HON SABO GARBA & ANOR v. IBRAHIM UMAR & ORS
(2019)LCN/13782(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 17th day of September, 2019
CA/A/EPT/700/2019
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
1. HON SABO GARBA
2. PEOPLES DEMOCRATIC PARTY (PDP) Appellant(s)
AND
1. IBRAHIM UMAR
2. ALL PROGRESSIVE CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
RATIO
WHETHER OR NOT GROUND OF APPEAL MUST RELATE AND ARISE FROM THE DECISION COMPLAINED OF
The law is clear. A ground of appeal must relate to and arise from the decision complained of. It must also arise from the ratio decidendi of the decision. Where it does not, the ground of appeal will be incompetent and a Court is without jurisdiction to entertain or adjudicate upon an incompetent ground- JIM – JAJA V COP RIVERS (SUPRA) at 253 and UGWU V STATE (SUPRA); OGUEBEGO V PDP (2016) 4 NWLR (pt 1503) 446; NSIRIM V AMADI (2016) 5 NWLR (pt 1504) 42 and F. B. N PLC V NWADIALU & SONS LTD (2016) 18 NWLR (pt 1543) 1. PER YAHAYA, J.C.A.
WHETHER OR NOT THE DUTY OF MAKING FINDINGS ON THE EVIDENCE LED RESTS ON THE TRIAL COURT
The duty of making findings of facts on the evidence led, lies squarely on the trial Tribunal. Once it does so, properly without any perversity an appellate Court cannot interfere-BLESSING V F. R. N. (2015) 13 NWLR (pt 1475) 1 and F.R.N. V DAIRO (2015) 6 NWLR (pt 1454) 141. PER YAHAYA, J.C.A.
WHETHER OR NOT THE COURT CAN DESCEND INTO THE ARENA TO IDENTIFY WHICH ARGUMENTS OF COUNSEL RELATES TO WHICH ISSUE
It is not the duty of a Court to begin to find out which arguments of counsel, relate to which issue, if they are argued together. It is of course within the competence of counsel to argue more than one issue together. When they are competent. But it is a risky venture, because when one of the issues is declared incompetent by a Court, then the competent issues become tainted, having been argued together with the incompetent issue. The issues would have to be struck out as the Court will not descend into the arena and begin to indentify which arguments relate to which issue. See AFOLABI V STATE (2016) LPELR 40300 (SC) and GEO-SOURCE V BIRAGBARA (1997) 5 NWLR (pt 506) 607. PER YAHAYA, J.C.A.
ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This appeal has risen from the Judgment of the National Assembly and State Houses of Assembly Election Petition Tribunal, Yobe. The 3rd respondent herein (INEC), conducted an election into the House of Representatives in respect of Potiskum/Nangere Federal Constituency Yobe State on the 23rd of February 2019. After the election, the 3rd respondent returned the 1st respondent herein, as the winner of the election. Being dissatisfied, the appellants herein, presented a Petition, challenging the return of the 1st respondent on the grounds that
(1) by virtue of Section 66 (1) (b) and (c) of the Constitution of the Federal Republic of Nigeria 1999 as amended, the 1st respondent was not qualified to contest the election;
(2) by virtue of Section 138 (1) (e) read together with Section 31 of the Electoral Act 2010, the 1st respondent was not qualified to contest the said election, for presenting a false declaration or information to the 3rd respondent.
The Petitioners prayed for the following reliefs-
?A. “A DECLARATION that the 1st Respondent was not qualified
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to contest the National Assembly Election for Potiskum/Nangere Constituency of Yobe State having being convicted by the Upper Area Court 1 Potiskum on the 3rd day of March, 1986.
B. A DECLARATION that the 1st Respondent was not qualified to contest the National Assembly Election for Potiskum/Nangere Federal Constituency of Yobe State, being a person of unsound mind.
C. That it be determined that the 1st and 2nd Respondents herein were not duly elected and did not score the lawful votes cast at the 23rd February 2019, House of Representatives Election into the Potiskum/Nangere Constituency of Yobe State and ought not to have been returned by the 3rd Respondent.
D. AN ORDER SETTING ASIDE the certificate of Return issued to the 1st Respondent by the 3rd Respondent.
E. AN ORDER DECLARING the 1st and 2nd Petitioners as winners of the election into the Potiskum/Nangere Federal Constituency of Yobe State held on the 23rd February, 2019, having scored the highest number of lawful votes cast in the said election.
F. AN ORDER DIRECTING the 3rd respondents to issue a Certificate of Return to the 1st Petitioner as the winner of the election into
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the House of Representatives Potiskum/Nangere Constituency of Yobe State.”
Having joined Issues, the Petition went to trial. On the 20th of July, 2019, the Tribunal dismissed the Petition. Dissatisfied, the Petitioners filed this appeal.
The appellants’ brief filed on the 8th August, 2019, was settled by Mr J. J Usman. The 1st respondent filed his brief via the agency of Mr Kehinde. It was filed on the 9th of August 2019. The 2nd respondent filed its brief on the 16th August, 2019 through Mr Sunday Dickson. The appellant filed a Reply to the 1st respondent’s brief on 16th August 2019.
In the appellants’ brief four issues were identified. They read-
1. Whether the Tribunal was right when it held that the 1st respondent has recovered from the mental illness despite the absence of any evidence of such recovery.
2. Whether the 1st respondent made false declaration to the 3rd respondent in Form CF001.
3. Whether the Tribunal was right when it held that the 1st respondent was qualified to have contested the election into the House of Representatives for Potiskum/Nangere Federal Constituency held on the 23rd February 2019.
4. Whether the
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Tribunal was right when it held that the Exhibit P1 (the certified true copy of the 1st respondent’s Form CF001) obtained by the Appellants was as an afterthought and thereby jettisoned it.
The 1st respondent distilled two issues for determination. But before then, he raised Preliminary Issues concerning the competence of grounds 1, 2, 3, 7 and 8 of the appellant’s notice of appeal for failure to relate to any particular finding of the Tribunal. He placed reliance on OMEGA BANK (NIG) PLC V O.B. C LTD (2005) 8 NWLR (pt 928) 547 at 580 and UGWU V STATE (2013) 14 NWLR (pt 1374) 257 at 281, to submit that a ground of appeal must relate to the live issue in the matter and must be based on facts and law arising from the Judgment complained against. He then argued that the Tribunal never made a finding of fact, that the appellants had established that the 1st respondent was at any time suffering from any mental illness. In such a case he said, a ground of appeal filed, challenging the Tribunal’s decision for departing from its earlier finding that the 1st respondent was diagnosed with mental illness or was of unsound mind at a point in time, is not based on the
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judgment of the Tribunal, is extraneous and incompetence JIM – JAJA V C.O.P, RIVERS STATE (2013) 6 NWLR (pt 1350) 225 at 253.
He therefore urged us to strike out grounds 1, 2, 3, 7 and 8, and consequentially, Issues 1, 2 and 3 formulated from the said grounds- OBASI V MIKSON EST IND LTD (2016) 16 NWLR (pt. 1539) 335 at 381 and BELLO V GOV. KOGI STATE (1997) 9 NWLR (pt 521) 496 at 513. He emphasised that although Issue No 2 was not formed from an incompetent ground, it was argued together with issue 3 which is incompetent, having been formulated from ground 2 which is incompetent. Since the Court is not expected to go into a search of which arguments are on Issue 2 and which on Issue 3, both should be struck out.
In their Reply on these Preliminary issues, the appellants submitted that grounds 1, 2, 3, 7 and 8 are not incompetent as they are clear and precise and have complied with Order 6 Rules 2 (2) and (3) of the Court of Appeal Rules. They also cited IKENTA BEST (NIG) LTD V A. G. RIVERS STATE (2008) 6 NWLR (pt 1084) 612 at 643 and USMAN V K. S. H. A (2007) 11 NWLR (pt 1044) 148 at 184. They then submitted that grounds 1 and 2 relate to
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findings in the Judgment at pages 439 – 441 of the record. Ground 3 relates to finding in the judgment at pages 441 – 442 of the record. Ground 7 relates to a finding of the Tribunal at pages 442 – 443 of the record. Ground 8 relates to the finding at pages 442 – 443 of the record. They urged us to hold that the grounds are competent.
Now, grounds 1 and 2 of the Notice of appeal state-
1. “The learned Trial Judges of the Election Petition Tribunal erred in law and made perverse findings when having held that the 1st Respondent was the patient admitted at the Borno State Psychiatric Hospital Maiduguri, through Exhibits P5, P6, and the evidence of PW7, made a summersault and held that the 1st respondent has recovered from the mental illness, despite the absence of any evidence of such recovery by the 1st respondent.
2. The Learned Trial Judges of the Election Petition Tribunal erred in law and made perverse findings when having held that Exhibits P5 and P6 established the insanity of the 1st Respondent, however, went on to hold that same did not disqualify the 1st Respondent from participating in the 23rd
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February, 2019 election into the House of Representatives, Potiskum/Nangere Federal Constituency of Yobe State.”
The appellant submitted that grounds 1 and 2 relate to the findings in the judgment at pages 439 – 441 of the record. I have perused the said pages. There is nothing in those pages referred to, where the Tribunal “held that the 1st Respondent was the Patient admitted at the Borno State Psychiatric Hospital Maiduguri, through Exhibits P5, P6, and the evidence of PW7.” All that the Tribunal did, was to recount the evidence led by PW7 to the effect that he examined the 1st respondent in 2005 and found him to be suffering from schizophrenia and that the documents were admitted. The Tribunal then went on to state the different ways insanity can be proved. The Tribunal in the stated pages, never made a finding on the evidence of PW7 or the document tendered. It never found or held that the 1st respondent was the patient admitted in the said Hospital. Again, the Tribunal never made a finding as alleged in ground 2 of the appeal, that “exhibits P5 and P6 established the insanity of the 1st respondent.” It is not fair to attribute to the
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Tribunal, findings that it did not make. The law is clear. A ground of appeal must relate to and arise from the decision complained of. It must also arise from the ratio decidendi of the decision. Where it does not, the ground of appeal will be incompetent and a Court is without jurisdiction to entertain or adjudicate upon an incompetent ground- JIM – JAJA V COP RIVERS (SUPRA) at 253 and UGWU V STATE (SUPRA); OGUEBEGO V PDP (2016) 4 NWLR (pt 1503) 446; NSIRIM V AMADI (2016) 5 NWLR (pt 1504) 42 and F. B. N PLC V NWADIALU & SONS LTD (2016) 18 NWLR (pt 1543) 1. Having found that grounds 1 and 2 of the appeal here, have not risen from the findings of the Tribunal, those grounds are incompetent and are hereby struck out.
Ground 3 of the appeal is said to relate to the judgment at pages 441 – 442 of the record. The ground states-
“The Learned Trial Judges erred in Law when their Lordships led evidence from the bench to alter, amend and interpret the contents of documentary evidence, that is Exhibits P5 and P6 thereby making out a case of purported recovery from the disease of mental illness for the 1st respondent when the said party never
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even admitted to ever been of unsound mind before the Tribunal.”
?At pages 441 – 442 of the record, I have not seen where “the Tribunal led evidence from the bench to alter amend and interpret the contents of documentary evidence, that is Exhibit P5 and P6” to make a purported case of recovery from the disease. At page 442 of the record, the Tribunal made an observation that the evidence PW7 led, was in respect of the year 2005 and that he was not examined or cross-examined as to whether schizophrenia is permanent or curable. This is what is expected of a trial Tribunal, to observe and make findings on the evidence led. That is what it did then, but it did not at all, lead any evidence in order to do that. All it did, was to make reference to Black’s Medical Dictionary 40th Edition, on whether the disease is curable and stated that 25% of people who suffer from the disease, recover fully from it. If a Court cannot make reference to a Dictionary in the course of writing judgments, I do not know what it can refer to. The contents of a Dictionary made use of by a Court, cannot by any stretch of the imagination, amount to “evidence
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led by the bench.” Again, a Court of Law is expected to interpret documentary evidence admitted before it, to make findings on them. In interpreting the documents, the Court is permitted to make recourse to dictionaries or consult authorities or books. They are aids to interpretation and not evidence led by the bench.
Also, from perusing the contents of pages 441-442 of the record, there is nowhere, the Tribunal “led evidence to alter or amend Exhibits P5 and P6.” These are serious charges against the Tribunal and unless they are supported by the record, they must not be made. I have not seen where the Tribunal engaged in those allegations. The result is that ground 2 of the appeal did not arise from the findings of the Tribunal and it is incompetent. It is struck out.
Ground 7 is said to relate to the findings of the Tribunal at pages 442 – 443 of the record. It states-
“The Learned Trial Judges of the Tribunal erred in Law and misdirected themselves thereby occasioned miscarriage of justice when their Lordships substituted their personal opinion over and above the only expert medical
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opinion and documentary evidence already admitted before the Tribunal.”
In the particulars of the ground, the appellant stated that no contrary evidence concerning the mental state of the 1st respondent was led and that only another medical certificate or evidence from a psychiatric hospital, showing the 1st respondent’s state of mind, would suffice, not the opinion of the Judges.
I have not seen where the Tribunal substituted its personal opinion for the medical opinion of PW7. What pages 442 – 443 of the record show, is that the Tribunal held that there was no evidence before it, showing that at the time Form CF001 was submitted, or at the time the Petition was filed, the 1st respondent was still suffering from the illness stated by PW7. It then referred to Exhibits D1 and D2 and formed an opinion on their basis. The opinions were not personal opinions, but were inferences from the said exhibits – IKENTA BEST V A. G RIVERS (2008) 6 NWLR (pt 1048) 612 at 642.
It is the primary duty of a Court of trial, to make a finding of fact from evidence led. FULANI V STATE (2019) 1 NWLR (pt 1653) 237 at 254G. It was therefore for the Tribunal, to
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make a finding of insanity or unsound mind of the 1st respondent. It is not bound to accept a Medical Certificate just because it was tendered. It had to make a finding on the document, just as there are several ways of proving insanity. In ONYEKWE V THE STATE (1988) LPELR – 2732 (SC), the Supreme Court stated five ways of proving insanity- evidence of past history of the afflicted; evidence of his conduct immediately preceding the killing of the deceased, evidence of prison warders or others keeping him in custody, evidence of medical officers who examined him and evidence of relatives concerning his behaviour and the reputation for sanity or insanity.
There is nothing in the Judgment, where the Tribunal found, that the 1st respondent was ever insane or of unsound mind on the basis of any of the five ways enumerated. Its finding at page 443 of the record is very clear, and should not be misunderstood.
Its opinions were based on the documentary evidence before it, tendered by both the Petitioners and respondents, and the witnesses who testified, including the 1st respondent, where it observed his demeanour, as it was entitled to do. It did not
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find proved, the allegations of insanity made against the 1st respondent. It opined that although evidence was led that he had been diagnosed with schizophrenia, in 2005, it did not make a finding of fact in the evidence. It was of the view that at any rate, there is a medical opinion from the Black’s Law Dictionary that people suffering from such schizophrenia disease, can recover from it – about 25% of them. The Tribunal did not find that the 1st respondent recovered or was one of those 25%, since it never made a finding in the 1st place, that he was so suffering. If that is the case, recovering from it, does not even arise. It referred to the evidence before it, to observe that the 1st respondent could not be insane or of unsound mind, as during the period alleged, he was serving as Commissioner, Ministry of Integrated Rural Development and overseeing the Ministry of Transport at Yobe State. He was also the Executive Chairman of the Teaching Service Board Yobe State between 2005 – 2006. He went to the University of Maiduguri and obtained a Master’s degree. The Tribunal made use of the evidence before it, it did not manufacture any evidence. It was its
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findings and conclusions on the evidence led by the parties, not its “personal opinions”. The position of the 1st respondent is that he was never insane in the first place. It is extremely difficult to believe that because a person had an attack at one moment, it simply means that he is insane and would remain so for ever. It was the duty of the Tribunal and it was quite safe for it in the circumstances of this case, to conclude upon the facts, that the 1st respondent was not insane. The duty of making findings of facts on the evidence led, lies squarely on the trial Tribunal. Once it does so, properly without any perversity an appellate Court cannot interfere-BLESSING V F. R. N. (2015) 13 NWLR (pt 1475) 1 and F.R.N. V DAIRO (2015) 6 NWLR (pt 1454) 141.
It is idle to argue as the appellant had done, that appointment as a Commissioner of a State, does not require a Certificate of sanity and that admission into the University of Maiduguri is not regulated by Section 66 (1) (B) of the Constitution of the Federal Republic of Nigeria 1999. The point being made, is that a person allegedly suffering from such disease, especially one who was a Commissioner of a
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State and a Chairman, could not be so appointed. A person allegedly suffering from that disease, cannot have the sufficient mental capacity to undertake a Master’s Degree program in a University. Since there is evidence of his doing so, the 1st respondent could not have been suffering from that disease, the Tribunal concluded, placing that evidence against the evidence led by the appellant. It was the right of the Tribunal to do so and reach its conclusions. There is no evidence that after obtaining the Master’s degree he relapsed, or that he was insane at the time of submitting Form CF001. Even at the trial, the Tribunal observed him to be sane. There is no evidence that the Executive Council Members found him to be insane, since their evidence on this, would have been one way of proving his insanity. The Tribunal did not substitute its “personal opinion” over the medical evidence tendered. Ground 7 was not couched from the Judgment of the Tribunal and it is therefore incompetent.
Ground 8 alleges that the Tribunal erred in Law when it “speculated and made perverse findings” when it held that the 1st Respondent went to a regular school and worked in Key
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positions in the Government of Yobe State and was no longer suffering from the illness he was certified for.
There was no speculation by the Tribunal and it never stated that he recovered from that illness. This ground of appeal was not based on the Judgment and it is also hereby struck out.
Issue No 1 was distilled from grounds 1, 2, 6, 7, 8, 9 and 13 of the grounds of appeal. We found grounds 1, 3, 6, 7 and 8 to be incompetent and have been struck out. Issue No 1 having been distilled from incompetent grounds, is hereby struck out.
Ground 2 of the appeal alleges that the Tribunal erred in Law when it held that Exhibits P5 and P6 established the insanity of the 1st respondent, but went on the hold that, that did not disqualify the 1st respondent from participating in the election.
The Tribunal never found that “Exhibits P5 and P6 established the insanity of the 1st Respondent”. As held earlier in this Judgment, the Tribunal did not make any findings on Exhibits P5 and P6 to the effect that they established the insanity of the 1st Respondent. It never found the 1st respondent to be of unsound mind. This ground does not arise from the
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Judgment of the Tribunal. It is therefore incompetent and it is struck out. Issue No 3 was distilled from grounds 2, 10 and 11 of the grounds of appeal. Since ground 2 is incompetent and has been struck out, an issue cannot be distilled from it. Issue No 2 is thus struck out.
On Issue No 3, I agree with Learned Counsel for the 1st respondent, that it was argued together with issue No 2, which is competent. Page 22 of the appellants’ brief states that
“My Lords, we seek to argue issue 2 and 3 together.”
The appellants did so.
The question which arises, is, which part of the argument refers to the competent Issue No. 2 and which is on the incompetent Issue No 3? It is not the duty of a Court to begin to find out which arguments of counsel, relate to which issue, if they are argued together. It is of course within the competence of counsel to argue more than one issue together. When they are competent. But it is a risky venture, because when one of the issues is declared incompetent by a Court, then the competent issues become tainted, having been argued together with the incompetent issue. The issues
17
would have to be struck out as the Court will not descend into the arena and begin to indentify which arguments relate to which issue. See AFOLABI V STATE (2016) LPELR 40300 (SC) and GEO-SOURCE V BIRAGBARA (1997) 5 NWLR (pt 506) 607.
In this vein therefore, Issues No. 2 which is competent, but which has been argued together with issue No. 3 which is incompetent, Issue No. 2 is incompetent and it is struck out.
The only competent issue for determination therefore, is Issue No. 4 which is;
“Whether the Tribunal was right when it held that the Exhibit P1 (Certified True Copy of the 1st respondent’s Form CF001) obtained by the Appellants was an afterthought and therefore jettisoned it.”
Learned Counsel for the appellants submitted that there was no reason why the Tribunal would hold the tendering of Exhibit P1 as an afterthought, or as an attempt to amend the Petition. He pointed out, that the 1st Respondent filled and submitted Form CF001 to the 3rd Respondent on 18th October, 2018, whilst the Appellants pleaded at paragraph 3 of the Petition, filed on 16th March 2019, that the 1st Respondent’s Form
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CF001 contained false information to INEC. That it was the Certified True Copy of the CF001 of the 1st Respondent that was obtained from INEC on 3rd May 2019. I agree with learned counsel for the Appellants, that a date certifying a document is not necessarily the same as the date the document was made and that no party raised the issue of admissibility of Exhibit P1, the certified true copy of the 1st respondent’s Form CFOO1. I also agree with the learned counsel for the Appellants, that since there was a pleading at paragraph 3 of the Petition of Form CFOO1, it could not be an afterthought.
The Form CFOO1 was tendered, so that the Petitioners can show and establish, that the 1st respondent made false statement to INEC and was therefore not qualified to contest the election. If the Tribunal had given Form CFOO1 its probative value, then it would have come to the conclusion that 1st Respondent made false declaration and or gave false information to the 3rd Respondent, which disqualified him from contesting the election, argued the appellants.
?
The only plea of Form CFOO1 concerning false declaration, and therefore a disqualification to contest the
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election, is at paragraph 21 of the Petition. Therein, the false declaration was in respect of the conviction of the 1st respondent, when he denied ever been convicted. Nothing was said about false declaration of age or of unsound mind in the paragraph. Therefore, Form CFOO1 could not be relied upon, to establish that the 1st respondent made false declaration of age or that he was of unsound mind. Once facts have not been pleaded, no evidence can be led on them as they go to no issue. Furthermore, since the 1st respondent had denied ever, been of unsound mind, and the Tribunal did not make a finding that he was ever of such unsound mind, he could not have made a false declaration to disqualify him in that vein.
On the issue of conviction, no record of conviction duly authenticated was produced. The F. I. R in which the 1st respondent was taken to Court was not tendered. The warrant of conviction was not tendered. In such a situation, there was no cogent and clear admissible evidence before the Tribunal, for it to hold that the 1st respondent was convicted and of what offence. Was it on fraud or dishonesty? In the absence of that, no Tribunal can hold,
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that the 1st respondent made a false statement to the 3rd respondent in the Form CF001. Therefore this issue has not been made out and it is resolved against the appellants.
As a result, we find no merit in this appeal in its entirety and it is dismissed with N100.000 cost to be paid by the appellants, to the 1st and 2nd respondents.
STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother, Abubakar Datti Yahaya, JCA.
I am in complete agreement with the reasoning and the conclusion that this appeal is lacking in merit and should be dismissed. I too for the same reasons advanced in the lead judgment do find this appeal lacking in merit. The appeal is hereby dismissed.
I abide by the consequential order as to costs made in the lead judgment.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, Lord Justice A. D. Yahaya, JCA. I completely agree with the reasoning, conclusions and orders therein.
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Appearances:
Eko Ejembi Eko with him, Safiya Muhammed and R.P LatuFor Appellant(s)
O.S Kehinde for the 1st Respondent.
Joan Inji for the 2nd RespondentFor Respondent(s)
Appearances
Eko Ejembi Eko with him, Safiya Muhammed and R.P LatuFor Appellant
AND
O.S Kehinde for the 1st Respondent.
Joan Inji for the 2nd RespondentFor Respondent
