Halliru Lawal Malumfashi V. Dauda Ibrahim Karfi & Ors (2009)
LawGlobal-Hub Lead Judgment Report
BABA ALKALI BA’ABA, J.C.A.
This is an appeal against the judgment of the Governorship and Legislative Houses Election Tribunal sitting in Katsina State, dated the 19th day of September, 2007. The judgment is in respect of a petition filed by the 1st and 2nd respondents who were the petitioners, challenging the declaration and return of the 1st respondent now appellant as duly elected member representing Malumfashi State House of Assembly Constituency in the Katsina State House of Assembly. The election was held on the 14th of April, 2007. The 1st and 2nd respondents as petitioners filed their joint petition dated and filed on the 14th day of May, 2007.
The petition has one ground contained in paragraph 6 of the petition. At the hearing of the petition, the 1st and 2nd respondents as petitioners called seven witnesses and tendered some documents in evidence while the appellants as 1st and 2nd respondents in the petition called seventeen witnesses and also tendered some documents in evidence. The 2nd – 228th respondents did not call any witness.
At the conclusion of hearing, the Election Tribunal delivered its judgment in favour of the 1st and 2nd respondents as the petitioners and nullified the said election and ordered for a bye-election to be conducted for the said constituency at a date to be fixed by INEC.
Being dissatisfied with the said judgment, the appellants appealed to this Court by filing a Notice of Appeal dated 26/9/07 filed on 27/9/07 containing ten grounds of appeal to be found at pages 331 – 338 of the record.
In accordance with the rules of practice and procedure of this Court, briefs of argument were filed and exchanged between the parties. At the hearing of the appeal, which came up on the 19th day of January, 2009, counsel to the parties, adopted their respective briefs.
The appellants in their brief of argument, dated 21/5/08, deemed filed on 12/6/08, formulated seven issues contained at pages 3 – 4 of the appellants’ brief. They are as follows:
“3.1 Whether the evidence led by the petitioners/1st & 2nd respondents (Exh.P.1, P.2, P.9, (B-C), P.10, P.11, P.12, and P.13 in proof of their petition and found by the Election Tribunal to be “competent and valid with probative value” are admissible, the facts relating to the pieces of evidence having not been pleaded or properly adopted. (Grounds 1 & 2).
3.2 Whether the tribunal was right in its finding that the petitioners/1st & 2nd respondents have proved their sole ground of substantial non-compliance against INEC to warrant the Nullification of the Appellant’s Election in Malumfashi State Assembly Constituency. (Ground 5, 6 & 7).
3.3 Whether the Election Tribunal Katsina’s finding of how the non-compliance affected the result of the Election is not only PERVERSE but SPECULATIVE.
(GROUND 8).
3.4 Whether the Election Tribunal’s finding that “violence” between the 1st & 2nd respondent’s and appellant’s supporters was the reason for non-conduct of Election in Karfi, Gora-Dan-saka, Makaurachi and Yaba wards is not perverse. (Ground 5)
3.5 Whether the Tribunal was right in failing to pronounce on the issues of illegality and restrictive law on INEC properly raised and argued before it by the Appellant and 1st & 2nd Respondents in their pleadings and addresses. If the answer is in the negative, whether this Hon. Court can pronounce on same (Ground).
3.6 Whether the evaluation, findings and conclusions, drawn by the Election Tribunal in its judgment, having regard to the weight of the evidence adduced by parties in this appeal is not only inconsistent, contradictory, perverse or wrong so as to warrant interference by this Hon. Court (Ground 10).
3.7 Whether the judgment delivered by the Election Tribunal Katsina is not invalid or a nullity, the tribunal having not been properly constituted as regards its membership.
(Ground 3).”
The 1st and 2nd respondents on the other hand, formulated four issues in their brief dated the 16th day of June, 2008, filed on the 17th day of June, 2008. The issues are as follows:
“1. Whether the reliance placed by the Election Tribunal on Exhibits P1, P2, P9 (B-C), P10, P11, P12 and P13 have occasioned any miscarriage of justice. (Arising from Grounds 1 & 2).
- Whether the finding of the Tribunal, that the Petitioners (now 1st and 2nd Respondents) have established their sole ground in the petition of non-compliance with the provisions of the Electoral Act, 2006, is right. (Arising from Grounds 5, 6 & 10).
- Whether the Tribunal was right to hold that the non-compliance with the provisions of the Electoral Act, 2006, substantially affected the result of the election. (Arising from Grounds 7 & 8).
- Whether the judgment of the Election Tribunal is a nullity. (Arising from Ground 3).”
The 3rd – 229th respondents also at page 3 of their brief also formulated three issues for determination in this appeal as follows:
“1. Whether the trial Tribunal was right when it held that the 1st and 2nd Respondents had proved their sole ground of substantial noncompliance against the 3rd – 229th Respondents and proceeded in this basis to nullify the Appellant’s election into the Malumfashi State Constituency at Katsina State House of Assembly?
- Whether the trial Tribunal was right to have found the evidence led by the Petitioners (1st and 2nd Respondents herein) and the exhibits tendered to be of competent and probative value and therefore admissible when facts relating to them were neither pleaded nor properly adopted?
- Having regards to the whole circumstances of this Petition, evidence led and the findings reached by the trial Tribunal is this Honourable Court as an Appellate Court not entitled to interfere and make the right conclusions supported by the facts and the law?”
Having carefully considered all the issues formulated by the parties in this appeal, I find issues 1, 2 and 7 formulated by the appellants all encompassing and sufficient for the determination of this appeal. I therefore, adopt the three issues for the determination of this appeal. I intend to confine myself only to the submission of counsel on the three issues adopted by me for the determination of this appeal. As the two issues 1 and 2 are germane, I will consider them jointly in this appeal and take issue No.7 last separately.
The learned counsel for the appellants commenced his submissions on the two issues by first referring to the Statements on oath by PW1, PW2, PW5, PW6, PW7 and PW8 in compliance with the Court’s Practice Direction, 2007, being the evidence-in-chief of the petitioners’ witnesses in support of the case of the petitioners/1st and 2nd respondents upon which they were variously cross-examined.
It is submitted that the evidence of a witness whether in chief or on cross-examination must be based on the pleaded facts. He argued that any evidence not pleaded goes to no issue. Pointing out that the role of pleadings is to give the adverse party advance notice of the case. Learned counsel for the appellants stated that in the instant appeal, the 1st and 2nd respondents pleaded in their two replies dated 18/6/07 and 3/7/2007 respectively a general denial of the allegation of destruction of election process in Malumfashi State Assembly Constituency on 14/4/07 labelled against them by the appellant.
That there was no counter allegation by the petitioners against the appellant or his political party supporters, alleged thugs etc of committing any act of violence, thuggery, threat, assault and illegal seizure of election materials at INEC Office, Malumfashi in the petitioners/1st and 2nd respondent’s reply.
On the issue of the complaint of the 1st and 2nd respondents as petitioners, it is submitted that a petitioner who complained of non-compliance with the provisions of the Act, 2006, has a duty to prove by evidence the action or in action of INEC. It is argued that in the petition on appeal, the 1st and 2nd respondents had in an attempt to prove their petition called eye witnesses and tendered exhibits before the court. It is contented by the appellants that the appellants adduce evidence which did not only discredited the evidence adduced by the 1st and 2nd respondents but also challenges the said evidence.
According to the learned counsel for the appellants, the issues of collation” conclusiveness or declaration of results of election in Karfi, Gora Dansaka, Makaurachi and Yaba wards was never an issue in the 1st and 2nd respondents’ petition. It is further contended that the facts were not pleaded and therefore can not form the basis for the Tribunal’s findings that election did not hold.
In conclusion of his submissions on issues 1 and 2, learned counsel for the appellants urged the court to resolved the two issues in favour of the appellants and allow the appeal.
It is the submission of the learned counsel for the 1st and 2nd respondents on issues 1 and 2 in their joint brief dated and filed on 27th day of February, 2008, that the reliance placed by the Election Tribunal on exhibits P1, P2, P9(b), P9(c), P10, P11, P12 and P13 have in no way occasioned any miscarriage of justice because the said exhibits were admitted in evidence without any objection by the appellants.
The 1st and 2nd respondents as petitioner duly filed the petitioners’ reply dated the 18th of June, 2007 and dated 3/7/07 and referred to at pages 14 – 33, 120 – 123 and 154 – 181 of the record. Pointing out that the petitioners were entitled to file witness statement on oath in rebuttal of the appellant’s fresh allegations against the petitioner contained in the 1st respondent’s reply dated 8/6/07 and referred to pages 49 – 119 of the record.
On the allegation of the appellants and the 2nd – 228th respondents that it was the petitioners now 1st and 2nd respondents that disrupted the election contained at page 60 of the record, the 1st and 2nd respondents argued that they are in law entitled to lead evidence on the said allegation.
Reference was made to the submission of the appellants’ learned counsel for the appellants at page 7 – 11 of the appellants’ brief by the learned counsel for the 1st and 2nd respondents contended that the submission of the learned counsel for the appellants is misconceived as parties are bound by their pleadings.
It is further submitted that the Election Tribunal properly reviewed the pleadings and evaluated the evidence adduced and came to the right conclusion. According to the learned counsel for the 1st and 2nd respondents there was no dispute that the declaration of the results of the election held on the 14th day of April, 2007, was based on the results from only four out of the twelve wards making up the constituency. He emphasized that eight wards of the constituency were thereby excluded from the election. That in addition even in the four wards where the election was held and results declared, the collation did not include results from all the polling stations in the said four wards namely, Malumfashi A ward, Malumfashi B ward, Dayi ward and Yammama ward and referred to page 10 of the petition which was admitted by the appellant. He stated that the 1st and 2nd respondents as petitioners also established their averments in paragraphs 9 and 12 of their petition.
It is contended that the final declaration of the results is not in respect of all the polling stations in all the wards making up the constituency consequently the declaration of the results from only four out of the twelve wards in the constituency and fifty four polling stations out of the two hundred and eleven polling stations in the constituency amounts to noncompliance with the provisions of the Electoral Act, 2006. In conclusion, learned counsel for the 1st and 2nd respondents urged the court to uphold the findings of the Tribunal.
It is the submission of the learned counsel for the 3rd – 229th respondents, in their joint brief of argument dated 12/2/08 filed on 28/2/08, that the Tribunal was wrong to have nullified the election of the appellant on the ground of the alleged non-compliance with non specified provision of the Electoral Act, 2006. He stated that the sole ground of the petition can be found at page 6 of the record and argued that the complaints do not affect the 3rd – 229th respondents. According to the learned counsel for the 3rd – 229th respondents’ counsel, the 1st and 2nd respondents as petitioners failed through their witnesses and exhibits tendered to establish their complaint of non-compliance on the preponderance of evidence. It is further submitted that the Tribunal was wrong to have accepted wholesomely the evidence of the petitioners’ witnesses contained in Exhibits P1, P2, P9(B – C) P10, P11, P12 and P13, the witnesses statements on oath of PW1, PW2, PW5, PW6, PW7 and PW8 having regard to the fact that the evidence was not pleaded as required by law.
It is settled law that any evidence on fact not pleaded goes to no issue and should not be acted upon by a court. Relying on the case of AKPAKPONA VS. NZEKA (1983) 2 SCNLR 1 at 14 he submitted that in the replies of the 1st and 2nd respondents/petitioners’ dated 18/6/07 and 3/7/07 respectively, the petitioners/1st and 2nd respondents made a general denial of being responsible for disrupting the election labelled against them by the appellant.
Learned counsel for the 3rd – 229th respondents urged the court to allow the appeal as there was no evidence before the Tribunal to support the judgment.
As could be seen from the two issues formulated by all the parties to this appeal, the main issues in contention relates to the pleadings and evidence adduced before the Tribunal. It is therefore pertinent to reproduce the pleadings in this appeal in order to ascertain whether the evidence adduced was pleaded or not.
The petition is contained at pages 26 – 31 of the record, I consider the following paragraphs relevant and are hereby reproduced as follows:
“6. The petitioners state that the ground on which the election is questioned is that the election was invalid by reason of non-compliance with the provisions of the Electoral Act 2006.
- And the petitioners further state that the election was not conducted substantially in accordance with the principle of the Electoral Act 2006 and the non-compliance did affect substantially the result of the election.
FACTS IN SUPPORT OF THE GROUND OF THE PETITION
- There are twelve wards making up the constituency namely:
(i) MALUMFASHI A WARD having 44 polling stations.
(ii) MALUMFASHI B WARD having 31 polling stations.
(iii) YABA WARD having 19 polling stations.
(iv) RUWAN SANYI WARD having 10 polling stations.
(v) KARFI WARD having 16 polling stations.
(vi) BORIN DAWA having 10 polling stations.
(vii) YAMMAMA WARD having 11 polling stations.
(viii) GORAR D/SAKA WARD having 15 polling stations.
(ix) DANSARAI WARD having 8 polling stations.
(x) MAKAURACHIWARD having 13 polling stations.
(xi) DAYI WARD having 22 polling stations.
(xii) NA-ALMA WARD having 12 polling stations.
- The election was not conducted at all in the following eight wards:
(i) YABA WARD
(ii) RUWANSANYIWARD
(iii) KARFI WARD
(iv) BORIN DAWA WARD
(v) GORAR D/SAKA WARD
(vi) DANSARAI WARD
(vii) MAKAURACHIWARD
(viii) NA-ALMA WARD
- The result declared by the Returning Officer as contained in FORM EC8 E(1)
“DECLARATION OF RESULT OF ELECTION TO THE STATE HOUSE OF ASSEMBLY” for Malumfashi State Constituency was based only on the results collated in the following four wards:
(i) MALUMFASHI A WARD
(ii) MALUMFASHI B WARD
(iii) YAMMAMA WARD
(iv) DAYI WARD
The petitioner shall use and rely on the said FORM ECSE(1) at the trial of the petition and the 2nd to the 5th respondents are hereby given notice to produce the said FORM ECSE(1) at the trial of the petition.
- The result as declared by the Ward Returning Officers for Malumfashi A Ward, Malumfashi B Ward, Yam mama Ward and Dayi Ward (Four Wards only) are as follows:
AC ANPP PDP PSP
MALUMFASHI A WARD 380 10,110 1,148 6
MALUMFASHI B WARD 121 1,756 1,367 –
YAMMAMA WARD 33 147 345 –
DAYIWARD 141 738 315 –
TOTAL 678 12,749 3,175 6
The petitioner shall use and rely on Forms EC8B(1) (SUMMARY OF RESULTS FROM POLLING STATIONS) for Malumfashi A Ward, Malumfashi B Ward, Yammama Ward and Dayi Ward at the trial of the petition.
And the 2nd to 17th respondents are hereby given notice to produce the said Forms EC8B(1)at the trial of the petition.
- That even in Malumfashi A Ward, Malumfashi B Ward, Dayi Ward and Yammama Ward where the election was conducted and the results declared, results from all the polling stations in the said wards were not included in the collation of the results.
PARTICULARS
A. In Malumfashi A Ward, results in FORM EC 8A(1) (STATEMENT OF RESULT OF POLL FROM POLLING STATION) from the following Polling Stations (with a total number of 6, 889 registered voters) were not included in the collated result in FORM EC 8B(1) “SUMMARY OF RESULTS FROM POLLING STATIONS” namely:
(i) KOFAR FADA IV POLLING STATION CODE 004 with 500 registered voters.
(ii) KOFAR FADA V POLLING STATION CODE 005 with 732 registered voters.
(iii) GANGARAWA IV POLLING STATION CODE 013 with 500 registered voters.
(iv) GWAMUTSAWA I POLLING STATION CODE 015 with 752 registered voters.
(v) KOFAR GARD II POLLING STATIO NCODE 020 with 526 registered voters.
(vi) UNG. SAMBO I POLLING STATION CODE 024 with 508 registered voters.
(vii) DANBILAGO I POLLING STATION CODE 026 with 500 registered voters.
(viii) UNG. DANJUMA I POLLING STATION CODE 029 with 500 registered voters.
(ix) UNG. DANJUMA II POLLING STATION CODE 030 with 500 registered voters.
(x) TSOHUWARKASUWA POLLING STATION CODE 031 with 500 registered voters.
(xi) UNG. DANJUMA III POLLING STATION CODE 032 with 429 registered voters.
(xii) UNG. SARKIN GORO I POLLING STATION CODE 033 with 453 registered voters.
(xiii) UNG. SARKIN GORO II POLLING STATION CODE 034 with registered voters.
B. In Malumfashi B Ward, results in FORM EC 8A(1) (STATEMENT OF RESULTOF POLL FROM POLLING STATION) from the following Polling Stations (with a total .number of 13,169 registered voters) were not included in the collated results in FORM EC8B(1) (SUMMARY OF RESULTS FROM POLLING STATIONS) namely:
(i) UNG. ALIYU I POLLING STATION CODE 001 with 500 registered voters.
(ii) K/GIDAN B/MATAZU POLLING STATION CODE 004 with 504 registered voters.
(iii) DUDI PRI. SCHOOL POLLING STATION CODE 005 with 600 registered voters.
(iv) DUDI PRI. SCHOOL POLLING STATION CODE 006 with 603 registered voters.
(v) DUDI PRI. SCHOOL POLLING STATION 007 with 500 registered voters.
(vi) DUDI PRI. SCHOOL POLLING STATION CODE 008 with 619 registered voters.
(vii) DUDI PRI. SCHOOL POLLING STATION CODE 009 with 828 registered voters.
(viii) BRILLIANT P. SCHOOL POLLING STATION CODE 010 with 500 registered voters.
(ix) K/GIDAN RABIU MAGAJI POLLING STATION CODE 011 with 500 registered voters.
(x) WATER BOARD LOWCOST POLLING STATION CODE 012 with 755 registered voters.
(xi) SABON LAYIN D/TAFI POLLING STATION CODE 014 with 555 registered voters.
(xii) S/LAYIN D/TAFI II POLLING STATION CODE015 with 314 registered voters.
(xiii) UNG. DUTSE POLLING STATION CODE 017 with 1624 registered voters.
(xiv) TURA TSAMIYA II POLLING STATION CODE 019 with 500 registered voters.
(xv) UNG. HALILU (TSAMIYA) POLLING STATION CODE 020 with 993 registered voters.
(xvi) FAYAMASA POLLING STATION CODE 021 with 500 registered voters.
(xvii) UNG. HALILU (MAKADA) POLLING STATION CODE 022 with 500 registered voters.
(xviii)UNG. HALILU (KUKA) POLLING STATION CODE 025 with 500 registered voters.
(xix) B.C.G.A I POLLING STATION CODE 026 with 500 registered voters.
(xx) B.C.G.A III POLLING STATION CODE 028 with 692 registered voters.
(xix) B.C.G.A/K/GD/BABA POLLING STATION CODE 029 with 582 registered voters.
C. In Dayi Ward, results in FORM EC 8A(1) (STATEMENT OF RESULT OF POLL FROM POLLING STATION)from the following Polling Stations (with a total number of 7,645 registered voters) were not included in the collated results in FORMEC8B(1) (“SUMMARY OF RESULTS FROM POLLING STATIONS”) namely:
(i) DAYI III POLLING STATION CODE 003 with 500 registered voters.
(ii) DAYI IV POLLING STATION CODE 004 with 475 registered voters.
(iii) DAYI V POLLING STATION CODE 005 with 413 registered voters.
(iv) SABON GARIN DAYI POLLING STATION CODE 006 with 498 registered voters.
(v) SABON GARIN DAYI POLLING STATION CODE 007 with 546 registered voters.
(vi) UNGUWAR MAGA I POLLING STATION CODE008 with 419 registered voters.
(vii) UNG. MAGA II POLLING STATION CODE 009 with 453 registered voters.
(viii) FARIN HAWA POLLING STATION CODE 010 with 377 registered voters.
(ix) BABBAN DUHU GERO I POLLING STATION CODE 011 with 411 registered voters.
(x) UNGUWAR BUGAU POLLING STATION CODE 012 with 481 registered voters.
(xi) KADANYAR G/MAGUS POLLING STATION CODE 014 with 500 registered voters.
(xii) BABBAN DUHU KATSALLE POLLING STATION CODE 015 with 524 registered voters.
(xiii) KALGO POLLING STATION CODE016 with 497 registered voters.
(xiv) SANTAR KALGO POLLING STATION CODE 017 with 509 registered voters.
(xv) GORAR DAYI POLLING STATION CODE 021 with 433 registered voters.
(xvi) YAN DOKA POLLING STATION CODE 022 with 609 registered voters.
D. In Yammama Ward, results in FORM EC8A(1) (STATEMENT OF RESULT OF POLL FROM POLLINGSTATION)from the following Polling Stations (with a total number of 4,119 registered voters) were not included in the collated results in FORMEC8B(1) “SUMMARY OF RESULTS FROM POLLING STATIONS” namely:
(i) YAMMAMA I POLLING STATION CODE 001 with 500 registered voters.
(ii) YAMMAMA II POLLING STATION CODE 002 with 317 registered voters.
(iii) GANZAMAWA POLLING STATION CODE 005 with 491 registered voters.
(iv) GORA YAMMAMA POLLING STATION CODE006 with 581 registered voters.
(v) UNG. DA’U/KANKU POLLING STATION CODE 007 with 425 registered voters.
(vi) GORAR YAMMAMA POLLING STATION CODE 008 with 500 registered voters.
(vii) UNG. BUZU I POLLING STATION CODE 009 with 350 registered voters.
(viii) UNG. DA’U POLLING STATION CODE 010 with 450 registered voters.
(ix) UNG. BUZU II POLLING STATION CODE 011 with 505 registered voters.
- There are a total of not less than 111,647 registered voters in Malumfashi State Constituency as follows:
SIN
WARDS CODE TOTAL
- MALUMFASHI A001 22,289
- MALUMFASHIB 002 18,607
- YABA 003 11,164
- RUWANSAYI 004 5,722
- KARFI 005 11,173
- BORINDAWA 006 4,631
- YAM MAMA 007 5,001
- GOROR D/SAKA 008 6,883
- DANSARAI 009 3,930
- MAKAURACHI 010 5,949
- DAYI 011 10,660
- NA-ALMA 012 5,638
GRAND TOTAL 111,647
And more than 86,912 registered voters out of 111,647 total registered voters in the Constituency were not given the opportunity to vote.
The petitioner shall use and rely on the voters register for Malumfashi State Constituency at the trial of the petition and the Summary of the voters register for Malumfashi State Constituency at the trial of the petition and the 2nd to 5th respondents are hereby given notice to produce the documents at the trial of the petition.
- The petitioners shall use and rely on the following documents, to further substantiate the ground and facts stated above, at the hearing of this petition:
i. FORMS EC8A(1) (STATEMENTOF RESULT OF POLL FROM POLLING STATION) in respect of all the polling stations in Malumfashi B Ward, Dayi Ward and Yammama Ward.
ii. FORMS EC 88(1) “SUMMARY OF RESULTSFROMPOLLINGSTATIONS” for Malumfashi A Ward, Malumfashi 8 Ward, Dayi Ward and Yammama Ward.
iii. FORM EC 8E(1) “DECLARATION OF RESULT OF ELECTION” for Malumfashi State Constituency of Katsina State.
iv. The list of all the polling stations in the twelve wards making up the Malumfashi State Constituency.
v. Voters register for Malumfashi State Constituency.
vi. The summary of the voters register for Malumfashi State Constituency.
And the 2nd – 228th respondents are hereby given notice to produce the said documents at the hearing of the petition.
- Whereof your petitioners pray that it may be determined as follows:
(i) That the 1st respondent was not duly elected or returned and that the election was void.
(ii) That the election be declared null and void and a fresh or bye-election ordered.”
The 1st and 2nd respondents’ reply to statement of defence is to be found at pages 49 – 51 and the relevant paragraphs of the pleadings are as follows:
“SAVE AND EXCEPT as hereinafter expressly admitted, the 1st respondent denies each and every allegation in the petition as if same were set out and traversed seriatim.
- The 1st respondent denies strongly the averment in paragraph 9 of the petition and puts the petitioners to the strictest proof thereof. In reply, 1st respondent states as follows:
(a) RUWAN SANYI WARD: Election in this ward was peacefully conducted, results of election duly declared at the polling units by the various presiding officers.
The 1st respondent hereby pleads and shall rely on statement of results of poll from polling stations (Form EC.8A) in this ward.
(b) DANSARAI WARD: Elections were peacefully conducted and results from polling stations duly declared by the various presiding officers of the polling stations in this ward, 1st respondent hereby pleads and shall rely on statement of results of poll from polling stations (Form EC.8A(i) in this ward.
(c) NA-ALMA: Elections in this ward was conducted in eight (8) out of twelve (12) polling stations of the ward. There was no election in the remaining four (4) polling stations due to the disruptive activities of the petitioners.
(d) BORIN DAWA WARD: Election was conducted in six (6) polling stations out of ten (10) polling stations of the ward.
Results were duly entered in Form EC.8A(i). The 1st respondent shall rely on all the statement of result of poll from the six (6) polling stations namely, Borin Dawa ‘A’, ‘B’, ‘C’, Allah Madogara, Sabon Gari and Yanbita.
(e) KARFI, GORA DANSAKA, MAKAURACHI AND YABA WARDS: Election could not hold in these wards because the petitioners with their knowledge, active participation, consent or counsel disrupted and or created an atmosphere that was unconducive for the conduct of election in these wards.
1st respondent states that if the results from the four (4) wards where election was duly conducted but not added up to the final collation are tallied for the candidate the 1st respondent would still have a majority of the lawful votes cast in the eight (8) wards where election was conducted.
The 1st respondent states that he shall contend at the trial that having originated the illegality in the aforementioned wards where election was not conducted, the petitioners cannot be allowed to benefit from their illegality. The 1st respondent hereby pleads and shall rely on statement of results of poll from polling stations (Form EC.8A(i) in all the wards where election was conducted, the ballot papers and Forms EC.8B(ii).
- The 1st respondent denies strongly averment in para.11 of the petition and puts the petitioners to the strictest proof thereof.
In reply to the aforementioned paragraph, the 1st respondent states that the actual result as declared by the ward returning officer of the ward is as follows:
WARD AC ANPP PDP PSP ADC DPP PRP APGA
M/FASHI ‘A’ WARD 380 10110 1148 6 1 1 1 1
M/FASHI ‘B’ WARD 121 1756 1367 – – – – –
YAM MAMA 33 147 145 – – – – –
DAY I 144 736 315 – – – – –
1st respondent shall rely on all Forms EC.88(i) for the said wards.
- The 1st respondent denies paragraph 12 of the petition and puts the petitioners to the strictest proof of the averment therein. In answer to paragraph 12 of the petition, the 1st respondent states that results from Kofar Fada, Gwamutsawa, Kofar Gardi I, Unguwar Sambo I, Danbilago I, Tsohuwar Kasuwa, Unguwar Danjuma III and Unguwar Sarkin Goro I, polling stations all in Malumfashi ‘A’ Ward were duly included in the summary of results from wards EC.8B(i).
- In further response to paragraph 12(8), (C) and (D) of the petition except Sabon Layi D/Fafi polling station in Malumfashi ‘B” ward, which result was duly held and included in FORM EC.8B(ii),the 1st respondent states that in all the polling stations enumerated by the petitioner in paragraph 12(8), (C) and (D) of the petition, it was the petitioners, the agents, thugs, servants, employees, that created an atmosphere in which the conduct of election became impossible. The 1st respondent shall lead evidence to show that election did not take place in any of the polling stations mentioned in paragraph 12(B), (C)and (D) at the instance of, instigation or conduct of the petitioners and or the agents, servants, employees and thugs.
1st respondent shall further contend that the petitioners cannot benefit from the illegality they themselves created.
- The 1st respondent denies paragraph 13 of the petition and put the petitioners to the strictest proof thereof. In answer to the aforementioned averment, the 1st respondent states that there was no numbers of registered voters amounting to 86,912 voters or at all who did not vote. The actual no. of voters in the eight (8) wards where election held amounts to 83361 voters as against 39800 voters in the four (4) wards where election could not hold due to petitioners activities.
In further answer to the above, the 1st respondent avers (without conceding) that even if there was any number of voters who did not vote, the petitioners and or through their thugs or members were responsible for the inability of people to vote in the affected areas and that the petitioners cannot expect to gain from their illegality by nullification of the 1st respondent election.
- The 1st respondent denies paragraph 14 and 15 of the petition and puts the petitioners to the strictest proof thereof. In answer to the above paragraphs, 1st respondent states that the total no of registered voters in the eight (8) wards where election was conducted is 83361 voters, which is more than 50% of the voters in the constituency.”
While the statement of defence of the 3rd – 229th respondents is at pages 133 – 137 of the printed record and the relevant paragraphs are as follows:
“SAVE AND EXCEPT as is hereinafter expressly admitted the 2nd – 228th respondents deny each and every allegation of facts in the petition as if the same were basically set out and traversed seriatim.
- The 2nd – 228th respondents deny the contents of paragraphs 6, 7, 9, 10, 11, 12, 13, 14 AND 15 of the petition and put the petitioners to the strictest proof of the said averments at the trial.
- In answer to paragraphs 6 and 7 of the petition, the 2nd – 228th respondents aver as follows:-
(i) That the election into the Malumfashi State Constituency into the Katsina State House of Assembly held on the 14th April, 2007 were held in substantial compliance with the requisite provisions of the Electoral Act, 2006.
(ii) That in the said elections there was no question of non-compliance at all in the conduct of the elections and that even if there was noncompliance (which is not conceded), the non-compliance did not substantially affect the result of the election as declared by the 2nd to 228th respondents and won by the 1st respondent.
- The 2nd – 228th respondents in answer to the averment contained in paragraph 9 of the petition avers as follows:-
(i) Elections were peacefully conducted in substantial compliance with the Electoral Act 2006 in Ruwan Sanyi and Dansara Wards of this Constituency and the results collated and duly declared by the respective presiding officer of the polling stations in both wards.
Forms EC.8A(i) evidencing these facts are hereby pleaded.
(ii) Elections were conducted in 8 (eight) out of the (twelve) polling stations in Na-Alma Ward and result duly collated and declared. Election could not take place in the remaining 4 (four) polling stations in this ward due to the violent and disruptive activities of the petitioners and their agents.
(iii) Elections took place in 6 (six) out of the 10 (ten) polling stations in the Borin Dawa ward in substantial compliance with the Electoral Act 2006. Results declared in the 6 (six) polling stations – Borin Dawa MA”, Borin Dawa MB”, Borin Dawa MC”, Allahma Dogara, Sabon Gari and Yanbita were duly entered in Form EC.8A(i) (Statement of Results of Poll) and declared by the presiding officers.
(iv) Election could not take place in Karfi, Gora Dansalla, Makawachi and Yaba Wards of the Malumfashi State Constituency on the said 14th April, 2007 due to the violence and disruptive activities unleashed on the electorates by the petitioners and their agents and/or thugs which created an unconducive atmosphere inimical to the conduct of free and fair elections in these wards.
(v) The results of the 4 (four) wards where election were conducted but not added to the final collated votes would still not give a majority of lawful votes cast in favour of the 1st petitioner as the 1st respondent would still have emerged as the winner of the election.
(vi) The petitioners and or their agents were solely responsible for the illegal activities that disrupted voting in the wards where elections could not take place as per paragraph 4(iv) above and so cannot be allowed to benefit from their own illegalities. Forms EC.8A(i), EC.8B(ii) and ballot papers in all wards where elections took place are hereby pleaded.
- The 2nd – 228th respondents in answer to the averments in paragraphs 11 and 12 of the petition state as follows:-
(i) That contrary to the averment in paragraph 11 of the petition the full results as declared by the ward returning officers for Malumfashi “‘A” ward, Malumfashi “‘B” ward, Yammama ward and Dayi ward showed as follows:
WARD AC ANPP PDP PSP ADC DPP PRP APGA
Malumfashi “A” Ward 380 10,110 1,148 6 1 1 1 1
Malumfashi “B” Ward 121 1,756 1,367 – – – – –
Yammama 147 149 – – – – –
Dayi 144 736 315 – – – – –
Forms EC.8B(i) evidencing this result are pleaded.
Results from all the polling stations in the wards referred to in paragraph 5(i) above including Kofar Fada, Gwamusawa, Kofar Gardi 1, Unguwar Sambo 1, Denbibego 1, Tsohuwar Kasuwa, Unguwar Danjuma iii and UnguwarSarkin Goro1 polling stations in Malumfashi A ward were only collated in the summary of results from the wards (Form EC.8B(i).
(iii) Elections in all the polling stations except Sabon Layin D/Fagge in paragraph 12(B) (C) and (D) of the petition could not hold due to the disruptive and violent conducts of the petitioners and their agents, thugs, servants, privies and or employees and since no voting could take place due to these illegalities, no collation of votes which were actually not cast could be affected.
- The 2nd – 228th respondents in answer to paragraph 13 of the petition aver as follows:
(i) That it is completely untrue that 86,912 out of an alleged 111,647 registered voters were not allowed or given the opportunity to vote as the actual number of registered voters in the 8 wards where elections were held amounted to 83,361 as against 39,800 registered voters in the 4 wards where elections could not hold due to the illegal activities of the petitioners and their agents.
(ii) Even if certain voters who actually came out to exercise their franchise could not do so as alleged (which is not conceded) the fault lies squarely at the door steps of the petitioners and cannot be blamed on the 1st respondent and indeed, the 2nd – 228th respondents.
- The 2nd – 228th respondents in answer to paragraphs 14 and 15 of the petition aver that the total registered voters in the eight (8) wards where the election was conducted was 83,361 which is well over 50% of the registered voters in Malumfashi State Constituency and the 1st respondent won majority of lawful votes cast and was duly returned elected.
- Whereof the 2nd – 228th respondents shall urge this Honourable Tribunal to dismiss this petition and the reliefs sought in paragraph 15 thereof for being baseless, unmeritorious and frivolous with costs.”
As could be seen from the averments of the parties in this appeal, issues have been joined. The 1st and 2nd respondents as petitioners called eight witnesses including the 1st respondent and tendered several documents in evidence which were admitted in evidence, the evidence of the witnesses of the petitioner/1st respondent are to be found at pages 188 – 201 of the record. The evidence of the seventeen witnesses who testified for the 1st and 2nd respondents/appellants are at pages 201 – 220 of the record and they also tendered exhibits which were admitted in evidence.
At pages 318 – 320, the Tribunal held, “As to the last remaining 4 wards Karfi, Gara Dansaka, Makaurachi and Yaba wards, it is not in doubt the election did not hold in those wards. Both the petitioners and the 1st respondent are in accord on this. It is our view, that irrespective of who or what caused the non-holding of the election that day INEC ought to have ordered a by-election in those wards. We therefore find that there was noncompliance on the part of INEC for failing to conduct an election in those wards. We have gone through all the issues of non-compliance placed before us and after a careful consideration we are of the considered view that the declaration of result of election from only 4 out of the 12 wards in the Constituency, and the non conduct of the election in 8 out of the 12 wards amount to substantial non-compliance. The substantial non compliance is more pronounced when one considers the fact that even in the four wards where election was held and result declared, election did not hold in 57 out of 108 polling stations of the 4 wards where election was said to have held and result collated and declared. Taking the whole Constituency as a whole, election did not hold in 154 polling units out of 211 polling units in the Constituency. Taking it further, evidence shows that here are altogether 86,909 registered voters in the Constituency and from exhibit P3 i.e Form EC8E(1) only 16,608 registered voters participated in the election.
We therefore believe that there was substantial non compliance in the conduct of the election.
The last issues that requires determination is whether the non-compliance substantially affected the result of the election. We have read a lot of authorities on this issue such as the cases of Ebu v. Obun Supra, INEC v. Ray (2004) 14 NWLR (Pt.892) 92, Akm Fosile v. Jose Supra, Kudu Aliyu Supra, Dzungwe v. Swem and Sowemimo v. Awobajo Supra, Ziki v. Ezeugwu (1992) 4 NWLR (Pt. 236462). And we discovered that each case is unique was determined based on facts of each case and none of them is all encompassing. In the same way this present case is unique and can only be determined on facts pleaded and proved.
The 1st respondent was declared winner by a margin of 9,574 votes. About 86,909 registered voters did not take part in the election. While there is no guarantee that all the registered voters would have turned out to vote but disenfranchising even half of that number mentioned, it cannot be said that the electorate had spoken. It is important that the people be allowed to choose their mandated representative and this was not done in this election. Furthermore, considering the margin with which the 1st respondent won the election and the number of registered voter where election did not take place, it becomes clear that if such voters were allowed to vote the outcome of such voting can go either way.
Consequently it is our finding, that the non-compliance substantially affected the result of the election. And having so found, the Tribunal therefore declares the election of Halliru Lawal Malumfashi to the Katsina State House of Assembly for the Malumfashi State Constituency on the 14th day of April, 2007 invalid and therefore null and void.
The Tribunal consequently orders that a by-election be conducted for the said Constituency at a date to be fixed by INEC.”
The main purpose of formulation of issues for determination is to enable the parties to narrow the issue or issues in controversy in the grounds of appeal filed in the interest of accuracy, clarity and brevity. See OGBUANYINYA & ORS VS. OBI OKUDO & ORS (1990) 4 NWLR (PT.146) 551 at 568. An appellate court can only hear and decide on issues raised on the grounds of appeal filed before it and an issue not covered by any ground of appeal is incompetent and liable to be struck out. See MANAGEMENT ENTERPRISES VS OTOSANYA (1998) 2 NWLR(PT.55) 179.
It is a fundamental function of court to do justice to parties who appear before it in its pursuit of due and proper administration of justice. It can not close its eyes to obvious errors committed by counsel as a result of inexperience or ignorance where such errors can lead to injustice if left uncorrected. So far as it will not lead to injustice to the opposite side, an appellate court possesses the power and in the interest of justice, to reject, modify or reframe any or all issues formulated by the parties after a careful consideration of the issues as set out in the brief and grounds of appeal filed. This power of an appellate court has never been in doubt as long as the issue reframed is anchored on the grounds of appeal filed, the opposite party can not complain. See the case of OGBUANYINYA & ORS.VS. OKUDO & ORS. (1991) 4 NWLR (PT.146) 551 and BANKOLE VS. PELU (1990) 8 NWLR (PT.211) 523.
Having studied issues 1 – 6 formulated by the parties in this appeal, I consider it appropriate to formulate a single one for the determination of the appeal in respect of the six issues as follows:
“(1) Whether having regard to the pleadings and evidence adduced, the judgment of the Tribunal can be sustained?”
The ground of the petition before the Tribunal, reproduced in this judgment is very clear and it is averred by the petitioners/1st and 2nd respondents in their pleadings that the said election was not conducted substantially in accordance with the Electoral Act.
Both oral and documentary evidence were relied upon by the 1st and 2nd respondents in establishing their case before the Tribunal. It is interesting to observe that several documentary evidence were admitted in evidence in support of the case of the petitioner/1st respondent without any objection by the two set of respondents. The two set of respondents equally relied on both oral and documentary evidence without any objection by the petitioner /1st respondent. It is trite that parties are bound by their pleadings and that evidence which is at variance with the pleadings must be discountenanced as they go to no issue. See EMEGOKWUE v. OKADIGBO (1973) 4 S.C. 113.
It is also trite that it is not open to a party to depart from his pleadings and put a different case from the one pleaded just as it is not competent for a court of law to depart from the pleaded case to find on that which is never pleaded. See LEMOMU v. ALLY-BOLUGUN (1975) 3 S.C. 87.
No amount of submission can change the law as it is now. After a careful examination of the pleadings, written address of the parties as well as the judgment, I observed from the issues formulated by the learned counsel for the appellants that new or fresh issues were formulated for determination in this appeal. The appellant formulated seven issues from his ten grounds of appeal, and some of the issues are on pleadings and evidence led on issues not pleaded when the said issue on pleadings and evidence was never raised and determined before the Tribunal in which case it is a fresh issue being raised on appeal for the first time.
The position of the law is quite clear and the attitude of the Court of Appeal and the Supreme Court is that they will not allow a party on appeal to raise a fresh issue or grant leave to a party to argue new ground not canvassed in the trial court except and unless the new ground involved substantial point of law which need to be allowed to avoid an obvious miscarriage of justice. In the case of EZE v. ATTORNEY-GENERAL RIVERS STATE at page 558, Karibi-Whyte, JSC, summarised it all thus:
“Generally the Court of Appeal will not allow point which were not taken in the trial court to be taken for first time before it. This is because the appellate court would not have had the benefit of the opinion of the trial court on the issue. See KABAKA’S GOVERNMENT v. A.G. OF UGANDA (1963) 3 W.L.R. 572. This is especially so where the point raised involves consideration of matters of fact with which the court below were in a more position to deal with and which they had in fact dealt with. See EJIOFUDOMI v. OKWONKWO (1982) 11 S.C. 74; JOHN DAWE & ORS v. JOSEPH IYAMAHAN & ORS (1983) 2 S.C.N.L.R. 135; (1983) S.C. 76.”
The state of the law is that a party cannot, without leave, raise an issue not raised in the lower court. See OFORKIRE v. MADUIKE (2003) 5 NWLR (PT.812) 166 at 182.
Taking into consideration the ground of the petition, evidence adduced both oral and documentary, particularly by the 1st and 2nd respondents as petitioners, I am fully satisfied that the 1st and 2nd respondents as petitioners have successfully established their case of non-compliance with the Electoral Act before the Tribunal. It should be noted that the ground of the petition was non-compliance with Electoral Act in conducting the election at the Malumfashi Constituency of Katsina State.
The clear picture that emerged from the record of proceedings, is that while the petitioner/1st respondent led credible evidence in accordance with his pleadings, particularly paragraphs 9, 10, 11, 12, 13 and 14 of his averments, the appellant/1st respondent and the 2nd – 228th respondents on the other hand merely denied the petitioner /1st respondent averments without leading any evidence in rebuttal of same.
The issue as to who caused the non-holding of the election in some of the wards in that constituency was not the case of the 1st and 2nd respondents and as a result no burden is placed on the 1st and 2nd respondents to prove what caused the failure to conduct election in some of the wards in Malumfashi Constituency.
Apart from the fact that the 1st and 2nd respondents as petitioners proved their case before the Tribunal, there is also admission by the appellant, Halliru Lawal Malumfashi who at page 219 on cross-examination said:
“It is not true that I am and my agents had declared that the Results be declared in four wards only.
It was INEC on their own that had declared the Result based on 4 wards. When INEC decided to do this I did not protest. I won in those 4 wards so how could I have protested. It is true that the Result of,
I) Malumfashi A; II) Malumfashi; III) Dayi; IV) Mahumma;
were also collated in INEC Headquarters and not in the different wards because the supporters of the PDP did not allow collation to take place in the various wards.”
As has been proved by evidence it is not in dispute that the election for the Malumfashi Constituency was declared by INEC only on four wards out of twelve wards and as a result 11,647 registered voters out of 86,912 registered voters had no vote in the said election.
It is the law that evidence elicited during cross examination be credible and admissible. See GAGI v. PAYE (2003) 8 NWLR (PT.823) 583 at 603.
It is trite that what is admitted does not require further proof by evidence, whether oral or documentary. See AKPAN v. UMOH (1999) 11 NWLR (PT.627) 349 at 365.
It is by now a well-known principle of our law that it is not a function of an appellate court to substitute its own views for those of a court of first instance with respect to facts found by the court and based on a dispassionate appraisal of the evidence before it. See A.G. EKITI STATE v. DARAMOLA (2003) 10 NWLR (PT.827) 104 at 123.
On the appellant’s issue No.7 erroneously numbered issue No.6, on whether the judgment delivered by the Election Tribunal Katsina is not invalid or nullity by the Tribunal having not been properly constituted as regards its membership, it is the contention of the learned counsel for the appellant that where the court or Tribunal as in this case decides to implement its full compliment of Chairman and four other members as opposed to the requirement, of all its proceedings including judgment must reflect the presence of all the Justices that sat. According to the learned counsel for the appellant a Tribunal which began proceedings with a panel of Chairman and four must conclude with the same number of Justices failure of which renders the proceedings void. He however stated that four of the Judges including the Chairman signed the judgment delivered on the 19th day of September, 2007.
Paragraph 2(1) of the sixth Schedule to the 1999 Constitution prescribed the membership of the Governorship and Legislative Houses Election Tribunal. It provides:
“A Governorship and Legislative Houses Election Tribunal shall consist of a Chairman and four other members.”
Section 285(4) of the 1999 Constitution this prescribes the quorum for an Election Tribunal. It provides:
“( 4) The quorum of an Election Tribunal established under this section shall be a Chairman and 2 other members.”
The law is clear where the Chairman of an Election Tribunal sits with two other members a quorum is formed.
It should be noted that in the instant appeal, the appellant is not complaining against the jurisdiction of the Tribunal but insisting that at all times the penal must consist of a Chairman and four other members. Though that is the requirement of the Constitution, it has clearly stated the number of Judges that can form the quorum.
The law is however settled that it is not every error, mistake or slip in a judgment that must result in an appeal being allowed. It is only when the error is substantial in that it has occasioned a miscarriage of justice that the appellate court is bound to interfere. See AKPAN VS. OTONG (1996) 10 NWLR (PT. 476) 108.
The appellant has not stated in which way he was affected by the judgment he relied upon in filing his notice of appeal and brief.
I am of the view that issue No.7 lacks merit and is resolved against the appellant.
Having regard to what has been stated above, I answer the single issue formulated by me in the affirmative in that the evidence adduced by the 1st and 2nd respondents as petitioners is in line with their pleadings, I therefore have no reason whatsoever to interfere with the judgment of the Tribunal.
In the result, the appeal lacks merit and is hereby dismissed. I hereby affirm the judgment of the National Assembly Election/Governorship and Legislative Houses Election Tribunal holden at Katsina, Katsina State delivered on the 19th day of September, 2007, in Petition No. HA/EPT/KTS/23/07. The seat for the Malumfashi Constituency for the Katsina State House of Assembly is hereby declared vacant and I hereby order a bye-election in the Malumfashi Constituency for the Katsina State House of Assembly to be conducted by INEC, the 3rd respondent within 90 days from today.
No order as to costs
Other Citations: (2009)LCN/3201(CA)
