ALL PROGRESSIVE GRAND ALLIANCE (APGA) & ANOR. V. GYANG D. DANTONG & ORS.
(2011)LCN/4950(CA)
In The Court of Appeal of Nigeria
On Friday, the 2nd day of December, 2011
CA/J/EP/SN/205/2011
RATIO
ACADEMIC ISSUES OR QUESTIONS: THE POSITION OF THE COURT WHERE THE ISSUES IN AN APPEAL BECOME ACADEMIC
All the issues identified by the appellant in the instant appeal and the questions arising from the 3rd and 4th respondents? preliminary objection have been duly considered and determined in Appeal No. CA/B/163/2015, which was the first appeal to be filed against the decision of the trial Court. Since all the issues and questions have been dealt with in the earlier judgment of this Court, this appeal has become academic, as the issues in the appeal are already spent. In a situation not dissimilar to this appeal, this Court, in the case of The National Boundary Commission v. Attorney-General of Ondo State & 15 Ors. (2015) LPELR ? CA/B/135A/2008 (CA) at 4, per Saulawa, JCA stated thus: “In view of the fact that the substantive appeal has been conclusively determined and dismissed by this Court just a moment ago, the instant cross-appeal has become nugatory and rather a sheer wasteful exercise. In substance, the same issues or points of law raised in the present cross-appeal have been extensively dealt with and determined in the main appeal (CA/B/135/2008). The parties were equally the same parties in both the main appeal and the cross-appeal. Thus, the decision in the main appeal in question (CA/B/135/2008) binds the cross-appeal (Cross-Appellants). See OKOROCHA VS. OHAKIM (2014) LPELR ? 22057 (SC); OHAKIM VS. PDP; (2014); LPELR – 22058 (SC).” The foregoing position of the law remains the same where sister appeals are filed against one and the same judgment, as in this case. See Standard Chartered Bank Nigeria Limited v. Kasmal International Services Limited & 23 Ors. (Appeal No. CA/L/437A/2014), Unreported delivered on the 21st day of April, 2016.The law is settled that a Court of law does not expend its judicial time entertaining and determining academic issues or questions. See Overseas Construction Co. Nig. Ltd v. Creek Enterprises Nig. Ltd (1985) 3 NWLR (Pt.13) 407; Dalek Nigeria Limited v. Oil Mineral Producing Areas Development Commission (2007) 7 NWLR (Pt.1033) 402; Amalgamated Trustees Limited v. Associated Discount House Limited (2007) 15 NWLR (Pt.1056) 118 and Federal Republic of Nigeria v. Senator Adolphus N. Wabara & 2 Ors. (2013) 5 NWLR (Pt. 1347) 331. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
1. ALL PROGRESSIVE GRAND ALLIANCE (APGA)
2. BARR. BALA BAKO Appellant(s)
AND
1. GYANG D. DANTONG
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
CLARA BATA OGUNBIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the National/State Assembly Election Tribunal sitting in Jos delivered on the 21/10/2011 dismissing the Appellants’ petition (hereinafter referred to as “the Trial Tribunal”) and held that the election of the 1st Respondent was in substantial compliance with the provision of the Electoral Act 2010 (as amended).
The 2nd Appellant contested the Plateau North Senatorial District election under APGA, the 1st Appellant in the 26/4/2011 election. The 1st and 2nd Appellants being dissatisfied with the outcome of the election in which the 1st Respondent of PDP was declared as the winner petitioned the trial Tribunal. The Appellants were aggrieved with the declaration and return and so filed the petition on, inter alia, the following grounds:
1. That the 1st Respondent was not duly elected by majority of lawful votes cast at the election into the Plateau North senatorial District held on the 26th April, 2011.
2. That the election of 26th April, 2011 was invalid by reason of total non-compliance with the electoral act 2010 (as amended). See pages 6 to 19 of the Record of Proceedings of the Trial Tribunal (Hereinafter referred to as “The Record”)
The Appellants therefore claimed the following reliefs:
(a) It been declared that the election conducted in Jos South, Jos East, B/Ladi, Riyon Local Government Areas and Tudun Wada/Kabong. Jenta Adamu wards of Jos North L.G.A. on the 26/04/2011 of Plateau North Senatorial seat was contrary to Electoral Act, and thereby invalid.
(b) It been determined that the election conducted in Jos South, B/Ladi Riyam, Jos East Local Government Areas and Tudun Wada/Kabong, Jenta Adamu wards of Jos North L.G.A. be nullified.
(c) An order of this Honourable Tribunal that the 1st Respondent was not validly elected by majority lawful votes cast in the said election.
(d) An order setting aside the return of the 1st Respondent as the winner of 26/4/2011 Plateau State Senatorial Zone election.
(e) An order of this Honourable Tribunal that the 1st Petitioner was validly and duly elected as senator Plateau North. See pages 19 to 20 of the Record.
The Appellants sued the 1st, 2nd, 3rd Respondents and others who were staffs of the 3rd Respondent during the election. However the names of the others were struck out on the applications of the 1st and 2nd Respondents that they were not necessary parties. See pages 242 to 275 and 316 to 330 of the Record.
The 1st and 2nd Respondents filed a reply to the petition while the 3rd Respondent did not file any reply thereto and in effect did not defend the petition therefore-
On the one hand, the Appellants called six witnesses in prove of their petition and they all testified before the Tribunal. The 1st and 2nd Respondents on other part called two witnesses who testified for them.
The Appellants tendered Exhibits A – A940 which were admitted at the trial Tribunal. At the close of evidence, all parties thereafter filed written accordingly adopted. The trial Tribunal in delivering its judgment on the 21/10/2011, dismissed the Appellants’ petition and affirmed the election and return of the 1st Respondent as the winner of the 26/4/2011 Plateau North Senatorial District election. See pages 364 to 438 and 440 to 486 of the Record. Hence this appeal.
The notice and grounds of appeal are contained at pages 487 – 498 of the record of appeal. Same dated 28th October, 2011 was filed on the 1st November, 2011 and contains 22 grounds of appeal. The record of appeal was thereafter transmitted and received in this court on the 3rd November, 2011 and in accordance with the Practice Directions issued by the President of this Court, briefs were filed and exchanged by all parties as appropriate. While that of the Appellants was dated the 8th November, 2011 and filed 9th November, 2011, the 1st and 2nd Respondents’ brief of argument was dated 11th November 2011 and filed on the 14th November, 2011. A further reply brief was also filed by the Appellants on the 16th November, 2011. Issues were therefore accordingly joined between the Appellants and the 1st and 2nd Respondents with the exception of the 3rd Respondent the Independent Notional Electoral Commission who neither joined issues with any of the parties nor was it represented in court by any counsel, despite having been served a hearing notice.
On the 28th November, 2011 when this appeal was called up for hearing, the learned counsel Mr. A.A. Sangei represented the Appellants. The learned senior counsel Mr. O.I. Olorundare also in company of his brother silk Mr. S.T. Ologunorisa SAN and other counsel represented the 1st and 2nd Respondents. The respective briefs of arguments were adopted wherein the Appellants’ counsel urged that the appeal be allowed. A dismissal order was however sought for on behalf of the 1st and 2nd Respondents on the ground that the appeal is lacking in merit.
From the 22 grounds of appeal filed, the appellants distilled six issues for determination and the reproduction which are as follows:
“1. Whether or not the Trial Tribunal was, in view of the Appellants’ unchallenged evidence’ right when it dismissed the Appellant’s Petition- (Distilled from Grounds: 1, 3, 6, 7, 8, 9, 10, 11, 12, 14 and 18).
2. Whether or not the Trial Tribunal denied the Appellants their Constitutional right to fair hearing. (Distilled from Grounds: 2 and 5).
3. Whether or not the Trial Tribunal was right in holding that the 1st Respondent was elected in substantial compliance with the provision of the Electoral Act 2010 as amended. (Distilled from Grounds: 15, 17 and 19).
4. Whether or not the Trial Tribunal was right when it held that there is no provision in the Electoral act for the Appellants to appoint PW1 to PW6 as supervising agents and a supervisor cannot supervise more than one polling unit.(Distilled from Grounds: 4 and 13).
5. Whether or not the Trial Tribunal was right when it held that no forensic expert was presented by the Appellants to scientifically examine the ballot papers being aware that the 3rd Respondent withheld the ballot papers/other documents used in the election save exhibits A to A940. (Distilled from Grounds: 16, 20 and 21).
6. Whether or not the 1st and 2nd Respondents have filed valid statements on Oaths to entitle them to the judgment of the Trial Tribunal. (Distilled from Ground: 22).”
The 1st and 2nd Respondents on their part also distilled six issues which are not dissimilar to that of the Appellants. I would consider the reproduction of same as repetitive and rather spear myself of the ordeal as time wasting.
From the cumulative deduction of the six issues formulated by the appellants and also the 1st and 2nd Respondents, the crux on the totality of the complaint by the Petitioners/Appellants was whether the 1st Respondent was wrongfully returned as having won the election by majority of valid votes cost of the election. All other issues are related as being ancillary and therefore encapsulated there within the main. They would however be discussed as matters having arisen of the trial of the petition.
The determination of the main issue raised is certainly a matter of evidence which could either be oral documentary or both. It is settled that the general principle of law on the stand of proof in election petition is akin to civil cases as it is on the balance of probability. The case of Buhari v. Obasanjo (2005) All FWLR (Pt. 273) page 72 at 199 is in reference wherein the following pronouncement was made as follows:
“In general, in a civil case, the party that asserts in its pleadings the existence of a particular fact is required to prove such fact by adducing credible evidence. If a party fails to do so, its case will fail. On the other hand if the party succeeds in adducing evidence to prove the pleaded fact, it is said to have discharged the burden of proof that rests on it. The burden is then said to have shifted to the party’s adversary to prove that the fact established by the evidence adduced, could not on the preponderance of the evidence result in the Court giving judgment in favour of the party… Allegations questioning the propriety of elections verged on criminal acts must be proved beyond reasonable doubt.”
The Appellants at the trial in proof of their petition, called a total number of six witnesses while 1st and 2nd Respondents called two witnesses. The 3rd Respondent did not however call any evidence.
The summary of the submission by the learned Appellants’ counsel is to allow the appeal and uphold the petition at the Tribunal. This contention is largely predicated on the following deductions:
(1) That the appellants called PW1 – PW6 in proof of their pleadings as confined in the petition. That although the 1st and 2nd Respondents filed pleadings in attempts to defend the petition, their purported statements on oaths were not in compliance with the oaths Act. The non-compliance, learned counsel argued was not considered by the tribunal.
(2) Counsel further submitted that the 3rd Respondent who conducted the election in dispute although it was represented throughout the Proceedings it did not however deem it necessary to defend the Appellants’ petition.
(3) That the evidence by the appellants’ witnesses PW1 – PW6 being supervising agents testified to what they saw, heard and witnessed of the way and manner the election in dispute was conducted while acting as staff of the appellants.
(4) That the tribunal on the application of the appellants ordered the 3rd Respondent to avail the Appellants of all ballot papers/other documents used in the election in dispute but that the 3rd Respondent in defiance of that order refused to obey same. The only documents which the 3rd Respondent allowed the Appellants to inspect and make copies therefore are Exhibits A-A940.
(5) That the appellants were to call expert witness to give scientific analysis of the ballot papers/other documents used in the election in issue, but that the 3rd Respondent withheld those documents consequent upon which the appellants were not able to get the said documents for the expert witness analysis.
(6) That despite the written addresses filed by the parties, the tribunal only considered part of that by the Appellants and thereby erroneously dismissed the appellants’ petition. Learned counsel on the totality therefore urged in favour of allowing the appeal.
On the port of the 1st and 2nd Respondents, the submission on their behalf in urging for the dismissal of this appeals are as summarized hereunder on their brief of arguments:
(1) The evidence of PW1 – PW5 being incredible and unreliable, has fallen far short of being sufficient proof of the allegations contained in the appellants’ petition, as rightly found by the Honourable Tribunal.
(2) That contrary to the arguments of the Appellants, Respondents indeed complied with the provisions of paragraphs 15 and 12(2) of the First Schedule to the Electoral Act (as amended)’
(3) That since the supervising role allegedly played by PW1 – PW6 is not one recognized by the Electoral Act, the Tribunal was right when it held that they were on a frolic of their own. That PW1 – PW6 put their movement in issue when they testified that they visited several polling units on the day of the election. Hence that the statement by the Tribunal that they were on a frolic of their own was therefore not one raised suo motu. That it is a notorious fact which the learned tribunal took note of that there was no movement on the day of the election.
(4) That since the appellants woefully failed to prove their petition, the Tribunal was therefore right when it held that 1st’ Respondent was elected in substantial compliance with the provisions of the Electoral Act 2010 (as amended). This learned senior counsel submitted because having failed to prove the allegations they asserted, no onus shifted unto the 1st and 2nd Respondents to prove that the 1st Respondent was elected in substantial compliance with the provision of the Electoral Act. In the absence of any such prove by the appellants therefore, that the result as declared by the 3rd Respondent is presumed correct and authentic.
(5) That contrary to arguments by the appellants, a political party is not at liberty to appoint agents at will however. That section 45(1) of the Electoral Act is clear and unambiguous and as such should be given its plain and ordinary meaning. In other words, that the provision clearly states that a political party may appoint “a polling agent” for each polling unit and collation centre in the Local Government or Area council. That the provision therefore makes no mentioned of “supervising agents”. That the term ‘supervising agent” is not known to the Electoral Act 2010 (as amended).
(6) That the appellants have woefully failed to prove the entire petition and that being the case the burden never shifted to the Respondents to prove otherwise. That the doctrine of withholding evidence does not therefore even arise and is not applicable in the instant case. That section 167(d) of the Evidence Act does not also avail the appellants in the instant case.
(7) That the statement on oath of DW1 and DW2 embody the oath contemplated by paragraph 12(3) of the First Schedule to the Electoral Act 2010 (as amended). That it is also incontestable that DW1 and DW2 were confirmed before they adopted their statements on oath. Consequently learned counsel submitted that the affirmation of the witnesses in open court as shown in the records regularize the statements if at all the statements can be said to have been irregular. That the testimonies of DW1 and DW2 were valid and admissible before the Honourable Tribunal.
The petitioners/appellants before us, to have succeeded of the trial in their complaint that the 1st Respondent was not duly elected by majority of lawful votes cost of the election, ought to have established the allegations of irregularities and non compliance with the provisions of the Electoral Act. The proof of course which must be a matter of evidence. In other words, the success of the petition was predicated upon the quality of the evidence by the witnesses and their veracity as to whether they were credible or not. Credibility of witnesses is within the ambit of the trial Court to ascertain since it is a Court of evidence. The prerogative does not fall within the powers of an appellate Court whose duty it is to review and not evaluate. No wonder the law is therefore emphatic and restricts the powers of the appellate Court where it relates to evidence on facts in respect of which the trial Court had had the opportunity of seeing, assessing and evaluating the demeanour of witnesses before it. The pertinent question to ask therefore is, whether the Tribunal did properly evaluate the evidence place before it by all parties and thus arriving at the conclusion as it did? While the Appellants’ counsel vehemently submitted a complete error on the part of the Tribunal, the 1st and 2nd Respondents to the contrary are applauding the Tribunal for a job very well done.
The Appellants’ contention is mainly anchored on the firm acclamation that the evidence they adduced of the Tribunal was unchallenged. A graphical analysis of the evidence by the parties at the Tribunal would be very proper for perspective apportioning purpose.
The 1st Petitioners’ witness PW1 was one Aliyu Mohammed who gave evidence that he was the supervising agent of the Petitioners/Appellants at the Tudun Wada/Kabong and Jento Adamu words in Jos North L.G.A. of the election. That in the course of his going round the words, he discovered electoral anomalies. He accused the agents of the 1st and 2nd Respondents for various malpractices such as chasing away Petitioners agents, multiple voting, underage voting and voting without accreditation. The witness in his statement on oath said he visited a total of 65 polling units. The witness was subjected to cross-examination.
Next was PW2 one Murtala Ali. He was the supervising agent of the Petitioners in Jos East Local Government and gave evidence in line with PW1. The witness also said that he visited 88 polling units in 10 wards of Jos East Local Government Area. He was also cross examined.
PW3 Ali Yahaya was the State Secretary of All Progressive and Alliance (APGA) and supervising agent of the Petitioners for Jos South Local Government in the 26/4/2011 elections. That he went round the Local Government Area and discovered electoral anomalies whereby agents of the petitioners were harassed and chased away by agents of the 1st and 2nd Respondents. That there were also multiple voting in favour of the 1st and 2nd Respondents, as well as underage voting and voting without accreditation. The witness visited 140 polling units in Jos South Local Government Area and also 38 polling units in 4 wards of Jos East Local Government Area.
PW4 was one Isa Arzuka Jega the State Chairman of the All Progressive Grand Alliance (APGA) and the supervising agent of the Petitioners for Barkin Ladi Local Government in the 26/4/2011 election. He also discovered anomalies and gave evidence in line with PW3, PW2 and PW1. He further testified that the total number of alleged accredited voters is not the same with the alleged casted ballot papers in the Local Government. That he visited 90 polling units in Barkin Ladi Local Government Area.
PW5 was one Aliyu Bello who was a supervising agent of the petitioners in Riyom Local Government. He also discovered anomalies in the same vein as PW4. That he visited 59 polling units in Riyom Local Government Area.
PW6 was Samaila Mohammed who also aligned himself with the foregoing others. All the witnesses were cross-examined.
Two witnesses also testified on behalf of the 1st and 2nd Respondents. DW1 was one Jacob A. Adikaba who was the Director General of Senator Gyang Dantong’s campaign organization and served as the Plateau North Senatorial District collation agent for the Peoples Democratic Party (PDP) during the elections. That he received resifts from the PDP word collation agents who received results from various polling units. He received reports from his party agents of wards level that the election were conclusive and produced resifts duty entered and signed by agents. That there was no duplication or allotment of votes in favour of the 1st Respondent. The witness went further and testified that the results of the various level of collation ended up in his custody in his capacity as Senatorial District Collation Agent. He therefore reproduced the results declared by INEC as contained in Forms EC8A and EC8B. That no report of underage voting or multiple voting in any of the polling units was made to the Senatorial District Collation Centre. Rather, that the election in the Senatorial District was peaceful, free and fair and complied substantially with the provisions of the Electoral Act. The witness was thoroughly cross-examined.
DWZ was one Senator Dr. Gyang Dalyop Dantang who was the Senator representing Plateau North Senatorial District. The reports he received from PDP polling and ward agents in all the Local Government comprising the Senatorial District confirmed that the elections were conclusive and reproduced results duly entered and signed by the officers of the INEC and also by the agents of the political parties present. That there was no reports of intimidation, harassment or restriction of the agents or supporters of the Petitioners/Appellants in any polling unit in the Senatorial District made to the police or any law enforcement agents. That there was also no reports by any agent of APGA or any other political party of multiple voting and underage voting during the elections of 26/4/2011. Finally that the elections were conducted in substantial compliance with the provisions of the Electoral Act. He reproduced the results of the election as between him and the 1st Petitioner as declared by INEC.
The complaints of the Petitioners/Appellants as can be gleaned from their pleadings and their witnesses are both on irregularities and non-compliance. The allegations specifically hinged on harassment and intimidation which afforded the respondents the opportunity to carry out massive multiple voting and underage voting. The law is trite that the onus is on the petitioner to prove that there were such malpractices and that same prevented him from winning the election. See the case of DPP v. INEC (2009) 4 NWLR (Pt. 1130) 92 at 114. The evidence by the witnesses must also be so categorical, reliable and cogent as to satisfy the Tribunal. Hence a vague and unconvincing evidence of large which alleges election malpractices on irregularity would not suffice as proof. The proof ought also satisfy the court that the non-compliance was such that it did affect substantially the result of the election. It therefore goes to show that a mere non-compliance per se is not sufficient a reason affecting the result. It must be substantial for it to have effect or weight. This concept has to be weighed in consonance with the evidence given by the witnesses at the Tribunal. The Oxford Advanced Learners Dictionary has defined the word substantially to means very much, a lot, considerably”. The opposite would lay it as insignificant and unworthy of consideration. The onus therefore was on the petitioners to have proved that the allegations they levied even if they existed, must have substantially affected the result of the election. From the careful analyses of the evidence by the six Petitioners’ witnesses, particularly those by PW1-PW5 who claimed to have supervised the elections in various Local Government Areas, an interesting scenario is portrayed. In other words and between the said five witnesses, they claimed to have visited a total of 392 polling units during the hours of the election. By the provision of section 45(1) of the Electoral Act, 2010 a political party has the prerogative to appoint an agent to each polling unit. Certainly the use of five supervisors for purpose of monitoring 392 polling units is alarming and falls short of reason. It is not only unimaginable that such could be possible, the practicality of the reality is also beyond comprehension and the actualization which must be ingenuous. In applying the principle of the provision of Section 45(1) of the Electoral Act, same therefore envisages that the polling agents of each unit would have been the apt and relevant witnesses by virtue of their being present of the venue of election and who for all intent and purposes ought to have had the 1st hand information. This is not however to say that supervising agents cannot generally be competent witnesses. I shall return to their legal effect in due course.
For purpose of expatiation for instance, let’s take the story of PW1 who claimed to have visited a total of 65 polling units.
Under cross examination however, the witness said he remained in the polling unit he voted from 8.00 am up till 12.00 noon by which time accreditation had ended. He also said the lost polling unit he visited was Alheri polling unit at 5.00pm. As rightly found and arrived at by the learned Tribunal, the witness would not possibly be in the position to say what happened in the other 64 polling units which he claimed he visited with regards to accreditation of voters which would have ended by 12.00 noon. This was in view of his testimony in chief that he was still in his polling unit at 12.00 noon. The Tribunal rightly in my view held that the evidence of PW1 was unreliable. The witness could not and as rightly found by the Tribunal have been able to visit all the other polling units within the short time for purpose of any meaningful assignment.
The witness under cross-examination by 3rd Respondent’s counsel also confirmed that they had agents in all the polling units but were chased away. The refusal to call any of such agents speaks volume and leaves much to be desired and cost doubt on the Appellants’ case. The case of Buhari v. INEC (2009) 4 EPT 623 at 818 – 819 is relevant wherein the apex Court said:
“…. An agent is the representative of the candidate in the polling station he sees all the activities. He hears every talk in the station. He also sees all actions and inactions in the station. Any evidence given by a person who was not present at the polling unit or polling booth like the Appellant is certainly hearsay. And here, I so regard paragraph 16 of the witness statement or deposition of the appellant. After all he was not there. He was given the information by the agents. The million Naira question is why did these agents not make statements as witnesses? In my view agents are in the most vintage points to give evidence of wrong doings in a polling units or polling both. Can the appellant say in reality that he proved his case without calling any agent?”
In the same view, the same question is also very pertinent and appropriate to a certain extent to the Appellants in the case at hand. On the one hand and in other words, why did they not utilize the provision of Section 45(1) of the Electoral Act to their advantage by appointing agents of every polling unit? On the other hand, and if they did appoint agents, why were they not called as witnesses to testify in respect of their respective polling units? I will say no more but leave the Appellants to respond themselves. The witness PW1 like other witnesses also testified of great extent on the averment in their pleadings relating the video coverage for purpose of proving that there were underaged voters. As rightly and also held by the learned Tribunal, it is unfortunate that despite the heavy weather made on this score, the Appellants did not deem it relevant to produce such evidence as alleged in proof thereof. The particular polling unit where such malpractice took place was also not considered as significant. Could the Appellants rate the witnesses’ evidence in this case as specific and to the point? Nay, the evidence I hold is vogue and very much uncertain.
At paragraph 7(d) of the witnesses’ deposition he also raised the issue of non accreditation. The reproduction of pornography 7 of his statement at pages 49-50 of the record is relevant.
“7. That the discoveries I made are:
(a) The agents of the Petitioners were harassed and chased away by agents of the 1st and 2nd Respondents.
(b) As a result of the actions of the 1st and 2nd Respondents’ agents above, multiple voting were done in favour of the 1st and 2nd Respondents.
(c) I also witnessed series of underage voting.
(d) There were no accreditation of voters as required by the electoral Act in all the wards I have gone to supervise. ”
In respect of the allegation of absence of accreditation, the totality of the petition is contained of pages 1-51 of the record of appeal and there is no where contained therein that the Petitioners/Appellants did plead such a very important allegation. It is trite law that any evidence led on facts not pleaded would be discountenanced as it goes to no issue. See the case of Hashidu v. Goje (2003) 15 NWLR (Pt. 483) 325 at 379-381.
The evidence of PW1 which was heavily relied upon by the Petitioners/Appellants was as rightly held by the learned Tribunal not credible.
PW2 was not very dissimilar from PW1 wherein he asserted that he visited 89 polling units in his evidence also in chief. Under cross-examination however the witness testified that he did not vote at the election because he was not in Jos on the day of the election. It would go without saying therefore that a person who was away from Jos could not have possibly supervised on election holding in Jos East Local Government Area on the very day he was said to be out of Jos. The Tribunal also rightly rejected his evidence as unreliable in the circumstance.
PW3 was the Petitioners supervisor in the person of Ali Yahaya and his witness’ deposition is of pages 31-35 of the record of appeal. At paragraph 8 of his witness statement he claimed having visited 179 polling units in Jos South Local Government Area. Under cross examination, however, the witness admitted certain process such as Fubur and Lamingo which were within Jos East Local Government Area. Even though the witness testified in chief as having visited Nukes polling unit, the evidence was denied under cross-examination. He also denied having visited all the polling units which were so numerous as listed in paragraph 8 of his depositions. I would however commend the witness for having been able to mention and list down all the said polling units which under normal circumstance would have require an intelligent person of good memory to remember. The witness is certainly worth commending for that singular act even if for nothing else. Be that as it may, I do not hesitate in upholding the Tribunal in finding PW3’s evidence as unreliable for purpose of proving the petition. The case of Ayanwale v. Atanda (1988) 1 SC 1 at 3 per Obaseki JSC had this to say:
“Cogency of evidence led depends on a series of factors, the most important of which is the credibility of witnesses in oral testimony. The credibility of witness is enhanced if there is no contrary evidence to his testimony. It is destroyed if there is contrary evidence to his testimony either from Independent witness or from previous testimony on oath of the witness himself. If the credibility of a witness is destroyed, the evidence he has given loses cogency and probative value.”
As stated earlier in the course of this judgment, the deposition of PW4 by name Isa Arzuka Jega is contained at pages 25 – 28 of the record of appeal. He is the state chairman of APGA and supervising officer in charge of Barkin Ladi Local Government Area Riyom. With reference to paragraph 3 – 6 of his said witness statement on oath at page 25 of the record he was strictly restricted to the Barkin Ladi Local Government Area wherein he said thus at Paragraph 4:
“4. That my duty as the supervising agent in the said election was to supervise the conduct of the election, in B/Ladi L.G.A”.
Under cross examination however, the witness had this to say:
“I covered many areas on that 26/4/2011. I was in about 3 Local Government Areas on that day. I was using my motorcycle; I was not given a jet.”
I would hasten to add that the evidence under cross-examination is contradictory in nature to the one in chief wherein PW4 was limited to only one Local Government Area. His further evidence by the use of the phrase “I was in about 3 Local Government Areas” is not specific. The use of the word “about” has made the testimony very uncertain and the totality of his evidence rendered doubtful. A witness of truth and credibility has to be clear, unambiguous and specific about that which he testifies.
The same witness under cross-examination also claimed reliance on reports he received from some of his agents in the various polling units. The evidence from the said source of best can be described as hearsay as rightly concluded by the learned tribunal. There was no explanation why the agents of the various polling units were not called as witnesses. The provisions of sections 37, 38 and 39 of the Evidence Act are all relevant and applicable. Also the case of Baba Ahmed v. Jibrin Adamu (2009) 5 EPR 770 at 785. Aliyu Bello gave evidence as PW5 and his deposition on oath is contained at pages 44-46 of the record of appeal – He was the officer supervising Riyam Local Government Area. The witness claimed to have visited 59 polling units on the day of election. Under cross examination by 1st and 2nd Respondent however, the witness had this to say:
“I observed restriction of movement on the day of the election.”
It goes without saying therefore that the truth is that the witness could not have in actual fact visited 58 polling units and of the same time observed the restriction of movements. The probable source of the witnesses’ testimony in chief is alien to his personal knowledge and cannot be accorded credibility. Any source which is outside personal knowledge must obviously be a hearsay evidence. The learned tribunal was certainly on a right footing and its finding cannot be faulted. See the case of Buhari v. Obasanjo and Hashidu v. Goje (supra).
PW6 is one Samaila Mohammed who did not claim to have visited any of the polling units in dispute. He however claimed that agents of the Petitioners were assigned to all polling units and collation centres in the Senatorial District and that a large number of them were chased away by the Respondents, agents. It is obvious that the said witness who had chosen to be a spokesman for the petitioners/Appellants, did not deem it relevant or necessary to have disclosed his source of information other words, if he was not assigned to any specific polling unit, one wonders how he came about the information leading to his evidence. None of the said agents whom he alleged were chased away was called to testify as to what transpired at their polling units on the day of the election. The case of Haruna v. Modibbo (supra) is relevant in point wherein Aderemi JCA (as he then was) held and said:
“…the entire proceedings are replete with allegations of…chasing away of agents; no person was brought forward as witness to say he was chased away and that they were recognized party agents…”
In my view therefore, the learned tribunal rightly held that PW6 was not a credible witness and I so hold. At this juncture, I would again pose the question whether from the deductive analyses of the evidence by the Petitioners’ witnesses of the Tribunal, it can be said with certainty that they did prove the petition? From all that has been said and done, the answer in my humble opinion is in the negative having regard to the witnesses’ evidence either individually or collectively.
The law again I say is trite that the burden of proof is upon the Petitioners/Appellants who would loose if no credible evidence is adduced in support of their claim. The burden has not been shown to have shifted onto the Respondents whose weakness of their case if any cannot operate to prove the petitioners’ case. There is also however no evidence of omission on the pleadings by the Respondents upon which the Appellants could rely in proof of their claim.
On the question of the absence of forensic expert for purpose of scientific examination of the ballot papers, the Appellants accused the 3rd Respondent of withholding the said ballot papers/other documents with the exception of Exhibit A to A940, That they should not therefore be held accountable or responsible for the non presentation of the expert in the absence of such documents.
As rightly submitted on behalf of the 1st and 2nd Respondents, there was no evidence adduced by the Appellants of the extent of the efforts made by them to secure the said documents. In other words, if the production of Exhibits A – A940 was possible, no evidence was shown that the same method could not have been used for securing the other documents. From all indications, it has not been shown that the 3rd Respondent was out to frustrate the production of the document meant for forensic examination.
Furthermore and on the question of proof by documentary evidence, this is trite provided the documents are from proper custody and properly admitted in proof of that asserted. This brings us to the documents Exhibits ‘A’ – ‘A940′ which were pleaded in the petition and tendered before the trial Tribunal through their counsel on the 19th August 2011. The admission of the documents as exhibits without more amount to nothing. In other words, the onus is on the Petitioners to have adduced evidence and linked the documents thereto. It is not far from the truth as rightly submitted by the 1st and 2nd Respondents’ counsel therefore that the documents were dumped on the Tribunal with no iota of evidence from the Petitioners/Appellants linking some with any of the facts pleaded. In other words, it is not the duty of the Tribunal to trace each document to a polling unit or give evidence as to what they are meant for. The authorities in point are:
A.N.P.P. v. Usman (2008) 12 NWLR (Pt.1100) 1 at 89 – 90; A.N.P.P. v. INEC (2010) 13 NWLR (Pt. 1212) 549 at 620 – 621; Terab v. Lawan (1992) 3 NWLR (Pt. 231) 569 at 590; Also Omoworare v. Omisore (2010) 3 NWLR (Pt.1180) 58 – 116 – 117. In the case of ANPP v. Usman (supra) this Court for instance held and said:
“It is settled law that a party relying on the documents in proving his case must relate each of such documents to the specific area of his case in respect of which the document is being tendered in support of the case i.e. there must be link between the document and the specific area of the petition…….
It must be noted that several documents were tendered pursuant to the claim but it must be borne in mind that admitted documents useful as they could be would not be of much assistance to the Court in the absence of admissible oral evidence by persons who can explain their purport.”
It is not the duty of the Tribunal to trace each document to a polling unit or give evidence as to what they are meant for. The Tribunal to do that would go on a frolic of its own in making a case for the Petitioners/ Appellants. The Tribunal is an impartial arbiter and on adjudicator. The Tribunal in the circumstance was therefore correct on its findings on the absence of forensic expert for purpose of scientific examination of the ballot papers.
It is also correct and as submitted by the learned 1st and 2nd Respondents’ counsel that the documents Exhibits A – A940 were dumped on the Tribunal without any explanation or evidence relating some. See the case of Terab v. Lawan (1992) 3 NWLR (Pt. 1212) 549 at 620 – 621.
It is needless to say the obvious that none of the Petitioners/Appellants six witnesses attributed any of the alleged irregularities and corrupt practice, if any, to the 1st Respondent or any of his lawful agents. In the case of Buhari v. Obasanjo (supra) the apex Court had this to say:
“An elected candidate cannot have his election nullified on the ground of corrupt practices irregularities, and acts of violence or any other illegality committed in the process of the election unless it can be proved that the candidate expressly authorized the illegality.”
On the pleadings of the Petitioners/Appellants at paragraphs 13, 15, and 16 of the petition, it was alleged, that petitioners scored the majority of valid votes as per the calculation in the graphs pleaded. There was however no evidence from any of the six witnesses who testified for the Petitioners in proof of the assertion. It is trite law that averments in pleadings not supported by evidence are deemed abandoned. No address of counsel in support of pleadings no matter how ingenuous it may be can, therefore take the place of evidence. See the case of Wema Bank v. Alhaji Anisere (2003) 8 FR 91 at 98.
The Appellants on their submission also alleged the absence of fair hearing denied them by the Tribunal on an issue it raised suo motu. It is on record that the Appellants six witnesses were all accorded the opportunity to give evidence and it was in the course of their testimonies that they put their movements in issue as rightly submitted by the learned 1st and 2nd Respondents’ counsel. It is also a notorious fact and which was testified to by the Petitioners’ witness PW5 under cross-examination that movements were restricted on the day of election. The submission by the Appellants on the question of the issue raised suo motu does not in the circumstance arise but that which is greatly misconceived. In other words, the question relating the absence of constitutional right to fair hearing as contended by the Appellants is not applicable and I hold that the learned tribunal was on the right path in arriving at the decision as it did. The next point for consideration relates to the competence of PW1 – PW6 as witnesses wherein the provision of the Evidence Act is very relevant and explicit. Section 77 of the said Act read along with Section 155 of same for instance are apt and which in effect qualify them as competent witnesses to testify as rightly submitted by the learned Appellants’ counsel. The case of Lasun v. Awoyemi & Ors. (2009) 16 NWLR (Pt. 1168) 513 at 553 – 554 is also in confirmation of their competence as witnesses. Suffice to add also that by the use of the word May in Section 45(1) of the Electoral Act, it presupposes and certainty allows for the appointment of supervisors who could act as agents of political parties if they so wish. This I hold in view of the absence of any express provision either to the contrary or disallowing same. However, one should not be quick in losing sight of the expectation that, for their evidence, to be credible it must be subjected to the provision of Section 77 of the said Evidence Act wherein oral Evidence must be direct. In other words, PW1 – PW6, though competent to testify as witnesses, their evidence nevertheless must pass the test of credibility in consonance or subject to Section 77 of the Evidence Act Competency and credibility are not one and the some. A witness for instance can be competent to testify but his evidence may not necessarily be credible. From the analyses of the evidence by PW1-PW6 earlier in the course of this judgment, it is obvious that their credibility has been greatly thrown into question and thus costing doubts on their competence. The Tribunal even though it erroneously pronounced the disqualification of PW1-PW6 as competent witnesses, it nevertheless proceeded to evaluate their evidence. The conclusion did not in any way affect the quality of their evidence which on the onset by its very nature stood as discredited. This is more so especially where their evidence per se was not worthy of belief. The case of Agagu v. Mimiko (2009) 7 NWLR (Pt. 1140) 354 at 403-405 cited by the learned Appellants’ counsel is therefore of no relevance to this case.
The Appellants I have earlier said must succeed on the strength of their case and not rely on the weakness of the defence. This principle is founded on the time held principle that he who alleges must prove. The apex Court in the case Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) page at 122 had this to say:
“In general, in a civil case, the party that asserts in his pleadings of a particular fact is required to prove such by adducing credible evidence. If the party fails to do so, his case will fail. On the other hand, if the party succeeds in adducing evidence to prove the pleaded fact, he is said to have discharged the burden of proof that rests on it. The burden is then shifted to the party’s adversary to prove that the fact established by the evidence adduced, could not on the preponderance of the evidence, result in the court giving judgment in favour of the party.”
As rightly submitted by the learned counsel for the 1st and 2nd Respondents therefore, since the Appellants have woefully failed to prove the entire petition, the burden never shifted to the Respondents to prove otherwise.
Based on the foregoing authority therefore, the Appellants counsel was clearly off the point when he attributed on error on the part of the Tribunal when it entered judgment for the Respondents. This the counsel predicated in the absence of any defence put forward by the Respondents, which same I hold has no bearing on the authority of the case of Buhari v. Obasanjo (supra).
Also on the testimonies of DW1 and DW2 the learned Appellants’ counsel submitted their flagrant violation of Section 8 of the 1st Schedule to the Oaths Act Cap 10 Laws of the Federation of Nigeria 2004, which counsel argued did not comply with the format set out as required by the law. As a consequence therefore, that the condition precedent had not been complied with.
It is pertinent to restate that the Appellants’ complaint is not alleging that the statements of DW1 and DW2 were made without oath, but rather that the oaths therein embodied is not in the exact words as laid down by the First Schedule to the Oaths Act. With reference to Section 23 of the Interpretation Act, same provides thus:
“Where a form is prescribed by an enactment, a form which differs from the prescribed form shall not be invalid for the purpose of the enactment by reason only of the difference if the difference is not in a material particular and is not calculated to mislead.”
The apex Court has also relevantly pronounced in Bucknor Maclean v. Inlaks (1980) 8- 11 SC 1 and held thus:
“As a general rule, forms to Schedules in Statutes are inserted merely as examples and guides and are meant to be followed impliedly only so far as circumstances permit. This, however, is not to say that the use of forms is never imperative, as, indeed, they sometimes have to be strictly followed if the language and the scheme of the enactment providing for their use so dictates.”
See also the authorities in the cases of Peter & Ors. v. N.N.P.C & Ors. (2010) 8 NWRL (Pt. 1195) 172 at 194 and Amadi v. N.N.P.C. (2000) 10 NWLR (Pt. 674) 76 at 97.
From the foregoing authorities, the judicial interpretation given to the rule is to the effect that mere failure to comply in exact terms of format in schedules to an enactment does not necessarily always invalidate the thing done, if it is established that the thing is done in a manner substantially in compliance with the forms. For all intent and purpose, the Appellants in the case at hand have not asserted or shown that the oaths contained in the statements of DW1 and DW2 is in material particular different from that prescribed in the First schedule to the oaths Act. The oaths in the statements complained of, though not exactly, are however principally the same with that prescribed in the said schedule to the oaths Act. There was also no indication shown by the Appellants that the minor difference in the statements of DW1 and DW2 are calculated to either deceive or that they were themselves deceived thereby in any way. The statements in the circumstance did satisfy the provision of the oaths Act and hence a rejection of the submission made by the learned Appellants’ counsel as being grossly misconceived. A statement made without oath is different from one made on an irregular oath which on the authority of Buhari v. Obasanjo (supra) cannot operate to jettison the said statements on oath by DW1 and DW2.
As rightly and further submitted by the learned 1st and 2nd Respondents, counsel, the subsequent affirmation/oath of the witnesses DW1 and DW2 in open Court before they adopted the said statements would serve to cure the irregularity if any. See the decision of this Court in the case of Udeagha & Anor. V. Omegara & Ors. (2010) 11 NWLR (Pt.1204) 168 at 195. The affirmation of the witnesses DW1 and DW2 in the open Court as shown in the records therefore had regularized the statement if of all it can be said to have been irregular. The totality of the submission by the learned Appellants’ counsel with all respect, I hold, is grossly misconceived.
In the result and having resolved all the various points raised by the Appellants on the main lone issue formulated for determination, I hold on the totality that the Petitioners/Appellants as rightly held by the learned Tribunal have woefully failed to prove their petition as required by law and that same was rightly dismissed by the trial Tribunal. In other words, I hold that the decision arrived of by the trial Tribunal is unassailable and I make on order upholding same and thus dismissing the Appellants’ appeal. In its place I further make an order that the election of the 1st Respondent Gyang D. Datong is confirmed as having been held in substantial compliance with the provisions of the Electoral Act 2010 (as amended). In the same tone, I hereby therefore affirm his election and return having scored the majority of lawful votes cast of the election.
Appeal is hereby dismissed with no order made as to costs. Parties are to bear their own costs of the appeal.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the opportunity of reading in advance, the lead judgment just delivered by my learned brother, Ogunbiyi, JCA. I am in agreement with his reasoning and conclusion therein which I adopt as mine. I also dismiss the appeal. No order as to costs.
REGINA OBIAGELI NWODO, J.C.A.: I agree.
Appearances
A.A. SangeiFor Appellant
AND
O.I. Olorundare, SAN,
S.T. Ologunorisa, SAN,
S.G. Odey Esq.,
Daniel GOPEP Esq.,
S. Oyawale Esq.,
V.Y. Kwon Esq.,
P.H. Hammache Esq.
A.M. Umar Esq.,
P.A. Ubeng Esq., abd
D.P. Dusu Esq.,For Respondent
