All Nigeria Peoples Party & Anor V. Umar Abubakar T. Argungu & 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 holden at Birnin Kebbi, Kebbi State delivered on the 15th day of October, 2007, in respect of petition No. KB/EPT/SEN/4/07 consolidated with petition No. KB/EPT/SEN/6/2007 in which judgment was delivered on the 15th day of October, 2007.
The election for the member representing Kebbi North Senatorial District in the National Assembly was conducted by INEC, the 3rd respondent on the 21st of April, 2007.
At the conclusion of the said election, the 3rd respondent, declared the 1st respondent, Umar Abubakar T. Argungu who scored the highest number of lawful votes, 203,986 the winner of the election. The 1st respondent was sponsored for the said election by the 2nd respondent, the Peoples Democratic Party, (PDP) while the 2nd appellant, Senator Sani A. Kamba, was sponsored by the All Nigeria Peoples Party (ANPP), the 1st appellant.
Unhappy, with the declaration and return of the 1st respondent, the 1st and 2nd appellants who were the petitioners challenged the declaration and return of the 1st respondent by a petition dated the 21st day of May, 2007, the said petition is at pages 1 – 96 of the record. On being served with the said petition, the 1st and 2nd respondents filed a memorandum of conditional appearance and subsequently filed a Notice of Preliminary Objection challenging the competence of the petition and the jurisdiction of the Tribunal to entertain the petition.
On 11/6/2007, the 1st and 2nd respondents filed a joint reply contained at pages 101 – 110 of the record.
By agreement of the parties during the prehearing session, the preliminary objection was rolled over for hearing along with the petition.
On the 12th day of June, 2007, the Tribunal consolidated the two petitions as both petitioners were challenging the same return of the 1st respondent (see pages 347 – 348 of the record). At the end of the pre-hearing conference, a report was issued by the Tribunal which is at pages 161 – 164 of the record. The parties in the petitions mutually agreed to tender across the bar, documents which were admitted in evidence and adopted their respective witnesses’ statements without cross-examining the deponents. As a result, the entire trial was conducted by counsel to the parties by tendering documents across the bar and the adoption of their respective witnesses’ statements. The 1st and 2nd respondents formulated and adopted the following issues for determination by the Tribunal in the petition contained at pages 162 of the record as follows:
“(1) Whether or not having regard to the basis of and the facts in support of Grounds of the petition, or any of them, the Tribunal has jurisdiction or is competent to entertain this petition.
(2) Whether within the intendment of Section 145(1)(a) of the Electoral Act and Section 65(2)(b) of the 1999 Constitution, the 1st respondent was qualified to contest election into Kebbi North Senatorial District held on 21/4/07.
(3) Whether or not the infractions of the Electoral Act, 2006 as alleged, if established as required by law, constitutes substantial non-compliance with the Electoral Act 2006.”
As argued at the pre-hearing conference, Exhibits ‘P6’ – ‘P11′ were tendered by counsel across the bar. Also, in petition No. KB/EPT/SEN/4/2007, exhibits “Pl”, “P2”, “P3”, “P4” and “P5” were tendered by the learned counsel for the appellants as petitioners across the bar. Parties filed their respective written address.
The Tribunal in its judgment in respect of the consolidated petitions at page 402 – 403, of the record, dismissed the consolidated petition when it held,
“We have carefully perused the witness statements on oath alongside exhibits “P6” – “P11”. We are unable to see the connection. The allegations of corrupt practices or electoral irregularities did not pinpoint the polling stations in which the malpractices took place. Most of the witnesses who gave evidence at the polling stations were those that related what they were told and even those that attended the polling units could not relate the result thereat to any of the exhibits tendered before us. See BUHARI V. OBASANJO (2005) 18 NWLR (PT.956) 96 and PROF. ERIC OPIA V. CHIEF FELIX IBRU & ORS. (1992) 3 NWLR (PT.231) 658.
We therefore agree with respondents’ counsel that the exhibits were dumped on us as the facts of this case are not similar to those in the cases of OGBUNYINYA V. OKUDO (supra) and OMONIYI V. UBA (supra).
We also agree with respondents that the appendices filed by Mr. Malami will amount to his giving evidence. The case of ODUBEKO V. FOWLER (1993) 7 NWLR (PT.308) 637 prohibit this.
We therefore find ourselves unable to rely on exhibits “P6 – P11″ tendered before us in the circumstances. And neither can we make use of the Electronic Disc said to contain the register of voters as same was not played before us or its’ contents produced before us in open court. See GOV. KWARA STATE V. EYITAYO (1997) 2 NWLR (PT.485) 118 at 129 Where OGEBE, JCA, observed:
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.
See also TERAB V. LAWAN (1992) 3 NWLR (PT.231) 569 at 590 and also ALAO V. AKANO (2005) 11 NWLR (PT.935) 160.
All said, we see no merit in any of the petition Nos. KB/EPT/SEN/4/07 and KB/EPT/SEN/6/07 (consolidated) between Ibrahim Musa &. Anor AND All Nigeria Peoples Party &. Anor v. Umar Abubakar T. Argungu &. Ors and we hereby accordingly dismiss them, while, we uphold the return of Umar Abubakar T. Argungu as the Senator Representing Kebbi North Federal Constituency. ”
Being dissatisfied with the judgment of the Tribunal, the appellants as the petitioners filed a Notice of Appeal dated the 5th day of November, 2007, containing five grounds of appeal at pages 407 – 418 of the record. From the five grounds of appeal, the appellants formulated four issues for determination in this appeal at page 25 of the appellants’ brief as follows:
“1. Whether the appellants had not succeeded in establishing that merger form the basis of substitution of the 1st respondent regards being had to their pleadings and exhibit 5 tendered by the appellants and admitted in evidence before the trial lower Tribunal.
- Whether the evidence adduced by the petitioners was not enough to have established that the 1st respondent was not qualified to contest the election on the ground of non-compliance with Electoral Act.
- Whether cogent and verifiable reasons were not put in issue by the appellants for determination before the trial Tribunal regard being had to the appellants pleadings and evidence rightly tendered and admitted in evidence.
- Whether the learned Justices of the trial Tribunal were right in not giving consideration to exhibits “P6- P11″ tendered and admitted in evidence at the hearing.”
The 1st and 2nd respondents on the other hand formulated three issues for determination in this appeal at page 4 of their brief, as follows:
“i. Whether or not having regard to the basis of and the facts in support of Grounds of the petition, or any of them, the Tribunal has jurisdiction or is competent to entertain this petition.
ii. Whether within the intendment of section 145(1)(a) of the Electoral Act and section 65(2)(b) of the 1999 Constitution, the 1st respondent was qualified to contest election into Kebbi North Senatorial District held on 21st April, 2007.
iii. Whether or not the infractions of the Electoral Act 2006 as alleged, constitute non compliance with the Electoral Act 2006.”
The 3rd – 136th respondents formulated only one issue as follows:
“WHETHER having regard to the combined effect of Sections 34, 36 and 38 of the Electoral Act, 2006, the 1st respondent “was at the time of the election not qualified to contest the election”, held on 21st of April, 2007 into the Kebbi North Senatorial District of the National Assembly of the Federal Republic of Nigeria.”
The main purpose of formulation of issues for determination is to enable the parties to narrow the issue or issues in controversy in the grounds of appeal filed in the interest of accuracy, clarity and brevity. See OGBUYINYA &. ORS V. OBI OLARDO &. ORS (1990) 4 NWLR (PT.146) 581 at 568. An appellate court can only hear and decide on issues raised on the grounds of appeal filed before it and an issue not covered by any ground of appeal is incompetent and liable to be struck out. See MANAGEMENT ENTERPRISES V OTOSANYA (1998) 2 NWLR (PT.55) 179.
It is a fundamental function of court to do justice to parties who appear before it in its pursuit of due and proper administration of justice. It can not close its eyes to obvious errors committed by counsel as a result of inexperience or ignorance where such errors can lead to injustice if left uncorrected. So far as it will not lead to injustice to opposite side, an appellate courts possesses the power and in the interest of justice, reject, modify or reframe any or all issues formulated by the parties after a careful consideration of the issues as set out in the brief and grounds of appeal filed. This power of an appellate court has never been in doubt as long as the issue reframed is anchored on the grounds of appeal filed, the opposite party can not complain. See the case of OGBUYINYA & ORS. V. OKUDO & ORS. (1991) 4 NWLR (PT.146) 551 and BANKOLE V. PELU (1990) 8 NWLR (PT.211) 523.
After a careful examination of the grounds of appeal, issues formulated by the parties in this appeal as well as the judgment appealed against, I am of the humble view that the main issue in this appeal relates to the evidence adduced by the parties in this appeal. In that regard, I propose to exercise the power given to this court as an appellate court to frame a single issue for the determination of this appeal. The issue is as follows:
“Whether the judgment of the Tribunal can be sustained having regard to the evidence adduced by the appellants/petitioners before the Tribunal?”
In the determination of this appeal I intend to consider the submissions of the counsel to the parties in their respective briefs relevant to the sole issue formulated by me only as I consider some of the submissions irrelevant and unnecessary for determination in this appeal.
It is contended by Abubakar Malami, Esq, learned counsel for the appellants that the election of the 1st respondent was invalid as the merger was not done in compliance with the provisions of the Electoral Act, 2006. He placed reliance on exhibits “P1” – “P8” tendered and admitted in evidence before the Tribunal. It is also the contention of the learned counsel for the appellants that the election was invalid by reason of corrupt practices and or non-compliance with the mandatory provision of the Electoral Act, 2006. According to the learned counsel for the appellants, the purported merger which produced the 1st respondent as the Senatorial candidate of the 2nd respondent is invalid, null and void, regard being had to the Electoral Act, 2006.
Relying on the authorities of PINLAYE II V. OLUKOPAN (1996) 6 NWLR (PT.453) 148 and BARWAL SHIPPING (NIG) LTD V. F.I. ONWADIKE CO. LTD (2000) 6 S.C. (PT.II) 133, submitted that exhibits in a suit need not to be specifically pleaded so long as facts and not evidence by which such documents were covered in the pleading.
It is further submitted that having regard to the pleadings that is the petition of the appellants and exhibits tendered by the appellants which according to the learned counsel for the appellants were not denied by the respondents, the Tribunal ought to have granted the reliefs claimed by the appellants.
It is argued by the learned counsel for the appellants relying on the provision of section 34, 36 and 38 of the Electoral Act that an Election Tribunal has no jurisdiction to entertain an issue dealing with the validity or otherwise of the nomination of a candidate is not a ground of qualification to contest the election can not be right. See UGWU V. ARARUME (2007) 12 NWLR (PT.1048) 367.
In conclusion learned counsel for the appellants urged the court to allow the appeal because according to him the pleading of the appellants as petitioners and the various exhibits tender in support of their case ought to have been accepted and acted upon by the Tribunal.
The learned counsel for the 1st and 2nd respondents, Oghenero E. Ideh, Esq, in the 1st and 2nd respondents’ brief in response to the submission of the learned counsel for the appellants, submitted that the Tribunal was right in dismissing the appellants’ petition for lacking in merit.
Reference was made to the grounds of the petition in proof of which the appellants relied solely on exhibit “P5”. It is contended by the learned counsel for the 1st and 2nd respondents that exhibit “P5” relied upon by the learned counsel for the appellants has no nexus with the other exhibits tendered and relied upon by the same appellants, placing reliance on the judgment of the Tribunal. Learned counsel for the 1st and 2nd respondents further submitted that the law is clear that there is a distinction between the admissibility of a document and its probative value. Consequently, the mere fact that exhibit “P5” is admitted in evidence does not follow that the Tribunal must attach any weight to it. See OGUN V. AKINYELE (1999) 10 NWLR (PT.624) 671 at 693.
It is submitted that the burden of proof of the alleged substitution of the 1st respondent is on the Appellants
It is argued by the learned counsel for the 1st and 2nd respondents, relying on the authority of BUHARI VS. OBASANJO (2005) 13 NWLR (PT.941) 1, that the principle of law that the person asserting must proof is still applicable and refers to section 135(1) of the Evidence Act. Stressing that the petitioners must not only assert but must satisfy the court by evidence that non-compliance has affected the result of the election to justify the nullification of the election.
It is further contended that in the instant appeal, no sufficient facts have been pleaded to establish substantial non-compliance such as would affect the result of the election.
According to the learned counsel for the 1st and 2nd respondents, although the appellants pleaded that the 1st respondent was not duly elected by a majority of lawful votes cast at the election, they did not plead facts in support of the allegation.
Reference was made to the provision of section 150 of the Evidence Act by the learned counsel for the 1st and 2nd respondents who contended that the result declared by INEC, by law the declaration is presumed to be correct though rebuttable. Pointing out that the presumption in the instant appeal has not been rebutted by the appellants and the onus is on the appellants as petitioners to rebut the presumption.
In conclusion of his submission, learned counsel for the 1st and 2nd respondents further emphasized that the appellants as petitioners did not lead any evidence in support of their petition but merely dumped exhibits on the Tribunal, without explaining their purport through witnesses and the purpose of tendering them hence they have failed to discharge the burden of proof placed on them by law. He urged the court to dismiss the appeal which lacks merit.
The learned counsel for the 3rd – 136th respondents, Innocent Lagi, Esq, in the 3rd – 136th respondents’ brief, merely adopted the submission of the learned counsel for the 1st and 2nd respondents. Pointing out that neither the appellants as petitioners nor the respondents adduced any evidence in support of the petition other than tendering documents which were admitted as exhibits in the petition.
He stated that the parties in the petition deprived the Tribunal of the opportunity of assessing or evaluating oral testimony of witnesses as such there was nothing before the Tribunal to support the claim of the petitioners who are the appellants. He urged the court to dismiss the appeal and affirm the judgment of the Tribunal.
As can be seen from the submissions of counsel to the appellants and that of the two set of respondents, it is the contention of the learned counsel for the appellants in this appeal that the appellants adduced sufficient evidence contained in exhibits “P1”, “P2”, “P3”, “P4” and “P5” as well as the exhibits tendered in petition No.4 also relied upon by the appellants. It is however the contention of the two sets of respondents that the appellants as petitioners failed to lead evidence in support of their allegations as they merely dumped documents on the Tribunal. It is not in doubt as borne out by the printed record that the appellants as petitioners in this appeal relied solely on the exhibits referred to above in support and proof of their petition before the Tribunal.
It is well established and in my view based on common sense that a mere assertion and or statement of claim should not be accepted without proof thereof. In the same way, an averment in pleadings can not be accepted as evidence simpliciter without calling evidence to prove it, and if no such evidence is called, the averment is deemed to be abandoned. It must therefore be rejected. See AWOJUGBAGBE LIGHT IND LTD V. CHINUKWE (1991) 4 NWLR (PT.390) 379; OLAREWAJU V. BAMIGBOYE (1998) 3 NWLR (PT.60) 353 at 354; EMEGOKWUE V. OKADIGBO (1973) 4 S.C. 113 at 117 – 118 and ONWUKO AJERO V. BERNARD NATHANIEL & ORS (1999) 10 NWLR (PT.621) 1 at 19 – 20.
The onus of proof in an election petition like in civil cases is on the petitioner (plaintiff) to satisfy the court that he is entitled on the credible evidence adduced by him to the claim he asserts and doing so, he must rely on the strength of his own case and not on the weakness of the defence. See FIRST BANK (NIG) LTD V. EXCEL PLASTIC INDUSTRY (2003) 13 NWLR (PT.837) 228 at 451 – 452.
It was held by this court that it is not the duty of the trial court, in this case the Tribunal, to do its own independent research into exhibits 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 he expects the court to do with it. I agree with the submission of the learned counsel for the 1st and 2nd respondents in the instant appeal that the appellants failed to establish the probative value of these exhibits. See GOVERNOR OF KWARA STATE V. EYITAYO (1997) 2 NWLR (PT.485) 118 at 129.
A party relying on a document in proof of his case must specifically relates 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 each 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 emphasized 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 inquiry into the case outside the court even if such is limited to examination of documents which were in evidence when the documents have not been examined in court and their examination out of court disclosed matters that have 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 AND OTHERS V. ALHAJI A.W. AKIBU & ORS. (1982) ALL N.L.R 207 at 226.
Assuming for the sake of argument that the exhibits tendered across the bar by the learned counsel for the appellants were credible evidence hence the Tribunal was bound to act on them, one can clearly see that the said exhibits do not still support the case of the appellants/petitioners.
As can be seen from Exhibits “P1” and “P5”, exhibit “P1” dated the 5th of February, 2007 was filed on time before exhibit “P5” on the 8th of February, 2007. It can not therefore be claimed by any stretch of imagination that exhibit “P1” is the product of exhibit “P5”. The argument of the appellants therefore that the 1st respondent’s nomination was a product of the alleged merger contained in exhibit “P5” can not stand or be accepted. In effect, the appellants furnished documentary evidence against their case as petitioners in support of the 1st respondent.
It is crystal clear from the facts of this appeal that the main issue in this appeal is that of nomination, withdrawal and substitution which clearly are pre-election matters and by Section 32 of Electoral Act, 2006, pre-election matter are to be ventilated either in the High Court of State or Federal High Court. Election Tribunals are set up under Section 285(1) of the 1999
“Constitution and their jurisdiction is prescribed by the same Section. Nothing in that Section suggests that pre-election matters relating to nominations, substitution or to withdrawal can be ventilated at the Election Tribunal. In the recent case of CHARLES CHINEDO V. INEC & 2 ORS., SUIT NO. SC.208/2007 (unreported) delivered on 11/7/2008, the Supreme Court per Tobi, JSC, held on page 21 as follows:
“It is not my understanding of section 225(1)(a) of the Constitution that the sub-paragraph can accommodate pre-election matters. It is rather my understanding that the sub-paragraph provides for the determination whether any person has been validly elected as a member of the National Assembly. In my humble view, the sub-paragraph provides for election matters which give rise to post election and not pre-election proceedings. As the reliefs sought by the appellants are on pre-election matters, Section 285(1) (a) could not avail him as that sub-paragraph does not provide for litigation arising from party primaries.
And that was what this Court dealt with in Amaechi…”
See also AMEACHI V. INEC (2008) 5 NWLR (PT.1080) 227; UGWU V. ARARUME (2007) 6 S.C. (PT.1) 88; (2007) 9 NWLR (PT.1038) 137.
Having regard to the aforesaid, I answer the sole issue formulated by me in the negative in that the appellants failed to prove their case by credible evidence.
In the result, I hold that the appeal lacks merit and must be and 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, dismissing petition No. KB/EPT/SEN/6/2007 between ALL NIGERIA PEOPLES PARTY & ANOR. V. ALHAJI ABUBAKAR UMAR ARGUNGU &. ORS is hereby affirmed by me with costs assessed at N30, 000.00 to the 1st respondent.
Other Citations: (2008)LCN/2967(CA)
