HARUNA YUNUSA SAEED & ANOR v. PATRICK IBRAHIM YAKOWA & ANOR
In The Supreme Court of Nigeria
On Wednesday, the 8th day of February, 2012
SC.21/2012
RATIO
ELECTION PETITION: LEGISLATION THAT REPRESENTS RULES OF PROCEDURE FOR ELECTION PETITIONS
The First schedule to the 2010 Electoral Act (as amended) represents the Rules of procedure for Election petitions. And as Rules of court they do not confer jurisdiction. See OGUNREMI & ORS vs DADA & ORS (1962) N.S.C.C. 419 at 422. PER F. TABAI, J.S.C.
PROCEDURE: ESSENCE OF RULES OF PROCEDURE
Rules of procedure are made to enhance and facilitate the due administration of justice and are therefore meant to be obeyed. See G. M. O. NWORAH & SONS CO. LTD vs AFAM AKPUTA (2010) 9 NWLR (part 1200) 443 at 473; ANYAN vs A.N.N. LTD (1992) 6 NWLR (part 247) 319; AJAYI vs OMOROGBE (1993) 6 NWLR (part 301) 512. PER F. TABAI, J.S.C.
PROCEDURE: PRINCIPLE IN ADMINISTRATION OF JUSTICE
The current and prevailing principle in the administration of justice however is that where in the beginning or in the course of the proceedings, a party commits an omission or mistake in the laid down practice and procedure, it can be regarded as an irregularity which the Tribunal or court can and should rectify or even ignore so long as it is satisfied that the omission or mistake occasions or is incapable of occasioning any injustice to the other party. This is the principle deliberately engrafted by the Legislature into paragraph 53 (1), (2) and (a) of the First Schedule to the Electoral Act 2010 (as amended). PER F. TABAI, J.S.C.
EVIDENCE: DISTINCTION BETWEEN THEADMISSIBILITY OF A DOCUMENTARY EVIDENCE AND THE ASSESSMENT OF ITS PROBATIVE VALUE
In BUHARI Vs INEC (2008) 19 NWLR (part 1120) 246 this court, per Tobi JSC at pages 414 -415 re-emphasised this distinction between the admissibility of a documentary evidence and the assessment of its probative value. At page 414 he said:-
“There is a clear dichotomy between admissibility of document and placing probative value on it. While admissibility is based on relevance probative value depends not only on relevance but also on proof. An evidence has probative value if it tends to prove an issue.”
An continuing at page 415 he said:-
“Second, the witnesses who tendered the documents were not the makers and so cannot be cross-examined on the contents of the documents. As cross-examination plays a vital role in the truth searching process of evidence procured by examination in-chief it relates to authenticity or veracity of the witness, a court of law is entitled not to place probative value on evidence which does not pass the test of cross-examinations …”
See also OSIGWELUM Vs INEC (2011) 9 NWLR (part 253) 425 at 451. PER F. TABAI, J.S.C.
APPEAL: ATTITUDE OF THE APPELLATE COURT TOWARDS ASSESSMENT OF THE CREDIBILITY OF WITNESSES
It is settled that the assessment of the credibility of witnesses is exclusive preserve of a trial court and the attitude of an appellate court is not to interfere unless there are exceptionally strong reasons to do so. see ASANYA Vs STATE (1991) 4 NWLR (part 180) 422; POPOOLA vs ADEYEMO ( 1992) 8 NWLR (part 257) 1; ABOGEDE Vs STATE (1996) 5 NWLR (part 448) 270. PER F. TABAI, J.S.C.
JUSTICES
FRANCIS FEDODE TABAI Justice of The Supreme Court of Nigeria
JOHN AFOLABI FABIYI Justice of The Supreme Court of Nigeria
SULEIMAN GALADIMA Justice of The Supreme Court of Nigeria
NWALI SYLVESTER NGWUTA Justice of The Supreme Court of Nigeria
OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria
Between
HARUNA YUNUSA SAEED & ANOR. Appellant(s)
AND
PATRICK IBRAHIM YAKOWA & ANOR Respondent(s)
- F. TABAI, J.S.C. (Delivering the Leading Judgment): On the 28th of April, 2011, the Independent National Electoral Commission (2nd Respondent) conducted the election into the office of the Governor of Kaduna State. The 1st Respondent Patrick Ibrahim Yakowa contested the said election under the platform and sponsorship of the Peoples Democratic Party. The 1st Appellant on the other hand contested under the platform and sponsorship of Congress for Progressive Change. The 2nd Respondent declared the 1st Respondent the winner with the score of 1,334,319 valid votes; while the 1st Appellant was recorded to have scored 1,133,564 valid votes. The 1st Respondent was following the declaration and return sworn in as the Governor of Kaduna State. The Appellants were not satisfied with the result of the election announced by the 2nd Respondent and therefore filed this petition at the Governorship/Legislative Houses Election Tribunal, Kaduna on or about the 19th May, 2011. The 1st and 2nd Respondents filed their respective replies. The petition then went into trial with the petitioners/Appellants calling 33 witnesses. The 1st Respondent called 7 witnesses, while the 2nd Respondent called no witness. And after the respective final addresses of counsel on behalf of the parties, the trial tribunal gave its considered judgment.
The petitioners were not satisfied with the said judgment and thus proceeded on appeal to the Court below. The appeal was therein dismissed. The Petitioners were still aggrieved by the judgment of the Court below and have come here on further appeal by their Notice of appeal dated and filed on the 23rd December, 2011. The said Notice of Appeal raised eight grounds of appeal. On the 2nd of February, 2012 this Court granted leave to file and argue eleven additional grounds of appeal. The resultant amended Notice of Appeal contains nineteen grounds of Appeal.
Based on the said nineteen grounds in the Amended Notice of Appeal, the parties have through their counsel filed and exchanged their briefs of argument. The Appellants’ Brief was prepared by Kabiru Tanimu Turaki, SAN and same was dated and filed on the 25th of January, 2012. The 1st Respondent’s Brief was prepared by J. B. Daudu, SAN. It is dated and was filed on the 31st January, 2012. The Brief of the 2nd Respondent was prepared by Emmanuel J. J. Toro, SAN. It is dated 31st of January, 2012 but filed on the 2nd February, 2012. All these briefs were adopted and relied upon by counsel for the respective parties on the 2nd of February, 2012.
In the Appellant’s Brief, Kabiru Tanimu Turaki, SAN formulated eight issues as follows:-1. Whether it was proper for the Lower Court to have lumped together the ten issues distilled for determination by the appellants even though the complaint before them was that the trial tribunal misdirected itself by taking the three issues together.
(Ground 10).
2. Whether the failure of the Lower Court to reach a decision one way or the other on the various issues and complaints competently raised before them has not occasioned a travesty of justice (Ground 20).
3. Whether the lower court was right to have deemed ground 10 of the notice and grounds of appeal before the lower court regarding Kauru Local Government as abandoned even though admittedly, strenuous arguments had been canvassed in support thereof under issues 1 and 4 (Grounds 6, 9 and 14).
4. Whether all the 1,376 electoral documents which are documents duly certified and authenticated by the 2nd Respondent tendered and admitted without objection could be said to be dormant and of no evidential value (Grounds 2, 3, 15 and 16).
5. Whether the exclusion of the evidence of the expert witnesses PW31 – 33 and their reports even though unchallenged and uncontroverted, was proper and sustainable in law (Grounds 1, 17 and 18).
6. Whether the Lower Court was not in error by failing to draw a distinction between proof of criminal allegations and proof of non-compliance with the Electoral Act and whether the Appellants proved the allegations of non-compliance with the Electoral Act made against the 2nd Respondent in the conduct of the 28th April, 2011 Governorship Election in Kaduna State as clearly shown in the various oral and/or documentary evidence in the records (Grounds 1, 7, 12 and 13).
7. Whether the Appellants were bound to call a community of witnesses in proof of civil and criminal allegations in the conduct of the Governorship Election of 28th April, 2011 in Kaduna State (Ground 19).
8. Whether considering the totality of the records and the extant provisions of paragraph 54 of the 1st
schedule of the Electoral Act vis a vis the Federal High Court Rules, the conclusion of the lower court in relation to the evidence of PW1 is sustainable (Ground 11).J. B. Daudu, SAN raised a preliminary objection on the jurisdiction and competence of the petition. The preliminary objection is argued in the 1st Respondent’s Brief. And on the said 1st Respondent’s Brief, he formulated the following four issues for determination.
29. Whether any of the 10 issues for determination formulated for determination was not considered by the Court of Appeal so as to suggest that the appellants were denied proper hearing [Issue no 1] [Grounds 6, 9, 10, 14, & 2].
30. Whether the Court of Appeal was right in affirming the Tribunal’s conclusion that both grounds of
corrupt practices and non compliance with the provisions of the Electoral Act were not established at all by the Petitioners [Issue no 2] [Grounds 1, 7, 11, 12, 13 & 19].
31. Whether the Court below was right when it affirmed the conclusion of the trial Tribunal that the thousands of documents dumped without testing and demonstration were of any value to the case of the Petitioners [Issue no 3] [Grounds 2, 3, 15 & 16].
32. whether the court below rightly affirmed the worthlessness of the Appellants expert witnesses
[Issue no 4] [Grounds 4, 17 & 18].In the 2nd Respondent’s Brief, Emmanuel J. J. Toro, SAN formulated five issues for determination in the following terms:-
1. Whether the Learned Justices of the Court of Appeal were right in dismissing the appellants’ appeal and affirming the judgment of the trial Tribunal because having regard to the pleadings in the election petition and the quality of the evidence adduced in support thereof, both oral and documentary, the appellants upon whom the burden of proof was cast had failed to establish the various allegations of criminal acts and electoral malpractices upon which they anchored or predicated their election petition.
(Ground of appeal Nos. 1st, 5th and 20th).
2. Whether in the circumstances of this appeal, the learned justices of the court of Appeal were right in affirming the judgment of the trial Tribunal that the sumptuous documentary evidence tendered by appellants’ counsel from the Bar lacked probative value or credibility in the absence of credible oral testimony of witnesses to demonstrate or explain their purport or purpose and link same to relevant aspects of the petition since the trial Tribunal could not embark on its own to examine or investigate such documentary evidence out of Court (Ground of appeal No. 2 &16).
3. Whether the learned Justices of the Court of Appeal were right in holding that the trial Tribunal had
properly evaluated the evidence of the witnesses adduced at the trial inclusive of the documentary evidence in the light of the pleadings before it in the election petition before arriving at the findings and conclusion that the appellants as the petitioners had failed to prove their petition. (Ground of appeal Nos. 3, 6, 7 and 8)
4. Whether the learned Justices of the Court of Appeal were correct in affirming the decision of the trial Tribunal to the effect that the three witnesses paraded by the appellants as experts did not qualify as experts and therefore in rejecting or discountenancing their testimony and the reports tendered through them. (Ground of appeal Nos. 4, 17 & 18).
5. Whether their Lordships of the Court of Appeal were right in affirming the judgment of the trial Tribunal to the effect that in the circumstances of the present appeal the principle of severance of pleadings is inapplicable to the present appeal (Ground of appeal No. 11, 12 & 13).
He also associated himself with the arguments of J. B. Daudu, SAN for the 1st Respondent with respect to the preliminary objection.
Because of the constraints of time I would not recapitulate the arguments of counsel in their respective briefs of argument. Rather, I would proceed to determine and resolve the issues.
First is the preliminary objection. It was the submission of Daudu SAN that in view of the admitted failure of the petitioner to apply for prehearing session as required by paragraph 18 of the 1st schedule to the Electoral Act 2010 as amended the petition is incompetent. In his reaction, Kabiru Tanimu Turaki SAN for the appellants submitted that the pre-hearing information sheet filed by the Appellants at the trial tribunal on the 24th June, 2011 satisfied the provisions of paragraph 18 (1) of the 1st schedule to the Electoral Act. It was his further submission that even if there was non-compliance with the requirement of application for prehearing session, the non-compliance is only a procedural irregularity, not capable of vitiating the proceedings. This, learned senior counsel contended, is particularly so where, as in this case, the Respondent complains of no-miscarriage of justice and has taken steps in the proceedings after becoming aware of the non-compliance. Reliance was placed on FAMFA OIL LTD Vs A.G.F. (2003) 2 NWLR (part 852) 453 at 467 – 468.
Now paragraph 18 (1) of the 1st schedule to the Electoral Act 2010 provides:-
“Within 7 days after the filing and service of the petitioner’s reply on the Respondent or 7 days after the filing and service of the Respondent’s reply, as the case may be, the petitioner shall apply for issuance of pre-hearing Notice as in Form TF 007”.
I have carefully examined the records of this appeal and I cannot find any application strictly within the meaning of paragraph 18 (1) of the 1st schedule to the Electoral Act. Learned Senior Counsel for the Appellants contended that the pre-Hearing Information Sheet filed at the trial Tribunal was sufficient compliance with the provision of paragraph 18 (1) of the 1st Schedule to the Electoral Act 2010 (as amended). The said pre-Hearing Information Sheet is at pages 396-399 in Vol. 2 of the record. It is dated 23rd of June, 2011 and filed on the 24th of June, 2011. I have examined it carefully and I do not, with respect, agree that it is strictly an application within the meaning of paragraph 18 (1) of the 1st Schedule to the Electoral Act. Be that as it may, there is no doubt whatsoever that it is a step taken by the petitioners/Appellants at the trial Tribunal for the issuance of Pre-Hearing Session Notice to the parties.
And following this filing of the Pre-Hearing Information Sheet, the parties through their counsel submitted to the trial Tribunal issues for determination of the petition. On the 19th of July, 2011, the Tribunal issued the Pre-Hearing Report and Scheduling wherein it adopted, the 1st and 2nd issues proposed by the Petitioners/Appellants, the 1st issue of the 1st Respondent and the 1st issue of the 2nd Respondent and came up with the following three issues which it considered appropriate for the determination of the petition :-
(1) Whether the Governorship Election of 28th April, 2011 in Kaura, Zango Kataf, Jaba, Kachia, Kagarko, Sanga, Chikun, Jema’a, Kajuru and Kauru Local government Areas of Kadunu State was not marred by corrupt practices, fraud, outright rigging and other votes. It yes, whether in those circumstances the 1st Respondents scored lawful majority votes to be return by the 2nd Respondent as the winner of the said election.
(2) Whether the petitioners have established the allegation of corrupt malpractices which for all intends and purposes amounts to the commission of some beyond reasonable doubt as to enable them the reliefs sought in this petition.
(3) If the answer to Nos 1 and 2 above are in the affirmation whether the 1st petitioner ought not to be returned by the 2nd Respondent as the winner of the Election.
(See pages 1320-1322 of the record).
I have earlier held that from the facts available in the records of appeal there was no evidence of the strict compliance with the provisions of paragraph 18(1) of the 1st Schedule to the Electoral Act 2010 (as amended). The crucial issue however is whether having regard to the various steps taken by the Petitioners/Appellants non-compliance can be held to be fatal to the petition Put more specifically, whether in view of the petitioners/Appellants filing of the Pre-Hearing Information Sheet and the formulation of their issues for determination, the Respondents reaction thereto by their own formulation of the issues for determination and the trial Tribunal’s adoption of these issues which it compressed into the above three key issues, the non-compliance can rightly be held to be fatal to the petition
This issue was raised at the Court below and in its judgment at pages 2853 -2854 the court relying on ONYEDEBELU Vs NWANERI (2005) 1 LRECN 207 at 212 found as follows:-
“It is crystal clear that the failure of the Appellants in this appeal to comply with the mandatory and obligatory provisions of paragraph 18 sub-paragraph (1) of the First Schedule to the Electoral Act 2010 (as Amended) which is condition precedent to the entertainment of or adjudication of the said petition ought to have rendered the said determination of the petition by the Tribunal invalid. The trial Tribunal should have dismissed the petition pursuant to paragraph 18 (4) of the First schedule to the Electoral Act 2010 (as amended).”
I wish to state, with respect, that the above approach of the Court below is far too restrictive and technical. The First schedule to the 2010 Electoral Act (as amended) represents the Rules of procedure for Election petitions. And as Rules of court they do not confer jurisdiction. See OGUNREMI & ORS vs DADA & ORS (1962) N.S.C.C. 419 at 422. It follows therefore that a petitioner’s breach of any of the provisions of the 1st schedule does not affect the jurisdiction of the Tribunal or court to entertain or adjudicate on the petition. Rather, such a breach, if substantial, can only amount to the petitioner’s failure to prosecute the petition with the consequence of its dismissal. It is also clear from the reproduced portion of the judgment of the court below that it invoked the provisions of paragraph 18(1) of the First Schedule to the Electoral Act without taking into cognisance the saving provisions of paragraph 53 (1), (2) and (a) of the same schedule. Paragraph 53 (1), (2) and (4) provide:-
“53 (1) Non-compliance with any of the provisions of this schedule, or with a rule of practice for the time being operative, except otherwise stated or implied, shall not render any proceeding void, unless the Tribunal or Court so directs, but the proceeding may be set aside wholly or in part as irregular, or amended, or otherwise dealt with in such a manner and on such terms as the Tribunal or Court may deem fit and just.”
“(2) An application to set aside an election petition or a proceeding resulting there from for irregularity or for being nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.”
“(4) An election petition shall not be defeated by an objection as to form if it is possible at the time the objection is raised to remedy the defect either by way of amendment or as may be directed by the Tribunal or Court.”
Rules of procedure are made to enhance and facilitate the due administration of justice and are therefore meant to be obeyed. See G. M. O. NWORAH & SONS CO. LTD vs AFAM AKPUTA (2010) 9 NWLR (part 1200) 443 at 473; ANYAN vs A.N.N. LTD (1992) 6 NWLR (part 247) 319; AJAYI vs OMOROGBE (1993) 6 NWLR (part 301) 512.
The current and prevailing principle in the administration of justice however is that where in the beginning or in the course of the proceedings, a party commits an omission or mistake in the laid down practice and procedure, it can be regarded as an irregularity which the Tribunal or court can and should rectify or even ignore so long as it is satisfied that the omission or mistake occasions or is incapable of occasioning any injustice to the other party. This is the principle deliberately engrafted by the Legislature into paragraph 53 (1), (2) and (a) of the First Schedule to the Electoral Act 2010 (as amended). I wish to emphasise again that the approach of the court of Appeal was too restrictive and technical, capable of undermining the very ends of justice for which the rules of procedure in the schedule were made. In the circumstances of this case, the court below had a duty to read the provisions of the First schedule to the Electoral Act 2010 (as amended) holistically, and construe same widely and generously to give effect to its manifest intention. And the manifest intention of the provisions of the First Schedule is for the Tribunal or Court to do substantial justice and not technical justice, There is no complaint whatsoever by the Respondents that the absence of the petitioners/Appellants’ formal written application to the Tribunal for the issuance of Pre-Hearing Notice was prejudicial to their defence.On the preliminary objection therefore, I hold that in view of the steps taken by the petitioners/Appellants by their filing of the Pre-Hearing Information Sheet and the submission of their issues for determination of the petition and the corresponding steps taken by the Respondents in reaction thereto in their defence of the petition, the petitioners/Appellants cannot rightly be held to have abandoned the petition under paragraph 18 (4) of the First Schedule to the Electoral Act 2010 (as amended). And in the light of the foregoing considerations I hold that the preliminary objection lacks merit and is accordingly overruled is accordingly dismissed.
Let me now consider the issues in this appeal. I have earlier above reproduced the issues for determination submitted by the parties. While they are different in numbers, they are the same in substance. In my view, the ultimate question is whether there is, on record, such quality of evidence that sustains or ought to sustain the petition. And in the resolution of this ultimate question, the first step is the determination of that part of the mass of evidence which constitutes the admissible and legal evidence. And finally, the determination of whether the concurrent decisions of the two courts below are supported by such legal evidence.
But before doing so, let me briefly examine the Appellant’s issues one and two and the 1st Respondent’s issue one. At the court below, the Appellants submitted ten issues for determination. In its judgment, the court below decided to treat them together because in its view the issues are interrelated. At page 2865 of the record, the court per Aboki JCA reasoned as follows:-
“I will now turn to the ten solid issues propositioned by the Appellants in this appeal for determination of this court. They seem interrelated and congruous with one another that I am tempted to consider them together since one leads to the other.”Learned Senior Counsel for the Appellants referred to the above reasoning of the court below and pointed out the issues where exclusively diverse, distinct and independent of each other and therefore needed to be treated distinctly. It was his submission therefore that by taking all the ten issues together in a rather rushed manner the Appellants were denied fair hearing. Learned Senior Counsel for the 1st Respondent on the other hand argued that the statement of the Court below at page 2865 notwithstanding, all the issues were considered and resolved by the court below. It was his further submission that there is no pre-ordained style of writing judgments and that in view of the attendant time constraints in election cases the procedure adopted by the court below cannot be faulted.
The Notice of Appeal from the Tribunal to the court of Appeal contained 25 grounds of appeal from which the Appellants formulated ten issues for determination. These are contained at page 2480 -2481 vol. 7 of the record. I have examined the issues and the questions raised therein included whether on the strength of the oral testimony of the 33 witnesses called by the Appellants and the 1,376 documentary evidence tendered, the various allegations constituting non-compliance with the Electoral Act were proved. The issues also included the question of whether there is a line of distinction between proof of criminal allegations and proof of non-compliance with the Electoral Act. There were also the questions of whether the PW31, PW32 and PW 38 were experts and whether the documentary evidence tendered by them ought to have been accorded probative value.I have had a careful look at the judgment and I am satisfied that its decision to consider the ten issues together notwithstanding, the court below addressed the various issues raised. As I stated earlier, the core issue is whether there is such quality of evidence that can be held to have sustained the petition. And in an attempt to assess the quality of evidence the court even embarked on a re-appraisal of evidence to ensure that the decision of the Tribunal was not perverse: It is my view and I hold therefore that, the approach of the court below did not inflict any denial of justice to the Appellants.
I now come to the Appellants’ 4th issue which is the 1st Respondent’s 3rd issue and the 2nd Respondent’s 2nd issue. At the trial, some 1,376 documentary exhibits were tendered across the Bar by learned counsel for the Appellants. And they were admitted in evidence without objection. They are 2nd Respondent’s election materials and their certification and authenticity are not questioned. With respect to the probative value of these documents the trial Tribunal held that the documents not having been tendered by their makers, that is, INEC Officials, polling agents, collation agents or supervisors who alone could explain their contents and purport and answers questions in cross-examination on them, they had no probative value and therefore worthless. The Tribunal relied on Section 91 (1) (b) of the Evidence Act Laws of the Federation 2004 now Section 83 of the Evidence Act 2011 and a number of case law authorities amongst them FLASH FIXED ODDS LTD Vs AKATUGBA (2001) 9 NWLR (part 717) 28; ATIKPEKPE Vs JOE (1999) 6 NWLR (part 607) 443.
The court below affirmed the findings and conclusions of the Tribunal. In its judgment at page 2885 vol. 7 of the record, the court concluded:-
“It is trite that for a document admitted in evidence in the course of the proceedings to be useful to the court, it must be accompanied by admissible evidence by persons who can explain their purport; where this is not done, the documents remain documents admitted in evidence without any weight to the attached to them because they are worthless and lack probative value”The substance of the submission of Kabiru Tanimu Turaki, SAN is that the documents being certified true copies of electoral documents they are admissible without much ado even from the bar and the failure to tender them through the makers does not diminish their probative value. It was his further submission that the Tribunal and the Court below had unqualified duty to examine, evaluate and utilise any exhibit already admitted. J. B. Daudu, SAN for the 1st Respondent conceded and restated the position of the law that once a document is received in evidence and is so marked it becomes evidence before that court which has a duty to evaluate the probative value. It was his submission however that for any document to be qualified to be so evaluated it must be tested or demonstrated before that court.
The substance of the submissions of Emmanuel J.J. Toro, SAN for the 2nd Respondent is much to the same effect as the submissions on behalf of the 1st Respondent. In addition, learned senior counsel remarked that learned senior counsel for the Appellants who tendered the documents across the bar could not be cross-examined on their contents.
He emphasised the fundamental difference between admissibility of documentary evidence and the probative value or credibility of such evidence contending that admissibility of documentary evidence does not automatically confer credibility or probative value on such admitted evidence. He cited a number of authorities some of which I consider quite apposite to the situation under consideration.
Still on this issue of whether the court ought to have evaluated and accorded probative value to the mass of documentary evidence tendered by the Appellants, learned senior counsel for the 2nd Respondent submitted that the mass of documentary evidence the veracity of which contents the opposing parties had no opportunity of testing in cross-examination cannot be suo motu examined by the court outside the court as that would amount to doing cloistered justice in breach of the principle of fair hearing enshrined in Section 36 (1) 1999 Constitution (as amended). It was his further submission that such a procedure would be tantamount to the court embarking on an investigation which is not the function of the court.
I have carefully considered the submissions of counsel on this issue of whether the court ought to have examined and accorded probative value to the mass of 1, 376 documents tendered and admitted without objection. There is no doubt that the documents form part of the legal evidence before the court which, under normal circumstances, is therefore bound to evaluate them and assess their probative value. But in the peculiar circumstances of this case where these documents were tendered across the bar by learned counsel for the Appellants who, not being their maker, was not in a position to answer questions on their contents and without affording the opposing parties the opportunity to examine and possibly test their veracity, the court cannot embark upon their evaluation so as to assess their probative value. It surely cannot do that without occasioning some miscarriage of justice or the possibility of it. As Emmanuel J. J. Toro SAN rightly submitted the admissibility of these documents is one thing and the assessment of their probative value completely another. As stated earlier, he cited a number of authorities which I consider quite apposite on the point. In MOTANYO Vs ELINWA (1994) 7 NWLR (part 356) 252 at 260 this court per Kutigi JSC (as he then was) emphasised the distinction in the following terms:-
“The High Court therefore acted properly when it admitted the documents in evidence. It must be noted at once that the legal admissibility of a piece of evidence is one thing, while the weight the court would attach to such evidence after it has been admitted is quite another thing. Similarly, the competence of a particular person to give evidence in a particular proceeding is a different thing from what weight the court will give to the evidence of such a witness.”In BUHARI Vs INEC (2008) 19 NWLR (part 1120) 246 this court, per Tobi JSC at pages 414 -415 re-emphasised this distinction between the admissibility of a documentary evidence and the assessment of its probative value. At page 414 he said:-
“There is a clear dichotomy between admissibility of document and placing probative value on it. While admissibility is based on relevance probative value depends not only on relevance but also on proof. An evidence has probative value if it tends to prove an issue.”
An continuing at page 415 he said:-
“Second, the witnesses who tendered the documents were not the makers and so cannot be cross-examined on the contents of the documents. As cross-examination plays a vital role in the truth searching process of evidence procured by examination in-chief it relates to authenticity or veracity of the witness, a court of law is entitled not to place probative value on evidence which does not pass the test of cross-examinations …”
See also OSIGWELUM Vs INEC (2011) 9 NWLR (part 253) 425 at 451.On this issue about the mass documentary exhibits, I have no reason to disturb the concurrent findings of the two courts below. It is apparent from the records that learned counsel for the petitioners/Appellants were labouring to complete the prosecution of the petition within the rather discomforting time frame when they tendered the mass of documents the way they did. But that desire to meet the prescribed time frame cannot be allowed and/or achieved at the expenses of the constitutionally guaranteed substantial justice. Fore the foregoing reason, I resolve this issue in favour of the Respondents.
The Appellants’ next issue pertains to whether it was proper to exclude the evidence of the PW31, 32 and 33 and the reports they tendered in evidence. This issue was comprehensibly addressed by the trial Tribunal at pages 2264 – 2279 of vol. 6 of the records. The PW31 was Mohammed Sandaji of the Department of Accountancy A.B.U. Zaria. He admitted under cross-examination that he was not a handwriting or document examiner. He was neither a forensic expert and nor was he handwriting expert. He said he was paid N150,000.00 for his engagement for the testimony. The PW32 was Musa Shu’aibu Rade, he too was paid N20,000.00 for his job of testifying for the petitioners/Appellants. And the PW33 was Abubakar Sadiq Abdullahi. He also admitted that he was neither a forensic expert or an handwriting expert and for the job of his testimony, he was also paid N20,000.00.
With respect to their credibility, the trial Tribunal stated at page 2279 of the records as follows:-
“The 3 witnesses are persons hired and paid by the petitioners who together with their team of lawyers gave their instructions as to the type of report they should produce; definitely, they cannot be neutral or objective in their report. These witnesses can be regarded as ‘persons interested’ within the meaning of Section 91 (3) of the Evidence Act.”
As I stated earlier in this judgment, the court below also embarked on some re-evaluation of the evidence to ensure that the findings of the trial Tribunal were supported by the evidence on record. On the Tribunal’s findings as to the credibility of these three witnesses the court below at page 2889 2890 vol. 7 of the record reproduced and approved the findings of the trial Tribunal.
It is settled that the assessment of the credibility of witnesses is exclusive preserve of a trial court and the attitude of an appellate court is not to interfere unless there are exceptionally strong reasons to do so. see ASANYA Vs STATE (1991) 4 NWLR (part 180) 422; POPOOLA vs ADEYEMO ( 1992) 8 NWLR (part 257) 1; ABOGEDE Vs STATE (1996) 5 NWLR (part 448) 270.
In this case, the finding of the Tribunal on the credibility of the witnesses is amply supported by the evidence of the self same witnesses under cross-examination. I cannot find any reason whatsoever to interfere with the concurrent findings of the two courts below.
Besides, the evidence of the PW31, PW32 and PW33 were in support of what was pleaded in the petition. In paragraph 11 of the petition it was pleaded thus:-
“Your petitioners state that the facts upon which the petition is predicated are as follows:
1. The Ballot papers used in the Governorship election scoring the 1st petitioner and the 1st Respondent 1,133,564 and 1,334,319 votes respectively shall be subjected to forensic analysis of the finger prints, thumb impression and handwriting analysis by experts. Notice is hereby given to the 2nd Respondent to produce the said ballot papers.” (See page 17 vol. of the record).
For the purpose of this pleading the petitioners listed as item 25 their list of documents to be relied on as follows:-
“25 Forensic Analysis Report/Chart to be supplied by subpoenan Ducy team after inspection of electoral documents on the order of the Tribunal.”
At the trial rather than produce the Forensic Analysis Report/Chart as pleaded they tendered through the PW31, PW32 and PW33 Exhibits NNO, NNP – NNP2, NNQ, NNR, NNS, NNM and NNT. In its judgment, the trial Tribunal relying on some authorities reasoned and concluded as follows:-“Relying on the above case, we are fortified to hold that the petitioners having pleaded forensic expert/handwriting analysis cannot make use of the exhibits tendered by the PW31, PW32 and PW33 same not being forensic analysis or handwriting expert analysis as pleaded by them. Accordingly, these documents are to be discountenanced as they lack any evidential value.” (See page 2274 vol. 6 of the record).
I wish to state without hesitation that this finding cannot be faulted. It is not surprising therefore that it was affirmed by the court below in its judgment at page 2287 of the record.
Again I have no reason to interfere with the above concurrent findings. The result is that I also resolve this issue in favour of the Respondents.Let me now deal with the Appellants’ remaining issues 3, 6, 7 and 8 on the ultimate question of whether there is such quality of evidence that ought to sustain the petition. They all pertain to the issues of burden and standard of proof. The stance of the Respondents is that the allegations upon which the petition is predicated are criminal in nature, the proof of which must therefore be beyond reasonable. The Petitioners/Appellants on the other hand maintain that they are mere allegations of electoral malpractices and that should be on preponderance of evidence. The settled principle of law is that where crime is alleged in a civil proceeding, proof must be beyond reasonable doubt. See GBAFE Vs GBAFE (1996) 6 NWLR (part 455) 417; EZEONWU Vs ONYECHI (1996) 3 NWLR (part 438) 499. The Tribunal listed paragraphs 10, 11 (a)-(i), 12 (i-xiv), 14, 15,16, 17, 18 (a)-(g), 19,20,21,22,23,38,39, 48, 49 and 53 wherein criminal acts were alleged. The criminal acts alleged include stuffying of ballot papers, snatching of ballot boxes, ballot papers and other electoral materials, stealing of ballot boxes, ballot papers forms and result sheets from polling stations, destruction of ballot boxes, ballot papers, result sheets, use of firearms and violence during the election confliction of injuries and maiming of voters.
It was the submission of learned senior counsel for the Respondents that there was no proof of these allegations beyond reasonable doubt. The trial Tribunal accepted this submission of the Respondents and held that apart from these paragraphs alleging electoral offences and/or criminality what was left could not stand on their own to sustain the petition. At pages 2282 – 2283 the trial Tribunal concluded:-“As can be seen the paragraphs which are devoid of criminality are devoid of any significance and cannot stand on their own to sustain the petition as the paragraphs where criminal allegations were pleaded are the centre of gravity to which other paragraph of the petition were attached.”
This finding was again endorsed by the court below at page 2889 vol. 7 of the records. On this issue of whether the Petitioners/Appellants proved their criminal allegations beyond reasonable doubt, I do not see any conceivable reason to disturb the concurrent findings of the two courts below.
I have taken time to look at the evidence in proof of the allegations. It is my firm view that even if the entire evidence were to be assessed on the basis of preponderance of evidence there cannot be said to such quality of evidence to sustain the petition. The trial Tribunal pointed out that the PW2, PW6, PW7 and PW8 each claimed to have witnessed evidence of electoral offences or malpractices in their Wards of their Local Government Areas. In actual fact however, each only gave evidence of what he saw at one polling unit. The Tribunal held, rightly in my view that their evidence even if accepted could not be taken to have substantially affected the entire election. The PW3, PW4, PW5, PW13 and PW15 each gave evidence of his displacement and thus inability to vote as a result of the post election violence. The trial Tribunal ruled that the evidence has nothing to do with what happened at or during the election and rejected same. The PW22 gave testimony which contradicted his earlier written deposition and the trial Tribunal rejected same on that ground. All these findings were affirmed by the court below. And having regard to the fact that they were supported by the evidence on record, I hold that I have no cause whatsoever to disturb the findings. The result is that I also resolve the remaining issues 3, 6,7 and 8 against the Appellants.
In view of the foregoing considerations, I hold in conclusion that the appeal lacks merit and same is accordingly dismissed. I make no orders as to costs.JOHN AFOLABI FABIYI, J.S.C.: This is an appeal against the judgment delivered by the Court of Appeal, Kaduna Division (‘the court below’ for short) on 11th December, 2011. Therein, the judgment of the Trial Tribunal in which the appellants’ petition was dismissed, was affirmed.
It is extant in the record of appeal that at the close of pleadings, the election petition went into Pre-trial Session after the parties had filed the requisite forms. At pages 1320 to 1324 of Volume 4 of the record, the trial Tribunal delivered and issued to the parties its Pre-Hearing Report and Scheduling dated 19th July, 2011 wherein, three core issues for determination were formulated as follows:-
“1. WHETHER the Governorship Elections of 28th April, 2011 in Kaura, Zangon Kataf, Jaba, Kachia, Kagarko, Sanga, Chikun, Jama’a, Kajuru and Kaura Local Government Areas of Kaduna State was not marred by corrupt practices, fraud, outright rigging and other vices. If yes, whether in those circumstances the 1st respondent scored lawful majority votes to be returned by the 2nd respondent as the winner of the said election.
2. WHETHER the Petitioners have established the allegation of corrupt malpractices which for all intends (sic) and purposes amounts to commission of same beyond reasonable doubt as to enable them obtain the reliefs sought in this petition.
3. If the answers to Nos. 1 and 2 above are in the affirmative whether the 1st Petitioner ought to have been returned by the 2nd respondent as the winner of the election.”
The petition thereafter went into a full-blown trial. The trial Tribunal in its judgment delivered on 13th October, 2011 dismissed the petition in its entirety. The Petitioners’ appeal to the court below was dismissed on 11th December, 2011. Still dissatisfied, the Petitioners have decided to appeal as to right to this court.
Let me point it out here that the objection raised on behalf of the 1st and 2nd respondents to the competence of the Petition before the trial Tribunal was overruled on 14th July, 2011. The motions on notice filed by them were brought pursuant to paragraph 18(1)(4) and (5) of the 1st Schedule to the Electoral Act 2010 (as amended).
On behalf of the 1st respondent, the 1st respondent’s senior counsel had cause to canvass the point before the court below. Learned senior counsel felt that non-issuance of pre-hearing notice in the manner provided by the 1st schedule to the Electoral Act, 2010 should nail the petition. It appears that the court below agreed with learned senior counsel but declined to nail the petition as it went ahead to decide the appeal before it on the merit.
Learned senior counsel for the 1st respondent has further canvassed the point before this court. Learned counsel contended that the failure by the appellants to apply for the issuance of a pre-hearing notice as prescribed by paragraph 18 of the First Schedule to the Electoral Act, 2010 (as amended) is a fundamental omission which is extrinsic to the jurisdiction of the trial Tribunal. He urged that the appeal be terminated and struck out on the ground that the petition had long died in the eyes of the law and could not be resurrected for any purpose.
It is in the record that the appellants and the respondents filed the requisite Forms in respect of pre-hearing session. There was the omission to file a motion to have the pre-hearing session which actually took place and the three core issues formulated by the trial Tribunal as reproduced above were issued to the parties on 19th July, 2011.
The essence of filling the pre-hearing notice as in Form TF007 and the answers thereto in Form FT008 by the Petitioners is to give the respondents an insight on the issues to be dealt with and narrowed down during the pre-hearing session. It’s non-filing at all can vitiate or void the petition.That the petitioner did not come by way of motion equates with mere irregularity which can be cured by paragraph 53 of the First Schedule to the Act. This is more so since the pre-hearing session was in fact conducted with parties’ counsel in attendance.
There is no doubt about it that there was procedural irregularity. But it was one which did not lead to any miscarriage of justice. Such a procedural irregularity should not vitiate the petition in the prevailing circumstance. It is the paramount duty of courts to do justice and not cling to technicalities inherent in rules of court so long as same have been substantially complied with and the object of the rule is not defeated and failure to comply has not occasioned a miscarriage of justice. The view of the court should be that non-compliance with any rules of court or any rule of practice does not generally render proceedings void. It is basic that election petitions, are by their nature, peculiar from other proceedings and very important from the point of public policy. It is the duty of courts to hear them without allowing technicalities to unduly fetter their jurisdiction. Refer to Egolum v. Obasanjo (1999) 7 NWLR (Pt. 661) 355 at 387; Abubakar v. Yar’Adua (2008) 4 NWLR (Pt.1078) 465 at 510 and Nwobodo v. Onoh (1984) 1 SCNLR 1 at 92.
The merit of the appeal should be considered as the preliminary objection is overruled.Let me now start the consideration of the appeal on it’s merit with issue (4) as formulated by the appellants. It reads as follows:-
“(4) Whether all the 1,376 electoral documents which are documents duly certified and authenticated by the 2nd respondent tendered and admitted without objection could be said to be dormant and of no evidential value.”
The above issue (4) is similar to the 1st respondent’s issue 3.1 and 2nd respondent’s issue (2).
It is the contention of the learned counsel for the appellants that since the 1,376 electoral documents tendered by the appellants were tendered by counsel from the Bar without objection, it was the duty of the trial Tribunal to consider them and not treat them as being dormant.
The respondents, on their own part maintained that since the contents of the documents were not demonstrated in court, they remain dormant as no oral evidence to explain their purpose was adduced. They cited a host of authorities in support of their contention.It is not in dispute that the vital 1,376 electoral documents were tendered from the Bar without any witness who testified to demonstrate their value in the open court. They were the type of documents which this court affirmed as rightly expunged by the Court of Appeal in Buhari v. I.N.E.C (2008) 19 NWLR (Pt.1120) 246 at 414. This is so as there is a clear dichotomy between admissibility of documents and the probative value to be placed on them. While admissibility is based on relevance, probative value depends not only on relevance but also on proof. An evidence has probative value if it tends to prove an issue.
The basic aim of tendering documents in bulk was to ensure speedy trial and hearing of election petition. But that does not exclude proper evidence to prop such dormant documents.
The tendering of electoral documents without adducing evidence on their contents is fatal to the appellants’ case at the trial. It is not the duty of the tribunal to examine documents outside the court. If done as urged by the appellants, such will equate with cloistered justice. See: Duriminiya v. Commissioner of Police (1961) 1 NRNLR 70; Queen v. Wilcox (1961) 1 SCNLR 296; (1961) All NLR 633; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; Zimit v. Mahmoud (1992) 2 LRECN 286 at 307; Onibudo v. Akibu (1982) 2 FNR 244; (1982) 7 SC 60.
The issue is resolved against the appellants and in favour of the respondents. The court below was in order when it affirmed the stance of the trial Tribunal on this issue.
The next issue of note is whether the court below properly evaluated the evidence on record before affirming the judgment of the trial Tribunal. It is the contention of the appellants that the evidence adduced by the parties was not properly evaluated by the trial Tribunal and the court below.Let me state it clearly here that an appellate court should not ordinarily substitute its own views of fact for those of the trial court which heard and watched the witnesses. See: Ebba v. Ogodo (1984) 1 SCNLR 372; Balogun v. Agboola (1974) 1 All NLR (Pt. 2) 66. An appellate court will not interfere with findings of fact except where wrongly applied to the circumstance of the case or the conclusion reached was perverse. See: Nnaji v. Chukwu (1996) 10 NWLR (Pt.578) 265; Ezekwesili v. Agbapuonwu (2003) 9 NWLR (Pt.825) 337 at 380; Woluchem v. Gudi (1981) 5 SC 291 at 320.
The trial Tribunal appraised the evidence adduced by the appellants and arrived at the conclusion that both grounds of corrupt practices and non-compliance with the provisions of the Electoral Act were not established at all. The trial Tribunal found that the appellants, as petitioners at the trial Tribunal, did not adduce any evidence to support their assertions of criminal allegations in two local governments while in others, one or two witnesses testified to say what happened in many wards where elections were conducted.
The court below re-evaluated the evidence on record and arrived at the same conclusion. The careful re-evaluation by the court below showed that the Petitioners’ claims were baseless. It is clear that this appeal is against the concurrent judgments of the trial Tribunal and the court below. I have stated it before that this court will not ordinarily interfere unless it has been shown that there has been a substantial error in law or procedure resulting in a miscarriage of justice. See: Nnajifor v. Ukonu (1986) 4 NWLR (Pt 36) 505; Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90 at 105.
No miscarriage of justice has been pinpointed by the appellants why the findings of the trial court and the court below should be disturbed. I shall not interfere. This issue is, without much ado, resolved against the appellants and in favour of the respondents.
The next issue seriously canvassed by the appellants is whether the court below was right in affirming the judgment of the trial Tribunal to the effect that in the circumstances of the present appeal the principle of severance of pleadings is inapplicable to this case.The appellants appeared to have thrown in the towel in respect of their general averments in respect of criminal allegations which were put up without specific particulars and at the tail end failed to prove same even on the balance of probability; talk less of proof beyond reasonable doubt as enjoined by section 138(1) of the Evidence Act. At the tail end, they tried to cling tenaciously to the principle of severance of pleadings.
The trial Tribunal on this issue in its judgment opined as follows:-
“Conscious of the fact that the petitioners failed to prove the criminal allegations which they predicated their petition upon, submitted extensively on the doctrine of severance of pleadings. The question to ask is whether the principle of severance of pleadings is applicable in the circumstance of the petition.”
The trial tribunal went ahead to answer the above poser when it held as follows:-
“The Petitioners relied on the case of Omoboriowo v. Ajasin (1984) 1 SCNLR 108. With respect to the learned lead counsel to the petitioners, Omoboriowo’s case is distinguishable from the case of Nwobodo v. Onoh (supra) which was delivered on the same day by the Supreme Court. In the circumstance we are of the humble view that the doctrine of severance is not applicable to this petition.”
From the averments in the petition, the main grouse therein principally and unequivocally relates to criminal allegations without which the other complaints will almost get extinct into the thin air. The petitioners are faced with the reality of the fact that they made commission of criminal acts “to be the centre of gravity to which other paragraphs in the petition were attracted” to employ the words of Bello, JSC (as he then was, now of blessed memory).
The evidence adduced by the petitioners before the tribunal was geared at proving criminality; though without success. They failed to establish a prima facie case even by the standard in a civil claim. The evidence in respect of criminal allegations jettisoned by the appellants and those devoid of them were seriously intertwined like a siamese twin. The trial tribunal could not separate them as was done by this court in Omoboriowo v. Ajani (supra).
The court below affirmed the findings of the trial court and held as follows in its own judgment –
“I must observe that the appellants did not present anything useful to discount the findings of the trial Tribunal. See: Buhari v. I.N.E.C (supra) at pages 391 – 392. It is interesting to note that the appellants having failed to prove the criminal allegations which they predicted their petition upon, sought to rely on the principle of severance of pleadings. See: Nwobodo v. Onoh (1981) 1 SCNLR 1.”
The court below affirmed the position taken by the trial Tribunal. I am convinced that they were in order in the joint stance taken by them. The principle of severance of pleadings canvassed strenuously on behalf of the appellants was to no avail.
The issue is resolved against the appellants and in favour of the respondents.
The next issue canvassed on behalf of the appellants is whether the court below was right in affirming the rejection of the evidence of P.W.31, P.W.32 and P.W.33 referred to as expert witnesses by the appellants at the trial Tribunal.
The learned counsel for the appellants maintained that the evidence of their Expert witnesses were discountenanced without justification. The respondents’ counsel submitted to the contrary and adduced various reasons.The trial Tribunal at page 2217 Vol. 6 of the record held as follows:-
“We accept the submissions of both respondents that a witness does not automatically become an expert simply because either himself or learned counsel have arrogated that status to him. It is our view that an expert witness must both in qualification and expertise satisfy the court that he is an expert on the subject in which he gives or is to give his opinion and must clearly state the reasons for his opinion. See: Kofar Wambai & Anr. v. Kano Native Authority (1965) NMLR 15.”
The trial Tribunal in its judgment disqualified the three witnesses branded as Expert witnesses on the ground that their evidence amounted to ‘documentary hearsay.’ The three witnesses were persons hired for fees on instructions by the appellants and their counsel to arrive at a particular destination. They were therefore ‘persons interested’ under section 91(3) Evidence Act. See: Awuse v. Odili (2005) 16 NWLR (Pt.952) 416 at 512. The three witnesses engaged in unauthorized recounting of votes. Whereas in an election petition once a result has been declared by Independent National Electoral Commission it is presumed to be correct and valid. It is only the court that can order for the recount of the votes in the presence of both/all the parties. See: Agagu v. Mimiko (2009) 7 NWLR (Pt.1140) 342 at 423-424. The three witnesses agreed under cross-examination that they were not handwriting experts or analysts as arrogated to them.
The court below affirmed the findings of the trial court and added that the reports tendered through the witnesses were not pleaded or listed by the appellants in their election petition as enjoined by law.Let me observe it here that one is at a loss to see from which documents the three witnesses made the computations in their respective ‘Report’ which they sought to tender. If they relied on the sumptuous documents tendered by the appellants’ counsel from the Bar, such was to no avail. This is so since even the trial Tribunal itself had no vires to look at them as they were not demonstrated in the course of trial as found earlier on in this judgment.
Looked at from all angles, it is clear to me that the court below was right in affirming the position taken by the trial Tribunal in refusing to allow the appellants ‘steal the show’ through the back door; as it were. If it had been allowed, such would not have been in tandem with justice or equity. The issue is resolved in favour of the respondents and against the appellants.
The last issue which I shall touch briefly is that relating to the complaint that the court below treated the entire ‘ten solid’ issues raised by the appellants in one fell swoop.I only need to state it that there are no hard and fast rules in the art of writing judgment. Every judge is, no doubt, entitled to adopt his own style so long as the judgment deals with and resolves all the germane issues in the case, all is well. The issues must be clearly identified; the evidence properly evaluated and the applicable law adequately invoked to arrive at a definite conclusion with proper orders dished out at the tail end. It does not fall within the province of an appellate court to criticize the style of writing judgment by a lower court once all the elements are present in the judgment. See: Mbaru v. Bosi (2006) 5 SC (Pt.111) page 34.
The court below dealt with all the issues and resolved them against the appellant. In my considered opinion, the complaint missed the target. I resolve the issue against the appellants and in favour of the respondents.
I wish to draw the curtain at this point. I hope I have covered all the salient issues.
I come to the conclusion that the appeal is devoid of merit and should be dismissed. I order accordingly and affirm the concurrent findings of the trial Tribunal and the court below. See: Seven-Up Bottling Co. v. Adewale (2004) 4 NWLR (Pt.862) 183. I agree with all the reasons advanced by my learned brother – Tabai, JSC.SULEIMAN GALADIMA, J.S.C.: The 1st Appellant and the 1st Respondent were candidates of Congress For Progressive Change (CPC) and Peoples Democratic Party (PDP) respectively for the Gubernatorial Election of 28/4/2011 in Kaduna State. The 2nd Respondent declared 1st Respondent the winner. He scored 1,334,319 votes followed by 1,333,564 votes scored by the 1st Appellant.
Dissatisfied with the result, the Appellants filed a petition at the election Tribunal in Kaduna on 19/5/2011. The trial Tribunal gave its considered judgment in favour of the 1st Respondent.
The appellants felt aggrieved and proceeded to Kaduna Division of the Court of Appeal. Their appeal was dismissed. Still aggrieved, the Appellants further appealed to this Court filing 8 Grounds of Appeal. On 2/2/2012 leave was granted to the Appellants to file and argue 11 additional Grounds of Appeal. The resultant amended Notice of Appeal now contains 19 Grounds of Appeal.
The parties through their respective counsel filed and exchanged Briefs of Argument. The Appellants’ briefs was dated and filed on 25/1/2012. The 1st Respondents Briefs was dated and filed on 31/1/2012. The Brief of the 2nd Respondent was dated 31/1/2012 but deemed filed on 2/2/2012
On 2/2/2012 we took and heard the Appeal. Respective counsel identified and adopted and relied on the Briefs of the parties.Appellants formulated 8 issues for determination as follows:
“1 Whether it was proper for the Lower Court to have lumped together the ten issues distilled for determination by the appellants even though the complaint before them was that the trial tribunal misdirected itself by taking the three issues together (Ground 10).
2. Whether the failure of the Lower Court to reach a decision one way or the other on the various issues and complaints completely raised before them has not occasioned a travesty of justice (Ground 20)
3. Whether the lower court was right to have deemed ground 10 of the notice and grounds of appeal before the lower court regarding Kaura Local Government, as abandoned even though admittedly, strenuous arguments had been canvassed in support thereof under issues 1 and 4 (Ground 6, 9 and 14).
4. Whether all the 1,376 electoral documents which are documents duly certified and authenticated by the 2nd Respondent tendered and admitted without objection could be said to be dormant and of no evidential value (Ground 2, 3, 15 and 16).
5. Whether the exclusion of the evidence of the expert witnesses PW31 – 33 and their reports even though unchallenged and uncontroverted, was proper and sustainable in Law (Grounds 4, 17 and 18).
6. Whether the Lower Court was not in error by failing to draw a distinction between proof of criminal allegation and proof of non-compliance with the Electoral Act and whether the Appellants proved the allegations of non-compliance with the Electoral Act made against the 2nd Respondent in the conduct of the 28th April, 2011 Governorship Election in Kaduna State as clearly shown in the various oral and/or documentary evidence in the records (Grounds 1, 7, 12 and 13).
7. Whether the Appellants were bound to call a community of witnesses in proof of civil and criminal allegations in the conduct of the Governorship Election of 28th April, 2011 in Kaduna State (Ground 19).
8. Whether considering the totality of the records and the extant provisions of paragraph 54 of the 1st schedule of the Electoral Act vis-a-vis the Federal High Court Rules, the conclusion of the lower court in relation to the evidence of PW1 is sustainable (Ground 11)”
The 1st Respondent formulated the following 4 issues for determination.
“29, Whether any of the 10 issues for determination formulated for determination was not considered by the Court of Appeal so as to suggest that the Appellants were denied proper hearing (Issue no 1)(Grounds 6, 9, 10, 14, and 20)
30. Whether the Court of Appeal was right in affirming the Tribunal’s conclusion that both grounds of corrupt practices and non compliance with the provisions of the Electoral Act were not established at all by the Petitioners(Issue no 2)(Grounds 1, 7, 11, 12, 13 & 19)
31. Whether the court below was right when it affirmed the conclusion of the trial Tribunal that the thousands of documents dumped without testing and demonstration were of any value to the case of the Petitioners(Issue no. 3) (Grounds 2, 3, 15 &16)
32. Whether the court below rightly affirmed the worthlessness of the Appellants expert witnesses (Issue no 4) (Grounds 4, 17 & 18)”
It is instructive to note however that the 1st Respondent raised a Preliminary objection and argued same in its Brief of Argument.
The 2nd Respondent distilled 5 issues for determination in the following terms:
“1. Whether the Learned Justices of the Court of Appeal were right in dismissing the appellants’ appeal and affirming the judgment of the trial Tribunal because having regard to the pleadings in the election petition and the quality of the evidence adduced in support thereof, both oral and documentary, the appellants upon whom the burden of proof was cast had failed to establish the various allegations of criminal acts and electoral malpractices upon which they anchored or predicated their election petition. (Ground of appeal No. 15 and 20)”
2. Whether in the circumstances of this appeal, the learned justices of the Court of Appeal were right in affirming the judgment of trial Tribunal that the sumptuous documentary evidence tendered by appellants’ Counsel from the Bar lacked probative value or credibility in the absence of credible oral testimony of witnesses to demonstrate or explain their purport or purpose and link same to relevant aspects of the petition since the trial Tribunal could not embark on its own to examine or investigate such documentary evidence out of Court (Ground of appeal Nos. 2 and 16).
3. Whether the learned Justices of the Court of Appeal were right in holding that the trial Tribunal had properly evaluated the evidence of the witnesses adduced at the trial inclusive of the documentary evidence in the light of the pleadings before it in the election petition before arriving at the findings and conclusion that the appellants as the petitioners had failed to prove their petition. (Ground of appeal Nos. 3, 6, 7 and 8).
4. Whether the learned Justices of the Court of Appeal were correct in affirming the decision of the trial Tribunal to the effect that the three witnesses paraded by the appellants as experts did not qualify as experts and therefore in rejecting or discountenancing their testimony and the reports tendered through them. (Ground of appeal No.4, 17 & 18).
5. Whether their Lordship of the Court of Appeal were right in affirming the judgment of the trial Tribunal to the effect that in the circumstances of the present appeal the principle of severance of pleadings is inapplicable to the present appeal.(Ground of appeal No. 11, 12 & 13).
Learned Senior Counsel for the 2nd Respondent associated himself with the argument and submissions of the Learned Senior Counsel for the 1st Respondent with respect to the preliminary objection.
The 1st respondent in their brief raised an objection to the effect that in view of the admitted failure of the petitioner to apply for pre-hearing session as provided by in paragraph 18 of the 1st schedule to the Electoral Act 2010, (as amended) the petition is incompetent. I have considered the arguments of respective counsel on this objection. I have read a number of authorities and conflicting views mostly of the courts below in recent time. Their view, with due respect, are too technical and restrictive, capable of not meeting the ends of Justice meant by the Civil Procedure rules.
The Courts had the duty to read the provisions of the 1st Schedule to the Electoral Act. 2010 (as amended) wholesale and construe same generously to give effect to its necessary and manifest intention. The manifest intention of the provisions of the 1st Schedule is for the Tribunal to do substantial justice and not to succumb to mere technicalities. It has not been demonstrated by the Respondents that the absence of the Appellants’ formal written application to the tribunal for the issuance of Pre-Hearing Notice was prejudicial to their defence at the trial Tribunal.
Appellants took steps by filing their Pre-Hearing Notice Information Sheet and submitted issues for determination of their petition. By the corresponding steps taken by the respondents in reaction thereto in their defence of the petition, the Appellants cannot rightly be said to have abandoned their petition under paragraph 18(4) of the 1st Schedule to the electoral Act 2010 (as amended). In view of the foregoing, I have come to conclusion that the preliminary objection is lacking in merit. It is overruled and accordingly dismissed.
Now to the issues submitted by the parties for resolution of this appeal. The issues are similar in substance. The question is whether there are, on record, such quality of evidence that can sustain or ought to sustain the petition. The resolution of this question will necessarily involve the determination of the mass of evidence submitted and admitted by the trial Court, and in addition careful examination of the concurrent findings of the two courts below.
Appellants in their issues 1 and 2 have complained about the procedure adopted by the Court below in treating the ten issues submitted by the Appellants together because the court held the view that the issues were intertwined and interrelated. The ten issues in my view, were not diverse and distinct and independent of each other. All said and done all the issues were considered and accordingly resolved by the court below. I cannot fault the court or adopting this style of resolving issues that are correlated and dependant on each other.
It is instructive to note that the ten issues raised from the 25 grounds of appeal by the Appellants are essentially about whether, on the strength of the oral testimony of the 33 witnesses called by the Appellants and the 1,376 mass documentary evidence tendered, comprising mostly various allegations constituting non-compliance with the Electoral Act, can be said to have been proved. These issues also include the question of whether there is a line of distinction between proof of criminal allegations and proof of non-compliance with the Electoral Act. There were also vexed questions of whether the PW31, PW32 and PW33 were experts and whether the documentary evidence tendered by them ought to have been accorded any probative value. These two last questions on expert evidence were raised in the Appellants’ issue 5 and 1st and 2nd Respondent’s issue 4 respectively.
Appellants’ 4th issue is similar in substance to the 1st Respondent’s 3rd issue and the 2nd Respondent’s 2nd issue. These issues, deal with some 1,376 mass of documents in respect of which the trial Tribunal had held that, the documents not having been tendered by their makers, (the INEC officials, polling agents collation agents or supervisors), who could explain their contents and purport during cross-examination, the said documents had no probative value and therefore worthless. The tribunal relied on S.83 of the Evidence Act, 2011. The Court below affirmed these findings of the Tribunal when it concluded thus: at page 2885 vol.7 of the Record of proceeding thus:-
“It is trite that for a document admitted in evidence in the course of proceedings to be useful to the court, it must be accompanied by admissible evidence by persons who can explain their purport; where this is not done, the documents remain documents admitted in evidence without any weight to be attached to them because they are worthless and lack probative value.”
The substance of the submission of Learned counsel for the Appellant is that the documents having been certified as true copies of electoral documents they are admissible without much ado, even so from the Bar and that the failure to tender them through their makers does not diminish their probative value. lt was further submitted that the two courts below had unqualified duty to examine, evaluate and utilize any exhibit already admitted. Learned counsel for the Respondents conceded to this position of the law, but however submitted that, for any document to be qualified to be so evaluated it must be tested or demonstrated before the court. They however contended that the Learned Senior counsel who tendered the documents across the bar could not be cross-examined on the contents of the documents so as to explain their purport. He struck a distinction between admissibility of documentary evidence and the probative value or credibility of such evidence. It is contended that admissibility of documentary evidence does not automatically confer credibility or probative value on such admitted evidence.
The case of MOTANYO v ELUWA (1994) 7 NWLR (Pt.356) 252 at 260 is an authority quite apposite in relation to his point, where this Court per KUTIGI JSC (as he then was) emphasized the distinction in the following terms:
“The High Court therefore acted properly when it admitted the documents (Judgments) in evidence. It must be noted at once that the legal admissibility of a piece of evidence is quite one thing which the weight the court would attach to such evidence after it has been admitted in quite another thing. Similarly, the competence of a particular person to give evidence in a particular proceeding is a different thing from what weight the Court will give to the evidence of such a witness.”
Also BUHARI v INEC (2008) 19 NWLR (Pt 1120) 246 at pp.414 and 415, this court per TOBI JSC re-emphasized the distinction between the admissibility of a documentary evidence and the assessment of its probative value.
At page 414 his Lordship had this to say:“There is a clear dichotomy between admissibility of document and plenary probative value on it. While admissibility is based on relevance, probative value depends not only on proof. An evidence has probative value if it tends to prove an issue.”
Continuing at page 415 of the report, he said:
“Second, the witnesses who tendered the documents were not the makers and so cannot be cross-examined on the contents of the documents. As cross-examination plays a vital role in the truth search process of evidence procured by examination in Chief it relates to authenticity or veracity of witness. A court of law is entitled not to place probative value on evidence which does not pass the test of cross-examination”
See further OSIGWELUM v INEC (2011) 9 NWLR (Pt 253) 425 at 451.
Mass production of documentary exhibits intended to be evidence to prove an issue must be relevant and of probative value. Not the quantity but the weight the court would attach to such evidence after their admissibility. Appellants were or might be constrained by time frame when the mass of documents were dumped on the Tribunal. The relevance of these documents were not demonstrated by any of the 33 witnesses. The law requires that the documents be so demonstrated or else the said documents would lose their probative value or relevance. In the case at hand, for this reason, the documents did not help the Appellants’ case at the Tribunal. This was the concurrent findings of the courts below. I cannot disturb same. Issue 4 is accordingly resolved in favour of the Respondents.
The next issue is dealing with exclusion of evidence of PW31, PW32 and PW33 and the reports they tendered in evidence. PW31 admitted under cross-examination that he was neither a handwriting or document expert. He was motivated by the cash payment of N150, 000 to testify. For similar engagement PW32 and PW33 were paid N20,000 respectively. The credibility and expertise of the witnesses were in doubt and impugned by the trial Tribunal. Also the court below, that embarked on some re-evaluation of the evidence of these witnesses, agreed with the trial Tribunal on the question of their credibility. It is now trite law that the assessment of the credibility of witnesses is exclusive preserve of a trial court. The attitude of the appellate court is not to interfere unless there are exceptionally strong reasons to do so, See ABOGEDE v STATE (1996) 5 NWLR (Pt.448) 270.
It is instructive to note that the evidence of PW31, PW32, PW33 were not in support of what was pleaded in the petition paragraph 11. Reliance was placed on Forensic Analysis Report/Chart “to be supplied.” But at the trial rather than produce the Forensic Analysis Report and chart as pleaded the Appellants tendered Exhibits “NNO, NNP-NNP2, NNQ” NNS, NNM and NNJ.”
In its judgment the trial Tribunal held that:
“The Petitioners having pleaded forensic expert/handwriting analysis cannot make use of the exhibits tendered by the PW31, PW33, PW33 same not being forensic analysis or handwriting expert analysis as pleaded by them. Accordingly these documents ore to be discountenanced as they lack any evidential value.”
The court below affirmed these findings of the trial Tribunal. The findings are concurrent. I cannot interfere as I have no reason to do so.
Issues 3, 6, 7 and 8, formulated by the Appellants, deal with the question of whether the Appellants have provided such quality evidence that ought to sustain their petition. The Respondents have contended that the allegations upon which the petition of the Appellants was predicated are criminal in nature, and they have heavy burden of proving the allegations. In other words, where the petitioner relies on allegations of crime, such offences must be proved beyond reasonable doubt. Paragraphs 10, 11, (a)-(i) 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 38, 39, 48, and 53 were listed by the Tribunal wherein criminal acts took place. The criminal acts include stuffing of ballot papers, snatching and stealing of ballot boxes, papers, forms and result sheets from polling stations, destruction of ballot boxes, papers, result sheets, use of firearms and violent conduct during election etc. The trial Tribunal accepted the submissions of the Respondents and held that apart from these paragraphs listed above alleging various electoral offences and/or criminal conduct there was no proof of the allegations beyond reasonable doubt. Again, this finding was endorsed by the court below. These concurrent findings of the two courts below cannot be disturbed. Even if the entire evidence were to be assessed on the basis of preponderance of evidence, there cannot be said to be such quality of evidence that can sustain the petition of the Appellants.
The trial Tribunal pointed out that the PW2, PW6, PW7 and PW8 each claimed to have witnessed instances of electoral offences or malpractices in some Wards of the Local Government Areas. It was found that each only gave evidence of what he saw at one polling unit. Hence the trial Tribunal righty held that their evidence could not have substantially affected the entire election. Also on the allegations of the PW3, PW4, PW5, PW13 and PW15 on their displacement, thus making it impossible to cast their vote as a result of the post election violence, the trial Tribunal rightly ruled that the evidence has nothing to do with what happened at or during the election and rejected their evidence. These findings were affirmed by the court below. I have no cause however to disturb the findings. Accordingly I resolve issues 3, 6, 7 and 8 against the Appellants.
In sum, I agree with my learned brother TABAI JSC that the appeal lacks merit and it is accordingly dismissed. I too, make no order as to costs.NWALI SYLVESTER NGWUTA, J.S.C.: The 2nd Respondent, the Independent National Electoral Commission (The INEC), conducted Governorship election on 28th April 2011 for all States in the Federation, with the exception of the five Tenure Elongation States.
In the election in Kaduna State, the 1st appellant was sponsored by his party, the 2nd appellant. The 1st Respondent contested the election on the platform of his party, the PDP. Apart from the 1st Appellant and the 1st Respondent, other candidates contested the election on the platforms of the respective registered political parties.
In the result published on the 29th April 2012, by the INEC (2nd Respondent), the 1st Respondent had a total score of 1,334,319 votes. The 1st Appellant came second with 1,133,564. In consequence, the 1st Respondent was declared winner of the election and returned as the Governor-elect of Kaduna State. He has been sworn in and has assumed duties as Governor of Kaduna State.
The Appellants challenged the return of the 1st Appellant as the Governor of the State at the Governorship and Legislative Houses Election Tribunal constituted for Kaduna State. Pleadings were filed and exchanged. The Appellants’ attempt to file “answers” to the Respondents’ reply was struck out on the objection raised by the Respondents.
At the conclusion of the hearing, the Tribunal in its considered judgment delivered on 13th October 2011, dismissed the petition in its entirety. Aggrieved by the judgment, the appellants appealed to the Kaduna Division of the Court of Appeal. The said Court dismissed the appeal on 11th December 2011 thereby affirming the judgment of the Tribunal.
The appellants were not satisfied with the judgment of the lower Court and have appealed to this Court on a total of 20 grounds from which 8 issues were distilled for determination.
1st Respondent filed a notice of preliminary objection and proffered argument on same in his brief. In addition in case he is overruled he presented four issues for determination. The 2nd Respondent distilled five issues from the appellants’ grounds of appeal for determination.
A preliminary objection as a threshold issue, its intention is to scuttle the hearing of the appeal. See Galadima v. Tambia (2000) 6 SC (Pt. 1) 196 at 707. The Court is bound to give a ruling on the preliminary objection one way or the other. See Onyekwuluje v. Animashaun (1996) 3 SCNJ 24 at 35.The preliminary objection is to the effect that:
“This appeal is incompetent in that pursuant to the admitted failure of the petitioner to apply for pre-hearing as required by paragraph 18 of the Schedule to the Electoral Act 2010 (as amended) and the conclusions of the Court of Appeal at page 2853 – 2854 of Volume 7 of the printed record in which the Court found that non-compliance with the above Rule ought to have terminated the proceedings.”
In conclusion of his argument on the preliminary objection, the learned Silk for the 1st Respondent urged the Court to uphold the preliminary objection and strike out the appeal. Learned Senior counsel for the 2nd Respondent did not raise a preliminary objection but aligned with his brother Silk on the issue.
Learned Senior Counsel for the appellant, in his reaction to the preliminary objection and the argument offered described same as an abuse of the process of Court. He argued that the respondent who did not cross appeal cannot be allowed to raise the point of non-compliance with paragraph 18 of the 1st Schedule to the Electoral Act 2011 as of right. In the alternative, the learned Silk argued that since paragraph 18(1) of the 1st Schedule to the Act did not make specific provision as to how a petitioner shall apply for issuance of pre-hearing notice the pre-hearing information sheet filed by the appellants before the trial Tribunal satisfied the requirements of paragraph 18(1) of the 1st Schedule to the Electoral Act 2011
Paragraph 18(1) of the 1st Schedule to the Electoral Act 2011 requires that:
“… the Petitioner shall apply for the issuance of pre-hearing notice as in Form TF 007.”
Going by the letter of Paragraph 18(1 of the 1st Schedule to the Electoral Act 2011 as amended, one would say that the objection raised by the 1st Respondent is sustainable. Be that as it may, the spirit shall prevail over the letter of the law. In the quest for the elusive abstraction called justice our laws and rules have come of age. Technicality with its stifling strictures must yield place to substantial justice.
The purpose of pre-hearing notice is to inform the parties of the impending hearing and to ensure attendance at the hearing. If for any reason or by any means this purpose is achieved without formal application for issuance of pre-hearing notice a party who has taken part in the proceedings cannot be held to argue that the rule has not complied with, more so when there is no allegation of miscarriage of justice from the non-compliance. See Ipinlaiye v. Olukotun (1996) 6 SCNJ 74 at 88; Aikwiwu v. Principal Lotteries Officer Midwest (1972) 1 All NLR 233 at 238; Okwechime v. Philip Igbinadolor (1964) NMLR 132.
In absence of any showing to the contrary the appeal sought to be struck out for non-compliance with Paragraph 18(1) of the 1st Schedule to the Act in the Petition from which the appeal arose comes within the warm embrace of the saving provisions in paragraph 53 of the said 1st schedule to the Act. The rules as the handmaids of the law cannot constitute obstacles on the paths of substantial justice under the law.
On the appeal I adopt the reasoning and conclusion in the lead judgment of my learned brother Tabai, JSC which judgment I had the privilege of reading before now. Consequently, I overrule the preliminary objection and dismiss the appeal for want of merit.
I make no order for costs.OLUKAYODE ARIWOOLA, J.S.C.: This is an appeal against the judgment of the Kaduna Division of the Court of Appeal delivered on 11th December, 2011. The court below had dismissed the appeal of the Petitioner against the decision of the Election trial tribunal which had earlier dismissed the petition against the 2nd Respondent’s declaration of the 1st Respondent as winner of the Governorship election of 28th April, 2011 in Kaduna State.
I read before now the lead judgment of my learned brother Tabai, JSC. I am in agreement with the reasoning and the conclusion arrived at in the said lead judgment, that the appeal lacks merit. The concurring decisions of the two lower courts should not be disturbed there being no proof of any perversion or miscarriage of justice by the courts below.
I also hold the view that the appeal should be dismissed and is accordingly dismissed by me.
Appearances
Abdulaziz Ibrahim, Habib Akilu, I. O. Usman, A. Salehu, Deji Kajogbola and Seun Ola For Appellant
AND
- B. Daudu SAN, Yunus U. Usman SAN, Hadiza Usman (Mrs), A Aina, Adaeze Anah, O. Ogungbe for the 1st Respondent.
Emmanuel J. J. Toro SAN, S. Atung, Chris Umaar, R. J. Dakun, Matina Wodung (Miss), D. Toro and Dorcas Mathias (Miss) for the 2nd Respondent. For Respondent
