ALHAJI UMARU MUSA YAR’ADUA v. ALHAJI SA’IDU BARDA & ORS
(1992)LCN/0129(CA)
In The Court of Appeal of Nigeria
Wednesday, the 1st day of April, 1992
Case Number: CA/K/2/EP/92
RATIO
APPEAL: WHETHER FAILURE TO HEAD PARTICULARS IN A GORUND OF APPEAL AS “PARTICULARS OF ERROR” MAKES IT INCOMPETENT
It is not mandatory that particulars in a ground of appeal had to be headed “Particulars of Error” before the ground could comply with the provisions of Order 3, rule 2(3) of the Court of Appeal Rules. 1981. as amended. The heading “Particulars of Error “is a matter of form and is never meant to be a ground for declaring a good ground of appeal, with itemised particulars, incompetent. The incompetency of a ground is in its meaning and not in its form. PER MOHAMMED, J.C.A.
JUSTICES:
MOHAMMED MUSTAPHA ADEBAYO AKANBI Justice of The Court of Appeal of Nigeria
UTHMAN MOHAMMED Justice of The Court of Appeal of Nigeria
DAHIRU MUSDAPHER Justice of The Court of Appeal of Nigeria
JUSTIN THOMPSON AKPABIO Justice of The Court of Appeal of Nigeria
ISA AYO SALAMI Justice of The Court of Appeal of Nigeria
Between
ALHAJI UMARU MUSA YAR’ADUA Appellant(s)
AND
- ALHAJI SA’IDU BARDA
2. NATIONAL ELECTORAL COMMISSION
3. THE RESIDENT ELECTORAL COMMISSIONER, KATSINA STATE
4. ALHAJI MAMMAN MAGAJI JIBIA, STATE LEVEL RETURNING OFFICER KATSINA STATE Respondent(s)
MOHAMMED, J.C.A. (Delivering the Leading Judgment): This is an appeal from the decision of the Governorship and Legislative Houses Election Tribunal sitting at Katsina. Following a nationwide gubernatorial election which took place on the 14th December, 1991, the 1st respondent, who contested under the platform of the National Republican Convention (NRC), was declared the winner, having scored a total of 290,615 votes. The appellant contested the election against the 1st respondent under the platform of the Social Democratic Party (SDP) and scored a total of 277,999 votes.
Dissatisfied with the declaration that the 1st respondent is the winner, the appellant filed his petition before the Governorship and Legislative Houses Election Tribunal and relied on the following grounds:
1. The Petitioner, Alhaji Umaru Musa Yar’ Adua is a person who was a candidate at the above election and claims to have had a right to be returned or elected at the above election.
2. Your Petitioner states that the election was held on the 14th day of December, 1991 when the Petitioner and Alhaji Saidu Barda, the 1st Respondent were candidates and on the 15th day of December, 1991 the 2nd, 3rd and 4th Respondents declared that 1st Respondent received 29061 3 votes and that the Petitioner received 277999 votes and the 1st Respondent was declared to be duly elected.
3. The Petitioner avers that the 1st Respondent was not duly elected by a majority of lawful votes at the election.
4. The 1st Respondent obtained an apparent and colourable majority over the petitioner Alhaji Umaru Musa Yar ‘Adua whereas in truth and in fact your said Petitioner had a majority of lawful votes of the electors in Katsina State who voted at the said elections and who were at the time thereof duly qualified by law to vote and was duly elected as the Governor of Katsina State and ought to have been so returned.
5. The Petitioner avers that the votes cast at the said election were not correctly added up or counted at the Ward, Local Government and State Collating Centres in that the figures added up at the Collating Centres were either not those actually recorded at the Polling Stations or they were not based upon correct figures of actual votes at the polling station. Particulars will be supplied after Discovery.
6. Votes cast at a number of Polling Stations where the total number of votes cast exceeded the total number of persons accredited to vote at those polling Stations and which votes ought therefore to have been nullified or cancelled were wrongly added and counted for both parties.
7. Of the votes cast in the following Local Governments there should have been nullified the following number of votes out of the respective figures credited to the Petitioner and the 1st Respondent:-
LOCAL GOVERNMENT Petitioner 1st Respondent
1. Daura 6 89
2. Batsari 204 456
3. Ingawa 23 101
4. Kankia 170 354
5. Danja 170 637
6. Bakori 166 257
7. Safana 61 304
8. Katsina 103 670
9. Jibiya 36 160
10. Batagarawa 107 257
11. Rimi 254 642
12. Kaita – 15
13. Mashi 214 231
14. Musawa 62 96
15. Malumfashi 261 394
16. Kankara 157 742
17. Kafur 11 128
18. Funtua 257 634
19. Faskari 61 238
20. Matazu 129 300
21. Mani 119 137
22. Bindawa 56 227
Total 2,627 7,069
8. The Petitioner says that unless the context otherwise admits all reference hereinafter made to the total number of votes scored by the Petitioner and the 1st Respondent should be read subject always to the deduction of the respective number of votes which the Petitioner contends in paragraphs 6 and 7 ought to have been cancelled in computing the respective number of votes scored by each party.
9. The actual votes scored by the Petitioner in Mani Local Government is 13,231 votes based on the actual votes scored by him at various Polling Centres and it is these same figures that ought to have been transmitted from the Local Government Collating Centre to the State Level Returning Officer. The Petitioner has since discovered that the figures which were transmitted from Local Government Collating Centres to the State Level Returning Officer were as follows:-
Petitioner – 10,784 votes
1st Respondent – 8,380 votes
In collating the final result for the state, the figures used by the state Level Returning Officer were:-
Petitioner – 8.077 votes
1st Respondent – 6,657 votes
In other words the Petitioner’s majority of 4.985 votes was reduced to 1,420 votes.
10. In computing the final figures for the State results the 4th Respondent used the following declared figures for the Petitioner and the 1st Respondent in respect of the votes in the following Local Governments.
LOCAL GOVERNMENT Petitioner 1st Respondent
1. Zango 21,659 14,735
2. Mai’aduwa 6,879 3,663
3. Kurfi 9,002 7,778
4. Daura 8,877 (6) 6,881 (89)
5. Batsari 10,721 (204) 9,321 (456)
6. Ingawa 16,874 (23) 10,132 (101)
7. Kankia 10,409 (170) 9,196 (354)
8. Danja 10,131 (170) 9,627 (637)
9. Bakori 13,948 (166) 10,849 (257)
The Petitioner does not dispute these results subject however to the averments contained in paragraphs 6 and 7 hereof (The figures in bracket represent the number of votes which ought to have been cancelled or nullified).
11. However in computing the final figures for the State Gubernatorial Elections the State Level Returning Officer, the 4th Respondent used the following figures as the results of the collation exercise at Local Government level for the Petitioner and the 1st Respondent respectively and declared the result of the Gubernatorial elections as the sum total of the said figures and those set out in paragraph 10 above.
Local Government Petitioner 1st Respondent
1. Dutsin Ma 7,574 10,240
2. Safana 12,788 (61) 16,200 (304)
3. Katsina 8,173 (103) 21,983 (637)
4. Jibiya 10,144 (36) 9,699 (160)
5. Batagarawa 6,458 (107) 7,702 (257)
6. Rimi 10,945 (254) 12,452 (642)
7. Kaita 8,082 8,174 (15)
8. Mashi 15,356 (214) 19,640 (231)
9. Bindawa 7,594 (56) 9,821 (227)
10. Musawa 7,483 (62) 7,744 (96)
11. Malumfashi 9,917 (261) 10,570 (394)
12. Kankara 10,227 (157) 13,571 (742)
13. Kafur 12,736 (11) 16,036 (128)
14. Funtua 11,053 (257) 25,939 (634)
15. Faskari 16,754 (61) 11,802 (238)
16. Matazu 7,259 (129) 7,572 (300)
17. Mani 8,077 (119) 6,657 (137)
12. The Petitioner avers however that subject to the nullifications or cancellations which ought to have been made pursuant to the averments in paragraphs 6 and 7 of this Petition, the petitioner contends that the votes with which each of the Petitioner and the 1st Respondent ought to be credited in the 17 Local Governments referred for computing the overall results of the Gubernatorial Elections are as follows:
Local Government Petitioner 1st Respondent
1. Dutsin Ma 11,574 6,240
2. Safana 16,788 12,200
3. Katsina 12,173 17,983
4. Jibiya 14,144 5,699
5. Batagarawa 10,458 3,702
6. Rimi 14,945 8,452
7. Kaita 12,082 4,174
8. Mashi 19,356 15,640
9. Bindawa 11,594 5,821
10. Musawa 11,483 3,744
11. Malumfashi 13,917 6,570
12. Kankara 14,227 9,571
13. Kafur 16,736 12,036
14. Funtua 15,053 21,939
15. Faskari 20,754 7,802
16. Matazu 11,259 3,572
17. Mani 12,077 2,657
WHERE UPON your Petitioner prays that it may be determined that the 1st Respondent was not duly elected or returned and that his election was void and that your Petitioner was elected and ought to have been returned.
Before the hearing of the appeal Chief Ajala, S.A.N, raised a preliminary objection against grounds of appeal nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13. The learned S.A.N embodied the preliminary objection in the 1st respondent brief. His quarrel with the grounds is that they are in contravention with the provisions of Order 3, Rule 2(3) of Court of Appeal Rules, 1981, as amended, in that no particulars and the nature of errors in law were given. Chief Ajala urged us to strike out those grounds.
Chief G.O.K. Ajayi, S.A.N, did not write a reply to the notice of preliminary objection but was permitted by the Court to reply orally to the points raised by Chief Ajala. He quite correctly drew the Court’s attention to the particulars given to almost all the grounds and explained further that even those grounds which had no itemized particulars if analysed, it could be observed that he embodied the particulars in them. I have carefully read all the grounds of appeal filed by the learned counsel for the appellant and I agree with Chief Ajayi that all the grounds are competent. It is not mandatory that particulars in a ground of appeal had to be headed “Particulars of Error” before the ground could comply with the provisions of Order 3, rule 2(3) of the Court of Appeal Rules. 1981. as amended. The heading “Particulars of Error “is a matter of form and is never meant to be a ground for declaring a good ground of appeal, with itemised particulars, incompetent. The incompetency of a ground is in its meaning and not in its form. The preliminary objection has therefore failed and it is overruled.
Chief G.O.K Ajayi raised seven issues against the 13 grounds of appeal which he filed. I shall consider them in the way he argued them in the appellants brief. In the first issue Chief Ajayi questioned,
“Had the Election Tribunal not committed a grave error in refusing to admit in evidence the forms EC8A offered in evidence by the Petitioner?
I think it is very relevant, and for ease of reference, to explain, in a nutshell, the various forms introduced by NEC for the Statement of result of Poll, at collation and announcement of results at the Gubernatorial election. The Tribunal in its judgment has endeavoured to describe how the forms are used from the polling booth to the State headquarters of National Electoral Commission (NEC). Although the narrative is a little too long, I believe that one will not be bored to read it along, in view of its informative value. I will therefore reproduce it in full. It is as follows:
“A good starting point is to let us familiarise ourselves with the various electoral forms used in the election of a candidate to the office of the Governor of Katsina State held on 14th December.
1991. The election forms are as follows:-
(i) EC8A Forms- Statement of Results of Poll;
(ii) EC8B Form- summary of Results from polling station;
(iii) EC8C Form- summary of Result from Wards;
(iv) EC8D Form- summary of Results from Local Government Areas;
(v) EC8E- Declaration of Results of Election.
We have identified the various forms. Next we have to say the use to which they are put, starting with forms EC 8A, i.e. in the order in which we have set them down above.
EC 8A – At the polling station, after counting of votes at the end of poll, the presiding officer;
1. enters the votes scored by each candidate in a statement of Result Form in Form EC 8A; see para. 28(2)(b) of the 5th schedule to Decree No. 50 of 1991. State Government (Basic Constitutional and Transitional Provisions) hereinafter called the Decree. And the schedule now referred to is hereinafter called the 5th schedule:
2. records the number of accredited voters in the polling station in Form EC 8A; see para. 28(2)(c) of the 5th Schedule;
3. Nullifies the result of the polling station where the total number of votes cast exceed the total number of people accredited to vote at that polling station; see para. 28 (2)(d) of the 5th Schedule;
4. marks the form EC 8A for the polling station in red ink as follows “result cancelled”.
There is a provision for the signature and stamp of the presiding officer on the Form EC 8A and the counter-signatures of the candidates or their agents where available at the polling station; see again para. 28 of the 5th schedule.
The Presiding Officer is obliged to give the polling agents and the police present a copy each of completed EC 8A form; see para. 28(4) of the 5th Schedule.
The Presiding Officer then takes the election results to Ward collation centres. It is from here that completed Forms EC 8B emerge in the manner described below.
The ward Returning Officers take delivery of all forms EC 8A submitted by the Presiding Officers from the polling stations in the wards. They now collate the votes entered in Form EC8A using Form EC8B without results cancelled according to paras. 28(d) and (e) of the 5th schedule. They enter the collated votes scored by the two candidates in Forms EC 8B in both words and figures; see para. (29) (2)(c) of the 5th schedule. There is a distribution list of five copies of completed Form EC 8B provided for by para. 29 (2)(e) of the 5th schedule as follows:-
(i) 1 copy to each of the candidates or their Agents;
(ii) 1 copy to the electoral officer;
(iii) 1 copy to the Police;
(iv) the original copy is to be submitted to the Local Government Level Returning Officer.
The Local Government Level Returning Officer collects Forms EC 8B containing collated results from the Wards. He then collates the votes entered in Form EC 8B from the Wards using Form EC 8C; see para. 30 of the 5th schedule. He enters Local Government collated results in Form EC8C and thereafter distributes copies thereof after they have been signed by him and the Polling
Agents as follows:-
(i) 1 copy to the Resident Electoral Commissioner;
(ii) 1 copy each to the two candidates or their polling Agents;
(iii) 1 copy to the Electoral Officer;
(iv) 1 copy to the State Level Returning Officer, and
(v) 1 copy to the Police; see paragraph 30(1) (c) of the 5th Schedule.
The State Level Returning Officer collects the duly completed Forms EC 8C containing collated results from the Local Government Areas. He collates the votes entered in Form EC 8C from the Local Government Council Area, using Form EC 80; see para. 31(1)(b) (mistakenly called para.13(1) in the Decree) of the 5th schedule. He enters State Level collated results in part 1 of EC 8E in five copies. He makes known the result of the election to the office of the Governor but does not declare any winner. He then delivers 5 copies of completed Form EC 8E to the Resident Electoral Commissioner; see para. 31(1)(c) of the 5th schedule.
The Resident Electoral Commissioner, having been satisfied as to the correctness of addition and entries in Form EC 8E and after making sure that para. 29(b) of the 5th schedule was followed:-
(i) completes and signs part II of Form EC 8E – Declaration of Result Form;
(ii) declares the winner of the election to the office of Governor on behalf of the Chief Electoral Officer of the Federation;
(iii) he distributes duly completed and signed copies of EC 8E as follows:-
(i) the original copy to the Chief Electoral Officer of the Federation;
(ii) 1 copy to each of the two candidates or their Polling Agents;
(iii) 1 copy to be held by the Resident Electoral Commissioner.
(iv) 1 copy to the Police.
In highlighting his submission over issue No.1 Chief Ajayi pointed out that the Tribunal recognised that forms EC8B, EC8C and ECBD were evidence by which over-all results could be proved when it admitted all of them inspite of the repeated objections by the respondents. The learned counsel referred to the first ruling in which the Tribunal overruled the objection raised by the respondents against the admission of one of those forms. Chief Ajayi submitted that when EC8A forms were first tendered for the results from Malumfashi LGA the tribunal ruled as follows:
“The documents now sought to be tendered relate to collateral results at Ward level. They are intended to give the Tribunal a function view of what happened in this regard paragraphs 5.6 and 7 of the Petition in respect of which particulars were given by the Petitioner relate in essence to votes counted in favour of the 1st Respondent and to which the Petitioner is objecting to. The objection to these paragraphs cannot be prayed in aid to defeat the admissibility of the votes actually counted in favour of the candidates at the election to determine which candidate had a majority of lawful votes. Objection overruled documents admitted and marked Exhibit 10, 10a and 10b.”
However when later other EC8A forms were tendered the Tribunal refused to admit them. The learned counsel pointed out that the only forms EC8A which were admitted were those referred to by the particulars given in paragraphs 5, 6 and 7 of the petition. Chief Ajayi is right here because after the Tribunal had refused to admit one of those forms EC8A which emanated from a LGA where no particulars had been given many other such forms were tendered and rejected. This went on and on and made the whole proceedings a bit of a bore. Chief Ajayi submitted that the Tribunal had committed a grave error in rejecting forms EC8A tendered in proof of total votes cast by both parties because firstly, they are evidence of the votes cast at the election and need not be pleaded. He referred to Omoboriowo v. Ajasin (1984) 1 SCLNR 108 and Aondokaa v. Gyegweh (1989) 1 NEPLR 39.
Secondly, he argued that the tribunal was wrong because the forms were pleaded by the 2nd – 4th respondents and referred to Bamgboye v. Olarewaju (1991) 4 NWLR (Pt.184) 132 at 155.
When the Tribunal refused to admit the first EC8A form which was tendered it reserved its ruling and opined that it would do so in the judgment. Chief Ajayi attacked the reasons given for the Tribunal’s refusal to admit the form. He argued that what the Tribunal said was that those forms were based on paragraphs 3 and 4 of the petition which were grounds and not facts. He submitted that the argument was untenable because when he pressed harder the Tribunal accepted one document which was based on ground 4.
The issue about the admission of these forms EC8A is, indeed, the main issue. Chief Ajala was conscious of this fact. In the 1st respondent’s brief which the learned Senior Advocate emphasised before us he submitted, quite strongly, that the Tribunal did not commit any grave error in refusing to admit, in evidence the forms when tendered. Counsel argued that paragraphs 3 and 4 of the petition cannot be taken as averment of facts and therefore, be the basis for the admissibility of the said forms EC8A. The said paragraph 3 was only a permissible ground upon which an election petition may be questioned and no more. He then referred to Section 91(1)(c) of the State Government (Basic Constitutional and Transitional Provisions) Decree 1991 No. 50.
Chief Ajala further explained that when a plea was submitted to the appellant for further and better particulars to paragraphs 5, 6 and 7 of the Petition the appellant furnished them and all the forms EC8A relating to those particulars were duly admitted in evidence as exhibits. Chief Ajala quite correctly, pointed out from the stand point of decided cases, a party’s case is set out in the pleading and proved in evidence, so any matter not pleaded, even on documents, goes to no issue. See H. Teich v. Northern Int. Market Co. Ltd & Anor. (1987) 4 NWLR (Pt.65) 441 at page 451. The learned counsel submitted also that the point raised in the 2nd to 4th Respondent’s Reply does not justify admission of forms EC8A.
Hamza Kurfi, the learned Director of Public Prosecutions, Katsina State, based his submissions on similar arguments as advanced by Chief Ajala.
The main issue in this appeal is the refusal of the Tribunal to admit some forms EC8A in evidence when Chief Ajayi tendered them. The Tribunal’s reasons for its refusal to admit the documents in evidence has been given in the final Judgment. It explained that in the election petition the admissibility of any evidence sought to be led has to be determined by reference to the facts pleaded in the petition. If the evidence sought to be led is not covered by the facts alleged in the petition the evidence is inadmissible. The Tribunal then considered paragraphs 5-12 of the Petition and held that the facts pleaded in paragraphs 5, 6 and 7 cover the admission in evidence of forms EC8A. The Tribunal thereafter held that the further and better particulars of paragraphs 5, 6 and 7 of the petition ordered and supplied have restricted the EC8A forms to be admitted to the ones mentioned in the further and better particulars.
Now, is the Tribunal right in refusing to admit these forms in evidence? The ground for refusal is that the respondents had been denied the knowledge of the nature of the evidence contained in them through a reply to their application for a further and better particulars. I have therefore looked into the function of further and better particulars in the pleadings. I have referred to Bullen and Leake on Precedents of Pleadings Twelfth Edition on function of particulars in pleadings. The function of particulars in pleadings have been expressed in a variety of ways each of which emphasises a particular aspect. The function is:
(1) to inform the other side of the nature of the case they have to meet as distinguished from the mode in which the case is to be proved.
(2) To prevent the others ide being taken by surprise See Akpakpuna v. Nzeka (1983) 2 SCNLR 1. Cotton L.J said in Spedding v. Fitzpatric (1888) 38 Ch D 410 as follows:
“The object of the particulars is to enable the party asking for them to know what case he has to meet at the trial, and so to save unnecessary expense, and avoid allowing parties to be taken by surprise”.
(3) to enable the other side to know what evidence they ought to be prepared with and to operate for trial.
(4) to limit the generality of the pleading or of the claim or of the evidence. See Saunders v. Jones (1877) 7 Ch. D 435.
(5) to limit and define the issues to be tried and as to which discovery is required
(6) to tie the hands of the party so that he cannot without leave go into any matter not fairly included therein.
Conversely if a party omits to request for particulars which ought to have been given, the opposing party will be entitled to give evidence at the trial of any fact which supports any material allegation in his pleading. The request for further and better particulars must be attended to and the particulars must be given when a party requests for them. Failure to give particulars where such particulars are necessary for the just decision of the case may even result in the court striking out the case.
Looking at the grounds for the request for particulars as I have enumerated above it will be quite clear that those aspects of the case which a party refused to give particulars of them could be ignored by the court. In other words the court is at liberty, at its own discretion, taking all issues into consideration to refuse to allow evidence to be called against facts whose particulars a party sought but is denied. In the case in hand the 1st respondent found the pleadings in paragraphs 5, 6 and 7 general in nature and at the early stage of the trial applied for further and better particulars, with clear and straight forward questions requesting for clarification from the appellant but was only given in respect 113 polling stations. Surely when later in the day the appellant wished to call evidence in support of those stations which he declined to give particulars about, the court has a discretionary power to refuse to allow such evidence to be admitted. It should be recalled that during addresses Chief Ajayi had submitted that,
“Votes recorded on forms EC8A at polling stations constitute evidence by which the total votes scored at the election can be proved and are therefore admissible in evidence.”
The Tribunal had admitted all the forms EC8A which would disclose the votes scored by each party at the polling stations which the appellant gave full particulars of. I therefore agree with the tribunal that since the appellant had failed to give particulars of those polling stations against which his counsel sought to render the form EC8A the Tribunal is right to sustain the objection against the forms admission in evidence.
The second issue for the determination of the appeal is, in the main, based on the same argument as in issue No. 1. Chief Ajala also submitted that-the second issue overlaps the first issue and therefore adopted his argument on the first issue. I quite agree that an attempt is being made now to introduce an allegation of fraud and it was not an issue at the Tribunal. See Lawrence Oredoyin & Ors v. Chief Akala Arowolo & ors (1989) 4 NWLR (Pt.114) 172.
The third issue is also couched in the same argument as issue No. 1. It all hinges on the admissibility of forms EC8A. The only way one could question the lawfulness of some of the votes cast at the election is to tender in evidence all the forms used and call witnesses to testify as to the misapplication of the votes scored by individuals.
The fourth and fifth issues were argued together. The Learned Senior Advocate is questioning the action of the court in discountenancing the supplementary list of votes to be objected to by the appellant. Chief Ajala replied to this Formulation and pointed out that since the whole trial was for a short period the Tribunal was right in exercising its discretionary power to refuse to extend time to file a list of objection to votes. I may pause here to ask, what purpose the list of objection to votes would serve when the appellant had lost his good chance of putting all the evidence from forms EC8A before the Tribunal.
On the sixth issue the learned Senior Advocate formulated the following questions:
“WHETHER OR NOT THE PETITIONER ESTABLISHED HIS COMPLAINT UNDER PARAGRAPHS 5, 6 AND 7 IN ONLY 80 OUT OFTHE 133 POLLING STATIONS.”
Here again Chief Ajayi went back into the issue of forms EC8A. I agree with Chief Ajala that the appellant’s list of objection to votes and the further and better particulars filed on 27/1/92 both revolve around 133 polling stations. All the forms EC8A relating to the said polling stations were admitted as exhibits. The accusations were levelled against 133 polling stations but the Tribunal found only 80 polling stations and the presiding officer for one of them cancelled the votes for that one polling station. Thus 79 remained and the Tribunal after thorough consideration cancelled all the votes scored from the 79 stations and deducted the votes scored by the contestants.
The seventh issue dealt with Kankara L.G.A. result. The petitioner is questioning the decision of the Tribunal in finding that he had a windfall of 5,434 votes after comparing forms EC8C and EC8D. Chief Ajayi made his own calculation and submitted that the windfall against the appellant were 372 votes and not 5,434. I have looked into the judgment of the Tribunal over this issue and I have no hesitation in accepting that both the appellant and the 1st respondent had each a windfall of 5,434 and 5,494 respectively. It is a finding based on the error committed by the Returning Officer in computing the overall results for the State.
I do not see any reason disturbing such a finding.
In the end this appeal has failed and it is dismissed. The judgment of the Governorship and Legislative Houses Election Tribunal, Katsina State delivered on the 7th February, 1992, is hereby affirmed. N500 costs for each set of the respondents.
AKANBI, J.C.A.: I have had a preview of the lead judgment of my learned brother Usman Mohammed, J.C.A, and find myself in respectful agreement with his reasoning and conclusions. I adopt them as mine.
However I still deem it expedient to add a few words of my own partly because of the furore, or shall I say the apparent hard feeling the matter has unfortunately generated and also because of the need to under-score the main issue in the appeal.
Firstly, let me say that although the arguments of counsel have ranged far and wide and not less than seven issues were identified in the Appellant’s brief, I am of the view that the clear and relevant issue central to the determination of this appeal is whether or not the Election Tribunal was right in refusing to admit in evidence those FORMS EC8A which Petitioner’s Counsel sought to tender. That indeed was the first issue raised by Appellant’s Counsel in his brief.
Learned Senior Advocate. Chief G.O.K Ajayi, has submitted that the rejection of those forms was wrong and unfair more especially as no reasons for their rejection were given at the material time.
He was apparently peeved by the laconic manner the Tribunal in deciding on his applications said “objection upheld or refused. Further reasons will be given in our judgment.”
But more importantly it has been said that the rejected FORMS EC8A were tendered in proof of the total votes cast at the election and that on the authority of OMOBORIOWO V. AJASIN (1984) 1 SCNLR 108 AONDOKAA V. GYEGWEH (1984) 1 NEPLR 39 these documents “need not be pleaded.” In any case, it is said that having regard to the decision in BAMGBOYE v. OLANREWAJU (1991) 4 NWLR 1 (Pt. 184) 32 at 155, since the FORMS EC8A had been pleaded by 2nd – 4th defendants, the Petitioner was entitled to lead evidence on them. The argument went on that material facts were pleaded in paragraphs 3 and 4 of the Petition; and that being so, evidence of the result of the poll at the polling station or the collated result could be given.
It was also said that the averments in paragraph 5 of the petition was in effect that the votes were not correctly added up at all levels; and that the sting of the averments in paragraphs 11 and 12 of the petition was that in declaring the results of the election. 2nd and 4th Respondents used the wrong figures in paragraph 12 and that being so only the results collated at the polling station in FORM EC8A would give the actual or correct results. So, it was submitted that this refusal to admit FORMS EC8A in evidence has denied the petitioner the opportunity to establish that the 1st Respondent was not elected by a majority of lawful votes.
I must say that the complaint that the Tribunal gave no reasons at the time it rejected the several applications to put in evidence FORMS EC8A cannot by any stretch of the imagination be a valid reason for upsetting the judgment of the Tribunal if it is otherwise correct.
It would be idle to pretend not to know that there are serious time constraints in the prosecution of election cases; for unlike what obtains in the regular courts with regard to the handling of normal civil or criminal cases, the hearing and final determination of gubernatorial election cases must perforce be concluded within one month from the date of filing the petition. See Schedule 6 para. 1-(1)(2) of the State Government (Basic Constitutional and Transitional Provisions) Decree 1991 No. 50 (hereinafter called Decree 50).
Evidently, therefore, apart from the need to be fair and just, the Tribunal has to act with speed and dispatch if it has to deliver its judgment within the time allowed by law. That is the reality of the situation which all those who are called upon to enforce the Decree. (unpleasant though it may be) must come to terms with.
I think it is trite to say that the validity of the decree cannot be questioned.
It would appear that the Tribunal appreciated the urgency of the situation when it said:-
“It is a good thing we did not accede to Chief Ajayi’s SAN request. For inspite of our sitting till late in the evenings, the Petitioner’s case was not closed until Monday 3/2/92. And the case for all the respondents and the addresses of counsel ended on 4/2/92. Leaving us only 2 clear days to the end of the dead line for the judgment in the case i.e. today. We shudder to think of what would have happened in the trial of this election petition if we had taken time off to write considered rulings on the issue of admissibility of evidence, each time it was raised.”
Incidentally, the full reasons for the rejection in evidence of the forms EC8A, were given in the judgment. The reasons appear in the following passage of the judgment. It reads:-
“It is the facts alleged in the petition which will determine whether or not the grounds upon which the petition is brought are established. In effect, evidence is led primarily and directly in support of the facts alleged in the petition. If the evidence sought to be led is not covered by the facts alleged in the petition the evidence is inadmissible.
So in the election petition in hand the admissibility of an evidence sought to be led has to be determined by reference to the facts pleaded in the petition i.e. the facts alleged in paragraphs 5- 12 and not by reference to paragraphs 3 and 4 of the petition the grounds upon which the petition is brought.
Let us now look at paragraphs 5-12 of the petition and then find out if the facts pleaded therein support the admissibility of EC8A Forms and if so which EC8A Forms.
The facts pleaded in paragraphs 5, 6, and 7 definitely cover the admission in evidence of forms EC8A – Statement of Results of Polls. However the further and better particulars of paragraphs 5, 6, and 7 of the petition ordered and supplied have restricted the EC8A Forms to be admitted in evidence to the ones mentioned in the further and better particulars or referable to the further and better particulars. Our ruling is along these lines” (Italics mine).
My understanding of the Italicised words is that paragraphs 5, 6 and 7 are material facts which ordinarily will justify the reception of forms EC8A in evidence; that is to say, if no particulars had been sought and given, the petitioner would have been at liberty to put forms EC8A in evidence. With the ordering of particulars, those paragraphs would have to be read and considered in the light of the particulars supplied. Particulars have the effect of modifying the paragraphs of the pleadings.
They define or delimit the scope of the issues raised by the pleadings. They prevent the claimant or the pleader from roaming wide afield or veering away from the issue settled on the pleadings. And that is why once particulars have been given, the party is not allowed to give evidence of matters, outside those particulars. See Philips v. Philips (1878) 4 QBD 127 at 133.
Indeed it is the law that when written pleadings are applicable, such pleadings shall contain a statement of material facts, in a summary form on which a party intends to rely. Where particulars are necessary the pleadings shall contain such necessary particulars. Ayodele James v. Mid-Motors Nigeria Ltd. (1978) 11-12 S.C. 31; See E.A. Amodu v. Dr. J.O Amode (1990) 5 NWLR (Pt.150) 356
Again it is trite to say that one of the primary objects of pleadings is for the other party to know what case he is coming to meet in order to be prepared for same See Textile Allied Prod. V. Henry Stephens Shipp Ltd. (1989) 1 NWLR (Pt.95) 115 at 125.
In this case, the particulars furnished related to 133 polling stations only out of a total 6,673 polling stations in respect of which particulars were sought. It is not in dispute that the relevant Forms EC8A in respect of those 133 polling stations were received in evidence. I do not think the Tribunal can be blamed for not allowing the appellant to put in evidence Forms EC8A covering the remaining 6,340 polling stations spread all over Katsina State. To grant the petitioner’s application would tantamount to allowing him give evidence on what had not been pleaded and thus take his adversary by surprise. That would defeat the aim of pleadings.
I am not unmindful of the fact that Chief Ajayi has forcefully argued that paragraphs 3 and 4 of the petition are material facts and not grounds on which the petition was brought as found by the Tribunal. I am in complete agreement with the Tribunal that those paragraphs do not state facts. Paragraphs 3 needs no explanation of any kind to show that it is a ground for the petition. In sum, what is being said in paragraph 4 boiled down to this: that the 1st Respondent was not elected by a majority of lawful votes. So, to my mind, the two paragraphs are in effect saying one and the same thing but in different forms. They have not been supported by facts as required by Schedule6 paragraph 5 – 1(c) of Decree 50. I may also observe in passing that even paragraph 5 of the petition which is said to be a fact, appears to be ambivalent. It reads:-
“The petitioner avers that the votes cast at the said election were not correctly added up or counted at the Ward, Local Government and State Collating Centres in that the figures added up at the Collating Centres were either not those actually recorded at the polling stations or they were not based upon correct figures of actual votes at the polling station. Particulars will be supplied after discovery (Italics mine).
It is apparent that the paragraph lacks precision which ought not to be the case. See A.C.B. LTD. V. OBMIAMI (1990) 5 NWLR (Pt.149) 230. Besides the information that particulars will be supplied after discovery, tended to suggest that Petitioner at the time of filing the Petition, was unsure of his facts or had no facts at all to enable him furnish better particulars.
Be that as it may, the point was also made that this case is akin to the case Omoboriowo’s Ajasin (Supra) which was tried under the Electoral Act 1982. That may well be so, but not having seen the pleadings in Omoboriowo’s case and the particulars if any, it is not possible, to say the least to equate one with the other; and come to a conclusion. No doubt each case has to be considered on its own merit and in the light of its particular facts and circumstances.
Finally, Chief Ajayi S.A.N. has had annexed to his brief 6 page documents tabulating certain polling stations and figures credited to the Petitioner and has asked us to accept the figures as evidence of votes scored by the Petitioner. He has not demonstrated to us how he carne by these figures. If they were elicited from the rejected Forms EC8A, it has not been so demonstrated to us. We cannot accept such arbitrary figures as evidence of votes cast for the Petitioner.
The net result of all I am saying is that I too hold that this appeal fails and it is accordingly dismissed
I abide by all the orders including order of costs made in the lead judgment.
MUSDAPHER, J.C.A.: I have had the opportunity of reading before now, the judgment of my learned brother Uthman Mohammed, J.C.A delivered just now.
I agree with the reasonings contained therein and the conclusions arrived thereat.
I abide by all the necessary consequential orders including the order as to costs proposed in the aforesaid judgment.
AKPABIO, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother. Uthman Mohammed, J.C.A, just delivered, and I agree entirely with his reasoning and conclusions. I adopt them as my own with nothing more to add. I also abide with the order as to cost.
SALAMI, J.C.A.: I have had the preview of the judgment just delivered by my learned brother. Uthman Mohammed, J.C.A I agree with the reasonings contained therein and the conclusions arrived thereat.
I also abide by all the consequential orders including the order as to costs proposed in the lead judgment of my learned brother, Uthman Mohammed, J.C.A.
Appeal dismissed.
Appearances
Chief G.O.K. Ajayi, SAN (with him. S.A. Adesokan and O.R.I George) For Appellant
AND
Chief J.A.T. Ajala SAN (with him, Alhaji M. A. Danmusa, Musa Dalhatu, Uyi Igunma, T. A. Olorisade, A.D. Umar, T. Oyeyipo, S.O. Ake; O.O. Oyesanya and Dipo Tolani)
Hamza Kwiji (D.P.P. Katsina State) (with him Hamza Yanel) For Respondent
