Alh. Ibrahim Yarima Abdullahi V. Alh. Abubakar Habu Hashidu & Ors (1999)

LawGlobal-Hub Lead Judgment Report

PATS-ACHOLONU, J.C.A. 

The appellant and the 1st respondent contested the gubernatorial election of Gombe State on 9/1/99. They contested the election under the banners of their parties PDP and APP respectively. The 1st respondent was declared the winner of the election whereupon the appellant challenged the returning of the 1st respondent in an election petition.

There are two main planks to his case:

(1) That the 1st respondent who was declared successful in the election was not duly qualified.

(2) That he did not win by a majority of the lawful votes cast.

After carefully examining the matter the Election Tribunal decided that it was not competent to inquire into the qualification of the 1st respondent in that it is the preserve of INEC. And it equally held that the 1st respondent was elected by a majority of the lawful votes cast.

The appellant thereupon lodged an appeal of 5 grounds and most inelegantly formulated 6 issues from the grounds of appeal. I must observe in passing that in drafting briefs there are three determinants for a good brief and they are:

(a) brevity

(b) accuracy

(c) clarity

It is therefore highly irregular to make the number of issues more than the grounds of appeal from which they are distilled. The corner stone of this case rests apriori on;

(a) the competence of the tribunal to inquire into the qualification or otherwise of contestant after he has been screened and cleared by INEC;

whether the document admitted as Exhibit M2 and titled “Views of the Federal Government on the Report of the Judicial Commission of Inquiry into Kafin Zaki Dam and Kawali Diversion Structure”, is an authentic document expressing the view and acceptance of the report of inquiry into this matter.

Issue No. 1

Is the court below precluded from looking into the qualification of the 1st respondent? Arguments have been advanced by both sides, for and against. In my view, I think this court is bound by the judgment of this court in the recent case of Abdullahi v. Elayo (1993) 1 NWLR (Pt. 268) 171 at 178, ratio 4 where it said;

“By virtue of the provisions of section 41(1)(a) of the National Assembly (Basic Constitutional and Transitional Provisions) Decree No. 18 of 1992 both the Election Tribunal and the Court of Appeal are allowed nevertheless to examine the question whether or not a person was qualified to have contested the National Assembly election.

Although the rule enunciated in Doukpolagha v. George (1992) 4 NWLR (Pt. 236) 444 is that it is the exclusive duty of the National Electoral Commission and the Transition to Civil Rule Tribunal to determine whether or not a person is qualified to contest an election, it must not be understood to mean that the election tribunal and the Court of Appeal have no role whatsoever in the matter. For otherwise, it will negate section 4(1)(a) of Decree No. 18 of 1992 (P.196. paras. B-D)

Per Oguntade, J.C.A. at page 196. paras D-F:

‘The power to determine whether or not a person is qualified to contest is vested in National Electoral Commission with a right of appeal to the Transition to Civil Rule Tribunal. But the Election Tribunal and the Court of Appeal have a supervisory jurisdiction to ensure that the provision of the law which bans certain persons from participating in politics is complied with.

The position is that, when parties have by their pleadings identified it as a distinct issue that what is to be decided is whether or not a person is banned or disqualified from participation in politics, the duty of the election tribunal is to call on the person whose election is being questioned on the stated ground to show the proof that he has been cleared by the National Electoral Commission and or the Transition to Civil Rule Tribunal. It is, I think wrong to treat the matter as one concerning the jurisdiction of the election tribunal or the Court of Appeal to consider the matter in any form. Clearly, the relevant provision of Decree No. 18 of 1992 which is section 41(1)(a) confers that jurisdiction.’

Per Oguntade, J.C.A. at page 197, para C:

‘The result of what I have said so far is that the election tribunal and this court cannot abdicate the jurisdiction so clearly conferred upon them by lamely declining to ensure compliance with the provision of Law No. 25 of 1987 on the ground that only the National Electoral Commission and the Transition to Civil Rule Tribunal can determine the issue.”

In his contribution, His Lordship, Edozie J.C.A. at page 201 said that:

“…. Once N.E.C. or the Transition to Civil Rule Tribunal has made a decision that a candidate for an election has been cleared, an election tribunal or this court cannot go behind that decision to decide otherwise. Notwithstanding that, it is my view that the election tribunal or this court is competent to enquire whether a candidate who claims or makes a positive assertion that he has been cleared by N.E.C.

or the Transition to Civil Rule Tribunal was in fact so cleared.”

Without going further it is my view that this court is competent to inquire into the qualification or disqualification of a candidate This is without prejudice to Decree 6(3) of Schedule 5 to Decree 3 of 1999 which appears to preclude the invasion of the preserved power of the Electoral Commissioner or Electoral Officer. I hold boldly that this court has competence to inquire into the qualification or the disqualification of a candidate.

. The next issue is as to the status of Exhs. JJ and KK. There is no doubt that when these documents were made, pleadings have been filed and served, therefore they were made at the time of the proceedings or the case. Exh. M2 is a document which on its face value appears to be the government’s expression of its acceptance of the recommendation of the Judicial Commission of Inquiry which indicted the 1st respondent. Exhs. JJ and KK which on their face seek to explain the Federal Government’s position on ‘M2’ were obviously wrongly admitted as they were made in the course of the proceedings. Therefore, they are of no evidential value in assessing the worth of these documents.

The question that readily comes to mind is under whose authority was Exh. M2 issued. There was an accompanying letter from Tanko Ashana of the Federal Ministry of Justice, indicating that this document was equally said to have been certified by him. The signature in the stamps of the Federal Ministry of Justice in Exh. M2 differs significantly from the signature in Exh. M1.

The inference is that the person who signed the forwarding letter Exh. M1 is different from the person who allegedly certified Exh. M2. This scenario, has raised some seemingly intractable problems. The court below rejected the authenticity of Exh. M2 relying unfortunately on Exhs. JJ and KK. In civil cases the burden of proof may shift from one to the other. Looking at these documents, the people who tendered Exh. M – 1 and M- 2 relied on the contents of Exh. M1 and M2. In the normal course of governance, the government be it Federal, State or Local manifest its acceptance of a report or inquiry by way of publication of a white paper which tells the world the reaction of the government to the inquiry.

A citizen of Nigeria can purchase such a document from the Ministry of Justice, Abuja or the government press. This is not so in this case. The enquiry took place in 1994. and the government had not manifested its acceptance. The incongruity patently manifested on the front page of Exh. M2 is a matter that ought generally to be explained by the appellant regardless of any other evidence affecting this matter.

It is a settled law that where a party seeks to persuade the court to accept certain state of affairs it must on the preponderance of evidence prove it. And where the situation presented is equipoise that the court would pick and choose, then the matter has not been proved. It is the binding duty of the appellant to show that Exh M2, is an authentic document, expressing the view of the government by which it accepted the report of the enquiry. In my view Exh. M2 does not appear to answer the description of a document in which the government expressly accepted the report. Beside I would have thought that such a document should come directly from the office of the Attorney-General of the Federation signed by him, or a Senior Legal Officer. This being the case, I hold that Exh. M2 cannot be said to be authentic document or a document from the right source.

On the issue of irregularity which resulted in the overall victory of the 1st respondent, the court below was not convinced. In its judgment it said:

“The margin is 94,978 votes the petitioner was not in agreement with this declaration of the results because of the complaint of irregularities, malpractices and corrupt practices which he now alleges.”

The court made a finding of fact on the strength of the evidence before it that there is no evidence to show that the number of votes exceeded those accredited other than the 75 polling units in the said Local Government Areas. The appraisal of evidence by the tribunal below cannot be impugned by this court unless it is perverse. It found also that the issue of violence alleged by certain people could not be linked to the 1st respondent. This court will not go behind the proper appraisal made by the tribunal which heard the evidence of the witnesses and made its findings when the matter did not preponderate in favour of the petitioner/appellant in the court below.

In the circumstance this appeal fails and it is hereby dismissed. The judgment of the trial tribunal is affirmed and the 1st respondent stands elected. Costs of N5,000.00 mis awarded to the 1st respondent.

Other Citations: (1999)LCN/0641(CA)