DEMOCRATIC PARTY OF NIGERIA & ANOR V. UNITED NIGERIA CONGRESS PARTY (UNCP) & ORS
(1998)LCN/0454(CA)
In The Court of Appeal of Nigeria
On Thursday, the 23rd day of April, 1998
CA/K/EPLG/8/98
RATIO
APPEAL: WHETHER IT IS THE BUSINESS OF AN APPEAL TRUB – INTERFERENCE WITH FINDINGS OF FACT MADE BY A TRIAL TRIBUNAL
It is not the business of an Appeal Tribunal to interfere with findings of facts made by a trial Tribunal. This is because the trial Tribunal is the court opportune to watch the demeanour of witnesses and to determine their credibility. Generally then, findings of facts made by trial court should be left alone unless they are shown to be perverse. See the following cases:- U.B.N. Ltd. v. Oredein (1992) 6 NWLR (Pt. 247) 355 and Popoola v. Adoyemo (1992) NWLR (Pt. 257) 1. PER JAMES OGENYI OGEBE, J.C.A.
In a situation where the candidate with the highest number of votes is disqualified as in this case, the proper order to make is not the return of the candidate with the next highest votes but an order of re-election so that the true wishes of the electorates can be determined. See section 95(1) of Local Government (Basic constitutional and Transitional Provisions) Decree No.7 of 1997. PER JAMES OGENYI OGEBE, J.C.A.
JUSTICES:
UMARU ABDULLAHI Justice of The Court of Appeal of Nigeria
JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria
ATINUKE OMOBONIKE IGE Justice of The Court of Appeal of Nigeria
Between
- DEMOCRATIC PARTY OF NIGERIA
2. ABUBAKAR MUAZU Appellant(s)
AND
- UNITED NIGERIA CONGRESS PARTY (UNCP)
2. SADIQ MAMMAN LAGOS
3. NATIONAL ELECTORAL COMMISSION OF NIGERIA Respondent(s)
JAMES OGENYI OGEBE, J.C.A. (Delivering the Leading Judgment): The 2nd petitioner and the 2nd respondent contested the Chairmanship election into the Kaduna North Local Government council along with other candidates. The 2nd respondent was declared duly elected when the result of the election was announced. Dissatisfied with the result the 2nd petitioner Abubakar Muazu, one William Maisaje, Alhaja Fati Ahmadu filed separate petitions against the declaration of the 2nd respondent as the chairman, mainly on the ground that he bad not attained the compulsory age of 35 years at the time of the election. The three petitions were consolidated. The petitioners tendered Exhibits P1, P2 and P3 to show that the 2nd respondent was born in 1964. The 2nd respondent tendered a declaration of age certificate. Exh. D1 and called his mother to show that he vas born in 1961. The trial Tribunal held that he was under-aged and nullified his election and returned the 2nd petitioner as duly elected. Dissatisfied with the outcome, the 2nd respondent and his party appealed to the Election Appeal Tribunal of Kaduna state which set aside the decision of the trial Tribunal and returned the 2nd respondent as duly elected. It preferred the age given in the declaration of age Exh. D1 and the evidence of the 2nd respondent’s mother to the documentary evidence given by the petitioners. A petition was then written to the Federal Government which sent this case to this court for review.
The learned Attorney-General of the Federation has filed a brief in which he identified two Issues for determination as follows:-
“1. Whether the Appeal Tribunal was right when it held that Exhibits P1, P2 and P3 were public documents which were wrongly admitted and expunged same from the record.
2. Whether the Appeal Tribunal was correct to have relied on Exhibit D1 and the evidence of DW2 to hold that the 1st appellant was qualified to contest the election.”
The substance of his argument is that Exhibits P1 and P2 were rightly rejected by the Appeal Tribunal but that the Appeal Tribunal was wrong to have expunged Exh. P3 and the contents from the record. He said that Exh. P3 is the 2nd respondent’s file in the Ministry of Lands and Survey and that the contents were primary documents that need no certification to be admissible. He then said that the Appeal Tribunal was right in preferring the evidence of the 2nd respondent’s mother and the declaration of age Exh. D1 to hold that the 2nd respondent was not under-aged. He urged this Court to confirm him as duly elected.
A brief has been written on behalf of the 1st and 2nd respondents in which the learned senior Advocate J.B. Daudu formulated one Issue as follows:-
“1. Whether the evidence of 2nd respondent and his mother as to his age are preferable to the documentary evidence produced by the petitioners such that the only conclusion a reasonable Tribunal ought to reach on the evidence is that the 2nd respondent was over 35 years at the time he contested the elections in issue or put in another way whether 2nd respondent was under age at the time of the election?”
He contended that the evidence of the 2nd respondent’s mother was the best evidence to establish his age and urged the Court to confirm the election of the 2nd respondent as chairman of the Local Government.
A brief has also been written on behalf of the petitioners in which the learned counsel for them argued that there was clear evidence that the 2nd respondent had not attained the age of 35 years at the time of the election and was not qualified to hold office as chairman of any Local Government. He also submitted that the Appeal Tribunal had no business interfering with the findings of facts made by the trial Tribunal.
I have looked at the record of this case and considered critically all the arguments in the briefs and it is my view that the crux of this matter is whether or not the 2nd respondent was under-aged to contest the chairmanship election held on the 15th of March, 1997. In Para. 6(b) of the petition before the trial Tribunal it was averred as follows:-
“The 2nd Respondent attended the Primary School known as L.E.A. School Independence way Kaduna between January 1971 and June 1977 when he completed his class six (6). (At the trial of the petition reliance shall be placed on the counterfoil and certified True copy of his certificate of Primary Education No. 032613 of the Kaduna state issued on or about 15th July 1977. Notice is hereby given for the production of its original).”
This averment was not controverted anywhere in the reply of the 2nd respondent to the petition. It was on the basis of this that Exhibits P1 and P2 which were the booklet and a copy of the 2nd respondent’s Primary school Leaving certificate were tendered. It follows therefore that that averment was admitted and required no further proof. See Akibu v. Oduntan (1992) 2 NWLR (Pt. 222) 210. Accordingly the 2nd respondent’s evidence that he was not aware of Exh. P1 or never attended the primary school known as L.E.A. school Independence Way Kaduna vent to no issue.
Exhibit P3 was 2nd respondent’s open file when he worked with the Ministry of Lands and survey Kaduna state in 1983. Exh. P2 shows that the 2nd respondent was born in the year 1964. Exh. P.3A shows that he was 18 years of age as at the date of the letter i.e. 22nd December 1982 which also meant that he was born in December 1964. EXh. P.3B first page also shows that 2nd respondent was 18 years old as at the date of the form he filled for employment to public Service commission i.e. on the 29th December 1982 that he was born on the 28th December 1964. Exh. P.3E also shows that 2nd respondent was born on the 28 of December 1964. Exh. P3 which is the 2nd respondent’s open file and the contents therein are primary evidence which are properly admissible before a court of law as submitted by the learned Attorney-General of the Federation. This file contains overwhelming evidence that the 2nd respondent was born on the 28th of December, 1964. The trial Tribunal rejected his evidence that he was not the one who wrote the various Exhibits contained in the file. It is public knowledge that anybody applying for a job in the civil service of any state in this country will give his age in his letter of application or form to be filled in respect of the employment. The trial Tribunal faced with these documents which were made in 1982 and even Exh. P2 which was made in 1977 in contrast to Exh. D1 (the declaration of age) which was made in 1993 in contemplation of an election and the evidence of the 2nd respondent’s mother that he was born in the year after Independence concluded that the documentary evidence tendered by the “petitioners contained the truth of the 2nd respondent’s age. The 2nd respondent was given notice to produce his passport No. 1069211 which was issued on the 27th October 1982 in the Kaduna Passport Office to determine his true age stated therein. He failed to tender this document. Instead he attempted to tender the passport of his elder sister which was not pleaded at all and the trial Tribunal rejected it.
It is not the business of an Appeal Tribunal to interfere with findings of facts made by a trial Tribunal. This is because the trial Tribunal is the court opportuned to watch the demeanour of witnesses and to determine their credibility. Generally then, findings of facts made by trial court should be left alone unless they are shown to be perverse. See the following cases:- U.B.N. Ltd. v. Oredein (1992) 6 NWLR (Pt. 247) 355 end Popoola v. Adoyemo (1992) NWLR (Pt. 257) 1. Exhibits P2 and P3 and the contents therein were made at a time when no suit was in contemplation and in the normal course of business of Government. They therefore contain the truth as to the correct age of the 2nd respondent that he was born on the 28th December 1964.
Accordingly I am of the firm view that the Appeal Tribunal was wrong to have preferred the evidence of the mother and the declaration of age, Exh. D1 to the concrete statements made by the 2nd respondent himself in writing in Official documents as far back as 1982.
Consequently I set aside the decision of the Appeal Tribunal in its entirety. In its place I confirm the decision of the trial Tribunal that the 2nd respondent was under-aged as at the time of the election on the 15th of March, 1997 and the nullification of his election.
In a situation where the candidate with the highest number of votes is disqualified as in this case, the proper order to make is not the return of the candidate with the next highest votes but an order of re-election so that the true wishes of the electorates can be determined. See section 95(1) of Local Government (Basic constitutional and Transitional Provisions) Decree No.7 of 1997. The trial Tribunal was wrong in returning the 2nd petitioner Abubakar Muazu as duly elected. That order of the trial Tribunal is set aside and it is hereby ordered that the National Electoral commission of Nigeria shall conduct fresh election to fill the position of chairman and vice-chairman of Kaduna North Local Government.
ATINUKE OMOBONIKE IGE, J.C.A: I have had the advantage of reading in advance the decision just delivered by my learned brother Ogebe JCA.
I agree with his reasoning and conclusions. The 2nd respondent’s age has been clearly shown by credible evidence to be 33 years as at the time of the Local Government Election conducted on 15th March, 1997 hence he was under the prescribed age of 35. His election is therefore NULL AND VOID. I agree with the leading decision that the proper consequential order is to order a fresh election into the Kaduna North Local Government Council.
UMARU ABDULLAHI, J.C.A: The 3rd Respondent organised and conducted Chairmanship election into the Kaduna North Local Government council. The 1st appellant contested the election. The 1st respondent also contested the election for the same post.
At the end of the election, the 3rd Respondent declared and returned the 1st appellant as duly elected chairman of the council having scored the majority of lawful votes cast at the election.
1st respondent and two other candidates also contested the election under the platform of their respective political parties. They all filed petition before the Election Petition Tribunal against the declaration and return of the 1st appellant.
In the main the ground of the petitions was that, Alhaji Saddiq Mamman Lagos, 1st appellant, was disqualified from contesting the election because he was below 35 years of age at the time of the election.
It was clear from the record that the real fight in the petition was between 1st appellant and 1st respondent. During the trial, parties called witnesses and tendered some documents.
At the end of the day, the Election tribunal nullified the election of the 1st appellant and declared the 1st respondent as duly elected Chairman of Kaduna North Local Government council.
1st appellant was not happy with this development and he appealed against the decision to the Election Appeal Tribunal.
At the end of the hearing of the appeal, the Election Appeal Tribunal allowed the appeal, set aside the decision of the Election Tribunal end affirmed the declaration of the 3rd Respondent that 1st appellant was duly elected Chairman of Kaduna North Local Government council.
The matter was then referred to a Review panel.
As a result of the Review Exercise, the Attorney-General of the Federation filed a brief of argument. There were also two briefs of argument filed for and on behalf of the 1st appellant and 1st respondent.
The Attorney-General of the Federation formulated two issues for determination. They read as follows:-
“1. Whether the Appeal Tribunal was right when i.e. held that Exhibits P1, P2 and P3 were public documents which were wrongly admitted and expunged same from the record.
2. Whether the Appeal Tribunal was correct to have relied on Exhibit D1 and the evidence of DW2 to hold that the 1st Appellant was qualified to contest the election.”
NOW, there appears to be some mixed up about the position of the parties in the briefs filed by the counsel for the parties.
The counsel deviated from what is contained on the record and the brief filed by the Attorney-General of the Federation. Both counsel put the parties in their respective briefs in the reverse order. They referred to the appellant as respondent. To avoid any further confusion, I shall adopt the position of the parties as indicated in the record of appeal as well as in the brief of argument filed by the Attorney-General of the Federation.
For the avoidance of any doubt, I shall in this judgment refer to ALHAJI SADDIQ MAMMAN LAGOS as the 1st appellant and ALHAJI ABUBAKAR MUAZU as the 1st respondent.
In his brief of argument, the 1st appellant formulated one issue for determination. It reads as follows:-
“Whether the evidence of 1st appellant and his mother as to his age are preferable to the documentary evidence produced by the petitioners such that the only conclusion a reasonable Tribunal ought to reach on the evidence is that the 1st appellant was over 35 years at the time he contested the elections in issue or put in another way, whether 1st appellant was under age at the time of the election?”
For his part the counsel for 1st respondent formulated four issues.
1. Whether the 1st appellant had attained the age of 35 years as at 15th March, 1997 and was qualified to hold office as the Chairman Kaduna North Local Government Council, as provided for in section 10(b) of Decree No. 7, 1997.
2. Whether from the state of pleadings, there still existed the burden to prove the age of the 1st appellant, on the Respondents.
3. Whether in the face of the presumptions provided for in Section 114 and 116 of the Evidence Act, the genuineness of the Exhibits tendered by the Respondents to prove the 1st appellant’s age were still in issue.
4. Whether the decision of the Appeal Tribunal is not perverse.
There is no doubt that the live issue for contention is the age of the 1st appellant at the time of the election. That is whether, 1st appellant was 35 years old at the date of the election.
To determine this issue, it will be necessary to look at the evidence adduced at the trial including all documentary exhibits tendered as well as oral evidence given.
There are clearly two sets of such evidence, one relied upon by the 1st appellant and the other relied upon by the 1st respondent.
The set relied upon by the 1st appellant are his own evidence, a sworn declaration of age Exhibit D1, sworn to by the uncle of the 1st appellant in 1993; then the evidence of the mother of the 1st appellant.
On the other hand, there are, Exhibit P1 original booklet containing the counter foil copies of all the primary Leaving School certificates of the pupils of Local Education Authority primary school Independence way Kaduna that finished in 1977. Then Exhibit P2, which is a counterfoil certificate No. 032613 in respect of one Sadiq Mamman. Then Exhibit P3 which is a personal file of Sadiq Mamman Lagos kept by the Ministry of Lands, survey and country Planning Kaduna. Out of Exhibit p3, are documents identified as exhibits p3A, Exhibit p3B, Exhibit p3D and Exhibit P3E.
Exhibit P3A is an application;
Exhibit P3B is an offer of appointment
Exhibit P3D is acceptance of offer of appointment
Exhibit P3E is a statement of result of Government
Day Secondary school Tafawa Balewa Way Kaduna.
Now all these documents were alleged to either relate to the 1st appellant or intact that he made them himself.
These are the documents considered by the Election Tribunal, accepted them as a proof that the 1st appellant was born in 1964, as against the evidence of the 1st appellant himself, the evidence of his own mother and a statutory Declaration of age Exhibit D1 made by the uncle of the 1st appellant in 1993, which tried to establish that the appellant was born in 1961.
The Election Tribunal rejected these set of evidence and found that the 1st appellant was not up to 35 years of age at the date of the election.
On the other hand, the Election Appeal Tribunal preferred the evidence of the 1st appellant, the evidence of the mother of the 1st appellant and Exhibit D1, the statutory Declaration of Age sworn to by the uncle of the 1st appellant 1993 for the appellant. It set aside the decision of the Election Tribunal and found that the 1st appellant was qualified to contest the election and re-affirmed the declaration and return made by 3rd Respondent.
The Attorney-General of the Federation supported the decision of the Election Appeal Tribunal as well as the senior counsel representing the 1st appellant.
The counsel for 1st respondent however, held different view. In the main he maintained that the documents they tendered are genuine and adequate to show that the 1st appellant was born in 1964 and therefore not qualified to contest the election. That the Election Appeal Tribunal was in error to interfere with the decision of the Election Tribunal.
I have myself given a very dispassionate consideration to the two sets of evidence and documents.
I can not in all honesty give any credibility to Exhibits P1 and P2 as well as Exhibits Pp3, P3A, P3B, P3D and P3C.
In respect of Exhibits P1 & P2, the booklet containing counterfoil of Local Education Authority Primary school Certificates for L.E.A. primary school Independence Way Kaduna for the pupil who finished in 1977. There is the evidence of the 1st appellant categorically denying that those documents relate to him. His clear evidence was that he attended a different Primary School; that is Our Lady’s Primary School Independence way Kaduna, where he did both his Nursery and Primary school and he left in 1976.
Again the name put on Exhibit P2 is just Sadiq Mamman.
Again, the officer who brought these documents PW 2 in his evidence seated that Exhibit P2 contained the name of Sadiq Mamman, while the name of the 1st appellant is Sadiq Mamman Lagos, and there is no picture on exhibit P2 to show who is Sadiq Mamman. That he personally does not know to which Sadiq Mamman Exhibit P2 was issued to.
It is also his piece of evidence that the normal procedure is to ask the pupil to supply the information to be included in the form. The information is given to the Headmaster by a class teacher, who inserts same in the certificate.
He finally concluded his evidence as follows:-
“I was not there when the information was collected. I cannot say whether the Headmaster followed the procedure in obtaining the information contained in Exhibit P2.”
Neither the Headmaster, nor the class teacher was called to verify the authenticity of the information contained in Exhibit P.2.
I now come to Exhibits P3, P3A, P3B, P3D & P3E.
These are set of documents extracted from an open file and were claimed to have been made by the 1st appellant himself. The 1st appellant had in clear terms disassociated himself from these documents. He categorically denied making them. He was never cross-examined on this issue, even after he made categorical allegations that the documents contained two different handwritings which were not his and he never signed any of them.
On the other hand, the mother of the 1st appellant gave clear evidence about the date of birth of the 1st appellant. She even went further to give the date of birth of the immediate senior sister of 1st appellant as well as the date of birth of his immediate junior sister. This evidence was never shaken under cross-examination. Then there is Exhibit D1, the statutory declaration of age of the 1st appellant made by his Uncle in 1993. This document can not by any stretch of Imagination be said to have been made or procured for the purpose of the present election.
In my candid view, the evidence of the mother of the 1st appellant as well as Exhibit D1, carry much more credibility than the collection of Exhibits P1, P2, P3, P3A, P3B, P3D & P3E; whose authenticity in my view are questionable.
In the circumstances I agree with the submission of the Attorney-General of the Federation and J.B. DAUDU SAN that the decision of the Appeal Tribunal to the effect that the 1st appellant was not below 35 years of age at the time of the election.
It is my judgment that the decision of the Election Appeal Tribunal declaring Alh. Saddiq Mamman Lagos as the duly elected Chairman of Kaduna North Local Government council is correct and it is accordingly affirmed.
Appearances
Mr. J.B. Daudu (SAN) For Appellant
AND
G.A. Alley For Respondent
