ALHAJI USMAN NASAMU SAIDU v. ABUBAKAR MALLAM ABUBAKAR & ORS.
(2008)LCN/2727(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of April, 2008
CA/K/EP/GOV/50/2007
RATIO
MEANING OF WORDS- LOCUS STANDI: DEFINITION OF LOCUS STANDI
“Locus standi as defined by the courts denotes that a party has the legal capacity to initiate proceedings in a court of law, and focuses on his aim to get his complaint before the court and on the issues he will be raising before it. See Adesanya v. The President of Nigeria (1981) 2 NCLR 358; Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669; Williams v. Dawodu (1988) 4 NWLR (Pt. 87) 189.” PER BULKACHUWA, J.C.A.
COURT -FUNCTION OF THE COURT AND TRIBUNAL: WHAT IS THE FUNCTION OF THE COURT AND TRIBUNAL
“The function of a court and in the instant case, a tribunal is that of an unbiased umpire who critically examines all matters put before it by a party who is of the opinion that his rights have been infringed upon and that of his opponent who is saying otherwise and come to a just decision.” PER BULKACHUWA, J.C.A.
ELECTION PETITIONS- AGGRIEVED PARTY IN AN ELECTION PETITION: WHAT A PARTY AGGRIEVED BY THE OUTCOME OF AN ELECTION IS REQUIRED TO DO
“A party aggrieved by the outcome of an election is required to file a petition consisting of his complaint, the grounds of which he is challenging the return of an election, plead to such facts in support of the grounds, and written statements of witnesses under oath in support of the pleadings. The person returned as elected and such necessary parties to the petition will then file a reply to the petition containing pleaded facts and annexing witness statements to his pleadings all in support of the election return.” PER BULKACHUWA, J.C.A.
ELECTION PETITIONS-JURISDICTION: WHETHER THE HIGH COURT AND NOT THE ELECTION TRIBUNAL HAS JURISDICTION OVER PRE-ELECTION MATTERS
“It is my firm view that the jurisdiction of the ordinary courts to adjudicate in pre-election matters remains intact and unimpaired by sections 178(2) and 285(2) of the 1999 Constitution”. See also Ibrahim v. INEC (supra) per Salami, JCA at 351; “Election tribunal has no power to investigate matters which took place before the conduct of an election. “The above provisions are hurdles a candidate and his political party must surmount to be eligible to contest. They are pre-election matters which are actionable before the regular High Courts.” PER BULKACHUWA, J.C.A.
JUSTICES
ZAINAB ADAMU BULKACHUWA Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
UZO NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
Between
ALHAJI USMAN NASAMU SAIDU Appellant(s)
AND
1. ABUBAKAR MALLAM ABUBAKAR
2. DEMOCRATIC PEOPLES PARTY
3. PEOPLES DEMOCRATIC PARTY
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION & 317 ORS
AND
PEOPLES DEMOCRATIC PARTY (PDP)
v.
ABUBAKAR MALLAM ABUBAKAR & 321 ORS
AND
INDEPENDENT NATIONAL ELECTORAL COMMISSIONER (INEC) & 317 ORS
v.
1. ABUBAKAR MALLAM ABUBAKAR
2. DEMOCRATIC PEOPLES PARTY (DPP)
3. USMAN NASAMU SAIDU
4. PEOPLES DEMOCRATIC PARTY (PDP) Respondent(s)
BULKACHUWA, J.C.A. (Delivering the Leading Judgment): On the 14th of April, 2007 the Independent National Electoral Commission (INEC) as the statutory body responsible for conducting election, organized and conducted the Governorship and Legislative Houses election through out Nigeria.
In Kebbi State, election into the office of Governor was vied for and contested by the following candidates;
(1) Inuwa Bawa – Action Congress (AC)
(2) Alhaji Abdullahi Ibrahim – African Democratic Congress (ADC)
(3) Engr. Abubakar Bala D/Ango – All Progressive Grand Alliance (APGA)
(4) Senator Farouk Bello Bunza-All Nigeria Peoples Party (ANPP)
(5) Abubakar Mallam Abubakar – Democratic Peoples Party (DPP)
(6) Salihu Isa Nataru – National Democratic Party (NDP)
(6) Alhaji Nasamu Saidu Usman – Peoples Democratic Party (PDP)
(8) Adamu Usman – Progressive Peoples Alliance (PPA)
The result of the election as collated by INEC declared the 1st appellant in this appeal Alhaji Nasamu Saidu Usman who contested under the platform of the PDP – the 2nd appellant as the winner of the election having scored the highest number of votes and returned him as the duly elected governor of Kebbi State.
The 1st and the 2nd respondents Abubakar Mallam Abubakar and the Democratic Peoples Party (PDP) dissatisfied with the return of the 1st appellant as the Governor of Kebbi State filed a 168 paragraph petition on 14/5/07 before the Governorship/Legislative Houses Election Petition Tribunal for Kebbi State sitting in Birnin Kebbi (hence to be referred to as the lower tribunal) on the underlisted grounds;
(1) The 1st respondent was at the time of the election, not qualified to contest the election.
(2) The election was invalid by reason of corrupt practices and/or non-compliance with the mandatory provisions of the Electoral Act, 2006.
(3) The 1st respondent was not duly elected by majority of lawful votes cast at the election.
It is noteworthy to state here that the lower tribunal consolidated the petition giving rise to this appeal with another petition filed by Senator Farouk Bello Bunza and his party the All Nigeria Peoples Party (ANPP) and jointly tried them.
The 1st and 2nd appellants as 1st and 2nd respondents before the lower tribunal entered a conditional appearance on the 28th May, 2007. They also raised a preliminary objection on the same day and also their reply to the petition. The 3rd appellants herein as 3rd respondents therein filed a joint reply to the petition on the 12th June, 2007.
The preliminary objection challenged the competence of the petition and the jurisdiction of the lower tribunal to entertain same. The objection was heard and dismissed by the lower tribunal in its ruling which was delivered on the 12/7/2007.
At the conclusion of the pre-trial session, all counsel in the petition agreed to dispense with calling of witnesses and cross examination and opted to adopt and rely on the written depositions annexed to the petitions and the replies thereto.
Consequently, parties adopted the written depositions of their witnesses and tendered all documents relied upon across the bar. Counsel thereafter submitted written addresses on points of law.
The lower tribunal in a considered judgment delivered on the 20th October, 2007 dismissed ground 3 of the petition and upheld ground one in allowing the petition, and consequently declared as null and void the election and return of the 1st respondent to the petition as Governor of Kebbi State being not qualified to contest the election, and also ordered INEC to conduct a bye-election for the office of Governor of Kebbi State in Petition No. 1. Petition No. 2 was found to lack merit and dismissed by the lower tribunal.
The subject of this appeal is petition No. 1 whereby all the 3 sets of respondents separately appealed and the petitioners who are the respondents in this appeal also cross appealed. The 1st and 2nd appellants who jointly responded to the petition before the lower tribunal have now appealed separately. The 3rd – 318th respondents have also jointly appealed as the 3rd appellants before this court.
The 1st appellant as represented by learned counsel led by Olanipekun, SAN filed a notice and grounds of appeal on the 9th of November, 2007 consisting of 19 grounds. This was amended with leave of court granted on the 19/1/08. The 2nd appellant, the Peoples Democratic Party also filed a notice and grounds of appeal on the 29/10/07. The said notice contains 11 grounds of appeal.
The 3rd appellants, representing the 3rd – 318th respondents before the lower tribunal relied in their 2nd notice and grounds of appeal filed on 7/11/07 containing 9 grounds of appeal.
The petitioners as 1st and 20th respondents in this appeal apart from responding to the 3 appeals listed above also filed a cross-appeal in the 10/11/07 consisting of 6 grounds of appeal.
As is the practice in this court, parties filed and exchanged their respective briefs of argument which were adopted and relied upon at the hearing of this appeal on the 21/2/08.
In the circumstances, I will consider each of the appeals separately and finally consider the cross appeal. I will term the 1st appeal brought by the 1st appellant as appeal no. 1, the 2nd appeal brought by the PDP will be appeal No.2 and appeal No.3 will be the appeal filed by the 3rd – 318th appellants. However, a determination of the first appeal will be a determination of the other two appeals as they are all based on the same facts and issues.
APPEAL 1
In this appeal, Alhaji Saidu Nasamu Usman is the appellant while Abubakar Mallam Abubakar and the DPP are the respondents. As shown above the appeal is premised on 19 grounds of appeal as contained in an amended notice and grounds of appeal deemed filed on the 19/1/08.
In the brief of argument for the 1st appellant, the following issues were distilled for the determination of the appeal.
1. Considering the clear provisions of sections 177 and 182 of the Constitution of the Federal Republic of Nigeria, 1999 dealing with qualification and disqualification for election as Governor, read together with section 285(2) of the same Constitution delineating the jurisdiction of the lower tribunal and section 145(1)(a) of the Electoral Act, 2006, whether the lower tribunal has jurisdiction to entertain the petitioner’s petition as formulated and/or altogether – (grounds 2, 4, 5, 6 and 12).
2. Having regard to the position of the petitioners as member of the Democratic Peoples Party (DPP) and
Democratic Peoples Party respectively vis-a-vis their challenge to appellants sponsorship by and/or election on the platform of the Peoples Democratic Party (PDP), whether or not the petitioners are vested with the locus standi or the necessary cause of action to challenge appellants’ election as the Governor of Kebbi State (Grounds 3 and 16)
(3) Whether or not the lower tribunal was not in grave error in holding that the appellant was not qualified to contest election into the office of Governor of Kebbi State on 14th April, 2007 and thereby nullifying his election – (grounds 1, 5, 7, 8, 9, 10, 14, 15 and 17).
(4) Having rightly struck out ground 3 of the petition for failure of the petitioners/respondents to comply with the mandatory provision of paragraph 14(1)(c) of the 1st Schedule to the Electoral Act, 2006, whether or not the lower tribunal was not in grave error for failing to strike out the entire petition and/or for suo motu saving grounds 1 and 2 or the other grounds altogether (ground 13).
(5) Considering the clear provisions of section 146(1) of the Electoral Act, 2006, whether the lower tribunal was not in serious error to have nullified the election of the appellant – (ground 11)
(6) Having regard to the pleadings and evidence before the lower tribunal, as well as the circumstances of this case, whether the lower tribunal was not wrong and perverse in its judgment – (ground 19.)
(7) Having regard to the fact that five Justices sat at the lower tribunal and 2 of them did not sign the judgment of the lower tribunal, whether or not the said judgment is not a nullity – (ground 18.)
The 1st and 2nd respondents in response to the 1st appellant’s brief identified these issues;
1. Considering the clear provisions of Sections 177, 182 and 187 of the Constitution of the Federal Republic of Nigeria, 1999 and Sections 34, 36, 38, 144 and 145(1)(d) of the Electoral Act, 2006, and evidence led, whether the trial tribunal acted within its jurisdiction to hold that the 1st respondent “was at the time of the election not qualified to contest the election”, held on the 14th day of April, 2007 into the office of Governor of Kebbi State. – (Grounds 1, 2, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16 and 17.
2. Whether the tribunal rightly came to the conclusion that the petitioners/respondents/cross appellants proved their case for nullification of the return of 1st respondent/appellant at the election of 14th April, 2007 in the light of Section 146(1) of the Electoral Act, 2006 – (Grounds 11 and 19.)
(3) Having regard to the fact that five justices sat at the lower tribunal and two of them did not sign the judgment of the lower tribunal, whether the judgment was a nullity – (Ground 18).
The issues as formulated by the respondents cover and touch on all the issues formulated by the 1st appellant and are germane to this appeal. I will accordingly adopt them in the determination of this appeal.
I will start with the respondents’ issue 3 which is the 1st appellant’s 7th issue. It relates to the decision of the lower tribunal and questions its validity. The contention of the 1st appellant under this issue is that five justices sat and heard the petition which is the subject of this appeal, however, the record at page 1585 showed that the judgment was signed by only three justices of the Election Petition Tribunal.
It was argued for the 1st appellant that the judgment having not been signed by all the justices that sat over the petition was rendered void and invalid.
Relying on Tsalibawa v. Habiba (1991) 2 NWLR (Pt. 174) 461 and Kinfan v. Kinfan (2006) 6 NWLR (Pt. 975) 200, it was submitted on behalf of the Ist appellant that there being no explanation on why two members or the tribunal did not sign the judgment, it is rendered void and invalid and we were urged to so hold.
Replying for the 1st and 2nd respondents, learned senior advocate submits that the judgment is not rendered void or a nullity having not been signed by two members of the tribunal. That in any case no injury was shown to have been suffered by the appellants in this respect nor is there an affidavit to challenge the records of appeal to show that the two members who did not sign the judgment dissented referring in particular to particulars (iii) and (iv) of Ground 18 of the notice of appeal, He relies and cites Balonwu v. Ikpeazu (2005) 13 NWLR (Pt. 942) 479 and distinguished it from the Tsalibawa and Kinfan cases cited and relied upon by the 1st appellant to show that the Balonwu case (supra) is more applicable to the facts of this appeal.
The three cases cited are distinguishable.
In Tsalibawa’s only one judge presided over the trial, he neither signed nor dated the judgment. This was an infringement of the constitutional provision Section (294)(1) thereof which provides;
294. (1) Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
Of course when the case went on appeal, the Court of Appeal rightly held the judgment having not been signed and dated by the trial judge was rendered a nullity.
In Kinfan’s case, the High Court of Katsina State, with two justices sitting in its appellant jurisdiction, heard the matter, one of the justices signed and dated the judgment while the other judge did not append his signature. On appeal to the Kaduna Division of this court, it was held that in the absence of any explanation, on why one of the justices did not sign the judgment, there was no concurrence between the two justices and the judgment could not be regarded is authentic and was therefore declared a nullity.
These two cases cannot be applicable to this case, as had shown in Tsalibawa’s case only one judge presided over the matter, the absence of his signature and date on the judgment will obviously render same a nullity, similarly in Kinfan’s case where one out of two judges fail to sign a judgment, the said judgment cannot be said to be authentic as there was no evidence that the two judges were of one mind when the decision was given.
On the other hand, Balonwu’s case was on all fours with this case, in the sense that it was an election petition where five justices sat to determine it and only three out of the five justices signed.
Enugu Division of this court per Galadima, JCA distinguishing that case with Tsalibawa’s case at page 530 said;
“…In Tsalibawa, the judgment was that of a single judge of the High Court. I agree with learned counsel for the respondent that the Election Tribunal is like pre 1979 Supreme Court. It does not require writing of separate judgment. It is valid for a member of the tribunal to be appointed to write and authenticate the judgment of the tribunal. Thus in this case, the signature of the chairman of the Election Tribunal is a satisfactory authentication for the judgment of the tribunal… Since there was no dissenting judgment shown in the record that means that the two members of the tribunal who did not sign could not have dissented from the majority decision, Otherwise, there would have been one on record. I draw very firm inference that the two members who did not sign, agreed with the single majority judgment. The opinion of the three members that singed the judgment represents the opinion of the tribunal.”
In the instant appeal the situation is the same, the case is of all fours with Balonwu’s case. The appeal emanates from the decision of an election tribunal where five justices presided, the decision was signed by 3 members including the chairman. Two other justices did not sign, even assuming that they did not sign the judgment because they did not agree with the judgment there is nothing on record to show that they were dissenting from the majority judgment. We are bound by what is in the record, there is a majority judgment, and even if the minority i.e. the two justices had dissented, the majority decision would still have been the decision of the lower tribunal. See Section 294(3) 1999 Constitution. Rightly, the learned senior advocate for the 1st appellant had no reply to the respondent’s powerful submission on this issue, for he did not reply in the 1st appellant’s reply brief to the respondents’ brief. I uphold the respondents’ submission on this issue in its entirety and resolve the issue in their favour.
ISSUE 1
This issue as raised by the respondent covers issues 1-4 of the appellant’s brief. The appellant in his brief of argument argues issues 1, 2 and 3 together and issue four separately. I will in the circumstances consider the appellants’ three issues as argued together and the fourth issue separately argued vis-a-vis respondents’ issue one.
The appellant in his brief on the first three issues classified his arguments into various sub heads which are listed hereunder;
1. Lack of reasonable cause of action.
2. Lack of locus standi;
3. Want of jurisdiction on the basis of the issues being pre-election matter;
4. Non compliance with paragraph 4(1)(c) of the 1st Schedule to the Electoral Act, 2006;
5. Pre-election matters;
6. Exhibit 6;
7. Qualification of the appellant.
The appellant’s submission on these sub-heads will be adumbrated hereunder separately.
Cause of action
The appellant posits the question here, whether the petition discloses a reasonable cause of action before the lower tribunal. He refers to the complaints of the respondent as per paragraph 16(xii) of the petition and contends that the said paragraph could not confer jurisdiction on the tribunal as the issues raised in it relates to pre-election matters. He submits that the Electoral Act, 2006 and the Constitution of the FRN 1999 does not imbue anyone the right to present an election petition based on pre-election matters putting reliance on Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) 355 at 404 and Section 32(4) of the 2006 Electoral Act.
The appellant further submits putting reliance on Section 34 of the Electoral Act, 2006 that a political party has the right to change its candidate whenever such need arises and that such change can only be challenged before the appropriate State or Federal High Court being an intra party issue or a pre-election matter, that neither can it be challenged by a non-member of the concerned political party. He cites and relies on Ibrahim v. INEC (1999) 8 NWLR (Pt. 614) 334; Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 367 at 510-511 and 520; PDP v. Haruna (2004) 16 NWLR (Pt. 900) 597 at 612.
Locus Standi
The appellant submits on this sub-head that the respondents had no right or obligation or locus standi, even assuming without conceding that there was a cause of action cognizable from the issues of merger, nomination, substitution of candidates raised in paragraph 16 of the petition involving PDP and ANPP. That it was the prerogative of the PDP to choose whom to sponsor as a candidate and it was only the ANPP that could complain that the PDP had snatched its candidate. That the substitution is an intra-party affair which is actionable in the relevant Federal or State High Court. He contends that from the averments in Paragraph 16 of the petition the respondents lacked the necessary locus to complain on the alleged disqualification of the appellant. That they are only busy bodies and interlopers in the eyes of the law who had no business to complain. See Adesanya v. President (1981) 2 NCLR 358; Thomas V. Olufosoye (1986) 1 NWLR (Pt. 18) 669; A-G, Adamawa State v. A-G. Federation (2005) 18 NWLR (Pt. 958) 581. He contends that it is trite that it is only a person whose right has been or is in danger of being breached that can complain about the breach in law.
The appellant placed heavy reliance on Ararume’s case (supra) on the proper party who can complain on wrongful substitution and concluded that the respondents have failed to show how their rights have been infringed upon not being members of either the PDP or ANPP.
Pre-Election Matters
On this sub-head, the appellant refers to the provision of Section 285(2) of the Constitution of the Federal Republic of Nigeria 1990 which gives an Election Tribunal its powers as limited to the determination of the validity of an election. He submits that Paragraph 16 of the petition which refers to pre-election matters i.e. merger, nomination, substitution and giving of notices are not cognisable grounds under which an election petition could be challenged and or voided both under the Constitution and the 2006 Electoral Act. That such issues must be raised and dealt with prior to the election. He further submits that the respondents did not challenge the qualification of the appellant prior to the election as stipulated under Section 324 Electoral Act, rather the 1st respondent contested the election with the appellant, he was deemed to have waived any right of complaining.
Appellant cites and relies on this contention on Yusuf v.Obasanjo (2004) All FWLR (pt. 213) 1884; (2003) 16 NWLR (Pt. 847) 554; Ibrahim v. INEC (1999) 8 NWLR (Pt. 614) 334; Rimi v. INEC (2005) 6 NWLR (Pt. 920) 56; Sections 134 and 145 of the Evidence Act.
Relying also on Anazodo v. Audu (1999) 4 NWLR (Pt. 600) 530, the appellant further submits that the lower tribunal was limited in its jurisdiction and had gone outside its power by going into issues that should normally come under Section 34(2) of the 2006 Electoral Act – Kasikwu Farms Ltd. v. A. G. Bendel State (1986) 1 NWLR (Pt. 19) 695.
Non compliance with Paragraph 4 (1) (c) of the 1st Schedule to the Electoral Act, 2006.
The appellant submits that the petition was fatally vitiated by non-compliance with the above provision. He points out that by paragraph 13 of the petition, the petitioner listed only 7 out of the 8 candidates that contested the April 14, 2007 Gubernatorial Election in Kebbi State. That relying on the authority of Ibrahim v. INEC (1999) 8 NWLR (Pt. 614) 334; Ikeh v. Njoku (1999) 4 NWLR (Pt. 598) 263; Khalil v. Yar’Adua (2003) 16 NWLR (Pt. 847) 466; Abimbola v. Aderoju (1999) 5 NWLR (Pt. 601) 100; Ojong v. Duke (2003) 14 NWLR (Pt. 84) 581; Annon v. B.S.J.S.C. (2006) All FWLR (Pt. 296) 843; (2006) 14 NWLR (Pt. 1000) 610; Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446, the Petition was rendered incompetent. He submits that the lower tribunal ought to have struck out the petition completely not proceeded with the other grounds.
Submits that the lower tribunal was wrong to have cured an incurable deficiency in the petition. That the non-compliance affect the entire petition as it is a condition precedent to the petition.
Appellant’s Qualification
Here reliance was on the pleading of both parties, findings of the tribunal, Constitutional and Electoral Act provision as well as a plethora of cases on the contention of the appellant that the lower tribunal was wrong to have found that the appellant was disqualified to contest the April 14th Gubernatorial Election based on a purported party membership card.
The appellant points out that the judgment of the lower tribunal is clearly not borne out by evidence and issues before it. That the issue of when the appellant became a member of the PDP was not pleaded by the respondents nor was the assertion that he was made a gubernatorial candidate of the PDP before he joined the PDP pleaded.
He submits that the judgment is predicted on unpleaded facts which were not supported by any evidence before the lower tribunal. That in determining issues not borne out by pleadings and evidence the lower tribunal had descended into the arena thereby rendering the judgment perverse and a nullity.
That paragraph 16 of the petition the allegation was that of double nomination and the witness statement of Alhaji Aminu Umar D. Zamawa (Pages 265 – 267 of the record) makes the same contention and it was not their case that the appellant became a member of the PDP on the 10th February, 2007, the date on exhibit (6).
That the lower tribunal was wrong in its assessment of the evidence presented by the respondents particularly in relation to exhibit P6 the purported membership card which does not bear the appellant’s name but ascribed it to the appellant.
He submits further that the finding of the lower tribunal at pages 1561 and 1562 of the record that the appellant was not doubly nominated that should have laid down the pleadings and Zamawa’s witness statement and would have meant that the nomination of the appellant was not void under Section 38 of the Electoral Act, and there would have been nothing under the Electoral Act to invalidate the candidature of the appellant who has satisfied the conditions as laid down under Section 177 of the Constitution of the FRN 1999.
We were urged to allow the appeal on these issues.
Issue 4
The appellant on this issue adopt his argument on paragraph 4 (1) (c) of the 1st Schedule of the Electoral Act, 2006 and further submit that it was not open to the lower tribunal to pick and choose which of the grounds of the petition to either strike out or reject or accept particularly when no explanation was furnished by the petitioner and no amendment made to the petition. That there was no prayers by the petitioner to the lower tribunal to save any of the grounds, the lower tribunal thus acted without jurisdiction. That the lower tribunal having struck out ground 3 of the petition on non-compliance with the said paragraph it could not turn round to use the same deficient pleading to save the remaining two grounds that this would have led to bizarre consequences. Appellant relies on Boy Muka v. State (1976) 9-10 S.C. 305; Olawuyi v.Adeyemi (1990) 4 NWLR (Pt. 147) 746. Appellant urged us to allow the appeal on these arguments.
By a brief of argument filed by the 1st and 2nd respondents settled by Tarfa, learned Senior Advocate, the respondents opposed the appeal and made the following submission.
It is the contention of the respondents that the lower tribunal was right in striking out only one ground of the petition, he submits that the tribunal was not bound to grant all the reliefs sought in a preliminary objection and that the provision of paragraph 4(6)(1) of the 1st Schedule to the Electoral Act, 2006 rests discretion in the tribunal to determine whether a supposed defect in a petition is fatal or otherwise – relies on Obasanjo v. yusuf (2004) 9 NWLR (Pt.877) 144.
On whether nomination to contest is a pre-election matter the respondents contends it is not and submits that by virtue of Section 285(1) of the 1999 Constitution election matters are exclusive jurisdiction of the tribunal and not within the competence of a High Court once a petition is filed.
He cites and relies on Ilobi v. Uzoegwu (2005) All FWLR (Pt. 285) 585 at 610; Wike v. Icheonwo (1999) 4 NWLR (Pt. 600) 618; Jessica Balonwu v. Ikpeazu (2005) 13 NWLR (Pt. 942) 479; Enemuo v. Duro (2004) 9 NWLR (Pt. 877) 75. The respondents further submit that invalid nomination implies non qualification to contest an election that even if the candidate is qualified to hold the elective office of a governor, the Constitution expressly provides that a governor is not deemed validly nominated unless he meets the mandatory requirements and relies on Section 177 and 188 thereof. That though the requirements of Section 177 nowhere re-enacted in the Electoral Act it is nonetheless as a condition precedent to valid nomination, he relies on Section 32(1)(2) of the Electoral Act to show that the Section talks about fulfilling all constitutional requirements for election into that office. On Anazodo v. Audu (1999) 4 NWLR (Part 600) 530 at 544 which was decided based on the provisions of Section 84(1) of the then Decree 36 of 1998 which is in pari materia with the present Section 145(1)(a) of the Electoral Act 2006, the respondents submit that the Electoral Act limits its application to matters regulating being qualified to contest and contends that in determining whether winner at an election is not qualified to contest, recourse must be had to Sections 40 and 41 of the Electoral Act read with Sections 145(1)(a) and 146(1) thereof.
Also relying on Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 367, respondents submit that if a person meets constitutional requirements but is not validly nominated owing to the breach of the mandatory provisions of Sections 32, 34, 36 and 38 of the Electoral Act, Section 40 thereof does not recognize such a person as a contestant entitled to be placed on the ballot at the election. Submits that the Constitution has not set a criteria or procedure by which to regulate the contest of election by competing parties and their candidates that was why the procedure was left to the legislature to determine refers to Item 22 of the Exclusive Legislative List in the 1999 Constitution.
That a person who does not comply with this procedure cannot hide under the constitutional provision of Sections 177, 182 and 187 to say he is qualified to contest – See P.P.A. & 1 Or. V. Saraki & Ors. (CA/K/EPT/f; P.D.P. v. I.N.E.C. (1999) 11 NWLR (Pt. 626) 200.
Submits that the lower tribunal was right in invoking the provisions of Section 145(1)(a) as applicable to the facts of this case, pointing out that it encompasses the valid nomination to contest, failing which the election of the wrongly nominated candidate will be liable to have his election nullified.
On nomination respondents submits and concedes that it is an internal affair of the party if it is done in accordance with the law and refers in particular to Sections 36 and 38 of the Electoral Act. He submits and on the evidence before the court there was double nomination in contravention of Section 38 of the Electoral Act, That the said double nomination renders the nomination of the appellant void and submits that he was therefore not qualified to contest the election under Section 145(1)(a) of the Electoral Act.
On exhibit P6 the respondents submit that the court was light in holding that the date on the card predates the 1st appellant’s nomination by the 2nd appellant and the 1st appellant was disqualified from contesting the election. That the 1st appellant’s averment as per paragraph 7(xiii) of his reply to the petition denying its ownership, was not authentic but simply a ploy to achieve a goal to show that he was a member of the PDP as at 5/2/07 when he was substituted.
That by the provisions of Section 142 of the Evidence Act the burden is on the appellant to show that the card was not his own. Respondents urged us to uphold the finding of the lower tribunal on exhibit 6.
It was also the respondents’ contention that the nomination of the appellant was a breach of the 2nd appellant’s constitution.
The respondents on the whole urged us to resolve issue 1 in their favour.
In the submission of learned Senior Advocate in their respective briefs, three sub issues have arisen which to my mind from the facts of the case should not have been raised at all. These sub issues are;
Locus standi
Breach of the 2nd appellant’s constitution.
Paragraph 4(1)(c) of the 1st Schedule to the Electoral Act.
On locus standi, the appellant’s contention that from the averments in paragraph 16 of the petition, the respondents lacked the necessary locus to complain on the alleged disqualification of the appellant which touches on the issues of merger, nomination and substitution of candidates involving the PDP and ANPP as it is an intra-party affair actionable only in a Federal or State High Court.
Locus standi as defined by the courts denotes that a party has the legal capacity to initiate proceedings in a court of law, and focuses on his aim to get his complaint before the court and on the issues he will be raising before it. See Adesanya v. The President of Nigeria (1981) 2 NCLR 358; Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669; Williams v. Dawodu (1988) 4 NWLR (Pt. 87) 189.
This being an election petition, I must state that the 1st respondent being a candidate at the gubernatorial election of 14th April, 2007 and the 2nd respondent being the party that sponsored him, are proper parties before the lower tribunal by virtue of the provisions of Section 144(1)(a) and (b) of the Electoral Act, 2006 reproduced hereunder;
144(1) An election petition may be presented by one or more of the following persons ..
(a) a candidate in an election;
(b) a political party which participated in the selection.
The contention that they were not members of the PDP or ANPP who can complain over the nomination of the appellant is another matter altogether which will come under consideration under another heading- i.e. qualification of the appellant to contest. As it is, they are proper parties and have the necessary locus to initiate the matter before the lower tribunal.
Paragraphs 4(1)(c) and (6) of the 1st Schedule to the Electoral Act provides;
4(1) An election petition under this Act shall:
(a) specify the parties interested in the election petition;
(b) specify the rights of the petitioner to present the election petition;
(c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election; and
(d) state clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the petitioner.
(6) An election petition, which does not conform with, subparagraph (1) of this paragraph or any provision of that subparagraph is defective and may be struck out by the Tribunal or Court.
While paragraph 4(1)(c) above makes it mandatory that an election petition must state the holding of the Election, the scores of the candidates and the person returned as the winner of the election, paragraph 4(6) provides that a petition which does not comply with the provisions of paragraph 4 is defective and liable to be struck out by either the tribunal or this court. It is to be noted however that while the provisions of paragraph 4(1)(c) are mandatory, paragraph 4(6) gives the tribunal or this court the discretion of striking out the petition. See also Obasanjo v. Yusuf (supra). The lower tribunal was in the circumstances right in striking out only one ground out of the three grounds in the petition.
The respondents in their brief addressed us on the breach of the 2nd appellant’s constitution, these submissions to my mind go to no issue as they were not raised before the lower tribunal in the pleadings, in the evidence or in the judgment of the lower tribunal. Without leave of this court, they can now not be raised in counsel’s brief.
I will now look at the evidence adduced before the lower tribunal vis-a-vis the qualification of the appellant.
The function of a court and in the instant case, a tribunal is that of an unbiased umpire who critically examines all matters put before it by a party who is of the opinion that his rights have been infringed upon and that of his opponent who is saying otherwise and come to a just decision.
The rules of court allow the adverse parties to present the case by way of pleadings where they do not agree they are said to join issues and are required thereafter to put up such evidence before the court in support of the pleadings, it is then the duty of the court to examine the pleadings vis-a-vis the evidence adduced and dispassionately arrive at a decision.
In line with the above, the Practice Directions of the Court of Appeal eases the trial in election petitions, which are said to be sui generis in nature, for speedy dispensation of justice. A party aggrieved by the outcome of an election is required to file a petition consisting of his complaint, the grounds of which he is challenging the return of an election, plead to such facts in support of the grounds, and written statements of witnesses under oath in support of the pleadings. The person returned as elected and such necessary parties to the petition will then file a reply to the petition containing pleaded facts and annexing witness statements to his pleadings all in support of the election return.
In the instant appeal, the petitioners were the DPP and its candidate Abubakar Mallam Abubakar and the respondents were the person returned as the elected Governor of Kebbi State Alhaji Nasamu Saidu, his party the PDP and INEC the body that conducted the election and 318 others, the various persons who assisted INEC in the conduct of the election.
Going by the Practice Directions, parties to the petition annexed witness statements on oath in support of their respective pleadings in the petition and the replies to the petition. Such witnesses should have been called to give oral testimony and link the documentary evidence tendered and be cross-examined. In the petition leading to this appeal, the respective learned counsel to the parties agreed to dispense with the calling of witnesses to orally testify and to be cross-examined but opted to adopt the written depositions and to tender all exhibits from the bar and thereafter submitted written addresses and replies on points of law.
It is their depositions, exhibits and addresses that the lower tribunal relied upon to arrive at its decision of 20th October, 2007. It is reproduced hereunder;
By the petitioners, pleading in paragraph 16 (xviii) that the 1st respondents’ membership card of the 2nd
respondent is dated 10/2/07, the petitioners are taken to have put in issue the fact that 1st respondent became a member of the 2nd respondent as at that date. And by the respondents’ reply in paragraph 7(xiii) denying, that the membership card of the 1st respondent is the one pleaded, the respondents are taken to have joined issues. What remains is a matter of proof.
While the petitioners tendered and relied on exhibit P6 as evidence of the PDP membership card of the 1st respondent supported by the evidence of Alhaji Aminu Umar O. Zamawa, no evidence is tendered for the 1st and 2nd respondents to support their pleading in paragraph 7(xiii). That paragraphs is deemed abandoned. We have ourselves seen exhibit P6. It bears the photograph of the Ist respondent and the date and number of the card pleaded is on it. The respondents never took objection to exhibit P6. They couldn’t have as it is a certified document from INEC. The result is that, there is evidence on one side of the scale and none on the other side. In other words, after the petitioner called evidence on this issue, the burden of proof shifted to the respondents by virtue of Section 137(2) of the Evidence Act which provides.
“137(1) …
(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced. and so on successively, until all the issues in the pleadings have been dealt with”.
Once as in Petition No.1, a case have been put up that require an answer from the 1st and 2nd respondents.
they cannot run away from that fact by simply ignoring it. The 1st respondent was bound to explain the fact that the membership card pleaded is not his. He ought to explain when he became member of the PDP. Exhibit P3 showed he was substituted for the 2nd respondents’ initial candidate on 5/2/07. His membership card of the 2nd respondent proved before us bears the 10th of February, 2007. Exhibit PS, his nomination form bears 9/2/07. All these coupled with the fact that by exhibit P4, the 1st respondent had been nominated by the ANPP as its flag bearer in Kebbi State and his admission of this fact he requires to, say more than merely saying that he left that party long ago. True, exhibit R9 shows he left ANPP on the 2/2/07, 1st respondent ought to say when he joined the PDP as that is a matter of constitutional importance that is, he ought to belong to the political party that sponsored him. Our view is that the 1st respondent did not discharge the burden that shifted to him. If exhibit P6 is not evidence that he became a member of the PDP as at 10/2/07 as alleged by the petitioner, he was bound to say so. That evidence must emanate from the respondents. They cannot afford to keep sealed lips or expect the tribunal to provide that evidence on their behalf. We are supposed to be an unbiased umpire. In the absence of any explanation, we have to accept that evidence of the petitioners that exhibit P6 dated 10th February, 2007 is evidence of the date 1st respondent became a member of the PDP.
We hold that from the facts placed before us he became member of PDP by virtue of membership case No. 1428620 dated 10/2/07. In other words, he became a member of the PDP as at that date. That therefore means exhibit P3(A) dated 5/2/07 which is evidence that he was substituted for the PDP’s initial candidate was made before he became member of the PDP.
On a balance of probability therefore the case of the petitioners in Petition No.1 preponderates that of the respondents – See Mogaji v. Odofin (1978) 4 SC 91 and Agballah v. Nnamani (2005) All FWLR (Pt.245) 1052 at 1073.
By the combined effect of Section 145(1)(a) of the Electoral Act and 177(c) of the 1999 Constitution therefore, the 1st respondent was not qualified to contest the Election of April, 14th 2007 to the office of Governor of Kebbi State. The case of the petitioners in Petition No. 1 only succeeds on this ground.
The above finding was based on paragraph 16 of the petition as contained at pages 9-12 of the records and the witness statement of Alhaji Aminu Umar D, Zamawa to be found at pages 266-267 of the record. They are reproduced hereunder for ease of reference.
16. The various acts and omissions of the respondents jointly and severally render the first respondent
unqualified to contest the election.
PARTICULARS.
(i) The purported merger which produced the first respondent as the gubernatorial candidate of the third
respondent is invalid null and void, regard being had to the Electoral Act 2006.
(ii) A merger within the contemplation of the Electoral Act, can only be one properly so called if same is between two political parties and not between a chapter of one political party and another.
(iii) the national chairman, national secretaries and national treasures of the merging parties did not subscribe to the memorandum of the merger.
(iv) From the purported memorandum of merger dated 8/2/07 the merger does not amount to a merger is under the Electoral Act, 2006.
(v) The 1st respondent did not give his (ANPP) the mandatory notice of withdrawal of his nomination as its Governorship candidate. The lack of the requisite notice resulted in his nomination.
(vi) The first respondent was duly nominated by the ANPP as its gubernatorial candidate.
(vii) The ANPP has not withdrawal his nomination
(viii) The third respondent nevertheless allowed the first respondent to contest the election on the platform of the PDP.
(ix) the time and manner the first respondent procured his purported nomination from the third respondent disqualified him from contesting the election.
(x) The purported merger was effected on the 8/2/07
(xi) The reasons given for the substitution are neither cogent nor verifiable
(xii) The times fixed and the procedure prescribed by the Electoral Act, 2006 for merger, nomination, substitution of candidate and giving of notices were not complied with by the first to the third respondents.
(xiii) Failure to comply with these mandatory requirements render the nominated and participation of the first respondent in the election invalid.
(xiv) The 1st respondent was purportedly substituted for the former candidate of the 2nd respondent: vide a letter to the chairman of the 3rd respondent dated 5th February, 2007.
(xv) At the time of purported substitution, the 1st respondent was a member of the All Nigeria Peoples
Party (ANPP) and not of the 2nd respondent. The All Nigeria Peoples Party having submitted his name and that of his running mate, Alhaji Adamu Zama Sauchi to the 3rd respondent as its candidate for the Governorship elections vide a letter dated 17th December, 2006.
(xvi) Your petitioners will rely on the INEC forms CF 001, and E. C.4B (VI) filed by the 1st respondent and the said Alhaji Adamu Senchi as candidates of ANPP and the list of Governorship/Deputies and State House of Assembly candidates sent under cover of a letter dated 17th December, 2006 by ANPP to the 3rd respondent at the hearing of this petition.
(xvii) The 1st respondent’s Form E. C. 4B (V1) being his form for nomination of governor was dispatched by the 3rd respondent on 6th February, 2007 whilst same was filed by the 1st respondent and dated 9/2/07.
(xviii) 1st respondent’s purported membership card 1428620 for the 2nd respondent was issued on the 10th of February, 2007 after his purported substitution and nomination by 2nd respondent.
(xix) 1st respondent’s nomination as Governorship candidate of the ANPP had not been withdrawn in accordance with the 3rd respondent’s guidelines, before he was nominated as governorship candidate of the respondent hence he was nominated doubly.
(xx) The voters card/slips of the nominations of the 1st respondent were not submitted to the respondent with 1st respondent’s nomination Form 4B(VI).
(xxi) The passport picture of the former candidate of the 2nd respondent was not attached to the 1st respondent’s nomination form.
(xxii) The old candidate of the 2nd respondent did not sign the 1st respondent’s nomination forms.
(xxiii) The purported membership card of the 1st respondent for the 2nd respondent bears names different from the names of the 1st respondent
(xxiv) The purported membership card of the 1st respondent issued by the 2nd respondent being membership card number 1428620 was issued in the name of one Saidu N. Usman Darkingari and not the 1st respondent.
(xxv) The 2nd respondent did not state any cogent and verifiable reasons for the substitution of their old candidate with the 1st respondent.
(xxvi) The petitioners plead the following documents and shall rely on them at the hearing of this petition;
(a) Letter of substitution dated the 5th February, 2007 addressed by the 2nd respondent purportedly substituting the 1st respondent for the former candidate.
(b) INEC Form E.C. 4B (V1) Form for nomination of Governor for Kebbi State dated 9/2/07 filed by the 1st respondent.
(c) INEC Form CF 001 being the affidavit in support of personal particulars of persons seeking election to the office of Governor deposed to by the 1st respondent allegedly on 12th February, 2007 together with the annexure attached thereto.
(xxvii) The 1st respondent’s running mate Alhaji Ibrahim K. Aliyu was not validly nominated as the 1st respondent’s running mate.
(xxviii)No reason was given by the 2nd respondent to the 3rd respondent for the substitution of the said Alhaji Ibrahim K. Aliyu with the old candidate.
(xxix) The Form CF 004B submitted to the 3rd respondent by the 2nd respondent dated 10/2/07 does not bear the signature of the substituted candidate neither does it bear his picture.
(xxx) The said Form CF 0048 was not approved by the approving officer of the 3rd in compliance with Sections 34 and 36 of the Electoral Act, 2006.
(xxxi) The purported primary school leaving certificate attached to the running mate to the 1st respondent’s Form CF 00 I has a concocted primary school leaving certificate attached thereto belonging to someone else entirely.
(xxxii) The purported primary school leaving certificate referred to in paragraph 19 above bears the names “Ibrahim Lopa” and does not bear the name of any educational institution.
See also the written statement of Alhaji Aminu Umar D. Zamawa as found in pages 266-267 of the record;
I, Alh. Aminu Umar D. Zamawa, Male, Adult, Muslim, Nigerian citizen, a Politician of Democratic Peoples Party (DPP), State Secretariat, Ahmadu Bello Way, Birnin Kebbi do hereby make oath and state as follows;
1. I am a politician of Gorun Dikko Ward of Arewa Local Government Area of Kebbi State.
2. I am a member and State Secretary of the Democratic Peoples’ Party (DPP), Kebbi State chapter.
3. My duties include the handling of all official correspondence between DPP, Kebbi State Chapter and outside and the keeping of minutes of meeting and documents and liaising with other national and state officials of our party and non-members of the party.
4. I know as a fact that the 1st respondent was until 5th February, 2007 a candidate of All Nigeria Peoples’ Party (ANPP) – the 2nd petitioner for the Gubernatorial elections in Kebbi State.
5. On 5th of February, 2007 the 2nd respondent vide a letter addressed to the Chairman of the 3rd respondent purported to substitute the name of their former candidate with that of the 1st respondent.
6. I know as a fact that as at the date and time the purported substitution was effected, the 1st respondent was a member of ANPP.
7. I know as a fact that at the time and date the purported substitution was effected, the 1st rcspondent’s nomination as Governorship candidate of ANPP had not been withdrawn.
8. I know as a fact that the purported nomination of the 19th respondent as its Gubernatorial candidate pre-dates his membership card as a member of the 2nd respondent.
9. I make this statement in good faith believing the contents to be true, correct and in accordance with the Oaths Act, 1990.
The above in effect was the evidence proffered by the petitioners in support of the averments in paragraph 16 or their pleadings earlier reproduced.
As I have earlier touched, pleadings in a trial are assertions, allegations or the complaint an adverse party will meet at court in a trial, they are toothless bulldogs who cannot bite unless their teeth are restored, or in a trial until when they are supported by concrete unimpeachable evidence.
A compound reading of paragraph 16 of the petition and the witness statement of Zamawa will show that only sub paragraphs (v), (vi), (vii), (xiv) and (xv) of paragraph 16 of the petition with regards to the double nomination was evidence adduced in support – see Zamawa’s testimony paragraphs 4-7 thereof.
In respect of Exhibit P6, the membership card the pleadings are to be found in sub paragraphs (xviii) and (xix) which when looked at closely are at variance with sub paragraphs (xxiii) and (xxiv) which are alleging that the said membership card bears names which are different from the names of the appellant.
If the rules of trial are to be strictly observed all the allegations in the other sub paraphs of 16 of the petition will go to no issue in the absence of any evidence to support them. I will return to this anon.
The issue for determination before the lower tribunal based on paragraph 16 of the petition and Zamawa’s witness statement is whether the issue of double nomination had been made out and whether the appellant is qualified to contest the election.
On double nomination I will refer to the finding of the lower tribunal at pages 1561-1562 where it held as follows;
We find ourselves unable to agree with this submission. The law imposes a duty on a candidate such as the 1st respondent to withdraw from his earlier nomination and a corresponding duty on the party that sponsored him to forward such withdrawal to the 3rd respondent. See Section 36(1) of the Act. It is only the occurrence of the event in subsection (1) of Section 36 of the Act that such party can be allowed to sponsor another candidate under subsection (2) of the same Section. Petitioners in their pleadings said the 1st respondent did not withdraw the letter exhibit R9 written to ANPP by the 1st respondent which they now try to dismiss as of no evidential value. In our view, the 1st respondent had done what he needed to do by writing the letter of withdrawal exhibit R9 to the ANPP. The duty is on ANPP to comply with Section 36(1) of the Act. The petitioners did not adduce any evidence that ANPP did not inform the 3rd respondent of the withdrawal, rather they adduced evidence to establish that ANPP sponsored another candidate, which act; they now tried to explain away by some fantastic and ingenuous construction of section 36(2) of the Electoral Act. We reject the construction as untenable and as reading into section 36(2) meanings that the clear wording of the section cannot permit. If indeed as alleged by the petitioners, the 1st respondent was sponsored by the ANPP and the PDP, then it also means that the ANPP sponsored both the 1st respondent and Senator Farouk Bello Bunza. The burden is on the petitioners to prove that such was the case. They failed to do so. We hold that there is no evidence of double sponsorship of the 1st respondent.
The underlining above is to show that the lower tribunal made a finding that there was no evidence before it to show an infringement of the provisions of section 36(1) of the Electoral Act.
There is no appeal or rather a cross appeal on this finding, it remains binding on the parties until set aside.
I am not unmindful of the submission of learned senior advocate to the appellant that nomination, substitution and mergers is not within the competence of an election tribunal neither am I unmindful of the respondents’ contention that the appellant was not qualified to contest or be elected on the basis of invalid nomination.
In considering the above poser, I will first ask the question was the tribunal competent to look into the issue of nomination, substitution and mergers?
The jurisdiction of an election tribunal to determine matters pertaining to the election and return of a governor are as spelt out in section 285(2) of the 1999 Constitution which provides;
“Section 285(2) There shall be established in each State of the Federation one or more election tribunals to be known as the Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative house”.
The above provision gives an election petition tribunal the exclusive jurisdiction to hear and determine petition as to whether any person has been validly elected to the office of governor or deputy governor of a State.
Issues of nomination, substitution as covered by the provisions of the Electoral Act, 2006, i.e. section 32, 36 and 38 reproduced hereunder;
32(1) Every political party shall not later than 120 days before the date appointed for a general election under the provisions of this Act, submit to the Commission in the prescribed forms the list of the candidates the party proposes to sponsor at the elections.
(2) The list shall be accompanied by an affidavit sworn to by each candidate at the High Court of a State, indicating that he has fulfilled all the constitutional requirements for election into that office.
(3) The commission shall within 7 days of the receipt of the personal particulars of the candidate, publish same in the constituency where the candidate intends to contest the election.
(4) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit is false may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.
(5) If the court determines that any of the information contained in the affidavit is false the court shall issue an order disqualifying the candidate from contesting the election.
(6) A political party which presents to the commission the name of a candidate who does not meet the qualifications stipulated in this section, commits an offence and is liable on conviction to a maximum fine of N500,000.00.
(7) Every political party shall not later than 14 days before the date appointed for a bye-election by the commission submit the list of candidates from the party for the bye-election.
Section 36(1) A candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the political party that nominated him for the election and the political party shall convey such withdrawal to the commission and which shall only be allowed not later than 70 days to the election.
(2) Where the commission is satisfied that a candidate has withdrawn as provided in subsection (1) of this section, his political party shall be allowed to nominate another candidate not later than 60 days before the date of election.
Section 38 Where a candidate knowingly allows himself to be nominated by more than one political party and or in more than one constituency his nomination shall be void.
Have been found to be matters outside the competence of an election tribunal, they are said to be actionable before a state or a Federal High Court. See Yusuf v. Obasanjo (2004) All FWLR (Pt. 213) 1884: (2003) 16 NWLR (Pt. 847) 554: Ibrahim, INEC (1999) 8 NWLR (Pt. 614) 334; Rimi v. INEC (2005) 6 NWLR (Pt. 920) 56: see in particular the holding of Oguntade, JSC in Amaechi v. I.N.E.C. (2008) 1 MJSC1 at 63; (2008) 5 NWLR (Pt. 1080) 227 at 314.
“Section 178 above is a provision of the 1999 Constitution intended to ensure a smooth transition from one administration to another. It is not a provision to destroy the right of access to the court granted to a
citizen under section 36 of the same Constitution. In the same way, section 285(2) relied upon by the senior counsel cannot be construed to destroy the jurisdiction which the ordinary courts in Nigeria have in pre-election matters. Were the court to construe section 285(2) as having the effect of ousting the jurisdiction of the ordinary court in pre-election matters, all that a defendant would need to do to frustrate a plaintiff is to stall for time and obtain adjournment to ensure that a plaintiff’s case is ‘killed’ once an election is held …
It is my firm view that the jurisdiction of the ordinary courts to adjudicate in pre-election matters remains intact and unimpaired by sections 178(2) and 285(2) of the 1999 Constitution”.
See also Ibrahim v. INEC (supra) per Salami, JCA at 351;
“Election tribunal has no power to investigate matters which took place before the conduct of an election.”
The above provisions are hurdles a candidate and his political party must surmount to be eligible to contest. They are pre-election matters which are actionable before the regular High Courts.
In the same way, the respondents who are not members of the PDP or the ANPP lack the locus to raise them before the lower tribunal which lacks the competence to determine pre-election matters.
Paragraph 8 of Zamawa’s witness testimony relates to exhibit P6 the membership card.
I reproduce it hereunder;
“8. I know as a fact that the purported nomination of the 1st respondent as its Gubernatorial candidate pre-dates his membership card as a member of the 2nd respondent”.
The pleading of the petitioners before the lower tribunal as I had shown earlier was two faced. One is showing that the membership card belongs to the appellant, while the other is saying that the card bears different name from that of the appellant.
The appellant had in his reply to the petition averred as follows;
Paragraph 7(xiii)
“The 1st respondent has authentic PDP membership card issued to him by the 2nd respondent as against the purported membership card listed in the petition”.
The said card was tendered before the lower tribunal as exhibit 6. By the rules of pleadings, the parties could not be said to have joined issues on exhibit P6 as both have asserted that the card before the lower tribunal he has therefore to prove such evidence in proof. In the instant case parties did not testify before the lower tribunal as such witnesses were not cross-examined.
Where parties have disagreed on an issue in their pleadings they are said to have joined issues, each party is thus required to prove the averment which was not admitted by adducing evidence or eliciting evidence from the opponent through cross-examination.
Where the evidence is at variance with the facts pleaded it goes to no issue. See Honika Sawmill Nigeria Ltd. v. Hoff (l994) 2 NWLR (Pt. 326) 252; F.C.D.A. v.Naibi (1990) 3 NWLR (Pt. 138) 270; Akpan v. Udoh (2008) 3 NWLR (Pt. 1075) 590.
The finding of the lower tribunal shown earlier in this judgment was to the effect that the appellant was not qualified to contest the governorship election by virtue of exhibit P6 said to be issued on the 10/2/2007 which was issued after he was nominated by his party.
Non-qualification is a ground upon which an election may be challenged. See section 145(1)(a) of the Electoral Act, 2006 which stipulates;
145.(1)An election may be questioned on any of the following grounds,
(a) that a person whose election is questioned was, at the time of the election not qualified to contest the election.
The lower tribunal had aptly defined qualification in the con of the above provisions. I will reproduce the said definition.
The issue here is what is meant by “qualification” within section 145(1)(a). Is it “qualification” as stated in the various relevant provisions of the 1999 Constitution or does it include failure to comply with provisions of sections of the Electoral Act such as sections 34, 36 and 38. The law as laid down in decided cases is that the question whether or not a person is qualified to contest an election within the meaning of the above provision of the Electoral Act is to be determined exclusively by reference to the constitutional requirements for qualification to contest. Qualification to contest an election to the office of Governor of a state is provided for in section 177 of the constitution of the Federal Republic of Nigeria, 1999. Section 182 provides an exhaustive list of conditions that may disqualify a candidate. A petitioner can therefore only succeed in a complaint founded on section 145(1)(a) where he alleges facts amounting to a constitutional bar. The provisions of the constitution are superior to every provision made in any Act of Law. See Ojukwu v. Obasanjo (2004) 12 NWLR (Pt. 886) 169 at 225 and 226. The Electoral Act is an inferior legislation to the constitution and cannot therefore expand the criteria for qualification to contest an election under the Constitution. Any such attempt will be declared null, void and of no effect. See the observation of Pat Acholonu, JSC (of blessed memory) in Nuhu v. Ogele 16 NSCQR 390 at 408; (2003) 18 NWLR (Pt. 852) 251. See also the dictum of Kutigi, JSC (as he then was) in A-G., Abia State v. A-G., Federation (2002) 6 NWLR (Pt.763) 264.
This is precisely why the Electoral Act, 2006 is silent on the issue of qualification because provision on the matter was adequately made in the Constitution.
Having made the above finding on qualification as stipulated under section 145(1)(a), in determining the qualification of the appellant, the lower tribunal will look for his answer within constitutional provisions. These are as provided in sections 177(c) and 182 of the 1999 Constitution. They are shown hereunder;
‘Section 177(c) he is a member of a political party and is sponsored by that political party; and Section 182(1) No person shall be qualified for election to the office of Governor of a state if –
(k) subject to the provisions of section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, he has made a declaration of allegiance to such other country; or
(l) he has been elected to such office at any two previous elections; or
(m) under the law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; or
(n) he is under a sentence of death imposed by any competent court of law or tribunal in Nigeria or a sentence of imprisonment for any offence involving dishonesty or fraud (by whatever name called) or any other offence imposed on him by any court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court or tribunal; or
(o) within a period of less than ten years before the date of election to the office of Governor of a state he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the Code of Conduct; or
(p) he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in Nigeria; or
(q) being a person employed in the public service of the federation or of any state, he has not resigned, withdrawn or retired from the employment at least thirty days to the date of the election;
(r) or he is a member of a secret society; or
(s) he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the tribunals of Inquiry Act, a Tribunals of Inquiry law or any other law by the Federal or State Government which indictment has been accepted by the Federal or State Government; or
(t) he has presented a forged certificate to the Independent National Electoral Commission.
(2) Where in respect of any person who has been
(e) adjudged to be a lunatic;
(f) declared to be of unsound mind;
(g) sentenced to death or imprisonment; or
(h) adjudged or declared bankrupt.
An appeal against the decision is pending in any court of law in accordance with any law in force in Nigeria, subsection (1) of this section shall not apply during a period beginning from the date when such appeal is lodged and ending on the date when the appeal is finally determined or, as the case may be, the appeal lapses or is abandoned, whichever is earlier.
A close look at the two provisions shows that while section 177(c) prescribes the criteria for qualification, section 182 provides grounds for disqualification.
Section 177(c) stipulates that for a person to be qualified to contest he must belong to a political party and be sponsored to contest by that political party and not be impaired by the provisions of section 182. If there are any hurdles put in by the Electoral Act which he had not summoned then it is left to the adverse party to prove by concrete evidence before the tribunal.
The case of the petitioners/respondents before the lower tribunal was that of double nomination as per paragraphs 4-7 of Zamawa’s written statement this was discountenanced by the tribunal as having not been proved. The finding on the card was on a non-issue, for if the lower tribunal had consider paragraph 16(xviii) of the petition together with paragraph(xxiii) and (xxiv) it would have arrived at the conclusion that the case of the petitioners before it was that exhibit P6 was not the appellant’s card. The finding of the tribunal that the appellant joined the PDP on 10/2/08 is perverse as it is not in line with the pleadings and the evidence as per paragraph 8 of Zamawa’s witness statement. The date the appellant became a member of the PDP was never raised by the pleading and the lower tribunal was wrong to have reached a conclusion which was neither supported by pleadings or the evidence before it. See in particular its finding;
“In the absence of any explanation, we have to accept that evidence of the petitioners that exhibit P6 dated
10th February, 2007 is evidence of the date 1st respondent became a member of the PDP”.
There was no basis for the court to have speculated and made findings as to when the appellant became a member of the PDP when it was not an issue before it. See Kasimu v. N.N.P.C. (2008) 3 NWLR (Pt. 1075) 569 at 586-587 per Odili, JCA.
“A judge as an impartial arbiter must leave the parties to conduct their contest within the ambit framed by them. It is not the duty of a court to look for or provide evidence for any of the parties before it. Its duty is mainly that of an umpire holding evenly the scale of justice between the parties. It is consequently erroneous for a court to make use of materials not given in evidence to come to is decision”…
“It is not allowed by law or judicial authorities for a trial court to go outside the scope of what before it, or claimed by the parties, or can be contemplated as flowing from what is on ground for its adjudication”.
See also Akpan v. Ultin (J996) 7 NWLR (Pt. 463) 634: Ogbu v.Ani (J994) 7 NWLR (Pt. 355) 761.
By the provision of section 177(c) of the 1999 Constitution all that the appellant need show is that he is a member of a political party and was sponsored by that party. This, he has established by exhibits P3 and P5 barring any conditions imposed by the Electoral Act which the respondents must prove, the appellant was qualified to contest the election of 14th April, 2007 to the office of Governor of Kebbi State.
Arriving at the above conclusion, I am strengthened by the findings of my learned brother, Aboki, JCA in the consolidated sister case to this appeal in suit No. CA/K/EP/GOV/5/07 in which I participated where at pages 24-25 of the judgment he found as follows;
“It has been argued by the respondents that even if PDP nominated and sponsored the 1st respondent on the 5th of February, 2007 it was still within the 60 days allowed by section 34(1) of the Electoral Act. The election took place on 14th April, 2007, the 1st respondent was sponsored by the 2rd respondent on the 5th February, 2007. The period between 5th February, 2007 – 14th April, 2007 is 67 days. Section 34(1) requires that notice be given of the change in writing not later than 60 days to the election. In the present case, the 1st respondent gave his notice 7 days to the election.
The 1st respondent’s letter withdrawing his nomination was sent through his former party ANPP that nominated him as its Governorship candidate to the 3rd respondent and it was dated 2nd February, 2007. The period between 2nd February, 2007 and 14th April, 2007 is 70 days. The 1st respondent has withdrawn his nomination by the ANPP as its Governorship candidate within the period of 70 days stipulates by section 36(1) of the Electoral Act, 2006. Pursuant to section 36(2) of the Electoral Act 2006, the 1st appellant nominated the 2nd appellant as its governorship candidate for Kebbi State after the 1st respondent had withdrawn the nomination earlier made in his favour…
I am of the opinion that by withdrawing his candidature in compliance with the Electoral Act, 2006 the
respondent has not contravened the provision of section 36(1) of the Electoral Act, 2006 and the trial tribunal was wrong to have found that the 1st respondent was not qualified to contest the election having been sponsored by his party the PDP.
The allegation of the appellant that the 1st respondent is not qualified to stand for the election has not been established. The petitioners/appellants have not established. The petitioners/appellants have not discharged the onus of proof placed on them by law.
See Mogaji v. Odofin (1978) 4 SC 91.”
These issues are resolved in favour of the appellant.
ISSUE 2
This issue questions the justification of the lower tribunal’s nullification of the election in the light of section 146(1) of the Electoral Act and after adopting his submission on issue one learned senior advocate for the respondents further submits that the proper order of nullification ought to have been made under section 147(2) of the Electoral Act.
Having found that the lower tribunal was wrong in its decision, this issue becomes academic it is hereby discountenanced.
On the whole the decision of the lower tribunal was based on evidence not before it, where an appellate court is not supported by evidence or that it is perverse the relevant order to make is to set it; Pascutto v. Adecentro (Nig.) Ltd. (1997) 11 NWLR (Pt. 529) 467.
In the circumstances this appeal has merit and I hereby allow it. I find that the appellant was qualified to stand for the Gubernatorial election of 14th April, 2007.
The decision of the lower tribunal as contained in pages 1556-1558 of the record of appeal with regards to petition No. KB/EPT/GOV/1/2007 of 20th October, 2007 as reproduced earlier in this judgment is hereby set aside.
I affirm the election and return of the appellant as Governor of Kebbi State in the election held on the 14th April, 2007. There shall be no orders as to costs.
APPEAL NO.2
The parties herein are the Peoples Democratic Party (PDP) as appellants and the respondents are Abubakar Mallam Abubakar. The appeal is also based on the same facts and issues as appeal No. 1.
The issues for determination in this appeal are as follows;
1. Whether or not the Honourable Tribunal was right in not striking out the petition as wholly incompetent having found that the petitioners/respondents did not state the scores of all candidates that took part in the Governorship election in Kebbi State.
2. Whether or not any issue arose from the pleadings as to whether exhibit P6 was the membership card of the 3rd respondent and whether or not the said exhibit P6 defined any issue between the parties membership card of the 3rd respondent and whether or not the said exhibit P6 defined any issue between the parties.
3. Whether or not the tribunal was right in holding that the 1st and 2nd respondents alleged in their pleadings that the 3rd respondent was not a member of the PDP (appellant) at the time he was sponsored by the PDP.
4. Whether or not the issue of jurisdiction properly raised before the tribunal was caught by issue estoppel.
5. Whether or not the tribunal was right in holding in all the circumstances that the 3rd respondent was not qualified to contest the election.
6. Whether or not the tribunal had jurisdiction to entertain the complaint regarding invalid substitution and nomination in holding that the 3rd respondent was illegally placed on the ballot papers.
7. Whether or not the tribunal was right in voiding the election of the 3rd respondent as it did and ordering the holding of a fresh election.
The respondents on the other hand in their brief of argument identified their issues;
(1) Considering the clear provision of sections 177, 182 and 187 of the Constitution of the Federal Republic of Nigeria 1999 and sections 34, 36, 38, 144 and 145(1)(a) of the Electoral Act, 2006 and evidence led, whether the trial tribunal acted within its jurisdiction to hold that the 1st respondent was at the time of the election not qualified to contest the election held on the 14th day of April, 2007 into the office of Governor of Kebbi State.
(2) Whether the tribunal rightly came to the conclusion that the petitioners/respondents proved their case for nullification of the return of 1st respondent/appellant at the election of 14th April, 2007 in the light of section 146(1) of the Electoral Act.
The respondent’s first issue covers the appellant’s issues 1-6 and the 2nd issue covers the appellant’s issue 7.
These issues were the issues determined in appeal No.1 consequently, I adopt my findings and reasonings in respect of issue 1 in appeal No.1 to the appellant’s issues 1-6 and the respondent’s issue 1. Similarly issue 7 of the appellant and the respondent’s issue 2 based on my finding becomes a non-issue. In the circumstances, I allow the appeal and adopt the consequential orders in appeal No. 1. I make no order as to costs.
APPEAL NO.3
I adopt the reasoning and conclusions reached in respect of appeal No.1 in allowing the appeal and the orders made in respect of appeal No.1 are hereby adopted.
I make no order as to costs.
CROSS-APPEAL
The sole issue for determination in the cross-appeal is; Whether the trial tribunal was wrong in not directing that the 1st petitioner be returned as duly elected; or at least a fresh/bye election be conducted in which 1st and 2nd respondents/appellants/cross-respondents would not be entitled to participate, and in also not specifying the time within which the fresh/bye-election should be held.
This issue becomes academic based on my finding in the substantive appeal.
The cross-appeal is over taken by events and is hereby dismissed.
There shall be orders as to costs.
ABOKI, J.C.A.: I agree.
BELGORE, J.C.A.: I agree.
NDUKWE ANYANWU, J.CA.: I agree.
GUMEL, J.C.A (DISSENTING).: With utmost humility and the greatest respect. I wish to disagree with the lead judgment delivered by my learned brother, Bulkachuwa, JCA. My reasons are incorporated in the judgment hereunder.
This is an appeal against the judgment of the Governorship and Legislative Houses Election Tribunal established for Kebbi State in the jointly heard and determined election petitions No. KB/EPT/ GOV/1/2007 and KB/EPT/GOV/2/2007. The judgment was delivered on 20th October, 2007. On 14th April, 2007, elections were held into the office of Governors throughout Nigeria. In Kebbi State, eight (8) candidates representing their various political parties contested for the Gubernatorial seat. After the election, the Independent National Electoral Commission (INEC) declared the 1st appellant in this appeal as the winner of the election having purportedly scored the highest number of votes in the election and returned him as the duly elected Governor of Kebbi State. The 1st appellant was said to have been the candidate of the Peoples Democratic Party (PDP) thereinafter referred to simply as the 3rd respondent/appellant at the said election.
As part of the result of this election. INEC also recorded and credited the contestants of the political parties with the following votes; viz:
1. Mohammed Inuwa Bawa
Action Congress (AC) 4,842.
2. Alhaji Abdullahi Ibrahim
African Democratic Congress (ADC) 3,990.
3. Engineer Abubakar Balla D/Ango
All Progressive Grand Alliance (APGA) 3,798
4. Senator Farouk Bello Bunza
All Nigeria Peoples Party (ANPP) 134,553
5. Abubakar Mallam Abubakar
Democratic Peoples Party (DPP) 133,800
6. Usman Nasamu Saidu
Peoples Democratic Party (PDP) 469,595
7. Adamu Usman
Progressive Peoples Alliance (PPA) 7,888
8. Salihu Isa Nataru
National Democratic Party (NDP) 3,921.
The candidates of the Democratic People’s Party (DPP) and the All Nigeria People’s Party (ANPP) were dissatisfied with the declaration of the appellant (Alhaji Usman Nasamu Saidu) as the winner of the election. They, therefore, respectively filed Petitions No. KB/EPT/GOVA/2007 and KB/EPT/GOVJ2/2007. In due course, the respondents joined issues with the petitioners. Principally, the respondents were, the declared winner of the election, PDP and INEC together with about 319 of its various categories of staff it employed in the conduct of the election. Before hearing could begin in the consolidated petitions the lower Tribunal decided the preliminary objection raised by the appellant and the 3rd respondent/appellant. The preliminary objection challenged the competence of the petitions and the jurisdiction of the lower Tribunal to entertain same. In a ruling dated 12th, July, 2007, the preliminary objection was dismissed for lacking in merit. Another remarkable feature of the instant case before the lower Tribunal is that a pre-trial session was held in the petitions to chart a proper course for the conduct of the trial. In the course of the pre-trial conference, respective learned Counsel to the respective parties agreed to dispense with calling and cross-examination of witnesses. They opted for a modus operandi which only involved the adoption and placing reliance on the written depositions annexed to the petitions and the replies thereto.
During the course of the trial respective learned counsel to the parties adopted and relied on the depositions of their various witnesses. All documents sought to be relied on were tendered from the bar and admitted in evidence. After this wholesome exercise respective learned counsel filed and exchanged written addresses. These written addresses were adopted and relied on by respective learned counsel on 8th October, 2007, when the matter was adjourned to 20/10/07 for judgment.
In a very well considered judgment, the lower Tribunal upheld petition No. KB/EPT/GOV/1/2007 in part and dismissed petition No. KB/EPT/GOV./2/2007 in its entirety. In consequence of upholding part of petition No. KB/EPT/GOV/1/2007, the lower Tribunal nullified the election of the appellant and ordered INEC to conduct another Governorship election in Kebbi State. The lower Tribunal gave as its reason for nullifying and voiding the election that the 1st respondent then and appellant herein as not being qualified to contest the election.
Both the appellant, 3rd respondent/appellant and INEC were dissatisfied with the decision of the lower Tribunal and therefore each filed its respective appeal. Each of the appeals was on a number of diverse but kindred and related grounds. INEC filed its notice of appeal dated 23/10/07 on 24/10/07. This appeal contains 3 grounds of appeal with their particulars. The PDP, through learned counsel, Mr. Kola Awodein, SAN, filed its notice of appeal incorporating 11 copious grounds of appeal with copious particulars to go with. The appellant herein, through learned counsel Chief Wole Olanipekim, SAN filed a 19 ground notice of appeal dated 291/10/07 on of November, 2007. This one too contained very elaborate and copious particulars. Let me at this stage also remind myself that the DPP and its candidate at the election were also dissatisfied with the decision of the lower Tribunal of 20/10/07. In consequence of this, they also filed their notice of cross appeal dated 9/11/07 on 10/11/07. The cross appeal is predicated on 6 grounds.
In compliance with the rules of this court and the Practice Directions, respective parties filed their briefs of argument. From the 19 grounds of appeal, the appellant raised and argued the following 7 issues for determination They are: –
i. Considering the clear provisions of sections 177 and 182 of the Constitution of the Federal Republic of
Nigeria 1999 dealing with qualification and disqualification for election as Governor, read together with section 285 (2) of the same Constitution delineating the jurisdiction lower Tribunal and section 145(1)(a) of the Electoral Act, 2006, whether the lower tribunal has jurisdiction to entertain the petitioners’ petition as formulated and/or altogether – Grounds 2, 4, 5, 6 and 12.
ii. Having regard to the position of the petitioners as member of the Democratic Peoples Party respectively vis-a-vis their challenge to appellant’s sponsorship by and/or election on the platform of the Peoples Democratic Party (PDP), whether or not the petitioners are vested with the locus standi or the necessary cause of action to challenge the appellant’s election as the Governor of Kebbi State – Grounds 3 and 16.
iii. Whether or not the lower tribunal was not in grave error in holding that the appellant was not qualified to contest election into the office of Governor of Kebbi State on 14th April, 2007 and thereby nullifying his election Grounds 1, 5, 7, 8, 9, 10, 14, 15 and 17.
iv. Having rightly struck out ground 3 of the petition for failure of the petitioners/respondents to comply with the mandatory provisions of paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2006, whether or no the lower tribunal was not in grave error for failing to strike out the entire petition and/or for suo motu saving grounds 1 and 2 or the other grounds altogether – Ground 13.
v. Considering the clear provisions of section 146 (1) of the Electoral Act 2006, whether the lower Tribunal was not in serious error to have nullified the Election of the appellant – Ground 11.
vi. Having regard to the pleadings and evidence before the lower Tribunal, as well as the circumstances of this case, whether the lower Tribunal was not wrong and perverse in its judgment – Ground 19.
vii. Having regard to the fact that five Justices sat at the lower Tribunal and two of them did not sign the judgment of the lower Tribunal, whether or not the said judgment is not a nullity – Ground 18.
The 3rd respondent/appellant (PDP) raised and argued the following issues in its brief of argument. They are: –
i. “Whether or not the Honourable Tribunal was right in not striking out the petition as wholly incompetent having found that the petitioners/respondents did not state the scores of all candidates that took part in the Governorship election in Kebbi State.”
ii. “Whether or not any issue arose from the pleadings as to whether exhibit P6 was the membership card of the 3rd respondent and whether or not the said exhibit P6 defined any issue between the parties”
iii. “Whether or not the Tribunal was right in holding that the 1st and 2rd respondents alleged in their pleadings that the 3rd respondent was not a member of the PDP (appellant) at the time he was sponsored by the PDP. If the answer is in the negative whether or not the Tribunal was competent or had jurisdiction in the circumstances to consider the said allegation as the Tribunal did.
iv. “Whether or not the issue of jurisdiction properly raised before the Tribunal was caught by issue estoppel”
v. “Whether or not the Tribunal was right in holding in all the circumstances that the 3rd respondent was not qualified to contest the election”
vi “Whether or not the Tribunal had jurisdiction to entertain the complaint regarding invalid substitution and nomination and in holding that the 3rd respondent was illegally placed on the ballot papers”
vii. Whether or not the Tribunal was right in voiding the election of the 3rd respondent as it did and ordering the holding of a fresh election.”
The 4th respondents/appellants (INEC and 317 others) formulated and argued 5 issues for determination. They are:
1) Whether the issue raised by the petitioners pleadings was issue of double nomination or membership of PDP (Ground 1).
2). Whether a trial court can be functus officio on issue of jurisdiction even on different grounds from the ground earlier argued or canvassed and ruled upon (Ground 2).
3). Whether there were facts before the Tribunal in proof of the fact that the 3rd respondent acquired membership of PDP after he was sponsored by the party (Grounds 3, 4, 5, & 6).
4). Whether the disqualification by the lower Tribunal of the 3rd respondent as was done in the instant case is on account of constitutional disability (Grounds 7 & 8).
5). Whether the consequential order of bye-election in all the circumstances of this case was not perverse (Ground 9).
On their own part, the 1st and 2nd respondents/cross-appellants, while replying to the appellant’s brief formulated and argued the following issues for determination in this appeal. They are:
i. Considering the clear provisions of sections 177, 182 and 187 of the Constitution of the Federal Republic of Nigeria, 1999 and sections 34, 36, 38, 144 and 145 (1) (a) of the Electoral Act, 2006, and evidence led, whether the trial Tribunal acted within its jurisdiction to hold that the 1st respondent “was at time of the election not qualified to contest the election”, held on the 10th day of April, 2007 into the office of Governor of Kebbi State. [Grounds 1, 2, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16 and 17] (argued as issues I, II, III and IV in the 1st respondent/appellant’s brief of argument dated 30th November, 2007)
ii. Whether the tribunal rightly came to the conclusion that the petitioners/respondents/cross-appellants proved their case for nullification of the return of 1st respondent/appellant at the election of l0th April, 2007 in the light of section 146 (1) of the Electoral Act, 2006. [Grounds 11, and 19], argued as Issue Nos. V and VI in the V respondent/appellant’s brief of argument dated 30th November, 2007.
iii. Having regard to the fact that five justices sat at the lower Tribunal and two of them did not sign the judgment of the lower Tribunal, whether the judgment is a nullity.
Before now, I had very closely considered the various grounds of appeals and cross-appeal of the respective parties. Let me say that I find ground 8 of the appellants’ grounds of appeal quite interesting and central to a proper determination of this appeal. Because of its centrality and cornerstone effect, I wish to set it out in full along with all its particulars.
The lower tribunal misdirected itself in law and also came to a perverse decision when it held thus: –
“By the petitioners’ pleading in paragraph 16 (xviii) that the 1st respondents’ membership card of the 2nd
respondent is dated 10/2/07, the petitioners are taken to have put in issue the fact that respondent became a member of the 2nd respondent as at that date. And by the respondents’ reply in paragraph 7(xiii) denying that the membership card of the 1st respondent is the one pleaded. The respondents are taken to have joined issues. What remains is a matter of proof. While the petitioners tendered and relied on exhibit P6 as evidence of the PDP membership card of the 1st respondent supported by the evidence of Alhaji Amino Umar D. Zamawa, no evidence is tendered for the 1st and 2nd respondents to support their pleading in paragraph 7(xiii). That paragraph is deemed abandoned. We have ourselves seen exhibit P6. It bears the photograph of the 1st respondent and the date and number of the card pleaded is on it. The respondents never took objection to exhibit P6. They couldn’t have as it is a certified document from INEC. The result is that, there is evidence on one side of the scale and none on the other side.
In otherwords, after the petitioner called evidence on this issue, the burden of proof shifted to the respondents by virtue of Section 137(2) of the Evidence Act Cap 112 LFN 1990.
Once as in Petition No. 1 a case has been put up that require an answer from the 1st and 2nd respondents, they cannot run away from that fact by simply ignoring it. The 1st respondent was bound to explain the fact that the membership card pleaded is not his. He ought to explain when he became member of the PDP. Exhibit P3 shows he was substituted for the 2nd respondents’ initial candidate on 5/2/07. His membership card of the 2nd respondents proved before us bears the 10th of February, 2007. Exhibit P8, his nomination form bears 9/2/07. All these coupled with the fact that by exhibit P4, the 1st respondent had been nominated by the ANPP as its nag bearer in Kebbi State and his admission of this fact he requires to say more than merely saying that he left that party long ago.
True, exhibit R shows he left ANPP on the 2/2/07 1st respondent ought to say when he joined the PDP as that is a matter of constitutional importance that is, he ought to belong to the political party that sponsored him. Our view is that the 1st respondent did not discharge the burden that shifted to him. If exhibit P6 is not evidence that be became a member of the PDP as at 10/2/07 as alleged by the petitioners, he was bound to say so. That evidence must emanate from the respondents. They cannot afford to keep sealed lips or expect the Tribunal to provide that evidence on their behalf. We are supposed to be an unbiased umpire. In the absence of any explanation, we have to accept that evidence of the petitioners that exhibit P6 dated 10th February, 2007 is evidence of the date 1st respondent became a member of the PDP.”
PARTICULARS OF MISDIRECTION
i. In paragraph 16(xxiii) of the petition, petitioners aver that the purported membership card, which the lower Tribunal heavily relied upon, does not belong to the 1st respondent/petitioner.
ii. In paragraph 16(xxiv) petitioners aver that the membership card pleaded by them (exhibit P.6) does not bear the name of the 1st respondent/appellant but that of Saidu N. Usman Darkingari.
iii. The evidence relied upon by the lower Tribunal (if any) to hold that exhibit P6 belongs to the 1st respondent/appellant is contrary to the petitioners’ pleadings.
iv. It was not established before the lower Tribunal that membership card was issued to the 1st respondent/appellant on the day he joined Peoples Democratic Party (PDP).
v. It was not in the pleadings or evidence and statement of witnesses on oath of the Petitioners that any membership card of the Peoples Democratic Party (PDP) was issued to the 1st respondent/appellant on the day he joined the said party.
vi. It was not in the pleadings or evidence before the lower Tribunal that membership card cannot be issued to a Peoples Democratic Party (PDP) member after the date he joined the party.
vii. It was not in the pleadings or evidence of the Petitioners that 1st respondent/appellant joined the Peoples Democratic Party (PDP) on a particular day or 10th February, 2007.
viii. No onus was shifted to the 1st respondent/appellant to establish paragraphs (iv), (v), (vi) and (vii) supra.
ix. The lower Tribunal merely speculated that exhibit P3 (A) dated 5/02/07 was made before applicant became a member of PDP.
Very closely related to the above said ground 8 and equally of great relevance arc grounds 4 and 5 of the 3rd respondent/appellant’s grounds of appeal. For good effect, I would also set them out in full
as follows:
(4) The Honourable Tribunal erred in law when it held as follows: –
By the petitioners’ pleading in paragraph 16 (xviii) that the 1st respondents’ membership card of the 2nd
respondent is dated 10/2/07, the petitioners are taken to have put in issue the fact that 1st respondent became a member of the 2nd respondent as at that date. And by the respondents’ reply in paragraph 7(xiii) denying that the membership card of the 1st respondent is the one pleaded, the respondents are taken to have joined issues. What remains is a matter of proof.”
PARTICULARS:
a) On the pleadings the 1st and 2nd petitioners/respondents as well as the appellant and the 3rd respondent were agreed that exhibit P6 is not the PDP membership Party card of the 3rd respondent.
b) There is no dispute between the appellant and the 1st and 2nd petitioner/respondents that exhibit P6 is not the PDP membership card of the 3rd respondent/petitioner.
c) There was absolutely no issue in the circumstances and the Tribunal erred in holding to the contrary.
d) The reliance placed on the Exhibit P6 by the Tribunal to determine any matter at all was in the circumstances wholly unjustified and entirely without basis.
e) The conclusion was in the circumstances perverse.
(5) The Honourable Tribunal erred in law when it held as follows: –
“Once as in Petition No. 1 a case has been put that require an answer from the 1st and 2nd respondents. They cannot run away from that fact by simply ignoring it. The 1st respondent was bound to explain the feel that the membership card pleaded is not his. He ought to explain when he became member of the PDP… His membership card of the 2nd respondent proved before us bears the 10th of February 2007 … 1st respondent ought to say when he joined the PDP as that is a matter of constitutional importance that is, he ought to belong to the political party that sponsored him. Our view is that the 1st respondent did not discharge the burden that shifted to him. If exhibit P6 is not evidence that he became a member of the PDP as at 10/2/07 as alleged by the petitioners, he was bound to say so”
PARTICULARS:
a) A careful reading of paragraph 16 (xviii), (xxiii) and (xxiv) of 1st and 2nd petitioners/respondents’ pleadings show that there was no issue joined as to the date the 3rd respondent became a member of PDP.
b) The 1st and 2nd petitioners/respondents never pleaded that the 3rd respondent became a member of the PDP on the 10th day of February, 2007.
c) The case of the 1st and 3rd respondents/petitioners was that the time and manner 3rd respondent procured his nomination from the PDP disqualified him from contesting the election being double nomination as he was still in ANPP.
d) The Tribunal had itself rightly held at pages 33 and 34 of the Judgment that the case of the petitioners is that the 3rd respondent went into the election sponsored by, both the PDP and ANPP.
e) The Tribunal had also held that there was no case of double nomination and was obliged to dismiss the case in the circumstances.
f) In so holding, the Tribunal was making a case for the 1st and 2nd petitioners/respondents different from the case they made which it had no jurisdiction to do.
g) There was absolutely no burden on the 3rd respondent in the circumstances.
From the appellants’ brief of argument, learned counsel Chief Wole Olanipekun SAN, formulated his issue No.3, as set out above, from his ground 8 as well as grounds 1, 5, 7, 9, 10, 14, 15 and 17. It also appears to me that issues Nos. 2 and 3 in the brief of the 3rd respondent/appellant, were principally distilled out of grounds 4 and 5 of its notice and grounds of appeal. I do not think that the issues formuated by INEC are as profound as those ably formulated by learned counsel Chief Olanipekun SAN and Mr. Kola Awodein SAN.
In arguing this appeal, learned counsel Chief Olanipekun, SAN elected to argue his issues 1, 2 and 3 together. In due course, I would consider those arguments of the learned SAN that I find pungent and greatly helpful to a just determination of this appeal. In an effort to convince this court that the appellant contest the Kebbi State Governorship Election, Chief Olanipekun SAN, argued, and then submitted that the lower Tribunal was patently wrong in holding that the appellant was not qualified to contest the election. He supported this submission by maintaining that there is no controversy in this case that Section 177 of the 1999 Constitution presents the grounds for qualification for election to the office of Governor while Section 182(1) of the Constitution specifies grounds for disqualification of a person for election to the office of a Governor. Learned counsel reproduced these 2 Sections of the Constitution and argued further that the appellant qualified for election to the office of Governor of Kebbi State under and by virtue of S.177 of the Constitution and was not at all disqualified on any of the grounds
set out and provided under S. 182 of the Constitution.
In tacking one other crucial and significant aspect of this appeal Chief Olanipekun, SAN pointed out that it is apt to note that the pleading of the petitioners/respondents in this case was not to the effect that the appellant was disqualified from contesting the election under Section 177 or 182 of the Constitution. According to learned counsel rather, the unmistakable contention of the petitioners/ respondents as he can be distilled from paragraph 16 of the petition was that the Appellant was not qualified by reason of the alleged non-compliance with some provisions of the Electoral Act. He then remarked that a careful perusal of the above said paragraph 16 of the petition is bound to provide a lucid appreciation of the point he was, making here.
While referring to lines 16 to 1 at pages 1551 to 1552 of the record of appeal, part of the judgment of the lower Tribunal. Learned counsel submitted that the lower Tribunal should have per-emptorily dismissed the petition on the allegation of non-qualification of the appellant made by the petitioners/respondents on the basis that the allegation having been premised on non-compliance with the Electoral Act could not be a basis for presentation of election petition under S.145 (1) (a).
Learned counsel, Chief Olanipekun, SAN queried and sought to find answer as to in the petition did the petitioners/respondents plead that the appellant as not qualified by the combined effect of Sections 145(1) (a) of the Electoral Act and S. 177 (c) of the 1999 Constitution. He then conceded that a party is not enjoined to plead statutory provisions, but must aver to facts that could properly situate the statutory provision within the ambit of the case pleaded by him. He supported this explanation with the case of A.B. U. Zaria v. Molokwu (2004) All FWLR (Pt.238) 664 at 677; (2003) 9 NWLR (Pt.825) 265 and quoted extensively from the judgment of this Court in the case and further relied on the decision of the Supreme Court in Yusuf v. Obasanjo (2004) All FWLR 1884 at 1938; (2003) 16 NWLR (Pt. 847) 554 per Tobi, JSC, that pleading erect the facts which a party relies in proving its case at a civil trial.
Learned counsel, Chief Olanipekun, SAN maintained his opinion that there is nothing in the petition to justify the conclusion of the lower Tribunal that the appellant was not qualified by the combined effect of the provisions of Sections 177(c) of the Constitution and 145(1) (a) of the Electoral Act, 2006, which decision he also feel was most untenable and indefensible in law. Upon this mindset of learned counsel, he submitted that what could pass for the combined effect of Sections 177 (c) and 145(1) (a) is that a person would be held not to be qualified to contest the election if at the time of election he was not a member of a political party and/or was not sponsored by the political party. Related to this issue, learned counsel volunteered to state what he understood to be the case of the petitioners/respondents. According to him, in the circumstance of the instant appeal, the petitioners/respondents’ case was not that at the time of the election on 14th April, 2007 that the appellant was not a member of the PDP or that he was not sponsored by the party so he then maintained that the lower Tribunal was unarguably wrong in its application or interpretation of S. 177, (c) and S. 145 (1) (a) (supra).
In a sudden twist, learned counsel referred to pages 1557 to 1558 of the record of appeal and this time around gave what he would consider to be the fulcrum of the judgment of the lower Tribunal. According to Chief Olanipekun, SAN the Tribunal was of the view that the appellant was sponsored to contest the 14th April, 2007 Governorship Election for Kebbi State before he became a member of the PDP He then dismissed the reliance the Tribunal and placed on the party membership card of the appellant, as according to him even the petitioners pleaded that the same card did not belong to the appellant. He maintained the view that a party membership card cannot constitute a ground for qualification or disqualification within the provisions of Sections 177 and 182 of the 1999 Constitution.
Learned counsel, Chief Olanipekun, SAN drew the attention of this court and urged it to note that in paragraphs 3 and 13 of the petition, it was averred that the appellant was the candidate of the PDP at the election and the appellant admitted this fact. It was against this that learned counsel submitted that the nomination of the appellant as the candidate of the PDP in the election was a non-issue and by this reason the lower Tribunal was wrong to have held that the appellant was not qualified to contest the election on the alleged basis that he was not a member of the political party that sponsored him at the time of the sponsorship as different from the time of the election.
It is also the view of the learned SAN that the lower Tribunal had no justification on the evidence on record to hold that the appellant was not a member of the PDP at the time of his sponsorship. In deciding as it did, the lower Tribunal, according to Chief Olanipekun, made a different case for the petitioners/respondents than was supported by the pleadings and the evidence on record.
Learned counsel reproduced the averments in paragraph 16(xviii) and I6(xxiii) of the petition and the written statement on oath of Alhaji Aminu Umar O. Zamawa and maintained that it was beyond argument evidence can only be given in respect of facts pleaded and referred to the Supreme Court decision in Mbani v. Bosi (2006) ALL FWLR (Pt. 323) 1615 at 1624; (2006) 11 NWLR (Pt. 991) 400 to submit that any evidence given in respect of facts not pleaded goes to no issue and added further that on the authority of Eze v. Lawal & Anor (1997) 2 NWLR (Pt. 487) 333 and Oshatoba v. Olujitan (2000) 5 NWLR (Pt. 655) 159, a judgment of a court must be based on only legal evidence before it, i.e. on all that was pleaded and supported by clear evidence or simply put judgment must be based and confined to the issues raised before the court.
Chief Olanipekun, SAN, explained that the lower Tribunal placed reliance on the membership card exhibit P6 on the premise that the photograph of the appellant and the date of membership pleaded could be seen on the card. He then argued that the Tribunal did not countenance the fact that the names on the membership card are clearly different from the names of the appellant. In another argument, learned counsel Chief Olanipekun, SAN, maintained that there is no column for the date of issuance of exh. P6. He expressed surprise how the lower Tribunal came to l0th February, 2007 as the date of issuance when there is no such provision within the printed columns of the card (exh. P6).
Learned counsel Mr. Kola Awodein, SAN argued his issues 2, and 3 together, which issues are tied up to his grounds 4 and 5 of grounds of appeal. Most of the issues argued by Mr. Awodein, SAN have been adequately coverned in the arguments of Chief Olanipekun SAN. However, I wish to record what I consider to be some of the additional features in the brief of Mr. Awodein, SAN. After explaining that it is trite law that the very essence of pleadings is to enable the court and the parties in the case to know from the joinder of issues the exact case which the parties have to meet at the hearing of the dispute between them, he submitted that on the basis of the pleadings of the pat1ies both were agreed that the purported membership card No. 1428620 (exh. P6) was not the 3rd respondent’s (appellant herein) membership card of the PDP. He submitted further that exb.P6 did not define any issues between the parties and therefore could not be relied upon in any way by the Tribunal and could also not properly be the subject of any interpretation by the Tribunal.
Learned counsel Mr. Awodein, SAN took pains to contend that the lower Tribunal’s finding shows a gross misapprehension of the true meaning and effect of the word “sponsor” and submitted that the word “sponsorship” is distinct and different from the word “nomination”. He added further that sponsorship is a process which occurs for a duration of time whilst the issue of nomination/substitution is an event.
Learned counsel to INEC and others, Mr. Yahaya Mahmud merely got to say that the facts before the lower Tribunal are: –
i. the 3rd respondent (now appellant) left the ANPP on the 2nd of February, 2007.
ii. his name was forwarded as a substituted candidate on the 5th February, 2007; and
iii. he formerly registered on the 9th or 10th of February, 2007 and depose to the affidavit regarding his nomination on the 12th February, 2007.
Having regards to these, Mr. Mahmud submitted that all were clearly the 60 days period to the date of election and therefore the appellant was properly nominated and sponsored by the PDP. He added further that the operative words in S. 177 of the 1999 constitution are: –
i. Membership of a party; and
ii. Sponsorship by a party and any other facts are not based on constitutional ability or otherwise.
On the basis of these explanations and submissions, learned counsel Yahaya Mahmud maintained that the consequential order of the Tribunal nullifying the election and ordering a bye-election was perverse.
In arguing against this appeal, learned counsel to the 1st and 2nd respondents, Mr. Rickey Tarfa, SAN touched on the issue of qualification to contest an election as a constitutional issue under S.177 of the Constitution and as an issue of non-compliance with provisions of the Electoral Act, 2006. He explained that the appellant considered that invalid nomination amounted to non-compliance; and such non-compliance must be pleaded as substantially affecting the result of the election if it must be given any weight. This position in the case of the appellant, according to Mr. Tarfa SAN, is highly untenable as invalid nomination implies non qualification to contest an election even if a candidate is qualified to hold the elective office in this case, the office of a Governor. He argued that the 1999 Constitution expressly provides that in respect of Governorship election, a candidate is not deemed validly nominated unless he meets the mandatory requirements for qualification under Sections 177 and 187. He added further that membership of a political party which sponsors a candidate for election as Governor is an obligatory requirement for qualification by virtue of S.177 (c) of the Constitution. He then explained that the requirement stipulated in S.177 (c) is nowhere re-enacted in the Electoral Act, 2006 but it is incorporated as a condition precedent to valid nomination. Learned counsel Mr. Tarfa, SAN also argued that a failure to satisfy a constitutional requirement cannot be an issue that could be only cognizable as a pre-election matter. Any such suggestion, as made by the appellants, Mr. Tarfa, SAN said was unconvincing and unreasonable. He referred to the case of Anazodo v. Audu (1999) 4 NWLR (Pt. 600) 530 at 544 where this court as per Musdapher, JCA (as he then was) held that if a candidate is not validly nominated as required by law, he cannot be said to have been qualified to contest the election.
Still on this issue of qualification, learned counsel argued that the Electoral Act, 2006 did not re-enact, abridge or modify the extant and express and unambiguous provisions of the Constitution in sections 177, 182, and 187 as to the qualification and disqualification of any person to be elected into the office of a Governor. He argued further that a candidate for a governorship election must have been validly nominated at the initial stage of being sponsored and nominated by his party and added that it would amount to lawlessness for a political party to nominate and present a candidate for an election as its candidate but who had not acquired its membership.
According to learned counsel, it is settled law in Nigeria that election is not an event but a process. This process involves all the steps to be taken by candidates and/or their political parties and the duties of INEC under Part IV of the Electoral Act. See INEC v. Onyibah & Ors 14 NWLR (Pt. 892) 92 at 123. It was also the view of Mr. Tarfa, SAN that when a person was alleged not to be qualified to contest an election, this is direct reference to both constitutional qualifications to be elected and statutory qualifications of a person contesting election to be placed on the ballot under S.40 of the Electoral Act, 2006.
Turning to the issue of pleadings, learned counsel explained that in the circumstances of this case, the appellant, as respondent before the lower Tribunal pleaded facts which he never bothered to prove such as in paragraph 7 (xiii) of the reply wherein it was alleged that the membership card attached to 1st respondent’s nomination form and submitted to INEC bearing 10th February, 2007 was not the authentic membership card. It is also the argument of the 1st and 2nd respondent that the appellant did not appeal against the finding of the lower Tribunal that the respondent/appellant abandoned the only averment pleaded in respect of the issue at paragraph 7(xiii) of the joint reply to the petition. He urged the court to discountenance all the arguments on facts that were never pleaded nor was evidence led on them but surfaced as arguments from the bar.
On the evidence before the lower Tribunal, learned counsel Mr. Tarfa, SAN pointed out that in this case parties relied solely on documentary evidence in proof of their respective positions on the matter for adjudication. He maintained that the lower Tribunal ought to juxtapose the documents placed before it to see if they bear out the facts pleaded in support of the case put forward by the parties. He referred to the case of Tangale Traditional Council v. Fawu (2001) 17 NWLR (Pt. 742) 293 at 330 B-C. He concluded arguments on this point by submitting that exhibit P6 tendered before the lower Tribunal by the petitioners (1st and 2nd respondents) herein not having been countered was rightly accorded credibility so as to establish whether the 1st respondent/appellant was at the time of his nomination not a member of the PDP and thereby failing to satisfy and violating the qualification to contest for the office of a Governor under S. 177 of the Constitution.
On exhibit P6, Mr. Tarfa, SAN drew the attention of the court that the appellant was the same person who submitted his membership card (exhibit P6) to INEC as part of his affidavit on oath in support of his particulars as a candidate. He argued further that the courts are normally disposed to accepting a statement as an admission where same is against the maker’s interest, on the ground that no man would declare or state anything against himself unless it were true. He referred to the cases of D.P.P v. Kilbourne (1973) AC 729 at 751 and Anigbogu v. Uchejigbo (2002) 10 NWLR (Pt. 776) 472 at 487 F – H and submitted that the truth of the contents of exh. P6 cannot be lightly impugned by the maker who made it on oath. He urged this court to resolve all issues on inadequacy of pleadings or the probative value placed on exh. P6 by the Lower Tribunal against the appellant.
Before I go further to consider the foregoing submissions and arguments of respective learned counsel, I wish to underscore the case of the 1st and 2nd petitioners/1st and 2nd respondents in this appeal before the lower Tribunal and the actual finding and judgment of the lower Tribunal. Before the lower Tribunal the petition was that the appellant herein was not validly elected as the Governor of Kebbi State because he was not qualified to be so elected. Some of the key averments in the case of the petitioners were in paragraph 16 of the Petition No. KB/EPT/GOV./I/2007. They are as follows: –
16. The various acts and omissions of the respondents jointly and severally render the first respondent unqualified to contest the election.
PARTICULARS
i. …
ii. …
iii. …
iv. …
v. …
vi. …
vii. …
viii. …
ix. The time and manner the first respondent procured his purported nomination from the third respondent disqualified him from contesting the election.
x. …
xi. …
xii. The times fixed and the procedure prescribed by the Electoral Act, 2006 for merger, nomination substitution of candidates and giving of notices were not complied with by the first to the third respondents.
xiii. Failure to comply with these mandatory requirements renders the nomination and participation of the first respondent in the election invalid.
xvi. The 1st respondent was purportedly substitution, for the former candidate of the 2nd respondent; vide a letter to the Chairman of the 3rd respondent dated 5th February, 2007.
xv. …
xvi. …
xvii. The 1st respondent’s Form E.C. 4B (VI) being his form for nomination of governor was dispatched by the 3rd respondent on 6th February, 2007 whilst same was filed by the 1st respondent and dated 9/2/07.
xviii. 1st respondent’s purported membership card 1428620 for the 2nd respondent was issued on the 10th of February, 2007 after his purported substitution and nomination by 2nd respondent.
xix. …
xx. …
xxi. …
xxii. …
xxiii. …
xxiv. …
xxv. …
xxvi. The petitioners plead the following documents and shall rely on them at the hearing of this Petition:
a) Letter of substitution dated 5th February, 2007 addressed by the 2nd respondent purportedly substituting the 1st respondent for the former candidate.
b) INEC Form E.C. 4B (V1) Form for nomination for Kebbi State dated 9/2/07 filed by the 1st respondent.
c) INEC Form CF 001 being the affidavit in support of personal particulars of persons seeking election to the office of Governor deposed to by the 1st respondent allegedly on 12th February, 2007 together with the annexure attached thereto.
xxvii. …
xxviii. …
xxix. …
xxx. …
xxxi. …
xxxii. …
In support of these averments, a number of documents, including the statement on oath of one Alhaji Aminu Umar D. Zamawa, were freely tendered from the Bar without any objections whatsoever to prove the case of the petitioners before the lower Tribunal. The direct response of the appellant, then as 1st respondent (jointly filed on his behalf and his political party PDP) can be seen in paragraph 7 (xiii). It goes thus: –
7(xiii) The 1st respondent has authentic PDP membership card issued to him by the 2nd respondent as against the purported membership card listed in the petition.”
At the trial of the petitions, the lower Tribunal also took written addresses from respective learned counsel. At the conclusion of the trial, the Tribunal arrived at its verdict. The most crucial finding runs from page 1556 – 1558 of the record of appeal. Because the complaints of all the appellants from the various grounds of appeal centre around this finding, I wish to set it in full thus: –
“By the petitioners’ pleading in paragraph 16 (xviii) that the 1st respondents’ membership card of the 2nd
respondent is dated 10/2/07, the petitioners are taken to have put in issue the fact that 1st respondent became a member of the 2nd respondent as at that date. And by the respondents’ reply in paragraph 7 (xiii) denying that the membership card of the 1st respondent is the pleaded, the respondents are taken to have joined issues. What remains is a matter of proof. While the petitioners tendered and relied on exhibit P6 as evidence of the PDP membership card of the 1st respondent supported by the evidence of Alhaji Aminu Umar D. Zamawa, no evidence is tendered for the 1st and 2nd respondents to support their pleading in paragraph 7 (xiii). That paragraphs is deemed abandoned. We have ourselves seen exhibit P6. It bears the photograph of the 1st respondent and the date and number of the card pleaded is on it. The respondents never took objection to exhibit P6. They couldn’t have as it is a certified document from INEC. The result is that, there is evidence on one side of the scale and none on the other side. In other words, after the petitioner called evidence on this issue, the burden of proof shifted to the respondents by virtue of Section 137(2) (of the Evidence Act which provides:
“137(1) …
(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.”
Once as in petition No.1 a case has been put up that require an answer from the 1st and 2nd respondents, they cannot run away from that fact by simply ignoring it. The 1st respondent was bound to explain the fact that the membership card pleaded is not his. He ought to explain when he became member of the PDP. Exhibit P3 shows he was substituted for the 2nd respondents’ initial candidate on 5/12/07. His membership card of the 2nd respondent proved before us bears the 10th of February, 2007. Exhibit P8, his nomination form bears 9/2/07. All these coupled with the fact that by exhibit P4, the 1st respondent had been nominated by the ANPP as its’ flag bearer in Kebbi State and his admission of this fact he requires to say more than merely saving that he left that party long ago. True, Exhibit R9 shows he left ANPP on the 2/2/07, 1st respondent ought to say when he joined the PDP as that is a matter of constitutional importance that is, he ought to belong to the political party that sponsored him. Our view is that the 1st respondent did not discharge the burden that shifted to him. If exhibit P6 is not evidence that he became a member of the PDP as at 10/2/07 as alleged by the petitioners, he was bound to say so. That evidence
must emanate from the respondents. They cannot afford to keep sealed lips or expect the Tribunal to provide that evidence on their behalf. We are supposed to be an unbiased umpire. In the absence of any explanation, we have to accept that evidence of the petitioners that exhibit P6 dated 10th February, 2007 is evidence of the date 1st respondent became a member of the PDP.
We hold that from the facts placed before us, he became member of PDP by virtue of membership card No.4428620 dated 10/2/07. In other words, he became a member of the PDP as at that date. That therefore means exhibit P3(A) dated 5/2/07 which is evidence that he was substituted for the PDP’s initial candidate was made before he became member of the PDP.”
From the arguments of respective learned counsel, this appeal, in my view, arose out of the complaint of the various appellants on the nature of the pleadings in relation to the evidence tendered and admitted by the lower tribunal as well as its evaluation and finding on same.
It is trite that pleadings have as their primary function defining, and delimiting with clarity and precision the real matter in controversy between the parties and also serves as the basis upon which the court will be called to adjudicate between them. It is equally trite that pleadings are binding between the parties inter se and the court. No decision of a court shall be founded outside the pleadings of the parties before it. There is also a relationship between pleadings and evidence to be adduced at the trial of an action. According to the decision in C.B.N. v. Jidda (2001) 5 NWLR (Pt. 705) 165, where evidence is not fully aligned with the pleadings it goes to no issue and would serve no useful purpose to the claimant.
In the instant action, the pleadings of the petitioners before the lower court in paragraph 16 made a general averment and gave specific averments as particulars. Particulars in pleadings are meant to inform the other side the nature of the issue he has to meet and also to prevent the other side from being taken by surprise. Pleadings are mere assertions or even sometimes allegations, which must be proved by evidence. At a trial, the evidence that is required is any specie of proof or probative matter legally presented on an issue in dispute. This is usually done by the act the parties and through the medium of witnesses, records, (private or public), documents exhibits etc for the purpose of inducing belief in the mind of the court on any issues in controversy between the parties. In Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747, it was held that proof is a process by which the existence of facts is established to the satisfaction of the Court.
What was before the lower Tribunal, amongst others, was whether the appellant was qualified or not to contest the Governorship election of April 10, 2007. The lower Tribunal relied on exh. P6 and the written statement on oath of one Alhaji Aminu Zamawa to decide that the appellant was not qualified and in consequence of not being so qualified, the Tribunal went ahead to nullify his election as the Governor of Kebbi State.
It is not contested here that both exhibit P6 and the written statement of Alhaji Zamawa were lawfully received in evidence. None of the respondents before the lower Tribunal contested the relevance or indeed the admissibility of exh. P6 or the statement of Alhaji Zamawa. Learned counsel Chief Wole Olanipekun, SAN made reference to paragraph 16 (supra) and maintained that it did not amount to sufficient pleadings of non-qualification of the appellant under S.177 of the Constitution or disqualification to contest the Governorship election under S.182 of the Constitution. I have underscored and considered the importance and value of pleadings in civil trials. Having done that, I realized that one or two things must be borne in mind in this situation. First, the adequacy or otherwise of pleadings must depend on the circumstances of any particular case or matter. Secondly, in election matters which are sui generis in character and outlook, certain general rules of practice and procedure, by law and practice are not fully applicable or have restricted or limited application. See the Election Tribunal and Court Practice Directions of April, 2007 made pursuant to S.285 (3) of the Constitution of the Federal Republic of Nigeria. These Practice Directions introduced into our system of adjudication what is known in United States of America and Continental Europe (Civil Law jurisdictions) as the Front Loading System. This system seeks to engender a just, fair and speedy disposal of cases. There is urgency in election matters. That was why this system has been introduced. In the jurisdictions where this system has been operated over the years and has been found fully suitable it has been credited securing fairness in the administration of justice. It has also been found to ensure the elimination of unjustifiable delay and expenses. Also, its declared objective of promoting the development of the law and aim of real ascertainment of truth in legal proceedings has well been achieved.
The front loading system of civil trial is still new in this country. It is at its infancy. We are yet to fully understand its real character and dynamics. I shall return to this issue later in this Judgment.
Suffice it to say here, that I do not agree that the pleadings in this matter have not been adequate or sufficient as none of the appellants raised the issue of pleadings not being adequate or specific before the lower court. Indeed, learned counsel Chief Olanipekun, SAN had this to say about the pleadings in the case of the petitioners at page 4 in his appellant’s brief in this court. It is paragraph 2.4.
“2.4 Despite the fact that the issues or allegation contained in the petition are wild and incredible, and frankly speaking, they are against all the established principles of electoral law and practice, the appellant and other respondents to the Petition, nonetheless, squarely, adequately and satisfactorily, joined issues with the petitioner by traversing and/or controverting every material allegation contained in the petition.”
The allegation in paragraph 16 of the petition is very clear i.e. the appellant, herein, was at the time of the election, not qualified to contest the election. This want of qualification as further alleged to have arisen from “the various acts and omissions of the respondents jointly and severally particulars of these acts or omissions of the respondents were given in the various sub-paragraphs of paragraph 16.
Still on the adequacy of pleadings, by the combined authority of the decisions in A.B.U. Zaria v. Molokwu (supra) and Yusuf v. Obasanjo (supra) the petitioners/respondents/cross-appellants were not under any specific obligation to particularly plead either S. 177 of the Constitution or S.145(1) (a) of the Electoral Act, 2006 or indeed or combination of them or the provisions of any other statutes.
It is enough for them to plead facts as would enable the Court/Tribunal to invoke any relevant provisions of the 1999 Constitution, the Electoral Act 2006, or any other statutory provisions. All judges are presumed to have knowledge of all the applicable laws in this country, not least the Constitution, the Supreme law in the Country. Let me emphasize here that S.177 (c) of the Constitution provides: –
“A person shall be qualified for election to the office of Governor of a State if –
(c) he is a member of a political party and is sponsored by that political party.”
In the instant case, the political party that was said to have sponsored the appellant was the PDP. It was a respondent to the petition. Its act of purported sponsorship was its own. There is no doubt that paragraph 16 of the petition did delimit or define the case of the petitioners against the respondents. Respective learned counsel to the respondents did not make out any issue at the lower court on the quality of pleadings. A party who opted or consented to a procedure adopted at the trial and infact suffered no injustice, as in the instant appeal it would no longer be open to him on appeal to say that the procedure was wrong. A party is not entitled to approbate and reprobate at the same time; he cannot be heard on appeal to make an about turn in pursuit of what he stood for in the trial, See lkeanyi v.A.C.B. (1991) 7 NWLR (Pt. 205) 626.
Whether the appellant was validly nominated and sponsored by the 3rd respondent/appellant in the circumstances of this matter is a very serious constitutional issue actionable in connection with the election either at pre-election stage or after the election depending upon when the constitutional disability came to the knowledge of the party seeking to challenge the qualification of the contestant to the relevant office of the declared winner of the election. This must be so because it is not unusual in this country for persons who seek to challenge some decisions of political parties to be expelled from the party. Once the enforcement of a provision of the constitution is involved, a right of action thereby cannot be extinguished by ordinary lapse of time. What I mean to say here is that when a person has been declared the winner of an election to the office of a Governor, he must throughout his tenure, remain having fulfilled all the constitutional requirements at the date of his nomination and sponsorship to contest that election. For example, it is laughable and ridiculous, when a political party by commission or omission
succeeded in nominating and sponsoring a candidate who did not possess the minimum educational requirement under the constitution and after having been declared winner of the election for such a person to now remember that he had to go to school for purpose of meeting that constitutional requirement. I cannot see any reason why such a serious violation of the Constitution would be viewed as a pre-election matter. Every citizen or the Republic of Nigeria has a right and indeed a duty to enforce the provisions of the Constitution if the enforcement of a particular of its provision affects his right or obligation.
Also, the submission of learned counsel Chief Olanipekun, SAN, that the combined effect of Sections 177(c): of the Constitution and 145(1) (a) of the Electoral Act, 2006 that a person would be held not to be qualified to contest the election if at the time of the election he was not a member of a political party and/or was not sponsored by the political party is, with the greatest respect to him, most inelegant, inaccurate and unconvincing. Just like in the previous example I gave above, it would amount to reading into those provisions of the Constitution and the Electoral Act a meaning that they could not possibly or reasonably bear and which would clearly lead to manifest absurdity. In my view, being a duly registered and card carrying member of a political party is a condition precedent that must be satisfied by a prospective candidate for election to the office of a Governor before he takes any steps at all towards his being nominated or sponsored by his political party. It is a gross violation and indeed an unconstitutional act by a political party to take steps to nominate or sponsor a candidate to contest election to the office of a Governor if that candidate had not acquired its membership before the date of the nomination. I think it is wrong, as argued by learned counsel Chief Olanipekun, SAN in paragraph 4.63 at page 31 of his brief, that the expression “at the time of the election” in S. 145(1) (a) envisages and contemplates that it is at the date of the election that a candidate for the election would need to satisfy the requirements of S.177 (c) of the Constitution. Where a constitutional issue, as in the present case is raised, the court must examine the issue closely to ensure that it is rightly treated. Furthermore, a constitutional issue, like the question of whether a person is qualified to contest a gubernatorial election under S. 177(c), is not only fundamental but must be disposed of as soon as it is raised to ensure that the Constitution which is the mother of all laws in the country is not breached or disregarded.
Having resolved the issue of pleadings against the arguments of the appellants, I wish to proceed to consider the issue of evaluation of evidence by the lower Tribunal.
A court or tribunal does not conjure evidence. It acts on admissible evidence produced before it. Once a document is received in evidence, and so marked, it becomes an evidence before the court and under the provision of S.91 (1) of the Evidence Act, the tribunal has a duty to evaluate the probative value of every documentary evidence tendered before it. In the instant case, the letter of the PDP of 5th February, 2007, addressed to INEC, substituting the appellant with its previous gubernatorial candidate, the political party (PDP) membership card and indeed all the other documents tendered from Bar without am objection constituted evidence.
It is part of the primary functions of a trial court to evaluate the evidence before it. In the instant case, there was no need for any assessment of creditability of witnesses as none was examined in-chief or cross-examined. Therefore evaluation here extends to a consideration of the totality of the evidence on any issue of fact in the circumstances of each case in order to determine whether the totality of the evidence supports a finding of fact which the party adducing the evidence seeks that the trial court should make. Evaluation of evidence equally involves its reviewing and criticizing as well as estimating same. See Bassil v. Fajebe (2001) 11 NWLR (Pt. 725) 592.
In the case of Mogaji v. Odofin (supra) at pages 94-95, the Supreme Court held that a proper evaluation of evidence in a civil case must involve at least the following: –
a) Whether the evidence is admissible;
b) Whether it is relevant;
c) Whether it is credible;
d) Whether it is conclusive; and
e) Whether it is more probable than that given by, the other party.
The court held further that after resolving the above 5 issues, the trial court must then invoke the applicable law to the case, if any, and then come to a final conclusion based on the evidence which he has accepted.
With this background and with all due respect to learned counsel, Mr. Awodein SAN, his argument that exhibit P6 did not call for examination, evaluation or for a finding to be made on it in the circumstance of this case lacks merit and is totally unacceptable when there is evidence from another document before the court that the appellant had accepted exh. P6 as his membership card. The lower tribunal was bound to do substantial justice and in doing so it was bound to evaluate and make inferences from any evidence that was relevant and validly tendered and admitted before it.
In paragraph 8 of the written statement of Alhaji Zamawa, it was stated thus: –
8. “I know as a fact that the purported nomination of the 1st respondent as its gubernatorial candidate predates his membership card as a member of the 2nd respondent.”
In INEC Form CFOO1 contained at page 294 of the record of appeal, the appellant gave the name of his political party as the PDP and the next question he answered on the Form was Party membership number. The answer he gave was; 1428620. The same question required him to “please attach a copy of the membership card”. All the answers on this Form CFOO1 were rendered on oath. The oath in this case was commissioned on the 12th February, 2007 before the Commissioner for Oaths, High Court of Justice, Kebbi State. It is the same photograph that is on Form CFOO1 that in on the Exh.P6. The number on exhibit P6 is also the same number given as 1428620 on Form CFOOI.
The argument that a party membership card cannot be evidence of qualification for purpose of nomination/sponsorship to contest a governorship election is puerile and highly untenable because INEC
requires that information and its particulars on its Form CFOO1.The attempt by learned counsel Mr. Awodein, SAN to show that there is a distinction between “nomination” and “sponsorship” in the con of S. 177 (c) of the Constitution and S. 145(1) (a) of the Electoral Act, 2006 is a very feeble and unconvincing venture.
In the case of P.P.A. v. Saraki (2007) 17 NWLR (Pt. 1064) 453, this Court held in effect that practically there is no significant difference between the 2 words. The submission of learned counsel, Mr. Yahaya Mahmud at page 17 of his brief that the operative words in Section 177 of the Constitution are: –
(a) “membership of political party” and (b) “sponsorship by a party” is correct. To this, it must also be added that membership of a political party is a sine qua non to qualifying or being qualified to contest an election to the office of a Governor.
It therefore, goes without saying that once an aggrieved party asserts in a petition that the person who was declared the winner of a gubernatorial election was not qualified to contest that election S. 177 of the Constitution has been put in issue and there is no further obligation on the petitioner to specifically plead S. 177 or other statutory provisions supplementing it in any manner whatsoever.
The argument advanced by learned counsel Mr. Tarfa, SAN at page 13 of his brief in reply to the brief of the appellant is apt and convincing my humble view. According to the learned SAN, the first hurdle for a governorship election candidate is the general constitutional qualification criterion which every prospective candidate must satisfy. He then added that only those candidates, who proceed to the next stage of actual nomination and sponsorship that would be qualified to contest the election, at which stage the Electoral Act becomes operative.
While still arguing this point, Mr. Tarfa, SAN maintained that the sections of the Electoral Act relating to nomination, withdrawal and/or substitution do not add to or subtract from the Constitutional qualification to hold office which a prospective candidate must satisfy. In addition to this, learned counsel referred to the case of Amaechi v. INEC & Ors. (Unreported) SC. 252/2007 now reported in (2008) 5 NWLR (Pt. 1080) 227, and submitted that a governorship candidate must have been validly nominated at the initial stage of being sponsored and nominated by his party. Learned counsel explained that a candidate cannot first be sponsored by a party and later acquire membership of the party, albeit before the date of election, as that would only promote lawlessness.
A lot of heavy weather had been made by both Chief Olanipekun, SAN and Mr. Awodein, SAN on the date of 10th February, 2007 and the signature as well as the names on exhibit P6. It is indeed correct that there are some names, date, signature, photograph and number etc on exhibit P6. In law, it is taken without any argument that a signature authenticates and validates an act, transaction or such other similar things. See Goodman v. Eban J. Ltd (1954) 1 ALL E.R 763. In the normal course of events, signatures are dated whether there is a specific requirement for dating or not.
According to Shorter Oxford English Dictionary 1st Edition Vol. 1 page 490 the word – “date” was defined among other definitions to means;
‘The specification of the time (and often place) of execution of a wriiting or inscription affixed to it.
The precise time at which anything takes place; …”
It is also part of our principles of practice and procedure that when a document is admitted in evidence it should be allowed to speak for itself. Every inscription on the document should attract the reasonable inference it deserves. In my view the date on exhibit P6 is relevant and it was meant to achieve a particular purpose. Though not directly in issue here, but nonetheless worthy of attention and remark is the fact that the constitution of the PDP in its Article 17.2(g) requires that there shall be a minimum of two years membership span for a member to be eligible to stand election into any party or public office unless the member is granted a waiver by the appropriate organ of the party. How then can this date or waiting period of 2 years be ascertained if the membership card or register of membership of the party does not indicate the date a particular member joined the party. It is such a notorious fact which is also
common knowledge that joining a political party is usually by open public declaration or by registration and issuance of membership card. The expression “card carrying member” is very notorious part of our political lexicon.
An appeal to this court is by way of a re-hearing under Order 7 rule 2 of the Court of Appeal Rules, 2007 but this does not entail retrying the action and taking fresh evidence. It only amounts to rehearing on the record and the duty of the appellant court at this stage is limited to evaluation of the evidence and drawing inferences from the primary facts. An appellate court can draw its inferences and conclusions on any evidence contained in documents. See Jadesimi v.Okotie-Eboh (1986) 1 NWLR (Pt. 16) 264.
It is not part of the duty of an appeal court to disturb the findings of fact made by a trial court except where the inferences from established facts are wrong or where the findings are perverse, unreasonable and/or do not flow or follow from the evidence adduced before the trial court.
Earlier on in this judgment, I alluded to fact that currently, trial of election matters are conducted by way of the Front Loading System. One of the concomitants of this system is the process of a pre-trial hearing where a number of issues are kind of sorted out and fully dealt with before the real or actual hearing of the matter. This feature is contained in rule 3 of our Practice Directions of 2007. In the instant case, a pre-hearing conference was held that the issues for trial were left at large and issues were not settled pursuant to rule 3 (7) (c) of the Practice Directions 2007.
Election petitions being special in nature must always be considered with some degree of liberality. Also, election petitions being sui generis are very important from the point of view of public policy. Because of the public policy consideration involved the duty of the election tribunal to hear and determine election petitions must be shorn of technicalities but rooted in substantial justice. It is no longer an avant garde that justice in this Country is not fettered by technicalities but founded and guided by a desire to do and secure the attainment of substantial justice. Sec Nwobodo v. onoh (1984) 1 SCNLR 1 and Amaechi v. INEC (2008) 10 WRN 1 at 114 where Oguntade, JSC held that: –
“A court must shy away from submitting itself to the constraining bind of technicalities. I must do justice even if the heavens fall. The truth of course is that when justice has been done the heavens stay in place.”
I have earlier on in this judgment referred to the crucial finding of’ the lower Tribunal at pages 1556 -1558 of the record based on the evaluation placed on exhibits P3 and P6, and the statement of Alhaji Aminu Zamawa, more particularly paragraph 8 thereof, I agree that the evidence so given by the petitioners at the trial was neither challenged by cross-examination nor was any contrary evidence produced throughout the trial.
In the light of the evidence, adduced in this case, it is my considered opinion that the lower tribunal properly evaluated the evidence adduced before it and came to the correct conclusions. It too follows therefore that when a trial court unquestionably evaluates the evidence and appraises the facts of a case, it is not the business of an appellate court to substitute its own views for the views of the trial court. I therefore hold that the appellant was not qualified to contest the governorship election for Kebbi State as he had not become a member of the political party at the date of his purported nomination to contest that election by the said patty. The decision of the lower tribunal that the appellant became a member of the PDP on 10th February, 2007 cannot be faulted. I am fully satisfied that this crucial finding is well founded on the pleadings of the parties and the evidence adduced before the Tribunal. I hereby uphold and affirm the judgment of the Tribunal on Election Petition No. KB/B EPT/GOV./I/2007 of 20th October, 2007. I would also nullify the election of the appellant as the Governor Kebbi State. In consequence of this nullification, INEC is hereby ordered to conduct another Governorship election in Kebbi State within 90 days. Because the sponsorship of the appellant for the 14th April, 2007 election was “unlawful and unconstitutional being contrary to S. 177(c) of the “Constitution, I would order that he be excluded from the new election to be conducted by INEC. This however, does not preclude the PDP, being a duly registered political party recognized by the Constitution of the Federal Republic of Nigeria and the Electoral Act, 2006 from nominating a duly qualified candidate at the date of this judgment to contest the new election.
This appeal lacks merit and it is accordingly dismissed.
APPEAL NO.2.
Having considered the arguments of learned counsel Mr. Kola Awodein, SAN along with the arguments of both Mr. Tarfa, SAN and Chief Olanipekun, SAN as well as Mr. Yahaya Mahmond and having also found that some of the grounds of appeal and the issues formulated therefrom are kindred and related, I would also dismiss this appeal for lacking in merit.
APPEAL NO.3.
For all the reasons set out in dismissing the 1st appeal, I would also adopt same to dismiss this appeal too.
CROSS-APPEAL
The prayer of the cross-appellants/respondents for an order to return the 1st respondent/cross-appellant as the duly elected governor of Kebbi State in respect of the Governorship Election held on 14th April, 2007 lacks merit as it cannot be granted in the circumstance of this case. Because the PDP is a duly registered political party recognized by the Constitution and the law, the prayer to exclude it and any duly qualified candidate it may decide to nominate and sponsor, the other prayer in the cross-appeal remains incompetent and not capable of being granted as presently constituted.
The cross-appeal also lacks merit and it is accordingly dismissed too.
I shall not make any order for costs both in respect of the appeals and the cross-appeal.
Appeal allowed.
Appearances
Chief Wole Olanipekun, SAN (with him, M. U. Ibrahim, Sam Kargbo, G. Adeyemi and G. Uduafia)
Kola Awodein, SAN (with him, M. Uwais [Mrs], O. Ideh, J. Orumor and J. Utulu [Mrs])
Yahaya Mahmood (with him, A. Masanawa and I. T. Yam)For Appellant
AND
Rickey Tarfa, SAN (with him, Chief E. Ngige, SAN, H. Nganjuwu, A. J. Owonikoko, O. Jolaawo, Y. Pitan and A. C. Aderemi)For Respondent
