Hon Abdul Ahmed Ningi & Anor. V. Salisu Zakari & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
ALFRED P. EYEWUMI AWALA, J.C.A.
This appeal is founded on the General Election held nationwide on 21/4/07 for’ a seat at the Federal House of Representatives at Abuja. The 1st Appellant contested for the seat meant for Ningi/Warji Federal Constituency of Bauchi State under the platform of the 2nd Appellant whilst the 1st Respondent equally contested same under the auspices of the 2nd Respondent At the end of the collation of the election results, the 1st Appellant scored 43,828 votes whilest 1st Respondent scored 66,724 votes. The 1st Respondent was declared the winner by the 5th Respondent.
The Appellants dissatisfied with the declaration and the return of he 1st Respondent as the winner of the election petitioned the Governorship and Legislature House Election Petition Tribunal holden at Bauchi in petition No NAGLH/EPT/BA/19/07 on 19/5/07 (hereinafter called the lower tribunal).
In paragraph 7 of their petition the petitioners stated the grounds upon which they challenge the result of the election as follows:-
(i) “The 1st Respondent was indicted by a military panel (Regimental) of inquiry on the 6th day of January, 1992 by virtue of the Nigeria Army Act, Cap 294 Laws of the Federation of Nigeria 1990.
(ii) That the 1st Respondent was a public servant in the service of the Bauchi state Government and had not retired, withdrawn or resigned from its employment thirty days before the date of the said election contrary to section 66(1)(f) of the 1999 constitution of the Federal Republic of Nigeria.
(iii) That by virtue of the provisions of section 34(1) of the Electoral Act, 2006 the 2nd Respondent was legally bound to inform the 3rd Respondent of any change of its candidate in the election not later than 60 days before the election date by 13/2/07 latest
(iv) That except in the event of death as provided for under Section 34(3) of the electoral Act, 2006 no substitution of candidate can be done outside the date referred to in paragraph (iii) above.
(v) That by March 2007 one Adamu Shehu Suleiman “was the candidate of the 2nd Respondent for the election and the 2nd Respondent did not inform the 3rd. Respondent of the change or substitution of its candidate within the time frame stipulated under Section 34 (1) of the electoral Act, 2006..
(vi) That the said Adamu Shehu Suleiman who was the candidate of the 2nd Respondent and ought to be the 2nd Respondent’s flag-bearer at the election.
(vii) That the alleged substitution of Adamu Shehu Suleiman with the 1st Respondent on 19/3/07 less than 60 days to the election in question contravened Section 34(1) and violated Section 35 both of the electoral Act, 2006.
(viii) That for ‘the reasons aforesaid, the 1st Respondent was not qualified to contest the election to his knowledge and that of the electorates.
(ix) That for the reasons aforesaid, the 2nd Respondent had no candidate for the election.
The reliefs sought by the petitioners, summarily are:-
(a) That it be determined that the 1st Respondent was not duly elected member of the House of Representative.
(b) That it be determined that the 1st Respondent was not duly elected member of the House of Representative.
(c) An order that the ‘3rd to 5th Respondents to withdraw forthwith the certificate of return issued to the 1st Respondent.
(d) That it be determined the 1st petitioners having polled the highest number of valid votes cast at the election be declared the winner and returned accordingly.
(e) An order directing the 3rd to 5th Respondents to issue certificate of Returned to the 1st petitioner as the duly ejected members of the National Assembly for Ningi/Warji federal Constituency.”
The Respondents after being duly served with aforesaid petition filed their respective Replies. The 1st and 2nd Respondents joint Reply was filed on 14/6/07. After the pre-trial sessions, trial proper commenced on 4/9/07 dismissing the petition. Dissatisfied, the Appellants filed a Notice of Appeal on 14/11/07 formulating 14 grounds of Appeal.
As per the Rules of this Court parties filed and exchanged their respective briefs of Arguments. Appellants’ brief was filed on 5/11/07 deemed filed 3/3/08. 1st and 2nd Respondents filed 14/11/07 deemed filed 3/3/08; ‘while 3rd to 5th Respondents filed their own jointly on 9/11/07 deemed filed on 3/3/08. Hearing the Appeal was on 14/4/08.
In the Appellants’ Brief 8 issues are distilled. 1st and 2nd respondents couched 5 issues for determination; while the 3rd to 5th respondents adopt the 8 issues raised by the Appellants.
For ease of reference I reproduce the issues hereunder seriatim, one after the other:-
Appellants’ 8 Issues for Determination.
(1) Whether the Appellants proved disqualification of the 1st Respondent under Section 66(1)(c) of the 1999 constitution on the strength of Exhibit “A1” in view of the provision of Section 121 (1) and (2) of the Nigerian Army Act Cap. 294 LFN 1990. (Ground 1, 2 and 3).
(2) Whether from the evidence available at the trial, the tribunal was right in finding that the disqualification of the 1st Respondent under Section 66(1)(f) of the 1999 constitution was not proved (Grounds 4, 8 and 14).
(3) Whether the tribunal was right in finding that Exhibits “C3” and “C4” established 1st Respondent’s resignation within 30 days to the election. (Ground (s)?
(4) Whether the tribul1al was right in placing reliance on Exhibit “C1” and “C2” in coming to the conclusion that the 1st Respondent had withdrawn his services from Bauchi, State Teachers Service commission before participating in the election of 21/4/07 (Grounds 6 and 7).
(5) Whether the tribunal was right in holding that the Appellants did not adduce evidence as to the time of the substitution of the 1st Respondent. (Grounds 9 and 11).
(6) Whether the tribunal was right in discountenancing and/or refusing to accord weight to Exhibit “F/I on the ground that it was not certified (Ground 10).
(7) Whether the tribunal was right in making use of Exhibit “T” which was not tendered in evidence in the Appellants’ petition but was tendered in a sister petition, which was consolidated with the Appellants’ petition for convenience of trial (Ground 12).
(8) Whether the tribunal was right in’ holding that the Appellants needed to put in result sheets in evidence to establish that the 1st Appellant scored majority valid votes, when they pleaded the results of the election in the petition which was admitted by the Respondents in their reply to the petition (Ground 13).
1st And 2nd Respondents’ 5 issues for Determination
1) Whether Exhibit “A1” satisfies the requirement of Section 66 (1)(c) of the 1999 Constitution as to disqualify the 1st Respondent from contesting the 21st April, 2007 election into the House of Representative’ for Ningi/Warji Federal Constituency (Grounds 1, 2 and 3).
2) Whether Exhibit C proved that the 1st Respondent did not resign his employment with the Ministry of Education, Bauchi state 30 days to the, election date (Grounds 5, 6, 7 and 8).
3) Whether from the available evidence the Appellants proved the substitution of the 1st Respondent with Adamu Shehu Suleimen contrary to Section 34 of the Electoral Act, 2006 (Grounds 9, 10 and 11).
4) Whether reliance on Exhibit T in the consolidated petition occasion any miscarriage of justice (Ground 12).
5) Whether the Appellants polled the highest number of lawful and valid vote’s cast in the House of Representatives election for Ningi/Warji Federal constituency on 21st April, 2007 (Ground 13) 3rd to 5th Respondents,
They adopt the 8 issues distilled by Appellants for argument (supra).
To my mind the 5 issues formulated by the 1st to 2nd Respondents are most apt and germane for the resolution of this appeal and I adopt them for that purpose.
Issue one- “whether Exhibit “A1″ satisfies the requirement of Section 66(1)(c) of the 1999 constitution of the Federal Republic of Nigeria as to disqualify the 1st Respondent from contesting the 21st April, 2007 election into the House of Representative for Ningi/Warji Federal constituency.” (Grounds 1, 2 and 3).
Arguing this issue the Appellants learned counsel Ben Ogbuchi Esq. submitted that the 1st Respondent was a soldier, that he committed the offence of desertion while he was in the Nigeria Army in 1992 and was accordingly convicted which conviction disqualified him from contesting the election of 21/4/07 to the House of representatives pursuance to Section 66(1)(c) of constitution of Federal Republic of Nigeria 1999 as pleaded by them in paragraph 7(1) of the their petition (See page 3 of the record). The report ‘which served as the conviction by virtue of S. 121 (2) of the Army Act (Cap 294) LFN 1990 was pleaded in paragraph 1 of the list documents to the petition (See page 10 of the record).
Secondly in proof of the 1st Respondent’s disqualification one Lt Col. ISM Bashir PW1 through whom Exhibit “Al” was tendered testified as PW1 and under cross-examination said that the 1st Respondent who was a lance corporal absented himself without leave (Awol) in 1991. As a result the ARMY SET UP a Military (Regimental) Board of Inquiry and it issued a report represented by-Exhlbit A1″ The-Report was entered into the Army Books. This amounted to conviction. PW1 was rigorously cross-examined by Kefas Magaji, Esq of counsel for the 1st and 2nd Respondents. He remained totally unshaken. PW1 said he was an eye-witness.
Contending further appellants’ counsel submitted that as a result of Exhibit A1 the 1st, Respondent was struck out of strength and deprived of all the benefit due to him as a soldier which is a conviction. That the foregoing effect of Exhibit “A1” was acknowledged ‘by the Respondents in paragraph 6(e) of the 1st Respondents’ Reply to the petition (See pages 18 to 19 of the record) and in the 1st Respondents written statement on oath (See page 23 of the record).
To crown it all, when the 1st Respondent testified as RW2 what he admitted was’ AWOL (Absent without leave) by reason of Exhibit “A1” (See page 100 of the record. Admission counsel submitted is the best evidence to prove disqualification under Section 66(1)(c) of the 1999 constitution as proved by Exhibit “A1” the conviction instrument.
For an apt understanding of his argument learned counsel reproduced S.66(1)(c) of the Constitution and S. 121 of the Nigerian Army Act as follows;-
Section 66 (1): “No person shall be qualified for election to the senate or the House of Representative if:
(c) He is under a sentence of death imposed on him by any competent Court of law or Tribunal in Nigeria or a sentence of imprisonment or fine for an offence involving dishonesty or fraud (by whatever name called) or any offence imposed on him by such Court or tribunal or substituted by a competent authority for’ any sentence imposed on him by such a Court.”
Section 121 (1) and (2) Nigerian Army Act
(1) “Where a board of inquiry enquiring into the absence of an officer or soldier reports that he has been absent without leave (AWOL) or other sufficient cause for a period specified’ in the report; not being less than twenty-one clear days, a record of the report shall in accordance with Board of inquiry rules be entered into the service Books”
(2) “A record entered in pursuance of sub-section (1) of this section, shall unless the ‘absentee subsequently surrenders or is arrested, or the report of the Army council or subsequent Board of inquiry, have the effect as a conviction by Court martial for desertion.”
Counsel then argued that the uncontroverted “‘evidence adduced and the effect of Exhibit’ “A1”, the 1st Respondent was not eligible to contest the election to the House of Representatives. He cites Asikpo V Ekene (199) 5 NWLR (pt. 604) 578 and Ogboru V Ibori (2004) 7 NWLR (Pt. 604) 578. He then opined that inspite, of the above overwhelming evidence of disqualification the lower tribunal held otherwise counsel contended. He cites Lawal V P.G.P. (Nig Ltd (2001) 17 NWLR (pt. 742) 393; Nwosu V The state (2004) 15 NWLR (Pt. 897) 466 and Ndayako V Dantoro (2004) 13 NWLR (Pt.889) 187. In Lawal (supra) at page 405 para 8 of the report that by this Court held as follows:-
“Where there is an averment in a pleading on a relevant issue and evidence is led on it and it is Unchallenged by the adverse party, both averment and evidence led on it are deemed to be admitted”
Counsel therefore submitted that the lower tribunal was in error to have decided that the Appellants have not discharged the onus of proof on then in establishing that the 1st Respondent was disqualified by virtue of S.66(1) (c) of the constitution to contest the election of 21/4/07 held on 22/4/07 and therefore the lower tribunal was in error. We are therefore urged to resolve this issue in favour of the Appellants.
In response the 1st and 2nd Respondents’ learned counsel Kafas Magagi, Esq. in his joint brief of argument argued summarily issue one (supra) as follows:-
That for an indictment to constitute a disqualifying factor it must involve the offence of dishonesty or fraud found by a competent Court of law, tribunal or commission of inquiry duly constituted for that purpose and government has accepted the report by issuing the appropriate white paper. That Exhibit “A1” is the record of the Military (Regimental) panel of inquiry that tried the 1st Respondent, not a Court of law or tribunal. That a Court of law includes Court martial. The evidence of PW1 – LT Col S.M. Bashir under cross-examination made it clear that Army (Regimental) panel of inquiry is not Court martial. Counsel then submitted that the panel of inquiry is not a competent court of law or tribunal within the meaning of Section 66(1)(c) of the 1999 Constitution and that the entry of the report in the service books pursuant to Section 121 of the Army Act supra does not change the position or make Exhibit “A1”, for all intents and purposes, equivalent to a conviction by a competent Court of law or tribunal counsel Cites Asikpo V Ekene (1999) 5 NWLR (Pt. 604) 574; Action Congress V INEC (2007) 12 NWLR (Pt. 1048) 230 at 322 ratio 2 puts all misconceptions about Section 66(1)(c) for senate and House of Representative, 137 (1) (i) for president and Governor all in pari material respectively to rest: – when the Supreme Court held thus:-
“Section 137(1)(i) of the 1999 Constitution which disqualifies a person from contesting election into the office of the president if he has been indicted for embezzlement or fraud is not self executing. To invoke against the disqualification therein provided would require an inquiry as to whether the Tribunal or’ Administrative panel that made the indictment is of the nature or kind contemplated by Section 137(1)(i) read together with other relevant provisions of the constitution in particular Section 36(1) which provides that “in the determination of his civil rights and obligations, including any question or determination by or against any Government or authority, a person shall be entitled to fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality. As well as Section 36(5) of the said constitution which states that every person who is charged with a criminal offence shall be presumed to be innocent until proved guilty”. The disqualification in Section 137(1), clearly involves a deprivation of right and a presumption of guilt for embezzlement or fraud in derogation of the safeguards in Section 36(1) and (5) of the constitution. The trial and conviction by a Court is the only constitutionally permitted way to prove guilt and therefore the only ground for the imposition of criminal punishment or penalty for the criminal offences of embezzlement or fraud.. Clearly the imposition of penalty of disqualification for embezzlement or fraud solely on the basis of an indictment for these offences by an Administrative panel of inquiry implies presumption of guilt contrary to Section 36(5) of the constitution of FRN 1999, whereas conviction for offences and impositions of penalties and punishment are matter appertaining exclusively to judicial power.” per Katsina Alu JSC.
Now by the principle of stare decisis the above ratio of the Supreme Court binds this Court. This supports the decision of the lower tribunal that the 1st Respondent is not disqualified by the provision of Section 66(1)(c) of the 1999 constitution.To my mind that decision is not perverse. I see no reason why we should interfere with it. In the circumstances I resolve issue one in favour of the 1st Respondent.
I treat now issue two- “whether “Exhibit “C” proved that the 1stRespondent did resign his employment with the Ministry of Education, Bauchi State 30 days to the election.”
Summarily this is how the Appellants learned Counsel Ben Ogbuchi Esq argued this issue:-
(1) That this issue is grounded on the disqualification based on the provision of Section 66(1)(f) of the 1999 constitution of the Federal Republic of Nigeria. That the 1st Respondent did not resign his ‘job as a public secondary school teacher with Bauchi state Ministry of Education 30 day’s before the election held on 21/4/07 and was therefore not qualified to contest the election in issue. That this issue was pleaded in the Appellants’ petition (See pages 7 – 9 of the record). ” ..
(2) That in response the 1stand 2nd Respondents in their joint Reply (pages 18 -18 of the record) pleaded in paragraph 6 thus:- ”
“The Respondents further aver in answer to paragraph 5, 7, 8 and 9 of the petition in their joint Reply as follows:-
(1) “That the 1st Respondent was a civil servant with the Bauchi State Government and having served as a class teacher at Government Day Secondary School, Yelwa Tudu, Bauchi
(2) That by the letter dated 1/1/07 the 1st Respondent applied to the Teachers Service Commission, Bauchi to withdraw his service from Bauchi State Government.”
(3) That to prove that the above averment above is false the 1st Appellant as PW2 on 8/8/07 testified and subpoenaed Exhibits “B”, “C”, “C1” “C2”, “C3” and “C4” and admitted in evidence without objection. Expatiating the exhibits, learned counsel stated as follows:-
(a) That Exhibit “B” is the 1st Respondent’s Bank statement which shows he was paid his salaries for the months of January, February and March, 2007.
(b) That Exhibit “e” is the 1st Respondent’s service file. Exhibits C1, C2, C3 and C4 were identified as documents in Exhibit C relevant to the issue whether or not the 1st Respondent did resign his appointment 30 days as he claimed before he contested the 21/4/07 election to the House of Representative for Ningi/Warji Federal Constituency.
(4) That PW2-the 1st Appellant showed by Exhibit B supra that the 1st Respondent continued in service up to the Month of March, 2007 as he received his salary for April, 2007 thus discharging the initial burden on the appellants. However the lower tribunal found in favour of the 1st Respondent instead of holding that the Appellants had made out a prima facie case and which remained unrebutted.”
(5) That what the 1st Respondent should have proved to extricate himself from web of S. 66 (1) (f) was to’ have proved that he did resign well in time whether or not the resignation was accepted or not is a different kettle of fish. He cites Adefemi V Adegunde (2004) 15 NWLR (Pt. 895) 1.
(6) That Exhibits C containing Exhibits C1, C2, C3 and C4 were tendered by the Appellants and the’ 1st and 2nd Respondents tendered nothing, but that they only averred in paragraph 6 (1) of their Reply to the petition by referring to a letter of resignation dated 1/1/07. This alleged letter of resignation was not produced neither is it found in Exhibit “C”. (1st Respondent’s service file). What was found was a letter of resignation dated 11/9/06 marked Exhibit “C3 contained in Exhibit C. Counsel then submitted that the tribunal was in error to accept Exhibit C3 as’ proof of 1st Respondent’s resignation which was certainly not what was pleaded by the 1st and 2nd Respondents in their Reply to the petition. This is because Exhibit C3 was made on the 11/9/06 whereas they pleaded the date of resignation by the 1st Respondent to be 1/1/07.
Counsel submitted further that apart from the pleadings in their Reply, he maintained the same stance in his statement on oath. And during cross-examination that the 1st Respondent as RW2 claimed for the first time that he resigned by Exhibit “C3”. Counsel submitted that the tribunal should not have believed him because he contradicted his earlier position in their pleadings and pleadings bind parties and the Court or tribunal, Counsel cites Ajide V Kelani (195) 3 NWLR (Pt. 12) 248 where at page 269 of the report Oputa JSC stated thus:-
“A party should be consistent in stating his case and consistent in proving it. He will not be allowed to take one stance in his pleadings; then turn summersault during the trial; then assume non-challant attitude in the Court of Appeal; to revert to his case as pleaded in the Supreme Court. Justice is much more than a game of hide and seek. It is an attempt, our human imperfections not – withstanding, to discover the truth. Justice will never decree anything in favour of so slippery a customer as the present Defendant/Appellant.”
The above scenario created by the 1st and 2nd Respondent should have led to the whole evidence on the purported resignation letter exemplified by Exhibit C3 not rejected by the lower tribunal and this was to be counsel’s Laments. He cites Ezemba V Ibeneme (2004) 14 NWLR (P. 894) 617 and Basil V Fajebe (2001) 11 NWLR (Pt.725) 592.
It is important to emphasis, counsel for the Appellants added that Exhibit C3 was dated 11/9/06 and the content averred that the resignation of the 1st Respondent would take effect from 15/12/06 to 15/3/07. That that does not require skill to fathom the interpretation of Exhibit C3 and the intention of the 1st Respondent therein which is that the resignation was for a term of three mouths only 15/12/06 to 15/3/07. In other words after 15/3/07, the 1st Respondent will return back to work. There was no other letter after the 15/3/07 when the purported resignation of the 1st Respondent lapsed, which is 37 days to the, election of 21/04/07 showing that the appointment which was reverted to on 16/3/07 was terminated at least 30 days to the election.
Counsel then argued that in law resignation is never for a term certain but perpetual. That Exhibit “C3″is-therefore a sham. The lower tribunal ought to have seen that Exhibit “C3” was defaced with different tying character of the word “To 15/3/07”. Besides, the tribunal, counsel opined, ought not have given any probative value to Exhibit C3 at all as evidence of withdrawal of 1st Respondent from service before he contested the 21/4/07 election and this is so because apart from the fact that it damaged the assertion of the 1st Respondent that he resigned before embarking on the election due to its inconsistency with what was pleaded in paragraph 6(1) of the Reply to the petition, Exhibit C3 itself lacked the credibility that could back up the claim of the 1st Respondent that he resigned his service as required by Section 66(1)(f) of the 1999 Constitution.’ That it goes without saying that the tribunal is bound in law to act on only credible evidence.’ Cites Agbi V Ogbe (2005) 8 NWLR (Pt. 926) 40.
Furthering his argument learned counsel submitted that Exhibit “C4” dated 14/2/07 was said to be the approval for the withdrawal from service by the 1st Respondent. That Exhibit “C4” also lacks probative value and ought’ not have been accorded any evidential weight by the tribunal because it relied or gave approval to a letter of resignation dated 1/1/07 as pleaded in paragraph 6(i) of the 1st and 2nd Respondents Reply to the petition, but unfortunately there was no such letter of resignation in Exhibit C the service file of the 1st Respondent. They were therefore. in error when they held that Exhibit C4 was an acceptance of Exhibit C3 dated 11/9/06.
Besides counsel argued there is the Appellants’ pleading in their paragraph 7 (ii) of the petition of non-resignation of the 1st Respondent based on Exhibit “B” (The Afribank Statement of Account) which showed that the 1st Respondent worked to the end of April 2007 as he was paid salary up to that date. The Respondents’ counsel submitted could have responded in their joint Reply to the petition that the salary up to April 2007 was paid in error; the Respondents did nothing of the kind. In law, counsel submitted, the Respondents can not rely on the evidence that payment of salary up to April (Exhibit “C1″ and C2”) were in error because it is trite that evidence in respect of facts not pleaded, even if obtained under cross-examination, go to no issue. Cites Ojoh V Kamalu (2005) 18 CPt.958) 523.
Apart from not pleading error of payment in Exhibit “C1” and “C2”, counsel submitted, the 1st Respondent utilized the salaries and he refunded same after he had won the election, in two installments in April and May (3/5/07). That the above scenario cast a grave doubt on the Respondents defence and the tribunal could have seen the falacy in the defence and reject same. Appellants’ counsel urged us to resolve this issue No 2 in favour of the Appellants.
What is the response of the 1st and 2nd Respondents’ Learned counsel to the above argument? It is as follows summarily:-
“(a) That the law in Election petition is as in civil proceeding, that is to say, the petitioner/Plaintiff is to succeed on the strength of his case. This in effect means that the burden of proof is on the petitioner (See Section 135 – 138 of the Evidence Act; Buhari V Obasanjo (2005) 19 NWLR at 296; Omoboriowo V Ajasin (1984) 1 SC 206 and Magaji V Odofin (1978) 3 SC 98. Hence the Appellants’ counsel subpoenaed to be issued for the production of Exhibit “C” (1st Respondent file) admitted in Evidence on 1/8/07 by both parties. By the state of the law therefore, counsel submitted the burden is on the Appellants to show that the resignation by the 1st Respondent was less than 30 days before the election.
Learned counsel furthered submitted by arguing that he conceded that Exhibits C1, C2, C3 and C4 were identified as documents relevant to the issue of resignation 30 days before the election. For apt understanding he explained again the said relevant documents thus:-
That Exhibit C1 – is the receipt for payment of salary dated 26/4/07. Exhibit C2 – the receipt for payment of salary dated 3/5/07 and Exhibit C4 – Approval for the 1st Respondents withdrawal from service dated 14/2/07.
That the above pieces of evidence contained in Exhibit C was produced by the Appellants. That the letter of resignation was dated 11/9/06 though approved on 14/2/07. That the law is now settled that resignation takes effect from the date the notice is received not the date of approval. Cites Adefemi V Abegunde (2004) 15 NWLR (Pt. 895) 1.
That it is clear Exhibit C3 was presented on 11/9/06 approved 14/2/07 and election was held 21/4/07 which was 60 days before the election with Exhibit “C4”. Learned counsel reiterated that Exhibits “C3” and “C4” show clearly that the 1st Respondent did resign well in time 30 days before the date of the election pursuant to Section 66(1)(f) of the 1999 Constitution. That accepting the argument of the Appellants will amount to placing the burden of proof on the 1st Respondent on the issue of resignation of the 1st Respondent. He cites Sir T. A Nwamara in his book Encyclopedia of Evidence of law and practice 1st Edition at page.838 on “Onus in the shifting of burden of proof. That the learned Author quoting Lord Haworth (MR) said:
“It appears to me that there can only be sufficient evidence to shift the onus from’ one side to the other if the evidence is sufficient prima facie to establish the case of the party on whom the onus lies. It is not merely a question of weighing feathers on the one side Or the other, and saying that if there were two feathers on one side and one on the other, that will be sufficient to shift the onus. What is meant is that in the first instance the party on whom the onus lies must prove his case sufficiently to justify a judgment in his favour if there is no evidence” ,
That Exhibit B corroborates Exhibit C1 and C2 which show that the 1st Respondent did not collect his salaries for the month of February and March 2007. He urge us to hold that Exhibits C1 and C2 did not prove that 1st Respondent resigned less than 30 days to the election. He urge us to hold that the 1st Respondent was not therefore disqualified from contesting the 21/4/07 House of Representative election.
The learned counsel for the 3rd to 5th Respondents supports the contention of the 1st and 2nd Respondents’ learned counsel wholesomely; so there is no need therefore to appraise to his argument. That will amount to repetition.
Now, I must start by saying that- Section 66(1)(f) (supra) only disqualifies a person employed in a civil or public service of the Federation or state such employee who failed to resign, withdraw or retire from his employment at least 30 days before the election from contesting any elective office. I agree with the Appellants that Exhibit C3 was dated 11/9/06 not 1/01/07 as the 3rd to 5th’ Respondents’ learned counsel contends in page 7 of their join brief of Argument. Exhibit C3 dated 11/9/06 stated that the resignation of the 1st Respondent would take effect from 15/12/06 to 15/3/07 meaning the resignation was for term of three months only. In other words, the 1st Respondent after 15/3/07 can revert back to his job. There was no other of resignation letter in Exhibit “C” (1st Respondents file of service) neither was Exhibit C3 pleaded in their Reply to the petition by the Appellants 37 days to the election on 21/4/07 showing that the 1st Respondent reverted back to his appointment on 16/3/07 and put in another resignation letter 30days before the election, I agree with the Appellants’ counsel that Exhibit C3 was not strictly and legally a resignation (11/9/06) letter in anticipation of the election 21/4/07, Besides Exhibit C3 is defaced and the character of ‘the word “To 15/3/07” is different-from-those of the other content of Exhibit C3. The 1st and 2nd Respondents learned counsel did not tackle this phenomenal characteristic of C3 and in law the argument of the Appellants’ counsel in this regard is taken as true. In other words, Exhibit C3 fall short of resignation envisaged in Section 66(1)(f) of the constitution. Besides, it was not pleaded. It was a sham. This shifts the burden of proof on the Respondents and the lower tribunal should not have accorded any probative value to Exhibit “C3” at all. Their decision here therefore is perverse. This Court IS duty bound to interfere in the interest of justice and reverse the decision by holding that the 1st Respondent is disqualified from contesting the said election by S.66(1)(f) of the 1999 Constitution of the Federal Republic of Nigeria.
See Lawal V Dawodu (1972) 1 ANCR.270 and Mogaji V Odofin (1972) 4 SC 91.
‘.Accordingly; I resolve this issue 2 in favour of the Appellants and against the 1st and 2nd Respondents.
I proceed now to treat issue 3 – “whether from available evidence, the Appellant proved the late substitution of the 1st Respondent with Adamu Shehu Suleiman contrary to Section 34 of the Electoral Act, 2006.” (Grounds 8, 10 and 11).
On this issue, the Appellants’ learned counsel submitted that when the list of the names of candidates contesting the 21/4/07 election for the seat at the House of Representative, Exhibit “F,” was published by INEC pursuant to section 35 of the Electoral Act 2006 the names of 1st Respondent was missing. Exhibit “F’ was published on 20/3/07 (30 days to election). It was the names of one Adamu Shehu Suleiman who was the nominated candidate for Ningi/Warji Federal constituency that was published but in violation of Section 34 of the Electoral Act, 2006 the 2nd Respondent submitted his’ name with the 1st Respondents name and did not inform INEC in writing of the change not later than 60 days to the election and no cogent and verifiable reasons were proffered for the change.
Counsel submitted further that the tribunal was wrong in accepting Exhibit F because from the evidence before it (Exhibit “F” published 30 days before the election to hold 21/4/07 but held on 22/4/07 because of absence of election materials on 21/4/07, the 1st Respondent was not the candidate. He was unlawfully substituted. That since the substitution was not made before the publication of Exhibit “F” on 20/3/07, it follows that the substitution of Adamu Shehu Suleiman with the 1st Respondent was made after 20/3/07 which was 30 days to the election and this counsel submits was in violation of the mandatory provision of Section34 (not less than 60days) which has the effect of nullifying the election cites Kgwu V Ararume (2007) 12 N\NLR (Pt. 1048) 365.
Contending further counsel submitted that Exhibit “D” was tendered and admitted in evidence without objection.’ It was with’ Exhibit “0” that “the names of the 1st Respondent were forwarded to INEC as the substitute for Adamu Shehu Suleiman as the candidate for Ningi/Warji Federal Constituency in violation of Section 3, 4. That going by what were presented to the tribunal Exhibits “F” and “D” which were not contradicted there was sufficient evidence for the tribunal to have found illegal substitution. Counsel urges us to so hold.
In reply counsel for the 1st and 2nd Respondents in their joint Reply to the petition in paragraph.6 thereof denied the above allegation of the Appellants and they pleaded in paragraph 7 (iii to x) of their joint Reply and joined issues with the Appellants. The 3rd to 5th Respondents in their joint Reply and argument also denied the Appellants claim. Counsel for the 1st and 2nd Respondents expatiating and furthering their argument more submitted that by Sections 135 – 138 of the Evidence Act the burden of proof is on the Appellants as petitioners. That the law is settled “he who asserts must prove.”
Learned counsel submitted further that to discharge this burden, the Appellants tendered Exhibit “0”, which is an acknowledgement of nominated candidates by INEC dated 19/3/07. The letter, Exhibit “D”, does not purport to be the request for change or substitution of candidates and that such reasoning should not be imported into Exhibit “D” as the document speaks for itself. That it is settled law that the Courts are enjoined to give the words of a document their ordinary and natural meaning Exhibit “D” dated 19/3/07 is plain as day, it carries as its subject matter the following:-
Exhibit “D”
“NOMINATED CANDIDATES FOR GENERAL ELECTION MATTERS ARISING FROM INEC OFFICIAL LIST” and no more. That no where in it is stated that 19/3/07 was the date the substitution of the 1st Respondent with Adamu Shehu Suleiman was made. And therefore the oral evidence by PW2 the 1st Appellant under cross-examination to that effect goes to no issues. That the law is also settled that oral evidence can not be admitted to add to, vary, subtract or contradict a written document. Cites Larmie V O.P.M.S. Ltd (2006) 12 WRN 150 at 156.
Now, weighing the arguments of counsel for the parties appraised above and placing them on the imaginary scale of justice the pendulum obviously tilts in favour of the 1st Respondent. I see the argument of the Appellants learned counsel as exemplified by Exhibits “D” is more or less inviting the lower tribunal to speculate as to when the substitution of the 1st Respondent with Adamu Shehu Suleiman was made, the court does not speculate. Besides, just as the 1st Respondents learned counsel rightly submitted, he who asserts must prove. The burden of proof as to non-compliance with Section 34 of the Electoral Act 2006 lies heavily on the Appellants. This they failed woefully to discharge same.
I resolve therefore this issue three in favour of the 1st Respondent.
Now I treat issues four and five together: (1) “Whether reliance on Exhibit “T” ,in the consolidated petitions occasioned any miscarriage of justice” (Ground 12) and (2) “Whether the Appellants polled the highest number of lawful and valid votes in the House of Representative election for Ningi/Warji Federal constituency on 21/4/07” (Ground 13).
As usual I summarize the arguments of the learned counsel for the parties seriatim, one after other. Starting with the Appellants’ counsel’s argument.
Learned counsel for the Appellants arguing issue 4 referred first to the motion on Notice dated 2/7/07 (See pages 36 to 39 of the record) and filed by him on 3/7/07 to consolidate petition Nos. (1) NAGLH/EPT/BA/19/07 between the Appellants and the Respondents herewith and (2) NAGLH/EPT/BA18/07 Between Adamu Shehu Suleiman and the Respondents herewith. The prayer was granted by the lower tribunal on 4/7/07.
Counsel then argued that by the consolidation of the petitions in law they still retained their independent separateness. He cites Abana V Obi (2004) 10 NWLR (Pt. 881) 319; NWAEZE v Eze (1999) 3 NWLR (Pt. 595) 410. That Exhibit “T” was tendered in the Suleiman’s petition NAGLH/EPT /BA/1S/07 (supra). And he added that to justify the use of the said Exhibit “T” as they did in the instant case it ought to have been retendered and readmitted in the Appellants’ petition NO. NAGLH/EPT/BA/19/07. In essence counsel opined that the mere fact that the two petitions were consolidated does not render Exhibit T ipso facto an Exhibit in the Appellants petition. He cites Isaac Iloabuodu V Cosmas Ebigbo (200) 8 NWLR (Pt. 668) 197 and Alaribe V Nwankpa (2000) 8 NWLR (Pt. 668) 197.
In Alaribe’s case (supra), this Court held at page 260 of the report as follows:-
“Evidence tendered in furtherance of one of consolidated cases is not ipso facto evidence in the other and the fact that one set of witnesses testified for a party in two consolidated petition could not, and did not have the effect of indissolubly fusing the two petitions together”
Therefore, that the use of Exhibit “T” which is evidence in the Suleiman’s case (supra) amounts to the tribunal engaging in a voyage of discovery outside what the parties had presented before it for determination. Counsels urge us to hold that that the finding of the lower tribunal based on Exhibit “T” occasioned miscarriage of justice.
Next issue 5
“Whether the Appellants polled the highest number of lawful and valid votes in the House of Representatives election for Ningi/Warji Federal Constituency on 21/4/07.” (Ground 13).
The Appellant’ counsel submitted that the Appellants pleaded the result of the election and the scores of the candidates that contested the election including the scores of the 1st Respondent. (See paragraph 1, 2 and 3 at pages 2 and 3 of the record); That in the joint Reply to the petition, the 1st and 2nd Respondents admitted paragraph 1, 2 and 3 of the petition (see page 18 of the Record). Counsel then submitted that the law is trite that facts admitted need not be proved. (See Section 75 of the Evidence Act) and cites Asafa food Factory V Alraine (Nig) Ltd (2000) 12 NWLR Pt. 87 at 370 para H of the report; Okoebor V Police Council (2003 12 NWLR (Pt. 834 444; Hamidu V Sahar Ventures ltd (2004) 7 NWLR (Pt. 873) 618 and the recent case of Bunge V Govt Rivers State (2006) 12 NWLR (Pt. 995) 573 at 599 of the report Oguntade JSC stated thus:-.
“It is often the case that parties assume that when a suit is filed in court and parties have exchanged pleadings, further progress in the matter must at all events be determined by evidence to be called. The correct position is that whether or not it is necessary to call evidence must be dependent on the state of the pleadings. Where a plaintiff has pleaded facts upon which his right in dispute in the suit hinges and the defendant admits those facts, it is not in such a case necessary for any evidence to-be called and the court would be entitled to give judgment on the pleadings. When a fact is pleaded by the plaintiff and admitted by the defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact, which is admitted.”
Therefore Appellants counsel finally submitted that the 1st and 2nd Respondents having admitted the result as contained in paragraph 3 of the petition, the lower tribunal erred in law when they held that the appellants need to put the Result sheets in evidence. Counsels therefore urge us to resolve this issue five in favour of the Appellants. In response the 1st and 2nd Respondents’ learned counsel submitted that Exhibit “T” was put in evidence by consent from the bar in petition No NAGLH/EPT/18/07. The document is from INEC. It contained the names of candidates including that of the 1st Respondent to contest the election billed for 21/4/07 for a seat in’ the House of Representatives for Ningi/Warji Federal Constituency Bauchi state on the Platform of the 2nd Respondent. That the complaint of the appellants is that the Tribunal ought not to have used Exhibit “T.” is misconceived and submitted that is worthy of note that Exhibit T is before the lower tribunal having been admitted by consent from the bar and on the authority of Adisa V AG. Kwara (2002) NWLR 99 at 105; Obadiegwu V Lion Bank Plc (2003) 16 WRN 91 at 94. The tribunal is seized of it:
That it is important to note that the 1st and 2nd Respondents only needs Exhibit T if the Appellants; had discharged the burden of proof placed on them to prove their case. That Appellants are to succeed on the strength of their case not on the weakness of the defence. That indeed from the totality of the evidence, the evidential burden of proof has not shifted from the Appellants to the 1st and 2nd Respondents and he can not fathom how the use of Exhibit T occasioned miscarriage of justice as the Appellants argued. Counsel urged us to so hold.
That the Appellants themselves pleaded in paragraph 3 of their petition that the votes scored by each of the candidates at the election are as follows: 1st Appellant polled 43,828 votes, while 1st Respondent polled 66,724 votes. The 1st and 2nd Respondents admitted this figure as the truth that is correct. The 3rd to 5th Respondent’s admitted the averments also in their joint Reply to the petition. The Appellants did not prove how the 1st Appellant polled the highest votes different from their own pleading. Counsel then submitted that it is trite no party- is allowed to make a case different from his pleading. That evidence that is at variance with a party’s pleadings goes to no issue. Counsels then urged us to hold that it is the 1st Respondent in the instant case that polled the highest number of votes at that election not the 1st Appellant. Now there is no doubt about it in this issues that the Appellants did plead that the 1st Respondent scored 66,724 votes in ‘contrast to 43,828 votes scored by the 1st Appellant. Arithmetically the highest votes was not scored by the 1st Appellant inter alia (See page 3 of the record) but by the 1st Respondent in that election.
Parties are bound by their pleadings. In the circumstances I resolve issue 4 and 5 in favour of the 1st Respondent.
Now I hold the view that it is worthy of note to “state all the issues are not of equal pedestal. Issues one and two are the major issues. The life wires of this appeal. Both are based on the exclusion provision of the Constitution of the Federal Republic of Nigeria Sections 66(1)(c) and S.66(1)(f). Issue -one on Section 66(1)(c) is resolved in favour of the 1st Respondent thus affirming the decision of the lower tribunal that the 1st Respondent was not disqualified from contesting the election, but the issue of disqualification for non-resignation as per Section 66(1) (f) which is obligatory to all civil servants to resign etc before they can contest elective office this 1st Respondent failed to do and that in my opinion is one out of five issues lost by 1st Respondent which in law is not a pass mark just as it is with the ten commandments of God. Committing one out of ten sins the sinner still goes to hell. So it is with the Electoral Act, 2006 not to mention breach of the constitution of the Federal Republic of Nigeria Section 66(1)(f) by the 1st Respondent. He failed all.
I will not end this judgment without commenting on the rationale behind the exclusion provisions in Sections 66(1)(c) and 66(1)(f) of the constitution of the Federal Republic of Nigeria 1999 and the similar provisions in Section 182(1)(i) to the office of Governor and 137(1) in respect of the president. It is to exclude persons of doubtful or questionable character and people lacking in integrity from elective office and thereby ensure transparency and probity in governance.
In the case of a civil servant it is either he stays in his appointed Government office or resign or retire to vie for elective political office. One can not be in the two worlds. Loyalty and discipline in the public service will be messed up otherwise.
On the whole therefore I hold that this appeal is meritorious. It is allowed. I hereby make an order directing the 3rd to 5th Respondents to issue certificate of Return forthwith to the 1st Appellant as the duly elected member of the National Assembly (House of Representatives) for Ningi/Warji Federal Constituency of Bauchi state. The decision of the lower tribunal in petition No NAGLH/BA/19/07 dated 25/9/07 is overturned.
I make no order as to cost. Parties to bear their own costs of this appeal.
Other Citations: (2008)LCN/2796(CA)
