Yahaya Giwa & Anor. V. Faruk Musa Dosara & Ors. (2010)
LawGlobal-Hub Lead Judgment Report
AHMAD O. BELGORE J.C.A,
This is an appeal from the decision of the National Assembly, Governorship and Legislative Houses Election Tribunal, holden at Gusau, Zamfara State (hereinafter referred to as “The Tribunal”). The decision is contained in its judgment of the 27th day of July, 2007 where the Tribunal found for the petitioners that they were unlawfully excluded. The petitioners there are the 1st and 2nd Respondents herein. The 1st and 5th Respondents before the Tribunal are the two appellants herein. The 2nd, 3rd and 4th Respondent before the Tribunal are now the 3rd, 4th and 5th Respondents, respectively, herein.
At the Pre-Hearing proceeding before the tribunal, parties agreed that the sole issue for determination was whether the 1st respondent herein was unlawfully excluded from the election of April after having been validly nominated by the 2nd respondent.
The 1st respondent gave evidence by adopting his written statement on oath and was subjected to cross-examination. He also tendered in evidence, a booklet of BALLOT PAPERS for ZAMFARA MARADUN 1 starting from serial number SC063874942 to number SC063875000 and a letter addressed to The Electoral Officer, Independent National Electoral Commission, Maradun LGA Office, Maradun dated 14/4/2007. The two documents were admitted in evidence and marked as Exhibit A and Exhibit B respectively. The written statements on oath of the 1st respondent; and Aliyu Babangida Mohammed Maradun; the 1st appellant; and the 3rd respondent, were admitted as Exhibits C, D, E, and F respectively.
As I stated earlier in this judgment, the tribunal found that the 1st respondent was unlawfully excluded from the election, it therefore annulled the election and ordered for a fresh election.
Briefs of argument were filed and exchanged. The 3rd to 5th respondents did not file their brief. They filed a notice of intention to adopt the Appellants’ Brief of Argument. When the case came up for hearing, the appellants applied to withdraw both the affidavit challenging the record of appeal and notice of intention to rely upon preliminary objection and the two processes were accordingly struck out.
Three issues were identified by the appellant as arising for determination in this appeal, and these are:-
(a) Whether the Tribunal below was right in holding that at the close of the case for the petitioners the petitioners had established a prima facie case of non inclusion of the name and logo of the Peoples Democratic party in the ballot papers used to conduct the election of 14/4/07 as to shift the onus of proof on the respondents.
(b) Subject to resolution of issue (a) above, whether the tribunal below breached the constitutional right of the appellants to fair hearing;
(c) Whether on the evidence before the tribunal below it was right in holding that the 1st respondent was unlawfully excluded from the election held on 14/4/07 for Maradun 1 Constituency.
The 1st and 2nd Respondents identified two issues for determination, viz : –
- Whether the appellants were denied fair hearing by the Tribunal
- Whether the tribunal was right in nullifying the election of 14th April, 2007 as it affects Maradun 1 constituency, and the election and return of the 1st respondent/appellant by reason of non-inclusion of the symbol of the 1st petitioner’s political party on the ballot papers used for the election.
In this judgment, I will treat the appeal on the basis of the issues formulated by the Appellants, but I will consider Issues (b) first since it borders on the constitutional right of the appellants. It is a strange approach for the appellants to regard the holding by the tribunal that the burden of proof had shifted to them as a violation of their constitutional right under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to “The Constitution”). I view this issue as a grand design and a ploy to delay the course of justice. This is so because a court or tribunal can hold that evidential burden in a case has shifted to either of the parties depending on the pleadings and the progress of evidence adduced in a trial. What the tribunal said was that the 1st and 2nd respondents had made out a prima facie case and that the burden of proving the affirmative that the name and logo (symbol) of the 1st respondent’s party were on the ballot papers used for the election of the 14th April, 2007 shifted to the appellants. I do not see, by any stretch of imagination, how this has infringed on the right of the appellants to fair hearing under Section 36 of the Constitution. In EDEANI NWAVU & ORS V. CHIEF PATRICK SUNDAY OKOYE & ORS [2008] 12 S.C.N.J. 460 (pt. II), it was held that:-
“Evidential burden may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage. The evidential burden rests initially upon the party bearing the legal burden, but as the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail if no evidence at all or no further evidence is adduced by either side – Section 136 of the Evidence act”.
It was further held by the Supreme Court that:-
“Burden of proof sometimes shifts to the defendant depending on the state of pleadings. Where a defendant introduces in his pleadings issues that would convert him to be a claimant/plaintiff on such issues, it is his duty to prove the existence of such fact in order to support what he claims or asserts in his defence – Section 136 and 137 of the Evidence act.
In the instant case, whether the tribunal was right in coming to that conclusion or not is another issue but it has not in any way violated the constitutional right of the appellants to fair hearing. In the light of this, I hold that the tribunal has the right to determine whether the evidential burden has shifted or not. This issue is resolved against the appellants.
I will treat Issues (a) and (c) together. It is the case of the appellants that the 1st and 2nd respondents have not discharged the burden of proof placed on them as to their claim that the 1st respondent had been excluded from the election of the 14th April, 2007 due to non-inclusion of the name and symbol of his party (PDP) on the ballot papers used for the election. The appellants based their case on the fact that Exhibit A in this case is different from the ballot papers used for the election in that the ballot papers used for the election had the name and symbol of the 1st respondent’s party on it. This stand by the appellants is anchored on their pleading and the evidence of DW2 under cross-examination that the ballot papers used at the election had PDP logo on them. DW2 is the Electoral Officer who conducted the election for Maradun 1 Constituency. It is submitted for the appellants, therefore, that his evidence cannot be trivialized or just be brushed aside with a wave of the hand, just as the tribunal did. It is the contention of the appellants that the tribunal fell into error by shifting the burden of proof on them as a result of its view that the electoral body and its agents joined in the petition as respondents had the onus to produce the very ballot papers used in the election, which papers are still in their exclusive custody and control by dint of section 73 of the Electoral Act. It is, therefore, submitted for the appellants that it was premature for the tribunal to have invoked the presumption under Section 149 (d) of the Evidence Act against the INEC and its agents who are co-respondents to the petition and who had refused to produce the ballot papers used for the election at the trial. The totality of the case of the appellants is that the 1st and 2nd respondents have failed woefully to establish a prima facie case to warrant the tribunal holding that the onus has shifted to the appellants to prove affirmatively that the ballot papers used for the election of the 14th April, 2007 had the name and logo of the 1st respondent’s party on them.
As for the 1st and 2nd respondents, it is submitted that the tribunal was right in holding that the burden of proof has shifted to the appellants. Reference is made to paragraph 2 of the Reply of the appellants to the petition which stated thus:-
“…the logo of the Peoples Democratic Party and name were displayed/engraved on all the ballot papers issued and used by the 4h respondent in conducting election for Maradun 1 constituency on 14th April, 2007.”
It is submitted for the 1st and 2nd respondent that the tribunal was right in nullifying the election of the 14th April, 2007 on the ground of unlawful exclusion of the 1st respondent who was validly nominated by his party and duly cleared by the 5th respondent. Attention is also drawn to the fact that on the application of the 1st and 2nd respondents, the tribunal issued subpoena dated the 30th June, 2007 commanding the 5th respondent to produce before the tribunal, the original and certified true copies of the cast and unused ballot papers for Maradun 1 Constituency as well as the complaint to the Electoral Officer Maradun Local Government by PDP Secretary, Maradun Local Government which subpoena was not honoured.
Now, the cardinal issue arising out of issues (a) and (c) formulated by the appellants is whether the tribunal was right in holding that the 1st and 2nd respondent have made out a prima facie case and in nullifying the election of the 14th April, 2007 after holding that the onus of proving the affirmative that the name and logo of the 5th respondents were on the ballot papers used for the election was on the appellants.
Burden of proof is nothing other than a minimal proof depending on the circumstances of a given case. In the instant case, the tribunal held that a prima facie case had been established based on the evidence given by the 1st and 2nd respondents. Exhibit A which is part of a booklet of the ballot papers for Maradun 1 Constituency was held by the tribunal to be good enough in the face of the failure and/or neglect by the INEC to produce the original and copies of the ballot papers cast and unused for the election of the 14th April, 2007, notwithstanding a writ of subpoena issued on the application of the 1st and 2nd respondents in that behalf.
It is pertinent to note that the 3rd to 5th respondents did not file any brief but they jointly filed a notice of intention to adopt the brief filed by the appellants. It is also pertinent to note that the petition leading to this appeal did not specifically blame the appellants for unlawful exclusion of the 1st respondent from participating in the election of the 14th April, 2007. Indeed, the party that carries the burden to show that the name and logo of PDP were on the ballot papers used for the election is INEC together with its agents that played a role or another in the conduct of the election. It bears the burden to show that the name and logo of the PDP were on the ballot papers used for the election. It can only discharge this burden by producing the ballot papers used at the election as commanded by the tribunal. But, the INEC has obeyed this command in breaches. Its Officer who testified as DW2 was affirmative that the… logo of the Peoples Democratic Party and name were displayed/engraved on all the ballot papers issued and used by the 4th respondent in conducting election for Maradun 1 constituency on 14th April, 2007″ but he did not produce the ballot papers (either used or unused) for inspection by the tribunal. In I.N.E.C. V. OSHIOMHOLE [2009] 4 NWLR (Pt. 1132), 607/664, this Court held thus:-
“Where a party is subpoenaed to appear before a court or tribunal, it is a very serious matter and not one to be treated with levity. Thus where a person is subpoenaed to produce a document, he must produce the document as commanded in the subpoena, or suffer the penalty.”
At page 124 of the record, it is evident that a subpoena was issued under the hand of the Chairman of the tribunal, commanding the Zamfara State Resident Electoral Commissioner of the Independent National Electoral Commission to attend the tribunal on the 3rd day of July, 2007 and at all subsequent adjournments thereof until otherwise directed by the tribunal.
The purpose for which the Resident Electoral Commissioner was to attend the tribunal was to produce before the tribunal –
- Cast and unused ballot papers for Maradun 1 Constituency
- Complaint to the Electoral Officer, Maradun Local Government by PDP Secretary, Maradun Local Government. These documents were to be produced in original and certified true copies. The 1st and 2nd respondents tendered in evidence, the unused ballot papers which was admitted and marked as Exhibit A. The only objection to its admissibility in evidence was that it was not the used ballot paper. The 3rd to 5th respondents did not say that the unused ballot papers did not belong to them.
It was in the light of this that the tribunal held that the 1st and 2nd respondents have established a prima facie case and that the burden of proving the affirmative that the name and logo of the PDP were on the ballot papers used for the election rested on the appellants and 3rd to 5th respondents. When the appellants and the 3rd to 5th respondent failed or neglected to discharge the burden, the tribunal held that the provision of Section 149 (d) of the Evidence Act applied. I find good reason and sense in that finding by the tribunal as it accords with law.
It is a fundamental procedural requirement that when issues are joined on the pleadings evidence is needed to prove them. It is the person upon whom the burden of establishing an issue lies that must adduce satisfactory evidence. Where there is no such evidence, the issue must be resolved against him and the consequences of that are as decisive of the case presented as to the materiality of that case. – See AFRICAN CONTINENTAL BANK PLC & ANOR. V. EMOSTRADE LIMITED [2002] 4 SCNJ 299, 306.
I agree with the tribunal that a prima facie case has been established by the 1st and 2nd respondents and that the burden of proving the affirmative that the name and logo of the PDP were on the ballot papers used for the election has shifted to the appellants and the 3rd to 5th respondents as pleaded by them and as stated by DW2 under cross-examination. Failure to discharge this burden is fatal to their case. This is so because pleadings cannot take the place of evidence and each party has a duty to adduce evidence in support of his pleadings.
In O. ARABAMBI & ANOR V. ADVANCE BEVERAGES INDUSTRIES LTD [2005] 12 SCNJ 331 it was held that: –
“The law is clear and settled that pleading is not synonymous with evidence and so cannot be construed as such in the determination of the merit or otherwise of a case. A party who seeks judgment in his favour is required to produce adequate credible evidence in support of his pleadings and where there is none, the averments in the pleadings are deemed abandoned.
Where, however, one party fails or refuses to submit the issues he has raised in his pleadings for trial and does not give or call evidence in support thereof the trial court, unless there are other legal reasons to the contrary, may resolve such issue against the defaulting party.”
It was this principle of law of pleading that guided the tribunal when it held that: –
“The only evidence to debunk that claim lies in the ballot papers themselves, in other words, the only acceptable answer to impugn the veracity of the evidence lies in some proof of the affirmative by the respondents that the 1st petitioner was included in the election or that some law justifies his exclusion. The onus of establishing that shifted onto the respondents by virtue of Section 137(2) of the Evidence Act the moment the petitioners testified to their exclusion.”
I find this finding to be unassailable and do not find any reason to interfere with it. It is based on solid principle of law and the rules of pleading.
In the premises, these two issues are resolve against the appellants. Consequently, this appeal fails and it is accordingly hereby dismissed. The decision of the tribunal in Petition NO.EPT/ZMS/GS/HA/12/2007 handed down on the 27th day of July, 2007 is hereby affirmed.
The Independent National Electoral Commission shall conduct a fresh election in the Maradun 1 Constituency into the Zamfara State House of Assembly, in which the symbol of the Political party of every candidate in the election shall be represented on the ballot paper to be used.
The fresh election shall be conducted within 30 days hence.
Each party shall bear his own cost.
Other Citations: (2010)LCN/3523(CA)
