not been submitted one hundred and twenty days before the date of the election.
- Whether from the pleadings and evidence adduced before the lower tribunal, there was admission by the 3rd – 5th Respondents now 1st – 3rd (Respondents) that the 1st Respondent (then petitioner) was duly nominated as candidate at the election held on 14th April, 2007 into the Pankshin North Constituency of the Plateau State House of Assembly to warrant the Tribunal finding that the issue is settled and needs no further proof. Ground 6.
- Whether the Tribunal was not wrong in holding that the 4th Respondent having failed to adopt his written statement abandoned his case before it. Ground 8.
- Considering the totality of evidence led and exhibits tendered, whether the judgment of the tribunal is not wrong and perverse. Ground 12.
The 1st and 2nd Respondents filed a Joint Amended Brief of Argument in which they raised a Preliminary Objection. They identified three issues for determination in this appeal, to be –
1) Whether the lower tribunal was correct in’ finding that it had jurisdiction over the petition? Ground 1.
2) Whether the lower tribunal was correct is finding that the petitioners proved the validity of the nomination of the 1st Respondent? Relates to Ground 2, 3, 5, 7, 9 and 10.
3) Whether on the pleadings and evidence before the Tribunal, the petitioners were entitled to judgment? Reliefs to Grounds 4, 6, 8, 11 and 12.
The 3rd – 5th Respondents did not file any Brief. The Appellant filed a Reply to the 1st and 2nd Respondents’ Notice of Preliminary Objection.
In view of the abandonment, of issues 1, 3 and 6, by the appellant, most of the grounds of the Preliminary Objection have been overtaken by the event. Only one ground of the Objection is still relevant and that is issue No. 2. It is predicated on’ grounds 2, 3, 7, 9 and 10 of the amended Notice and Grounds of Appeal. I shall take up that issue now.
The 1st and 2nd respondents in their brief, whilst addressing the impropriety of issue No.2, submitted that the non-validity of the nomination of the 1st respondent as raised by the appellant in this appeal, is due to the submission of Exhibit P1 (1st respondent’s affidavit of personal particulars) to the 3fd respondent, outside 120 days from the date of election. This, they submitted, is a new line of defence that was not his case at the lower Tribunal. They contended that the case of the Appellant at the lower tribunal is that the forms were not submitted by the 29/1/2007, the date fixed by the 3rd respondent, for the submission of the forms. NGIGE VS. OBI (2006) 14 NWLR (PT. 999) 1 AT 207 was cited to buttress the submission that the appellant is stopped from setting up a case totally at variance or divergent on appeal, with his case at the lower tribunal. It was further submitted that grounds 2, 7, 9 and 10 are incompetent because they raise fresh issues on appeal, without the leave of this Court. NDAYAKO VS. MOHAMMED (2007) 17 NWLR (PT. 1009) 655 at 679 was referred to. They then urged us to expunge issue 2 and all arguments proffered on the submission of Exhibit P1 outside the 120 days before the election.
This point was not addressed in the Appellant’s Reply to the 1st and 2nd respondents’ Notice of Preliminary Objection. Mr. Olorundare however addressed it, in his oral submission before us, during the hearing of the appeal. He argued that the issue was raised in the pleadings at the lower tribunal. He referred to page 49 paragraphs 2 and 3; page 51 paragraph 17(d); page 76 paragraph 8 and pages 92 and 93 of the printed record. He then submitted that at any rate, new line of argument is not a new issue.
It is trite, that parties are not allowed to set up one case at the trial court, but go on to set up quite another, on appeal. Consistency is the name of the game. Refer to AWUSE VS. ODILI (2003) 18 NWLR (PT. 851) 116 at 161; OLUFEMI VS. BABALOLA (2003) 4 SCNJ 287, NDAYAKO VS. MOHAMMED (SUPRA) AND NGIGE VS. OBI (SUPRA).
If a party wishes to raise a new or fresh issue then he must seek for and obtain the leave of court. In so doing, he must satisfy the court that
1) the point of law is substantial, such as jurisdiction;
2) no further evidence affecting the new point would need to be adduced and
3) refusal by the court to grant the – leave, would occasion miscarriage of justice.
Refer to SHONEKANVS. SMITH (1964) 1 ALL NLR 168 at 173.
The question to ask at this juncture, is whether the appellant has raised a new issue different from the one he raised at the lower Tribunal or he has only opened a new line of argument.
Paragraphs 2 and 3 of page 49 of the record referred to us by Senior Counsel, are vague. Paragraph 2 talks about stipulations of the Constitution and the Electoral Act 2006 which were not met. There are many stipulations in the Electoral Act 2006 and we do not know specifically, which of them was not met. The same goes with paragraph 3. Is it that the 1st Petitioner did not have enough people to nominate the 2nd Petitioner or what?’ Nothing was specified and this court cannot speculate. Paragraph 17(d), page 51 of the record has also been referred to. It is also afflicted by the same malaise, as the “necessary stipulations” have not been specified and no reference was made to any law, let alone the Electoral Act 2006. The learned Senior Counsel also referred to paragraph 8 of page 76. It is the 1st – 3rd Respondents’ Reply to the petition. Apart from the fact that it was not the pleading of the appellant, it did not at all refer to non-compliance with the Electoral Act 2006. It pleaded that the non-inclusion of the logo of the 1st Petitioner on the ballot paper was as a result of the failure of the petitioners
“to submit nomination forms within the time stipulated by the 1st respondent.”
Pages 92 and 93 of the record have not added any value in respect of this issue.
On the other hand, paragraph 8 of the 1st – 3rd respondents’ reply to the petition (page 76 of the record) averred that it was the failure by respondents to submit nomination within the time stipulated by the 1st respondent, that warranted the non-inclusion of the logo of the petitioners. The stipulated date is supplied by paragraphs 5 and 6 of page 79 of DW1’s statement, Mr. Benoyu Ikpe, a staff and witness of the 3rd – 5th respondents to be 29/1/2007. It is also this date of 29/1/2007 that was contained in paragraph 14 of the 4th Respondent’s Reply to the petition – page 51 of the record. Clearly therefore, the point in issue raised by the appellant in their reply at the lower Tribunal, is that the Petitioners did not submit Exhibit P1, by the 21/1/2007, the stipulated date by INEC, not by the Electoral Act. All along, at the lower Tribunal, it was the fixing of the 29/1/2007 as the deadline for submission of nomination forms, that was argued by the appellant. (He could not argue otherwise anyway, as he would have been doing so contrary to his pleadings). Even in the 4th respondent’s counsel’s final address before the lower Tribunal, he submitted that
“Indeed the date of submission of the petitioners’ nomination forms was the 11th day of February 2007 which was out of time as stipulated by the guidelines. This noncompliance by the Petitioners as evident on the face of Exhibits P1 and P2 was never contested.” (Underline mine).
This address of Counsel, binds the appellant. See the case of D’ALBERTO VS. AKITILO (2003) 4 SCNJ 328 & 341 and section 19 of Evidence Act.
I therefore agree with the Preliminary Objection, that the petition was fought at the lower Tribunal, on the basis of non-submission of nomination forms within the time stipulated by INEC- the 29/1/2007.
In this appeal however, issue No. 2 and the grounds of appeal covering it, raise the issue of submission of nomination forms (Exhibit P2) and affidavit of personal particulars (Exhibit P1) less than 120 days before the date of election as provided by section 32 of ,the Electoral Act, 2006 “as evidence of valid nomination”. (Underline mine).
In my candid view, this is an entirely new issue completely at variance with the issue set up at the lower Tribunal. This is because at the lower Tribunal, the 1st- 3rd respondents, who were charged with the responsibility of conducting the election, said the absence of logo on the ballot papers, was due to non-submission of nomination forms by the petitioners, within the time stipulated by INEC. In this appeal however, the appellant is raising issue of validity of nomination because of non-compliance with S 32 of the Electoral Act 2006. The yawning gap between the two issues can only be appreciated by looking at the Electoral Act .2006 more closely.
Section 32(1) provides that
“Every political party shall not later than 120 days before the date appointed for a general election under the provisions of this Act submit to the Commission in the prescribed forms the list of candidates the Party proposes to sponsor at the elections.” (Underline mine).
From the foregoing provision, what is to be submitted to INEC in the prescribed forms, is a list of the candidates a party proposes to sponsor at the election. By the time the list is prepared, by the political party for onward transmission to INEC, nomination would have been completed. This is because ‘nomination of candidates’ is entirely within the jurisdiction of a political party. See EHINLANWO VS. OKE (2008) 6 SCNJ 316 at 352 where ONNOGHEN JSC in the lead judgment held-
“it is within the province of a political party such as the 2nd respondent, to nominate a candidate to sponsor for an election.The nomination by the party may be by way of primary election, selection, appointment etc..Whatever the method adopted the law is that nomination of a candidate’ to be sponsored by a political party remains within the absolute jurisdiction of the political parties.”
At pages 349 – 350 of the same report, he stated –
“It is therefore clearly the law that a political party such as the 2nd respondent has the unfettered right to nominate or sponsor a candidate it likes and the courts have no jurisdiction to inquire into that issue except in circumstances as decided in the case of UGWU VS. ARARUME (supra) and the provisions of Section 34(2) of the Electoral Act 2006.”
INEC therefore, has nothing to do with nomination of candidates and certainly, it has no power to validate or void a nomination made by a political party. If there is going to be any invalidation of a candidate nominated by a political party, it will come from the court, by virtue of section 32(2), (3), (4) and (5) of the Electoral Act 2006, such as where the court finds that a nominated candidate has given false information in his affidavit of fulfillment of constitutional requirements for election in to that office. This could be as to age or educational qualification. By section 38 of the Electoral Act 2006, nomination of a candidate may also be voided if he allows himself to be nominated by more than one political party or in more than one constituency. Here again, INEC does not possess the power to do the voiding as only the court can so interfere.
Again, the Electoral Act 2006, did not make a specific provision within which nomination of candidates by political parties, must be made. It only empowered INEC, by section 161, to issue regulations, guidelines or manuals for the purpose of giving effect to the Act.
When a political party completes the nomination of its candidates, then the list must be sent to INEC, not less than 120 days from the date of the election, In EHINLANWO VS. OKE (supra) at page 354 – 355, it was held that-
“It is also a mandatory requirement of the Act that the list of candidates must be submitted to the commission (INEC) not later than 120 days to the date appointed for a general election. It follows that a list of candidates submitted to INEC less than 120 days before the election is invalid in which case the party concerned would be deemed to have fielded no candidate(s) for the election”.
The above, cannot be interpreted, to mean that the nomination was invalid. No. It is the list of nominated candidates submitted in violation of the stipulated 120 days that becomes invalid. The effect is that there was no list of candidates submitted, but not that there was no valid nomination. Herein, lies the crux of the matter in this appeal. The complaint at the lower Tribunal was the non-submission of nomination forms within the time stipulated by INEC. Issue No. 2 in this appeal, is on invalid nomination due to submission of nomination forms (Exhibit P2) and affidavit of personal particulars (Exhibit P1) outside the 120 days, stipulated by S 32 of the Electoral Act 2006. It is a totally different issue from what was canvassed at the lower Tribunal. The leave of this court was not sought for or obtained. It cannot therefore be raised in this court. See GBADAMOSI AND VEEPEE VS COCOA (2008) 4 SCNJ 482 at 498 GBADAMOSI VS. DAIRO (2007) 1 SCNJ 444 at 457. The objection therefore succeeds and it is allowed. Issue No.2 and grounds 2, 3, 7, 9 and 10 are struck out.
The 1st and 2nd respondents have also raised a preliminary objection to ground 12 of the appeal and issue No. 7 distilled from it. The objection is that the ground is not a valid omnibus ground in a civil matter, but an omnibus ground in a criminal matter and is therefore incompetent OKEZIE VS. QUEEN (1963) 1 ALL NLR 1 at 3 and DAMBAN VS. LELE (2000) 11 NWLR (Pt.678) 413 at 428 and 429 were relied upon. We were urged to struck out ground 12 and issue No.7.
The appellant did not answer this objection in his Reply to the Preliminary Objection. He is deemed to have accepted the objection. I shall however, still discuss the Ground 12 of the appeal which states –
“The Judgment is unreasonable and cannot be supported having regard to the weight of evidence.”
By the authority of OKEZIE VS. QUEEN (supra)
“the general ground in a criminal appeal is that the verdict is unreasonable or cannot be supported having regard to the evidence. ”
Ground 12 is therefore clearly an omnibus ground relating to criminal appeals, not civil appeals, which an election petition belongs to. It is incompetent and it is struck out. Issue No.7 is also therefore struck out.
On the merit of the appeal therefore, there are only two issues for determination i.e. issues 4 and 5.
ISSUE NO.4
Whether from pleadings and evidence, there was admission by the 3rd – 5th respondents to the petition that the petitioner was duly nominated as candidate at the election held on the 14th April 2007 into the Pankshin North Constituency of the Plateau State House of Assembly to warrant the lower Tribunal’s finding that the issue is settled and requires no further proof.
Ground 6.
The submission of Counsel for the appellant on this issue is that paragraph 4 of the petition at page 2 of the record, is in respect of the 4th respondent (now appellant) and not the 1st petitioner (now 1st respondent) as found by the lower Tribunal. What the 1st – 3rd respondents to the petition admitted in their Reply at paragraph l(page 75 of the record) is the candidature of the 4th respondent, not appellant. Further, that paragraph 1 of the petition was denied by the 1st to 3rd respondents in paragraph 2 of their Reply (page 75). It was submitted therefore, that the finding of the lower Tribunal that the due nomination and candidacy of the 1st petitioner was admitted, is erroneous; fallacious, wrong and perverse.
Counsel for the 1st and 2nd respondents herein, denied this and submitted that there is indeed admission of the candidature of the 1st respondent by the 3rd – 5th respondents and that at any rate, the lower Tribunal went ahead to consider other pieces of evidence before concluding the valid nomination of the 1st respondent.
Now, the submission of counsel for the appellant is only partially true. It is correct that the lower Tribunal mistook the 1st petitioner for the appellant, in paragraph 4 of the petition. But that is where it ends. For it is crystal clear that there are other paragraphs of the Reply of the 1st – 3rd respondents that show admission by the 1st – 3rd respondents to the petition, of the candidature and sponsorship of the 1st respondent herein, by the 2nd respondent herein.
(a) Paragraph 2 of the petition avers that the 1st petitioner was sponsored by the 2nd petitioner. This was admitted by the 1st – 3rd respondents in paragraph 1 of their Reply (page 75).
This establishes sponsorship which can only arise, after due nomination.
(b) Paragraph 6 of the petition avers that the 1st petitioner was presented and sponsored by the 2nd petitioner for the election into the Pankshin North Constituency of the House of Assembly.
Paragraph 1 of the Reply of the 1st – 3rd respondents admitted this paragraph 6, thus showing that the 1st respondent herein, was sponsored and presented to INEC for the election.
(c) Paragraph 7 of the petition avers that the- nomination of the 1st petitioner by the 2nd petitioner as its candidate -for the election was accepted and published by INEC in accordance with the Electoral Act 2006. This paragraph was admitted by the 1st – 3rd respondents in their Reply (page 75) in their paragraph 1.
This established due and valid nomination in accordance with the Electoral Act 2006, and publishing of same, after acceptance by INEC.
(d) Paragraphs 8 and 9 of the petition aver that a copy of the published names of the 1st petitioner as a candidate for the election was delivered to the 2nd petitioner, and the 1st petitioner’s name appeared as No. 1 under the Constituency with code .as Pankshin North SC/16/PL
These paragraphs were admitted by the 1st – 3rd respondents in their Reply (page 75 at paragraph 1.)
(e) Paragraph 11 of the petition avers that the candidature of the 1stpetitioner was never withdrawn.
This was admitted by the 1st – 3rd respondents, in paragraph 1 of their Reply.
In view of the above pleadings, how can it not be said, that there was clear admission by the 1st – 3rd respondents, of the valid nomination, sponsorship and candidature of the 1st petitioner? There was such admission. Even though the lower Tribunal erred in holding that the admission was as per paragraph 4 of the petition, that error is of no consequence, since there are other paragraphs of the pleadings pointing to the right decision of the lower Tribunal. This court is concerned with the correctness of the decision of the lower Tribunal and not its wrong reasons. See LABILE VS. C & S CHURCH (2003) 1 SCNJ 463 at 478 and ABAYE VS. OFILI (1988) 17 SCC (Pt. 1) 94 at 133.
An error or mistake in a judgment, must be substantial before it can lead to the setting aside of the judgment, for miscarriage of justice – USMAN VS. GARKE (2003) 7 SCNJ 38 at 49 – 50.
Since there are other paragraphs supporting the correct decision of the lower Tribunal, there is no miscarriage of justice.
The admission of valid nomination, and sponsorship of the 1st respondent herein, was by the constituted authority – INEC and its officials. These are the ones charged with the responsibility for conducting the election, and not the appellant who had no role to play in the nomination, sponsorship, candidature and publishing the name of the 1st respondent.
But the lower Tribunal did not base its decision on admission by the 1st – 3rd respondents, only. It went on to evaluate the evidence before it at pages 224 – 226. Specifically, the lower Tribunal wondered why the 1st respondent to the petition published the name of the 1st respondent herein, in the list of nominated candidates for the election, if he was late in submitting his form. After all, it is the law that the list published by INEC constitutes an official act by virtue of S.150(1) of the Evidence Act, and there is a presumption of regularity of the document – CHUME VS. ONYIA (2009) 2 NWLR (Pt. 1124) at 70 F – H. and BUHARI VS. OBASANJO (2005) 13 NWLR (Pt.941).
It also reviewed the evidence of DW1, especially under cross-examination, where he expressed surprise about the non-inclusion of the names and logo of the petitioners on the ballot papers, since INEC in Plateau State had always known the petitioners to be candidates at the election. The evaluation of evidence is the exclusive preserve of a trial court and an appellate court has no role to play, unless the evaluation is shown to be perverse. See GABRIEL IWUOHA & ANOR. VS. NIGERIAN POSTAL SERVICES LTD. (2003) 4 SCNJ 258 AT 284. I have gone through the record of the lower Tribunal and I have seen its review and evaluation of the evidence before it. It had the right and the evidence to arrive at the conclusion it did. There is nothing perverse about it. I see no reason to warrant any interference by this court. I am satisfied that on the pleadings and on the evidence, the 1st respondent herein, was validly nominated and sponsored by the 2nd respondent for the election of the 14/4/2007 into Pankshin North Constituency of the Plateau State House of Assembly, and his name was published in the list of candidates to participate in the election.
Did the 1st and 2nd respondents have the locus standi to present the petition?
Section 144(1) of the Electoral Act 2006 provides –
“An election petition may be presented by one or more of the following persons.”
(a) A candidate in an election;
(b) A political party which participated in the election.”
A candidate’ has been interpreted in the case of ABEBUSIYI VS.
ODUYEYE (2004) 1 NWLR (PT. 834) 416 at 428 to include a party that intended to contest the election but was disallowed. He may claim a right to file a petition to the tribunal. In OJO VS. INEC (2008) 13 NWLR (Pt.1105) 577 at 629, D, this court held that a party who was validly nominated by his party but is excluded on polling day, is “a candidate with legal standing to sue-locus standi.”
Since 1st respondent herein was validly nominated by his party and he was excluded from the election, he has the locus standi to bring the petition. As regards the 2nd respondent herein, BUHARI VS. OBASANJO & ORS, I.E.P.R. 112 at 132 held that sponsoring a candidate for the election, means that “the party had participated in the election.” Since the 2nd respondent has been found to have sponsored the 1st respondent, it also had the locus standi to present the petition. In this vein therefore, issue No.4 is resolved against the appellant.
ISSUE NO.5
Whether the Tribunal was not wrong in holding that the 4th respondent having failed to adopt his written statement, had abandoned his case before it.
The submission of learned counsel for appellant on this issue is that a party is not bound to testify in his case. He can as he did here, adopt the case of his co-respondents. His cross-examination of the witnesses of the 1st and 2nd respondents, it was argued, had destroyed the petition and his failure to testify did not adversely affect his case. It was submitted therefore, that the conclusion reached by the lower Tribunal, in declaring and treating as abandoned, the Reply of the appellant and the witness statement of Emmanuel Goar, was wrong.
The reply of the 1st and 2nd respondents, to this issue, is that election petitions are peculiar and governed by the Practice Direction. in their procedure. Since paragraph 4(3) of the Practice Direction provides for the adoption of statement in proof, non-adoption of the statement will translate into absence of evidence, it was argued. In such a case, the written statement which was not adopted, will be deemed abandoned. IDIS VS. ANPP (2008) 8 NWLR (Pt. 1088) 1 at 97 C – D and 153 F – G and NNANNA VS. ONYENAKUCHI (2000) 15 NWLR (Pt. 689) 92 at 101 F – H were referred to.
It was again submitted that since DW1 was not listed as a witness for the appellant, his evidence could not be utilized by the appellant, especially as DW1’s written statement, did not accompany the appellant’s Reply to the petition. Counsel urged us to hold that the lower Tribunal was right in its conclusion.
In my view, both counsel, have carried the argument on this issue too far. The arguments ought to have been restricted to whether the lower Tribunal was wrong having regards to the Practice Directions.
Paragraph 4(1) and (3) of the Practice Directions provide that witnesses are to adopt their written depositions, during the trial, after which they will be cross-examined on what the written depositions contain. The adoption of the written deposition is similar to examination in-chief. This evidence, the cross-examination and the exhibits tendered, would be the material upon which the Election Tribunal, will determine the petition. See MARK VS. ABUBAKAR (2009) 2 NWLR (Pt. 1124) 79 at 150.
So where a witness fails to adopt his written statement, the statement cannot be used as a material, in determining the petition. It will be deemed abandoned just like pleadings in a similar situation, will be deemed abandoned when no evidence is led in support.
The Practice Directions have to be adhered to, as they were made by the President of the Court of Appeal, to facilitate expeditious disposal of election petitions, which by their essence, require quick determination. After referring to the Practice Directions, the Supreme Court in OKEREKE VS. YAR’ADUA (2008) 12 NWLR (Pt. 1100) 95 at 127 E – G held that
“Where legislation lays down a procedure for doing a thing, there should be no other method of doing it.”
Since the Practice Directions require the adoption of the written depositions of witnesses, that must be done or else the depositions would be deemed abandoned. This is what happened at the lower Tribunal and it was perfectly in order, for it to treat as abandoned, the Reply of the appellant, before it. I am also in complete agreement with counsel for the 1st and 2nd respondents, in his submission, that the lower Tribunal did not enter judgment for the petitioners, because the appellant did not testify or because of the abandonment of his written deposition. The totality of the admissible evidence before the lower Tribunal was examined before judgment was given in favour of the 1st and 2nd respondents. Issue No. 5 is resolved against the appellant.
Consequently, this appeal lacks merit, and it is dismissed. The election of Emmanuel Goar, into the House of Assembly, representing Pankshin North Constituency of Plateau State, is hereby declared null and void, and accordingly, set aside. The Order of the lower Tribunal for the Independent National Electoral Commission to conduct a fresh bye-election to the office of member, House of Assembly for Pankshin North Constituency Plateau State, is affirmed. The name of the 1st Respondent and the name and logo of the Democratic Peoples Party shall be included in the ballot papers to be used in the said bye-election.
No order as to costs.
For the second appeal CA/J/EP/HA/420A/2007, it is to be noted that the facts are the same as in the 1st appeal No. CA/J/EP/HA/420/2007, which has just been disposed of, as they emanate from the same record of appeal. The appellants in this appeal, are INEC, the Returning Officer for Pankshin and the Electoral Officer of the Pankshin North Constituency, and Local Government Area, respectively. Having been dissatisfied with the judgment of the lower Tribunal, they filed a Notice of Appeal and eight grounds of appeal. The appellants filed a Brief of argument on 21/12/07, and a Reply Brief to the 1st and 2nd Respondent Brief of Argument.
The 1st and 2nd Respondents filed a Notice of Preliminary Objection and Joint Brief of Argument.
The Preliminary Objection was directed against ground 7 of the appeal and issue No. 2 distilled from it, which it is said, did not arise from the judgment of the lower Tribunal delivered on the 27th of November, 2007, which the appellants appealed against. The ground, it was argued, arose from the Ruling of the lower Tribunal delivered on the 23rd of November, 2007. Since the ground did not arise from the judgment appealed against, it is incompetent, it was argued. The cases of OBI-ODU VS. DUKE (2006) 1 NWLR (Pt. 961) 375 at 408, ILOABACHIE VS. ILOABACHIE (2005) 5 NWLR (Pt. 656) 194, MBN VS. NWOBODO (2005) 14 NWLR (Pt. 945) 379 at 387, among others, were cited and relied upon. Counsel urged us to strike out Ground 7 as incompetent.
The argument of the appellants, is that ground 7 is not incompetent as it is on jurisdiction and can be raised at any time, especially, that a ground of appeal which challenges the jurisdiction of a court, relates to the judgment appealed against. Counsel urged us to discountenance the objection.
The appellants in their Reply, at paragraph 2.3, had conceded that any ground of appeal which does not arise from the judgment appealed against, is incompetent and liable to be struck out. This is the position of the law. See ILOABACHIE VS. ILOABACHIE {supra} were the Court of Appeal held-
“A ground of appeal which purports to raise and attack an issue not raised by the judgment, is incompetent ”
See also – Abiola vs. Olawoye (supra) which held-
“In the instant appeal, ground 2 complains against the application which was filed on the 14th day of July, 2003, an application which was refused on the 15th of July, 2003. Since no appeal was filed against that ruling and ground 2 does not relate to the issues contained in the judgment against which this appeal has, such ground cannot stand.”
This is what happened here. The lower Tribunal delivered its Ruling on the 23rd of November 2007. There is no appeal against that Ruling. The lower Tribunal went on to deliver its judgment on the 27th of November, 2007. The appellants in their Notice of Appeal, stated that they were “dissatisfied with the decision of the. Tribunal contained in the judgment. delivered on the 27th day of November, 2007” and they “hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3.”
Since the ground is not on the judgment of 27th November, 2007, their ground 7, and Issue 2 distilled from it and all the arguments canvassed thereby, are incompetent. They are hereby struck out. The Preliminary Objection therefore succeeds.
On the merit of the appeal, the appellants had distilled 3 issues for argument. In my view, two issues were the germane issues to determine this appeal, the 1st and the 2nd issues, identified by the appellants. These are:-
1) Whether the 1st and 2nd Respondents possess the requisite locus standi to present an election petition.
2) Whether the petition filed by the 1st and 2nd Respondents was competent.
As the second Issue has been dealt with above and struck out along with ground seven, it is no longer relevant and it is hereby struck out. The only Issue that would have remained relevant is the 1stIssue. But even this Issue is no longer available since it has already been determined in the 1st Appeal arising out of the same facts and same judgment. The decision on the point in the 1st Appeal therefore equally applies to this Appeal. In other words, the 1st and 2nd Respondents had the locus standi to present the petition. The 1st Issue is therefore resolved against the appellant.
This appeal lacks merit and it fails. It is dismissed. The decision of the lower Tribunal declaring as null and void, the election of Emmanuel Goar into the Plateau State House of Assembly, representing Pankshin North Constituency, is hereby affirmed. The Independent National Electoral Commission shall carry out the Order of the lower Tribunal, to conduct a fresh bye-election to the office of member of the House of Assembly, Plateau State, representing Pankshin North Constituency. The name of the 1st Respondents and the name and logo of the Democratic Peoples Party shall be included in the ballot papers to be used in the said bye-election.
No order as to costs.
Other Citations: (2009)LCN/3192(CA)
