HASSAN ABBA ABDULLAHI v. UMAR YUNUSA MAITSIDAU & ORS.
(2010)LCN/3839(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 2nd day of June, 2010
CA/K/193/08
RATIO
EVIDENCE: DOCUMENTARY EVIDENCE; WHETHER THE MAKER OF A DOCUMENT SOUGHT TO BE TENDERED IS A PERSON INTERESTED IN THE LITIGATION
In Alhaji Musa Ya’u V. Maclean D. M. Dikwa (2001) 8 NWLR (pt 714) 127, this court held that in order to ascertain or determine, whether the maker of a document sought to be tendered is a person interested in the litigation under section 91(3) of the Evidence Act, the circumstance surrounding the making of the document and whether the maker can be said to have an interest of a personal nature, must be examined and ascertained. A person who is not personally interested in the result of litigation cannot be described as one “interested” in the proceedings. A person under official assignment or statutory duties and who has no personal benefit from the outcome of the litigation cannot be said to be a person interested under section 91(3) of the Evidence Act. See also Apena V. Aiyetobi (1989) 1 NWLR (pt 95), H.M.S. Ltd Vs FBN Ltd (1991) 1 NWLR (pt 167) 290, Anyaebosi V. R.T. Briscoe Nig. Ltd (1997) 3 NWLR (pt 59) 84. PER JOHN INYANG OKORO, J.C.A.
JUSTICES:
BABA ALKALI BA’ABA Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
THERESA N. ORJI-ABADUA Justice of The Court of Appeal of Nigeria
Between
HASSAN ABBA ABDULLAHI – Appellant(s)
AND
1. UMAR YUNUSA MAITSIDAU
2. ALL NIGERIA PEOPLES PARTY (ANPP)
3. KANO STATE INDEPENDENT ELECTORAL COMMISSION – Respondent(s)
JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment): This is an appeal from the judgment of the Kano State High Court presided over by Hon. Justice Shehu Atiku which was delivered on 13th May, 2008 in suit No. K/493/07 dismissing the Appellant’s suit as Plaintiff therein. The Appellant’s name was initially submitted to the Kano State Independent Electoral Commission after the first party primaries which produced him as the winner. A petition was submitted to the 2nd Respondent by aggrieved members of the Party over some anomalies in the said primary election which was allegedly held outside the Local Government Area without notice given to all the contestants. The party on the recommendation of the Committee set up to consider the petition rescheduled a fresh primary election and the 1st Respondent emerged the winner. The name of the Appellant was accordingly substituted with that of the 1st Respondent who was screened and cleared by the 3rd Respondent. The Chairmanship election for Makoda Local Government which was subsequently held on the 17th November, 2007 was eventually won by the 1st Respondent who was accordingly sworn-in as the Makoda Local Government Chairman. The Appellant contested the legality of the substitution of his name with that of the 1st Respondent in the light of paragraph 7 of the schedule to the Electoral Regulations of Kano State 2003.
By an originating summons the Appellant sought for the determination of the following questions before the trial court:-
Whether in the light of the provision of paragraph 7 of the schedule to the Electoral Regulations of Kano State, 2003, the All Nigeria Peoples Party can lawfully substitute the name of the Plaintiff with that of the 1st defendant as the party’s Chairmanship candidate for Makoda Local Government Council Election 2007, after the Plaintiff had been screened and cleared by the 3rd defendant.
1. A declaration that the purported substitution/change of the name of the Plaintiff with that of the 1st defendant as the Chairmanship candidate for Makoda Local Government Council Election scheduled for 17th November, 2007, or any other date to which the said election may be postponed, is unlawful and therefore null and void (sic) of no effect.
2. A declaration that the Plaintiff is the Nigeria Peoples Party chairmanship candidate for the Makoda Local Government Council Election Schedule for 17th November, 2007 or any other date to which the said election may be postponed.
3. An order directing the 2nd and 3rd Respondents not to substitute or change in any manner whatsoever, the name of the Plaintiff as the All Nigeria Peoples Party chairmanship candidate for the forth coming Makoda Local Government Council Election.
4. AND for such order or further orders as this court may deem for to make in the circumstance.”
After taking arguments from both counsel in the matter, the learned trial judge in his judgment delivered on 23rd May, 2008, dismissed the Appellant’s claim. Dissatisfied with the stance of the court below, the Appellant filed notice of appeal dated 12th June, 2008 though the date of filing is not apparent on the face of the notice. The said notice contains five grounds of appeal.
In the brief filed by M.N. Duru Esq, of counsel for the Appellant, two issues have been formulated for the determination of this appeal. The two issues are:-
1. Whether or not the learned trial Judge was in error when he held that the Plaintiff had not been cleared by the 3rd defendant when he was substituted by the 2nd defendant notwithstanding the clear provisions of paragraphs 3(1) (2) and (4) of the schedule to the Kano State Electoral Regulation 2003 and the fact that as at the time of the alleged substitution, the period set down by the 3rd Defendant for nomination had closed.
2. Whether or not from the totality of the affidavit evidence before him the learned trial Judge rightly dismissed the plaintiffs claim by placing reliance on Exhibit annexed to the affidavit of the 1st and 2nd Respondents and holding that there was no contradiction in the Evidence of the Respondents.
The learned counsel for the 1st and 2nd Respondents M.L. Ibrahim Esq. however submits three issues as follows:-
1. Whether the lower court was not right when it held that the plaintiff was not cleared by the Kano State Independent Electoral Commission (the 3rd Respondent) before he was substituted with the 1st Respondent.
2. Whether the lower court was not right in holding that the substitution of the Plaintiff was not in breach of paragraph 7 of the schedule to the Electoral Regulation of Kano State 2003.
3. Whether or not from the totality of the evidence before it, the lower court was not right in dismissing the suit and refusing the Plaintiffs prayer.
On his part, the learned counsel for the 3rd Respondent, M.S. Daneji Esq distilled one issue and adopts the 2nd issue of the Appellant also. The said issue formulated states:-
1. Whether the learned Judge was right to have held that the substitution was properly made.
2. The 3rd Respondent adopts issue No. 2 formulated by the Appellant.
From the issues formulated by all the parties in this appeal, it appears to me that this appeal can be properly and effectively determined based on the two issues distilled by the Appellant. I shall therefore determine this appeal based on these two issues.
It was the submission of the learned counsel for the Appellant on the first issue that at no time at all was it ever communicated to the Appellant that he had been disqualified by the screening committee set up by the 3rd Respondent. Instead, the 3rd Respondent by its letter dated 8th November, 2007 clearly indicated that it was not the one that disqualified the Appellant. That from the facts, it is clear that as at the time of the alleged substitution, the Appellant had been cleared and the period for nomination had since closed.
Learned counsel further submitted that by paragraph 4 of the schedule to the Kano State Electoral Regulation, 2003, the screening committee was duty bound to inform a candidate if he was not cleared by the committee and the candidate so informed has a right to appeal to the Electoral Commission if he so desires. More so, that Exhibit MND 5, a document emanating from the 3rd Respondent in response to an inquiry from the Appellant shows that the Appellant was actually screened and cleared by the 3rd Respondent but that it was the 2nd Respondent that knows why he had to be changed. Furthermore, that the legal implication of the failure to inform the Appellant that he was not cleared as required by law is that the Appellant was actually cleared but was subsequently wrongly substituted.
He urged the court to follow the cases of Amaechi V. INEC (2008) All FWLR (pt 409) page 1 and Ugwu V. Ararume (2007) All FWLR (pt 377) 807 and hold that the Appellant was the candidate for the Chairmanship election in Makoda Local Government Area in the election held on 17th November, 2007. He also urged the court to rely on section 16 of the court of Appeal Act end review the evidence and the law before the court to find and hold that the substitution of the Appellant by the 2nd Respondent was wrong and contrary to the provision of the Kano State Electoral Regulation 2003.
On the second issue, the learned counsel for the Appellant contended that Exhibit A1 attached to the affidavit of the 1st and 2nd Respondents contradicts paragraph 7 of the said affidavit in that the said Exhibit dated 2nd October, 2007, purports to be a report of a committee set up to investigate a primary election allegedly conducted by the 2nd Respondent on the 29th October, 2007. Also, that Exhibit C attached to the 3rd Respondents 7 affidavit dated 30th October, 2007 is in conflict with Exhibit C attached to the affidavit of the 1st and 2nd Respondents in that the said Exhibit C attached to 3rd Respondents’ affidavit purports to convey the name of the 1st Respondent as the candidate for the election several days before he was actually nominated since Exhibit C of the 1st and 2nd Respondents’ show that his nomination was held on 4th November, 2007. He urged this court to hold that where there are material contradiction in the evidence of a party, the court should not pick and choose. He cited the cases of Abatan v. Awudu (2004) All FWLR (pt. 236) 215, State v. Yusuf (2007) All FWLR (pt.377) 1001 at 1009 and Onubogu v. State (1974) 1 All NLR. 561.
He also urged this court to hold that Exhibit D was caught by section 91(3) of Evidence Act relying on the case of Owie V. Ighiwi (2005) All FWLR (pt 248) p. 1762. He urged the court to resolve the 2nd issue in favour of the Appellant.
In his reply, the learned counsel for the 1st and 2nd Respondents submitted on the 1st issue that the substitution of the Appellant was not in breach of paragraph 7 (2) of the schedule to the Electoral Regulations of Kano State, 2003. He submitted further, that the name of the Appellant was at no time included among those cleared by the 3rd Respondent to contest the election. Furthermore, that the list of those cleared by the 3rd Respondent to contest the Kano State Local Government Election in 2008 is the list contained in Exhibit D, E or dated 13th November, 2007 and the said list constitute the clearance envisaged under paragraph 7 (3) of the schedule to the Electoral Regulation of Kano state, 2003. He then urged this court to hold that the lower court was right in holding that the Appellant was properly substituted.
The learned counsel for the 3rd Respondent submitted that the Appellant failed to prove that he was screened and cleared as the candidate that would contest for the Chairmanship of Makoda Local Government of Kano State. That Exhibit MND 5 heavily relied upon by the Appellant did not specifically state that he was cleared. Relying on the case of Odunze & Ors V. Nwosu & Ors (2007) 13 NWLR (pt 1050) page 1. Learned counsel submitted that the appellant must succeed on the strength of his case and not on the weakness of the Respondents’ case.
On the issue of closure of nomination, he submitted that it relates only in respect of initial nomination and does not in any way envisage that a candidate cannot be substituted thereafter. Also, that the Appellant was not informed of his disqualification as the screening and clearance have not been concluded. He urged the court to resolve this issue against the Appellant.
It was also the contention of counsel for the 1st and 2nd Respondents on issue 2 that the Appellant’s argument that Exhibit D, E OR F which is the list of cleared candidates forwarded by the 3rd Respondent and addressed to the 2nd Respondent offends section 91 (3) of the Evidence Act and therefore wrongly considered by the lower court is misleading. That the lower court rightly placed reliance on the document because the said document was not made by an interested party and that it was not made in anticipation of a suit or when litigation is pending. He further opined that Exhibits D, E, or F were made by the Kano State Independent Electoral Commission in compliance with the statutory provision that the names of all qualified and cleared candidates must be forwarded to the Political Parties before the date of the election. He referred to the cases of Musa Ya’u V. M. D. M. Dikwa (2001) 8 NWLR (Pt.714) 127, Anyaebosi V. R.T. Briscoe Nig. Ltd (1987) 3 NWLR (pt 59) 84; Bamgboye V. Olusoga (1996) 4 SCNJ 154 and First Bank PLC V. Excel Plastic Industry Ltd (2003) FWLR (pt 160) 1624.
On his part, the learned counsel for the 3rd Respondent submitted that there was no contradiction in the affidavit evidence the Respondents. That the Appellant even at the point of filing this suit before the lower court knew that there was conflicting evidence yet he chose to come by way of originating summons instead of writ of summons. That even when an application was made to call oral evidence, the Appellant objected. The Appellant cannot approbate and reprobate, he concluded and urged this court to resolve this issue against the Appellant.
In determining issue No.1 in this appeal, two paragraphs of the Kano State Electoral Regulations, 2003 call for consideration. The first is paragraph 3 (1), (2), (3) and (4) of the said schedule. It states:-
“3(1) Screening and clearing of candidates for election shall be in accordance with the provision of this regulation.
(2). Screening and clearing of candidates for election under this regulation shall be done by the State Screening Committee as the case may be.
(3). Any person not satisfied with the decision of the State Screening Committee on any matter may appeal to the electoral commission for a review by filling form KN/CF.005 provided by the Commission.
Sub paragraph 4 directs the screening committee to inform a candidate if he was cleaned by the committee and the candidate so informed has a right to appeal to the Electoral Commission if he so desires.
Let me also bring to the fore paragraph 7(2) of the said Regulation so that I can consider them together. Sub paragraph 7(2) states:-
“7(2). No candidate who has been screened and cleared to contest an election shall be prevented from contesting the election for any reason whatsoever or substituted except the candidate dies or voluntarily withdraws his candidature.”
As can be gleaned from these paragraphs, it is clear that the function of screening and clearing of candidates for the election lies with the Screening Committee of the Electoral Body and a candidate not satisfied with any decision of the committee can appeal to the commission for a review. Paragraph 7(2) makes it impossible for a screened and cleared candidate to be substituted except he dies or voluntarily withdraws his candidature. In other words, once a candidate has been screened and cleared, he can no longer be substituted except he dies or voluntarily withdraws from the race. The words of these paragraphs are so clear and do not need any cannon of interpretation.
Thus, in order for a candidate to cross the rubicon, he must scale through two hurdles. He must have been “screened and cleared” by the Committee. Where a candidate was screened but not cleared, he cannot take the benefit of paragraph 7(2) of the regulations. The two exercises must have been concluded as the word “AND” used in the paragraph is conjunctive and not disjunctive. That is to say both must happen before the paragraph becomes applicable. See Alhaji Muhammad Yusuf Vs Olusegun Obasanjo & Ors (2005) 18 NWLR (pt 956) 96 at 178. The complaint of the Appellant in the instant appeal is that he was screened and cleared by the Electoral Body before he was substituted against the provision of the Electoral Regulations aforementioned. The question is, was the Appellant able to adduce evidence before the court below to prove that he was screened and cleared before the substitution was effected? I shall answer this question anon. But before then, let me state here that the cases of Amaechi V. INEC (supra) and Ugwu v. Ararume (supra) which the learned counsel for the Appellant relied upon and urged this court to follow, do not apply in this appeal, except to the extent that a candidate who has been improperly substituted can approach the court to determine whether he was properly substituted in view of section 34(2) of the Electoral Act 2006. The issue in this appeal is not whether the 2nd Respondent gave cogent and verifiable reasons for substituting the Appellant as was the case in the two cases cited above, but the issue is whether the Appellant could be substituted at all in view of the provision in paragraph 7(2) of the Electoral Regulations of Kano State 2003 having been screened and cleared. This takes me to the question I asked a while ago.
In answering that question I shall have recourse to the evidence relied upon by the Appellant. Both at the court below and in his brief before this court, the Appellant relies on Exhibit MND 5 found on page 17 of the record of appeal to say that he was screened and cleared. That Exhibit is a letter from the Secretary of the Screening Committee of the Electoral body to the Appellant in answer to an enquiry made by the Appellant to the Commission. Since this document is germane to the determination of this appeal, I shall reproduce it here since it is also very short. It states in part:-
“Alh. Hassan Abba Abdullahi, No. 2A Audu Beko Way, Kano.
RE-CLEARIFICATION ON MY ANPP CANDIDACY FOR THE CHAIRMANSHIP OF MAKODA LOCAL GOVERNMENT COUNCIL
Refer to your letter of 6th November, 2007 on the above issue. Although you attended screening based on the list submitted by your party, the Commission is advising you to liaise with your party to verify reasons for excluding your name as candidate of Makoda Local Government Chairmanship Election.
Please take note that this is a party affair and not Kano State Independent Electoral Commission (KANSIEC).
Best Regards;
Signed:
Barrister Wade Bashir Isiaku;
Secretary to the Commission.”
Clearly, the Exhibit speaks for itself. The Appellant does not have any other evidence to show that he was screened and cleared except this document. As was rightly pointed out by the learned counsel for the Respondent, the letter does not show that the Appellant was ever cleared by the committee to contest the election. The issue as to whether the 2nd Respondent i.e ANPP gave cogent end verifiable reasons for substituting the Appellant was never raised at the court below and has not been made an issue here and it is not the duty of this court to fish for issue to determine. That is why I said that Amaechi’s case applies here in part.
For the Appellant to succeed in this case, he has to show by credible evidence that he was nor only screened but was cleared to contest the election. Screening and clearance must have taker place before the Appellant could not have been substituted. Having been substituted before he was cleared, I do not think the 2nd Respondent breached paragraph 7(2) of the Kano State Independent Electoral Commission Regulation 2003. As was rightly submitted by the learned counsel for the 3rd Respondent which I agree, the closing date for submission of nomination forms does not mean that the Appellant could not be substituted thereafter provided he had not been screened and cleared. Also, the fact that the Appellant was not informed as to whether he was cleared or disqualified is a clear indication that he was substituted midway into the screening and clearance process. On the whole I agree with the court below that the Appellant was properly substituted as there is no evidence to the contrary. Also, I agree that the Respondents were not in breach of paragraph 3(1) (2) & (4) and 7(2) of the schedule to the Kano State Electoral Regulations 2003. Accordingly, I resolve this issue against the Appellant.
On issue No. 2, I wish to state here that the case before the lower court was the interpretation of paragraph 7(2) of the Schedule to the Electoral Regulation of Kano State 2003. The only question couched for the court to determine in the originating summons states:-
“Whether in the light of the provision of paragraph 7 of the schedule to the Electoral Regulations of Kano State 2003, the All Nigeria Peoples Party can lawfully substitute the name of the Plaintiff with that of the 1st defendant as the party’s chairmanship candidate for Makoda Local Government Council Election 2007, after the plaintiff had been screened and cleared by the 3rd defendant.”
The only evidence presented to the court below which the Appellant relied upon is Exhibit MND 5. Based on this document, the court below held that the Appellant failed to show that he had been cleared to contest the election. I have already upheld this position of the lower court. It is my view that having decided this issue, there appears to be nothing left for this court to consider. The issue as to conflict in dates of some Exhibits was raised at the court below and the need to transfer the case to the general course list so that evidence could be taken to resolve these conflicts but the learned counsel for the Appellant objected and urged the court to determine the issues based on the conflicts observed. On page 33 of the record of appeal the learned counsel for the Appellant states:-
“Mr Duru, The court need not call oral evidence to resolve the conflict if any between the affidavits of the parties. There is law which gives this court power to do so. We refer to the case of Bismillahi V. Yagba East Local Government (2003) FWLR (pt 141) 1939 at 1964 paragraph, FGCA.”
Having lost the opportunity to resolve the alleged conflicts through oral evidence, the Appellant cannot at this stage urge this court to determine same as there is nothing on the record to so guide the court.
On the submission that Exhibits D, E or F offend section 91(3) of the Evidence Act, I hold the view that a document made by the Electoral body in compliance with statutory mandate and not by a person personally interested in the outcome of litigation cannot be said to have been made by a person interested. In Alhaji Musa Ya’u V. Maclean D. M. Dikwa (2001) 8 NWLR (pt 714) 127, this court held that in order to ascertain or determine, whether the maker of a document sought to be tendered is a person interested in the litigation under section 91(3) of the Evidence Act, the circumstance surrounding the making of the document and whether the maker can be said to have an interest of a personal nature, must be examined and ascertained. A person who is not personally interested in the result of litigation cannot be described as one “interested” in the proceedings. A person under official assignment or statutory duties and who has no personal benefit from the outcome of the litigation cannot be said to be a person interested under section 91(3) of the Evidence Act. See also Apena V. Aiyetobi (1989) 1 NWLR (pt 95), H.M.S. Ltd Vs FBN Ltd (1991) 1 NWLR (pt 167) 290, Anyaebosi V. R.T. Briscoe Nig. Ltd (1997) 3 NWLR (pt 59) 84. As I said earlier, the publication of names of cleared candidates by the Kano State Electoral Commission in Exhibits D, E or F pursuant to statutory function cannot be said to have offended Section 91(3) of the Evidence Act, after all, the Appellant did not show the interest of the 3rd Respondent in the matter. It is not enough for a person to allege that a party is interested in the litigation; he must lead evidence to establish that interest. It should not be left to conjecture.
Assuming that the court below relied on Exhibit D to arrive at its decision, I do not even see how it affected the Appellant adversely. For me Exhibit D was made by a person not personally interested in the outcome of the litigation.
Accordingly, this issue is also resolved against the Appellant.
Having determined the two issues against the Appellant, I hold that this appeal lacks merit and is hereby dismissed. I however make no order as to costs.
BABA ALKALI BA’ABA, J.C.A: I have had the privileged of reading in advance, the draft of the leading judgment just delivered by my learned brother, Okoro, J.C.A, I agree with him for his reasons and adopt them as mine and there is nothing which I could usefully add. This appeal is dismissed and the judgment of the Kano State High Court is affirmed. There will be no order as to costs.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I, agree.
Appearances
M.N. DURU Esq. For Appellant
AND
M. L. IBRAHIM Esq.
M. S. DANEJI Esq. For Respondent
