Sani & Ors. V. Lere & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

BABA ALKALI BA’ABA, J.C.A.

This is an appeal against the decision of the National Assembly/Governorship/Legislative Houses Election Petition Tribunal, sitting in Kaduna, Kaduna State dated the 28th day of February, 2008 annulling the election of the 1st appellants and returning the 1st respondent as the winner elect representing Lere Federal Constituency in the House of Representatives for the April 14th 2007 election.

Being dissatisfied with the said decision, the appellants by Notice of Appeal dated the 3rd day of March, 2008 appealed against the said decision to this Court.

In accordance with the rules of practice and procedure of this Court the parties to this appeal filed their respective briefs.

At the hearing of the appeal which came up on the 12th day of February, 2009, all counsel to the parties adopted their respective briefs and advanced oral argument in amplification of the argument in their respective briefs.

The appellants’ brief is dated 16/3/08 filed on 17/3/08 and a Reply brief dated the 13th day of April, 2008, filed on 14th day of April, 2008. While the 1st and 2nd respondents’ brief is dated and filed on the 1st day of April, 2008 and the 3rd – 81st respondents’ brief is dated the 3rd day of October, 2008, deemed filed on the 7th day of October, 2008.

At pages 1 – 3 of the appellants’ brief, eight issues were formulated for determination in this appeal and they are as follows:

“1. Whether the trial Tribunal was right in holding that the proof of non-voting in an election does not require tendering voters cards and that it is sufficient to plead the vin numbers of such cards. (Culled from Ground 1).

2. Whether the trial Tribunal was right in admitting in evidence and placing reliance on documents referred to as Exhibits “L” & “M” series which said documents were tendered by a person who was only invited to produce the said documents pursuant to Section 192 and 193 of the Evidence Act and who was never referred to and called as a witness and consequently not sworn; in nullifying the election of the 1st and 2nd Appellants. (Culled from Grounds 2 and 9).
3. Whether the trial Tribunal was not in error in violating the Appellant’s constitutionally guaranteed rights to fair hearing under Section 36(1), (4), (5) and (6) of the 1999 Constitution and the principles of natural justice by failing to afford the Appellant an opportunity to cross-Examine as to the authenticity or sufficiency of the facts contained in Exhibits “L” and “M”, which facts the trial Tribunal relied upon to annul the election of the 1st and 2nd Appellants. (Tied to Ground 10).
4. Whether the trial Tribunal was right in relying on over-voting to set aside the election of the 1st and 2nd Respondents’, when the case of the Petitioners (as per their pleading) was that there was no election in Garu and Kayarda Wards and in holding that there was no election in the Wards and at the same time holding that there was over-voting. (Culled from Grounds 3 and 8).
5. Whether the trial Tribunal was right in relying on the evidence of Petitioner witnesses who testified as Agents even though there was no evidence before the Court that their appointment were in accordance with Section 46 of the Electoral Act, 2006 and no evidence of their party membership before the Tribunal. (Culled from Ground 6).
6. Whether the Tribunal erred in law when it set aside the election of the 1st and 2nd Appellants when petitioner did not establish any electoral malpractice and inspite of the apparent and material contradictions in the evidence of the Petitioners’ witnesses. (Culled. from Grounds 4 and 7).
7. Whether the trial Tribunal was right in returning the 1st respondent as member elect representing Lere Federal Constituency in the House of Representatives, when there was evidence in the Tribunal showing that the 1st respondent was neither qualified to contest or be returned having been dismissed by FSB bank. (Culled from ground 5).
8. Whether the decision of the trial Tribunal is not a nullity having regard to the fact that Honourable Justice Okpanachi who was the Chairman of the Tribunal and before whom hearing begun did not take part in the preparation of the judgment. (Culled from Ground 11).”

The 1st and 2nd respondents, on the other hand also formulated eight issues at pages 7 – 8 of their brief as follows:

“1. Whether the tendering of voter’s cards was compulsory to prove that elections were not held in a polling unit (ground 1).

2. Whether the trial Tribunal was right in admitting in evidence and placing reliance on documents referred to a exhibit “L” &. “M” series – the Voters’ Registers used for the Election – (grounds 2 and 9).
3. Whether the admission of Exhibits “L” &. “M” infringed the appellants’ right to fair hearing. (Ground 10).
4. Whether the trial Tribunal relied wholly or partially on over voting to set aside the elections in Garu and Kayarda wards and in the affirmative whether such reliance prejudiced the appellants. (Ground 3 and 8).
5. Whether the trial Tribunal had a legal obligation to insist on the. production of the 1st respondent’s witnesses’ letters of appointment as party agents before placing any probative value on their oral testimony. (Ground 6).
6. Whether the respondents established any form of electoral malpractice to nullify the elections in the affected polling units in Garu and Kayarda wards (Grounds 4 and 7).
7. Whether the 1st respondent was not qualified to contest for election to represent Lere Federal Constituency in the House of Representatives. (Ground 5).
8. Whether the Tribunal was improperly constituted at the time of delivering judgment thereby rendering the judgment a nullity. (Ground 11).”

The.3rd – 81st respondents also formulated eight issues for determination in this appeal at pages 6 – 7 of the 3rd – 81st respondents’ brief as follows:

“(1) Whether the tendering of voters cards was compulsory to prove that elections were not held in a polling unit (Ground 1).

(2) Whether the trial Tribunal was right in admitting in evidence and placing reliance on documents referred to as Exhibits “L” and “M” series, the Voters Registers used for the Election (Grounds 2 and 9).

(3) Whether the admission of Exhibits ‘L’ and ‘M’ infringed the Appellants right to fair hearing (Ground 10).

(4) Whether’ the trial Tribunal relied wholly or partially on over-voting to set aside the election in Garu and Kayarda Wards and if in the affirmative, whether such reliance prejudiced the Appellants (Grounds 3 and 8).

(5) Whether the trial Tribunal had a legal obligation to insist on the production of the 1st Respondents witnesses letters of appointments as Party Agents before placing any probative value on their oral testimony (Ground 6).

(6) Whether the Respondents established any form of electoral malpractices to nullify the election in the affected Polling Units in Garu and Kayarda Wards (Grounds 4 and 7).

(7) Whether the 1st Respondent was not qualified to contest for election to represent Lere Federal

Constituency in. the House of Representatives (Ground 5).

(8) Whether the tribunal was improperly constituted at the time of delivering judgment thereby rendering the judgment a nullity (Ground 11).”

After a careful examination of the issues formulated by the parties, I have adopted the issues formulated by the learned senior counsel for the appellants for the determination of this appeal. It appears that some of the eight issues formulated by the appellants are germane, for this reason I intend to deal with issues Nos. 1, 2 and 5 together to be followed by issues numbers 3, 4, 6, 7 and 8. The learned senior counsel for the appellants, Yunus Ustaz Usman, SAN, stated in the appellants’ brief, arguing his issue Nos. 1, 2 and 5, that the petitioners now 1st and 2nd respondents, in an attempt to prove that there was no election in Garu and Kayarda wards of the Lere Federal Constituency called a group of witnesses who testified as supposedly eligible voters who went to their various polling units and remained there from morning till 6.30p.m. but could not vote because there were no election materials. He numbered the said affected witnesses as PW21, PW22, PW25, PW31, PW34, PW55, PW68, PW69 and PW70 for Garu ward. There are also PW41, 42, 44, 45, 46, 47, 48, 49, 50, 52 and 53. Learned senior counsel for the appellants pointed out that the petitioners/1st and 2nd respondents who pleaded the numbers of these eligible voters’ cards failed to tender even one to show that they are truly registered or eligible voters and that they did not vote. Reference was made to page 846 of the record of proceedings where the Tribunal held that in order to proof that there was election, it does not require the tendering of the voters’ card. That the. Tribunal further held that it is sufficient to state the number of the voters’ cards since the voters register is before the court, the respondents have the opportunity to rebut the evidence of the voters.

Learned senior counsel for the appellants referred to paragraphs 17(iii) of the petition at page 9 and paragraph 39(1) at page 13 of the record, where the petitioners/1st and 2nd respondents, pleaded that the petitioner at the hearing of the petition will rely on every document pleaded.

It is submitted relying on the authority of BON V. BABATUNDE (2002) 7 NWLR (Pt.766) 389 that when a document is pleaded, but not tendered in evidence, the paragraph of the pleadings is deemed to have been abandoned. See also OBA RA OYEDIRAN OF 1 ABOLAND V. OBA ALEBIOSU II & ORS (1992) 6 NWLR. (PT.249) 530. He referred to section 50(1) and (2) of the Electoral Act, 2006 reproduced in the appellants’ brief. According to the learned senior counsel for the appellants, it is very easy for anyone to walk into the witness box and claimed that he went to a polling unit to vote and was not allowed to vote. It is further submitted that the way to discharge this burden of proof was stated by Salami, JCA in AWUSE V. ODILI (2005) 16 NWLR (PT.952) 116 at 474 – 475. Learned senior counsel pointed out that in the instant appeal there is neither the voters’ card nor the voters’ register before the court.

It is argued that even if Exhibits “L” and “M” (Voters Register) were admissible which is not conceded, there were no voters’ card to be compared with the Register. In the opinion of the learned senior counsel, the failure of the learned counsel for the 1st and 2nd respondents as petitioners to tender the voters cards of the eligible voters which he pleaded to be compared with the voters register shows that the 1st and 2nd respondents/petitioners have failed to prove their allegations of non-voting. He therefore urged the court to disregard the evidence of all the witnesses in this group. Learned senior counsel for the appellants urged the court to invoke the provision of Section 149(d) of the Evidence Act against the 1st and 2nd respondents/petitioners for withholding evidence.

Learned senior counsel for the appellants further stated that the 1st and 2nd respondents/petitioners whose case was that there was no election in Kayarda and Garu wards of the Lere Federal Constituency sought to prove the totality of the results by urging the Tribunal to use in evidence Electronic Voters register which Exhibits came via PW.77 on subpoena inspite of objection from the learned senior counsel for the appellants.

It is contended that a witness summoned to produce a document on subpoena and who is not on oath cannot be said to tender a document when no opportunity was afforded for the witness to be cross-examined. That in the instant appeal, the Tribunal overruled the objection of the appellants, admitted the Electronic voters’ register and allowed the 1st and 2nd respondents/petitioners counsel to use the said exhibits to cross-examine the appellants’ witnesses.

It is further submitted that the Tribunal placed heavy reliance on the said exhibits in annulling the election of the appellants and returning the 1st respondent as the winner of the election. He pointed out that in addition the Tribunal relied on facts elicited through cross-examination by the counsel for the 1st and 2nd respondents/petitioners. Reference was made to pages 844 and 847 of the record of proceedings where the Tribunal placed reliance on the cross-examination based on Exhibits “L” and “M” series in its judgment.

It is further submitted by the learned senior counsel for the appellants that Exhibits “L” and “M” series were wrongfully admitted in evidence and the wrongful admission, has occasioned a miscarriage of justice on the appellants. Pointing out that the Electoral Officer PW.77, who was subpoened to produce exhibits “L” and “M” series, had no capacity to tender the said exhibits in evidence and the 1st and 2nd respondents did not call another witness to tender same in evidence so that it could be used in evidence. It is argued that for a witness to tender a document of such nature, such a witness must be sworn and liable to cross-examination. See FAMAKINWA V. UNIVERSITY OF IBADAN (1992) 7 NWLR. (Pt285) 608 at 624 – 625.

He urged the court relying on his submission to expunge Exhibits “L” and “M” series.

Learned senior counsel for the appellants further stated that the 1st and 2nd respondent’s petitioners by paragraphs 27 and 38(1) of the petition at pages 11 and 13 of the record pleaded and placed reliance on the party membership card of agents and witnesses. However PW.23, 24, 25, 26, 28, 29, 32, 33, 56, 59, 60, 61, 62, 63, 65, 66, 67, 71, 72, 73 are all agents of ANPP, AC and PDP from Garu wards while PW.1 – 15, 20, 35, 36, 37, 39, 40 and 43 are said to be agents of PDP, ANPP and AC from Kayarda wards. Pointing out that their group of witnesses gave evidence without tendering their party membership card as pleaded and mentioned at page 846 of the records by the Tribunal.

According to the learned senior counsel for the appellants, it is very easy for anyone to walk into the witness box and say that he is an agent hence the provisions of Section 46 of the Electoral Act, 2006. See BUHARI v. OBASANJO (2005) 12 NWLR (PT.941) 1 at 115and 117.

Learned senior counsel is of the view that in the absence of credible evidence that the Tribunal ought not to have accepted them as party agents.

In conclusion of his submission on the three issues, learned senior counsel urged the court to resolve all the three issues in favour of the appellants.

In his response on issues Nos. 1, 2 and 5 learned senior counsel for the 1st and 2nd respondents, M. I. Ahamba, SAN, submitted that the learned senior counsel for the appellants had quoted the Tribunal out of con in his reference to page 846, containing the judgment of the Tribunal.

It is further submitted by the learned senior counsel for the 1st and 2nd respondents that the learned senior counsel for the appellants did not challenge the testimony of any of the 20 eligible voters called as witnesses and relied on the authority of BUHARI V. OBASANJO (2003) 17 NWLR (PT.8S0). That it is trite law that where a party does not accept the entire testimony or some part of the testimony of an adverse party’s witnesses, but failed to adduce evidence in rebuttal or failed to cross-examine the witnesses, the court is entitled to hold as in this case that the testimony is not disputed. See ATTORNEY-GENERAL OYO STATE V FAIRLAKE HOTELS LTD (No.2) (1989) 5 NWLR (Pt.121) 255 and AMADI V. NWOSU (1992) 5 NWLR (Pt.241) 273. Relying on the two authorities cited, learned senior counsel for the 1st and 2nd respondents contended that the learned senior counsel for the appellants has accepted the testimony of the witnesses who testified that they did not vote, placing reliance on INEC V. RAY (2004) 14 NWLR (Pt.892) 92 at 131 and DAGGASH V. BULAMA (2004) 14 NWLR (Pt .892) 144 at 240.

According to the learned senior counsel for the 1st and 2nd respondents/petitioners that they have by evidence before the Tribunal established their case of non-voting through their witnesses and urged the court to resolve issue No.1 in favour of the 1st and 2nd respondents.

It is the contention of the learned counsel senior for the 1st and 2nd respondents/petitioners that the appellant’s senior counsel argument does not substantially challenge the relevance and admissibility of Exhibits “L” and “M” series. The learned senior counsel for the appellants’ only attacked the method by which Exhibits “L” and “M” series were tendered and admitted by the Tribunal. According to the learned senior counsel for the 1st and 2nd respondents, Exhibits “L” and “M” series, voters register in whose custody as provided by Section 18 of Electoral Act, 2006 falls within the purview of documents that can be used in evidence even though not brought via a witness under oath provided they emanate from proper custody and their authenticity is not challenged. He conceded that in the instant appeal exhibits “L” and “M” series were produced vide subpoena addressed to INEC, the 3rd respondent and the Lere Local Government Electoral Officer, the (77th respondent) brought the exhibits to the court. It is argued that the procedure did not in any way prejudice the appellants and did not deprive them of their right to fair hearing.

In his response to issue No.5 learned senior counsel for the 1st and 2nd respondents/petitioners, submitted that it is trite that the parties are bound by their pleadings. However no where in the appellants’ pleadings did they allege that the 1st and 2nd respondents witnesses were not who they said they were and referred to pages 381 and 393 of the record.

See WELLE VS. OGUNSOKO (2007) 6 NWLR (Pt.1029) 125 at 140 and BALOGUN VS. E.O.C.B. NIG LTD. (2007) 5 NWLR (Pt.1028) 584 at 601.

Concluding his submission learned senior counsel for the 1st and 2nd respondents urged the court to resolve issues Nos 1, 2 and 5 against the appellants.

Responding to the submission of the learned senior counsel for the appellants, learned counsel for the 3rd – 81st respondents, M.T. Inuwa, Esq., adopted the appellants’ submission on issues 1, 2 and 3 and also placed reliance on the authority of AWUSE (SUPRA). He pointed out that exhibits. “L” and “M” series were admitted through a witness subpoenaed to produce as a result, the witness was neither sworn nor cross-examined. He contended that it was erroneous for the Tribunal to rely on the evidence of P.W.77 not being the maker of the said exhibits placing reliance on A.N.P.P. & ANR. VS. SA’IDU USMAN & ORS. (2008) 12 NWLR (Pt.1100) 1 at 89. The learned counsel for the 3rd – 81st respondents did not make any submission on issues 5 and 6 but urged the court to resolve issues 1, 2 and 8 in favour of the appellants. The portion of the judgment in contention appears to be pages 846 and 847 and are hereby reproduced below.

At page 846 inter alia the court held:

“Also the petitioner is not from our findings alleging falsification of results in these two wards. Rather they said there ought not to be result at all. The proof that there was no election does not require the tendering of voters card, it is sufficient to state the number of the voters card. Since the voters register is before the court, the respondent had the chance to rebut the evidence of voters. None of the respondent’s witnesses made attempt to discredit the witnesses who gave evidence and quoted their voters card number.”

At page 847 of the record, the Tribunal further held thus:

“From the evidence elicited from R.W.7 and R.W.8 under cross-examination it is apparent that the result declare for the foresaid Kayarda and Garu wards were in excess of the voters purportedly accredited in Exhibits “L” and “M” series, being Voters Registers for the said wards.” The Tribunal relying on Exhibits “L” and “M” series at page 848 ordered as follows:

“We have put the entire evidence in this petition on the imaginary scale of the Justice as enjoined by the court in MOGAJI VS. ODOFIN (1978) 4 SC P.9 and are satisfied that the petitioners have discharged the burden of proving their case by preponderance of evidence/balance of probability in respect of Garu and Kayarda wards.

On the other hand, the burden have been shifted to the respondents but they have failed to adduce contrary evidence on balance of probability.”

The learned senior counsel for the appellants, filed a Reply brief dated 13/4/08, filed on 14/4/08 and submitted on issues 1 and 5 that the 1st and 2nd respondents/ petitioners asserted that some eligible voters were disenfranchised because of the non-availability of election materials and pleaded the voters card and their vin numbers suggesting that they were duly registered but could not exercise their civic rights of voting and referred to paragraphs 6, 17(iii) at pages 16 – 17, paragraph 30(f)(i) page 3 and paragraph (f) at page 16 of the record. He contended that it is the duty of the 1st and 2nd respondents/petitioners to prove these facts by tendering the pleaded voters’ cards. That the 1st and 2nd respondents/ petitioners also pleaded parties’ membership card of the purported party agents’ called as witnesses before the Tribunal.

Learned senior counsel for the appellants stated that the 1st and 2nd respondents/petitioners claimed that the witnesses were accredited agents for various parties at the election without tendering their letter of appointment as provided for by Section 46 of the Electoral Act, 2006. Reference was made to the case of BUHARI VS. OBASANJO (2005) 13 NWLR (Pt.941) 1 at 306 in support of his submission on the requirement of proof that the said witnesses that testified were in fact political party agents. It is pointed out by the learned senior counsel for the appellants that going by the provisions of Section 137 of the Evidence Act, Cap.112, Law of Federation, 1990, that he who asserts must prove. In the opinion of the learned senior counsel for the appellants, the 1st and 2nd respondents as petitioners in the instant appeal, failed to prove their assertion.

It is argued that since the 1st and 2nd respondents as petitioners failed to prove their assertion, there is nothing for the appellants to rebut.

That it is trite that it is not in every case that depositions in an affidavit which are not denied by an adverse party are deemed admitted citing the case of BUHARI VS. OBASANJO also relied upon by the learned counsel for the 1st and 2nd respondents/petitioners but contended that it is not applicable, in the instant appeal and is in fact distinguishable. He referred to pages 634 – 638 of the record of proceedings where matters relating to issues 1 and 5 were canvassed and argued before the Tribunal, placing reliance on the authority of CONSOLIDATED BREWERIES PLC VS.AISOWIEREN (2001) 15 NWLR (Pt.736) 424 at 458 – 459. According to the learned senior counsel for the appellants, the 1st and 2nd respondents/petitioners merely dumping the Voters Register without linking the name of the purported voters to the Register of votes which they said was before the court, is not enough.

It is further submitted by the learned senior counsel for the appellants that a party relying ‘on a document in proof of his case must tender same before the court and must specifically relate each of such document in proof of his case in respect of which the document is being tendered. He emphasised that such a duty must not be left to the court in the recess of its chambers and relied on the authority of EJIOGU VS. ONYEAGUOCHA. In conclusion, learned senior counsel for the appellants urged the court to resolve the said issues in favour of the appellants and allow the appeal.

Pleading serves as the life-wire of a claim but without proof thereof it serves no useful purpose. The primary function of a pleading is to define and delimit with clarity and precision the real matter in controversy between the parties upon which they can prepare and present their respective cases. In addition, it also serves the basis upon which the court will be called to adjudicate between them. This principle has been restated in the case of MR. ESAZEE OJO VS. MRS JACOB ESOHE & ORS (1999) 5 NWLR (Pt.603) 351 at 444.

It follows therefore that the two most significant aspects of a claim are pleadings and the evidence on them in proof thereof. Where evidence is not aligned to the pleadings it will serve no useful purpose to the claimant. The ultimate resultant effect which gives rise to the pleadings being abandoned on the one hand, while also expunging the unsupported evidence on the other hand which cannot stand without a foundational basis. See BALOGUN VS. AMOBIKAHA (1985) 3 NWLR (Pt.11) 27 and C.B.N VS. JIDDA (2001) 5 NWLR (Pt.705) 165 at 176.

In NWOSU VS. ODILI (2005) 16 NWLR (Pt.952) 426 at 471, it was held that by virtue of Section 40 of the Electoral Act, 2002, which is in pari materia with Section 50 of the Electoral Act, 2006, the issue of whether a voter cast his vote is only ascertained upon by examining the voters’ register whether the person’s name has been marked as having voted. The fact is not ascertained in the voters card. Section 50(1) of the Electoral Act 2006, provides:

“50(1) Every person intending to vote shall present himself to a Presiding Officer at the polling unit in the constituency in which his name is registered with his voter’s card.

(2) The Presiding Officer shall, on being satisfied that the name of the person is on the Register of Voters, issue him a ballot paper and indicate on the Register that the person has voted.”

Paragraph 27 of the portion reads:

“27. That the petitioners will at the hearing contend and rely on the evidence of eligible voters, God fearing party agents and persons employed by the 3rd respondent for the conduct of the elections. The voters cards of such persons, any document showing INEC’s authority to such persons to act for them together with party membership cards of all the persons employed by INEC to act for them.”

It appears from paragraph 27 of the 1st and 2nd respondents/petitioners’ petition that in establishing that eligible voters did not vote, they intended to rely on the voters cards of those eligible voters, but they merely relied on the oral evidence of the witnesses (eligible voters), without tendering their voters’ cards.

It is not within the competence of any witness to adduce oral evidence of the contents of a document. Allowing a witness to give oral evidence of the contents of a document offends against the expressed provisions of Section 132(1) of the Evidence Act, Cap 112 of the Laws of Federation of Nigeria 1990.The law is that the totality of evidence has to be evaluated and assessed and that the Judge can not pick and choose the evidence to be assessed. See MOGAJI VS. CADBURY NIG. LTD. (1985) 2 NWLR (PT.7) 393.

On how evaluation by trial court should be done, the Supreme Court, gave the guide line in MOGAJI VS. ODOFIN (1978) 4 S.C. 93 per Fatayi-Williams, J.S.C (as he then was) as follows:

”Before a Judge whom evidence is adduced by the parties before him in civil case comes to a decision as to which evidence he accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on the imaginary scale. He will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side of the scale and weigh them together. He will then see which is heavier, not by the number of witnesses called by each but the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities.”

At page 580 of the printed record, the proceedings reads:

“The petitioner’s counsel says that the electoral officer for Lere Constituency was subpoenaed to produce voters register for Garu, Gure Kahugu and Kayarda Wards.”

The Tribunal at page 583 of the record admitted the Voters Registers for Garu and Kayarda wards produced by P.W.77, Abubakar Sadiq Mohammad, the Electoral Officer for Lere Federal Constituency and marked them as Exhibits “L” and “M” series. It should be noted that P.W.77 was subpoenaed to produce same.

A person who brings forward a document in court in obedience to subpoena cannot be said to have given evidence not to talk of his having capacity to give or tender in evidence the said document particularly when the person served with the subpoena has the option or liberty to cause it to be produced in court through any other person of his choice. It is therefore my firm view that Section 192 of the Evidence Act merely entrusts a subpoena to be issued to a person to deliver to the court a document either personally or through any other person he may consider suitable for the assignment.

Once a document is delivered to the court, the person’s obligation is discharged and can not be sworn nor cross-examined. But the delivery of the document in court in pursuant to Section 192 of the Evidence Act, does not relieve the person who summoned an adverse party to produce the document of the burden of proving the document by having it admitted in evidence by tendering it through a person who has the capacity to do so. See FIMAKINWA VS. UNIBADAN (1992) 7 NWLR (PT.255) 668 at 624 – 625.

From what has been stated above, I hold that there was no credible evidence of eligible voters to prove that they did not vote as pleaded by 1st and 2nd respondents/petitioners. The 1st and 2nd respondents appear to have abandoned their pleadings before the Tribunal.

As P.W.77, Abubakar Sadiq Mohammed was only subpoenaed to produce amongst other things the Register of Voters for Garu and Kayarda wards only. Not being a witness, he was consequently not cross-examined. The Tribunal was therefore in great error to have relied on Exhibits “L” and “M” series when they were not properly and legally in evidence before the Tribunal. Issues 1, 2 and 5 are therefore resolved in favour of the appellants. Consequently Exhibits “L” and “M” series wrongly admitted in evidence are hereby expunged.

The complaint of the learned senior counsel for the appellants of not having been given the opportunity to cross-examine on Exhibits “L” and “M” series while the 1st and 2nd respondents/petitioners were given ample opportunity to cross-examine the appellants’ witnesses was formulated in issue 3 of the appellants’ brief.

Having held that the admission of Exhibits “L” and “M” series was wrong, it will amount to an academic exercise to deal with issue No.3 in details. It suffice to refer to the Supreme Court case of PAM VS. MOHAMMED (2008) 16 NWLR (PT.1112) 1 at 48, where the Supreme Court held that the question of fair hearing is not just an issue of dogma. Whether or not a party has been denied any right to fair hearing is to be judged by the nature and circumstances surrounding a particular case. The crucial determination is the necessity to afford the parties equal opportunity to put their case to the court before the court gives its judgment.

In the instant appeal, while the 1st and 2nd respondents/petitioners were afforded the opportunity to cross-examine appellants’ witnesses on exhibits “L” and “M” series, the appellants were not afforded the same opportunity as can clearly be seen from the record of proceedings. For the reasons stated above, I resolve issue No.3 in favour of the appellants against the 1st and 2nd respondents/ petitioners.

Issues 4 and 6 formulated by the appellants can conveniently be taken together. On issue Nos.4 and 6 learned senior counsel for the appellants stated that the case of the 1st and 2nd respondents/petitioners was that there was no election in Garu and Kayarda wards of the Lere Federal Constituency at all and referred to paragraph 11 of the petition at page 7 of the record of proceedings.

Also in paragraph 12 of the petition at page 8 of the record, the petitioners averred that there was no election as the election materials were brought to the ward collation centre late for the election.

According to the learned senior counsel for the appellants, the 1st and 2nd respondents/ petitioners called a number of witnesses in an attempt to prove that there was no election. The witnesses called included eligible voters whose voters cards were neither tendered nor their names ascertained from any voters’ register and the agents whose party membership cards and the authority to act as agents were also not tendered even though pleaded. He pointed out that the totality of the evidence of the witnesses called is that there were no election in Garu and Kayarda wards of Lere Federal Constituency at all and referred to page 841 of the record.

He also referred to page 841 of the record on the portion of the judgment and contended that the petitioners did not plead and led evidence of over voting or excess votes which were only elicited during cross-examination relied upon to annul the election which is against the rules of pleadings. See AJADI VS. KOLANI (1985) 3 NWLR (PT.12) 248 at 269; ITA VS. EKPEYONG (2001) 1NWLR (PT.695) 587 at No.614 and DINA VS. NEW NIGERIAN NEWSPAPER LTD (1986) 2 NWLR (PT.22) 353.

Learned senior counsel for the appellant submitted that evidence extracted from a party by his adversary during cross-examination can not be used against the party, if the material facts relating to the evidence or denial was not pleaded by the party seeking to make use of it and that relief sought by a party to a suit does not constitute part of the facts in the pleadings.

Learned senior counsel for the appellants at pages 36 – 64 of the appellants’ brief pointed out a number of contradictions. And inconsistencies in the evidence of the witnesses for the 1st and 2nd respondents/petitioners and urged the court to resolve issues 4 and 6 in favour of the appellants. Responding to the submission of the learned senior counsel for the appellants, learned senior counsel for the 1st and 2nd respondents/petitioners argued that over voting relates to votes recorded in excess of the registered voters and not votes recorded in excess of accredited voters.

He further submitted that the Tribunal at no stage made a pronouncement on votes in excess of registered voters citing the case of IRETI K. KWUISE VS. ISA MAWA (2004) FWLR (Pt.191) at PAGE 1555 at 1603 and ALALADE VS. AWODOYIN (1999) 5 NWLR (Pt.604) 529.

It is contended that there are no contradictions whatsoever in the evidence of the witnesses for the 1st and 2nd respondents/petitioners as submitted by the learned senior counsel for the appellants and urged the court to resolve the issues against the appellants in favour of the respondents.

The learned counsel for the 3rd – 81st respondents in their briefs of argument adopted the submission of the learned senior counsel for the appellants and relied on the authority of NASAMU SA’IOU & DRS. VS. ABUBAKAR MALLAM & DRS (2008) 12 NWLR (Pt.1100) 201 at 264 – 265 and urged the court to resolve the two issues, 4 and 6 in favour of the appellants.

At page 847 of the record, the Tribunal in its judgment held inter alia:-

“Furthermore from the evidence elicited from RW7 and RW8 under cross-examination it is apparent that the results declared for the aforesaid Keyarda and Garu wards were in excess of the voters purportedly accredited in Exhibits “L’ and “M” series, being Voters Registers for the said wards.” (underline mine).

With the greatest respect to the Tribunal, I find it difficult to understand how results for Kayarda and Garu could be declared when it is the case of the appellants that election did not hold in the two wards at all.

It is clear from the portion of the judgment quoted above that the Tribunal relied on the evidence elicited from cross-examination on Exhibits “L” and “M” series which I earlier held were wrongly admitted in evidence and the appellants were not afforded equal opportunity of cross-examination as afforded to the 1st and 2nd respondents/petitioners. Also at page 841, the Tribunal referred to the case of OMOBORIOWO VS. AJASIN (2003) 50 WRN 132, in support of its judgment, but it should be noted that the emphasis was on registered voters in that case, but in the instant appeal the Tribunal can not be said to have relied on the evidence of registered voters because there is no evidence that the witnesses who claimed to be eligible registered voters were in fact registered voters because the witnesses merely “stated their numbers while testifying”. There is no evidence as argued by the learned senior counsel for the appellants of comparing “the number stated” with the registered voters admitted in evidence as Exhibits “L” and “M” series. See page 842 of the record of proceeding which reads:

“In this case the petitioner called registered voters who stated their voter’s registration numbers.”

From a careful study of the averments of the 1st and 2nd respondents/petitioners, particularly paragraphs 10, 11, 12, 13 and 14 of the petitioners’ petition, the 1st and 2nd respondents/petitioners’ case was that there was no voting at all at Kayarda and Garu wards of Lere Federal Constituency. However the finding of the Tribunal leading to the nullification of election is that there was over-voting or excess votes particularly in Kayarda and Garu wards, a finding which appears to be at variance with the pleadings.

Applying the decisions in the cases of ITA VS. EKPEYONG (2001) NWLR (PT.695) 587 at 614 – 615 and ISHOLA VS. U.B.N. (2005) 6 NWLR (PT.922) 422 at 438 to the instant appeal, it does not appear that there is credible evidence to support the findings of the Tribunal.

In view of the aforesaid, I resolve issues 4 and 6 in favour of the appellants against the 1st and 2nd respondents/petitioners.

Having considered and resolved issues 1, 2, 3, 4, 5, and 6 in this appeal, I do not consider it necessary to proceed and resolve issues 7 and 8 formulated by the learned senior counsel for the appellants as it will only amount to an academic exercise.

It was held that where an appellate court is of the view that a consideration of an issue is enough to dispose of the appeal, it is not under any obligation to consider all the other issues posed. See ANYADUBA VS. NIGERIAN RENOUND TRADING CO. LTD. (1992) 5 NWLR (Pt.243) 535 at 561; OKONJI VS. NJOKANMA (1991) 7 NWLR (Pt.202) 131 and EBBA VS. OGODO (1984) 1 SCNLR 372.

A trial is not an investigation, and investigation is not the function of a court. A trial is the public demonstration and testing before a court in the case of the contending parties. The demonstration is by assertion and evidence, and the testing is by cross-examination and argument. The function of a court is to decide between the parties on the basis of what has been so demonstrated and tested.

In the light of the aforesaid, I hold that the appeal is meritorious and is hereby allowed. Consequently, the judgment of the National Assembly/Governorship/Legislative Houses Elections Petition Tribunal holden at Kaduna delivered on 28th day of February, 2008 in Petition No. EPT/KD/NA/003/07 is hereby set aside and substituted it with an order affirming the declaration and return of the 1st appellant, Hon. Saudatu A. Sani, as the duly elected member representing the Lere Federal Constituency of Kaduna State by INEC, the 3rd respondent.

I award costs assessed at N30,000.00 to the 1st appellant against the 1st respondent.

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Other Citations: (2009)LCN/3251(CA)