ALHAJI (DR) ALIYU AKWE DOMA & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2012)LCN/5610(CA)
In The Court of Appeal of Nigeria
On Saturday, the 7th day of January, 2012
CA/MK/EPT/42/2011
RATIO
APPEAL: ATTITUDE OF THE APPELLATE COURTS TOWARDS MAKING SPURIOUS APPLICATIONS AIMED AT CAUSING DISTRACTIONS
It is imperative, indeed desirable, by the very nature of election petitions that appellate Courts are not inundated with spurious applications including preliminary objections that carry the complexion of undue distraction at the expense of hearing the merits of a case. PER ABDU ABOKI, J.C.A
EVIDENCE: POSITION OF THE LAW WHERE WITNESSES CALLED BY A PARTY CONTRADICT ONE ANOTHER
It is trite law that when witnesses called by a party contradict one another, the Court cannot pick and choose which one to believe and which one to disbelieve. See BOY MUKA V. THE STATE (1976) 10-11SC 305.
ALFRED ONYEMENA V. THE STATE (1974) ALL NLR PG 522 at 530.
As it was held in the case of WAZIRI IBRAHIM V. SHEHU SHAGARI (1983) NSCC 431, the PW40 called by the Appellants helped them to disprove all the allegations they sought to reply upon, to borrow the words of IRIKEFE JSC at pg 434 of the report.
“In other words the petitioner with his eyes wide open pull down brick by brick the edifice he had erected. The result of the poor strategy was that the Federal High Court had to difficulty in arriving at the conclusion which it did that this petition has not been proved, and in dismissing it” PER ABDU ABOKI, J.C.A
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
AHMAD O. BELGORE Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
RITA N. PEMU Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI (DR) ALIYU AKWE DOMA
2. PEOPLES DEMOCRATIC PARTY (PDP) Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. RESIDENT ELECTORAL COMMISSIONER, NASSARAWA STATE
3. RETURNING OFFICER GUBERNATORIAL ELECTION NASSARAWA STATE
4. UMARA TANKO AL-MAKURA Respondent(s)
ABDU ABOKI, J.C.A (Delivering the Leading Judgment): On the 26th April 2011 Gubernatorial Elections were held in most States of the Federal Republic of Nigeria and Nassarawa State in particular. The1st Appellant and the 4th Respondent contested the Election under the platform of their individual political parties.
The 1st Appellant contested the Election under the platform of the second Appellant People Democratic Party (PDP) while the 4th Respondent contested under the platform of Congress for Progressive Change (CPC).
The 1ST- 3RD Respondents including other officers and/or agents of the 1st Respondent conducted the election as empowered by the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Electoral Act 2011 (as amended).
At the conclusion of the election the 4th Respondent was returned and declared winner of the election by the 1st – 3rd Respondent with a total vote of 324,823 as against the 1st appellant who scored 320,938, a difference of 3, 885 votes.
The Appellants being dissatisfied with the return of the 4th Respondent as Governor of Nassarawa State duly filed a petition before the Governorship Election Petition Tribunal for Nassarawa State on the 17th day of May, 2011. The said petition is in volume 1 pages 1 – 347 of the record of appeal.
The grounds of the petition and the reliefs sought by the petitioner are contained on pages 88 – 93 of volume 1 of the record of appeal and they are hereby adumbrated as follows:
“Petitioners state that the grounds for bringing this petition are as follows:
i) The 4th Respondent was not duly elected by majority of lawful votes cast at the Nassarawa State gubernatorial election held on the 26th April, 2011;
ii) The election in the disputed polling units and wards, fully stated facts in support of this petition, was invalid by reason of corrupt practices; and
iii) The election and return of the 4th Respondent was/is vitiated by non – compliance with the provisions of the Electoral Act, 2010 (as Amended).”
THE RELIEF SOUGHT BY THE PETITIONERS ARE AS FOLLOWS:
“WHEREOF the petitioners claim against the respondent jointly and severally as follows:
1) An order nullifying the result of the Governorship election of 26th April, 2011 in Nassarawa State in the disputed polling units namely:
(i) Kofar Liman, Kofar Makama (003), Kofar Makama (Code 09) in Zanwa Ward of Lafia local Government Area of Nassarawa State;
(ii) Ungwan mangu, Bukan Sidi, K/Danburam, Ungwan Dilale, Kofar Sanda, K/Isa Ugah, Ungwan Wajen Lale, Kofar Alhaji Yau, Ungwan Doka, Tundun Kwari, Kofar Idi Gwanati, Lafia North, Ang. Sadini Laminor, Shabu Ang Argubga, Bakin Gongoro, Bariwa in Chiroma Ward of Lafia Local Government Area of Nassarawa State;
(iii) Adogi Primary School, Angwan Sugu, Nassarawa Zanwa, K/Makama, Kaura Moyi, Kofar/Mal/Isiaka, Kofar Sarikim Makara, Shabu/Tagabas, Shabu Kofar Sarki, Azuba in Agodu Ward of Lafia Local Government Area of Nassarawa State;
(v) Ruwayo, Akunza Ubanka, Bukar Mayaki, K/Gwanki, Kofar Tafida, Angwan Wagen Rabo in Wamba Ward of Lafia Local Government Area of Nassarawa State;
(v) Fadama K Sarki, Wiji, Arkia Primary School, Kapaura/Ung. Dogo in Arikya Ward of Lafia Local Government Area of Nassarawa State;
(vi) Ung. Amadi Akura Primary School, Abu Ung. Masu, Agyaragu Koro, AKura Reading Room, Kura Primary School in Ward of Lafia Local Government Area of Nassarawa State;
(vii) Ungah ung. Madaki, Ashangua, Angwa Mission Angwa Koro, Alawagana, Ugah West in Ashige Ward of Lafia Local Government Area of Nassarawa State’
(viii) Gidan Gambo in Assakio Ward of Lafia Local Government Area of Nassarawa State;
(ix) Ambana, Keffi Wambai police Station, Keffi Wambai Primary School, Aridi Kuje, Fafin Kudi, Kuya Sum, Koron Kuje, Primary School Keffi/Wambai, Aridi Usman, Takpa, B.A.D. Police Station in Keffi Wambai Ward of Lafia Local Government Area of Nassarawa State;
(x) Yelinan Tofa, Kongo, Gangaren Karofi, Karfi in Iya II Ward of Keffi Local Government Area of Nassarawa State;
(xi) Gangaren Aboki – Op, Gangaren Aboki II, Tshohon Kasuwa Tajabas, Kofar Malam Ladan, Kofar Alkali in liman Abaji Ward of Keffi Local Area of Nassarawa State;
(xii) BCG ANg Jaba, Kaibo Mada Primary School, Angwan Rimi, Kofa Masa, Angwan Mada, Makera, GRA, EWCA Primary School (code 001), EWCA Primary School (Code 002), police Station, Kofar Na Malama, Kofar Hausa Primary in Angwan Rimi Ward of Keffi Local Government Area of Nassarawa State;
(xiii) Kofar Hausa Primary School (Code 002), Kofar malam Sadan, Gidin Dutse, Ang. Nepa, Sabo Layi in Angwan Iya I Ward of Keffi Local Government Area of Nassarawa State;
(xiv) Gangaren Tudu, Kofar Alhaji Ahmadu Sabongari, Saura, Prison Service, LGC Guest Hose, Tundun Kupa, Pada Kofar Salam Modibbo in Gangaren Tudun Ward of Keffi Local Government Area of Nassarawa State;
(xv) Kalachi, Kofar Sarki Orume, Central Primary School, Kofar Oseku, Kofan Isono, Kofan Sarki II,
LGEA Primary Kadarko North, Kofan Awon, Angwan Ubangari, Ungwan Stakuwa II RGM Deddere, Kofar Bonu Public Square, Riti Kofar Sarki, Riri Primary School, Kofar Madaki, Ungwan Kasuwa, Kofar Bunu II, Kofar Sich I, Ungwan Borokonu Public Square, Kofar Sarki, Ungwan Tsamiya, Akaba, Atabula, Aguade East Primary School, Duduguru Primary School in Duduguru Ward of Obi Local Government Area of Nassarawa State;
(xvi) Kofar Amawa, Riri Kofar Sarki Kofar Madiki Kiki, Ung Sarki Noma/Public Square, Kofar Magaji, Angwa Ubangari, Kofar Sulei, RCM Deddere, Public Building, Kofar Sarki, Ungwa Kasua/Public Square Ungwa Sarki Mada, Kofar Bunu II/Public Square Deddere, Kofar Sidi II in Deddere Ward of Obi Local Government Area of Nassarawa State;
(xvii) Tudun Adebu/Kwaghshiriwar Kofar SArki in Tundun Adebu Ward of Obi Local Government Area of Nassarawa State;
(xviii) Ring Sabo Open Square I, Ring Sabo Ooen Square II, Gbombu Open Square, Kofar Fada I, Kofar Fada ii, New Bank behind UBA, New Baml. G.S.S. Wamba and Waja, Mama Primary School, CMS Primary school “A”, CMS Primary School “B”, Old Central Office, Ungwan Zanwa, Bye pass Open Space, Wamba Kurmi, Ungu Open Space in Wamba East of Wamba Local Government Area of Nassarawa State;
(xix) Police Stalion, Kofar Hakimi, Motor Part I, Motor Park II, Central School I, Central II, Central School III in Akwangu West of Akwanga Local Government Area of Nassarawa State;
(xx) Kofa B, Hausa Liman, Ukya Yewute, Gbawodi, Adadu, Kofa A in Toto Ward of Toto Local Government Area of Nassarawa State;
(xxi) Yelwa Bassa, Ogaza B, Yelwa In Umaisha Ward of Totot Local Government Area of Nassarawa State;
(xxii) Ihempke B In Shege Ward of Toto Local Government Area of Nassarawa State;
(xxiii) Gadababuke A, Shashe Genshe, Anguwan Sarki In Shafin Kwato Ward of Toto Local Government Area of Nassarawa State;
(xxiv) Gombe In Gwargwada Ward of Toto Local Government Area of Nassarawa State;
(xxv) Katakpa In Katakpa Ward of Toto Local Government Area of Nassarawa State;
(xxvii) Kuru, Tawana Kuru, Dare, Dajie, Shafan Abakpa Primary School, Chereku In Shafa Abakpa Ward of Toto Local Government Area of Nassarawa State;
2) An order of the Tribunal validating the election results for the following Units namely:
(i) Shamage, Zakun Bello, Marmara, Gunki, Kawo Kawo, Nauche/Araba/Laminga II, Laminga I, Malinga III in Laminga Ward of Nassarawa Local Government Area of Nassarawa State;
(ii) Oshugu in Loko Ward of Nassarawa Local Government Area of Nassarawa State; and
(iii) Anna Town Polling Unit in Alagye Ward of Doma Local Government Area of Nassarawa State;
3) A declaration that the 4th Respondent – UMARU TANKO AL-MAKURA did not score a majority of lawful votes cast in the Governorship election for Nassarawa state held on 26th day of April, 2011 and was, therefore, not lawfully or validly elected and returned as the winner of the said election.
4) A declaration that the 1st petitioner scored the majority of lawful votes cast at the Governorship election for Nassarawa State held on 26th day of April, 2011 and was therefore entitled to be elected and returned as the winner of the said election.
5) An order declaring the 1st petitioner as the winner of the Governorship election held on 26th day of April, 2011 in Nassarawa State having won the majority of lawful votes cast at the said election and has satisfied other constitutional requirements and should be returned.
6) An order directing the 1st – 3rd respondents to issue a certificate of return to the 1st petitioner forthwith.
The 1st – 3rd respondent in response filed their joint reply to the petition on 6th June 2011, while the 4th Respondent filed his reply to the petition also on the same date. See pages 910 – 1194 and 394 – 909 of vol.3 and 2 respectively of the record of Appeal.
At the substantive hearing of the petition. The Appellant called 45 witnesses PW1 – PW45.
The 1st-3rd Respondents called DW1 – DW26 while the 4th Respondent called 37 witnesses DW27 – PW36.
At the conclusion of the hearing, the tribunal delivered its judgment through a split decision of two to one in favour of the Respondents’.
The majority judgment dismissed the petition while the minority judgment allowed the petition and granted the reliefs sought by the petitioners”
In the judgment delivered on 12/11/2011 the Election Petition Tribunal dismissed the Appellant petition, Aggrieved and dissatisfied with the decision of the Lower Tribunal, the Appellants appealed to this Court. Vide a notice of appeal dated 25th day of November 2011 and filed the same date. The Notice of Appeal contains a total of 35 grounds of Appeal as shown on pages 3658-3685 of volume VIII of the record of Appeal. The 4th Respondent filed a Notice of preliminary objection dated 13th day of December 2011, and filed the same date. The grounds of the preliminary objection and its particulars read as follows:
1. GROUND 1
i. The ground does not arise from the judgment of the lower Tribunal.
ii. The particulars are argumentative.
iii. Particular (iii) is unnecessarily lengthy and prolix.
2. GROUND 2
i. The ground, does not arise from the judgment of the Lower Tribunal
ii. Numbering of the particulars is not consecutive.
iii. Particulars (i), (ii) and (iii) are argumentative
3. GROUND 3
i. The ground does not emanate from the judgment of the lower tribunal.
ii. Particular (iii) is argumentative.
4. GROUND 4
i. The ground is vague.
ii. Particular (iii) is argumentative
5. GROUND 5
i. The ground does not flow from the decision of the Lower Tribunal
ii. Particulars (i), (ii) and (iii) are argumentative
6. GROUND 6
i. The ground does not flow from the judgment of the lower tribunal.
ii. Particulars (i) (iii), (iv) and (v) are argumentative
7. GROUND 7
i. The ground does not flow from the judgment of the lower tribunal.
ii. The ground is vague, prolix, argumentative and unnecessarily narrative.
iii. Particulars (i), (ii) and (iii) are argumentative
8. GROUND 8
i. The ground does not flow from the judgment of the lower tribunal.
ii. Particulars (i) is argumentative
iv. Particular (ii) is speculative and argumentative
9. GROUNDS 9
i. The ground does not emanate from the judgment appealed against and it is also misleading.
ii. Particulars (i), (ii) and (iii) are argumentative
10. GROUND 10
i. The ground is unnecessarily lengthy and prolix.
ii. Particulars (i) is argumentative and prolix
iv. Particulars (i) and (ii) argumentative
11. GROUND 11
i. the ground is vague
ii. Particulars (i), (ii) and (iii) are argumentative
12. GROUND 12
i. Particulars (i) is argumentative
13. GROUND 13
i. This ground does not arise from the decision of the lower tribunal
ii. Particulars (i) is argumentative
14. GROUND 14
i. The ground does not arise from the judgment of the lower tribunal.
ii. Particulars (i) and (ii) are argumentative
15. GROUND 15
i. The ground does not arise from the judgment of the lower tribunal.
ii. Particulars (i) is meaningless and ambiguous
iii. Particulars (ii) is vague.
iv. Particulars (iii) is argumentative
16 GROUND 16
i. The ground is vague.
ii. Particulars (i) is vague
iv. Particulars (iv) is argumentative
17 GROUND 17
i. Particulars (i) (ii) and (iii) are argumentative and prolix
18. GROUND 18
i. The ground is prolix and constitutes proliferation of grounds of appeal
ii. Particular (ii) and (iii) argumentative
19. GROUND 19
i. Particulars (i) and (iii) are argumentative
20. GROUND 20
i. The ground is misleading, disjointed and does not emanate from the judgment of the lower tribunal.
ii. Particulars (i) is argumentative
iii. Particulars (i) and (iv) are argumentative and narrative
21. GROUND 21
i. The ground does not emanate form the decision of the lower tribunal and is argumentative
ii. Particulars (i) is repetitive and argumentative
iii. Particulars (i), (iii) and (iv) are argumentative
22. GROUND 22
i. The ground does not arise from the holding of the lower tribunal.
ii. Particulars (i) is argumentative, prolix and narrative
iii. Particulars (iii) is abstract, vague and meaningless
iv. Particulars (iv) is argumentative
23. GROUND 23
i. The ground does not arise from the holding of the lower tribunal and is vague and ambiguous.
ii. Particulars (v) and (vi) are argumentative.
24. GROUND 24
i. The ground does not flow from the holding of the court and is erroneous, vague and misleading.
ii. Particulars (i) is vague and ambiguous.
iii. Particulars (iii), (vi) and (viii) are argumentative
25. GROUND 25
i. The ground is misleading and does not emanate from the judgment of the lower tribunal
ii. Particulars (ii), (iii), (iv) (vi), (vii) and (viii) are argumentative.
26. GROUND 26
i. The ground is incomprehensible
ii. The said ground is also not tied to any specific evidence which was not reviewed or evaluated
iii. The said ground is at large.
27. GROUND 27
i. The ground is vague and ambiguous.
ii. Particulars (i) is argumentative and narrative
iii. Particulars (ii), (iii) and (vi) are argumentative and lengthy
28. GROUND 28
i. Particulars (i) and (v) are argumentative
29. GROUND 29
i. The ground does not emanate from the judgment of the Lower Tribunal
ii. Particulars (i), (ii) and (iii) are argumentative
30. GROUND 30
i. Particulars (ii), (iii) and (iv) are argumentative
31. GROUND 31
i. Particulars (ii), (iii) and (iv) are argumentative
32. GROUND 32
i. Particulars (iii), (iv) and (v) are argumentative
33. GROUND 33
i. Particular (i) is vague and ambiguous
ii. particulars (iii) is vague and meaningless
34. GROUND 34
i. This ground does not arise from the judgment of the lower tribunal and it is false and misleading
ii. Particulars (iii) is argumentative
35. None of the grounds alleging misdirection against the judgment of the lower tribunal made the slightest attempt to quote or pinpoint where the alleged misdirection occurred.
36. Appellants have formulated 20 issues for determination based on the incompetent grounds of appeal; such issues, as well as the entire Brief of Argument are also liable to be struck out.
The argument on the preliminary objection are contained on pages 2 – 4 of the 4th Responding brief of argument, Learned Senior Counsel for the 4th Respondent Chief Wole Olanipekun urged the Court to uphold the preliminary objection and strike out the entire appeal.
The Appellants brief of argument prepared by Lateef O. Fagbemi SAN was dated 8th December 2011 and filed on 9th December 2011. The Appellant distilled twenty issues for determination from the grounds of Appeal contained in the Notice of Appeal.
The issues are adumbrated as follows:
“1) Whether on a proper appraisal of the petition and proper consideration of the evidence led by the appellants, the tribunal was right in its conclusion that all the allegations in the petition were of a criminal nature requiring proof beyond reasonable doubt which proof the petitioners did not establish – Grounds 1, 2 and 4.
2) Whether the Petitioners are not entitled to succeed on their complaint of non compliance and irregularities which are basically civil complaints having led credible evidence to justify nullification of votes in the affected polling units? Ground 3
3) Whether in arriving at its holdings concerning PW40, the tribunal gave proper consideration to his evidence and all the surrounding circumstances – Ground 5 and 10
4) Whether the tribunal gave proper consideration to the evidence led by the appellants on multiple voting before arriving at its conclusion that the appellants failed to prove the allegation of multiple voting. – Ground 6.
5) Whether the tribunal was right in its views on the law regarding proof of criminal aggregations and its jurisdiction to nullify an election for violations of the Electoral laws and rules and whether beside the allegation of multiple thumb printing, the petitioners did not lead credible evidence to entitle them to judgment nullifying votes of the disputed polling units?. – ground 7 and 8
6) Whether the tribunal gave proper treatment and consideration to the evidence of PW45 – Ground 9
7) Whether in the light of the evidence led through PW40 which was unchallenged and forms EC.40A tendered as exhibits by the appellants, the tribunal was right in holding that the appellants had failed to prove the actual number of ballot papers issued to the polling units – Ground 11.
8) Whether having regard to the evidence led by the Appellants on the voters registers, forms EC8A, and used and unused ballot papers and other documents tendered in evidence, the tribunal was right to hold that the appellants merely dumped the documents on the tribunal. – Grounds 12.
9) Whether in the light of the Appellants pleadings and the evidence led the tribunal was right in holding that the tables included in the Appellant’s final address were at variance with the case made in the petition and unreliable and that over-voting was not made an issue on the pleadings? – Ground 13, 14, 32 and 33
10) Whether on a proper consideration of the evidence of the Appellants witnesses the holding of the tribunal that there were inconsistencies and contradiction which were not even set out by the tribunal, between the evidence of PW40 and other witnesses on material issues would be justified – Ground 15.
11) Whether having regard to the pleadings of the parties and the evidence on record relating to the disputed units of Laminga ward the tribunal had not wrongly placed the onus of proof on the Appellants thereby disabling itself from a proper consideration of the case made concerning the results of the units i.e. exhibits 1(1-9) – Grounds 16, 23 and 27
12) Whether in regards to Exhibits 1(1-9), 18 and 19 the tribunal was right in its view of the law relating to presumption of regularity and correctness of official acts in Section 168 of the Evidence Act – Ground 17 and 19
13) Whether on the pleadings and the evidence on record, the tribunal was right in holding that the exclusion or cancellation of results from the eleven (11) disputed polling units was presumed to be regular and valid and that the respondents justified the alleged cancellation or exclusion of the results – Grounds 18, 24, 25 and 28
14) Whether the tribunal was right in its view of the law relating to the presumption of genuiness of certified public documents when it held that it related to only the certification and not the truth of the contents of the document and that the Appellants had the onus of establishing that elections were properly conducted at the disputed polling units and results duty issued. Grounds 20 and 22
15) Whether in the light of the pleadings of the parties, it can rightly be held as the tribunal did, that there was a dispute as to whether election was held in the disputed eleven polling units and whether there was in the evidence on record any basis for the tribunal holding that the witnesses for the Respondents used the word election in its generic sense – Ground 21
16) Whether having regard to the pleadings and the evidence on record, it can be said that the tribunal properly reviewed and evaluated the evidence of the witnesses before arriving at its findings against the petitioners. – Grounds 26 and 35
17) Whether the tribunal was right in its holding that results for the disputed nine polling units of Laminga were entered on mere sheets of paper and to have departed from the case made by the 1st to 3rd Respondents in their pleadings that the Collation Officer cancelled the results of the disputed units which allegation was not proved – Ground 29, 18) Whether the tribunal gave proper consideration to the pleadings and evidence on record in relation to the results for the disputed, nine units of Laminga ward exhibits 1(1- 9) before reaching its decision not to validate the results in favour of the Appellants – Ground 30
19) Whether in the light of the pleadings and the evidence led by the petitioners in proof of their case, the tribunal was justified in holding that the petitioners failed to establish that the 4th Respondent was wrongly returned as Governor of Nassarawa State and that he was not elected by majority of lawful votes cast in the election and consequently dismissing the petition – Ground 31
20) Whether the tribunal was right holding that the evidence of PW44 and PW45 amounted to inadmissible hearsay notwithstanding that the evidence of the witnesses was based partly on documents admitted in evidence. – Ground 34
The 1st, 2nd and 3rd Respondents joint brief of argument prepare of argument prepared by Hassan M. Liman SAN was dated 14th day of December, 2011 and filed the same date.
Twenty issues for determination were raised on behalf of the 1st, 2nd and 3rd respondents. The issues are hereby reproduced thus:
1. Whether on a proper appraisal of the Petition and proper consideration of the evidence led by the Appellants, the Tribunal was right in its conclusion that all the allegations in the Petition were of criminal nature requiring proof beyond reasonable doubt which proof the petitioners did not establish
(Grounds 1, 2 and 4).
2. Whether the Petitioners are not entitled to succeed on their complaint of non compliance and irregularities which are basically civil complaints having led credible evidence to justify nullification of votes in the affected polling units?
(Ground 3).
3. Whether in arriving at its holding concerning PW40 the Tribunal gave proper consideration to his evidence and all the surrounding circumstance (Grounds 5 and 10)
4. Whether the tribunal gave proper consideration to the evidence led by the Appellants on multiple voting before arriving at its conclusion that the Appellants failed to prove the allegation of multiple voting (Grounds 6)
5. Whether the Tribunal was right its views on the law regarding proof of criminal allegations and its jurisdiction to nullify an election for violations of electoral laws and rules and whether besides the allegation of multiple thumb printing, the petitioners did not lead credible evidence to entitle them to judgment nullifying votes of the disputed polling units?
(Grounds 7 and 8)
6. Whether the Tribunal gave propel treatment and consideration to the evidence of PW45 (Ground 9)
7. Whether in the light of the evidence led through PW40 which was unchallenged and forms EC.40A tendered as exhibit by the Appellants the tribunal was right in holding that the Appellants had failed to prove the actual number of ballot papers issued to the polling units (Ground 11)
8. Whether having regards to the evidence led by the Appellants on the voters registers, Forms EC8A and used and unused ballot papers and other documents tendered in evidence, the Tribunal was right to hold that the appellants merely dumped the documents on the (Ground 12)
9. Whether in the light of the Appellants pleadings and evidence led, the Tribunal was right in holding that the tables included in the Appellants’ final address were at variance with the case made in the Petition and unreliable and that over voting was not made an issue on the pleadings?
(Grounds 13, 14, 32 and 33)
10. Whether on proper consideration of evidence of the Appellants witnesses, the holding of the Tribunal that there were inconsistencies and contradictions, which were not even set out by the Tribunal between the evidence of PW40 and other witnesses on material issues be justified (Ground 15)
11. Whether having regards to the pleadings of parties and the evidence on records relating to the disputed units in Laminga ward, the Tribunal had not wrongly placed the onus of proof on the Appellants thereby disabling itself from a proper consideration of the case made concerning the results of the units i,e, exhibits 1(1-9), 18 and 19. (Grounds 16, 23 and 27)
12. Whether in regards to Exhibits 1(1-9), 18 and 19 the Tribunal was right in its view of the law relating to presumption of regularity and correctness of official acts in section 168 of the Evidence Act. (Ground 17 and 19)
13. Whether on the pleadings and the evidence on record, the tribunal was right in holding that the exclusion or cancellation of results from the eleven (11) disputed polling units was presumed to be regular and valid and that the Respondents justified the alleged cancellation or exclusion of the results
(Grounds 18, 24, 25, and 28)
14. Whether the Tribunal was right in its view of the law relating tot he presumption of genuineness of certified public documents when it held that it related to only the certification and not the truth of the contents of the document and that the Appellants had the onus of conducted at the disputed polling units and results duly issued. (Grounds 20 and 22)
15. Whether in the light of the pleadings of the parties it can rightly be held as the tribunal did, that there was a dispute as to whether election was held in the disputed eleven polling units and whether there was in the evidence on record any basis for the tribunal holding that the witnesses for the Respondents used the word election in its generic sense. (Ground 21)
16. Whether having regards to the pleadings and evidence on record, it can be said that the Tribunal properly reviewed and evaluated the evidence of the witnesses before arriving at its findings against the petitioners.
(Ground 26 and 35)
17. Whether the tribunal was right in its holding that the results for the disputed nine polling units of Laminga entered in mere sheet of paper and to have departed from the ease made by the 1st to 3rd Respondents in their pleadings that the Collation Officer cancelled the results of the disputed units which allegation was not proved.
18. Whether, the Tribunal gave proper consideration of the pleadings and evidence on record in relating to the results for the disputed nine polling units of Lamiga ward, exhibits 1(1-9) before reaching its decision not to validate the results in favour of the Appellants. (Ground 30)
19. Whether in the light of the pleadings and evidence led by the Petitioners in proof of their case the Tribunal was justified in holding that the Petitioners failed to establish that the 4th Respondent was wrongly returned as Governor of Nassarawa State and that he was not elected by majority of lawful votes cast in the election and consequently dismissing the petition.
(Ground 31)
20. Whether the Tribunal was right in holding that the evidence of PW14, PW44 and PW45 amounted to inadmissible hearsay notwithstanding that the evidence of the witnesses was based partly on what the witnesses saw and partly on documents admitted in evidence.
(Ground 34)
The 4th Respondent’s brief of argument prepared by Chief Wole Olanipekun, SAN was dated 13th December, 2011 and filed on the same date.
The Appellant’s reply brief to the 1 – 3rd Respondents brief of argument was dated 19th December 2011 and filed the same date.
The Appellant’s reply brief to the 4th Respondent’s brief of argument dated 19th December, 2011 and filed the same date, contains the argument in opposition to the preliminary objection on pages 1 – 5.
A cross – Appellant’s brief of argument was dated 8th December, 2011 and filed on the same dated by Chief Wole Olanipekun, SAN.
In the said cross-appellants brief on behalf of the 4th Respondent three issue were formulated and they read as follows.
i. Having regard to the petitioner’s pleadings, as well as the evidence led, whether or not the lower Tribunal has the vires to countenance the petition before it and adjudicate on it, in the absence of the congress for progressive change (CPC) and several other persons and institutions against whom diverse allegations were/are made, but who were/are not made parties to the petition – Ground 1
ii. Considering the jurisdiction of the Lower Tribunal as defined and delineated by statutes, the pleadings of the parties, as well as the specific reliefs sought for by the petitioners, whether the Lower Tribunal was not in grave error to have validated the votes in Oshugu and Anna Town Polling Units in favour of the Petitioners/Cross-Respondents. Grounds 2, 3, 8 and 11.
iii. Having regard to the pleadings of the parties and the evidence led, whether the lower tribunal was not in serious error in its failure to uphold the Cross-Appellant’s objection to the votes of the Petitioners/Cross-Respondents in Doma, Kokona and Obi Local Government Areas. Grounds 4, 5, 6, 7, 9, 12, 13, 14, 15 and 16.
The 1st and 2nd Cross-Respondents brief of argument was dated 15th December, 2011 and filed on the 16th December, 2011. Three issues were distilled for determination by the 1st and 2nd Cross-Respondents. The issues are reproduced as follows.
i) “Whether the petition was not competent and therefore liable to be struck out.”
ii) “Whether on the pleadings and evidence led, the tribunal rightly validated the results of the election in Oshuga polling unit and Anna Town polling unit.”
iii) “Whether the Cross-Appellant made out a case for the nullification of the votes returned by the 1st – 3rd Respondent in the Cross-Appellant’s objection to votes in the Cross-Appellant reply to the petition.
The Cross-Appellant’s reply brief was dated 20th December 2011 and file on 21st December 2011.
It is of utmost importance to emphasize at this point that the notice of preliminary objection filed op behalf of the 4th Respondent touches on issues bordering on the competence and or jurisdiction of the Court to entertain the main appeal and the cross-appeal. It is for this reason that preference must be given to the said police of preliminary objection and as such it must be dealt with first before proceeding to deal with the matters pertaining to the main appeal and the cross-appeal,
Learned Counsel for the 4th Respondent had filed 4 notice of preliminary objection on the 13/12/2011 attacking virtually all the thirty five grounds of Appeal.
We shall take the objection seriatim.
As regards Ground 1, we are of the view that this ground arises from the judgment of the lower tribunal as 3501 of volume 9 of the record of appeal. Howbeit the particulars are argumentative but this does not vitiate the ground of appeal. Although, particular iii is lengthy, it is not prolix.
Ground 2
We find that, as argued by learned silk the 4th Respondent that the numbering of the particulars is not consecutive. Particulars i, ii & iii are not argumentative.
Ground 3
This emanates from the judgment of the lower Tribunal. There is no particular 3 in this ground.
Ground 4
This ground is vague. Particular iii is argumentative.
Ground 5
This ground flows from the decision of the tribunal and particulars i, ii, & iii are not argumentative.
Ground 6
This ground flows from the judgment of the lower Tribunal. Only particular v is argumentative.
Ground 7
Flows from the judgment of the lower tribunal who relied on the case of HARUNA v. MODIBBO (2004) 16 NWLR Pt. 900 Pg 487. This ground is not vague, not prolix, not argumentative and not unnecessarily narrative.
Ground 8
This ground has no error of law stated. No nexus between particular i and the main ground and particular ii is speculative and argumentation.
Ground 9
Flows from the judgment of the lower Tribunal but particulars i, ii, & iii are argumentative.
Ground 10
This ground is unnecessarily long and prolix. Same applies to the particulars which we find argumentative.
Ground 11
This ground is not vague and particulars i & ii are not argumentative.
Ground 12
Particulars ii is not argumentative.
Ground 13
Arises from the judgment of the lower tribunal but argumentative.
Ground 14
Arises from the judgment of the lower tribunal but particulars ii is argumentative.
Ground 15
This arises from the judgment of the lower tribunal. We find that particular i is not meaningless or ambiguous, particulars ii is not vague, particulars iii is however argumentative.
Ground 16
This ground is not vague. Particular i is not vague. Particular iii is not argumentative.
Ground 17
We find particulars i, ii & iii argumentative and prolix
Ground 18
Only particular i is argumentative.
Ground 19
Only particular ii is argumentative.
Ground 20
Particular i, ii & iv are argumentative.
Ground 21
This ground emanates from the judgment. However particular i, ii & iii & iv are argumentative.
Ground 22
We agree, but particular i is not argumentative. Particular iii is not vague, abstract and meaningless.
Particular iv is not argumentative.
Ground 23
Particular iv, v, & vi are not argumentative.
Ground 24
This ground flows from the judgment. It is not erroneous, vague nor misleading. Particular i is not vague or ambiguous. Particular iii & vii are not argumentative but we find particular vi argumentative.
Ground 25
This ground emanates from the judgment of the lower tribunal. It is not misleading and particulars ii, iii, iv, vi, vii & viii are argumentative.
Ground 26
While we find this ground comprehensive, it is however at large, as no evidence which was “not reviewed or evaluated” is shown.
Ground 27
This ground is vague and ambiguous. Particular i is argumentative and narrative; particular ii is narrative and particular iii is lengthy and argumentative.
Ground 28
Particulars i and iv are argumentative.
Ground 29
Particulars i, ii, & iii argumentative.
Ground 30
Particular ii is not argumentative. Particular iii is however argumentative.
Ground 31
Particulars ii, iii & iv are argumentative.
Ground 32
Particulars iii, iv & v are argumentative.
Ground 33
Particulars i & iii are not vague.
Ground 34
Particular iii is not argumentative.
Learned silk Chief Wole Olanipekun SAN had contended at page 6, paragraph 5 in his notice of preliminary objection that none of the grounds alleging misdirection against the judgment of the lower Tribunal made the slightest attempt to quote or pin point where the alleged misdirection occurred. But we find that the grounds of appeal on record do not complain of any misdirection by the lower Tribunal. This contention is therefore misconceived. On the 19th of December 2011, the Appellant filed a reply brief to the 4th Respondent brief of argument. At pages 1 – 5 in the said reply brief, the appellant responded to the preliminary objection to the intent that the 4th Respondent preliminary objection is unfounded, lacking in merit and a gross resort to technicality at the expense of substantial justice. We are poised to agreeing with this line of argument as we are of the view that even though some of the particulars of the ground are argumentative and prolix in nature this does not go to the foundation of this case: See ONUOHA VS. NDUBUEZE (2002) 2 NWLR (pt. 750) 172 AT 183. It is imperative, indeed desirable, by the very nature of election petitions that appellate Courts are not inundated with spurious applications including preliminary objections that carry the complexion of undue distraction at the expense of hearing the merits of a case. Therefore the argumentative nature of some of the particulars in the grounds of appeal would not vitiate the grounds of appeal neither would it bar this Court from entertaining the merit of this appeal. Apart from ground 8 where we find that no error of law was stated, and no nexus between particular I and the main ground, we find that all other grounds are viable and tenable, Ground 8 in the grounds of appeal lacks competence and same is accordingly hereby struck out. We also find that the argument of the Appellant that the preliminary objection is unfounded ought to be countenanced and same is hereby countenanced.
The result is that the notice of preliminary objection is overruled and same is hereby dismissed.
Now we shall proceed to the consideration of the main appeal.
We have examined all the grounds of appeal and the various issues formulated therefrom by all Counsel appearing in this matter and we have come to the conclusion that the core issue arising from all these various and standard of proof. The question is whether the petitioners proved the allegations in the manner required by law.
The contention of the Respondents in the petition who are also Respondents to this appeal is that the allegations are criminal in nature and therefore the standard of proof is one beyond reasonable doubt. The petitioners who are the Appellants are of the contention that not all the allegations are criminal in nature and therefore on the doctrine of severance those that are not criminal are to be proved on preponderance of evidence while those that are criminal must be proved beyond reasonable doubt. We have carefully read all the briefs vis-a-vis the proceedings of the trial tribunal. PW14 and PW44 were justifiably discredited by the trial tribunal. The PW40, Director of Operations of INEC, who was brought on supeona duces tacum and testicandum was no doubt a witness for the Appellant. The supeona was issued at the instance of the Petitioners/Appellant despite protest from the Respondents. PW40 testified and gave evidence that contradicted the evidence of witnesses invited by the Petitioners/Appellants which seriously disproves the Appellant’s case.
Before this Court the Appellants have submitted that PW40 should not be believed as a witness of truth and that the Court can choose which aspect of his evidence should be believed and that which the Court should not. It is trite law that when witnesses called by a party contradict one another, the Court cannot pick and choose which one to believe and which one to disbelieve. See BOY MUKA V. THE STATE (1976) 10-11SC 305.
ALFRED ONYEMENA V. THE STATE (1974) ALL NLR PG 522 at 530.
As it was held in the case of WAZIRI IBRAHIM V. SHEHU SHAGARI (1983) NSCC 431, the PW40 called by the Appellants helped them to disprove all the allegations they sought to reply upon, to borrow the words of IRIKEFE JSC at pg 434 of the report.
“In other words the petitioner with his eyes wide open pull down brick by brick the edifice he had erected. The result of the poor strategy was that the Federal High Court had to difficulty in arriving at the conclusion which it did that this petition has not been proved, and in dismissing it”
In the instant case the Appellants had put forward PW40 whom they rely heavily on as witness. The Appellant are estoppod from complaining against this witness who is an employee of their adversary, as their ally. The strategy is unphantomable. The reason, why the Appellant should call PW40 as their witness is most incomprehensible. In respect of the criminal allegation the Supreme Court had held in the case PAUL AMEH V. THE STATE (1978) NSCC 368, that where a prosecution puts before the Court two version of an allegation, one disproving the allegation and the other proving same, they cannot be said to have proved the allegation against the accused beyond reasonable doubt. Notwithstanding this failure of strategy by the petitioners, the Respondent brought witnesses to the tribunal to show that the election where the 4th Respondent won was free and fair and that where the 1st Appellant won the election was not free and fair.
We have meticulously considered all the issues raised by the Appellant’s in this appeal, and in the light of the foregoing; we are of the firm view that the Appellants did not prove their case at the tribunal either beyond reasonable doubt or on the preponderance of evidence. All the issues raised by Appellants are therefore resolved in favour of the Respondents.
We shall now consider the cross appeal. The 4th Appellants cross-appealed vide notice of appeal dated 28th of November 2011, containing 16 grounds of appeal. The notice of cross appeal is at page 3687 of volume 9 of the record of appeal. In the cross appellant brief of argument, three issues were proffered for determination as reflected at page 5 paragraph 3.0-3.1 of the cross appellant brief of argument. The said issues had been earlier reproduced in this judgment. We shall now deal with the issues seriatim.
Regarding issue number 1, the allegation of the cross appellant is that some paragraphs in the main petition are fraught with allegations against CPC specifically referring to paragraphs 5, 9, 18, 20, 35 & 53 in the main petition. But with respect to the cross appellant, we find that paragraphs 5 & 9 of the petition are merely introductory and no allegation was made in those paragraphs. In paragraph 18 of the petition no allegation was made against CPC but just a general statement of fact. In paragraph 20 no reference was made to CPC, but allegation was made against the 4th respondent. Paragraph 15 of the petition contains particulars of corrupt practices, non compliance alleged in paragraph 34 against INEC in conjunction with 4th respondent’s agents and not against CPC.
We note that the petition does not have paragraph 53
The argument by cross appellant in his brief of paragraph 4.1 in his brief of argument that the allegations were concentrated on the CPC, and that paragraph 35 in particular which forms the kernel of the petition are allegation on CPC, is misconceived. Accordingly this issue is hereby resolved against the cross Appellant.
On issue number 2, the tribunal having found that the exhibit written to those unit were curious, that is, Oshugu polling unit, they cannot do a summersault and find for the petition. The “O” recorded by the other parties were put in quote. The tribunal itself labelled exhibit 51 as a curious suspect document. We have read the evidence of DW3 and DW9 and there are no contradictions, and contrary to the findings of the tribunal that there were contradictions in their evidence, we find no such contradictions. The result in exhibit 19 as admitted by the presiding officer DW9 who saw everything was cancelled by him because of the violence.
The cancellation was done by the presiding officer and not the collation officer. Issue no 2 therefore succeeds and same is hereby resolved in favour of the cross Appellant.
On issue no 3 there is nothing to show that the votes were dumped.
Allegation by cross Appellant that they were dumped without more is in our view spurious and speculative. How were they dumped? He who asserts must prove.
In ground 5 the tribunal said it found no evidence no record. The evidence before the tribunal was that there was over voting in Doma, Kokona and Obi local government areas. The register of voters in respect of these three units were tendered at the tribunal. Used and unused ballot boxes were tendered also at the tribunal. It showed differential between the forms EC8A and the actual ballot papers used at the election. The counting was consequent upon the order of the tribunal. The evidence of PW40 supports the stand of the cross appellant.
Since the materials were before the tribunal, the tribunal would have considered them in view of the differentials pointing to the issue of over voting in respect of the three Local government areas. The tribunal would have upheld the objection, but regrettably he did not. Accordingly, this issue is resolved in favour of the cross Appellant.
The cross appeal succeeds in part. Issue 1 is hereby dismissed. The results of the election at Oshugu and Anna poling units are hereby invalidated.
In conclusion, this appeal, lacking in merit, is hereby dismissed in its entirety. The decision of the trial Tribunal is hereby affirmed.
There shall be no order as to costs.
AHMAD O. BELGORE, J.C.A.: I agree.
EJEMBI EKO, J.C.A.: I agree.
RITA N. PEMU, J.C.A.: I agree.
Appearances
1. L. O. FAGBEMI SAN.
2. CHIEF AKIN OLUJIMI SAN.
3, A. O. ADELODUN SAN.
4. ROWLAND OTARU SAN.
5. J. O. BAIYESHEA SAN.
6. DR. J. O. OLATOKE ESQ.
7. B. O. ADESHINA ESQ.
8. H. O. AFOLABI ESQ.
9. A. O. POPOOLA ESQ.
10. HASSAN A. YAKUBU ESQ.
11. A. F. YUSSUF ESQ.
12. F. ABIODUN (MS)
13. B. A. OYUN ESQ.
14. DARE OKETADE ESQ.For Appellant
AND
COUNSEL FOR THE 1ST, 2ND & 3RD RESPONDENTS
1. HASSAN M. LIMAN SAN
2. M. B. USMAN
3. I. M. DIKKO
4. A. M. MOHAMMAD
5. A. M. IMAM
6. M. M. OGA
7. MOHAMMED ABDUL KAYYIMU
COUNSEL FOR THE 4TH RESPONDENTS
1. CHIEF WOLE OLANIPEKUN, SAN
2. YUSUF ALI, SAN
3. DR. ALEX IZINYON, SAN
4. A. JATAU ESQ
5. MUHAMED ABULHAMEED ESQ
6. ABDULAHI SAIDU ESQ
7. GBENGA ADEYEMI ESQ
8. F. O. IZIYON ESQ
9. I. O. ATOFARATI ESQ
10. M. O. ABUBAKAR ESQ
11. N. N. ADEGBOYE ESQ
12. A. W. RAJI ESQ
13. L. A. IKHANOBA ESQ
