Alhassan Uba Idris & Anor V. Dr. Ahmed Moh’d Salik & Ors (2009)

LawGlobal-Hub Lead Judgment Report

ABUBAKAR ABDULKADIR JEGA, J.C.A.

This is an appeal against the judgment of the National Assembly Election Tribunal Kano State delivered on the 28th day of February 2008 which dismissed the petition of the Appellants challenging the declaration and return of the 1st Respondent as the elected candidate for Dala Federal Constituency.

The facts of this appeal as can be gathered from the Record of Appeal and the briefs of argument filed by the parties are stated thus:-

The 1st Appellant and the 1st Respondent are members of the same party i.e. ANPP, the 2nd Appellant. The 2nd Appellant fielded the 1st Appellant for the 21st day of April 2007 election to the Dala Federal Constituency of the Federal House of Representatives. The 1st Appellant as the 2nd Appellant’s candidate won the election with 51,603 votes, the 3rd Respondent Tijjani Abdu Chinade (the INEC Returning officer for the election) stated that after collation and entering the name of the 1st Appellant as the 2nd Appellant’s candidate with the highest score at the collation centre, the 4th Respondent INEC Kano State Resident Electoral Commissioner showed him (the 3rd Respondent) a court Order Exhibit R2 and the Commissioner (the 4th Respondent) “cancelled the name of the 1st Petitioner, wrote the name of the 1st Respondent and endorsed the cancellation” and consequently declared the 1st Respondent as the winner of the election at the Kano State Resident Electoral Commissioner’s office (not at the collation centre for Dala Federal Constituency).

The 1st and 2nd Petitioners/Appellants were dissatisfied with the actions and conduct of INEC in cancelling the 1st Appellant’s name as the candidate of the 2nd Appellant who contested and won the election and substituting same with the name of the 1st Respondent who did not contest the election at all but was only imposed by INEC relying on an Order Exhibit R2 which:-

(a) did not direct the cancellation of the 1st Petitioner’s name as the winner of the election;

(b) was not drawn up or flow from the main Judgment of the same Federal High Court Exhibit R1; and

(c) is currently on appeal to the Court of Appeal Abuja.

The Petitioners/Appellants consequently filed a 17 paragraph petition on 17/5/07, the two sets of Respondents i.e. the 1st Respondent (the candidate who was declared the winner) on the one hand and 2nd to 4th Respondents (INEC and its officials) on the other hand opposed the petition by filing their respective replies dated 26/6/07 and 27/7/07 respectively. The Petitioners also filed a joint Reply to the petition on 5/7/07. At the conclusion of the pre-trial conferences, the only issue formulated for resolution by the Election Tribunal was:-

“Who was the candidate sponsored as between the 1st petitioner and the 1st respondent to contest election into Dala Federal Constituency on 21/4/07”.

And in its judgment the Kano State National Assembly Election Tribunal concluded its decision in these words:

“…we hold that the 1st Respondent was the candidate of the 2nd Petitioner that contested the election for Dala Federal Constituency Seat in the House of Representatives conducted by the 2nd to 4th Respondents on the 21st of April 2007 and won the said election”.

Not satisfied with the judgment of the lower tribunal, the 1st and 2nd Appellants on the 14th March 2008 filed nineteen grounds Notice of Appeal from which they have formulated six issues for determination of this Court.

The appeal was heard on the 9th of February 2009, learned counsel for the Appellants Mr. N. Jimoh informed the court that the Appellants’ brief of argument is dated and filed on 23/4/08. Learned counsel for the Appellants adopted the brief of argument. Learned counsel informed the Court that the Appellants formulated six issues for determination, he apply to withdraw Issue No.1. Learned counsel for the Appellants urged the Court to allow the appeal.

Learned senior counsel for the 1st Respondent Chief A.S. Awomolo, SAN informed the court that the 1st Respondent’s Brief of Argument is dated 5/5/08 but by an order of the Court was deemed filed on 7/7/08, learned senior counsel adopted the brief of argument and urge the court to dismiss the appeal. Further learned SAN urged the Court to dismiss issue No.1 even though it has been withdrawn.

Learned counsel for the 2nd to 4th Respondents Mr. E.Y. Kurah informed the Court that the 2nd to 4th Respondents’ brief of argument is dated 8/5/08 and deemed filed on 26/5/08. Learned counsel adopted the brief and urged the Court to dismiss the appeal.

Learned counsel for the 1st and 2nd Appellants applied to withdraw issue No.1, the application to withdraw issue No.1 is granted and accordingly issue No.1 as formulated by the 1st and 2nd Appellants is struck out.

With the striking out of Issue No.1, the Appellants are left with five Issues – the Issues are stated thus:-

1. “Whether the Tribunal had jurisdiction to determine that the 1st Respondent was a candidate at the election.
2. Whether the Tribunal was right (a) to determine that the 1st Respondent was a candidate at the election that won the April 21st 2007 election to the Dala Federal Constituency of the House of Representatives; and (b) in refusing to determine the propriety of the 2nd to 4th Respondents in altering Exhibit P1 the result of the election.
3. Whether the failure of the 1st Respondent in calling evidence but resting his case on the Petitioners’ case is not fatal in the entire circumstances of this case.
4. Whether the failure to consider the whole Grounds i, ii, iii and iv of the petition is not breach of Petitioners’ right to fair hearing?
5. Whether Exhibits R1 and R2 cannot be considered by the Tribunal and did not nullified the candidature and victory of the 1st Petitioner at the election”?

Learned senior counsel for the 1st Respondent formulated five issues for determination. The Issues are:-

1. “Whether the National Assembly Election Tribunal had the jurisdiction to determine “who was the candidate sponsored as between the 1st Petitioner and the 1st Respondent to contest election into Dala Federal Constituency on 21/4/07″.
2. Whether the judgment of the National Assembly Election Tribunal which dismissed the Appellants’ petition is adversely affected by the change in the composition of the Tribunal that delivered the judgment and the dates contained below the signature of the three members of the Tribunal in the judgment.
3. Whether the National Assembly Election Tribunal was justified in the conclusions that the 1st Respondent was the candidate whose name was first submitted as candidate for Dala Federal constituency before Exhibit 6, dated 11 January 2007 wherein the name of the 1st Petitioner/Appellant was submitted to replace the 1st Respondent as the candidate for Dala Federal constituency.
4. Whether the 1st Respondent’s option to rest his case on the evidence before Tribunal was fatal and whether the Electoral officer properly acted when he declared and returned the 1st Respondent as the candidate of ANPP who contested and who won the election of 21/4/07.
5. Whether the failure of the Election Tribunal to consider grounds ii, iii and iv of the petition was a breach of the Appellants’ right to fair hearing.”

Learned counsel for the 2nd to 4th Respondents on his part formulated three issues for determination, the issues are stated as follows:-

1. “Whether the judgment of the Honourable Tribunal is a nullity based on the fact that same was delivered by Hon. Justice A.A. Adebara and the other members of the Tribunal dated same prior to the date of delivery.
2. In view of the judgment of the Federal High Court and its enrolled order in Suit No. FHC/CS/70/2007, whether the judgment of the lower tribunal is sustainable.
3. Whether the lower Tribunal was right in using the Petitioners’ evidence both oral and documentary in holding that the 1st Appellant had proved the case of the 1st Respondent.”

After a careful consideration of the issues formulated I am of the firm view that two issues to be formulated by the court can adequately dispose of this appeal.

1. Whether from the totality of the facts of this appeal and the evidence adduced before the lower tribunal, the said lower Tribunal was justified in its finding and holding that the 1st Respondent was the candidate of the 2nd Petitioner that contested and won the election for Dala Federal Constituency Seat in the House of Representatives Election conducted by the 2nd to 4th Respondents on the 21st of April, 2007.
2. Whether the Tribunal was right in refusing to determine the propriety of the 2nd to 4th Respondents in altering Exhibit P1 the result of the election.

ISSUE No.1: Whether from the totality of the facts of this appeal and the evidence adduced before the lower tribunal, the said lower tribunal was justified in its finding and holding that the 1st Respondent was the candidate of the 2nd Petitioner that contested and won the election for the Dala Federal Constituency Seat in the House of Representatives conducted by the 2nd to 4th Respondents on the 21st of April, 2007.

Learned counsel for the 1st and 2nd Appellants referred to paragraph 2 of the 1st Schedule which provides thus:-

“At the hearing of election petition complaining of an undue return and claiming the seat or office for a petitioner, the respondent may subject to the provisions of subparagraph (2) of Paragraph 12 of this Schedule give evidence to prove that the election of the petitioner was undue in the same manner as if he were the person presenting the election petition complaining of the election.”

Learned counsel for the Appellants also referred to Paragraph 12 (2) of the 1st Schedule which provides thus:-

“Where the respondent in an election petition complaining of an undue return and claiming the seat or office for a petitioner intends to prove that the claim is incorrect or false, the respondent in his reply shall set out the facts and figures clearly and distinctly disproving the claim of the petitioner.”

Learned counsel for the 1st and 2nd Appellants submitted that the procedure expected from the Respondent is that upon being served with the petition, the Respondent who intends to prove that the claim is incorrect or false shall set out the facts in his reply. That the Petitioners will call evidence but the Respondent may then give evidence to prove the petition otherwise. Learned counsel for the 1st and 2nd Appellants contends that in this petition, the 1st Respondent has failed or refused voluntarily to give evidence to prove that the election of the Petitioner was undue and that the 1st Respondent has chosen to rest his case on the Petitioners’ case i.e. the evidence and exhibits so far presented, for the legal consequence of this position learned counsel referred the court to Iyiola Ogunjumo & Ors V Muritala Ademolu & Ors (1995) 4 NWLR (Pt.389)254 at 268; Toriola & Ors V. Williams (1982) NSCC Vol 13, 182; Akambi V Alao (1989)3 NWLR (Pt.108) 118; Mobil V Monokpo (2003) 16 NSCQR 448 at 484, 486.

Learned counsel for the 1st & 2nd Appellants submits that the burden of proof in electoral case is similar to those of civil actions. That it is static in some areas and shift from one party to the other in other areas – that the general rule is to the effect that he who asserts must prove as provided for in Section 137 of the Evidence Act Cap 112 LFN 1990. That the standard of proof in civil matters is upon the preponderance of evidence and the onus is on the petitioner who is alleging non-compliance to a particular provision of the law to prove his case. In other words, the petitioner must lead evidence that is relevant to prove his allegation or claims before the election tribunal. That the Petitioners called 4 witnesses and after the testimony of the four witnesses called by the Petitioners, the Petitioners’ case was closed and the 1st Respondent elected to rest his case on the Petitioners’ case. Learned counsel for the 1st and 2nd Appellants contends that quite clearly the Petitioners have proved their case on the preponderance of evidence before the Tribunal.

It is submitted for the Appellants that the 2nd to 4th Respondents testified through the 3rd Respondent who by virtue of Section 28 (c) of the Electoral Act 2006 is the Chief Electoral Officer of the Federal Constituency. His evidence shows that he wrote the 1st Petitioner’s name as the 2nd Petitioner’s candidate and he announced the number of votes of each party at the collation centre. He states that when he discovers the true state of affair he cancelled the 1st Petitioner’s name and wrote the 1st Respondent’s name and declares him as the winner of the election. Under cross examination, he confirmed that the collation and writing of the 1st Petitioner’s name and filling the score was at the Dala Federal Constituency collation centre but he was later invited on phone to the 4th Respondent’s office and the 4th Respondent showed him the Order – he confirmed that the Order Exhibit R2 does not contain the 1st Petitioner’s name, he was not allowed to explain his understanding of the wordings of the Order whether it directed him to cancel any name and endorse another name but he agreed that the Order was made on 15th March 2007 and no list was published to the best of his knowledge till 21st April 2007 when the election took place to show that they are obeying the Court Order before the election and not that they just wake up and miraculously realized that the Order need be obeyed and their own way of understanding the Order. The witness confirmed that as the Chief Electoral Officer for the constituency, the 1st Petitioner remained the 2nd Petitioner’s candidate for the election from 15th March 2007 when the Order Exhibit R2 was made to 21st April 2007 when election took place. He stated that the only reason why he cancelled the 1st Petitioner’s name and endorse the 1st Respondent’s name was just because the Order Exhibit R2 and no more. He confirmed that all the INEC lists Exhibits P2, P3 and P8 contained the 1st Petitioner’s name and they are the only INEC list for the election and they do not contain the 1st Respondent’s name. That Exhibit P5, the list of substituted candidates does not contain substitution of any candidate for one another for the Dala Federal Constituency. He confirmed that it is only the Liaison Officer of the party who can properly and officially take and submit Forms and correspondences between the political party and INEC.

Learned counsel for the Appellants submits that considering the totality of the evidence of the five witnesses before the Tribunal, the 1st Respondent elected to stand or fall with it. That a full consideration of the evidence shows that the 2nd Petitioner was unshaken as to its true candidate so also, the 2nd Respondent was unshaken as to the fact that the 1st Petitioner was the candidate at the election. It is submitted for the Appellants that the 2nd Petitioner have clearly shown that its nominated candidate is the 1st Petitioner and it was proved that INEC declared and confirmed his candidature for the polls. That the 2nd Petitioner also proof that it never nominated but disqualified the 1st Respondent – reference made to PPA V. Saraki (2007) 17 NWLR (Pt.1064) 403 at 509.

Learned counsel for the 1st and 2nd Appellants contends that the Petitioners/Appellants have proved their case and burden of proof has shifted to the 1st Respondent to prove that the 1st Petitioner is not but himself was the candidate who contested the election, that the Petitioners’/Appellants’ case is in line with the pleadings and entitled them to judgment as claimed. That the 1st Respondent who took the gamble that the Petitioners’ evidence cannot sustain its claim must fail in his dangerous gamble. That on the face of the overwhelming evidence before the court, the 1st Respondent rested his case on Exhibits R1 to R17 and the evidence of the 1st Petitioner and his witnesses in so far as they established the case of the 1st Respondent – reference made to pages 793-794 of the Record of Proceedings.

Finally learned counsel for the 1st & 2nd Appellants submitted that the failure of the 1st Respondent to lead evidence in support of his pleadings is fatal to his case and the evidence of the Petitioners remained unchallenged and unassailable and liable to be accepted. We are urged to accept the evidence in favour of the Petitioners/Appellants.

In response to the submissions of the learned counsel to the 1st & 2nd Appellants, learned senior counsel for the 1st Respondent contends that the Appellants under this issue complained of three maters which were decided against them. These are that –

(1) The Tribunal’s finding that the 1st Respondent was the candidate of the 2nd Appellant before the 11th of January 2007 was not correct because the Appellants and their witnesses earlier gave evidence to the contrary.

(2) That there was no cogent evidence to prove that the 1st Appellant’s name was submitted to the Respondent to substitute the 1st Respondent as candidate for Dala Federal Constituency because the 1st Appellant’s name was variously published by INEC.

(3) That there was no evidence that the 1st Respondent participated in the election but that he was unlawfully substituted as the successful candidate after the election.

Learned senior counsel for the 1st Respondent submits that the findings and conclusions reached by the Election Tribunal was justified and supported by admissions of the Appellants available before the Tribunal.

Learned SAN for the 1st Respondent contends that the Appellants in their pleadings contained in their petition falsely claimed that the 1st Respondent was never a candidate of the All Nigeria Peoples Party (ANPP) (2nd Appellant) at the election of the 21st April 2007. Learned senior counsel referred to the Appellant’s paragraph 8 of the Petitioners’ pleading which states as follows:-

(a) “The 1st Respondent was not a candidate at the election. He was not nominated by any Party, not screened by the 2nd Respondent, he did not collect any Form for election or fill any affidavit or comply with any of the 2nd Respondent’s guidelines or regulations for the election.

(b) The second petitioner never nominated or sponsored the 1st respondent as a candidate for Dala Federal Constituency Seat of the House of Representatives.”

Learned senior counsel for the 1st Respondent submits that the Appellants’ witnesses as shown in the judgment chorused all the lies “in their evidence- in-chief’ but turned roundabout under cross-examination and admitted contrary to the pleadings of the Appellants. That the complaint that because the Tribunal did not state that it disbelieved the evidence of their witnesses meant that the witnesses gave credible evidence is a misunderstanding of what a judgment must contained. Learned senior counsel for the 1st Respondent urged the Court to note that a trial court is not bound to repeat worthless evidence that have been shown to be false. He then referred to the evidence of the Appellants’ witnesses which contradicted their pleadings and given against the interest of the Petitioners/Appellants’ evidence-in-chief sufficiently dispose the argument of credibility.

Further, learned senior counsel for the 1st Respondent referred to the Appellants’ submissions in their brief at page 11 when they submitted thus:-

“It is submitted that Section 34 of the Electoral Act 2006 only expands the jurisdiction of the courts not the election petition tribunals. The issues raised in Section 34 of the Electoral Act is a pre-election issue rightly decided by the courts in celebrated cases of UGWU V. ARARUME; AMEACHI V. INEC. It is respectfully submitted that it is not the business of the Election Petition Tribunal”.

They concluded:

“The Tribunal seems with respect to be seeing the candidate through the eye of the law. The candidate of a political party in an election is not a matter of conjecture but a matter of fact – who contested the election and who won the election, anything outside this is outside the jurisdictional limit of the Tribunal. That duty is reserved for the civil court.”

Learned senior counsel for the 1st Respondent posed the question how else does a court look for truth other than through the eyes of the law? That it is what the law says irrespective of falsehood bandied around as fact. The court is an arbiter with power to separate the truth from falsehood and in the interest of justice act on the truth and disregard falsehood. We are urged to note that the Appellants argued the appeal as if this Court is a court of trial. We are urged to affirm the decision of the trial Election Tribunal and dismiss the complaint of the Appellants.

Learned senior counsel for the 1st Respondent argues that the 1st Respondent at the close of evidence of the Petitioner told the Election Tribunal thus:-

“The 1st respondent will not lead evidence but will rest his case on Exhibit R1-R17 and the evidence of the petitioner and his witnesses in so far as they had established the case of the 1st Respondent I pray that this petition be dismissed.”

Learned senior counsel for the 1st Respondent submits that a defendant/respondent is not obliged to give evidence where during the trial, he has established his defence or case through the witnesses of the plaintiff/petitioner or that he had tendered documents which counter the plaintiff’s claim or satisfactorily established his defence or that through cross-examination he has extracted evidence which supports his case as made out in the statement of defence.

That this principle has been well settled in plethora of cases. Reference made to Ali V. Obande (1999)9 NWLR (Pt.620)563 at 577; Fasehun V. Pharco (Nig) Ltd (1965)1 NMLR 441 at 444; Olasope V N.B.N (1985)3 NWLR (Pt. 11) 147. Learned senior counsel for the 1st Respondent contends that in this appeal, the defence of the 1st Respondent was that he was the candidate nominated by ANPP to contest the general elections of 21/4/2007 to the House of Representatives for Dala Federal Constituency.

That he contested primaries conducted by the National Officers of the 2nd Appellant (ANPP) and won as the party flag bearer. That he was given party nomination Form as candidate sponsored by the party (ANPP) which was signed by members in the Dala Federal Constituency. That he paid all party dues from the Ward to the National level of ANPP. That he bought and filed INEC nomination Form and that he also submitted affidavit of personal information as required by the Electoral Act, 2006. That he tendered all the documents of nominations through petitioners’ witnesses and cross-examined them on it. He was substituted with the 1st petitioner as candidate for Dala Federal Constituency by ANPP. He instituted an action in the Federal High Court, Abuja to challenge the substitution. The court found in his favour by nullifying the letter of substitution. The judgment has not been set aside. That he satisfied all the requirements of the Electoral Act as a candidate of ANPP for House of Representatives. He contested the election, won and was declared by the INEC as the candidate returned.

The Court is urged to note that all these were well laid out in Exhibits P1, P2, P5, P6 and R1 – R17 most of which were admitted without objection and where there were objections, they were overruled and there is no appeal against the admission of the Exhibits. That these documents were admitted through the Petitioners’/Appellants’ witnesses who admitted the accuracy and truth of the documents. That the Appellants and their witnesses gave evidence under cross-examination which supported the case of the 1st Respondent, adverse to the case of the Appellants. The only witness to INEC, RW1, gave evidence which supports the pleadings of the 1st Respondent.

Further, learned senior counsel for the 1st Respondent submitted that the decision of the 1st Respondent to rest his case on all these relevant evidence is not fatal to his defence. He did not abandon his case as he tendered all the documents pleaded and extracted under cross-examination sufficient and material evidence from all the witnesses who testified before the Tribunal – reference made to Ayoola V. Yahaya (2005)7 NWLR (Pt.923)122 at 140. Learned senior counsel for the 1st Respondent argues that the evidence of the Appellants were sufficient admissions against interest of the Appellants. That the documents tendered speak for the 1st Respondent. So it was not in any way fatal to the case of the 1st Respondent that he did not give evidence.

In his reply to the submissions of learned counsel to the 1st to 4th Respondents, contends that from the Records, the 1st Respondent and indeed even the 2nd to 4th Respondents, tendered a lot of documents through the 1st Petitioner and his witnesses and also elicited some pieces of evidence through the Petitioners’/Appellants’ witnesses to establish the averments in the Reply to the petition. At the conclusion of the Petitioners’ /Appellants’ case at the lower tribunal, the 1st Respondent merely rested his case on the Petitioners’ case thereby declining to lead evidence.

The lower tribunal after analyzing the pleadings and the evidence led rightly came to the conclusion that the 1st Respondent proved his case through the Petitioners’ evidence.

Learned counsel for the 2nd to 4th Respondents submits that it is settled principle of law that a party is not bound to testify in a matter if he can otherwise prove his case and where a trial court considers the evidence led by a plaintiff and discovers that such evidence supports the case of the defendant who has not called evidence, the court must decide in favour of the defendant. Further more, if a plaintiff is unable to prove his case the defendant does not need to call evidence – reference made to Olagunju V. Yah’Ayah (2005) All FWLR (Pt.247) 1466 at 1485; Agbi V. Ogbeh (2006) All FWLR (Pt.329)941 at 973; Obun V. Ebu (2006) All FWLR (Pt.327) 419 at 454.

Further, it is submitted for the 2nd to 4th Respondents that the fact that the Petitioners called witnesses and their evidence remained unchallenged by the 1st Respondent does not automatically entitle them (Petitioners/Appellants) to judgment. The evidence must be evaluated by the Tribunal to see whether such evidence proved the case set up by them. And since the Tribunal found as a fact that evidence adduced by the Petitioners supported the 1st Respondent’s pleadings, it rightly relied on same to find for the 1st Respondent while dismissing the Petitioners/Appellants’ case – reference made to Abdullahi V. Military Administrator & Drs (2004) All FWLR (Pt.214) 112 at 123. Learned counsel for the 2nd to 4th Respondents urged us to refuse this appeal and to have same dismissed.

ISSUE No.1 – whether from the totality of the facts and the evidence adduced before the lower tribunal, the said lower tribunal was justified in its finding and holding that the 1st Respondent was the candidate of the 2nd Petitioner that contested and won the election for the Dala Federal Constituency Seat in the House of Representatives conducted by the 2nd to 4th Respondents on 21st April 2007.

To resolve this issue, it is pertinent to look at the totality of the evidence adduced before the Tribunal by the contesting parties at the trial before the Tribunal. Four witnesses testified for the Appellants; one witness testified for the 2nd to 4th Respondents and several documents were tendered by the parties while the 1st Respondent did not testify nor call any witness.

PW1 – Yunusa Dukurawa: He confirmed that he made a written statement on oath in the petition and having affirmed the said deposition, same was adopted as his evidence-in-chief before the Tribunal. He told the Tribunal that he was the 2nd Petitioner’s Returning Officer for Dala Local Government during the last election to the House of Representatives. His duties then included supervision and collation of results from all the Wards of the Local Government level. He told the Tribunal that the candidate that was sponsored by the 2nd Petitioner for Dala Federal Constituency for the House of Representatives election of 21st April 2007 was the 1st Petitioner. It was also the evidence of this witness that the Petitioners got the highest number of votes cast at the election which is 51,603 votes.

The witness further stated that the 1st Respondent did not take part in the Hose of Representatives election to Dala Constituency held on 21st day of April, 2007. The 1st Respondent was not nominated or sponsored by their party the 2nd Respondent. Also, the 1st Respondent did not fulfill any requirement whatsoever of the 2nd Respondent. Therefore he was not qualified to contest the election.

The witness further stated that before the declaration of Result, the Returning Officer i.e. the 3rd Respondent received a phone call from the 4th Respondent to report to INEC State Headquarters, Kano. The 3rd Respondent informed them that there was a case between the 1st Respondent and the 1st Petitioner and because of that he could not declare anyone but the party. The declaration would be at Kano State Headquarters of INEC. He however, stated that he was given a carbon copy of the declaration of result sheet which had been filled from top to column 10 with no cancellation of the 1st Petitioner’s name. At INEC Headquarters, the 4th Respondent presented him with a court judgment and asked him to read. The witness told the 4th Respondent that he did not work with court’s judgment. The 4th Respondent then demanded for the carbon copy of the statement of result already in the custody of the witness but the witness refused to surrender same. The copy in the custody of the witness was later forcefully taken away from him by armed policemen. The 4th Respondent then ordered 3rd Respondent to cancel the name of the 1st Petitioner and score recorded against his name. The 4th Respondent personally filled column 11 in his own hand writing and crossed the remaining columns with 3 lines and filled Clause 4 of the Declaration of Result of Election with the name of the 2nd Petitioner. The 4th Respondent also signed and stamped same.

Under cross-examination the witness maintained that the 1st Respondent was never nominated by the party and the INEC List did not show that the 1st Respondent’s name at all and that the Respondents tried to force him to interpret the court judgment and court Order of the Federal High Court – Exhibits R1 & R2 respectively and to interpret ANPP letter dated 11th January 2007 signed by Senator Saidu U. Kumo ANPP National Secretary Exhibit P6.

PW2 – Alh. Shuaibu Umar: His deposition attached to the petition on pages 14-17 was adopted as his evidence-in-chief before the Tribunal. His evidence is to the effect that he is a registered member of the 2nd Petitioner and acted as the liaison officer between ANPP and INEC. He stated that the 1st Petitioner was the candidate sponsored by the 2nd Petitioner to contest for Dala Federal Constituency Seat of the House of Representatives. That he personally and officially submitted the documents of the 1st Petitioner to the 2nd Respondent. The documents he submitted to the 2nd Respondent included duly filed and sworn affidavit in support of personal particulars of persons seeking election and 2007 Election Nomination Form for House of Representatives showing the number of the candidate as Hon. Comrade Alhassan Uba Idris. The witness stated that he delivered the documents to the person in charge of documents at the 2nd Respondent’s office. After the official and final listing of all candidates for the 2007 election, the witness stated that he collected INEC Kano State list of House of Representatives’ candidates for 2007 election in respect of his party ANPP. He also collected INEC Kano State list of House of Representatives candidates for 2007 election in respect of Dala Constituency. He stated that in all the two documents the only official candidate of the 2nd Petitioner was the 1st Petitioner, Comrade Alhassan Uba Idris.

The witness also stated that he knows that Dr. Ahmed Salik as a Card carrying member of the 2nd Petitioner and at the time of his deposition, Dr. Salik was serving as Hon. Member of the House of Representatives under the platform of the 2nd Petitioner. However, he stated that the 1st Respondent was neither nominated nor sponsored by the 2nd Petitioner – he was not a candidate at the just concluded 2007 election to the Hose of Representative for Dala Federal Constituency or any election under the platform of the 2nd Petitioner. The witness further stated that he was surprised that the 2nd Respondent declared him as the winner of the election when he did not contest any election. He also stated that after the election when the 2nd Petitioner heard that the 2nd to 4th Respondents had substituted the name of the 1st Petitioner, it protested by a letter dated 23rd April 2007 duly signed by its National Chairman and National Secretary. The witness stated that the return of 1st Respondent as the person who scored the highest number of votes when he did not contest the election and was not sponsored by the 2nd Petitioner was undue.

Under cross-examination, the witness stated that every successful candidate of ANPP was given INEC Nomination Form EC 4B (iv) and affidavit in support of personal particulars Form CF001 for 2007 election. He stated that before 11/1/07 the 1st Respondent was given the two Forms as the successful candidate of the ANPP. He further stated that Exhibit P6 was written on 11/1/07 and that before Exhibit P6 was written the candidate for Dala Federal Constituency was Dr Ahmed M. Salik. That the letter Exhibit P6 introduced the 1st Petitioner as the candidate of ANPP for the first time. The witness told the Tribunal that he was not aware that Dr. Salik went to Federal High Court Abuja to challenge his substitution. He also stated that he was not aware that the Federal High Court nullified the replacement of Dr Ahmed Moh’d Salik. He also told the Tribunal that ANPP is the 2nd Petitioner and it won the election conducted on 21/4/2007 for Dala Federal Constituency. He further stated that he does not know whether Dr Ahmed Salik won the primaries for Dala Federal Constituency.

PW III – Alh Nura Hassan Shehu: His deposition was adopted as his evidence- in-chief – he stated that he is the Chairman ANPP Dala Local Government. The evidence of this witness states that the 1st Petitioner was the candidate of the 2nd Petitioner at the election of 21st April, 2007 into Dala Federal Constituency of the House of Representatives. That apart from the 1st Petitioner, they did not have any other candidate for Dala Federal Constituency. He admitted knowing the 1st Respondent as card carrying party member and a member of House of Representatives representing Dala Federal Constituency. He said the 1st Respondent was disqualified from contesting any elective position until he reconciles with Kano stakeholders of the party. He stated that the fact leading to the 1st Respondent’s disqualification was from the ANPP State Headquarters. A letter was written by the 2nd Petitioner stating reasons why the 1st Respondent was disqualified. The 1st Respondent too was written and he (the witness) served the 1st Respondent with own letter. The said service was effected on 10/12/06. The witness further stated that since the issuance of that letter he considered the 1st Respondent not a party candidate for Dala Federal Constituency to the House of Representatives. The witness stated that there was no primary election at all where the 1st Respondent was a candidate and at no time was the 1st Respondent nominated or sponsored by the 2nd Petitioner for any post in the 2007 general election.

Under cross-examination, the witness denied knowledge of any payment to the party; he denied his signature in Exhibit R4; he denied clearing the 1st Respondent for the election; and also denied issuing Exhibit R5. PW3 confirmed as the Local Government/Constituency Chairman of the party that already no name was submitted before the name of the 1st Petitioner. Under cross-examination by J.Y. Kurah Esq. he confirmed and tendered Exhibit R9 showing the 1st Petitioner as a consensus candidate.

PW4 – is the 1st Petitioner, Comrade Alhassan Uba Idris. His depositions were adopted as his evidence-in-chief. His evidence is to the effect that he contested the April 2007 election for Dala Federal Constituency seat of the House of Representatives under the platform of the 2nd Petitioner. He stated that he contested the election alongside other contestants from other political parties and that he won the election having polled a total of 51,603 votes. That his agent Yunusa Mohammed Dukurawa (PW1) was given his copy of the result sheet showing him as the winner of the election and the 3rd Respondent declared them i.e. himself and the 2nd Petitioner as the winners of the election. He stated that the 4th Respondent cancelled the result sheet issued to his agent after collecting it from the agent forcefully and filled in the next slot column 11 of the 1st Respondent and fixed the same number of votes scored by him against the 1st Respondent. He stated that the 1st Respondent was not nominated by the 2nd Petitioner or any party at all and that the 1st Respondent did not take any Form or filled any Form either from the 2nd Petitioner or 2nd Respondent. That the 2nd Petitioner had written at various times confirming him as its candidate.

That he was only substituted after election had taken place which is against the schedule and time table of the 2nd Respondent. He stated that he was not aware of the Suit filed by the 1st Respondent until after the election when the 4th Respondent changed his name as the winner of the election with that of the 1st Respondent. That the judgment of the Federal High Court did not grant any of the reliefs sought. Finally, the witness concluded his evidence with prayers to declare the return of the 1st Respondent not valid and to nullify the election and return and declare him as the candidate that met all the requirements of the law and who scored the highest number of votes cast at the election. He then urged that he be declared the winner and be returned as elected into the Dala Federal Constituency of the House of Representatives and that the 2nd to 4th Respondents be directed to forthwith issue a certificate of return in his favour.

RW1: Tijani Abdu Chinade – the Returning officer for Dala Federal Constituency in the House of Representatives election of 21st April, 2007. His deposition was adopted as his evidence- in-chief. His evidence is to the effect that he was the Returning officer for Dala Federal Constituency of Kano State during the last National Assembly Election on 21/4/07. He stated that he was aware that the name of the 1st Respondent was submitted to the 2nd Respondent by the 2nd Petitioner as a candidate at the election sometimes in December 2006. That he was also aware that the 2nd Petitioner by a letter to the 2nd Respondent purportedly substituted the 1st Respondent with the Petitioner as its candidate. That he became aware of a judgment of the Federal High Court, Abuja nullifying the said substitution of the 1st Respondent – therefore as an umpire, each time there was a substitution or change they effected the same on their records. He further stated that during the collation of results he wrote the name of the 1st Petitioner as the candidate of the 2nd Petitioner but on discovery of the true state of affairs, particularly owing to the court Order, he cancelled the name of the 1st Petitioner and wrote the name of the 1st Respondent and endorsed the cancellation. He stated that he had earlier announced the number of votes of each party at the collation centre and that although he wrote the name of the 1st Petitioner on the result list as a candidate which name he deleted and endorsed, he was neither neither declared the winner nor returned elected. He further stated that the 1st Respondent having polled the highest number of votes at the election he declared him as the winner of the election. That it was the 1st Respondent that was declared winner and consequently returned elected.

Under cross-examination by the learned counsel to the 1st Respondent witness confirmed that the candidate with Exhibits R12 and R13 is the 1st Respondent in this petition Dr Ahmed Mohammed Salik and to the best of his knowledge the 1st Respondent complied with all the statutory requirements as prescribed under the Electoral Act. He stated that although Exhibit P.6 purports to substitute Alhassan Uba Idris for Dr. Ahmed Moh’d Salik i.e. the 1st Petitioner for the 1st Respondent, Exhibit R2 restrained it from substituting it with the name of the 1st Respondent with any other name the Order Exhibit P6 (the purported letter of substitution). Therefore INEC complied with the order of the Federal High Court i.e. Exhibit R2.

He further stated that to the best of his knowledge the name of the 1st Respondent was advertised as the candidate for ANPP for Dala Federal Constituency and also to the best of his knowledge the court order contained in Exhibit R2 has not been set aside – therefore he declared the 1st Respondent as the winner of the elections into the Dala Federal Constituency based on the Order they received in Exhibit R2. And that at the time he declared Dr Ahmed Salik as the winner of the election he was the candidate that satisfied the requirements of the Electoral Act. And that Dr Ahmed Mohammed Salik was the candidate of ANPP pursuant to the order of the court.

Under cross-examination by the learned counsel to the 1st & 2nd Petitioners/Appellants, the witness maintained that he cancelled the 1st Petitioner’s name because of the court order. That the court order was shown to him by the 4th Respondent – the Resident Electoral Commissioner of Kano State in his office the witness further stated that the court order did not direct him to cancel anybody’s name and that he cancelled the 1st Petitioner’s name in the office of the Resident Electoral Commissioner when he saw the court order Exhibit R2 not at the collation centre. That the order Exhibit R2 does not contain the name of the 1st Petitioner and does not refer to Exhibit P6.

Still under cross-examination the witness stated that Exhibit R2 was made on 15/3/07 while the election was conducted on 21/4/07. Between 15/3/07 and 21/3/07 the name of the 1st Respondent was not published and between the two dates supra the candidate was the 1st Petitioner. The witness admitted cancelling the name of the 1st Petitioner after the election when he saw the court order. That if he had not seen the court order, he would not have cancelled the 1st Petitioner’s name. In effect, the witness admitted that there was no list in which the name of the 1st Respondent was contained in INEC Published List for Dala Federal Constituency. The witness further stated that the list in Exhibit R14 is the list of ANPP members of House of Representatives and that before the Election, Dr Ahmed Salik was a member of House of Representatives. Further the witness stated that Exhibit R12 and 13 were the Forms filled by Dr Ahmed Salik but he did not know they were delivered to INEC and that Exhibit R13 was certified on 12/4/07. The witness further stated that Exhibits R12 and R13 do not contain acknowledgement from INEC but Exhibit P4 is the acknowledgment from INEC of the 1st Petitioner’s Form. That by Exhibit P9 the last date for submission of nomination Forms was the 29th January 2007. The witness further admitted that by Paragraph 9 (b) of Exhibit P9 the last day for substitution of candidate is February 20th 2007 and as at that date, the Order in Exhibit R2 was not in existence – it being made on 15/3/07.

On the issue of cancellation of the 1st Petitioner’s name and writing the 1st Respondent’s name on the declaration of result sheet, the witness stated that the characters that wrote the name of the 1st Petitioner are no different from the one which the 1st Respondent’s name was written and he was the person who wrote the two names on the result sheet. Further the witness admitted that the name of Dr Ahmed Salik did not appear in INEC List published at INEC Website after election.

The foregoing is the totality of the deposition and oral evidence placed before the trial Tribunal apart from the numerous documents placed before it as Exhibits constituting documentary evidence.

The trial Tribunal in its finding at pages 863 to 864 of the printed record states thus:-

“Even though all the witnesses for the petitioners inclusive of the 1st petitioner who testified as PW4 in their respective evidence-in-chief maintained that the 1st Respondent was never sponsored by the 2nd petitioner for Dala Federal Constituency and was never substituted by the Petitioners; which evidence support the Petitioners’ pleadings, but for the answer given under cross-examination and the documents tendered as Exhibits especially Exhibit P6, it is proved that the 1st Respondent was the candidate sponsored by the 2nd petitioner until exhibit was written to the 2nd Respondent with the 1st Petitioner as the candidate of the 2nd petitioner for the election. Xxx

From our findings we are in agreement with the submission of the learned senior counsel for the 1st Respondent that the 1st Respondent was the 2nd petitioner’s candidate for the Dala Federal Constituency until Exhibit P6 was written and delivered to the 2nd respondent. We so hold.

By virtue of Exhibit P6 the 1st Respondent from the 11th of January 2007 was no longer the candidate of the 2nd petitioner it was the 1st Petitioner.”

From the foregoing passage in the judgment of the trial Tribunal, the trial Tribunal itself conceded that all the witnesses of the petitioners in their evidence in chief maintained that the 1st Respondent was never sponsored by the 2nd Petitioner for the Dala Federal Constituency and was never substituted by the petitioners.

The sole witness for the defence RW1 stated under cross-examination at page 799 of the Record of proceedings thus:-

“Between 15/3/07 to 21/4/07 before setting my eyes on the Order Exhibit R.2, the candidate at the election was the 1st Petitioner. If I did not see the court Order I would not have cancelled the 1st Petitioner’s name after the election and collation. I was merely obeying the Order of the court. Xxx in Exhibits P2, P3 and P8 the name of the 1st Petitioner was reflected as the candidate for ANPP for Dala Federal Constituency. Exhibit P3 is the list given to me during the election and is the only list I know. Exhibit P3 contain the 1st Petitioner’s name and does not contain the 1st Respondent’s name. I do not have any list containing the name of Ahmed M. Salik the 1st Respondent. The document now shown to me is Exhibit P5. It is a list for substituted candidates.

Exhibit P5 does not contain any substitution for Dala Local Government; substitution comes on INEC LIST not party list as I only know my INEC List not party list.” (Underlining mine for emphasis)

With the above testimony of RW1, it is beyond dispute that all the five witnesses that testified before the trial Tribunal gave direct and cogent evidence that the 1st Petitioner/Appellant was the candidate that was sponsored by the 2nd Petitioner/Appellant for Dala Federal Constituency and the 1st Respondent was not sponsored by the 2nd Petitioner for the Dala Federal Constituency and was never substituted with the 1st Petitioner.

Again Exhibits placed before the Tribunal which constitute documentary evidence clearly shows that the 1st Petitioner/Appellant was the candidate nominated and published – this can be seen clearly from Exhibits P16, P8, P6, P2, P3, P8, P7, P15, P23 and P24.

Documentary evidence was placed before the trial Tribunal to show that the 1st Respondent was not a candidate at the election sponsored by any party and this can be seen clearly through Exhibits P12, P13 and P14 which clearly contravenes the provision of Section 65(2) (b) of the 1999 Constitution.

Again documentary evidence was placed before the Tribunal to show that the 1st Petitioner/Appellant was the candidate recognized by INEC and this was done through Exhibits P2, P3 and P8.

The Petitioners/Appellants have placed before the trial Tribunal overwhelming evidence both oral and documentary which had not been challenged in anyway to show that the 1st Petitioner/Appellant was the only candidate ever nominated, sponsored and published by the 2nd Petitioner for Dala Federal Constituency. There is also overwhelming evidence oral and documentary which had never been challenged in anyway which clearly shows that the 1st Petitioner was the only candidate ever recognized by the 2nd Respondent INEC as the candidate sponsored by the 2nd Petitioner for Dala Federal Constituency Election to the Federal House of Representatives.

At the trial Tribunal, the 1st Respondent did not call any witness and did not testify and from the totality of evidence both oral and documentary there was no evidence whatsoever to suggest that the 1st Respondent was ever sponsored by the 2nd Petitioner/Appellant for Dala Federal Constituency election into the House of Representatives.

All the five witnesses that testified before the trial Tribunal gave cogent evidence that the 1st Respondent was never sponsored by the 2nd Petitioner/Appellant for Dala Federal Constituency and Exhibit P13 emanating from the 2nd Petitioner/Appellant clearly and in no uncertain terms disqualified the 1st Respondent from contesting any elective position under the platform of the 2nd Petitioner.

The 1st Respondent relied on Exhibit P6 to claim that the 1st Petitioner was a substitute for him for Dala Federal Constituency candidacy for the Federal House of Representatives, there was nothing in Exhibit P6 to suggest that the 1st Respondent was ever a candidate sponsored by the 2nd Petitioner to be replaced by Comrade Alhassan Uba Idris – his name was never mentioned in Exhibit P6 as a candidate already sponsored by the 2nd Petitioner for Dala Federal Constituency as candidate for House of Representatives as such Exhibits R1 and R2 cannot come to his aid. Beside Exhibits R1 and R2 were issued on 15th March 2007 a period of about 38 days to the election held on 21/4/07 the 1st Respondent and 2nd to 4th Respondents decided to do nothing about the said court Order until after the election was conducted and the result release that they woke up from their deep slumber and naively expect to get instant remedy for their gross inaction or negligence in the implementation of Exhibits R1 and R2.

It is crystal clear from the foregoing that the 1st and 2nd Petitioners/Appellants adduced ample evidence both oral and documentary to show that the 1st Petitioner/Appellant was the candidate nominated and sponsored by the 2nd Petitioner/Appellant to contest election to Dala Federal Constituency seat for the Federal House of Representatives and are therefore entitled to judgment based on their pleadings but it is glaring that the trial Tribunal woefully failed to properly evaluate the evidence adduced before it and therefore came to a wrong conclusion. Accordingly, Issue No.1 is resolved against the Respondents in favour of the Appellants.

ISSUE NO.2 – Whether the Tribunal was right in refusing to determine the propriety of 2nd to 4th Respondents in altering Exhibit P1 the result of the election.

The undisputed facts of the petition leading to this appeal clearly show that Exhibit PI and Form EC 8E (II) Declaration of Result Election to the House of Representatives, Dala Federal Constituency was altered. The 2nd to 4th Respondents expressly admitted that it was the 4th Respondent INEC Resident Electoral Commissioner who made the alteration. Paragraphs 14 and 15 of the petition raised this all important issue. The 1st Respondent as well as the 2nd to 4th Respondents kept silent on this important issue. Evidence was given by the 4 witnesses who testified for the petitioners on this point. The 1st Respondent still kept quiet. RW1 who testified for the 2nd to 4th Respondents gave evidence that it was Exhibit R2 that made him alter the result but Exhibit R2 never directed him to alter the result.

During the course of address, this point was also raised by the Petitioners during the oral adumbration of addresses. The 1st Respondent as well as the 2nd to 4th Respondents still kept mute.

The lower Tribunal in the consideration of the case before it just determine who was the candidate before the court but failed to consider INEC’ s conduct in altering the result of the election to impose or bring in a 3rd person without a prior order of court or tribunal. It is submitted that the lower court is bound to resolve this issue.

It is settled law that the trial court or tribunal is under a compelling duty to pronounce on all issues raised before it for determination in the course of trial as failure to do so may amount to miscarriage of justice. In Brawal Shipping (Nig) Ltd. V. F.I. Onwadike Co. Ltd. (2000)6 SCNJ 508 at 522 the Supreme Court held thus:-

“The Supreme Court demands of, and admonishes the lower courts to pronounce, as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal. It has made this clear in its observations in several cases.

Failure to do so may lead to miscarriage of justice and certainly will have that result if the issues not pronounced upon are crucial. Consequently, there could be avoidable delay since it may be necessary to send the case back to the lower court for those issues to be resolved. The obvious exceptions are when an order for a re-trial is necessary or the judgment is considered a nullity, in which case there may be no need to pronounce on all the issues which could arise at the re-trial or in a fresh action as the case may be.”

The contents of Form EC8E (II) Declaration of Result of Election is central and crucial in any given election as such once the result of an election is placed on Form EC8E it becomes sacred and cannot be tampered with in anyway by anyone.

The conduct of the 2nd to 4th Respondents in altering Exhibit P1 is therefore highly objectionable. Section 69 (c) of the Electoral Act 2006 states:-

“Declaration of scores of candidates and the Return of a candidate shall be final subject – to review by a tribunal or court in election petition proceedings under this Act.”

In Abama V. Obi (2004) 10 NWLR (Pt.881) 319 at 365 this Court held thus:-

“Where an error is discovered after a return has been made by the returning officer following the declaration of an election result, the Returning officer cannot make a second return as any such subsequent return would be invalid.

The proper way to question the 1st return is by way of petition to the appropriate election tribunal which has jurisdiction to determine all questions about the election. In the instant case, neither the Independent national Electoral Commissioner nor even the Returning Officer himself was competent to reverse the return or make a second return by virtue of Section 59 (c) of the Electoral Act 2002. (Okunola V. Ogundiran (1962)1 SCNLR 150 referred to).”

Issue No.2 is accordingly resolved against the Respondents in favour of the Appellants.

In the final analysis, having resolved all the issues in favour of the Appellants, the result is that the appeal is bound to succeed. It hereby succeeds and it is allowed. The judgment of the National Assembly/Governorship & Legislative Houses Election Petition Tribunal Holden at Kano delivered on 28th day of February 2008 in Petition No. EPT/KNS/HR/23/07 is hereby set aside. In its place judgment is entered in favour of the 1st & 2nd Appellants in terms of the following relief:-

(i) Declaration that the 1st Respondent who was Return as elected was not validly elected at the Election into the Dala Federal Constituency of the House of Representatives.

(ii) Nullifying the election and or Return as well as the Certificate of Return, if any, that has been or may have been issued and or delivered to the 1st Respondent.

(iii) Declaration that the 1st Petitioner ALHASSAN UBA IDRIS is the candidate that has met the requirements of law and scored the highest number of votes cast at the election, and is hereby declared the winner and returned elected into the Dala Federal Constituency of the House of Representatives.

(iv) Directing the 2nd to 4th Respondents to forthwith issue a Certificate of Return in favour of the 1st Petitioner.

I award costs assessed at N30, 000.00 to the 1st & 2nd Appellants against the 1st, 2nd, 3rd & 4th Respondents.

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Other Citations: (2009)LCN/3245(CA)