Hon. (Dr) Yusuf Datti Baba – Ahmed & Anor V. Jibril Adamu & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

JOHN INYANG OKORO, J.C.A.

This is an appeal against the judgment of the National Assembly/Governorship and Legislative Houses Election Tribunal sitting in Kaduna in petition No. EPT/KD/NA/001 delivered on 22nd November, 2007 wherein the Tribunal dismissed the petition of the Appellants. – Elections into the House of Representatives of Nigeria were held throughout the Federation on the 21st of April, 2007 including Zaria Federal Constituency. The 1st Appellant was sponsored by the 2nd Appellant, the All Nigeria Peoples Party (ANPP) in the election while the 1st Respondent contested on the platform of the Peoples Democratic Party (PDP). The said elections were conducted by the 2nd Respondent, the Independent National Electoral Commission (INEC) with the support of the 3rd to 369th Respondents. At the end of the election, the 2nd Respondent declared the 1st Respondent the winner of the election with 67, 745 votes as against the 1st appellant’s score of 37,954 votes. Dissatisfied with the return of the 1st Respondent as winner, the appellants filed Notice of appeal dated 30th November, 2007 on the 3rd day of December, 2007 containing fourteen grounds of appeal. The main grouse of the appellants in the petition was in respect of five wards out of thirteen wards in the Constituency. That there was non compliance with the provisions of the Electoral Act 2006, in the elections of Dutsen Abba, Gyellesu, Wuciciri, and Dembo wards and that there was no election at all in Kufena ward but mere allocation of votes. The Appellants however accepted the result of the election as being free and fair in the remaining eight wards.

From the fourteen grounds of appeal, the appellants have formulated six issues for the determination of this appeal. The issues are as follows:-

(1) “Whether there was Election in Kufena ward in the 21st of April, 2007 elections in compliance with Electoral Act, 2006 and the manual for Election Officials 2007.

(2) Whether the Learned Trial Judges of the Tribunal properly discharged their duty dispassionately in evaluating all the oral and documentary evidence in the Petition and arrived at correct decision.

(3) Whether the Learned Trial Judges of The Tribunal were right when they treated Exhibits G – G8 and 11 – 117 (All duplicate originals of EC8A (ii) of Dutsen Abba and Dembo wards) as inadmissible in law on the basis of lack of source or foundation.

(4) Whether the Petitioners/Appellants have proved falsification of the election results of Dutsen Abba ward and the tribunal was entitled to collate the genuine election result.

(5) Whether the Petitioners/Appellants have rebutted the presumption of genuiness or authenticity of the election results of INEC in the Trial of the Petition.

(6) Whether the 1st Respondent complied with the mandatory provision of paragraph 15 of the first schedule to the Electoral Act, 2006 and what is the effect of non compliance with the provision in relation to the Petition and the 1st Respondents case. ”

The Learned Counsel for the 1st Respondent however submits that only three issues are necessary for the determination of this appeal. The issues are:-

(1) “Whether the election was conducted in substantial compliance with the provisions of the Electoral Act, 2006.

(2) Whether the 1st Respondent was the winner of the election by majority of lawful votes.

(3) Whether the Lower Tribunal properly evaluated the evidence before it.”

The Learned Counsel for the 2nd to 369th Respondents formulated what he considers more appropriate issues which are three in number as follows:-

1. Whether the election was characterized by corrupt practices, irregularities and non compliance with the provisions of the Electoral Act, 2006.
2. Whether the 1st Respondent, was the winner of the election by majority of lawful votes.
3. Whether the Lower Tribunal properly evaluated the evidence’ before it.

Although the two sets of Respondents have submitted three issues each for the determination of this appeal, and these issues are the same, and having made replies to the Appellants’ arguments in their six issues, I shall determine this appeal based on the issues formulated by the appellants without losing sight of the issues of the Respondents.

On the first issue, it was’ submitted on behalf of the appellants by their Counsel that where voter’s register had no marking, but forms EC8A (ii) are produced showing scores, such scores should be excluded from the valid votes scored by a candidate and that where a party alleges that election took place, he has to call at least one witness who voted to testify. This, he submitted the Respondents failed to do. He cited the cases of Nweke V. Ejims (1999) 11 NWLR (Pt. 625) 39 and INEC V. Ray (2004) 14 NWLR (Pt. 892) 92. He submitted that Exhibits A, B, B1, D and D1, being the voters cards of the petitioners’ agents, were not marked or stamped. Also that Exhibits E 18 – E52 being voters registers tendered in evidence were also not marked. That this is clear evidence that elections was not held in the Kufena ward.

Learned Counsel further submitted that Exhibit E53 (Form EC 25B) i.e. Electoral Material Receipt for Kufena ward shows that 16,000 ballot papers were received for the election but that the total number of votes cast in the ward was 16, 897 showing an outstanding of 897 ballot papers unaccounted for. He urged the court to hold that this is evidence of over voting which offends Section 54 (2) of the Electoral Act, 2006. He further urged the Court to nullify the results in the eight units where there was over voting.

Finally on this issue he urged the Court to compare Exhibits E1 – E15 of Form EC8A (ii) and it will be revealed that only one person filled all the forms whereas it is supposed to have been filled by their respective presiding officers. He cited the case of Chukwura V. Anyakora (2006) All F.W.L.R. (Pt. 302) 121. He then urged the Court to resolve this issue in favour of the Appellants.

The Learned Counsel for the 1st Respondent submitted that the evidence of PW1 – 5 who testified on Kufena ward was to the effect that collation centre was changed and they refused to go. Secondly, that their testimony that PDP agents used force, teargased them and took election materials to new collation centre confirmed that election took place but since PDP was not joined in the petition, the evidence goes to no issue. Finally, that Exhibits E and W show that election took place in Kufena Ward and this was not rebutted.

The Learned Counsel for the second set of Respondents submitted exactly what the 1st Respondent had presented on the first issue and there is no need to sumarise it again. They then urged this Court to resolve this, issue against the appellants.

Three Exhibits have been referred to by the appellants to show that elections did not take place in Kufena ward. These are Exhibits A, B, B1, D & D1, E18 – E52 and E53. Exhibits A, B & D are voters cards of the agents of the Petitioners. Exhibits E18 – E52 are the voters Registers while Exhibit E53 is the Electoral Material Receipt. I have carefully examined the Exhibits and note that the voters card of the Petitioners’ agents have not been stamped to show that they had voted. However, the Register of voters i.e. Exhibits E 18 – E52 have been marked to show that some voters presented themselves for election on that date. The fact that not all the names were ticked shows that not all the registered voters may have presented themselves for voting. I note that in Exhibit E53, the figures 12,000 and 4,000 refer to Kufena ward. Although, the Exhibit does not disclose what the figures stand for, there is however no reason to disbelieve the appellants that they refer to ballot papers.

The complaint of the Appellants in this issue is that there was no election in Kufena ward but in their argument, they present a case of over voting. The question is, if there was no election, how then did the over voting con1e about? I seem to agree with the submission of the Learned Counsel for the Respondents to the effect that when INEC changed collation centre due to security reasons, the appellants simply refused to go there. Their testimony that PDP agents teargased them and forcefully took election materials to a new collation centre does not avail them as PDP was not made a party in the petition. An allegation or evidence given in Court or Tribunal against a person who is not made a party to the case goes to no issue. The acts of PDP agents cannot be attributable to the Respondents and they cannot be asked to answer for the alleged acts of another.

The Learned Counsel for the Appellants had submitted that the change of the collation centre on the day of the election is a contravention of Section 47 of the Electoral Act, 2006 which substantially affected the conduct of the election in Kufena ward. Section 47 of the Electoral Act states:-

“The Commission shall not later than 14 days before the day of the election, cause Notice of Poll to be published, in such manner as it may deem fit, a notice specifying the following matters, that is to say:-

(a) the day and hours fixed for the poll;

(b) by way of indication, the persons entitled to vote, and

(c) the location of the polling stations”

The above section does not mention collation centre and it is not proper to read collation centre into it. However, the DW1, on page 765 of the Record of proceedings testified that collation centre was changed from Unguwar Dankali to Tudun Sarki and that a notice to that effect was issued to the parties before the date of the election. The appellants have not shown how the change in collation centre affected the result of the election and I have not seen the said effect. Thus although the DW1, confirmed that collation centre was changed, it was not changed on the date of the election.

On the issue of over voting, there is no evidence to support this. Learned Counsel on pages. 805 – 806 of the record tabulate a table to show over voting. I have perused the evidence of PW1 – 5 there is nothing to support this tabulation. It is trite that address of Counsel cannot substitute for evidence that is supposed to be led before the Court. See Anthony V. Governor of Lagos State (2003) 10 N.W.L.R. (Pt. 828) 288. The submission on over voting, not being backed by evidence goes to no issue. I hold the view that elections were held in Kufena ward as even the petitioners refer to acts of voting. The issue was not of irregularities at the election but that there was no election. This issue, to my mind, does not avail the appellants.

The second issue is whether the Lower Tribunal dispassionately evaluated all oral and documentary evidence placed before it.

The Learned Counsel for the appellants submitted that there was failure to properly evaluate evidence in the various ratios of the judgment appealed against and this failure relates to both oral and documentary evidence. That in view of the fact that the PW1 was crossed examined in relation to Kufena ward only, without any question on Wuciciri and Dutsen Abba wards, the Lower Court ought to have acted upon the uncontroverted or uncontradicted evidence in relation to the two wards. He cited the cases of Ali Basheer V. Poly Camp (1992) 4 N.W.L.R. (Pt. 236) 491, Broadline Enterprises Limited V. Monterely Maritime Corporation (1995) 9 N.W.L.R. (Pt. 417) 1.

Furthermore, he submitted that the Lower Court failed in its primary function to properly evaluate the evidence of corrupt practices put forward by the petitioners. That in an election matter in which substantial part of the evidence required to resolve the issues in controversy is documentary in nature; an Appeal Tribunal should examine the documentary evidence and draw inference from them as if it was the – Tribunal. He referred to the case of Mbakurta V. Abbo (1998) 6 N.W.L.R. (Pt. 554) 456. Learned Counsel then urged the Court to evaluate the evidence by comparing the documentation in Exhibits 11 – 117 and Exhibit J and nullify the result in Exhibit J.

The two sets of Respondents in their respective briefs, submitted that the Lower Tribunal diligently carried out this duty of evaluation of evidence before arriving at its decision. They urged this Court to so hold.

It is trite that for a trial Court or Tribunal to successfully arrive at a reasonable decision, it must study, analyse and evaluate the whole gamot of evidence placed before it. It is the primary function of a trial Court or Tribunal to evaluate evidence and ascribe probative value to it since it saw, heard and assessed the witnesses. Where the complaint on appeal is that the trial Court failed to evaluate the evidence before it, the appellant is duty bound to specify the evidence which the trial Court failed to evaluate. See Ejoh V. Wilcox (2003) 13 N.W.L.R. (Pt.838) 488, Onwudinjo V. Diniobi (2006), N.W.L.R. (Pt. 961) 318.

I need to restate the law that an appellate Court will not ordinarily disturb the findings of fact of the trial Court except such finding is found to be perverse, or that the Lower Court drew wrong inference from accepted facts or applied wrong principles of law to such facts. See INEC V. Ray (Supra), Igodo V. Owulo (1999) 5 N.W.L.R. (Pt. 601) 70, Njoku V. Osinuri (1999) 5 N.W.L.R. (Pt 601) 120, Odali V. Ahmadu (1999) 5 N.W.L.R. (Pt 601) 22.

In order to determine whether the Lower Tribunal properly evaluated the evidence led before it, or not, recourse has to be made to the judgment itself. Learned Counsel submitted that the Tribunal failed to evaluate the evidence led at the trial and particularly, that the Tribunal failed to evaluate Exhibits 11-117 and Exhibit J. On page 862 of the Record of appeal, the Tribunal states as follows:-

“PW10 who is an ANPP ward supervisor agent stated that he collected the results from his agents and these results were tendered in evidence before the Tribunal … There is no evidence as to the source of the Exhibits. The Exhibits, that is, Exhibits 11 – 117 were just dumped on the Tribunal without linking them to the source… The evidence regarding these exhibits is no more than hearsay as it is inadmissible.”

From the above quotation from the judgment of the Lower Tribunal, I am of the view that the Tribunal not only evaluated both the oral and material evidence laid before it, but that it also assessed same and declared that they had no probative value. In fact it pronounced that Exhibits 11-117 are hearsay and inadmissible. In other words, although the Exhibits were tendered and admitted into evidence, they lacked any probative value as they are hearsay. The tribunal even cited and relied on the case of Hashidu V. Goje (2003) 15 N.W.L.R. (Pt 843) 352.

It is now elementary to repeat the fact that hearsay evidence is inadmissible in law. In the instant case, the PW 10 had to rely on information supplied to him by third parties as regard the alleged conduct of elections in the various units of the ward. In this case neither the persons who prepared Exhibits 11-117 nor the agents who were physically present at the various units were called as witnesses at least to say something as regards the exhibits. I hold the view that the Tribunal was on firm ground when it declared Exhibits 11-117 as hearsay. In other words, the Tribunal did its best in evaluating the said evidence. See UBN V. Ishola (2001) 15 N.W.L.R. (Pt 735) 47, Armds Transport Ltd. V. Atinuke Martins (1990) All N.I.R. 27 INEC V. Ray (Supra).

Apart from this, the Lower Tribunal on pages 859 – 865 of the Record considered ward by ward the five disputed ward in the constituency. The tribunal summarized the evidence; the exhibits tendered and made its conclusions. It is therefore uncharitable to say that the tribunal failed to evaluate the evidence. In the circumstance, I resolve this issue against the appellants.

The 3rd issue has to do with the refusal of the lower Tribunal to act on Exhibits G-G8 and 11-117. I had already made my views known with regard to Exhibits 11-117 which I think applies to Exhibit G-G8 and I do not intend to repeat myself here but suffice it to say that a distinction has to be made between a situation where a Court having admitted a document in evidence, turns around at the end to expunge it from evidence and another situation where, having admitted such a document, the Court does not attach much weight to it. In the first instance, that will create a situation of the Court reversing itself to which the case of Nwanosike V. John Hold PLC. (2006) All F.W.L.R. (Pt. 301) 1809 at 1830 cited by Learned Counsel for the Appellants applies which is to the effect that the Court cannot reverse itself in the circumstance. The second situation does not mean that the evidence has been rejected. No. It is part of the evidence. The only thing is that the Court does not attach much weight to it as in the instant case where the Tribunal said that the Exhibits are hearsay although it had admitted them in evidence under Section 91 (2) of the Evidence Act. I need however to state that a Court has no inherent powers to overrule itself except the judgment or order is shown to be a nullity. Where a Court has admitted a document in evidence, it cannot turn around to reject it. The Court should concentrate on the value to attach to it except the original decision is found, to be a nullity. See Ogbu V. Urum (1981) 4 S.C. 1. Obinonure V. Erinosho (1966) 1 All N.L.R. 250 and Nwosu V. Udeaja (1990) 1 N.W.L. (Pt. 25) 198. In the instant case, the issue is not that of the Court reversing itself. It relates to not attaching much weight to it. I therefore resolve this issue against the appellants.

The Learned Counsel for the Appellants’ in the fourth issue submitted that the appellants had proved falsification of the election Result of Dutsen Abba ward. That the appellants had tendered two sets of results to prove falsification and that they had discharged the burden placed on them. The case of Ojo V. Esohe (1999) 5 N.W.L.R. (Pt 603) 444 and Atiupekpe V. Joe (1999) 6 N.W.L.R. (pt 607) 428 were cited and relied upon. Learned Counsel urged this court to rely on Exhibits G Series, reject F series and declare the result of that ward a nullity.

The two set of Respondents submitted that the appellants did not lead evidence to prove the two sets of results but rely on the address of counsel which cannot avail them. They urged that this issue be resolved against the appellants.

I note that Exhibits F – F30 contain all the results of the 31 units of Dutsen Abba ward. The Tribunal had noted that Dutsen Abba ward has 31 units. Exhibits G – G8 purports to be the result of election in nine units of the ward. These are the two sets of results which the appellants urge this Court to compare. The Tribunal had noted that there is no evidence as to the whereabouts of the other 22 units of the ward in Exhibits G series. In other words, result of the election of the ward in Exhibit G series is not complete. Only result in 9 of the 31 units is in Exhibits G series.

I agree with the position of the law that in order to prove falsification of election results, two sets of the result must be pleaded and evidence given thereto. That is to say, one set considered being genuine or authentic and the other falsified. The onus of producing the two set of results lies on the petitioner and not the Respondent. See Sechegba V. Penawou (1999) 9 N.W.L.R. (Pt 618) 354. However, in the instant case, there is no basis for comparison as the “result” considered by the appellants to be genuine is only as touching only nine units of the 31 units in the ward whereas the one tem1ed “falsified” has all the 31 units. The Lower Tribunal had held that the appellants failed to place two sets of results before it and I have no reason to disagree with them. In other words, there was nothing to compare in the circumstance. This issue does not also avail the appellants.

The fifth issue for consideration, to any mind is a summary or repeat of the arguments in the four issues already determined. It is therefore unnecessary to repeat the exercise here.

On the last issue submitted by the appellants for consideration in this appeal, it was the contention of the Learned Counsel for the appellants that since the appellants’ case at the tribunal was that the 1st Appellant scored majority of lawful votes, it was therefore mandatory for the 1st Respondent to have set out the votes he objected to as presented by the appellants. Such failure means that the Lower Tribunal or this court can collate the result as provided by the petitioner. He then urged the court to collate the result in Exhibit G – G8 and that in 11 – 117 for Dutsen Abba and Dembo wards respectively. The appellants placed reliance on the case of Hassan V. Tumu (1999) 10 N.W.L.R. (Pt 624) 700 and Chukwunra V. Anyakora (2006) All F.W.L.R. (Pt 302) 121.

The respondents submitted on the issue that apart from the fact that the issue was never canvassed at the court below, paragraph 15 of the 1st schedule to the Electoral Act, 2006, refers to a situation where the petitioner in support of the ground that he won the election by majority of lawful votes, sets forth the votes in each said wards to establish that fact. That where he pleads that son1e votes were excluded without stating them and without final figure of how he won the election, the Respondent has no figure to contest. The Respondents rely on the case of Balami V. Bwala & Ors (1993) 1 N.W.L.R. (Pt 267) 51 to opine that the Petitioner is also required to submit a list of objection to the votes of the Respondent.

We are being called upon here to state the purport of paragraph 15 of the 1st schedule to the Electoral Act 2006 and also to state the effect of non compliance thereof. That paragraph states:-

“When a petitioner claims the seat alleging the highest number of votes cast at the election, the party defending the election or return at the election shall set out clearly in his reply particulars of the votes if any, which he objects to and the reasons for his objection against such votes, showing how he intends to prove at the hearing that the petitioner is not entitled to succeed.”

This paragraph, which requires the respondent to properly set out the votes he objects to the petitioners, presupposes that the petitioner has himself set out the votes he believes could have given him victory. Where the petitioner fails in this duty, there, is nothing for the Respondent to contest. See Balami V. Bwala & Ors. (Supra). Where a petitioner has properly set out the votes and the Respondent fails or neglects to object to such votes, the Court shall have unfettered power to collate same and declare the result appropriately. The reason being that it is unchallenged and uncontroverted evidence which courts are bound to apply provided the evidence is cogent and reliable. In the instant appeal, I need not desipate my energy on Exhibits 11 – 117 which I had already made pronouncement upon but having regard to Exhibit G – G8 which Learned Counsel has urged us to collate; I am of the view that it is not possible to do it. The simple reason is that the ward has 31 units and only results in nine units are contained in Exhibits G – G8. As the appellants could not produce all the result of the 31 units in the wards, it is, difficult to say what would have been the result of the election if the result of the other 22 units is added to the nine units. It seems to me that the Respondents were not obliged to object to an incomplete result.

The outcome of this appeal should be measured on the fact that election results in eight of the 13 wards of Tukur Tukur, Tudun Wada, Kwarbai A, Kwarbai B, Kaura, Limancin Kana, Unguwar Fatima and Unguwar Juna were adjudged by both the Appellants and Respondents as having been free and fair for which the 1st appellant scored 37,954 votes against the 1st Respondents score of 67,745 votes. The Lower Tribunal however added the votes of three wards won by the 1st appellant with 13,001 votes against the 1st Respondents score of 3,313 votes which brought the total to 50,955 votes for the 1st appellant and 71,058 votes for the first Respondent. Having accepted results in 8 wards as having been given in a free and fair atmosphere and having been given votes in three wards he allegedly scored majority of lawful votes and the 1st appellant still could not secure majority of lawful votes, I agree with the lower tribunal that the election was conducted substantially in accordance with the provisions of the Electoral Act 2006.

In sum, I hold that the appellants have failed to show why this court should disturb the outcome of the petition as pronounced upon by the Lower Tribunal. Accordingly, this appeal lacks, merit and is hereby dismissed. I affirm the decision of the Lower Tribunal in petition No EPT/KD/NA/001/2007 which judgment was delivered on 22nd November, 2007.

I award cost of N20, 000 = in favour of the 1st Respondent only.

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Other Citations: (2008)LCN/2891(CA)