Abubakar L. Abdullahi & Anor. V. Hon. Yahaya Sadauki & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

AYOBODE O. LOKULO-SODIPE, J.C.A.

This is an appeal against the judgment delivered on the 18th day of September, 2007 by the Niger State Governorship and legislative Houses Election Tribunal, in PETITION NO. SHA/EPT/NS/11/07- HON. YAHAYA SADAUKI & ANOR V. ABUBAKAR L. ABDULLAHI & 2 ORS. The Petition was challenging the return of one Abubakar L. Abdullahi as the member of the Niger State House of Assembly representing Suleja Constituency. The 1st and 2nd Respondents as Petitioners filed a four (4) paragraph Petition; while the present Appellants (who were the 1st and 2nd Respondents at the trial Tribunal) filed a five (5) paragraph Reply to the Petition. The 3rd Respondent equally filed a six (6) paragraph Reply to the Petition. The trial Tribunal in its judgment found that the 1stAppellant was not qualified to contest the election into the Niger State House of Assembly held on 14/4/2007 and consequently nullified the return of the said 1st Appellant; thereby upholding the Petition. The Appellants, who were the 1st and 2nd Respondents before the trial Tribunal being dissatisfied with the judgment nullifying the return of the 1st Appellant, have appealed to the Court of Appeal.

The 1st and 2nd Respondents in this appeal as Petitioners presented their joint Petition on 14th May, 2007. In the Petition, the election and return of the 1stAppellant was challenged on the following Grounds: –

“1. That Abubakar L. Abdullahi was not qualified to contest the election to the House of Assembly of Niger State since he did not have the minimum educational requirements and has not attained the statutory age.

2. That the 1st Respondent falsified FORM C.F. 001 which he presented to Independent National Electoral Commission.
3. That the election of the Respondent was invalid by reason of corrupt practices and non-compliance with the provisions of the electoral (sic) Act, 2006.”

Only the 1st Respondent testified in the proof of the case of the Petitioners/1st and 2nd Respondents, before the trial Tribunal. Five Exhibits were also tendered by him. The Exhibits are marked P1- P5 respectively. The Appellants denied the case of the Petitioners/1st and 2nd Respondents as set up in the Petition. The Appellants in the proof of their own case called two (2) witnesses; the 1st Appellant being one of them. One (1) Exhibit marked R1 was tendered by the Appellants. The 3rd Respondent called no witness at the hearing of the Petition. Indeed the 3rd Respondent never attached any statement on oath of any witness it proposed to call to its Reply.

The Notice of Appeal of the Appellants dated 3rd October, 2007 was filed on 5th October, 2007. The Notice of Appeal contains four (4) Grounds. The Grounds without their Particulars read thus: –

“1. The learned Election Tribunal erred in law when it wrongly placed the burden of Proof in the petition on the 1st respondent.

2. The Election Tribunal erred in law when it wrongly evaluated the evidence before it.
3. The learned Tribunal erred in law and failed to interpret properly the provisions of S. 318 1999 constitution (sic) by failing to consider the use of the words “or” and “and” when it held that “on the question of the educational qualification of the 1st respondent to contest the questioned election therefore, we hold that there is no evidence that he has been educated up to at least the school certificate level or its equivalent as required by S.106 (C) of the constitution” (sic).
4. The Tribunal erred in law when it failed to consider and wrongly expunged the relevant evidence of Secondary School certificate of the 1st respondent.”

The appeal was heard on 18/3/2008. Learned lead counsel for the Appellants, Linus A. Okere in arguing the appeal (which he urged the Court to allow), relied on and adopted the Appellants’ undated brief of argument filed on 18/2/2008 and Appellants’ Reply brief on Points of Law to the 1st and 2nd Respondents’ brief dated 18th March, 2008 and filed the same day.

P.Y. Tuktur (Miss.) of counsel for the 1st and 2nd Respondents (holding the brief of Y.C. Maikyau), in urging the Court to dismiss the appeal, relied on and adopted the said Respondents’ brief of argument dated 10th March, 2008 but filed on 12th March, 2008. Learned counsel for the 3rd Respondent, Chinedu Odora in urging the Court to allow the appeal relied on and adopted the said Respondent’s brief of argument dated 12th March, 2008 and deemed to have been properly filed on 18th March, 2008.

Three Issues were formulated for determination in this appeal, in the Appellants’ brief which was prepared by Rotimi Ojo Esq. In the said brief, none of the Issues was married to any specific or particular ground(s) of appeal. This is not good enough. In this regard, I cannot but refer to the case of SGT, DESMOND EZEJA & ANOR V. THE STATE [2006] All FWLR (pt, 309) 1535 and urge counsel to always bear in mind the admonition of Sanusi, JCA; at page 1599 whereat His lordship said: –

“This court has times without number enjoined counsel to specifically marry issues they formulate to specified or particular grounds of appeal in their brief of argument. It is highly commendable for counsel to be doing so.”

The three Issues for determination in the appeal as formulated in the Appellants’ brief of argument are: –

“(1) Whether the 1st Respondent proved his Petition before the Tribunal.

(2) Whether the Tribunal was right when it held that the 1st Appellant was not qualified to contest as he lacked the requisite educational qualification.

(3) Whether the Tribunal was right to have ordered fresh election and disqualified the 1st appellant from contesting,”

In their brief, the 1st and 2nd Respondents dealt with the Issues as set out in the brief of the Appellants. They urged the Court to resolve the three Issues in their own favour. Aside from doing this, the 1st and 2nd Respondents in the alternative also contended that the judgment of the trial Tribunal can be supported on other grounds than those relied upon by the Tribunal.

The Issues for determination as formulated in the brief of argument of the 3rd Respondent are two; and they read thus:-“1. Whether the Tribunal was right when it held that the 1st Appellant was not qualified to contest the election as he lacked the requisite educational qualification, to contest.

2. Whether the tribunal was right to have shifted the burden of proof from the 1st and 2nd Respondents in this Appeal to the Appellants.”

The appeal will be determined on the three Issues formulated by the Appellants. I must however express the view that the second of the three Issues formulated by the Appellants, namely; whether the Tribunal was right when it held that the 1st Appellant was not qualified to contest the election as he lacked the requisite educational qualification is subsumed in the first of the three Issues, namely; whether the 1st Respondent proved his Petition before the Tribunal. This is because the very question as to whether or not the 1st Appellant was not qualified to, contest the election must necessarily be decided in the affirmative before the Petitioners/1st and 2nd Respondents can be said to have proved that aspect of their case challenging the return of the 1st Appellant on the ground that he (I.e. 1st Appellant) was not qualified educationally for the election. Accordingly, one should not be surprised if the consideration of Issue 1 dovetails into Issue 2 and vice-versa.

ISSUE 1

The Appellants in arguing Issue 1, in the main, accused the trial Tribunal of wrongly placing the burden of proof in respect of the allegations that the 1st Appellant did not possess the minimum educational qualification to contest the election of 14/4/2007 raised in the Petition, on them (i.e. Appellants). Issue 1 formulated by the Appellants and Issue 2 formulated by the 3rd Respondent to all intents and purposes are the same.

Dwelling on Issue 1, the Appellants stated to the effect that the basis for challenging the election of the 1st Appellant was that he did not have the minimum educational requirement. In this regard reference was made to paragraphs 7 and 10 of the statement on oath of the 1st Respondent where allegations to the effect that the 1st Appellant forged his Primary School Certificate; and that he did not have any Senior secondary certificate or its equivalent were made. The Appellants said the 1st Appellant in responding to the allegations, claimed to have attended Anguwan Gayan Primary School, Suleja and that he has a certificate of his attendance as evidence. In this regard, reference was made to paragraphs 3-5 of the 1st and 2nd Respondents’ (now Appellants) Reply; paragraphs 1, 3 and 4 of the statement on oath of Adamu Ladan Ibrahim and paragraphs 2-5 of the statement of Yahaya, Ahmed Kontagora. The Appellants said the 1st and 2nd Respondents did not file a Petitioners’ Reply rebutting the claim of the 1st Appellant that he attended Anguwan Gayan Primary School; Government Science Secondary School Kagara and Government Technical College Kontagora. Neither did they, (i.e. 1st and 2nd Respondents) adduce evidence in this respect. The 1st Respondent, the Appellant further said, never told the trial Tribunal that he attended the schools which the 1st Appellant claimed to have attended. Neither did the 1st Respondent adduce direct evidence through any witness to disprove the claim of the 1st Appellant in this regard. The Appellants in the circumstances submitted that the evidence of the 1st Respondent was inadmissible. Reliance was placed on section 7 of the Evidence Act and the case of Ojukwu vs. Obasanjo (2006) 2 EPR 242. The Appellants further submitted that the 1st Respondent failed to adduce evidence in support of his petition. The cases of Jibrin vs. National Electric Power Authority 2003 FWLR PT 178 PG 1092 at 1106; and Illobachevs. Philips (2002) FWLR PT 115 PG 726 at 743-744 were cited in aid.

It was alleged by the Appellants, that notwithstanding the failure of the 1st Respondent to discharge the onus on him, the trial Tribunal held that “The 1st Respondent has not also shown that he was educated up to Secondary School Level”, The trial Tribunal was said to have arrived at this finding, after it stated that the 1st Appellant did not in his evidence allude to the certificates of the schools he attended and did not call the two former principals of the Government Technical College coupled with the fact that he failed to list his certificates in Exhibit P1.The Appellants said this amounted to the shifting of the burden of proof to the 1st Appellant even though the 1st Respondent did not discharge, the burden of proof on him. Sections 135-137 of the Evidence Act as well as the cases of Garba VS. Gali (2002) FWLR PT 84 PG 1; Abah vs. Mbah (2002) FWLR PT 135 PG 619; Eweka Rawson (2001) FWLR PT 67 PG 999 at 1016; Kara vs. Wassah 2001 FWLR PT 78 PG 1191 at 1207; Abdullahi vs. Tasha (2001) FWLR PT 81 PG 18007; and Obj-Odu VS. Duke (2006) FWLR PT 337 R 2; were cited in aid. Lastly on this Issue, the Appellants submitted that the trial Tribunal relied on the weakness of the 1st Appellant’s defence instead of relying on the strength of the 1st Respondent’s petition and cited Olusanya VS. Osineye (2002) FWLR PT 108 PG 1462 at 1493; and Buba VS. Bukar (2003) FWLR PT 183 PG 1462 in aid.

Dwelling on Issue 1, in their brief, the 1st and 2nd Respondents (hereinafter simply referred to as “the Respondents’) submitted that the 1st Respondent successfully proved his Petition and that the trial Tribunal was right when it found that the 1st Appellant did not attain or possess the minimum educational qualification to contest the election. The Tribunal, the Respondents said, did not wrongly place the burden of proof on the 1st Appellant. The Respondents said the determination of who has the burden of proof in respect of a particular fact at any given time in the course of trial, depends on the state of pleadings. While conceding that it is trite law that a person seeking a declaration must establish his case on the basis of evidence and as such cannot rely on the weakness of the case of his opponent, the Respondents said the pertinent question however was, when the Petitioners would be said to have discharged the burden. The Respondents cited the case of Onobruchere vs. Esegine (1986) 1 NWLR (pt. 19) 799 as pointing out that onus of proof does not exist in vacuum; that onus or burden of proof is merely an onus to prove or establish an issue and that there cannot be any burden of proof where there are no issues in dispute between parties. As an example they said if a plaintiff’s claim is admitted that is the end of the story. Similarly if a particular averment of the plaintiff is admitted there will no longer be an onus to prove what has been admitted by the opposite party. Accordingly, to discover where the onus of proof lies in any given case; the court has to look critically at the pleadings of the parties. The Respondents stated that in line with the applicable principles of law relating to burden of proof, the trial Tribunal considered the pleadings of the parties in the Petition and evidence, before reaching the conclusion that it agreed with the 1st Petitioner (now 1st Respondent) that the 1st Respondent at the trial Tribunal (now 1st Appellant) did not have any Senior Secondary School Certificate. Reference was made to pages 97-100 of the Record of Appeal in this regard.

The 3rd Respondent (hereinafter simply referred to as “the Respondent’1 dwelling “on the issue of burden of proof in election petitions” in its brief, said that the applicable provisions in the Evidence Act are to be found in sections 135-138 thereof. The Respondent submitted to the effect that given the sui generis nature of election petition proceedings, it is the party that asserts the existence of a particular fact in his pleading, that is required to prove that fact by adducing credible evidence in respect of the same. And that a party that alleges the commission of a criminal offence is required to prove it beyond reasonable doubt. In the premises, the Respondent said that the Respondents in this appeal, who alleged the non-possession of educational qualification and forgery of a declaration of age are not only, saddled with the burden of proof in respect of the allegations, but also have a higher standard of proof in that regard. The cases of Nwobodo VS. Onoh (1984) 1 SC 1; Ikpatt vs. Iyoho (1999) 7 NWLR (pt, 609) 58; and Ogoda VS. Enamuotor (1999) 8 NWLR (pt. 615) 407 were cited in aid. The Respondent further submitted that the Respondents did not discharge the burden of proof on them in respect of their allegations (which are criminal in nature), that the 1st Appellant forged his Primary School Certificate; and that he did not have a Secondary School Leaving Certificate or its equivalent amongst others.

It is settled law that issues in controversy in civil actions prosecuted on pleadings are joined in the pleadings, and not in evidence. Evidence adduced at the hearing is to be used to resolve the issues so joined by parties. See in this regard the case of DR. TUNDE BAMGBOYE V. UNIVERSITY OF ILORIN & ANOR (1999) 6 SCNJ 295 at 324.

Though it is equally settled law that election petitions are sui generis, but it also most clear from the authorities that many of the principles that are applicable in ordinary civil cases are equally applicable in election petitions; at least to the extent that such principles have not been expressly rendered inapplicable by the relevant Electoral legislation and the rules made thereunder. Accordingly the issues in dispute amongst the parties in the Petition on appeal, and which required the resolution in the positive or affirmative, by the trial Tribunal to have entitled the Petitioners now Respondents to judgment in respect of their prayers must be sought and identified in the “pleadings” of the parties; namely, the Petition and the respective Replies of the Respondents. The three grounds upon which the Petition of the petitioners/Respondents is predicated have earlier been re-produced verbatim in this judgment. They are to the effect (i) that the 1st Appellant was not qualified to contest the election into the Niger State House of Assembly as he did not have the minimum educational requirement and had also not attained the mandatory statutory age; (ii) that the 1st Appellant falsified FORM C.F. 001 which he presented to INEC; and (iii) that the election was invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act, 2006. The Petitioners/Respondents further gave Particulars in respect of the third ground of the Petition. The Particulars read thus:-

“1. The for (sic) Respondent made a declaration of his age for himself.

2. The 1st Respondent forged the signature of his uncle Alh. Adamu Danjuma Ladan while declaring his age on 6th April, 2007.
3. The 1st Respondent submitted is forge (sic) primary school certificate to INEC.”

The Petitioners/Respondents equally pleaded their reliance on the following: –

“(a) Declaration of age dated 6/4/2001

(b) Exhibit 4

(c) Affidavit dated 10/11/2006

(d) INEC form F0011 submitted to INEC by 18 respondents (sic)”

The Appellants as Respondents, in their Reply at pages 24-25 of the Record in effect denied (i) that the 1st Appellant did not have the minimum educational requirement to contest the election and specifically pleaded their reliance on (a) the School certificate obtained from the Government Technical Science College Kontagora; and (b) the statements on oath of two former principals of the institution in the proof of the fact that the 1st Appellant had obtained the minimum qualification to contest the election in question. The Appellants equally denied the allegation that the 1st Appellant did not attain the mandatory statutory age. They claimed that the 1st Appellant was born on 25th November, 1975 and that his birth was duly registered at the Birth Registry Suleja. The extract of the birth registration of the 1st Appellant was specifically pleaded. Furthermore, it was averred by the Appellants in their Reply that the 1st Appellant concluded his primary education in Suleja and that the Primary School Certificate issued by the school will be tendered in the proof of this.

The 3rd Respondent at the trial Tribunal (i.e. INEC and which party is still the 3rd Respondent in this appeal), in its Reply at pages 52-53 of the Record equally denied that the 1st Appellant did not meet the minimum educational requirement to contest the election to the Niger State House of Assembly. In this regard, this Respondent specifically pleaded the “Primary Education Certificate dated 6th June, 1986”; “School Leaving Certificate of Government Technical College, Kontagora”; and the “Training Programme Certificate with no. 001271”; submitted to it by the 1st Appellant. The 3rd Respondent in its Reply not only denied that the 1st Appellant did not attain the statutory mandatory age but also stated that the said party was qualified to have contested the election of 14/4/2007 to the Niger State House of Assembly, having submitted his original verifiable and authentic documents including Form C.F. 001 which were duly screened.

The Issue formulated for determination in the Petition by the trial Tribunal, at the conclusions of pre-hearing session and in apparent appreciation of the issues in controversy in the pleadings of the parties is set out at page 59A of the Record. It reads thus:-

“Whether the 1st Respondent was qualify (sic) to contest the elections into Su(eja Constituency if (sic) the Niger State House of Assembly held on the 14th day of April, 2007 in view of the allegation that he did not possess the minimum educational requirement (sic) and that he did not attain the statutory mandatory age for the said election,”

As earlier stated the Appellants in arguing Issue 1, in the main, accused the trial Tribunal of wrongly placing the burden of proof in respect of the allegations that the 1st Appellant did not possess the minimum educational qualification to contest the election of 14/4/2007 raised in the Petition, on them (i.e. Appellants). It should be noted that the issue as to whether or not the e Appellant attained the mandatory age for the election in question was not relied upon by the trial Tribunal in nullifying the return of the said 1st Appellant. The issue of burden of proof, therefore necessarily must be examined in relation to the question as to whether or not the 1st Appellant possessed the minimum educational qualification for the election.

What does the phrase “burden of proof” mean? “Burden of Proof” was one of the issues considered by the Supreme Court in the case of MUHAMMADU BUHARI & ANOR V. CHIEF OLUSEGUN A. OBASANJO & (2005) All FWLR (Pt. 273) 1. At page 72, Uwais CJN said thus:

“In general, in a civil case, the party that asserts in its pleadings the existence of a particular fact is required to prove such fact by adducing credible evidence. If the party fails to do so, its case will fail. On the other hand, if the party succeeds in adducing evidence to prove the pleaded fact, it is said to have discharged the burden of proof that rests on it. The burden is then said to have shifted to the party’s adversary to prove that the fact established by the evidence adduced, could not on the preponderance of the evidence, result in the court giving judgment in favour of the party.”

His Lordship having stated that the above propositions are the product of sections 135 to 139 of the Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria, 1990 and having re-produced the provisions of the said sections minus section 138, further said on the same page 72 thus:-

“It is clear from the foregoing provisions of the Act that the burden of proving the non-compliance with the provisions of the Electoral Act, 2002, the invalidity of the election by reason of corrupt practices and the disqualification of the 1st respondent/cross-appellant from contesting the election were matters to be proved by the 1st and 2nd appellants/cross-respondents at the trial in the Court of Appeal.”

Still on “burden of proof” is the case of M.S.C. EZEMBA V. S.O. IBENEME & ANOR [2004] All FWLR (pt. 223) 1786 where the Supreme Court per Edozie, JSC; at pages 1815-1816 said thus:-

“In civil cases, the phrase “burden of proof” has two distinct and frequently confused meanings. Firstly, it may mean the burden of proof as a matter of law and the pleadings usually referred to as the legal burden or the burden of establishing a case; secondly, the burden of proof in the sense of adducing evidence often referred to as the evidential burden. While the burden of proof in the first sense is always stable or static, the burden of proof in the second sense may shift constantly as one scale of evidence or the other preponderates.”

See also the decisions of this Court in JIMOH KUTI &. ORS V. ADEBAYO BAKARE ALASHE &. ORS (2005) All FWLR (Pt. 284) 372; and FEDERAL MORTGAGE FINANCE LTD V. HOPE OFFIONG EKPO [2005] All FWLR (Pt. 248) 1667. In these two cases, this Court, made it clear that in civil cases, while the burden of proof in the sense of establishing a case initially lies on the plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendant and vice-versa as the case progresses.

It would therefore appear clear from the foregoing, that while the burden of proof in the sense of establishing the non-qualification of the 1st Appellant to contest the election into the Niger State House of Assembly for not possessing the minimum educational qualification remained immutably on the Petitioners/Respondents, the proof and rebuttal of the very same issue/allegation in the course of the proceedings however necessarily had to shift from the Petitioners/Respondents to the Appellants and vice-versa. In other words (and this is adopting the exposition of section 137(1) of the Evidence Act cap. 112, LFN 1990 by Salami, JCA; in the case of Kuti vs. Alashe (supra) at page 383); once the Respondents adduced or produced evidence in the proof of the issue/allegation of the non-possession of the minimum educational qualification by the 1st Appellant, the burden shifted to the Appellants to adduce evidence in the proof of their own case that the 1st Appellant possessed the educational qualification for the election which he contested.

At the hearing of the Petition, the Petitioners/Respondents adduced evidence through the 1st Respondent who for this purpose adopted his statement on oath that was attached to the Petition. The written statement on oath adopted by the 1s respondent as his evidence before the trial Tribunal is at pages 4-6 of the Record. The evidence of the 1st Respondent in the proof of the allegation that the 1st Appellant did not possess the minimum educational qualification for the election of 14/4/2007 having regard to the his statement on oath, I must point out, was not restricted to the fact that the 1st Appellant forged his Primary School Leaving certificate. The evidence was also to the effect that the 1st Appellant did not have any Senior Secondary School Certificate or its equivalent and that the said 1st Appellant’s Diploma Certificate from National Electric Power Authority is not a recognised academic qualification. The 1st Petitioner (i.e. 1st Respondent in this appeal) tendered as Exhibits before the trial Tribunal (i) INEC Form C. 001 marked as Exhibit P1; (ii) NEPA Certificate No. 001271 dated 24/12/97 marked as Exhibit P2; (iii) Statutory Declaration of Age dated 6/4/2007 marked as Exhibit P3; (iv) The Customary Court of Appeal, Federal Capital Territory, Abuja General Form of Affidavit dated 10/11/2006 marked as Exhibit P4 and (v) The Niger State of Nigeria Certificate of Primary Education (Revised 1974) NGS NO. 302171 marked as Exhibit P5.

At the conclusion of the examination-in-chief of the 1st Petitioner/1st Respondent he was cross-examined by learned counsel for the Appellants. The Petitioners/Respondents having closed their case with the evidence of the said 1st- Petitioner/1st Respondent; the Appellants opened their case and called two witnesses, one of them being the 1st Appellant herein.

The Appellants’ first witness before the trial Tribunal was the 1st Appellant and he adopted the statement on oath attached to the Appellants’ Reply as his evidence in chief. The statement which the 1st appellant adopted as his evidence in chief is at page 27 of the Record. Remarkably, the statement contained nothing whatsoever in relation to the qualification of the 1stAppellant. All that the 1stAppellant concerned himself with in the statement is the aspect of the Petitioners’ case that he did not attain the statutory age qualifying him to contest the election. In this regard he stated to the effect that he was born at Suleja on 25/11/73 and that his birth was registered at the Birth Registry. He disclosed that he had attached a copy of the extract of the registration of his birth to his statement as Exhibit ALA 010 as he had misplaced the actual birth certificate issued in evidence of his birth and that all efforts to locate it had proved futile. A Birth certificate No. 1146 tendered by the 1st Appellant was admitted and marked Exhibit R1. The 1st Appellant further proceeded to give evidence concerning the schools that he attended. In this regard he said that he attended Anguwan Gwayan Primary School from 1980-1986. From there he gained admission into the Government Science College Kagara Junior School. He was at this College between 1987-1989 and was transferred from there to the Government Technical College Kontagora between 1990-1992 where he did his SS 1 – SS 111 in the Electrical Department. He said he also attended NEPA Training College at Jos between 1995-1997. He identified Exhibit P2 as being a copy of the Certificate issued to him in respect of the training. He claimed that he never put in Exhibit Pi any qualification that he did not posses. He equally acknowledged that Exhibits P3 and 4 respectively, (Le. Statutory Declaration of Age dated 6th April, 2007 and The Customary Court of Appeal, Federal capital Territory, Abuja General Form of Affidavit, etc) were signed by him and that he therefore did not forge them. The 2nd witness called by the Appellants before the trial Tribunal was Adamu Ladan Ibrahim. The witness adopted his written statement on oath attached to the Reply as his evidence in chief before the trial Tribunal. He confirmed that he signed Exhibit P5 (Le. the Niger State of Nigeria certificate of Primary Education (Revised) NGS No. 302171) as the then Local Education Secretary.

The Petitioners and the Appellants having both adduced evidence in respect of the issue for determination in the Petition as settled by the Tribunal, it therefore became incumbent on the trial Tribunal to evaluate the same and come to a conclusion as to whether or not the said issue had been established. It is to be noted that there is no complaint against the apparent finding of the trial Tribunal on the evidence before it, that the Primary School Leaving certificate of the 1st Appellant was not a forgery as alleged by the Petitioners/Respondents. In this regard the trial Tribunal stated at page 100 of the Record thus:

“Although 1st respondent said nothing about attending this primary school in his witness statement on oath, he relied on exhibit P5 tendered by the petitioners as his primary school certificate, and called RW1, the Local Education Authority Secretary who was a signatory to exhibit P5. Since there is nothing before us to indicate that exhibit P5 was not issued as 1st respondent’s primary school certificate, we accept it as such evidence.”

The acceptance of Exhibit P5 as the Primary School leaving Certificate of the 1st Respondent (now 1st Appellant) by the trial Tribunal clearly put paid to the allegation of the Petitioners/Respondents that the 1st Appellant forged the Certificate in question. Had the challenge to the return of the 1st Appellant been based solely on the ground that his Primary School Leaving Certificate was forged, then the case of the Petitioners/Respondents would have collapsed. It is however most glaring from the judgment of the trial Tribunal that the learned Judges appreciated the fact that the case of the Petitioners/Respondents concerning the non-possession of minimum qualification for the election by the 1st Appellant was not predicated only on the allegation that he forged his Primary School Certificate. It was also predicated on his not having a Senior Secondary School Certificate or its equivalent.

The Appellants have argued that the Petitioners/Respondents did not discharge the burden of proof on them in respect of the allegation that the 1st Appellant did not have the requisite minimum educational qualification for the election of 14/4/2007 because: –

“The 1st Respondent did not testify or call any witness or file any Petitioner’s reply rebutting the averments in the reply of the Appellant to the effect that the e Appellant did not attend Anguwan Gayan Primary School, Government Science Secondary School Kagara and Government Technical College Kontagora. The 1st Respondent did not tell the Tribunal that he personally attended these schools or gave direct evidence or call any body who gave direct evidence that he attended these schools to disprove the 1st Appellant’s attendance thereat.”

I am of the view that the Appellants clearly misconceived the case of the Petitioners/Respondents having regard to the argument in their brief quoted above. The case of the Petitioners/Respondents that the 1st Appellant did not possess the minimum educational qualification to contest the election was not predicated solely on the allegation that the 1st Appellant forged his Primary School certificate, but also on the fact that the said 1st Appellant did not have a senior Secondary School Certificate. And it is glaring from the Record of Appeal that the Petitioners/Respondents in the proof of these allegations, simply relied on the documents which the 1st Appellant submitted to the 3rd Respondent (i.e. INEC) in the proof of the allegations. It was not the case of the Petitioners/Respondents in the Petition that the 1st Petitioner/1st Respondent attended any particular school and that the 1st Appellant did not attend the said school with him. Surely, the allegation by the Petitioners/Respondents that the 1st Appellant did not possess a Senior Secondary School Certificate or its equivalent is a negative averment. The Respondents in the proof of the said averment can hardly be expected to tender any Certificate which they have alleged the 1st Appellant as not having. They can hardly also be expected to testify concerning any school attended by the 1st Appellant. As earlier stated the Petitioners/Respondents, having regard to the Record of Appeal simply relied on the documents submitted by the 1st Appellant to the 3rd Respondent in the proof of the allegation that the said 1st Appellant did not have a Senior Secondary School certificate. It is definitely not stated anywhere in FORM C.F. 001 admitted as Exhibit P1 that the 1st Appellant has a Senior Secondary School Certificate.”

It is my view, that the Appellants by the very action or step they took in opening their case and calling witnesses in the proof of their own case saw the need to match the evidence adduced by the Petitioners with their own evidence. In other words the Appellants at the dose of the Petitioners’/Respondents’ case, saw that the evidential burden of proof in respect of the issue/allegation that the 1′” Appellant did not possess the minimum educational qualification for the election had shifted to them; as the Petitioners/Respondents having regard to the statement on oath which the 1st Petitioner/1st Respondent adopted as his evidence before the trial Tribunal as well as the documents tendered, could not be said to have adduced no evidence in support of the issue that the 1st Appellant did not possess the minimum qualification to contest the election in question. The Petitioners/Respondents through the 1st Petitioner/Respondent had undoubtedly produced relevant evidence in respect of the said issue/allegation of the non-possession by the 1st Appellant of the minimum qualification to contest the election in question; and which evidence in the absence of controverting or rebuttal evidence from the Appellants could result in the trial Tribunal resolving the issue against the said Appellants. In the circumstances, it therefore cannot be said that the Petitioners/Respondents, did not discharge the burden of proof on them.

I have already said that one should not be surprised if the consideration of Issue 1 dovetails into Issue 2 and vice-versa. The Appellants under their Issue 2 argued to the effect that the affidavit evidence of Yahaya Ahmed Kontagora attached to their Reply and which exhibited the 1st Appellant’s Government Technical Science College Kontagora Certificate was not controverted by the Petitioners/Respondents by the filing of a Reply or counter affidavit. The Appellants submitted that affidavit evidence are statements on oath and that if not controverted are deemed to be true. The case of Jimoh vs. The State (2004) 17 NWLR PT 902 PG 389 was cited in aid. The Appellants further submitted to the effect that the court is bound to consider the affidavit of Yahaya Ahmed Kontagora once it is in the court’s file and the mere fact that the Principal of the Government Technical Science College was not called, did not render his uncontroverted affidavit evidence unacceptable. In the circumstances, the Appellants submitted that the trial Tribunal was wrong when it held that there was no evidence that the 1stAppellant was educated up to Secondary School certificate Level.

The argument of the Appellants to the extent that it portrays election petitions as being tried upon affidavit evidence and that the trial Tribunal ought to have acted on the statements on oath of the former Principals of the Government Technical Science College whether or not they were called as witnesses, is in my view most fallacious. The front-loading of the written statement(s) of the witness(es) a party intends to call at the hearing of a Petition as well as documents and/or exhibits the party intends to rely on or use, came to be pursuant to the provisions of Paragraphs 1(a)-(c) and 2 of the Election Tribunal & Court Practice Directions, 2007 (hereinafter simply referred to as “Practice Directions”). The provisions of the said Paragraphs stipulate to the effect that a Petition and Reply shall be accompanied by (a) list of the witnesses the party filing either of the processes intends to call in the proof of his case; (b) written statements on oath of the said witnesses; and (c) copies or list of every document to be relied on at the trial of the petition (in the case of a petitioner); and copies of documentary evidence (in the case of a respondent). Provisions in respect of “Evidence” at the hearing of a petition are contained in Paragraph 4 of the Practice Directions. In sub-paragraph (1) it is made clear that any fact required to be proved at the hearing of a petition shall be proved by written deposition and examination of witnesses in open court. (Underlining supplied by me). This is however made subject to any statutory provision or any provision of the said Paragraph 4 relating to evidence. Sub-paragraph (2) provides for the tendering of documents consented to by parties at pre-hearing session or other exhibits from the Bar. It IS permissible for such documents or exhibits to be tendered by the party where he is not represented by a legal practitioner. Subparagraph (3) prohibits the oral examination of a witness during his evidence in chief except to lead tI1e witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the deposition. (Underlining supplied by me). In my view, it is most clear from the provisions of the Practice Directions hereinbefore referred to, that the Practice Directions do not envisage a situation where the trial Tribunal would rely on any written statement on oath of a person in the list of witnesses exhibited to a Petition (who at the best is no more than an intended or proposed witness) not adopted by the witness at hearing or documents and/or exhibits not tendered at the hearing, for the purpose of determining any issue that arises for consideration in a Petition. In effect what the Practice Directions have provided for, clearly does not deviate or derogate from the settled position of the law that no court has the power to act on evidence not adduced at hearing and/or examine exhibit(s) not tendered at hearing, in coming to a decision in any matter before it. See in this regard the case of ENGINEER GOODNEWS AGBI & ANOR V. CHIEF AUDU OGBEH & ORS. (2005) 8 NWLR 40 at page 139 where this Court amongst others held to the effect that a document which was never tendered nor admitted in evidence by a court cannot be relied upon because it does not form part of the evidence before the court. See also the case of ALHAJI CHIEF JIBRIN IZUAGIE V. JIMOH OSUMA AMUDA & ANOR (2006) All FWLR (Pt. 294) 493 at 503. Indeed in MUFUTAU OLAYIWDLA & ORS V. FEDERAL REPUBLIC OF NIGERIA [2006] All FWLR (Pt. 305) 667 at 694 this Court per Ogunbiyi, JCA; reiterated what Tobi, JCA; (as he then was), stated in Odu’a Inv. Co. Ltd v. Talabi thus: –

“It is sound law that a court of law has no jurisdiction to move out of the four walls of the court in search of other facts not canvassed by parties. A Court of Law cannot go on unguarded voyage of discovery to assemble facts and make use of them in the trial process. A court of law must restrict its judicial pronouncement only to issues before it as supported or edified by the facts as presented by the parties. A court of law has no business to flirt with issues and facts not before it. That will mean unnecessary prostitution into matters not before it.”

Suffice it to say that Fabiyi, JCA; would appear to have been saying the same thing in the case of UCHE EJIOGU V. UCHE ONYEAGUOCHA & ORS (2006) All FWLR (Pt. 317) 467 at 490 when His Lordship stated thus:-

“The appellant complained that there were mutilations on the face of certain forms tendered by him. But the exhibits were not demonstrated before the Tribunal. A party relying on a document in the proof of his case must specifically relate each of such documents to that part of his case in respect of which the document is being tendered. Such a duty should not be left to the court in the recess of its chambers…………

A party is under obligation to tie his document to facts or evidence in the open court, not through counsel’s address. It is not part of the duty of a court to embark upon cloistered justice by making enquiry into the case outside the court; not ever by examination of documents which were in evidence when such documents had not been examined in the open court………”

As already stated in this judgment, the Appellants in their Reply to the Petition, claimed that the 1st Appellant had the minimum educational qualification to contest the ejection in question and in the proof of this, they specifically pleaded their reliance on the School Certificate obtained from the Government Technical Science College, Kontagora and the statements on oath of two former principals of the Institution. (Underlining supplied by me). I have before now highlighted the evidence adduced by the Appellants before the trial Tribunal through the 1st – Appellant himself; and RW1 – Adamu Ladan Ibrahim. It is most glaring from the evidence adduced by the said Appellants that the School Certificate obtained at the Government Technical Science College, Kontagora and the statements of oath of the two former principals of the said Institution which the 1st-Appellant pleaded that he would rely upon in the proof of the fact that he possessed the minimum educational qualification to contest the election of 14/4/2007 were never tendered. The law is that a party to a civil action who pleads a document is bound to produce it; just like a document called for by a defendant and duly produced must be put in evidence and used. See the decision of this Court in GATAH (NIG.) LTD & ANOR V. ODU JACOB ABU & ANOR [2005] All FWLR (Pt. 278) 1186 at 1217. Indeed this Court in the case of FEDERAL MORTGAGE FINANCE LTD V. HOPE OFFIONG EKPO (supra) at page 1684 equally held among others that where a party relying on a document fails to produce the document and there is no proper explanation as to his inability to produce the said document, the court may upon his failure to produce it, presume that the document if produced, would have been unfavourable to that party by invoking section 149(d) of the Evidence Act.

The bottom line therefore, is that the Appellants who specifically pleaded the School Certificate which the 1st Appellant obtained from the Government Technical Science College and the statements on oath of former principals of the said Institution in the proof of the fact that the 1st Appellant at the time of the election possessed the minimum educational qualification failed mostly woefully to adduce the requisite evidence in support of the assertion. The Appellants were the ones who made the positive assertion that the 1st Appellant had the minimum educational qualification to contest the election of 14/4/2007 in reply to the negative averment of the Petitioners/Respondents that the said Appellants did not have the requisite minimum educational qualification. The burden of proof in respect of the fact that the 1st Appellant has the minimum educational requirement to contest the election of 14/4/2007 into the Niger State House of Assembly was squarely on the Appellants after the Petitioners/Respondents closed their case having regard to the fact that by the evidence which the Petitioners/Respondents adduced before the trial Tribunal they had discharged the burden of proof in respect of their negative assertion. This position as earlier stated the Appellants clearly appreciated hence their adducing evidence in the proof of their own case. However, the Appellants by not producing the relevant evidence in support of their case that the 1st Appellant has a School Certificate from the Government Technical Science College, therefore failed to discharge the burden of proof on them. From all that has been stated, I therefore do not see any case of wrongful imposition or placement of burden of proof in relation to the issue as to whether the 1st Appellant obtained a School Certificate from the Government Technical Science College on the Appellants by the trial Tribunal. Also the finding by the trial Tribunal (and in this regard relying on the evidence adduced by the Petitioners/Respondents) that the 1st Appellant did not have any Secondary School Certificate or its equivalent cannot be faulted in the light of the failure of the Appellants to discharge the burden of proof on them at all. All that the evidence before the trial Tribunal established concerning the educational qualification of the 1st Appellant was that the said 1st Appellant had a Primary School leaving Certificate and a Certificate No. 001271 dated 24/12/97 issued by the National Electric Power Authority and not a Senior Secondary School Certificate. The Petitioners/Respondents by the evidence adduced through the 1st Petitioner/1st Respondent definitely discharged the burden of proof on them.

The trial Tribunal given its judgment on appeal was very much conscious of the position of the law that the minimum educational qualification required of a contestant in an election to the House of Assembly of a State is not the possession of a Senior School Certificate or its equivalent but actually that a contestant should be educated to at least School Certificate level. Accordingly, the trial Tribunal as it can be seen from its judgment simply did not enter judgment for the Petitioners/Respondents. The Tribunal proceeded to consider whether or not the Petitioners/Respondents were entitled to judgment upon the evidence which they adduced. The evidence in this regard established that the 1st Appellant has a Primary School Leaving Certificate (i.e. Exhibit P5); a Certificate No. 001271 dated 24/12/97 issued by NEPA (i.e. Exhibit P2). Other information contained in INEC FORM C.F. 001 (i.e. Exhibit PI) was also considered by the trial Tribunal. Towards this end, the trial Tribunal applying the provisions of section 318(1) of the 1999 Constitution relating to “School Certificate or its equivalent” to the evidence before it, found that the 1st Appellant was not qualified to contest the election of 14/4/2007 into the Niger State House of Assembly as there was no evidence that he had been educated up to at least School Certificate Level or its equivalent.

The Appellants and the 3rd Respondent have both argued that the trial Tribunal interpreted the provisions of section 318(1) of the 1999 Constitution relating to “School Certificate or its equivalent” wrongly. In this regard the Appellants submitted that because each of the provisions of (i), (ii) and (iii) of section 318(1) in question are separated by commas, it was sufficient if the 1st Appellant satisfied any of the conditions in the said (i)-(iii). Comma, the Appellants said imply separateness. The case of Broniks Motors Ltd vs. WEMA Bank (1983) 1 SCNLR 296 was cited in aid. For and on behalf of the 3rd Respondent it was submitted to the effect that the word “and” as it appears in subparagraph C (iii) should be read to be disjunctive from the provisions of paragraph C(i), (ii) and (iii) and that this meant that the 1st Appellant must have at least a Primary School Leaving certificate and also “any other qualification acceptable by the Independent National Electoral Commission” to substitute for secondary school certificate qualification. The attention of the Court was called to the fact that there was a semicolon before the word “and” that ended subparagraph C (iii). This it was stated totally divorced the earlier paragraph from paragraph D. The case of Ndoma Egba vs. Chukwuogor (2004) 6 NWLR PT. 869 at 382 particularly at 409 and Maxwell on the Interpretation of Statutes 12th Ed pages 232-234 were cited in aid. The Respondents in the main submitted that the trial Tribunal was right in its interpretation of the provisions of section 318(1) of the Constitution relating to “School Certificate or its equivalent”.

May I first say that the trial Tribunal left no one in doubt in its discuss on the provisions of section 318(1) of the Constitution as they relate to “School Certificate or its equivalent” that it was simply applying the interpretation of the said provisions as already enunciated by this Court in the case of Bayo vs. Njidaya (2004) FWLR (PT. 192) 10. The trial Tribunal was no doubt bound by the decision in question.

The qualifications a person must have to contest election into the House of Assembly of a State are set out in section 106 of the Constitution. They are: –

1. he is a citizen of Nigeria;
2. he has attained the age of thirty years;
3. he has been educated up to at least the School Certificate level or its equivalent; and
4. he is a member of a political party and is sponsored by that party.

In section 318 (1) of the Constitution, “School Certificate or its equivalent” is stated to mean: –

(a) a Secondary School Certificate or its equivalent, or Grade II Teacher’s Certificate, the City and Guilds Certificate;

(b) education up to Secondary School Certificate level; or

(c) Primary Six School Leaving Certificate or its equivalent and-

(i) Service in the public or private sector in the Federation in any capacity acceptable to the Independent National Electoral Commission for a minimum period of ten years, and

(ii) attendance at courses and training in such institutions as may be acceptable to the Independent National Electoral Commission for periods totaling up to a minimum of one year, and

(iii) ability to read, write understand and communicate in the English language to the satisfaction of the Independent National Electoral Commission and

(iv) Any other qualification acceptable by the Independent National Electoral Commission;”

In embarking on the interpretation of the provisions quoted above, I consider it appropriate to make reference to some cases dealing with the interpretation of constitutional provisions. In ATTORNEY-GENERAL OF LAGOS STATE V. EKO HOTELS LIMITED & ANOR (2006) All FWLR (Pt.342) 1398 the Supreme Court dwelling on the interpretation of constitutional provisions per Tobi, JSC; stated thus at pages 1471-1472:- “Generally, words in a Constitution bear their ordinary grammatical meaning, when the intention of the maker of the Constitution is clear and can be captured at a glance of the language. However, where the meaning is not directly obvious on the face of the language, the court will investigate the intention behind the use of the language and come out with an interpretation or construction that best fits the apparently hidden intention. That is one principle of constitutional interpretation. Another principle is that courts are enjoined to give a liberal interpretation to the language of the Constitution in order to achieve the desired purpose of the maker of the Constitution. The court will not embark upon such an exercise where the language is exact, precise and concise and therefore not able to admit a liberal interpretation, the court will succumb to the clear meaning. The court takes this position of least resistance because it cannot wear gloves for battle with the makers of the Constitution as that will vex or annoy their intention. After all, the law of statutory interpretation is clear that courts invoke their interpretative jurisdiction to vindicate the intention of the law makers. They cannot plant their judicial mind or thought in place of the intention of the law makers.” See also the cases of ABAYOMI BABATUNDE V. PAN ATLANIC SHPPING AND TRANSPORT AGENCIES LTD &. 2 ORS (2007) All FWLR (Pt. 372) 1721 at page 1752; HON. MICHAEL DAPIANLONG &. 5 ORS V. CHIEF (DR.) JOSHUA CHIBI DARIYE & ANOR (2007) All FWLR (pt. 373) 81 and ALHAJI SHEHU ABDUL GAFAR V. THE GOVERNMENT OF KWARA STATE &. 2 ORS (2007) All FWLR (Pt. 360) 1415 at 1444.

I am in no doubt at all, that the provisions of section 318(1) of the Constitution hereinbefore re-produced above, are absolutely clear, exact and precise. The words in the provisions are therefore to bear their ordinary grammatical meaning, as the intention of the maker of the Constitution is clear and can be captured at a glance of the language. The word “or” is a conjunction used to link two or more alternatives. It is my view that the intention of the makers of the Constitution given the clear, exact and precise wordings of the provisions of section 318(1) thereof dealing with “School Certificate or its equivalent” as they relate to a person relying on a “Primary Six School leaving Certificate or its equivalent” is to stipulate stringent conditions that such a person who apparently never acquired formal education up to School Certificate level by attending a post-primary institution of learning, must satisfy before he can be deemed as having been educated up to School certificate level. In this regard the wordings of the provisions being considered, make it clear that a holder of a “Primary Six School Leaving Certificate or its equivalent” who has been in employment in any capacity in the public or private sector of the Federation for a minimum of 10 years, has attended courses and training for periods totalling a minimum of 1 year out of the 10 years; and is able to read, write, understand and communicate in English language to the satisfaction of INEC, has thereby indirectly acquired the desirable level of education up to School Certificate level to enable him contest election into a State House of Assembly. It is true that commas were made use of, in the provisions. I am however of the settled view that It is not correct as contended by the Appellants and 3rd Respondent respectively, that the use of comma in all cases connotes separateness. At times a comma is put in a sentence to represent a slight pause. It is to be noted that the commas that appear in (i) & (ii) as well as semicolon that appears in (iii) under Clause (c) “i.e. Primary Six School Leaving certificate or its equivalent”; are immediately before the word “and”. It is tenuous to argue that the commas in the circumstances connote separateness having regard to their positioning. The commas are there to represent a pause and not to separate the conditions set out under (i)-(iii). The word “and” as they appear in (i)-(iii) are there to link the conditions set out thereunder together. The semicolon that appears immediately after the word “Commission” in (iii) is only indicative of the fact that the enumeration which commenced under (i) had come to an end. And Clause (d) which reads – “any other qualification acceptable by the Independent National Electoral Commission” only allows the said Commission to require additional qualification to the ones already enumerated and not to derogate or subtract therefrom as the submission of the 3rd Respondent that “hence for a person to qualify to run for the house of assembly, he must apart from having a primary school certificate have any other certificate which the INEC will in its discretion, view to be acceptable to it” purports. From all that has been stated, I therefore do not find the commas and semicolon that appear in the provisions under consideration to have in any way or manner distorted or obliterated the clear meaning of the said provisions which can be captured at a glance of the language. Accordingly the interpretation by this Court in the case of BAYO V. NJIDAYA (supra) of the provisions of section 318(1) of the Constitution relating to a person relying on Primary Six School Leaving Certificate in contesting an election into a State House of Assembly must not only be adhered to but was indeed rightly adhered to by the trial Tribunal.

It was never the Appellants’ case in their Reply that the educational qualification upon which the 1st Appellant contested the election of 14/4/2007 was his Primary School Leaving Certificate. The case of the Appellants that the 1st Appellant had obtained the minimum educational qualification to contest the election was predicated on his having a School Certificate which he obtained from Government Technical Science College Kontagora. As already stated the Appellants never adduced any evidence in support of their case in this regard. They thereby also failed to discharge the burden of proof on them in respect of a fact which they alleged. The settled principle of law is that the burden of proof is on -the party that makes the positive assertion in respect of a fact and/or event. See G. CHITEX INDUSTRIES LTD V. OCEANIC BANK INTERNATIONAL (NIG) LTD (2005) All FWLR (Pt. 276) 610 at 624; and CHIEF SERGEANT C. AWUSE V. DR. PETER ODILI & 326 ORS (2005) All FWLR (Pt. 261) 248 at 313-316.

It is from the documentary evidence tendered by the Petitioners/Respondents in the proof of their case that the Tribunal came to a finding that the 1st Appellant has a Primary School leaving Certificate (i.e. Exhibit P5). It was from Exhibit Pi tendered by the Petitioners/Respondents that the trial Tribunal found evidence that the 1st Appellant served in the public service of the Federation as a staff of NEPA for a period of 4 years and 8 months. The trial Tribunal also found at page 101 of the Record that there was no evidence before it that the 1st Appellant possessed a School Certificate or was educated up to secondary school certificate level. And I cannot but say that the finding in this regard cannot be said to be perverse given what I had stated before now to the effect that the Appellants failed to adduce evidence in support of their case as set up in their Reply and thereby failed to discharge the burden of proof on them in respect of what they alleged. Giving the findings highlighted above, and after considering the same in the light of the provisions of section 318(1) of the Constitution dealing with a contestant to the House of Assembly relying on Primary Six School Leaving Certificate as his educational qualification for the election, the trial Tribunal held that there was no evidence establishing the fact that the 1st Appellant was educated up to at least secondary certificate level. Consequently, the said 1st Appellant was found not qualified to contest the election in question.

Before now, I stated that there is no case of wrongful imposition or placement of burden of proof in relation to the issue as to whether the 1st Appellant obtained a School Certificate from the Government Technical Science College on the Appellants by the trial Tribunal. I have likewise said that the finding by the trial Tribunal (and in this regard relying on the evidence adduced by the Petitioners/Respondents) that the 1st Appellant did not have any Secondary School Certificate or its equivalent cannot be faulted in the light of the failure of the Appellants to discharge the burden of proof on them at all. In the circumstances there is no way it can be successfully argued that the Petitioners/Respondents who were the ones who adduced the evidence upon which the trial Tribunal based its findings did not prove their case and/or that they were not entitled to judgment. Accordingly, ISSUES 1 and 2 respectively formulated by the Appellants are resolved against them.

ISSUE 3

This Issue as formulated by the Appellants is “Whether the Tribunal was right to have ordered fresh elections and disqualified the 1st Appellant from contesting”. The law in my view is most settled concerning the order which must be made by an Election Tribunal when an election is nullified due to the non-qualification of the person returned as the winner. In this regard see the case of BAYO V. NJIDAYA (supra) at page 42 where this Court per Sanusi, JCA; said thus:-

“In the case of UNCP V. DPN this Court while interpreting section 11(1)(i) of the Local Government (Basic Constitutional and Transitional Provisions) Decree NO.7 of 1997 held per Muhammed JCA that where a candidate who contested an election is declared disqualified by a court upon any of the disqualifying grounds provided by the Constitution or the relevant statute in force, the candidate who has scored the second highest votes cannot be declared elected”,

The rationale for this was stated at pages 41-42; whereat Sanusi, JCA; again said:-

“From the wording of the provisions of section 136(1) and (2) of the Electoral Act, a Tribunal or court could only return a petitioner as winner of an election if he scored the highest number of valid votes as against his opponent. But where a candidate was found not qualified to contest an election in the first place, petitioner or person claiming to be next in scoring majority of lawful votes cannot be declared as winner at the election. All that the Tribunal or court will do in such circumstance is to nullify the election and order fresh election to be held. This can be viewed from the backdrop that when the electorate cast their votes in his favour they did not envisage that he was not qualified to contest the election and to declare his opponent as winner will amount to injustice occasioned them. The justice of the matter in the circumstance therefore, is to order a fresh election after nullifying the earlier one held.”

See also the case of ALHAJI IMOHAMMEP SANUSI DAGGASH V. HAJIA FATI IBRAHIM BULAMA & ORS (2005) All FWLR (pt. 246) 1327 at 1351 whereat Ogbuagu, JCA; (as he then was) said:-

“In other words, for the votes given for a candidate to be thrown away, the voters before voting, either have had or be deemed to have had notice of the fact creating the candidate’s disqualification.

Thus, where the disqualification is not notorious and depends on either legal argument or complicated facts, votes given for a candidate (even though he might be unseated by reason of his/her disqualification), would not be thrown away, so as to give the seat to the candidate with the next highest number of votes, instead, there must be fresh election………………….

So, unless the fact of the disqualification, are made known to the electorate before casting their votes and the voters are also made aware that the legal consequence of those facts might be disqualification in law is established (sic), such votes, are thrown away and are null and void. In such a situation, the court or Tribunal, is bound to declare that the candidate for whom the next highest number of votes was cast, has been elected…….”

It is clear on the pleadings in the Petition on appeal (i.e. the Petition and various Replies) that the fact of the disqualification of the 1st Appellant was never alleged to have been a notorious one known to the electorate at any time prior to the election. Given the facts of this case and evidence before it, the trial Tribunal (whether or not the Petitioners/Respondents pleaded the fact that he scored the next highest number of votes to that of the 1st Appellant) in the light of its finding that the 1st Appellant was not qualified to contest the election of 14/4/2007 as he lacked the requisite minimum educational qualification for the said election, had no choice in law, but to nullify the said election. This the trial Tribunal rightly did. The nullification of the return of the 1st Appellant is due to the finding that he did not possess the minimum educational qualification to contest the election into the Niger State House of Assembly held on 14/4/2007. It is the same election that the trial Tribunal has ordered to be conducted afresh. The disqualification of the 1st Appellant that vitiated the election is a continuing one as far as the election into the Niger State House of Assembly held during the 2007 general elections is concerned. The 1st Appellant therefore cannot be qualified to contest the fresh election ordered by the Tribunal. He might be able to contest the next genera! election into the Niger State House of Assembly if he has by then being educated up to Secondary School certificate level, but not the fresh election for the office in respect of which he has been found not to be qualified to contest due to his not having the requisite minimum educational qualification. From all that has been said, Issue 3 is hereby resolved against the Appellants.

Now to the consideration of the contention of the Respondents that the judgment of the trial Tribunal can be supported on other grounds than those relied upon by the said Tribunal. The argument of the Respondents in this regard, put simply, is that the trial Tribunal ought to have also held that the 1st Appellant was disqualified from contesting the election of 14/4/2007, given its finding that the said 1st Appellant forged the signature of his uncle on the statutory declaration of age which he presented to the 3rd Respondent i.e. INEC. The Respondents relied on the provision of section 107(1)(i) of the Constitution in this respect.

In Reply on Point of Law to the brief of argument of the Respondents, the Appellants in dwelling on the contention of the Respondents said to the effect that the 1st Appellant did not in any way falsify or forge any document(s) which he submitted to INEC. May I say that what the Appellants have stated in this regard is definitely at variance with the finding of the trial Tribunal at page 101 of the Record and a finding which is clearly not being challenged in this appeal. The finding of the trial Tribunal in question reads thus:-

“On particulars 1 and 2 of ground 3 which aver that the 1st respondent made the statutory declaration of age, exhibit P3 himself by forging the signature of his uncle, we find that allegation proved in view of the admission of the 1st respondent in his oral testimony, that he signed both exhibits P3 and P4.”

As there is no appeal against this finding, this Court cannot competently embark upon a consideration of the propriety or otherwise of the same.

In my view it is glaring from the Issue upon which the Petition on appeal proceeded to trial that the parties never set up the forgery of the any document submitted to the 3rd Respondent as a ground for the nullification of the return of the 1st Appellant. The Primary School Leaving Certificate and declaration of age which the 1st Appellant purportedly forged, having regard to the Issue upon which the Petition proceeded to hearing were to be used as evidence to establish the fact that the said 1st Appellant did not have a Primary School Leaving Certificate and that he had not attained the mandatory statutory age as at the time he contested the election in question. For the trial Tribunal to have also nullified the return of the 1st Appellant on the basis of its finding that the 1st Appellant forged the signature of his uncle on the declaration of age would have amounted to the Tribunal not sticking to or deviating from the case of the parties before it, particularly the Issue for determination as set out on page 59A of the Record and which Issue has earlier been re-produced in this judgment. Accordingly, the comment/observation the trial Tribunal made was about the only thing it could properly do on the question of the forgery of the declaration of age. Definitely, any party who wishes to pursue the matter further (save the 1st Appellant who naturally would not) should know the use to which the finding of the trial Tribunal can be put. Suffice it to say however, that from all I have said before now, I do not agree with the Respondents that the judgment of the trial Tribunal can be supported on the ground relied upon by them.

This appeal has to fail and it hereby fails as each of the three Issues upon which it is to be decided have been resolved against the Appellants.

Accordingly, the judgment of the trial Tribunal nullifying the return of the 1st Appellant – Abubakar L. Abdullahi as the winner of the election to the Niger State House of Assembly for Suleja Constituency held on 14/4/2007 on the ground that he did not possess the minimum educational qualification to contest the said election and ordering the conduct of a fresh election for the said Constituency within 3 months is upheld. The Appellants shall pay the Respondents (i.e. 1st and 2nd Respondents) costs in the sum of N15,000.00.The 3rd Respondent is not entitled to costs as the said party argued in favour of allowing the appeal but which has now failed.

Appeal is dismissed.

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Other Citations: (2008)LCN/2762(CA)