Bashar Isah & Anor V. Ibrahim Bawa Kamba & Ors (2008)
LawGlobal-Hub Lead Judgment Report
AMINA ADAMU AUGIE, J.C.A.
Election into the House of Representatives took place on the 21st of April, 2007 in Kebbi State, and the 1st Respondent, who had been the candidate of the All Nigeria Peoples Party [ANPP] before he decamped and contested the election under the banner of the PDP, was declared as the duly elected Representative for Arewa/Dandi Federal Constituency. Dissatisfied, the Appellants filed a petition at the Kebbi State National Assembly, Governorship and Legislative Houses Election Petition Tribunal (hereinafter referred to as the Tribunal), where they prayed that it may be determined
i) That Ibrahim Bawa who was returned by the 3rd – 4th Respondents as the Hon. Member elect for the Arewa/Dandi Federal Constituency at the election held on 21st April, 2001 was not duly elected and his election is therefore void.
ii) That the 1st Respondent was not qualified to contest the election … under the flag of the 2nd Respondent or at all.
iii) That the said election … was characterized by pervasive non-compliance with the Electoral Act which non-compliance has substantially affected the result of the election and that the election be annulled for non-compliance with the provisions of Electoral Act 2006.
iv) That the 1st Respondent was not validly nominated as a candidate…
v) That a fresh election be conducted into the Arewa/Dandi Federal Constituency in accordance with the provisions of Section 147 of the Electoral Act 2007.
The grounds on which the Petition is based are set out in paragraphs 13 i.e.
i) The 1st Respondent was at the time of the election, not qualified to contest the election.
ii) The election was invalid by reason of corrupt practices and/or non-compliance with the mandatory provisions of the Electoral Act 2006.
The 1st & 2nd Respondents entered a conditional appearance and later filed the following processes, a notice of Preliminary Objection praying that the Petition be dismissed or struck out; a Reply to the Petition encompassing a Notice of Preliminary Objection praying for same; and a Motion on Notice that prayed for same. The Grounds for the objection are that it is –
i) Incompetent and discloses no cause of action against them;
ii) Improperly constituted;
iii) Not grounded or rooted in the Electoral Act, 2006;
iv) Not vesting any jurisdiction in the Tribunal to entertain it.
Although written Addresses on the objection were filed and exchanged, it was agreed at the pre-trial conference that it should be rolled over and considered with the substantive Petition. After the pre-trial conference, the Tribunal issued a Report embodying the Issues agreed on by parties, i.e. –
(1) Whether in view of the facts and documentary evidence before this Hon. Tribunal, the 1st Respondent was qualified to contest the election into the House of Representatives held on the 21/4/07 as a candidate of the 2nd Respondent.
(2) Whether the tribunal has jurisdiction to entertain the Petition.
(3) Whether the 1st Respondent was in the circumstances validly returned as the winner of the said election by the 3rd & 4th Respondents.
It was also noted that “Paragraph 13 (ii) of the Petition relating to the invalidity of the election due to corrupt practices and/or non-compliance with the Electoral Act 2006 was abandoned and struck out”. At the trial, Suleiman Usman, Legal Adviser of the 2nd Appellant, Sokoto State Chapter, testified as PW1 and a number of documents were admitted in evidence through him as Exhibits P1-P4 & 6. However, a letter he wrote to the National Secretary, ANPP dated 2/5/07, and the said Secretary’s reply to him dated 9/5/07 were rejected in evidence and marked as – Exhibits P5 (a) & (b) Rejected, on the ground that the first letter, which led to the second, was made by a person interested at a time litigation is contemplated.
The 1st & 2nd Respondents also called one witness, Saidu Umar Maigishiri, who said he was not literate and since he could not identify his Statement, it was rejected and marked as – Exhibit R1 Rejected. The 3rd & 4th Respondents filed a Reply to the Petition but did not call any witnesses. Thereafter, written Addresses were adopted, and in its Judgment delivered on the 28th of September 2007, the Tribunal held that the Petition lacked merit and it was dismissed. Dissatisfied, the Appellants appealed to this Court with a Notice of Appeal containing seven Grounds of Appeal. Briefs of Arguments were duly filed and exchanged and in the Appellants’ brief, it was submitted that the following four Issues arise for determination –
- Whether or not the Honourable Tribunal was right in making a finding on the evidential value of a document, which it had marked rejected whilst neglecting to ascribe probative value to other exhibits tendered before it and the oral evidence given.
- Whether or not the Honourable Tribunal was right in rejecting Exhibit P5 in evidence having regard to the provisions of Section 91 (3) of the Evidence Act and the circumstances of said Petition.
- Whether having regard to the combined effect of Sections 34, 36 and 38 of the Electoral Act 2006, the 1st Respondent is not disqualified from contesting election into the House of Representatives for the Arewa/Daudi Federal constituency held on the 21st of April, 2007.
- Whether or not in view of the facts before the trial Tribunal, the Appellants proved their case and whether the fact that ANPP fielded another candidate for the election can validate the invalid withdrawal of the 1st Respondent as ANPP candidate.
The 1st & 2nd Respondents however submitted in their own brief that the two Issues that call for Determination in this appeal are as follows –
- Whether or not Ground two of the Notice of Appeal is Competent, or in the alternative, whether or not the Lower Tribunal was right in rejecting “Exhibits P5A and P5B Rejected”.
- Whether or not the Lower Tribunal was right in dismissing the Petition on the ground that it lacks merit and bound to fail.
The 3rd & 4th Respondents submitted that the Issues for determination are –
i. Whether Ground 2 of the Notice of Appeal is competent and ought not to be struck out.
ii. Whether 1st Respondent at the time of the election (sic) not qualified to contest the election and subsequently validly elected and or, Whether the Appellants have grouse to nurse against the Respondent.
The 3rd & 4th Respondents withdrew their Notice of Preliminary objection and their Issue 1 at the hearing of the appeal, and they were struck out. The 1st & 2nd Respondents’ Issue 1 is also an objection to Ground 2 of the Appellants’ Grounds of Appeal, but as the Appellants pointed out in their Reply Brief, they did not file a Notice of Preliminary Objection to that effect. It is true the 1st & 2nd Respondents did not file any Notice of Objection.
Order 10 rule 1 of the Court of Appeal Rules, 2007 specifically states that a Respondent intending to rely on a preliminary objection shall give the Appellant three clear days notice before the hearing, setting out the grounds of objection – see also First Bank Plc. V. Akparabong Community Bank Ltd. (2006) 1 NWLR (pt 962) 438. In other words, where a Respondent seeks to raise a preliminary objection to the Grounds of Appeal, he is to give notice of his preliminary objection, which may be filed in the brief or separately, but must be raised early in the proceedings. The normal practice is to adduce arguments in support of the Preliminary Objection, and then formulate Issues in relation to the Grounds of Appeal – see NITEL Ltd. V. Jattau (1996) 1 NWLR (Pt. 425) 392, where it was held that any issue formulated in the brief must relate to the Grounds of Appeal and it is wrong to formulate an issue to encompass a preliminary Objection. In this case, the 1st & 2nd Respondents did not file any Notice of Preliminary Objection challenging the competency of Ground 2 of the Appellants’ Grounds of appeal, and their Issue 1 will be discountenanced. As it stands, I will adopt the Appellant’s Issues in dealing with this appeal. Issue NO.1, complains against the following comment of the Tribunal at page 157 that-
“The main document relied on by PW 1 as evidence of double nomination of 1st Respondent a letter written by ANPP to him was rejected and marked Exhibit P3 (sic) rejected.” (Underlining theirs)
It was contended that the use of the word “Main” therein imputes that their Petition depended entirely on “Exhibit P5 Rejected” and the fact that it was rejected and so marked would make it impossible to prove their Petition.
Relying on the statements of Olatawura, JSC in ACB Ltd. V. Gwagwada (1994) 5 NWLR (Pt. 342)125, and Ogundare, JSC in Agbaje V. Adigun (1993) 1 NWLR (Pt. 269) 464, they submitted that a rejected document has no probative value in law and cannot be tendered again or relied upon by either side, and cannot be commented upon by the trial Judge; that the “employment of the perverse word “Main” in the Tribunal’ description of the rejected exhibit”, sealed the fate of all the other exhibits they tendered; that the comment condemned their evidence, particularly as there was nothing to indicate that the rejected exhibits were their strongest evidence of double nomination; and that the Tribunal has a duty to evaluate the evidence properly and justly and failure to do so resulted in a miscarriage of justice, citing UBA Plc. V. Mustapha (2004) 1 NWLR (Pt 855) 443. They “demonstrate (d) the evidential purport of the admitted documents which the Tribunal failed to evaluate” at pages 8 – 11 of their brief and argued that if the Tribunal had taken time to ascribe proper probative value to them as opposed to commenting on the strength of an already rejected document, it would have made findings of facts supporting their claims and held that the claims were proved. The 1st & 2nd Respondents however argued that the Issue is frivolous, and submitted that with the rejection of the Exhibits, the relevant paragraphs in PW1’s Witness Statement are paragraphs 1, 2, 3, 6 & 7, which do not constitute evidence; and that failure to lead evidence to prove the allegations in paragraph 14 is fatal to the Petition, citing ACB v. Haston (Nig) Ltd. (1997) NWLR (Pt.515) 110. They further argued that the Appellants are in effect saying that the Tribunal should have read speculative meanings into Exhibits P1-P4 & P6, and wondered why so much is being made of the true statement of the Tribunal that the main document relied upon by PW1 as evidence of double nomination, as alleged, was rejected and marked as Exhibit P5 Rejected.
I have to wonder as well; this is an appeal, which is always against the decision of the lower Court and a challenge to the validity of that decision. More importantly, an appeal is against the ratio of the lower Court’s decision and nothing else; it can never be at large – see Chukwuogor V. Chukwuogor (2006) 7 NWLR (Pt. 979) 302, N.D.I.C. V. Okem Ent. Ltd. (2004) 10 NWLR (pt 88(1) 107. In this case, the Tribunal made the comment complained against when it was setting out the facts, as follows –
“At the hearing, the Petitioners called their sole witness PW1 … He adopted his sworn written deposition and was cross-examined. The following documents were admitted in evidence as Exhibits through this witness –
- PDP letter of substitution of 5/2/2007, Exhibit P1
- Affidavit in support of personal particulars of 1st Respondent, Exhibit P2
- Nomination Form of 1st Respondent, Exhibit P3
- Letter from National Chairman PDP dated 19/2/07, Exhibit P4
- Merger Agreement dated 8/2/07, Exhibit P6
The main document relied on by PW1 as evidence of double nomination of 1st Respondent – a letter written by ANPP to him was rejected and marked as Exhibit P5 Rejected”. (Italics mine)
The Appellants appear to be saying that the use of the word “Main” in describing ‘Exhibit P5 Rejected’ means that the Tribunal closed its mind to the other Exhibits in evidence and refused to evaluate them because it believed that Exhibit P5 Rejected was the only evidence to prove their case, but that is a very strange way to complain against the Judgment of a Court. By highlighting the use of a word in the Tribunal’s Judgment and giving it a negative connotation, the appellants are more or less insinuating that the Tribunal was hell-bent on denying them justice, which is why it closed its mind against the other exhibits, and that is a very serious allegation indeed. I have had cause to reprimand counsel that Politicians may consider elections a do or die affair, but counsel should refrain from following them. They are Ministers in the temple of justice and they owe their allegiance to the law; Politicians will come and go but the law will, for all times, remain, and the law requires and expects the Appellants’ counsel to challenge the validity of the Tribunal’s decision itself, nothing more and nothing less.
In this case, the Tribunal did not mince words; its decision is clear, it said-
“Now to Sections 36 and 35 of the Electoral Act; the claims of non-compliance with the Sections are not borne out by the averments in the Petition and evidence led. They alleged in Paragraph 14 … that the 1st Respondent was at all material times a member of the ANPP and its candidate for the Arewa/Dandi Federal Constituency elections and did not serve his notice of withdrawal of his candidature before his nomination contrary to Section 36 and 38 of the electoral Act. The only evidence adduced by the Petitioners in proof of this is a letter dated 9/5/07 written by ANPP to PW1 which letter we have rejected as having been written by an interested party at time litigation was contemplated. There is no further evidence to back up the claim of the Petitioners.” (Italics mine)
The Appellant’s Issue 1 is beyond frivolous; it is absolutely uncalled for. True enough, the Tribunal did hold that apart from the rejected Exhibits, there was no other evidence to back up the Appellants’ claims, but that is the decision they should challenge head on and question whether the Tribunal was right to so hold, and not take the long route unknown to law. Be that as it may, the second Issue formulated by the Appellants is whether or not the Tribunal was right to reject Exhibit P5 in evidence having regard to Section 91 (3) of the Evidence Act, which provides as follows –
“Nothing in this Section shall render admissible as 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”.
The Section 91 applies only to statements in documents, and from its subsection (3), it is clear that before such statement can be admitted, it must not have been made by a “person interested” or “when proceedings were pending or anticipated”. In this case, “Exhibit 5 (a) Rejected” which was not admitted in evidence because PW1 is a person interested, reads –
“With the greatest humility, I humbly write to request for clarification in respect of candidate sponsored by your party in Kebbi State who also dramatically announced over the media on the 14th of February, 2007 that they are candidates for PDP for offices of Governors, Senatorial and House of Representatives Seats in the just concluded 2007 Elections. They alleged there was a merger between ANPP and PDP under the Electoral Act. A candidate who is nominated by a party must withdraw his candidature 70 days to the day of election and notifiy the party sponsoring him. We therefore wish to know whether ANPP Governorship candidate, Alhaji Saidu Dakingari, Senatorial Candidates and others withdrew their candidature maccido (sic) before they were purportedly nominated by the PDP on the 14th of February, 2007…”
“Exhibit P5 (b) Rejected” is the reply to PW1’s letter, and it reads-
“Your letter dated 2nd May, 2007 refers. I am directed to inform you on behalf of the ANPP that there was ho merger between the ANPP and PDP because there is no evidence of such with us from the candidates or the PDP. Also our Governorship candidates in Sokoto and Kebbi did not withdraw their candidature before they were purportedly nominated as required by the Electoral Act 2006. We heard over the media that these candidates have been nominated by the PDP under a purported merger that the ANPP was never part of. As at the 15/2/2007 the Governor of Kebbi State Mohammed Adamu Ailero reaffirmed his loyalty to the Party ”ANPP”. We were shocked to hear the same Governor on BBC the following day saying that there was a merger between the ANPP and the PDP. The position of the ANPP as a Political party governed by the Laws of the Land is that there was/is no merger in Sokoto and Kebbi at all levels of elective offices to warrant its candidates representing these States in the 2007 General Elections under ANPP to be purportedly nominated again by a separate and distinct Political Party by the name PDP. This we certify in good faith and for the records. Accept the assurances of my highest and esteem regards”. (Italics mine)
The Appellants’ contention is that the above reply was wrongly rejected to evidence as it was not written by a person interested in the proceedings, citing Nwangwa V. Uban (1997) 10 NWLR (Pt.526) 559. It was further submitted that the maker was simply giving information in answer to an enquiry; that the document does not qualify as made by a party interested as the ANPP was not a party to the Petition; that the maker is not in the employment of a party to the proceedings, citing Aneaebosi V. R.T Briscoe (Nig.) Ltd. (1987)3 NWLR (Pt. 59) 89; Evon & Evon V. Noble (1949) 1 KB 222, & NITEL V. Ogunbiyi (1992) 7 NWLR(Pt.225) 543; and that the relevant disqualifying interest is a personal interest and not mere interest in an official capacity as in this case. Furthermore, that the Supreme Court has held that only the winner of a challenged election has an interest in defending the Petition, citing Buhari V. Yusuf (2003) 14 NWLR (Pt 841) 446; and that the admissibility of the reply does not depend on whether PW1’s letter is admissible as they are separate and distinct documents made by different persons in different capacities and with different incidences, thus the reply is not made by a person interested within the intendment of Section 91 (3) in the con of an election.
The 1st & 2nd Respondents however submitted that the Appellants’ counsel admitted before the Tribunal that PW1 was a “person interested”, which sealed the matter, and argued that if PW1’s letter does not exist then the reply to it cannot also exist. This Court was urged to discountenance the unimpressive slant given by the Appellants to Section 91 (3) of the said Act. They are right; the Appellants’ counsel did concede at the Tribunal that PW1 is a person interested but argued that the reply to his letter “is not caught by Section 91 (3) of the Evidence Act” (see page 142 of the record). The Appellants’ grouse in this appeal is that the reply was wrongly rejected because it was not made by a person interested in the proceedings, but how can that line of argument be sustained? Let us look at the facts again. The election in question was conducted on the 21st of April, 2007, and the candidate of DPP (i.e. 1st Appellant) lost the election to PDP’s candidate (i.e. 1st Respondent). PW1 as Legal Adviser to DPP wrote the letter dated 2nd of May, 2007 to the National Secretary of the ANPP, requesting for clarification in respect of ANPP’s candidates who “dramatically, announced over the media on the 14th of February, 2007 that they are candidates for PDP for offices of Governor, Senatorial and House of Representative seats”. No question – PW1 is not only a person interested, he wrote the letter when proceedings were anticipated, and the Tribunal was right to reject it. Now, what of the reply from the National Secretary of ANPP dated 9th May, 2007, which owes its very existence to PW1’s letter dated 2nd May, 2007? In answering that question it must be remembered that a person not interested, and who therefore does not come under the provision of Section 91 (3) of the Evidence Act is -“a person who has no temptation to depart from the truth on one side or the other – a person not swayed by personal interest, but completely detached, judicial, impartial, independent” – see Bearmans Ltd. V. Metropolitan Police District Receiver (1961) 1 WLR 634.
In other words, for the maker of a statement to be a “person interested” within the con of Section 91 (3), he must have the real likelihood of being biased concerning the matter he writes upon” – see Lawal V. UTC Nig. Plc. (2005) 13 NWLR (943) 601. In the circumstances of this case, three questions come to mind – can the reply dated 9th May stand alone? Can the National Secretary of ANPP be described as an impartial person? Was the reply of 9th May not written when proceedings were anticipated? The answer to the first question is – No, the reply of 9/5/07 is a follow-up to the letter of 2/5/07, and would not have come into existence without it. The answer to the second is also – No, the National Secretary of ANPP cannot be free of bias, and this is evident from the very tone of his reply –
“…We heard over the media that these candidates have been nominated by the PDP under a purported merger that the ANPP was never part of. As at the 15/2/2007 the Governor of Kebbi State Mohammed Adamu Ailero reaffirmed his loyalty to the Party “ANPP”. We were shocked to hear the same Governor on BBC the following day saying that there was a merger…” (Italics mine)
And the answer to the third question is – Yes, PW1’s letter and the reply thereto were clearly made when proceedings were pending or anticipated. The said letters were written in between the 21st of April, 2007 when the election took place and the 21st of May, 2007 when the Petition was filed. From whatever angle one looks at it; the said reply did not stand a chance, it was clearly as inadmissible in evidence as the letter that led to its making and the Tribunal was therefore right to reject it in evidence. In any case, the said letters would have been of no use to the Appellants in this case. Apart from the Governors who were specifically named, there is nothing therein to link the 1st Respondent with the candidates who did not withdraw from ANPP before they were nominated by the PDP. It is one thing to brandish a document in Court and quite another thing to use it to establish any fact in issue. The 1st Respondent was not named at all therein, and the rejected letters could not have been used to prove anything against him.
We now come to Issue No.3, and here the Appellants argued, citing Coker v. Olukoga (1994) 2 NWLR (Pt 329) 648, that having averred in their reply that the 1st Respondent had withdrawn as a candidate of the ANPP, the Respondents had a duty to lead credible evidence in proof of their assertion of valid withdrawal by the 1st Respondent, which they failed to do; that any averment not supported by evidence is deemed abandoned, citing Iluyomade V. Ogunshakin (2001) 8 NWLR (PT 716) 559; that it was incumbent on the Respondents to specifically deny the “material and positive averments in the petition, supported with frontloaded documentary evidence”, but they merely deposed to a general averment, which had been held not to be a proper denial, citing Jacobson Eng. Ltd. V. UBA Ltd. (1993) 3 NWLR (Pt 283) 586; that the Respondents never thought it significant to deny the averment that the substitution of the 1st Respondent predated the alleged merger of ANPP with PDP in Kebbi State, thus there were no sufficient and positive denial of all the Appellants claim, citing Dikwa V. Modu (1993) 3 NWLR (PT. 280) 170 & Sanusi V. Makinde (1994) 5 NWLR (Pt 343) 214; and that in the absence of facts suggesting or establishing the contrary, their evidence is deemed proven and the Tribunal was bound to act oh same, and hold that the willful and flagrant infractions of the provisions bf the Electoral Act render the 1st Respondent ineligible to contest election. They also canvassed arguments on the issue of qualification or non-qualification as a ground for an election Petition, but it will not necessary to go into that here. The 1st & 2nd Respondents referred this Court to the Tribunal’s findings and argued as follows –
“Instead of attending to these findings that conclusively sealed the fate of their case and buried it, the Appellants went about chasing shadows and strived to embrace the air with arguments about purported admissions made by the Respondents and some esoteric burden that shifted to the Respondents. From the binding findings of the Tribunal there was never a time at the trial that the burden of proof shifted from the Appellants to the Respondents… no matter how fanciful or brilliant counsel’s arguments – they do not pass for evidence”.
On their part, the 3rd & 4th Respondents also argued that the onus was on the Appellants to prove at the Tribunal that the 1st Respondent was not qualified to contest the election, and they woefully failed to prove that fact, and that PW1’s evidence showed that the 1st Respondent won the election. The question here, is – who had the burden to prove the allegation in issue? To answer it, I will repeat what I said in my Judgment on a similar appeal, Nuhu Ahmed V. Lawal Yakubu & 39 ors (Appeal No. CA/K/EP/SHA/74/07), which was delivered on the 27th of June 2008, wherein I stated as follows –
“…This appeal turns on the question of “proof”, which not only means the “establishment and refutation of an alleged fact by evidence”, but also means “evidence that determines the Judgment of a Court” – see Black’s Law Dictionary, 7th Ed. Section 135 (1) of the Evidence Act says that-
“Whoever desires any Court to give Judgment as to any legal right … dependent on the “existence of facts which he asserts must prove that those facts exist”?
The simple and down to earth translation is “he who asserts must prove” – see Kalu V. Uzor (2006) 8 NWLR (Pt. 981) 66. In other words, it is the party that asserts the existence of a particular fact that must prove that fact, and if he fails to do so, his case will collapse like a pack of cards … The Appellant’s whole case hangs on his allegation that the 1st Respondent did not withdraw his nomination as a candidate of the ANPP before he was nominated as a candidate by the PDP, and to have his way he must prove It. However, the Appellant had the unlikely notion that all he has to do is make an allegation and it is for the Respondents to run around to disprove same. But that is not the way it works under the law; it is he who made the allegation and it is he who must therefore prove it, not the 1st Respondent. Thus, his submission that under the law, it is incumbent on the 1st Respondent to establish that he personally wrote the letter of withdrawal, and personally delivered the letter to his party, etc., is an attempt to twist the law. The onus is on him to prove his assertion and he must discharge that burden successfully before it can shift to the 1st Respondent to prove the contrary – see Section 137 (1) & (2) of the Evidence Act. In other words, the Appellant must show a prima facie case before the need to consider the case put forward by the Respondents will arise…”
In this case, the Appellants argued as follows at page 15 of their brief –
“The 1st & 2nd Respondents admitted the 1st Respondent being the initial candidate of ANPP… In the course of trial, they did not lead any evidence on the withdrawal of candidature of the 1st Respondent. This is in spite of their forceful averment to that effect… The Respondents having asserted that the 1st Respondent had withdrawn as a candidate of the ANPP, they have a bounden duty to lead credible evidence in proof of their assertion of valid withdrawal by the 1st Respondent. This they failed to do. – There is no proof of his withdrawal. Any averment that is not supported by evidence is deemed abandoned”.
I do not know what to say; I am short of words and can really appreciate the 1st & 2nd Respondents’ submission that the Appellants “strived to embrace the air with arguments about purported admissions made by the Respondents and some esoteric burden that shifted to the Respondents”. Surely, the Appellants’ argument is an absolute fallacy; the 1st & 2nd Respondents never denied the fact that the 1st Respondent had initially been the candidate of the ANPP, the issue before the Tribunal was whether he was still a candidate of the ANPP as at the time he was nominated by the PDP, and the onus was on the Appellants to make out a prima facie case of double nomination against the 1st Respondent before the burden shifts to the 1st & 2nd Respondents to establish that the withdrawal is valid. Did the Appellants discharge that burden on them? They argued that they proved their claim of double nomination, but the Tribunal failed to so hold. Let us look at the Exhibits they argued that the Tribunal did not evaluate -Exhibit P1 is dated 5th February, 2007, addressed to the Chairman of INEC, it is signed by National Chairman and National Secretary of PDP and reads-
“This is to inform you that Ibrahim Bawa Kamba is the PDP Candidate for Arewa/Dandi Federal Constituency, Kebbi State. Ibrahim Bawa Kamba substitutes the earlier name for the aforementioned constituency, which was submitted without enough information. This is for your necessary action”.
Exhibit P2 is an Affidavit of personal particulars of the 1st Respondent and Exhibit P3 is the Nomination Form of the 1st Respondent, which evidence the fact of the 1st Respondent’s nomination and sponsorship by PDP. Exhibit P4 dated 19/2/07, is another letter from PDP’s National Chairman; it is addressed to the HOD, Legal Services Department of INEC and it reads –
“Re: Withdrawal Letters
Please refer to your letter dated 17th February, 2007 on the above subject matter. All those letters written withdrawing originally submitted names and substituting them with new ones were not authorized by me. Some of the letters carried my forged signature and other was signed by people I do not know and who have no locus standi to sign letters in my absence. I was away on tour of the North east Zone and could not be reached easily. Everything will be done to send you updated letters on the Issue”. (Italics mine)
The Appellants submitted that it is evident from Exhibit PW4 that the PDP National Chairman categorically denied writing and/or signing Exhibit P1 and indicated that his signature was forged; that Exhibit P4 rendered the substitution purported to have been effected vide Exhibit Pi ineffective; that Exhibit P4 is against the interest of the 2nd Respondent and is thus caught by Section 19 & 20 (1) of the Evidence Act; and that Courts are normally disposed to accepting a statement as an admission where it is against the maker’s interest, citing D.P.P. V. Kilboune (1973) AC 729, Seismograph Service (Nig.) Lt. V. Eyuafe (1976) 9-10 SC, Anigbogu V. Uchejigbo (2002) 10 NWLR (Pt. 776) 472, F. H. Arta Ind. (Nig) Ltd. V. NBCI (1998) 4 NWLR (Pt 546) 357. It was further argued that since Exhibit P1 was denounced by the PDP Chairman, the 1st Respondent was not properly substituted as the candidate of PDP for the election though he was nominated and purportedly sponsored by the PDP for the said election, and so the 1st Respondent was not withdrawn as a candidate of the ANPP in accordance with Section 36 of the Electoral Act, and Electoral Guidelines. The 1st & 2nd Respondents however argued that the Appellants are in effect saying that the Tribunal should have read speculative meanings into the said Exhibits other than the ordinary and natural meanings they convey. Obviously, the Appellants’ arguments on this score cannot hold water; not only is there nothing on the face of Exhibit P4 to link the 1st Respondent and his substitution with the denouncement made therein, the Appellants are more or less alleging that a forged document was used to effect the substitution, which is a criminal allegation that must be proved beyond reasonable doubt. They cannot just make an allegation like that without more, they must go further to prove it and do so beyond reasonable doubt. Election Petitions are not exempt from the law that says that an allegation of crime in ANY proceedings must be proved beyond reasonable doubt.
The Appellants cannot expect a Court to accept Exhibit P4 without more, and act on it as proof that the 1st Respondent was not properly substituted, and proof that he was not validly withdrawn as a candidate of the ANPP. Proving a fact in issue is certainly not as easy as that; Courts do not speculate and certainly do not act on speculation, which is what the Appellants want this Court to do, as the 1st & 2nd Respondents submitted. Yes, the PDP National Chairman denounced letters like Exhibit P1, but did he denounce Exhibit P1 in particular? He denounced such letters because (i) some of them were not authorized by him; (ii) some of them carried his forged signature; and (iii) some others were signed by people he did not know and who had no locus standi to sign letters in his absence – which category did Exhibit P1 belong to? These are questions begging for answers, and in the absence of any answers, the allegation is not proved. The bottom line is that the Appellants failed to proffer any evidence before the Tribunal to prove their allegations against the 1st & 2nd Respondents, and the Tribunal had no choice and was thus right to dismiss their Petition.
The end result is that the appeal therefore lacks merit; it fails and it is hereby dismissed with N30, 000.00 to the first set of Respondents.
Other Citations: (2008)LCN/2896(CA)
