Joseph Nanven Garba V. Silas Janfa & Ors. (1999)
LawGlobal-Hub Lead Judgment Report
EDOZIE, J.C.A.
The Appellant Joseph Nanven Garba and the 1st Respondent Silas Janfa were respectively candidates for All Peoples Party (APP) and Peoples Democratic Party (PDP) in the election for the Senator representing Plateau South Senatorial District in the National Assembly which election was conducted on 20th day of February, 1999 by the 2nd to 72nd Respondents. The results of the election showed that the 1st Respondent polled 92,970 votes, the Appellant polled 74,971 votes while the Alliance for Democracy (AD) which fielded no candidate had 1,052 votes recorded in its favour. The 1st Respondent having won majority of the votes cast in the said election was duly returned as elected by the Independent National Electoral Commission (INEC) the 4th Respondent.
Aggrieved by the turn of events, the Appellant as Petitioner filed before the National Assembly Election Tribunal sitting in Jos, a petition challenging the result of the election on three grounds which as set out in paragraph 5 of the petition read as follows:
“(5) And your petitioner states that the 1st Respondent was not validly returned as the person elected because:
(1) The election was voided by corrupt practices and offences and there was substantial non-compliance with the provisions of the electoral Decree guiding the election.
(2) And your petitioner states that the 1st Respondent was not qualified to or was disqualified from contesting the election for the Plateau South Senatorial District not having been registered to vote or as a voter in the said Plateau South Senatorial District or constituency which he wants to represent.
(8) The 1st Respondent was not duly elected by a majority of valid votes cast at the election,”
After pleading elaborately the facts upon which the petitioner relies, he sought in paragraph 7 of the petition, the following reliefs:
“Wherefore your petitioner prays that it be determined that by a majority of lawful votes cast at the election for the Senator to represent Plateau South Senatorial District and (sic) his election be cancelled while your petitioner be declared duly elected by a majority of lawful votes at the said election and he be duly returned.
In the alternative your petitioner prays that it be determined that there were electoral malpractices that fundamentally affected the results of the said election in Quan – Pan, Wase and Shendam Local Government Areas of Plateau South Senatorial District and the said elections be cancelled and the 2nd, 3rd and 4th Respondents be ordered to conduct fresh elections in those Local Government Areas.”
In opposition to the petition, the 1st Respondent on the one hand and the 2nd to 72nd Respondents on the other filed their replies in answer to the petition.
In the course of the trial that ensued during which several relevant documents were tendered and admitted in evidence by consent, the Appellant testified as PW 1 after which he called two other witncsses”PW2 and PW3. Thereafter the 1st Respondent elected not to give oral evidence but relied on his voters card Exhibit 40. The 2nd to 2nd Respondents called two witnesses D.W.1 and D.W.2 to testify on their behalf. After final addresses of counsel for all the parties, the five – member Tribunal in a unanimous decision delivered on 21st April dismissed the petition. It is against that decision that the Appellant by a Notice of Appeal dated 27th April, 1999 filed the same day his lodged the instant appeal based on four grounds of appeal which without their particulars read as follows:
“(1) The decision is against the weight of evidence.
(2) The Tribunal erred in law when it held that.
“Learned counsel for the Petitioner has attempted to make a mountain out of a mole hill by canvassing the obvious spelling error appearing on Exhibit 40. We are satisfied with the explanation given by D.W.1 that the addition of the letter “G” to the surname of the 1st Respondent is a spelling error… ”
(3) The Tribunal erred when it found that the 1st Respondent was a registered voter when his name could not be found on the voters register for Zanzat Ward and Exhibit 40 did not bear his name.
(4) The Tribunal erred when it dismissed the petition when on the preponderance of evidence the petitioner has proved his case. The Appellant’s brief of argument has identified the following two issues for determination –
(1) Whether the discrepancy or difference in the names JANGFA and JANFA which is accepted exists has been explained by the 1st Respondent.
(2) Whether the 1st Respondent on record Silas Janfa is a registered voter’?
In the 1st Respondent’s brief, only one solitary issue is raised thus-
“Whether having regard to the entire circumstances of this appeal the 1st Respondent is the person registered and issued with the voters card Exhibit 40 inspite of the error in spelling his name therein and thereby qualifying him to contest the Senatorial elections in question in this appeal”
The 2nd – 72nd Respondent’s brief identified the issue for determination as follows:-
“Whether the failure of the 1st Respondent to testify and explain the difference between ‘Silas Janfa’ on Exhibits 108 and 109 and “Silas Janfa” on Exhibit 40. 110 and 111 must necessarily lead to the conclusion that the 1st Respondent was not registered to vote having regard to the evidence before the Tribunal.”
The pivot of this appeal is Section 14(1)(j) of the National Assembly (Basic Constitutional and Transitional Provisions) Decree 1999 No.5 of 1999. It ordains:-
44(1) A person shall not be qualified as a candidate to contest the National Assembly Election unless –
(i) he is registered as a voter in the Constituency in which he intends to contest the election or is an indigene registered anywhere in Nigeria’”
Apparently in reliance on this provision, the Appellant in paragraph 5(2) of his petition already Set out above pleaded that the 1st Respondent was not qualified or was disqualified from contesting the election by reason of his non-registration in the Senatorial District or Constituency in question. In answer to the averment, the 1st Respondent in paragraph 5 of his Reply to the petition denied the allegation and averred that he was validly registered to vote in Nigeria having been registered to vote and did so in all the four elections held nationwide in Nigeria from 1998 to 1999. He relied on and pleaded his voters registration card issued to him by the 4th Respondent (Independent National Electoral Commission). As a reinforcement of this averment, the 2nd – 72nd Respondents in paragraph 2(ii) of their joint reply to the petition pleaded that the 1st Respondent was registered as a voter in Zanzat Polling Unit in Kuffen Ward of Langtang North Local Government within Plateau South Senatorial District and pleaded the relevant voter’s register.
Exhibits tendered in the course of trial showed that Exhibit 40 (Voters Card). Exhibit 111 (counter-foil of the voter’s card) and Exhibit 110 (voter’s register) all hear the name of SILAS JANGFA as the person duly registered while Exhibits 108 and 109 revealed that the person cleared and who contested the election on the platform of PDP was “SILAS JANFA”. It would be seen that while the first names in the two sets of Exhibits synchronize, the surnames slightly differ in that while the first set of Exhibits has ‘G’ in the surname between the letters N and F in the second set of Exhibits the letter ‘G’ is absent. The Appellant has therefore tried to capitalize on this minor discrepancy and as it were attempted to make mountain out of a mole hill by contending that the 1st Respondent who contested the election with the Appellant was not the person who was registered as “SILAS JANGFA”. The issue raised in this appeal is therefore, whether the person who was registered as “SILAS JANGFA” is one and the same person as the 1st Respondent who contested the election sub-nom “SILAS JANFA”? This was indeed the dominant question before the lower Tribunal.
In his effort to prove his case, the Appellant (PW1) and PW2 and PW3 testified. PW2 and PW3 are agents for political associates that later metamorphosized as A.P.P. and P.D.P. respectively. They monitored the registration exercise that took place between 5/10/98 and 19/10/98 at Zanzat. The sum total of the evidence of PW2 and PW3 was that they did not see the 1st Respondent at the scene of registration at the relevant time.
Against that evidence, D.W.1 testifying for the 2nd to 72nd Respondents stated at pp 75. 76 of the record inter alia. thus: “D.W.1., my name is Faniyer Nanzing Nathaniel. I live at Fajat in Langtang North Local Government. I am a teacher by profession. From 5/10/99 to 19/10/99 registration exercise for voters look place. I participated as a Registration Officer. I was a Registration Officer in Zanzat registration unit. My duty at that time was to register anybody who come for registration. I know the 1st Respondent Mr. Silas Janfa. He is a reknown (sic) person in Langtang North and Plateau State. The first Respondent came for registration during that period. I asked him the necessary question and later gave him a registration card. We used to keep registration sheet showing those people that registered at a particular time. If I see the registration card, I issued to the 1st Respondent I can identify it. This is the card I gave to the 1st Respondent and my initials are on the card. I can identify the voter’s register through my own hand writing. This is the register of voters. The name of the 1st Respondent appeared on the Register of voters Exhibits 110 as No. 355. If I see the counter-foil of the Registration Card of the 1st Respondent, I can identify it through my hand writing … This Exhibit I is the counter foil of the voter’s card issued to the 1st Respondent, page 2 to 355 appears on the counter foil.”
In answer to question under cross-examination by counsel to the 1st Respondent, the witness continued –
“I have heard the name of P.W.2 before. I also know and heard of the name of P.W.1 before. The following people were at the registration centre but they were not frequent. At times they would come and at times they would not. They used to take out 2 days to come at times. I was there on permanent duty basis. It was false to say that the 1st Respondent did not register in my unit or to say that P.W.2 and P.W.1 were constantly at the Registration centre.”
After a meticulous evaluation of the evidence before it, the Tribunal in its finding in p.106 of the record held:
“We are therefore of the view that the 1st Respondent was registered as a voter at the time of the election and we so held. And (sic) point made by counsel to the petitioner is that the 1st Respondent who should have clarified the spelling error in his name did not testify in this Tribunal. The Tribunal we hasten to say does not consider that argument material in view of evidence of D.W.1 who confirmed the identity of the person he registered.”
From the above extract, it is plain that the Tribunal found as of fact that the 1st Respondent was registered as a voter, that is, that he was the person who was registered as “SILAS JANGFA”, It is settled law that the ascription of probative value to the evidence of witnesses is pre-eminently that of the trial court.
An appellate court will not lightly interfere with the findings made by a trial court or Tribunal as it is not the business of the Appeal Court to substitute its own view of the facts for those of the Judge or Tribunal who saw and heard the witnesses. See Ayua v. Adasu (1992) 3 NWLR (Pt. 231) 598 at 609. In appropriate cases, however, as when the finding is perverse an appellate court can interfere. Woluchem v. Gudi (1981) 5 S.C. 291 at 326; Chinwendu v. Mbamali (1980) 3-4 S.C. 31; Igwego v. Ezeugo (1992) 6 NWLR (Pt.249) 561 at 585. A finding is said to be perverse when it is not only against the weight of evidence but is altogether against the evidence; NEPA v. Alli (1992) 8 NWLR (Pt.259) 279 at 303. I see no reason for disturbing the finding of the Tribunal.
The Appellant had in paragraph 2 of his petition conceded that the 1st Respondent was the candidate for the PDP in the election in question. At p. 69 of the record of appeal, he testified as follows:
“I was accredited in that election for the Senate seat of Plateau South Constituency on the Platform of APP, The 1st Respondent was also accredited on the Platform of PDP:
As mathematicians say, things which are equal to one thing are equal to one another. If, as found by the Tribunal the person who registered as “SILAS JANGFA” is the 1st Respondent and by the Appellant’s own showing the person “SILAS JANFA” with whom he contested election is the 1st Respondent, it follows logically that the person “SILAS JANFA” is one and the same person as the person “SILAS JANFA. This being the case, the contention that the 1st Respondent was not registered is untenable.
Learned counsel for the Appellant in his brief of argument made a heavy weather of the fact that the 1st Respondent did not testify to explain that his surname was misspell as “JANGFA” and that it was fatal to his case. I do not share that view. Failure of a defendant to prove or even his refusal to testify cannot alleviate the primary burden on the plaintiff to prove his case: See Umeojiako v. Ezenamuo (1990) 1 N.W.L.R. (Pt. 126) 253 at 267. This is in accord with the principle of law restated in Okoronkwo v. Chukweke (1991) 1 NWLR (Pt. 216) 175 at 192 where the Court held:
“It is a recognised practice and procedure at law for a party to call witnesses to give evidence in support of his case even where he himself did not give any evidence for there is no law or rule of court which requires a party to a civil suit to personally give evidence in support of his case. On the contrary, parties need not appear if they are properly represented or give evidence at the trial so long as the available evidence is sufficient to prove or sustain their case.
The Tribunal, decided, rightly in my view that having regard to the credible evidence given by D.W.1 identifying the 1st Respondent as the person he registered to whom the voter’s card Exhibit 40 belongs, the evidence of the 1st Respondent was unnecessary. There is merit in that finding.
It was further submitted on behalf of the Appellant that there was no evidence whatsoever on record that the surname of the Appellant was mis-spelt as “JANGFA” and that it was erroneous for the Tribunal to have relied on counsel’s address where the matter was raised to have confirmed the error when there was no pleading to that effect. It was contended that the mere mention of a matter in the course of counsel’s address is never a substitute for the evidence that has not been led. The cases of Yore v. Olubode (1974) 10 S.C. 209 at 215; Osuigwe v. Nwihim (1995) 3 N.W.L.R. (Pt. .186) 752 were alluded to. My view in respect of this submission is that a Court of trial is entitled to draw a reasonable inference from established facts. The Tribunal having found that the 1st Respondent whose surname is “Janfa” was the person registered as “Jangfa”, was entitled to draw the inference that one of the spellings is wrong or that both are correct for instances are galore where a word or a name can be spelt in divers ways. But, of paramount importance is the identity or the person who was registered and contested the election. Once that is ascertained the issue of correct spelling pales into insignificance.
Lastly, learned counsel adopted an etymological approach when he sought to explain that there is a difference in meaning between “Jangfa” and “Janfa” in Tarok Language. In this connection, reference was made to the book “Keeping Tarok Language Alive” by Adamu Labut Mainfe and the Tarok Dictionary by Langtan and Blench. My short answer to this is that issues had not been joined in the pleadings on the matter. It constitutes a fresh issue which can only be raised with the leave of this court under special circumstances. See Ikawa v. Dandy (1993) 8 N.W.L.R. (Pt.310) 246 at 254; Gambo v. Turdam (1993) 6 N.W.L.R. (Pt. 300) 500 at 507. More importantly, the authors of the books mentioned were not called to testify before the Tribunal to explain the sources of their knowledge nor the books shown to he the works of standard authors or authoritative on Tarok Language. In the case of Idundun v. Okumagba (1976) 1 N.M.L.R 200 at 210, the Supreme Court while considering the weight attached to books cited in the case commented that no evidence was adduced to show that any of the books is generally acknowledged either in Nigeria or elsewhere as a standard work so as to enable the court to resort, with justification to their aid. Moreover, none of the authors of the books testified in support of the views stated therein and no explanation was given for the omission. It was therefore held that the books were of doubtful evidential value. I share the apprehension with respect to the books referred to in the instant case by learned counsel to the Appellant.
For all the various reasons given above I hold that all the issues formulated by the parties are resolved against the appellant and conclude that the appeal lacks merit and is accordingly dismissed with N3.000.00 costs to the 1st Respondent and N2.000.00 jointly to the 2nd – 72nd Respondents.
Other Citations: (1999)LCN/0554(CA)
