Independent National Electoral Commission & Ors V. Ali Bala & Ors (2009)
LawGlobal-Hub Lead Judgment Report
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
This instant appeal is against the judgment of the Plateau State Governorship and Legislative Houses Election Tribunal which was delivered on 4th December, 2007 in Petition No. PL/L/HEPT/6/2007.
The 1st and 2nd Respondents were the two petitioners in the petition in question. The 1st – 3rd Appellants and the 3rd Respondent in this appeal were the 1st – 4th Respondents in the said petition respectively. The five reliefs prayed for by the Petitioners in the petition are to the following effect:
(a) It is determined that the 1st Petitioner though validly nominated but was unlawfully excluded by the 1st Respondent.
(b) It be determined that the election or return of the 4th Respondent, made by the 2nd Respondent on the 17th April, 2007 in the election of 14th April, 2007, for the Dengi Constituency, be nullified.
(c) It be determined that the said WOKDUNG ADAMU ABBAS (4th Respondent), was not duly elected or returned at the election of 14th April, 2007.
(d) It be determined that the Petitioners are entitled to have their party name and symbol, on the ballot papers for the election into the Dengi Constituency, of the Plateau State House of Assembly.
(e) It be determined that the 1st Respondent conducts a fresh election into the Dengi Constituency of the Plateau State House of Assembly, with the Petitioners as candidates in the said election.
The Respondents filed their respective replies to the petition. The Petitioners equally filed a reply to the Respondents reply.
At the conclusion of the pre-hearing session, the petition proceded to hearing during which the Petitioners called one witness and tendered nine exhibits, which were admitted as exhibits P1 – P9 respectively. The 3rd Respondent called two witnesses, but tendered no exhibit. The Appellants equally called one witness, but tendered no exhibit.
At the conclusion of hearing of the petition, parties filed their respective addresses which they duly adopted on 15th October, 2007, resulting in reserving the petition for delivery of judgment. The Lower Tribunal eventually delivered judgment on 4th December, 2007, to the effect, inter alia, as follows:
“We are satisfied that the Petitioners have been unlawfully excluded from this election and certain of the electorates disenfranchised thereby. We answer issue number 2 in the affirmative and hold that the non-inclusion of the name and logo of the 2nd Petitioner in the ballot paper used for the election into the Plateau State House of Assembly on 14th April, 2007 is a violation of section 45(1) of the Act.
In the result, we hold that the Petitioners have succeeded in proving both the first and second grounds of this petition.
Accordingly, judgment is hereby given in favour of the Petitioners, firstly, on the ground that the petitioner was validly nominated as the candidate of the second petitioner but was unlawfully excluded from the election; and secondly, on the ground that the election was invalid for non compliance with the provisions of Section 45(1) of the Act.
Consequential upon this judgment and having regard to Section 147(1) of the Act, we further hold as follows:
- That the election or return of the 4th Respondent made by the 2nd Respondent in the said election of 14th April, 2007 in respect of Dengi Constituency be and is hereby nullified.
- That the said 4th Respondent was not dully elected or returned at the said election of 14th April, 2007.
- That the Petitioners are entitled to have their party’s name and symbol on the ballot paper for the election into the Plateau State House of Assembly in respect of the Dengi Constituency of Plateau State.
- That the 1st Respondent (INEC), be and is hereby ordered to conduct, within a period of not more that 90 days from the date hereof, a fresh election into the Dengi Constituency of the. Plateau State House of Assembly with the Petitioners being among the candidates to contest the said election.”
Dissatisfied with the judgment, the Appellants filed their notice along with 9 grounds of appeal on 18th December, 2007, seeking the following reliefs:
“(1) An order allowing the appeal and setting aside the judgment of the Honourable Tribunal.
(2) An order dismissing the petition and affirming the return made in the Appellants in the election same having been made in compliance with the Electoral Act 2006.”
Parties filed and served their respective briefs of argument. The 1st – 3rd Appellants’ brief was filed on 14th February, 2008. The 1st and 2nd Respondents’ brief was filed on 23rd April, 2008. The 1st and 2nd Respondents had earlier filed a brief on 27th February, 2008, which is deemed abandoned for having been overtaken by the later brief filed on 23rd April, 2008. The 1st – 3rd Appellants had on 29th April, 2008 also filed a reply brief to the 1st and 2nd Respondents’ brief.
When the appeal last came up for hearing on 18th June, 2009, the Learned Counsel adopted their respective briefs of argument, thus resulting in reserving the appeal for delivery of judgment.
The 1st – 3rd Appellants have raised two issues in the brief thereof for determination, viz:
“(1) Whether the 1st and 2nd Respondents possess the requisite locus standi to present an election petition.
(2) Whether on the preponderance of order to the 1st and 2nd Respondents were entitled to judgment.
The 1st and 2nd Respondents, on the other hand, equally raised two issues in the brief thereof filed on 23rd April, 2008 to wit:
“(1) whether the Tribunal was right in holding that the Petitioners had locus standi to maintain the petition having proved that the 1st Petitioner was validly nominated the 1st Petitioner? (Sic) relates to Ground 1 of the Notice of Appeal.
(ii) Whether the Petitioners proved their claim of unlawful exclusion from the election? Relates to Grounds 2 – 9 of the Notice of Appeal.
Having contrasted the issues formulated in the respective briefs of the parties, I am of the firm view that the said issues are not in any way mutually exclusive. Thus, I have deemed it appropriate to determine the appeal upon the two issues formulated in the 1st – 3rd Appellants’ brief.
ISSUE NO.1
Issue NO.1 was distilled from Ground NO.1 of the Grounds of Appeal. The submission of the 1st – 3rd Appellants on the first issue is to the effect, that when a party’s standing to sue is in issue, the question is whether that party is the proper party to request an adjudication of the particular issue, and know whether the issue is justiceable. See FAWEHINMI V. AKILU & ANOR (1987) 11- 12 SCNJ 151 AT 182-183.
The provisions of Sections 144(1) and 32(1) & (2) of the Evidence Act, 2006 have been cited, regarding the proper party to present a petition and validly nominated candidate. It was submitted further, that the election into Dengi Constituency was held on 14th April, 2007. That by virtue of Section 32(1) and (2) of the Evidence Act 2006, the particulars of 1st Respondent’s Exhibit P1 ought to have been submitted to the Independent National Electoral Commission (INEC) on or before 15th December, 2006. That, however Exhibit P1 was received on 31st January, 2007, it thus follows that it was submitted later than 120 days before the date of the election. The 1st and 2nd Respondents were said not to have possessed the locus standi to present an election petition. See NWOKORO V. ONUMA (1990) 3 NWLR (PT. 136)22 AT 32.
It was contended that the case of ADEBUSUYI V. ODUYEYE (2004) NWLR (PT. 854) 406, relied upon by the Lower Tribunal to hold that the 1st and 2nd Respondents did have locus standi also supports the 1st – 3rd Appellants’ contention. See also OKON V. BOB (2005) ALL FWLR (PT. 243) 674; ASIN V. INEC (2005) ALL FWLR (PT. 247), 1495; MODUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587 at 595.
It is further contended, that the non-compliance with Section 32 of the Electoral Act, as shown in Exhibit P1, is grave and sufficient to deprive the 1st and 2nd Respondents any right in the petition. See ADESANOYE V. ADEWOLE (2006) 14 NWLR 242 PT. 269 PARAS C- D.
The Court has been urged to hold that the 1st and 2nd Respondents lack the requisite locus standi to present the petition, and accordingly dismiss the petition.
On the other hand, the 1st and 2nd Respondents submitted on the issue that the finding of the Lower Tribunal that they were validly nominated, but unlawfully excluded was correct. It was contended that the 1st Petitioner was a candidate, and the 2nd Petitioner have participated at the election, and thus had the locus standi to present this petition. See Sections 32, 33, 35 and 144(1) of the Electoral Act 2006; OBASANJO V. BUHARI (2003) 17 NWLR (PT. 850) 510 AT 562; 583, 578, PDP V. SARAKI (2007) 17 NWLR (PT. 1064) 453 AT 497 – 498, respectively.
References were made to exhibits PI, P2, P3, the evidence of DW1, DW2 and DW3, to the effect that –
“None of the Appellants have been able to proffer any explanation, or answer to the poser or question raised by the Tribunal. Not even their briefs have attempt (sic) to resolve this poser. The Appellants had no answer to this poser before the Tribunal and even on appeal are yet to have any answer for the exclusion in Dengi/Kanam Constituency and the inclusion of the logo of the 2nd Petitioner in other Constituencies where all Appellants by their endorsements posited that nomination forms were submitted on the same date.”
See pages 9 – 10 of the 1st and 2nd Respondents’ brief. The Court has been urged to find that the 1st Petitioner was validly nominated, and that the Petitioners by virtue of Sections 144(1) and 145(1)(d) of the Electoral Act have the requisite locus standi to present and maintain the petition, and thus resolve issue NO.1 in favour thereof.
I have amply considered the submissions of the learned counsel, the various authorities they referred to in their respective briefs of argument vis-a-vis the record of appeal, as a whole.
It is instructive, that by virtue of the provisions of Sections 135 and 137 of the Evidence Act Cap E14 Laws of the Federation of Nigeria, 2004, this Court has the onerous and imperative duty to take judicial notice of the very obvious and rather incontestable fact that both the present appeal (No. CA/J/EP/HA/31A/2008) and the earlier appeal No. CA/J/EP/HA/2008 originated from one and the same judgment of the Lower Tribunal, delivered on 4th December, 2007, in Petition No. PL/L/EPT/2008 in respect of the same parties.
The reserved judgment in respect of the first appeal (No. CA/J/EP/HA/31/2008) has just a moment ago been delivered by me, thereby resulting in allowing of the appeal filed by the 1st and 2nd Respondents. It is indeed a well settled doctrine of law that no fact of which the Court ought to ordinarily take judicial notice thereof needs be proved. See section 73 of the Evidence Act 2004.
By virtue of the provisions of section 74 of the Evidence Act (supra), the Court, nay Court of Law or Tribunal for that matter, has a duty to take judicial notice of the following –
“(m) the course of proceedings and all rules of practice inforce in the High Court of Justice i.e. in England and in the High Court of a State and of the Federal Capital Territory, Abuja and in the Federal High Court.
It must be observed that the other superior courts of record i.e. the Court of Appeal and Supreme Court etc have regrettably been omitted in Section 74 of the Evidence Act (supra). However, it is my considered view that all the superior courts of records known to law, especially those specifically mentioned in Section 6(5) of the Constitution of the Federal Republic of Nigeria, 1999, are impliedly covered by the said section 74(1)(m) of the Evidence Act (supra). See Section 6 (3) and (5) of the 1999 Constitution thus: –
“6(1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.
(2) The judicial powers of a State shall be vested in the Courts to which this section relates, being courts established, subject as provided by this Constitution for a State.
(3) The Courts to which this section relates, established by this Constitution for the Federation for the States, specified in subsection (5) (a) to (i) of this section shall be the only superior courts of record in Nigeria; and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each court shall have all the powers of a superior court of record.
(5) This Section relates –
(a) the Supreme Court of Nigeria;
(b) the Court of Appeal;
(c) the Federal High Court;
(d) the High Court of the Federal Capital Territory, Abuja;
(e) a High Court of a State.:
(f) the Sharia Court of Appeal of the Federal Capital Territory, Abuja;
(g) a Sharia Court of Appeal of a State.
(h) the Customary Court of Appeal of the Federal Capital Territory, Abuja;
(i) a Customary Court of Appeal of a State;
(j) such other courts as may be authorized by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws; and
(k) such other courts as may be authorized by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws.”
In the instant case, there is no doubt that the appeal is meritorious owing to the same unassailable reasons adumbrated in Appeal No. CA/J/EP/HA/31/2008 arising from Petition No. PL/L/HEPT/6/2007 in question, just delivered.
It is unequivocally evident, both in the pleadings and evidence adduced at the trial of the said petition, that the 1st Respondent in both appeals was the 1st Petitioner in the said petition (PL/L/HEPT/6/2007) purportedly sponsored by the 2nd Respondent, the 2nd Petitioner therein. The petition is contained at pages 6 – 8 of the Record. The statement on oath of the 1st Respondent as the 1st Petitioner (ALI BALA) could be found at pages 13 – 16 of the Record.
However, most intriguingly, the 1st Respondent, for reasons best known thereto, decided not only to throw in the towel by opting out of the race, but also to give evidence against his own party, the 2nd Respondent on whose platform he would have contested the election. The witness statement on oath of the 1st Respondent is contained at pages 44 – 46 of the Record. That statement relates to his evidence for the 1st – 4th Respondents in the said petition he filed as the Petitioner therein. He did not stop there. He also personally appeared and testified before the said tribunal as DW2 against himself and the party thereof (2nd Petitioner). His evidence could be found at pages 83 – 84 of the Record, of which I have deemed expedient to reproduce in verbatim hereunder:
“RESUMED ON SATURDAY 22ND SEPTEMBER, 2007 Appearances as before
DW2 who is witness NO.2 in the list of witness.
My names are Ali Bala. I live at Dengi in Kanam L.G.A. I am a businessman. I made as statement on oath on 7th June, 2007. I wish to adopt same.
That is all for him.
XX by Mr. Abdullahi for 1st – 3rd Respondents. In Exhibit P2. I was the person who filed the Nomination Form. After filing the form i.e. Exhibit P2 I withdraw from contesting the election as stated in paragraph 3 of my statement on oath. After withdrawing my candidature I stopped from taking any further steps in election campaign tour of my Constituency in paragraph 5 of my statement. I also discussed this fact with Chairman of the party in Kanam who promised to notify the party accordingly.
I did not complaint when I did not see the logo of my party on 14th April, 2007 and I relaxed. I am no longer a Petitioner in their petition.
That is all.
XX by Mr. Obende for the Petitioners.
I signed Exhibits P and P2 I signed the witness statement on the 11th May, 2007 as witness NO.1 in the list of Petitioners witness. I seek to tender the witness statement to the Petitioner evidence.
Mr. Abdullahk: No objection.
Mr. Pwnwal: No objection.
Tribunal: DW2’s statement on oath dated 11th May, 2007 in the petition is hereby admitted and marked as Exhibit P9.
Yes myself and Adamu Abbas i.e 4th Respondent are from Dengi Kanam Constituency. Exhibit pi is the Form filled for Dengi Kanam Constituency.
The same in exhibit P2 is my Nomination Form yes in December, 2006 I filled Exhibit P1 (i.e. affidavit of personal particularly) for DPP. I could not remember the time I was approached by DPP to contest the election. I cannot remember the time I decided to opt out of the contest. Before I opted out form DPP INEC did not screen me. Paragraph 9 are not true I talk lie in those paragraphs I did not lie in paragraph 4 of my statement in Exhibit P9 I did not know if INEC published my name as a candidate in election under Kantana Constituency Paragraph 5 of Exhibit P9 is true I know Baw Danladi. I did not know if Bawa Danlami was DPP’s agent on the election of 14/4/07. I voted but I did know if the DPP’s logo was not on the ballot paper. My polling unit is not Kaswan B. My polling unit is A Central School. I do not know the polling agent of A Central School polling unit. I made a statement in support of the Reply on the 4th Respondent because I want to give evidence before the Tribunal. I do not know if I wrote the statement because the 3rd and 4th Respondents asked to do so. I do not know whether I lied in paragraph 7 of the statement in support of the reply for the 4th Respondent. I do not know if paragraph 9 of Exhibit P9 is correct or not. Both paragraph 7 of the statement in support of reply and paragraph 9 in Exhibit P9 are not correct I cannot remember when I withdrew from contesting the election. I wrote to my party Chairman and the letter is with Chairman of party. I do not have the copy of the letter.
That is all
Rexx Nil
Tribunal: You are discharged.”
Under cross examination by the 1st – 3rd Respondents, counsel, the 1st Petitioner (1st Respondent who testified for his supposed adversaries as DW2 had stated inter alia, thus:
“After giving the form i.e. Exhibit P2 I withdraw (sic) from contesting the election as stated in paragraph 3 of my statement on oath. After withdrawing my candidature I stopped from taking any further step in election campaign tour of my constituency in paragraph 5 of my statement. I also discussed this with Chairman of the party in Kanam who promised to notify the party accordingly.
I will not complaint (sic) when I did not see the logo of my party on 4th April, 2007 and I related. I am no longer in their petition.
That is all.”
Also under cross examination by his own counsel (by Obende for the Petitioners) the DW2, (1st Petitioner) stated inter alia, thus: –
“I made a statement in support of the reply on the 4th Respondent because I want to give evidence before the Tribunal …
… I wrote to my party chairman and the letter is with Chairman of party. I do not have the copy of the letter.
That is all.”
Hence, from the nature and totality of the pleadings and evidence adduced at the trial of the petition, it has become rather inarguably obvious, that the petition filed in the Lower Tribunal was rather unreasonable, an abuse of judicial process, and outrageous to say the least.
As alluded to in the judgment just delivered in the twin sister appeal (CA/J/EP/31/2005), the present 1st Respondent’ (1st Petitioner) is a typical personification of MARCUS BRUTUS, in William Shakespeare’s lyrical exposition in JULIUS CAESER. See WOKDUNG ADAMU ABBAS VS. ALI BALA AND 3 ORS; APPEAL NO. CA/J/EP/HR/31/0B DATED 16TH JULY, 2009 unreported) wherein I observed as follows:
“The 2nd Respondent, nay the officials and supporters thereof, must have undoubtedly felt terribly jilted, for having been sold out and stabbed on the back by the potential candidate thereof in the person of the 1st Respondent. The attitudinal disposition of the 1st Respondent is undoubtedly typical of Brutus, legendary betrayal of Julius Ceaser, It is indeed legendary, that when Julius Ceaser was first stabbed by Casta, in the neck; Ceaser got hold of his hand. Ceaser was then overwhelmingly stabbed by several other conspiratorial coupists, and at last by MARCUS BRUTUS, which made Julius Caeser to cry out the last few words of his life – “ET TU, BRUTUS”? And behold – “Then fall Caeser!” See JULIUS CAESER ACT III, SCENE 1.”
Hence in the light of all the postulations herein above alluded to vis-a-vis ‘the reasoning and conclusion reached in the twin sister appeal (CA/J/EP/HA/31/2008), I hereby hold that the Lower Tribunal had committed a gravious error in holding that the 1st and 2nd Respondents had the locus standi to present the instant petition. Result antly, the said issue NO.1 ought to be and same is hereby, resolved in favour of the Appellants.
The usual question that is asked is why does justice carry a balance in her hand with lifted scales? I think the answer is not far fetched. It is so plainly obvious that it needs no justification at all. It is indeed axiomatic, that the balances have from times immemorial been the symbol of even handed justice. One could vividly recall the awesome judgment in the book of Daniel:
“Thou art weighed in the balances, and art found wanting.”
In the same vein, I think it was Lord Denning, MR (of blessed and most remarkable memory) who in his notorious erudite characteristics aptly remarked that:
“Let the advocates one after the other put the weights into the scales – the “nicely calculated less or more – but the judge at the end decides which way the balance tilts be it ever so slightly. See JONES VS. NATIONAL COAL BOARD (1957) 2 QB 55 AT 64.
Consequently, having satisfied myself that the present appeal is grossly meritorious, I hereby without any further hesitation allow same.
The judgment of the lower tribunal delivered on 4th December, 2007 in petition No. PL/L/HEPT/6/2007 is hereby set aside. The said petition No PL/L/HEPT/6/2007 is hereby dismissed.
There shall be cost of N30, 000.00 in favour of the Appellants.
Other Citations: (2009)LCN/3428(CA)
