HON. MOHAMMED SALEH & ORS. v. GARBA DATTI MUHAMMAD & ANOR.
(2010)LCN/3762(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 4th day of May, 2010
CA/K/EP/NA/05/07
RATIO
COURT PROCESSES: IMPORTANCE OF SERVICE OF COURT PROCESS
service of a Court process is fundamental to the assumption of jurisdiction by a Court and failure to serve where required by law renders null and void any order made against a party who should have been served See U.B.A. .V. AJILEYE (1999) 13 NWLR (633) 116 @ 125, WEMA BANK .V. ODULAJA (2007) 7 NWLR (663) 1 @ 7, TENO ENG, LTD. .V. ADISA (2005)3-4 SC, 8 @ 11. PER MOHAMMED LAWAL GARBA, J.C.A.
COURT: CIRCUMSTANCE WHERE ABSENCE OF SERVICE WILL NOT AFFECT THE JURISDICTION OF THE COURT
However it is also an established principle of our law that where a party who should have been served was or became aware of the process of the Court in a case by other means than personal service, the requirement of the said service is rendered unnecessary, surplusage and its absence will not affect the jurisdiction of the Court. See ACHUZIA. V. OGBOMAH (2004) ALL FWLR (277) 505 @ 523 -4, AUTO IMPORT – EXPORT V. ADEBAYO (2002) 18 NWLR (299) 554, JESON TRIANGLES .V. CM AND P. (2002) 15 NWLR (789) 176. PER MOHAMMED LAWAL GARBA, J.C.A.
COURT PROCESS: ESSENCE OF THE REQUIREMENT OF SERVICE OF A COURT PROCESS
It should be noted that the essence of the requirement of service of a Court process on a party is to enable that party to know what the case is against him and so prepare for its defence. The requirement is aimed at avoiding a situation where a party would be surprised or even condemned on a Court process of which he is unaware. Where he becomes aware of the process by any means and even takes steps to react to it, he cannot be heard to validly challenge or even complain about the said process on the ground that it was not formally brought to his notice by being served as required by law. As long as a party appears in a case and takes adequate steps therein to fully and actively participate in the proceedings therein, the requirement of the service of notice of the said case or proceedings becomes overtaken by the conduct of the party and therefore a mere formality the absence of which has no legal consequence on the case or jurisdiction of the Court. PER MOHAMMED LAWAL GARBA, J.C.A.
COURT: AMENDMENT OF PROCESSES OF COURT; WHETHER THE GENERAL PRINCIPLES OF AMENDMENT OF COURT PROCESSES IS APPLICABLE TO ELECTION PETITION
Learned counsel is also right, and so I once more agree with him, that the general principle of amendment of court processes in normal civil matters is not applicable to election petition because they are of special nature and governed specifically by the provisions of the Electoral Act. Election petitions in that sense are said to be in a class of their own; sui generic. AJADI .V. AJOBOLA (2004) 16 NWLR (898) 91 YAHAYA .V. AMINU (2004) 7 NWRL (871) 159. BOUNWE. V. R.E.C. BELT STATE (supra).
It is because of their peculiar nature that the need for their determination expeditiously and on the merit without undue regard to technicalities in the application of the rules and law applicable thereto was restated by this court and the Supreme Court in a number of decisions. See N.E.C.V. UBOH (2001) 3 NWLR (701) 476, UZODINMA .V. UDENWA (2004) 1 NWLR (854) 363, PRP .V. INEC (2004) 9 NWLR (877) 124, EHUWA .V. O.S.I.E.C (2006) 18 NWLR (1012) 344, BUHAR1 .V. INEC (2008) 19 NWLR (1120) 246.
The attitude of the superior courts over the years has been that in the realm of the law, particularly as relates to election matters, the era of technicalities has given way to one of substantial justice decided on the merit of the complaints in elections that come periodically and which involve the fundamental rights of the citizens to choose their representatives in government. PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
HON. JUSTICE M. L. GARBA Justice of The Court of Appeal of Nigeria
HON. JUSTICE JOHN. I. OKORO Justice of The Court of Appeal of Nigeria
HON. JUSTICE T. N. ORJI-ABADUA Justice of The Court of Appeal of Nigeria
Between
HON. MOHAMMED SALEH & ORS. Appellant(s)
AND
GARBA DATTI MUHAMMAD & ANOR. Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): By an order of the Court made on the 31/3/2008, the above appeals, which arose from the interlocutory and the final decisions of the National Assembly Election Tribunal, Kaduna State in election petition No. EPT/KD/NA/022/2007, were consolidated and eventually heard on the 2nd of March, 2010. The Election Tribunal would henceforth be called the Lower/tribunal.
Appeals No. CA/K/EP/NA/24/2007 and CA/K/EP/NA/31/07 are interlocutory appeal against decisions contained in rulings granting leave to amend the petition and enlarging time for the filing of INEC forms EC8A(11) respectively.
The two (2) appeals given the same No.CA/K/EP/NA/05/07 are against the final decision of the Lower/tribunal.
The first in time was the one filed on the 27/12/07 by the 1st and 2nd Respondents in the petition while the petitioners, also dissatisfied with some aspect of the decision, filed the 2nd appeal on 3/01/08 against same.
In line with the requirement of practice, briefs of argument were filed by learned counsel representing the respective parties to the appeals. Notices of preliminary objections on various grounds were also filed in the Appeals and argued in the respective briefs of argument. Though the appeals were consolidated and heard together, in law they retain their separate characters and distinct identities for the purpose of determination any decisions therein. Separate decision/s in respect of each of them would have to be given by the Court even though a decision in one or more of them may eventually affect one or the other of them. See ALARIBE .V. NWANKPA (1999) 4 NWLR (600) 551, ILLOABUCHI .V. ESIGBO (2000) FWLR (17) 78, OLAYIWOLA .V. F.R.N. (2006) ALL FWLR (305) 667 @ 697.
In the above premises, I intend to consider the interlocutory appeals before the appeals against the final decision of the Lower/tribunal.
The first interlocutory appeal was filed on 25/9/2007 by the 1st and 2nd Respondents to the petition and No .CA/K/EP/N A/24/07.
At the hearing of the appeal, the Appellant’s brief filed on the 16/10/2007 and the Appellants’ Reply brief filed on the 5/11/2007 in respect of the appeal were adopted by O. I. Habeeb, Learned Counsel for the Appellant who urged us to allow the appeal and set aside the decision of the Lower/tribunal granting leave to amend the petition.
MR. G. A. ALLEY, learned counsel for the 1st and 2nd Respondents in the appeal on his part after moving the preliminary objection the notice of which was filed on the 29/10/2007, and argued in the 1st and 2nd Respondents’ brief filed the same day, adopted the brief and urged us to uphold the objection or in the alternative, dismiss the appeal.
N. NWAGBO, the learned Counsel for the 3rd – 17th Respondents in the appeal said the 3rd – 17th Respondents do not oppose the appeal and applied to withdraw the 3rd – 17th Respondents’ Reply brief filed on the 22/10/2007. The 3rd – 17th Respondent’s Reply brief without the need to go into the merit of the preliminary objection against same by the learned Counsel for the 1st and 2nd Respondents, is for being withdrawn, struck out.
The next preliminary objection by the learned counsel for the 1st and 2nd Respondent is to the effect that the Court lacks the competence and jurisdiction to adjudicate on this appeal on the ground that the Notice of Appeal was not served on the 1st and 2nd Respondents in breach of the mandatory provisions of paragraph 3 of the Practice Direction No. 2, 2007.
In arguing the preliminary objection, the provision of the introductory part of Practice Directions No. 2 were set out by learned counsel who then argued that by the use of word “Shall” therein it must be strictly observed. He cited the case of ONOCHIE .V. ODOGWU (2006) ALL FWLR (317) 540 @ 569 – 70 on the interpretation of the word “shall” and argued further that failure to serve the Notice of Appeal on the 1st and 2nd Respondent was a breach of their right to fair hearing and the audi alterem partem rule. Reliance was also placed on the case of TUOYO HOLDINGS LTD .V. NIGER-BENUE TRANSP. CO. LTD. (2007) ALL FWLR (356) 800 @ 809 -10 AND MARK .V. EKE (2004) ALL FWLR (200) 1455 (a), 1416-7 and we were urged by learned counsel to hold that the Court lacks the competence to adjudicate on the appeal and to dismiss it.
A list of additional authorities on the preliminary objection was also filed by the learned counsel on the 18/1/2008. The learned counsel for the Appellants’ reaction to the preliminary objection is that there was no evidence of non service of the Notice of appeal on the 1st and 2nd Respondents and since they have filed their brief of argument in response to the Appellants’ brief, they cannot validly raise an objection to the competence on the ground of alleged non service of the Notice of Appeal. Reference was made to the provision to Order 2, Rule 6 of the Court of Appeal Rules, 2007 and the were urged to hold that going by the conduct of the 1st and 2nd Respondents, they have had notice or communication of the Notice of Appeal, whether service was personal or not. The case of PUBLIC FINANCE SECURITIES LTD. V. TOFIA (2008) 3 NWLR (543) 602 @ 612 was cited and it was contended that the objection is one of procedural law which can be waived and that the 1st and 2nd Respondents had waived the issue of service by their conduct. It was also submitted that the case TUOYO HOLDINGS .V. NIGER-BENUE (supra) cited by the Learned Counsel for the Respondents was not applicable because the parties have joined issues in the appeal. We were urged to dismiss the preliminary objection.
As can clearly be seen by challenging the competence or jurisdiction of the Court to entertain the appeal, the 1st and 2nd Respondents preliminary objection aims to abort or terminate the proceedings in the appeal at the stage it was raised. If it succeeded, that would put an end to the appeal since the Court would lack the requisite judicial power and authority to proceed or take further steps in the appeal in the absence of competence or jurisdiction. Prudence therefore requires that the preliminary objection be determined first in order to avoid what might turn out to be an exercise in futility. That is also the requirement of the law. See GOJI .V. EWEJE (2001) 15 NWLR (736) 273 280, OKOI .V. IBIAG (2002) 10 NWLR (776) 455 @ 468 U.B.A. .V. ACB (2005) 12 NWLR (939) 232.
I would start a consideration of the preliminary objection by saying that the learned counsel for the 1st and 2nd Respondents is right in law when he said that the service of a Court process were required by law is a fundamental issue which if not made has the legal effect of taking away the requisite judicial authority and power in a Court of law to act in a case in which the service was required. In other words, service of a Court process is fundamental to the assumption of jurisdiction by a Court and failure to serve where required by law renders null and void any order made against a party who should have been served See U.B.A. .V. AJILEYE (1999) 13 NWLR (633) 116 @ 125, WEMA BANK .V. ODULAJA (2007) 7 NWLR (663) 1 @ 7, TENO ENG, LTD. .V. ADISA (2005)3-4 SC, 8 @ 11.
However it is also an established principle of our law that where a party who should have been served was or became aware of the process of the Court in a case by other means than personal service, the requirement of the said service is rendered unnecessary, surplusage and its absence will not affect the jurisdiction of the Court. See ACHUZIA .V. OGBOMAH (2004) ALL FWLR (277) 505 @ 523 -4, AUTO IMPORT – EXPORT V. ADEBAYO (2002) 18 NWLR (299) 554, JESON TRIANGLES .V. CM AND P. (2002) 15 NWLR (789) 176.
In the present appeal learned counsel for the 1st and 2nd Respondents had not suggested the 1st and 2nd Respondents did not become aware of the appeal by any other means because they were not personally served with the Notice of Appeal.
On the contrary, the learned counsel had at paragraph 1.12 on pages of the 1st and 2nd Respondent’s brief stated thus:-
“…. But the Record of Proceedings was served on their counsel, Alley Legal Practitioners and consultants, Kaduna on 6th October, 2007.”
This statement is a clear and express admission or at least an acknowledgement that the record of the present appeal was served on the learned counsel for the 1st and 2nd Respondent two (2) weeks before he filed the notice of preliminary objection. It is common knowledge now that the record of an appeal served on parties thereto and transmitted to the Court from the Lower Courts and tribunals usually include and contain a certified copy of the Notice of Appeal filed in such Courts or tribunals against the decision with which any of the parties was dissatisfied. There is therefore a presumption that the copy of the record appeal served on the learned counsel for the 1st and 2nd Respondents included and contained a copy of the Notice of Appeal filed by the Appellants’ against the ruling of the Lower/tribunal and in respect of which the record of appeal was compiled and served on him. Learned Counsel had not attempted to challenge the record of the appeal served on him on any ground whatsoever but particularity that it did not contain or include a copy of the Notice of Appeal in question. In the circumstances, the presumption that the record of appeal served on him was complete and correct accorded it by law remains unrebutted and the 1st and 2nd Respondents are bound by the record. FIBIRAH .V. MINIMAH (2003) 5 SCNJ 142, VEEPEE INDUSTRIES .V. COCOA INDUSTRIES (2008) 13 NWLR (1105) 486 572, OGUNTAYO .V. ADELAJA (2009) 15 NWLR (1163) 150 @ 190-1.
In the result, the fact that learned Counsel had reacted to the Appellant’s brief clearly shows that the 1st and 2nd Respondents became aware of the appeal by other means than the personal service of the Notice of Appeal required by law. It should be noted that the essence of the requirement of service of a Court process on a party is to enable that party to know what the case is against him and so prepare for its defence. The requirement is aimed at avoiding a situation where a party would be surprised or even condemned on a Court process of which he is unaware. Where he becomes aware of the process by any means and even takes steps to react to it, he cannot be heard to validly challenge or even complain about the said process on the ground that it was not formally brought to his notice by being served as required by law. As long as a party appears in a case and takes adequate steps therein to fully and actively participate in the proceedings therein, the requirement of the service of notice of the said case or proceedings becomes overtaken by the conduct of the party and therefore a mere formality the absence of which has no legal consequence on the case or jurisdiction of the Court.
In the present appeal I am in agreement with the learned counsel for the Appellants that since the Learned Counsel for the 1st and 2nd had taken steps to participate in the appeal by filing the 1st and 2nd Respondents’ brief, the absence of the service of the Notice of Appeal becomes mere irregularity and a formality which does not affect the competence or jurisdiction of the Court to entertain the appeal. In the result, I find no merit in the preliminary objection by the 1st and 2nd Respondent and it is hereby dismissed.
I now turn to the submissions of learned counsel on the appeal. Before then however, a brief statement of the facts from which all the appeals between the parties arose would provide a foundation on which to appreciate the positions of the parties.
The Appellants and the 1st and 2nd Respondents had participated in the election into the House of Representatives for the Sabo Gari Federal Constituency of Kaduna State held on the 21/4/2007 by the 3rd Respondent. At the end of the election, the 1st Appellant sponsored by the 2nd Appellant, was declared and returned as the winner having scored majority of the lawful votes. Being dissatisfied with the return, the 1st and 2nd Respondents presented a petition before the Lower/tribunal questioning the election of the 1st Appellant on 21/5/2007.
The grounds upon which the election of 1st Appellant was questioned were that:-
(a) That the 1st Appellant was at the time of the election not qualified to contest the election and
(b) That the 1st Appellant was not duly elected by majority of lawful votes cast at the election.”
By a motion filed on the 13/8/2007, the 1st and Respondents applied for an order of the Lower/tribunal amending their petition to inter alia substitute the INEC Forms EC 8A pleaded in the petition with INEC Forms EC 8A (11).
The said motion was opposed by all the Respondents thereto and after hearing learned Counsel for the parties, the Lower/tribunal in its ruling delivered on the 5/9/2007, granted the prayers sought by the 1st and 2nd Respondents.
The dissatisfaction by the Appellants with the decision of the Lower/tribunal in the lead ruling resulted into the present appeal.
The learned Counsel for the Appellants had distilled a single issue from the grounds of appeal which he submitted for determination in the appeal at page 4 of the Appellant’s brief of argument. It is as follows:-
“WHETHER THE TRIBUNAL WAS RIGHT IN GRANTING THE AMENDMENT TO THE PETITION OF THE 1st AND 2nd RESPONDENTS HAVING REGARD TO THE NATURE OF THE AMENDMENT SOUGHT AND THE TIMING OF THE APPLICATION FOR THE AMENDMENT.”
In his submissions on the issue, the learned Counsel said a proper appreciation of the issue would require a consideration of the following facts:-
(a) The 1st and 2nd Respondents in their maiden petition filed on 21/5/2007 clearly pleaded in paragraphs D9, D21, D27, D36 and D37 (See 11, 13, 14 and 16 of the printed records) INEC Forms EC8A and indicated that they would rely on same in proof of results/votes cast for the polling units in the Sabon Gari Federal Constituency.
(b) INEC forms EC 8A represent the Results for polling units under the Sabon Gari Federal Constituency in Relation to PRESIDENTIAL ELECTIONS while INEC Forms EC 8 A (ii) which was introduced by The amendment of the petition Represent results of votes cast for the Polling units under the Sabon Gari Federal Constituency in relation to the HOUSE OF REPRESENTATIVE ELECTION.
(C) The time for filing petition as prescribed by Section 141 of the Electoral Act, 2006 in relation to the instant petition expired on 21/5/2007 and the application for amendment of the petition was filed on the 13th day of August, 2007-a period of two months and 23 days after the expiration of the time for filing or presenting the petition.
It was then submitted that by the nature of the petition which seeks inter alia, a relief that the 1st and Respondents won the election by majority of lawful votes, the documents containing the results of the election as collated by the 3rd Respondent or its agents are material and central to the success or otherwise of the petition. That any amendment to substitute the said documents, ie INEC Forms is for all intent and purpose, to be regarded as substantial and not merely inconsequential as held by the Lower/tribunal. Further that the substantiality of the amendment can be appreciated by the fact that but for it, the INEC Forms EC 8 A (ii) could not be tendered in evidence at the trial of the petition because they were not pleaded in the original petition. Similarly, the INEC Forms EC 8A pleaded could not be tendered in evidence because they related to the results of presidential election and so irrelevant to the petition. Reliance was placed on the case of HASHIDU .V. GOJE (2003) 15 NWLR (843) 532 @ 582 and 3 and it was contented that the amendment sought by the 1st and 2nd Respondents and granted by the Lower/tribunal was substantial and on which the provisions of Section 141 of the Electoral Act, 2006 and Paragraph 14 (2) of the First Schedule thereto are instructive. Learned counsel said that a community reading of Section 141 and Paragraph 14(2), which were set out, would reveal that application for amendment of an election petition can be classified into two (2), namely:-
(a) application before the expiration of the trial allowed for presenting a petition and.
(b) application after the expiration of the time for presentating a petition
He said while an application brought within the time for presenting a petition can easily be granted, an application filed after the expiration of the time for presenting a petition, as in the present appeal, is subject to the restrictions provided under paragraph 14 (2). The case of OBI-ODU .V. BUKE (NO.2) (2005) 10 NWLR (932) 105 133 and 134 was cited in support of the position.
It was the submission of learned Counsel that because the 1st and 2nd Respondents’ application for amendment was filed after the expiration of the time for presenting the petition in question, and the amendment being substantial, under paragraph 14 (2) (a) (l)(ii) and (iii) the Lower tribunal is divested of the powers to grant the amendment. Once again the case of OBI-ODU .V. DUKE (Supra) @ 146-7 was relied on along with JANG .V. DARIYE (2003) 15 NWLR (843) 436 @ 462 -4 and it was further contended that the general principles of amendment of Court processes in normal civil matters are not applicable since they are subject to the Electoral Act on the authority of OBI-ODU .V. DUKE @ 149 -50.
We were finally urged to resolve the lone issue in favour of the Appellants.
For the 1st and 2nd Respondents after setting out the provisions of Paragraphs 14(1) and (2) (a) of the First Schedule to the Electoral Act, Learned Counsel Mr. Alley submitted that any amendment of the petition which does not:-
(a) Change the names, the rights of petitioners, the holding of the election, the scores of candidates, the person returned as the winner, the facts the grounds or the relief, may be sought and granted;
(b) substantially after the grounds or prayer may be sought and granted;
(c) substantially after or add to the statement of facts in support of the grounds or prayers, may be sought and granted as they are not prohibited by paragraph 14(2) (a).
Further that the amendments sought by the 1st and 2nd Respondents in the motion filed on the 13/8/07 are not prohibited by paragraph 14(2)(a) because they merely sought to amend the typographical errors in paragraphs D2, D9, D27, D37, F(i), F(ii) and the list of documents of the petition. Substantial justice required the amendment as its nature was not to over reach and case of OKITO .V. OBIORU (2007) ALL FWLR (364) 568 @ 581 was cited in support of the position. It was the contention of learned counsel that it would have amounted to visiting the sin of Counsel who committed the blunder in preparing the petition on the 1st and 2nd Respondents if the amendments sought were not granted, relying on ENVIBROS FOODS .V. N.D.LC. (2007) ALL FWLR (367) 793) @ 830. According to him, the case of HASHIDU .V. GOJE (Supra) cited and relied for the Appellants is more in support of the 1st and 2nd Respondents because the grant of the amendment had forestalled a reoccurrence of the mischief in that case. In addition, that the cases of
OBI – ODU .V. DUKE and JANG .V. DARIYE are distinguishable because the amendments sought by the 1st and 2nd Respondents have not changed the complexion of the original petition.
We were finally urged by the learned Counsel to hold that the amendments granted by the Lower/tribunal were not prohibited by paragraph 14(2) (a) and that the Lower/tribunal was right to have granted them.
The law on the time limit within which and the nature of amendments which can be allowed or permitted in an election petition has now been firmly settled and established.
Put simply, the position of the law is that any application for substantial amendment of an election petition must be made, brought or filed within the time prescribed by Section 141 of the Electoral Act for the presentation of an election petition. It is now common knowledge that the provisions of Section 141 of the Electoral Act, 2006 requires that an election petition must be presented or filed within thirty (30) days from the date the result of the election was declared. As a result an application to substantially amend a petition by the operation of the law, has to be made within and before the expiration of the period of thirty (30) days from the date of the declaration of the election result before it becomes competent and thereby vests the requisite judicial authority and power in the name of jurisdiction on the Lower/tribunal to entertain it on the merit. Substantial amendment of an election petition by virtue of Paragraphs 141(2)(a) of the First Schedule to the Electoral Act, 2006 involves major alteration as to any requirements of paragraph 4(1) of the Schedule, the grounds, facts or reliefs claimed in the original petition.
Paragraph 14 (2) (a) provides thus:-
(2) After expiration of the time limited by:-
(a) Section 141 of this act for presenting election petition, no amendment shall be made:
(i) introducing any of the requirements of subparagraph (1)of paragraph 4 of this schedule and not contained in the original Election petition filed, or
(ii) effecting a substantial alteration of the ground for or the prayer in, the election petition, or
(iii) except anything which may be done under the provisions of subparagraph (3) of this paragraph effecting a substantial of alteration or addition the statement of facts relied on to support the ground for, or sustain the prayer in the election petition, and
Any attempt by a Petitioner to amend an election petition after the expiration of the period of thirty (30) days from the date of the declaration of election result and which seeks to introduce any of the items listed above would not be allowed or permitted. YUSUF .V. OBASANJO (2003) 16 NWLR (847) 534, BOUNWE.V. R.E.C. DELTA STATE (2006) 1 NWLR (161) 286, NGIGE V. OBI (2006) 14 NWLR (999) @ 136, MAGAJI .V. BALAT (2004) 8 NWLR (876) 449 @ 470.
However if an amendment does not involve any of the items listed in the above provisions and therefore not substantial sought after the expiration of the time prescribed for the presentation of an election petition may at the discretion of a tribunal, be allowed, permitted or granted as it would not offend the provisions of Paragraph 14(2(a). NGIGE .V. OBI (supra) OPIA .V. IBRU (1992) 3 NWLR (231) 658, OGUNDIRAN .V. OLALEKAN (1998) 8 NWLR (561) 313.
In the above premises, I agree with the learned Counsel for the Appellants when he said that an application for the amendment of an election petition brought after the expiration of the time for the presentation of an election petition, is subject to the provisions of paragraph 14 (2) (a). Learned counsel is also right, and so I once more agree with him, that the general principle of amendment of court processes in normal civil matters is not applicable to election petition because they are of special nature and governed specifically by the provisions of the Electoral Act. Election petitions in that sense are said to be in a class of their own; sui generic. AJADI .V. AJOBOLA (2004) 16 NWLR (898) 91 YAHAYA .V. AMINU (2004) 7 NWRL (871) 159. BOUNWE. V. R.E.C. BELT STATE (supra).
It is because of their peculiar nature that the need for their determination expeditiously and on the merit without undue regard to technicalities in the application of the rules and law applicable thereto was restated by this court and the Supreme Court in a number of decisions. See N.E.C.V. UBOH (2001) 3 NWLR (701) 476, UZODINMA .V. UDENWA (2004) 1 NWLR (854) 363, PRP .V. INEC (2004) 9 NWLR (877) 124, EHUWA .V. O.S.I.E.C (2006) 18 NWLR (1012) 344, BUHAR1 .V. INEC (2008) 19 NWLR (1120) 246.
The attitude of the superior courts over the years has been that in the realm of the law, particularly as relates to election matters, the era of technicalities has given way to one of substantial justice decided on the merit of the complaints in elections that come periodically and which involve the fundamental rights of the citizens to choose their representatives in government.
In the present appeal, there is no dispute that the application for amendment sought by the 1st and 2nd Respondents was made after the expiration of the period of 30 days prescribed for the presentation of the petition. What therefore needs to be determined is whether or not the said amendments are substantial and therefore prohibited by the provisions of Paragraph 14(2) (a). To answer the question there is need to look at the amendments sought by the 1st and 2nd Respondents and granted by the Lower/tribunal. In the motion filed by the 1st and 2nd Respondent on the 3/8/07, the following orders were sought from the Lower/tribunal:-
(1) An Order granting the Petitioners leave Amend the expression “1411 day of April, 2007”, in paragraph D2 of the Petition to read “21st day of April, 2007”.
(2) An Order granting the Petitioners leave to amend the expression “INEC Form EC 8 A” in paragraphs D9,D21,D27, D37,F(i) F(ii) and the list of documents of the Petition to read “INEC Forms EC, 8A (11)”,
(3) An Order extending the time within which the Petitioners shall file copies of INEC forms EC 8A(1), INEC Forms EC 8A(1), and New Nigerian Newspapers of Wednesday May, 23, 2001, which did not accompany the Petition filed on 21-05-2007.
(4) An Order deeming as properly filed and served, copies of INEC Forms EC 8 A(11). INEC forms EC 8 A(l 1), and New Nigerian Newspapers of Wednesday May 23n 2001, exhibits as EXHIBITS SAW1 to SAW 2A, JAW1 to JAW 20, BOW1 to BOW27, BAW1 to BAW26, CHW1 to CHW26 to MUW1 to MUW 29, JUW1 to JUW1 to JUW22, HAW1 to HAW27, DOW1 to DOW11, UGW1 to UGW25, ZAW1 to ZA W20 and FG1 respectively to the Affidavit in support of this motion;
(5) And such other or further Order (s) as the Honourable Tribunal may deem fit to make in the circumstances.
In essence, the amendments sought by the 1st and 2nd Respondents in the above motion are to:-
(1) Substitute the date; 14th day of April, 2007 set out in paragraph B2 of the Petition, with the date; 21st day of April, 2007.
(2) Substitute “the INEC Form EC 8A” in paragraphs DO, D21, D27, D37,F(1), F(ii) and the list of documents of the Petition with INEC Form EC 8A(ii).
These are the amendments granted by the Lower/tribunal and with which the Appellants are dissatisfied because according to them they offend the provisions of the paragraph 14(2) (a).
Specifically, the Appellants have not challenged the amendment as it relates to the date of the holding of the election in dispute as being substantial in the petition and which cannot be granted. I should state that the date on which the election in dispute was conducted or held by the 3rd Respondent would not be in contention because it was a matter of fact which was public knowledge and particular knowledge of the candidate who contested or participated in the election. Being a matter of public knowledge and notified by the 3rd Respondent in accordance with the provisions of 47 (a) of the Electoral Act, 2006, it is one which ought to be taken judicial notice of under Section 74(1)(G) of the Evidence Act. That being the position, an amendment which has the effect of substituting a date given in an election petition with the one fixed, and notified by the 3rd Respondent and on which the disputed election was conducted, cannot seriously be said to affect or change the character or essentials of the petition as to amount to a substantial alteration of any of the items listed under paragraph 14(2) (a). Any other date given or stated in a petition challenging or questioning a particularity named election than the one fixed and notified and on which the election actually held, would clearly be a simple error of the head and not of the mind. That error would therefore only qualify as a mere inconsequential irregularity which does not effect the substance of an election petition. As a matter of judicial course, an application made to correct such an error no matter at what stage of the proceedings it was brought, would be favourably granted in order to reflect the proper and correct record of the election in dispute for the purposes of determining the petition in respect thereof This aspect of the amendment is not one which falls within the purview of the amendments prohibited under paragraph 14(2)(a).
Indeed I have observed that the date, ie 21st day of April, 2007, sought to be substituted in the paragraphs of the petition set out in the 1st and 2nd Respondent’s motion as the date on which the election in dispute was conducted or held was given in all other relevant paragraphs of the petition such as paragraphs D3-D11, D19-D22-3.
Apparently the other date of 14th day of April, 2007 stated in the paragraphs named in the motion as the date the election in dispute held was a typographic or computer’s devil handi work which has no real effect on the petition. The Lower/tribunal was in the circumstances right to have granted it.
Next is the crux of the Appellants’ complaint in the appeal, i.e. the amendment in respect of the INEC Forms EC 8A which were mentioned in the petition. As a foundation, it should be borne in mind that the parties to the petition, but particularly the Appellants are in no doubt whatsoever about the election they contested along with the 1st and 2nd Respondents among other candidates at Sabon Gari Federal Constituency of Kaduna State on the 21st day of April, 2007.
That election was conducted by the Respondent for a seat in the House Representatives, Federal Republic of Nigeria.
All the forms and other documents used for the purposes of the said election were produced and designated by the 3rd Respondent in exercise of the powers conferred on it by Paragraph 15 (a) of the 3rd Schedule to the 1999 Constitution of the Federal Republic of Nigeria to organize, undertake and supervise all elections in to various effective offices set out therein. These documents and forms are very well known to all the political parties and candidates who participated in or contested the election in dispute because copies of some of the forms particularly the ones used in recording the results of the election at all stages thereof, are given to them as required by Sections 64 (3) and 75 of the Electoral Act, 2006. In their petition, the 1st and 2nd Respondents had pleaded specifically that they intended to rely on the 3rd Respondent’s prescribed forms used in the conduct of the election in dispute at the polling stations and given to their agents by officials of the 3rd Respondent.
They also gave notice to the 3rd Respondent in whose custody the original copies are, to produce them at the hearing of their petition. This is their pleading in paragraph D9.
” The Computation (s) in Paragraph D8 Above in respect of the 11 Wards of the Sabon Gari Federal Constituency, of the Federal Republic of Nigeria, are made from the various INEC Forms EC8A used by various Presiding Officers at the Polling Stations, in the election to the Sabon Gari Federal constituency of the Federal Republic of Nigeria, which Forms were duty given to the ANPP Polling Agents at the Polling Stations on 21 -04-2007, day of the election, (A the hearing of the Petition the Petitioners shall rely on: the INEC Form EC 8A given to the ANPP Polling Agents at the Polling Stations where election took place in the Sabon Gar Federal Constituency on 21-04-2007; and the certified True Copies of the same INEC Forms 8A retained by the said Presiding Officers, now being in the custody of NEC NOTICE is hereby given to the 3rd Respondent to produce the same at the hearing of the Petition)
(Underline provided for emphasis).”
On the face of the above facts, would the Appellant’s seriously be said to be in doubt or to have been misled as to what forms were pleaded and intended to be used by the 1st and 2nd Respondents at the hearing of their petition? Would the mere fact that the forms used in the election, pleaded in the petition and in respect of which notice was given to the 3rd Respondent to produce at the hearing were said to be INEC Forms EC 8 A instead of INEC Forms EC8A (ii) affect the substance of the petition? In the realm of arid legalism and crass technicality, the answer to the latter question could be in the affirmative, but as demonstrated in the cases cited earlier on the point, the Courts have since moved ahead from arcane and rancid attitude of adherence to technicalities which impedes the attainment of substantial justice on the merit.
In the peculiar circumstance of the appeal the amendment set out by the 1st and 2nd Respondent and granted by the Lower/tribunal to simply correct the error by them in describing the INEC Forms used at the polling Stations and which they specifically pleaded, was minor or minute, immaterial and of no sincere effect on the substance of the 1st and 2nd Respondents petition. Its not substantial but inconsequential and does not in my view fall within the ambit of the provision of Paragraph 14(2) (a). The amendment relates to a misnomer only and is not one prohibited by the tenor of the paragraph and so the cases of OBI-ODU .V. DUKE (No2) and JANG .V. DARIYE both Supra, are for that reason, not applicable here.
In the final result, I find no merit in the appeal and accordingly dismiss same.
APPEAL NO. CA/K/EP/NA/31/2007
This is another interlocutory appeal, this time by the 1st and 2nd Respondents in appeal No. CA/K/EP/NA/24/2007 decided above, in respect of the same INEC Forms used for the conduct of the disputed election at the polling Stations; INEC Forms EC 8A(ii). The simple facts here are that the 1st Respondent had in his Reply to the Appellant’s Petition, pleaded the INEC Forms EC 8A (ii) but did not as required by Paragraph 2 of the Election Tribunal and Court Practice Directions, 2007, support the Reply with copies of the Forms at the time it was filed on the 11/6/2007.
However by a motion filed on the 10/9/2007, the 1st Respondent applied for enlargement of time to file the said forms which were pleaded and to deem them as properly filed and annexed to his Reply.
Surprisingly, the Respondents to this appeal who as can be recalled were granted an application by the Lower/tribunal to amendment their petition to reflect the said forms EC 8 A (ii) in appeal NO.CA/K/EP/NA/24/2007 above, opposed the 1st Respondent’s motion. After hearing learned Counsel for the parties, the Lower/tribunal granted the motion, a decision which resulted into this appeal.
Three grounds of appeal were filed by the Appellants from which two (2) issues were formulated in the Appellant’s brief filed on the 29/10/2007 for determination in the appeal. They are:-
(A) whether the 1st Respondent gave to the Tribunal, good or substantial reasons why he did not initially support his Reply to the Petition with INEC Forms EX 8A (II) for Justice, Hanwa, and Dogarawa Wards of the Sabon Gari Federal Constituency, to warrant the extension of time for him to annex the said INEC Forms EC 8 A (II) to his Reply by the Tribunal.
(B) whether the INEC FORMS EC 8A(II) which the Tribunal deemed as properly filed and annexed to the 1st Respondent’s reply by its ruling of 19-09-2007, are relevant to the proceedings in the petition.
In the 1st and 2nd Respondents’ brief filed on 5/11/2007, a single issue was said to arise in the appeal for determination as follows:-
WHETHER THE TRIBUNAL EXERCISED ITS DISCRETION PROPERLY IN GRANTING THE MOTION OF THE 1st RESPONDENT TO FILE COPIES OF INEC RESULTS WHICH WERE DULY PLEADED IN THE RELEVANT PARAGRAPHS OF THE 1st RESPONDENT’S REPLY.”
A calm reading of the prayers contained on the 1st Responds’ motion and the short ruling of the Lower/tribunal granting the enlargement of time to file the documents in question which is at page 614 -615 of the record of appeal, it is clear that ground of appeal No. 3 as well as issue (B) formulated by the learned Counsel for the Appellants did not arise from the decision appealed against.
The Lower/tribunal in its ruling did not decide or even consider the issue of relevance of the documents sought to be filed by the 1st Respondent to the proceedings before it. It is trite in law that any ground of appeal not predicated or based on the decision appealed against would be of no moment in the determination of an appeal against a decision from which it did not enure. Such a ground would be purported and incompetent in the circumstance and liable to be struck out. See OKOLIE .V. MARINHO (2006) 15 NWLR (1002) 316, OBI .V. INEC (2007) 11 NWLR (1046) 436, BOLONWU .V. GOV. ANAMBRA STATE (2008) 16 NWLR (1113) 236. For that reason, Appellants’ ground of appeal 3 as contained on the Notice of Appeal and the issue (B) above distilled there from are both incompetent and hereby struck out. Consequently, the submissions in the Appellant’s brief on the issue (B) would be discountenanced in the determination of the appeal.
We are now left with Appellants’ issue “A” formulated from the grounds of appeal 1 and 2 which is the same as the issue raised by the learned counsel for the 1st and 2nd Respondent.
I intend to determine the appeal on that lone issue. The pith of the Appellants’ submissions on the issue is to the effect the no good and substantial reasons were given by the 1st Respondent why he did not attach the INEC forms to his Reply in compliance with paragraph 2 of the practice Directions, 2007.
Citing the cases of OLAYIWOLA .V. OPALEKE (2004) ALL FWLR (219) 1002 @ 1022 AND IGBI .V. OGBE (2004) ALL FWLR (202) 1799 @ 1839, Learned Counsel contended that the learned Counsel for the 1st Respondent had adopted a procedure which he thought was advantageous to him and his client but it had turned out negative and can not be heard to complain about it. Reliance also placed on LADIPO .V. ODUYOYE (2004) 1 EPR 205 @ 708 and we were urged to resolve the issue in the negative and allow the appeal.
For the 1st and 2nd Respondent it was submitted on the issue that they had provided sufficient materials showing good and substantial reasons which satisfied the Lower/tribunal to grant an enlargement of time to file the documents pleaded in the Reply. That the failure to file the documents along with the Reply was a result of inadvertence of Learned Counsel for which the 1st Respondent should not be held responsible. SALEH .V. MONGUNO (2006) 15 NWLR (1001) 26 @ 61-2 among other cases were cited on the submission and it was contended that the case of IBORI V. AGBI (2004) 6 NWLR (868) 78 @ 122 cited by the Appellants was distinguishable. We were urged to resolve the issue in the affirmative and dismiss the appeal.
It may be recalled that I had stated that it was a surprise that the Appellants opposed the 1st Respondent’s motion to file the INEC forms in question. The first reason for that statement is that the Appellants had been granted leave by the Lower/tribunal to amend their Petition in order to bring in the same INEC forms and which they gave notice to the 3rd Respondent to produce at the hearing of their petition. So one would wonder why they would oppose an application to bring in to the proceedings the same forms which were correctly and specifically pleaded by the 1st Respondent in the Reply which was duly served on the Appellants long before the application to file them was made.
The second reason is that the Appellants did not even suggest that they would in any way be prejudiced by the enlargement of time to file the said documents at the hearing of the petition in which they themselves pleaded the same documents. I do not want to believe that the Appellants merely opposed the motion by the 1st Respondent because their own motion to amend their petition to reflect the said documents was opposed by the 1st Respondent or that they filed this appeal simply because the 1st and 2nd had also filed the appeal NO. CA/K/EP/NA/24/2007 against the grant of the leave to amend the petition.
It is certainly absurd that Learned Counsel would not concentrate on ensuring that their matters are expeditiously determined on the merit but would rather expend very considerable time and expenses in persuing issues which are visibly and legally unviable.
With regard to this appeal, pursuant to the provisions of Paragraph 43 (1) (2) and (3) of the 1st Schedule to the Electoral Act, 2006, the Lower/tribunal had requisite discretionary power to enlarge the time for the filing of the INEC forms EC 8 A (ii) pleaded by the 1st Respondent in his Reply. The justice of the case amply warranted the grant of the application by the 1st Respondent to file the said forms at the stage it was made and the Appellants have not demonstrated why this Court should interfere with the exercise of that discretion by the Lower/tribunal. It should be noted that if the Lower/tribunal had found sufficient materials which satisfied it as good and substantial reasons for the failure to file the forms along with the Reply, it does not lie with the Appellants to insist that no such good and substantial reasons were given in the affidavit of the 1st Respondent supporting the motion for enlargement of time.
It is not and has never been the attitude of this Court to routinely interfere with the exercise of a Lower Court/tribunal (s) exercise of a judicial discretion merely on the whims of parties or their Learned Counsel. There are defined situations in law which would call for and therefore justify such interference. None of them has been shown to exist in the present interlocutory appeal.
In the result, this appeal is devoid of merit and is dismissed hereby.
APPEAL NO. CA/K/EP/NA/5/08
This appeal is from the final decision of the Lower/tribunal delivered on the 14th of December, 2007 in respect of the petition filed by the 1st and 2nd Respondents questioning the return of the 1st Appellant as the winner of the election conducted at the Sabon Gari Federal Constituency of Kaduna State for a seat of the House of representatives. In the said decision, the Lower/tribunal ordered for bye election in 9 polling Stations in Dogarawa ward where it held that election was not conducted. The Notice of Appeal dated the 24/12/2007 filed against the decision contains five (5) grounds of dissatisfaction therewith from which three (3) issues are said to arise for determination in the Appellants’ brief of argument filed on 22/1/2008. The issues which were set out at paragraph 3.1 on page 3 of the said brief are as follows:-
“(1) WHETHER the tribunal is justified in holding that election was not conducted in 9 of the polling units under the Dogarawa ward and the consequential order of bye election in the said polling units having regard to the nature and quality of evidence led in relation thereto.
(2) WHETHER the tribunal’s preference of the results of election tendered by the 1st and 2nd Respondents in relation to the 3 wards of jushin, Hanwa and Dogarawa and the rejection of the results tendered by the Appellants for the said wards is justified having regard to the irregularities
associated with the results tendered by the said f and 2nd Respondents.
(3) WHETHER the tribunal was right in holding that the issues raised in the petition of the 1st and 2nd Respondents did not bother on falsification of results to warrant the tendering of the two sets of result, the one stigmatized as false and the one genuine.”
At paragraph 2.0 on pages of the 1st and 2nd Respondents’ brief of argument filed on31/1/2008 but deemed properly filed on 25/2/2008, a single issue is said to arise for determination from grounds of appeal 1 and 4.
It is thus:-
Whether the election results were not declared for the polling stations enumerated as paragraph F(1) (a) – (i) of the Petition.
A notice of preliminary objection was also filed by the 1st and 2nd Respondents of the intention to challenge the competence of grounds of appeal 2, 3 and 5 because they were said not to have arisen from any of the 3 issues summarized for determination in the petition by the Lower/tribunal. In addition, that Appellants’ issues 2 and 3 cannot both be argued in the appeal for being inconsistent with each other.
In reaction to the 1st and 2nd Respondent brief, the Appellants filed the Appellants reply brief on 26/12/2008. A brief of argument dated the 28/1/08 was also filed by the 3rd – 17th Respondents which was however at the oral hearing of the appeal on the 2/3/2010, withdrawn by Mr. Nduka Nwagbo, Learned Counsel for the 3rd -17th Respondents after an objection by Learned Counsel for the 1st and 2nd Respondents G. A. Alley. For being withdrawn, the said 3rd -19th brief of argument is hereby struck out.
The other aforementioned briefs of argument were adopted by the learned counsel for the parties, as their submissions in support of their respective positions in the appeal which we were urged to uphold by them.
The learned counsel for the 1st and 2nd Respondents’ had moved the preliminary objection which he argued in the brief filed by him and urged us to uphold it and strike out the grounds of appeal and issues in question.
In line with established principle of law on judicial procedure and practice, I would determine the preliminary objection first before then turn to the issues which require decision in the appeal.
The learned counsel for the 1st and 2nd Respondents had submitted on the preliminary objection that because the grounds of appeal 2, 3 and 5 did not arise from the 3 issues summarized by the Lower/tribunal for determination in the petition, it would amount to the Court reopening and retrying the petition if issues 2 and 3 of the Appellants’ which are from the said grounds are determined in the appeal. He said it is not the court’s duty, citing NIG. A.G. LEVENTIS PLC .V. AKPU (2007) ALL FWLR (388) 1028 @ 1044 and Paragraph 3 (10) by the Practice Directions, 2007 in support of the submission. The case of ODIDI .V. THE STATE (2005) ALL FWLR (251) 202 @ 231 on the effect of the word “shall” in a statute and, Blacks Law Dictionary, 8th Edition, pages 1241 on the definition of the word “proceeding” were referred to. Learned Counsel then set out the 3 issues identified by the Lower/tribunal for determination in the Report of the pre-hearing Session and said the Lower/tribunal was partially guided by an issue raised by the Appellant’s Counsel in his written address which was not the same as any of them. It was contended that for that reason the grounds of appeal 2,3 and 5 are incompetent and that issues 2 and 3 are irreconcibly conflicting. We were urged to strike out both the grounds of appeal and the issues on the authority of TAHIR .V. BANK OF THE NORTH LTD. (2007) ALL FWLR (388) 1072 @ 1098.
For the Appellants it was submitted that the ground of the preliminary objection is fundamentally flawed and misconceived because the formulation of grounds of appeal is governed by Order 6, Rule 2(2), (3) and 3 of the Court Of Appeal Rules, 2007.
That grounds of appeal are not required to be predicated on the issues identified by the Lower/tribunal but by law should be an attack at the specific findings or ratio decidendi of the decision appealed against. Learned Counsel for the Appellant said further that grounds 2, 3, and 5 of the Notice of Appeal are clearly challenging specific findings of the Lower/tribunal by which the Appellants are aggrieved. He then illustrated the complaints in respect of each of the grounds in relation to the findings of Lower/tribunal and relied on inter alia, AWUSE .V. ODILI (205) 16 NWLR (952) 575 @ 624 and OBI-ODU V. DUKE (2006) 1 NWLR (961) 375 @ 408 for the submission that the said grounds are competent grounds of appeal since they are tied to the decision of the Lower/tribunal.
It was also Learned Counsel’s contention that issues 2, and 3 are not in conflict as they relate to distinct findings by the Lower/tribunal contained in the decision appealed against.
On the whole, we were urged by the Learned Counsel to dismiss the preliminary objection for lacking in merit.
Without the need to mince word and waste verbiage, the Learned Counsel for the 1st and 2nd Respondent is right on what the grounds of an appeal in this Court should be based or predicated upon. The law is now elementary in this Court that the grounds of an appeal are to derive, enure, arise, came from and entirely be based on the decision of the Lower/tribunal with which the Appellant is dissatisfied. The only qualification is that the grounds must attack or challenge the ratio decidendi of the decision on appeal. See OBATOYINBO .V. OSHATOBA (1996) 5 NWLR (450) 531, NNANNA .V. ONYENAKUCHI (2000) 15 NWLR (689) 92, NWABUEZE .V. NWORA (2005) 8 NWLR (926) 1. The grounds of appeal being challenged by the Appellants in the preliminary objection are in the following terms, stripped of their particulars:-
“2. The tribunal erred in law when they held in the portion of their judgment thus. “The issue raised from Petitioners’ case is not the Exhibits P, R, T, Q, S, U are inflated. It is that they are fake and did not arise from collation of polling unit results and so can not be the basis of Returning the 1st Respondent as the winner of the said election. It is where a party alleges inflation of votes or inclusion of non existent vote that such a party is obliged to tender 2 results the one stigmatized as false and the genuine one” and thereby came to a wrong conclusion which has occasioned miscarriage of justice.”
3 The learned tribunal misdirected itself when it held as follows:
“Having thoroughly and carefully considered the totality of the evidence, we are in agreement that the burden of proof within the balance of probability has been discharged by the petitioners to persuade us to accept the results tendered by them for the 3 Wards in dispute as the genuine election results from the polling booths…the evidence of the Respondents on the other hand failed to connect directly or indirectly the results relied upon by the 3rd Respondent in the 3 Wards to declare the victory of the 1st – 2nd Respondents.”
5. The tribunal erred in law when it held that Exhibits LI to L22 and K1 to K22 and M1 – M11 being the results tendered by the Petitioners for Jushin, Hanwa and Dogarawa Wards are the genuine results from which votes can be computed and thereby came to the wrong conclusion which has occasioned miscarriage of justice.”
Without any difficulty whatsoever, it can be seen that these grounds arose from the decision of the Lower/tribunal and relate directly with the dissatisfaction of the Appellants with the specified aspects or portions of that decision.
They apparently; prima facie, are competent grounds against the decision of the Lower/tribunal.
I should emphasize that the requirement of the law on grounds of appeal in this Court is that they be predicated on the decision appealed against and not any issue/s identified and considered by a Lower Court or tribunal before arriving at the said decisions. To that extent, I would readily agree with the learned Counsel for the Appellants that the primary ground of the preliminary objection is misconceived in law and therefore untenable.
In addition, there is no conflict between the Appellant issues 2 and 3 for each of them deals with distinct aspects of the election results tendered in evidence by the parties. While issue 2 deals with the Lower/tribunal’s preference to the results tendered by the 1st and 2nd Respondents, the issue 3 relates to whether the issues in the 1st and 2nd Respondents Petition, did not border on falsification of results. There is nothing contradictory between the two issues because each can be determined independent of the other.
Once again, the reason for the preliminary objection is clearly misconceived and unviable.
In the result, I am unable to find any merit in the preliminary objection by the 1st and 2nd Respondents. It is therefore dismissed.
I now turn to the issues raised for determination in the appeal. With the dismissal of the preliminary objection challenging the Appellants’ grounds of appeal, the issues submitted by the learned Appellants’ Counsel for determination are now germane for decision in the appeal having been culled from the grounds of appeal. The Learned Counsel for the 1st and 2nd Respondents appeared “to have taken his eyes off the ball” in his formulation of his lone issue and since he had made submissions on the Appellants’ issues in his brief, I would determine the appeal on the Appellants’ issues.
ISSUE 1
The submissions by the Learned Counsel for the Appellants are that the witnesses called by the 1st and 2nd Respondents particularly Awalu Saleh; PW 12 and PW 15 did not give evidence that election did not hold at the 9 polling units in question. That while Saleh gave hearsay evidence from information from other people, PW 12 and PW15 said that the results of the election at the polling units they attended were not entered in the INEC result sheets or not declared. It was further submitted that though PW7 – 11 and PW 14 said in evidence that there was no election in six (6) of the polling units, they did not tender their voter cards to demonstrate the fact that they did not vote at the election, but that they were at the polling units as agents of 2nd Respondents and not voters.
It was argued by Learned Counsel that there was therefore no credible and admissible evidence before the Lower/tribunal to justify the finding that there was no election at the polling units. He said it was not enough to parade witnesses to merely say there was no election at particular polling units without any corroborating evidence, relying on NNAJI .V. AGBO (2006) ALL FWLR (305) 736 @ 757, OWOYOMI .V. EGARE (1999) 5 NWLR (603) 416 @ 425 and AYOGU .V. NNAMANI (2006) 8 NWLR (981) 160 @ 187. Furthermore, that the Appellants had tendered the results of the election in the said Polling Units which were admitted as Exhibits “T”. series and Exhibit “U” duly certified by the 3rd Respondent. That the Lower/tribunal in its finding that election did not hold at the Polling Units treated very lightly, the presumption enjoyed by the said Exhibits.
We were finally urged to hold that the 1st and 2nd Respondents failed to lead credible evidence to establish that election was not conducted at the Polling Units in dispute and resolve the issue in Appellants’ favour.
For the 1st and 2nd Respondents’ Learned Counsel set out the reliefs sought in Paragraph F(1) (a) – (c) of their petition and said that PW 6-15 gave evidence as voters and their respective voter cards were exhibited to their respective Statements on oath and marked as Exhibit 2. He said the Lower/tribunal properly evaluated the evidence before it and chose to believe that of the 1st and 2nd Respondents witnesses as it was entitled to do, on the authority of HILARY FARMS LTD. .V. M/V “MAHTBA” (2007) ALL FLWR (390) 1417 @ 1432.
According to the Learned Counsel, the Lower/tribunal only gave a reason that there were no election in the Polling Units in order to arrive at the decision that election results were not declared for the Polling Units enumerated in paragraph F (1) (a) – (1) and we are urged to so hold. The case of HILARY FARMS LTD. was again relied on and it was further submitted that the 1st and 2nd Respondents had discharged the burden of proof placed upon them by law as stated in the cases of NNAJ1 .V. AGBO, OWOYOMI .V. EGARE and AYOGUN .V. NNAMANI all Supra. It was contended that the Exhibits T series and “U” admitted in evidence do not include any results from the 9 Polling Units of Dogarawa Ward where election results were not declared. Reference was made to evidence, under cross-examination of RW 3 at page 988 of Vol.2 of the record of appeal where he admitted that they are not included in the Exhibits and so there was no evidence of Forms EC 8 A (11) to show that election took place at the said 9 Polling Units. The case of NWOLE .V. IWUAGWU (2006) ALL FWLR (316) 325 @ 343 was cited on the importance of Forms EC 8A in the conduct of an election, the absence of which was said by Learned Counsel, has dealt a devastating blow to any claim of election at the Polling Units.
We were urged by him to so find and hold that election results were not declared for the Polling Units enumerated in paragraph F(l) (a) – (c ) of the petition.
In a brief response on the issue, Learned Counsel for Appellants had said in the reply brief that no voters’ cards of the witnesses called by 1st and 2nd Respondent was tendered or admitted in evidence by the Lower/tribunal. He said the 1st and 2nd Respondents had attached some voter cards to their petition and marked them as Exhibits but they were not demonstrated in evidence before the Lower/tribunal and so not admitted as evidence which could be relied on.
Now, the pleadings and reliefs sought by the 1st and 2nd Respondents in their petition before the Lower/tribunal, particularly at paragraph F (1) (a) – (1) were as follows:-
“F” RELIEF SOUGHT BY THE PETITIONERS:-
whereof, the Petitioners urge the Honourable Tribunal to hold, that:-
(i) election results were not declared for the following Polling Stations of the Dogarawa Ward, of the Sabon Gari Federal Contituency, of the Federal Republic of Nigeria:
(a) Dogarawa 1/Chikin Gari, Code 001
(b) Kaduna Anji/K/G Chindo, Code 004
(c) Ang. Sakadadi/UPE Sakadadi, Code 008
(d) Ung. Sarki/UPE Sakadadi, Code 009
(e) Ung. M. Isah/K/G Mai. Isa, Code 010
(f) Dan Mai Kwaruvva/Mai Shellaro House, Code 011
(g) Ung. Barashi/Ung. Barashi, Code 012
(h) Ung. Sarki/K/G Sarki, Code 013 and
(i) Zango Dan Borno/UPE Z/Bar, Code 016 A & B
An there exist no genuine INEC Forms EC 8A (II) for the same;”
The straight forward and unambiguous claim in the above averments by the 1st and 2nd Respondents is simply that election results were not declared for the named Polling Units of Dogarawa Ward and that there exist no genuine INEC Forms EC 8A (II) for them. It should be observed carefully that the averments and relief claimed is that of non declaration of election results in the Polling Units and NOT that election did not hold or was not conducted at the said Polling Units. Of course there is difference between non declaration, failure, refusal or omission to declare the results of elections conducted at the Polling Units and non holding or conduct of, failure, refusal or omission to conduct or hold election at the Polling Units. Election had to be held or conducted before there could be any results thereof, whether genuine or otherwise, to be declared.
Where a petitioner questions an election on the ground that results in any particular Polling Units or Ward/s of a Constituency were not declared as required by the relevant provisions of the Electoral Act, the challenge is not one that election was not held or conducted at all in the said Polling Units or Wards. It is one suggesting that election was conducted or held but the results in the affected Polling Units or Wards were not declared by the electoral/election Officials whose statutory duty it is to declare them at the stipulated stages and times set out in the Electoral Act.
Non declaration, failure, refusal or omission to declare results of election conducted and held at all stages of a constituency is a responsibility entirely that of the officials charged with the direct conduct of the election. I should point out here that because results of election was not declared at any of the stages does not mean or even imply that the results of the election do not exist. In particular for the Polling Units, pursuant to section 64 (1) (2) and (3) of the Electoral Act, 2006, the presiding officer after counting the votes at the close of the election, was required to enter the results in INEC form EC 8As, which shall be signed by him and counter signed by candidates or their polling agents where available to whom a copy each would be given. It is after this process was completed that subsection (4) of Section 64 requires the presiding Officer to announce or declare the result at the Polling/Unit. Consequently a claim that result of election was not declared raises the prima facie presumption that election was indeed and in fact held or conducted and the process or procedure set out in Section 64 (1), (2) and (3) was completed and complied with by the Presiding Officer/s concerned and that only Subsection (4) was breached or not complied with.
Where however it was asserted that election results were not declared because they do not exist, as in the present appeal, the case put forward is that election was not conducted or held at all in the affected areas and no results from such areas would be available for the purpose of collation in order to determine who scored majority of the votes cast and entitled to be returned as the winner of the election in the Constituency.
In this appeal, the relevant pleadings which formed the basis for the reliefs in paragraph F set out above are to be found in paragraphs D28 – D31, D33 and D37 of the 1 and 2nd Respondents’ petition. To avoid proxility of setting out the paragraphs in all their details, I would briefly state the averments contained therein. Paragraph D28 says the Returning Officer for Dogarawa Ward did not turn up at the collation centre while paragraph D29 says that political party agent did not receive election results from the following Polling/Stations where results were not declared:-
(a) Dogarawa 1/Chikin Gari, Code 001
(b) Kaduna Anji/K/G Chindo, Code 004
(c) Ang. Sakadadi/UPE Sakadadi, Code 008
(d) Ung. Sarki/UPE Sakadadi, Code 009
(e) Ung. M. Isah/K/G Mai. Isa, Code 010
(f) Dan Mai Kwaruwa/Mai Shellaro House, Code 011
(g) Ung. Barashi/Ung. Barashi, Code 012
(h) Ung. Sarki/K/G /Sarki, Code 013 and Zango Dan Borno/UPE Z/D/Bar, Code 016 A&B
The averment in paragraph D30 is that the presiding Officer at Dogarawa 1/Chikin Gari polling station, Code 001, allowed multiple voting, under aged voters to vote, voters not on register to vote and did not count the votes at the end of voting.
Paragraph D31 averred that the ballot boxes and other election materials for the following polling stations:- (b) (c ), (d) (e), (f), )g) and (h) listed in paragraph D9 above were stolen /snatched by the 2nd Respondent’s thugs.
Paragraph D33 says that election look place at Zangon Dan Borno Polling Station, code 016 between 5.30 pm and 7 pm when the Polling Officers stopped the election and took away the ballot box which he did not take to the Ward collation Centre. Paragraph 37 averred that there exist no genuine INEC forms EC 8 B (II) in respect of Dogarawa Ward.
These are averments of the facts relied on by the 1st and 2nd Respondents to seek the reliefs in paragraph F. The next question that agitates itself at this stage is what was the evidence adduced by the 1st and 2nd Respondents to prove the facts averred in paragraphs D28-D31, 33 and D37 and to warrant the grant of the reliefs sought in paragraph H?
It may be recalled that the Learned Counsel for the 1st and 2nd Respondent had above said PW6 PW15 were registered voters who gave evidence which was not discredited on the issue. PW 6 was the 2nd Respondent’s Returning Officer for Dogarawa Ward at the disputed election. His evidence was that he did not collect the election results from his party’s polling/agents in respect of the Polling/Stations set out in paragraph F. He did not say he had gone to vote though a registered voter whose voter’s card was attached to his sworn statement as Exhibit 2.
PW7, Isa Sani in his Statement on Oath said he went to the Dogarawa collation Centre on the date of the election to accompany the polling/officer to his Polling Station but did not find any INEC official there. Under Cross-examination by Learned Counsel for the 3rd Respondent he said he noticed that election did not hold for he did not cast his vote that day.
On their part, PW8, PW10, PW11 and PW13 said in their respective statements on Oath that they were at various Polling/Stations from 8.am to 6 pm and that election did not hold because INEC officials did not turn up. This was the evidence they gave at the hearing of the petition.
PW12 and PW15 said in their own statement on Oath that election was held at their respective Polling Stations but that results were not declared.
As can easily be seen from the evidence of PW7 15, they gave direct account of what they actually said happened or did not happen at their various Polling/Stations where they were physically present at the material time of the election in dispute. They are therefore witnesses who gave direct oral evidence of what their eyes saw as eye witnesses in respect of the Polling/Stations in issue as required under the provisions of Section 77 (a) of the Evidence Act.
Whether as registered voters or party agents, the witnesses are competent witnesses by virtue of section 155(1) of the Evidence Act whose evidence is quite relevant to the issue whether or not election was held at their respective Polling/Stations.
Their evidence is in law, undoubtedly, not hearsay being an account of what they saw and not what they were told by any one else.
From the record of the appeal, the substance of the evidence of these particular witnesses was not discredited or even seriously challenged by the Appellants’ under cross-examination. In addition, there is no record of any such direct evidence of the witnesses whether registered voters, party agents or other persons who were physically present at the Polling/Stations in question who said or even suggested that election was held on the date of the election in dispute. The evidence for being unchallenged, remained credible and admissible evidence upon which the Lower/tribunal was entitled to rely in deciding the issue before it. Indeed the law is now common place that the Lower/tribunal had a duty to accept and act on such unchallenged and uncontroverted evidence in the resolution of the issue canvassed by the parties. See ASAFA FOODS FACTORY .V. NLRAINE (2002) 2 NWLR (781) 353 @ 375, MICHAEL .V. YEUSUW (2004) 15 NWLR (895) 90 BABA-IYA.V. SIKELI (2006) 3 NWLR (968) 508. The evidence of the witnesses was sufficient in law for the discharge of the initial burden of proof, on the balance of probabilities placed on the 1st and 2ml Respondents by law that election was not held at seven of the Polling/Stations while results of the election held in the two others were not declared. As has been stated earlier, the Appellants to whom the burden shifted after the proof by the 1st and 2nd Respondents, did not challenge or effectively controvert that evidence. In the circumstances the Lower/tribunal was quite justified in law to have relied on the said evidence in its finding that for the purpose of computing the over all results of the election in dispute in order to determine the winner, no results were declared in the 9 Polling/Stations because election was not held in seven out of them. Since the results of the election were not declared in the two Polling/Stations of the 9 set out in Paragraph F, for the purpose of computing the over all results, the effect is that no election was held in those polling/stations too.
In the result, the Lower/tribunal was quite justified in holding that election was not conducted in the 9 polling/station of Dogarawa Ward set out in paragraph F, of the 1st and 2nd Respondent Petition. I intend to answer the 2nd arm of the Appellant’s issue(1) on whether the Lower/tribunal was justified in making the consequential order for bye- election in the said Polling/Stations after a determination of the Cross-appeal by the 1st and 2nd Respondents which is essentially on that issue.
Meanwhile I now go to Appellants’ issue No.(2).
As a reminder, the issue is whether the Lower/tribunal’s preference of the results of the election for Jushin, Hanwa and Dogarawa Wards tendered by the 1st and 2nd Respondents is justified, having regard to the irregularities associated with them. The submission by Learned Counsel for the Appellants on the issue is that the said results admitted in evidence as Exhibits K1- K22 for Jushin Ward, L1 – L27 for Hanwa Ward and M1 – M11 for Dogarawa Ward. He said the results tendered by the Appellants were admitted as Exhibits PI P2 and Q for Jushin Ward, R1 -R27 and S for Hanwa and T1 – T14 and for Dogarawa Wards respectively. Irregularities said to be contained on Exhibits K, L and M series were set out by Learned Counsel who then contended that it was an error on the part of the Lower/tribunal to have overlooked the anomalies and tagged the Exhibits with stamp of genuiness.
The cases of OGU .V. EKWEREMADU (2006) 1 NWLR (691) 255 @ 282 AND ATIPEKPE .V. JOE (1999) 5 NWLR (607) 425 @ 442 were cited and it was further argued that the Exhibits are at least pieces of documents prepared by agents of 1st and 2nd Respondent as they do not bear any evidence of INEC imprimatur for any weight attach to them. Reliance was placed on AJUDUA .V. NWOGU (No2) (2004) 11 NWLR (898) 79 @ 89 – 90.
In another vein, Learned Counsel attempted at paragraphs 24 – 25 of the Appellants’ brief, to import an issue which did not arise or relate to any of the six (6) grounds of appeal contained in the Notice of Appeal. For that reason, the issue or point raised therein as it related to the results tendered by the 1st and 2nd Respondents in evidence is of no moment in the determination of the Appellants’ issue (2) and would be ignored henceforth. We were, urged to resolve the issue in Appellants’ favour.
For the 1st and 2nd Respondents, after setting out paragraph D9 of the petition, Learned Counsel submitted that Exhibits K, L and M series were duplicate original of the INEC forms given to the agents of the 1st and 2nd Respondents at the Polling/Stations where the results contained therein were declared on the date of the election. He said they are accurate and have not been shown to be false not withstanding the fact that they are referred to as a copy in Section 64 (3) of the Electoral Act, 2006. The case of NWOBODO .V. ONOH (1984) 1 @ 47 was cited on the interpretation of Section 62 of the Electoral Act, 1982 said to be similar to Section 64(3) and Section 93 (or 94) of the Electoral Act, 2006 was set out by Learned Counsel who submitted that the Lower/tribunal rightly appraised the Exhibits at page 1076 of Vol. 2 of the record of appeal, a portion of which was set out in the brief.
Then relying on OLANIYAN .V. ADENIYI (2007) ALL FWLR (387) 916 @ 929, we were urged to uphold the assessment by the Lower/tribunal.
It was also the submission by him that nowhere in the record of the appeal were the irregularities listed in the Appellants’ brief demonstrated before the Lower/tribunal and the Court cannot be asked to scrutinize the Exhibits in an attempt to discover them. According to him, RW1 under cross-examination admitted that he was called from his house to sign Exhibit Q ie. Form EC8 B (11) for Jushin Ward which he ought to have signed at the collation centre, but that there was no collation of results at the Jushin Ward collation Centre. Also that RW3 admitted under Cross-examination that there were irregularities in Exhibits T1-T14 and U for Dogarawa Ward and so the Lower/tribunal was right not to have placed any weight on the said Exhibits. Like, was done in the Appellants’ brief, irregularities said to be in the Exhibits tendered by the Appellants’ were set out in the 1st and 2nd Respondents’ brief. It was further argued that since the Appellants did not appeal against the finding by the Lower/tribunal that Exhibits K, L and M, series were duplicate copies of said INEC Forms EC 8 A (II), they cannot now be heard to challenge them and the case of OGUNYADE, V. OSHUNKEYE (2007) ALL FLWR (389) 1179 @ 1207 was relied on for the position. The cases cited by the Learned Counsel for the Appellants on the issue are said to be irrelevant in the appeal and we were urged to so hold and finally, resolve the issue in the positive.
I would start a consideration of the issue by saying that it is one questioning or challenging the primary duty of the Lower/tribunal, i.e the evaluation or assessment of the evidence adduced at the trial of the petition and the ascription of the requisite worth or probative value thereto in the determination of the issues that arose for decision. The law is settled that a trial tribunal or court enjoys a unique position and has the benefit of seeing and hearing witnesses give evidence live and therefore observing some salient nuances which often influence the credibility and weight that attaches to the evidence in the assessment by the Court/tribunal. This is more so as it related to oral evidence and many times to documentary evidence which is used as a hanger from which to assess and weigh the oral evidence given on certain facts which form the basis of issues to be determined between contending parties in a given case. Because of that advantage of trial Courts or tribunals, the attitude of appellate Courts, as represented over years by established principles of practice and procedure, has been one of reluctance in interfering with the assessment or evaluation of evidence by trial Courts or tribunal except in defined and recognized situations. Consequently, an appellate Court would not and is generally reluctant to interfere with the assessment or evaluation of evidence and ascription of probative value thereto unless they are shown to be perverse or that the trial court/tribunal drew wrong inferences from accepted facts or applied wrong principle of law in the assessment of evidence. The Supreme court in the case of MAINAGGE V. GWAMMA (2004) 14 NWLR (893) 323 @ 338 had this to say on the issue:-
“Evaluation of evidence is primarily the function of trial Court. An appellate Court could only interfere where and when it fails to evaluate such evidence at all or fails to do so properly. Where therefore, the trial court has satisfactorily performed its primary function of evaluating the evidence and correctly ascribed probative value to it, an appellate court has no business interfering with its findings as such evidence. See CASE OF INEC .V. RAY (2004) 14 NWLR (892) 92, NBAYAKO .V. BANCORO (2004) 13 NWLR (893) 187, AGBI .V. OGBEH (2006) 11 NWLR (1990) 65 @ 115.”
So the question I ask here is thus:- Have the Appellants’ effectively demonstrated in this appeal that the Lower/tribunal did not properly evaluate or assess the Exhibits K, L and M series and ascribe probative value to them before making its findings on them. It may be recalled that the primary complaint of the Appellants in the issue was that the Lower/tribunal was wrong to have preferred the Exhibit K, L and M series tendered by the 1st and 2nd Respondents to the exhibits tendered by them. The Lower/tribunal in its judgment had given reason for its preference for the Exhibits K, L, and M series at pages 1074 – 5, 1076 – 78 of Vol. 2 of the record of appeal. For a full appreciation of the reasons, it is expedient to set out the relevant portions in their details. They are:-
“As we stated in issue, Section 64 of the Electoral Act, 2006 enjoined the 3rd Respondent and its agent to give copies of the result to polling agent present at the conclusion of voting and counting.
Copies of Result have been held in the case of Nwobodo vs. Onoh to be primary evidence of results of election, in Nwobodo’s case the court had this to say at page 47.
“Inspite of the description of the document as Copies in Section 62 and 70 of the Electoral Act, I think when all the circumstances under which the document were made is tendered in evidence are taken into account it is legitimate to treat them as primary evidence…….And the trial court had wide and unfetted discretion under Section 90 of the Evidence Act to admit them as evidence of the result of the polling stations.”
The document referred to in this petition are Exhibit K1 – 22 which is the duplicate form EC 8A (II) for Jushin Ward Exhibit LI – L27 for Hanwa Ward and Ml – 11 for Dogarawa Ward.
The 1st – 2nd Respondents in rebuttal of this Petitioners case tendered Certified True Copies of the result in the affected Areas vide a subpoena on INEC. The results are Exhibit P1 – 20 EC 8A 11 and Exhibit Q EC 8 A 11 for Jushi Ward, R1 – 27 EC 8A11 and Exhibit S EC 8 B11 for Hanwa Ward and Exhibit T1 -14 EC 8A11 and Exhibit U EC 8B11 for Dogarawa Ward.
While the Petitioners urged us to consider the Exhibits K, L, M series as the authentic results for the 3 Wards, the 1st and 2nd as well as 3rd – 17th Respondents Counsel urged us to admit the Exhibits P, R, 1 Series and Q, S, U is the authentic INEC result for the Wards. The law is that result declared by INEC is presumed authentic see Nwobodo .vs. Onoh (supra).
That is however a rebuttable presumption. We have again exercised our power to scrutinize all the exhibit tendered in this case with a view to ascertaining the authenticity of such documents. In doing this we had to look at the Exhibit A to H which all parties agreed are authentic INEC results for the 8 undisputed wards.
As we examined the two sets of results the one presented by the Petitioner and the other presented by the Respondent through INEC we made discovery which enabled us to prefer one to the other. The Exhibits K, L, and M are duplicate copies of raw INEC forms EC 8 A (11) signed as it should be though not all. They are in the forms with the copies tagged original admitted for the 8 uncontested Wards. The witnesses were not cross examined on the authenticity of the forms being 3rd Respondent’s real forms EC 8A (11). The voting pattern on Exhibit K, L & M series and that on Exhibit A – H series are similar. It is like a ship sometimes rocking towards the left and at others towards the right. The witness who identified and received them at the poling units testified. Their evidence was not faulted PW1 under Cross- examination said he did not plead Exhibit P, R, and J because they were not existing documents. He pleaded only the result his agents received.
The Result produced by the Respondents Form EC 8A (11) for the 3 Wards indipute Exhibit P,R and J series and Exhibit S,Q,U on the other hand were not copies of INEC original forms like the ones admitted as Exhibit A to H series. They are ordinary forms. It is not credible to imagine that for the 8 Wards the same set of forms as Exhibit K, L, M will be used by the 3rd Respondent and for the remaining 3 Wards in dispute a different type will be used.
On the voting pattern Exhibit P, R, O show a radically different voting pattern from Exhibit A – H and that makes it improbable that in only those 3 Wards there would be a drastic departure from the pattern obvious in 8 Wards.
The DW1 admitted that he was not present in collation at the Local government Collation Centre but was invited later to come and sign form EC 8B11 from his house. Under cross-examination DW 2 admitted that some of the results on Exhibit U were not among the Exhibit 1 T14. From calculation, the T series did not add up to the figure in the collated Exhibit U. The reluctance of DW1 under cross-examination show that he was deflated. On Exhibit R1 – R27 presented by the Respondents for Hanwa Ward we found that only R2 was signed. The DW 2-4 and Exhibit P, R and Q collapsed under the heat of cross-examination. Weighing both set of Exhibits on the imaginary scale of Justice therefore we are in no doubt that Exhibit L,K,M weighs more to tilt the balance in their favour.
In Exhibit U, EC 8 B11 for Dogarawa the only signed copies are those with the same result as the petitioners result for same ward and they are signed by same persons.
Having thoroughly and carefully considered the totality of the evidence we are in agreement that the burden of proof within the balance of probability has been discharged by the Petitioners to persuade us to accept the results tendered by them for the 3 Wards in dispute as the genuine election results from the polling booths. The petitioners have established how the figures for each ward he calculated was obtained. The evidence of the Respondents on the other hand failed to connect directly or indirectly the victory of the 1st – 2nd Respondents.
See Omoboriowo Vs. Ajasin (supra).
Put briefly, the reasons for the preference of exhibits K, L. M series include:-
(a) they are duplicate copies of Original results given to party agents pursuant to Section 64 (3) of the Electoral Act.
(b) they are in the form with the copies tagged original and admitted for the 8 uncontested Wards.
(c) The voting pattern on them and that on exhibits A – H series for the 8 uncontested Wards are similar.
(d) Witnesses were not Cross-examined on their authenticity as being INEC’s real Form EC 8A (II).
On the other hand the Lower/tribunal’s reasons for rejecting the Exhibits tendered by the Appellants as contended in the above excerpts of the judgment can be summarized thus:-
(a) they are not copies of INEC original Forms like Exhibits A – H series.
(b) They are ordinary Forms.
(c) DW1 – 4 and the Exhibits collapsed under the heat of Cross-examination.
(d) Demeanour of witness for the Appellants.
The law is that in the evaluation or assessment of any piece of evidence the trial Court/tribunal should take into account certain factors which include:-
(i) Whether the evidence is admissible.
(ii) its relevance,
(ii) its credibility.
(iii) its being more propabible than that given by the other party.
(iv) its conclusiveness.
These factors are the determinants of the probative weight or value that a piece of evidence would attract. ODOFIN .V. MOGAJ1 (1978) 4 SC 91, (1978) NSCC 275, ONWUKAVE OLALA (1989) 1 NWLR (96) 182, INEC .V. RAY (Supra).
Without any difficulty, it can be seen that the Lower/tribunal in the reasons, given above for its ascribing value to Exhibits K, L, M. Series, had considered and taken into account all of the above factors before its preference for the Exhibits. It cannot therefore be disputed that the Lower/tribunal had properly and correctly evaluated and assessed the evidence before it by applying or using established procedure and parameter for ascribing weight to the evidence. It is not the duty of this Court merely on the ground that it would have arrived at a different conclusion or decision on the same or similar facts to interfere with a correct assessment or evaluation and application of the evidence to such facts where it is apparent that a trial court or tribunal had properly discharged its primary duty of assessing the evidence.
See OMOREGIE .V. IDUAGIEMWANYE (1985) 2 NWLR (5741, UGO .V. OBIEKWE (1989) 1 NWLR (99) 566, ONIFADE .V. OLAYIWOLA (1990) 7 NWLR (161) 130.
The Appellants here have not shown that there indeed and fact exists any cogent reason in law why the Court should interfere with the evaluation or assessment of the two sets of Exhibits put in evidence before the Lower/tribunal and its preference for Exhibits K, L, and M series. In the result, I resolve the issue against the Appellant. The last issue in the appeal is issue (3) which is whether the 1st and 2nd Respondents petition did not border on falsification of results to warrant the tendering of two sets of result one called false and the other, genuine.
Referring to the averments in paragraphs D10, D21, D27, D37 and F(ii), the Learned Counsel for the Appellants submitted that with the use of the expressions:-
“False declaration of results, “there exist no genuine INEC Form EC 8 A (II)” in relation to the complaints of results for the 3 contested Wards of Jushin, Hanwa and Dogarawa, the allegations in the paragraphs border on falsification of results which in law requires the 1st and 2nd Respondent to plead two sets of results. It was argued that the 1st and 2nd Respondents neither pleaded the said two set of results nor led evidence on same as required in the case of OJO .V. ESOHE (1999) 5 NWLR (603) 444 @ 452 – 3, SABIYA .V. TUKUR (1983) 11 SC 109 AND ADUN .V. OSUNDA (2003) 16 NWLR (847) 643 @ 672.
Furthermore, it was submitted that the onus of producing the two sets of results is that of the 1st and 2nd Respondents and that the results tendered by the Appellants in respect of the contested Wards were exercise in surplussage since the 1st and 2nd Respondents have not discharged the initial burden placed on them. The cases of SEIKEBA .V. PENAWOU (1999) 9 NWLR (618) 354 @ 364 AND OGU, V, EKWEKEMADU (Supra) @ 282. were cited on the submission.
Learned Counsel then referred to page 1075 of the record of appeal where he said the Lower/tribunal alluded to the fact that the parties have raised the issue of genuiness or otherwise of the results tendered. According to him, the Lower/tribunal shied away from holding that on the state of the pleadings, the 1st and 2nd Respondents had the duty to plead and tender two sets of results in order to establish their claim. On the whole, we were urged to resolve the issue in Appellants’ favour.
Learned Counsel for the 1st and 2nd Respondents also started his submissions on the issue by reference to the finding of the Lower/tribunal at pages 1075-6 of the record of appeal as well as paragraphs D13, D25 and D28 of the petition and submitted that the 1st and 2nd Respondents did not allege that the 6th, 7th and 8th Respondents made any falsification of results. He said the pleading in paragraphs D21, D27 and D37 of the petition are that there exist no genuine INEC Forms EC 8 B (II) in respect of the contested wards and urged us hold that the 1st and 2nd Respondents were not required to produce two sets of results since they did not allege falsification of results. According to Learned Counsel, the cases cited on the point in the Appellant’s brief are not relevant to the appeal and he urged us to so hold.
It was then argued that the 3rd – 17th Respondents did not file any Reply to the petition and so did not challenge the facts set out therein in respect of which Exhibits were tendered by the 1st and 2nd Respondents herein. Also that the 1st Appellant cannot raise the issue of falsification of results since he did not plead facts on it in his Reply. The case of DAPIANLONG .V. DARIYE (2007) ALL FWLR (573) 1 @ 42 was cited and we were urged to answer the issue in the positive.
As can be observed from the submissions by Learned Counsel the pith of the Appellants’ complaint in this issue is predicated on the pleadings in paragraphs D10, D21, D27 and D37 of the 1st and 2nd Respondents which formed the basis for seeking the reliefs in paragraph F (i) of the petition. Much as I wish to avoid making the judgment long, it would be deligent to set out the said paragraphs.
They are thus:-
“D10 In respect of Jushi, Hanwa and Dogarawa Wards with Codes 07, 08 and 09 respectively, of the Sabon Gari Federal Constituency, of the Federal Republic of Nigeria, Suleman Dahiru (also called Sulen Mallam), Musa Yakunu, and Alhaji Sule Baba, all well known PDP Members in the Sabon Gari Local Government, claim to be the 6th , 7th and 8th Respondents, and to be acting as Agents of the 3rd Respondent, and made false declaration of results of the election to the House of Representatives, held on 21-04-2007, as follows:-
S/N WARD/(&CODE)_ PETITIONERS 1ST & 2ND RESPONDENTS
VOTES SCORES VOTES SCORE
1. Jushi Code 07 312 7,994
2. Hanwa, Code 08 1,265 10,349
3. Dogarawa, Code 09 1,657 5,662
D21. Therefore, there exists no genuine INEC Form EC 8B (11) in respect of Jushi Ward, and the result of the 105 House of representatives election in the Ward, can only be computed from the INEC Form EC 8 A (II) from the Polling Stations of the Ward, as accurately done in Paragraph D8 (7) above.
D27. Therefore, there exits no genuine INEC EC 8B (11) in Respect pf Hanwa Ward, and the result of the House of Representatives election in the Ward, can only be computed from the INEC Form EC 8A (11) from the 27 Polling Stations of the Ward, as accurately done in Paragraph D8, (8) above.
D37. Therefore there exists no genuine INEC Form EC 8B (II) in respect of Dogarawa Ward, and the result of the House of Representatives election in the Ward, can only be computed from the INEC Form EC 8A(11) from the 11 polling Stations where results were declared to the Ward, as done in Paragraph D8 (9) above.
(Copies of the INEC, Sabon Gari Local Government Area, Kaduna State Figure of 2006/2007 Registered voters, unit by unit for the Jushin, Hanwa and Dogarawa Wards of the Local Government and hereto annexed as ANNEXES C, D AND E, in support of the computations in Paragraph D8 (7), D8 (8) and D8 (9) above.
Put simply, paragraph D10, says that false declaration of results was made in respect of the contested Wards of Jushin, Hanwa and Dogarawa. The clear import of paragraphs D21, D27 and D37 is that there exist nor genuine INEC Forms EC 8 B (II) which could only be computed from the INEC Forms EC 8 A (II) for each of the contested Wards.
Now speaking generally, falsification of results in the con of elections is the unauthorized and therefore illegal alteration, change or tampering with election results duly entered by INEC officials in the officially designated and prescribed INEC results forms at the various stages of a particular constituency. It is the unlawful tempering in whatever manner with the scores duly counted, declared and entered in the official result forms by INEC Officials in accordance with the Electoral Act at the various stages of an election. In a Constituency, falsification of election results may therefore be in various ways for instance, inflation of scores or decrease in scores for candidates on the results forms. I should however point out that falsification of election results can only happen, take place occur, and be practically possible where election was held or conducted and contested by candidates for whom votes were cast by the electorates which were then entered on the election result forms. Where there was sufficient, credible and unchallenged evidence that election was not held or conducted at the Polling stages of a constituency, there would not or cannot be results which are capable of being falsified. Any purported results in such a situation would be fake results and NOT falsified results, they are results which were manufactured outside the electoral processes and not results of an election that can be altered, tempered with or changed in the name of falsification. In the absence of election from which results could be collated and recorded, there cannot be falsification of results but faking of results.
The case put forward by the 1st and 2nd Respondent in the afore named paragraphs of their petition is that there was no collation of the election results from the Polling/Stations as declared and entered in INEC Forms EC 8A(II) at Ward Collation Centers in respect of the 3 contested Wards.
As a result, there exist no genuine INEC Forms EC 8 A(II) for the 3 contested Wards from which declaration of the results for the Wards could be made at the Ward levels. For that, reason the declaration of the election results at the said Wards level by the 6th, 7th and 8th Respondents, was false. In other words what the 1st and 2nd Respondents are saying quite sincerely is that the results declared by 6th, 7th and 8th Respondents for the contested wards and which were used by the 3rd Respondent in computing the overall votes scored by the candidates to return the 1st Appellant as the winner, were false results. Because they are not saying that election did not hold in the 3 wards, they are not asserting that the results declared were false but that they are false because the genuine results were tempered with, altered or changed by inflation of the votes scored by the 1st Appellant and decreasing the votes scored by the 1st Respondent. Essentially therefore, the case of the 1st and 2nd Respondents in respect of the 3 contested Wards is that of falsification the results at the wards collation levels by alleging that there are no genuine results recorded in INEC Forms EC 8A(II) for the Wards.
By the established principle of law as restated in the authorities cited by Learned Counsel on the point, to prove falsity or falsification of declared election results, there should be two sets of results; one to be genuine and the other, false or falsified.
Since the results alleged to be falsely declared are the results from the Polling/Stations which were recorded or entered in INEC Forms EC 8 A(II), to enable the allegation be proved, there should be two sets of the said forms before the Lower/tribunal. By the provisions of Sections 135 and 136 of the Evidence Act applicable to election petitions, the 1st and 2nd Respondents as the parties who asserted the falsification bear the legal evidential burden of producing the two sets of result in proof of the assertion. In addition in to the cases cited on the point by Learned Counsel, See also OMOBORIOWO .V. AJASIN (1984) 1 SCNLR 247, ETUK .V. ISEMIN (1992) 4 NWLR (236) 402, JALINGO .V. NYAMO (1992) 3 NWLR (231) 538. OJUKWU .V. ONWUDIWE (1984) 1 SCNLR 347.
The case of the 1st and 2nd Respondents it should be noted, particularly in paragraphs D21, D27 and D37 is that there exist no genuine INEC Forms EC 8 CB(II) for the 3 contested Wards and so did not allege falsification on the said forms. In the circumstances they cannot be expected to plead and produce what they say did not exist at all. They have set out the falsified figures declared as the results in their paragraph D10 and so their duty is to plead and produce what they call genuine figures which would add up to the results of the election in the Wards. This they have done in their paragraphs D8 (7), (8) and (9) of the petition in support of which the Exhibits K, L and M series were tendered and admitted in evidence. The 1st and 2nd Respondents had in paragraph D9 given notice to the 3rd Respondent in whose’s Official custody the certified copies of the Exhibits retained by the Presiding Officers to produce them at the trial by their petition. On the face of these facts and evidence, what other results of the election in the contested Wards exist to be pleaded and produced by the 1st and 2nd Respondents? The only answer is that there is none.
In the circumstances the 1st and 2nt Respondents had discharged the legal duty of pleading and producing the figures that they called falsely declared results and the genuine results entered in INEC forms and declared at the Polling/Stations in the Wards.
They thereby have satisfied the principle of proof of falsification of the results as enumerated in the cases cited earlier.
In the result, for that reason, I find no merit in the Appellant’s arguments in support of the issue which is accordingly resolved against them. With the resolution of two and half (2-1/2) of the Appellants’ issue against them, their appeal is substantially left without merit.
It may be recalled that I have reserved the resolution of the 2nd arm of the Appellants’ issue, until the determination of the 1st and 2nd Respondents Cross appeal, which is next.
CA/K/EP/N A/5/07
This is a Cross appeal in respect of the decision of the Lower/tribunal delivered on the 14/12/2007 as stated at the beginning of this judgment.
From the 3 grounds of appeal contained on the Notice of Appeal filed on 03/01/08 by the Appellants; 3 issues were formulated in the Appellants’ brief filed on the 22/1/08. They are as follows:-
(A) Whether issue 1 argued in the written Address Of the 1st & 2nd Respondents, and issues 1, 2, 3, 4, 5 and 8 argued in the Written Address of the 3rd to 17th Respondents, are the same as the issues summarized by the Tribunal in its pre-hearing Conference Report, and it was therefore right for the tribunal to have been partly guided by the issue in its judgment,
(B) Whether the 1st Respondent has admitted the facts of indictment constituting his disqualification for fraud, and therefore stands disqualified on his own admission, there being no need for his trial and conviction for fraud by a Court to prove his indictment.
(C) Whether the Tribunal was right when in its judgment it failed to declare as elected the 1st Appellant who scored 36,813 votes as against the 1st Respondent’s 24,427 votes in the election, with a margin of 2,386 votes, but made an Order of bye-election in 9 Polling Stations where election and not take place, even though such relief was not sought.
For the 1st and 2nd Respondents to the appeal, a brief of argument was filed on 28/1/2008 and later on 9/6/2008, a notice of preliminary objection was filed for the 1st and 2nd Respondents which was argued in the brief.
The 3rd – 17th Respondent’s notice of intention to contend that the decision of the Lower/tribunal be varied was deemed filed on the 22/4/2008.
In reaction to the above processes filed by the Respondents, the Appellants’ filed Appellants’ Reply briefs on 8/2/2008 and 5/5/2008.
At the hearing of the appeal, learned counsel for the Appellants Mr. Alley applied orally for an amendment of the titles of the briefs filed by him to read Cross Appellants/ in place of Appellants’ Briefs.
With agreement by the learned Counsel for the Respondents to the appeal, the amendment was ordered by the Court and it also affected the Respondents’ brief and their processes which would henceforth be called cross Respondents’. The learned Counsel for the 1st and 2nd Cross Respondents had moved his preliminary objection at the hearing after which the aforementioned briefs of argument were adopted by learned Counsel as their submissions in support of their respective positions in the appeal which we were urged to uphold.
As usual, I would deal with the preliminary objection first.
The ground of the objection is that the 3 grounds of appeal filed by the Cross Appellants are vague, general, prolix, narrative and argumentative contrary to the provisions of Order 6, Rule 2(3) of the Court of Appeal Rule, 2007.
In his submissions on the objection, learned counsel had cited and relied on a number of judicial authorities to support that the grounds of appeal are offensive and contrary to the above Rules of the Court to be rendered incompetent. They include NWABUEZE .V. NWOKA (2005) 8 NWLR (926) 1 @ 20, TIZA .V. BEGHA (2005) 15 NWLR (949) 616 @ 646 and KALU .V. UZOR (2006) 8 NWLR (981) 66 @ 85 on the strength of which he urged us to strike the grounds for being incompetent.
Learned counsel for the Cross Appellants on his part said in the Cross Appellant’s Reply brief filed on the 8/2/2008 that the grounds of appeal are not argumentative narrative, vague or prolix and so do not in any way offend Order 6, Rule 213 and 3 of the Rules of /court or gone against the requirement of the law as decided in the cases cited supra.
The grounds of the cross appeal, which speak for themselves are in following terms:-
“(1) ERROR IN LAW
The Honourable Tribunal erred in law when in its judgment delivered on the 14th day of December, 2007 it made references to and used issue 1 summarized and argued in the Written Address filed by Counsel on behalf of the 1st & 2nd Respondents, and Issues 1, 2, 3, 4, 5, and 8 summarized and argued to the written Address filed by Counsel on behalf of the 3rd to 17th Respondents, which issues are not the same as the Issue for determination summarized by the Honourable Tribunal in its Pre-hearing Conference Report dated 19-09-2007, which it did not modify, thereby allowing its proceedings to be party guided by irrelevant and extraneous matters such as the requirement to tender two (2) sets of results in evidence, existence of allegation of crime non-joinder of parties, substantial compliance with provisions of the Electoral Act, 2006, number of votes cast exceeding the number of registered voters, and the rebuttable presumption that result declared by INEC ins authentic, which matters are extraneously, irrelevant and perverse.
PARTICULARS OF ERROR-
(i) Issue 1 summarized and argued in the Written Address filed on behalf of the 1st & 2nd Respondents is not the same with any of the Three (3) Issues for determination summarized by the Honourable Tribunal in its Pre-hearing Conference Report, dated 19-09-2007.
(ii) Issues l,2,3,4,5and 8 summarized and argued in the Written Address filed by Counsel on behalf of the 4th to 17th Respondents are not the same with any of the three (3) Issues for determination summarized by the Honourable Tribunal in its Prehearing Conference Report, dated 19-09-2007.
(iii) The Honourable Tribunal made references to and used Issue 1 summarized and augured in the Written Address filed on behalf or the 1st & 2nd Respondents, in its judgment delivered on 14 -12-2007.
(iv). The Honourable Tribunal made references to and used Issues 1, 2, 3, 4, and 8 summarized and argued in the Written Address filed on behalf of the 3rd to 17th Respondents, in its judgment delivered on 14-12-2007.
(2) The Honourable Tribunal erred in law, when in determining the issue whether the 1st Respondent was at the time of the election not qualified to contest the election, it held thus:-
“As microscopically as we have examined the exhibits covering the indictment we are unable to see now it can qualify to prove indictment. The recommendation did not show that the chairman 1st Respondent was found to have embezzled money. In the case of DAGASH VS. BULAMA (2004) 14 NWLR PT. 892 P.14 the panel set up by the Borno State Govt. indicted the 1st Respondent therein and the indictment was accepted in a White Paper (pt. 1048) NWLR, it was been settled thus – that
“The trial and conviction by a court is the only constitutionally permitted way to prove guilt and therefore the only ground for the imposition of criminal punishment or penalty or the criminal offences of embezzlement or fraud”.
The Supreme Court added that “An indictment is no more than an accusation”
It has been settled that even if the indictment related to the 1st Respondent and was confirmed by the Government White Paper, such acceptance cannot constitute an indictment where the 1st Respondent is not charged to a Court of competent jurisdiction and convicted. Even if the indictment related to the 1st Respondent and was confirmed by the Government White Paper as contended by the Petitioners’ Counsel such indictment or acceptance cannot constitute indictment because the 1st Respondent was neither charge to Court nor convicted. Exhibit 1 and V are no more than an accusation.
In the circumstance we hold that the Petitioners not proved or established in law that the 1st Respondent is disqualified from contesting the election to the Sabon Gari Federal Constituency pursuant to Section 66 (1) of the Constitution.”
Even though Exhibit V was tendered in evidence by the 1st Respondent, thus constituting an admission and its contents constituting his indictment for fraud; thereby reaching the wrong decision above, and causing a miscarriage of justice.
PARTICULARS OF ERROR:-
(i) Exhibit 1 is the Report of the Appropriation and Implementation Committee of the Kaduna State House of Assembly, on the investigation on how the year 2000 budget were expended by Local Government Councils in Kaduna State, contents of which indicted the 1st Respondent for fraud.
(ii). Exhibit 1 is the Kaduna State House of Assembly votes and Proceedings one hundred and seventy – ninth sitting of Tuesday, 22nd May, 2001, which accepted Exhibit 1.
(iii) Exhibit v is the Kaduna State of Nigeria White Paper on the Report of the Committee Appointed to ascertain the findings contained in the Report of the State House of Assembly’s investigation into the operations of the Local Government Councils in the state contents of which indicted the 1st Respondent for fraud, as a member of the Sabon Gari Local government Council.
(vi) Exhibits L, J and V are the documents covering the indictment of the 1st Respondent for fraud.
(iv) Exhibits L, and J were tendered in evidence by the Appellants, whilst Exhibit V was tendered in evidence by the 1st Respondent.
(v) The case of Dagash Vs. Bulama (Supra), and AC Vs. INEC (Supra) are distinguish from Petition No EPT/KD/NA/002, now this appeal.
ERROR IN LAW
(3) The Honourable Tribunal erred in law when it failed to declare as elected the 1st Appellant whom it found to have scored the majority of value votes cast at the election, but made a consequential order of bye-election in nine (9) Polling Stations of Dogarawa Ward where elections were not conducted, even though it had received and collated the results firm eleven (11) Polling Station of Dogarawa Ward where elections were conducted, giving the reason to its order of bye election that the votes margin is narrow, where by its own findings the 1st Appellant scored 26,813 valid votes but the 1st Respondent scored 24,427 valid votes at the election, and when the Appellants did not seek in their Petition a relief of bye-election in the nine (9) Polling Stations of Dogarawa Ward where elections were not conducted thereby rendering the decision perverse,
PARTICULARS OF ERROR:-
(j) It was the finding of the Honourable Tribunal that the result for the election conducted for Sabon Gari Federal Constituency on 21-4-2007 is ANPP 26,813, PDP 24,427.
(ii) Votes margin between the 1st Appellant and the 1st Respondent is 2,368 valid votes, in favour of the 1st Appellant.
(iii) Appellants, in their Petition, did not seek a relief of bye-election in the nine (9) Polling Stations of Dogarawa Ward where elections were not conducted.
ORDER 6 RULES 2(3) and (3) make the following provisions:-
(2) Where a ground of appeal alleges misdirection or error in law the particulars and the nature of the misdirection or error shall be clearly stated.
2(3)The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
(3) Any ground which is vague or general in terms of which discloses no reasonable ground of appeal shall not be permitted save the general ground that the judgment is against the weight of the evidence and ground of appeal or any part thereof which is no permitted under this rule may be struck out by the Court of its own motion or on application by the respondent.
A cursory reading of the ground 1 plainly shows that it utterly verbose, argumentative and therefore prolix. It is beyond viable argument that the ground is not precise or concise but rather narrative of a portion of the Lower/tribunal’s judgment.
The ground is undoubtedly in breach of the provision of Order 6 Rule 2(3) above. See A.G.F. .V. A.N.P.P. (2004) 1 EPR 312 @ 341-2, ADAH .V. ADAH (2001) FWLR (41) 1815-1824, IDIKA .V. ERISI (1988) 5 SCNJ 208.
Grounds of appeal No2 and 3 are not only argumentative, verbose, prolix and to a large extent vague but are were quotation of passages or portions of the Lower/tribunal’s judgment. In the case of ALADE .V. OGUNDOKUN (1992) 5 NWLR (239) 42 @ 52, it was held that merely quoting or repeating passages of judgment does not comply with Order 3, Rule (2) (2) of the court of Appeal rules (now Order 6, Rule 2(3) of the Court Of Appeal, 2007). See also ANYAOKE .V. ADO (1986) 3 NWLR (3) 731 and AMADIJEOGU .V. ONONAKU (1988) 2 NWLR (73) 614.
These grounds are clearly in general terms and when read along with the argumentative particulars set out there under, are vague to the extent that they do not disclose or specify the nature of the error of law alleged therein. I have no difficulty in agreeing with the learned counsel for the 1st and 2nd Cross Respondents that the 3 grounds of the Cross appeal are fundamentally in breach of the requirements of order 6 rules 2(3) and 3 of the Court of Appeal, 2007 by being prolix, verbose, general, narrative, argumentative and vague See EDIRA .V. ERISI (1988) 5 SCNJ 208.
For that reason, the grounds are incompetent and liable to be struck out under the provisions of Order 6, rule 3 of the Court of Appeal, 2007.
In the result, I find merit in the preliminary objection which is hereby upheld. Consequently the 3 grounds of the Cross appeal are struck out for the reasons given above. Because the 3 grounds are the only ones contained on the Notice of Appeal, the appeal itself is thereby rendered incompetent and accordingly struck out.
With the Cross appeal determined, I now turn to the issue whether the Lower/tribunal was justified in making the consequential order for bye-election in the 9 Polling/stations where election was not conducted, having regard to the evidence before it. It may be called that after determining that election was not conducted at the said Polling/Stations, the Lower/tribunal ordered for bye-election at the Polling/Stations for the purpose of determining who between the Appellants and Cross Appellants could be the winner. The Lower/tribunal at pages 1083 -4 of the record of appeal, which was the concluding portion of the decision appealed against, had given reason for the consequential order for bye election. This is what it said:-
On the unit where the Petitioner proved through credible evidence the election was not held or collated, it is our view that in a closely fought election like the present one where the margin between the parties is narrow the results might have been affected one way or other, if the voters in these 9 Wards were allowed to vote and votes collated. The absence of results or votes from these polling units can therefore not be ignored. See TAIINU ADUDA .V. OKAFOR (2004) 12 WRN P.107 (supra).
We cannot in the circumstance conclusively determine whether the (s) Respondent was not duly elected by majority of lawful votes cast without the votes from the 9 polling units in Dogarawa Ward.
The justice of this petition will be made by a consequential order which we are entitled to make vide AKINBOBOTA .V. PLASSON FISKO (19991) 1 NWLR (PT.167) 270 AT 288, BAVO .V. NJIDDA (2004) 8 NWLR (PT.876) 517 AT 588.
According we order a bye – election in the following Polling Units.
1. Dogarawa Chikin Gari, Code 001
2. Kabama Anji/K/G Chindo Code 004
3. Ang. Sakadadi/UPE Sakadadi Code 008
4. Ung. Sarki UPE Sakadadi Code 009
5. Ung. M. Isah/K/G. Mai Isa Code 010
6. Dan Mai Kwaruwa/Mai Shellaro house Code 001
7. Ung. Barashi Code 012
8. Ung. Sarki/K/G/Sarki code 013
9. Zango Dan Borno UPE/2/D/Bar Code 016 A & B.
In simple terms, the reason for the consequential order was that the Lower/tribunal could not conclusively determine whether the 1st Respondent in the petition was not duly elected by a majority of lawful votes cast without the votes from the Polling/Stations because “the margin between the parties is narrow”
Before coming to the above conclusion, the Lower/tribunal had used and relied on the evidence adduced and placed before it to collate the undisputed results of the election in 8 Wards and “authentic results” in the 3 disputed Wards of Hanwa, Jushin and Dogarawa Wards where election was conducted. By its collation and calculation, the Lower/tribunal determined that by the results of the election of the Polling/Stations at Ten and a Half (10-1/2) of the Eleven (11) Wards in the Sabon Gari Federal Constituency, were ANPP – 26, 813 and PDP- 24, 427. It would appear that the Lower/tribunal had determined by its conclusion that from the evidence placed before it which it accepted and relied on, the PDP, the 2nd Respondent which sponsored the 1st Respondent to the petition, did not score the majority of the lawful votes cast at the election held on 21/4/2007 in the Sabon Gari Federal Constituency.
It should be noted that the grounds upon which the Cross Appellants questioned the return of the 1st Cross Respondent as the winner of the election was that. “The 1st Respondent was not duly Elected by majority of lawful votes cast at the election.”
This ground is one of the grounds set out in section 145 of the electoral Act, 2006 upon which an election may be questioned. It is specifically provided for in Section 145 (C).
The salient point to be noted in the ground is that it is challenging the return of a candidate on the basis that he did not score majority of the lawful votes casts at the election. The foundation of the challenge are the lawful votes cast at the election and NOT those votes which were not cast due to the non holding or conduct of election or other reasons which are species of another ground of non compliance provided for in section 145 (b) of the Electoral act, 2006.
Because the Appellants did not question the election and return of the 1st Respondent on the ground of non compliance of any specie, the effect of non compliance by failure, omission, neglect or refusal of the 3rd Respondent’s officials to conduct the election in 9 Polling/stations of Dogarawa Ward on the lawful votes cast in 10-1/2 of the Wards of the constituency, did not arise and was of no moment in the determination of the ground upon which the election was questioned. In other words the fact as found by the Lower/tribunal that election was not conducted in 9 Polling/Stations of Dogarawa Ward was not relevant in the determination of the ground that the 1st Respondent was not duly elected by majority of lawful votes cast at the election. Lawful votes cast at the election as established by the evidence placed before the Lower/tribunal are the falctum for the determination of who between the candidates who contested the election was duly elected by majority thereof and therefore entitled to be returned as the winner of the election. By the conclusion set out earlier, the Lower/tribunal had conclusively determined the candidate who scored the majority of the lawful votes cast at the disputed election and therefore who was duly elected and ought to be returned as the winner. By its collation and calculations with which I agree entirely because it is amply supported by the evidence adduced at the trial, it was the 1st Cross Appellant sponsored by the ANPP; the 2nd Appellants who scored 26,813 of the lawful votes cast to the 1st and 2nd Cross Respondents 24,427 votes cast at the disputed election that was duly elected by majority of the lawful votes cast at the said election. This is “clear as crystal”.
Perharps I should point out that the case put forward by the 1st and 2nd Respondents in the main appeal before the Lower/tribunal in both pleadings and evidence was that election did not hold and was not conducted at the said 9 Polling/stations of Dogarawa Ward and so there were no results to be used in the computation of the votes cast at the election for the purposes of determining who scored majority of the lawful votes. It was also their case that they scored majority of the lawful votes cast where election was conduct or held in the Sabon Gari Federal Constituency as clearly averred in paragraphs D8 and D9 of their petition.
They produced evidence in support of their averments which was completely accepted by the Lower/tribunal and used to collate and calculate the final results of the lawful votes casts at the places where election was conducted in the Constituency as was stated earlier. Since the Lower/tribunal had accepted the case put forward by the Petitioners in both pleadings and evidence hook, line and sinker, as it were, the only logical and rational consequential order that should result from the conclusion of the Lower/tribunal would be in terms of the reliefs sought in paragraphs F(i) and G(i) of the petition. The Lower/tribunal has granted the relief in paragraph F (i) by holding that election was not conducted at the named Polling/Stations. Similarly, the Lower/tribunal had also granted the relief in paragraph F(ii) by concluding that the 1st Petitioner Scored 26,813 votes while the 1st Respondent Scored 24,428 votes at the disputed election. Flowing naturally and automatically from the grant of the reliefs in paragraphs F (i) and F (ii) would be the declaration sought in paragraph G (i)of the Petition which is as follows:-
“G. Whereof, the Petitioners urge the Honourable Tribunal to:-
(i) ” declare the 1st Petitioner as the elected member of the House of Representatives, for Sabon Gari Federal constituency, of the Federal republic of Nigeria, having polled the highest number of lawful votes cast at the election held in the 14th day of April, 2007 and having satisfied the requirement of the 1999 Constitution of the federal republic of Nigeria and the Electoral Act, 2006.”
Like I stated before now, having accepted that election was not conducted at the named Polling/Stations and that from the collation and computation of the lawful votes cast, where election was conducted in the constituency the Petitioner scored majority of the votes, the Lower/tribunal had conclusively determined the ground that the 1st Respondent to the petition was not duly elected by majority of the lawful votes cast at the disputed election.
The fact that election was not conducted in the Polling/stations question was overtaken by that finding and no longer relevant in the determination of the ground upon which the return of the 1st Respondent to the petition was questioned had been effectively and completely determined.
It was consequently an error in law for the Lower/tribunal to import that fact into the consideration the appropriate and proper consequential order that flows from its conclusion that the 1st Petitioner scored majority of the lawful votes cast at the disputed election.
In the final result, for the aforementioned reasons my answer to the 2nd arm of the Appellants’ issue 1 is that there is no tenable justification in law for the Lower/tribunal to make an order for bye election in the named 9 Polling/stations for the purpose of determining who from the evidence adduced by the parties and accepted by it, scored majority of lawful votes cast at the election. That order is therefore set aside and in its place, the prayer in paragraph G (i) of the petition which I have set out above is hereby granted accordingly.
For the avoidance of doubt, the 1st Cross Appellant is hereby declared as the winner of the election conducted on the 21/4/07 at the Sabon Gari Federal Constituency of Kaduna State for a seat in the Nigerian House of Representatives having scored majority of the Lawful votes cast at the election and satisfied the provisions of the Electoral Act, 2006 and the Constitution of the Federal Republic of Nigeria, 1999.
The Certificate of Return issued to the 1st Cross Respondent is hereby nullified and the Independent National Electoral Commission (INEC) shall issue the 1st Cross Appellant with a valid Certificate of Return pursuant to Section 76 (1) of the Electoral Act, 2006.
The parties are to bear their respective costs of the appeals
JOHN INYANG OKORO, J.C.A: I read before now the illuminating and quite elaborate judgments of my learned brother, Garba, JCA in the consolidated appeals listed above which has just been delivered and I agree with the reasons and conclusions reached in each of the appeals. Indeed my learned brother has meticulously and quite efficiently dealt with all the salient issues submitted for the determination of the appeals and I just have a few words to add for emphasis only.
First, I agree that issue of service of process of court is fundamental as failure to serve processes on any party particularly the originating process, can be fatal to the case as the court will not have jurisdiction to entertain the matter. In fact a plaintiff who has not served the other party with an originating process cannot successfully activate the jurisdiction of a court. See Wema Bank V. Odulaja (2007) 7 NWLR (pt 663). The purport of service of process is to let the other party know that he has a matter in the court and to prepare to defend same. Since the court must hear both parties before reaching a decision (except where an ex-parte application is permitted), its jurisdiction is properly activated only where both parties are properly notified of the matter before it. However, where, as in this case, the Respondent has filed process in response to the Appellants’ process, he cannot be heard to say that he was not served. In the instant appeal, the 1st and 2nd Respondents had filed their brief of augment in response to the Appellants’ brief. There is a presumption that he could not have filed a respondent’s brief if he was not served with the Appellant’s brief. Moreover, since it is the practice to attach notice of appeal to the record of appeal, and same having been served on the Respondent, it is also presumed that he was served with notice of appeal. And in any case, even if he was not served with the notice of appeal, his participation in the appeal up to filling a respondent’s brief makes such failure a mere irregularity which does not affect the jurisdiction of the court.
On the issue of amendment of the petition which the lower Tribunal granted, I agree that in view of the fact that the amendment sought was quite outside paragraph 14 (2)(a) of the First Schedule to the Electoral Act 2006, it was proper notwithstanding the fact that the 30 days allowed for filling the petition had elapsed before the application for the amendment was filed. The amendment, in my opinion was just to correct the error of describing the INEC form used at the Polling Station and nothing more.
On the other interlocutory appeal, which is on all fours with the other one granted by the lower Tribunal, I do not see any reason why the Tribunal could grant one and refused the other. Granting extension of time to bring in INEC forms which were duly pleaded, did not in my opinion, prejudice any of the parties. After all, the Appellant’s application was similarly granted.
On the main appeal, I hold the view that since the lower Tribunal had determined that the petitioner scored 26,813 votes against the 1st Respondent’s score of 24,428, the logical conclusion ought to have been to grant the relief sought in paragraph G(1) of the petition by declaring that the 1st Respondent to the petition did not score majority of lawful votes at the election but that it was the petitioner. That could have ended the job of the Tribunal. The order of the lower Tribunal for bye election in the 9 polling units in order to determine who scored majority of lawful votes was not part of the case before them. I agree that this order of the lower Tribunal be set aside and the prayer in paragraph G(i) of the petition be granted. The said prayer as set out in the lead judgment is also granted by me. I abide by all consequential orders made in the lead judgment, that relating to costs, inclusive.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I, agree.
Appearances
O. I. HABEAB with M. M. ALABELEWE and A. BASHARFor Appellant
AND
G. A. ALLEY
C. N. NWAGBUFor Respondent
