Home » Nigerian Cases » Supreme Court » Markus Natina Gundiri & Anor Vs Rear Admiral Murtala H. Nyako & Ors (2012) LLJR-SC

Markus Natina Gundiri & Anor Vs Rear Admiral Murtala H. Nyako & Ors (2012) LLJR-SC

Markus Natina Gundiri & Anor Vs Rear Admiral Murtala H. Nyako & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Yola, Adamawa State delivered on 22nd September, 2012 by which the court dismissed the appeal of the appellants against the judgment of the Governorship Election Petition Tribunal Yola, delivered on 25th day of July, 2012 which dismissed their petition. The judgment of the Court of Appeal is contained at pages 3882 to 3918 of vol. VIII of the records of appeal while the Notice of Appeal against the judgment is contained at pages 3941 to 3949. Apart from the appeal of the appellant herein against the said judgment of the Governorship Election Tribunal, Yola to the lower court, there was also another appeal No. CA/YL/EPT/GOV/7/2012 against the same judgment filed by the 7th Respondent herein. The lower court consolidated the two appeals for hearing on the application of the appellants counsel. The judgment of the lower court in respect of this second appeal is contained at pages 3918 to 3934. The Brief facts leading to this appeal is that on the 4th day of February 2012, the 4th respondent conducted in Adamawa State, an election to the office of Governor of Adamawa State. The 1st and 2nd appellants were the Governorship and Deputy Governorship candidates respectively of the 7th Respondent while the 1st and 2nd respondents were the Governorship and Deputy Governorship candidates respectively of the 3rd respondent at the election. At the end of the election, the 4th, 5th and 6th respondents declared the 1st respondent winner, having credited him with 302,953 votes against 241,023 votes credited to the 1st appellant. Dissatisfied with the return of the 1st respondent as winner of the election, the appellants and their political party, the 7th respondent filed a petition at the Governorship Election Petition Tribunal, Yola. The complaints of the appellants in the petition were limited to particular units and wards in 11 local governments out of the 21 local governments in Adamawa State. The eleven local governments are Mayo Belwa, Fufore, Yola South. Yola North, Demsa, Madagali, Toungo, Numan, Girei. Mubi North and Maiha.

On the perusal of the totality of the petition, it could be gathered that the grounds predicating the complaints of the appellants against the election in their opinion bordered on substantial non-compliance with the Electoral Act, 2011, irregularities as well as criminal allegations.

On the one hand and in proof of the petition, the petitioners front loaded 76 witnesses out of whom 66 were called to testify. On the other hand, the 1st and 2nd respondents front loaded 73 witnesses but called only 8 out of the lot. The 3rd respondent who had given notice of its intention to call 73 witnesses ended up calling only 1 while the 4th – 6th respondents called no witnesses out of the 200 witnesses in respect of which they got leave of the Tribunal to call. At the end of the trial, the tribunal by its considered judgment delivered on the 25th day of July, 2012 dismissed the petition and hence an appeal to the Court of Appeal which per its judgment delivered on the 2nd September, 2012 also dismissed the appeal. The notice of appeal before us, being a product of the lower court judgment, was filed on the 3rd October, 2012 and containing nine grounds of appeal with their particulars. In accordance with the practice in this court, parties filed and exchanged their respective briefs of arguments. The appellant’s brief was filed on the 18th October, 2012 and was settled by Akin Olujinmi, SAN, and upon being served with the various Respondents briefs the appellants filed two sets of reply briefs in response thereof.

In otherwords, while a joint reply brief was filed in respect of 1st, 2nd, 4th, 5th and 6th respondents brief, another was filed in respect of that of the 3rd respondent. The respective briefs were all relied upon and adopted at the hearing of the appeal with some amplifications by counsel by means of adumbration. In the brief of the appellants nine issues were formulated from the nine grounds of appeal. Seven issues were raised on behalf of the 1st and 2nd respondents and also same by the 3rd respondent. The 4th, 5th and 6th respondents joint brief of argument in the same vein like the other respondents formulated seven issues for consideration. For the determination of this appeal I will deem it appropriate to adopt the issues formulated by the 1st and 2nd respondents as it will serve sufficient and all inclusive of those raised by the appellants and the other respondents. The reproduction of the seven issues are as follows:-

“1. Whether their Lordships of the court below were right in upholding the decision of the Tribunal in refusing to give credence to the evidence of PW1 – PW 65 on the ground that the evidence of those witnesses constituted hearsay evidence in that the witnesses failed to distinguish between what they saw themselves and what they were told by their polling agents quite apart from the fact that some of the depositions made in Hausa language were translated into English language by unidentified persons who failed to sign the jurat to show that the makers of the depositions knew the contents thereof. (ARISING FROM GROUND 1 OF THE GROUND OF APPEAL).

Whether their Lordships of the court below were right in upholding the decision of the Tribunal that there was no duty on the Respondents to call evidence in rebuttal of what had not been established by the Appellants since the non-compliance alleged was not proved and that the petition was predicated largely on criminal allegations which were not established beyond reasonable doubt apart from the fact that both civil and criminal allegations were so intertwined in the pleadings as to make the doctrine of severance inapplicable. (ARISING FROM GROUNDS 2, 3, AND 4 OF THE GROUNDS OF APPEAL).
Whether their Lordships of the court below were right when they upheld the decision of the Tribunal rejecting the evidence of PW 66 and his report Exhibit 759 on the ground, amongst others, that he was not an expert, had not witnessed the election and had no expert knowledge or any knowledge superior to that of the judges of the Tribunal and that his evidence consumed inadmissible opinion evidence. (ARISING FROM GROUND 7 OF THE GROUNDS OF APPEAL).
Whether their lordships of the court below were right when they ruled that appeals are founded on the ratio decidendi of the judgment and that the complaint that the learned judges of the Tribunal preferred the issues formulated by the 3rd Respondent to those formulated by the Appellant did not arise from any of the decidendi of the judgment of the tribunal and therefore upheld the decision of the tribunal to determine the petition on the basis of issues formulated by the 3rd Respondent as opposed to those formulated by the Appellant. (ARISING FROM GROUND 5 OF THE GROUNDS OF APPEAL).
Whether their Lordships of the court below were right when they upheld the decision of the Tribunal to the effect that forms EC8AS, EC8BS, EC8CS, EC8Ds and voters registers and other electoral documents tendered from the bar by counsel to the Appellants had no evidential value on the ground that they were dumped on the Tribunal not having been tied or related to the Appellant’s case through witnesses. (ARISING FROM GROUND 8 OF THE GROUNDS OF APPEAL).
Whether the learned justice of the court below erred in law when the dismissed the appeal on the ground that it was completely lacking in merit. (ARISING FROM GROUND 9 OF THE GROUNDS OF APPEAL).
Whether the learned justices of the court below upheld without justification or due consideration the decision of the Tribunal refusing to give probative value to the evidence of PW1 – PW 65 or whether they did so after and due consideration.(ARISING FROM GROUND 6 OF THE GROUNDS OF APPEAL).”

Issues 1 and 7 taken together. The learned appellants counsel by raising these issues is questioning the failure by the lower court in giving consideration to the erroneous refusal of the trial tribunal in giving evidential value to the appellants 22 witnesses. The grouse of the appellants therefore relates to the failure of the tribunal to give evidential value to the evidence of 22 of the appellants witnesses on the ground that the illiterate jurat contained in the witness statement of the witnesses were not signed by the interpreter. The counsel therefore alleged serious error on the part of the lower court in failing to intervene therein. That it is not shown on the record that the lower court did consider the case made out by the appellants against the judgment of the trial tribunal. That the lower court just simply agreed with the tribunal without more and dismissed the issue. That the law is trite that a duty lies on a court to consider all the issues that have been joined by parties. Reference in support was made to the case of Paul Edem Vs. Cannon Balls Ltd & Anor. (2005) 12 NWLR 27 AT 54 – 56. That an illiterate protection law even if it applies is for the protection of an illiterate person who seeks to disown a document which had not complied with the law. That none of the 22 witnesses in question disowned his witness statement. The following authorities are again cited in buttress of the submission:- Edokpolo & Co. Ltd V. Ohenhen (1994) 7 NWLR (Pt. 358) p. 511; Wilson V. Oshin (2000) 6 SC Pt 111 page 1 and Udeagha V. Omegara (2010) 1 NWLR Pt 129 p. 168. The learned counsel listed all the affected witnesses and related in particular to the witnesses P. W 2 and P.W 3. whom counsel argued gave cogent and compelling evidence of irregularities and substantial non-compliance in Mayo Belwa Local Government Area. He also laid emphasis on the evidence of P.W. 10. P.W. 13, PAY. 15. P.W. 17 and P.W. 18 which were in relation to the corrupt practices perpetrated at various units of Yola South Local Government Area. That their evidence which was unshaken and uncontroverted by the Respondents, go to confirm the allegations of non- accreditation, arbitrary allocation of votes, thuggery, inducement of voters, multiple voting and the fact that no election took place in some of the units of the Local Governments. The learned counsel also emphasized that even the 1st and 2nd respondents witnesses R.W. 1 and R.W. 3 under cross examination did confirm the non-compliance and irregularities alleged by the appellants. In otherwords, that persons of the same name, identity, sex and age voted 8 different times in Biti ward of fufore LGA.

That the miscarriage of justice occasioned by the lower court in upholding the decision of the tribunal had put the appellants at a great disadvantage. That had the evidence of the witnesses been accorded their appropriate unimpeached evidential weight, the case of the appellants would have been different. That this court is therefore called upon to uphold the said issues raised in favour of the appellants. In response to the said issues, the learned 1st and 2nd respondents counsel submitted at great extent on the hearsay nature of the evidence of the appellants witnesses P.W1 – P.W 65. The counsel argued and reiterated the evidence by the witnesses wherein they confirmed that their testimonies were based on what they were told by the polling agents appointed by the appellants and also what they witnessed themselves. That they were neither specific as to what they were told by the agents nor were they specific as to what they personally witnessed. In other words, that they did not distinguish between what they were told as against what they saw themselves. That the absence of the polling agents to testify at the tribunal as to what took place in their respective units has greatly worked negatively against the appellants. The sum total of the submission is that no explanation was given as to why the polling agents who witnessed the elections were not called to testify. The absence of their reports, counsel submitted was also not explained to the tribunal.

That there would have been no method by which the tribunal would have distinguished between what the witnesses saw themselves and what they were told by the polling agents. The absence of tile reports did not also avail the tribunal of its contents. That no reason was therefore given by the appellants as to why credence should have been given to the evidence of the said witnesses. Furthermore, counsel submitted that the depositions of the witnesses P. W. 1 – P.W. 65 failed to comply with section 115 of the Evidence Act. That the appellants witnesses alleged several electoral malpractices and criminal offences against the respondents ranging from non-accreditation of voters, over voting, financial Inducement, multiple voting, ballot box stuffing to falsification of results. That all these were stated to have happened at different times and in different places under circumstances which made it impossible for the deponents to have witnessed what was happening at different polling units, at the same time. That the agents at the relevant polling units ought to have been called therefore. That all that was available to the tribunal was the oral reports of the agents which the appellants chose to rely thereon. That the tribunal had no option but to treat such reports as hearsay evidence because the law requires the deponent to disclose the source of his or her information. The learned counsel re-iterated further that the findings by the tribunal which were admitted by the appellants were upheld by the lower court and against which there is no appeal.

Counsel further submitted that in addition to the depositions all being identical, they were also presented in a language other than that in which they were made. That this was peculiar to the 22 witnesses out of the 66 witnesses called by the appellants. That there was no explanation offered as to how depositions which had been made in Hausa metamorphosed into English. That these were not matters that a court of justice could ignore. With further reference made to the witness depositions filed along with the petition, the learned counsel pointed out that they were all couched in the same form and style, with the same facts and circumstance repeating themselves. In the circumstance, that the inevitable conclusion is that the petition was not accompanied by valid depositions, thus rendering the petition incompetent and robs the tribunal of the jurisdiction to entertain same. See the case of Buhari V. INEC (2008) 4 NWLR (Pt. 1078) and Chukwuma V. Nwoye (2011) All FWLR (Pt 553) 1942 at 1967. That the failure of the appellants to accompany the petition with credible witness depositions was a fundamental breach which robbed the tribunal of jurisdiction to entertain the petition see the case of Okereke V. Yaradua (2008) 12 NWLR (Pt 1100) 95 at 118. The learned Senior Counsel urged that the court below was right in upholding the view held by the tribunal that the character of the depositions is unreliable. The learned counsel on behalf of the 3rd respondent on account of his submission can be rated as an additional spokesman for the 1st and 2nd respondents. This of course is expected especially with the existing party relationship. The counsel in his submission aligned himself in totality with the contention advanced by the 1st and 2nd respondents’ counsel. In other words and contrary to the submission by the appellants’ counsel the said 3rd respondent’s counsel argued that the court below gave due consideration to this issue and came to the conclusion that it had no merit. That it is on the record that the witnesses P.W. 1 – P.W. 65 failed to distinguish between what they saw and what they were told by their polling agents. That the lower court was in proper perspective in their conclusion that the decision of the tribunal not to place any probative value on the evidence of P.W. 1 -P.W 65 could not be faulted.

The learned 3rd respondents counsel in further firm support of the submission made by the 1st and 2nd respondents’ counsel also cited a number of authorities which all go to advance the course of the identical nature of the principles highlighted. The counsel on this issue urged that same be resolved in favour of the 1st and 2nd respondents, and against the appellants. On behalf of the 4th, 5t and 6th respondents, their learned counsel submitted in agreement with the learned friends on behalf of the 1st and 2nd as well as the 3rd respondents. The counsel to buttress his submission went further to accredit and emphasize the findings by the tribunal as self explanatory in that the appellants’ witnesses failed to distinguish between what they saw and observed personally as against that told to them by their polling agents. The learned counsel cited the cases of Bamaiyi V. State (2001) 8 NWLR PAGE| 7 (pt. 715) p. 270 at 290; Buhari V. Obasanjo All FWLR (PT 273) Page 154, and Itashidu VS. Goje (2003) 15 NWLR (Pt 843) p. 352 at 393. That the reason abound and which the tribunal considered for not attaching probative value to depositions of the respective petitioners witnesses which reason was also upheld by the Court of Appeal. The counsel therefore urged us to so hold. On behalf of the 7th respondent, its learned counsel Dr. Banire applied to withdraw their brief filed on 18/10/12 and same was accordingly struck out. There is therefore no brief or submission by the 7th respondent herein. In further response to the respondents briefs the two sets of reply briefs filed on behalf of the appellants are merely to fulfill all righteousness because they have nothing new added to the main brief. I have therefore perused and considered the said reply briefs and the totality of the submissions contained therein are not a departure from the main brief but are mere emphasis thereof. The confirmation of this is the statement made by the appellants’ learned counsel himself wherein he concluded the two reply briefs by emphatically stating that the respondents have urged nothing in their briefs to whittle down the cogent arguments of the appellants on all the issues raised in this appeal. The cumulative complaint or grouse by the appellants in the 1st set of issues borders on the allegation that the learned tribunal judges either refused or totally failed to evaluate or properly so to do the evidence of 22 of their witnesses. This therefore raises the question of evaluation of evidence which the law specifically gives the duty to the trial court. In other words it is trite law that the onus of evaluating evidence is stricto senso that of the trial court and the appellate court should not be seen to interfere therewith except where there is evidence of failure by the trial court to properly evaluate or where there is a miscarriage of justice. It is elementary to state that the trial court is a court of evidence and therefore has the advantage of seeing and assessing the credibility of witnesses and their demeanors.

The totality of the appellants’ submission on the issues is that the miscarriage of justice occasioned by the lower court in upholding the decision of the tribunal lies in the refusal to attach evidential weight to the evidence of the said witnesses. It is pertinent to restate that the question of evaluation of evidence presupposes a construction of an imaginary scale in the mind of trial court judge(s) where upon the evidence of both contenders are put on this scale with the purpose of determining on which side of the scale the pendulum of justice would tilt. The evaluation would not be based on the number of witnesses, but rather on the credibility and acceptability of the evidence. In otherwords, there are determinant factors that will necessitate an evidence being acceptable and credible. Such evidence must come from a witness who has the first hand knowledge of that which he testifies to. He must in otherwords be a witness who saw or heard or took part in the transaction upon which he was giving evidence. Where a witness gives an account of an information which is not within his personal knowledge, he would not be accredited as a competent witness.

At page 3909 of the record of appeal, for instance the lower court held thus and said:

“The lower Tribunal in its judgment made specific findings that those witnesses failed to distinguish between what they saw and what they were told by their polling agents. The tribunal also found that the witnesses P.W 1 – P.W 65 did not only fail to disclose even the names of those agents who told them what happened at the polling stations, but also failed to present to the Tribunal any written report from any of the agents of what happened at the polling stations. The decision of the lower Tribunal not to place any probative value on the evidence of P.W. 1 – P.W 65 cannot be faulted.” Also at page 216 of its judgment (see page 3655 of the record of appeal) the trial tribunal held and said:- Another irritatingly repetitive item most of the witnesses statement on oath of the petitioners’ witnesses is the illiterate jurat. Even witnesses who testified before us that they deposed to their witnesses statement in English language their depositions contain illiterate jurat (There are 22 of such witnesses) all the said jurat were not signed by the interpreter. Though the witnesses kept mentioning the name of Sunday Mathew who is a lawyer.” The learned appellants’ counsel submitted at great extent in defence of the illiterate jurat contained in the said witnesses’ depositions and the fact that non of the 22 witnesses in question disowned his witness statement. It is pertinent to state that out of the 66 witnesses called by the appellants, 22 of them stated under cross examination that they made their depositions in Hausa language. The record did not show that the depositions adopted were those made in Hausa language which is not the language of the court. With the depositions adopted being in English language, the question to pose is, were those depositions adopted the same as those made by the witnesses.

To my mind and from all indications, the witnesses were adopting to depositions which were not intact made by them since English language was foreign to their understanding.. The appellants owed a duty to the court to have presented the very depositions made by the witnesses. The adoption of a different deposition was very defective and it could not have been rectified by the use of an illiterate jurat. The learned tribunal judges on this score said thus at page 216 of their judgment, (i.e to say page 3655 of the record.)

“Even witnesses who testified before us that they deposed to their witness statement in English their depositions contained illiterate jurat. (There are 22 of those witnesses.) All the said jurats were not signed by the interpreter; though the witness kept mentioning the name of one Sunday Mathew who is a lawyer. This creates a distinct impression in our minds that the written depositions were haphazardly mass-produced and names of witnesses, units, wards and local governments were inserted. They lack the well – known individuality and distinction required of a legal deposition which affects the weight we attach to them and we so held.”

From the foregoing findings by the trial tribunal, the law desires that witness depositions are to be individually identified with the maker. It is not enough an identity that non of the witnesses in question disowned the statement. They could not in otherwords have claimed rightly a deposition which was made in English language since they spoke in Hausa. The mentioning of the name of one Sunday Mathew, an interpreter, was not enough an identity. The learned appellants’ counsel cited the case of Udeagha V. Omegora (2010) 11 NWLR (Pt 1204) page 168 wherein it was held that a witness can adopt an irregular written deposition. With all respect, the situation at hand is remarkably distinguishable from the case under reference because it has nothing to do with adopting an irregular deposition. It is rather to do with a different deposition made in a distinct and alien language and which is being sought for adoption. The authority under reference, cannot with all respect, be applied in this case. In the same vein and for further expatiation, I would wish to state that there was also no explanation offered as to how depositions which were made in Hausa language could metamorphosed, into English language, as rightly submitted by the 1st and 2nd respondents’ counsel. There was again no dispute that, the depositions of the 22 witnesses were made in Hausa language and that the jurat was not signed. In the circumstance, and contrary to the submission by the learned Senior Counsel for the appellants therefore, the court below was on the right footing in upholding the decision of the tribunal when it said thus:

“The deposition under consideration were said to be made in Hausa language and translated and written into English by unidentified persons who failed to sign, to show that the makers of the depositions knew the contents thereof. The implication or the conclusion to be derived from that is that the deponents did not know the contents of what they deposed to.”

The law is well settled that as a precondition to the exercise of jurisdiction, the witness statements are to accompany the petition to be filed. The consequential effect of the failure to comply is that the tribunal was on a firm ground when it declined to exercise jurisdiction over the 22 witness depositions which it held were incompetent. See the case of Okereke v. Yaradua (2008) 12 NWLR (Pt 1100) page 95. It is also the contention of the appellants that the court below refused to give any consideration to their ground of appeal which complained that the tribunal refused to give probative value to the evidence of P.W.I – P.W. 65.

At page 3910 of the lower court’s judgment, it held thus. “The lower Tribunal in its judgment made specific findings that those witnesses failed to distinguish between what they saw and what they were told by their polling agents. The tribunal also found that the witnesses P.W.1 – P. W. 65 did not only fail to disclose even the names of those agents who told them what happened at the polling stations, but also failed to present to the tribunal any written report from any of the agents of what happened at the polling station.” For the determination as to whether or not the lower court erred in not giving proper consideration as alleged, recourse must be had to the record of appeal in order to get the proper picture of what transpired. For instance, it is on record that the witnesses P.W.1 – P.W. 65 failed to distinguish between what they said they were told from what they alleged they witnessed themselves. There is also no dispute that not a single one of the witnesses furnished the names of the agents who were alleged to have made reports to the witnesses. Not also a single one of those witnesses tendered the written reports which they alleged were delivered to them by the polling agents. There is also no appeal by the appellants contending that the record of appeal is defective on the foregoing findings made by the trial tribunal. In the absence of any challenge therefore the findings are binding. It is also on record that the witnesses P.W 1 P.W 65 being supervisors, their testimonies were based on what they were told by the polling agents, appointed by the appellants, as well as what they did witness themselves. In their testimonies, they gave evidence as to what they alleged transpired at the polling stations and the evidence which did not distinguish between what they saw, which was within their knowledge as against that which was told to them by polling agents. By the provision of section 115 of the Evidence Act, the law treats facts derived from personal knowledge differently from those derived from information obtained from some other source(s). The implication is that a deponent ought not to lump facts derived from personal knowledge with those obtained from other sources without distinguishing between the two. The particulars of the person who supplied the information with the name, address, time, place and circumstance must be stated by the deponent. The deponent must also state his believe in the information to be true. The particulars of the sources of the facts derived from the polling agents were not stated in the case at hand. See the cases of FGN V. AIC Ltd. (2006) 4NWLR (Pt 970) 337 at 357 and Doma V. INEC (2012) ALL FWLR (Pt 628) 813 at 829. In the absence of any distinction, therefore, the deduction is to expect the tribunal to sort out which of the mixed up evidence was to be allocated to either the witness or the polling agents. This is not the duty of the tribunal to do in the comfort of their chambers. Hence the deduction arrived at by the tribunal therefore was in order. In otherwords, that the entire evidence constituted hearsay evidence and which was properly rejected. The findings of the tribunal in that respect was reproduced earlier in the course of this judgment. I will not therefore repeat same.