Alhaji Ahmed Garba Bichi & Ors. V. Alhaji Ibrahim Shekarau & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

ZAINAB ADAMU BULKACHUWA, OFR, J.C.A.

The election into the office of the Governor of Kano State was held in as other States of the Federation on the 14th of April 2007. The candidates who were sponsored by their various parties contested for the election at the end of which the respondents declared the results of the election on the 16/4/07 as indicated hereunder:-

S/N PARTY CANDIDATE VOTE SCORED

1. AC USMAN SULE 126,235
2. AD YAHAYA MOHAMMED KABO 5,272
3. ADC MOHAMMED MUKHTAR ALI 4,211
4. ANPP IBRAHIM SHEKARAU 671,184
5. APGA ISMAILA ZUBAIRU 3,663
6. CPP MUSTAPHA BADAMASI 1,658
7. DPP BASHIRU S. NAGASHI 19,871
8. ND HAMISU L. IYANTAMA 2,826
9. NSDP MUHAMMAD MUHAMMAD 2,429
10. PAC SHEHU MUHAMMAD DALHAT 10,429
11. PDP AHMED G. BICHI 629,868
12. NDP BALAS. KOSAWA 5,876
13. PPA KABIRU B. SHARFADI 2,325
14. PRP ALHAJI HARUNA UNGOGO 1,289
15. PSP UMAR Y. DANHASSAN 18,963
16. RPN AHMED G. RIRUWAI 1,028

and Ibrahim Shekarau of the ANPP was returned and declared as elected for the seat of the Governor of Kano State. Alhaji Ahmed Garba Bichi with his deputy Engr. Abubakar Jibrin Mohammed and their party, the Peoples Democratic Party being unsatisfied with the declared results and the outcome of the election filed a petition before the Governorship and Legislative Houses Election Tribunal, Kano on the 14/5/07 (which shall henceforth be referred to as the lower tribunal) on the following grounds:

“(1) That the 1st respondent was at the time of the election disqualified from contesting the election.

(2) That the election is invalid by reason of non-compliance with the provision of the Electoral Act, 2006 and Corrupt Practices which substantially affected the outcome of the election alternatively.

(3) That the 1st respondent was not duly elected by a majority of lawful votes cast at the election and did not score one-quarter of the votes cast at the election in each of at least two-thirds of all the Local Government Areas in Kano State.”

The petition also prayed for the following reliefs;

“(1) That the gubernatorial elections held in Kano State on the 14th April, 2007 be declared null and void and of no legal effect whatsoever and that the purported declaration and return of the 1st respondent by the 4th and 5th respondents as the winner of the said election be set aside.

(2) An order for fresh gubernatorial elections to be conducted in Kano State for the election of the Governor of Kano State.

(3) And for such further or other order(s) as the Honourable Tribunal may deem fit and just to make or grant in the circumstances.”

Replying the respondents denied the allegation and contended that the 1st respondent was duly qualified to contest the election and that the election was free and fair, devoid of any corrupt practices and was conducted in substantial compliance with the provision of the 2006 Electoral Act and urged the tribunal to refuse the reliefs sought by the petitioners, dismiss the petition with substantial cost and affirm the election and return of the 1st respondent as the duly elected Governor of Kano State.

Hearing commenced before the lower tribunal after some of the respondents was dropped and the reading of the pre-hearing report, wherein the petitioners called 22 witnesses and tendered 37 documents. The first set of respondents called 19 witnesses; the 2nd set of respondents called 6 witnesses, while the 3rd set of respondents called 3 witnesses and tendered 4 exhibits collectively.

The lower tribunal formulated two issues for the determination of the petition and at the end of the trial resolved the two issues in favour of the respondents, dismissed the petition and affirmed the declaration and return of the 1st respondent by the 4th and 5th respondent as the duly elected Governor of Kano State in the judgment of 11/3/08.

The petitioners being dissatisfied with the said judgment have now appealed to this court on a Notice of Appeal filed before this court on the 31/3/08 consisting of 8 grounds of appeal.

The 1st, 2nd and 3rd respondents who were the 1st and 2nd sets of respondents before the lower tribunal also cross-appealed against part of the judgment vide a notice of cross-appeal filed on the 31/3/08 consisting of three grounds.

As, is the usual practice, parties in the substantive and the cross-appeal filed and exchanged their briefs of argument.

The appellants in their brief have earlier sought and had been granted leave by this court on the 10/7/08 to file an additional ground of appeal numbered as ground 9. In an amended brief of argument as settled by learned senior advocate Emmanuel Toro which was deemed filed on the 10/7/08 they identified these issues:-

“1. Whether the Tribunal below was duly and validly constituted when its judgment in this petition was delivered on the 11th March, 2008 under a new Chairman without trying the petition de novo and whether doing so renders the judgment invalid.

2. Whether in the entire circumstances of this appeal the Tribunal below was right in declining to order for fresh election to be conducted in Tudun Wada LGA of Kano State, when as held by the Tribunal, the appellants had successfully proved that election did not take place in the area or same was unlawfully cancelled by INEC.
3. Whether having regard to the provisions of the Evidence Act and under the general law, the Tribunal below was right in imposing upon the petitioners/appellants the further or additional burden of proving that non-compliance as found by the Tribunal did not substantially affect the result or outcome of the election when INEC and not the appellants had conducted the said election.
4. Whether the Tribunal below was right in admitting the two judgments of the Federal High Courts, Exhibits R.3 & R.L, when the evidence tendered by the 1st and 2nd respondents was in conflict or at variance with their pleadings.
5. Whether the participation of Hon. Justice Adamu Jauro whose appointment as a Justice of the Court of Appeal had been announced and who was subsequently sworn into that office contravenes the mandatory provisions of Section 285(3) & (4) of the 1999 Constitution of Nigeria and paragraphs 24(2) and 26(2) of the First Schedule to the Electoral Act, 2006 thereby rendering the entire proceeding unconstitutional, illegal, null and void.”

The 1st – 3rd respondents in their brief of argument as settled by J.B. Daudu SAN and filed on the 15/7/08 identified the underlisted issues for the determination of the appeal:-

“(1) Whether the variation in the panel occasioned by the elevation (appointment) of Hon. Adamu Jauro J. (as he then was) to the Court of Appeal Bench and the appointment of one of the members to sit. Adebara J, who was present and participated in all the proceedings together with the remaining members from inception to the end rendered the entire proceeding and judgment in this matter a breach of jurisdiction and therefore null and void?

(2) Whether there is any justification or basis in the complaint of the appellants that Hon. Jauro J, Chairman of the Tribunal had been elevated or appointed to the Court of Appeal Bench as at the 12th of February 2008 when addresses of counsel were adopted and that this act tainted or vitiated the entire proceedings including the judgment of the said Tribunal?

(3) Whether having failed to appeal against the findings and conclusions of the Tribunal that the contents of the EFCC report and purported White Paper thereon did not amount to an indictment known to law and the Constitution, the appellant’s complaint against the Tribunal’s resolution of the issue of disqualification in favour of the respondent is tenable in law?

(4) Whether the decision of the Tribunal on the appellant’s complaint of corrupt practices and non-compliance with the provision of the Electoral Act, 2006 in respect of Tudun-Wada LGA of Kano State can be faulted in law?”

The 4th – 54th respondents in their brief of argument deemed filed by this court on the 30/10/08 identified these issues;

“1. Whether the Tribunal below was duly and validly constituted when its judgment in this petition was delivered on 11th of March, 2008 under a new Chairman without trying the petition de novo and whether doing so renders the judgment invalid.

2. Whether participation of Hon. Justice Adamu Jauro whose appointment as a justice of the Court of Appeal had been announced and who was subsequently sworn into that office contravenes the mandatory provision of Section 285(3) and (4) of the 1999 Constitution of Nigeria and paragraph 2(1) and (2) of the Sixth Schedule thereto as well as paragraphs 24(2) and 26(2) of the First Schedule to the Electoral Act, 2006 thereby rendering the entire proceedings unconstitutional, illegal, null and void.
3. Whether in the entire circumstances of this appeal the Tribunal below was right in declining to order for fresh election to be conducted in Tudun Wada Local Government Area in Kana State when as held by the Tribunal, the appellants had successfully proved that election did not take place in the area or same was unlawfully cancelled by INEC.
4. Whether having regard to the provision of the Evidence Act and under the general law, the Tribunal below was right in imposing upon the petitioners/appellants the further or additional burden of proving that non-compliance as found by the Tribunal did not substantially affect the result or outcome of the election when INEC and not the appellants had conducted the said election.
5. Whether the Tribunal below was right in admitting the two judgments of the Federal High Courts, Exhibits R.3 and R.4 when the evidence tendered by theist and 2nd respondents was in conflict or at variance with their pleadings.”

I will in the determination of this appeal adopt the issues identified by the appellant they are more germane to the grounds of appeal.

The appellant had raised no issues from grounds 6 and 7 and had infact sought the leave of this court to abandon them, they are in the circumstances deemed abandoned and are hereby struck out.

The appellant have similarly been granted leave to file an additional ground which is termed as ground nine. The issues thus raised in the appellants’ amended brief are based on grounds 1, 2, 3, 4, 5, 8 and 9.

Issues 1 and 5 which are based on grounds 1 and 9 were argued together and relates to the composition of the panel of the lower tribunal.

The appellant’s complaint in these issues is with regards to the panel of the lower tribunal. They maintain that the composition of the lower tribunal from the inception of the petition and throughout its hearing and up to the adoption of written addresses on the 12th of February, 2008, had Hon. Justice Adamu Jauro as the Chairman of the five-man panel of Judges constituting the tribunal. That however, the said Chairman did not participate in the writing and delivery of the judgment of the tribunal as he had been elevated, appointed and been sworn-in as a Justice of the Court of Appeal before the delivery of the judgment. That when judgment was delivered on the 11th March, 2008 only the remaining four members of the panel of the tribunal wrote and delivered the judgment with Hon. Justice A.A. Adebara presiding as the Chairman.

The appellants relies on the provision of Section 285(3) & (4), paragraph 2(1) of the Sixth Schedule to the 1999 Constitution of Nigeria and paragraph 24(2) and 26(2) of the 1st Schedule to the Electoral Act, 2006 and cites Oju LGA V. INEC (2007) 14 NWLR (Pt. 1054) 242; A-G. Ondo State V. k- G. Ekiti State (2001) 17 NWLR (Pt. 743) 706; Fawehinmi V. I.G. (2002) 7 NWLR (Pt.767) 606; Chime & ors V. Elikwu & ors (1965) NWLR 71; Adeigbe & Anr. V. Kusimo & ors. (1965) NMLR 284; Ngige V. Obi (2006) 14 NWLR (Pt. 999) 1; Agbeotu V. Brisibe (2005) 10 NWLR (Pt. 932) 1; Ubwa V. Tiv Area Traditional Council (2004) 11 NWLR (Pt. 884) 427; and Sokoto State Government V. Kamdex (Nig) Ltd (2007) 7 NWLR (Pt. 1034) 466; to submit that the lower tribunal being a membership court, under a Chairman who is appointed by virtue of constitutional provision to preside over the proceedings of the tribunal, it is in the interest of justice that the same Chairman should preside over the proceedings up to and including the writing and delivery of the judgment in any given petition brought before the tribunal. That where it becomes necessary to effect a change, then it behooves the new Chairman to commence the trial de novo in the overall interest of justice and fair play.

The appellant also submits that the proceedings of 12th February, 2008 (the adoption of written addresses by the parties and reservation of the judgment of the lower tribunal) is vitiated as at that time the appointment of the Chairman Jauro J, (as he then was) to the Court of Appeal had been announced, the Chairman had lost his toga of being a Judge of the High Court and the Hon. President of the Court of Appeal should have then appointed a new Chairman to recommence the hearing of the petition de novo as provided by paragraph 24(2) of the 1st Schedule to the Electoral Act, 2006.

We are in the circumstance urged to resolve the two issues in favour of the appellants.

The 1st – 3rd respondents’ issues 1 and 2 are raised from ground 1 and 9 and were argued together.

It was their contention on these issues that there was nothing jurisdictionally defective about the variation in the panel of the lower tribunal. That the state of affairs is the elevation of Jauro J, to Jauro JCA is as contemplated by paragraphs 24(2) and 26(2) of the First Schedule to the Electoral Act thus the appointment of Adebara J, as Chairman to conclude the proceedings was proper and lawful in the circumstances. That Adebara J and the other members had participated in the proceedings from the very beginning and to commence a fresh or de novo would defeat the spirit of election petitions aim of expediting the proceedings. That Adebara J, by the said provision had the discretion to either recommence the proceedings de-novo or to continue from where the former Chairman stopped putting reliance on Ibrahim V. Osim (1988) 3 NWLR (Pt. 82) 257; Bounwe V. REC Delta State (2006) 1 NWLR (Pt. 961) 286; Ishola V. Societe General Bank Plc. (1997) SCNJ 1 at 25; Shuaibu V. NABLH (1995) 1 NWLR (Pt. 5511) 521; Ngige V. Obi 14 NWLR (Pt. 999) 1, on his submission that variation in the composition of a panel are not jurisdictional but substantive where each complaint must be established on the merit of its own peculiar circumstances.

On issue 2 the 1st – 3rd respondents submitted that the appellants did not establish by evidence i.e instrument of appointment or gazette to show that Jauro J, had become Jauro JCA as at the 12th of February, 2008 when he presided over the proceedings of the lower tribunal when counsels adopted their written briefs. That this case is distinguishable from the case of Ogbunyinya relied upon by the appellant as in the instant case Jauro J, did not write, contribute to the writing or deliver the judgment. We are in the light of these urged to resolve the two issues in favour of the 1st – 3rd respondents.

In the 4th – 54th respondents’ brief which was deemed filed on the 30/10/08 issues one and two are raised from grounds 1 and 9 of the grounds of appeal.

On issue one they submit that a liberal interpretation of the constitutional provisions relied upon by the appellants will show that the lower tribunal as headed by Adebara J, was proper and well constituted. That the tribunal had a quorum and all members thereon had participated in the proceedings of the tribunal throughout. That to require that they start the proceedings de-novo when Jauro J, left would be too much adherence to technicalities that would not serve the end of justice. They relied on the case of Enosike V. Emordi an unreported case of the Enugu Division of this Court on this contention.

On issue two the 4th – 54th respondents also distinguished this case from the case of Ogbunyiya (supra) and submits that a person appointed to the office of a Judge does not really enter into that office unless and until he has subscribed to the oath of office as prescribed by the Constitution. That in Ogbunyiya, the Gazette was quite clear in its language, while in the instant case there is no evidence that the appointment of Jauro, JCA has been gazetted, nor is there evidence that his appointment had taken effect before the 11th of February, 2008 when written addresses were adopted by counsel, that the only evidence being that Jauro, JCA was sworn in as Justice of the Court of Appeal on the 15th of February, 2008. They further submit that in the absence of a notice or gazette the appointment of Jauro ‘JCA’ can be said to have taken effect from the date he was sworn in i.e. 15th February, 2008. That his sitting prior to that date did not in anyway vitiate the proceedings and urged us to so hold.

The constitutional and the electoral provisions under review provide as follows;

Section 285(3) and (4) of the 1999 Constitution.

“(3) The composition of the National Assembly Election Tribunal, Governorship and Legislative Houses Election Tribunals shall be as set out in the Sixth Schedule to this Constitution.

(4) The quorum of an election tribunal established under this section shall be the Chairman and two other members.”

Paragraph 1(1) of the Six Schedule of the 1999 Constitution

“1(1) A National Assembly Election Tribunal shall consist of a Chairman and four other members.”

See also paragraphs 24(2) and 26(2) of the 1st Schedule to the Electoral Act, 2006.

“24(2) If the Chairman of the Tribunal or Presiding Justice of the Court who begins the hearing of an election petition is disabled by illness or otherwise, the hearing may be recommended and concluded by another Chairman of the Tribunal or Presiding Justice of the Court appointed by the appropriate authority.

26(2) After the hearing of the election petition is concluded, if the Tribunal or Court before which it was heard has prepared its judgment but the Chairman or the Presiding Justice is unable to deliver it due to illness or any other cause, the judgment may be delivered by one of the members, and the judgment as delivered shall be the judgment of the Tribunal or Court and the member shall certify the decision of the Tribunal or Court to the Resident Electoral Commissioner, or to the Commission.”

In the instant case, trial commenced and all proceedings in the matter up and including the adoption of written addresses by counsels on the 11th of February 2008 was heard before a panel of 5 members of the lower tribunal consisting of;

Jauro ‘J’ – Chairman

Adebara ‘J’ – Member

Baaki ‘J’ – Member

Amabin ‘J’ – Member

Yusha’u ‘J’ – Member

However on the 11/3/2008 when judgment was delivered, the Chairman of the panel was Adabara ‘J’, with the other 3 members. The judgment was signed by the 4 members. The former Chairman Jauro ‘J’ (as he then was) had been sworn-in as a Justice of the Court of Appeal on the 15th February, 2008.

The contention of the appellants that the absence of Jauro JCA, when judgment was delivered vitiates the whole proceedings, that Adebara ‘J’ instead of delivering the 4 – members judgment should have recommenced the proceedings de-novo.

My understanding of the combined effect of the Constitutional and the Electoral Act provisions earlier quoted is that an election petition tribunal shall consist of five members with a quorum of three at any sitting. The tribunal will thus be duly constituted if it consists of at least three members inclusive of the Chairman. In the absence of the Chairman, who commenced the proceedings for any reason, the Act gives the new Chairman the discretion to ‘recommend’ and ‘conclude’ the proceedings, as the word ‘may’ here is used in the paragraph.

Paragraph 26(2) may to my mind not be applicable in the instant circumstances as it envisages a situation where the Chairman had heard the matter, participated in the writing of the judgment but is unable to deliver the judgment due to illness or any other reason.

What is important here is that the 4 members of the panel participated in the proceedings and were present up to the delivery of judgment. Jauro (JCA) did not write or deliver the judgment.

Ogbunyiya’s case (supra) in respect of a judgment delivered by Iguh ‘J’ after his appointment to the Supreme Court had been gazetted, in effect he delivered and read a judgment of the High Court when he was a Justice of the Supreme Court.

In Kusimo’s case (supra) the Supreme Court reversed the decision of the High Court which in its appellate jurisdiction upheld an appeal from the Customary Court, that a variation of the panel of the Customary Court renders the trial before it null and void.

The Supreme Court per Ademola CJN at 287 held;

“The complaint against a hearing that was not always before the same bench does not pertain to any matter that goes to the jurisdiction of the court. It is at bottom a complaint that the judgment cannot be satisfactory on the ground that as the person who gave it had not seen and heard all the witnesses, they could not appraise the evidence as a whole and decide the facts properly. Thus it is a complaint on the soundness of the judgment itself, and not a complaint that is entrinsic to the adjudication, which is the test to apply when considering a submission on jurisdiction. We are therefore of the opinion that variations in the bench do not make the judgment a nullity, they may make it unsatisfactory, and it may have to be set aside for this reason but whether they do or not depends on the particular circumstances of the case.”

In Elikwu’s case (supra) the appeal was allowed by the Supreme Court not on the basis of variation of the members of the panel of the trial court but on the basis that the panel was not complete as stipulated in the law which gave the trial court its jurisdiction.

In the Sokoto Government’s case (supra), the case was nullified by the Supreme Court as there was an infringement of the provisions of Section 247(1) of the 1999 Constitution which stipulates that the Court of Appeal shall be constituted by not less than three Judges, and Galadima JCA who delivered the judgment of the court did not participate at the hearing of the appeal.

In my view the cases of Obi V. Emordi (supra) and Ngige V. Obi (supra) are relevant and applicable to the instant appeal. They are all on election petition and the complaint on them is on the variation of members of the panel of the trial tribunal petitions. The holding in these cases is that variation of panel does not render the decision null and void.

See also Mark V. Abubakar & ors. Unreported appeal of the Jos Division of this Court No. CA/J/EP/SN/114/2008 where after due consideration of the law and the cases cited came to this conclusion at page 62 of the records;

“The Constitutional and Statutory requirement is that there is a quorum of the tribunal when three members sit with a Chairman and the Chairman if disabled may be replaced by another Chairman to conclude the proceedings.

The intention being that a petition will not be commenced de novo in the absence of a Chairman, rather an election petition being sui generis once commenced should be completed so long as there is a quorum…”

The judgment which had been heard and delivered by a quorum of 4 is competent and not vitiated in the circumstances. Here I will uphold the submission of the respective senior advocate for the two sets of respondents that there is nothing in the brief or in the records to show that the judgment had occasioned a miscarriage of justice on the appellants.

In the same way, I will uphold their submissions that as at 12th February, 2008 when counsels adopted their respective written address there was nothing to show that Jauro ‘J’ had dorned the clothing of a Justice of the Court of Appeal. In the absence of any instrument of office, the only relevant date would be the date he was sworn-in as a Justice of the Court of Appeal, which in the instant situation is the 15th February, 2008.

On 12th February, 2008 when written addresses were adopted he was still a High Court ‘J’ and had the competence to sit and preside on the election petition.

I, in the circumstances find the judgment of the lower tribunal competent and relevant and resolve the two issues against the appellant.

Issues 2 and 3 of the appellants were distilled from grounds 2, 3, 4 and 8 of the grounds of appeal and were argued together in the appellants’ brief. These issues are as argued in the 1st – 3rd respondents’ issue 4 and as can be found in the 4th – 54th respondents’ issues 3 and 4.

The arguments of the appellants on these issues are based on the findings of the lower tribunal to be found at page 1555 of the printed record reproduced hereunder:-

“Learned senior counsel for the 1st and 2nd respondents made attractive submission at page 7 of the reply to the petitioners written address on points of law (a) that election took place peacefully throughout the entire Local Government (b) that results were declared and released by INEC to all contestants (c) that a named candidate won the election in the said Local Government and the scores of the winner and other candidates (d) that the primary copies of the results are in the possession of PDP agents (e) that the said results were arbitrarily cancelled by INEC and said there was no evidence from the petitioners to establish the above. We do not however share the submission of the learned senior counsel, with utmost respect to him and as attractive as the submission is. We believe that from our discussion on above item (a), (b) and (e) were established. Regarding items (c) and (d), they become relevant at the next stage when we are to consider the effect of non-compliance, if any on the result of the election. It follows from what we have said so far that INEC has no power to have cancelled the Governorship election result in Tudun Wada Local Government Area, while it released that of State House of Assembly which was conducted simultaneously through the same process and declared PDP candidate as the winner of the election. The cancellation in our view is contrary to the law and unlawful?”

The appellant submitted that the lower tribunal having found as above was in grave error not to have ordered another election in Tudun Wada Local Government Area. That the unlawful cancellation of the election result in the said Local Government Area by INEC as rightfully found above, has given rise to the disenfranchisement of voters thereby making it impossible for them to exercise their civil duties and INEC’s action has the effect of rendering the clear provisions of the Electoral Act, 2006 ineffective and the election cannot be said to be the wishes of the electorate.

Contending further that the appellant having established non-compliance which has the effect of disenfranchising the voters in Tudun Wada Local Government by preponderance of evidence which is supported by a finding of fact by the lower tribunal, the tribunal ought, in the circumstances, to have ordered INEC to conduct fresh election in Tudun Wada Local Government instead of placing the burden on the petitioners to show that the cancellation of the election in the said Local Government affected the outcome of the election.

We were urged to resolve these issues in favour of the appellant and order the 4th respondents (INEC) to conduct fresh election in Tudun Wada Local Government Area of Kano State.

The determining factor of the two issues as argued is the above prayer. In effect the resolution of the issue in favour of the appellant will result in the granting of the prayers.

It is trite that an appeal is an extension of the matter as put up before a trial court, in the instant case the lower tribunal.

At trial a party is always restricted by pleadings and the evidence he puts in support of the pleadings and if successful is entitled to only what he claims.

The appellant complaint on the election at Tudun Wada Local Government is as contained in paragraph 13:18 of the petition, it is reproduced hereunder:

“13:18 TUDUN WADA LOCAL GOVERNMENT.

In this Local Government the State House of Assembly Election and Governorship Election took place simultaneously with voters using the same ballot boxes to cast votes for the two sets of election. The result for House of Assembly election was released and the PDP candidate clearly won the election and was accordingly returned as elected. However the result for governorship election in this local Government was arbitrarily cancelled.”

Paragraph 16 of the petition sets out the reliefs claimed as follows;

“16. WHEREFORE YOUR PETITIONERS PRAY AS FOLLOWS;

1. That the Gubernatorial election held in Kano State on the 14th of April, 2007 be declared null and void and of no legal effect whatsoever and that the purported declaration and return of the 1st respondent by the 4th and 5th respondents as the winner of the said election be set aside.
2. An order for fresh Gubernatorial election to be conducted in Kano State for the election of the Governor of Kano State.
3. And for such further or other orders as the Honourable Tribunal may deem fit and just to make or grant in the circumstances.”

There is no claim before the lower tribunal by the petitioners that fresh election be conducted in Tudun Wada local Government, the lower tribunal would have therefore lacked the competence to have granted such relief and by extension this court also lacks the competence to grant the relief. The two issues are resolved in favour of the respondents.

Issue 4 as argued by the appellant relates to the lower tribunal’s decision on Exhibits R3 and R4 which are the judgment of the Federal High Court, Abuja and the Federal High Court Kaduna respectively.

In their submission the appellants referred to paragraph 10 of the 1st and 2nd respondents reply to the petition and the 1st respondent’s deposition as front loaded with their reply. They also referred to their submission in their written final address before the lower tribunal where they highlighted the variances and disregard between the pleading and the sworn evidence in support. The appellant contend on that, that parties are bound by their pleadings and will not be allowed to set up in court a case which is at variance with their pleadings. That a party who specifically plead a document cannot at trial rely on another document not pleaded in the absence of an amendment of his pleadings as that will render such unpleaded document inadmissible and at variance with the pleading. That the court is also bound by the pleadings and cannot make a finding outside the pleadings as joined by the parties.

The 1st- 3rd respondent on this issue submits that this complaint is irrelevant as the lower tribunal had dismissed the ground of qualification before it on the reason that a complaint of indictment made against the 1st respondent which borders on fraud and embezzlement must be preceded by a criminal trial and conviction in a court of competent jurisdiction before an administrative or judicial panel can indict. That there being no appeal on that finding, the appellant cannot now appeal against the two documents which the lower tribunal had held could be dispensed with.

The 4th – 54th respondent submit on this issue that the two exhibits were sufficiently identified by the suit numbers, the names of the parties to the action, the declaration sought and the reliefs granted, such that the date of delivery which was mixed up in the deposition of the item cannot be a variation which will make the document in admissible, that for the court to take such a stand will amount to too much adherence to technicalities rather than doing substantial justice to the parties.

It is trite that where evidence adduced is at variance with party’s pleading; it will go to no issue and will not be admitted.

The contention of the appellant on this issue is that the dates on Exhibits R3 and R4 as pleaded per paragraph 10 of their reply to the petition are different from the dates referred to in the sworn deposition of the RW19.

This issue was also raised by the appellants at the trial stage and the court had adequately addressed the issue. See pages 1430 – 1432 of the record:

“The learned senior counsel for the petitioners had had also strenuously argued that we should disregard both Exhibits R2 and R3 (he meant in our view exhibits R3 and R4) in that the evidence led in support of the said exhibits is at variance with the pleadings. He relied on Hashidu V. Goje (2003) 15 NWLR (Pt. 843) 352 at 379 – 380. It is to be noted that Exhibits R3 and R4 were the Certified True copies of the judgment of the Federal High Court, Abuja and Kaduna respectively where the report of the Administrative Panel of Inquiry (Exhibit P.1) and the Federal Government White Paper (Exhibit P.2) were respectively set aside. We agree with the proposition of the law as expounded in Hashidu V. Goje (supra) regarding the issue that any evidence led by a party which is at variance with his pleading should be discountenanced. In that case, it was not the document pleaded by the petitioners that was eventually tendered in evidence. However, in the present case, Exhibits R3 and R4 were indeed the document pleaded by the 1st and 2nd respondents in paragraph 10 of their reply to the petition. This in our view distinguishes this case from that of Hashidu V. Goje (supra). However, we are not unmindful that the contention of the petitioners’ counsel was that the evidence of RW19 as contained in his statement on oath which was adopted as his evidence in-chief ascribed dates different from those pleaded in paragraph 10 of the reply to Exhibits R3 and R4. We agree with the petitioners to that extent. Whereas the date pleaded in respect of Exhibits R3 and R4 in paragraph 10 of the 1st and 2nd respondents’ reply were 18th day of April, 2007 and 25th day of May, 2007 respectively, however the dates ascribed to the documents tendered as Exhibits R3 and R4 in paragraphs 4 and 5 of the 1st respondent (RW19) statement on oath were 9th April, 2007 and 5th June, 2007 respectively. In our most humble view, we believe that 1st and 2nd respondents vide the RW19 statement on oath has mixed-up the dates. We are however satisfied that the names of the parties, the suit Nos and courts are the same with that pleaded and that contained in the RW19 statement on oath. Parties in this case are not misled as to the judgment tendered. It is our firm view that it was the judgment pleaded that were tendered and they were even admitted in evidence by consent. The judgment is relevant and admissible in law in any event of course the judgment was duly certified and the petitioners have not shown any other impediment blocking their admissibility. We hold on the authority of Osho V. Aje (1998) 8 NWLR (Pt. 562) 492 that it is not open to the petitioners to now contend that the said document be disregarded or expunged from the record on the ground that they were inadmissible in evidence. Be that as it may, we would like to say in view of the decision reached by us earlier in this judgment that there is no indictment cognizable under the law, in as much as Exhibits R3 and R4 were tendered and admitted to show that the Reports of the Administrative Panel of Inquiry (Exhibit P1) and the Government White Paper (Exhibit P2) had been set aside by court of competent jurisdiction we hold that Exhibits R3 and R4 were mere susplausages. They are unnecessary.”

The above finding is unassailable and the issue had been properly and adequately addressed by the trial tribunal. It is not the duty of this court to disturb it unless and until the appellant can show that it is perverse or not supported by evidence. This appellant had failed to do but simply re-addressed in on the same issue again. This issue in the circumstances must also fail.

Having resolved all issues raised against the appellant, this appeal must fail as it lacks merit. It is accordingly dismissed. The decision of the lower tribunal of affirming the election and return of the 1st respondent by the 4th respondent as Governor of Kano State is hereby affirmed.

CROSS APPEAL

This cross-appeal was filed by the 1st – 3rd respondents in the substantive appeal they were also the 1st – 3rd respondents in the lower tribunal.

The facts of the cross-appeal are as stated in the substantive appeal just discussed. Being dissatisfied with part of the decisions of the lower tribunal, the said respondent filed a cross appealed vide a notice of cross-appeal filed and dated the 31st March, 2008 with the leave of court the cross appellant filed an amended notice of cross appeal on the 6th July, 2008. The cross appellants’ brief was subsequently deemed filed and served on the 13/10/08 with the leave of court.

From the 9 grounds contained in the amended notice of cross appeal, the cross appellants had in their brief identified the following issues for the I determination of the cross appeal;

“1. Whether the conclusions of the tribunal below on the non-holding of polls in some specific polling station in Wasai and Kunya wards of Minjibir Local Government, Gyaranya ward of Gwale Local Government and in Zahirai Yamma polling unit of Zahirai ward of Gabasawa Local Government can be said to be correct in law in the absence of the joinder of the presiding officers of the said polling units.

2. Whether the tribunal was correct in law when it held that the cancellation of the election results of Tudun Wada Local Government in the disputed election were proved on the quality of evidence available before the tribunal such as to transfer the onus of rebutting the existence of election results and/or the proof of inconclusive elections to the cross appellants (respondents in the final tribunal).
3. Whether the conclusions by the tribunal to the effect that the 1st and 2nd respondents had failed to prove their objection to the votes scored by the petitioners in Bichi and Kunchi Local Government and the recalculation of the votes scored in Gwarzo ward of Gwarzo Local Government are correct in law in view of the non existence on the record of any complaint that the respondents won the said election by a majority of lawful votes?
4. Whether in the specific and peculiar circumstances of this case, the tribunal was right in faulting the respondent contention that absence of wide spread non compliance on geographical base was sufficient to cause the court to hold that the allegations of noncompliance did not affect the result of the election.”

The cross-appellant have in their brief abandoned ground eight from which their issue 4 is distilled from. They have proffered no argument on the issue. The ground and the issue having been abandoned are hereby struck out.

The 1st – 3rd cross respondents were the 1st – 3rd petitioners before the lower tribunal. In reply to the cross appeal they filed a cross respondent brief which was deemed filed and served on the 22nd of October 2008, in the said brief the cross respondent raised and argued a preliminary objection on grounds 1, 2 and 3 of the cross appeal.

The two issues raised are listed hereunder;

“1. Whether in the face of clear admission of the existence of election result in the Governorship Election in Tudun Wada Local Government of Kano State by the cross appellant the 4th cross respondent in addition to the evidence of RW1, RW19 and RW22 under cross examination the decision of the tribunal as it relates to Tudun Wada Local Government Area is sound in law.

2. Whether in the entire circumstances of this petition the cross appellants had led any credible evidence to establish a case for the objection of votes scored by the petitioners in Bichi and Kunchi Local Government Areas.”

A preliminary objection having been raised by the ‘cross-respondent on some of the grounds, I will pause here to first determine same.

Relying on Egbagbe V. Ishku (2006) All FWLR (Pt. 331) 1277 at 1295 paragraphs B – C; Opara V. Dowel Schlumberger (Nig) Ltd (2006) All FWLR (Pt. 336) 224 at 263 paragraphs C – D; Adelekan V. Ecu-Line Nv (2006) All FWLR 1213 at 1223 paragraphs B – E, the cross respondents submits that it is now trite that an appeal which includes a cross appeal especially the grounds thereof and issue distilled therefrom must be anchored on the judgment of the court below based on issues properly raised and determined by it. That where a ground of appeal is not founded on an issue properly raised before the lower court, such a ground of appeal will be incompetent and the appellate court will lack the competence to determine the issue formulated from such a ground of appeal.

The cross respondent contends that the issue of non joinder of presiding officers was never raised or canvassed before the lower tribunal, it was never determined by it nor did it form the basis of its decision. They contend that it can therefore be the basis on which the decision of the lower tribunal can be challenged. They pointed out that grounds 1, 2 and 3 of the cross appeal all raise fresh issues on non-joinder of presiding officers, to raise them the cross appellant must first obtain the leave of this court. That the crosses respondents have not obtained such leave and this renders the grounds incompetent and we were urged to strike them out.

Replying in a reply brief deemed filed on the 30th October, 2008 the cross appellant maintained that the non-joinder of relevant electoral officers who were fingered directly or indirectly as a result of allegation of corrupt practices in various forms against their respective polling units are not trivial allegation, the failure to so join them as parties goes to the root of the action and is fatal to its competence and can vitiate the entire proceedings and judgment of the tribunal. They contend it is jurisdictional and can be raised at any stage of the proceedings, even on appeal without leave – Zirdeen V. RSCSC (2007) 1 SCNJ 229 at 308 – 309. They maintained the objection is misconceived and we were urged to overrule it.

I have examined the petition and the reply of the 1st – 3rd respondents before the lower tribunal. The said respondents did not raise the issue of non joinder of INEC officials therein. After the pre-trial stage as stipulated in the Practice Directions of 2007 with the agreement of all parties to the petition two issues were raised by the parties for the determination of the petitions and none of them relate to the non-joinder of necessary parties.

An appeal as I have mentioned earlier is an extension of the matter thrashed at the trial stage. Any issue sought to be introduced outside the issue determined before the trial court becomes a new issue. A party who feels he can raise it at the appellate stage for the just determination of the matter on appeal can so raise it but he must first sought and obtains the leave of the court to do so. See Netufo V. Omoolrun (2005) 12 NWLR (Pt. 938) 1; Adedolapo V. MILAD Ondo State (2005) 17 NWLR (Pt. 955) 487; Ahinyanja V. Uni-Ilorin (2005) 7 NWLR (Pt. 923) 87.

I do agree with the cross appellant that the non-joinder of necessary parties in a matter is fundamental and may vitiate it, however to raise it he must first seek the leave of this court to do so.

This cross appellant failed to do in the instant cross appeal. I am therefore more disposed to upholding the submission of the 1st – 3rd cross respondents in its entirety. No leave was obtained to raise grounds 1, 2 and 3 of the cross appeal. I uphold the preliminary objection and find them incompetent. The three grounds with issue 1 which is formulated from them is accordingly struck out.

Issue 2 was examined and determined in the substantive appeal. I adopt my reasoning therein with regards to the election of Tudun Wada Local Government.

Issue 3 centers on the findings of the trial tribunal at pages 1561 – 1562, 1564 and 1574 they are reproduced hereunder for ease of reference;

“In view of the foregoing, we hold that the 1st and 2nd respondents as well as the 3rd respondent failed to establish their allegations in respect of the result that emanated from Bichi Local Government. They even failed to tender the results of polls issued to the various polling agents in all the polling units of Bichi Local Government as well as that issued to their respective returning officers in respect of all the wards in Bichi Local Government to show that the score of PDP in Bichi Local Government was 24,000 votes and not 84,131 votes. It is also instructive to note that no result whatsoever was tendered at all. With the answer of RW19 under cross-examination that the score stated in paragraph 7 of pages 6 to 7 of the petition are the real scores of the candidates, the legs have been removed from the table and the allegation of the 1st – 3rd respondents cannot but collapse like a pack of cards. Therefore, there is nothing for the petitioners to disprove, the onus of proof having not been shifted to them. There is therefore no merit in the complaints of the 1st to 3rd respondents on Bichi Local Government.

On the whole, we hold that 1st to 3rd respondents have failed woefully to prove their allegation of inflation of votes in Bichi Local Government and allocation of votes in Kunchi Local Government Areas of Kano State.

We wish to point out the fact that none of the senior counsel for the respondents in their respective written addresses devoted a paragraph on the results from Bichi and Kunchi Local Government Areas. It is our view that their silence is an acceptance of the fact that the 1st to 3rd respondents have not made out their case as alleged in the two Local Government Areas. On our own part, we decided to take on the two Local Government Areas and resolve the issue raised there notwithstanding the fact that none of the senior counsel to the 1st to 3rd respondents addressed us on it. The main reason why we considered the issue is firstly, the 1st to 3rd respondents pleaded the issue and the petitioners joined issue with them. In addition, evidence were adduced through RW19 and RW23, even though at the end the evidence were found to be inadmissible and incapable of establishing the case of 1st to 3rd respondents as pleaded in the two Local Government Areas. Secondly, as we have stated earlier in this judgment, we decided to resolve the issue for sake of completeness.

From the foregoing assessment therefore, the result of Gwarzo ward (Exhibit P.14(5) is the only results to be added to the results as declared in favour of the 1st petitioner and 1st respondent in Exhibit P.3. We cannot assume the results in respect of other wards and Tudun Wada Local Government Area which are neither pleaded nor placed before us. We shall accordingly proceed to add the result of Gwarzo ward. For the 1st petitioner, it will be the addition of his total score in Exhibit P.3 to his score in Exhibit P.14 (5) i.e. 629,469+2,132 which will give a total of 631,601 votes. For the 1st respondent, it will be the addition of his total score in Exhibit P.3 to his score in Exhibit P.14(5) i.e. 671,184+2,358 which will give a total of 673,542 votes. The margin as between the 1st petitioner and the 1st respondent will now be known by subtracting the total score of the 1st petitioner from the total score of the 1st respondent i.e. 673,542 – 631,601 which will give a margin of 41,941 votes. The result shows that the 1st respondent will still be leading the 1st petitioner by 41,941 votes.”

The complaint of the cross appellant on the above findings in that the issue as identified by the parties and the tribunal for the determination of the petition do not include the question of who could have won the election by a majority of lawful votes. The cross respondent submits that the 2nd issue formulated by the tribunal which seeks an annulment of the election on the ground of corrupt practices and non-compliance with the provisions of the Electoral Act displaces the ground that a party won by a majority of lawful votes. They contend that it will be a serious contradicts for the respondent before the lower tribunal to prove allegation bordering on the in calculation of votes. That by conceding to the issues raised all the parties and the tribunal were estopped from inquiring into other matters.

The second issue reproduced below:

“Whether in the entire circumstances of this petition, the said Gubernatorial Election is rendered invalid by reason of substantial non-compliance with the provisions of the Electoral Act 2006 and corrupt practices which substantially affected the outcome of the election.”

has no bearing with the quoted positions of the judgment as earlier shown to the parties and the tribunal having reached an agreement on the issue that will determine the petition will be deemed to have abandoned their pleadings in respect of other issues outside the identified issues. The respondent could not therefore be expected to adduce evidence in respect of the abandoned petition i.e. results of the Bichi, Kunchi and Gwarzo Local Government. For the lower tribunal to make a finding on them is to go outside the perimeters of what was before it.

I, in the circumstances uphold the submission of the cross-appellant on this issue. The relevant portions of the lower tribunal’s judgment as quoted in this courts’ judgment are hereby struck out. On the whole the cross-appeal is allowed in part as regards issue three.

I make no orders as to costs.

---

Other Citations: (2009)LCN/3081(CA)