HAASTRUP ADEWALE OLATUNJI V. GBEDE ADEREMI WAHEED & ORS.
(2010)LCN/3613(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of March, 2010
CA/I/EPT/FH/33/08
RATIO
EVIDENCE: BURDEN OF PROOF; ON WHOM DOES THE BURDEN OF PROOF LIE
The burden of proof rests on the party who will fail if no further evidence is produced. Where this is done, the burden of proof shifts on the other party to introduce evidence which if accepted, will defeat the claim of the Petitioner. In effect, the question of burden or onus of proof is not static but shifts. See the case of INTERNATIONAL INSTITUTE OF TROPICAL AGRICULTURE VS. AM RAM AMI AMRANI (1994) 3 N.W.L.R. at 296 where a Plaintiff pleads and relies on negligence by conduct, the onus is on him to prove the acts of the defendant which he alleges to have given rise to the breach of a duty of care. See also OLU AKINFOSILE VS. IJOSE (1960) 5 F.S.C at 192 and AGAGU VS. MIMIKO (2009) 7 N.W.L.R Part 1140 page 342 at 431 paras C-G and 432 paras B-C and Section 137 of the Evidence Act Laws of the Federation of Nigeria 2004. PER MODUPE FASANMI, J.C.A
EVIDENCE: WHO IS THE PROPER PERSON TO TENDER A DOCUMENT
it is the law that the proper person to tender a document is the maker of such document. See LAMBERT VS. NIGERIAN NAVY (2007) 14 W.R.N page 136 at 189-190 lines 35-15. PER MODUPE FASANMI, J.C.A
PROCEDURE: WHETHER ADDRESS OF COUNSEL CAN TAKE THE PLACE OF LEGAL EVIDENCE
It is trite law that no matter how brilliant a Counsel’s address is it cannot take the place of legal evidence: See ARAB BANK LTD. VS. FELLY KEME (NIG) LTD (1995) 6 N.W.L.R Part 387 page 100 at 111. PER MODUPE FASANMI, J.C.A
APPEAL: DUTY OF THE APPEAL COURT NOT TO DISTURB THE FINDINGS OF THE TRIAL COURT
It is not the duty of the Court of appeal to disturb a finding of the trial court unless and until the Appellant can show that the findings are perverse or not supported by evidence. See: BICHI VS. SHEKARAU (2009) 7 N.W. L.R. Part 1140 page 311 at 332 paragraph E and pages 333-335 paragraphs D-B. PER MODUPE FASANMI, J.C.A
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
HAASTRUPADEWALE OLATUNJI Appellant(s)
AND
(1) GBEDE ADEREMI WAHEED
(2) INDEPENDENT NATIONAL ELECTORAL COMMISSION
(3) RESIDENT ELECTORAL COMMISSIONER COMMISSION
(4) ELECTORAL OFFICER, IBADAN NORTH HOUSE OF REPRESENTATIVES FEDERAL CONSTITUENCY
(5) THE RETURNING OFFICER, IBADAN NORTH HOUSE OF REPRESENTATIVES FEDERAL CONSTITUENCY ELECTION Respondent(s)
DELIVERED BY MODUPE FASANMI, J.C.A.: This is an appeal against the ruling and judgment of the National Assembly Election Tribunal sitting in Ibadan Oyo State of Nigeria delivered on the 4th of October, 2007 and 13th December, 2007 respectively.
The brief facts are that the Appellant contested the Ibadan North Federal Constituency election into the House of Representatives held on 28th April 07. The 1st Respondent was declared winner by the 2nd Respondent. The Appellant being dissatisfied with the declaration of the 1st Respondent as the winner of the election filed a petition at the National Assembly Election Tribunal sitting in Ibadan, Oyo State of Nigeria. The Election Tribunal concluded that the Petitioner had failed to prove his petition. It dismissed the petition and affirmed that the certificate from the Arabic and Islamic Training School that is Exhibit 1st RE7 shows that the 1st Respondent was educated up to the Senior Secondary School, the certificate being a testimonial of attendance.
The notice of appeal is at pages 227 to 235 of the record wherein the Appellant filed 17 grounds of appeal and distilled 5 issues for determination. The notice of appeal was filed on 3rd January 2008. 1st Respondent also cross-appealed against the judgment in the notice of appeal dated 2nd January, 2008 of pages 236-238 wherein he filed 3 grounds of appeal and distilled two issues for determination.
In accordance with the rules of Court, parties filed and exchanged briefs.
At the hearing of the appeal, learned Counsel to the parties identified their briefs as follows:
Appellants brief was filed 10th April, 2008. Appellant’s reply brief to the 1st Respondent was filed on 9/1/09 but deemed filed on 13/1/09 Appellant’s/Respondent’s brief to Cross Appellant’s brief was filed on 28/4/08 and Appellants Reply brief to 2nd – 5th Respondents was filed 30/1/09 but deemed filed on 3/3/09.
1st Respondent’s brief of argument was filed on 18/4/08, Cross Appellants brief was filed on 21/4/08 and Cross/Appellant’s reply brief to Appellant/Respondent’s brief was filed on 2/5/08.
2nd – 5th Respondents brief was filed on 29/4/08.
Learned Counsel to the 2nd – 5th Respondents informed the Court of the preliminary objection embedded in the brief which he sought the leave of the Court to argue. He submitted that the notice of the preliminary objection is given in para 3.00 of the brief at page 1. 2nd – 5th Respondents are questioning the competency of grounds 14, 15 16 & 17 of the appeal in the notice of appeal dated 3rd January, 2008 and the 5th issue for determination. Learned Counsel submitted that being an interlocutory appeal, there is need to obtain leave of this Court when the time has expired. An Appellant may combine interlocutory appeal with the substantive appeal.
Learned Counsel for the 2nd – 5th Respondents submitted that Section 25(2)(a) of the Court of Appeal Act Laws of the Federation of Nigeria, 1990 reads:
(2) The periods for the giving of Notice of Appeal or Notice of Application for leave are:
(a) In an appeal in a civil cause or matter fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
He contended that the Appellant appealed against grant of the 1st Respondent’s application dated 25th September, 2007 to call additional witnesses by the lower tribunal or appealed against the lower Court’s ruling of 4th of Oct. 2007. Learned Counsel for the 2nd – 5thRespondents submitted that Appellant’s notice of Appeal was filed on 3rd Jan. 2008 more than two months after delivery of the said ruling without the leave of this Court. He submitted that there is no pending valid appeal against the said ruling delivered on 4/10/07 in view of the time the notice of appeal was filed. Learned Counsel referred to the cases of B.O.S.LE.C. VS. KACHALLA (2005) All. F.W.L.R Part 518 at 543 paras B-C, ADEBANJO VS. OGUN STATE SPORTS COUNCIL (2005) ALL F.W.L.R Part 279 page 1319 at 1333 paras E-G and Section 51 of the First Schedule to the Electoral Act 2006 which provides as follows:
“Subject to the provisions of this Act, an appeal to the Court of Appeal or to the Supreme Court shall be determined in accordance with the practice and procedure relating to appeal in the Court of Appeal or the Supreme Court as the case may be, as regard being had to the need for urgency on electoral matters.”
He submitted that the Appellant failed to conform with the practice and procedure relating to appeals in the Court of Appeal. He referred to TIAMIYU VS. OLAOGUN (2009) ALL F.W.L.R Part 451 page 960 particularly at pages 976-978 which says that where the time to appeal has expired, Counsel needs an extension of time for leave to appeal. He urged the Court to strike out grounds 14, 15, 16, 17 of the grounds of appeal and issue 5 together with the arguments thereon as they are incompetent.
Learned Counsel for the Appellant in reply submitted that the grounds of appeal relate to unlawful admission of evidence by the lower Court and as such he can appeal as of right. He submitted further that in the above situation, such appeal does not require leave of Court. He referred to the case of OGIGE VS. OBIYAN (1997) 10 N.W.L.R Part 524 at 179. Learned Counsel urged the Court to dismiss the preliminary objection as lacking in merit.
It is the law that an appeal against an interlocutory decision may be included in the appeal against the final decision of the Court. This would help to avoid unnecessary delay in the determination of the main issues joined by the parties in the case. An Appellant who wishes to adopt this procedure may seek the leave of the Court. See the cases of OKEKE VS. PETMAG NIG. LTD (2005) 4 N.W.LR Part 915 page 245 at 261 para F-G. See also ONWE VS. OKE (2001) 3 N.W.L.R (PART 700) PAGE 406 AT 418 per Ejiwunmi J.S.C. of blessed memory where he had this to say:
“I am in entire agreement with the above statement of my learned brother Mohammed J.S.C. It is however desirable to note that the dictum of Uwais C.J.N. in OGIGE VS. OBIYAN quoted above on the requirement of leave in respect of an interlocutory ruling of a trial Court where the Appellant has failed to file his appeal against that pleading within the time stipulated by Section 25 subsection 2(a) of the Court of Appeal Act 1976 is no less valid in its own con. In my humble view therefore, it may be said, that ordinarily where an Appellant failed to appeal against an interlocutory order or ruling of a trial court within the time prescribed by Section 25 (2)(a) of the Court of Appeal 1976, he must obtain the leave of Court for his appeal to be competent. Where on the other hand, the complaint of the appellant against the ruling is concerned with the wrongful admission of evidence or wrongful rejection of evidence, such an appellant would not require the leave of court as the ruling appealed against is not regarded as interlocutory decision. The appellant may therefore include the ground of appeal against that ruling of the trial court when appealing against the final judgment of the trial Court”. Underlining is mine for emphasis.
Applying the above to the instant appeal, and going through grounds 14, 15, 16, 17 and issue 5 the Court observes that the stated grounds and issue 5 relate to unlawful admission of evidence by the lower Tribunal. In the circumstance the Court holds that they are not interlocutory matters which would require leave of the Court as being suggested by the learned Counsel for the 2nd – 5th Respondents. The objection lacks merit. It is overruled and accordingly struck out.
On the substantive appeal, Appellant distilled 5 issues for determination from the 17 grounds of appeal filed. The issues are stated hereunder:
(i) Whether from the pleadings and evidence adduced by the parties in this case the National Assembly Election Tribunal was right to have held that the 1st Respondent was educated up to Senior Secondary School Certificate on the basis of the Certificate of the Islamic and Arabic Training School i.e Exhibit 1st RE7.
(ii) Whether in view of the pleadings and evidence of the parties in this case, the Petitioner could not be said to have proved his case.
(iii) Whether the Election Tribunal was right to have failed to take judicial notice that Exhibit 1st RE 7 could not be regarded as a Senior School Certificate in view of the obvious features on it which shows that it is not.
(iv) Whether the Election Tribunal was right when they failed to discountenance the NECO results and allied documents tendered by the 1st Respondent and his witness on the further ground of unreliability, worthlessness and/or impossibility in the light of overwhelming evidence before the Tribunal.
(v) Whether the Election Tribunal was right to have allowed the 1st Respondent to call additional witness and tendered additional NECO documents not listed earlier at the stage it did and whether this has not occasioned a miscarriage of justice.
Learned Counsel for the 1st Respondent distilled two issues from the Appellant’s notice of Appeal for determination as follows:
(i) Whether the lower tribunal was right to have held the 1st Respondent educationally qualified to contest the election, considering the state of pleadings and evidence placed before the Tribunal
(ii) Whether the lower tribunal judicially and judiciously exercised its discretion in the determination of the competing rights of the parties placed before it.
While the learned Counsel for the 2nd – 5th Respondents adopted the two issues formulated by the 1st Respondent.
I will in the determination of this appeal adopt the issues identified by the Appellant but take the issues that are interwoven together. The Respondents issues are therefore subsumed in the Appellant’s issues.
Issues 1 & 2 will be taken together.
It is argued by the Appellant’s Counsel on issue one that the pleadings and evidence of the Appellant and his witnesses on oath was that the 1st Respondent was not qualified to have contested the election because he was not educated up to a School Certificate level. Appellant attacked the document entitled ‘Arabic Secondary School Certificate’ tendered in the proceedings by the 1st Respondent and admitted as Exhibit 1st RE7on the grounds:
(i) That the School from which the document was purportedly obtained is not a government approved school recognized school and also not an. affiliate of the University of Ibadan.
(ii) That the 1st Respondent in his form CF 00l-Exhibit PE2 – his personal information on oath to 2nd Respondent before the election did not supply the period that he attended the school and the location of the school
(iii) That the 1st Respondent did not attend any Arabic and Islamic School, Ibadan and the School could not award any Senior Secondary School Certificate as its equivalent.
(iv) That the 1st Respondent could not have attended the said school in view of the age which he claims.
(v) That the credentials of the above school attached by the 1st Respondent are his recent invention purpose of this petition and this is manifest on the face and appearance of the credentials.
Learned Counsel for the Appellant argued further that a letter dated 23rd May, 07 from the Ministry of Education was tendered and admitted as Exhibit PE 12. The Appellant was not cross-examined by the 1st Respondent on the content of Exhibit PE 12. He submitted that the implication of this is that the averment and evidence are deemed admitted. Learned Counsel for the Appellant cited the decision in The WEST AFRICAN EXAMINATIONS COUNCIL VS. FELIX IWARNE OSHONEBO (2006) 3 N.W.L.R PART 967 PAGE 303 AT 322.
He contended that the Tribunal allowed the 1st Respondent to tender Exhibit 1st RE 7 by reference to the petition. Learned Counsel to the Appellant submitted that he cannot tender it by reference to the petition. He submitted that a decision of a Court is perversed when it ignores the facts or evidence adduced and admitted before it and when considered as a whole amounts to a miscarriage of Justice. In such a situation, an appellate court is bound to interfere with such a decision. He referred to the cases of C.S.S. BOOKSHOP LTD VS. THE REGISTERED TRUSTEES OF MUSHIN COMMUNITY IN RIVERS STATE (2006) 11 N.W.L.R. (Part 992) page 530 at 569, NEPA VS. OSOSANYA (2004) 5 N.W.LR Part 867 page 601 at 624-625 and ONU VS. ODU (2006) 12 N.W.LR Part 995 page 657 at 686.
Replying, learned Counsel for the 1st Respondent argued that the claim of the Appellant that the 1st Respondent did not possess the basic qualification to contest the election because the 1st Respondent did not enter or fill in any educational qualification neither did he claim to have possessed any educational qualification in form CF.001. Exhibit PE2 is misconceived. She submitted that the provisions of Section 65(2)(a) of the 1999 Constitution is that a person shall be qualified to be a member of the House of Representatives if he has been educated up to at least School Certificate level or its equivalent. Learned Counsel for the 1st Respondent contended that Exhibit 1st RE 7 was duly pleaded and was put in issue by both parties. In paragraph 4 (i) of the 1st Respondent’s statement on oath exhibit 1st RE5 and exhibit 1st RE7 were referred to, attached and marked Exhibit A thereto. Exhibit 1st RE7 was on the list of documents filed by the 1st Respondent. It is therefore not tenable that exhibit 1st RE 7 was not pleaded.
On the submission that the Tribunal was wrong to have admitted exhibit 1st RE7 based on paragraph 9(iii),(vii) and (viii) of the Appellant’s petition and that such admissibility smacks of perversion, learned 1st Respondent’s Counsel further contended that a party is entitled to lead evidence on another’s pleadings. She referred to the cases of SKETCH VS. AJEGBE (1989) 1 N.W.L.R Part 100 at 686 and MOROHUNFOLU VS. K.S.C.T (1986) 4 N.W.L.R. Part 38 at 732. Learned Counsel argued that the admission of Exhibit 1st RE7 cannot in anyway be termed perversed as being canvassed by the Appellant.
On whether exhibit 1st RE7 meets the requirement of Section 65(2)(a) of the Constitution. Learned Counsel urged this Court to uphold the decision of the lower Tribunal on this issue. She relied on the case of OIGAI VS. NANCHANG (2005) ALL F.W.L.R Part 240 at page 41.
The only documentary proof of Appellant’s assertion that the Arabic and Islamic School, Ibadan is not a Government approved School is Exhibit PE12, the letter from the Min. of Education, Oyo State which was tendered by the Appellant who was not the maker of the exhibit and as such the authenticity of the exhibit could not be determined. She contended that even though exhibit PE 12 was allegedly written by a Public Officer, it cannot enjoy the presumption of genuinesss associated with such documents. She cited DAGGASH VS.BULAMA (2004) 14 N.W.L.R Part 892 page 144 at 187 paras F-H Learned Counsel urged the Court to hold that the 1st Respondent was duly qualified to contest the election of 28th April 2007 into Ibadan Federal Constituency of the Federal House of Representative as the lower Court has held Exhibit 1st RE7 to be equivalent of a School Certificate as prescribed by the Constitution.
Learned Counsel urged the Court to resolve the issue in favour of the 1st Respondent and against the Appellant.
Learned Counsel for the 2nd – 5th Respondents submitted in his brief that the burden of proof is on the Appellant and he has failed to show that Exhibit 1st RE7 is not a School Certificate or its equivalent. Exhibit PE 12 was not tendered through the maker and the person who tendered it could not be cross-examined on it. The lower Court could not have attached any probative value to Exhibit PE 12. Learned Counsel referred to the case of LAMBERT VS. NIGERIAN NAVY (2007) 14 W.R.N page 136 at 189-190 lines 35-15. Exhibit PE12 having no probative value, Exhibit 1st RE7 stands as meeting the requirement of Section 65 (2) (a) of the Constitution. He urged the Court to resolve the issue against the Appellant.
The burden of proof rests on the party who will fail if no further evidence is produced. Where this is done, the burden of proof shifts on the other party to introduce evidence which if accepted, will defeat the claim of the Petitioner. In effect, the question of burden or onus of proof is not static but shifts. See the case of INTERNATIONAL INSTITUTE OF TROPICAL AGRICULTURE VS. AM RAM AMI AMRANI (1994) 3 N.W.L.R. at 296 where a Plaintiff pleads and relies on negligence by conduct, the onus is on him to prove the acts of the defendant which he alleges to have given rise to the breach of a duty of care. See also OLU AKINFOSILE VS. IJOSE (1960) 5 F.S.C at 192 and AGAGU VS. MIMIKO (2009) 7 N.W.L.R Part 1140 page 342 at 431 paras C-G and 432 paras B-C and Section 137 of the Evidence Act Laws of the Federation of Nigeria 2004.
In the instant case, the Appellant who asserted that the 1st Respondent was not qualified to have contested the election of 28th April, 2007 because he was not educated up to a School Certificate level has the evidential burden of proving this fact on the pleadings and evidence placed before the Tribunal.
Appellant averred in paragraphs 9(v), 10 and 23 of his petition thus:
9(v) “…while Arabic Islamic Training School is not a Government approved institution as it has no record in the Oyo State Ministry of Education…”
(10)” …The 1st Respondent by the information on oath supplied to the 2nd Respondent is not qualified to contest or is disqualified, from contesting the April 28th House of Representatives election for Ibadan North Federal Constituency”.
Para 23 – “Your Petitioner states further that the information presented to the 2nd Respondent by the 1st Respondent to enable him contest the House of Representatives election afore are either forged or not correct”.
In para 2(b) and G(iii) of Appellant’s reply to the 1st Respondent’s Reply as follows:
2(b) “The 1st Respondent did not submit his credentials or any Senior Secondary School Certificate Examination result to the 2nd Respondent as he had none and did not claim to have any at all times material to the election in issue”
2G(iii) “The N.E.C.O result slip attached by the 1st Respondent does not belong to him but another person”.
In proof of the above averments. Appellant tendered Exhibit PE2 i.e CF 001. The form is at pages 42-47 of the record and under the column of educational institutions attended it is written therein “Arabic and Islamic Training School” The Certificate tendered in respect of the Arabic and Islamic Training School is exhibit 1st RE7. In the said exhibit 1st RE7, it is clearly stated thus:
“This is to certify that Waheed Aderemi Gbede has successfully passed the Senior Secondary School Examination of this School during 1986 CE (—AH) Academic Session. He has therefore been awarded this Certificate with VERY GOOD”
In the instant case, parties have joined issues on the averments in the pleadings. The crux of the appeal is mainly on Exhibit 1 RE7 i.e educational qualification of the 1st Respondent. A recourse has to be made to the provision of the Constitution on the educational qualification for election as a member of the House of Representatives. Section 65(2) (a) of the 1999 Constitution provides that such candidate must ‘have been educated up to at least School Certificate level or its equivalent’.
What is the equivalent of School Certificate Level?
Section 318 subsection 1 of the 1999 Constitution provides the answer under the Section, School Certificate or its equivalent means:
(a) A Secondary School Certificate or its equivalent or Grade II Teacher’s Certificate, the City and Guilds Certificate or
(b) Education up to Secondary School Certificate Level or
(c) Primary Six School Leaving Certificate or its equivalent and,
(d) Any other qualification acceptable by the Independent National Electoral Commission.
The Arabic and Islamic Training School which is exhibit 1st RE7 was filled in form CF 001 i.e Exhibit PE2. It was submitted to Independent National Electoral Commission i.e 2nd Respondent. 2nd Respondent accepted it. Going by Section 318 subsection l(d) of the 1999 Constitution, since Independent National Electoral Commission has accepted Exhibit 1st RE7,that ends the matter. There is no evidence that 1st Respondent cannot read or write or that he is an illiterate. It is the duty of the Ministry of Education to determine the equivalent of a School Certificate. Exhibit PE12 which was written from the Ministry of Education was not tendered by the maker. Since the maker did not testify, Exhibit PE12 could not be subjected to cross examination to enable the Court determine the authenticity or genuiness of it. Exhibit 1st RE7 i.e the Arabic and Islamic Training School therefore fits into Section 318 subsection 1(d) which says:
“Any other qualification acceptable by the Independent National Electoral Commission”
When the Court of Appeal was faced with a similar dilemma, it had this to say in the case of HASKE VS. MAGAJI (2009) All F.W.L.R Part at 905 paras B-C particularly paras D-F.
Oredola J.C.A. had this to say:
“Thus, in a number of decided cases, this Court held that the meaning or definition of level of School Certificate or its equivalent as contained under Section 318 of the 1999 Constitution can accommodate candidates who woefully failed in their bid to obtain a West African School Certificate. They are described as W.A.S.C ‘attempted’ or ‘failures’. In essence, a candidate need not to have obtained the Secondary School Certificate level or passed the Secondary School Certificate examination. It is sufficient that such a person has attended a Secondary School level without passing and obtaining the certificate”
This view is further reinforced in the case of BAYO VS. NJIDDA (2004) F.W.L.R Part 192 at 10 or (2004) 8 N.W.L.R Part 876 at 544 where His Lordship Ogbuagu J.C.A (as he then was) stated thus:
“in other words as regards a Secondary School Certificate level, one does not have to pass the Secondary School Certificate Examination. It is enough in my view that one attended a Secondary School Certificate level i.e without passing and obtaining the Certificate”
See also IMAM VS. SHERIFF (2005) 4 N.W.L.R. Part 914 at 167 and CHUKWU VS. ICHEONWO (1999) 4 N.W.L.R. Part 600 at 587 and DIGAI VS. NANCHANG (2005) ALL F.W.L.R Part 240 at 41
In view of the contents of the Arabic and Islamic Training School tendered as Exhibit 1st RE7, I hold the view that Exhibit 1st RE7 is an evidence of attendance of the Arabic & Islamic Training School and an equivalent of School Certificate under Section 318 subsection 1(d) of the 1999 Constitution. The Appellant did not invite the maker of exhibit PE12 to testify before the Tribunal to enable the document be tested under cross examination for its genuiness or authenticity. Appellant has therefore failed to prove that the 1st Respondent is not educated up to the level required by law by the judicial interpretations of Section 65 (2) (a) and Section 318 subsection 1(d) of the 1999 Constitution.
Appellant admitted the existence of the Arabic and Islamic Training School by paragraphs 9(iv) and (v) of his pleadings. The only complaint is that it is not a government approved school. In support of this, Appellant tendered exhibit PE 12. The maker was never called to testify before the Tribunal and subjected to cross examination as to the source of his information contained in Exhibit PE 12 written by one D. Y. Ibrahim for the Hon. Commissioner for education. The lower Court could not have attached any probative value to Exhibit PE 12 because it is the law that the proper person to tender a document is the maker of such document. See LAMBERT VS. NIGERIAN NAVY (2007) 14 W.R.N page 136 at 189-190 lines 35-15. The status of an institution is not proved by a mere letter. Appellant ought to have gone further to produce the list or gazette (if any) of the Government approved schools to enable the Tribunal scrutinize such record to see if the Arabic and Islamic Training School is not a government approved institution. In the absence of any record being placed before the Tribunal, the Tribunal rightly held that the Appellant has failed woefully to establish that Arabic and Islamic Training School is not a government approved institution. In the result, the genuineness of Exhibit 1st RE7has not been impugned by the Appellant. The tribunal rightly discountenanced exhibit PE12as it has no probative value even though it was admitted without objection. The onus is on the Appellant to show that the Arabic and Islamic Training School could not award any Senior Secondary School Certificate or its equivalent.
The provision of the Evidence Act is very clear, unequivocal and unambiguous on the question of burden or onus of proof. It is not static. It shifts. It is on the party who will lose or fail if no further evidence is called see Section 137 of the Evidence Act. Respondent has no duty to assist the Appellant to prove his case.
Learned Appellant’s Counsel submitted that the Tribunal allowed the 1st Respondent to tender Exhibit 1st RE7 by reference to the petition. He went further that he cannot tender it by reference to the petition filed. I am not inclined to this submission because it is trite law that a party can rely on averment contained in his opponent’s pleading. See LAWRENCE ONYE KAONWU & ORS VS. EKWUBIRI & ORS (1966) 1 ALL N.W.L.R Page 32 at 35 and MORONFOLU VS. K.S.C.T (1986) 4 N.W.L.R Part 38 page 732 at 739 para C-D. See also AGAGU VS. MIMIKO (2007) 7 N.W.L.R Part 1140 page 342 at 433 paras B-F per Abdullahi J.C.A. Petitioner must succeed on the strength of his case and not on the weakness of the defence unless he finds the evidence of the defence which strengthens his case. See JANG VS. DARIYE (2003) 15 N.W.L.R Part 843 at 436 particularly at 467. I therefore hold that the 1st Respondent was duly qualified to contest the election of 28th April 2007 into Ibadan Federal Constituency of the House of Representative & the lower court rightly held exhibit 1 RE7 to be equivalent of a School Certificate as prescribed by the Constitution. It is the Appellant and not the 1st Respondent who has the burden of establishing the allegation by adducing credible evidence before Election Tribunal which he failed to prove. From the above analysis issues 1 & 2 are hereby resolved against the Appellant.
Issue 3
It is argued by the learned Counsel for the Appellant that the issue borders on whether or not the Election Tribunal could take judicial notice that Exhibit 1st RE7 is not a Senior Secondary School Certificate in view of the obvious features of the document. He submitted that the Senior Secondary School Examination educational policies and examination bodies are statutory and subsidiary legislative matters that the Court can take judicial notice of. Learned Counsel to the Appellant referred to the case of BUNGE & 1 OTHER VS. THE GOVERNOR OF RIVER STATE & 5 OTHERS (2006) 12 N.W.L.R Part 995 page 573 at 628-629 where the Supreme Court took judicial notice of the fact that in Rivers State just like any other State of Nigeria, there is a proliferation of autonomous communities, local governments and recognition of chiefs. Learned Counsel for the Appellant submitted that the Honourable Tribunal ought to have taken judicial notice of the fact that only examination bodies conduct Senior Secondary School Certificate Examination in Nigeria. He urged the Court to hold that the Election Tribunal was wrong in this regard and the decision should be set aside. He urged the Court to resolve the issue in favour of the Appellant.
Learned Counsel for the 1st Respondent submitted that the contention of the Appellant that Senior Secondary Examination educational Policies and bodies are statutory and subsidiary legislative matters that the Court can take judicial notice of is not borne out of pleadings and so they go to no issue. She argued that it is not the duty of Courts to speculate on possibilities which are not supported by any evidence Learned Counsel urged the Court to resolve this issue against the Appellant.
Learned Counsel for the 2nd – 5th Respondents argued that the Appellant did not comply with Section 74 (3) of the Evidence Act by not calling upon the Court to take judicial notice of any specific legislation which he wanted the Court to take judicial notice of and also did not provide such book, legislation or document which may be necessary for the Court to do so. Learned Counsel urged the Court to resolve the issue against the Appellant.
The facts of which a court must take judicial notice are well spelt out in Section 74 of the Evidence Act, 1990. Generally speaking, the Court will take judicial notice of all facts which are notorious. For example the number of days in a particular month of the year and the fact that a particular day was a Sunday. In WACHUKU VS. WACHUKU, unreported, Ibadan Civil Suit no. 1/108/70 in July 30, 1970 the Court took judicial notice of the civil war as a matter of public history. I quite agree with the Learned Counsel for the 1st Respondent’s submission that the contention of learned Appellants Counsel that educational policies and bodies are statutory and legislative matters that the Court can take judicial notice of is not borne out of pleadings and so they go to no issue. Election Tribunal could not have taken judicial notice of the features of Senior Secondary School Certificate or that the School in issue cannot award a Senior Secondary School Certificate of its own because they are not notorious and again in view of Section 74 subsection (3) of the Evidence Act Laws of Nigeria 1990 which states:
“If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.”
In the instant case, Appellant did not call upon the Court to take judicial notice of any specific legislation which he wanted the Court to take judicial notice of and did not provide such book, legislation or gazette which it may consider necessary to enable it do so. It is not the duty of the Court to determine the equivalent of a School Certificate. It is the duty of the Ministry of Education to determine the equivalent of School Certificate. The author of Exhibit PE12 from the Ministry of Education was never called to testify before the Election Tribunal and subjected to cross examination as to the source of his information.
There is no pleading or evidence that 1st Respondent is an illiterate. It is trite law that no matter how brilliant a Counsel’s address is it cannot take the place of legal evidence: See ARAB BANK LTD. VS. FELLY KEME (NIG) LTD (1995) 6 N.W.L.R Part 387 page 100 at 111. Issue 3 is also resolved against the Appellant.
Issues 4 & 5 will be taken together as they are interwoven.
Learned Counsel for the Appellant contended that the grant of the 1st Respondent’s application dated 25th September, 2007 to call additional witness and to tender documents after the Petitioner had closed his case occasioned miscarriage of justice. The application according to learned Counsel for the Appellant sought discretion of the Court but did not disclose sufficient facts why it was not brought timeously before the time.
He submitted that the Tribunal did not exercise its discretion judiciously and judicially and that the granting of the application has caused injustice to the Appellant.
Learned Counsel for the Appellant argued that the lower Tribunal ought to have further discountenanced the N.E.C.O exhibits tendered by the 1st Respondent on the ground that the documents are unreliable, worthless and mere fabrication. This is because there are pieces of evidence on record that render the N.E.C.O exhibits worthless. He urged the Court to resolve the issues in the Appellant’s favour.
Learned Counsel for the 1st Respondent submitted that the Tribunal granted the said application on the ground that the Appellant’s reply at pages 91-97 of the Records to 1st Respondent’s reply to the petition (pages 78-90) was over reaching and since the 1st Respondent did not have further right of rebuttal to the said Appellant’s reply, the Tribunal allowed the 1st Respondent to call (1st RW1) and tender the additional documents (Exhibits) 1 RE2 to RE6). She contended further that from the decision of the lower Tribunal, Exhibits IRE2 to IRE6 did not substantially affect the case of the Appellant as put forward by him. She urged the Court to discountenance the Appellant’s Counsel submission. She referred to the cases of DAGAI OF DERE VS. DAGAI OF EBWA (2006) All F.W.L.R Part 306 page 829 at 830 paras B-G and AGBI VS. OGBEH (2006) All F.W.L.R Page 941 at 963-964 paras F-A.
She argued further that an Appellate Court cannot querry the exercise of discretion of a lower court except where it is shown that the lower court did not exercise its discretion judicially and judiciously. She urged the court to resolve the issues against the Appellant.
Learned Counsel for the 2nd – 5th Respondents in his argument submitted in the same vein with the 1st Respondent’s Counsel and urged the Court to resolve the issues in favour of the Respondents and againstthe Appellant.
Paragraph 4 of the Practice Direction 2007 gives the Tribunal the direction to allow documents not filed along with the reply to be tendered in evidence at the hearing provided the Applicant shows exceptional circumstances Again Section 43 subsection 1 of the first schedule to the Electoral Act 2006 provides:
“The Tribunal or Court shall have power subject to the provisions of section 141 of this Act and paragraph 14 of this schedule, to enlarge time for doing any act or taking any proceedings in such terms (if any) as the justice of the case may require except otherwise provided by any other provision of this schedule.”
The Tribunal at pages 181s 5 – 6 had this to say:
“It is crystal clear from the above that the petitioner in his reply to the 1st Respondent’s reply introduced new facts, new witnesses and new document Exhibit ‘PE1’ hither to contained in the original petition. It is beyond argument that the Practice Discretion, 2007 made no provision for the 1st Respondent to reply to the new issues introduced by the petitioner in paragraph 2 G (i – iv) of his reply to the 1st Respondent’s Reply.
Therefore, in the interest of justice, this tribunal ought to allow the 1st Respondent’s application, more so when P.W.1 was never cross-examined”
I have perused the affidavit in support of the application of 25th September, 2007, the Appellant’s counter- affidavit of 3rd October, 2007 and the 1st Respondent’s further affidavit of 4th October, 2007 and I am satisfied that the reasoning of the Tribunal is quite apt and this court will not interfere with the decision because it is not perverse but based on evidence and the Justice of the case in the circumstance.
Also at page 213, para 2 of the record, the Tribunal found as follows:
“It is our view that Exhibit 1st RES not being one of the certificates presented by the 1st Respondent to the 2nd Respondent to contest the Election in exhibit ‘PE2’, same is hereby discountenanced in the consideration of the educational qualification of the 1st Respondent. In the result, we hold that the evidence adduced by the parties thereof, other documentary evidence admitted in evidence relating thereto (1.e. Exhibit 1st RE2, RE3, RE4 and RE6), as well as the written arguments of learned Counsel for the parties go to no issue.”
From the foregoing, the court is unable to see how the decisions of the Lower Tribunal, Exhibits 1 RE2 to RE6 have affected the case of the Appellant as put forward by him. The grant of the application has not in any way jeopardized the case of the Appellant. It is not the duty of the Court of appeal to disturb a finding of the trial court unless and until the Appellant can show that the findings are perverse or not supported by evidence. See: BICHI VS. SHEKARAU (2009) 7 N.W. L.R. Part 1140 page 311 at 332 paragraph E and pages 333-335 paragraphs D-B.
Having resolved the 5 issues formulated by the Appellant against him, the appeal fails and it is hereby dismissed. The judgment of the Lower Tribunal delivered on 13th December, 2007 is hereby affirmed.
Now to the Cross-Appeal of the 1st Respondent/Cross-Appellant. Two issues were formulated for determination from the three grounds of appeal filed. Learned Counsel for the Cross-Appellant withdrew ground two at the hearing of the appeal. The two issues canvassed by the 1st Respondent/Cross-Appellant are interwoven with the issues formulated by the Appellant/Respondent to the Cross Appeal. The issues have been considered and disposed off in the same appeal No.CA/I/EPT/FH/33/2008. The findings of the Lower Tribunal on the issues are unassailable.
On issue one of the Cross-Appeal, the Lower Tribunal found at page 181s5 -lines 17-19 and page 181s6-1ines 1-2 thus:
” Therefore, in the interest of justice this Tribunal ought to allow the 1st Respondent call additional witnesses in result of the evidence in Exhibit ‘PE1’ which was introduced through his Reply to the 1st Respondent’s Reply, more so, when P.W.1 was never Cross-Examined.”
And in the last paragraph of page 181s6 of the record the Tribunal held:
“In the final result, we find the reason given by the 1st Respondent/Applicant in the supporting affidavit quite cogent and satisfactory to constitute exceptional circumstances to warrant the Tribunal to exercise its discretion in favour of the 1st Respondent. We find the Application meritorious and hereby grant the application as prayed.”
The grant of this application paved way for the tendering of the Cross-Appellant’s N.E.C.O. result which the Tribunal after due consideration discountenanced.
Issue one is dependent on issue 2. Where as in this case issue two which borders on the N.E.C.O. result has been discountenanced, the issue of granting the application to call additional witness to tender the N.E.C.O results also fails.
Finally the Cross-Appeal lacks merit and it is hereby dismissed accordingly. There shall be no order as to cost. Each party to bear his own cost.
STANLEY SHENKO ALAGOA, J.C.A.; I read before now the judgment just delivered by my brother Modupe Fasanmi, J.C.A and I agree that the appeal lacks merit and should be dismissed. I also dismiss same and affirm the judgment of the lower tribunal delivered on the 13th December, 2007. I also dismiss the cross Appeal as lacking in merit and abide by the order on costs contained in the lead judgment.
CHIDI NWAOMA UWA, J.C.A.: I had a preview of the Judgment just delivered by my learned brother M. Fasanmi, J.C.A.
In the main appeal all the issues were comprehensively dealt with and I adopt same as mine. I also dismiss the appeal and affirm the judgment of the Tribunal delivered on 13/12/07.
Similarly I dismiss the Cross-Appeal for lacking in merit and abide by the order awarding no costs.
Appearances
O. A. Dare;
M. O. Ebire and
Miss. E. O. OdanyeFor Appellant
AND
F. B. Aladeniyi (Mrs.)
W. A. OlajideFor Respondent
