Nuhu Ahmed V. Lawali Yakubu & 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 the 1st Respondent, who had decamped from the All Nigeria Peoples Party [ANPP] to the Peoples Democratic Party [40th Respondent] to contest for the office of Member representing Gada East Constituency, was declared the winner with 19, 759 votes as against 16, 508 votes credited to the Appellant, who was the candidate of the Democratic Peoples party [DPP]. Aggrieved, the Appellant filed a Petition at the Sokoto State National Assembly, Governorship and Legislative Houses Election Petition Tribunal (hereinafter referred to as the Tribunal), praying that it may be determined –

a) That the 1st Respondent was not duly elected or returned for reasons stated (in paragraphs 10 (a) – (x) of the Petition)

b) That the 1st Respondent’s election or return be voided and the Petitioner be declared validly elected as the winner at the said election having polled the majority of the lawful votes cast.

c) That it was the Petitioner who ought to have been duly returned having regard to the fact of disqualification of the 1st Respondent.

OR IN THE ALTERNATIVE:-

d) 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-

The Grounds for the Petition are as set out in paragraphs 10 (a) – (x) but this appeal is more concerned with the Ground in paragraph 10 (c) (i), (ii) & (iii) –

“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(iii) His nomination by the ANPP was never withdrawn and/or cancelled before the election.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 campaign posters of the 1st Respondent bearing and having to do with the ANPP when he submitted Form CF 001 to contest for the House of Representatives. All documents filed by the 1st Respondent to contest for the House of Representatives (under the umbrella of ANPP) and the Sokoto State House of Assembly (Gada East) (under the umbrella of PDP) are hereby pleaded and notice to produce same is hereby given to INEC”.

The 1st & 40th Respondents filed a Joint Reply to the Petition wherein they incorporated a Notice of Preliminary Objection challenging the competency of the Petition and the jurisdiction of the Tribunal to entertain it. The Tribunal was urged to strike out the Petition” on 7 Grounds including Ground 3 that-

“The Tribunal has no jurisdiction to entertain Ground 10 (c) (i), (ii), and (iii) of the Petition as same is a pre-election matter the original jurisdiction in respect of which is vested only in the regular Courts and not in an Election Petition”. And Ground 6 that –

“The Petitioner not being a member of PDP has no locus standi to question the membership of the 1st Respondent in PDP as in Ground 10 (d) of the Petition”. In its Ruling delivered on the 22nd of June 2007, the Tribunal held as follows –

“Our understanding of those grounds of the Petition upon which the ground of objection is predicated is that of withdrawal from one political party and contesting under another party without properly disengaging from the initial party that first sponsored the 1st Respondent. If that is so, then, the issue in our view is not that which the Applicant professes or what he wants the Tribunal to belief (sic). If that is so, then, this Tribunal is competent to determine same. It is a matter under Section 38 of the Electoral Act 2006. See IFEZUE v. MBADUGHA (1984) 1 SCNLR 427 (2) ARARUME V. PDP (Unreported- -). Accordingly, we refuse the call by the Applicant to strike out this paragraph and to decline jurisdiction. (Italics mine)

During the pre-hearing session that followed, the parties unanimously agreed on six Issues to be resolved by the Tribunal, and the 1st Issue is as follows-

“Whether the 1st Respondent was qualified to contest election to the House of Assembly, representing Gada East Constituency by virtue of the provision of Section 106 and 107 of the Constitution of the Federal Republic of Nigeria 1999 and Sections 34 & 38 of the Electoral Act 2006?

At the trial itself, the Petitioner testified and tendered a number of documents admitted in evidence as Exhibits P1, P1 (A) – P1 (G), and P2, P2 (1) – (32).

The 1st & 40th Respondents on their part called one witness, Hon. Abubakar Shehu Umar, the Secretary of ANPP, who adopted his written statement and tendered Exhibit D1, the 1st Respondent’s letter of withdrawal from ANPP. The 2nd – 39th Respondents did not call any witnesses or tender documents. Counsel thereafter adopted their respective written addresses and in its Judgment delivered on the 23rd of August 2007, the Tribunal held as follows –

“–For whatever it is worth there is no secular of evidence suggesting that the 1st Respondent was still a candidate of ANPP for the seat in the House of Representatives – – We therefore have no hesitation – – to come to the conclusion that the 1st Respondent was not sponsored by two political parties to contest the said Election or put in another way, that he contested the Election into the Federal House of representative and the Sokoto House of Assembly at the same time and being sponsored by two political parties. That not withstanding we don’t seem satisfied in stopping here. The question here is whether or not the complaint under S. 34 & 38 and issue of nomination and substitution are Justiciable. – – The Petitioner has referred the Tribunal to its Ruling on the preliminary objection on the provision of S.34 and 38 of the Electoral Act. We would like to put on record that the Tribunal at that stage and in that Ruling was careful in its finding and conclusion by merely saying that the issue of substitution is justiciable and we added therein that we say no more, we are not saying that such should be a ground to challenge an Election. It is a common knowledge that issue of nomination is a domestic affair of the party.- – An aggrieved person – – can approach the High Court or the Federal High Court to challenge same. – – This is why in that Ruling it was said that such situation are justiciable but to nail it on the head it is not justiciable before the tribunal”.

The Tribunal concluded as follows on the issue of qualification –

“In the light of the foregoing and the failure of the Petitioner to proof (sic) that the party PDP – – did not do all that is required under the law in having the 1st Respondent as its candidate to the said election the allegation then remain unsubstantial or established. Also if in this case, where INEC has gone ahead to accommodate the 1st Respondent as the candidate of PDP to contest the election, there is that strong resumption of regularity in favour of the 1st Respondent that he was validly nominated by PDP–Since ANPP is no where claiming the candidature of the 1st Respondent–the common sense in the circumstances would favour the notion that the 1st Respondent was never sponsored by two political parties – – Accordingly we answer this issue in the affirmative. – – the 1st Respondent was qualified to contest the election – – to the House by virtue of Section 106 and 107 of the Constitution – – 1999 and that this complaint under Section 34 & 38 are not justiciable before the Tribunal and that he is a valid member of the PDP”.

Dissatisfied with the decision of the Tribunal to dismiss the Petition and affirm the result declared by INEC [3rd Respondent] the Appellant appealed to this Court with a Notice of Appeal containing ten Grounds of Appeal, some of which, it’s been argued, should be deemed as abandoned. The Grounds are –

1. The tribunal erred in law when in trying to resolve Issue No.1 before it, revisited the justiciability of Sections 34 & 38 of the Electoral Act 2006 by holding that they relate to pre-election matters thence not justiciability when it has earlier fully and effectively determined same in the preliminary objection of the 1st & 40th Respondents and dismissed same and this has occasioned a miscarriage of justice.
2. The Tribunal erred in law when it suo motu raised and/or revisited the issue of its competence to entertain Issue NO.1 before it dealing with Sections 34 & 38 – –
3. The Tribunal erred in law when it acted on Exhibit D1 tendered before it without assessing the said Exhibit in relation to the lone witness statement on oath of the 1st Respondent and evidence elicited from DW1 during cross-examination on Exhibit D1 and this has occasioned a miscarriage of justice.
4. The Tribunal erred in law when after exercising its powers to collate the result of the Appellant and the 1st Respondent unlawfully excluded or included bringing the total margin between the Appellant to only 85 votes, and nevertheless agreeing that there were electoral irregularities in the polling stations complained of in paragraph 10 (u) of the Petition, it however went ahead to hold that the malpractice or irregularities were not substantial enough to warrant the elections in the said polling stations to be cancelled and this has occasioned a miscarriage of justice.
5. The Tribunal erred in law and indeed prejudiced the case of the Appellant when after holding that Sections 34 & 38 of the Electoral Act are not justiciable by the Tribunal, it went ahead to evaluate the said Sections vis-a-vis the evidence before the Tribunal and making a finding on same and this has occasioned a miscarriage of justice.
6. The Tribunal erred in law when it relied on Exhibit P1G (Form CF001 of the 1st Respondent under the banner of the PDP) to hold that the 1st Respondent was a valid member of the PDP and thus qualified to contest elections to the House of Assembly as Member representing Gada East Constituency.
7. The Tribunal misdirected itself in law when it held that ”No oral evidence was adduced by the Petitioner to substantiate the complaints in paragraph 10 (1), (j) & (k) of the Petition. The only evidence which we can fall back on is Exhibit PQ5 and P1A. PQ%(sic) is Form EC 8A(1)”and this occasioned a miscarriage of justice.
8. The tribunal erred in law and prejudiced the case of the Appellant when it outrightly made a case for the 1st respondent by proffering answers as to the difference between the result entered in Exhibit P1A and PQ5 and this has occasioned a miscarriage of justice.
9. The Tribunal erred in law when it proceeded to abandon Issue No.5 formulated by consent of parties before it and formulated its own questions for determination and used same unilaterally in resolving Issue No. 5 before it and this has occasioned a miscarriage of justice.
10. The Tribunal erred in law when it held in relation to the Exhibits tendered in proof of paragraph 10 (u) of the Petition that “We also found as a fact that all the votes scored by all the parties were correctly and religiously entered for all the candidates in Form EC8A (i) tendered in all the polling stations” and this has occasioned a miscarriage of justice.

In line with the Rules of this Court, briefs of arguments were duly filed and exchanged and in the Appellant’s brief prepared by Sulaiman Usman, Esq., it was submitted that the following Issues call for determination in this appeal –

1. Whether the trial Tribunal had jurisdiction to reopen, revisit and reverse itself on an issue whereof it had previously delivered a decision. (Grounds 1 & 2)
2. Whether the 1st Respondent validly withdrew his candidature as the gubernatorial candidate of ANPP before being nominated as a candidate of the 6th 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? (Ground 5)
4. Whether in the circumstances of this case the 1st Respondent is qualified to contest election to the Office of Member of Sokoto State House of Assembly regard being had to Section 106 (d) of the 1999 Constitution. (Ground 6)

The 1st & 40th Respondents however argued in their brief settled by Jacob Ochidi, Esq., that since no Issues were formulated from Grounds 4, 7 – 10 of the Grounds of Appeal, they are abandoned and must be struck out. They are right. Grounds of Appeal allege complaints against a Judgment but it is the issues formulated there-from that this Court is concerned with. Issues for determination guide the arguments and submissions in support of the said complaints in the Grounds of appeal, therefore, where no issue is formulated from a Ground of Appeal and no argument on the Ground is made out in the brief of argument, this Court will treat the Ground as abandoned and strike it out – see Ejura v. Idris (2006) 4 NWLR (Pt. 971) 538 & Sekoni v. UTC (Nig.) Ltd. (2006) 8 NWLR (Pt. 982) 282. In this case, no Issues were formulated from Grounds 4, 7, 8, 9 & 10 of the Grounds of Appeal; they are deemed abandoned and are hereby struck out.

The 1st and 40th Respondents further submitted that having regard to the surviving Grounds of Appeal, the Issues for Determination are as follows –

i. Considering the pleadings and evidence led before the Tribunal, whether the said Tribunal was right to have held that the 1st Respondent was a member of PDP and was therefore qualified to contest the said election held on the 14th day of April 2007.

ii. Whether issues of substitution of candidates and nomination of candidates as provided in Sections 34 (1) and 38 respectively of the Electoral Act 2006 fall within the jurisdiction of an Election Tribunal.

iii. Did the Appellant suffer any miscarriage of justice when the Tribunal carried out an evaluation of evidence led before it in respect of the grounds in the Petition alleging breach of Sections 34 (1) & 38 of the Electoral Act 2006 despite having held that the said provisions are not justiciable before it?

The Appellant’s Issue 1 and Issue (iii) formulated by the 1st & 40th Respondents (hereinafter referred to as the Respondents) are hinged on the Tribunal’s Ruling of 22nd June 2007, and in my view, must be resolved first. The Appellant’s contention is that the Tribunal had no jurisdiction to reopen, re-visit and reverse its earlier decision in its 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 & Bakare v. Apena (1986) 4 NWLR (Pt 33) 1. On the other hand, the Respondents argued that the issue relates to the competence of the ground of the Petition and the jurisdiction of the Tribunal to entertain same, which is an issue that can be raised suo motu for the first time by this Court; that the Appellant cannot evade the proper application of the rule of law merely because the Tribunal had at the preliminary stage of the proceedings delivered a Ruling on the same point in his favour; and that the issue was contested by all the parties to the proceedings, and contrary to the Appellant’s contention, he was given adequate opportunity to express his views on it.

It was further submitted that the Tribunal had cause to evaluate the evidence despite its earlier decision, and even if it did as alleged, this did not lead to any miscarriage of justice against the Appellant. Both sides have their points, the Appellant is right that once a Court has delivered its decision on a matter, it becomes functus officio with respect of that matter. Seeing as a Court has no jurisdiction to sit as an appellate Court over its own decision, it ceases to be seized of the matter and cannot re-open it for any purpose whatsoever – see Ogboru v. Ibori (2005) 13 NWLR (Pt. 942) 319, Sun Insurance (Nig.) Plc v. LMBS Ltd. (2005) 12 NWLR (Pt.940) 608, Ukachukwu v. Uba (2005) 18 NWLR (Pt. 956) 1, Ubeng v. Usua (2006) 12 NWLR (Pt 994) 244.

In this case, in resolving the issue of whether the 1st Respondent was qualified to contest the election in its Judgment of 23rd August 2007, there is no question that the Tribunal crossed a line and did in fact re-visit the issue of the justiciability of Sections 34 & 38 of the Electoral Act, which it had earlier dealt with in its Ruling of 22nd June 2007, wherein it had overruled the Respondents’ objection and held that it was competent to entertain that ground of the Petition because “it is a matter under Section 38 of the Electoral Act 2006″. It concluded by refusing” the call by the Applicant to strike out this paragraph and to decline jurisdietion” but for no stated reasons therein, it changed gear in its Judgment of 23rd August, and arrived at a contrary view –

“We are not saying that such should be a ground to challenge an Election. It is a common knowledge that issue of nomination is a domestic affair of the party. — An aggrieved person – – can approach the High Court or the Federal High Court to challenge same. – – This is why in that Ruling it was said that such situation are justiciable but to nail it on the head it is not justiciable before the tribunal’.

It cannot do that; the law does not allow the Tribunal to change its decision at will in one proceeding. It cannot decide one way in a Ruling and later do a flip-flop in its Judgment to arrive at a different decision; it just cannot do that.

As I stated earlier, once a Court has decided 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).

However, it is not every error in a Judgment that will render it a nullity – see Nnaji v. Agbo (2006) 8 NWLR (Pt. 981) 199. The error that will cause this Court to set aside a Judgment must be one that influenced the Judgment in a manner that led to a wrong decision and caused the Appellant to suffer injustice, or it affected the decision appealed against and effected a substantial misdirection or error in law. In other words, the overriding consideration is whether it has occasioned a substantial miscarriage of justice. An error of law that occasions no miscarriage of justice is thus immaterial – see M. M. Ali Co. Ltd. V. Goni (2006) 10 NWLR (Pt. 987) 88, ANPP V. PDP (2006) 17 NWLR (Pt 1009) 467. In this case, I agree with the Respondents that the Appellant cannot complain of a miscarriage of justice against him. The fact that the Tribunal vacillated one way in its Ruling and swayed another way in its Judgment on the import of Sections 34 (1) & 38 of the Electoral Act vis-a-vis Section 106 of the 1999 Constitution on the issue of qualification, is neither here nor there, it had no effect whatsoever on its decision, which is that the Appellant failed to prove his allegation in Ground 10 (c) of his Petition. That is the bottom-line of the Tribunal’s decision and it has to do with proof, and this brings us to the next Issue that is hinged on Section 36 (1) of the Electoral Act dealing with the withdrawal of candidates, and it provides that –

“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 position is that the 1st Respondent did not validly withdraw as a candidate of the ANPP before he was nominated as a candidate of the PDP. He referred this Court to the Statement on oath of DW1, Hon. Abubakar Kuku Umar, the Secretary of ANPP, Sokoto State, wherein he deposed as follows-

“That around the first week of February, 2007 we received a letter from the said candidate that he has decamped to the PDP and can no longer be our candidate for the election”

– The reply of DW1 under cross-examination by the Appellant’s counsel –

“I know when the 1st Respondent cross – carpet into PDP. I cannot remember the exact time but I know when he brought the letter to us. I would not know when ALHAJI ALIYU MAGATAKARDA WAMAKKO cross carpet to PDP I received the letter on the letter day (sic) he brought it to my office on 31/12/07,”

And submitted that there was no shred of evidence to show that there was any compliance with the Electoral Act before the alleged withdrawal; that there is material contradictions as to the date Exhibit D1 was received so the Tribunal was wrong to have acted on it; and that the testimony of DW1 ought to be rejected as unreliable, citing Nasamu v. The State (1979) 6 SC 153. Furthermore, that since the 1st Respondent did not withdraw his candidature as required by law, this is “incontrovertible evidence of double nomination”; and that it is incumbent on the 1st Respondent to establish the following, 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, particularly as the date of receipt of Exhibit D1 by ANPP is not established. The Respondents however argued that since parties had joined issues on the question of whether or not the 1st Respondent was a valid member of PDP, it behoves the Appellant to lead credible evidence in proof of the said ground because the onus is on a party who alleges the existence of a fact to show that it exists, citing Okubole v. Oyagbola (1990) 4 NWLR (Pt. 147) 723.

Furthermore, that the only evidence proffered by the Appellant to support the said ground is his averment in paragraph 12 (iv) of his Statement on oath –

“He was not a valid member of the PDP at the time of the election complained of”.

But under cross-examination, he admitted as follows-

“I never saw the register of members of PDP. The 1st Respondent is a member of PDP and ANPP at the time of election. I am not a member of ANPP”

They submitted that it is settled law that an admitted fact need not be proved, citing Ejebu v. Okoro (2001) FWLR (Pt. 79) 1350 & Odudu v. Onyibe (2001) FWLR (Pt 79) 1403; that the said admission contradicted the Appellant’s averment in his Statement on oath, and it is settled that a witness who gives two inconsistent evidence is not entitled to the honour of credibility and does not deserve to be described as truthful, citing Ayanwale & ors v. Atanda & ors (1988) 1 SC 1; that there is no iota of evidence to prove the said allegation, and though the burden of proof shifts in civil proceedings, there can be no shift unless and until at least a prima facie evidence has been laid necessitating a rebuttal evidence; and that where as in this case, no such evidence was made out by the Appellant, they had no duty in law to give any rebuttal evidence in the first place, but they went ahead to do so all the same by calling DW1 who tendered Exhibit D1 dated 31/1/01, which reads –

“This is to formally notify you of withdrawal of my membership from ANPP under which platform I had intended to contest an election as Member, House of Representative for Gada/Goronyo Federal Constituency in respect of the 2007 National Elections. With this development, I have equally withdrawn my nomination to contest the said election under the platform of ANPP. I hereby wish to thank you for all co-operation extended to me during the time of my membership of the party”.

I did say earlier that this appeal turns on the question of “proof”, which not only means the “establishment and refutation of an alleged fact by evidence”, but also means “evidence that determines the Judgment of a Court” – see Blacks Law Dictionary, 7th Ed.

Section 135 (1) of the Evidence Act says that –

“Whoever desires any Court to give Judgment as to any legal right – – dependent on the existence of facts which he asserts must prove that those facts exist”.

The simple and down to earth translation is “he who asserts must prove” – see Kalu v. Uzor (2006) 8 NWLR (Pt 981) 66. In other words, it is the party that asserts the existence of a particular fact that must prove that fact, and if he fails to do so, his case will collapse like a pack of cards with him inside.

The Appellant’s whole case hangs on his allegation 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 to have his way he must prove it. However, the Appellant had the unlikely notion that all he has to do is make an allegation and it is for the Respondents to run around to disprove same. But that is not the way it works under the law; it is he who made the allegation and it is he who must therefore prove it, 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 picking holes in the Respondents’ case, he lost sight of the law that says he must succeed on the strength of his case and not on the weakness of the Respondents’ case. In effect, if the evidence he adduced does not prove his case, he will not succeed merely because the Respondents’ case is weaker.

In any case, his contention that the evidence adduced by the Respondents is riddled with contradictions would not have been sufficient to achieve his ends. A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor discrepancy between them. Thus, two pieces of evidence contradict one another when they are by themselves inconsistent, while a discrepancy may occur when a piece of evidence stops short of, or contains some minor differences in details – see Agbo v. The State (2006) 6 NWLR (Pt. 977) 545 SC & Owena Bank Plc v. Olatunji (2002) 13 NWLR (pt. 781) 259.

In this case, DW1 tendered the 1st Respondent’s letter of withdrawal from ANPP dated 31/1/07, and the different dates he mentioned cannot be a contradiction, certainly not one that will suffice as proof of the Appellant’s allegation that the 1st Respondent was a member of ANPP when he contested the election as a candidate of PDP.

Clearly, the Appellant failed to prove that allegation and the Tribunal was right to conclude that the 1st Respondent was qualified to contest the said election. Since the fact on which to apply the law has not been established, it will not be necessary to consider the other issue dealing with the law on the subject.

The end result of the foregoing is that there is no merit in this appeal, it fails and is hereby dismissed with N30,000.00 costs to the 1st & 40th Respondents.

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Other Citations: (2008)LCN/2837(CA)