Democratic Party of Nigeria & Anor V. United Nigeria Congress Party (Uncp) & Ors (1998)
LawGlobal-Hub Lead Judgment Report
JAMES OGENYI OGEBE, J.C.A.
The 2nd petitioner and the 2nd respondent contested the Chairmanship election into the Kaduna North Local Government council along with other candidates. The 2nd respondent was declared duly elected when the result of the election was announced. Dissatisfied with the result the 2nd petitioner Abubakar Muazu, one William Maisaje, Alhaja Fati Ahmadu filed separate petitions against the declaration of the 2nd respondent as the chairman, mainly on the ground that he bad not attained the compulsory age of 35 years at the time of the election. The three petitions were consolidated. The petitioners tendered Exhibits P1, P2 and P3 to show that the 2nd respondent was born in 1964. The 2nd respondent tendered a declaration of age certificate. Exh. D1 and called his mother to show that he vas born in 1961. The trial Tribunal held that he was under-aged and nullified his election and returned the 2nd petitioner as duly elected. Dissatisfied with the outcome, the 2nd respondent and his party appealed to the Election Appeal Tribunal of Kaduna state which set aside the decision of the trial Tribunal and returned the 2nd respondent as duly elected. It preferred the age given in the declaration of age Exh. D1 and the evidence of the 2nd respondent’s mother to the documentary evidence given by the petitioners. A petition was then written to the Federal Government which sent this case to this court for review.
The learned Attorney-General of the Federation has filed a brief in which he identified two Issues for determination as follows:-
“1. Whether the Appeal Tribunal was right when it held that Exhibits P1, P2 and P3 were public documents which were wrongly admitted and expunged same from the record.
- Whether the Appeal Tribunal was correct to have relied on Exhibit D1 and the evidence of DW2 to hold that the 1st appellant was qualified to contest the election.”
The substance of his argument is that Exhibits P1 and P2 were rightly rejected by the Appeal Tribunal but that the Appeal Tribunal was wrong to have expunged Exh. P3 and the contents from the record. He said that Exh. P3 is the 2nd respondent’s file in the Ministry of Lands and Survey and that the contents were primary documents that need no certification to be admissible. He then said that the Appeal Tribunal was right in preferring the evidence of the 2nd respondent’s mother and the declaration of age Exh. D1 to hold that the 2nd respondent was not under-aged. He urged this Court to confirm him as duly elected.
A brief has been written on behalf of the 1st and 2nd respondents in which the learned senior Advocate J.B. Daudu formulated one Issue as follows:-
“1. Whether the evidence of 2nd respondent and his mother as to his age are preferable to the documentary evidence produced by the petitioners such that the only conclusion a reasonable Tribunal ought to reach on the evidence is that the 2nd respondent was over 35 years at the time he contested the elections in issue or put in another way whether 2nd respondent was under age at the time of the election?”
He contended that the evidence of the 2nd respondent’s mother was the best evidence to establish his age and urged the Court to confirm the election of the 2nd respondent as chairman of the Local Government.
A brief has also been written on behalf of the petitioners in which the learned counsel for them argued that there was clear evidence that the 2nd respondent had not attained the age of 35 years at the time of the election and was not qualified to hold office as chairman of any Local Government. He also submitted that the Appeal Tribunal had no business interfering with the findings of facts made by the trial Tribunal.
I have looked at the record of this case and considered critically all the arguments in the briefs and it is my view that the crux of this matter is whether or not the 2nd respondent was under-aged to contest the chairmanship election held on the 15th of March, 1997. In Para. 6(b) of the petition before the trial Tribunal it was averred as follows:-
“The 2nd Respondent attended the Primary School known as L.E.A. School Independence way Kaduna between January 1971 and June 1977 when he completed his class six (6). (At the trial of the petition reliance shall be placed on the counterfoil and certified True copy of his certificate of Primary Education No. 032613 of the Kaduna state issued on or about 15th July 1977. Notice is hereby given for the production of its original).”
This averment was not controverted anywhere in the reply of the 2nd respondent to the petition. It was on the basis of this that Exhibits P1 and P2 which were the booklet and a copy of the 2nd respondent’s Primary school Leaving certificate were tendered. It follows therefore that that averment was admitted and required no further proof. See Akibu v. Oduntan (1992) 2 NWLR (Pt. 222) 210. Accordingly the 2nd respondent’s evidence that he was not aware of Exh. P1 or never attended the primary school known as L.E.A. school Independence Way Kaduna vent to no issue.
Exhibit P3 was 2nd respondent’s open file when he worked with the Ministry of Lands and survey Kaduna state in 1983. Exh. P2 shows that the 2nd respondent was born in the year 1964. Exh. P.3A shows that he was 18 years of age as at the date of the letter i.e. 22nd December 1982 which also meant that he was born in December 1964. EXh. P.3B first page also shows that 2nd respondent was 18 years old as at the date of the form he filled for employment to public Service commission i.e. on the 29th December 1982 that he was born on the 28th December 1964. Exh. P.3E also shows that 2nd respondent was born on the 28 of December 1964. Exh. P3 which is the 2nd respondent’s open file and the contents therein are primary evidence which are properly admissible before a court of law as submitted by the learned Attorney-General of the Federation. This file contains overwhelming evidence that the 2nd respondent was born on the 28th of December, 1964. The trial Tribunal rejected his evidence that he was not the one who wrote the various Exhibits contained in the file. It is public knowledge that anybody applying for a job in the civil service of any state in this country will give his age in his letter of application or form to be filled in respect of the employment. The trial Tribunal faced with these documents which were made in 1982 and even Exh. P2 which was made in 1977 in contrast to Exh. D1 (the declaration of age) which was made in 1993 in contemplation of an election and the evidence of the 2nd respondent’s mother that he was born in the year after Independence concluded that the documentary evidence tendered by the “petitioners contained the truth of the 2nd respondent’s age. The 2nd respondent was given notice to produce his passport No. 1069211 which was issued on the 27th October 1982 in the Kaduna Passport Office to determine his true age stated therein. He failed to tender this document. Instead he attempted to tender the passport of his elder sister which was not pleaded at all and the trial Tribunal rejected it.
It is not the business of an Appeal Tribunal to interfere with findings of facts made by a trial Tribunal. This is because the trial Tribunal is the court opportuned to watch the demeanour of witnesses and to determine their credibility. Generally then, findings of facts made by trial court should be left alone unless they are shown to be perverse. See the following cases:- U.B.N. Ltd. v. Oredein (1992) 6 NWLR (Pt. 247) 355 end Popoola v. Adoyemo (1992) NWLR (Pt. 257) 1. Exhibits P2 and P3 and the contents therein were made at a time when no suit was in contemplation and in the normal course of business of Government. They therefore contain the truth as to the correct age of the 2nd respondent that he was born on the 28th December 1964.
Accordingly I am of the firm view that the Appeal Tribunal was wrong to have preferred the evidence of the mother and the declaration of age, Exh. D1 to the concrete statements made by the 2nd respondent himself in writing in Official documents as far back as 1982.
Consequently I set aside the decision of the Appeal Tribunal in its entirety. In its place I confirm the decision of the trial Tribunal that the 2nd respondent was under-aged as at the time of the election on the 15th of March, 1997 and the nullification of his election.
In a situation where the candidate with the highest number of votes is disqualified as in this case, the proper order to make is not the return of the candidate with the next highest votes but an order of re-election so that the true wishes of the electorates can be determined. See section 95(1) of Local Government (Basic constitutional and Transitional Provisions) Decree No.7 of 1997. The trial Tribunal was wrong in returning the 2nd petitioner Abubakar Muazu as duly elected. That order of the trial Tribunal is set aside and it is hereby ordered that the National Electoral commission of Nigeria shall conduct fresh election to fill the position of chairman and vice-chairman of Kaduna North Local Government.
Other Citations: (1998)LCN/0454(CA)
