All Nigeria Peoples Party (Anpp) & Anor. V. Peoples Democratic Party (Pdp) & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
KEKERE-EKUN, J.C.A.
This is an appeal against the decision of the Governorship and Legislative Houses Election Petition Tribunal (hereinafter referred to as the Tribunal) sitting in Kano delivered on 6th August, 2003 wherein the Tribunal nullified the election of the 2nd appellant herein on the ground that at the time of the election he was not qualified to contest the election into the Kano State House of Assembly, not having attained the age of 30 years. The 2nd appellant, Sani Ibrahim Ahmed had contested the election into the Kano State House of Assembly on the platform of the All Nigeria Peoples Party (ANPP) while the 2nd respondent contested on the platform of the Peoples Democratic Party (PDP) both representing the Nassarawa constituency. The election took place on 3rd May, 2003 and the results were declared on the 4th May, 2003. The 2nd appellant was declared the winner.
The 1st and 2nd respondents in this appeal were dissatisfied with the outcome of the election and filed a petition before the Tribunal as 15th and 2nd petitioner respectively challenging the return of the 2nd appellant as the winner of the election. The sole ground of the petition was that at the time of the election he was not qualified to contest because he was below the age of 30 years and was therefore in contravention of the provisions of section 106(b) of the 1999 Constitution of the Federal Republic of Nigeria.
At the conclusion of the trial, after considering the oral and documentary evidence led by both parties, the Tribunal in its judgment delivered on 6th August, 2003 nullified the election of the 2nd respondent and ordered a bye-election. The appellants, being dissatisfied with the judgment appealed to this court by their notice of appeal dated 8th August, 2003 containing three grounds of appeal. Pursuant to a subsequent order of this court the appellants filed six additional grounds of appeal bringing the number of grounds of appeal to nine.
In compliance with the rules of this court the parties duly filed and exchanged their briefs of argument. The appellants’ brief of argument dated 14/7/04 was deemed filed on 17/1/05. The 1st and 2nd respondents brief of argument dated 22/2/05 was deemed filed on 10/3/05. The appellants also filed a reply brief dated 20/4/05, which was filed on 9/6/05.
In their brief of argument the appellants formulated 3 issues for determination in this appeal as follows:
- Which is the best evidence i.e. legally preferable evidence as to the age of the 2nd appellant, the evidence of his father and birth certificate or pieces of doubtful documentary evidence inconsistent with the former, accepted and relied upon by the Tribunal below in finding that he was below 30 years old at the time he contested election into the Kano State House of Assembly?
- From the quality of evidence on record, whether it can be said that the 2nd appellant was not up to 30 years old at the time he contested election into the Kano State House of Assembly?
- Whether the Tribunal below possessed jurisdiction to adjudicate on pre-election issues such as qualification meant for the Federal or State High Courts and in the light of this whether the disqualification of the 2nd appellant to contest the said election on the unpleaded ground of forgery of birth certificate was not null and void and of no effect?
The 1st and 2nd respondents, on their part, formulated the following two issues for determination in this appeal:
- Whether the Tribunal having regard to the preponderance of evidence before it was right to have rejected the evidence of DW1, the appellant’s father, along with exhibit F tendered by him.
- Whether the tribunal has jurisdiction to entertain a petition challenging an election on the ground of qualification to contest an election.
The 3rd-6th respondents did not file any brief of argument in this appeal. When the appeal was heard on 21st November, 2005 learned counsel for the appellants and the 1st and 2nd respondents adopted their respective briefs. Mr. J. B. Daudu, SAN, learned counsel for the appellants made some oral submissions to elaborate some of the issues argued in his brief. He submitted that the evidence that the Tribunal relied upon to reach the conclusion that the 2nd appellant was underage and therefore not qualified to contest the election into the Kano State House of Assembly was documentary, that is documents generated from schools attended by the appellant. He submitted that on the other hand the 2nd appellant’s father testified on his behalf and tendered his birth certificate, exhibit F, which he said had always been in his possession. He noted that he also testified that no one had ever asked him for the said birth certificate and that the 2nd appellant did not live with him but had always lived with an uncle. Mr. Daudu submitted that the Tribunal had no basis for its conclusion that the evidence of the 2nd appellant’s father and exhibit F were incredible, as nothing was elicited under cross-examination to weaken his evidence. He submitted further that the inference drawn by the Tribunal from the fact that exhibit F had been in the 2nd appellant’s father’s possession and had never been asked for or seen by anyone until it was tendered before the Tribunal was unjustified. He submitted that the issue of age ought to have been resolved in favour of the 2nd appellant. He urged this court to allow the appeal.
Mr. Rotimi Rowland, after adopting the 1st and 2nd respondents’ brief also addressed us orally and contended that exhibit F was rejected not because it was kept for 30 years but because the record of 2nd appellant from his primary and secondary schools show that at the time he contested the election he was 28 years old. He submitted that the inference to be drawn from the finding of the Tribunal is that exhibit F might have been forged. He urged us to dismiss the appeal.
Mr. Daudu in reply on points of law submitted that the documents the respondents relied upon amount to hearsay and that they were not documents submitted to the Independent National Electoral Commission (INEC) by the 2nd appellant.
I have carefully examined the issues formulated by both parties in their respective briefs. I find that issue 1 formulated by the respondents covers issues 1 and 2 formulated by the appellants. However, I find the appellants’ issue 1 to be prolix and argumentative. In their brief of argument the appellants have argued issues 1 and 2 together. I am of the view that issues 1 and 2 should be combined and re-formulated into one issue. I therefore re-formulate the appellants’ issues 1 and 2 thus:
“Whether having regard to the evidence before the Tribunal it was established that at the time of the election into the Kano State House of Assembly the 2nd appellant had not attained the age of 30 years as required by section 106(b) of the 1999 Constitution.”
The appellants’ issue 3 is in pari materia with the respondents’ issue 2. This appeal shall therefore be determined on two issues: the appellants’ issues 1 and 2, which I have re-formulated and re-numbered as issue 1 and their issue 3 re-numbered as issue 2.
Issue 2 deals with the jurisdiction of the Tribunal to entertain the petition. It is settled law that the issue of jurisdiction is of such a fundamental nature that once it is raised, it must be considered and disposed of first since any adjudication without jurisdiction would amount to a nullity. I shall therefore deal with issue 2 first.
It is contended on behalf of the appellants that by the combined effect of section 21(4) and (8) of the Electoral Act, 2002 any person wishing to challenge the qualification of a candidate to contest an election must either petition INEC over alleged false contents of the nomination form – Form CF 001 (in this case tendered as exhibit L before the Tribunal) or file a suit before a court of law specified under the Act, that is, the High Court of a State or the Federal High Court, before the election. Learned senior counsel for the appellants noted that exhibit L7 a declaration of age on oath also accompanied exhibit L in this case. He submitted that having waited until after the election to complain, the 1st and 2nd respondents are deemed to have waived their right to do so. He relied on: Onifade v. Oyedemi (1999) 5 NWLR (Pt. 601) 54 at 68 D-G. He submitted further that by virtue of section 21 (9) of the Act “any legal action challenging the decision of the commission shall be commenced within five working days and shall be disposed of not later than one week before the election”. He submitted that the use of the word “shall” makes the provision mandatory and has the effect of ousting the jurisdiction of the election tribunal and does not give the 1st and 2nd respondents the discretion to choose when to bring a pre-election complaint. On the interpretation of statutes, the learned senior counsel cited the cases of: Bamaiyi v. A.-G., Federation (2001) 12 NWLR (Pt. 727) 468 at 497 F-G; Miscellaneous Offences Tribunal v. Okoroafor (2001) 18 NWLR (Pt. 745) 295.
Mr. Daudu argued that the Electoral Act gives the High Court of a State and the Federal High Court jurisdiction to hear matters relating to qualification and restricts election tribunals to post -election matters. He referred to section 285(b) of the 1999 Constitution and submitted that neither the wording of the Constitution nor the Electoral Act confers pre-election jurisdiction on the election tribunal. He referred to decision of the Jos Division of this court: Jang v. Dariye (2003) 15 NWLR (Pt. 843) 436 and the case of: Enagi v. Inuwa (1992) 3 NWLR (Pt. 231) 548 at 565 B-H. He submitted that the entire proceedings and judgment of the Tribunal are a nullity and urged us to so hold. He cited the case of: Shell Petroleum Dev. Co. Ltd. v. Isaiah (2001) 11 NWLR (Pt. 723) 168 at 179-180 H-A.
Learned senior counsel further contended on behalf of the appellants that the 1st and 2nd respondents only pleaded and led evidence at the Tribunal in respect of the age of the 2nd appellant. He submitted that the issue of forgery was not pleaded nor any evidence led in respect thereof by either of the parties but was raised suo motu by the Tribunal. He referred to the judgment of the Tribunal at page 35 line 11 of the record. He submitted that the Tribunal had no right to raise and determine the issue suo motu and that any decision based on it is null and void as it violates the parties’ right to fair hearing. He relied on: U.B.N. (Nig.) Plc. v. Emole (2001) 18 NWLR (Pt. 745) 501 at 518 A. He submitted further that being an allegation of a criminal offence, forgery must be proved beyond reasonable doubt. He referred us to the case of: Oji v. Ndu (1993) 1 NWLR (Pt. 268) 235 at 256-257 H-B.
In reply to the issue of jurisdiction, learned counsel for the 1st and 2nd respondents referred to section 134(1) of the Electoral Act and section 106 of the 1999 Constitution. He submitted that section 106 of the Constitution being a constitutional provision cannot be waived by any party. He submitted further that in determining the jurisdiction of the election tribunal the provisions of section 285(1) of the Constitution must be read along with section 131 of the Electoral Act. Learned counsel submitted that by virtue of these provisions the election tribunal has jurisdiction to hear and determine any question in respect of undue election or undue return. He distinguished the case of: Onifade v. Oyedemi (supra) cited by learned counsel for the appellants from the facts of this case on the ground that the case was determined on the basis of section 51 (b) of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998, which is no longer part of our law. He submitted further that the position of the law today is as pronounced in the case of Ozurumba v. Nwankpa (1999) 4 NWLR (Pt. 598) 282 at 296 which was decided after Oyedemi’s case where it was held that once the issue of qualification is raised, the tribunal has jurisdiction to look into the matter. He also relied on: Ango v. Achida (1999) 3 NWLR (Pt. 594) 246 at 253; Peters v. David (1999) 5 NWLR (Pt. 603) 486 at 493.
He submitted that the sole ground of the petition before the Tribunal was the qualification of the 2nd appellant and not his nomination by his party. In support of this, he relied on section 285(2) of the Constitution and section 136(1) of the Electoral Act. He argued that the Tribunal was correct in the inference it drew from exhibit L7 having regard to the evidence before it and that in any event, the Tribunal had made the finding that the 2nd appellant was underage before it considered the issue of the presentation of a forged document. He relied on the portion of the judgment at page 34 of the printed record. He also submitted that the authorities of U.B.N. Nigeria Plc. v. Emole (supra) and Oji v. Ndu (supra) relied upon by the appellants are irrelevant in the circumstances of this case.
In the appellants’ reply brief it was argued that contrary to the submission on behalf of the 1st and 2nd respondents as to Ozurumba’s case representing the correct position of the law, the more recent decision in: Jang v. Dariye (supra) at 447 reflects the present position of the law on the issue.
For a proper determination of this issue, it is necessary to consider the petition presented before the Tribunal. The petition is found at pages 1-5 of the printed record while the sole ground for the petition is at page 2 thereof as follows:
”The 1st respondent was at the time of the election not qualified to contest the election into Kano State House of Assembly.
Particulars
I. The 1st respondent was at the time of the election below the age of 30 years.
II. A person below the age of 30 years is not qualified to contest the election into the State Legislative Houses as provided under section 106 of the 1999 Constitution of the Federal Republic of Nigeria.”
Sections 131(1) and 134(1)(a) of the Electoral Act, 2002 provide:
“131(1) No election and no return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an ‘election petition’) presented to the competent tribunal or court in accordance with the provisions of the Constitution or of this Act, and in which the person elected or returned is joined as a party.
134.(1) An election may be questioned on any of the following grounds, that is to say…
(a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election.”
The settled principle of interpretation of statutes is that where the words used are clear and unambiguous, they must be given their ordinary meaning. See: Bamaiyi v. A.-G., Federation (2001) 12 NWLR (Pt. 727) 468; (2001) 7 SC (Pt. 11) 62 at 78-79. Misc. Offences Tribunal v. Okoroafor (2001) 18 NWLR (Pt. 745) 295; N.D.I.C. v. Okem Ent. Ltd. (2004) 4 SC (Pt. 11) 77 at 121-122; (2004) 10 NWLR (Pt. 880) 107.
Section 131(1) of the Electoral Act clearly states that the only forum for challenging an election or the return at an election is a competent tribunal or court in accordance with the provisions of the Constitution or the Act itself.
Section 134(1)(a) of the Electoral Act provides for the grounds upon which an election may be questioned before such competent tribunal or court as provided for in section 131 aforesaid. Furthermore the wording of section 134(1) shows clearly that the ground is predicated on the fact that an election had already taken place. The ground set out in sub-paragraph (a) of sub-section (1) is therefore not a pre-election issue as contended on behalf of the appellants.
Section 285(1)(a) and (2) of the 1999 Constitution provides:
“285(1) There shall be established for the Federation one or more election tribunals to be known as the National Assembly Election Tribunals which shall, to the exclusion of any other court or tribunal, have jurisdiction to hear and determine petitions as to whether:-
(a) any person has been validly elected as a member of the National Assembly;
(2) There shall be established in each State of the Federation one or more election tribunals to be known as the Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any court or tribunal have jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative house.”
Section 106(b) of the 1999 Constitution provides:
“106. Subject to the provisions of section 107 of this Constitution, a person shall be qualified for election as a member of a House of Assembly if –
(b) he has attained the age of thirty years;”
Section 285 of the Constitution thus establishes the competent tribunal, that is the National Assembly Election Tribunal or the Governorship and Legislative Houses Election Tribunal, for the determination of the question as to whether any person has been validly elected as a member of the National Assembly or a State House of Assembly. In the instant case, pursuant to section 285(2) of the Constitution the competent tribunal is the Kano State National Assembly Governorship and Legislative Houses Election Petition Tribunal. Section 106(b) of the Constitution and section 134(1) of the Electoral Act make the ground of a petition questioning the election of a person on the ground that at the time of the election he was not qualified to contest a valid and competent ground.
Having regard to the constitutional provisions referred to above, it is a misconception to contend that the 1st and 2nd respondents had waived their right to challenge the qualification of the 2nd appellant. I agree with learned counsel for the 1st and 2nd respondents that the authority of Onifade v. Oyedemi (supra) relied upon by the appellants does not advance their case because section 6(3) of Schedule 4 of the Local Government (Basic Constitutional and Transitional Provisions) Decree 36 of 1998, which was considered in that case specifically provided that the decision of an electoral officer (during the screening exercise) that a candidate has been validly nominated shall not be the ground of an election petition under the Decree. Similarly in the case of Enagi v. Inuwa (supra) section 91(1)(a) of the State Government (Basic Constitutional and Transitional Provisions) Decree No. 50 of 1998 which was under consideration contained a proviso to the effect that “the powers of the Chief Electoral Officer of the Federation or any officer delegated by him in that behalf as to the validity of nominations under paragraph 5(3) of Schedule 5 to this Decree shall not be a ground for such election petition.” There is no such proviso to section 21(9) of the Electoral Act. In any event the proviso dealt only with decision of the Resident Electoral Commissioner or the Electoral Officer as to whether a candidate has been validly nominated under sub-paragraph (2). It did not take away the right to question an election on the ground that the person who was elected was at the time of the election not qualified to contest or was disqualified from being elected. See: Peters v. David (supra) at 496-497 D-A.
In concluding this issue and in light of the authorities considered above, I hold that the sole ground of the petition is not a pre-election issue and that the Tribunal was therefore competent to adjudicate on it. This issue is accordingly resolved against the appellants.
The second issue for determination is whether having regard to the evidence before the Tribunal it was established that at the time of the election into the Kano State House of Assembly, the 2nd appellant had not attained the age of 30 years as required by section 106(b) of the 1999 Constitution.
At the hearing of the petition, both parties called witnesses and tendered documents in support of their pleadings. For the purposes of this appeal the relevant documents are exhibits E, D1 and B18 tendered by the 1st and 2nd respondents, exhibit F tendered by the appellants and exhibit L1 tendered by INEC from the bar by consent of both parties. Exhibit E is a certified true copy of the 2nd appellant’s birth certificate obtained by the 1st and 2nd respondents, which states his date of birth as 15/1/75). Exhibits D-D7 consists of the 2nd appellant’s record from Bayero University. Exhibit D1 is his student’s registration card at the said university, which also states his date of birth as 15/1/75. Exhibit B consists of the 2nd appellant’s record from his secondary school, St. Thomas’ Secondary School. Exhibit B 18, his statement of result from the said school shows his date of birth as 15/1/75.
The 2nd appellant’s father testified on his behalf as DW1. He tendered exhibit F, the 2nd appellant’s birth certificate showing his date of birth as 15/1/73. Exhibit L7 is a sworn declaration of age filed along with exhibit L (Form C17 001) submitted to INEC by the 2nd respondent. Exhibit L 7 was purportedly deposed to by DW1 and states the 2nd respondent’s date of birth to be 15/1/75. However DW1 denied making exhibit L7.
The appellants at page 9 of their brief reproduced a portion of the judgment from pages 32-34 of the printed record. I am of the view that this portion of the judgment is quite relevant to the determination of this appeal and therefore reproduce it hereunder:
“The tribunal finds the evidence of DW1 quite incredible and therefore does not believe him. In his evidence-in chief DW1 had testified that he did not know why the 1st respondent gave his date of birth as 15/1/75 at St. Thomas Secondary School and his place of birth Jos as reflected in exhibit B18. It must be noted that the said date and place of birth are consistent with the information in exhibit E. 1st respondent was not called to explain how he got the information. Exhibit J as noted earlier belongs to one Sani Ibrahim. No evidence was led to establish a nexus between the 1st respondent with the said Sani Ibrahim the owner of the said certificate. For this reason, the tribunal is of the view that exhibit J lacks evidential value and accordingly is discountenanced. The tribunal is now left with exhibits E, D 1 and B 18 on one hand and exhibits L7 and F on the other hand.
… It is the view of the tribunal that the similarity in the date of birth that runs through exhibits E, D1 and B18 cannot by any stretch be considered a coincidence, the only logical conclusion therefore that can be arrived at is that exhibit E has always existed to the knowledge of the 1st respondent and whosoever was handling his education as the authentic birth certificate of the 1st respondent as against exhibit F that had been under lock and key, never seen or heard of by anybody but DW1 until it was tendered in this proceedings.
It is the essence of any piece of evidence documentary evidence inclusive to either buttress the case of the party tendering it or to weaken the case of the opposing party. See: Ajide v. Kelani (1985) 3 NWLR (12) 248. It is therefore the view of the tribunal that exhibits E, B18 and D have buttressed the case of the petitioners and in convers (sic) weakened the case of the respondents.”
It was argued on behalf of the appellants that the law on the factors to consider in determining the age of a person has been settled by this court in the case of: Gbadamosi v. Azeez (1998) 9 NWLR (Pt. 566) 471 at 475 where it was held that the evidence of the parents should be accorded priority over and above other evidence in determining the age of their children. It was submitted that apart from the parents of the person whose age is disputed, persons who were present at the birth or naming ceremony and birth certificate or certified true copy of the birth certificate, all other evidence including the statement of the person whose age is in issue is hearsay and therefore inadmissible in law. In this regard, reliance was placed on the opinion of the learned jurist T. Akinola Aguda expressed in his book: Law and Practice Relating to Evidence in Nigeria (2nd edition) page 102; also the case of: Agwasim v. Ejivunerwerhaye (2001) 9 NWLR (Pt. 718) 395 at 410 D-F. It was submitted at page 12 of the appellants’ brief that age ascertainment does not lie in the coincidence of dates but in the quality of the source of evidence.
Learned senior counsel submitted that exhibit E, the certified true copy of the 2nd appellant’s birth certificate ought not to have been admitted in evidence on the ground that it was certified at the back instead of at the foot of the document as required by section 111 of the Evidence Act. On the consequence of admitting inadmissible evidence he cited the case of: Alade v. Olukade (1976) 2 FNLR 10 at 13. It was also contended that the document was certified by an officer of the Environmental Health Office instead of the Registrar of Births and Deaths and was therefore of doubtful origin and ought not to have been accorded any weight. Exhibit E was also challenged on the ground that there was a discrepancy between the names stated therein, Mohammed Sani Ahmed and the names of the 2nd appellant, Sani Ibrahim Ahmed. It was submitted that exhibit E having purportedly been certified on 21/7/2003, three months after the petition was filed violates section 91(3) of the Evidence Act and ought not to have been relied upon over and above the evidence of the biological father of the 2nd appellant. Another issue arising from exhibit E is the contention that contrary to paragraph 4(1)(d) and 4(2) of the First Schedule to the Electoral Act, the 1st and 2nd respondents failed to plead it. He referred to paragraph 9 of the petition. He also relied on: Hashidu v. Goje (2003) 15 NWLR (Pt. 843) 352 at 382. He submitted that the evidence of DW1, the father of the 2nd appellant is the best evidence of his age.
Learned senior counsel for the appellants submitted that the documents relied upon by the 1st and 2nd respondents before the tribunal are of no evidential value and that the tribunal failed to properly evaluate the evidence before it. He submitted that the inferences drawn by the tribunal that led to the finding that DW1 was not a credible witness was not based on its observation of his demeanor. He submitted that for this reason this court has the power to look at the record and determine whether the tribunal made use of the advantage of seeing and hearing the witness to reach its conclusions. He was of the view that the inferences and conclusions drawn by the tribunal was based on speculation as there was no evidence before it to suggest that DW1 enrolled his son at St. Thomas’s Secondary School or that he was in Kano at the time his son was a student at St. Thomas. He also submitted that there was no evidence to show that DW1 was required by the University to submit exhibit D 1, the birth certificate or that parents or guardians were required to countersign registration cards or registration forms completed by their children or wards. On the interference of appellate courts in the findings of lower courts on the credibility of witnesses based on demeanor, he relied on: Ebba v. Ogodo (1984) 1 SCNLR 372 at 381.
In reply to the submissions of the learned senior counsel, learned counsel for the 1st and 2nd respondents submitted that essentially the duty of the tribunal was to decide, having regard to the evidence before it, which of the two documents, exhibit E and exhibit F reflect the true age of the 2nd appellant. He submitted that all the details in exhibit E such as the 2nd appellants full names, the full names of his parents, his father’s address at the time of his birth all tally with the records contained in exhibit B (his secondary school record), exhibit D (his university record) and were confirmed by DW1 whose only complaint was that the date of birth was wrong. He submitted that the case of: Gbadamosi v. Azeez (supra) is not authority for the proposition that the evidence of the biological parent of a child must be accepted in all circumstances as correct. He submitted that in the instant case the tribunal reached its conclusion after weighing the evidence of both sides.
With regard to the certification of exhibit E he submitted that the requirement of Section 111 of the Evidence Act that certification should be at the foot of a document should not be given a literal interpretation. He submitted that what is important is a nexus between what the certifying public officer examined and the copy. He also submitted that the document was tendered from proper custody. He submitted further that there was no violation of the provisions of section 91 (3) of the Evidence Act because exhibit E was not made by any of the parties to the proceedings and is not “a statement made by a person interested”. On the issue of pleading he referred to paragraph 9 of the petition and submitted that having regard to the sole ground of the petition the appellants knew the case they were to meet at the trial and were not taken by surprise.
Learned counsel referred to the evidence-in-chief of DW1 at page 82 of the record and his evidence under cross-examination at pages 86-87 of the record. He noted that DW1 was a retired Police Commissioner and a graduate of the University of Lagos and argued that no reasonable tribunal would accept his evidence that his son’s birth certificate (exhibit F) had never been seen by anyone except him until the day it was tendered before the tribunal. He submitted that the tribunal was right to disbelieve the evidence of DW1 and to prefer exhibits E and B 18 to Exhibit F. He submitted that the tribunal has satisfactorily performed its primary function of evaluating evidence and ascribing probative value thereto. He urged this court not to interfere with its findings. He relied on: Rotimi v. Faforiji (1999) 6 NWLR (Pt. 606) 305 at 320-321.
I examined the submissions contained in the appellant’s reply brief in respect of this issue and found that the submissions made in the main brief were merely re-argued therein. I shall therefore not make any reference to those submissions, which would amount to repetition.
In resolving this issue it must be borne in mind that the standard of proof in an election petition as in any other civil matter is on a preponderance of evidence or on the balance of probabilities. See sections 135, 136 and 137 of the Evidence Act, Cap. 112, L.F.N., 1990. I shall deal with exhibit E first.
Section 111 of the Evidence Act provides:
“Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees thereof, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal, and such copies so certified shall be called certified copies.”
At page 31 of the record, PW4 Garba Miko testified as follows:
“As a campaign director, on the evening of the election we came across a pamphlet showing that the said ANPP candidate, the 1st respondent was under-aged. We decided to investigate … I went to B.U.K. where he graduated. I went to confirm his age I was shown his certificate of birth and photocopy. I went to Jos where he was born. I certified the true copy of his birth certificate at Jos North Local Government, Primary Health Care Unit. I can identify that copy … Certified at the back by Dr. G. G. Bore.”
Under cross-examination at page 33 of the record he stated thus:
“The person who made the certification is in Jos, it was where the birth was registered. I got the document from Bayero University Kano (BUK). The document originated from Jos and not from BUK.”
The document, certified by the Environment and Health Officer in charge of Primary Health Care, Jos North Local Government was admitted in evidence and marked exhibit E. By section 111 of the Evidence Act, a public document may be certified by any public officer having custody of such document. In the absence of any evidence to the contrary before the tribunal, it is presumed that the officer of the Environment and Health Office who certified exhibit E was a public officer who had custody of the document. See also: section 124 of the Evidence Act. The said document is duly dated and signed by the said officer with his name, and official title. The only complaint is that the certification was done at the back of the document. With respect to learned senior counsel, I am of the view that the fact that the document was certified at the back rather than on its face cannot detract from the essence of the certification, which is confirmation by the said officer that the certified document is a true copy of the public document in his custody.
It was argued on behalf of the appellants that exhibit E is inadmissible on the ground that it is a document within the meaning of section 91(3) of the Evidence Act. Section 91(3) provides:
“Nothing in this section shall render admissible in evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”
I hold that exhibit E cannot by any stretch of the imagination be described as a statement. In any event from the evidence of PW4 the document had been in existence before the presentation of the petition, as he obtained a photocopy of it from the 2nd appellant’s university. According to his evidence he merely went to Jos to obtain a certified copy thereof. Section 91(3) therefore does not apply to exhibit E.
The alleged discrepancy between the name of the 2nd appellant and his names as contained in exhibit E was rightly held by the Tribunal not to be a factor that affects the admissibility of the document. The test to be applied in considering the admissibility of a document is relevance. See: Agbahomovo & Ors. v. Eduyegbe & Ors. (1999) 3 NWLR (Pt. 594) 170; (1999) 2 SCNJ 54. The tribunal correctly applied this test and found the document to be relevant to the facts in issue and therefore admissible in evidence.
Finally on exhibit E it is contended that the document was not pleaded. It is averred in paragraph 9 of the petition at page 3 of the printed record as follows:
“Your petitioners will at the trial of this petition rely on various documents including the 1st respondent’s statutory declaration of age, various other documents relating to the 1st respondent’s age including school and college records which the respondents are hereby put on notice to produce.”
The legal position is that documents in support of facts need not be pleaded and they can be tendered in support of pleaded facts. See: Odunsi v. Barngbala (1995) 1 NWLR (Pt. 374) 641 at 66; Monier Construction Co. v. Azubuilke (1990) 3 NWLR (Pt. 136) 74; Okonkwo v. C.C.B. (Nig.) Plc. (2003) 8 NWLR (Pt. 823) 565. The 1st and 2nd respondents having pleaded that the 2nd appellant was below the age of 30 years could properly tender exhibit E in support of that fact. Furthermore I agree with learned counsel for the 1st and 2nd respondents that having regard to the sole ground of the petition the appellants could not have been taken by surprise by the tendering of a document relating to the 2nd appellant’s age to support their pleading that he was under-age at the time of the election.
Having considered and resolved all the issues raised in respect of exhibit E I hold that the document was properly admitted in evidence.
The next issue to consider is the evidence adduced in respect of the age of the 2nd appellant. It is contended on behalf of the appellants, relying on the authority of Gbadamosi v. Azeez (supra) that where there is conflicting affidavit evidence regarding the age of a person, oral evidence of the biological parent or a person who witnessed the birth is the best evidence in the circumstances. In the present case the conflict that has arisen is based on the documentary evidence produced on either side.
On the side of the 1st and 2nd respondents are the 2nd appellant’s school records, which state his date of birth as 15/1/75 and a certified true copy of his birth certificate, which also states his date of birth as 15/1/75. On the side of the 2nd appellant there is the oral testimony of his father and exhibit F, also a birth certificate stating that he was born on 15/1/73. The issue to be considered is whether the tribunal had a duty to weigh the respective pieces of evidence before it and ascribe probative value to one or the other or whether once the biological father had testified his evidence must be accepted without further ado. The decision in Gbadamosi’s case (supra) that priority ought to be given to the evidence of the biological parent of the person whose age is in issue cannot be faulted. That case did not however lay down the principle that the evidence of the biological parent must be accepted in every case. Each case must turn on its own peculiar facts. Gbadamosi’s case is not on all fours with the present case. In this case, having regard to the evidence before it, I am of the view that the tribunal had a duty to weigh it on an imaginary scale and determine on which side the balance tilted. The fact that a witness is the biological father of the person whose age is questioned does not automatically make him a witness of truth. The tribunal also had a duty to consider the credibility of the witnesses.
The tribunal had two birth certificates before it. There was also other evidence in support of each certificate. In support of exhibit E were the 2nd appellant’s secondary school and university records (exhibits D1 and B18). In both exhibits the 2nd appellant’s date of birth is said to be 15/1/75. In exhibit B 18 as in exhibit E his place of birth is given as Jos. In exhibit E the full names of both parents are stated. His father’s occupation: police officer, and address: Nigeria Police Station, Mushin, Police Officers Quarters, Lagos are also stated. In exhibit B18 his state of origin is given as Jigawa State. Most of these facts were confirmed by DW1, the 2nd appellant’s father in his evidence under cross-examination. He admitted that he married his wife in Jos in 1969 where he was posted at the time. He agreed that his wife’s names were as stated in exhibit E and that he hails from Jigawa State. He also admitted that he was at Mushin, Lagos in 1975 as stated in exhibit E. The only thing he disagreed with was the date of birth. At page 84 of the record he stated in the course of his examination-in-chief,
“I do not agree with the age he stated therein [exhibit D], the 1st respondent did not approach me to give him information as to his age before completing exhibit D … I do not know why 1st respondent continue (sic) to fill forms and state the year of his birth as 1975.”
With regard to exhibit F, although DW 1 maintained that it is the authentic document regarding his son’s age and shows that he was born on 15/1/73, he also stated that its production before the tribunal was the first time it would be seen by anyone but himself since he obtained it 30 years earlier. Under cross-examination he stated that he is a graduate of the University of Lagos and that he retired from the Police Force as a Commissioner of Police. The question to be answered is whether the tribunal properly evaluated this evidence and whether its conclusion is perverse.
Earlier in this judgment, I reproduced the portion of the judgment at pages 32-34 of the record complained of by the appellants. Learned senior counsel for the appellants contended that the tribunal’s finding that DW1 was not a credible witness was based solely on the fact that exhibit F had been kept in a safe and that no one had asked for it until it was produced before the tribunal. The portion relied upon by the appellants does not represent the full reasoning of the tribunal. The view expressed is therefore not an accurate representation of the judgment. Before coming to the conclusion that DW 1 was not a credible witness the tribunal observed at pages 31-32 of the record as follows:
‘DW1 under cross-examination when confronted with exhibit E admitted that all the information contain (sic) therein resemble him, his son, his wife and his location at the time the document was made, that is 1975.
His only grouse with the document is the absence of the name “Ibrahim” as part of the child’s name and for that reason the document is a fabrication as that is not the way he writes his son’s name. The witness had earlier testified that the name Ibrahim is his own name. When confronted with exhibit B18, he testified as follows:-
‘The photograph in exhibit B18 is that of my son the 1st respondent. At the top of that document I see the personal details relating to him. It is correct that the document shows his date of birth as 15th January, 1975. The date of birth is the same as in exhibit E. The document also shows that the 1st respondent hails from Ringim Local Government of Jigawa State. It also shows the place of birth of my son as Jos. My son does not come from Jigawa State. I am the one that comes from Jigawa State. As far as I am concerned all personal details contained in that document are wrong except the name. The information given there are fabricated, the same manner exhibit E is fabricated.’
DW1 had earlier admitted that both his parents hail from Ringim Local Government of Jigawa State.
When also confronted with D-D7 1st respondent’s record from Bayero University, Kano, he accepted as correct all the information in all those documents, except the date of birth of the 1st respondent as shown in exhibit D.
He did also accept as correct the contents of exhibit A3 except paragraph 3 thereof which concerns the date of birth of 1st respondent. With regards to exhibit F the birth certificate he tendered as that of the 1st respondent, DW1 had testified that no one knows about the document, not even his son or his brother who was in charge of the 1st respondent’s education at secondary and university levels. His late cousin who was initially in charge of the 1st respondent’s education also did not know about it. According to the witness exhibit F was under lock and key in his safe.
He admitted under cross-examination that contesting an election involved screening of candidates credentials, he himself having contested the governorship election of Kano State but that it did not surprise him that his son the 1st respondent never once demand (sic) evidence of his birth registration. He never supplied that information to St. Thomas’ Secondary School or to Bayero University, Kano, even though he knew that they are required at every stage of the 1st respondent’s life. His reason being that no one asked him for it.
The tribunal finds the evidence of DW1 quite incredible and therefore does not believe him.”
It was held in Rotimi v. Faforimi (1999) 6 NWLR (Pt. 606) 305 at 310 ratio 8 that “believing or disbelieving a witness is the exclusive competence of a trial court; and where such belief is supported by evidence, the judge cannot be said to have failed to make use of the opportunity of his having seen and heard the witness. Consequently, the Court of Appeal will not interfere.” After a careful perusal of the judgment I find that the tribunal reached its conclusions after painstakingly evaluating all the evidence before it and properly making use of the opportunity of having seen and heard the witnesses. I find no reason to interfere with its findings. This issue is therefore resolved against the appellants.
Finally, it is submitted on behalf of the appellants that in the course of the judgment the tribunal held that exhibit L7 the sworn declaration of age submitted to INEC by the 2nd appellant along with exhibit L was a forged document. It is contended that the issue was raised and determined Suo motu by the tribunal without affording the parties an opportunity to address it and therefore any decision based on the issue is null and void. I have examined the pleadings of the parties before the tribunal and I agree with learned counsel for the appellants that the issue of forgery in respect of exhibit L7 was not raised by either of the parties. The tribunal was therefore wrong to have made a finding on the issue without affording the parties an opportunity to address it on it.
However not every error of law committed by a trial or appellate court will justify the reversal of a judgment. The appellant must further demonstrate or show that the error of law in the case in question occasioned a miscarriage of justice. The error must have substantially affected the result of the decision. See: Imah v. Okogbe (1993) 9 NWLR (Pt. 316) 159 at 178 B-E; Ajuwon v. Akanni (1993) 9 NWLR (Pt. 316) 182 at 205 B-D, Olubode v. Salami (1985) 2 NWLR (Pt. 7) 282.
Before making the observation regarding exhibit L7 the tribunal had made the following finding at page 34 of the record:
“Considering therefore the totality of the evidence before this tribunal, both oral and documentary, the tribunal is satisfied that the petitioners have discharged the legal burden on them to establish their case on the preponderance of evidence that the 1st respondent was at the time of the election under the age of 30 years having been born on 15th January, 1975 which makes him just over 28 year’s old as at 3rd of May, 2003 when the elections were held. This is contrary to section 106(b) of the 1999 Constitution of the Federal Republic of Nigeria.”
It is clear from the above that the decision of the tribunal was based on the totality of the evidence before it and not on the issue of forgery. I am of the view that the tribunal’s finding on exhibit L7 did not occasion a miscarriage of justice, as there were other grounds, independent of exhibit L7, upon which the tribunal found that the petitioners had proved their case. The Supreme Court held in: Ajuwon v. Akanni (supra) at 205 B that an error of law that occasions no miscarriage of justice is immaterial. I so hold in this case.
In conclusion, I find no merit in this appeal. It is accordingly dismissed. The judgment of the Governorship and Legislative Houses Election Petition Tribunal, Kano State presided over by Hon. Justice S. D. Bage delivered on 6th August, 2003 is hereby affirmed.
Costs are assessed at N5,000.00 against the appellants in favour of the 1st and 2nd respondents.
Other Citations: (2006)LCN/1881(CA)
