ALH. KABIR AHMED KOFA & ANOR v. ABUBAKAR LAWAL KAITA & ORS
(2011)LCN/4487(CA)
In The Court of Appeal of Nigeria
On Monday, the 18th day of April, 2011
CA/K/EP/NA/34/2008
RATIO
STATUTORY PROVISION : PROVISION OF SECTION 145 OF THE ELECTORAL ACT AS TO GROUNDS UPON WHICH AN AGGRIEVED MAY QUESTION AN ELECTION OR RETURN OF A CANDIDATE
Section 145 of the Act supra then provides the grounds upon which an aggrieved may question an election or return in the following wordings: ” 145(1) An election may be questioned on any of the following grounds: (a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election.” (b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act; (c) that the respondent was not duly elected by majority of lawful votes cast at the election; or (d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election. (2) An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election which is not contrary to the provisions of the Act shall not of itself be a ground for questioning the election. ” A Petitioner is at liberty to question an election or return on any ground under Section 145(1) (a)-(d) of the Electoral Act 2006. PER JOSEPH TINE TUR, J.C.A.
BURDEN OF PROOF: WHETHER THE PARTY COMPLAINING THAT UNLAWFUL VOTES WERE CREDITED IN FAVOUR OF ONE OF THE CONTESTANTS AT AN ELECTION OR PROPER ACCREDITATION WAS NOT DONE HAS THE BURDEN TO PROVE SUCH ALLEGATION
The law is that he who asserts has the onus of proof. See Section 135(1) (2) and 136 of the Evidence Act 1990; Tsokwa vs UBN (1996) 12 SCNJ 445/4811 Koroowo vs Ogunbambi (1993) 8 NWLR (Pt.313) 627 and Jalico Ltd vs Owoniboys (1995) 4 SCNJ 256. Where the allegation is that unlawful votes were credited in favour of one of the contestants at an election or proper accreditation was not done etc the burden is upon the party complaining to prove the allegations beyond reasonable doubt. See Kingibe vs Maina (2004) FWLR (Pt.191) 1555 at 1588 paragraph A-B; Ogunderu vs Adebayo (1999) NWLR (Pt.608) 684. The burden is on the petitioners because they took the Respondents to the Tribunal for a relief or right hence they had to prove their complaints. See Tangale Traditional Council vs Fawu (2002) FWLR (Pt.117) 1137 at 1165 paragraph B. This is because there is the rebuttable presumption that the result declared by the Returning Officer is correct and authentic until proved otherwise at the Tribunal. The burden of proving otherwise is on the Petitioner. See Omoboriowo vs Ajasin (1934) 15 NSCC 81 at 90. The Court of Appeal has held that the Voter’s Cards alone is not evidence of voting. What is material to prove accreditation is the production of the authentic Voter’s Register concerning the wards or polling units in dispute showing that accreditation and subsequently voting took place at the said election to determine the number that actually voted. This is to ensure there was no over voting at that election. See Awuse vs Odili (2005) All FWLR (Pt.261) 248 at 287-288 paragraphs “H-C”. PER JOSEPH TINE TUR, J.C.A.
ADMISSIBLE EVIDENCE: WHETHER THE ONLY EVIDENCE ADMISSIBLE IN RESPECT OF AN OFFICIAL TRANSACTION REDUCED INTO WRITING, IS THE DOCUMENT CONTAINING THE TRANSACTION OR ADMISSIBLE SECONDARY EVIDENCE THEREOF’
…it is settled, that the only evidence admissible in respect of any official transaction reduced into writing, is the document containing the transaction or admissible secondary evidence thereof’ See Awuse vs Odili (supra) where the Court of Appeal had this to say: “The only evidence admissible in any transaction reduced in to writing is the document containing the transaction and it is not permissible to any part (sic) to seek to prove or contradict such evidence written or document, by oral or affidavit evidence. See Section 132 of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria (1990). Olunlege vs Ajoo Continental Nig. Ltd (1996) 7 NWLR (Pt.458) 27.“ PER JOSEPH TINE TUR, J.C.A.
ELECTORAL MALPRACTICE: CONSEQUENCE OF THE TOTAL NUMBER OF VOTES CAST EXCEEDING THE TOTAL NUMBER OF ACCREDITED VOTERS REGISTERED IN A PARTICULAR POLLING UNIT
It is settled that where the total number of votes cast exceeds the total number of accredited voters registered in a particular polling unit, such situation amount to electoral malpractice. Terub vs Lawan (1992) 3 NWLR (Pt.231) 569. PER JOSEPH TINE TUR, J.C.A.
UNPLEADED DOCUMENTS OR FACTS: EFFECT OF A JUDGMENT BASED ON UNPLEADED DOCUMENTS OR FACTS
A judgment based on unpleaded documents or facts cannot stand. See Ajayi vs Fisher (1956) 1 FSC 90 and Alashe vs Ilu (1965) NMLR 66. PER JOSEPH TINE TUR, J.C.A.
Justice
MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria
Between
1. ALH. KABIR AHMED KOFA
2. PEOPLES DEMOCRATIC PARTY (PDP)Appellant(s)
AND
1. ABUBAKAR LAWAL KAITA
2. ACTION CONGRESS (AC)
3. INDEPENDENCE NATIONAL ELECTORAL C0MMISSION (INEC)
4. RESIDENT COMMISSIONER (REC), KATSINA STATE
5. ELECTORAL OFFICER, KANKIA LOCAL GOVERNMENT AREA
6. ELECTORAL OFFICER, KUSADA LOCAL GOVERNMENT AREA
7. ELECTORAL OFFICER, INGAWA LOCAL GOVERNMENT AREA
8. RETURNING OFFICER KANKIA/KUSADA/INGWA FEDERAL CONSTITUENCY
9. RETURNING OFFICER, KANKIA LOCAL GOVERNMENT AREA
10. RETURNING OFFICER, KUSADA LOCAL GOVERNMENT AREA
11. RETURNING OFFICER, INGAWA LOCAL GOVERNMENT AREA
12. RETURNING OFFICER, SABON BIRNI ‘A’ NUHU PRIM. SCH. POLLING STATION
13. PRESIDING OFFICER, SIBON BIRNI ‘B’NUHU PRIM. SCH. POLLING STATION
14. PRESIDING OFFICER, KOFAR YIMMA ‘I’ YARA OPEN SPACE POLLING STATION
15. PRESIDING OFFICER, KOFAR GABAS K/C/ M/UNGUWA POLLING STATION
16. PRESIDING OFFICER, BAKIN KASUWA PRIM. SCH. POLLING STATION
17. PRESIDING OFFICER, BAKIN KASUWA H/YAMMA POLLING STATION
18. PRESIDING OFFICER, UNG. KANAWA K/G/ M/UNGUWA POLLING STATION
19. PRESIDING OFFICER, KAUYEN DAWA K/G/ M/UNGUWA POLLING STATION
20. PRESIDING OFFICER, K/YAMMA “II’ PRIM. SCH. POLLING STATION
21. PRESIDING OFFICER, B/KASUWA H/YAMMA II PRIM. SCH. POLLING STATION
22. PRESIDING OFFICER, UNG/KANAWA OPEN SPACE POLLING STATION
23. PRESIDING OFFICER, KWARAGO – KWARAGRO PRIM. SCH. POLLING STATION
24. PRESIDING OFFICER, GANDUN KAYA PRIM. SCH. POLLING STATION
25. PRESIDING OFFICER, KANTI ‘A’ PRIM. SCH. POLLING STATION
26. PRESIDING OFFICER, KANTI ‘B’ WORKS DEPT. POLLING STATION
27. PRESIDING OFFICER, TARNO – KUKAR KWAIDA POLLING STATION
28. PRESIDING OFFICER, KAWARI PRIM. SCH. POLLING STATION
29. PRESIDING OFFICER, ABUGIJIKI PRIM. SCHO. POLLING STATION
30. PRESIDING OFFICER, KANTI A2 PRIM. SCH. POLLING STATION
31. PRESIDING OFFICER, KANTI B2 PRIM. SCH. POLLING STATION
32. PRESIDING OFFICER, KANTI ‘B’ WORKS DEPT POLLING STATION
33. PRESIDING OFFICER, RUGAR ALLO K/G/ M/UNGUWA POLLING STATION
34. PRESIDING OFFICER, DAN-NAYAKI ‘I’ PRIM. SCH. POLLING STATION
35. PRESIDING OFFICER, DAN-NAYAKI ‘II’ PRIM. SCH. POLLING STATION
36. PRESIDING OFFICER, UNG. DABO OPEN SPACE POLLING STATION
37. PRESIDING OFFICER, KIRKINI ‘I’ OPEN SPACE POLLING STATION
38. PRESIDING OFFICER, KIRKINI ‘II’ OPEN SPACE POLLING STATION
39. PRESIDING OFFICER, FAKUWA PRIM. SCH. POLLING STATION
40. PRESIDING OFFICER, SALIHAWA ‘I’ & ‘II’ OPEN SPACE POLLING STATION
41. PRESIDING OFFICER, KWANDAWA K/G M/UNGUWA POLLING STATION
42. PRESIDING OFFICER, YAMADE I & II POLLING STATION
43. PRESIDING OFFICER, KOFAR FADA PRIM. SCH. POLLING STATION
44. PRESIDING OFFICER, FANGA PRIM. SCH. POLLING STATION
45. PRESIDING OFFICER, KAUYEN MAINA POLLING STATION
46. PRESIDING OFFICER, UNG. KWARI K/G M/UNGUWA POLLING STATION
47. PRESIDING OFFICER, ZANGON MALABARE K/G M/UNGUWA POLLING STATION
48. PRESIDING OFFICER, YAN YAJI K/GIDAN M/UNGUWA POLLING STATION
49. PRESIDING OFFICER, KAUYEN TOFA K/G M/UNGUWA POLLING STATION
50. PRESIDING OFFICER, DANDORO DAUDU PRIM. SCH. POLLING STATION
51. PRESIDING OFFICER, RUGAR DAUDU PRIM. SCH. POLLING STATION
52. PRESIDING OFFICER, TAIBA – TAIBA PRIM. SCH. POLLING STATION
53. PRESIDING OFFICER, YARLAYA PRIM. SCH. POLLING STATION
54. PRESIDING OFFICER, KOFAR FADA TV CENTRE POLLING STATION
55. PRESIDING OFFICER, RUGAR GYZA K/G/ M/UNGUWA POLLING STATION
56. PRESIDING OFFICER, UNG/TABKI ‘I’ K/GIDAN M/UNGUWA POLLING STATION
57. PRESIDING OFFICER, GACHI PRIM. SCH. POLLING STATION
58. PRESIDING OFFICER, UNG/TABKI ‘II’ K/GIDAN M/UNGUWA POLLING STATION
59. PRESIDING OFFICER, KOFAR FADA II POLLING STATION
60. PRESIDING OFFICER, MACINJIN I & II PRIM. SCH. POLLING STATION
61. PRESIDING OFFICER, UNG/TSA K/GIDAN M/UNGUWA POLLING STATION
62. PRESIDING OFFICER, ASAURARAR DANKAKA K/G M/UNGUWA POLLING STATION
63. PRESIDING OFFICER, ASAURARAR ILU K/GIDAN M/UNGUWA POLLING STATION
64. PRESIDING OFFICER, FAN FARAUTA PRIM. SCH. POLLING STATION
65. PRESIDING OFFICER, TSA YAMMA PRIM. SCH. POLLING STATION
66. PRESIDING OFFICER, TSA GABAS DISPENSARY POLLING STATION
67. PRESIDING OFFICER, TASHAR KARE K/GIDAN M/UNGUWA POLLING STATION
68. PRESIDING OFFICER, TASHAR GAMJI K/GIDAN M/UNGUWA POLLING STATION
69. PRESIDING OFFICER, MALAMAWA K/GIDAN M/UNGUWA POLLING STATION
70. PRESIDING OFFICER, AKUTTAI PRIM. SCH. POLLING STATION
71. PRESIDING OFFICER, MAGAM OPEN SPACE POLLING STATION
72. PRESIDING OFFICER, TSOGAWA OPEN SPACE POLLING STATION
73. PRESIDING OFFICER, KARTAWA OPEN SPACE POLLING STATION
74. PRESIDING OFFICER, DANIYA PRIM. SCH. POLLING STATION
75. PRESIDING OFFICER, MAIDANKO ‘I’ K/G M/UNGUWA POLLING STATION
76. PRESIDING OFFICER, MAIDANKO ‘II’ K/G M/UNGUWA POLLING STATION
77. PRESIDING OFFICER, UNG/SABO K/GIDAN M/UNGUWA POLLING STATION
78. PRESIDING OFFICER, AGALA K/GIDAN NAHAYA POLLING STATION
79. PRESIDING OFFICER, BAJAAWA OPEN SPACE POLLING STATION
80. PRESIDING OFFICER, UNG/DOGO BADOLE OPEN SPACE POLLING STATION
81. PRESIDING OFFICER, UNGUWA LEMU OPEN SPACE POLLING STATION
82. PRESIDING OFFICER, KUNDURU ‘A’ PRIM. SCH. POLLING STATION
83. PRESIDING OFFICER, KUNDURU ‘B’ TV CENTRE POLLING STATION
84. PRESIDING OFFICER, GIDANWAI K/GIDAN M/UNGUWA POLLING STATION
85. PRESIDING OFFICER, GIDAN JAKADA K/G M/UNGUWA POLLING STATION
86. PRESIDING OFFICER, JAUGA PRIM. SCH. POLLING STATION
87. PRESIDING OFFICER, JAKIRI PRIM. SCH. POLLING STATION
88. PRESIDING OFFICER, SALAWA OPEN SPACE POLLING STATION
89. PRESIDING OFFICER, K/YAMMA GYAZA OPEN SPACE POLLING STATION
90. PRESIDING OFFICER, K/GABAS GYAZA OPEN SPACE POLLING STATION
91. PRESIDING OFFICER, GIDAN NADANGO OPEN SPACE POLLING STATION
92. PRESIDING OFFICER, UNG. BAKI OPEN SPACE POLLING STATION
93. PRESIDING OFFICER, DANBAZAMA PRIM SCH. POLLING STATION
94. PRESIDING OFFICER, UNG. MALAM ALI PRIM. SCH. POLLING STATION
95. PRESIDING OFFICER, UNG. M/ALI II DISPENSARY POLLING STATION
96. PRESIDING OFFICER, UNG. NASARAWA ‘I’ K/G M/UNGUWA POLLING STATION
97. PRESIDING OFFICER, ZAKIN BAURE K/G M/UNGUWA PRIM.SCH. POLLING STATION
98. PRESIDING OFFICER, GWAJAWA ‘I’ MOTOR PARK POLLING STATION
99. PRESIDING OFFICER, GWAJAWA ‘II’ OPEN SPACE POLLING STATION
100. PRESIDING OFFICER, DOZA ‘I’ OPEN SPACE POLLING STATION
101. PRESIDING OFFICER, DOZA ‘II’ OPEN SPACE POLLING STATION
102. PRESIDING OFFICER, K/DUTSE PRIM. SCH. POLLING STATION
103. PRESIDING OFFICER, UNG. AUTA RIMAYE PRIM. SCH. POLLING STATION
104. PRESIDING OFFICER, GEMAWA K/GIDAN M/UNGUWA POLLING STATION
105. PRESIDING OFFICER, BINDIGA K/G M/UNG. POLLING STATION
106. PRESIDING OFFICER, DANTSIHUWA YOUTH CENTRE POLLING STATION
107. PRESIDING OFFICER, UNG. NASARE ‘I’ OPEN SPACE POLLING STATION
108. PRESIDING OFFICER, UNG. NASARE ‘II’ OPEN SPACE POLLING STATION
109. PRESIDING OFFICER, UNG. NASARAWA OPEN SPACE POLLING STATION
110. PRESIDING OFFICER, HAYIN KWANTA K/G M/UNG. POLLING STATION
111. PRESIDING OFFICER, SUKUNTUNI ‘I’ PRIM. SCH. POLLING STATION
112. PRESIDING OFFICER, SUKUNTUNI ‘II’ OPEN SPACE POLLING STATION
113. PRESIDING OFFICER, GIDAN GURU PRIM. SCH. POLLING STATION
114. PRESIDING OFFICER, TUDUN WULLI PRIM. SCH. POLLING STATION
115. PRESIDING OFFICER, YANKARI OPEN SPACE POLLING STATION
116. PRESIDING OFFICER, GEMAWA OPEN SPACE POLLING STATION
117. PRESIDING OFFICER, WALAWA OPEN SPACE POLLING STATION
118. PRESIDING OFFICER, SABUWAR DUNIYA PRIM. SCH. POLLING STATION
119. PRESIDING OFFICER, JIGAWA-JIGAWA PRIM. SCH. POLLING STATION
120. PRESIDING OFFICER, RUGAR MIJI K/GIDAN M/UNG. POLLING STATION
121. PRESIDING OFFICER, NASARAWA PRIM. SCH. POLLING STATION
122. PRESIDING OFFICER, KOFAR AREA K/G M/UNG. POLLING STATION
123. PRESIDING OFFICER, KOFAR YAMMA OPEN SPACE POLLING STATION
124. PRESIDING OFFICER, KOFAR GABAS OPEN SPACE POLLING STATION
125. PRESIDING OFFICER, KOFAR KUDU TV CENTRE POLLING STATION
126. PRESIDING OFFICER, DANDAU OPEN SPACE POLLING STATION
127. PRESIDING OFFICER, MASHALLAKE/ZAMBFARAWA P/S POLLING STATION
128. PRESIDING OFFICER, SHAWAJI/BUTTA PRIM. SCH. POLLING STATION
129. PRESIDING OFFICER, SHAWAJI/BUTTA OPEN SPACE POLLING STATION
130. PRESIDING OFFICER, TAFASHIYA ‘I’ PRIM. SCH. POLLING STATION
131. PRESIDING OFFICER, TAFASHIYA ‘II’ PRIM. SCH. POLLING STATION
132. PRESIDING OFFICER, KUSADA UNG. KAYA PRIM. SCH. POLLING STATION
133. PRESIDING OFFICER, KANDARE OPEN SPACE POLLING STATION
134. PRESIDING OFFICER, ISSAWA OPEN SPACE POLLING STATION
135. PRESIDING OFFICER, LABOHAWA (G.MADA) OPEN SPACE POLLING STATION
136. PRESIDING OFFICER, BURTU (K/FADA) TV CENTRE I POLLING STATION
137. PRESIDING OFFICER, BURTU (K/FADA) TV CENTRE II POLLING STATION
138. PRESIDING OFFICER, GIDAN GOGA (ALLODAWA) OPEN SPACE POLLING STATION
139. PRESIDING OFFICER, B/KASUWA TV CENTRE I POLLING STATION
140. PRESIDING OFFICER, B/KASUWA TV CENTRE II POLLING STATION
141. PRESIDING OFFICER, KAIKAI HATABA OPEN SPACE POLLING STATION
142. PRESIDING OFFICER, RADI PRIM. SCH. POLLING STATION
143. PRESIDING OFFICER, MALAMAWA OPEN SPACE POLLING STATION
144. PRESIDING OFFICER, MATARI (RUGAGE) OPEN SPACE POLLING STATION
145. PRESIDING OFFICER, KEBA OPEN SPACE POLLING STATION
146. PRESIDING OFFICER, RUNJI OPEN SPACE POLLING STATION
147. PRESIDING OFFICER, GUNSAWA OPEN SPACE POLLING STATION
148. PRESIDING OFFICER, AGANTA OPEN SPACE POLLING STATION
149. PRESIDING OFFICER, S/GARI UNIG. BAREBARI OPEN SPACE POLLING STATION
150. PRESIDING OFFICER, UNG. LEKO JARUMA OPEN SPACE POLLING STATION
151. PRESIDING OFFICER, GANDAWA OPEN SPACE POLLING STATION
152. PRESIDING OFFICER, DUDDUNI PRIM. SCH. POLLING STATION
153. PRESIDING OFFICER, GIDAN BANGO OPEN SPACE POLLING STATION
154. PRESIDING OFFICER, DUNGURMI OPEN SPACE POLLING STATION
155. PRESIDING OFFICER, RUGAR YA’U OPEN SPACE POLLING STATION
156. PRESIDING OFFICER, ZANGON YASANYA OPEN SPACE POLLING STATION
157. PRESIDING OFFICER, MADAKAWA OPEN SPACE POLLING STATION
158. PRESIDING OFFICER, JOFALAWA OPEN SPACE POLLING STATION
159. PRESIDING OFFICER, GIDAN FAKO OPEN SPACE POLLING STATION
160. PRESIDING OFFICER, TSAUWAWA RUGA OPEN SPACE POLLING STATION
161. PRESIDING OFFICER, YASHE ZANGO OPEN SPACE POLLING STATION
162. PRESIDING OFFICER, HARABA FADA TV CENTRE POLLING STATION
163. PRESIDING OFFICER, YAN DADI OPEN SPACE POLLING STATION
164. PRESIDING OFFICER, KAWARI PRIM. SCH. POLLING STATION
165. PRESIDING OFFICER, DAMARI OPEN SPACE POLLING STATION
166. PRESIDING OFFICER, BAGARI PRIM. SCH. POLLING STATION
167. PRESIDING OFFICER, GIDAN M/DAYA POLLING STATION
168. PRESIDING OFFICER, JERI PRIM. SCH. POLLING STATION
169. PRESIDING OFFICER, MAZOJI OPEN SPACE POLLING STATION
170. PRESIDING OFFICER, SABARAWA OPEN SPACE POLLING STATION
171. PRESIDING OFFICER, MAIJIGIRA OPEN SPACE POLLING STATION
172. PRESIDING OFFICER, MAGAMA OPEN SPACE POLLING STATION
173. PRESIDING OFFICER, SARAN MALAN OPEN SPACE POLLING STATION
174. PRESIDING OFFICER, MAWASHI TV CENTRE POLLING STATION
175. PRESIDING OFFICER, MAKAURACHI PRIM. SCH. POLLING STATION
176. PRESIDING OFFICER, CHAMIYA OPEN SPACE POLLING STATION
177. PRESIDING OFFICER, BARAWA PRIM. SCH. POLLING STATION
178. PRESIDING OFFICER, MAGADAWA OPEN SPACE POLLING STATION
179. PRESIDING OFFICER, YARKISAGO OPEN SPACE POLLING STATION
180. PRESIDING OFFICER, HARABA PRIM. SCH. POLLING STATION
181. PRESIDING OFFICER, DANGAMALI PRIM. SCH. POLLING STATION
182. PRESIDING OFFICER, SABON GARI TV CENTRE POLLING STATION
183. PRESIDING OFFICER, YANZARU OPEN SPACE POLLING STATION
184. PRESIDING OFFICER, DAN BAUTULE (BAURAWA) OPEN SPACE POLLING STATION
185. PRESIDING OFFICER, SIRE OPEN SPACE POLLING STATION
186. PRESIDING OFFICER, GWADABAWA OPEN SPACE POLLING STATION
187. PRESIDING OFFICER, RUGAR MAKADA OPEN SPACE POLLING STATION
188. PRESIDING OFFICER, INGAWAR BEBO OPEN SPACE POLLING STATION
189. PRESIDING OFFICER, S.GARI TV CENTRE POLLING STATION
190. PRESIDING OFFICER, BAURANYA (S/KANYA) P/S POLLING STATION
191. PRESIDING OFFICER, SANTAR DATSAWA OPEN SPACE POLLING STATION
192. PRESIDING OFFICER, KEWAYE (HARABA) OPEN SPACE POLLING STATION
193. PRESIDING OFFICER, MAIRANA PRIM. SCH. POLLING STATION
194. PRESIDING OFFICER, RUGA KOLAWA OPEN SPACE POLLING STATION
195. PRESIDING OFFICER, KOFA TV CENTRE POLLING STATION
196. PRESIDING OFFICER, SABON RAFI OPEN SPACE POLLING STATION
197. PRESIDING OFFICER, KYAFAU PRIM. SCH. POLLING STATION
198. PRESIDING OFFICER, KATOGE OPEN SPACE POLLING STATION
199. PRESIDING OFFICER, SABARU OPEN SPACE POLLING STATION
200. PRESIDING OFFICER, KARASKI OPEN SPACE POLLING STATION
201. PRESIDING OFFICER, SALEMAWA PRIM. SCH. POLLING STATION
202. PRESIDING OFFICER, TUFANI PRIM. SCH. POLLING STATION
203. PRESIDING OFFICER, KUNKUZU OPEN SPACE POLLING STATION
204. PRESIDING OFFICER, KOFA TV CENTRE POLLING STATION
205. PRESIDING OFFICER, KAFARDA PRIM. SCH. POLLING STATION
206. PRESIDING OFFICER, KEWAYE (DANDALI) OPEN SPACE POLLING STATION
207. PRESIDING OFFICER, TAGATSA OPEN SPACE POLLING STATION
208. PRESIDING OFFICER, MAIGAMAWA OPEN SPACE POLLING STATION
209. PRESIDING OFFICER, RUMAWA (TSUGE) OPEN SPACE POLLING STATION
210. PRESIDING OFFICER, KUTUNKAWAR Y/MANAU OPEN SPACE POLLING STATION
211. PRESIDING OFFICER, DARA – DARA PRIM. SCH. OPEN SPACE POLLING STATION
212. PRESIDING OFFICER, GUNKI – GUNKI PRIM. SCH. OPEN SPACE 213. POLLING STATION
PRESIDING OFFICER, SAUDAWA – SAUDAWA P/S POLLING STATION
214. PRESIDING OFFICER, WAILAWA TAUGUDDE KUSA DA FAMFO POLLING STATION
215. PRESIDING OFFICER, KURIGA MAKERA GINDIN FARU POLLING STATION
216. PRESIDING OFFICER, RUNJI GINDIN BEDI POLLING STATION
217. PRESIDING OFFICER, KARKARKO GABAS KARKARKU P/S POLLING STATION
218. PRESIDING OFFICER, KARKARKU TUGE – KARKARKU GARI POLLING STATION
219. PRESIDING OFFICER, BARGUMAWA DAN ALI POLLING STATION
220. PRESIDING OFFICER, ZUCCI RJIYA – ZUCCI POLLING STATION
221. PRESIDING OFFICER, JIGAWA – GINDIN KUKA POLLING STATION
222. PRESIDING OFFICER, KUKI ZUCCI ‘B’ P/S POLLING STATION
223. PRESIDING OFFICER, BAKIN KWARI – BAKIN KWARI POLLING STATION
224. PRESIDING OFFICER, DAUNAKA P/S POLLING STATION
225. PRESIDING OFFICER, SAGARATU – SAGARATU KANYA POLLING STATION
226. PRESIDING OFFICER, YANGOTO GINDIN KANYA POLLING STATION
227. PRESIDING OFFICER, BAUJEN FILANI-BAUJEN FILANI P/S POLLING STATION
228. PRESIDING OFFICER, KANDARE – GANDARE GARI POLLING STATION
229. PRESIDING OFFICER, TUNAS – TUNAS P/S POLLING STATION
230. PRESIDING OFFICER, YARDAUNAKA K/G M/UNG. POLLING STATION
231. PRESIDING OFFICER, DUGUL – DUGUL KARI POLLING STATION
232. PRESIDING OFFICER, SHAMIYA – SHAMIYA POLLING STATION
233. PRESIDING OFFICER, DODDOJI – DODDOJI GARI POLLING STATION
234. PRESIDING OFFICER, AJIKAWA INUWAR KUKA POLLING STATION
235. PRESIDING OFFICER, DUKUMA TV CENTRE POLLING STATION
236. PRESIDING OFFICER, BAYAWA – GINDIN MANGORO POLLING STATION
237. PRESIDING OFFICER, TSAMCINI – TSAMCINI P/S POLLING STATION
238. PRESIDING OFFICER, UDAWA – UDAWA GARI POLLING STATION
239. PRESIDING OFFICER, WANGARAWA – WANGARAWA POLLING STATION
240. PRESIDING OFFICER, YERE – YERE GARI POLLING STATION
241. PRESIDING OFFICER, BADOLE GINDIN KANYA POLLING STATION
242. PRESIDING OFFICER, DUKUMA TV CENTRE POLLING STATION
243. PRESIDING OFFICER, GALADIMAWA BAKIN U.N.B. BANK POLLING STATION
244. PRESIDING OFFICER, GALADIMAWA K/G KEKKEDE POLLING STATION
245. PRESIDING OFFICER, SABON GARI – INGAWA MODEL P/S POLLING STATION
246. PRESIDING OFFICER, ZORORI – ZORORI PRIM. SCH. POLLING STATION
247. PRESIDING OFFICER, ZORORI – ZORORI ADULT EDU. OFF POLLING STATION
248. PRESIDING OFFICER, SABON GARI SOCIAL WELFARE POLLING STATION
249. PRESIDING OFFICER, YAKURUTU – YAKURUTU POLLING STATION
250. PRESIDING OFFICER, DAGAYA – READING ROOM POLLING STATION
251. PRESIDING OFFICER, DAGATA – MAGAMA POLLING STATION
252. PRESIDING OFFICER, KODA-KODA PRIM. SCH. POLLING STATION
253. PRESIDING OFFICER, YANWARI BUJAWA POLLING STATION
254. PRESIDING OFFICER, GAKADIMAWA DAKIN SHAWARA POLLING STATION
255. PRESIDING OFFICER, DANWARI KWAKWAREN DANWARI POLLING STATION
256. PRESIDING OFFICER, KOFAR GABAS HAJIYA AKKA POLLING STATION
257. PRESIDING OFFICER, ZORORI RIJIYAR KAUYEN KUNCHI POLLING STATION
258. PRESIDING OFFICER, SANTAR TSAMIYA (DAGAYA) POLLING STATION
259. PRESIDING OFFICER, ZORORI PRIM. SCH. POLLING STATION
260. PRESIDING OFFICER, S/GARI K/G DANLAMI POLLING STATION
261. PRESIDING OFFICER, JOBE PRIM. SCH. POLLING STATION
262. PRESIDING OFFICER, TSAUWA – TSAUWA P/S POLLING STATION
263. PRESIDING OFFICER, KAKU – KAKU GARI POLLING STATION
264. PRESIDING OFFICER, YARTSARI – YARTSARI POLLING STATION
265. PRESIDING OFFICER, WALAWAL – WALAWAL POLLING STATION
266. PRESIDING OFFICER, WANDAWA – WANDAWA P/S POLLING STATION
267. PRESIDING OFFICER, GANJUWA – GANJUWA P/S POLLING STATION
268. PRESIDING OFFICER, SANKARAWA S/D MANGA P/S POLLING STATION
269. PRESIDING OFFICER, AHAWA – AHAWA GARI POLLING STATION
270. PRESIDING OFFICER, SANKARAWAR GOJE ZANGO P/S POLLING STATION
271. PRESIDING OFFICER, KUNDU WAJE NASARAWA P/S POLLING STATION
272. PRESIDING OFFICER, KURFEJI – KURFEJI P/S POLLING STATION
273. PRESIDING OFFICER, JAMFARE – JAMFARE GARI POLLING STATION
274. PRESIDING OFFICER, TUKUKU DURUMI – TUKUKU DURUMI POLLING STATION
275. PRESIDING OFFICER, DAMTSI – DAMTSI P/S POLLING STATION
276. PRESIDING OFFICER, DAGWALO – DAGWALO P/S POLLING STATION
277. PRESIDING OFFICER, DONDU – DONDU P/S POLLING STATION
278. PRESIDING OFFICER, TUKUKU – S/NAKYALLU P/S POLLING STATION
279. PRESIDING OFFICER, YAN KAURA K/G MAIGAJI POLLING STATION
280. PRESIDING OFFICER, YARMUSHE – YARMUSHE POLLING STATION
281. PRESIDING OFFICER, BASANAKRE K/G M/UNG. POLLING STATION
282. PRESIDING OFFICER, TABANNI K/G M/UNG. POLLING STATION
283. PRESIDING OFFICER, AMALAWA – AMALAWA P/S POLLING STATION
284. PRESIDING OFFICER, YAR BOKA – YAR BAKO P/S POLLING STATION
285. PRESIDING OFFICER, ZANGUNA K/G M/UNG. POLLING STATION
286. PRESIDING OFFICER, S/GM AUDU S/GM AUDU POLLING STATION
287. PRESIDING OFFICER, YALLAWAL K/G M/UNG. POLLING STATION
288. PRESIDING OFFICER, KURFEJI – KURFEJI P/S POLLING STATION
289. PRESIDING OFFICER, BARERUWA GARI – BARERUWA M/RO POLLING STATION
290. PRESIDING OFFICER, GARJAS – GARJAS TSAMIYA POLLING STATION
291. PRESIDING OFFICER, KURA – KURA P/S POLLING STATION
292. PRESIDING OFFICER, GARBAWAR MAI BIRI DANDALI POLLING STATION
293. PRESIDING OFFICER, GARIN FAI GARIN GAI STORE POLLING STATION
294. PRESIDING OFFICER, DAN ASHITAN – DAN ASHITAN P/S POLLING STATION
295. PRESIDING OFFICER, JAMA’AR TAJO – YARA POLLING STATION
296. PRESIDING OFFICER, DAGARAWA – DAGARAWA POLLING STATION
297. PRESIDING OFFICER, RURUMA GAWO – RURUMA GAWO POLLING STATION
298. PRESIDING OFFICER, SHABABEN GARO – RURUMA GAWO POLLING STATION
299. PRESIDING OFFICER, LADAN – LADAN P/S POLLING STATION
300. PRESIDING OFFICER, DAMKAWA – DAMKAWA POLLING STATION
301. PRESIDING OFFICER, DAGARAWA – DAGARAWA POLLING STATION
302. PRESIDING OFFICER, YANDOMA D/DIKORE YANDOMA POLLING STATION
303. PRESIDING OFFICER, WANGARI – WANGARI POLLING STATION
304. PRESIDING OFFICER, KAWANYA – GINDIN DORAWA POLLING STATION
305. PRESIDING OFFICER, ZANGO – GINDIN CHEDIYA POLLING STATION
306. PRESIDING OFFICER, WAKAI – WAKAI P/S POLLING STATION
307. PRESIDING OFFICER, SHAISKAWA – YANDOMA MODEL P/S POLLING STATION
308. PRESIDING OFFICER, MALAMAWA – MALAMAWA POLLING STATION
309. PRESIDING OFFICER, SABON GARI – SABON GARI POLLING STATION
310. PRESIDING OFFICER, GEWAI – GEWAI POLLING STATION
311. PRESIDING OFFICER, GAGAM S/BAKA – GAGAM S/BAKA POLLING STATION
312. PRESIDING OFFICER, ZANGO MATA – ZANGO MATA POLLING STATION
313. PRESIDING OFFICER, GAGAM – GAGAM POLLING STATION
314. PRESIDING OFFICER, KURIGA KAWARI KURIGA POLLING STATION
315. PRESIDING OFFICER, GEWAI – GINDIN BEDI POLLING STATION
316. PRESIDING OFFICER, KAWANYA GINDIN MANGORO POLLING STATIONRespondent(s)
JOSEPH TINE TUR, J.C.A (Delivering the Leading Judgment): The Independent National Electoral Commission (3rd Respondent) conducted elections into the House of Representatives for Kankia/Ingawa/Kusada Federal Constituency in Katsina State on Saturday, 21st April, 2007 and declared the result the same day in favour of ALHAJI KABIR AHMED KOFA (1st Appellant) sponsored by the Peoples Democratic party (2nd Appellant) who had polled 147,600 votes.
ABUBAKAR LAWAL KAITA (1st Respondent) of the Action congress (2nd Respondent) polled 10,399 votes. HON. BRLL. ABUBAKAR DAMBO of the All Nigeria peoples parry (ANPP) polled 6,617 votes.
AMINU SANUSI IMAM of PSP had 65 votes; MUSA ABDULLAHI BOKO of DPP was credited with 271 votes and ABUBAKAR ABDULMALIK of NDP 76 votes respectively. Being aggrieved ABUBAKAR LAWAL KAITA and the Action congress presented a joint petition before the National Assembly Election Tribunal, sitting in Katsina, Katsina State on Monday 21st May, 2007 seeking the following reliefs against the Respondents:
” (B) Your petitioner is exercising his right because he ought (sic) have been return (sic) as the duly elected candidate and shall therefore pray the Honorable Tribunal for the following relief(s);
(a) An order nullifying the entire election held on the 21st April, 2007 more particularly as it relates to the office of member representing Kankia/Kusada/Ingawa Federal constituency of Katsina state at the Federal House of Representative.
(b) An order directing the 3rd to 316th Respondents to conduct a fresh election through out Kankia/Kusada/Ingawa Federal constituency for the purpose of determining the actual winner to the office of member representing Kankiq/Kusada/Ingawa Federal constituency of Katsina state at the Federal House of Representative. ”
The 1st and 2nd Respondents filed a Joint Reply to the petition denying the claims of the petitioner. The 3rd-316th Respondents did likewise. The matter proceeded to trial. At the close of evidence all learned Counsel submitted written addresses. On the 27th day of February, 2008 the Tribunal delivered judgment holding at page 974 lines 1-31 and page 975 lines 1-5 as follows: “In Kusada Local Government Area over voting is few as it is noticeable in only 6 Polling Stations while in Kankia Local Government Area it is in 12 Polling Stations and of course more pronounced in Ingawa Local Government Area with 24.
It is found that over voting and instances where total valid votes exceed the number of persons accredited to vote have affected on the whole about 150 Polling Stations in the 3 Local Government Areas forming the Federal Constituency made up as follows that is to say; In Ingawa 55 Polling Units affected out of 144 Polling Stations. In Kusada 49 out of BI Polling Stations and Kankia 48 out of 134 Polling Stations.
It should be mentioned that it is not just any slight or inconsequential electoral malpractices that will invalidate the result of an election as the law recognizes that non compliance with electoral provisions or commission of electoral offences do occur. They occur in many instances.
But the law is most concerned with the extent, how far and wide they did occur. And also how substantially did they affect the election result. Ojukwu vs Onwudiwe (1984) 1 SCNJ 247 and Awolowo vs Shugari (1979) 6-9 SC 51.
In Dushe vs Bawa (1959) 1 NLPLR 71 the Court held that if the nature of non compliance is such as to give an obvious advantage to one of the parties to the election such non compliance is substantial and unless there is evidence to the contrary has affected the result of the election in favour of the party who enjoyed the advantage and against the party who has suffered a disadvantage.
On the whole, we ask the final question which is whether this non compliance did not and could not have had an impact whatsoever on the election in which case INEC be congratulated for a job well done. The question must be answered in the negative this is so in view of our earlier finding that unaccredited voters formed part of the votes used in declaring the result of the said election which votes we cannot determine. Consequently the proper order to make in the circumstance is to annul the election and order for a fresh election. The election into Kankia/Kusada/Ingawa Federal Constituency held on 21-04-2007 is hereby annulled and INEC is hereby ordered to conduct afresh election within 60 days. ”
Being dissatisfied ALHAJI KABIR AHMED KOFA and the peoples Democratic Party filed a Joint Notice of Appeal on 17-03-2007 containing eleven grounds of appeal seeking that the judgment be set aside and the petition dismissed. See Volume five pages 976 to 999 of the printed record.
The Appellants were later granted leave and they filed an Amended Notice of Appeal with two additional grounds of appeal on 26-06-2009. Briefs were subsequently amended to reflect the additional grounds as well as the Reply briefs filed in response to the 3rd-316th Respondents preliminary objection. N.H. Auta of Counsel also adopted their brief of 08-02-2010.
The Appellants and the 3rd-316th Respondents raised preliminary objection to the competency of the petition, namely, that it was presented outside the 30 days period required by Section 141 of the Electoral Act 2006.
Learned Counsel to the 1st and 2nd Respondents also filed a Reply Brief in respect to 3rd-316th Respondents’ preliminary objection. When the appeal came up on 17-01-2011 for hearing each Counsel adopted their briefs of argument. Learned Counsel to the Appellants formulated the following issues for determination in the Further Amended Appellant’s Brief of Argument No.2:
“1. Whether the Election Tribunal can turn round and rely on Exhibits P1 (a)-(j) to P30 (a) to (f), (the Register of Voters for the various Wards in the Constituency) and the depositions in paragraphs 1(1)-(12); 14; 17; 18-19; 21-22; 25-27; 30-34 of Exhibit P90A (the 1st Respondent/Petitioner’s Additional Witness Statement on Oath) after properly evaluating and rejecting same. (Arising from Grounds 1 and 2 of Appeal).
2. Whether the reliance placed by the Tribunal on paragraphs 1(1)-(12); 14-17; 18-19; 21-22; 25-27; 30-34 of Exhibit P90A (the 1st Respondent/Petitioner’s Additional Witness Statement on Oath) is not erroneous in law and a violation of the Appellant’s right to fair hearing. (Arising from Grounds 3, 4 and 5 of Appeal).
3. Whether the Tribunal can under the guise of doing substantial justice distill and ascertain for itself, the grounds for the petition when no ground has been specified or stated in the petition. (Arising from Ground 6 of Appeal).
4. Whether the findings of the Tribunal that:
“The correct position from the Exhibits before this Tribunal is as follows: In Ingawa 40 Polling Stations had no form of ticking what so ever yet votes were returned thereat. In Kusuda Local Area 32 Polling Stations had not their Register of Voters marked with either single or double tickings. In Kankia Local Government Area the number of Polling Stations without any form of ticking is 17.
From the above it would be seen that in 89 Polling Stations in Ingawa/Kusadu and Kunkia Local Government Areas Voters Register did not show any sign of accreditation yet votes were recorded in – (i) Tafashiya Nasarawa Ward (ii) Guludima ‘A’ Ward (iii) Kunduru/Gyaya Ward (iv) Kalin Sofi Ward (v) Kanfi Dangi/Fakuwa Ward (vi) Gachi Ward (vii) Isu Magam Ward (viii) Guludima ‘B’ Ward among others. In Kusada Local Government Area are 46 Polling Stations where the actual votes cast exceeded the number accredited in the undermentioned Wards namely, Kusada Dunduni Muwashi/Boko/Dangumau Kofu Bauranya ‘A’ Bauranya ‘B’ and Yushe B.” are not erroneous in law, unfounded, speculative and contrary to the earlier clear and proper evaluation of the evidence by the Tribunal (Arising from Ground 7 of Appeal).
5. Whether the findings of the Tribunal that:
“The Petitioners have alleged in their Petition arbitrary award of votes contrary to the actual votes casts which exceeded the number of voters accredited to vote at the election. On our part we find that:- In Ingawo Local Government Areas about 46 Polling Stations have been so affected in the under mentioned Wards that is to say – (i) Dogul (ii) Ingawa (iii) Yandoma (iv) Agayawa (v) Jobe Kandawa (vi) Kukefi Kuuru (vi) Monomarwa Kurfi (viii) Barawa Ruruma (ix) Dara (x) Duunaku (xi) Bidore Yayu.
In Kankia Local Government Area the number of such Polling Stations Units affected is 42 in.”
are not erroneous in law, unfounded, speculative and contrary to earlier clear and proper evaluation of the evidence by the Tribunal (Arising from Ground 1 of Appeal).
6. Whether the findings of the Tribunal that:
“In Kusada Local Government Area over-voting is few as it noticeable in only 6 Polling Stations while in Kankia Local Government Area it is in 12 Polling Stations and of course more pronounced in Ingawu Local Government Area with 24. It is found that Over-voting and instances where total valid votes exceed the number of persons accredited to vote have affected on the whole about 150 Polling Stations in the 3 Local Government Areas forming the Federal Constituency made up as follows that is to say – Inguwa 55 Polling Units affected out of 144 Polling Stations. In Kusada 49 out of 81 Polling Stations und Kankia 48 out of 134 Polling Stations.”
are not erroneous in law, unfounded, speculative and contrary earlier clear and proper evaluation of the evidence by the Tribunal (Arising from Ground 9 of Appeal).
7. Whether the Tribunal was right to annul the election after finding that it “cannot determine” the unaccredited votes used in declaring the result of the election (Arising from Ground 10 of Appeal).
8. Whether the decision can be supported having regard to the weight of evidence.
(Arising from Ground 11 of Appeal).
9. Whether the Tribunal was right to rely on Exhibits P1 (a)-(f) to P30 (a)-(f) to hold that the voters Register did not show any sign of accreditation (Arising from Ground 12 of Appeal).
10. Whether the Tribunal had jurisdiction to entertain the Petition and deliver the judgment having regard to the provision of section 141 of the Electoral Act, 2006. (Arising from Ground 13 of Appeal)'”
The 1st and 2nd Respondents’ learned Counsel adopted all the issues as formulated by the learned Counsel to the Appellants at page 2 paragraph 3.0 – 3.1 of their Brief of Argument.
The 3rd-316th Respondents formulated the following issues for determination:
“(i) whether there is any legally cognizable ground in the petition to sustain it.
(i) Whether the Petitioners established any allegation of irregularity, malpractice or non-compliance that so substantially affected the result of the election as to warrant its annulment. ”
The competency of the Election Petition Tribunal to adjudicate over the petition is raised as issue 10 by the Appellants as follows:
“Whether the Tribunal had jurisdiction to entertain the petition and delivers judgment having regard to the provisions of Section 141 of the Electoral Act, 2006.
(Arising from Ground 13 of Appeal).”
The 3rd-316th Respondents identified the following lone issue for determination:
“The issue for determination is whether this Honourable Court has jurisdiction over this appeal as the petition filed at the Assembly/Governorship and Legislative Houses Elections Tribunal on the 21st of May 2007 was ab initio incompetent for being statute-barred as it was filed outside the thirty (30) days limited by Section 141 of the Electoral Act 2006. ”
The competence to entertain the petition being a fundamental issue that touches on the jurisdiction of the Election Tribunal has to be considered before I delve into the other issues formulated by the Appellants and 3rd- 316th Respondents in the main appeal. Without competence the Tribunal would not have the jurisdiction to entertain the petition. See Kalu vs Odili (1992) 6 SCNJ (Pt.1) 76.
COMPETENCY OF THE PETITION: APPELLANTS’ BRIEF AND ARGUMENT
Learned Counsel to the Appellants argued and cited authorities to show that the petition was presented outside the 30 days period allowed under Section 141 of the Electoral Act, 2006 and was incompetent, namely, Senator Abu Ibrahim & Anor vs Ibrahim Shehu Shema & ors (unreported) Appeal No.CA/K/EP/GOV/28/2008 delivered on 07-01-2009; Patrick Ikharaiale & Anor vs Theophilus Okoh & Ors (unreported) Appeal No.CA/B/BPT/221/2008 delivered on 23-04-2009; Kumalia vs Sheriff (2008) All FWLR (Pt.431) 1032 at 1045-1046 H-D and Ogbebor vs Danjuma (2003) 15 NWLR (Pt.843) 403. The Appeal Court was called upon to determine when the 30 days period started to run and terminate, citing Fadare vs Attorney-General, Oyo State (1982) 4 SC 1; George Akume vs Simon A. Lim then (unreported) Appeal No.CA/J/EP/SN/107/2008 delivered on 16th day of June, 2008 in argument. Counsel further argued that the issue of jurisdiction can be raised at any time even on appeal with or without leave, citing Odofin & Anor vs Chief Agu & Anor (1992) 2 NWLR (Pt.229) 350 at 375; Attorney- General of the Federation & Ors vs Sode & 2 Ors (1990) 1 NWLR (Pt.128) 500 at 538; Onyema vs Oputa (1987) 3 NWLR (Pt.60) 259; Ojokolobo vs Alamu (1987) 3 NWLR (Pt.61) 377 and a host of other decisions. Learned Counsel contended that the words of Section 141 of the Electoral Act 2006 are so clear and unambiguous that sympathy for the Respondent should not be the yardstick in determining this appeal, citing Kraus Thompson Organization vs MIPSS (2004) 17 NWLR (Pt.901) 44 at 60-61 and Buhari vs Yusuf (2003) 14 NWLR (Pt.841) 446.
Learned Counsel submitted that the Appeal Court should declare the proceedings before the Tribunal a nullity.
Without cross-appealing the 3rd to the 316th Respondents also raised the same argument as the appellants, citing Saidu Abdulsalam vs Abdulraheem Salam (2002) 6 SCNJ 388, urging that the petition before the Tribunal should be struck out on the authority of Elabanjo vs Dawodu (2006) 6 SCNJ 204. Counsel urged the Appeal Court to give ordinary meaning to the provisions of Section 141 of the Electoral Act 2006 citing Bakare vs N.K.C. (2007) 17 NWLR (Pt.164) 606 at 621. That this Court should hold that the 30 days period started to run from Saturday the 21-04- 2007 when the election results were declared. Reference was made to Alataha vs Asin (1999) 5 NWLR (Pt.601) 32 at 44 per Salami JCA (as he then was) and Humbe vs Attorney-General and Commissioner for Justice & 1 Or (2000) NWLR (Pt.649) 419-442.
Learned Counsel to the 1st and 2nd Respondents took objection that the 3rd- 316th Respondents had raised the issue of jurisdiction at the Tribunal but on other grounds, not under Section 1st of the Electoral Act 2006. That this was a fresh issue raised without leave of this Court. Reference was made to Jov vs Dom (1999) 9 NWLR (Pt.620) 58 hence the objection should be declared incompetent and struckout, citing Akinyanju vs Unillorin (2005) 7 NWLR (Pt.923) 87 at 113. Counsel submitted that had the issue been raised in the tribunal and over-ruled then the 3rd-316th Respondents could have validly come by way of preliminary objection if they had appealed. That it was too late to raise the issue now, citing Agbakoba vs INEC (2008) 18 NWLR (Pt.1119) 489 at 537-538 paragraph H-A. Counsel contended that in case his objection is over-ruled, computation of the 30 days stipulated for presenting the petition before the lower Tribunal commenced from Saturday 21st April, 2007. But the 30th day was a Sunday hence the petition was filed on Monday, 21st May, 2007 and therefore, within time. It was therefore competent, citing Agbai vs INEC (2003) 14 NWLR (Pt.1108) 417 at 343 and Barrister Mohammed Umaru Kumalia vs Senator Ali Modu Sheriff & 3 Ors (Unreported) Appeal No.CA/J/EP/GOV/244/2007 delivered on 21-01-2008; Yisa vs Orzua (2006) 1 WRN 164 at 175-177. Learned Counsel urged that this objection should be over-ruled and dismissed.
REASONS
The duty of the 3rd-316th Respondents is not to attack the judgment of the Tribunal but to defend it. If they want to do so they should have cross appealed.
In that wise I shall ignore their submissions. See Obi vs INEC (2007) 11 NWLR (Pt.1046) 565 at 673-674 where Mohammed JSC stated the law in the following manner:
“…This Court has stated in so many of its decisions that the traditional role of the respondent to an appeal is to defend the judgment appeal against. If any respondent wants to depart from this traditional role by attacking the judgment appealed against in any manner, that respondent is obliged by the rules of Court to file a cross-appeal. See Lagos-City Council vs Ajayi (1970) 1 All WLR 291; Eliochin (Nig) Ltd & Ors vs Victor Ngozi Mbudiwe (1986) 1 NWLR (Pt.14) 47; and Adefulu vs Oyesile (1989) 5 NWLR (Pt.122) 377 at 417. It is also the law that a respondent to an appeal who neither files a cross appeal nor a Respondent’s Notice, will not be allowed to even file a brief of argument attacking the judgment appeared against or be allowed to present oral argument in the course of the hearing of the appeal. See Oguma vs Associated Companies Ltd vs I.B.N.A. Ltd (1988) 1 NWLR (pt.73) 658 and Kotoye vs Central Bank of Nigeria Ltd (1989) 1 NWLR (pt.98) 419. Therefore without a cross-appeal, the 6th and 7th Respondents are not competent to pray the role of an Appellant they have attempted to pray in this appeal. The effect of the action of these respondents in the present appeal is that all the arguments in their respondent’s brief in support of the case of the Appellant in this appeal shall be ignored in its determination.”
The legislative intention is that petitions should be presented before the Tribunals from the date the result of the election was declared. That is why the draftsman provided under Section 141 of the Electoral Act 2006 as follows:
“141. An election petition under this Act shall be presented within thirty (30) days from the date the result of the election is declared.”
That is the intention of the legislature in respect to elections conducted “under this Act”, namely, under the Electoral Act 2006. The object and intention of the legislature “under this Act” is the paramount consideration. See Osho vs Phillips (1972) 4 SC 259 where the Supreme Court held per Madarikan JSC at page 268 that:
“We are fully aware of the pitfalls besetting a judicial interpreter of statutes as, on the one hand, he must avoid judicial legislation and, on the other hand, he must avoid making nonsense of the statute f the language will permit doing so. The golden rule is to construe the statute UT RES MAGIS VALEAT QUAM REPFAT. In our view, there is no doubt that the main object and intention of Section 116 as amended is to extend its scope to cover all parts of the Commonwealth. We are not prepared to allow the manifest intention of the legislature to be defeated. We therefore propose to construe Section 116 by giving a sensible meaning to it and the only way to do this is to read it as if the expression “where the document is produced” were not there.”
The Supreme Court was in osho vs Philips, supra, faced with the construction and interpretation of Section 116 of the Evidence Act 1945 as amended by the Adaption of Law (Miscellaneous Provisions) order, 1946 (Laws of Nigeria 1946). Chief Rotimi Williams had argued that certain expressions in Section 116 of the Evidence Act supra be ignored in preference to others to give effect to the legislative intention while Chief Fani Kayode contended that it was possible to give effect to the section without ignoring the expression thereby preserving the whole section.
I prefer to abide by the manifest intention of the legislature that computation of the 30 days within which a petition may be presented at an Election Tribunal under Section 141 of the Electoral Act 2006 commenced, in this Appeal on Saturday, 21st day of April, 2007 when the election was held and the results declared to Sunday, 20th May, 2007. But there is no evidence that the Registry of the Tribunal opened on Sunday 20th May, 2007 being a “public holiday” by virtue of the provisions of Section 15(2) (a) (b) (3) (4) and (5) of the Interpretation Act cap.192 Laws of the Federation of Nigeria, 1990. In Becke vs Smith (1836) 2 M&W 191 at page 195 that: “It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself or reads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further.”
It is absurd to expect a petitioner to file his or her petition at the Tribunal on a Sunday which the law maker regards as a “public holiday, with the secretariat closed to public business.
In the first schedule to Sections 147(3) (5) and 164(1) Rules of procedure for Election Petitions, the legislature provided the role of the petitioner and the secretary to the Tribunal on the day a petition is presented to be as follows:
“3(1) The presentation of an election petition under this Act shall be made by the petitioner (or petitioners if more than one) in person, or by his Solicitor, if any, named at the foot of the election petition to the secretary, and the secretary shall give a receipt.
(2) The Petitioner shall, at the time of presenting the election petition, deliver to the secretary a copy of the election petition for each respondent and ten other copies to be presented by the secretary.
(3) The secretary shall compare the copies of the election petition received in accordance with subparagraph (2) of this paragraph with the original petition and shall certify them as true copies of the election petition on being satisfied by the comparison that they are true copies of the election petition.
(4) The petitioner or his solicitor, as the case may be, shall, at the time of presenting the election petition, pay the fees for the service and the publication of the petition, and for certifying the copies and, in default of the payment, the election petition shall be deemed not to have been received; unless the Tribunal or court otherwise orders. ”
The onus of proving that the secretary of the Tribunal was on duty on Sunday 20th May 2007 to perform his administrative functions of receiving petitions, issuing receipts, and certifying the copies etc has not been discharged by the appellants. The only reasonable thing the petitioners could have done in the circumstances was to present the petition on Monday, 21st May, 2007. In doing so I shall have regard to what Brett L.J., said in Rex vs Tonbridge overseers (1884) 13 Q.B.D. 339 at 342 to wit:
“If the inconvenience is not only great, but what I may call an absurd inconvenience, by reading an act in its ordinary sense, whereas if you read it in a manner which it is capable, though not its ordinary sense, there would not be any inconvenience at all, there would be reason why you should not read it according to its ordinary grammatical meaning.”
I hold that this petition was presented within the 30 days period stipulated under Section 141 of the Electoral Act 2006 thus clothing the Tribunal with jurisdiction to entertain the petition. See Agbai vs INEC (2008) 14 NWLR (Pt.1108) 417 at 343; Kumalia vs Sheriff (unreported) CA/J/EP/GOV/244/2007 of 21-01-2008.
This preliminary objection fails and is dismissed. I shall now consider the other issues raised in this appeal by the appellants. In doing so I shall start with issue three because this is another challenge to the competency of the petition presented at the Election Tribunal on Monday, 21st May, 2007.
ISSUE THREE
Issue three is:
“Whether the Tribunal can under the Guise of doing substantial justice distill und ascertain for itself, the Grounds for the petition when no Ground has been specified or stated in the petition (Arising from Ground 6 of the Appeal).”
Learned Counsel to the appellants submitted that the parties and the Tribunal were bound by the pleadings, citing Fagbenro vs Arobachi (2006) All FWLR (Pt.310) 1575 at 1596 paragraph 66D-F” and Ajadi vs Ajibola (2004) 16 NWLR (Pt.898) 91 at 169-170 paragraph D-B. Learned Counsel referred to paragraph 11 of the petition at page 16 of the printed record to show that the petitioner did not state the grounds upon which the petition was presented as required by paragraph 4(1) (d) of the First Schedule to the Electoral Act 2006 which was not a question of inelegantly drafting a petition as held by the Tribunal. Counsel referred to Section 145(1) and paragraph 4(1) (a) of the First Schedule supra. That the Tribunal should not have taken upon itself the task to distill and formulate grounds for the petition after sieving through the pleaded facts to support non-existent grounds which was not the business of the Tribunal. Counsel referred to Ajadi vs Ajibola (2003) 16 NWLR (Pt.898) 91 at 169 as in applicable where no grounds were stated in the petition. That the decision did not permit or authorize the Tribunal to descend into the arena to assist the petitioner in the preparation or presentation of his petition, citing Somaco Enterprises Ltd vs N.N.B. Plc (2006) All FWLR (Pt.293) 193 at 214 paragraph “C-B”. Without the grounds for presentation of a petition, the Respondents would be unable to know in advance the actual case they were to meet at the Tribunal. Fair hearing would be breached. Counsel cited Bunge vs Governor Rivers State (2006) All FWLR (Pt.325) 1 and urged that the issue be resolved in favour of the appellants.
Learned Counsel to the 3rd-316th Respondents posed the following question:
“Whether there is any legally cognizable ground in the petition to sustain it.”
Learned Counsel referred to the judgment of the Tribunal and paragraphs 4(1) and (6) to the Schedule to the Electoral Act, 2006 to argue that no grounds were stated on which the petitioners sought relief from the Tribunal.
The Tribunal was therefore wrong to have held that the petition was only inelegantly drafted but should have declined jurisdiction by striking out the petition.
Learned Counsel to the 1st and 2nd Respondents replied that it is trite law that the pleadings or petition should be considered as a whole, citing Ajadi vs Ajibola (2004) 16 NWLR (Pt.898) 91; Ngwu vs Mba (1999) 3 NWLR (Pt.595) 400 at 408 and Section 145(1) and 149(1) of the Electoral Act, 2006. Counsel referred to certain paragraphs of the petition as a complete answer to issue three raised by the appellants and 3rd-316th Respondents’ Counsel further argued that the burden of proving non-compliance was discharged on the balance of probability. That paragraph 16 of the petition showed that the 1st Appellant did not score the majority of lawful votes cast at the election in line with Section 145(1) (c) of the Electoral Act, 2006.
Counsel contended that it is not mandatory to employ the exact words of the Electoral Act, 2006 in drafting the petition, citing Anigala vs Abeh (1999) 7 NWLR (pt.611) 454 at 467. Learned counsel submitted that the objections raised by learned Counsel to the Appellants were to the form but not substance of the petition which should not upset the judgment of the Tribunal, citing Egolum vs Obasanjo (1997) 7 NWLR (Pt.611) 355 at 413; Ibrahim & Anor vs Sheriff and Or (2004) IBPR 215 at 238-239; Ngige vs Obi (2006) 14 NWLR (Pt.999). Counsel further drew this Court’s attention to the peculiar nature of election petitions urging that they should be heard without regard to technicalities, citing Bruce vs Eze (2004) All FWLR (Pt.209) 104. Counsel urged that this issue should be resolved in favour of the 1st and 2nd Respondents.
REASONS
I shall commence by referring to Section 140(1) of the Electoral Act 2006 which reads as follows:
” 140(1) No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as “an election petition”) presented to the competent tribunal or Court in accordance with the provisions of the Constitution or of this Act, and in which the person elected or returned is joined as a party.”
Section 145 of the Act supra then provides the grounds upon which an aggrieved may question an election or return in the following wordings:
” 145(1) An election may be questioned on any of the following grounds:
(a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election.”
(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;
(c) that the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
(2) An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election which is not contrary to the provisions of the Act shall not of itself be a ground for questioning the election.”
A Petitioner is at liberty to question an election or return on any ground under Section 145(1) (a)-(d) of the Electoral Act 2006. The Petitioners did this in paragraphs 1- 11 of the petition and went further to particularize their complaints in paragraph 12(i)-(xii) from page 21 lines 7-23 to page 24 lines 1-10 of the printed record as follows:
“12. PARTICULARS OF COMPLAINTS:
(i) The petitioners shall lead evidence to show that contrary to the requirements of the Electoral Act, and the Election manual, voters in about 257 polling stations that make of Kankia/Kusada/Ingawa Federal constituency were denied the opportunity to exercise their franchise as voting did not take place in the said polling stations due to absence of electoral materials. The petitioners will rely on the voters’ card of some of the eligible voters in the aforesaid polling stations and such are substantial and capable of affecting the election result had it taken place.
(ii) The election is replete with non-compliance of the provisions of the Electoral Act which non-compliance it shall be contended are substantial and capable of rendering the purported result of the election null and void.
(iii) The petitioners shall also rely on the Register of voters for the aforesaid polling stations/units together with statement of Ballot papers issued to all the potting units within Kankia/Kusada/Ingawu Federal Constituency.
(iv) The purported election of the 1st Respondent is unlawful and fraudulently obtained, as it was done without regard to due process as required by law. Reliance shall be put on evidence of expert to show that thumb prints which appear on the ballot papers of about 316 polling stations in Kankia/Kusada/Ingawa Federal constituency, were thumb printed by one or more individual without regard to the provisions of the Electoral Act and in total disregard to the register of voters for the units.
(v) It shall also be established that there are cases of arbitrary award of votes by thumb printing by one or more individuals without regard to the provisions of the Electoral Act and in total disregard to the register voters for the units.
(vi) The petitioners will lead evidence to show that contrary to the requirements of the Electoral Act, results were declared where no election took place. In most of the polling stations, voters were not accredited before the purported election, and the register of voters were not marked which gave room to multiple voting at various polling units across Kankia/Kusada/Ingawa Federal Constituency.
(vii) The petitioners shall contend that even in Galadima A & B, Gachi and Fakuwa/Kafindangi Wards in Kankia Local Government where elections purportedly took place voters were not accredited before voting commenced consequently the register of voters were not marked which gave room for multiple voting at the various polling stations it was also characterize by non-compliance, multiple voting and over voting.
(viii) That the election was characterize with thuggery, intimidation of voters, snatching of election materials and arbitrary award of votes contrary to the actual votes cast and this were made possible by the active connivance of the respondents either by themselves’ agents or privies for the direct benefits of 1st and 2nd Respondents.
(ix)The petitioner shall further lead evidence to show that the purported election was generally characterize by over voting’ unauthorized movement of ballot papers’ multiple registration, multiple voting and none-accounting of ballot papers in all the polling units that make up Kankia/Kusada/Ingawa Federul Constituency.
(x) It shall be further establish at the trial of this petition by the evidence of hand writing expert and shall seek for the direction of the Honourable Tribunal for the appointment of an independent expert to verify the thumb print on the ballot papers within the ballot boxes with the serial numbers contained in the report of inspection as ordered by the Honourable Tribunal on Thursday the 17th of May, 2007.
(xi) The petitioner shall also lead evidence to show that Ballot Papers which were otherwise invalid by reason of multiple thumb printing were credited and counted for People Democratic Party (PDP)
(xii) That the 1st and 2nd Respondents resorted to the use of thuggery, intimidation, harassment and outright snatching of ballot boxes and ballot papers und other electoral materials with the active connivance of 3rd to 316th Respondents either by themselves’ agents or privies for the direct benefits of 1st and 2nd Respondents.”
If the whole tenor of the petition, pleaded and particularized is examined it will be seen that the complaints centered on non-voting (paragraph 12(i)); non-compliance with the provisions of the Electoral Act, 2006 (paragraph 12(ii-v); results were declared where no election took place for there was no accreditation (paragraph 12(vi-vii); thuggery, intimidation of voters and the snatching of electoral materials (paragraph 12(iii, xii); over-voting, unauthorized movement of ballot papers, multiple registration, multiple voting, and non-accounting of ballot papers in all the polling units that make up the Federal Constituency in question, (paragraph 12(ix-xi) of the petition.
A further examination of paragraphs 1-12(i)-(xii) of the petition shows that the complaints can be grouped under two main headings, namely that the election was invalid by reason of non-compliance with the provisions of the Act and secondly, that the 1st appellant was not duly elected by a majority of lawful votes cast at the election. These complaints are covered by Section 145(1)(b) and (c) of the Electoral Act, 2006.The complaints were sufficiently pleaded and particularized. I do not accede to the submission of the learned Counsel to the appellants that there was a fundamental vice that went to the root of the petition. I agree with the Tribunal that non-compliance will cover over voting, multiple registration etc. I also agree that the Tribunal had to read the whole petition to arrive at a just decision. See Ajadi vs Ajibola (2004) 16 NWLR (Pt.898) 169 and Anigala vs Abeh (1999) 7 NWLR (Pt.611) 454 at 467. What the Tribunal did has support in Numerous judgments of the supreme Court, example, Emesie Vs onuaguluchi (1995) 12 SCNJ 120 at 131 and Fadlallah vs Arewa Textiles Ltd (1997) 7 SCNJ 202 at 217 to mention only a few. I hold that there is no substance in the complaint of the appellant regarding issue three.
I resolve this in favour of the Respondents.
ISSUE ONE, TWO, FOUR, FIVE, SIX, SEVEN, EIGHT, AND NINE
A close examination of issues one, two, four, five, six, seven, eight and nine raised by the learned Counsel to the appellants can be conveniently argued under issue one which is as follows:
“Whether the Election Tribunal can turn round and rely on Exhibits P1 (a)-(j) to P30 (a) to (f), the Register of voters for the various Wards in the Constituency and the depositions in paragraphs(1)-(12);14-17; 18-19; 21-22; 25-27; 30-34 of Exhibit P90A (the 1st Respondent/Petitioner’s Additional Witness Statement on Oath) after properly evaluating und rejecting same.
(Arising from Grounds 1 and 2 of Appeal).”
Issues two to nine is only a proliferation of issue one hence I have decided to take them together in the determination of this appeal. This is because an attack that succeeds against the utilization of Exhibits P1(a)-(1) to P30(a)-(f) namely, the Voter’s Registers for the various wards in the constituency and the 1st Respondent’s deposition in Exhibit P90A by the appellants’ learned Counsel will mean there was no other credible evidence to sustain the petition before the Election Tribunal.
Learned Counsel drew this Court’s attention to pages 971-975 of the printed record where the Tribunal evaluated and discredited the voter Registers (Exhibits P1 (a)-(j) to P30 (a) to (f) for the various wards in the constituency and the depositions in paragraphs 1(1)-(12); 14-17; 18-19; 21-22; 25-27; 30- 34 of Exhibit P90A (the 1st Petitioner’s Additional witness statement on oath). Having discredited the voter’s Registers and Exhibit P90A tendered by the Petitioners in respect to all the wards complained of learned Counsel that the Tribunal should not have relied on same to found for the petitioners. Learned Counsel cited ANPP vs Haruna (2003) 14 NWLR (Pt.841) 546 at 564. That where there is no consistency in the findings of the Tribunal the decision will be set aside. Reference was made to Edosa vs Zaccala (2006) All FWLR (Pt.306) 88 at 903; Ajayi vs Ashipa (2006) All FWLR (Pt.306) 912 at 927 Paragraphs C-F.
Learned Counsel to the 3rd-316th Respondents posed the following question: Whether the Petitioners have established any allegation of irregularity, malpractice or non-compliance that has substantially affected the result of the election to warrant its annulment.”
Learned Counsel argued that no malpractice or non-compliance was proved at the trial to warrant the annulment of the election, citing Ojukwu vs Onwudiwe (1984) 1 SCNLR 247; Awolowo vs Shagari (1979) 6-9 SC 51 and Buhari vs obasanjo (2005) 2 NWLR (Pt.910) 518 at 520. Learned counsel attacked the evidence used by the Tribunal to found for the 1st and 2nd Respondents so as to annul the result and order fresh election in the constituency. Counsel urged this Court to set aside the judgment of the Tribunal.
Learned counsel to the 1st -2nd Respondents replied that Governorship and State Assembly held on 21st April, 2007. That accreditation for Presidential and National Assembly Election was by ticking the Register with red ink and the Governorship with blue ink. There was however no accreditation that tallied with the result that was returned on Forms EC8A and the Voters Register for the various units that makes up Kankia, Kusada and Ingawa Federal Constituency. Counsel however admitted that the Tribunal failed to distinguish which of the double ticks represented the election of 21st April, 2007. But that the Tribunal in the same breath held that in instances where single ticks appeared in the Voter’s Register it is evidence that accreditation did in fact take place. Yet the Tribunal had found that instances of none accreditation had affected ninety (90) Polling Stations in the three Local Government Areas while over voting exceeded the number of persons accredited to vote involving over 150 polling units in the three Local Government Areas. Counsel drew this Court’s attention to the fact that the Tribunal did not reject Exhibit P1A-J to P30 to F but merely stated that in the absence of the original Voter’s Registers, the Tribunal was not in a position to discern the colours of ink from a Certified True Copy tendered by the Petitioner. Counsel referred to Forms EC8A and EC8B which were admitted by consent of all the parties and submitted that there was presumption of regularity, correctness, authenticity and genuiness in favour of the Certified True Copy of the documents tendered which came from proper custody. The authority of Lawson vs Afani Construction Co. Ltd (2002) 2 NWLR (Pt-752) 752 at 785 was cited in support of the proposition that the only form of public documents admissible is certified true copies. It was further argued by the learned Counsel that the Tribunal misdirected herself by holding that notwithstanding the tendering of the certified true copies of Voters Register by consent the burden still rested on the 1st and 2nd Respondents to produce the original of the Voter’s Register of the 271 polling units in order to establish non-accreditation. The Tribunal resolved every single tick that appeared on the Voter’s Register as evidence of accreditation thus conferring undue advantage on the appellants notwithstanding the admission by Rw13 (Returning officer) that two sets of election were held on the 14th and, 21st April,2007 respectively. Counsel
referred to the evidence of RW13 Zubairu Abubakar Kankia who admitted that the double ticking was evidence that a voter voted in the two sets of elections conducted by the 3rd Respondent. That this also confirmed the evidence of Pw4 via Exhibit P90A which established the case of non-accreditation. It was further contended that undisputed evidence of that should have been the presence of blue and red ticking as provided in Exhibit P68. But the evidence of the 1st Respondent was to the fact that he never saw any ticking in Exhibit p1-p30. He however admitted seeing but very few instances of either blue or black without red to signify accreditation for the election in which he stood as a candidate. Nevertheless the 1st Respondent was not cross-examined on this issue. The effect of non-cross-examination was an admission of the evidence given by the witness, citing Gaji vs paye (2003) 8 NWLR (pt.823) 583 at 605 paragraph A_C.
Learned Counsel further argued that having failed to cross-examine the Petitioner on the issue of non-ticking of the Voter’s Register, the appellants equally failed to lead evidence to debunk the assertion of the 1st and 2nd Respondents’ Counsel submitted that the burden was upon a party who will, if no further evidence is called on either side, fail. There was in the submission of learned Counsel that no legal basis upon which the Tribunal should have come to that sort of conclusion. Counsel referred to the evidence of the 1st Respondent that he never saw any Voters register in Kusada, Kankia and Ingawa Constituency marked in red ink. Reference was made to Exhibit P90A paragraph 15. The Tribunal was therefore bound to believe his evidence, citing Durosaro vs Ayorinde (2005) 8 NWLR (Pt.927). Learned Counsel saw nothing wrong with the judgment of the Tribunal apart from their narrow attitude in resolving single black ticks as evidence of accreditation in respect of the election in dispute whereas evidence of accreditation must be the presence of red ink. Regarding Exhibit P90A Counsel submitted that there was no counter-affidavit challenging the deposition nor was it discredited by cross-examination. Reference was made to Section 159(1) and (2) of the Electoral Act 2006 and Idris vs ANPP (2008) 8 NWLR (Pt.1088) 1 at 38. Learned Counsel urged this Court to resolve this issue in favour of the Respondents.
I must begin a consideration of these issue by reminding the learned Counsel to the 1st and 2nd Respondents and 3rd-316th Respondents that it is their duty to defend the judgment of the Tribunal but not to castigate it as doing so is tacit admission in support of the appellants’ case why the judgment should not stand. See Adefuru vs oyesile(1989) 12 SCNJ 44 at 79. In Njaba L.G.C. vs chigozie (2010) NWLR (pt.1218) 166 paragraphs F-H and p.193 paragraphs A-D, a brief was filed by the Respondents/Defendants who had judgment in their favour. They attacked rather than defended the judgment on appeal without filing a cross-appeal. Their briefs were ignored by the Court of Appeal. The Supreme Court did likewise in Obi vs INEC (2007) 11 NWLR (Pt.1046) 565 at 672-674; Olaniyan vs Adeniyi (2007) 3 NWLR (Pt.1020) 1 at 15; Oguma vs Associated companies Ltd vs I.B.W.A. Ltd (1988) 1 NWLR (pt.73) 655 and Kotoye vs central Bank of Nigeria (1989) 1 NWLR (Pt.98) 419. I shall therefore ignore the arguments in the briefs of the 1st and 2nd Respondents, likewise the 3rd-316th Respondents for the fact that if they had wanted to attack the judgment they should have cross-appealed or filed a Respondents’ Notice that the judgment should be affirmed on other grounds.
When an appeal turns on questions of fact, there is a presumption that the observations or findings of the trial Court are correct. See Folorunsho vs Adeyemi (1975) 1 NMLR 128 at 132; Kojo vs Bonsie 14 WACA 243; Onowan vs Iserhein (1976) 1 NMLR 263 at 265-266; and Nonjan vs Aly 14 WACA 400. They can however be set aside where there are some violations of principles of law and a complaint of improper evaluation of evidence. See Woluchem vs Gudi (1981) 5 SC 319; Kakarah vs Imonikhe (1974) 4 SC 153 and Afolayan vs Ogunrinde (19s6) 3 NWLR (pt.26).
The Petitioners were dissatisfied with the conduct of the elections in Kankia, Kusada and Ingawa Federal Constituency and presented a joint petition at the Tribunal on Monday 21st May, 2007. The petitioner had the onus of producing primary or credible evidence to establish his petition. In Akinfosile vs Ijose (1960) 5 FSC 192 the Federal Supreme court held, per Abbott F.J. at page 198 that:
“…The person who makes allegations in a pleading is, by the ordinary rules of pleading, bound to produce evidence to substantiate them as part of his case, and it is not sufficient for him to rely upon the emergence of evidence from the opposite party for the purpose of proving allegations in his own pleadings. Moreover, in this case such evidence as there was of the counting of ballot papers not bearing the official mark, was hopelessly vague. There were no details of how many unmarked ballot papers were counted and the Court below was not in a position to say whether there was one of such ballot papers or any other number. Chief Rotimi Williams, as stated above, apparently relied upon Counsel for the second respondent telling him that the second respondent would put in the ballot papers as evidence. With respect, I consider Chief Rotimi Williams erred here, and also in not cross-examining the second respondent on this point.
In view of the absence of any evidence, at the close of the case for the Petitioner, of the number of ballot papers counted which did not bear the official murk, Mr. Kayode in my view was fully justified in calling no evidence on behalf of his client.”
The law is that he who asserts has the onus of proof. See Section 135(1) (2) and 136 of the Evidence Act 1990; Tsokwa vs UBN (1996) 12 SCNJ 445/4811 Koroowo vs Ogunbambi (1993) 8 NWLR (Pt.313) 627 and Jalico Ltd vs Owoniboys (1995) 4 SCNJ 256. Where the allegation is that unlawful votes were credited in favour of one of the contestants at an election or proper accreditation was not done etc the burden is upon the party complaining to prove the allegations beyond reasonable doubt. See Kingibe vs Maina (2004) FWLR (Pt.191) 1555 at 1588 paragraph A-B; Ogunderu vs Adebayo (1999) NWLR (Pt.608) 684. The burden is on the petitioners because they took the Respondents to the Tribunal for a relief or right hence they had to prove their complaints. See Tangale Traditional Council vs Fawu (2002) FWLR (Pt.117) 1137 at 1165 paragraph B. This is because there is the rebuttable presumption that the result declared by the Returning Officer is correct and authentic until proved otherwise at the Tribunal. The burden of proving otherwise is on the Petitioner. See Omoboriowo vs Ajasin (1934) 15 NSCC 81 at 90. The Court of Appeal has held that the Voter’s Cards alone is not evidence of voting. What is material to prove accreditation is the production of the authentic Voter’s Register concerning the wards or polling units in dispute showing that accreditation and subsequently voting took place at the said election to determine the number that actually voted. This is to ensure there was no over voting at that election. See Awuse vs Odili (2005) All FWLR (Pt.261) 248 at 287-288 paragraphs “H-C.” The Certified True Copies of the Voters Register for Kusada Local Government Area were admitted as Exhibit P1 (a)-(i) to 10 and Ingawa Local Government Area P11 (a)-(i) -P21 (a)-(d). That of Kankia Local Government Area was put in and marked Exhibit P22 (a)-(1) to P30 (a)-(d). These were put in by the Petitioner at the Tribunal. The tribunal made the following disparaging comments concerning these exhibits at page 969 – lines 9-24 of the printed record:
“According to the “Manual for election Officials 2007” Exhibit P68 page 17 thereof, to indicate that a voter has been accredited and will be voting in the election, the Polling Clerk shall tick the Register as follows:
“Governorship and State Assembly Elections tick the Register in blue ink and in the Presidential and National Assembly Elections tick the said Register in red ink.”
But the Petitioners have tendered Exhibits P1 (a)-(i) to P30(a)-(f) (Register of Voters) for the various wards in photocopies though certified by INEC. In the circumstance, we are not in a position to determine the colour of the ink used to make the tick or markings in the Register. In fact, the petitioners ought to have gone further to tender the original copy of the Voters Register as the colours used in ticking or marking same cannot be discerned or ascertained from a certified True copy thereof which is a mere photocopy of the original. There is nothing before us to show that they had subpoenaed INEC to produce the original and they refused.”
The Tribunal admitted that the Petitioners did not adduce credible evidence to prove there was no accreditation. The Voter’s Registers were therefore discredited as the Tribunal could not vouch for their accuracy. That is the effect of the Tribunal’s holding at pages 969 lines 9-24 of the printed record, pleadings constitute the case a party intends to canvass at the hearing. See Obmiami Brick and Stones Nig Ltd vs ACB (1992) 3 SCNJ 1 at 35; Umegba vs Attorney-General of Bendel State (1986) 1 NWLR (Pt.16) 303 at 317. When a party pleads a particular document it is an undertaking that it shall be produced at the trial, a breach of which is evidence of bad faith, and it is embarrassing. See Elias vs Omo-Bare (1982) 1 All NLR (Pt.1) 70 at 77. The Petitioners pleaded in paragraph 12(iii), (iv), (v), (vi), (vii) of the Petition and gave notice to rely on the Voter’s Registers to prove their allegations but at the hearing they produced certified True copies. The Tribunal members were unable to determine from these exhibits the kind of ink that was used in accreditation in respect to the elections held on Saturday, 21st April, 2007. Whose fault – the Petitioners or the Respondents?
The Respondents had nothing to loose if the authentic Voter’s Registers were not produced. I hold it is the fault of the Petitioners. The duty of the Tribunal was to only examine and evaluate the exhibits’ determine their credibility and the weight to attach to them. See Section 92(1) of the Evidence Act 1990 which provides as follows:
“92(1) In estimating the weight’ if any, to be attached to a Statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn us to the accuracy or otherwise of the statement’ and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.”
The accuracy or otherwise of the statements or tickings in the voters’s Registers were called into question by the Tribunal for they could not determine from them the colour of the ink used to make the ticks or markings. where a tribunal cannot discern or ascertain contested facts from evidence adduced by a petitioner it is logical to hold that there is no evidence in support of that contested fact – simple’ see Macaulay vs Tukuru (1381-1911) 1 NLR 35; Lion Buildings Ltd vs Shadipe (1916) 2 FNLR 282 at 289; Ayeni vs Dada (1973) 3 SC 35 at 61 and Attorney- General of Oyo state vs Fairlakes Hotels (1989) 12 SCNJ at 20-21. The duty of every Court or tribunal was to use the documents tendered and marked as exhibits to test oral evidence to arrive at the justice. See Tangale Traditional council vs Fawu (2002) FWLR (Pt.117) 1131 at 1164 Paragraph “C-E”; Ogun vs Asemah (2002) FWLR (Pt.128)1328; Fashanu vs Adekoya (197) 1 All NLR (Pt.1) 35 at 41; Ebba vs Ogodo (1984)4 SC 84 and Olujinle vs Adeagbo (1988) 2 NWLR (Pt.75) 238 at 253. Therefore, in a situation where the Petitioners tendered certified true copies of the voter’s Registers in respect of Kankia, Kusada and Ingawa Local Government Areas but the tribunal found as follows:
“..we are not in a position to determine the colour of the ink used to make the tick or markings in the register. In fact, the Petitioners ought to have gone further to tender the original copy of the voters Register as the colours used in ticking or marking same cannot be discerned or ascertained from a certified True copy thereof which is a mere photocopy of the original…” the Tribunal ought to have gone ahead to hold that the petitioners had failed to prove the allegations in the petition beyond reasonable doubt. see Akinfosile vs Ijose supra at page 194. Rather, the Tribunal entered into the arena of speculation and assumptions holding at page 969 lines 25-31and page 970 lines 1-6 of the printed record as follows:
“But for our purpose we shall take the presence of the single and double ticking with black ink to mean accreditation for both the Governorship and State Assembly Elections on one hand and Presidential and National Assembly Elections the subject of this judgment. This Tribunal will therefore treat every voter accredited or marked in the Register of Voters as having been accredited in respect of the election in dispute.
Where there are 2 tickings we take one as evidence of accreditation in respect of election in dispute. Where there is a ticking we will still take it as evidence of accreditation in this election as there is no evidence as to which election it was made. And doubts are usually resolved in favour of the Respondents.”
In a trial that facts are to be proved beyond reasonable doubt but the evidence adduced is lacking in accuracy or credibility, the Tribunal should have resolved the doubts in favour of the Respondents as rightly held by dismissing the petition as not proved. See Ikhane vs COP (1977) 6 SC 119; Nasamu vs The State (1979) 6-9 SC 153 at 159. It is not within the province of the Tribunal to descend into the arena and supply evidence on behalf of the petitioners who had not discharged the onus of proving their allegations beyond reasonable doubt. See Section 136 of the Evidence Act 1990. The tribunal ought not to have attached any weight to the markings in the Registers. The petitioners failed to tender the original Registers to prove their claim with no explanation. Ambiguities in a document are to be construed against the maker, in this case, the petitioners. See Section 133(3) and (4) of the Evidence Act 1990 which provides as follows:
“(3) If the words of a document are so defective or ambiguous us to be unmeaning, no evidence can be given to show what the author of the document intended to say.
(5) In order to ascertain the relation of the words of a document to facts, every fact may be proved to which it refers, or may probably have been intended to refer, or which identifies any person or thing mentioned in it. Such facts are hereinafter called the circumstances of the case.”
Exhibit p90A is the Statement of the 1st Respondent on Oath tendered at the Tribunal. The Tribunal had refused an earlier application to amend the petition to tender the said exhibit in an interlocutory application brought by the petitioners. In rejecting Exhibit P90A the Tribunal held at page 966 lines 24 to 31 and page 967 lines 1-28 of the printed record as follows:
“EXHIBIT P90A AND PURPOSE INTENDED
The 1st Petitioner in his said statement on oath Exhibit P90A had this to say among others “That I discovered in the course of inspection that votes were returned without accreditation of voters as provided for in the Manual for Election officials 2007″. That instances where these occurred, the polling units and registration areas as follows”
“KANKIA LOCAL GOVERNMENT
(a) Galadima “A” Ward
(i) At Sabon Birni “A” 001 polling units, the register of voters shows 1459, Forms EC8A show 700 voters with total votes of 384, while no voter was accredited to vote.”
In our view, what the 1st Petitioner is attempting to do is to prove the content of INEC documents already written by oral or affidavit evidence as it is settled, that the only evidence admissible in respect of any official transaction reduced into writing, is the document containing the transaction or admissible secondary evidence thereof. See Awuse vs Odili (supra) where the Court of Appeal had this to say:
“The only evidence admissible in any transaction reduced in to writing is the document containing the transaction and it is not permissible to any part (sic) to seek to prove or contradict such evidence written or document, by oral or affidavit evidence. See Section 132 of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria (1990). Olunlege vs Ajoo Continental Nig. Ltd (1996) 7 NWLR (Pt.458) 27 (underlining ours for emphasis).”
Accordingly, save for his narrations as contained in paragraphs 1(1) (12); 14-17; 18-19; 21-22; 25.27; 30-34 all other positions of the said Exhibit P90A being attempts at proving the content of a written document by oral evidence are rejected as they offend against the Evidence Act and our authority for doing this, Awuse vs odili (supra), Ajero vs Ugorji (1999) 10 NWLR (Pt.621) 1 where it was held, that the testimony of a witness can be rejected in part.”
The Tribunal then made a U-turn at page 968 lines 27-34 to page 969 lines 1-7 of the printed record as follows:
“The 1st Petitioner has alleged in the portion of Exhibit P90A saved that he noticed cases of irregularities’ malpractices and non-compliance and in some instances votes were returned without accreditation. The 1st Petitioner was cross examined by the learned counsel on the opposite side. In the light of the above, that is to say the pleadings, the voter’s Register rendered und the said portion of his testimony as to the alleged malpractices, we will say, that this was not & case of the Tribunal attempting to make enquiry in to the documents outside the court like the voter’s Register and the various Forms put in evidence. Once a document is received in evidence and so marked, it becomes an evidence before the court under the provisions of section 91(1) of the Evidence Act’ the Tribunal has a duty to evaluate the probative value of every documentary evidence tendered before it. Awuse vs Odili (supra), Ngwumohaike (1993) 3 NWLR (Pt.253)612.”
The Tribunal concluded at” page 971 lines 10-21 of the printed record regarding Exhibit P90A as follows:
“Exhibit P90A (assuming we are wrong in holding that no reliance be placed on it) is the evidence according to the 1st Petitioner, that voters were never accredited to vote at all in 163 polling stations of Kankia, Kusada and Ingawa Local Government and we say, this is not true as some polling Stations had accreditation white some none. The correct Position from the Exhibits before this Tribunal is as follows: In Ingawa 40 Polling Stations had no form of ticking whatsoever yet votes were returned thereat. In Kusada Local Government Area 32 Polling Stations had not their Register of voters Marked with either single or double tickings. In Kankia Local Government Area the number of Polling Stations without any form of ticking is 17.”
In my humble opinion the accuracy of the Voters Register being in doubt and unreliable (See Section 92(1) of the Evidence Act 1990) as I earlier held there is no cogent evidence to support part of Exhibit P90A which the Tribunal considered as “saved” to prove the malpractices, and irregularities alleged by the petitioners beyond reasonable doubt. The oral depositions saved cannot be utilized to contradict, alter, add or vary the contents of the rejected Voter’s Registers that would have if credible and accurate, supported the complaints of the petitioners. See section 132 (1) of the Evidence Act 1990; Union Bank of Nigeria Ltd vs Sax (1994) 9 SCNJ 1; Ajuwon vs Adeoti (1990) 3 SCNJ 159 and Union Bank of Nig. Ltd vs Ozigi (1994) 3 SCNJ 41. The allegation that there was no accreditation yet the 1st appellant was credited with votes involves criminal allegations that have to be proved beyond reasonable doubt. See Michael vs Yuosuo (2004) All FWLR (Pt.209)1015 at 1025 paragraphs “D”- “F”. Furthermore, having rejected some aspects of Exhibit P90A in the interlocutory ruling and the accuracy of the Voters Registers being in doubt, the Tribunal nevertheless held at pages 971 lines 22-29 to page 972 lines 1-17 of the printed record that:
“From the above it would be seen, that in 89 polling stations in Ingawa/Kusada and Kankia Local Government Areas Voters, Register did not show any sign of accreditation yet votes were Recorded in:- (i) Tafashiya Nasarawa Ward (ii) Galadima, “A” Ward (iii) Kundduru/Gyaya Ward (iv) Kafin Soli Ward (v) Kafin Dangi/Fakuwa Ward (vi) Gachi Ward (vii) Isa Magam Ward (viii) Galadima “B” Ward among others.
In Kusada Local Government Area are 46 Polling Stations where the actual votes cast exceeded the number accredited in the under mentioned wards namely:- Kusada, Dunduni, Mawashi, Boko/Dangamau, Kofa, Bauranya “A”‘ Bauranya “B” and Yashe “B”.
It is settled that where the total number of votes cast exceeds the total number of accredited voters registered in a particular polling unit, such situation amount to electoral malpractice.
Terub vs Lawan (1992) 3 NWLR (Pt.231) 569.”
This was contrary to the Tribunal’s holding on 25-10-2007 when they refused to grant leave to amend the petition to plead the facts stated in Exhibits P90A on the grounds that would be introducing new issues hitherto not raised in the petition filed on 21st April, 2007.That it will be in conflict with paragraph 14(2) of the First Schedule to the Electoral Act, 2006.
There was no appeal by the petitioners against that interlocutory ruling. Thus the tribunal had no jurisdiction to over-rule her earlier ruling in the course of hearing and final judgment. That is the prerogative of an Appeal Court or Tribunal as the case may be. See Lawal vs Dawodu (1972) 8-9 SC 83 at 107; Nnajiofor vs Ukonu (1985) 2 NWLR (Pt.9) 686 and Amos vs Shell BP (1974) 4 VILR (Pt.3) 345 at 347. A judgment based on unpleaded documents or facts cannot stand. See Ajayi vs Fisher (1956) 1 FSC 90 and Alashe vs Ilu (1965) NMLR 66.
In my humble opinion it is a travesty of justice to order INEC to conduct fresh election when a petitioner on whom lies the onus of proving noncompliance could not do so before the Tribunal. That is not justice at all.
Justice should be done to the Petitioner, the Respondents, including the electorate who voted the 1st Respondent as their representative as well as INEC that have to use public funds to re-conduct the elections. Ordering INEC to conduct fresh elections should be as a last resort to meet the justice of the case. In Morgan vs Simpson (1974) 3 All E.R. 722 Stephenson L.J., held in the English Court of Appeal at page 729 that: “…An election is a serious and expensive-matter und is not lightly to be set aside.” See the unreported judgment of the Court of Appeal, Kaduna Division in Appeal No. CA/K/BP/SHA/13/2008 viz, Labaran Abdul vs Hon. Isa Garba & Ors delivered on 06-12-2010.
I allow the appeal and dismiss the petition before the Tribunal. I affirm that ALHAJI KABIR AFIMED KOFA of the Peoples Democratic Party was duly elected and returned as Representative of Kankia, Kusada and Ingawa Federal Constituency into the Federal House of Representative on Saturday 21st April, 2007. I award N50, 000.00 costs to the 1st and 2nd Respondents and N50, 000.00 costs to the 3rd-316th Respondents.
MARY U. PETER-ODILI, J.C.A.: I had the opportunity of reading in draft the judgment of my learned brother, Joseph Tine Tur JCA, I agree with the decision and the reasons from which he derived the conclusion. I am equally in tandem with my learned brother that in adhering to the strict words of a legislation, the impact or effect does not lead to an absurdity or render nonsensical the intendment of the legislature. It is true without question that Section 141 of the Electoral Act 2006 had provided that an election petition must be presented within 30 days from the date the result of the election is declared.
The interpretation of the above has been for the umpteenth time to be, that the day of the declaration of the result is included in the computation of the 30 days. In this instance the 30 days fell on a Sunday which is legally and in practice been recognised as a public holiday, that is as has happened in the case in hand, since the 30 days fell on Sunday, the 21st May 2007 with the result having been declared on 21st April 2007, the natural flow would be that the next working day would be the next. This is supported by the fact that, that Sunday being a public holiday, the registry of the Tribunal was closed and so it would be unjust to visit either the litigant or his counsel with what can be in the realm almost of a force majeure. That would not be justice as known to man and God. I would rely on REX VS. TONBRIDGE OVERSEERS (1884) 13 Q.B.D. 339 at 342; AGBAI vs. INEC (2008) 14 NWLR (pt.1108) 417 at 343; BECKE VS. SMITH (1836) 2 M & W 191.
I sway to the view of my brother that in the prevailing abnormality the petition was in time within the contemplated 30 days and so the competence of the petition is not impugned.
I abide the fuller findings and decisions in the main appeal as adjudged by my brother.
OBANDE. F. OGBUINYA, J.C.A.: I have had a preview of the leading judgment delivered by my learned brother, J.T. Tur, JCA. I agree with his reasons and conclusions. The facts, the grounds, the issues and the arguments in this appeal are adequately set out in the leading judgment. It is, therefore, pointless to go the whole hog of repeating them. I will emphasise some issues.
In this contribution, my first port of call, as ordained by law, is on the preliminary objection, filed by the third to three hundred and sixteenth respondents, alleging that the first and second respondents’ petition was statute barred by virtue of section 141 of the Electoral Act, 2006. The first and second respondents, in turn, attacked the competency of that preliminary objection in that it was a fresh issue or point in this court and they ought to have obtained leave before raising it. To support that contention, the cases of Ukpong v commissioner of Finance (2006) 19 NWLR (pt.1013) 187; Akinyanju v Unilorin (2005) 7 NWLR (pt.923) 87; Jov v Dom (1999) 9 NWLR (Pt.620)58; Agbakoba v INEC (2008) 18 NWLR (Pt.1119) 459 were cited.
Now, was the learned counsel for the first and second respondents correct in that contention – that the preliminary objection was itself incompetent? I have my doubts. The reason is not far-fetched. The law has inched away from the view point of the learned counsel. At present, the law is that a party is not mandated to seek and obtain leave of an appellate court where he desires to raise new point that touches on issue of jurisdiction of court. Not a few pronouncements shore up this new state of the raw. In Erugbe v Omokhafe (2004) 18 NWLR (Pt.905) 319 at 334, Katsina-Alu, JSC (as he then was) stated:
It is generally the law that fresh matters cannot be raised on appeal without leave of the court. But the issue. of jurisdiction has always been considered exceptional.
Therefore, the Court of Appeal was in error not to have allowed parties to fully address it on the question of jurisdiction before it.”
In the case of Moses v state (2006) 11 NWLR (pt.992)458 at 503, Ogbuagu, JSC, also, stated:
“…The consequence is long settled in a number of decided authorities to the effect that an appeal court will not ordinarily entertain issues that are fresh and not brought and decided before a lower court, without leave of the court having been had and obtained. Let me add quickly, that the only exceptions are where the issue of jurisdiction is raised as a fresh point, leave is not necessary.”
Most recently, in the case of Aderibigbe v Abidoye (2009) 10 NWLR (Pt.1150) 592 at 615, the apex court, per Muhammad, JSC, consolidated this current position of the law. see, also, Owners M/V Gongola Hope v S.C. (Nig) Ltd. (2007)15 NWLR (Pt.1056)189; U.T.B. Ltd. v Dolmetsch Pharm (Nig) Ltd. (2007)16 NWLR (Pt.1061)520.
I entertain no doubt that statute-bar, on which the preliminary objection is hinged, is a jurisdictional point. The apex court has sanctified that in the case of Ajayi v Military Administrator of Ondo State (1997) 5 NWLR (Pt.504) 237 at 254, when Eso, JSC, held:
“The issue of whether or not an action has been statute-barred is one touching on jurisdiction of court for once an action has been found to be statute barred, although a plaintiff may still have his cause of action, his right of action, that is, legal right to prosecute that action has been taken away by statute. In the circumstance, no court has the jurisdiction to entertain his action.”
See, also, Mil. Admin., Ekiti State v Aladeyelu (2007) 14 NWLR (Pt.1053)619; Owners of the M/V “Arabella” v NAIC (2008) 10 NWLR (Pt.1097) 82; Nasir v C.S.C., Kano State (2007) 5 NWLR (Pt.1190) 253.
It would appear that the cases, on which learned counsel for the first and second respondents placed high premium, and those I have mentioned are not in accord on this point only. However, that judicial impasse, as it were, is not a hard nut to crack. The law is settled that where there are conflicting decisions of the Supreme court, the later-in-time will prevail over the older ones. In that wise, a lower court, this court, by way of stare decisis, is bound to follow later decisions. The recent case of Osakue v F.C.E., Asaba (2010) 10 NWLR (Pt. 1201) 1 is in point. On good and binding authority of Osakue’s case supra, I will follow the most recent decisions of the Supreme court in the cases of owners M/v Gongola Hope v S’C’ (Nig) Ltd. (supra); U.T.B Ltd. Dolmetsch pharm (Nig) Ltd. (supra); Aderibigbe v Abidoye (supra). In the circumstance, I hold that the third to three hundred and sixteenth respondents had the backing of the law when they filed the preliminary objection without permission from this court. In the end, I hold that the preliminary objection is valid and competent.
Having attended to the objection intended to nip the third to three hundred and sixteenth respondents, preliminary objection in the bud, I now reverse or return to consider it (the preliminary objection) on its merits. The gravamen of that objection was that the first and second respondents, petition, from which the appeal germinated, was filed outside the 30 days prescribed by section 141 of the Electoral Act, 2006. put differently, that the petition was statute-barred and the lower tribunal was divested of the jurisdiction to entertain it.
To do justice to this stubborn issue, the provision of section 141 of the Electoral Act, 2006 comes in handy. It provides:
“141. An election petition under this Act shall be presented within thirty (30) days from the date the result of the election is declared.”
Also, the prescription of section 15 of the Interpretation Act. Cap. 123 Laws of the Federation of Nigeria, 2004, is of note. I will, at the risk of prolixity, but borne out of necessity, reproduce it, verbatim ad literatim, thus:
“15. Time
(1) A reference in an enactment to the time of day is a reference to the time which is one hour in advance of Greenwich Meantime.
(2) A reference in an enactment to a period of days shall be construed-
(a) where the period is reckoned from a particular event, as excluding the day on which the event occurs;
(b) where apart from this paragraph the last day of the period is a holiday, as continuing until the end of the next following day which is not a holiday.
(3) Where by an enactment any act is authorized or required to be done within a particular day and that day is a holiday, it shall be deemed to be duly done if it is done on the next following day which is not a holiday.
(4) Where by an enactment any act is authorized or required to be done within a particular period which does not exceed six days, holidays shall be left out of account in computing the period.
(5) In this section “holiday” means a day which is a Sunday or a public holiday.”
The formula for measuring statute bar is very simple. A court is enjoined to examine a writ of summons or statement of claim, filed by a party, which invariably discloses when (the date) the cause of action arose and situate it with the date when the writ of summons or action was fired in court. If the date of filing as endorsed on the writ, is beyond the period allowed by the limitation law, then the action is statute-barred. If the period is within the time frame prescribed in the limitation statute, then it is not caught by statute-bar. See Elabanjo v Dawodu (2006) 15 NWLR (Pt.1001)76; Mil. Admin., Ekiti State v Aladeyeru (supra); Duzu v Yunusa (2010) 10 NWLR (Pt.1201)80; Hassan v Aliyu (2010)17 NWLR (pt.1223) 547.
Now applying this simple method/mode, for gauging statute bar, to the first and second respondents, petition, was it statute-barred? As can be garnered from the petition, the election was conducted on 21/04/2007 and the result declared on that day 21/04/07. See pages 13-15 in volume one of the record.
That is to say, the first and second respondents, cause of action accrued from 21/04/2007 when that result was declared, see Woherem v Emereuwa (2004) 13NWLR (pt.890) 398.
The petition was fired on 21/05/2007. see page 38 in volume I of the record. The petition is an equivalent of statement of claim in ordinary civil proceedings, see Egorum v Obasanjo (1999) 7 NWLR (pt.611)355. I have, as decreed by law, married the date the cause of action of the first and second respondent matured, id est, 21/04/2007, and the date their petition was presented to wit: 21/05/2007 with the mandatory provision of section 141 0f the Electoral Act, 2006.
By law, the date on which an event occurred is not counted in the process of calculating the period enshrined in any legislation. In the same vein, where the last day slated for the happening of an event is a public holiday, the limited period is extended or prolonged to the next working day. The provision of section 15(2) (b) of the Interpretation Act is a living proof.
In the case of Aderedoru v Akinremi (1985)2 NWLR (Pt.10)787 at 794, the court of Appear, Ibadan Division, delivered a judgment on 10/04/1985 while the appellants lodged an appeal against it on 10/07/1985. The applicants/respondents raised a preliminary objection to the appeal, before the Supreme court, that it was filed out of time by one day contrary to the provision of section 31(2) of the Supreme court Act, 1960-
which provided for three months for an appear against a final decision. The preliminary objection was overruled. Aniagolu, JSC, opined:
“It would follow that in computing the period for the filing of the appeal in this matter the date – 10th April, 1985 – on which the Court of Appeal delivered its judgment must be excluded. The calculation thus begins on 11th April, 1985 and three months from hence must end at midnight of 10th July, 1995.
The one day by which Mr. Ajayi has said the appellants were out of time becomes the one day which by section 15(2) of the Interpretation Act, 1964, must be excluded in the computation, on the, footing that the appeal was filed on 10th July, 1995. The principle of this exclusion of the day of the happening of the event has become a principle of general acceptance.”
By the same token, in the case of Yusuf v Obasanjo (2003) 16 NWLR (Pt.847) 554 at 629-630, Uwaifo, JSC, observed:
“Section 132 (of the Electoral Act, 2002) provides that: “An election petition may be presented within thirty (30) days from the date the result of the election is declared.” It is not in dispute that the presidential election result in question was declared on 22 April, 2003. The petitioners in this case had 30 days within which to appeal against it. The 30 days will be calculated from 23 April to end on 22 May, 2003. Section 15(2)(a) of the Interpretation Act… makes similar provision . … The petition was filed on 2 May, well within time.”
Similarly, in the recent case of Ezeigwe v Nwawulu (2010) a NWLR (Pt.1183) 159 at 196, Onnoghen, JSC, re-echoed this hallow principle of law. He stated:
“. . . The law is now settled that in calculating or computing time stipulated by statute, generally the first day of the period will be excluded from the reckoning while the last day will be included except, where the last day is a public holiday in which case the end of the following day, which is not a public holiday, will be included – see section 15(2) of the Interpretation Act ….”
The wisdom behind the exclusion of the day of the occurrence of an event, in computation of days, was succinctly explained by Oputa, JSC, in the case of Akeredolu v Akinremi (supra), at pages 804-805, in these illuminating words:
“. . . Excluding the date on which the event happened that gave rise to the computation accords with good sound common-sense, otherwise one will be faced with the difficulty of calculating a fraction of a day as a day. It is my humble view that unless expressly so provided by statute, to argue that a fraction of a day is equal to a whole day involves the ineradicable fallacy of making a part equal to a whole. Such an interpretation would be an assault on common-sense and would do violence to the plain meaning of words.
To avoid regarding part of a day as a whole day, the day on which the event happened should be excluded from the computation.
The judgment now appealed against could not have been delivered at 12 mid-night of 9th April 1985. If it were delivered any time after sum (when the courts usually begin sitting) then the present Applicants are being allowed less than the 3 months granted them by s.31 (a) of the Supreme Court Act, 1960.”
Given the foregoing immutable position of the law, the 9th April, 2007, on which the result of the election was declared, would not be counted in calculating the thirty (30) days for the first and second respondents to file their petition. The law, as x-rayed above, makes it clear that their time will begin to run on 22/04/2007. Their thirty (30) days will end on 21/05/2007. It was a common ground that that date, 21/05/2007, was a Sunday. Going by the sacred provision of section 15(2), (3) and (5) of the Interpretation Act, that date, being a Sunday, was a deis non juridicus – a non judicial day. The Interpretation Act, section 15(5) thereof, makes Sunday a public holiday even as section (3) of the section 15 of the Act validates any acts performed on a day following it. In law, where a word in a statute is legally defined, that meaning is ascribed to that word by courts in subsequent proceedings on the footing of stare decisis, see Diapianlong v Dariye (2007) 8 NWLR (Pt.1036)332 at 447, per Aderemi, JSC. The point I am struggling to ram home is that the petition was not filed beyond thirty (30) days as ordained by section 141 of the Electoral Act, 2006. I, therefore, hold that the petition did not offend or desecrate that sacrosanct provision.
Let me place on record, ex abundanti cautela, that the Interpretation Act is applicable to all legislations. Little wonder, section I of that Act provides: “This Act shall apply to the provisions of any enactment except in so far as the contrary intention appears in this Act or the enactment in question.” That is noted in the case of Ahmed v FGN (2009)13 NWLR (Pt.1159)536. Similarly, it is applicable to all proceedings, criminal and civil alike; see Shekete v N.A.F (2007)14 NWLR (Pt.1053)159. Interestingly, throughout the length and breath of the 166 section Electoral Act, 2006, it never barred the application of the Interpretation Act to it. Nor does the Act exclude the Electoral Act, 2006 from its domain of application.
Altogether, the first respondent’s petition, filed on 21/05/2007, was presented within the four walls of the period circumscribed in section 141 of the Electoral Act, 2006. In effect, the petition was not entrapped by statute-bar. It was competent. I, therefore, hold that the preliminary objection is devoid of any iota of merit. I too, like my learned brother, overrule it.
The down fall of that preliminary objection takes me to the merits of the appeal. I will comment briefly on the two main issues for determination properly analysed in the leading judgment. I kick off with issue three – “Whether it was right for the Tribunal to have distilled and ascertained for itself, the grounds for the petition under the guise of doing substantial justice when no ground was stated therein.” For a proper resolution of this issue, the provision of section 145(1) of the Electoral Act, 2006 is germane. That section specifies/outlines the grounds upon which any petition should be predicated. In paragraph 12, contained on pages 21-24 of the volume I of the record, the first and second respondents particularized their complaints in the petition against the election.
It admits of no argument that the petitioners did not set out the grounds as entrenched in section 145(1) of the Electoral Act, 2006. Nevertheless, a microscopic examination of paragraph 12(i) – (xiii) of the petition shows that the relevant grounds are encapsulated, embedded or wrapped therein. It can be gleaned, from that paragraph, that the petitioners’ grounds were that the election was invalid for “non-compliance with the provisions of this Act” and that the respondents therein (the appellants herein) were “not duly elected by majority of lawful votes cast at the election”.
In holding this, humble, view I am emboldened by the law that pleadings are read holistically in order to discern the gist of the case of a party. They are not construed in fragments. In the case of Okochi v Animkwoi (2003)18 NWLR (Pt.851) 1 at 24, Tobi, JSC, stated:
“…In dealing with pleadings, a court must read all the paragraphs together to get a flowing story of the parties and not a few paragraphs in isolation. It is the totality of the pleadings, whether it is the statement of claim or the statement of defence, that state the case of the party and it will be injustice to invoke only a few paragraphs to come to the conclusion.”
See, also, Nigerian Army v Aminu-Kano (2010) 5 NWLR (Pt.1188) 429. Just to add that a petition is to an election petition what a statement of claim is to a civil proceeding, see Egolum v Obasanjo (supra). The lower tribunal was, therefore, acting in consonance with the law when it considered the entire petition to decipher the grounds.
Indeed, to do otherwise would have been akin to the lower tribunal worshipping and idolizing technicality whose heydays are already decreed over in the Nigerian legal system.
Nowadays, a court is enjoined, at all times, to do substantial justice. A court must not slaughter substantial justice on shrine of technicality. In the case of Maersk Line v Addide Invest. Ltd. (2002)11 NWLR (Pt.778) 3ll at 383, Ayoola, JSC, noted:
“The judicial process malfunctions and is discredited when it is bogged down by technicalities and is manipulated to go from technicality to technicality and thrive on technicalities. That is why, at all times, the tendency towards technicality should be eschewed and the determination to do substantial justice should remain the preferred option and the hallmark of our judicial system.”
See, also, C & C Const. Co. Ltd v Okoli (2003) 18 NWLR (Pt.851)79; Egolum v Obasanjo (supra); Famfa Oil Ltd. v A.-G., Fed. (2003)18 NWLR (Pt.852) 453; Akpan v Bob (2010) 17 NWLR (Pt.1223)421.
Going by the above analyses, it is my view that those grounds, upon which the petition was grounded on, were apparent and decipherable from the petition. In the end, I resolve this issue (three) against the appellants. The last issue was a product of the amalgamation of issues one, two, four, five, six, seven, eight and nine in the leading judgment. The meat of that issue was whether the lower tribunal was right to have relied on rejected exhibits, exhibits P1 (a) – (j)-P30(a)-(f), P11(a) – (q), register of voters for the wards and exhibits P90 – some averments in some paragraphs of the depositions of the first respondent’s additional witness statement on oath.
Generally, by law, a court is not at liberty to utilise a process it has already declared inadmissible or rejected as the basis of its decision. In the case of Agbaje v Adigun (1993)1 NWLR (Pt.269)261 at 272, Ogundare, JSC, held:
“The learned trial Chief Judge, realising his error in rejecting the document could have called on the parties to first address him on admissibility before suo motu admitting the document in evidence in judgment. Quare if he could even reverse himself as he had done in this case. It may be that the learned trial Chief Judge had in mind a situation where evidence is admitted on facts not pleaded. The law is that in a situation such as the latter, the trial Judge must expunge such evidence from the record when considering his judgment since it does not go to any issue and cannot be legal evidence upon which he could make a finding of fact.
That is a different situation to the one in hand.
The disputed document having been rejected in evidence cannot be made use of. The learned trial Chief Judge cannot sit on appeal on his own decision. It must be left with the Court of Appeal when the issue is raised before that court to decide whether or not the said evidence was rightly rejected in evidence. I am therefore, of the view, with profound respect to the learned trial Chief Judge, that he was wrong in admitting the document in evidence when writing his judgment.”
See, also, A.C.B. Ltd. v Gwagwada (1994) 5 NWLR (Pt.342) 25; U.B.N v Ozigi (1994) 3 NWLR (Pt.333) 385. One other instance, apart from that mentioned in the case of Agbaji v Adigun (supra), in which a court is allowed to reverse itself, in his judgment on a ruling made at interlocutory stage, is where a rejected document is at all events inherently inadmissible. In that situation, a court discards sticking to the ageless doctrine of functus officio, see Shanu v Afribank (Nig) Plc (2002) 17 NWLR (Pt.795)185; Duro Saro v Ayorinde (2005) 8 NWLR (Pt.927) 407. There was no evidence, before the lower tribunal, that those exhibits were at all events inherently inadmissible.
Flowing from the above dissected state of the law, it is safe to conclude that what the lower tribunal did, placing reliance on those rejected exhibits in its judgment, constituted an affront to the law. By that unwarranted and untoward volte face, the lower tribunal, to my mind, constituted itself, without the blessing of the appropriate authority, into a an appellate court and suo motu reversed its decision at the interlocutory stage.
The law, seriously, frowns upon that later about-face posture of the lower tribunal. Worse still, that somersault, as it were occasioned miscarriage of justice to the appellants in that this court “… after examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favourable to the appealing party would have been reached in the absence of the error complained of,” see Akpan v Bob (2010)17 NWLR (Pt.1223) 421 at 479, Per Muhammad, JSC. In sum, the lower tribunal, with all due reverence to it, erred in law when it used those, previously, rejected exhibits as the touchstone to jump-start the petition filed by the first and second respondents. On this score, I resolve that issue (three) in favour of the appellants.
Having regard to the reasons proffered above, and coupled with fuller reasons adduced in the leading judgment, I too allow the appeal. I abide by the orders made in the leading judgment.
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Appearances
Uyi Igunma & M. I. AbubakarFor Appellant
AND
S.O. Maikenti for the 1st and 2nd Respondents
Feyijimi Saseyi (Mrs) & Orianwo Wendy (Miss) – for the 3rd – 316th RespondentsFor Respondent
