ALHAJI GARBA SARKI MOHAMMED v. HAJIYA RABI MOHAMMED
(2007)LCN/2534(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of November, 2007
CA/J/IEP/HA/256/2007
RATIO
ELECTION PETITIONS – ELECTION TRIBUNAL : WHETHER THE ELECTION TRIBUNAL HAS THE RIGHT AND DUTY TO COMPUTE OR COLLATE RESULTS AND WHEN DOES THIS DUTY ARISES
“An election tribunal has a right and indeed duty to compute or collate the results where they have been inflated and/or wrongly computed. It has the power to even add the votes found to have been wrongly excluded to the score of the affected candidate. This mandate the tribunal has under the Electoral Act, is to declare the candidate with the majority of valid votes and, by doing that, the tribunal does not thereby usurp the function of the collation officers or even the electoral body. However, the right or duty arises only on proof that there was inflation with non-existent votes and or wrong computation…” PER ALFRED P. EYEWUMI AWALA, J.C.A.
EVIDENCE – STANDARD AND BURDEN OF PROOF : WHAT IS THE STANDARD OF PROOF IN CIVIL CASES AND ON WHOM LIES THE BURDEN OF PROOF
“In civil cases proof is on the preponderance of evidence, He who asserts must prove. ” PER ALFRED P. EYEWUMI AWALA, J.C.A.
APPEAL – EVALUATION OF EVIDENCE : WHETHER IT IS THE EXCLUSIVE RIGHT OF THE TRAIL COURT OR TRIBUNAL TO DETERMINE THE CREDIBILITY OF WITNESSES AND ALSO ASCIRBE PROBATIVE VALUE TO EVIDENCE ADDUCED
“It is the exclusive right of the trial court in the instant case the trial tribunal to determine the credibility of witnesses as it was in the best position to watch their demeanor. It is also the exclusive right of a trial court to evaluate and ascribe probative value to the evidence adduced before it. Where this is done as in the instant case it is not the function of an appellate court to interfere with such findings. Yadis (Nig.) Ltd. v. GNIC Ltd. (2007) 14 NWLR (Pt.1055) 584; Cash Affairs Finance Ltd. v. Inland Bank (Nig.) Plc (2000) 5 NWLR (Pt. 658) 568; Adefarasin v. Dayekh (2007) 11 NWLR (Pt. 1044) 89” PER ZAINAB ADAMU BULKACHUWA J.C.A.
JUSTICES
ZAINAB ADAMU BULKACHUWA Justice of The Court of Appeal of Nigeria
ALFRED P. EYEWUMI AWALA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
Between
ALHAJI GARBA SARKI MOHAMMED Appellant(s)
AND
HAJIYA RABI MOHAMMED Respondent(s)
ALFRED P. EYEWUMI AWALA, J.C.A. (Delivering the Leading Judgment): This appeal by the 1st respondent/appellant (hereinafter called “the appellant”) is predicated on the judgment of the Governorship and Legislative Houses Election Tribunal (hereinafter called “the lower tribunal”) holden at Bauchi delivered on 10/8/07 in the petition No. NALGH/EPT/BA/3/07 filed on 11/5/07 by the respondent who was petitioner thereat.
The facts of this appeal as can be gleaned from the record reveal that the appellant contested the general election held nationwide on 14/4/07 under the platform of the All Nigerian People’s Party (ANPP), while the respondent contested under the platform of the Peoples Democratic Party (PDP). There were six other respondents at the lower tribunal but are not joined as parties in this appeal.
At the end of the polls, the appellant was credited with 7,327 votes as against 6695 votes to the respondent. The appellant was returned as the winner by INEC. The respondent was dissatisfied with the result and filed a Petition at the Election Tribunal holden at Bauchi and she prayed for the following in paragraph 6 of the petition:-
“(i) That the election of the 1st respondent was invalid by reason of corrupt practices and non-compliance with the provision of the Electoral Act 2006.
(ii) That the 1st respondent was not duly elected by majority of lawful votes cast at the Election.”
Reliefs claimed:-
“(a) That it be declared that the exclusion of the votes won by the petitioner from the election that took place at Gwaram and Zadawa wards is wrongful.
(b) That it be determined that the 1st respondent was not duly elected as the member representing Hardawa State House of Assembly constituency, not having polled majority of the lawful votes cast at the election.
(c) That it be declared that the petitioner having scored the highest number of valid votes at of the election is the winner of the election and be returned accordingly.
(d) And any other order or orders as the Honourable tribunal may deem fit to make in the circumstances.”
The respondent/appellant filed a reply to the petition and a joint reply was also filed by the 2nd-7th respondents respectively. The petition was heard by the lower tribunal on 2/7/07. At the hearing the respondent testified, as PW2 and called 4 other witnesses. On the other hand, the appellant who was the 1st respondent at the lower tribunal did not testify but called 3 witnesses (RW1 to RW3) while 2nd to 7th respondents called one witness, one Bashir Shehu as RW4.
At the conclusion of the trial and after the submissions by the learned counsel for the parties, the tribunal in a reserved judgment delivered on 10/8/07 held, inter alia, that the respondent was duly elected and declared her the winner of the election, nullifying the election of the appellant in accordance with the provision of section 147(1) of the Electoral Act 2006 and ordered as follows:-
“(a) That the 2nd and 3rd respondents to withdraw forthwith the certificate of return issued to the appellant as member representing Hardawa constituency into the Bauchi State House of Assembly;
(b) To immediately issue certificate of return to the respondent as duly elected member representing Hardawa constituency at the election of 14/4/07 to the Bauchi State House of Assembly.”
Dissatisfied, the appellant appealed to this court on 2 grounds of appeal from which he distilled two issues to wit:
(1) Whether the Honourable tribunal was legally right to have used and relied on the alleged total votes scored by the respondent in exhibit C and D without all the polling unit results being in evidence in declaring the respondent as the winner of the election. (Ground one).
(2) Whether the Honourable tribunal was legally right to have refused to accept and act on the uncontroverted evidence of the appellant’s witnesses as to the diversion of election materials and the absence of voting in Gwaram and Zadawa wards (Grounds two)
The respondent on the other hand also couched two issues for determination thus:-
(1) Whether the Honourable tribunal was right in placing reliance on exhibit C and D i.e. INEC FORMS EC 8B (1) the summary of results from the 39 polling units that constitute Gwaram and Zadawa wards of Hardawa constituency in coming to the conclusion that election was duly conducted in the two wards which the respondent won notwithstanding that nineteen out of the 39 polling units results which were already collated into exhibit “C” and “D” were not tendered in evidence. (Ground one)
(2) Whether the tribunal was right in discountenancing the evidence of the appellant’s witnesses on their assertion that election did not hold in Gwaram and Zadawa wards of Hardawa constituency as a result of diversion of election materials and was the tribunal justified in awarding judgment to the respondent. (Ground two)
The two issues distilled by the each of learned counsel for the parties are basically the same. I prefer to utilize the two couched by the respondent. I will consider the two issues together to determine this appeal. I am of the view that issue two is dependent on issue one. In considering the issues, I need to examine albeit briefly the arguments of counsel for the parties starting with that of appellant’s learned counsel, I.A. Achimugu, Esq.
His arguments in a nutshell are that no election took place at Zadawa and Gwaram wards because election materials meant for the wards were diverted by PDP agents. No voting took place at the designated polling units in those wards. The PDP agents only surfaced at 4pm at the collation centre with results from the polling units. The appellant submitted that it was wrong for the lower tribunal to have accepted exhibits “C” and “D” without the polling unit’s results from the two wards.
Counsel also submitted that exhibits “A1 to A15, B1 to B5”, “C” and “D” should not have been accorded any probative evidential weight as they were not stamped and signed pursuant to sections 64 and 75 of the Electoral Act. The learned counsel for the appellant submitted that the lower tribunal was in grave error when it accepted and relied on exhibit “C” and “D”.
In reply, learned counsel for the respondent Ben Ogbuchi Esq. submitted as follows:-
That there was a free and fair election on 14/4/07 in all the polling units of Gwaram and Zadawa wards.
That exhibits “C” and “D” are the summary of the results of Zadawa and Gwaram.
That by virtue of the provision of section 28 (2) (a) of the Electoral Act 2006, the Presiding Officers at Gwaram, and Zadawa respectively ought to have declared the results as shown in exhibits “C” and “D’. In support of his contention counsel referred to section 73 and 150 (1) of the Electoral Act 2006 and cited Buhari v. Obasanjo (2005) 13 NWLR (Pt 941) Page 1, where the Supreme Court held that there is a presumption of validity of any document from INEC coming from proper custody.
That the respondent’s 3 witnesses were unanimous in their respective testimonies. That there was free and fair election in both wards. RW4, Bashir Shehu, the sole witness called by 2nd to 7th respondent (an INEC official) both in his written statement on oath adopted in evidence in page 74 – 75 of the records and under cross-examination also said that there was a free and fair election in Gwaram and Zadawa wards on 14/4/07. Learned counsel for the respondent cited the following cases. He cites Mainagge v. Gwamma (2004) 14 NWLR (Pt. 893) 323; Ezeanah v. Attah (2004) 7 NWLR (Pt. 873) 468 Osigwe v. Unipefrol (2005) 5 NWLR (Pt. 918) 261; and Daggash v. Bulama (2004) 14 NWLR (Pt. 892) 144.
That by virtue of the provision of section 28(2)(a) of the Electoral Act, 2006, the Presiding Officer at Gwaram and Zadawa wards respectively ought to have announced the results as shown in exhibits “C” and “D”.
Counsel then referred to Sections 73 and 150 (1) of the Electoral Act and in addition he cited the Supreme Court case of Buhari v. Obasanjo. (supra). The lower tribunal found as a fact that there was a free and fair election in Zadawa and Gwaram wards hence the reliance on exhibit C and D.
He cited in support of his submissions the follows cases: Mainagge v. Gwamma (supra); Ogologo v. Uche (2005) 14 NWLR (Pt 945) 226; Ogun v. Akinyelu (2004) 18 NWLR (Pt. 905) 362; Ogboru v. Ibori (2005) 13NWLR (Pt. 942) 319; Daggash v. Bulama (2004) 14 NWLR (Pt. 892) 144; and also section 146(1) of the Electoral Act, 2006.
I have reviewed the submissions by both learned counsel on both sides and both agree:-
(1) That Hardawa constituency of Bauchi State is made up of six wards.
(2) That Zadawa has 24 polling units, while Gwaram has 15.
(3) That polling units are the primary source of ward results.
(4) That at the trial the 3rd respondent INEC tendered the results of only 15 out of the 24 polling unit results for Zadawa ward which are contained in exhibits A1 -A15
(5) That the 3rd respondent tendered five polling unit results marked exhibits B1 – B5 for Gwaram ward.
In resolving the issues as formulated by the parties the lower tribunal in page 195 to 196 of the record of proceedings held:
“In line with our respect to call (sic) made by the 1st respondent’s counsel, we have judiciously looked into the exhibits under reference (sic). As a point of correction of the comparison made by the learned counsel to the 1st respondent is that exhibit “A1 -A15” are supposed to be compared with exhibit “D” for the polling units in Zadawa ward and not with exhibit “C” prepared for Gwaram ward. Same correction goes with exhibit B1 – B5 which (sic) supposed to be compared with exhibit “C” and not exhibit “D” prepared for Zadawa ward.
When we perused the exhibits referred to above we found the entries substantially the same between exhibit “A1 to A15” and exhibit “D” and then “B1-B15” and exhibit “C” except in exhibit “A 7” for Ultingo polling unit wherein 442 votes was recorded as against the entry in exhibit “8” for Wuro Bundu polling unit which has 54 votes recorded as against the entry in exhibit “C” of 354 votes for Gwaram ward. These are in the column for PDP.
We observed that the non-tally mentioned by the 1st respondent’s counsel of the exhibits under reference is with consideration for the absence of FORM EC 8A(1) not produced for some of the polling units of Zadawa and Gwaram wards which A.B. Umar, Assistant Director Legal Services said they (sic) already sent to INEC at Abuja. This means that the expected tally can not be possible in the absence of those other documents… therefore the proper comparison is with exhibits “C” and “D” which are the summary results from polling stations for Gwaram and Zadawa wards respectively. Looking at them as we are required to do we found the total for Gwaram in exhibit “C” as 4928 votes for PDP and 1124 votes for ANPP; while that of Zadawa in exhibit “D” is 8176 votes for PDP and 1535 votes for ANPP This tally with the petitioner’s pleading in paragraph (vii) of the petition the result is that there are no contradictions as contended by counsel. (Italics mine)
The above finding by the lower tribunal in my view cannot be faulted. See Adun v. Osunde (2003) 16 NWLR (Pt. 847) 643 ratio 8; Badawi v. Adam (1999) 3 NWLR (Pt. 594) 303; Ajadi v. Ajibola (2004) 16 NWLR (Pt. 898) 91.
For clarity, it is pertinent to reproduce the ratio decidendi in Ogunde’s case supra as the lower tribunal went ahead to compute the votes scored by the appellant and the respondent based on exhibits “C” and “D”. The ratio reads:-
“An election tribunal has a right and indeed duty to compute or collate the results where they have been inflated and/or wrongly computed. It has the power to even add the votes found to have been wrongly excluded to the score of the affected candidate. This mandate the tribunal has under the Electoral Act, is to declare the candidate with the majority of valid votes and, by doing that, the tribunal does not thereby usurp the function of the collation officers or even the electoral body. However, the right or duty arises only on proof that there was inflation with non-existent votes and or wrong computation…”
By this authority and a plethora of others the tribunal has the right to compute the votes scored by the parties were necessary.
I will look more closely at the testimonies of the parties’ witnesses to resolve the second issue which is dependent on the first as aforesaid as follows:-
All the petitioners/respondent’s witnesses (PW1-PW5) in the lower tribunal gave evidence that the election in Zadawa and Gwaram wards were free and fair. Their testimonies were not shaken during cross-examination by the appellant’s counsel. The 2nd-7th witness, RW4, Bashir Shehu, also gave evidence in support of the respondent’s case that the election was free and fair and in substantial compliance with the Electoral Act.
From the above it is obvious that the appellant has not proved that there was no election in Zadawa and Gwaram wards. The appellant has also failed to prove to the satisfaction of the tribunal that there was not substantial compliance with the Electoral Act.
In civil cases proof is on the preponderance of evidence, He who asserts must prove. This that the appellant has failed to prove that election did not hold in Zadawa and Gwaram wards. In the final analysis I hold that the election in Zadawa and Gwaram wards were free and fair. I also hold that the lower tribunal was right in relying on exhibit “C” and “D” in arriving at their final decision.
In conclusion this appeal lacks merit and is hereby dismissed. I affirm the decision of the lower tribunal dated 10/8/07 in petition No. NALGH/EPT/BA/3/07 filed by the respondent on 11/5/07, to wit:-
(1) That the 2nd and 3rd respondents withdraw forthwith the certificate of return issued to the 1st respondent as a member representing Hardawa constituency in the Bauchi State House of Assembly.
(2) That the 2nd and 3rd respondents issue a certificate of return to the petitioner as the duly elected member representing Hardawa constituency for the election of 14th April, 2007 to the Bauchi State House of Assembly.
I assess the cost of this appeal at N50,000.00 in favour of the respondent and against the appellant.
ZAINAB ADAMU BULKACHUWA, J.C.A.: I have been privileged to read the draft of the judgment just delivered by my learned brother, Awala, J.C.A. I agree that this appeal lacks merit.
The respondent as petitioner before the National Assembly/Governorship and Legislative Houses Election Tribunal Bauchi filed a petition on the 11/5/2007 against the return of the appellant by the 2nd-7th respondents as the winner of the House of Assembly election from Hardawa Constituency of Bauchi State at the election to the State House of Assembly conducted on the 14/4/2007.
The petition was premised on these grounds:-
(i) That the election of the 1st respondent was invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act, 2006.
(ii) That the 1st respondent was not duly elected by the majority of lawful votes cast at the election.
The petitioner/respondent testified before the lower tribunal as PW2 and her evidence before the said tribunal was to the effect that she contested for the said election on the 14/4/2007 under the platform of the PDP and the election was peacefully conducted in the six wards that make up her constituency. That the 4th-7th respondents wrongfully excluded the votes cast in Gwaram and Zadawa wards which are her stronghold. That having polled 4928 votes as against the 1st respondent who scored 1124 votes in Gwaram ward, and 8176 votes as against the 1st respondent’s votes 1535 in Zadawa ward, she should have emerged the winner if the results of the two wards were not wrongly excluded.
The respondent on the other hand maintained by his reply to the petition that there was substantial non-compliance with Electoral Act, 2006 to justify the exclusion of the results of Gwaram and Zadawa wards.
The lower tribunal at page 200 of the records after an exhaustive evaluation of the evidence as adduced found as follows:
“The 2nd-7th respondents did not by way of evidence establish substantial non-compliance with the Electoral Act 2006 to justify the exclusion of the results of Gwaram and Zadawa wards. We so hold.
The 1st respondent also failed to adduce cogent convincing and acceptable evidence to establish unlawful and invalid election in Gwaram and Zadawa wards on the 14/4/07 to justify the exclusion of the results from the two wards by the 4th respondent whereas the petitioner has succeeded in establishing a prima facie case by the evidence adduced in the petition.
In the light of the above, we found that there were free and fair elections on the 14/4/07 at Gwaram and Zadawa wards in accordance with the Electoral Act, 2006. For this reason we hold that the exclusion of the results of the 2 wards, by the 4th respondent who was the Returning Officer, from the overall result of the six wards for Hardawa Constituency to the State House of Assembly as unjustifiable.”
The above finding by the lower tribunal is impeccable and based on the evidence that was adduced before it. I find no reason to disturb such findings. It is the exclusive right of the trial court in the instant case the trial tribunal to determine the credibility of witnesses as it was in the best position to watch their demeanor. It is also the exclusive right of a trial court to evaluate and ascribe probative value to the evidence adduced before it. Where this is done as in the instant case it is not the function of an appellate court to interfere with such findings. Yadis (Nig.) Ltd. v. GNIC Ltd. (2007) 14 NWLR (Pt.1055) 584; Cash Affairs Finance Ltd. v. Inland Bank (Nig.) Plc (2000) 5 NWLR (Pt. 658) 568; Adefarasin v. Dayekh (2007) 11 NWLR (Pt. 1044) 89.
For that and the more elaborate reasons in the lead judgment, I find no merit in this appeal. I accordingly dismiss it and affirm the decision of the Bauchi State Governorship and Legislative Houses Election Petition Tribunal delivered on the 10/8/2007.
I affirm the order made by the tribunal on the said date, which ordered:
(1) That the 2nd and 3rd respondents withdraw forthwith the certificate of return issued to the 1st respondent as member representing Hardawa Constituency in the Bauchi State House of Assembly.
(2) That the 2nd and 3rd respondents issue a certificate of return to the petitioner as the duly elected member representing Hardawa Constituency for the election of 14th April 2007 to the Bauchi State House of Assembly.
I award cost of N50,000 to the respondent as against the appellant.
UZO NDUKWE-ANYANWU, J.C.A.: This is an appeal against the judgment of the National Assembly and Governorship and Legislative Houses Election Petition Tribunal Bauchi State delivered on the 10th August, 2007.
The petitioner claimed that the collated results for Zadawa and Gwaram wards were unlawfully excluded. This exclusion thereby
Issue One
The appellant submitted that both parties agreed that Zadawa ward consists of twenty-four polling units while Gwaram ward consists of fifteen polling units. Only fifteen out of the twenty-four polling units results of Zadawa ward were tendered and marked as exhibit A1-A15. Also five polling units results of Gwaram ward were tendered and marked as exhibit B1-B5. The learned appellants’ counsel submitted that only the results tendered should have been used. Rather the tribunal relied on exhibits C and D which were the collated result of the two wards. Counsel submitted that without the primary results of the polling units the tribunal was wrong in relying on exhibits C and D to reach its verdict. See Obun v. Ebu (2006) A FWLR (Pt. 327) page 419.
The appellants’ counsel submitted that there was no election in the two wards as it was marred by election malpractice and irregularities and as such their results were excluded. Counsel urged the court to resolve this issue for the appellant.
The respondent’s counsel submitted that the petitioner/respondent pleaded Forms EC 8A(1) and gave notice to the 2nd and 3rd respondents to produce same. The 2nd and 3rd respondents failed to bring all the Forms EC 8A (1) results of the two wards. They however produced Forms EC 8(B)(1) for both wards and were tendered as exhibits C and D.
Exhibits C and D were brought from proper custody of INEC tendered and admitted in evidence. The appellant did not object and the tribunal admitted exhibits C and D and relied on them. See Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) page 1.
The correctness and authenticity of exhibits C and D which were produced by INEC is presumed. If the appellant disputes this he has the burden of proving that exhibits C and D were not authentic. This he failed to prove. Failure to prove anything on the contrary the tribunal was correct in relying on exhibits C and D in reaching its verdict. I therefore resolve issue one against the appellant.
Issue Two
The learned appellant’s counsel submitted that his witnesses testified that there was no election in the two wards but the respondent did not controvert this assertion in cross-examination. These assertions the appellant submitted ought to have been accepted that there was no election in the two wards hence their exclusion.
Appearances
J. A. Achimugu, EsqFor Appellant
AND
Ben Ogbuchi, EsqFor Respondent
