Saidu Suleman Takuma & Anor V. Mahmud Danladi Liman & Ors (2009)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER.ODILI, J.C.A.
This is an appeal against the judgment of the National Assembly Election Petition Tribunal sitting in Minna, Niger State delivered on the 29th day of November, 2007. The Tribunal dismissed the petition of the Appellants which challenged the return of the 1st Respondent as the member representing Edati/Mokwa/Lavun Federal Constituency of Niger State. The Appellants were dissatisfied with the Judgment of the Tribunal and have appealed to this court vide a Notice of Appeal dated and filed on the 13th December, 2007 containing the omnibus ground. Another Notice of Appeal dated and filed on the 17th day of December, 2007, was later filed containing 12 grounds of appeal. Finally a 3rd Notice of Appeal was filed with 13 grounds of appeal on the 18th December, 2007.
The Appellant herein abandoned the two earlier Notices of Appeal but adopted the Notice of Appeal dated and filed on the 18th of December, 2007 and on it is based the Appellants Brief of Argument. In the circumstance therefore the two Notices of Appeal of 13th December, 2007 and that of 17th December, 2007 abandoned are hereby struck out.
FACTS
The 1st Appellant contested for the office of member National House of Representatives for the Edati/Mokwa/Lavun Federal Constituency of Niger State which shall be referred simply as “The Constituency”. The 1st Appellant contested under the banner of the 2nd Appellant, the All Nigeria peoples’ Party (ANPP).
On the other hand, the 151 Respondent contested for the same office under the platform of the Peoples Democratic Party (the 2nd Respondent). At the conclusion of the Election which was held on the 21st April, 2007, the 1st Respondent was returned as the winner of the Election on the basis that he secured the majority of lawful votes cast at the election.
The Appellants being not satisfied with that decision of the 3rd – 7th Respondents filed a petition before the National Assembly Election Petition Tribunal sitting in Minna, Niger State, which shall hereafter be referred to simply as either the “trial court” or “the trial Tribunal” or “the Tribunal”. The Appellants challenged the return of the 1st Respondent on the grounds that as at the time/date of the election, the 1st Respondent was not qualified to contest the said election. The basis for the challenge were the falsification of age and the presentation of forged documents viz certificates to the 3rd Respondent contrary to the provisions of the Constitution of the Federal Republic of Nigeria 1999 and it was couched in this way:
“GROUNDS OF PETITION:
- The 1st Respondent was not qualified to run for the office of the Federal House of Representatives for EDATI/MOKWA/LAVUN Federal Constituency in that the 1st Respondent forged and submitted forged documents and certificate to the 1st Respondent for his clearance.
- The 1st Respondent presented certificate and declaration of age to the 1st Respondent for clearance which were fraught with forgery and substantial non compliance with the provisions of the Constitution of the Federal Republic of Nigeria and the Electoral Act 2006 and the rule and regulations laid down for the conduct’ of the Election by the 3rd Respondent further to the provisions of the Act”.
The Tribunal compressed the petition into a single ground and this the Appellant opines led to the failure of the Tribunal to look at the petition with the liberality that was expected of all courts or tribunals in the consideration of an election petition because they are sui generis.
The Appellant contended that the Tribunal erred in its consideration of what was before it and came to a wrong conclusion and decision for which Appellants have appealed to this court.
On the 18/2/09 when the hearing of this appeal took place the learned counsel for the Appellants, Y.C. Maikyau Esq. adopted the Appellants Amended Brief filed on 27/6/08 and also their Reply Brief filed on 16/6/08 and urged the court to allow the appeal. In the Appellants Brief, the Appellants formulated four (4) issues for determination which are as follows:-
- Whether from the pleadings and evidence before the Tribunal, the Appellants raised the age of the 1st Respondent as a ground for his disqualification to contest the Election conducted on the 21st of April, 2007 for the office of Member Representing Edati/Mokwa/Lavun Federal Constituency of Niger State?
- Where issue 1 is answered in the affirmative, whether the Appellants have established that the 1st Respondent was disqualified from contesting the aforesaid Election on the grounds of his age.
- Whether upon proper evaluation of the pleadings and the evidence on the record more particularly the Exhibits P5A – P5P, R1 and R2 attached to the affidavit in support of the personal particulars presented to INEC by the 1st Respondent. The Appellant has established against the 1st Respondent the case of presentation of forged Certificates/Documents under Section 66(1) (i) of the Constitution of the Federal Republic of Nigeria 1999, such that the 1st Respondent was disqualified from contesting the Election, held on the 2nd of April, 2007 for the office of member representing Edati/Mokwa/Lavun Federal Constituency of Niger State.
- Whether the 1st Appellant was entitled to be returned as the winner of the Election?
Mr. Rotimi Ojo of counsel for the 1st and 2nd Respondents adopted the joint brief of his clients filed on 4/7/08 and prayed that the appeal be dismissed. He further adopted the issues set out by the Appellants.
The 3rd – 7th Respondents did not turn up even though served and they filed no Briefs.
ISSUE NO 1
Whether from the pleadings and evidence before the Tribunal, the Appellants raised the age of the
1st Respondent as a ground for his disqualification to contest the Election conducted on the 21st of April, 2007 for the office of member Representing Edati/Mokwa/Lavun Federal Constituency of Niger State.
Mr. Maiyaku, learned counsel for the Appellants stated that one of the basic factors that guide the determination of Election matters, is the need to afford the petitioner the opportunity to present his grievances before the Tribunal and it is the duty of the Tribunal to scrutinize the complaint in order to give the general public, the electorate the opportunity to witness the investigation of matters which leave the capacity of or which did affect the choice of their leaders. That it is for the special nature of election petitions that the Tribunals are enjoined to give the parties the opportunity to ventilate their grievances devoid of any adherence to technical rules of justice. That it is for that, that in looking at the petitions the Tribunal must read the entire paragraphs of the Petition as a whole so as to see the exact complaints of the Petition. He cited Ngwu v. Mba (1999) 3 NWLR (pt. 595) 400 at 405 Anigala v. Abeh (1999) 7 NWLR (pt. 611) 454 at 467.
Learned counsel for the Appellants said it was therefore improper and wrong for the Tribunal to have taken a restrictive approach in its consideration of the petition subject matter of this appeal. That it was this approach that led the Tribunal to reach a wrong conclusion. This being because of the following reason:
Pleadings are meant to remove the element of surprise in all the proceedings including the election petition. He referred to Abimbola George & 2 or v. Dominion Flour mills (1963) 1 SCNLR p. 177.
That the 1st Respondent understood the case against him which had to do with the age of the 1st Respondent to contest the election, which the Tribunal ought to have considered. He referred to the address of the 1st Respondent’s counsel.
In response learned counsel for 1st and 2nd Respondents Mr. Ojo contended that reading the two grounds of the petition there is no way the issue of age of the 1st Petitioner was brought to the fore. That while Ground one is talking about forgery of documents submitted by the 3rd Respondent, the second ground complained about the same document. That no ground specifically complained about the age of the 1st Respondent or indeed any relief praying that the court disqualify the 1st Respondent based on non qualification as to age. He cited the case of Shell Petroleum Development Company of Nigeria Ltd v. Lucky Esowe (2008) 4 NWLR (pt. 1076) 72 at 86. That a court cannot read into the pleadings of the parties what is not there nor can the court deviate from being that of facts and law and become a court of speculation. He referred to Abalaka v. Minister of Health & ors (2006) 2 NWLR (pt. 963) 105.
Mr. Ojo said that introducing the issue of age was an act of pulling a surprise at the Respondents and since issues were not joined on this very important point, the lower Tribunal was right in disregarding the same.
For our use in this appeal I shall recast some parts of the petition for a better understanding of what was proffered at the very beginning and foundation of the suit and now this appeal.
“GROUNDS OF PETITION
- The 1st Respondent was not qualified to run for the office of the Federal House of Representatives for EDATI/MOKWA/LAVUN Federal Constituency in that the 1st Respondent forged and submitted forged documents and certificates to the 3rd Respondent for his clearance.
- The 1st Respondent presented certificate and declaration of age to the 3rd Respondent for clearance which were fraught with forged and substantial non compliance with the provisions of the Constitution of the Federal Republic of Nigeria and the Electoral Act 2006 and the rule and Regulations laid down for the conduct of the election by the 3rd Respondent further to the provisions for the Act:
STATEMENT OF FACTS AND PARTICULARS OF FORGERY
- Your petitioner states that some of the facts and particulars of forgery on which they shall rely upon in support of the grounds for challenging the election are as follows:-
i. The 1st Respondent submitted forged certificate/statement of result Ref NO: CA/99D/o721 dated 21st September, 2005 to the Independent National Electoral Commission and the State Security Services.
ii. The 1st Respondent lied in the declaration of age he presented to INEC along with his affidavit in support of the office of House of Representatives. Particulars of which are:-
(a) The 1st Respondent personally deposed to the declaration of age claiming that it was deposed to by his uncle. The 1st Respondent is hereby given notice to produce the original during trial.
(b) The date of birth contained in his statutory declaration of age is different from his date of birth contained in School Leaving Certificate.
iii. A petition was sent to the Independent National Electoral Commission by one Kudu Musa Idris dated January 7, 2007.
The 3rd Respondent is hereby given notice to produce the original copy during trial
iv. A letter from the Independent National electoral Commission to the Chairman Peoples Democratic Party Niger state with heading “Verification of personal particulars of candidates dated January 15, 2007. The 2nd Respondent is hereby given notice to produce the original copy during trial.
V. The affidavit of personal particulars of the 1st Respondent submitted to INEC. The 3rd Respondent is hereby given notice to produce the original copy during trial.
- Your petitioners state that the 1st Respondent presented a forged statement of result and declaration of age to the 3rd respondent and thus is disqualified from taking part in the election.
- Your petitioners state that 1st Respondent is disqualified from contesting for and holding the office of member of the House of Representatives”.
An assertion by a party or his witness is one thing and the production or giving of evidence to prove the assertion is another. An assertion may properly be described as an allegation. It will remain as an allegation unless proved by evidence. Therefore, the onus of proving a particular fact is on the party who asserts it. Idesoh v. Ordia (1997) 3 NWLR (pt. 491) 17; Okubule v. Oyagbola (1990) 4 NWLR (pt. 147) 723; Ike v. Ugboaja (1993) 6 NWLR (pt. 301) 539.
It is not enough for a party to make averments in pleadings, Averment which on the face of them appear impressive are useless if no evidence is led to prove them. Mere averments in pleadings without proof of the facts pleaded is not admitted. Also, failure to give evidence in support of an averment means that the averment in question has been abandoned. Per Adio JSC in Idesoh v. Ordia (1997) 3 NWLR (pt. 491) 17; Adegbite v. Ogunfaolu (1990) 4 NWLR (pt. 146) 578; Omoboriowo v. Ajasin (1984) 1 SCNLR 108; Balogun v. Amubikanhun (1985) 3 NWLR (pt. 11) 27.
It is curious therefore that the Appellants are posturing about the Tribunal taking a restrictive position in keeping its focus and not whether or not the 1st Respondent was qualified within the con of the Constitutional provision as to age. This stance of the Appellants cannot stand not with their pleadings, the salient related part captured above which lacked specificity on the age and what exactly the 1st Respondent was to depend on in that regard. Infact the Appellants are calling on this court to read into the pleadings what is not there.
Pleadings are to contain the necessary fact and that is certainly lacking in the petition and averments of the Appellants in the court below. I place reliance on the cases of Shell Petroleum Development Company of Nigeria Ltd v. Lucky Esowe (2008) 4 NWLR (pt.1076) 72 at 86; Abalaka v. Minister of Health & ors (2006) 2 NWLR (pt. 963) 105.
The contention of Mr. Maikyau learned counsel for the Appellants that the Tribunal ought to have read the whole of the petition to see the exact complaints and it was the Tribunal’s failure to do that made it reach the conclusion it did. That submission cannot save the situation as there was nothing in the petition read fully that had the redeeming feature to salvage the bad condition of the Appellant’s assertion on the disqualification based on age. Therefore the cases of Ngwu v. Mba (1999) 3 NWLR (pt. 595) 400 at 408; Anigala v. Abeh (1999) 7 NWLR(pt. 611) 454 at 467 are inapplicable here.
Therefore this issue 1 is resolved in favour of the Respondents 1st and 2nd
ISSUE NO 2
Where issue (1) is answered in the affirmative, whether the Appellants have established that the 1st Respondent was disqualified from contesting the aforesaid Election on the grounds of his age.
Learned counsel for the Appellants contended that it was the narrow view taken by the Tribunal that made the Tribunal not to make a finding on the alleged disqualification on ground of age. That what was presented before the Tribunal as evidence are documentary in nature and the Tribunal was to make a finding thereon and this would not involve the assessment of the demeanour of the witnesses. He cited Ayoyeri II v. Atanda (1995) 5 NWLR (pt. 395) 512 at 528. It was further submitted for the Appellant that in view of the conflicting documentary evidence the Tribunal was without option than to conclude that the 1st Respondent did not satisfy the requirement of the Constitution of the Federal Republic of Nigeria 1999 with regard to the age of the 1st Respondent. That while Exhibit P5B showed that 1st Respondent gave his age at 40 years, Exhibit P5N gave the age of the same man as 41 years. That no explanation was proffered to clarify this conflict. Mr. Maikyau further contended that while Exhibit P5B gave the place of birth of the 1st Respondent as Kaduna, Exhibit P5 N gave the place of birth as Doko in Niger State. That the Tribunal could not pick and choose which age was the correct one and so it can be taken that the 1st Respondent failed to satisfy the requirement of age as prescribed by Section 65 (1) (b) of the Constitution of the Federal Republic of Nigeria 1999 and consequently, as at the time of contesting the election on 21st April, 2007 he was not qualified on the ground of age.
Mr. Ojo for the 1st and 2nd Respondents submitted that the onus of proving that the 1st Respondent was under aged was on the Appellants as it is trite that the onus of proof lies upon him who asserts. He cited CAP PLC v. Vital Investment Ltd (2006) 6 NWLR (pt. 976) 220 at 241. That the Appellants reliance on conflicting affidavits of the 1st Respondent will not discharge that onus placed on the Appellants.
The Tribunal had made the following findings and conclusion:-
“When the Principal Assistant Registrar was cross examined by the petitioners’ counsel the issue
that the 1st respondent did not attend the University and the issue that the Exhibits P50/R1 were forged were never put to him or raised. The evidence that the 1st Respondent attended Abubakar Tafawa Balewa University, Bauch; and was awarded Exhibits P50/R1 and R2 has not been contradicted or impeached. It is credible evidence. Where evidence is uncontradicted, credible and not unreasonable it must be taken as conclusive and binding. See OMMAN V PKPE (2001) 1 NWLR (PT. 641) 365 at Pp. 372 – 373. Exhibits P50/R1 and R2 show clearly that the result issued to the 1st Respondent, was approved and authorized by the Senate of the University. It is therefore of no moment that 1st Respondents name is not found in Exhibit P1.
Again, the issue that the Kaduna outreach ought to bear code number with letter ”D’ or that the respondents referred to code number with letter “K” to us amount to an unnecessary hair splitting.
It does not derogate from the clear evidence before us that the 1st Respondent attended the University and was issued the Statement of Result which he presented to INEC.
Consequently we hold that the petitioners have failed to prove that the 1st Respondent did not attend Abubakar Tafawa Balewa University Bauchi and the Exhibit P50/R1 amounts to a forgery.
As regards the submission by petitioners Counsel that Exhibit P5N, P51 and P5K were procured by forgery and fraudulently presented, our view is that this argument is ordinarily incompetent and go to no issue. Particulars of the issue canvassed by counsel were never given in the petition nor was evidence led or established in respect thereof in IMAM VS. SHERRIFF(supra) at p. 218 it was held that allegation of forgery or fraud made in a case must be followed by particulars under Order 26 rules (5) and (6) of the Federal High Court Rules and that a naked allegation of forgery without particulars and without proof is detrimental to the party who seeks to establish same.
In any case, there is no evidence before us to prove that Exhibits P5K P5L and P5U are forged documents or were fraudulently procured. We are of the view that it is a misconception to compare and contrast the results in Exhibit P5N and Exhibit P51. The subject in Exhibit P5N relate to the subjects offered in the school while the subjects in Exhibit P5L are those passed at the West Africa Examinations Council School Certificate Examination. The difference do not render the documents a forgery.
The issue of pupil’s photograph and signature on Exhibit P5N were never mentioned as particulars of forgery and did not form part of evidence.
Therefore Counsel’s address cannot be a substitute for evidence which ought to be given in court. SEE BAYO V. NJIDDA & ORS (2004) 8 NWLR (PT.876) 544 at p. 636.
What the petitioners’ counsel is urging the Tribunal to do with regard to the issue of passport photograph and pupil’s signature on Exhibit P5N is to embark on conjecture and speculation. Without any credible evidence, it will amount to a grave speculation to hold that there was a passport photograph on the document and that the passport photograph was not that of the 1st Respondent. It is also a speculation to hold that the present signature of the 1st Respondent is not the same as the signature which he signed more than 20 years ago as a pupil in the secondary school. Courts are enjoined not to decide matters on the basis of speculation but to act on the evidence adduced and canvassed by the parties. See TANKO V. NONGHA (2005) ALL NWLR (PT. 286) 774 at 787 -788. We shall restrain (sic) ourselves from engaging in such speculatio.
There is no evidence before us to show that one Alhaji Mohammed Liman was not and could not have been the father of the 1st Respondent or that the 1st Respondent is not or could not have been the son to Alhaji Mohammed Liman. There is equally no evidence to establish the contention of the petitioners’ Counsel that the name Liman Danladi on Exhibit PSL or that the name Danladi Liman in Exhibit PSN is not the name of the 1st Respondent.
There is no evidence before us that any other person bears those names. Rather, during cross examination, the 1st Respondent in answer to the question put to him by the Petitioners I Counsel said the same Danladi Lima in Exhibit P5N refers to him (the 1st respondent). The case of ESENOWO V. UKPONG (supra) is not applicable here”.
The assertion by the Appellants that the age posted by the 1st Respondent to INEC (3rd Respondent) showed 40 or 41 years and so proved that he was not qualified for the election. This without doubt is not enough since to be disqualified the 1st Respondent ought to be below the age of 30 years in accordance with Section 65(1) (b) of the 1999 Constitution. Nothing in the pleadings or even in evidence brought this aspect out and the submission of counsel cannot take the place of legal proof.
A counsel’s submission in court in support of a party’s case remains a mere submission. It can never be elevated to be part of the evidence before the court. Thus, counsel’s submission, no matter how alluring, can never be, and has never been, regarded as part of the evidence for appraisal by the trial court. Olufosoye v. (1993) 1 NWLR (pt. 272) 747 (CA); CAP Plc v. Vital Investment Ltd (2006) 6 NWLR (pt. 976) 220 at 241.
From the above including the findings of the Tribunal which were based on the materials before them, it is not difficult to see that the Appellants founded their grouse of whether or not the 1st Respondent was duly qualified for the contest for the seat of the Federal House of Representatives member for his constituency in the realm of rhetorics and speculation and no more and so this issue NO 2 is resolved in favour of the Respondents 1st and 2nd.
ISSUE NO 3
Whether upon proper evaluation of the pleadings and the evidence on the record more particularly the Exhibits P5A – P5p, R1 and R2 attached to the affidavit in support of the personal particulars presented to INEC by the 1st Respondent.
The Appellant had established against the 1st Respondent the case of presentation of forged certificates/Documents under section 66(1) (i) of the Constitution of the Federal Republic of Nigeria 1999, such that the 1st Respondent was disqualified from contesting the Election, held on the 21st of April, 2007 for the office of member representing Edati/Mokwa/Lavun Federal Constituency of Niger State.
Mr. Maikyau, learned counsel for the Appellants stated that under Section 66(1) (i) of the Constitution 1999, the Appellants had the duty not only to show that the documents in question were forged but that they were presented to INEC by the 1st Respondent. He cited Imam v. Sheriff (2005) 4 NWLR(pt. 914) 80 at 187.
That from the documents tendered in evidence that is Exhibits P5, P5A to P5 P, it was clear that they were presented to INEC by the 1st Respondent. That they are the Affidavit of Personal Particulars of the 1st Respondent together with the various documents attached thereto in order to support the facts deposed to in the said affidavit. Learned counsel said these documents were certified true copies and there was no dispute as to the fact that they were presented to INEC and this fact was admitted by the 1st Respondent during cross-examination. He referred to Sections 362 (a) (b), (c) and 363 of the Penal Code Law of Northern Nigeria applicable in the constituency of the 1st Respondent.
That similar Sections of the Criminal Code Act applicable in the Southern States of Nigeria which deal with forgery and forged documents are Sections 463, 474 and 465. He said the ingredients in proof in the Penal Code Act are the same in the Criminal Code law to prove forgery. He cited Aina v. Jinadu (1992) 4 NWLR (pt. 233) 9 at 110; Babalola v. State (1989) NWLR (pt. 115) 264.
Mr. Maikyau of counsel went on to say that the information given by the 1st Respondent and the documents attached to the affidavit of personal particulars of the 1st Respondent were intended to satisfy INEC that 1st Respondent was qualified to contest the election in question and so the mere production or presentation of the documents told lies and also lied about themselves. He referred to Taiwo Bucknor Smart v. The State (1974) 11 &. 12 SC 130; Nigeria Airforce v. James (2002) 18 NWLR (pt. 798) 295 at 322.
Learned counsel for the Appellants said the position taken by the Tribunal on the signatures on Exhibit P5 E and P5G was erroneous since the Tribunal had said the signatories were not the same but went ahead to say the Appellants had failed to prove the allegation of forgery beyond reasonable doubt. That this is because from application of Section 108 of the Evidence Act which allows for comparison of handwriting it is clear that what would be relevant is the existence of similar features between the writings or signature being compared. That since Exhibits P5G and P5E were shown to have been made by the same person, 1st Respondent therefore the appellants had proved that Exhibit P5G was forged.
He further stated that the fact the signature on Exhibit P5E was that of the 1st Respondent was not disputed, consequently the Appellants had no burden to show that the signature on Exhibit P5G was not that of Usman Liman. He cited UTB v. Awanzigana Ent. Limited (1994) 6 NWLR (pt.348) 56; Adenle v. Olude (2002) 18 NWLR(pt. 799) 413.
That the 1st Respondent did not deny presenting Exhibit P5G to INEC and admitted so under cross-examination. That the declaration of age of 6th June, 1978 was never tendered in evidence and so it was wrong for the Tribunal to have acted on the document or any Statement referring to it. He cited Idiok v. State (2006) 12 NWLR (pt. 993) 1 and the rest of the evidence of the 1st Respondent and concluded that the Appellants had established by evidence that Exhibit P5G was a forged document presented to INEC contrary 66(1) (i) of the 1999 Constitution.
Mr. Maikyau said all the exhibits relevant in proof of the case were documentary in nature and by their nature the exhibits speak for themselves. That the documents are evidence themselves and proved themselves. He said where a fact has been reduced into a document it is the document that proves that fact. He cited Aiki v. Idowu (2006) 9 NWLR(pt. 984) 47.
He stated further that since the 1st Respondent had presented to INEC document which contain particulars other than himself, these documents particularly Exhibit PSN were forgeries. Also that the fact that MAHMUD DANLADI LIMAN and DANLADI LIMAN are of separate identities. He referred to Esenowo v.Ukpong (1999) 6 NWLR(pt. 608)611.
That Exhibit PSN does not belong to the 1st Respondent and the act of procuring the said document was a forgery.
Respondent, Mr. Ojo for the 1st and 2nd Respondents contended that the Appellants failed woefully to prove the case of forgery against the 1st Respondent. That it is trite that forgery being a criminal offence, the onus is that of proof beyond reasonable doubt. He cited Imam v. Sheriff (2005) 4 NWLR (pt. 914) 80 at 164; Archubong v. Edak (2006) 7 NWLR (pt. 980) 485.
Mr. Ojo stated on that the court should refer again to the definition of forgery in Imam v. Sheriff (supra) and hold that Exhibits P51, P5K and P5H were not made by the 1st Respondent and so the Lower Tribunal was right when it held that the Appellants had not discharged the onus of proof beyond reasonable doubt. Also the issue of Exhibit R1 which was tendered by a representative of Tafawa Balewa University Bauchi, the same witness who tendered.
The matter of forgery, the basis really of the petition in the court below and which aspect has to be considered even now, but some basic rules must be adhered to especially when viewed from the standpoint that forgery of documents germane to the qualification or otherwise of the 1st Respondent for the seat in Parliament he desired, is on the front burner.
In chemical and Allied Products Plc v. Vital Investments Ltd (2006) 6 NWLR (pt. 976) 220 this court held that the plaintiff’s case succeeds on its own strength and not on the weakness of the defendant’s case. However, the rule that in establishing his claim the plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case does not apply where the defendant’s case itself supports that of the plaintiff and contains facts which the plaintiff is entitled to rely upon. But it is manifest that a plaintiff can only derive strength from evidence volunteered by a defendant if such evidence goes to an issue and therefore admissible. Kodilinye v. Odu (1935) 2 WACA 336; Atuanya v. Onyejekwe (1975) 3 5C 161; Imoh v. Okogbe (1993) 9 NWLR (pt. 316) 159; Akinola v. Olowu (1962) 1 SCNLR 352; Ibeziako v. Nwagbogu (1972) 1 All NLR (pt. 2) 200; Akpapuna v. Obi Nzeka II (1983) 2 SCNLR 11; Omoregbee v. Lawani (1980) 3- 4 SC108; Owonyin v. Omotosho (1961) 2 SCNLR.
Addresses or submissions of counsel, no matter how brilliantly crafted, can never take the place of evidence, be it oral or by affidavit or by application not properly before the court. Thus, it is not proper to include a prayer for the first time in an address. See Warri Refining and Petro Chemical Co. Ltd v. Onwo (1999) 12 NWLR (pt.630) 312; Okubuje v. Oyagbola (1990) 4 NWLR (pt. 147) 723; Ekpenyong v. Nyong (1975) 2 SC 71; Union Bank of Nigeria Ltd v. Ogboh (1995) 2 NWLR (pt. 380) 647; Anthony v. Lagos State Government (2003) 10 NWLR (pt. 828) 288; Akibu v. Race Auto Supply &. Co. (2000) 4 NWLR (pt. 686) 190; Ekpenyong v. Etim (1990) 23 NWLR (pt. 140) 594; Archibong v. Edak (2006) 7 NWLR (pt. 980) 485; Udechukwu v. Ngene (1992) 8 NWLR (pt. 260) 565.
In the course of trial of a civil case, various issues usually arise which require resolution. This makes the onus of proof shift from side to side in the process. The onus does not therefore remain static.
However the onus of adducing further evidence depending on the balance of the scale is on the person who would fail if such evidence is not produced. Nigeria Maritime Services ltd v. Afolabi (1978) 2 SC 79; Ajide v. Kelani (1985) 3 NWLR (pt. 12) 248; Duru v. Nwosu (1989) 4 NWLR (pt. 1134) 24; Highgrade Maritime Service Ltd v. First Bank of Nigeria Ltd (1991) 1 NWLR (pt.167) 290.
In civil cases, the burden of proof of a particular issue rests on the party alleging it. The burden does not shift. The ultimate burden of proving a case lies on the plaintiff in that he is the party who will fail to obtain judgment if on the totality of the evidence adduced before the court, the balance of probabilities does not weigh in his favour.
Udechukwu v. Ngene (1992) 8 NWLR (pt. 260) 565 at 585 – 586 (CA).
He who asserts must prove and so in the instant case, the appellants failed to prove their allegation that the certificates presented by the 1st and 2nd Respondents are a forgery. See E.D. Tsokwa &. Sons Co. Ltd v. Union Bank of Nig Ltd (1996) 9 NWLR (pt. 471) 129; Lawson v. Ajibulu (1997) 6 NWLR (pt.507) 14.
Just as this court earlier had found that the assertion by the Appellants ought to be proved, the allegation of forgery remained what they were bare allegation without clothing, in this case where a serious allegation of a criminal nature such as forgery against the 1st and 2nd Respondents which ought to be proved by the Appellants with the high standard required which is that beyond reasonable doubt, the Appellants failed woefully to carry out that burden and standard of proof. Really what the Appellants did at the trial Tribunal was just dumping documents for that court to wade through the swamp without the enabling road map and necessary equipments as if it was either for the Respondents 1st and 2nd to show they did not forge or for the Tribunal to enter the arena and take the place of petitioner and carry out the proof which was the due responsibility of the Petitioners/Appellants. The case of Imam v. Sheriff (2005) 4 NWLR (pt. 914) 80 as per Ogbuagu JCA (as he then was) settled this issue which I find for the Respondent.
ISSUE NO 4
Whether the 1st Appellant was entitled to be returned as the winner of the Election.
Learned counsel for the Appellants stated that one of the issues raised was in relation to the return of the 1st Appellant and once there was an order disqualifying the 1st Respondent the 1st Appellant then requires to show he is entitled to be returned and that is done once the Appellant shows that the people who voted for 1st Respondent were aware that he had been disqualified. That this is so since there was a letter addressed to the 2nd Respondent intimating him of the complaint received against the candidature of the 1st Respondent. He referred to the Cross-examination of the 1st Respondent in relation thereto. Therefore that the ineligibility of the 1st Respondent was not only known to the electorate, it was communicated to the political party (2nd Respondent) that nominated and sponsored the 1st Respondent. He cited Michael v. Yuosuo & INEC (2006) 2 EPR 1 at 28; Abubakar L. Abdullahi v. Han Yahaya Sadauki (Appeal NO. CA/A/283/07 delivered on 9th May, 2008 by Honourable Justice Sodipe (JCA).
Learned counsel for the Respondents 1st and 2nd said that the 1st Appellant was not entitled to be returned as the winner of the election.
That the person with the majority of the lawful votes cast is the 1st Respondent, the Appellant having failed to discredit the 1st Respondent in any way, the Lower Court was right to have returned him as the winner. That it is pertinent to note that the purported protest letter was sent to the 3rd Respondent before the Election, same was investigated by the 3rd Respondent and it was on that basis that the 1st Respondent was allowed to contest the election. He stated that the court should take notice of the fact that same complaint in Exhibit P5 is the substance of the ground of petition which the court resolved against the Appellants. That the Appellants are basing their complaints on speculations and not on legal proof.
Having considered and answered the earlier issues the way they have gone, this fourth issue almost becomes moot since it is hinged upon those three issues favourable to the Appellants. Therefore since the disqualification of the 1st Respondent was not established then the votes of the 1st and 2nd Respondents remained valid on their behalf and there is no justification upon which it can be said that the lawful votes should be awarded to the Appellants. On that note I go along with the view of learned counsel for the Respondents 1st and 2nd, Mr. Ojo that indeed the person with majority of lawful votes is the 1st Respondent and the trial Tribunal was right to have returned him as winner of the election into the Federal House of Representatives membership seat for the Constituency of EDATI/MOKWA/LAVUN Federal Constituency. Therefore this issue 4 is answered negatively and that is that the 1st Appellant is not entitled to be returned as winner of that election.
Finally all the issues having been resolved in favour of the Respondents, I dismiss this appeal and affirm the judgment and orders of the trial Tribunal.
I award N30,000.00 costs to the 1st and 2nd Respondents to be paid by the 1st and 2nd Appellants.
Other Citations: (2009)LCN/3196(CA)
