Alhaji Abba Gana Terab V. Maina Ma’aji Lawan & Ors (1992)

LawGlobal-Hub Lead Judgment Report

AIKAWA, J.C.A.

The appellant was a candidate for the office of Governor of Borno State at the election that took place in Nigeria on 14th December, 1991. He contested the election on the platform of the National Republican Convention. The 1st respondent was the candidate of the Social Democratic Party at the same election. The 2nd and 3rd respondents were the Resident Electoral Commissioner for Borno State and the National Electoral Commission respectively.

At the conclusion of the election, the 1st respondent was declared the winner by the 2nd and 3rd respondents. It was certified that the 1st respondent scored 285,235 votes as against the appellant’s 272,221 votes.

The appellant who lost at the election in manifestation of his displeasure at the results announced by the 2nd and 3rd respondents presented a petition before the Governorship and Legislative Houses Election Tribunal of Borno State under the Chairmanship of Hon. Wallace Ronald Tislington Macaulay, a retired justice of this court.

In the petition, the appellant prayed for the following reliefs:-

“(a) A declaration that the 1st respondent was not duly elected or returned as the Governor of Borno State.

(b) An order setting aside the declaration of the 1st respondent as the Governor of Borno State by the 2nd and 3rd respondents.

(c) An order for bye-election in all the affected polling stations, wards and local governments particularly the Barna Local Government and all the 20 wards of Maiduguri Metropolitan Council Area.

(d) A declaration that the petitioner was duly returned or elected or ought to have been returned as the Governor of Borno State.

(e) An order, returning the petitioner as the duly elected Governor of Borno State.

IN THE ALTERNATIVE

(a) A declaration that the election of the 1st respondent as the Governor of Borno State during the election held on the 14th day of December, 1991 was null and void as the 1st respondent was a disqualified person.

(b) AND/OR A declaration by numerous irregularities and corrupt practices;

(c) An order that the return of the 1st respondent as the elected Governor of Borno State be set aside.

(d) An order for bye-election in the entire state of Borno State.”

The petitioner in another petition BO/EP/5/92 prayed for reliefs similar to those set out above on the ground stated in the petition as follows:-

“(1) That the purported return and/or election of the 1st respondent as the Governor of Borno State during the election held on the 14th day of December, 1991 was null and void as the 1st respondent was a disqualified person.

PARTICULARS

(a) The 1st respondent was medically certified to be of unsound mind and treated in 1983 at the A.B.U. Teaching Hospital, Kaduna, by one Professor Mohammed Habib Ahmed of the Psychiatric Unit, as per his file Reference No.06-53-73.

(b) The 1st respondent was again medically certified to be of unsound mind and treated in 1986 at the A.B.U. Teaching Hospital, Kaduna, by the same Professor Mohammed Habib Ahmed of the Psychiatric Unit as per his file Reference No.06-43-64.”

The two petitions were consolidated for hearing. In its judgment delivered on 12th February, 1992, the Borno State Electoral Tribunal dismissed the appellant’s petition.

The appellant has come on appeal against the judgment of the Tribunal on six grounds of appeal. The grounds of appeal read as follows:-

“(1) The Electoral Tribunal misdirected itself on the facts and in law when it held in its judgment at page 236 of the Record as follows:

“The Complaint in paragraph 5(3) stating as above that the 1st defendant was not elected by a majority of votes at the election, was covered in a block vote contained in Exh. EC 8A & EC 8B … that relevant as they may be for the purpose of an enquiry, in the absence of legal evidence being given in respect of each of them, they should not be the basis for making any computation…” “…For the lack of any probative value therefore we are of the view that, for the purpose of going into any “game of numbers”, the following Exhs. will be disregarded. They are Exhs. 5A-6A, 7A-7B, 8A-8B, 9A-9B as they do not infact relate to any head of the pleading…” the allegation in 5(3) remain un-proven, and therefore will be disregarded as we now do.”

PARTICULARS OF MISDIRECTION

(i) There are no Exhibits numbered as Exhibits EC 8A and EC 8B.

(ii) The allegation made under paragraph 5(3) (a-f) of the petition, contained in pages 3-4B of the Record were all pleaded, and each of the documents in respect of votes tendered related to the relevant sub-paragraphs.

(iii) The Exhibits relating to the votes were not tendered in block, as the witness (from the witness box), Counsel for Respondents, individual members of the Tribunal had to examine and vet each document separately, and exhibit numbers given to the documents one by one in open court after being examined by the Tribunal.

(2) The Electoral Tribunal misdirected itself on The facts and in law when it held thus in its judgment on page 239 of the Record:

“It is therefore not germane to the exercise to emphasise on the necessity, or even the very fact that some voters are on the queue. This appears to be the gravaman of the complaint under this heading, listed at pages 11-48. The Petitioner had a duty to show that there was an irregularity, which is not the cause of the 1st respondent.”

PARTICULARS OF MISDIRECTION

(i) Irregularities to void an election are normally committed by NEC Officials, (in this case the 2nd and 3rd Respondents) by themselves and/or by their servants and agents against whom both the Petitioner and the 1st Respondent have made their complaints of irregularities in the case at hand.

(ii) It is the requirement of both Decree No. 50 of 1991 and the Statutory Form EC 8A of the said Decree No. 50 of 1991 that NEC Officials must, in the course of conducting an election, record those accredited to vote and those accredited in the queue to vote and those who actually voted.

(3) The Election Tribunal misdirected itself on the facts and in law by not judiciously evaluating the evidence before it, when it held in its judgment at page 240 of the Record thus:

“In his reply the 1st Respondent far from admitting any irregularity, has complained that NEC, by its dereliction of duty, had lost lawful votes won, or which should have been won by him. On the other hand. The petitioner, both on the face of his pleadings and in his testimony, has admitted substantial irregularity in an admission against his own interest, if only on the ground, the 1st respondent should also be indicted with irregularity, in order to enable the petitioner attain his ambition of a bye-election. It seems dear to us that if the petitioner can blindly concede condonation of substantial irregularities, if only as a short cut to a bye-election, he cannot expect a respondent who has not made such an admission, to be nailed for an offence he has not admitted…” “page 241 … we are satisfied that the petitioner having admitted substantial non-compliance on his part, should not seek to insist that the body, of the live baby be split in half as well, for his benefit.”

PARTICULARS OF MISDIRECTION

(i) The petitioner did not admit substantial irregularity, and/or at all against his own interest. Neither did he concede condonation of substantial irregularities/non compliance or at all, either on the face of his pleadings or his testimony.

(ii) The substantial irregularities which the petitioner complained of were committed by the 2nd and 3rd Respondents and/or by their agents.

(4) The Election Tribunal was in error, when it held in its judgment at page 242 of the Record as follows:

“Further to his denial of any wrong doing, 1st respondent has in fact laid claim to recoup the losses foisted on him when NEC as he claimed failed to do their duty. He claims that he lost 1678 lawful votes through this lapse, whereas the petitioner himself has set sights at over 19,000 lawful votes he claimed to have and above the 1st respondent. Learned counsel Mr. Uba has admitted that he is aware of substantial irregularities scaling the commanding heights of 40,000 votes. If this is so, it seems to us that it hardly lies in his mouth to expect to do worse in a bye-election.

PARTICULARS OF ERROR

(i) The 1st respondent did not give evidence at the trial.

(ii) Mr. Uba, learned counsel for the petitioner did not give evidence during the trial, and the reference to 40,000 votes was made in his submission.

(5) The Election Tribunal misdirected itself on the facts, when it held in its judgment at page 234 of the Record as follows:

“It was never suggested at the hearing that Mallam Fuguma was also an alias of Ba’oma. I have no doubt that both PW2 and PW3 are inverterate liars.”

PARTICULARS OF MISDIRECTION

(i) The petitioner, testifying as PW5, at page 178 of the Record said:

“I also know him as Mallam Fuguma.” That was said after confirming knowledge of both PW2 and PW3 who all come from Bama as himself.”

(6) The Election Tribunal misdirected itself in law when it held in its judgment on page 235 of the Record that the Guardian Newspaper of 30th December, 1991, which was tendered as Exhibit 98 is clearly hearsay.

PARTICULARS OF ERROR

(i) S.116 of the Evidence Act raises a presumption of authenticity of the contents in such document.

(7) The decision of the Tribunal is against the weight of evidence.

(8) The trial of the petition by the Tribunal was not fair in that some members of Tribunal were continuously pulling forward leading questions to the Petitioner’s witnesses especially the 1st PW, interrupting the Petitioner’s Counsel conduct of the proceedings thereby assuming the role of an advocate.”

In the appellant’s brief filed the issues for determination in this appeal were stated to be the following:

“(1) Were the grounds on which the petition is based pleaded in the petition in paragraph 5(3) as opposed to the finding of the Tribunal that they were not pleaded as asserted in the judgment at page 236 wherein it was stated thus:

“apart from the fact that they were not pleaded ”

(2) Was any legal evidence given in support of all allegations for challenging the election of the 1st respondent? Vide page 237 of the Record?

(3) Did the petitioner adduce evidence expressly to substantiate the allegations pleaded in paragraph 5(3) (a-f) of the petition?

(4) Did the Petitioner admit substantial non-compliance on his part and conceded (sic) condonation of substantial irregularities.

(5) Can exhibit 98 the Guardian Newspaper issue be dismissed as hearsay in view of section 116 of the Evidence Act?

(6) Was evidence given in respect of allegations on paragraph 5(3) of the Petition?

The 1st respondent in his brief did not formulate issues arising for determination. But it was argued that appellant’s first issue for determination did not arise from the judgment of the tribunal.

The 2nd and 3rd respondents in their brief raised their own issues for determination as follows:

(i) Can it be said having regard to all the circumstances in this case that the Tribunal was in error for failing to evaluate the evidence adduced at the trial by the appellant in support of the various heads of his petition particularly the allegations contained in paragraph 5(3) a-f thereof?

(ii) Whether or not it is the intendment of the provisions of paragraphs 25(1) (d) and 28(2)(d) of Schedule 5 to the State Government (Basic Constitutional and Transitional Provisions) Decree 1991 that the number of Voters standing in the queue must tally with the total votes at the particular election.

(iii) Having regard to all the circumstances of this case, was the Tribunal right in coming to the conclusion that the petitioner had admitted and condoned substantial irregularities on the face of the pleadings and the evidence adduced at the trial.

(iv) Whether or not the Tribunal was right in disregarding the contents of exhibit 98 (the Guardian Newspaper of 30th December 1991) as proof of the allegations contained in paragraph 5(1) of the petition

(v) Can it be said that the proceedings of the Tribunal was conducted in such a way as to offend the principles of fair hearing.

So much for the issues raised by parties. Before we commenced the hearing of this appeal, Mrs. Nggilari, Learned Attorney-General for Borno State who appeared for 2nd and 3rd Respondents raised a preliminary objection, a notice of which she had filed. In the notice filed and its oral elaboration, it was argued that the appeal was incompetent on the ground that it was filed in the Court of Appeal and not in the tribunal as should be the case in compliance with Order 3 rules 1, 2(1) and 5 of the Court of Appeal Rules, 1981. Mrs. Nggilari referred to paragraph 51(2) Schedule 6 to Decree No.50 of 1991 which provides that the practice and procedure for appeals in election appeals to this Court shall be in accordance with the Court of Appeal Rules. The implication of Mrs. Nggilari’s objection is that the Practice Direction NO.1 of 1992 issued on 6/1/92 by the President of this Court in accordance with section 227 of the Constitution of the Federal Republic of Nigeria, 1979, section 8(2) of the Court of Appeal Act, 1976 and Paragraph 51(2) of Schedule 6 to Decree No.50 of 1991 which directed that appeals from Election Tribunal be filed directly in this Court was inconsistent with paragraph 50(2) of Schedule 6 to Decree No.50 of 1991. She referred in support of her objection to

(1) University of Lagos v. Aigoro Vol.9 Digest of Supreme Court cases and

(2) Sken Consult (Nig.) Ltd. v. Ukey (1981) 1 S.C. 6

Chief G.O.K. Ajayi SAN for the 1st respondent supported the objection raised by Mrs. Nggilari.

I do not think the point raised by Mrs. Nggilari should be much belaboured.

It is sufficient in my view to invite her attention to paragraph 50(2) of Schedule 6 to Decree No.50 of 1991 which provides:

“Subject to the provisions of this Decree, any appeal to the Court of Appeal shall be determined in accordance with the practice and procedure relating to appeals in civil cases in that court.” (Italics mine)

The above provision relates to the practice and procedure to be followed in the determination of an election appeal to this Court and not to its filing. Clearly, the provision assumes that an appeal to which the practice and procedure in this Court would apply was already before the Court of Appeal. Further in Ezekiel Nneji & 3 Ors. v. Chief Nwankwo Chukwu & 7 Ors. (1988) 3 NWLR (Pt.81) 184 the Supreme Court expressed that a Court should be more interested in determining a case on its merits rather than cling to mere procedural technicalities.

The preliminary objection fails and it is struck out.

Now to the issues. The grounds relied upon before the tribunal for seeking the reliefs earlier set out above are those in paragraph 5(3) a-f of the petition. The arguments by all the counsel to the parties in this appeal turn mainly around the question whether there was sufficient evidence before the tribunal as regards whether there were such irregularities in the election such as to lead to the conclusion that the 1st respondent was not elected by a majority of lawful votes. This complaint is epitomised by paragraph 5(3)(e)(i)-(iii) of the petition which reads thus:

“(i) The Petitioner states that the election in various polling stations, wards and local government areas of Borno State were irregular due to discrepancies in figures between accredited voters in queue to vote and the total scores of both parties in the said polling stations.

(ii) The Petitioner further states that the election results in various polling stations in the state were characterised by irregularities due to discrepancy in the number of registered voters and the total scores of the two parties in the said polling stations. Despite the substantial irregularities the results were relied upon by the 3rd respondent at the election.

(iii) The Petitioner hereby states that the polling stations and results mentioned in paragraph 3(d)(i) and (ii) throughout Borno State are as follows.

Chief Sowemimo SAN for the appellant pointed out that at the hearing of the petition before the tribunal, the appellant called oral evidence in support of the allegation that the number of voters in some of the polling stations exceeded the number of accredited voters in the said stations. He said that several documentary exhibits were tendered in support of these allegations but that the tribunal failed and or neglected to consider them. Counsel said that these documentary exhibits numbering 268 were referrable to each polling unit. Counsel further said that notwithstanding that the tribunal found that there were substantial irregularities in the voting procedure it still refused to nullify the election. The tribunal according to counsel only considered the evidence of the petitioner without adverting its mind to the evidence of DW1, PW6 and PW7. The learned SAN referred to Swem v. Dzungwe (1966) NMLR 297 and urged us to allow the appeal. On the failure of the tribunal to consider the evidence called, counsel referred to Duru v. Nwosu (1989) 4 NWLR (Pt.113) 24.

Chief G.O.K. Ajayi, SAN for the 1st respondent said that the main complaint of the appellant before the tribunal was that the total number of votes cast for the two candidates at the election exceeded the number of accredited voters on the queue. Learned SAN said that the only irregularities which could lead to a nullification of result from a polling unit is where the number of votes cast for the two candidates exceeded the number of the accredited voters. According to Chief Ajayi the irregularities were not substantial and that whatever irregularities there were, were arithmetical in nature and could not in any case lead to a nullification of the whole election. Counsel said that several EC 8A forms were tendered in bulk without evidence being specifically led to connect each of these with the irregularities complained of. Counsel further submitted that it was not the duty of the court to assist the petitioner by relating each documentary exhibit tendered to the polling units in question – Duriminiya v. C.OP. (1961) NNLR 70 at 73-74 and Queen v. Wilcox (1961) All NLR (New Edition) 631, (1961) SCNLR 296. Counsel submitted that the tribunal correctly decided not to consider the documentary evidence tendered in bulk. Finally, it was submitted that the tribunal correctly dismissed the petition. Chief Ajayi asked us to dismiss the appeal.

Mrs. Nggilari for the 2nd and 3rd respondents said that the tribunal was right not to attach any probative value to the exhibits tendered by the petitioner in bulk without each being related to a polling unit. She referred to Onibudo v. Akibu (1982) 7 S.C. 60 at 62. Counsel finally associated herself with the submission of Chief G.O.K. Ajayi, SAN.

Chief Sowemimo SAN in reply said that the case Duriminiya v. C.OP. (supra) was a criminal case and therefore not applicable to the instant case. Counsel also observed that the documentary exhibits tendered were not tendered in bulk.

I propose to deal in this judgment with the issue which by the agreement of parties is the core matter in this appeal. The question is whether or not the petitioner made out sufficient case as would enable the tribunal pronounce that the 1st respondent was not duly elected by a majority of lawful votes.

The petitioner in his pleading averred that in several polling units the total votes scored by the two parties exceeded the number of accredited voters on the queue. Several documents were tendered in proof of this. Chief Ajayi, SAN has submitted before us that that allegation even if true would have no bearing or consequence on the election since it was not the ground provided for nullification of polling results from the polling units, Before I consider the question whether the Tribunal correctly refused to consider the documentary exhibits tendered, it is necessary to determine whether those exhibits even if they were considered could by their force lead to a nullification of the results in some polling units, Paragraph 25(1)(d) which is identical with paragraph 28(1)(d) of Schedule 6 to Decree No.50 of 1991 provides:

“The Presiding Officer shall after counting of votes-

(a) –

(b) –

(c) –

(d) nullify the result of any polling station where the total number of votes cast exceed the total number of people accredited to vote at the polling station.”

To understand the full import of paragraph 25(1)(d) reproduced above, it is necessary to relate it to the procedure for accreditation of voters and post-accreditation procedure as set out in paragraphs 15(1) and (2) (a-f), 16 and 17 of Schedule 5 to Decree No.50 of 199 I which provide:

“15(1) The accreditation of voters shall commence the day and time stipulated pursuant to paragraph 14 of this Schedule.

(2) The Presiding Officer shall –

(a) Cross check the voters’ card of a person applying for accreditation against the register and the following questions or any of the questions shall be put to a voter by a candidate or the polling agent, that is –

(i) “Are you the person whose name is on the register of voters as…?

(ii) Are you a person above 18 years of age?”

(b) not accredit any voter who answers the questions in sub-paragraph (2)(a) to this Schedule in the negative.

(c) mark the name of the voter in the register with biro;

(d) stamp and sign each voter’s card at the back with the appropriate stamp and stating the date, type of election and code number; and

(e) mark the right thumb of the voter between the nail and flesh with indelible ink;

(f) enter in Form EC 8A – Statement of Result for the number of persons registered to vote at the polling station. The number of registered voters accredited and the number of accredited voters standing in the queue at the commencement of voting. The Presiding Officer and The Polling agents shall sign Form EC 8A to authenticate the numbers thereat.

16. At the close of accreditation, the Presiding Officer shall –

(a) loudly announce the total number of accredited voters entitled to vote at Polling Station and record the same in Form EC 8A;

(b) explain the voting procedure to be followed;

(c) introduce the candidate or their posters and symbols, the poll clerks and the polling agents;

(d) explain all atrocities which constitute election offences within the polling zone including penalties for committing each offence;

(e) call the roll of accredited voters;

(f) ensure that posters bearing photographs of candidates are well placed before the commencement of voting.

17. After due compliance with the provisions of paragraph 17 of the Schedule, the Presiding Officer shall –

(a) announce the commencement of voting;

(b) request the accredited voters to line up in a single line in front of the candidate of their choice;

(c) separate the queue between men and women if in the area of the country the culture is such that it does not permit the mingling of men and women in the same queue;

(d) request Security Agents or Poll Orderlies to stand at the end of the queue behind the last accredited voter and request the voters at the queue to show their voters cards duly stamped and the right thumb bearing indelible mark made by the Presiding Officer;

(e) loudly count the number of accredited voters with the assistance of the Poll clerk or Teller;

(f) recount the votes at the request of a polling agent provided that such request shall not be entertained after a first recount:’

In construing the provision of paragraph 25(1) of Schedule 6 Decree No.50 of 1991, it is important to bear in mind that the purpose of the same is to prevent electoral malpractices and fraud. It is obvious that a fraud would have taken place if the number of votes cast for both candidate at the election exceeded the number of accredited voters. In Re Mayfair Property Co. (1898) 2 Ch. 28 at 35, Hindley M.R. said:

“In order properly to interpret any statute it is necessary now as it was when Lord Coke reported Heydon’s case, to consider how the law stood when the statute to be construed was passed, what the mischief was for which the old law did not provide and the remedy provided by the statute to cure that mischief.”

In the light of the procedure for voting at an election reproduced above it is clear that the accreditation of voters and later the stage of voting represent the extreme or ouster beacons or outposts in the effort to prevent electoral malpractices. The whole procedure is a continuous chain from accreditation to voting. The directive concerning the number of voters registered to vote, the number of voters accredited, the “number of voters on the queue to vote and the number of voters actually voting is to ensure that at important stages of the electoral process safeguards are in place to prevent fraud.

It is also important to bear in mind that the intendment of the provisions governing the election procedure is that once a person is accredited, he shall not leave the voting area until he has voted. This is borne out by paragraph 15(3) of the Schedule 6 to the Decree which makes it an offence to leave the polling zone thus:

“Any person who having been accredited leaves the polling zone or any other place appointed for the accreditation of persons and or mixes up with unaccredited persons shall be guilty of an offence of disorderliness under Section 92 of this Decree and shall be liable on conviction to the punishment as provided under that section.”

Nevertheless, it must be said that the directive that a record of persons accredited be made at different stages of the voting process till actual voting salutarily recognised that the number of voters accredited may not remain static until actual voting is done. Emergencies may impose the necessity for some persons to leave after accreditation. It suffices here however to point out that the intendment of the law is that nobody should leave. One thing is clear, it is that from the stage of accreditation through the queueing to actual voting, the number of voters may diminish if circumstances force them to leave before voting. But the number should never increase. In other words, more people may be accredited than are available for counting on the queue. In the same way it is remotely possible that more people are available for counting on the queue than will actually be available for voting. I have used the expression “remotely” advisedly, because the process of queueing up for counting or roll call is almost immediately to be followed by actual voting such that no time is left for anyone who has queued to depart the venue before the voting.

Before the tribunal, the 2nd respondent who testified as DW2 narrated the procedure which is normally followed at elections by NEC thus:

See pages 59/194 of record of proceedings:

“On the day of election accreditation usually take place between 8 a.m. – 10 a.m. when their names are identified in the voters register after presenting valid voter’s cards. Their Thumb prints are imprinted with indelible ink to show. After the accreditation at 10 a.m. the official officiating the election will endeavour to educate the electorate on voting procedures etc. If satisfied that the procedure is understood he would require them to line up in one single file for counting for the purpose of identifying the number of people who might have strolled away since they were accredited. At precisely 11 a.m. the voting would start. Just before this, the posters of the candidates who are to be voted for, would be displayed. Thereafter the accredited voters would be asked to line up behind the candidates of their choice or their posters. It is at that juncture that the actual voting takes place. When they have formed the lines, poll watchers are asked to stand behind the last person in the queue. Once counting has commenced, no person is expected to enter the line, whether or not they have been accredited. The counting of the polling station. The number of voters so counted is immediately recorded in the forms appropriate for the purpose. That in a nutshell is the procedure. It is not true that, as alleged by the petitioner, that the number of voters was at variance with the actual figures. Since voting is held near homes it is usual that when people are accredited, some are impatient to wait at the accreditation center from that time till the voting commences, usually at 11a.m. They often stroll away, sometimes not returning. So that by the time people are asked to queue up for roll call, some of them who have slipped across to their homes or farms may not be present when the rol