Daniel Ishaya Gani V. Kezeya Dangana & Ors (2009)
LawGlobal-Hub Lead Judgment Report
ALFRED PEARSON EYEWUMI AWALA, J.C.A.
Following the General Election held nationwide on 14th day of April, 2007 for Seats in the States’ Houses of Assembly, this Appeal and the Cross Appeal arose from the decision of the National Assembly/Governorship and Legislative Houses Election Tribunal holden at Jalingo Taraba State (hereinafter called the Lower Tribunal) set up to hear petition No. EPT/SHA/04/2007 from the said Election. Judgment was delivered on 28/9/07 after hearing by the Lower Tribunal which nullified the election of the 1st Respondent and his subsequent return as the candidate representing Wukari II Constituency in Taraba State House of Assembly.
It is pertinent I give brief background facts of what led to the appeal and Cross-Appeal as aforesaid for better comprehension of the issues involved here.
The Appellant/Cross-Respondent and the 1st Respondent/Cross-Appellant contested the election held on 14/4/07 under the Platform of PPA and PDP respectively.
The Appellant/Cross-Respondent was returned as the person duly elected to represent Wukari II constituency in the Taraba State House of Assembly having scored the majority of the lawful votes at the said election.
Dissatisfied with the return, the 1st and 2nd Respondents filed an election petition at the lower tribunal against the Appellant/Cross-Respondent and the 3rd to 5th Respondents challenging them for the non-conduct of election in 14 polling units of Bantaji ward of the said constituency and secondly on the ground that the Appellant/Cross-Respondent was not qualified to contest the said election having not resigned or withdraw from his appointment with the Taraba State Teaching Service Board as a teacher 30 days before the election.
On 14/5/07 the Appellant/Cross-Respondent filed a Reply to the petition so did the 3rd to 5th Respondents.
All the parties agreed that there was in fact no election in the 14 polling units in contention. At the end of the pre-hearing Sessions report was given and the petition was fixed for hearing at the lower tribunal and was heard accordingly.
In its decision, the lower tribunal found that the Appellant/Cross-Respondent was duly qualified to contest the election having resigned his appointment 44 days to the election but however nullified the return and election of the Appellant/Cross-Respondent in that the non-conduct of election in the 14 polling units which were in contention substantially affected the results of the election and ordered election in the said 14 polling units.
It is the judgment nullifying the election and return of the Appellant/Cross Respondent as the candidate representing Wukari II Constituency in the Taraba State House of Assembly and the order for re-election in the 14 polling units in contention that formed the basis of the main appeal. The Appellant/Cross-Respondent’s Notice of Appeal was filed on 18/10/07.
The 1st and 2nd Respondents were also dissatisfied with part of the decisions of the Lower Tribunal as they affected the qualification of the Appellant/Cross Respondent to contest the election. They therefore filed a Notice of Cross-Appeal on 18/10/07.
Seven Grounds of Appeal are raised by the Appellant in his Notice of Appeal, whilst three by the Cross-Appellants in their Notice of Cross-Appeal.
On 3/10/08 the appeal and the Cross-Appeal were heard together by us after due filing and exchange of Briefs of Argument by counsel in the divide. And after adoption of same by them the appeals were heard. The Appellant’s counsel in the main Appeal distilled 4 issues, as follows:-
- “Whether the Election Petition Tribunal was right when it nullified the election and return of the Appellant / Cross-Respondent based on the non-conduct of election in 14 polling units when the presiding officers of the said units are not joined as parties to the petition”. (Based on Ground 1)
- “Whether the election Tribunal was right when it refused to make a pronouncement or findings on the issue of non joiner of the presiding officers of the 14 polling units as parties to the petition” (Based on Ground 2).
- “Whether the tribunal was right when it nullified the election and return of the Appellant/Cross Respondent based on the non-conduct of election in 14 out of 99 polling units when the election in 85 polling units is not found wanting”. (Based on Grounds 3, 4, 5 and 7).
- “Whether the tribunal was right when it took into consideration the pattern of voting in nullifying the election and return of the Appellant/Cross Respondent”.
(Based on Ground 6).
The 4 issues couched by the Respondents/Cross-Appellants for determination are as follows:-
“Whether in the circumstances of this case, the election petition Tribunal sitting in Jalingo was right when it nullified the election and return of the Appellant/Cross-Respondent based on the non-conduct of election in 14 polling units when the presiding officers were not made or joined as parties to the petition” (Ground 1).
“Whether the Election Tribunal was right when it refused to make a pronouncement or finding on the issue of non-joinder of the presiding officers of the said 14 polling units as parties to the petition” (Ground 2).
- “Whether the Election Tribunal was right when it nullified the election and return of the Appellant/Cross-Respondent based on the non-conduct of election in 14 polling units out of 99 polling units” (Grounds 3,4,5,6 and 7).
- “Whether the issue of non qualification of the Appellant/1st Respondent raised by the Cross-Appellants was properly resolved by the honourable Tribunal”. (Based on 1, 2 and 3)
Finally, on behalf of the 3rd to 5th Respondents’ their learned counsel distilled 3 issues for determination as follows:-
- “Whether it is in every case of non-conduct of election that can amount to disenfranchisement”
- “Whether the non-joinder of the presiding officers of the 14 polling units where elections were not conducted is capable of rendering the petition incompetent.
- “Whether the Appellant/Cross-Respondent was qualified to contest the election in contention.”
The above three issues are not related to any of the Ground of Appeal as formulated by the Appellant/Cross Respondent. The law is settled, issues for determination should not be framed in the abstract but in concrete terms arising from and relating to the ground of appeal filed, which represents the questions in controversy in the particular appeal. Otherwise they go to no issue. See Okpala V Ibeme (1989) 2 NWLR (pt 102) 208 at 221. The three issues therefore are hereby discountenanced.
This means, it is a straight forward fight between the Appellant/Cross Respondent and the Respondents/Cross Appellants.
I will deal with the Appeals seriatim. The main appeal first, then the cross-appeal next.
I adopt and utilize the Appellant’s 4 issues, not only because he has the burden of proof to satisfy us that his appeal is not frivolous but also because his 4 issues encompass much more vividly the 7 Grounds he formulated in his Notice of Appeal filed on 18/10/07.
Issues one and two as argued together by the Appellant briefly put are as follows;
Firstly that the petition complained of the non-conduct of election in 14 polling units of Bantaji ward in the Wukari II constituency during the 14/4/07 election into the Taraba State House of Assembly. What that means, argued learned counsel, is that the petition complained of the conduct of the Presiding Officers of the said 14 polling units as head of their respective units. Therefore they should have been joined as Respondents to explain why election did not hold as scheduled in their respective 14 polling units.
That it is settled law, where a petition complains of the conduct of the presiding officer, such officer is deemed a respondent and must be joined as such. The non-joinder here argued counsel is a breach of S.144 (2) of the Electoral Act, 2006. Cites Buhari V Obasanjo (2005) ALL FWLR (Pt. 273) 16 & NWLR (Pt. 847) 493. I shall reproduce Section 144(2) latter in this judgment while resolving issues one and two, to avoid repetition.
That if the election petition tribunal had expunged or struck out the part of the petition that complained of the conduct of the presiding officers, there would have been nothing left on that ground of the petition to warrant the tribunal’s nullification of the election and the subsequent return of the Appellant/Cross-Respondent. Cites PRP V INEC (2004) 9 NWLR (Pt. 877) 24.
Moreover, it should be borne in mind, counsel argued, there is evidence in the record that the 3rd Respondent (INEC) sent voting materials to the 14 polling units and there is an unchallenged evidence that youth destroyed them at the said units (referred us to page 134 of the Record and the statement on oath of RW3 at page 34 of the Record of proceedings).
Counsel further submitted that the proviso in Section 144(2) does not take away the right of the presiding officers to be joined. That it is well settled law that everyone should be given the opportunity to defend himself in a Court of law if their conducts become an issue thereat. Cites Abioye v. Yakubu (2001) FWLR (Pt. 83) 2212.
Moreover that the non-joinder of the presiding officers was made an issue by the Appellant/Cross Respondent, counsel submitted that the Tribunal did not make any finding on it, only while reviewing the evidence before them and the addresses of counsel, that they mentioned it in passing in the said judgment. That is not enough, counsel argued. (He referred us to page 135 of the Record).
Learned Counsel submitted further, that this Appeal Court can in its Appellate capacity still decide the issue of non-joinder of the presiding officers since it was not taken in the lower tribunal and is undisputed. Counsel added that the issue of non-joinder of the presiding officers is crucial in this appeal as it is a matter of fair hearing. Cites: Osanona V Ajayi (2004) 14 NWLR (Pt. 894) 527-548 paras. G – B.
Counsel for the Appellant/Cross-Respondent furthered his submission by saying that the non-joinder of the 14 presiding officers made issues by him but was not referred to in the tribunal judgment as aforesaid amounts to a miscarriage of justice.
Cites: Adah V NYSC (2004) 13 NWLR (Pt. 891) 639 Kraus Thompson Org. Ltd. V Unical (2004) 9 NWLR (Pt. 379) 631.
In conclusion we are urged to resolve issue 1 and 2 in favour of the Appellant/Cross-Respondent
On the other hand, in response, the Respondents/Cross-Appellants arguing issues 1 and 2 together submitted as follows:-
That in the petition, the Respondents as petitioners did complain of non-conduct of election in 14 polling units of Bantaji ward during the 14/4/07 elections into the Taraba State House of Assembly. That does not mean automatically that the petition complained of the conduct of the presiding officers of the said 14 polling units and as such the officers are deemed Respondents and should not have been joined as such in their respective status as necessary parties argued counsel for the Respondents. That the non-joinder, according to counsel for the Cross Respondents, is therefore not in breach of S.144 (2) of the Electoral Act 2006.
Counsel submitted further that the conduct of the presiding officers of the 14 polling units where election did not take place was not put issue by them. Therefore they need not be joined, argued counsel, because the case of its clients can still be effectually and completely settled with or without the presiding officers being joined as Respondents. Their conducts have not been called into question in the petition. They are therefore not necessary parties.
Contending further, counsel submitted, that where there is no complaint against a party or person, the non-joinder of such a party or person cannot obviously be the reason for the cause of action taken.Cites Usman Dan Fodio University, Sokoto V Balogun (2006) 9 NWLR (Pt. 894) 148.
That having regard most importantly to the provisions of S.144 (2) of the Electoral Act, 2006 the non-joinder of the presiding officers is not fatal to the petition.
Counsels reproduce Section 144(2) of the Electoral Act, 2006.
The provision reads:
“The person whose election is complained of, in this Act, Referred to as the Respondent, but if the petitioner complains of the conduct of electoral officer, a presiding officer, a Returning officer or any other person who took part in the conduct of an election, such officer or person” shall for the purpose of this Act be deemed to be a Respondent and shall be joined in the election petition in his or her official status as a necessary party.”
That by the above provision, it is apparent counsel argued that the Respondents/Cross-Appellants were in total obedience of the Act. They only made complaints against those Respondents they joined in their petition and not the presiding officers. Cites Ogbebo V INEC (2005) 15 NWLR (Pt.948) 376 Buhari V Obasanjo (Supra).
Arguing further, counsel submitted that the Appellant/Cross Respondent contentions that the election was successfully conducted 85 polling units out of 99 and that no result from the 14 polling unit where election did not take place could not have been capable of changing the entire result of the election. That argument by the Appellant/Cross-Respondent is a fallacy, counsel argued. The fact of the matter is that the 9,380 registered voters in the 14 polling units where election was not held is capable of changing the result of the election of 25,599 voters that voted in the remaining 85 polling units is obvious. That this fact substantially affected the result of the election of the said constituency.
Counsel referred to S.27 (4) of the Electoral Act, 2006 which empowers the Commission to declare a candidate a winner of an election where the result of the election will not be affected by voting in the areas where there was no immediate election. That by implication the commission is not empowered to declare a winner where, as in the present case, the right of the electorates in the 14 polling units would be affected by the outcome of voting in those areas where election took place.
Cites: Oputech V Ishida (1993) 3 NWLR (Pt. 279) 34 at 37 Supreme Court in ratio 4 held: –
“If a poll is not held in any particular station or stations and this will substantially affect the result of the election, it does not matter that the successful candidate was not at fault. A bye election must be ordered.”
That the above is apt in the instant case, that is to say, that the 14 out of 99 units where election was held is substantial, Counsel argued.
On the whole Counsel urges us to resolve issues one and two in favour of the Respondents/Cross Appellants.
In resolving issues one and two; I must say straight away, to my mind, it is a misconduct on the part of the presiding officers in those 14 polling units of Bantaji Ward that during the 14/4/07 election into the Taraba State House of Assembly where election did not hold they were not available to receive voting materials sent by the 3rd Respondent (INEC).
The presiding officers, it must be noted, argued counsel are heads of the polling units, respectively and are vicariously responsible in law for whatever transpired or happened in the said 14 polling units. I agree with this submission. I would stress and add that this argument is well taken. They are necessary parties. They are the parties in best position to explain away the said allegations in the petition not the Collation or the Returning Officers joined. See paragraph 6 of the petition which I will reproduce later in this judgment.
I hold the view that not joining the presiding officers as Respondents obviously is in breach of S.144 (2) of the Electoral Act.
That apart, it is my view also that the presiding officers’ constitutional right of fair hearing as entrenched and Provided for in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria is breached. (this is otherwise known as audi alteram partem) and the rule nemo judex in causa sue is also in issue. These Rules are explained in Ndu V State (1970) 7 NWLR (pt. 164) 550 by Onu JSC to mean I quote “a party who will be affected by the result of a judicial inquiry i.e. a necessary parties, must be given an opportunity of being heard. Otherwise, the action taken following the inquiry will be unconstitutional and illegal.”
See also Ogundoyin V Adeyemi (2001) 13 NWLR (pt 730) 403; Akande V State (1988) 3 NWLR (pt 85) 681.
Not joining the presiding officers I Reiterate deprived them, in my opinion, of the opportunity to answer the allegations leveled against them in the petition. (See paragraph 6 of the Petition)
For instant paragraphs 6 of the petition reads:-
“6. Your petitioners aver that Bantaji ward has a total of 31 polling units during the said election. Elections were conducted in only 17 polling units but returns were made in respect of 16 polling units. That Election did not take place in 14 polling units.”
The above paragraph impeached not only the conducts of the Returning officers but also of the Presiding Officers. The Returning officers were joined whilst the presiding officers were not joined. That is the crucial question. I hold the view therefore that the Presiding Officers’ constitutional right to fair hearing is breached by not joining them in the petition to explain the reason for the absence of election in those 14 polling units as necessary parties.
I must add that the principle of fair hearing like the issue of jurisdiction is fundamental. It is the live wire of a case because however well a case is conducted, the result is a nullity and that ends the appeal.
See FCSC V. Mungono (2003) 1 NWLR (Pt. 8O) 221; Mohammed V. Kano NA (1968) 1 All NLR 424; Elike V. Nwakwoala (1984) 12 SC 301; Orugbo V. Uno (2002) 16 NWLR (Pt. 792) 175 and News Watch Communication Ltd. V. Attah 12 NWLR (Pt. 993) 144.
In News Watch Communication Ltd. (Supra) the Supreme Court:-
held at pages 159 to 170 of the report as follows:
“Fair hearing is fair hearing when fair to both parties. This is because of the Constitutional Principle of fair hearing is for both parties in a litigation. In other words, fair hearing is not one way traffic, is the contest of both the plaintiff and the defendant or Appellant and the Respondent. The court must not invoke the principle in favour of one of the party undeservedly. To do this will amount to injustice.”
See also Pam V Mohammed (2008) 16 NWLR (pt 1112) 79, Per Tobi JSC
“Justice, that elusive and generic expression, is the cynosure or fulcrum of the administration of justice because it is the aim of administration of justice to obtain it. Justice, which means in its simplistic content, quality of being just, fair play and fairness, possessing an element of egalitarianism in its functional content must be done in a case.”
I will add myself that the Court will not and indeed should not invoke the principle of fair hearing in favour of one party against the other especially where the other is a necessary party is not joined. All those that should be heard ought to be joined including the Presiding Officers who are necessary parties otherwise they (petitioners here the Respondents) are in breach of S.36 of the 1999 Constitution.
In the circumstances, I resolve issues one and two in favour of the Appellant/Cross-Respondent.
I now consider issues three and four argued together as follows:-
In issues 3 and four, the Appellant/Cross-Respondent’s counsel submissions are as follows in a nutshell:-
That it is of common knowledge that Wukari II Constituency has 99 polling units. Election was conducted in 85 polling units peacefully the result not wanting. This means, opined learned counsel for the Appellant that in the entire constituency election was conducted in accordance substantially with the spirit of the Electoral Act, 2006 in 85 out of 99 polling units, that is 84.15% compliance.
The question therefore is whether by Section 146 (1) of the Electoral Act the election in Wukari II Constituency was conducted substantially in accordance with the principle of the Electoral Act, 2006?
Counsel answered this question in the affirmative and Cites Buhari V Obansanjo (supra). Where the Supreme Court at page 123 paras A – D of the report in interpreting Section 135 (1) of the Electoral Act 2002 which is impari materia with Section 146(1) held:-
“In the present case the fact that election was Conducted in 86 out of 138 polling booths of the constituency in question was not found wanting, prima facie, shows that was substantial compliance with the provisions of part II of the Electoral Act in the majority of the polling booths where election took place in the constituency.
The burden was on the Appellant therefore to show that the non-compliance which applied to 52 polling booth, as found by the learned trial judge actually vitiated the election in the Constituency as a whole. That he failed to do. ”
Submitting further Appellant/Cross-Respondent’s counsel argued equally that prima facie 85 out of 99 polling units of the Wukari II constituency is substantial. The burden therefore is on the Respondents/Cross-Appellants “to show that the non-compliance which applied to the 14 polling unit vitiates the election as a whole.
That the above case is further validated by Section 146 (1) of the Electoral Act 2006 argued counsel which provides.
“An election shall not be invalided by reason of non-compliance if it appears to the election tribunal or Court that the election was conducted substantially in accordance with the principle of the Act and that the non-compliance did not affect substantially the whole of the election.”
(Emphasis by counsel)
In the instant case, the lower tribunal held that by reason of the above state of the law, the election was conducted in substantial compliance with the principle of the Electoral Act 2006.
Continuing with his argument, counsel submitted that the tribunal found that the result from the 85 polling units where elections were not disrupted was by 25,599 registered voters. Compared with the 14 polling units with 9,380 registered voters where elections were not conducted cannot vitiate 25,599 voters that actually voted. We are urged to resolve issue 3 in favour of the Appellant/Cross-Respondent.
I shall resolve issue 3 along with issue 4 at the end of treating issue 4.
I now proceed to consider issue 4.
Counsel for the Appellant argued that it is now trite it is against the administration of justice for a Court of law or a counsel to speculate on facts before the Court or Tribunal. He cites Biyu V Ibrahim 2006 8 NWLR (Pt. 981) 1 at 60 Para D- E
Therefore he argued that the tribunal was in error when it held thus:-
“From the undisputed results from the 85 polling units, the 1st Respondent scored 25,599 votes while the 1st Petitioner scored 19,147 votes. Thus the difference between them is 6,452 votes. The parties are in consensus ad idem on this fact. The voting strength in Bantaji ward vide Exhibit B is 19,423. The number of actual persons that voted in polling units not in contention is 8,804 vide Exhibit “A” while the total number of registered voters in the 14 polling units in contention is 9,380. From the figures above it is clear that the figure of those who did not vote could make a difference especially when the pattern of voting is taken into account.”
(Emphasis by Learned Counsel).
Counsel submitted further that the above conclusion reached by the tribunal stems from the fact that the trial tribunal did not say what the “that pattern of voting” in the 14 polling units would have been like. That is speculative, counsel argued. And since no evidence was led in that light, the trial tribunal misdirected itself by coming to that conclusion they reached as quoted above.
Secondly counsel submitted that the fact that there was high voters turnout, for example in Avyi ward, does not mean the same percentage turnout of voters will manifest in Bantaji or even in the 14 polling units where election did not take place. Counsel therefore submitted that there is no basis for the conclusion that the number of those who did not vote in the said 14 polling units could have made the difference “When the pattern of voting is taken into account. Counsel therefore urges us to resolve issues 3 and 4 in favour of the Appellant/Cross-Respondent.
Before the resolution by me it is important to consider the argument of counsel for the Respondents/Cross-Appellants in respect of both issues 3 and 4.
I did perused thoroughly, carefully, painstakingly and dispassionately the Respondents/Cross-Appellants’ Brief of Arguments filed on 5/5/08 and deemed filed on 13/10/08. There is no where argument(s) is proffered in opposition to the Appellant/Cross-Respondent’s arguments on issues 3 and 4 which I have considered above. Except for counsel to concentrate at page 10 of his brief while arguing issue 3 on a motion filed by the Appellant/Cross-Respondent on the issue of non-joinder the presiding offices. That argument is most irrelevant. Vice a vice. Issues 3.
While arguing issue 4, the Respondent/Cross-Appellants argued vehemently from pages 11 to the end of the brief (page 25), the issue of qualification of the Appellant/Cross-Respondent which has nothing to do with issues 4 but all to do with the Cross-appeal.
For ease of reference, I reproduce issues 3 and 4 as distilled by the Appellant/Cross-Respondent again.
- Whether the Election Tribunal was right when it nullified the election and return of the Appellant/Cross-Respondent based on the non-conduct of election in 14 polling units out of 99 polling units (Based on Grounds 3, 4, 5, 6, and 7).
- Whether the issue of non-qualification of the Appellant/1st Respondent raised by the Cross-Respondents was properly resolved by the honourable Tribunals (Base on Grounds 1, 2, and 3).
There are no arguments in support of the judgment of the lower tribunal either, (which gave rise to the said issues 3 and 4 distilled by the Appellant/Cross Respondent either in the first place).
In my opinion those arguments bear no resemblance or answers to issues 3 and 4 raised by the Appellant /Cross-Respondent at all.
I find the arguments in the said brief most uninspiring and irrelevant and hold therefore that there was no response to the Appellants’ argument in support of issues 3 and 4. This in my view is a constructive concession to the arguments of learned counsel for the Appellant.
I state categorically here and now, that counsel has the legal right to concede issue(s) raised by his opponents in their brief of argument.
This common law right is based on the general authority of counsel to concede or waive his right of reply being the master of the case he is handling for and on behalf of his client(s)which binds his client(s). See: Adewumi V Plastix Nigeria Ltd. (1986) 3 NWLR (Pt. 32) 767; Anyaduba V NTTC Ltd (1992) 5 NWLR (pt 243) 535; Okonji V Njokanma (1991) 7 NWLR (pt 202) 131; Sanusi V Ameyogun (1992) 4 NWLR (pt. 237) 627.
Moreover, there could be a situation where learned counsel for the Respondents, as in this case, has nothing useful to urge in favour of the judgment or against the opposing party’s of counsel’s argument. In such situation, the non opposing (here Respondents’) is said to have thrown in the towel. He accepts the Appellant’s argument on the issues as the truth. This acceptance or concession, I stress, binds his client(s).
Similarly, counsel could admit a factual situation in his brief which also binds his client(s) as in this appeal, unless the situation is so manifestly false to the wisdom and knowledge of the Court.
See: Generally cases on the above principles of law as follows:-
Mosheshe General Merchant Ltd. V Nigeria Steel product Ltd. (1987) 1 NWLR (Pt. 55) 110; Ikabola AND Ors V Ojisipe (1988) 4 NWLR (Pt. 86) 119; Okesuji V Lawal (1991) 1 NWLR (Pt. 170) 661; Holt V Jesse (1876) 3 CH.D 177.
In the circumstances I have no hesitation to resolve issue 3 and 4 in favour of the Appellant/Cross-Respondent.
I now move on to treat the Cross-Appeal.
Arguing the sole issue in the Cross-Appeal which is herewith produced for ease of reference reads thus:-
“Whether the issue of the Non-qualification of the (sic) Appellant/Cross-Respondent raised by the Cross-Appellants was properly resolved by the Honourable Tribunal”
Counsel for the Cross-Appellants submitted as follows:-
Firstly, that the case of the Cross-Appellants before the lower tribunal was on the issue of the Cross-Respondent’s qualification to contest the 14/4/07 Legislative Election and this is premised on the fact that as at the time of the election he (the Cross-Respondent) was a staff of the Taraba State Government Teachers’ Board as a teacher.
The Cross-Appellants’ counsel submitted that in proof of this allegation, they tendered Exhibits “D”, “D1” and “D2” which are evidence of salaries for the months of January, February and March 2007 paid to the Appellant/Cross-Respondent.
Secondly, that these documentary evidences of payment of salary by the State Government shifts the burden of proof to the Cross-Respondent to call evidence to show the circumstances under which he was paid salaries to end of March 2007 and yet contested for the House of Assembly Election which was conducted on 14/4/07. Counsel submitted further that it is trite the burden of proof is not static but shifts with the pleadings and the state of evidence first adduced. Cites Archibong V Ita (2004) all FWLR (Pt. 197) 930.
Thirdly, that Exhibits “D” “D1″ and D2” were tendered with the consent of the Appellant/Cross-Respondent and that if the Tribunal had taken a hard look at the said Exhibits they would have considered them as sufficient defence in favour of the Appellants/Cross-Respondents in determining whether it answered their claim or not. This they failed to do argued learned counsel and thereby gave perverse judgment on the issue of qualification as they held that Exhibits “D” “D1” “D2” and “E” did not prove disqualification and that oral evidence be called or should have been called to Support the documentary evidence.
Finally, counsel submitted, that it is now trite, parties and the Court or tribunal are strictly bound by the pleadings and the Court will not be allowed to make a case for one or the other party at variance with their respective- pleadings. Cites Ukaegbu V Ugoji (1991) 6 NWLR (Pt. 96) 127 and Ito V Epe (2000) 2 SC 98.
Counsel urges us to resolve the sole issue in favour of the Cross-Appellants and allow the cross-appeal.
Before I do so, it is vital I consider the Cross-Respondent’s Counsel’s submission in response.
I do so briefly, as follows:-
Counsel submitted that the assertion by the Cross-Appellants that the tribunal erred in law by holding that the Cross-Respondent is qualified to contest the said election held on 14/4/07 and that there is no evidence of alteration in Exhibit “E.” which is the letter of withdrawal from service sent to the Taraba State Teachers’ Board dated 31/3/07 and submitted the same date to the said board are unassailable. This is because there is no proof of evidence to the contrary in their brief of argument or the record of proceedings argued learned counsel.
Learned counsel for the Cross-Respondent further argued by asking the question” where did the Cross-Appellants obtained or came in possession of Exhibit “F” allegedly a certified true copy of Exhibit “E”?
The Tribunal held that they failed to provide an answer to this question by producing the original document for comparison with the certified True copy. I agree with this holding. It is not perverse. The burden of proof is on who alleges, he must prove.
That moreover counsel for the Cross-Appellants’ asked many questions arising from the conduct of the Cross-Respondent.
There are criminal allegations or conducts leveled against or appertain to the Cross-Respondent. A clear example is that Exhibit “E” the letter withdrawal from service was altered by the Cross.-Respondent.
That issue is a criminal allegation the tribunal found as not proved.
That the law is now settled the standard of proof of allegation of criminal in an election matter is proof beyond reasonable doubt was this standard of proof satisfied? Cross-Respondent’s counsel simple answer is a capital no. Cites Buhari V Obasanjo (supra).
Cross-Respondent’s counsel submitted further, that the lower tribunal is justified when it held that it is trite law that resignation takes effect from the date the letter was received by the employer which was on 1/3/07 (44 days to the election fixed to hold on 14/4/07 instead of 30 days as allowed by law). That the issue of the date of receipt of withdrawal letter from service is now trite. It takes effect from the date the employer received such letter which is 1/3/07 in this case.
Employee cannot be forced on an employer and vice verse counsel opined.
Counsel argued further that the decision of the tribunal’s on Exhibits “D”, “D1” and “D2” holding that they are no evidence of late resignation is not wrongful.
Furthermore as for Exhibit “E”, counsel asserts, the tribunal finding, “There is no proven evidence of alteration. The same is unassailable. On the other hand, that Exhibit “F” alleged to be a certified true copy of an original document which was not tendered for comparison.
Counsel urges us to dismiss the cross-appeal.
Now my resolution of the sole issue argued by the learned counsel for the parties in the divide are as follows:
I hold straight away without mincing words that it is now well settled that an allegation of criminality in an election matter must be proved beyond reasonable doubt. See Buhari V Obasanjo supra.
I also hold that it is trite unless the finding of the trial court (here the tribunal) is perverse and cannot be supported by evidence, this Court of Appeal will not interfere with such findings.
See: Abiku V Opaleye (1974) 11 SC 189; Woluchem V Gudi (1981) 5 SC 29; Onwude V Nduba (1973) 3 SC 106; J.N. Kodilinye v. Mbanefo Odu 2 WACA 336.
In the instant case before us, I can not find such short coming that would warrant our interference with the findings of the learned lower tribunal. They saw the witnesses and watched their demeanours not only during the pre-trial sessions but also at the trial proper when they testified before them, on Oath. I also hold that the tribunal rightly assessed the documents tendered as Exhibits “D” “D1” “D2” “E” and “F.”
See generally on the following cases on the issue of non-perverse judgments by Courts or Tribunals Ebba V Ogodo (1984) 1 SCBKR 372; Odofin V Ayoola (1984) 11 SC 72; Fabunmi V Agbe (1985) 1 NWLR (Pt. 2) 299; Bunyan V Akinboye (199)(sic) 7 NWLR (Pt.242) 410 Adegoke V Alani (1992) 9 NWLR (Pt. 242) 410.
I have not alluded to the Appellant/Cross-Respondent’s Reply Brief filed on 27/05/08 deemed filed on 13/10/08 because it does not relate to the Cross-Appeal at all. It is irrelevant, it is a waste of time referring to it. It is therefore discountenanced.
For the above reasons, I will allow the main appeal and dismiss the cross appeal. For the avoidance of doubt, the main appeal is allowed and the cross-appeal dismissed, thus, affirming the decision of the lower tribunal dated 28/9/07.
There shall be no order as to costs.
Other Citations: (2009)LCN/3085(CA)
