SENATOR IBRAHIM SAMINU TURAKI & ANOR V. ALHAJI DANLADI ABDULLAHI SANKARA & ORS
(2011)LCN/4973(CA)
In The Court of Appeal of Nigeria
On Thursday, the 8th day of December, 2011
CA/K/EP/NA/38/11
RATIO
ISSUES FOR DETERMINATION: WHETHER AN ISSUE FOR DETERMINATION CAN BE DISTILLED FROM MORE THAN ONE GROUND OF APPEAL
Nonetheless, I have looked at the processes and it is clear that the complaints in the Grounds of appeal not mentioned in their brief are covered by other Issues for determination. After all, it is well settled that it is not every ground of appeal that raises an issue for determination. Sometimes, one ground of appeal may raise an issue, of other times a combination of facts on the grounds of appeal may together raise an issue for determination – see Iwuoha V. NIPOST (2003) 8 NWLR (Pt. 822) 308 SC and S.C.D. & C.C. Ltd. V. Katonecrast Nig. Ltd. (1986) 5 NWLR (Pt.44) 791.This is clearly manifested in the 1st Respondent’s brief where Issue 1 is distilled from Grounds 1, 7 and 8; Issue 2 from Grounds 2, 3, 4, 5, 9, 10 and 12; Issue 3 from Ground 6; and his Issue 4 is distilled from Ground 11. PER AMINA ADAMU AUGIE, J.C.A
ISSUES FOR DETERMINATION: ATTITUDE OF THE COURT WHEN A PARTY FAIL TO PROFFER ANY ARGUMENTS OR SUBMISSIONS IN SUPPORT OF THE ISSUES FOR DETERMINATION
The Appellants did not proffer any arguments or submissions in support of Issues 5, 6 and 7, and the said Issues must be deemed abandoned, and are struck out. PER AMINA ADAMU AUGIE, J.C.A
FORGERY: WHAT IS FORGERY
Now, “forgery” is the act of fraudulently making a false document or altering a real one to be used as if genuine – see Black’s Law Dictionary, 9th Ed… PER AMINA ADAMU AUGIE, J.C.A
UNCONTROVERTED EVIDENCE: CONSEQUENCE OF NOT CHALLENGING OR UNCONTROVERTING AN EVIDENCE RELIED UPON BY AN ADVERSE PARTY
Based on the detailed explanation of PW4 about how Exhibit P3 was issued in replacement of the original certificate which was lost, her evidence could not be doubted. Learned Counsel could have taken steps to pray the Tribunal to call the officials of the Jos South Education Authority referred to by the PW4 and that would have proved whether or not PW 4 was lying. Having not done so, the evidence of PW4 remains unimpeachable and becomes evidence of a witness against a party who called him. How do the Courts treat such evidence? Again the Supreme Court provided the answer in the case of ODI V. IYALA (SUPRA) … (See also OJIEGBE V. OKWARANYA (1962) 2 SCNLR 358, OKAI V. AYIKAI (1946) 12 WACA 31). PER AMINA ADAMU AUGIE, J.C.A
SUBPOENA: WHAT A SUBPOENA ENTAILS
“Subpoena” is Latin for “under a penalty”, but it is also a “writ or order commanding a person to appear before a Court, subject to a penalty for failing to comply” – see Black’s Law Dictionary, 9th Ed. PER AMINA ADAMU AUGIE, J.C.A
SUBPOENA: TYPES OF SUBPOENA; WHETHER A WITNESS UNDER A SUBPOENA DUCES TECUM CAN BE CROSS-EXAMINED
There are two varieties subpoena ad testificandum used to compel a witness to attend and give evidence, and subpoena duces tecum used to order a person to appear and to bring specified documents or records. The subpoena could also order a person to do both – see Lagos & Anor. V. Jibrin & Ors (2005) LPELR – CA/K/EP/SHA/49/07, wherein I said –
“…Where a party brings a witness to Court on a subpoena duces tecum, merely to produce documents, as in this case, he need not be sworn and he cannot also be cross-examined. It is only where he is issued with a subpoena ad testificandum ordering him to appear and give evidence that he would be cross-examined”. PER AMINA ADAMU AUGIE, J.C.A
CREDIT OF A WITNESS: WAYS BY WHICH THE CREDIT OF A WITNESS MAY BE IMPEACHED
In addition to section 230 and 231 of the Evidence Act 2011, which deal with how far a party may discredit his own witness, and proof of contradictory statement of hostile witness, section 210 of the same Evidence Act further provides as follows – “The credit of a witness may be impeached in the following ways by any party other than the party calling him or with the consent of the Court by the party who calls him- (a) By the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit; (b) By proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence; (c) By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. PER AMINA ADAMU AUGIE, J.C.A
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
Between
1. SENATOR IBRAHIM SAMINU TURAKI
2. ACTION CONGRESS OF NIGERIA (ACN) Appellant(s)
AND
1. ALHAJI DANLADI ABDULLAHI SANKARA
2. PEOPLES DEMOCRATIC PARTY [PDP]
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION [INEC]
4. THE PRESIDING OFFICER OF THE NORTH WEST SENATORIAL DISTRICT, JIGAWA STATE
5. THE RETURNING OFFICER, NORTH WEST SENATORIAL DISTRICT, JIGAWA STATE Respondent(s)
AMINA ADAMU AUGIE, J.C.A (Delivering the Leading Judgment): In the Petition they filed at the Jigawa State National and State House of Assembly Election Tribunal, the Appellants challenged the declaration of the 1st Respondent as the elected Senator representing the North-West Senatorial District of Jigawa State, on the following Grounds –
(i) That the 1st Respondent was at the time of the election not qualified to contest the election.
(ii) That the election is invalid by reason of non-compliance with the provisions of the Electoral Act 2010.
(iii) That the election was invalid as same was marred by corrupt practices.
(iv) That the 3rd – 5th Respondents wrongly computed majority of lawful votes cast at the election by accepting as valid unlawful votes counted as cast for the 1st Respondent even though the said figures were altered and inflated.
(v) That the election is invalid by reasons of corrupt practices.
They, therefore, prayed the Tribunal to determine as follows –
a) the said Danladi Abdullahi Sankara (alias Danladi Ibrahim Sankara) at the time of the election is not qualified to contest the election.
b) That the election was invalid by reasons of corrupt practices or noncompliance with the provisions of the Electoral Act 2010.
c) That the 1st Respondent was not duly elected by majority of lawful votes cast at the election.
d) That the election of the 1st Respondent be nullified on the ground that he was not qualified to contest election and declare the Petitioner as the candidate elected having satisfied the requirements of the Constitution of the Federal Republic of Nigeria 1999 and the Electoral Act.
e) THAT IT BE DETERMINED that the 1st Petitioner is entitled to be returned by the 3rd, 4th and 5th Respondents as having been duly elected Senator for Jigawa North-West Senatorial District having recorded 148, 595 majority of the valid and lawful votes cast at the election.
The two sets of Respondents that is – 1st & 2nd Respondents and 3rd to 5th Respondents, denied all the allegations in their Replies to the Petition, and at the hearing thereof, the 1st Appellant testified and called three other witnesses, including PW4 – Mrs. I. P. Chundung, the Head Mistress of Kuru Jenta 3 Primary School, who was subpoenaed by them to testify.
The 1st Respondent also testified as DW1, but called no other witness, while the 3rd to 5th Respondents did not call any witness as at all.
Written addresses were filed and adopted, and in its Judgment delivered on the 10th of October 2011, the Tribunal found against the Appellants. Dissatisfied with the decision of the Tribunal, the Appellants filed a Notice of Appeal containing twelve Grounds of Appeal in this Court, and they formulated eight Issues for Determination from the said Grounds in their Brief of Argument prepared by Adamu Abubakar, Esq., as follows –
1) Whether the Election Tribunal was not wrong in holding that the Appellants did not prove the allegation of non qualification and presentation of forged certificate beyond reasonable doubt when there was sufficient oral and documentary evidence before the Tribunal to prove same.
2) Whether the Election Tribunal was not totally wrong in its assessment and evaluation of the evidence of PW4 viz-a-viz Exhibit P.3 when it held that the Petitioner could not impeach PW4 and that her testimony rather than support the case of the Petitioner strengthened the case of the Respondents.
3) Whether the Election Tribunal was right when it held that evidence as concerned presentation of Form CF.001 and Exhibits P.2 and D.1 are about pre election matters which is outside its jurisdiction and went ahead to expunge it from the proceedings.
4) Whether by the combined effect of Section 65(1) (a) and 318(1) of the Constitution of the Federal Republic of Nigeria the lower tribunal was not in grave error to have held that the 1st Respondent was educated up to School Certificate level or its equivalent.
5) Whether the Tribunal was right when it held that allegation of non compliance with the statutory provisions of Electoral Act must be proved beyond reasonable doubt.
6) Whether the Election Tribunal was not wrong in holding that failure of the Petitioner to reply to the 1st and 2nd Respondents’ reply amounted to admission of averments in paragraph 6 (d) (i – iii) of the reply.
7) Whether the Tribunal was not wrong in its lopsided assessment, analysis and evaluation of evidence before it which has occasioned miscarriage of justice.
8) Whether the Judgment delivered by the Tribunal has no legal consequences when same did not carry on it any date of delivery.
The 1st Respondent filed a separate brief settled by Ibrahim Isyaku, SAN, wherein it was submitted that the Issues arising for determination are –
(1) Whether the trial Election Petition Tribunal was correct in holding that the Standard of Proof required to establish the allegations that –
(a) Exhibit P.3 presented to the INEC by the 1st Respondent is a forged document; and
(b) Of non-compliance with certain provisions of the Electoral Act, is proof beyond reasonable doubt.
(2) Whether, having regard to the state of pleadings and evidence adduced, the trial Election Petition Tribunal was correct in its finding that the 1st Respondent was educated up to the School Certificate level,
(3) Whether there was a failure on the part of the trial Election Petition Tribunal to properly evaluate the evidence adduced and which said failure resulted in a decision that is perverse.
(a) Whether the Judgment of the trial Election Petition Tribunal is invalid by reason of its being, as alleged, undated.
The 2nd Respondent noted in its brief settled by Felix Jones Osimerha, Esq. that the Appellants did not proffer arguments on Issues 5, 6 and 7, and failed to distil Issues from Grounds 5, 10, 11 and 12 of their Grounds of Appeal, and citing Madam Akon Iyho V. E.P.E. Effiong (2007) 11 NWLR (pt. 1044) 31 and Ogbe V. Asade (2009) 18 NWLR (Pt. 1172) 106, they urged us to discountenance the Issues and Grounds of Appeal.
Now, grounds of appeal allege complaints against a Judgment but it is the Issues for determination that guide arguments and submissions in support of the complaints in the Grounds of appeal, so, where no issue is formulated from a Ground of Appeal, and no argument on the Ground is made out in the brief of argument, this Court will treat the Ground as abandoned and strike it out – see Ejura V. Idris (2006) 4 NWLR (Pt. 971) 538 & Sekoni V. UTC (Nig.) Ltd. (2006) 8 NWLR (Pt. 982) 282.
In this case, the Appellants clearly stated in their brief that Issue 2 “is distilled from Grounds two, three and six of the Notice of Appeal”;
Issue 1 from Grounds one and eight; Issue 3 from Ground nine; Issue 4 from Ground four; and that Issue No.8 is distilled from Ground seven, which is obviously a mistake as Issue 8 is distilled from Ground eleven.
Even though they filed a Reply Brief, the Appellants did not explain what their position is regarding the said Grounds of Appeal and said Issues.
Nonetheless, I have looked at the processes and it is clear that the complaints in the Grounds of appeal not mentioned in their brief are covered by other Issues for determination. After all, it is well settled that it is not every ground of appeal that raises an issue for determination.
Sometimes, one ground of appeal may raise an issue, of other times a combination of facts on the grounds of appeal may together raise an issue for determination – see Iwuoha V. NIPOST (2003) 8 NWLR (Pt. 822) 308 SC and S.C.D. & C.C. Ltd. V. Katonecrast Nig. Ltd. (1986) 5 NWLR (Pt.44) 791.This is clearly manifested in the 1st Respondent’s brief where Issue 1 is distilled from Grounds 1, 7 and 8; Issue 2 from Grounds 2, 3, 4, 5, 9, 10 and 12; Issue 3 from Ground 6; and his Issue 4 is distilled from Ground 11. Even so, the other aspect of the 2nd Respondent’s objection must be upheld. The Appellants did not proffer any arguments or submissions in support of Issues 5, 6 and 7, and the said Issues must be deemed abandoned, and are struck out.
Be that as it may, the 2nd Respondent adopted “the five Issues 1, 2, 3, 4 and 8” formulated by the Appellants. The 3rd – 5th Respondents also adopted the Appellants’ Issues in their brief settled by B.A. Oyefeso, Esq., which are the said “five issues”, and I will do same in dealing with this appeal. However, it is my view that issue 2, which touches on the evaluation of oral and documentary evidence before the Tribunal, comes within the purview of Issue 1, and they will be considered together.
Now, “forgery” is the act of fraudulently making a false document or altering a real one to be used as if genuine – see Black’s Law Dictionary, 9th Ed., and to make sense of the allegation that the 1st Respondent was not qualified to contest the election, we will have to look closely at the evidence before the Tribunal, and its reasoning and conclusions thereon.
The Appellants averred as follows in paragraph 12 of their Petition –
“Your Petitioner contends that the 1st Respondent was not qualified to contest the said election in that –
(a) He was not validly nominated as his nomination was based on false information supplied and accompanied with false declaration as to the primary, secondary schools and tertiary institutions attended”.
(b) He has presented to the Commission forged Certificates of Primary, Secondary Schools, National Diploma, Higher National Diploma and purported Ph. D in Public Administration”.
(c) He is not educated up to at least Secondary School level.
In another paragraph 12(a) of the same petition, they pleaded as follows-
Your Petitioner further contends that the 1st Respondent by his own unsolicited statement in a forum admitted that he never attended any school; the audio recording of the said admission is hereby pleaded and will be founded upon.
In their Joint Reply to the Petition, the 1st and 2nd Respondents denied all the allegations, and pleaded as follows in their paragraph 6 (a) to (d) –
“The 1st and 2nd Respondents deny paragraph 12(a) – (e) of the Petition and put the Petitioners to the strictest proof thereof.
(a) … the 1st and 2nd Respondents aver that the 1st Respondent was validly nominated and his nomination was based on correct and genuine information and declaration as to the Primary School he attended and the qualifications he has to contest the said election. The 1st Respondent did not supply any information or make any declaration to the effect that he attended any secondary school or any tertiary institution.
(b) … the 1st and 2nd Respondents aver that the 1st Respondent did not present forged certificates of primary, secondary schools, National Diploma and Higher National Diploma and purported Ph.D. in Public Administration to the Commission as alleged in the Petition nor has the 1st Respondent ever claimed to possess secondary school, National Diploma, Higher National Diploma or Ph. D. in Public Administration.
(c) The 1st and 2nd Respondents state further that the 1st Respondent’s particulars of educational institutions supplied to the Commission in INEC’s Form CF001 (Affidavit in support of personal particulars) are:
(i) Jenta Kuru III Primary School, Kuru, Jos 1963 – 1970.
(ii) Institute of Youth Development Kano, which the 1st Respondent attended between 2000 – 2001 and the 1st Respondent’s qualifications are:
i. Diploma in Computer Data Processing (2000 – 2001).
ii. Primary School Certificate 1963 – 1970.
(d) … The 1st and 2nd Respondents aver that whilst it is true that he is not formally educated up to at least Secondary School level, he possesses the basic requisite educational qualification of “school Certificate or its equivalent” as prescribed in the 1999 Constitution of Nigeria (as amended) which qualifies him to contest the election into the Senate of the Federal Republic of Nigeria as he has been educated up to at least School Certificate level or the equivalent, to wit.
(i) The 1st Respondent attended JENTA (i.e. JANTAR) III Kuru Primary School for his primary education between 1963 to 1970 at the end of which he obtained his certificate of primary education. The 1st Respondent hereby pleads the Certified True Copy of the Certificate of Primary Education issued to him as the original has been lost and all efforts made by the 1st Respondent to find same proved abortive.
(ii) (He) has since 1986 been the Chairman/Managing Director of Sankara Nigeria Limited a company incorporated on 23/1/1986 with RC No. RC79803 and which registered office is situated (sic) at B.U.K. Road, Kano. The 1st Respondent hereby pleads the Certified True Copies of the Certificate of Incorporation and the particulars of Directors (Form C.07) of the said Sankara Nigeria Limited and will rely on them at the trial of this Petition.
(iii) (He) has served as a Part-time Chairman of the Board of Hadejia Jema’are River Basin Development Authority for a period of four years from 2nd June 2000 to 7th July 2004, having been so appointed by the President Chief Olusegun Obasanjo, (GCFR) at the material time. The 1st Respondent hereby pleads the Letter of Appointment into the said position dated 22nd June 2000 … as well as the Letter of Dissolution of the Board of the said Hadejia Jema’are River Basin and Rural Development Authority dated 7th July, 2004…
(iv) (He) attended the Institute of Youth Development (Sani Abacha Youth Centre, Kano) between 2000 to 2001 for a Diploma Programme in Computer Data Processing, which the 1st Respondent successfully completed and was awarded a Certificate by the said institute.
(v) In addition … the Respondent can read, write, understand and communicate in English Language perfectly well.
(vi) (He) has also been awarded an Honorary Doctorate Degree in Public Administration by All Saints University of America on 12th November 2002 through the Nigeria Co-ordinator, Leadership Trust Foundation Nigeria.
(vii) (He) also served as the P.D.P’s National Vice Chairman (North-West Zone) from 4th March 2008 to 24th December 2008 when he voluntarily resigned the post.
(viii) That the qualification possessed by the 1st Respondent were acceptable to and have been accepted by the 3rd Respondent as sufficient and qualifying the 1st Respondent within the meaning of Sections 177 and 318 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to contest election into the Senate of the Federal Republic Nigeria.
They further averred in Paragraph 7 of their Joint Reply to the Petition –
“The 1st and 2nd Respondents deny the second paragraph 12(a) of the Petition and put the Petitioners to the strictest proof thereof and will contend at the trial of the Petition that all that the 1st Respondent said was that he did not complete his secondary school education which he started.
In their response to the allegation of non-qualification, the 3rd to 5th Respondents averred as follows in paragraph 5(b) of their own Reply –
“The Commission is not aware of any false information or false declaration of any document presented to the Commission by the 1st Respondent. The Petitioner is put to proof of the allegation”.
The Tribunal identified “two limbs or aspects” to the said allegations that “the 1st Respondent was not validly nominated as his nomination was based on false information supplied and accompanied with false declaration as the primary, secondary and tertiary institution attended”, which we will consider later in this Judgment; and that he presented forged Primary School Certificate to INEC, whereon the Tribunal held –
“… It Petitioner ended his evidence without tendering Audio Cassette where 1st Respondent’s declaration that he never attended any school was recorded.
Thereafter Petitioners fielded PW4 – Mrs. Chundung Isaac Pam who is the Headmistress of Jenta Kuru III Primary School, Jos where the 1st Respondent claimed he had his primary school education … A summary of her evidence is that she was posted to the school in 2008 as Headmistress and sometime in the same 2008, 1st Respondent came to the school and requested to be issued a Certified Copy of his Primary School Leaving Certificate. (He) told her that he was a pupil of that school from 1963 to 1970 when he obtained his First School Leaving Certificate but that he has lost the original of the Certificate. PW4 said she interogated 1st Respondent who mentioned names of some of his mates in the school and some hamlets around the school area.
PW4 said she told (him) to go and come back in about two week’s period to enable her search through the school records. As 1st Respondent went away, she searched through the Register of pupils of the school and saw 1st Respondent’s name. She also saw duplicate copy of the Certificate. She was therefore convinced that 1st Respondent was a pupil of that school. She took the duplicate copy of the Certificate of Jos South Local Government Education Authority and relayed the request made by 1st Respondent to officials of the Education Authority. The officials gave her Blank copy of the Certificate and asked her to fill it up with exactly the same details contained in the duplicate she had to enable her re-issue the certificate to 1st Respondent. PW4 said she went back to the school and copied all the details in the duplicate Certificate into the blank copy supplied to her at the Education Authority of Jos South Local Government Council. Having done as she was instructed, she went back to the officials of the Education Authority who after verification, certified it as correct and authorized her to re-issue that copy to the 1st Respondent to replace his lost Certificate. PW4 said she too certified the new copy. When 1st Respondent came, she issued that copy which she was authorized to complete and kept the duplicate at the school.
When asked by Counsel where that duplicate and the School Register were on the day she testified PW4 said the duplicate of the original Certificate and the School Register of pupils were burnt during the recent Jos crisis. That was how her evidence ended after Counsel for the Petitioners tendered certified copy of the re-issued Certificate in evidence through her as Exhibit P3. PW4 was not cross-examined by Counsel for 1st and 2nd Respondents.
She was however cross-examined by Counsel for 3rd – 5th Respondents and she gave the same explanations as in her evidence in chief, and her evidence closed and the Petitioners closed their case. 1st and 2nd Respondents in their defence on this issue through 1st Respondent as DW1 gave evidence that is in all respect in conformity with the evidence of PW4 and even when he was cross-examined by Counsel for the Petitioners. Given the state of evidence as herein reviewed, did the Petitioners prove the allegation that 1st Respondent presented to the Commission forged Primary School Certificate as pleaded? Out of misconception on the part of Counsel on both sides a lot of their arguments and submissions centered on the genuineness or otherwise of Exhibits P2 or D1 which are the Forms CF001 allegedly completed and submitted by the 1st Respondent for the purpose of his nomination. Having decided that the issue of Nomination is a pre-election matter which this Tribunal is not invested with jurisdiction to entertain, it consequently becomes unnecessary if not idle for energy to be dissipated on, deciding which of the Form CF001 emanated or was authored by the 1st Respondent. What becomes relevant and tenable for consideration is the issue of what educational certificate did the 1st Respondent present to INEC for accepting him as candidate for the electron; is it a genuine primary school Certificate or a forged one as alleged and pleaded by the Petitioners?
Based on the detailed explanation of PW4 about how Exhibit P3 was issued in replacement of the original certificate which was lost, her evidence could not be doubted. Learned Counsel could have taken steps to pray the Tribunal to call the officials of the Jos South Education Authority referred to by the PW4 and that would have proved whether or not PW 4 was lying. Having not done so, the evidence of PW4 remains unimpeachable and becomes evidence of a witness against a party who called him. How do the Courts treat such evidence? Again the Supreme Court provided the answer in the case of ODI V. IYALA (SUPRA) … (See also OJIEGBE V. OKWARANYA (1962) 2 SCNLR 358, OKAI V. AYIKAI (1946) 12 WACA 31). The end-result of the analysis of the matter is that evidence of PW4 rather than enhance the case of the Petitioners, supported and affirmed the position of the 1st Respondent, Finally, on this issue of non-qualification is that Learned Counsel for the 1st and 2nd Respondents and the Learned Senior Advocate for the 3rd – 5th Respondents contended that allegation of forgery in election matter is one that is criminal in nature. The Learned Counsel for the Petitioners seemed not to be in disagreement with the contention and we dare say that the issue is indeed non-sequitur. What it therefore means is that for the Petitioners to succeed on the allegation, they must provide proof beyond reasonable doubt.
From the analysis of the matter made so far, Petitioners not only failed to prove the issue of forgery beyond reasonable doubt, indeed, they failed to provide any proof at all. The result is that the 1st issue for determination which is whether the 1st Respondent was at the time of the election not qualified to contest the election to the National Assembly … is hereby resolved in favour of the Respondents, particularly the 1st Respondent.
The Appellants first of all complained that Exhibit P.3, the copy of the School Certificate brought by PW4, has irreconcilable discrepancies. i.e. “a Head Mistress who assumed office in 2008, produced a “fresh” certificate, made a copy of same, back dated it in 1970, certified it in 1970″, and that PW4 who appeared on a subpoena at their instance, “could not be cross examined even when she was proving hostile”.
It is, therefore, their contention that “the main issue in this appeal is whether a Court of law could close its eyes on irregularities that manifest itself on documentary evidence before it and refused to examine it”, and arguing Issue 2 first, they submitted that if PW4 was a willing witness, there would have been no need to issue her with a subpoena; that the Tribunal has a duty to give effect to the material contents of the evidence before it, and where it fails to apply to do so, this Court will not hesitate to interfere, citing ACB Ltd. V. Sodeinde Bros Nig. Ltd. (FCA/I/79/78 of 23/10/50) and Pilling v. Aberegele UDC (1950) 1 All ER 76; that the onus of proof rests on he who asserts, citing Section 135(1), 136 &137 of the Evidence Act, Iyere V. BFFM Ltd (2001) ALL FWLR (Pt.37) 116, Muhammed V. DHL Int. Ltd (2001) ALL FWLR (pt.38) 1312. They further argued that even if Exhibit P.3 is the fresh certificate obtained from the LGA, the manner in which it was procured cannot be ignored by the Tribunal without making finding on it; that the Tribunal failed to be guided by Section 149 of the Evidence Act, so failed to take into account what it is likely to have happened; that a Court cannot ignore the discrepancies on Exhibit p.3 and the evidence of PW4 as to how it was procured, as “no polluted hand shall touch the pure foundation of justice”, citing Alhaji Zein V. Alhaji Geidam (2004) ALL FWLR (pt.237) 457, Adedeji V. NBN Ltd. 1989) 1 NWLR (pt.96) 218 that a Judge is expected to closely examine documentary evidence, and comment on it, citing Tangale Traditional Council V. Fawa (2001) 17 NWLR (pt.742) 293.
The 1st Respondent’s position is that PW4 satisfactorily explained how she issued and certified Exhibit P3, and the circumstances under which Exhibit P3 was issued cannot pass for “forgery” in the absence of evidence from the Local Government Authority denying what PW4 said.
The 2nd Respondent argued along the same lines, and added that the Appellants did not say what provision of Section 149 of the Evidence Act is to be invoked in favour of their submission that the Tribunal ought to have drawn inferences from the manner Exhibit P3 was issued to hold it was not genuine; that based on the detailed explanation of PW4, her evidence could not be doubted; that they have to relate any document by oral evidence to an aspect or fact of their Petition to warrant the Tribunal examining same; and that the evidence elicited from PW4 under cross-examination remains the evidence of their witness, which they cannot attack during address, but by cross-examination after the PW4 had been declared a hostile witness under Section 210 of the Evidence Act;
The 3rd – 5th Respondents stated that they adopt the arguments on the issue as contained in the 1st Respondent’s brief; and nothing more. PW4 testified under a subpoena, and her status as a witness is, clearly, an issue. “Subpoena” is Latin for “under a penalty”, but it is also a “writ or order commanding a person to appear before a Court, subject to a penalty for failing to comply” – see Black’s Law Dictionary, 9th Ed. There are two varieties subpoena ad testificandum used to compel a witness to attend and give evidence, and subpoena duces tecum used to order a person to appear and to bring specified documents or records.
The subpoena could also order a person to do both – see Lagos & Anor. V. Jibrin & Ors (2005) LPELR – CA/K/EP/SHA/49/07, wherein I said –
“…Where a party brings a witness to Court on a subpoena duces tecum, merely to produce documents, as in this case, he need not be sworn and he cannot also be cross-examined. It is only where he is issued with a subpoena ad testificandum ordering him to appear and give evidence that he would be cross-examined”.
In this case, the Appellants were granted an Order by the Tribunal directing the Secretary “to issue subpoena ad testificandum et duces tecum to the Headmaster/Headmistress of Jenta Primary School, Kuru, Jos, to produce the Register of the students or pupil of the school from 1963 to 1970, and the original Primary School Certificate No- 90113, and to testify at the hearing of this Petition”. In other words, PW4 was subpoenaed to testify at the Tribunal, and to also produce documents.
The Appellants argued that the Tribunal was wrong to rely on Odi V. Iyala (supra) to hold that since their counsel did not apply to declare PW4 hostile as to cross examine her, he could not comment or impeach her testimony because in this case, PW4 was in Court on a subpoena, while in Odi V. Iyala (supra), the witness was not. Furthermore, that she could have been asked to produce a document without being asked to give evidence and the Tribunal could not accept the document blindly without critically examining it; and that the testimony so made by PW4, which the counsel to the Appellants harped his attack was elicited from the cross examination by the counsel to the 3rd to 5th Respondents.
The 2nd Respondent countered that PW4 was their witness, and there is no difference between a witness under subpoena to testify and one not under subpoena; that their argument that PW4 could have been subpoenaed to produce document without testifying, etc., is not the law, as that would have amounted to dumping of document, which the Tribunal would have discountenanced; that the evidence elicited from PW4 under cross-examination, still remains their evidence, which they cannot attack by way of an address, but only way of cross-examination after she had been declared a hostile witness under Section 210 of the Evidence Act and that the Tribunal rightly applied the decision in Odi V. Iyala (supra) in holding that they cannot impeach the credibility of their witness, PW4, whom they did not apply to declare a hostile witness.
Let us look at the facts carefully. In their Application for a subpoena ad testificandum et duces tecum, the Appellants also prayed for leave to “bring one additional witness, and “amend their list of witnesses”, which were granted by the Tribunal. They averred in the supporting Affidavit –
4(b) – That one of the Grounds of the Petition has to do with no qualification of the 1st Respondent at the time of the election.
4(c) – That among the facts in support of the Ground stated in (b) above is that the 1st, Respondent lied on oath and submitted forged certificates to the 3rd Respondent.
5) That since the 1st Respondent has admitted not attending Secondary School or tertiary institution earlier claimed but Primary School, the Petition can better be determined if subpoena ad testificandum et duces tecum is issued to the Headmaster/Headmistress of Jenta Primary School…”
Obviously, they applied for the said subpoena to compel PW4 to testify on their behalf and produce the said documents to prove their allegation, and she is clearly their witness, irrespective of how she came to testify.
The term “witness” in its strict legal sense, means one who gives evidence in a cause before a Court; and in its general sense includes all persons from whose lips testimony is extracted in any judicial proceeding – see Black’s Law Dictionary, 9th Ed. In addition to section 230 and 231 of the Evidence Act 2011, which deal with how far a party may discredit his own witness, and proof of contradictory statement of hostile witness, section 210 of the same Evidence Act further provides as follows –
“The credit of a witness may be impeached in the following ways by any party other than the party calling him or with the consent of the Court by the party who calls him-
(a) By the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;
(b) By proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
(c) By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.The Appellant Complained that PW4 “could not be cross-examined even when she was proving hostile”, but they cannot say that. The decision may be that of the court, but it is settled that an application to treat a witness as hostile should be made as soon as it is obvious that he is hostile or that his testimony will be adverse to the interest of the party.
Obviously, a party who fails to take such steps will be bound by the evidence of such witness, and will not be allowed to complain on appeal – see Odi V. Iyala (supra) where Tobi, JSC observed as follows –
“The Evidence Act anticipated this type of situation and made provision in the Act for a party to treat his own witness as hostile in relevant cases. In my view, the Appellants had all the opportunity to take advantage of Section 207 (Section 230) of the Evidence Act. Since they did not take advantage of the provisions of the Evidence Act, they cannot repair the damage done at the trial in this Court. This Court has not the mechanical tool to effect any repairs”.
No doubt, PW4 is the Appellants’ witness; they could not discredit her evidence at the Tribunal without taking the necessary steps to have her treated as a hostile witness, and cannot now complain to this Court that the Tribunal erred in holding that her evidence “remains unimpeachable and becomes evidence of a witness against a party who called him”. Besides, the Tribunal applied what the law says, which is that where a witness gives evidence against the party that called him, such evidence will be regarded as one against interest, and unless explanations are given to the satisfaction of the Court that such admission should not be regarded, due weight should be given to it as such – see Odi V. Iyala (supra) and Onisaodu V. Elewuju (2006) 13 NWLR (Pt. 998) 517.
The evidence of PW4 is one against the interest of the Appellants. Forgery” is the act of fraudulently making a false document or altering a real one to be used as if genuine, and the evidence of PW4 is to the effect that she prepared Exhibit P.3, after she was authorized to do so.
The long and short of it is that the 1st Respondent could not have fraudulently made Exhibit P.3 or altered it to be used as if it was genuine. As it is, if there were any shady dealings regarding how Exhibit P.3 was prepared and certified by PW4, it is for the Appellants to prove same, but they cannot discredit her testimony without first of all applying to have her declared a hostile witness, which they did not do, and which they can certainly not do in this Court. It is much too late in the day to repair the damage done to their case when they subpoenaed PW4 to testify.
To bring out a clearer picture of the situation with PW4, let us imagine that she had been called by the Respondents to prove that the 1st Respondent did not forge the certificate as alleged by the Appellants. She would then have opened herself up to cross-examination by the Appellants, and without doubt, put to the task as to why she did not just make a copy of the duplicate certificate she sighted, but “produced a “fresh” certificate, made a copy of same, back dated it in 1970, certified it in 1970″, even though she only assumed office as Headmistress in 2008. But the Respondents did not call her as a witness; the Appellants did and having failed to apply to have her declared as a hostile witness so as to enable them discredit her testimony, and whittle down Exhibit P.3, they will have to sink or swim with her evidence as it stands, which is to the effect that she prepared said Exhibit P. 3 and not the 1st Respondent. The Tribunal was therefore right to hold that the evidence of PW4 rather than enhance the case of the Appellants, “supported and affirmed the position of the 1st Respondent. In the circumstances of this case, they cannot be said to have proved the allegation of presenting a forged certificate to INEC, and this Issue is resolved against them.
As I said earlier, the Tribunal identified “two limbs or aspects” to the said allegations, and we now come to its conclusion on the first limb. Relying on the decisions in Saidu V. Abubakar (2005) 12 NWLR (Pt. 1100) 201 Jang V. Dariye (2003) 15 NWLR (Pt. 543) 436, and Chime V. Onyia (2009) 2 NWLR (Pt. 1124) 1, the Tribunal held as follows –
“…The first limb of facts bordering on issue of invalid nomination of 1st Respondent and the issue of whether 1st Respondent made false declaration on Form CF001 (i.e. Exhibit P2 herein) tendered by Petitioners and (Exhibit D1 herein) tendered through 1st Respondent in relation to his nomination to contest the election and all evidence adduced in relation to that issue are related to pre-election matter or issue and – this Tribunal lacks the jurisdiction-to entertain that limb or aspect of the issue of non-qualification of the 1st Respondent to contest the election. A fortiori, all the arguments and submissions of counsel – – in connection with Exhibits P2 and D1 as the case may be in relation to the said limb or aspect of issue of non-qualification of the 1st Respondent are hereby disregarded and discountenanced”.
Exhibit P2 is a copy of an Application for the CTC of Form CF001 tendered by the Appellants, and which the 1st Respondent denied is his. Exhibit D1 is also a copy of Form 001 that the 1st Respondent said is his. Issue 3 questions whether the Tribunal was right to hold that the said Exhibits relate to pre-election matters, which is outside its jurisdiction.
The Appellants said that acting on Section 31(4) of the Electoral Act, they obtained Exhibit P2 to prove the allegation in paragraph 12(b) and (c) of their Petition. They argued that contrary to the Tribunal’s conclusion, it was not about nomination, which is outside its jurisdiction; and that Exhibit D1 was also tendered to establish the type of documents submitted or presented to INEC as reflected in the said paragraph 12(b). This Court was urged to hold that the said Exhibits are properly before the Tribunal and it is within its jurisdiction to consider their import.
The 1st Respondent, however, submitted that the issue here is the weight to be attached to Exhibits P2 and D1, and pointed out that both appear to be the same but the entries on some of the pages are different – Exhibit P2 contains entries that he claimed he attended Government Secondary School, Kuru, Jos and Kaduna Polytechnic, while there were no such entries in Exhibit D1. He further argued as follows in his brief –
“The acknowledgment in line 7 on page 7 (of both Exhibits) reads –
“Received by me, at INEC HQ, ABUJA”.
This primarily, shows that (his) Form CF.001 was in the custody of INEC Headquarters in Abuja and not INEC Office in Dutse, Jigawa. Exhibit P2, which (he) denied, was purportedly obtained from and certified by an officer in the Jigawa State Office of the INEC. No foundation was laid as to whether and when after submission in the Abuja Office, the original was moved to the Jigawa State Office. Conversely, Exhibit D1 which (he) admits was the one he submitted and to which he attached the credentials he listed on page 3 thereof is certified by the Ag. Director (Legal) of the INEC Headquarters in Abuja where the original was submitted and received. If Exhibit P2 was truly submitted by (him), then all the Certificates of the institutions listed on page 3 thereof must have been submitted to INEC also. Where are the INEC certified copies of these certificates since the Petitioners have alleged they were forged? Not having tendered the same it is presumed that they did not sight and obtain the same. How then could they have alleged forgery of unseen certificate? Only the Petitioners, and probably INEC Jigawa Office, can disclose the source of particularly page 3 of Exhibit P2″.
The 2nd Respondent and 3rd – 5th Respondents proffered no arguments on this issue, which in my view, is of no consequence in this appeal. Would the controversy over the said Exhibits have helped the Tribunal, and will it assist this Court in resolving the live issues for determination?
Issue 3 raises an academic question, which cannot in any way affect the determination of the live issues in this matter. It is well settled that Courts do not indulge in answering academic questions as they add nothing to the truth searching process in the administration of justice.
Academic questions do not relate to live issues since such questions are spent and will not enure any right or benefit on the successful party – see Odedo V. INEC (2005) 17 NWLR (Pt. 1117) 554, Plateau State V. A.G. Fed. (2006) 3 NWLR (Pt. 967) 346, Abubakar V. Yar-Adua (2008) 4 NWLR (Pt. 1078) 467, Adeogun V. Fashogbon (2008) 17 NWLR (Pt. 1115) 149 and Olafisoye V. FRN (2004) 4 NWLR (Pt. 864) 580.
The Appellants’ Issue 4 is on the 1st Respondent’s qualification, and the Tribunal had this to say at pages 815 to 817 of the Record –
“…The Petitioners did not file Petitioners’ Reply as provided by paragraph 16(1) of the First Schedule … The implication of non-filing of Petitioners Reply to the 1st and 2nd Respondents’ joint Reply to the Petition is that the Petitioners who did not plead anything in relation to the acquisition of a Diploma Certificate by the 1st Respondent in Data Processing from Sani Abacha Youth Development Centre, Kano, the claim by the 1st Respondent of having been the Chairman/Managing Director of a Limited Liability Company known as SANKARA NIGERIA LIMITED with RC. No. 79803 with Registered Office at B.U.K. road, Kano, and his appointment as Chairman of the Board of Hadejia Jama’are River Basin Development Authority as well as being the P.D.P.’s National Vice Chairman for North-West Zone for the period stated in the Reply were not denied as they were supplementary aspects of 1st Respondent’s qualification to contest the election which was not pleaded by the Petitioners and were as such not questioned or challenged in the Petition in the first instance. Having been raised then as new and additional aspects of his qualifications by 1st Respondent, the Petitioners were as a matter of law required to deny or challenge them if they do not accept them as true or correct by filing Petitioners’ Reply and join issues to those new facts. Having not done so, the position of law is that those new or additional aspects of qualification claimed by the 1st Respondent were not disputed by the Petitioners and were admitted and no further proof of those facts are required from the 1st Respondent…
At the end of the day, the Tribunal concluded as follows at page 829 –
“… The 1st issue for determination which is whether the 1st Respondent was at the time of the election not qualified to contest the election – – is hereby resolved in favour of the Respondents, particularly the 1st Respondent. This is because he has a Primary Six School Leaving Certificate, he also has attended a course for a period of not less than one year duration at the end of which he was awarded a Diploma Certificate in Data Processing (Exhibit 02), he has served in a private sector as chief Executive/Managing Director of a Limited Liability Company since 1986 which position was found acceptable by INEC and he testified before the Tribunal in English Language and his ability to communicate in English Language was in our minds, excellent.”
Now, Section 65 (1) (a) & (2) (a) of the 1999 Constitution provides –
(1) Subject to the provisions of Section 66 of this Constitution, a person shall be qualified for election as a member of-
(a) The Senate, if he is a citizen of Nigeria and has attained the age of 35 years,
(2) A person shall be qualified for election under subsection (1) – IF –
(a) He has been educated up to at least school certificate level or its equivalent.
Section 318 (1) of the same Constitution dealing with interpretation explains that the term “school certificate level or its equivalent” means –
(a) A Secondary School Certificate or its equivalent OR Grade II Teachers Certificate, the City and Guilds Certificate; OR
(b) Education up to Secondary School Certificate level; OR
(c) Primary Six School Leaving Certificate OR its equivalent AND
(i) Service in the public or private sector in the Federation in any capacity acceptable to INEC for a minimum of ten years, AND
(ii) Attendance of courses and training in such institutions as may be acceptable to INEC for periods totaling a minimum of one year,
AND
(iii) The ability to read, write, understand and communicate in the English language to the satisfaction of INEC; AND
(iv) Any other qualification acceptable by INEC. (Highlight mine)
The Appellants referre4 to the above provisions, and submitted that the question is whether the facts listed in the Respondents’ pleadings meet the legal requirement provided under Section 318(1). Answering No they argued that for Primary School Certificate to measure up to School Certificate must have all the requirements listed in sub-paragraphs (i – iii) co-joined together; that the existence of a genuine or unforged Primary School Certificate is first and foremost the foundation upon which any other qualification could be based, and that the use of the word “AND” in Section 318 of the Constitution should be given its ordinary meaning.
They further argued that the meaning and intendment of Paragraph 16(1) of the first schedule to the Electoral Act is not that failure to respond to any new issue in the reply to the Petition would amount to admission of facts so raised, and it is not also the intendment of the said paragraph that a Petitioner could be estopped from leading evidence to prove otherwise or address the tribunal on the issue, thus, the issues raised in the said paragraphs 6(d),(ii), (iii), (iv), (v), (vi), (vii) and (viii) are not fresh issues but rather denials by way of implied joinder of issues.
The 1st Respondent countered that they raised new issues of facts in their defence – his service in the Public/Private sectors, attendance at course/training and ability to read, write, understand and communicate in English Language as complimenting his Primary School Certificate, and the Appellants failed to file a Reply thereto as directed under Paragraph 10(1) of the 1st Schedule to the Electoral Act, 2010, thus, the Tribunal was right to conclude as it did, citing Unity Bank Plc. V. Bouari (2008)7 NWLR (pt. 1056) 372 SC, Att. Gen. (Abia) V. Att. Gen. Fed. (2005) 12 NWLR (pt. 940) 452 SC, Ughutevbe V. Shonowo (2004) 16 NWLR (pt. 599) 300 Scand Ansa V. Ntuk (2009) 1 NWLR (pt. 1147) 557 CA.
He further argued that even if the Tribunal was wrong, it did not sit back in reliance on the deemed admission but proceeded to consider all the evidence, and then held as follows at pages 820-821 of the record –
“Having disposed of the first limb or aspect of the issue of non-qualification of the 1st Respondent pleaded by Petitioners in paragraph 12(a) of the petition, there still remain the 2nd and 3rd aspects of the issue, which are paragraphs 12(b) and 12(c) of the, Petitioner. However, in view of the admission of 1st respondent in his Reply that he did not attend Secondary School, the issue pleaded in paragraph 12(c) of the Petitioner ceases to be an issue. What therefore remains to be resolved is the issue as pleaded in paragraph 12(b) of the petition. Of the specific facts pleaded for that issue, one aspect remains a live issue by virtue of the admission of 1st Respondent that he does not hold National Diploma Certificate and Higher National Diploma Certificate. These aspects cease to be part of the issue for determination. The only aspect of the issue pleaded in paragraph 12(b) of the Petition for determination remaining is that aspect which alleged that 1st Respondent presented to the Commission forged Primary School Certificate…” (Highlight mine)
The 2nd Respondent also argued that the Appellants did not challenge the 1st Respondent’s additional qualifications, either in their pleadings or oral evidence, and also failed to cross examine him on them; that the Tribunal found that he has a Primary Six School leaving Certificate since they also failed to prove the issue of forgery beyond reasonable doubt; that the Appellants failed to join issues with them on their averments in Paragraph 6(d)(ii),(iii),(iv),(v),(vi),(vii) & (viii), so they are in law deemed admitted and need no further proof by oral or documentary evidence; that the 1st Respondent still testified in his written statement on oath alluding to these qualifications and was neither cross-examined on them nor discredited on these qualifications; and that the Tribunal rightly found that apart from possessing a Primary School Leaving Certificate, he also met the requirements in Section 318(c)(i)(ii)(iii) of the Constitution.
The 3rd – 5th Respondents cited Irolo V. Uka (2002) 14 NWLR (pt. 756) 195 on the meaning of perverse decision, and Oladipo V. Moba LGA (2010) 5 NWLR (pt. 1186) 117 and Henshaw V. Effanga (2009)11 NWLR (pt. 1151) 65,”on what will constitute miscarriage of justice”, and argued that the Tribunal’s decision does not run contrary to the evidence nor have the Appellants shown that it took into account matters which it ought not to have taken into account or shut its eyes to the obvious.
The Appellants filed a Reply brief but there are no arguments or submissions therein that can avail them on this issue. The bottom line is that the Appellants failed to prove that the 1st Respondent forged the primary School Certificate that he presented to INEC, which as they argued, is the foundation upon which any other qualification is based. They were so focused on that sole issue that they failed to take heed of paragraph 16 (1) of the 1st Schedule to the Electoral Act, which says-
“If a person in his reply to the Petition raises new issues of facts in defence of his case which the Petition has not dealt with, the Petitioner shall be entitled to file in the Registry, within 5 days from the receipt of the Respondent’s Reply, a Petitioner’s Reply in answer to the new issues of facts”.
In other words, a Petitioner is entitled to file a Reply if the Respondent to the Petition in his Reply “raises new issues of fact” in defence of his case that the Petition has not dealt with. The Petitioner must deal with these new facts by either admitting them or traversing them, etc., and he can only do these by filing a Reply – see Masuabum V. Nwosu (2010) 13 NWLR (Pt. 1212) 523 at 624. In this case, the Appellants alleged in their Petition that the 1st Respondent was not qualified to contest the election because he presented forged Certificates of Primary, Secondary School, National Diploma, Higher National Diploma, and a purported Ph.D. to INEC, and that he is not educated up to least secondary school level.
The 1st Respondent filed a Reply to the Petition, wherein he denied the allegations and averred that he never claimed to possess Secondary School, National Diploma, Higher National Diploma, and a Ph. D in Public Administration. He asserted in paragraph 6 (d) of his Reply that –
“…Whilst it is true that he is not formally educated up to at least Secondary School level, he possesses the basic requisite educational qualification of “School Certificate or its equivalent” as prescribed in the 1999 Constitution of Nigeria (as amended) which qualifies him to contest the election … as he has been educated up to at least School Certificate level or the equivalent, to wit –
(i) He attended JENTA (i.e. JANTAR) III Kuru Primary School for his primary education between 1963 to 1970.
(ii) He has since 1986 been the Chairman/Managing Director of Sankara Nigeria Limited a company incorporated on 23/1/1986
(iii) He has served as a Part-time Chairman of the Board of Hadejia Jema’are River Basin Development Authority for a period of four years from 2nd June 2000 to 7th July 2004
(iv) He attended the Institute of Youth Development (Sani Abacha Youth Centre, Kano) from 2000 to 2001 for a Diploma Programme in Computer Data Processing.
(v) He can read, write, understand and communicate in English Language perfectly well.
(vi) He has also been awarded an Honorary Doctorate Degree in Public Administration by All Saints University of America on 12/11/2002.
(vii) He also served as the P.D.P’s National Vice Chairman (North-West Zone) from 4th March 2008 to 24th December 2008.
(viii) The qualification possessed by him were acceptable to and have been accepted by INEC (the 3rd Respondent) as sufficient and qualifying him within the meaning of Sections 177 and 318 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to contest election into the Senate of the Federal Republic Nigeria.
What are these except “new issues of fact” raised by the 1st Respondent in his Reply to the Petition filed by the Appellants? What did they do?
Nothing; they neglected to file a Petitioners’ Reply in answer to the new issues of fact raised by the 1st Respondent in his Reply to the Petition, and failed to cross-examine him on any of these new issues of fact.
The law is, obviously, on the side of the Respondent because it is trite that where a Plaintiff fails to file a Reply to averments in a Statement of Defence, he would be deemed to have admitted the averments therein – see Rini & Anor V. Maradun & Ors (2005) LPELR – CA/K/EP/NA/16/07 & Att. Gen. (Abia) V. Att. Gen. Fed. (Supra), where Ejiwunmi, JSC said –
“Having regard to the several complaints of the Plaintiff, one would have expected the plaintiff to file a reply to this averment so that the defence proffered by the 1st Defendant would at the very least be put in doubt. This the plaintiff did not do. The legal effect of such a failure surely is recognized as an admission of those facts pleaded by the 1st Defendant”.
It is also settled law that the effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the witness – see Gaji V. Paye (2003) 8 NWLR (Pt.823) 583). In this case, there is no question that the Appellants have been felled by these two principles – they refused or failed to file a Petitioners’ Reply in answer to the new issues of fact raised by the 1st Respondent in his Reply to the Petition, and they failed or neglected to cross-examine him on any of these facts.
Thus, the Tribunal’s reasoning and conclusion cannot be faulted.
The Appellants are deemed to have admitted that the 1st Respondent satisfied all the constitutional requirements enumerated in Section 318 (1) of the 1999 Constitution, and he is qualified to contest the election.
We come to the Appellants’ contention that the Judgment delivered by the Tribunal is invalid with no binding force because it is undated. They referred us to Saraki V. Kotoye (1992) 9 NWLR (Pt.264) 156, Ogbahan V. Registered. Trustees C.C.C.G. (2001) FWLR (pt.80) 1496, and Ajaokuta Steel Co. Ltd. V. Role (2011) ALL FWLR (pt.563) 1931.
The 1st Respondent, however, countered that it is clear on p.777 of the record that the Judgment was delivered on the 10th of October, 2011. He pointed to the record of the proceedings of that day, and argued that the presumption is that all the parties had notice of the date the Judgment was to be delivered since they were represented by Counsel; and that the contents of the record are binding both on the Court and on the parties, citing Sapo V. Sunmonu (2010) 11 WNLR (pt. 1205) 374 and LSWC V. Sakamori Const. (Nig.) Ltd. (2011) 12 NWLR (Pt. 1262) 569. His position is that the said Judgment was dated, and even if it was not dated, the Appellants have failed to show how they were prejudiced by the non-dating or how they had suffered miscarriage of justice, if any.
The 2nd Respondent also submitted that the date of delivery of the Judgment is borne out at Page 777 of the Record as the heading of the judgment on the first Page 777 is the 10th day of October, 2011, and it is mischievous for the Appellants to pick on the second Page 777 of the Record of Appeal to hold that there was no date of the Judgment.
Obviously, the Appellants’ Issue 8 is a dead issue, and in my view, they are merely grasping at straws that are too feeble to save their case. The Judgment is headed “This 10th day of October 2011”, and even if the Chairman and Members of the Tribunal, who signed the Judgment at page 848 of the Record, did not add the said date under their signatures, it is not enough to declare the Judgment void as urged by the Appellants. The era of technicalities is over and substantial justice has come to stay.
All the issues are resolved against the Appellants. The end result is that the appeal fails and is dismissed. The decision of the Tribunal in its Judgment delivered on the 10th of October 2011 is hereby affirmed.
There will be no order as to costs.
ABDU ABOKI, J.C.A: I agree.
THRESA N. ORJI-ABADUA, J.C.A: I agree.
Appearances
Adamu Abubakar, Esq., with Laminu Bala, Esq.For Appellant
AND
Ibrahim Isyaku (SAN), with Y. J. Matiyak, Esq.
F. J. Osimerha, Esq. K.B. Olawoyin, Esq. and Mrs. A. U. Uzu
B. A. Oyefeso, Esq.For Respondent
