Yusuf Mohammed Anka & Anor V. Abdulaziz Yari Abubakar & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

BABA ALKALI BA’ABA, J.C.A.

This appeal is against the decision of the Zamfara State Election Petition. Tribunal in Petition No. EPT/ZMS/GS/HR/15/2007, holden at Gusau, Zamfara State filed on 21/5/2007 by the 1st and 2nd appellants who were the petitioners against the 1st and 2nd respondents. The 1st appellant, Yusuf Mohammed Anka, was sponsored by the 2nd appellant, Peoples Democratic Party (PDP) while the 1st respondent, Abdulaziz Yari Abubakar, was sponsored by the 2nd respondent, All Nigeria Peoples Party (ANPP) respectively to contest for the office of member representing Talata Mafara/Anka Federal Constituency in the House of Representatives at’ the April 21st 2007, National Election conducted by the 3rd – 5th respondents.

According to the appellants the 1st respondent was indicted for embezzlement and fraud by the Administrative panel of Inquiry on alleged corrupt practices by some public officers and other persons as contained in the Government White Paper

At the end of the said election the 1st respondent was returned by the 3rd – 5th respondents as elected.

Aggrieved by the declaration and return of the 1st respondent as the winner of the said election, having scored the highest number of lawful votes at the election. The appellants filed a petition referred above challenging the declaration and return of the .1st respondent. The appellants’ petition accompanied by statements on oath of witnesses are contained at pages 2-24 of the record.

The 1st and 2nd respondents in response to the petition, filed a joint reply with statements on oath to which exhibits were attached at pages 53 – 64 of the record. The 3rd – 5th respondents also filed a reply to the petition supported by statements on oath at pages 186 – 190 of the record. The appellants filed a reply to the 1st and 2nd respondents’ reply which is at pages 142 – 143 of the record.

At the pre-hearing conference, all the parties in the petition, agreed that the issue for determination was whether the 1st respondent was at the time of the election not qualified to contest the election and whether the election was invalid by reason of non-compliance with the provisions of the Electoral Act, 2006. At the hearing of the petition, the appellants who were the petitioners called, witnesses and tendered documents in support of their case while the 1st and 2nd respondents tendered a document in evidence but did not call any witness. The 3rd – 5th respondents also called one witness but did not tender any document in evidence.

In a reserved and considered judgment delivered on 24/8/07, the Tribunal dismissed the appellants’ petition when it held at page 284 of the printed record as follows:

“In our conclusion, we see no merit in the petition regarding the disqualification of the 1st respondent from contesting the election an issue in the petition. And having determined this principal issue against the petitioners, we do not see the prayer to be returned as elected to arise in this petition. Even if it does arise, the only evidence that would avail for such order is that the fact of disqualification was of such notoriety in the electorate that the votes cast for him could be considered as wasted. See the case of Alh. Mohammed Daggash vs. Hajia Fati Ibrahim Bulama (2005) All NLWR (Pt246) 1327 at J351 paras. A-G.

The only evidence that could be of public notice and, a fortiori of notoriety to his constituency is Exhibit P1 of Exhibit P, which Exhibit EE has quashed and set aside. The entire petition fails and it is hereby dismissed.”

Being dissatisfied with the said judgment, the appellants filed a Notice of Appeal dated 23/8/07 at pages 286 – 289 of the record, containing five grounds of appeal. The appellants at page 2 of the appellants brief formulated two issues for determination in this appeal as follows:

“(1) Whether or not the 1st respondent was at the time: of the election qualified to contest the election. This issue arises from grounds 1, 2, 3 and 4 in the notice of appeal.

(2) Whether or not there was proper evaluation of and ascription of probative value to the evidence adduced by the petitioners in proof of their petition on ground of non-compliance with the Electoral Act. This issue arises from ground 5 in the notice of appeal.”

The 1st and 2nd respondents at page 3 of their brief also formulated two issues for determination in this appeal as follows:

“(a) Whether from the evidences adduced before the lower Tribunal, the Appellants did indeed and in law proved the two sole issues agreed upon for trial before the lower Tribunal?

(b) Whether considering the evidences placed before it, the lower Tribunal was just and correct in dismissing the Appellants’ petition in its entirety?”

The 3rd-5th respondents did not file any brief. As stated at page ‘274 of the record, the main complaint and the grounds of the petition are contained in paragraphs 3-8 of the petition, that is the statement of claim of the petitioners, as follows:

“3. The petitioners State that the 1st respondent was not qualified to contest the election having been indicted by the Federal Government White Paper of the report of Administrative Enquiry on alleged corrupt practices by some public officers and other persons published in February, 2007.

4. The 1st Respondent further was not qualified to contest the election having not resigned his position as Chairman of the Governing Board of Abdu Gusau Polytechnic, Talata Mafara which Polytechnic is wholly owned by the Zamfara State Government, thirty (30) days before the date of the election of 21st April, 2007.
5. The 1st respondent made confessional Statement to the EFCC and made refunds and reimbursement of some amount of money to the EFCC. The confessional Statements as well as receipts and other documents concerning the refund and reimbursement to the EFCC will be relied upon at the hearing of the petition.
6. The election of the 1st Respondent was marred by irregularities and malpractices in all the Wards; and Polling Units of the two Local Government Areas.
7. The 1st respondent is undergoing trial at the Federal High Court Abuja for offences of embezzlement over which he made the refunds and reimbursements. The 36 count charges will be relied at the trial.
8. The official letter of the Attorney General of the Federation number HAGP/INEC/2007/Vol.II dated 16th March, 2007 confirming the indictment of the 1st Respondent among others is hereby pleaded and will be relied at the trial.” The prayers of the petitioners are as follows:

“1. Your petitioners pray that it may be determined and declared that the 1st Respondent is not qualified to contest the 21st April House of Representatives election having been indicted by the Federal Government White Paper of the Report of administrative Inquiry on alleged Corrupt practices by some Public Officers and other Persons.

2. Your Petitioners; also pray that it be determined and declared that the 1st Respondent having made confessional 1st Statements and made refunds/reimbursement to the EFCC is not qualified to contest the 21st April, 2007. House of Representatives election to the Talata Mafara/Anka Constituency.
3. Your Petitioner also prays that it be determined and declared that the 1st respondent having not resigned his appointment as the Chairman of Governing Board of the Abdu Gusau polytechnic Talata Mafara is not qualified to contest the 21st April, House of Representatives election to the office of Talata Mafara/Anka member of the Federal House of Representatives.
4. Your Petitioner further pray that the 1st Petitioner being the person with the next highest member of votes of 10,935 after the 1st Respondent 83,803 be returned as the duly elected candidate 1st for the Talata Mafara/Anka member of the House of Representatives Talata Mafara/Anka Federal Constituency.”

In response, the 1st and 2nd respondents in what can be considered as statement of defence averred as follows:

“Save and except as hereinafter specifically admitted the 1st and 2nd Respondents deny each and every material allegation of fact contained in the petition as if each were herein set out and traversed seriatim.

1. Paragraphs 1 and 2 of the petition are admitted, while paragraph 5-7 of the petition are denied and the petitioners are put to the strict proof of same.
2. Save that the 1st Respondent was wrongly indicted by the Federal Government White Paper on the Report of on Administrative Panel of Inquiry; the 1st and 2nd Respondents deny paragraphs 3 and 8 of the petition and put the petitioner to the strict proof.
3. In further answer to paragraph 1 of the Petition the 1st and 2nd Respondents state that said white paper has since become ineffective, null, void and of no effect whatsoever having been quashed by the Federal High Court Kaduna Division in its judgment delivered on 20/3/07 in consolidated Suits Nos. FHC/KD/CS/211/07 and FHC/KD/CS/22/07 by the Federal High Court, Kaduna Division in proof of the fact that the said indictment in the white paper had since 20/3/07 been quashed/set aside and that he (1st Respondent) was qualified thereafter to contest and be returned as duly elected at the said election.
4. The 1st Respondent is not a party to any criminal proceedings or charge of 36 counts before the Federal High Court Abuja.
5. The 1st Respondent did not make any confessional statement to the EFCC admitting to committing any fraud. In any event the Respondents shall at the hearing contend that the making of a confessional statement and or refund of any monies to the EFCC is not a ground recognized by the Constitution or the Electoral Act for challenging the election of a candidate by way of a petition and hence this honourable Tribunal lack jurisdiction to adjudicate on this ground.
6. Paragraph 4 of the petition is denied and the petitioners are put to the strict proof of same. In further answer to paragraph 4 the Respondents state that even without resigning as Chairman Governing Board of the Abdu Gusau Polytechnic, Talata Mafara, which is purely an honorary appointment which does not attract any salary, he (1st Respondent) was entitled to contest at the said election: and be returned as elected as he was not a staff of the said institution.
7. The respondents in further answer, to paragraphs 6 of the petition state that the election of 21st April, 2007 in respect of Talata Mafara Anka Federal Constituency was conducted fairly and substantially in compliance with the Electoral Act and guidelines issued there under and any minor infraction that might have occurred did not substantially affect the election.
8. The 1st and 2nd Respondents state that apart from the 1st petitioner and the 1st respondent the Democratic Peoples Party sponsored a candidate for the same office and that the 1st petitioner scored a dismal 10,935 votes only at the election which vote in term of proportion to the total votes cast and spread within the constituency is short of the statutory requirement of 2/3rd that would entitle the petitioner to be returned as duly elected by majority of lawful votes.
9. The Respondents shall further at the hearing urge the honourable Tribunal to strike out/expunge the paragraph 6 of the petition as well as the statement of the following petitioners proposed witnesses for reason of non joinder of presiding officers who officiated at all the polling stations where irregularities malpractices allegedly took place being necessary parties to this petition, namely:-
10. Sani Muhammed A.
11. Samaila Dahiru
12. Muhammed Bello Anka
13. Hamidu Mazuga
14. Haruna Muhammed
15. Abubakar Muhammed.
16. Ibrahim Abubakar
17. Emmanuel Chukwu, and
18. Ummaru Abubakar

WHEREOF the 1st and 2nd Respondents pray that this petition be dismissed for lacking I entirely in merit and being an abuse of the process of this honourable Tribunal.”

The parties having joined issues in their pleadings, hearing commenced and concluded. At the close of the hearing, written submissions I were ordered by the Tribunal and subsequently adopted by the parties.

The respondents formulated three issues for determination by the Tribunal as follows:

“(1) Whether or not the mere fact that the 1st respondent did not resign his office as the Chairman of Governing Board of Zamfara State Council Gusau Polytechnic disqualified him from contesting the election in issue in the petition.

(2) Whether exhibit P of exhibit P1 still awards as a disqualifying factor in view of exhibit “EE”.

(3) Whether or not the acts of irregularity and malpractices alleged in paragraph 6 of the petition substantially affected the result of the election.”

The Tribunal at page 279 of the record held that the Petitioners case is substantially one of disqualification of the 1st respondent because the issue of whether any irregularities affected the outcome of the election is not a feature in the petition thereby limiting the issue for determination to two issues both dealing with disqualification.

I will now proceed to consider the submission of learned counsel to the parties on the disqualification alleged against the 1st respondent. Both counsel to the appellants and the respondents formulated their first issue on qualification or disqualification as already reproduced herein.

On issue number one, it is submitted by Sam Emelu Anosile, Esq., for the appellants who placed reliance on the portion of the judgment of the Tribunal that the 1st respondent was indicted by an Administrative Panel of Inquiry and the indictment was accepted by the Federal Government of Nigeria. He referred to Exhibits “P” and “P1” in support of his submission.

According to the learned counsel for the appellants the document quashed by the judgment of the Federal High Court, Kaduna in suit No. FHC/KD/CS/21/2007 is different from Exhibit “P” and “PI” tendered before the Tribunal by the petitioners/appellants.

It is argued that, that being the case, Exhibits “P” and “P1” still stand as valid and subsisting documents which by virtue of section 66(1)(h) of the Constitution disqualified the 1st respondent from contesting the 21st April, 2007 election to the Federal House of Representatives representing Talata Mafara/Anka Federal House of Representatives Constituency of Zamfara State. Learned counsel for the appellants therefore urged the court to hold that Exhibit “EE” (Federal High Court judgment) did not refer to exhibits “P” and “P1” and to hold that the 1st respondent remains disqualified from contesting the election.

It is further submitted by the learned counsel for the appellants that the position of the law is that he who asserts must prove by evidence and referred to section 135 of the Evidence Act to buttress his submission. He placed reliance on the authority of DR. AUGUSTINE MOZIE & 6 ORS. VS. CHIKE MBAMALU & 2 ORS. (2006) 27 NSCQR 425 at 473; DOUKPOLAGHA VS. ALAMIEYESIGHA (1999) 6 NWLR (PT.607) 502 and a number of other cases in support of their submission.

In conclusion, learned counsel for the appellants urged the court to allow the appeal and resolved issue No.1 in favour of the appellants.

Responding to the submission of the learned counsel for the appellants, Sule Shu’aibu, Esq, for the 1st and 2nd respondents submitted that the issue of the disqualification of the 1st and 2nd respondents, is predicated on the report of the panel of inquiry and the Federal Government White Paper which indicted the 1st respondent relied upon as Exhibits “P” and “P1” has been answered by the 1st and 2nd respondents’ joint reply particularly in paragraphs 3 and 4 of the 1st and 2nd respondents’ joint reply to which exhibit “EE”, the certified true copy of the judgment of the Federal High Court, Kaduna in suit No.FHC/KD/CS/21/2007 was annexed to the reply to the petition. Pointing out that the Federal High Court, Kaduna in the said suit quashed Exhibits “P” and “P1” relied upon by the appellants as petitioners in support of their joint petition.

It is further submitted by the learned counsel for the 1st and 2nd respondents in their joint brief of argument that the appellants as petitioners in their three paragraphs reply dated 8/6/07 contained at pages 142 – 143 of the record as reply to the reply of the 1st and 2nd respondents did not in any way whatsoever raise the issue of doubt or identity of the 1st respondent as the person whose indictment in exhibits “P” and “P1” was quashed as contained in exhibit “EE” relied” upon by the 1st and 2nd respondents. He emphasized that the appellants as petitioners having not raised any issue in their reply regarding the indictment of the 1st respondent are deemed to have admitted the averments of the 1st and 2nd respondents in their joint reply to the appellants/ petitioners’ petition.

On the issue of the non-resignation of the 1st respondent as Chairman Governing Board of the Abdu Gusau Polytechnic, Zamfara State as a result of which the learned counsel for the appellants contended that it rendered the 1st respondent ineligible to contest the election in issue. Learned counsel for the 1st and 2nd respondents, submitted that even though the appellants did not place before the Tribunal, a clear and in equivocal facts or led evidence to the effect that the 1st respondent did not resign his appointment as the Chairman Governing Board of the Abdu Gusau Polytechnic, Zamfara in due time before the election, the 1st and 2nd respondents, in their joint reply denied the assertion which was never rebutted in the reply to the reply of the 1st and 2nd respondents dated 8/6/07 as required by the Electoral Act, 2006, hence the appellants did not discharge the burden of proof placed on them by the provisions of section 135(1) of ‘the Evidence Act. Reference was made to the evidence of the appellants’ witness who on cross-examination said, “No, I did not make any inquiry to find out whether the 1st respondent has filed his letter of resignation. I do not know the last official duty performed by the 1st respondent as the Chairman of the Board, because I am not a member.” See page 205 of the record of proceedings where PW2, Musa Abubakar Natumba, testified. Learned counsel for the 1st and 2nd respondents referred to section 66(1)(f) of the 1999 Constitution of the Federal Republic of Nigeria and urged the court to hold that the 1st respondent as a Chairman of the Board of the Abdu Gusau Polytechnic, Zamfara can not be regarded as being in the employment of the public service of Zamfara State, placing reliance on the, authority of ANTHONY DABA VS. PROF. OLUSOLA ADEYEYE & ORS. (2004) 1 E.P.R 569. Concluding his submission, learned counsel for the 1st and 2nd respondents urged the court to dismiss the appeal.

In its judgment at page 281 – 282 of the record, dealing with the issue of the non resignation of the 1st respondent as the Chairman of the Board of the Governing Council of the Abdu Gusau Polytechnic, Zamfara State observed as follows:

“The next issue is the one relating to the 1st respondent’s chairmanship of the governing council of Abdu Gusau Polytechnic, undisputedly owned by the Government of Zamfara State. The 1st and 2nd respondents dont dispute the office; they only claim that the 1st respondent resigned from the office in due time for the election. Before going into the substance of the claim that the 1st respondent resigned from that office in due time, we like to consider whether the bare assertion that the 1st respondent was the Chairman of the Governing Council of the Polytechnic and never resigned in due time for the election is sufficient to make a case of disqualification even on the pleadings. It is important to point out here that the petitioner has not based the ground on any specific provision of law, even though it would appear, at least for purposes of addressing the issue, that they have section 66(1)(f) of the Constitution of the Federal Republic of Nigeria 1999 in mind. Under that provision, a person is disqualified from contesting an election to the National Assembly if he is employed in the public service of the Federation or the State and has not resigned from that office 30 days before the date of the election. The specific words of the provision are as follows:

“66(1) No person shall be qualified for election to the Senate or the House of Representatives if-

(f) he is a person employed in the public service of the Federation or of any State and has not ‘resigned, withdrawn or retired from such employment thirty days before the date of election. ”

Having regard to the observation of the Tribunal on the issue of the non-resignation of the 1st respondent as the Chairman of the Board of the said Polytechnic, and the pleadings of the parties in the petition, I agree that the appellants as petitioners’ statement of claim is bare and having been denied by the 1st and 2nd respondents, no issue worthy of hearing has been joined by the parties at least on the issue of the non-resignation to warrant the hearing and determination of the Tribunal. A court of law may not be asked to speculate on possibility which are wholly unsupported by evidence. STATE VS. OKOKO (1964) 1 ALL NLR 243; ONWE VS. STATE (1975)9-11 S.C. 103 PARAGRAPH B – C. This court in the case of S.D.C. CEM. (NIG) LTD VS. NAGEL & CO. LTD (2003) 4 NWLR (PT.811) 611 at 639 Paragraphs B – D, inter alia held that a court is not allowed or entitled to embark on conjecture or speculation in deciding a case.

It can not now be disputed that the averments contained in a petition, is the statement of claim of the petitioner while the reply of the respondent or respondents is the statement of defence so one can say that there are pleadings in an election petition and parties are bound by their pleadings and will not be permitted to set out a case different from what they have pleaded. Parties are permitted to make inconsistent averment. However, it is not the law that parties are permitted to make inconsistent assertions on the same question of facts or adduce inconsistent evidence over one and the same issue. See BASILL VS. FAJEBE (2001) 11 NWLR (PT.725) 592 at 610. In the instant appeal, the appellants filed a three paragraphs reply to the reply of the 1st and 2nd respondents i.e. statement’ of defence contained at pages 142 – 143 but failed or neglected to raise the issue of identity of the 1st respondent or difference in the Federal High Court judgment contained in exhibit “EE”.

Instead, the learned counsel for the appellants raised the issue only in the appellants’ brief which is amiably not helpful to the appellants’ case at all.

The Tribunal at page 280 held as follows:

“We have looked at the exhibits and we agree with the respondents’ counsel that Exhibit EE provides a complete answer to the purported indictment of the 1st respondent in Exhibit P1 of Exhibit P, as the latter was quashed and set aside regarding the 1st respondent. The challenge to the qualification of the 1st respondent based on Exhibit P1 of Exhibit P therefore fails and it is hereby dismissed.”

From the portion of the judgment of the Tribunal reproduced above, the pleadings and the evidence adduced by the parties, I am of the view that the judgment of the Tribunal can not be faulted as the main issue before the Tribunal was properly determine in accordance with the law.

Even if the white paper in exhibit “P1” of exhibit “P” had not been quashed as the learned counsel for the appellants strenuously argued in the appellants’ brief though neither supported by the pleadings nor the evidence, still the indictment contained in exhibit “P1” would not have disqualified the 1st respondent from contesting the said election having regards to the recent decisions of the Supreme Court of Nigeria in the cases of AMAECHI VS. INEC (2008) 5 NWLR (PT.1080) 227 at 304 Paragraphs A – E and ACTION CONGRESS VS. INEC 2067 ALL F.W.L.R (PT.378) 1012 at 1024.

It is clear from the decisions of the Supreme Court in the two cases referred to above that before a citizen can be disqualified from contesting an election as a result of an indictment by a Judicial Commission of Inquiry or Administrative Tribunal, even where such an indictment has been published in a White Paper, still such a citizen has to be prosecuted in a court of law and found guilty before he could be disqualified to contest an election under section 66(1)(f) of the 1999 Constitution of the Federal Republic of Nigeria.

In the final analysis, having regard to the aforesaid, I hold that this appeal totally lacks merit and must therefore be and is hereby dismissed.

The judgment of the Governorship and Legislative Houses Election Tribunal, Zamfara State delivered on the 24th day of August, 2007, in Election Petition No. EPT/ZMS/ GS/HR/15/07 is hereby affirmed by me with costs assessed at N30,000.00 in favour of the 1st respondent.

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Other Citations: (2008)LCN/2971(CA)