SEN. IBRAHIM ABDULLAHI DANBABA & ANOR v. ABUBAKAR SHEHU TAMBUWAL & ORS
(2019)LCN/13827(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of October, 2019
CA/S/EPT/SEN/11/2019
RATIO
ELECTION PETITION: STANDARD OF PROOF IN ELECTION PETITIONS
It may be necessary, perhaps to pause here for a while, and as a point of diversion to consider one nagging question that has continuously agitated the minds of this Court on the exact juridical import of the very Section 135(1) of the Evidence Act, 2011 on the issue. The question is: in view of the fact that Election Petition Proceedings are said to be ?Sui Generis?, i.e., neither Criminal nor Civil Proceedings, within the strict ambit and contemplation of the cold letters of the law in Section 135(1) of the Evidence Act (Supra), would it still be appropriate to continue to unleash the highest form of standard of proof known to man on Election Petition Proceedings? In the cases of ONITIRI vs. BENSON (1960) SCNLR 324 AT 317; BUHARI vs. YUSUF (2003) 6 SCNJ 344 AT 359 the superior Courts of record in this Country have reiterated the Sui Generis character of Election Petition Proceedings as not being part and parcel of ordinary civil proceedings. See EHUWA vs. OSIEC (2006) LPELR-1056 (SC) and in ABUBAKAR vs. INEC (2009) 8 NWLR (PT. 1143) 259 AT 295, where the Court defined in clear and unmistakable terms the true character of Election Petitions proceedings thus:
?Election petition and the rules applicable to it and its proceedings are unique. It is the reason why election petitions are described as Sui generis. They are different from other proceedings. They are neither allied to Civil nor Criminal proceedings. They stand on their own bound by their rules under the law
In view of the foregoing, it may perhaps, once again be necessary to pose the teaser whether in view of the fact that Election Petition Proceedings are said to be Sui Generis, is it still appropriate to continue to unleash the highest form of standard of proof known to man on Election Petition Proceedings whenever allegations bordering on the commission of a crime is alleged? The answer to this teaser may have to be reserved for another day, this not being the focal point of this judgment. PER FREDERICK OZIAKPONO OHO, J.C.A.
ELECTION PETITION: DUTY OF A TRIBUNAL OR COURT INVITED TO HEAR A MATTER OF FORGERY OF CERTIFICATE BY A CANDIDATE
The trite position of the law is that a trial Tribunal or Court of law charged with the task of hearing a question revolving around the presentation of a false or forged certificate by a candidate to INEC for purposes of contesting an election, is not by so doing being called upon to try such a candidate for the offence or crime of forgery so as to make a pronouncement as to his culpability or otherwise. PER FREDERICK OZIAKPONO OHO, J.C.A.
ELECTION PETITION: FORGERY OF CERTIFICATE: WHETHER IT IS CRIMINAL IN NATURE
In other words, where the allegation is one that a candidate to an election forged a certificate and not that he presented a false certificate, he would be faulted for alleging the commission of a criminal offence and the standard of proof will be proof beyond reasonable doubt. See the cases of NDOMA EGBA vs. ACB PLC (Supra); NWOBODO vs. ONOH (Supra) and several other cases, some of which learned Counsel to the parties have cited in this case. PER FREDERICK OZIAKPONO OHO, J.C.A.
WHEN BURDEN OF PROOF SHIFTS IN CIVIL PROCEEDINGS
In the case of COMMISSIONER OF POLICE & ANOR VS. OGUNTAYO(1993) LPELR-886 (SC), the apex Court per OGWUEGBU, JSC had this to say on the issue;
“In civil cases while the burden of proof may initially be on the Plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendant and vice versa as the case progresses.”
In the case ofOSAWARU vs. EZEIRUKA (1978) LPEL79R-21 (SC) the apex Court per ANIAGOLU, JSC had this to say on the subject;
In civil cases, while the burden of proof in the sense of establishing the case, initially lies on the plaintiff (Constantine Line versus Imperial Swelting Corporation (1942) AC 154, 174), the proof or rebuttal of issues which arises in the course of proceedings may shift from the plaintiff to the defendant and vice versa as the case progresses. PER FREDERICK OZIAKPONO OHO, J.C.A.
ELECTION PETITION: WHAT CONSTITUTES THE EVIDENCE-IN-CHIEF IN ELECTION MATTERS
The trite position of the law is that in election petition proceedings, what constitutes the evidence-in-chief is the written statement on oath of the witness, which he adopts in open Court. This is aptly supported by Paragraph 41(3) of the First Schedule to the Electoral Act, 2010 (as amended). PER FREDERICK OZIAKPONO OHO, J.C.A.
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
1. SEN. IBRAHIM ABDULLAHI DANBABA
2. PEOPLES DEMOCRATIC PARTY (PDP) Appellant(s)
AND
1. ABUBAKAR SHEHU TAMBUWAL
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
FREDERICK OZIAKPONO OHO, J.C.A.: (Delivering the Leading Judgment): This Appeal is against the judgment of the National and State Houses of Assembly Election Petition Tribunal, sitting at Sokoto, Sokoto State delivered on the 4-9-2019 in Petition No: EPT/SKT/SEN/09/2019 Coram: Y. U. MOHAMMED, J; I. WODI, J and H. I. POLYCAP, J wherein the Tribunal dismissed the petition of the Appellants. In the build-up of the facts leading to this Appeal, the 1st Appellant and the 1st Respondent in an election conducted by the 3rd Respondent (INEC) on the 23-2-2019 for the seat of member of Senate representing Sokoto South Senatorial District of Sokoto State were sponsored by the 2nd Appellant, (Peoples Democratic Party-PDP), and the 2nd Respondent (All Progressives Congress-APC) respectively. At the conclusion of the election and the collation of result, the 3rd Respondent (INEC) declared the 1st Respondent as the winner of the election with 134,204 votes while the 1st Appellant was stated to have scored the second highest votes of 112,546.
?Nettled by this declaration, the Appellants as Petitioners; filed a petition before the trial Tribunal on the
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17-3-2019 challenging the election of the 1st Respondent on sundry grounds. At the conclusion of trial, the learned judges of the trial Tribunal held that the Appellants did not prove the grounds for the petition and the petition was dismissed. Dissatisfied with this judgment, the Appellants have appealed to this Court on seven (7) Grounds as stated on the Notice of Appeal filed on the 16-9-2019.
ISSUES FOR DETERMINATION:
1. Whether in view of the state of the pleadings and the evidence adduced or elicited under cross-examination and the admission of the 1st respondent that the credentials he submitted to the 3rd Respondent to show his qualification bear the name different from his name on record, the Tribunal was right in holding that the Appellant failed to prove beyond reasonable doubt the ground of the petition challenging the qualification of the 1st Respondent to contest the election (Grounds 1, 2, 3, and 4).
2. Whether the Tribunal was right in discountenancing the Form EC8A series tendered through PW1, on the ground that the said documents were allegedly dumped on the Tribunal (Ground 5).
?3. Was the Tribunal right
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in regarding the totality of Ground No. 1 of the Grounds for the Petition as wholly containing criminal allegations, thereby coming to the conclusion that the Appellants failed to prove the allegation beyond reasonable doubt when not all the allegations in the said Ground were criminal in nature (Ground 6).
4. Whether the Tribunal was right in considering the pleadings and the written addresses of the 2nd and 3rd Respondents who neither called witnesses nor evidence (Ground 7).
On the part of the 1st Respondent, the following issues were nominated for the determination of this Court;
1. Whether the Tribunal below was right when they held that the Appellant?s allegations that the 1st Respondent presented forged credentials to the 3rd respondent were criminal in nature and that they failed to prove it beyond reasonable doubt? (Grounds 1,2 ,3, & 4 )
2. Whether Forms EC8 produced by PW1 was not dumped on the Tribunal below? (Ground 5)
?3. Whether allegations contained in paragraph 16(1) of the petition were not replete with allegations criminal in nature and therefore required prove beyond reasonable doubt? (Ground 6).
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4. Were the pleadings of the 2nd and 3rd respondents abandoned in law? (Ground 7).
On the part of the 2nd Respondent, the following issues were nominated by the 2nd Respondent for the determination of this Court:
1. Whether the Tribunal is correct in law when in its judgment, it dismissed the allegation of the appellants in the petition to the effect that the 1st respondent is disqualified or is not qualified to have contested the said election for not attaining the requisite educational qualification and for tendering credentials belonging to another person in support of 1st respondent?s claim of having attained the requisite educational qualification.
2. Whether the Tribunal is correct in law when it held in its judgment that the appellants failed to prove the ground in the petition alleging that the 1st respondent was not duly elected by majority of lawful votes cast at the said election.
3. Whether the appellants as petitioners were entitled to judgment for the simple fact that the 2nd and 3rd respondents did not call any witness in defence of the petition before the tribunal.
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?SUBMISSIONS OF LEARNED COUNSEL:
APPELLANTS:
The Appellants? issue no. 1 is argued from pages ? to – of the record, to that, the effect the trial Tribunal erred in law in holding that the Appellant failed to prove beyond reasonable doubt the ground of the petition challenging the qualification of the 1st Respondent to contest the election. It was submitted that the learned judges of the trial Tribunal were wrong in holding that the Appellants ought to have proved the allegation of non-qualification of the 1st Respondent to contest beyond reasonable doubt. Learned Counsel contended that the Tribunal was carried away by the word ?forgery? and therefore failed to appreciate the substance of the Appellants? contention in the Ground on the non-qualification of the 1st Respondent. He said that the substance of the Appellants? contention was that the 1st Respondent was not qualified to contest the election because he did not attain the requisite educational qualification, having produced credentials belonging to another person to support his false claim that he attained the qualifications.
?According to Counsel, the central issue in
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the above contention was whether the 1st Respondent was the same person as Arabu Shehu Abubakar as contained in the qualifying documents attached to Form CF001 (Exhibit AU) submitted by the 1st Respondent to the 3rd Respondent in his attempt to prove that he acquired the requisite qualifications to contest for the office in issue.
Counsel contended in addition, that the resolution of the forgoing issue as to the identity of ?Arabu Shehu Abubakar? vis–vis the Abubakar Shehu Tambuwal (the 1st Respondent) ought to have been the primary focus of the Tribunal and that if it was established that the 1st Respondent was not the same person as ?Arabu Shehu Abubakar?, forgery is already established, and vice versa. He argued in addition that it was therefore wrong as the Tribunal did, to have focused attention on the word ?forgery? and proof beyond reasonable doubt without first resolving the primary issue, which resolution would have resolved all the other surrounding issues.
?Counsel further contended that it is the pleadings and the evidence of a party to a suit that determines the foundation of his claim
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and that the mere use of strong words or words that are suggestive of criminality in describing the conduct or motive of a party?s adversary does not ipso facto convert the basis of a civil claim or allegation to a crime. See the case of AWOLOWO vs. IFABIYI (2002) 4 NWLR (PT. 757) 356 AT 380-381 PARAS H-C.
It was also contended that in an election petition, for an allegation to be regarded as criminal allegation requiring proof beyond reasonable doubt, the commission of crime must be the basis of the petition. See NWOBODO vs. ONOH (1984) 1 SCNLR 1 AT 27-28. Further argued that where the Plaintiff or Petitioner can prove his case without the issue of crime, the requirement for proof beyond reasonable doubt will not apply. See NWOBODO vs. ONOH (Supra) at pp. 27-28.
Learned Counsel also made an alternative submission in the event that Court holds that the allegation of the Appellants against the 1st Respondent regarding his qualification was
