All Nigeria Peoples Party & Anor V. Halima Hassan Tukur & Ors (2008)

LawGlobal-Hub Lead Judgment Report

BABA ALKALI BA’ABA, J. C. A.

This is an appeal against the decision of the National Assembly Governorship and Legislative Houses Election Tribunal of Nigeria holden at Birnin Kebbi, Kebbi State, delivered on the 10th day of October, 2007 contained at pages 236 – 267 of the record.

The election for the member representing Yauri/Shanga/Ngaski Federal Constituency of Kebbi State in the House of Representatives was conducted on the 21st day of April, 2007, by INEC, the 3rd respondent in this appeal. The 1st respondent who was sponsored by the 2nd respondent was at the end of the said election, declared the winner of the said election having scored 54,263 votes, the highest number of lawful votes cast at the election. The appellants who were the petitioners were unhappy with the return and declaration of the 1st respondent hence they filed a petition dated 22/5/2007, challenging the declaration and return of the 1st respondent. The petition which contains nineteen paragraphs is at pages 1 – 15 of the record.

The appellants/petitioners claimed as follows:-

“WHEREFORE your petitioner prays that it may be determined as follows:

1. That the 1st respondent was not duly elected or returned and that her election was void and that the said Hon. Garba Umar Uba 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 of 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 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 this honourable Tribunal may deem it fit and just to make or grant in the circumstances.”

Since the pleadings, petition and reply are relevant being the basis of the claim, denial or admission of the averments being equally important, the paragraphs that I consider relevant are hereby reproduced.

The facts of the petition and the grounds upon which the petition is based are as follows:-

“(1) Your petitioner states that the 1st respondent was not validly returned as the person duly elected on the following grounds:-

(i) The election was invalid by reason of corrupt practices and or non-compliance with the mandatory provisions of the Electoral Act, 2006.

(ii) The 1st respondent was not duly elected by majority of lawful votes cast at the election.

(2) The election was invalid by reason of corrupt practices and or noncompliance with the provision of the Electoral Act, 2006.

(3) That the 2nd petitioner was given an electronic copy of all registered voters in Kebbi State by the 3rd respondent, two weeks to the April 21st 2007 election.”

At page 229 of the record, the proceeding reads:

“Mr. Malami: We have discussed and agreed on the conduct of the election petition in terms of our agreement.

1. All oral evidence and witnesses’ statement filed before the Tribunal by the respective parties be dispensed with.
2. We have in place thereof agreed that all documents listed in paragraph 7 of the pre-trial report dated 17/7/2007 be admitted by consent of the parties across the bar and relied upon for the basis of the prove of otherwise.
3. It is also agreed that the statistical analysis will also be dispensed with.

Mr. Odase Oserada: we discussed and agreed.”

At pages 230 – 231 of the record, the proceedings reads as follows:-

“Mr. Malami: We have agreed to dispense with oral evidence and written statements of the witnesses. We had also agreed to tender documents across the Bar and to reply solely on those documents. The documents are ready but we have an oral application relating to the misspelling of the name of the petitioner. The correct names of the 2nd petitioner are Hon. Garba Umar Uba but not Hon. Umar Bala. The mistake arose from the documents issued to the 2nd petitioner by INEC. We apply that the amendment sought be granted.

Mr. Sam Kargbo: It is too late in the day we have already joined issues on that and it is one of our strong basis of our reply to the petition. We even had a preliminary objection used on this which is rolled into the hearing of the petition. The amendment is fundamental and not typographical or spelling mistake on the face of the petition, the petitioner himself described himself as Hon. Garba Umar Bala and on page 3 a new person was introduced instead of Hon. Garba Umar Bala, it was stated Hon. Garba Umar Uba and the result released by INEC refers to the petitioner as Garba Umar Bala. There are two sets of persons involved here; See pages 1, 3 and 5 of the petition. No attempt was made long before now to correct this even after we filed our objection to this sometime in June 2007 The amendment sought relates to paragraph 4 of the 1st schedule. We urge that the amendment sought be rejected.

Mr. Mohammed: I too will be objecting to the amendment sought. I align myself with the submission of Mr. Sam Kargbo.

Mr. Malami: We filed an application to this effect dated 2nd July 2007. We filed a counter affidavit to the application dated 11/7/07. The counter affidavit we filed was rolled over together with the preliminary objection. The mistake was created by INEC. We urge that this application be sustained as the difference in name is only a misnormer. There are two petitioners. We urge that our application be granted.

Tribunal: Since parties are relying only on documentary evidence, the application and the objection to it shall be taken along in the judgment of the Tribunal.”

On 3/9/2007, the application of the learned counsel for the appellants/ petitioners to tender six documents was granted as there was no objection from the learned counsel for the respondents. The documents were admitted in evidence and the learned counsel for the appellants/petitioners closed his case. The petition was adjourned for counsel to file their written address. The six sets of documents tendered across the bar by the learned counsel for the appellants/petitioners are as follows:-

1. Form EC8A (ii) issued to the party agents during election comprising about 208 pages.
2. Form EC8A (ii) certified by the 3rd respondents. This is in two volumes. The 1st volumes comprises PP1- 208 and the second volume is PP209 – 259.
3. Form EC8B (ii) certified the 3rd respondent comprising 30 pages (copies).
4. Form EC8C (ii) certified by the 3rd respondent and comprises of 4 No copies.
5. Form EC8E (ii) certified by 3rd respondent.

One copy.

In its judgment at page 265 of the record the Tribunal inter alia held as follows:-

“Having held as we have that petition is improperly constituted as a result of which we do not even have the jurisdiction to adjudicate on it, where is the evidence that the 1st respondent was not validly returned by the 3rd respondent. Put in another way where is the evidence based on which we can hold that the presumption of regularity that the result declared by 3rd respondent in favour of the 1st respondent is correct and authentic rebutted? We see none. One cannot put something on nothing and expert it to stand. See UMOKAV. AGILI (2007) 11 NWLR (Pt.1044) 122 which adopted and followed the decision in MCFOY V. U.A.C. LTD (1961) 1 ALL E.R. 1169.

Consequent upon the above, we resolve issue No.3 in favour of the respondents and hold that in the circumstances, the 1st respondent who had scored the majority of lawful votes cast at the election i.e. 54,263 votes as against the 29,201 votes scored by the 3rd and 4th respondents as the winner of the election into Yauri/Shanga/Ngaski Federal Constituency. We dismiss the petition of the petitioners for lacking in merit therefore.”

Dissatisfied with the judgment of the Tribunal, the appellants who were the petitioners filed a notice of appeal dated and filed on 30/10/07 at pages 271 – 278 of the record containing seven grounds of appeal.

Briefs of argument were filed and exchanged between the parties. The appellants brief is dated 18/1/2008 deemed filed on 28/2/08 by order of this court. The 1st and 2nd respondents’ brief is dated and filed on 27/3/08 while the 3rd 66th respondents, brief is dated 17/4/08 and deemed filed on 21/4/08 by order of this Court.

When the appeal came up for hearing on the 21/5/2008, counsel to the parties adopted their respective briefs.

Before reproducing the issues formulated by the parties in this appeal, I consider it necessary to first reproduce the seven grounds of appeal contained at pages 271 – 275 of the record because of the nature of this particular appeal. The grounds without their particulars are as follows:-

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

2. The learned Justices of the trial Tribunal misdirected themselves and exercised their discretion wrongly by refusing to grant leave to the appellants to amend the misnomer in the name of 2nd petitioner by way of substituting the name “Bala” for “Uba” regard being had to the provisions of paragraph 14(2)(a) and 4(1) of the 1st scheduled to the Electoral Act.
3. The learned Justices of the trial Tribunal erred in law and arrived at wrong decision by striking out the name of the 2nd petitioner and holding that the defect that related to the misnomer in the name of the 2nd petitioner was fundamental and incurable at the stage of the proceedings.
4. The learned Justices of the trial Tribunal erred in law and arrived at wrong conclusion when held that:

“We have carefully considered the petition as filed and observed that same has not been properly constituted in compliance with the provision of the act.”

5. The learned Justices of the trial Tribunal erred in law and arrived at wrong conclusions when they held that the appellants merely stated non compliance with the electoral act as a ground of the petition without facts and evidence to establish substantial non-compliance, which is clearly insufficient to invalidate the election.
6. The learned Justices of the trial Tribunal erred in law and arrived at wrong conclusion when they held that there is no evidence whatsoever in support of ground No.2 that the election was invalid by reason of corrupt practices and or non compliance with the mandatory provisions of the Electoral Act 2006.
7. The judgment of the learned Justices of the trial Tribunal is against the weight of evidence on record.”

From the grounds of appeal, reproduced above, the learned counsel for the appellants distilled four issues for determination in this appeal as follows:-

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

(2) Whether the learned Justices of the lower Tribunal were right and exercised their discretion rightly by refusing to grant leave to the 2nd appellant to amend misnomer in the name of 2nd petitioner and in effect holding that the defect was incurable at the stage of the proceeding.

(3) Whether the petition was not properly constituted regard being had to the provisions of paragraph 4(1)(a) and (2) of the 1st schedule to the Electoral Act 2006.

(4) Whether the learned Justices of the Tribunal were right in not giving consideration to exhibits P1 – PS tendered and admitted in evidence in arriving at a conclusion that facts and evidence relating to non compliance with Electoral Act 2006 as canvassed and adduced were not sufficient to invalidate the election.”

The 1st and 2nd respondents in their joint brief of argument formulated five issues as follows:-

“i. Whether or not the preliminary objection to the jurisdiction of the trial Tribunal to entertain the appellants’ petition raised by the 1st & 2nd respondents was curtailed or defeated by the provisions of the Electoral Act, 2006 and the 1st Schedule to the Electoral Act, 2006;

ii. Considering the totality of the pleadings and petition as presented by the appellants, whether or not the trial Tribunal exercised its ‘discretion rightly by refusing to grant leave to the appellants, who made an oral application, to amend the name of the 2nd petitioner from Hon. Garba 8ala to Hon. Garba Umar Uba.

iii. Whether or not the trial Tribunal was right in striking out the name of the 2nd petitioner/appellant;

iv. Whether or not in view of the mandatory provisions of paragraph 4(1)(d) & (2) of the 1st Schedule to the Electoral Act, 2006, the petition of the appellants as presented was properly constituted; and

v. Whether or not the trial Tribunal was right in holding that there is no evidence in support of ground two, which is that the election was invalid by reason of corrupt practices and or non-compliance with the mandatory provisions of the Electoral Act 2006.”

In the 3rd – 66th respondents’ brief four issues were also formulated for determination at page 2 of the 3rd – 66th respondents’ brief as follows:-

“i. Are the replies, motions and notices of preliminary objection filed by the respondents before the lower Tribunal competent?

ii. In view of the provision of paragraph 14(2) of the 1st schedule can the appellants apply to amend the name Hon. Garba Umar Baba to read Hon. Garba Umar Uba?

III. Whether the petition was properly constituted regard being had to the provisions of paragraph 4(1)(a) and (2) of the 1st schedule to the Electoral Act 2006?

iv. Whether the lower Tribunal acted properly when it refused to accord any probative value to exhs. P1 – P9 tendered by the petitioners/appellants.”

After examining the grounds of appeal, I am of the view that only grounds 5 and 6 appear to be relevant for determination in this appeal as the other grounds are either based on an Interlocutory decision or are completely irrelevant to the appeal.

It should be noted that in this appeal no evidence was led at all as the counsel to the parties by consent agreed to dispense with evidence and the sworn deposition of the witnesses. It is however interesting to observe that in their ground of appeal No.7, the appellants are complaining that the judgment of the Tribunal is against the weight of evidence on record while no evidence was led at all before the Tribunal as the portion of the proceedings reproduced herein shows.

It is now well settled that all issues for determination formulated in any appeal must be related to the ground of appeal and the judgment or decision appealed against. See WESTERN STEEL WORKS V. IRON STEEL WORKERS (1987) 1 NWLR (Pt.49) 284 – 364; ONYESON V. NNEBEDUN (1992) 3 NWLR (Pt.229) 315; OLOWOSAGO V. ADEBANJO (1988) 4 NWLR (Pt.88) 275.

It has also been settled that although an appellate court should be wary of formulating or introducing new issues for determination in an appeal before it, where the issues postulated by the parties are inappropriate or inadequate having regard 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 issue not contemplated by the parties unless it is an issue of jurisdiction. See N.P.A. V. PANALPINA (1974) 1 N.M.L.R 82 at 75; OLORUOBE V. OYEBI (1984) 1 S.C.N.L.R. 390; (1984) 5 S.C.1; OLOBA VS. AKEREJA (1988) 3 NWLR (Pt.84).

Relying on the authorities cited above in relation to the formulation of an issue or issues, I have after taking into consideration the facts of this case, the grounds of appeal, and issues formulated by the appellants as well as the two sets of respondents, decided to formulate an issue for the determination of this appeal. I propose to formulate a sole issue which I believe is all encompassing and sufficient for the determination of this appeal, 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 arise from the pleadings of the parties. This onus of proof is however, not static. It continually 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 V. AFRICAN CONTINENTAL BANK PLC (1999) 6 NWLR (Pt.605) 1; FADLALLAHI V. AREWA ILE LIMITED (1997) 8 NWLR (Pt.518) 546, OKUBULE V. OYAGBOLA (1990) 4 NWLR (Pt.147) 723; H.M.S. LTD V. S.I.B.N. (1991)1 NWLR (Pt.157) 290.

The learned counsel for the appellants Abubakar Malami, Esq., at page 34 of the appellants’ brief referred to the appellants/petitioners petition dated 21/5/2007 and their averments regarding the conduct of the election that the election was invalid by reason of corrupt practices and non-compliance with the mandatory provision of Electoral Act, 2006. That the 1st respondent was not duly elected by a majority of lawful votes cast at the election. He also referred to paragraphs 3, 4, 5, and 6 of the petition which are at pages 6 – 7 of the record.

Reference was made to the judgment at page 265 of the printed record where attention was drawn to Exhibits P1 – P5 admitted across the bar. It is the submission of the learned counsel for the appellants that having admitted Exhibits P1 – P5, by consent of the counsel to the parties who agreed that the petition should be determined on the basis of the documents, the Tribunal ought to have properly evaluated the documents to enable it come to a just decision on the petition, citing the case of SHAMAKI V. BABA (2000) FWLR (Pt.26) 1888 – 1889 in support of his submission. Pointing out that the judgment or decision must only be reached after the due appraisal and analysis of the evidence adduced by the parties. He cited several authorities in support of his submission.

In conclusion, learned counsel for the appellants urged the court to resolve the issue in favour of the appellants and allow the appeal.

It is the submissions of Sam Kargbo, Esq., for the 1st and 2nd respondents on his issue No.5, the only relevant issue formulated in the 1st and 2nd respondents brief in this appeal that in arguing the issue, it is necessary to first refer the court to the confusing nature of the appellants’ pleadings on the ground of election being invalid by reason of corrupt practices and or non-compliance with the mandatory provisions of the Electoral Act, 2006. Reference was made to pages 6, 7, 8 and 18 of the record in highlighting the confusing nature of the petition. He pointed out that in this appeal, there are no written depositions or oral testimony in support of all the manner of allegations made in respect of the two sets of the grounds of the petition. Instead the petitioners/appellants relied solely on the Exhibits P1 – P5 which they literally just dumped on the Tribunal without establishing their relevance and what they expected the Tribunal to do with them. He stated that in respect of the Exhibits the appellants did not say anything and do not in anyway make sense. That it is not the duty of the Tribunal to engage in an independent research on Exhibit P1 – PS and come out with the result of their private investigation. It is further emphasized that it is the duty of the petitioners/appellants that tendered the exhibits to establish their relevance before the Tribunal and the purpose of their reliance on the said exhibits. See GOVERNOR OF KWARA STATE V. EYITAYO (1997) 2 NWLR (Pt.485) 118 at 129; TERAB V. LAWAN (1992) 3 NWLR (Pt.231) 569 at 590 and ANALAU V. AKANO & ORS 22 NSCR (Pt. 11) 864 at 884. It is contended that there is nothing on the face of the Exhibit that can be said to be said conclusive evidence on inflated votes. Concluding his submission, learned counsel for the 1st and 2nd respondents urged the court to dismiss the appeal.

The 3rd- 66th respondent only relevant issue is No.4, as to whether the trial Tribunal acted properly when it refused to accord any probative value to Exhibit P1 -P9 tendered by the petitioners/appellants. In his submission on this issue learned counsel for the 3rd – 66th respond ends referred to paragraphs 14, 15 and 16 of the petition at pages 11 – 12 of the record and submitted that the proper law relating to the content of a document is stated in the case of SAMUEL OMONIYI V. U.B.A. LTD (2001) 5 NWLR (Pt. 706) 240. He stressed that the issue before the Tribunal was not so much as to the interpretation of the documents tendered by the appellants rather the issue was to establish the various allegations contained in the averments of the petitioners/ appellants.

It is further submitted by the learned counsel for the. 3rd – 66th respondents that the mere dumping of the documentary evidence on the Tribunal robbed the exhibits of any probative value and the Tribunal acted rightly when they refused to accord any probative value to the Exhibits dumped on it by the appellants/petitioners.

In conclusion of his submission on this issue, learned counsel for the 3rd – 66th respondents urged the court to answer the issue in the affirmative against the appellants.

It is clear that in this appeal no evidence was called by the petitioners/appellants or any other party. The appellants/petitioners as can be seen at pages 229 – 231 of the record rested their petition on the exhibits tendered across the bar by the appellants/petitioners. The appellants/petitioners appear to have conceded that the correct names of the 2nd petitioner/appellant are “Hon. Garba Umar Uba” but not “Hon. Umar Bala”, as contained in the petition.

I agree with the submission of the learned counsel for the 1st and 2nd respondents as well as that of the 3rd – 66th respondents, Aliyu Musa Yawuri, Esq., that the appellants/petitioners merely dumped exhibits P1 – P5, on the Tribunal and it is not sufficient for the appellants/petitioners to merely dumped the documents on the Tribunal in proof of their petition without establishing their relevance and the purpose of tendering same. In GOVERNOR OF KWARA STATE V. 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 Exhibit C. It was not the duty of the trial Court to do its own independent research into Exhibit C and come 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 failed to establish the probative value of exhibit C and even before this court, they have not made any attempt to satisfy us of the value of exhibit C. As pointed out earlier this complaint is misconceived. In view of what I have said in. respect of issues 1 and 3, issue 4 which seeks to answer 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 an academic exercise. See SARAKI v. KOTOYE (1992) 9 NWLR (Pt.264) 156. ”

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

It needs to be emphasized that the duty of the court is to decide between the parties on the basis of what has been demonstrative, tested, cansvassed and argued in court. It is not the duty of a court to do cloistered justice by making an enquiry into the case outside court even if such is limited to examination of document which were in evidence when the document had not been examined in court and that examination out of court disclosed matters that had not been brought and exposed to test in court and were not such matters that, at least must have been relied upon in court. See ALHAJI I. A. ONIBUDU ORS V. ALHAJI A. W AKIBU & ORS. (1982) ALL N.L.R. 207 at 226. I wish to add that even if the amendment being sought by appellants of the name of the 1st petitioner/appellant Hon. Garba Umar Bala is amended to read “Hon. Garba Umar Uba”, the judgment of the Tribunal will remain the same for lack of evidence.

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 275 of the record.

In the final analysis, I hold that there is no merit in this appeal which is hereby dismissed.

The judgment of the National Assembly/Governorship and Legislative Houses Election Tribunal, Kebbi State delivered on the 10th 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/2925(CA)