ACTION CONGRESS OF NIGERIA v. MANU YUSUF & ORS
(2011)LCN/4801(CA)
In The Court of Appeal of Nigeria
On Monday, the 19th day of September, 2011
CA/J/EP/HR/153/2011
RATIO
APPELATE COURT: DUTY OF THE APPEAL COURT TO CONSIDER ONLY THE ORIGINATING PROCESS IN ASCERTAINING WHETHER THE TRIAL COURT HAD JURISDICTION OR NOT
…we have a duty to consider only the originating process namely: the petition before arriving of the decision whether the trial Court had jurisdiction or not. PER CLARA BATA OGUNBIYI, J.C.A
DUTY OF TRIAL COURT: DUTY OF THE TRIAL COURT TO WEIGH THE EVIDENCE OF THE PARTIES ON AN IMAGINARY SCORE
In the reasons for this judgment which shall be adduced later we shall demonstrate that every trial court has a duty to construct on imaginary score for the purpose of evaluating the evidence placed before it. That is to say that it has the duty to weigh the evidence of the parties on the said imaginary scale, whichever outweighs the other on the preponderance of evidence tilts the scale in favour of the Party adducing it. What matters is not the number of witnesses but the probative value of the witnesses. PER CLARA BATA OGUNBIYI, J.C.A
JUSTICES:
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
ACTION CONGRESS OF NIGERIA – Appellant(s)
AND
1. MANU YUSUF
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELCTORAL COMMISSION
4. RESIDENT ELECTORAL COMMISSIONER
5. RETURNING OFFICER, GOMBE STATE
6. ELECTORAL OFFICER, BILLIRI L.G.A. GOMBE STATE
7. ELECTORAL OFFICER, BALANGA L.G.A. GOMBE STATE – Respondent(s)
CLARA BATA OGUNBIYI, J.C.A. (Delivering the Leading Judgment): The notification of the Constitution of the panel was given to us on Thursday, the 15th day of September, 2011. Pursuant to that notification the panel coram: Ogunbiyi, Nweze, Onyemenam JJCA, sat for the first time on 19th September, 2011. Incidentally this appeal which was filed on 9th August, 2011 and determined by the lower Court (Tribunal) on 20th July, 2011 lapses today 19th September, 2011 by the provisions of section 285 (7) Amended Constitution of the Federal Republic of Nigeria (2nd Alteration Act).
The court, in order to avert the imminence of injustice which this state of affairs would have occasioned on the Appellant’s right of appeal decided to hear and determine it. Counsel for the Appellant and the 1st – 6th respondents adopted their respective briefs. They were even permitted indulgence of elaborating on the crucial aspects of their briefs as the occasion warranted. Upon close of argument on all sides the court rose to consider their submissions as contained in the briefs.
The Appellant’s brief which was filed on 26th August, 2011 identified 2 issues for the determination. These issues were couched thus:
1. Whether the Tribunal was right in holding that this petition is a pre-election matter and that the Tribunal has no jurisdiction to entertain it. (Ground 1 of the Notice of Appeal)
If issue one is in the negative, whether the tribunal was right to have dismissed the petition of the Appellant notwithstanding the weight of evidence proffered before the tribunal which nominated but Appellant’s candidate was validly nominated but unlawfully excluded from the Balanga/Billiri Federal Constituency election. (Grounds 2, 3, 4, 5 and 7 of the Notice of Appeal)
The 1st Respondent on his part formulated 3 issues for the resolution of the appeal. With the exception of the first ground which was distilled from the preliminary objection, issues 2 and 3 are basically same with the issues as formulated by the Appellant.
The 2 issues formulated by the 2nd Respondent, except for the variations in phraseology are essentially the same. The 2 issues formulated by the 3rd – 6th Respondents are basically the same with that of the Appellant. In essence therefore the court is required to resolve the issue in preliminary objection and finally the 2 issues common to all the briefs namely;
1. Whether the Tribunal was right in holding that this petition is a pre-election matter and that the Tribunal has no jurisdiction to entertain it. (Ground 1 of the Notice of Appeal)
2. If issue one is in the negative, whether the Tribunal was right to have dismissed the petition of the Appellant notwithstanding the weight of evidence proffered before the Tribunal which shows that the Appellant’s candidate was validly nominated but unlawfully excluded from the Balanga/Billiri Federal Constituency election (Grounds 2,3,4,5, and 7 of the Notice of Appeal)
First, the preliminary objection; “whether or not the grounds of appeal are competent.” The arguments on the preliminary objection span paragraphs 4.2 – 4.6 (pages 7 – 11) of the brief of argument of the 1st Respondent. In their reply to the 1st Respondent’s brief, the Appellant responded to the issues raised in the preliminary objection; see paragraphs 1.1 – 4.0 (pages 2 – 9) of the Appellant’s reply to the 1st Respondent’s brief filed on 8th September, 2011.
We have dutifully and conscientiously considered the kernel of the said objection, we take the view that it is unmeritorious. In the reasons for the judgment which shall be delivered later, relevant judicial authorities on which this decision is anchored shall be set out. In essence, we agree with the Appellant that the grounds of appeal are proper. That disposes of the preliminary objection.
Now, the main appeal, the substance of the 1st issue common to all the briefs simply comes to this; whether the Tribunal was right in holding that this Petition was a Pre-election matter and it had no jurisdiction to entertain it. The Appellant devoted paragraphs 3.1 – 3.2 (pages 4-9) of the Appellant’s brief in adumbrating the nuances of the questions germane to this issue. In the main, their case is that the Appellant as the Petitioner presented the Petition before the Tribunal pursuant to Section 138 (1) (d) of the Electoral Act, 2010 (as amended). The pleadings ample made averments which brought their case within the fore corners of Section 138 (1) (d) (supra), see paragraphs 8, 17, 18, 19, 20 of the Petition (pages 2 – 4) of the record.
The reliefs can be found in paragraphs 22.1 – 22.2 of the said Petition.
The Appellant also called 2 witnesses to substantiate these averments in the said pleadings. See pages 7 – 9, 41 – 43, 137 – 148 of the Record.
The crux of the argument of the 1st Respondent is that the Appellant was not duly nominated in accordance with Section 34 of the Electoral Act (as amended) see paragraph 4.8 of the 1st Respondent’s brief. Furthermore, that he failed to comply with section 85 of the Act (supra), that is to say that it failed to give the 3rd Respondent the 21 days notice of any convention etc. and that it also failed to comply with the provisions laid down in Section 87 of the Act (supra). Placing reliance on Section 87 (10) of the Act (supra) (Section 87 (9) in the new amended Electoral Act and a host of Supreme Court decisions he contended that this was a pre-election matter. In his view both the pleadings and evidence demonstrated without peradventure that this was a pre-election matter. In consequence the Tribunal was right in declining jurisdiction.
The 2nd Respondent dealt with this issue in their Paragraphs 4.1 – 4.4 (pages 6 -9) of the brief of argument deemed properly filed and served today. The arguments contained therein are patterned after the arguments of the 1st Respondent already referred to. In sum, placing reliance on the same authorities as the 1st Respondent it took the view that the Tribunal rightly declined jurisdiction.
The arguments of the 3rd – 6th Respondents are condensed in two paragraphs namely 3.1 – 3.2 of the brief of argument deemed properly filed today.
Resolution of the issues:
Upon a careful perusal of the above briefs and the arguments contained therein, we entertain no doubt that the lower court erred in law by declining jurisdiction. True indeed, we have a duty to consider only the originating process namely: the petition before arriving of the decision whether the trial Court had jurisdiction or not. From the paragraphs of the Petition already set out above, we are satisfied that the Petitioner now Appellant firmly anchored this case on a cognizable ground for questioning on election, in this case Section 138 (1) (d) of the Act (supra). See also paragraphs 2.1 – 2.2 of the Petition (supra).
The Respondents with due respect betrayed their misconception of the applicable law. They copiously cited and placed reliance on Section 87 (9) of the Act (supra) which hitherto empowered the 3rd Respondent (INEC) to disqualify any candidate whose party did not comply with the provisions of the Act in the Process of nominating such candidate. This argument elided any consideration of the legislative developments that post dated the Electoral Act, No. 6 of 2010. However it is our duty under the Evidence Act to take judicial notice of applicable Laws. The Electoral (Amendment Act) No. 10 of 2010 with the commencement date of 29th day of December, 2010, evidently borrowing a leaf from the Supreme Court decision in ATIKU ABUBAKAR V INEC, amended the said Section 87 (9) of the Act (supra).
Thus according to Section 10 of the said Electoral (Amendment Act) No. 6 of 2010
“Section 31 of the Principal Act is amended
(a) by substituting for subsection 1 a new sub-section 1 – (1) every political party shall, not later than 60 days before the date appointed for general elections under the provisions of this Act submit to the commission in the prescribed forms the list of the candidates the party proposes to sponsor at the elections provided that the commission shall not reject or disqualify any candidate (s) for any reason whatsoever (under line supplied for emphasis).
In our view, the effect of this proviso is to rob INEC of the power hitherto exercised in interfering with candidates nominated by political parties. Effective from the commencement date of this Electoral Act that Power has been consigned to the dust bin of history. The Respondents did not seem to appreciate the import of this radical development. What is more, they the Respondents will even appear to be unaware of the legislative surgery which the new Section 19 of the Electoral Amendment Act, No. 10, 2010 performed on Section 87 which they copiously relied on. The effect of the said Section 19 of the Act (supra) is to substitute that section (section 87) which they relied on for a new Section 87. See section 19 of the Act (supra).
Against this background, we reinstate our view that the Tribunal erred in law when it declined jurisdiction to entertain the petition as it did.
We therefore resolve this issue in favour of the Appellant.
Issue 2:
The crux of the complaint here in our humble view simply bothers on the Tribunal’s evolution of the evidence placed before it. The sum total of the argument of the Appellant see paragraphs 3.13-3.35 (pages 10 -19) is that the Tribunal did not properly evaluate the available evidence which is to the effect that the Appellant’s candidate was validly nominated but unlawfully excluded from the Federal constituency under consideration. The Appellant’s case is that they placed before the Tribunal all the relevant facts that were required to be proved to establish valid nomination. In their view, the Tribunal was wrong in not accepting the oral and documentary evidence placed before it which showed that there was valid nomination.
This is not withstanding Exhibit P3 – acknowledgment of receipt, Exhibits P1 and P2 which revealed that the submission of the form was done not later than 60 days as required by law.
The Appellant drew attention to the fact that the evidence of PW1 was corroborated by the testimony of the witness of 3rd – 6th Respondents. The 1st Respondent’s brief of argument see paragraphs 4.16 – 4.23 (pages 16-20) dwelt on this question extensively. Extensive arguments were made on sections 31, 32, 85, 86 and 87 of the Electoral Act (supra) and certain decisions to show that under Section 138 (1) (d) the Appellant was supposed to prove valid nomination and unlawful exclusion and he firmly maintained that the Tribunal was right in dismissing the Petition.
The other Respondents in their respective briefs equally supported the decision of the Tribunal.
Resolution of the issue:
As noted above, this issue bothers on the wrong evaluation of evidence by the Tribunal. In the reasons for this judgment which shall be adduced later we shall demonstrate that every trial court has a duty to construct on imaginary scale for the purpose of evaluating the evidence placed before it.
That is to say that it has the duty to weigh the evidence of the parties on the said imaginary scale, whichever outweighs the other on the preponderance of evidence tilts the scale in favour of the Party adducing it.
What matters is not the number of witnesses but the probative value of the witnesses. We have painstakingly waded through the record, we are not satisfied that the lower court lived up to its obligation in this regard.
Worst still, the lower court did not give adequate consideration to the legislative developments exemplified in Sections 10 and 19 of the Electoral (Amendment Act) No. 10 (supra). See the proviso to Section 10 for example.
The question is, in view of this development, that is, the proviso to Section 10 of the Act (supra), whether the INEC still enjoys the unbridled authority which it hitherto enjoyed in the process of nomination of candidates.
In all, for the fuller reasons which shall be adduced later, we hold that the Tribunal wrongly dismissed the Petition of the Petitioner notwithstanding the evidence before it that the Appellant was validly nominated but unlawful excluded in the said constituency. We equally resolve this issue in favour of the Appellant. In consequence, we hold that this Appeal succeeds and it is hereby allowed.
We hereby set aside the judgment of the Tribunal.
We make on order nullifying the election into the Balanga/Billiri Federal constituency held on the 9th day of April, 2011 and direct the 3rd Respondent (INEC) to organize and conduct a fresh election within 60 day from today.
CHIMA CENTUS NWEZE, J.C.A.: I agree.
UCHECHUKWU ONYEMENAM, J.C.A.: I agree.
Appearances
KUNLE ADEGOKE ESQ. with L.A. HARUNA ESQ. For Appellant
AND
CHIEF CALEB UBALE ESQ. with I.M. ATAHIR for the 1st Respondent.
Z.M. UMAR ESQ. (with J.J. ADAMU) for 2nd Respondent.
A.M. BOKANI ESQ. for the 3rd – 5th Respondents. For Respondent
