Lawal Sani Na’umba & Anor V. Abubakar Ahmed Nahuche & Ors (2008)
LawGlobal-Hub Lead Judgment Report
JOHN INYANG OKORO, J.C.A.
This is an appeal against the judgment: of the Governorship and Legislative Houses Election Petition Tribunal sitting in Gusau. Zamfara State in petition No.EPT/ZMS/GS/HA/24/07 delivered on 23rd August, 2007 wherein the Tribunal dismissed the Petition. The 1st appellant and 1st Respondent were candidates of the Peoples Democratic Party (PDP) and the All Nigeria Peoples Party (ANPP) Respectively at the 28th April, 2007 general elections into the Bungudu west State Constituency of Zamfara State. Other political parties also sponsored candidates who contested the said election. At the end of the election, the Independent National Electoral Commission and its agents i.e 3rd – 5th Respondents, declared the 1st Respondent the, winner of the election by majority of lawful votes. Not being satisfied with the return of the 1st Respondent at the election, the, Appellants filed notice of appeal dated 3rd September, 2007 on the same date which notice contains three grounds of appeal. From the three grounds, the Appellants have distilled three issues for the determination of this appeal.
The issues are as follows:-
“(a) Whether the Tribunal was right in holding that there was no merit in the Appellants’ petition
considering the unchallenged and uncontroverted evidence led by the Appellants. This issue is distilled from ground I in the notice of appeal.
(b) Whether the Tribunal properly evaluated the documentary evidence placed before it i.e Exhibits A – M and N – GG by the Appellants before dismissing the petition of the appellants. This ground (sic) is distilled from ground 2 in the notice of appeal, and
(c) Whether, from the pleadings and the evidence led before the Tribunal, the Tribunal was justified in dismissing the petition of the Appellants.
This issue is distilled from Ground 3 in the notice of Appeal.”
The learned counsel for the, 1st and 2nd Respondent was however of the view that only two issues are necessary for the determination of this appeal. These are:-
“(a) Whether from the state of the pleadings and the entire evidences led before the Lower Tribunal, the appellants did successfully prove the case of irregularities and non – compliance with the provisions, of the Electoral Act 2006 during the conduct of the elections in issue?
(b) Whether the Lower Tribunal did properly evaluate the evidence before it in determining the petition as it did?
The 3rd and 5th respondent through their counsel also submitted two issues for the determination of this appeal. The issues are:-
“1. Whether the Appellant was able to discharge the burden of proof required to establish a case of corrupt practices or acts of non compliance with the provisions of the Electoral Act 2006, before the Tribunal to entitle him to a judgment.”
- Whether the failure of the 3rd – 5th Respondents to join issues with the Appellant in their reply to his Petition before the Tribunal affected the standard of proof required from the Appellant to establish or prove his case.
From these issues submitted before this court, it seems to me that only two issues are relevant for the determination of this appeal and that is, whether the appellants proved the petition before the Lower Tribunal and whether the Tribunal properly evaluated evidence led before it. I think it is very convenient to take the two issues together since they are inter-related as rightly observed by Counsel for the Respondents.
The Learned Counsel for the Appellants submitted that although the 1st and 2nd Respondents joined issues with the appellants in their pleading, they however failed to lead any evidence in support of their averments and that averment not supported by evidence is deemed abandoned. He relies on the cases of Goodnews Abgi Vs. Audu Ogbeh (2006) 26 N.S.C.Q.R. (Pt. 11) page 1257 and Durosaro Vs. Ayorinde (2005) 21 N.S.C.Q.R., 701.
Furthermore, that the 3rd – 5th Respondents did not join issues with the Appellants as their pleading, filed relates to an election in respect of Maradun/Bakura Constituency which has no bearing with the case before the Tribunal. He submitted finally on this issue that the only evidence before the Tribunal was that of the Appellants and that the Tribunal ought to have accepted same and found for the Appellants.
On the second issue, Learned Counsel submitted that the Tribunal failed to evaluate the written statement of the witnesses and the exhibits tendered from the Bar. That, had the Tribunal properly evaluated those exhibits, it would have found the purpose for which those documents were placed before them. Learned Counsel urged this court to evaluate the evidence contained in Exhibits A -M and N – GG placing reliance on the cases of Jiwul Vs. Dimlong (2002) F.W.L.R. (Pt. 114) Page 481 and Otunbari Vs. Iwuala (2000) F.W.L.R. (Pt. 17) page 32.
In his reply, the Learned Counsel for the 1st and 2nd Respondents submitted that for the appellants to have succeeded in proving their claim as contained in the petition, they were expected to lead credible evidence to prove same but they failed to do this. That none of the Appellants witness testimonies before the Lower Tribunal disclosed the number of votes that were cast but allegedly unlawful of which were counted in favour of the 1st Respondent as to mar the results of the elections. That the burden of proving allegation of under -aged voters and stuffing of ballot boxes was upon the appellants but they failed to lead credible evidence in the circumstance.
It was further the contention of Learned Counsel for 1st and 2nd Respondents that it was not sufficient to have dumped sheets of papers and documents on the Lower Tribunal as the Appellants did in Exhibits N – GG without showing their nexus and how these Exhibits established the case they sought to prove. That it is not the duty of the Lower Tribunal to do independent investigation in order to make a case for the Appellants relying on the case of Enemou Vs. Dim (2002) F.W.L.R. (Pt. 126) page 1004.
Furthermore, that the Lower Tribunal painstakingly evaluated the evidence led at the trial as the judgment speaks for itself and that the appellants having made allegations bordering on the commission of crime, they ought to have proved same beyond all reasonable doubt citing the cases of Omoboriowo Vs. Ajasin (1984) 1 S.C.N.J. 108 and Onye v. Kema (1996) 4 N.W.L.R. (Pt.598) 198.
On his part, the Learned’ Counsel for the 3rd – 5th Respondent concedes the fact that they actually and inadverterlly did not join issues with the appellants on their petition before the Lower Tribunal and that the evidence of their one witness – Dw1, goes to no issue. He further submitted that this failure does not however remove the burden of proof of the averments in the petition placed on the petitioners. That the evidence which the Appellants placed before the lower Tribunal did not warrant a consideration of the Respondents case therein relying on the case of Awuse Vs. Odili (2005) All F.W.L.R. (Pt 2261) page 248. It was his further submission that the appellants failed to prove allegations of thuggery, violence and over – voting during the election. He cited the cases of Balami Vs. Bwala (1993) 1 N.W.L.R. (Pt 267) 51, Kalgo v. Kalgo (1999) 6 N.W.L.R. (Pt.608) 639 and Haruna v. Modibo (2004) 16 N.W.L.R. (Pt.900) 487. He then urged the court to hold that the Lower Tribunal was right and justified in invoking the presumption of regularity in favour of the return of the 1st Respondent at the election.
One issue which stands very clear in this appeal is that only the appellants as petitioners called witnesses at the Lower Tribunal. The 1st and 2nd Respondents, did not call any witness at all although they filed a reply to the petition. As for the 3rd -5th respondents, although they filed a reply to the petition, it was in relation to Maradun/Bakura State Constituency which does not have any bearing with the case before the Lower Tribunal. This fact was admitted by the 3rd – 5th Respondents in their brief.
It is the practice and by rule of litigation, parties are bound by their pleadings and pleadings which are not supported by evidence whatsoever, go to no issue. Again where there is no evidence led in support of any pleading, then the pleading is deemed also abandoned. See Remalo Ltd & 3 Ors Vs. N.B.N. Ltd (2003) 16 N.W.L.R. (Pt 846) 235, Olorunfemi Vs. Asho (2000) 2 N.W.L.R. (Pt 643)143, Egbunike Vs. ACB Ltd, (1995) 2 N.W.L.R. (Pt 375) 34;Yashe v. Umar (2003) N.W.L.R. (Pt 838) 465.
It follows therefore that the reply to the petition filed by the 1st and 2nd Respondents, since no evidence was led in support thereof, is deemed to have been abandoned by them. As regards that of the 3rd – 5th Respondents, there was no reply at all as the one filed did not refer to the petition before the Lower Tribunal.
Thus the evidence of DW1 called by the 3rd – 5th Respondents goes to no issue as it was not anchored” on any pleading.
Accordingly, his evidence is of no consequence. The outcome of this is that only the appellants evidence was placed before the Lower Tribunal for the determination of the petition before it.
In view of the state of the pleading and the evidence before the Lower Tribunal, the Court below had a duty to determine whether the appellants had proved their case before it. The law is trite that the consideration of the respondents’ case does not arise until the petitioner has made out a case in the circumstance.
Put it differently, the petitioner is to succeed on ‘the strength” of his own case and not on the weakness of the Respondents’ case unless he finds in the evidence of the defence facts which strengthen his own case. See Akinola v. Olowo (1962) 1 S.C.N.L.R. 352,Woluchem Vs. Gudi (1981) 5 S.C. 291. Awuse Vs. Odili (2005) All F.W.L.R. (Pt 2261) 248.
I need to add here that where, as in the instant case, a party does not testify, the burden of proof placed on the other party is minimal particularly where the Court holds the evidence so adduced to be credible. See Imana Vs. Robinson (1979) 3 – 4 S.C. 1, Ezeanya Vs. Okeke (1995) 4 N.W.L.R. (Pt 288) 142, Oduola Vs. Coker (1981) 5 S.C. 197,Onifade Vs. Oyedemi (1999) 5 N.W.L.R. (Pt 601) 54. Moreso, since election petitions are in the realm of Civil matters, the burden placed on the petitioner is as laid down in sections 135, 136 and 137 of the Evidence Act. It is therefore the duty of the plaintiff or petitioner to adduce evidence in proof of his pleadings. See Odukwe Vs. Ogunbiyi (1998) 6 N.W.L.R. (Pt 561) 399.
The pith and substance of the petition before the Lower Tribunal was that there was distribution of money and motorcycle to voters on the date of the election and as such the election of the 1st Respondent was influenced by these gifts. Yes, if there is evidence that the 1st Respondent or his authorised agents actually distributed money and motorcycles to voters on the day of the election, apart from this conduct being an electoral offence, it will amount to an undue influence on voters and ultimately an undue return of the 1st Respondent. Let me examine the evidence adduced at the trial which the Court below found as follows:-
“Even though attempts were made in paragraph 8, 10 and 13 of the petition to link the 1st Respondent with some improprieties on the day of the election, there is no evidence as to the number of votes attracted or for whom the votes were cast none of the voters was called to say that he was influenced with any gifts to vote for the 1st Respondent and against his or her free will.”
An appellate Court would not substitute its views of the evidence for that of the trial Court which saw and heard the witnesses. It is only where the trial Court failed to properly evaluate the evidence before it as a result of which its decision is perverse that an appellate Court has a duty to embark on evaluation as if it were the trial Court. Such a failure must be clear from the printed record before the appellate Court could embark on such exercise. See Jang v. Dariye (2004) F.W.L.R. (Pt.194) 412, Ebba Vs. Ogodo (2000) F.W.L.R. (Pt 27) 2094, Bunyan Vs. Akingboye (1999) 7 N.W.L.R. (Pt 609) 31.
At this stage I wish to reproduce the evidence of PW1, one of the witnesses of the petitioners/appellants in this case which is Exhibit A. It is as follows:-
STATEMENT OF WITNESS ON OATH
“I Nasiru Sani Bungudu, Male, Muslim, Civil Servant, Nigerian Citizen of Bungudu town do declare and state as follows:
- That the House of Assembly bye election for Bungudu West held on the 28th April, 2007 and I was the PDP supervisory agent for Bingi South Ward at the said election.
- That about 9.30.m I met the ballot box in front of the house of the District head of Kurar Mota and since I knew that place was not a polling unit I remained there to see what would happen. I also ask the presiding officer why they were there, they said they had gone to Landai Daji polling unit and as there were no people they had returned. I said he supposed to wait for people there.
- That I asked the presiding officer to go back and he left for Landai Daji polling unit I gave him a gap about thirty minutes and went to Landai Dai polling unit, but he was not seen there. The INEC Supervisor also went, but did not meet him there.
- That at Kangon Marfa polling unit where I meet one Bala Anka one of the ANPP chieftain distributing money to the electorates at the house of the village head that is close to the polling unit.
- That at the said Kangon Marafa unit I saw new machines dispatched to the unit from Government House Gusau, I protested they said it is not my business and the District head of Kurar Mota order for my beating I had to leave.
- That at Tuungar Doruwa polling unit where I met one Sani Mai Sauri a junior brother to the village head distributing money to the electorates and had also driven the PDP agent from the unit protested, but he said I should leave or else he would order for my being beaten and as there was no security agent I left the place.
- That at Fan Karfe polling unit here I met one ANPP chieftain Alh. Buda distributing money to the electorates at the said polling unit. I asked him to stop and he stopped and left but he, presiding officer and a policeman came and carried me to the road before the closing time for the election.
- That I make this declaration in good faith and to the best of may knowledge.
SIGNED
………………”
DECLARANT
Almost all the evidence of the other witnesses run as the one reproduced above. The question is, what is the relationship between, sharing money in the village heads’ house and the declaration of the 1st Respondent as the winner of the election?
Is the village head a member of the ANPP? Is he an agent of the 1st Respondent? Who provided the money that was shared?
Who brought the motor cycle which was used as a bait for votes? These are questions begging for answer in the petition.
The appellants failed to link the 1st Respondent with these alleged malpractices which are, to my mind still in the realm of allegations. Before the appellants could succeed, it must be shown that the money allegedly shared at the alleged heads house was meant to influence voters and in this regard at least one person should testify as having been so influenced with money. Moreso, it must be shown that it was the 1st Respondent or his accredited agents who shared the money. It is not enough to say that motor cycles were used as bait for votes, the petitioners should have been specific e.g that X or Y brought the motor cycle, OR that X or Y are agents of the 1st Respondent etc. These essential linkages are lacking in this case. The 1st Respondent cannot be held responsible for acts of another which has not been linked to him in any way.
Now, on the issue of exhibits tendered before the Tribunal, let me say here that the mere fact that the Tribunal and Counsel in the matter agreed that documents could be tendered through the bar is not a conclusive evidence of proof of any particular fact unless such facts have been positively proved through the use of the documents or exhibits by the parties in the case. As rightly pointed out by the Learned Counsel for the Respondents, the appellants did nothing short of pilling up and dumping documents on the face of the Lower Tribunal and expected the Court below to have done their case for them. This was the view of this Court which I agree in Enemuo Vs. Dim (2002) F.W.L.R. (Pt 126) 1004 at 1015 – 1016 per Olagunju JCA (as he then was) as follows:-
“The law is that a trial Court has no right to examine a document tendered before it if the material parts of it are not examined in the open Court by oral evidence because to do so is to embark on an investigation which is not the function of the Court.”
See also Doruminiya Vs. COP (1961) N.N.L.R. 70, Borno Holdings Co Ltd Vs. Bogoco (1972) 1 All N.L.R. 324 Onibudo Vs. Akibu (1982) 13 N.S.C.C. 199.
In the instant case, the appellants just dumped document on the Lower Tribunal without showing how the documents affected their case. I hold the view that the Lower Tribunal was right when it held that-
“The petitioners have only dumped some exhibits from the custody of the electoral body on us without articulating any evidence as to what they intend for us to do with the exhibits. It is not within the power of this Tribunal to do any independent examination of the exhibits in order to make a case that the petitioners themselves have not specifically made in evidence”
I cannot agree more. It is my well considered opinion that the Lower Court properly evaluated the evidence before it and that the conclusions they reached are based on the evidence before it.
Furthermore, the allegations made by the witnesses are criminal in nature e.g giving of bribe in order to buy votes.
This is a criminal offence. It is now trite that where a petitioner alleges the commission of a crime as in the instant case, the standard of proof is one beyond reasonable doubt as in criminal proceedings. This, the petitioners failed to do. See Kingibe Vs. Maina (2004) F.W.L.R. (Pt 191) 1555., Omoboriowo Vs. Ajasin (1984) 1 S.C.N.J. 108 and Onye Vs. Kema (1996) 4 N.W.L.R. (Pt 598) 198.
Finally, I am satisfied that the Lower Tribunal properly evaluated the evidence adduced before it and I pitch my tent with their decision that the appellants failed to prove their case as required by law and were not entitled to judgment. This appeal, in my opinion lacks merit and is accordingly dismissed. I affirm the decision of the Governorship and Legislative Houses Election Tribunal Zamfara State in petition No EPT /ZMS/GS/HA/24/07 delivered on 23rd August, 2007.
I award costs assessed at N20,000 = in favour of the 1st Respondent only.
Other Citations: (2008)LCN/2898(CA)
