Hon. Sodiq Mamman Lagos & Anor V. Alh. Nazifi Jibrin & Ors (2008)

LawGlobal-Hub Lead Judgment Report

AMINA ADAMU AUGIE, J.C.A.

The 1st Appellant and 1st Respondent were candidates of the PDP and ANPP at the Kaduna State House of Assembly Election that took place on the 14th day of April, 2007 and aggrieved by the declaration of the 1st Respondent as the duly elected Member representing Doka Gabasawa Constituency, the Appellants filed a Petition at the Kaduna State National Assembly, Governorship and Legislative Houses Election Petition Tribunal (hereinafter referred to as the Tribunal), wherein they prayed for the following orders –

1. A declaration that the 1st Respondent was not qualified and/or was disqualified from contesting the said election and was unlawfully and unconstitutionally declared or returned.
2. That it may be determined that the 1st Respondent was not duly elected and that his election is null and void and be so nullified.
3. A declaration that the election conducted on the 14th day of April, 2007 in respect of (Ungwar Rimi, Kabala, Gabasawa and Ungwar Sarki Wards of Doka Gabasawa Constituency) be set aside for reason of corrupt practices and/or non-compliance with the provisions of this Electoral Act.
4. An Order directing that a fresh election is conducted into the Doka Gabasawa Constituency.

IN THE ALTERNATIVE

5. An Order declaring the petitioner who has scored the majority of lawful votes cast at the said election as the duly elected member of Kaduna State House of Assembly representing Doka Gabasawa Constituency.
6. Any other Order or Orders the Tribunal may deem fit to make pursuant to the Constitution of the Federal Republic of Nigeria 1999 and Electoral Act, 2006.

The Grounds for the Petition are set out in paragraph 11 of the Petition, i.e.

1. Contrary to the provisions of Section 107 (1) (h) of the (1999) Constitution, the 1st Respondent was indicted by the Audit Report on Revenue Collection and Administration of Collected Revenue in Kaduna North Local Government.
2. Contrary to the provisions of Section 107 (1) (f) of the (1999) Constitution, the Electoral Act, 2006, the ANPP Constitution and Guidelines, the 1st Respondent did not resign his appointment as a civil servant with Kaduna Local Government Service Board and posted to Igabi Local Government Council before he contested both the Primary and/or the said 14th April, 2007 election nor was his back-dated letter of resignation received or sent to his employers (Local Government Service Board Kaduna) up till the tine of filing this Petition.
3. The 1st Respondent made a false declaration in his INEC Form of intention to contest the election by misrepresenting that he had never been indicted for fraud/dishonesty by any Panel of Enquiry of Audit Report, contrary to the provisions of Section 107 (1) (i) of the (1999) Constitution and Electoral Act.
4. He did not pay his personal tax at and as when due
5. That the 1st Respondent’s purported election into the Kaduna State House of Assembly on 14th day of April, 2007, was invalid by reason of corrupt practices and/or non-compliance with the provisions of the Electoral Act.

In its Pre-Hearing Report, the Tribunal reported that Grounds 1 & 2 is competent, but Grounds 3 & 4 of the Grounds of the Petition is struck out. At the trial itself, after some documents had been tendered from the bar, and the 1st Appellant had testified and tendered some more documents, the Appellants sought to tender from the bar ballot papers and ballot boxes that had been produced upon a Subpoena Duces Tecum served on INEC. The two sets of Respondents however objected and in its Ruling delivered on the 21st of August 2007, the Tribunal rejected the ballot boxes and ballot papers in evidence and they were then marked as Exhibits G, G1 Rejected. Thereafter, the 1st Appellant was cross-examined and the defence opened with the 1st & 2nd Respondent calling one witness, who tendered documents in evidence, while the 3rd – 9th Respondents opted not to call any witnesses.

Written Addresses were adopted, and in its Judgment delivered on the 24th of October 2005, the Tribunal resolved all the Issues in the Respondents’ favour and held that the Petition lacked merit and dismissed same. Dissatisfied with the decision, the Appellants appealed to this Court with a Notice of Appeal containing five Grounds of Appeal. As required by the Rules of this Court, Briefs of Argument were duly filed and exchanged and in the Appellants’ brief settled by Yunus Ustaz Usman (SAN), it was submitted that four Issues arise for determination in this appeal, as follows-

1. Whether the decision is not a nullity, having regard to the fact that Hon. Justice Okpanachi who was the Chairman of the Tribunal and before whom hearing begun did not take part in preparation of the Judgment.
2. Whether the Honourable Tribunal having ordered INEC to produce the ballot boxes and ballot papers which order was obeyed, the self-same Tribunal was right to have refused to admit the document in evidence on the ground that they did not come from proper custody.
3. Whether the Honourable Tribunal erred in law in holding that the Petitioner must plead two sets of results when the petitioner’ complaint is to the effect that the nullification complained of can be seen on the face of the election results.
4. Whether the Tribunal was right in holding that the 1st Respondent was not indicted.

The 1st & 2nd Respondents submitted in their brief prepared by J. A. Achimugu, Esq., that the same Issues can be couched differently, thus-

1. Whether the fact that Hon. Justice Okpanachi did not participate in the decision of the Hon. Election Tribunal upon the appointment of a new Chairman rendered the decision of the Hon, Tribunal a nullity.
2. Whether upon an order to produce and the production of the ballot boxes and papers, they become automatically admissible in evidence through Counsel from the bar.
3. Whether the Appellants proved the allegations of mutilation and inflation of election results.
4. Whether the Appellants proved the indictment of the 1st Respondent as required under Section 107 (h) of the Constitution of Nigeria 1999.

The 3rd – 9th Respondents pointed out that there was no difference in the Issues formulated, but they opted to adopt 1st & 2nd Respondents’ Issues. Yes, the Issues are couched differently but they address the same complaints in the Grounds of Appeal. For instance, both of the Issues No. 1, relate to the complaint that Okpanachi, J., as Chairman, did not take part in the decision of the Tribunal nor was its Judgment read on his behalf.

The Appellants’ referred the Court to Sections 36 & 285 of the 1999 Constitution and paragraphs 23, 24 (2) & 26 (2) of the 1st Schedule to the Electoral Act, 2006, and argued that the Tribunal ought to have adjourned the Petition until Okapanachi, J., who lost the husband, got back or the Petition should have been heard de novo; and that the Tribunal’s action in going ahead to write and deliver its Judgment in the absence of Okpanachi, J., is not only a violation of paragraph 24 (2) of the 1st Schedule to the Electoral Act but also a violation of their natural and constitutional right to fair hearing, and its decision is therefore a nullity, citing Sokoto State Govt. & 2 ors V. Kamdex Nig. Ltd. (2007) 7 NWLR (Pt. 1034) 466. However, the 1st & 2nd Respondents submitted that Okpanachi, J., lost the husband after they had adopted their final addresses on 3/10/07; that the appointment of Garba, J., who was already a member of the Tribunal as the new Chairman, is constitutional and authorized, citing paragraph 2 (3) of the 6th Schedule to the 1999 Constitution and paragraph 24 (2) of the 1st Schedule to the Electoral Act; that the provisions of paragraph 26 (1) of the First Schedule to the Electoral Act is inapplicable to this case; and that the case of Sokoto State Govt. & 2 ors V. Kamdex Nig. Ltd. (supra) relied on the Appellants is inapplicable and distinguishable from this case, thus –

1. In Kamdex’s Case, the Supreme Court held that the Judgment was a nullity because a new Justice, who did not hear the appeal, participated in its Judgment, but in this one, the decision was rendered by the Chairman and three Members.
2. In Kamdex’s Case, the Presiding Justice who heard the appeal did not participate in its decision, while the Justice who did not hear the appeal, participated in the decision, but in this case, the same panel that heard the Petition decided the Petition without the introduction of a new Judge.
3. In Kamdex’s Case, the Presiding Justice, who did not participate, reduced the number of the Justices to two instead of three in breach of the constitutional quorum, while the non-participation of Okpanachi, J., did not lead to a breach of the Constitution because the new Chairman who was part of the panel that heard the Petition had been appointed Chairman before the decision was rendered.
4. In Kamdex’s Case, the Court was not competent because the Justice who never heard the appeal was disqualified hence the decision was a nullity, whereas in this case, it is all the members who heard the Petition that rendered the decision.

This Court was therefore urged to hold that since the Tribunal’s decision was rendered by the same panel that heard the Petition, it is not a nullity merely because Okpanachi, J., did not participate in it, particularly as no miscarriage of Justice was occasioned by that fact against the Appellants. The 3rd – 9th Respondents aligned themselves with the arguments proffered by 1st & 2nd Respondents. They also submitted that the case of Sokoto State Govt. V. Kamdex Nig. (supra) is inapplicable and distinguishable from the facts of this case, and urged this Court to hold that the Tribunal’s decision was rendered by the same panel and is therefore not a nullity. Without hesitation, I have to say I agree with the two sets of Respondents. The entire proceedings had been concluded before the four other Members of the Tribunal, who participated in hearing the Petition from the first day, delivered the Judgment with Hon. Justice Ali Garba as the new Chairman. The situation in Sokoto State Govt. V. Kamdex Nig. (supra) is definitely a far cry from this one. In that case, Galadima, JCA, who did not participate in the hearing of the appeal, actually delivered a concurring Judgment to the lead Judgment of Aderemi, JCA (as he then was), while the Record did not contain the opinion of Ogebe, JCA (as he then was), who presided at the hearing of the appeal. The Supreme Court held –

“…It is not open for any other Justice who did not take part in hearing an appeal to just appear either in substitution for or in addition to those who heard the appeal to write and deliver a Judgment in the appeal. This will breed in Justice and miscarriage of Justice may … likely occur. This is because a person or authority that did not give you a hearing on a complaint brought before him against you, may not likely determine or decide your case justly and fairly. The principle of fair hearing which is fundamental in judicial process is also breached”.

In this case, the Appellants’ complaint that they were denied a fair hearing is a lot of hot air with no substance. It was the same Members of the Tribunal who heard the Petition that delivered the Judgment, no new Judge was brought in from the outside, the only difference is that one of the Members of the Tribunal had his status changed; he became the Chairman.

In my view, it would be ridiculous to say that his change of status, despite the fact that he participated in the entire proceedings before Okpanachi, J., had to leave, means that the Tribunal’s decision is a nullity. Certainly not; besides it is well accepted that election Petitions are sui generis, they are in a class of their own and time is of the very essence in an election Petition. Thus, it would have been a violation of that very essence, if the Judgment had been kept in abeyance because the Chairman lost the husband, or the Petition be heard de novo by the same Members, who had participated in the proceedings from the very beginning, what sense would that make? The main thing is that the Appellants have not shown in what way they have suffered from Okpanachi, J., not participating in the Judgment; no miscarriage of Justice has been occasioned by it; this Issue therefore fails. The next issue relates to the rejection of the ballot boxes and ballot papers sought to be tendered from the bar by the Appellants. It is their contention that since the ballot boxes and papers had been produced by the maker (INEC), it was wrong of the Tribunal to hold they were not produced from proper custody or by the maker under Section 9 (1) (b) of the Evidence Act, and citing Ogbinyiya V. Okudo (1979) LRN 318, Iyanda V. Laniba (2002) 8 NWLR (Pt 801) 267, Sam V. Ekpelu (2007) 1 NWLR (Pt. 642) 582, Ngige V. Obi (2006) 14 NWLR (Pt 999) 162, Omega Bank (Nig. Plc. V. O.B.C. Ltd. (2005) 8 NWLR (Pt. 928) 547 & Waziri Ibrahim V. Shagari (1983) 14 NSCC 431, it was submitted that since the ballot boxes and papers were produced by the order of the Tribunal, the Tribunal ought to have admitted them, and also calculated the papers as pleaded by them. The 1st & 2nd Respondents distinguished this case from that of Ogbinyiya V. Okuda (supra), Iyanda V. Laniba (supra), Sam V. Ekpelu (supra), Ngige V. Obi (supra) & Omega Bank V. O.B.C. Ltd. (supra), and argued that the Appellants ought to have called a witness to tender the said items. The 3rd – 9th Respondents’ contention is that some people brought in brown envelopes in two bags, and the Appellants’ counsel sought to tender them through the bar, without giving the Tribunal an opportunity to ascertain that they were produced by the person on whom the subpoena was served. They aligned themselves with the submissions of the 1st & 2nd Respondents, adding that the Appellants should have brought a competent witness to identify and tender the said items or in the absence of such a witness, to allow the adverse party subpoenaed to produce the document, to testify. Now, the word “subpoena” is Latin for “under a penalty”. It is also a “writ commanding a person to appear before a Court or other Tribunal, subject to a penalty for failing to comply” – see Black’s Law Dictionary, 7th Ed. There are two varieties in use, subpoena ad testificandum used to compel a witness to attend and give evidence, and – subpoena duces tecum used to order a witness to appear and to bring specified documents or records. The subpoena could also order a person to produce documents and also testify, depending on the choice of Form used. In this case, INEC was served with a Subpoena Duces Tecum commanding it to produce-

“All the ballot boxes and ballot papers for the House of Assembly Election papers cast in Ungwan Rimi, Gabasawa, Ungwan Sarki and Kabala Wards”, inter alia

On the 14th August 2007, learned senior counsel for the Appellants applied to tender ballot boxes and ballot papers from the bar, he stated as follows-

“The person INEC subpoenaed by the Court has produced the ballot boxes. I humbly seek to tender the ballot papers produced by INEC in evidence. They have been duly pleaded in paragraphs 10 page 4 of the Petition. See also page 6, 7, 8, 9 & 10 of the Petition. INEC who produced them said that they have been certified in their Form TF 008. I therefore seek to tender them.

Learned counsel for the 1st & 2nd Respondents objected on the grounds that the ballot boxes and ballot papers were not pleaded; that they cannot be received in evidence without special leave, that they are not relevant; and that the Appellants merely expressed an opinion in their Petition that the votes ought to be counted and not that they said it should be counted.

In opposing the application, counsel for the 3rd – 9th Respondents said –

“We are opposing the tendering of these ballot boxes from the bar. We are relying on Section 192 & 193 of the Evidence Act. We submit that the tendering of the documents from the bar simply means not conforming to the Order of Subpoena which is to produce. We submit that the documents should have been tendered through an INEC official because they have the proper custody of the ballot papers tendered from the bar… We urge that the documents be refused”.

In its Ruling delivered on the 21st of August 2007, the Tribunal held that –

“…The ballot boxes and ballot papers were pleaded, but then can a Court make a consequential order on a document or an exhibit that has not been admitted? … the bone of contention was whether the ballot boxes and ballot papers could be tendered from the bar through counsel. The Subpoena no doubt was based on the production of ballot boxes and ballot papers. However, what were produced were two jumbo transparent bags with packages of brown envelopes. Is it then logical to assume that this is automatically synonymous with ballot boxes and ballot papers? We are of the view that there must be a maker for these jumbo transparent bags and the packages of brown envelopes … In the instant case under consideration where the ballot boxes and ballot papers have metamorphosed into something else by a maker, the law as regards admissibility through proper custody will definitely be stricter. Before us there is no evidence to excuse the makers of these two transparent bags with packaged brown envelopes as content from coming to testify and tender the exhibits. We are therefore of the view that the excuse of its being risky for INEC to tender these exhibits as proffered by learned senior counsel … is not tenable. It is for these reasons that the Application to tender them through the learned senior counsel is refused. They are therefore rejected and are marked as Exhibit G, G1 Rejected’.

Apparently, not convinced that the “two jumbo transparent bags with packages of brown papers” are the ballot boxes and papers that INEC was subpoenaed to produce, the Tribunal decided that they must come from proper custody, and the makers should come to testify and tender them. But, and it is a big BUT, the Tribunal introduced a new dimension that was not canvassed by the two sets of Respondents, including INEC, who is the 9th Respondent in this case, and whose counsel relied on Sections 192 & 193 of the Evidence Act and submitted to the Tribunal that “the documents should have been tendered through an INEC official because they have proper custody of the ballot papers tendered from the bar”. Nowhere in the entire record, did INEC or any other Respondents for that matter, allege that the “two jumbo transparent bags with packages of brown papers” are not the ballot boxes and papers that INEC was subpoenaed to produce.

The Appellants’ counsel informed the Tribunal that INEC had produced the items that it was subpoenaed to produce before he applied to tender them. In other words, there was no issue and therefore no call on the Tribunal to determine whether the items produced were the ballot boxes and papers. The bone of contention was whether they should be tendered from the bar, and the Tribunal held that the “makers” ought to have been called by the Appellants to tender the ballot boxes and papers from the witness box. Section 192 of the Evidence Act relied on by counsel, provides as follows-

“Any person, whether a party or not, in a cause may be summoned to produce a document without being summoned to give evidence, and if he cause such document to be produced in Court, the Court may dispense with his personal attendance”

Section 193 of the same Act, further provides as follows –

“A person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness”.

The gist of the Respondents’ contention on this Issue is that the application to tender the ballot boxes and ballot papers from the bar is a way to evade cross-examination. As the 1st & 2nd Respondents put it in their brief –

“Had the …ballot boxes and papers been admitted in evidence from the bar through counsel, the effect will be to limit the Respondents’ right to fair hearing by taking away their right to cross-examination in respect of the ballot boxes and papers because there would be no one to cross-examine on same. This was the clear intention of the Appellants which should be seriously deprecated”.

A total fallacy; as I stated earlier, a subpoena duces tecum is essentially a Court Order requiring someone to appear as a witness and bring with him documents relevant to the case and where a party brings a witness to Court on a subpoena duces tecum, merely to produce documents, as in this case he need not be sworn and he cannot also be cross-examined. Thus, even if an INEC official had gone into the witness box to tender the ballot boxes and ballot papers, he would tender them and not be cross-examined. It is only where he is issued a subpoena ad testificandum ordering him to appear and give evidence that he would be open to cross-examination.

In other words, the question of tendering the ballot boxes and papers through a competent witness, who would be cross-examined thereafter was a distraction that only succeeded in throwing the Tribunal off on a tangent. The Appellants may have applied for a subpoena duces tecum to be issued and served on INEC, but at the end of day, it was the Tribunal itself that commanded INEC to produce the ballot boxes and papers in evidence. Thus, when it produced the ballot boxes and papers as ordered, it was obeying the command of the Tribunal, not acting on the Appellants’ orders. Courts are enjoined not to make orders in vain, and that is what the Tribunal appeared to have lost sight of, INEC produced the ballot boxes and papers on its request, and it should have admitted them in evidence. Admissibility and weight to be attached to any evidence are two totally different concepts, and in this case, the interest of Justice would have been better served if the ballot boxes and papers had been admitted in evidence. At the end of trial, and when considering its decision, it would have had ample opportunity and unfettered right to determine whether the items admitted were actually ballot boxes and papers and whether they were relevant to the Petition or not. As it is, there is no question that its decision to reject the ballot boxes and ballot papers occasioned a miscarriage of Justice against the Appellants, and this is enough to vitiate its Judgment. The end result is that the appeal therefore succeeds and it is hereby allowed. The Petition is sent back for trial de novo before another Tribunal.

There will be no order as to costs.

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Other Citations: (2008)LCN/2897(CA)