All Nigeria Peoples Party & Anor. V. Garba Musa Gulma & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

BABA ALKALI BA’ABA, J.C.A.

This is an appeal against the judgment of the National Assembly and Legislative Houses Election Tribunal, sitting at Birnin Kebbi, Kebbi state, delivered on the 15th day of October, 2007, in petition No. KB/EPT/HR/7/07. The election was in respect of the member representing Argungu/Augie Federal Constituency of Kebbi State in the House of Representatives conducted by the 3rd respondent, INEC on the 21st day of April, 2007. The 1st respondent, Garba Musa Gulma, who was sponsored by the Peoples Democratic Party (PDP) was declared and returned as the winner of the said election by the 3rd respondent, having the highest lawful number of votes, 41,997, cast at the said election.

By a petition dated the 22nd May, 2007, the 1st and 2nd appellants, All Nigeria Peoples Party (ANPP) which sponsored Hon. Sani Bawa Argungu, the 2nd appellant who were the 1st and 2nd petitioners respectively challenged the declaration and return of the 1st respondent as the winner of the said election. The petition containing 21 paragraphs is at pages 3 – 13 of the printed record.

The petitioners/appellants in their 21 ‘paragraphs of the said petition prayed as follows:-

“1. That the 1st respondent was not duly elected or returned and that his election was void and that the said Hon. Sani Bawa Argungu sponsored by the petitioner was elected and ought to have been returned or as the case may be and or in the alternative nullifying the election in its entirety.

2. That the election 1st Respondent is invalid or vitiated by reason of corrupt practices.
3. That the election was not conducted substantially in accordance with the relevant provisions of the Electoral Act which non-compliance has substantially affected the result of the election and therefore renders the election of the 1st Respondent a nullity.
4. The petitioner be declared the winner of the election.
5. And such further orders or reliefs as the Honourable Tribunal may deem fit and just to make or grant in the circumstances.”

On being served with the petition, the 1st and 2nd respondents entered a conditional appearance dated 28/5/07, filed on 30/5/07. The 1st and 2nd respondents filed a preliminary objection to the petition on 30/5/07 contained at pages 72 – 78 of the record of proceedings.

The appellants as petitioners filed their reply to the preliminary objection as respondents on 11/6/07. At the pre-hearing session, the 1st and 2nd respondents’ motion/preliminary objection was rolled over for hearing along with the petition. After two witnesses testified for the appellants/ petitioners, the parties to the petition agreed to dispense with all the written depositions and abandoned all oral evidence including the evidence of the two witnesses that earlier testified. The parties then agreed to rely solely on the documentary evidence to be tendered by counsel across the bar in proof of their respective cases. The written deposition of one Mallam Nasiru Sarki Mohammed at pages 26 – 27 of the record was also dispensed with by agreement of counsel to the parties.

The Tribunal delivered its judgment on 15/10/07 and dismissed the petition for lacking in merit when at page 269 of the record, it held:

“We hold therefore that the Petitioners failed to satisfy us through the evidence of the witnesses they called and the Exhibits tendered that the election was invalid by reason of corrupt practices or that the 1st Respondent was not duly elected by majority of lawful votes cast at the election. We resolve issue No.3 in favour of the Respondent.

We are of the firm view that the Petitioners failed to adduce evidence in support of their grounds for challenging the election of the 1st Respondent.

Consequently, we hold that even if we had the jurisdiction to entertain this petition, the petition lacks merit and is liable to be dismissed. It is hereby dismissed.

We hold that the 1st Respondent, Hon. Garba Musa Gulma was validly returned on the ticket of the 2nd Respondent PDP as the winner of the election to the House of Representatives for Argungu/Augie Federal Constituency of Kebbi State held on the 21st day of April, 2007.”

Being dissatisfied with the judgment, the appellants filed a notice of appeal, containing six grounds of appeal to be found at pages 272 – 282 of the record.

From their six grounds of appeal, the appellants formulated three issues for determination in this appeal as follows:-

“(1) Whether a reply and preliminary objection on jurisdiction raised in breach of regulated statutory procedure must be entertained as of right in an election petition.

(2) Whether trial Tribunal was deprived of the jurisdiction to entertain the petition filed by the Appellants on account of its inherent defect and non compliance with the provisions of the Electoral Act.

(3) Whether the Appellants had by their petition and evidence adduce established a cause of action and substantial non compliance such as would affect the result of the election.”

The 1st and 2nd respondents on the other hand also formulated three issues for determination of this appeal as follows:-

“i. Whether or not the Trial Tribunal was right in entertaining the Preliminary Objection raised by the 1st and 2nd Respondents.

ii. Whether the Trial Tribunal was deprived of the jurisdiction to entertain the petition filed by the Appellants on account of its inherent defects and noncompliance with the provisions of the Electoral Act.

iii. Whether the Appellants established a cause of action against the 1st and 2nd Respondents. ”

The 3rd – 68th respondents in their brief of argument dated 14/5/08 deemed filed by order of this Court on 27/5/08 formulated two issues for determination in this appeal as follows:-

“i. Whether or not the Trial Tribunal was right in entertaining the Preliminary Objection raised by the 1st and 2nd Respondents.

ii. Whether the Trial Tribunal was deprived of the jurisdiction to entertain the petition filed by the Appellants on account of its inherent defects and noncompliance with the provisions of the Electoral Act.”

It is now well settled that all issues for determination formulated in any appeal must be related to the grounds of appeal and judgment or decision appealed against” See WESTERN STEEL WORKS V. IRON STEEL WORKERS (1987) 1 NWLR (PT.49) 284 at 304; ONYESOH v. NNEBEDUN (1992) 3 NWLR (PT.229) 315; OLOWOSAGO v. ADEBANJO (1988) 4 NWLR (PT.88) 275.

It has also been settled that although all appeal court should be wary of formulating or introducing new issue for determination in an appeal before it, where the issue postulated by the parties are inappropriate or inadequate having regards to the grounds of appeal filed, the court should, without any hesitation, attempt to identify the appropriate issues in the circumstances of the case. Care must however be taken to ensure that the issue or issues formulated by the court does not or do not raise new issues not contemplated by the grounds of appeal and not canvassed by the parties unless it is an issue on jurisdiction.

See N.P.A. V. PANALPINA (1974) 1 NNLR 82; OLORIODE V. OLOSA (1984) 1 SCNLR 390 and NWLR (PT.84) 508, AKEREJA (1988) 3.

The appellants in their brief of argument formulated three issues in this appeal, reproduced in this judgment from their grounds of appeal contained at pages 272 – 281 of the record. The said grounds without their particulars are as follows:-

“1. GROUND1

The learned Justices of the Trial Tribunal erred in law and arrived at a wrong decision when they held that preliminary objection in election petition which relates to jurisdiction can be raised at any point in time with or without affidavit if the objection is predicated on law.

2. GROUND2

The learned Justices of the trial Tribunal erred in law and arrived at wrong conclusion when held that the Appellant’s petition as not filed in compliance with the provisions of the Act and that it was totally defective in such way that they were deprived of jurisdiction to hear it.

3. GROUND 3

The learned Justices of the trial tribunal erred in law and arrived at wrong conclusions when they held that they were satisfied that no sufficient facts have been pleaded to establish substantial non compliance such as would affect the result of the election nor has the petitioner made out a reasonable cause of action.

4. GROUND 4

The learned Justices of the trial Tribunal erred in law and arrived at wrong conclusion when they held that the allegations of corrupt practices and or non compliance with the mandatory provisions of the Electoral Act cannot be established without oral evidence of witnesses who were present and gave direct evidence of what transpired either at polling stations or collation centre.

5. GROUND 5

The learned Justices of the trial Tribunal erred in law and arrived at wrong conclusion when they held that Exhibit P2, P4 – P9 were not directly linked to the pleadings in such a way that they could be interpreted by the Tribunal without direct oral evidence of witnesses who could connect the pleadings to the Exhibits and explain the import of the Exhibits and what they were meant for.

6. GROUND 6

The judgment of the learned Justices of the trial Tribunal is against the weight of evidence on record.”

It is the law that issues for determination in an appeal must be formulated upon the grounds of appeal filed against the judgment on appeal. See A-G, BENDEL STATE VS. AIDEYAN (1989) 4 NWLR (PT.118) 646; BURAIMOH VS. BAMGBOSE (1989) 3 NWLR (PT.109) 352; NZEKWU VS. NZEKWU (1989) 2 NWLR (PT.104) 373 and ONIYIA Vs. ONIYIA (1989) 1 NWLR (PT.99) 514.

It is clear from the record that the 1st and 2nd respondents at pages 74 – 75 filed a preliminary objection challenging the entire petition on the ground that the entire petition is incompetent and discloses no cause of action against the respondents. However, the Tribunal at the pre-trial conference, decided with the agreement of counsel to the parties to hear both the petition and the preliminary objection at the same time.

I think the Tribunal ought to be commended for that good decision instead of being condemned. It can not be disputed that the decision taken by the parties and the Tribunal contributed in the early disposal of the petition.

It is an elementary principle of law that issue of jurisdiction can be raised at any stage of proceedings even on appeal in the Supreme Court. See BRONIK MOTORS & ANR. VS. WEMA BANK LTD (1985) 6 S.C. 58; (1983) 1 S.C.N.L.R. 296 and PEENOK INVESTMENT LTD VS. HOTEL PRESIDENTIAL LTD. (1983) 4 NCLR 122 at 177. Taking a critical look of the grounds and appellants’ issues, one can see that some of the issues are either irrelevant or did not arise from the judgment of the Tribunal.

Having considered the issues formulated by appellants from the grounds of appeal, I am of the view that it is appropriate in this appeal for me to formulate an issue or issues for the determination of this appeal. I think a sole issue is sufficient for the determination of this appeal and the issue is as follows:-

“1. Whether or not the Tribunal’s judgment can be sustained having regard to the evidence adduced by the appellants/petitioners?”

It is trite law under the evidence law that as in civil cases (including election petition) that the burden of proof of a particular fact is upon the person who asserts and who will fail if no evidence is called upon the issue, regard being had to any presumption which may arose from the pleadings of the parties.

This onus of proof is however not static. It continuously shifts from side to side in respect of a fact in issue until it finally rests on a party against whom judgment will be given if no further evidence is proffered before the court. See IGWE VS. AFRICAN CONTINENTAL BANK PLC (1999) 6 NWLR (PT.605) 1; FADLALLAHI VS. AREWA ILE LTD (1997) 8 NWLR (PT.518) 546; OKUBULE VS. OYAGBOLA (1990) 4 NWLR (PT.147) 723 and H.M.S. LTD VS. S.I.B.N. (1991) 1 NWLR (PT.157) 290.

At pages 231 – 233 of the record the proceedings reads:

“Mr. Malami: We have agreed to dispense with oral evidence. We shall be relying exclusively on the documentary evidence. The documents are ready. We have about seven set of documents.

1. Form EC.8A(ii) are the counter copies of the results issued out to the agents on the day of the election. They are put together in one volume containing 203 pages.
2. Form EC.8A(ii) certified by the 3rd respondent. It is two volumes. The 1st volume is pages 1- 203, and the 2nd volume is pages 204 – 231.
3. Forms EC.8B(ii) certified by 3rd respondent. It contains two volumes. The 1st volume relates to Argungu Local Government and the 2nd set is for Augie Local Government. It comprises 10 pages.
4. Form EC.8C(ii) certified by 3rd respondents containing two copies, one for Argungu and the 2nd for Augie Local Government Areas.
5. Form EC.8D(ii) summary of results from Local Government Areas.
6. Form EC.8E(ii) the declaration of result of the election for Argungu/Augie Federal Constituency.

Mr. Sam Kargbo: It is true that parties agreed to abandon all oral and sworn testimonies. It is also true that we agreed to rely solely on documents sought to be tendered. We have no objections to admissibility.

Mr. Mohammed: No objections.

Tribunal: Since there is no objection to admissibility of the documents sought to be tendered which relate to the result of the election from the Argungu/Augie Federal Constituency. The application that they be admitted into evidence is granted as prayed. The documents sought to be tendered are admitted and they shall be marked as follows:

1. Forms EC.8A(ii) issued to polling agents on the day of the election put together in one document containing 203 pages Exhibit P4.
2. Form EC.8A(ii) certified by 3rd respondent comprising of two volumes contained on pages 1-203 for the 1st volume and pages 204 -231 for the 2nd volume, Exhibit P5(A) and (B) respectively.
3. Form EC.8B(ii) also certified by the 3rd respondent containing volumes, the 1st for Argungu Local Government (11 pages) and the 2nd for Augie Local Government (10 pages), Exhibit P6(A) and (8). 4. Form EC.8C(ii) certified by the 3rd respondent containing two copies one for Argungu Local Government Area and the second for Augie Local Government Areas. Exhibit P7(A) and (8).
4. Form EC.8D(ii), summary of result from Local Government Areas certified by 3rd respondent, Exhibit P8.
5. Form EC.8E(ii), the declaration of result form also certified by 3rd respondent, Exhibit P9.

SGD

HON. JUSTICE A. KAKA’AN

(CHAIRMAN)

3/9/07

Mr. Malami: That is the case for the petitioners.

Mr. Sam Kargbo: We shall be adopting Exhibits P5- P9 in defence and we shall be relying on them. That shall be our case.

Mr. Mohammed: We adopt all the Exhibits in our defence, Exhibits P4 – P9. That will be our case.

Mr. Sam Kargbo: We ask for ten days to file our written address.

Mr. Mohammed: We also ask for ten days to file our written address.

Mr. Malami: We shall be asking for seven days.

Tribunal: Written addresses are hereby ordered. The respondents have ten days to file their written addresses while the petitioners have seven days after service to file theirs. Adjourn to 26/9/07 for adoption of addresses.”

On the sole issue formulated by me in the appeal, Abubakar Malami, Esq, learned counsel for the appellants extensively referred to the paragraphs of the petition in the appellants’ brief and the findings of the Tribunal and submitted that the case of OGBUNNIYA vs. OKUDO (2001) FWLR (PT.72) 2002, is an authority that it is now not the contention of section 112 of the Evidence Act that the production of the documents mentioned in subsection (a) (i) must be by a witness testifying under oath. Learned counsel for the appellants placed reliance on the provision of section 132(1) of the Evidence Act, in support of his contention that oral evidence is not necessary where a party is relying on documentary evidence. He contended that the learned Judges of the Tribunal were wrong when they held that the mere production of exhibits “P2” and “P4” – “P9” without more, did not constitute evidence of the contents and legal effect therein contained.

It is further submitted by the learned counsel for the appellants that the Tribunal ought to have looked at exhibits “P2” and “P4 – P9” and accepted them as evidence having admitted same in evidence. It is stressed that the Tribunal erred in law in refusing to accept the said exhibits as evidence in support of the appellants/petitioners case and urged this court by virtue of section 16 of the Court of Appeal Act to look at and accept them as evidence adduced in support of the appellants/petitioners case. Relying on the authority of OYEBADEJO VS. OLANIYI (2000) FWLR (PT.5) 847, learned counsel argued that section 138(1) of the Evidence Act only applies when there is an allegation of a crime in the pleadings.

In conclusion learned counsel for the appellants urged the court to allow the appeal.

Responding to the appellants’ submission relevant to the sole issue formulated by me, learned counsel for the 1st and 2nd respondents, Sam Kargbo, Esq, stated that the appellants alleged a case against the respondents and did not adduce any evidence in proof of any of the allegations against the 1st and 2nd respondents. According to the learned counsel for the 1st and 2nd respondent, it is the law that where a petitioner is challenging the accuracy of the result of the election, the petitioner is required to plead and lead evidence of two sets of result, the one alleged to be false and the correct result to enable the Tribunal confirm the two sets of results. See MUHALU VS. NGIGE (2005) 4 NWLR (PT.914) 1 at 36. He further submitted that the type of evidence which must be led in support of the allegation where scores of a candidate is challenged should come from officers or agents who were in the field where votes were counted or collated, citing BUHARI VS. OBASANJO (2005) .13 NWLR (PT.914) 1, in support of his submission learned counsel for the 1st and 2nd respondents stated that the appellants merely dumped exhibits on the Tribunal without establishing their relevance and stating what they expected the Tribunal to do with them. See GOV. KWARA STATE VS. EYITAYO (1997) 2 NWLR (PT.488) 118 at 129; TORAB VS. LAWAN (1992) 3 NWLR (PT.231) 569 at 590. He pointed out that there has being no written deposition of witnesses in respect of the votes cast in the election hence no material upon which the Tribunal can rely upon to declare any vote illegal nor can the Tribunal act on the allegation of malpractices or inflated votes.

Learned counsel for the 1st and 2nd respondents urged the court to dismiss the appeal which lacks merit.

Learned counsel for the 3rd – 68th respondents Innocent Leji, Esq, merely adopted the submissions of the learned counsel for the 1st and 2nd respondents on all the issues. Pointing out that neither the appellants nor the respondents led any evidence besides the tendering of exhibits by the learned counsel for the appellants across the bar. He stated that the parties by their conduct deprived the Tribunal the opportunity of assessing or evaluating the evidence of the witnesses having dispersed with all the witnesses and their sworn depositions consequently there was nothing before the Tribunal to support the appellants claims.

He concluded that the appellants’ case must fail and urged the court to affirm the judgment of the Tribunal and dismiss the appeal for lacking in merit.

It can not be disputed that the appellants as petitioners apart from pleading certain essential issues did nothing as argued by the learned counsel for the two set of respondents did no more than merely tendering exhibits “P4”, “P5”, “P6”, “P7”, “P8” and “P9” as shown at pages 232 – 233 of the record reproduced herein.

I therefore agree with the submissions of Kargbo, Esq, for the 1st and 2nd respondents as well as that of Innocent Lagi Esq, for the 3rd – 68th respondents that it is not sufficient for the appellants/petitioners to merely tender the documents – exhibits “P4” , “P5”, “P6” , “P7”, “P8” and “P9” in proof of their petition without establishing their relevance and the purpose of tendering same. IN GOVERNOR OF KWARA STATE VS. EYITAYO (1997) 2 NWLR (PT.485) 118 at 129, this court held, “This complaint is completely baseless. The appellants simply tendered exhibit “C” without leading any evidence to connect it with the case. They did not refer the court to any relevant portion of exhibits “C”. It was not the duty of the trial court to do its own independent research into exhibit “C” and came out with the result of its private investigation. It is the duty of any party that tenders a document to establish before the court its relevance and what it expects the court to do with it. In this case the appellants to establish the probative value of exhibit “C”. As pointed out earlier the complaint is misconceived. In view of what I have said in respect of issues 1 and 3, issue 4 which seeks to consider the question whether or not reliefs 1 and 3 disclosed any reasonable cause of action against the appellant is now academic and I shall decline to go into it. A court of law must not engage in any academic exercise. See SARKI VS. KOTOYE (1992) 9 NWLR (PT.264) 156.”

A party relying on a document in proof of his case must specifically relate such document to that part of his case in respect of which the document is being tendered. The court can not assume the duty of tying part of a bundle of documentary exhibit to a specific aspect of a case for a party when that party has not himself done so.

It needs to be emphasised that the duty of ,the court is to decide between the parties on the basis of what has been demonstrated, tested, canvassed and argued in court. It is not the duty of the court to do cloistered justice by making an enquiry into the case outside the court even if such is limited to examination of documents which were in evidence when the document has not been examined in court and that examination out of court disclosed matters that have not been brought out and exposed to a lot of criticism in court and where no such matters that, at least must have been relied upon in court. See ALHAJI I.A. ONIBODU & ORS VS. ALHAJI A.W. AKIBO & ORS (1982) ALL N.L.R. 207 at 226.

It is settled that the issue of jurisdiction can be raised at any stage of the proceedings up to the final determination at an appeal by the Supreme Court. The trial Judge can himself raise it at any stage. See for example PAN ASIAN CO. LTD VS. N.I.C.O.N (1982) 9 S.C.1, TUKUR VS. GONGOLA STATE (1989) 4 NWLR (PT.117) 517 and F.R.N. VS. IREGWU (2003) 15 NWLR (PT.842) 113 at 226.

In view of the aforesaid, I hold that the appellants/petitioners did not lead evidence before the Tribunal to warrant being granted the reliefs sought by the appellants as contained at page 14 of their petition.

In the final analysis, I hold that there is no merit in the appeal which is hereby dismissed. The judgment of the National Assembly/Governorship and Legislative House Election Tribunal holden at Birnin Kebbi, Kebbi State delivered on the 15th day of October, 2007, is hereby affirmed by me with costs assessed at N30,000.00 in favour of the 1st respondent.

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Other Citations: (2008)LCN/2968(CA)