Ibrahim Ismaila V. Dayyabu Adamu & Ors (2008)

LawGlobal-Hub Lead Judgment Report

AMINA ADAMU AUGIE, J.C.A.

The Sokoto State House of Assembly elections took place on the 14th of April, 2007, and this is an appeal against the decision of the National Assembly, Governorship and Legislative Houses Election Petition Tribunal (hereinafter referred to as the Tribunal), to affirm the declaration of the 1st Respondent,

who had decamped from the All Nigeria Peoples Party [ANPP] to the PDP, as winner of the said election, representing Illela Constituency of Sokoto State. Dissatisfied with the outcome of the election, the Appellant, who was the candidate of the Democratic Peoples party [DPP] for the same seat, filed a Petition at the Tribunal wherein he prayed that it may be determined –

a. That the 1st Respondent was not qualified to have contested the April 14th House of Assembly Elections for Illela Constituency and the Petitioner be declared as the winner having polled the majority of the lawful vote cast at the said election.

b. That the 1st Respondent was not duly elected or returned for reasons stated above.

c. That it may be determined that the 1st Respondent was not duly elected or returned and a bye election be ordered to be conducted in all the polling stations – affected by the non-compliance with the Electoral Act –

Paragraphs 6 (a) – (k) sets out the Grounds upon which the Petition is based, but we are more concerned with paragraph 6 (c) in this appeal, i.e.

“The 1st Respondent was not qualified to contest the election complained of in that:

(i) His nomination by the PDP was void having regard to the provisions of section 34 (1) of the Electoral Act, 2006.

(ii) He knowingly allowed himself to be nominated and/or sponsored by more than one political party namely: All Nigeria People Party [ANPP] and PDP contrary to the provisions of Section 38 of the Electoral Act, 2006.

(iii) His nomination by the ANPP was never withdrawn and/or cancelled before the election. The Petitioner pleads the PDP Constitution, Membership Card of the 1st Respondent submitted to the 3rd Respondent, INEC Form CF 001 filed by the 1st Respondent to contest under the banner of ANPP and under the umbrella of PDP into the Sokoto State House of Assembly representing Illela Constituency. Notice to produce same is hereby given to the Independent National, Electoral Commission.

(iv) He was not a valid member of the PDP at the time of the election.

The 1st & 8th Respondents filed a Reply to the Petition wherein they raised a preliminary objection, followed with an Application praying for the following –

– An Order dismissing and/or striking out the Petition for being incompetent as same does not disclose a reasonable or any cause of action against the 1st Respondent/Applicant & 8th Respondent.

– An Order declaring the Petition as improperly constituted.

– An Order declaring that the Honourable Tribunal lacks the jurisdiction to hear and determine the Petition.

– An Order declaring that the Petition is not founded on the Electoral Act 2006 or the Constitution of the Federal Republic of Nigeria 1999.

The Grounds upon which the objections are based are as follows –

– The Honourable Tribunal lacks the jurisdiction and ought not to exercise the jurisdiction to hear and determine the complaints raised in paragraph 6 c (i) – (iv) & (d) of the Petition.

– The Petitioner lacks the locus standi to question the 1st Respondent/Applicant’s qualification to contest the said election as same is a domestic affairs of the 8th Respondent and therefore not justiciable.

– The ANPP is a necessary party to the Petition in view of the allegation in paragraph 6 c (ii) (v) d of the Petition but was not joined as a party.

– The Petitioner did not pay the requisite filing fee and security for cost in respect of the Petition contrary to paragraph 45, 1st Schedule to the Electoral Act 2006.

In its Ruling delivered on the 4th of July 2007, the Tribunal held as follows-

“We have carefully compared these ground of objection with those in Petition No. SS/EPT/GOV/1/07 between Dingyadi & 1 or V. – Wamako & 42 ors and we find them to be the same in all material effect. In the light of this, rather than engaging in a time wasting voyage, we consider it reasonable to adopt the reasoning, findings and conclusions reached in the Ruling in the case delivered on 20th June 2007 and apply same to this Ground I and III of Objection in this application. They are matters which the Tribunal has jurisdiction to determine and those which could not be determined now except through the process of full trial. It is therefore unsafe to make pronouncement on them. – – In conclusion all the Grounds of Objection fails and are hereby dismissed with a token cost of N5000.00 in favour of the Petitioner”.

The parties agreed on the following two Issues at the pre-hearing session –

1. Whether the 1st Respondent was not qualified to contest election to the State House of Assembly by virtue of the provision of Section 107 of the 1999 Constitution and Section 34 & 38 of the Electoral Act 2006.
2. Whether the allegation contained in paragraph 6D-J of the Petition even if proved are sufficient to nullify the election to the State House of Assembly conducted for the office of members representing Illeia Constituency.

At the trial, the Petitioner testified and tendered documentary evidence [Exhibits P1, P1A – P1K, P2, P2A, P3 & P4]; the 1st & 8th Respondents called three witnesses and tendered two documents, including the 1st Respondent’s letter of withdrawal from ANPP [Exhibit D2]; the 2nd – 7th Respondents filed a Reply to the Petition but did not call witnesses or tender any documents; and after counsel adopted their written addresses, the Tribunal delivered its Judgment on the 23rd of August 2007 wherein it held as follows on Issue 1 –

“- – (On) the issue whether or not the provisions of Sections 34 & 38 can constitute a ground to challenge an election, our answer is in the negative. These provisions deals on steps to be taken before INEC would confirm the candidature of a candidate. They are pre-election matters. – – We – – answer the first issue in the affirmative. That is – – the 1st Respondent was qualified to contest the election – – by virtue of Section 106 of the 1999 Constitution. Further – – we hold the complaint pursuant to Section 34 & 38 of the Electoral Act are not justiciable before the Election Tribunal being a domestic matter of the party and that the 1st Respondent is a valid member of the PDP. The complaint of the Petitioner – – can be likened to that of a busybody. He would have left such complaint to ANPP or INEC He has no business in that area before the Tribunal. He should learn to mind his business”.

It then dismissed the Petition and affirmed the declaration and return of the 1st Respondent as the duly elected Member into the State House of Assembly.

Dissatisfied, the Appellant appealed to this Court with a Notice of Appeal containing 8 Grounds of Appeal to which there is an objection, they are –

1. The decision of the Tribunal is unreasonable, unwarranted and cannot be supported having regard to the weight of the evidence adduced at the trial.
2. The Tribunal erred in law and misconceived the purport of Exhibit P1C and Exhibit D1 when it held that “Exhibit P1C and D1 are one and the same thing” without giving due regard to the facts, circumstances as well as figures on Exhibit P1C and D1 and this has occasioned a miscarriage of justice.
3. The Tribunal misdirected itself when it refused to place any weight on Exhibit P1c merely on the grounds that the 1st Respondent had sufficiently justified the issuance of Exhibit D1.
4. The Tribunal erred in law when after annulling the results of Araba Ward, it refused to order a bye-election in Araba Ward and this has occasioned a miscarriage of justice.
5. The Tribunal erred in law when it refused and/or neglected to place any reliance on Exhibits P3 and P4 before arriving at its conclusion that Exhibit D1 represented the actual votes by the parties who contested the election in Tozai Ward.
6. The Tribunal erred in law when in trying to resolve Issue No. 1 before it, it revisited the justiciability of Sections 34 and 38 of the Electoral Act 2006 by holding that they relate to pre-election matters not justiciable when it had earlier fully and effectively determined same in the preliminary objection of the 1st & 8th Respondents and dismissed same and this has occasioned a miscarriage of justice.
7. The Tribunal erred in law when it suo motu raised and/or revisited the justiciability of Sections 34 and 38 of the Electoral Act 2006 and used the same reasoning in resolving Issue NO.1 before it without giving parties the opportunity of addressing it on the issue so raised.
8. The Tribunal erred in law when it acted on Exhibit D2 tendered before it without assessing the said Exhibit D2 in relation to the lone witness statement on oath DW1 and evidence elicited during cross-examination for the purposes of determining the weight to attach to Exhibit D2 and this has occasioned a miscarriage of justice.

Briefs of arguments were duly filed and in the Appellant’s brief prepared by Sulaiman Usman, Esq., 4 Issues for Determination were formulated, namely-

1. Whether the Trial Tribunal had jurisdiction to reopen, review and reverse itself on an issue whereof it had previously delivered a decision. (Ground 6)
2. Whether the 1st Respondent validly withdrew his candidature as the candidate of ANPP before being nominated as a candidate of the 8th Respondent. (Ground 3)
3. Whether the qualification of the 1st Respondent to contest an election can only be determined exclusively with reference to Section 106 of the 1999 Constitution and what is the effect of the breach of Sections 34, 36 & 38 of the Electoral Act 2006 on the nomination of the 1st Respondent to contest the 14th April, 2007 election? (Gr. 7)
4. Whether the Appellant was not entitled to be returned as Member representing Illela Constituency in the Sokoto State House of Assembly at the election held on the 14th April, 2007 election. (Grounds 1, 2, 3 & 4 of the Grounds of Appeal)

The 1st & 8th Respondents (hereinafter referred to as the Respondents) adopted the Appellant’s Issues in their brief prepared by Steve U. Nwoke Esq. They however urged this Court to strike out Grounds 5, 7, & 8 of the Appellant’s Grounds of Appeal since no Issues were formulated there-from and no arguments proffered thereon, so they are to be deemed abandoned, and they are right; this Court deals directly with Issues for Determination and not with the Grounds of Appeal formulated there-from, so where no issue is formulated from a Ground of Appeal or where an Appellant fails to canvass arguments in support of an issue, the issue and the related ground of appeal will be treated as abandoned and struck out. In other words, an issue for determination in respect of which arguments are not proffered would be deemed to have been abandoned by the Appellant – see Buhari V. Obasanjo (2005) 13 NWLR (Pt 941) 1, Awuse V. Odili (2005) 16 NWLR (Pt. 952) 416. In this case, the Appellant did not formulate any issues from Grounds 5 & 8 of the Grounds of Appeal, and though he professed to have formulated Issue 4 from Grounds 1, 2 & 4, he did not canvass any arguments in support thereof, thus, Grounds 1, 2, 4, 5 & 8 of the Grounds of Appeal and the Appellant’s Issue 4 are deemed abandoned and are hereby struck out. Now, the Appellant’s grouse in Issue 1 is that the Tribunal had earlier dismissed the objections to the Petition in its Ruling, but “sidetracked and reversed itself in the final judgment”. It was submitted that this volte face amounts to a grievous error because the Tribunal had no power to do that unless it is shown that its decision was arrived at without jurisdiction or was obtained by fraud; that it had become functus officio, and thus did not have jurisdiction to revisit the issue of justiciability of Sections 34, 36 & 38 of the Electoral Act, citing A.I.C ltd. V NNPC (2005) 1 NWLR (Pt 937) 563 Sc. The Respondents however argued that the Appellant’s grouse is borne out of a misapprehension of the Ruling and a misunderstanding of the principle of estoppel as espoused by the Supreme Court in A.I.C Ltd. V NNPC (supra). It was submitted that the Tribunal did not decide the issue in question, rather it referred to its Ruling in Petition NO. SS/EPT/GOV/1/07 wherein it held –

“- – Our careful perusal of the Petition the complaint is whether the 1st Respondent properly withdrew his alleged sponsorship by ANPP before contesting on the platform of PDP. That is to say that at the time of the election whether or not he was sponsored by two political party (sic) i.e. ANPP and PDP. That is our view the determination of that issue vis-a-vis the complaint of the Respondent would be premature and would drag the tribunal into determining the main issue”.

The Respondent therefore wondered how the Appellant can reasonably contend that the Tribunal had decided the issue of competency of the Petition and consequently, the issue of jurisdiction in its Ruling of the 4th of July 2007. I wonder too. True enough, once a Court decides an issue in a particular way, it becomes functus officio in respect of that issue and cannot reach a different decision on the issue in the same case – see A.I.C. Ltd. V. NNPC (supra). In other words, it ceases to be seized of the matter and therefore cannot re-open it for any purpose whatsoever – see Ogboru V. Ibori (2005) 13 NWLR (Pt. 942) 319 & Ukachukwu V. Uba (2005) 18 NWLR (Pt. 956) 1. In this case, the Respondents’ Grounds of Objection included (i) that –

“The Tribunal lacked the jurisdiction and ought not to exercise the jurisdiction to hear and determine the complaints raised in paragraph 6 c (i) – (iv) (d) of the Petition”

In its Ruling of 4th July 2007, the Tribunal stated that since the above ground of objection was similar to the one in Petition No. SS/EPT/GOV/1/07, it would adopt its “reasoning, findings and conclusions reached” in its Ruling delivered on the 20th of June 2007 in that other case, wherein it held that “the determination of that issue vis-a-vis the complaint of the Respondent would be premature and would drag the tribunal into determining the main issue” Obviously, the Appellant’s complaint lacks merit; even though the Tribunal concluded that “all the Grounds of objection fails and are hereby dismissed”, its decision was that “it would be unsafe to make pronouncement on them” as they “could not be determined now except through the process of full trial”. The Tribunal did not reverse itself because there was nothing to reverse; it did not make any pronouncements on the Issue in its Ruling of 4th July 2007. This issue therefore fails. Issue 2 is hinged on Section 36 (1) of the Electoral Act dealing with the withdrawal of candidates in an election, and it provides –

“A candidate may withdraw his candidature by Notice in writing signed by him and delivered by himself to the political party that nominated him for the election and the political party shall convey such withdrawal to the Commission and which shall only be allowed not later than 70 days to the election”.

The Appellant’s contention is that at the time the 1st Respondent was sponsored by the 5th Respondent, he had not with drawn his nomination under the platform of the ANPP. This Court was referred to the Statement on oath of OW3, Ibrahim Ahmed, the Secretary of ANPP, Illeia Local Government, his replies under cross-examination and Exhibit D2 tendered by him in evidence.

Exhibit D2, a letter dated 2nd February 2007 from the 1st Respondent, reads –

“I wish to inform you that I have resigned my membership of the ANPP and have joined the PDP. I by this letter withdraw my candidature for the position of member representing Illela Assembly Constituency on the platform of your party. I thank you for giving me the opportunity to contest on your platform”.

The Appellant argued that when confronted under cross-examination, DW3 said he did not receive Exhibit D2, which shows that the candidature of the 1st Respondent under ANPP was not withdrawn, and Exhibit D2 is therefore a worthless piece of paper with no evidential value. It was submitted that since the 1st Respondent did not withdraw his candidature as required by law, this is “incontrovertible evidence of double nomination contrary to Section 38 of the Electoral Act, 2006”, and that such double nomination renders his nomination void, which means he was not validly qualified to contest the election.

Furthermore, that it is incumbent on the 1st Respondent to establish that –

– he personally wrote the letter;

– he personally delivered the letter to the political party

– his notice of withdrawal was delivered to the 3rd Respondent by his political party

– his letter of withdrawal was witnessed by the Principal Officers of his political Party at the National Level and

– It was delivered to the National headquarters of the 3rd Respondent.

The Appellant’s argument is that in the absence of these essential features, the 1st Respondent did not validly withdraw his candidature under the ANPP, and within the con of Section 40 & 41 of the Electoral Act, a poll can only be taken amongst persons who “remain validly nominated” candidates. However, the Respondents submitted that the Appellant’s contention is strange because it is trite that a Petitioner must succeed on the strength of his case and not on the weakness of the Respondent’s case, citing A.I.C. Ltd. v. NNPC (supra); that the Appellant failed woefully in his duty to prove that the 1st Respondent did not withdraw his candidature before he was nominated by the PDP; and they tendered Exhibit D2 to prove he withdrew from ANPP. They also accused his counsel of distorting evidence and misleading this Court “by concocting evidence to favour his client” in that the statement attributed to DW3 in his brief do not reflect his reply under cross-examination, citing Akomoju V. Mosadolorun (1991) 9 NWLR (Pt. 214) 232 where it was held-

“The ipse dixit of counsel in oral argument or in written brief cannot add to or derogate from a certified record of appeal”.

They referred the Court to the evidence on record and further submitted that the Tribunal found as a fact that the 1st Respondent wrote Exhibit D2 and delivered it to DW3, who confirmed receiving it, following which DW1 was nominated to replace the 1st Respondent, and unless the Appellant can show that the finding was perverse, this Court cannot interfere with it, citing Adegoke V. Adibi (1992) 5 NWLR (Pt. 242) 410, Ebba V. Ogodo (1984) 1 SCNLR 372, & Bunyan V. Akingboye (1999) 7 NWLR (Pt. 609) 31.

There is no need to beat about the bush; the Respondents are clearly right. Apart from the special provisions under the Constitution and the Electoral Act, election Petitions are governed by the rules in civil proceedings, and one of the most elementary rule is contained in Section 135 (1) of the Evidence Act – whoever desires any Court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. In other words, in an election Petition like this one, it is the party that asserts in its pleadings the existence of a particular fact that is required to prove such fact by adducing credible evidence. If the party fails to do so, his case will fail; no doubt about that. In this case, it is the Appellant who asserted that the 1st Respondent did not withdraw his nomination as a candidate of the ANPP before he was nominated as a candidate by the PDP, and clearly it is he who must prove that assertion and not the 1st Respondent. Thus, his submission that under the law, it is incumbent on the 1st Respondent to establish that he personally wrote the letter of withdrawal, and personally delivered the letter to his party, etc., is an attempt to twist the law. The onus is on him to prove his assertion and he must discharge that burden successfully before it can shift to the 1st Respondent to prove the contrary – see Section 137 (1) & (2) of the Evidence Act. In other words, the Appellant must show a prima facie case before the need to consider the case put forward by the Respondents will arise, and I will have to agree with the Respondents that the Appellant failed woefully to make out any case at all. Apart from his bare assertion, there is no evidence whatsoever to back it up, and in pointing fingers at the 1st Respondent and denigrating Exhibit D2, he lost sight of another equally important principle that says he should rely on the strength of his case and not look at the weakness of his opponent’s case.

He must stand or fall with the case presented by him and he is not allowed to pick holes in the evidence adduced by the Respondents to shore up his case. If there is a benchmark in this case, the Appellant has not reached the level where this Court can peer over the edge to consider the Respondents’ case. In other words, the Appellant has not made out a prima facie case that would warrant looking at the merit or weaknesses, if any, in the Respondents’ case. I must also add that the Respondents are right that the statement credited to DW3 in the Appellant’s brief is not what he said, and this does not speak well of counsel. Even if elections are a do or die affair for Politicians, it should not be so for counsel, who is expected to be a Minister in the Temple of Justice. The practice of law, I must say, is a worthy calling and it is expected to be practiced by men of integrity and great honesty. I will not say more that. Suffice it to say that this issue also lacks merit and it therefore fails as well. Without question, the Tribunal was right to conclude as it did, and I so hold. Now, to proceed to consider Issue 3 when Issue 2 is out, will certainly amount to embarking on an academic exercise, and the law is settled that where a question before a Court is entirely academic, an appellate Court would decline to decide the point – see Onochie V. Odogwu (2006) 6 NWLR (Pt 975) 65. The end result of the foregoing is that the appeal lacks merit and is dismissed.

The 1st & 8th Respondents are awarded costs assessed at N30, 000.00.

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Other Citations: (2008)LCN/2836(CA)