LABARAN ABDUL V. HON. ISA GARBA & ORS.
(2010)LCN/4084(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of December, 2010
CA/K/EP/SHA/13/2008
RATIO
NEW: MEANING OF THE WORD “NEW”
The word “new” means not existing before; recently made, invented; introduced; different from the previous one; something that has recently happened etc. See Oxford Advanced Learner’s Dictionary 7th edition page 985. PER JOSEPH TINE TUR, J.C.A.
PLEADINGS: WHEN CAN THE PARTIES TO AN ACTION BE SAID TO BE AT ISSUE
It has been held that: ‘When the parties to an action have answered one another’s pleading in such a manner that they have arrived at some material point or matter affirmed on one side and denied on the other, and the party whose turn it is to plead adds nothing to his previous pleadings, the parties are said to be at “issue”; the last pleading is called a joinder in issue… and the question thus raised is called the issue, or one of the issues, in the action. Frequently issue is joined on one question in the case, and the pleadings continue as to the other questions; where the defendant sets up a counter-claim, issue is generally joined on the original claim before it is joined on the counter-claim.” The next step is the trial.’ See Jowitts Dictionary of English Law, Vol. A-K, 1977 edition, page 1011. PER JOSEPH TINE TUR, J.C.A.
DUTY OF COURT: WHETHER THE COURT HAS A DUTY TO RECALL THE COUNSEL OR THE PARTIES TO ADDRESS IT ON IMPORTANT POINT IT DISCOVERED IN THE COURSE OF WRITING JUDGMENT THAT IS CAPABLE OF TILTING THE SCALE IN FAVOUR OF ANY OF THE PARTIES BUT WAS NOT ARGUED OR RAISED DURING THE COURSE OF TRIAL
Where in the course of writing judgment, a judge discovers a very important or relevant point that will tilt the scale in favour of any of the parties, but the issue was not argued or raised during the course of trial, Counsel or the parties should be recalled and given an opportunity to be heard before a decision is taken by the trial Judge. The Court should not determine the issue suo motu without affording the parties or their Counsel a hearing since that will constitute a breach of one of the principles of fair hearing under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999. The law is so settled that I need not cite many authorities on the issue. In Ukaegbu & Ors vs Ugoji & Ors (1991) 6 NWLR (Pt.196) 127 at 159 it was held that the issues settled by Counsel before trial must correspond with the pleadings. Any material or substantial departure from the pleadings of the parties by the judge will result in the undesirable and unacceptable situation of the Court making a case for the parties. The judgment will be declared null and void on appeal. PER JOSEPH TINE TUR, J.C.A.
BURDEN OF PROOF: ON WHOM LIES THE BURDEN OF PROOF IN A SUIT OR PROCEEDING
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. See Section 135(1), (2) and 136 of the Evidence Act 1990. PER JOSEPH TINE TUR, J.C.A.
WHETHER ORAL EVIDENCE MUST BE DIRECT AND POSITIVE AND THE COURT IS NOT ALLOWED TO SPECULATE ON WHAT MIGHT HAPPEN IN THE FUTURE
It is not within the province of any Court or Tribunal to speculate on what might happen in the future. Oral evidence must be direct and positive. See Section 76 and 77(a)-(d) (i) (ii) of the Evidence Act 1990. PER JOSEPH TINE TUR, J.C.A.
Justices
MARY PETER-ODILI Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
JOSEPHINE TINE TUR Justice of The Court of Appeal of Nigeria
Between
LABARAN ABDULAppellant(s)
AND
1. HON. ISA GARBA
2. ALL NIGERIA PEOPLES PARTY
3. THE ELECTORAL OFFICER WARAWA LOCAL GOVERNMENT
4. THE RETURNING OFFICER WARAWA STATE CONSTITUENCY
5. THE RESIDENT ELECTORAL COMMISSIONER KANO STATE
6. INEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
7. THE RETURNING OFFICER, JEMAGU WARD
8. THE RETURNING OFFICER TAMBURAWA GABAS WARD
9. THE RETURNING OFFICER AMARAWA WARD
10. THE RETURNING OFFICER MADARI MATA WARD
11. THE RETURNING OFFICER YANGIZO WARD
12. PRESIDING OFFICER JIGAWA 002
13. PRESIDING OFFICER GANAKAKUN I 001
14. PRESIDING OFFICER GANAGAKUN II 002
15. PRESIDING OFFICER GIWARAN ALITINI I 003
16. PRESIDING OFFICER MAKERA II 007
17. PEOPLES DEMOCRATIC PARTY (PDP)Respondent(s)
JOSEPH TINE TUR, J.C.A.(Delivering the Leading Judgment): On the 14th day of April, 2007 the Independent National Electoral Commission conducted elections into the State House of Assembly in respect of Warawa Constituency in Warawa Local Government Area of Kano State.
The Peoples Democratic Party sponsored Honourable Labaran Abdul while the All Nigerian Peoples Party had Hon. Garba as candidate. Other contestants were Bello K. Gopel (A.C); Kabiru A.G./Dau (DPP) and Engineer Isa Abubakar (PAC). At the end of voting the Commission returned Hon. Labaran Abdul of the Peoples Democratic Party at the duly elected member of the State House of Assembly who had polled 6,524 votes while Hon. Isa Garba of the All Nigerian Peoples Party polled 6,257 votes. Bello K. Gopel 4,242; Kabiru A.G./Dau – 47; Engineer Isa Abubakar 234; and Kabiru Abdul (DPP) 87 votes respectively. Being aggrieved by this return. Hon. Isa Garba and the All Nigerian Peoples Party (ANPP) jointly petitioned the Governorship and Legislative House of Assembly Tribunal, holden at Kano.
The Tribunal heard evidence from the Petitioners, the Respondents and their witnesses and came to the conclusion that due to violence’ thuggery, intimidation etc, voting did not take place in five out of the 106 polling units.
On the 30th day of January 2008 the return of Honorable Labaran Abdul of the Peoples Democratic Party was nullified, with the Tribunal making the following orders:
“On the whole, having regard to all that we have stated and the conclusion arrived at by us in each of the above three formulated issues for determination in petition, it is nothing but stating the obvious to say that the said three issues has been answered in the affirmative in favour of the Petitioners” In the circumstances prayers 1, 2 and 3 adumbrated under paragraph 15 of the amended petition succeed and are hereby accordingly granted. Prayer 4 fails and same is hereby dismissed. For the avoidance of doubt we grant
1. A declaration that the 1st Respondent Labaran Abdul was not duly elected or duly returned as the winner of the election in Warawa Constituency of Kano State.
2. AN ORDER that the 100 votes increased in favour of PDP in Tamburawa Gabas ward be excluded while the 20 votes reduced from the votes of the Petitioners in the said Ward Tamburawct Gabas Ward be added.
3. AN ORDER nullifying the election or return of the 1st Respondent and a further order that fresh election be conducted by the 5th Respondent in the under mentioned polling units where the election were inconclusive i.e. Makera 007; Giwaran Alitini 003; Jigawa 002; Ganakakun 001 and Ganakakun 002 all of which are in Warawa Constituency of Kano State. Accordingly, the 5th Respondent shall pursuant to the provisions of paragraph 27(3) of the First Schedule to the Electoral Act, 2006 conduct fresh elections in the aforesaid 5 polling units within 3 months from the date of this judgment. This judgment shall be certified to the Resident Electoral Commissioner, Kano State or the Independent National Electoral Commission (INEC).”
Being naturally aggrieved Labaran Abdul of the Peoples Democratic Party presented a Notice of Appeal before the Registry of the Appeal Court, Kaduna on 19-12-2008 with thirteen grounds complaining against the whole judgment of the Tribunal. On 10-04-2008 leave of this Court was sought by the 1st Appellant to amend the original Grounds of Appeal. This was granted on the 19th day of May, 2008. The 1st Appellant filed a brief of argument on 20th day of March, 2008 dated 19th day of March, 2008.
On 31-03-2008 the 1st and 2nd Respondents filed a brief of argument but on 30-05-2008 sought leave to amend the brief. The Court granted the amendment on 08-07-2008 and same was deemed filed and served on the other parties.
In the Appellant’s Brief of Argument the following issues for determination were identified:
“(1) Whether it is proper for the Tribunal to suo motu formulate new issues in the course of writing its judgment and basing its decision on the new issues without inviting the parties to address it on the new issues so formulated.
Ground ii of the Notice of Appeal.
(2) Whether it is immaterial that the Appellant did not cause the disruption of the elections and that he might not have consented to the said disruption before his election can be nullified as a result of the said disruption. Ground viii and ix of the Notice of Appeal.
(3) Whether the Tribunal was right when it held that the 5th respondents or the Court could order a fresh election in five polling units where the tribunal held that election was inconclusive. Grounds vii and xii of the Notice of Appeal.
(4) Whether the Tribunal was right in allowing the petition and nullifying the return of the Appellant as the winner of the election in Warawa Constituency of Kano State in the face of the evidence before the Tribunal. Grounds i, iii, iv, v, vi, vii, x, xi, and xiii of the Notice of Appeal.
(5) Whether the election of the 1st Respondent was in substantial compliance with the Electoral Act 2006. Grounds v and xi of the Notice of Appeals.”
The 1st and 2nd Respondents identified the following issues for determination in their Amended Joint Brief of 08-07-2008 to wit:
“(a) Whether the issues formulated by the Tribunal in the course of writing its judgment are new issues and whether the issues formulated occasioned a miscarriage of justice.
(b) Whether the Tribunal can nullify the Election or return of the Appellant where it has been proved that the non holding (sic) Election or inconclusiveness of election in some polling units substantially affected the result of the Election.
(c) Whether the Election of the 1st Respondent cannot be nullified if it is proved that there was substantial noncompliance that affected the election even if the noncompliance was not attributed to him.
(d) Whether the Tribunal was right in allowing the petition and nullifying the return of the Appellant as the winner of the Election in Warawa Constituency of Kano State in the light of evidence before the Tribunal.”
On 27-04-2009 M.K Dabo Esq of Counsel to 1st and 2nd Respondents filed a list of additional authorities which I have incorporated among the authorities cited by learned Counsel.
The 17th Respondent, namely the Peoples Democratic Party filed an application dated 23rd day of March, 2010 seeking leave to file brief of argument out of time. The application was granted on 25th day of March, 2010. The 17th Respondent’s learned Counsel adopted verbatim the issues formulated or raised by the appellant’s learned Counsel in the brief of argument as adequately covering the grounds of appeal.
On 27th day of October when the appeal came up for hearing Counsel adopted their respective briefs of argument. while the learned counsel to the appellant and Counsel to the 17th Respondent prayed that the appeal be allowed and the petition dismissed, the 1st and 2nd Respondents’ learned Counsel urged for the dismissal of this appeal and an affirmation of the orders made by the Tribunal.
SUBMISSIONS: APPELLANT:
ISSUE ONE:
On issue one learned counsel to the appellant submitted that though the Tribunal had formulated three issues for determination at the hearing of the petition in the course of judgment, the Tribunal relied on additional issues suo motu raised without giving counsel the opportunity to be heard’. That this occasioned a miscarriage or justice, citing Oyekanmi vs NEPA (2001) FWLR (Pt.34) 404 at 425; Tinubu vs. I.M.B. Securities Plc (2001) FWLR (Pt.77) 1003 at 1024, and Odessa vs FRN (2005) All FWLR (Pt.282) 2010 at 203. Counsel argued that this is a violation of the principles of fair hearing under the constitution of the Federal Republic of Nigeria 1999. Counsel urged this Court to hold that there was a failure to observe the rules of fair hearing. The entire judgment of the Tribunal should be declared a nullity.
ISSUE TWO:
On issue two Appellant’s Counsel drew this Court’s attention to various passages in the judgment of the Tribunal showing that the election was declared not free and fair on the grounds of thugery, intimidation and violence which led to the disruption of voting in 5 (five) polling units out of 111 (one hundred and eleven) that make up Warawa constituency.
That these allegations are criminal offences that require proof beyond reasonable doubt before it can be said they affected the result of the election counsel cited, Obum vs Ebu (2006) All FWLR (Pt.327) 419 at 451 and Falae vs Obasanjo No.2 (1999) 4 NWLR (Pt.599) 476 at 488. That no evidence was adduced before the Tribunal linking these criminal offences to the appellant. Counsel drew this Court’s attention found at page 763 of the printed record, namely, establish these allegations was unsatisfactory as responsible for the disruption of voting on the day of election whether it was the thugs/supporters of the Peoples Democratic Party (PDP) or the All Nigerian Peoples Party (ANPP). But the Tribunal held that it did not matter whose supporters/agents caused the disruption in reaching the decision ‘ whether or not election was inconclusive in those polling units.
It was argued that the Tribunal was wrong to have arrived at such a decision, relying on the decision in Ekechi vs Okah (1993) 1 NWLR (Pt.267) 34 at 39. The Chairman and members of the Tribunal thus arrived at a wrong decision, since that case had no application to the facts of the petition before the Tribunal.
According to learned Counsel, Ekechi vs Okali supra was decided on the provisions of Decree No.18 of 1992 differently couched from the Electoral Act of 2006 which did not intend that an election should be nullified for the slightest reason. That by the combined effect of Section 138(1) of the Evidence Act 1990 and the case of Azike vs Ararume (2005) All FWLR (Pt.263) 740 at 754, allegations of thuggery, intimidation, and violence, etc must be proved beyond reasonable doubt, citing Yusuf vs Obasanjo (2006) All FWI-R (Pt.294) 294 at 387 and 460; Nwole vs Iwuagwu (2006) All FWLR (Pt.316) 325 at 325 and 343-344 and Buhari vs Obasanjo (2005) All FWLR (Pt.273) 1 at 158.
Counsel further argued that having found the state of evidence unsatisfactory, the Tribunal should have come to the decision that these criminal allegations had not been proved beyond reasonable doubt, citing Kingibe vs Maina (2004) FWLR (Pt.19l) 1555 at 1588. That issue two should be resolved in the appellant’s favour by this Court.
ISSUE THREE:
Learned Counsel’s argument on issue three is that in the circumstances where election had commenced in the 5 (five) polling units but was disrupted by unknown persons as held by the Tribunal, the 5th Respondent, namely, the Electoral Commissioner of Kano State is not empowered under the Electoral Act 2006 to order fresh election. The Tribunal erred to have relied on the case of Oputeh vs Ishida (1993) 3 NWLR (Pt.279) 24 since the case was not founded on the provisions of Section 27(1) of the Electoral Act 2006 but Decree No. 18 of 1992.
Counsel referred to Section 23(1) of schedule 3 to Decree No. 18 of 1992 not impari materia with the provisions of Section 27(1)-(5) of the Electoral Act 2006. That the 5th Respondent could only have postponed the election where a date had been appointed for holding an election but there was reason to believe that a serious breach of the peace was likely to occur if the election was proceeded with on that date, or, it was impossible to conduct the elections as a result of natural disasters or other emergencies. Only on the happening of any of such an event would the Commission appoint another date for the holding of the postponed election in respect of the polling unit(s) involved.
Learned Counsel to the Appellant’s argument is that the Tribunal should not have relied also on INEC vs Ray (2005) All FWLR (Pt.265) 1047 at 1016 – 1077 and Adisa vs Oyinde (2000) FWLR (Pt.8) 1349 to arrive at her decision. This Court was urged to hold that under the given circumstances, the 5th Respondent lacked the power to hold a fresh election in Warawa Constituency of Warawa Local Government Area in Kano State.
Counsel then submitted that the wordings of Section 27 of the Electoral Act 2006 are very clear and should be given their literal meaning and interpretation. Reference was made to the cases of Awuse vs Odili (2005) All FWLR (Pt.261) 248; Magaji vs Balat (2004) All FWLR (Pt.216) a62; Yusuf vs Obasanjo (2003) FWLR (Pt.185) 506; Mobil Oil (Nig) Ltd vs Federal Board of Inland Revenue (1977) 3 SC 53 at 74; Sidi-Ali vs PDP (2004) FWLR (Pt.189) 1159 at 1177-1178.
The Court was urged to hold that the election of the Appellant was in substantial compliance with the Electoral Act 2006. That the Appellant scored the highest number of votes from the 106 polling units out of 111 in the Warawa Constituency of Kano State, citing Obun vs Ebu (2006) All FW[,R (Pt.327) 419 at 447 and section 147(1) of the Electoral Act 2006.
In the given circumstances the Tribunal was wrong to have nullified the return of the 1st Appellant and order fresh election in the 5 (five) polling units in question.
ISSUE FOUR:
The learned Counsel’s argument on issue four involves what is alleged to have occurred on the day of voting in respect of the following polling units:
TAMBURAWA GABAS WARD:
Counsel drew this Court’s attention to the fact that seven (7) witnesses testified for the petitioner, and seven (7) for the 1st Respondent. The 3rd to l6th Respondents called only one witness in support of their respective defences. The Tribunal failed to consider the evidence adduced in respect of Tamburawa Gabas Ward. Rather the Tribunal suo motu formulated and identified issues leading to the decision that there was manipulation of the election in respect of the collation of the result in respect of this Ward without proven evidence. Reference was made to the evidence of Ismail Jibril Yandadi (RW6) who testified for 1st Respondent yet the Tribunal did not consider same. That if the Tribunal had considered the evidence of RW6, the Chairman and members would not have found that the Appellant was responsible for the manipulation of voting at that Ward.
Learned Counsel’s further argument was that allegation of manipulation at Tamburawa Gabas Ward should have been dismissed by the ‘Tribunal. Reference was made to the case of Anzuka vs Governor, Nasarawa State (2006) All FWLR (Pt.303) 308 at 351. Counsel urged this Court to hold that the failure of the Tribunal to consider the evidence of RW6 led to a miscarriage of justice and this appeal should be allowed.
JIGAWA 002 POLLING UNIT, AMARAWA WARD:
The Appellant’s learned Counsel drew this Court’s attention to pages 786 to 787 of the printed record to show that Yusuf Abdul (RW5) was not an agent of the ANPP (2nd Respondent) but of the 1st to the 16th Respondents at Jigawa 002 polling unit, Amarawa Ward. That the finding of the Tribunal regarding his evidence was at variance with the pleading. Reference was made to the witnesses’ statement on Oath at pages 88 to 89 of the printed record and paragraphs 3, 4 and 6 of his sworn statement to show that his testimony was in respect of Jigawa 002.
Counsel argued that the Tribunal did not consider RW5’s evidence in respect of Jigawa 002 of Amarawa Ward, hence the erroneous finding affected the Tribunal’s decision, which occasioned a miscarriage of justice, citing Anzuka vs Governor, Nasarawa State, supra.
SPECIFIC RESPONSE TO PARAGRAPH 8(E) OF THE AMENDED PETITION:
The Appellant’s learned Counsel referred to pages 797 to 798 of the printed record wherein the Tribunal held that the Appellant did not respond to paragraph 8(e) of the Petition. Counsel referred to paragraph 5(e) of the 1st Respondent’s Reply to the petition to submit that it was far from the truth. That paragraph 5(e) of the Amended Reply of the 1st Respondent pleading responded to paragraph 8(e) of the Petition wherein the Appellant denied that averment. That if the elections were held in the 5 (five) polling – units in dispute and the results in the Tamburawa Gabas Ward were properly collated the result would have substantially affected the out come of the election. But the Tribunal did not take into consideration the pleaded facts and evidence of the Appellant in respect of the averments in paragraph 5(e) of the Amended Reply. Counsel referred to the contradictory testimony of Pw3 during his cross-examination by Counsel to the 2nd to 15th Respondents. All these errors it was submitted led to a miscarriage of justice.
Counsel further argued that the evidence led before the Tribunal was relevant and credible. It was for the Tribunal to evaluate that evidence, which it did not, the failure of which, this Court should embark on evaluation in the interest of justice. Anzuka vs Governor, Nasarawa State supra was again cited in support of this argument.
Learned Counsel urged this Court to hold that the Tribunal again failed to appraise or evaluate the evidence of the 1st Respondent’s witnesses in Tamburawa Gabas Ward and Jigawa polling units. The Court was urged to evaluate or appraise the evidence of the witnesses to arrive al a lair and just decision in favour of the Appellant.
SPECULATION:
Learned Counsel argued that the Tribunal failed to consider the evidence on record to the effect it was the petitioner’s thugs that disrupted the voting when they noticed that the result would not be favourable to them because the 1st Appellant was more popular and likely to emerge the winner if the result of the five (5) polling units were cancelled by the Independent National Electoral Commission. That the Tribunal failed to consider all the pleadings and evidence before arriving at the conclusion that the majority votes by which the Appellant led at the polls will be upset by the number of registered voters. The failure of the Tribunal to evaluate the evidence thus led to a miscarriage of justice.
Learned Counsel to the Appellant next argued that there was no evidence before the Tribunal that election held in the five (5) polling units were not conclusive, nor that the registered voters in the five (5) polling units would have voted for the Petitioner. The findings of the Tribunal that the number of registered voters was likely to upset the majority by which the Appellant led on voting day was speculative, no1 supported by evidence, citing Ibrahim vs Aliyu (2000) FWLR (Pt.7) 1081 at 1097. That there was no evidence that electorate in these five (5) polling units were disenfranchised, as none of them gave evidence that he or she was not allowed to vote on that date. Neither was there evidence that all the registered voters in the five (5) polling units in question would have voted for the Petitioner. Rather, the pleading and evidence showed that the Appellant was more popular in these five (5) polling units.
Counsel relied on Fannami vs Bukar (2004) All FWLR (Pt.189) 1210 at 1267 as authority that disenfranchisement of voters requires to be proved beyond reasonable doubt. Thus the decisions in Oputeh vs Oshida (1993) 3 NWLR (Pt.279) 35 at 52 and Biyu vs Ibrahim (2006) 8 NWLR (Pt.981) 1 at 50-51 the Tribunal relied upon to hold that the majority votes by which the Appellant led was likely to be upset by the registered voters in the register was not the correct law, citing Buhari & Anor vs Obasanjo & ors (2005) 2 NWLR (Pt.910) 241 at 417-418.
Counsel argued that the Supreme Court judgments above cited appear to have overruled Oputeh vs Oshida, and Biyu vs Ibrahim supra. Counsel urged the Court to hold that there was no evidence before the Tribunal that the Petitioner would have won the majority of the votes cast in a fresh election in the five (5) polling units in question, but for the irregularities complained of. This Court was called upon to resolve issue four in favour of the appellant.
ISSUE FIVE:
On issue five (5), Counsel submitted that the question for determination is whether voting was free, fair and in substantial compliance with the Electoral Act 2006. That the election was free and fair; there were fifteen wards in Warawa Local Government Area of Kano State with one hundred and eleven polling units having 45, 559 registered voters. There was no complaint concerning the 106 polling units where voting held. But the Tribunal erroneously held that the number of registered voters in the five affected polling units totaled 2,346 voters. If this figure was subtracted from 45, 559 registered Voters it will show that 43,213 voted. Therefore, considering the totality of the Votes cast in Warawa Constituency, the Tribunal should have found that the election was free, fair, and in substantial compliance with the provisions of the Electoral Act, 2006. Voting was not therefore inconclusive in these five polling units. Reference was made to Buhari vs Obasanjo (2005) All FWLR (Pt.273) 1 at 122-123.
The Appellant finally prayed that this appeal should be allowed, and the petition before the Tribunal be dismissed as lacking in merit.
1ST AND 2ND RESPONDENTS ARGUMENTS IN THE AMENDED BRIEF OF ARGUMENT:
ISSUE ONE:
On issue one Learned Counsel to the 1st and 2nd Respondents drew this Court’s attention to the issues formulated by the Tribunal in the judgment; that they were the same as those formulated at the pre-hearing of the petition contained in the report issued by the Tribunal. Counsel argued that there is no striking difference between the issues formulated by the Tribunal and at the pre-hearing session. Those in the final judgment of the Tribunal are not therefore new issues. That the issue of whether there was voting or inconclusiveness of voting in five of the polling units is one among the many reliefs sought by the petitioner at the Tribunal. Counsel referred to the printed record to show how the parties joined issue and led evidence to establish these averments.
It was further submitted that if a party averred that election did not hold or it was inconclusive in a unit, as far as the conduct of the election is concerned, they connote the same thing. Casting of votes alone without more cannot constitute election or conclusiveness. When there is poll or casting of votes, it must be followed by declaration of result. Without the declaration it cannot be said there was election. For election to be held in a unit, there are processes to be followed and concluded. Reference was made to the cases of Alkali vs Shaaho (1993) 3 NWLR (Pt.595) 387 at 397-398 and Sowemimo vs Awobajo (1999) 7 NWLR (Pt.610) 335 at 352. That if the Tribunal added the word or phrase, “or conclusive election” to the issues formulated in the pre-hearing session report, that per se did not change or modify this to a new issue. Counsel therefore submitted that issue number two formulated by the Tribunal at the pre-hearing session was the same as issue number three in the judgment appealed against.
Learned Counsel next argued that the wrong collations of votes at Tamburawa Gabas Ward are mentioned in both issues. Reference was made to the Amended Petition filed before the tribunal, particularly relief two, where the Petitioner sought the exclusion of the one hundred votes from the total votes secured by the Appellant. These were therefore not new issues. Counsel then referred to the third issue identified by the Tribunal as same in issue two and three formulated by the Tribunal. It was argued that the judgment was based on the issues formulated by the Tribunal during the pre-Hearing Session. Parties also led evidence to show whether the election in the five polling units were conclusive or not; whether there was wrong collation of votes in Madarin Mata Ward, and whether the facts established substantially affected the result of election.
This Court’s attention was also drawn to the fact that Appellant’s Counsel relied on these issues in his written address. Issue two was a live issue before the Tribunal. The Appellant also raised the issue in the Reply to the petition attributing the wrong collation of result in Form EC8B(1) of Tamburawa Gabas Ward in favour of the petitioner. Reference was made to paragraph 8(F) of the amended petition at pages 378-379 and paragraph 5(F) of the Appellant’s Amended Reply to the petition.
As to who was responsible for the wrong collation of the result on Form ECSB(1) of the Ward, Counsel submitted that this never featured as an issue in the pre-hearing report of the Tribunal. Issue three formulated by the Tribunal did not therefore occasion a miscarriage of justice. The Tribunal did not also make a new case for the parties. But the Tribunal could not have done justice without the formulation of these issues in her judgment, citing Dosunmu vs Dada (2002) 13 NWLR (Pt.783) 32-33; Yusuf vs Kode (2002) 6 NWLR (Pt.762) 231 at254.
Counsel further argued in the brief that there is nothing wrong for the Tribunal to have formulated issues for determination. Reference was made to Oyekanmi vs NEPA (2001) FWLR (Pt.34) 404 at 425; Odessa vs FRN (2005) All FWLR (Pt.282) 2010 at 2030 and Tinubu vs IMB Securities Plc (2001) FWLR (Pt.77) 1003 at 1024. Learned Counsel urged this Court to hold that there is nothing in the judgment of the Tribunal to render it a nullity.
ISSUE TWO:
Counsel to 1st and 2nd Respondents drew this Court’s attention to the fact that issue was joined before the Tribunal on the five polling units, namely, whether voting was disrupted by violence. The Tribunal heard evidence and came to the conclusion that the elections were disrupted in the five polling units hence no election or voting took place. The election been inconclusive, the next question to be determined was the effect of that on the election in the five polling units and on the return of the Appellant. That was covered by issue three formulated by the Tribunal.
Counsel argued that the failure to hold election in the five polling units per se would not be a ground to avoid an election unless it can be shown by the Petitioner that this substantially affected the result of the election in the whole of Warawa Constituency, citing Oputeh vs Ishida (1993) 3 NWLR (Pt.279) 34 at 52 and Ezike vs Ezeugwu (1992) 4 NWLR (pt.236) 462.That the principles upon which the two cases were determined applied in the circumstances of this petition, citing Biyu vs Ibrahirn (2006) 8 NWLR (Pt.981) 1 at 50.
Learned Counsel relied on the case of Sorunke vs Odebunmi (1960) SCNLR 414, and Oputeh vs Ishida’s case supra as deciding that acts or conducts which might affect the result of an election need not be widespread; they may occur in one or a few places yet their effect would be so significant as to affect the result of the election. Counsel referred to the evidence of Pw1, Pw2, Pw4, Pw5 and the Voter’s Register for the five polling units complained of to show that the total number of registered Voters is 2, 346. Counsel further referred to Exhibit Pl3 which is the Declaration of Result containing the votes cast for the parties. That when these votes are deducted as found by the Tribunal the difference between the scores of the Appellant and 1st Respondent is 147 votes. If election had taken place in the five polling units the difference could have affected the over all result of the election. The Tribunal therefore acted correctly to invalidate the election.
It was further submitted by Counsel to the 1st and 2nd Respondents that the Tribunal had powers to nullify the election under Section 147 of the Electoral Act 2006 where non-compliance was established. The Tribunal did not decide the petition on the provisions of Section 23(1) of Schedule 3 of Decree No. 18 of 1992 as erroneously argued by learned Counsel to the Appellant in his brief of argument. Even if the Tribunal did, that was a passing remark that had no effect on the out come of the judgment. There was no miscarriage of justice. Reference was made to the case of Vinesie vs Onvaguluchi (1995) 9 NWLR (Pt.515) at 536 paragraph “D – H”. That Section 27(1) of the Electoral Act2006 is applicable in the circumstances of this appeal. The 5th Respondent in this given circumstances had the power to conduct fresh election since it was impossible to vote in those five polling units. In view of the difference of only 147 votes the Commission should not have made a return until polling had taken place in those units, citing Section 27(3) and (4) of the Electoral Act 2006.
On the order for fresh election made by the Tribunal, 1st and 2nd Respondent’s Counsel submitted that it was a consequential relief flowing directly or naturally from the judgment of the Tribunal, and was prayed for by the Petitioner. Reference was made to the case of Bayo vs Njidda (2004) NWLR (Pt.876) 544 at 588 paragraph “C – F”. Counsel urged this Court to resolve this issue against the Appellant and dismiss this appeal.
ISSUE THREE:
On issue three learned Counsel submitted that since the Tribunal found that voting did not take place in five polling units and the election was inconclusive, because voting was disrupted by violence, thuggery, and intimidation, this amounted to non-compliance with the Electoral Act 2006. That where there was a breach of peace which resulted into non-voting that substantially affected the result of the election. It then becomes immaterial if the disruption, thuggery or violence was not caused by the person returned or that he did not aid or abet same. It does not also matter who was at fault; there must be a fresh election, citing Oputeh vs Ishida and Biyu vs Ibrahirn supra. Counsel argued that the Appellant could not have been declared as duly returned when there was complaint concerning these five polling units. That the principle established in proving corrupt practices at an election is not the same as non-compliance. The law does not require a Petitioner to prove both requirements before he may succeed in getting an election nullified. The Tribunal therefore acted rightly to have relied on the cases of Biyu vs Ibrahim; Sorunke vs Odebunmi; Oputeh vs Ishida, supra, to arrive at her judgment.
This Court’s attention was drawn to Section 145 of the Electoral Act 2006; that it is two fold, namely, the establishment of corrupt practices or non-compliance. Evidence had to be adduced to prove both grounds. Learned Counsel urged that issue three in the appellant’s brief be dismissed, citing Sowemimo vs Awobajo supra at pages 351-352.
ISSUE FOUR:
On issue four, Counsel referred to the state of the evidence before the Tribunal and submitted that the Chairman and members acted rightly in allowing the petition and nullifying the Appellant’s return to Warawa Constituency of Kano State House of Assembly. That the Tribunal considered the evidence of RW6 on allegations in the 1st Respondent’s Reply to the petition respecting Tamburawa Gabas Ward contrary to the submission of the learned Counsel to the Appellant. Besides, the Appellant did not challenge the votes cast at the polling units in Tarnburawa Gabas, namely exhibits P12-P12 (8), P6-P6 (6).
There was also no evidence to show that the results were false or manipulated; they corresponded with the results in Appellant’s complaint concerning manipulation pertaining Tamburawa Gabas Ward. This was also duly reflected in paragraph 5(F) of the Reply. But the Appellant failed to prove the allegation because he relied on Forms EB82 or EC8B(2) that were not used at Warawa Constituency in Kano on 14-02-2007. It was then submitted that where a party is relying on falsification he must plead two sets of results, the authentic and the falsified. But this was not done hence the Tribunal acted rightly to have held that the allegations were not proved.
Learned Counsel referred to the testimony of RW5 Yusuf Abdul to show that his evidence was considered but rejected because of paragraph 4 of his sworn statement. RW5 had deposed that he was an agent at Jigawa polling unit 002 and watched the voting there but in paragraph 5 of the same statement on oath he deposed that there was election at Amarawa Ward; that the voting was peaceful, and voters cast their votes in favour of their candidates. Reference was made to the Electoral Guideline to show that there can be no voting at Ward level but at polling units. What happened at the Ward level was collation of results. Therefore RW5 could not give evidence of what happened at the Ward and polling unit at the same time. The Tribunal was therefore right in her judgment.
It was next submitted that the Tribunal evaluated the evidence before arriving at her judgment. The duty of evaluating and appraising evidence rested on the Tribunal, citing Ogun Dulu vs Philips (1973) 1 NWI.R 267; Okolo vs Uzuka (1978) 4 SC 77; Adeyeye vs Ajiboye (1987) 3 NWLR (Pt.61); Nzekwe vs Nzekwe (1989) 2 NWLR (Pt.104) 373 and Ndem vs Nkpinang (2001) 2 NWLR (Pt.451) 462 paragraph “C-D”.
The finding by the Tribunal that the difference in votes between the Petitioner and the 1st Respondent was 147 votes was not arrived at by speculation, argued 1st and 2nd Respondents’ Counsel, citing Oputeh vs Ishida and Biyu vs Ibrahim supra, the cases of Buhari & Ors vs Chief Obasanjo & Ors (2005) 2 NWLR (Pt.910) 241 regarding substantial compliance were considered in the cases of Biyu vs Ibrahim, and Oputeh vs Ishida supra. There was no difference as regards the holding of the Supreme Court in Biyu vs Ibrahim and Oputeh vs Ishida, supra, as contended in the Appellant’s brief of argument. Counsel sought to distinguish Oputeh vs Ishida and Biyu vs Ibrahim, supra, on grounds that the Court of Appeal brought out a clear example as to when non-compliance occurs, unlike in Buhari vs Obasanjo’s case supra. That no other decision of the Supreme Court or Court of Appeal was cited over ruling the principles of law in Biyu vs Ibrahim; Oputeh vs Ishida; and Ezike vs Ezeugwu, supra. The Court of Appeal cannot depart from these judgments except under the principles adumbrated in Yonwuren vs Modern Signs (1985) 1 NWLR (Pt.2) 244; Barrister Mohammed Umaru Kumalia vs Senator Ali Modu Sheriff & ors, (unreported) judgment of the Court of Appeal No. CA/J/EP/GOV/244/2007 delivered on 2l-01-2008. This Court was bound by the decisions in Biyu vs Ibrahim; Oputeh vs Ishida and Ezike vs Ezeugwu supra which the Tribunal also relied upon to found for the Petitioner.
Counsel’s last argument on issue four was that the admission of the Voters Register in respect of the five polling units showed 2, 346 registered voters did not vote because election was disrupted. If election were held in the five polling units this would have determined the candidate that scored the majority votes cast at the election of 14-04-2007 in Warawa Clonstituency. A free and fair election in Warawa Constituency of Kano State required that the registered voters in all the polling units should participate without restraint or violence in the choice of their candidate who will represent them in the Kano State House of Assembly. Learned Counsel urged this Court to resolve issue four in favour of the 1st and 2nd Respondents and dismiss this appeal.
17TH RESPONDENT’S ARGUMENT:
Learned Counsel to the 17th Respondent argued that as Respondent, her duty was to support the judgment of the Tribunal. But in the present circumstances, considering issues two and three raised in the Appellant’s Brief Counsel was not in a position to do so. Learned Counsel associated with the submissions of Appellant’s Counsel, particularly on issues two and three. The current trend according to the learned Counsel is that when a petition is based on allegations of electoral malpractices it is not enough for the Petitioner to prove that they took place. The Petitioner must show by credible evidence that the person duly elected or his agents operated under specific or general instruction from him causing the electoral malpractices, citing Buhari vs INEC (2008) All FWLR (Pt.437) 42 at 133 paragraphs “A – B” and Olaferni vs Ayo (2009) FWLR (Pt.452) 1111 at 149-150 paragraph “F – C”. The electoral malpractices must have been linked to the person returned. But there was no evidence who were the perpetrators of the violence, thuggery, or disruptions before the Tribunal. It was speculative to argue that if the election was held in the five polling units this should have favoured the 1st Respondent.
Counsel submitted that the Appellant defeated the Petitioner in 106 polling units. He could easily have defeated him in the remaining five polling units. Counsel then posed the question whether it was right for the Tribunal to have nullified the election because of what happened in these five polling units when it had not been shown that the Appellant was directly or in any other manner involved in the disruption that resulted in the none holding of election in five polling units on 14-04-2007. It was on the above premise that the learned Counsel to the 17th Respondent argued he could not support the judgment of the Tribunal.
REASONS FOR JUDGMENT:
ISSUE ONE:
The Court is to determine whether the Tribunal raised suo motu issues not formulated by Counsel before the hearing in order to deliver judgment. Alternatively did the Tribunal depart from the issues formulated by Counsel and agreed upon in order to arrive at its decision with out giving the parties an opportunity to be heard? This question can only be determined by reference to what issues were formulated before the trial. This would be compared and contrasted with the issues formulated by the Tribunal in her judgment.
The Tribunal set down three issues for determination at the hearing of the petition:
“1. Whether or not there was election to the Kano State House of Assembly on the 14th April, 2007 for the Warawa Constituency at the following polling units:
(i) Makera II 007
(ii) Giwaran Alitini 003
(iii) Ganakakun I 001
(iv) Ganakakun II 002
(v) Jigawa 002
2. Whether the cancellation of the result of the election in the above polling units substantially affected the result of the election.
3. Whether there was inflation of 100 votes in favour of the Respondent and deduction of 20 votes from the score of the Petitioners in Tamburawa Gubas Ward. If so has, that affected the return of the 1st Respondent as the winner of the election? ”
There is no dispute regarding these three issues identified by the Tribunal for determination. They arise from the pleadings, documents to be relied upon at the trial, sworn statements of witnesses and the parties etc. We also agree that the issues formulated prior to hearing are amply supported by the facts before the pre-Hearing Session. Hearing commenced and concluded with Counsel submitting written addresses. In the course of judgment the Tribunal reasoned as follows:
“Having carefully considered and reflected on the pleadings of the parties, the relevant statements on oath cum the plethora of’ evidence adduced by each party in support of their respective claim(s) as well as the written submissions of the learned Counsel on all sides and without prejudice to the issues formulated by this Hon. Tribunal in its pre-hearing session report, we hereby identify the following as the real issues for determination in this petition to wit:
1 Whether or not there was election or conclusive election to the Kano State House of Assembly on 14-04-2007, for the Warawa Constituency in the following polling units:
(i) Makera II 007
(ii) Giwaran Alitini 003
(iii) Ganakakun 001
(iv) Ganakakun 002
(v) Jigawa 002
2. Whether there was wrong collation of votes in Tamburawa Gabas Ward resulting in the increase of total votes scored by the 1st Respondent by 100 votes and reduction by 20 votes in the Ward,
3. If the answers to the above two issues are in the affirmative, whether the non-holding or inconclusiveness of the election in (1) above as well as increase in the votes of 1st Respondent by 100 votes and the reduction of the votes of Petitioner by 20 votes in the collated result of Tamburawa Gabas Ward substantially affected the result of the election? ”
Microscopic comparison of the issues served before the pre-hearing session will show that they were based on the questions and answers submitted by the learned Counsel appearing for the parties, the pleadings, documents and sworn statements of the witnesses. The issues raised by the Tribunal after hearing took into consideration the reliefs sought by the petitioner and the Respondents in their pleadings. After the evidence from the parties including documentary exhibits, sworn statements of the witnesses and written addresses of Counsel the Tribunal identified what was called” …the real issues for determination in this petition.”
Learned Counsel has not demonstrated to this Court how the real issues for determination identified by the Tribunal are new and not borne out by the pleadings, sworn and oral evidence of witnesses supported by the Counsel’s written addresses. The word “new” means not existing before; recently made, invented; introduced; different from the previous one; something that has recently happened etc. See Oxford Advanced Learner’s Dictionary 7th edition page 985. I fail to see the new issues introduced suo motu by the Tribunal.
It has been held that:
‘When the parties to an action have answered one another’s pleading in such a manner that they have arrived at some material point or matter affirmed on one side and denied on the other, and the party whose turn it is to plead adds nothing to his previous pleadings, the parties are said to be at “issue”; the last pleading is called a joinder in issue… and the question thus raised is called the issue, or one of the issues, in the action. Frequently issue is joined on one question in the case, and the pleadings continue as to the other questions; where the defendant sets up a counter-claim, issue is generally joined on the original claim before it is joined on the counter-claim.” The next step is the trial.’
See Jowitts Dictionary of English Law, Vol. A-K, 1977 edition, page 1011.
There could be an issue of law or of fact in a petition. Law and facts were considered before the Tribunal arrived at the real issues for determination. If a Tribunal is to make an end of a matter or matters in controversy the real issues for determination must be identified before and after hearing by considering the oral and documentary evidence, supported by written addresses of Counsel.
A Tribunal is not bound to deliver judgment on irrelevant issues not borne out by the oral or documentary evidence. Judgment is to be based on the facts and law supported by the pleaded, proved and contested issues of law and fact. No matter how many grounds of appeal may be filed by an Appellant and a plethora of issues formulated, the judgment of a Court or Tribunal is usually based on the real issues in controversy that if determined one way or the other, the dispute will be put to an end. There is no harm in a Tribunal identifying the real issues in controversy after evidence has been heard from the parties coupled with addresses of counsel, if any.
The Appellant’s learned Counsel has relied on the case of Odessa vs FRN (2005) All NLR (Pt.282) 2010 in support of his argument that having raised issues suo motu the Tribunal should have allowed learned Counsel to address on them before judgment.
In Odessa vs FRN supra, preliminary objection was raised to the trial of the 1st accused Chief Joshua Chibi Dariye, former Executive Governor of Plateau State arraigned before the Federal High Court Kaduna on two Counts under Section 16 of the Money Laundering Decree No.3 of 1995 punishable under Section 15(2) as amended by Decree No.62 of 1999 and under Section 5(1)(f) of Decree No.3 of 1995 punishable under Section 15(2)(b) of Decree No.62 of 1999. Chief Joshua Chibi Dariye pleaded immunity from prosecution under Section 308(1) of the Constitution of the Federal Republic of Nigeria 1999. Argument was taken on the preliminary objection alone. However, in the course of writing the ruling the learned trial Judge made pronouncements upon the validity of the charges pending against the other co-accuseds. The ratio of the judgment of the Court of Appeal appears at page 2030 paragraphs “B-E” where Muhammed JCA held in the lead judgment that:
“What was before the trial Court was the validity of the charge as it relates to the 1st accused now 2nd Respondent alone. It was on that issue alone that the trial Court gave the parties including the appellant in this appeal, e hearing on 13-12-2004 when the preliminary objection was heard. It follows therefore that on 13-12-2004 when the 1st accused now 2nd respondent’s preliminary objection was heard, the issue of the question relating to the validity of counts 1 and 2 in charge No.1436 as affecting the appellant was not before the court for adjudication and determination to give the court the opportunity to proceed, with the trial of the appellant immediately the name of the 2nd respondent was struck out from the charge. The trial Court therefore having raised the issue of the validity of the charge against the appellant who did not raise it himself and nor was it raised by the other parties, and without giving the appellant a hearing before the determination that the charge was valid in relation to him to allow the court to proceed with the trial of the appellant, constitutes a violation of the principles of natural justice enshrined in Section 36 of the 1999 Constitution which gives the appellant the right of fair hearing. See Offiom vs State (1995) 1 NWLR (Pt 373) 507 at 582 and Osasona vs Ajayi (2004) All FWLR (Pt 216) 443, (2004) 4 NWLR @ (Pt 894) 527 at 547. ”
The case of Odessa vs FRN supra and Oyekanmi vs NEPA (2001) FWLR (Pt.34) 404 do not support the appellant’s contention in issue one.
But in Luigi Ambrosini Ltd vs Bakare Tinko & Anor (1929) 9 NLR 8 Petrides J., discovered a point in which he himself regarded as fatal to the plaintiffs case in the course of writing judgment. But that fatal issue or point had not been discovered or argued during the course of the proceedings nor raised by any of the parties. Had the plaintiff being given an opportunity he might have called rebuttal evidence. The learned Judge dismissed the plaintiff’s case on that point of law he suo motu discovered. The matter went to the Supreme Court on appeal. The Court allowed an amendment to enable the defendant incorporate that fatal point of law in their defence. Thereafter the appeal of the plaintiff was again dismissed by the Supreme Court. The Plaintiff proceeded to the Privy Council. The judgment of the Council was read by Lord Darling. In allowing the appeal of the plaintiff His Lordship reasoned at P.12 of the judgment as follows:
“In their Lordships’ view Petrides J., in the course of his consideration of his judgment, discovered a point until then unargued and unsuspected. It was in the course of his judgment sprung upon the plaintiffs, who had no chance of dealing with it, nor, from that moment, with the merits of the case. He gave judgment for the defendants, the present respondents. The plaintiffs, the present appellants, there upon appealed as shown, from that judgment; and the Supreme Court in the Course of the hearing of that appeal amended the record in favour of the defendants the sureties. No opportunity was thereafter given to the plaintiffs of dealing with the matters involved on the new basis which that amendment established: yet, certainly, this should have been afforded them.
In the opinion of their Lordships the judgment of Petrides, J., in favour of the second and third defendants and the order of the Supreme Court of Nigeria should be discharged, and a new trial ordered… ”
Where in the course of writing judgment, a judge discovers a very important or relevant point that will tilt the scale in favour of any of the parties, but the issue was not argued or raised during the course of trial, Counsel or the parties should be recalled and given an opportunity to be heard before a decision is taken by the trial Judge. The Court should not determine the issue suo motu without affording the parties or their Counsel a hearing since that will constitute a breach of one of the principles of fair hearing under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999. The law is so settled that I need not cite many authorities on the issue. In Ukaegbu & Ors vs Ugoji & Ors (1991) 6 NWLR (Pt.196) 127 at 159 it was held that the issues settled by Counsel before trial must correspond with the pleadings. Any material or substantial departure from the pleadings of the parties by the judge will result in the undesirable and unacceptable situation of the Court making a case for the parties. The judgment will be declared null and void on appeal.
I am not however persuaded by the Appellant’s learned Counsel that the Tribunal suo motu formulated new issues upon which the judgment was anchored. This head of complaint fails and is dismissed.
ISSUE TWO, THREE AND FOUR:
These three issues overlap. I shall consider them together. The Tribunal made findings after examining the pleadings, oral and documentary evidence that intimidation, thuggery, violence, destruction of ballot boxes and papers caused the disruption of voting in these five polling units. However the Tribunal was unable to come to a definite conclusion as to who perpetrated the electoral malpractices. Paragraph (7) and (8) of the petition filed in the Registry of the Tribunal on 12-05-2007 reads as follows:
“(7) The Petitioners state that the 1st Respondent was not validly elected or returned as member representing the Warawa Constituency in the Kano State House of Assembly.
(B) GROUND FOR THE PETITION:
The election of the 1st Respondent was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act 2006… ”
The Electoral Act 2006 was assented to on 6th day of June, 2006, by Chief Olusegun Obasanjo, GCFR, President and Commander in Chief of the Federal Republic of Nigeria. The Act became the law governing elections in Nigeria to be conducted by the Independent National Electoral Commission (INEC) in respect of offices set out there under, one of which is election into Houses of Assemblies in all States of the Federation and Abuja Capital Territory. See Section26 part 4 of the Electoral Act, 2006.
Section 124 to 139, part VIII of the 2006 Act supra creates electoral offences of various kinds or degrees. For instance Section 131(5) and (6) of the Act, supra, reads as follows:
“(5) Any person who conspires, aids or abets with any other person to commit any offence under this part of this Act shall be guilt of the same offence and punishable thereto.
(6) For the purposes of this Act, a candidate shall be deemed to have committed an offence if it was committed with his knowledge and consent or the knowledge and consent of a person who is acting under the general or special authority of the candidate with reference to the election. ”
No evidence was adduced before the Tribunal that those who committed the acts of violence, thuggery, destruction of electoral material(s), intimidation etc did so with the consent of any of the candidates, or that they acted under their general or special authority. The Tribunal could not also link the Petitioners, the Appellant, or any official or agents of the Independent National Electoral Commission with any of the electoral offences committed on 14-04-2007 which led to the non-holding of election in the five polling units under consideration. If there was such evidence each candidate or official would have been guilty of an electoral offence under Section 138(a)-(d) and 139 of the Electoral Act 2006. The Sections reads as follows:
“138. A person who:
(a) directly or indirectly, by himself or by another person on his behalf, makes use of or threatens to make use of any force, violence or restraint,
(b) inflicts or threatens to inflict by himself or by any other person, any minor or serious injury, damage, harm or loss on or against another person in order to induce or compel that person to vote or refrain from voting, or on account of such person having voted or refrained from voting, or
(c) by abduction, duress, or a fraudulent device or contrivance, impedes or prevents the free use of the vote by a voter or thereby compels, induces, or prevails on a voter to give or refrain from giving his vote,
(d) by preventing any political aspirants from free use of the media, designated vehicles, mobilization of political support and campaign at an election, commits the offences of undue influence is liable on conviction to a fine of N100,000 or imprisonment for 3 years.
139. The offences referred to in this Act shall apply to recall of a member of a legislative house and ct member of Local Government Council. ”
The effect of convicting a person returned as duly elected as a member of any legislative house, be it at the National, State or Local Government Council for any electoral offence is very grave. This is a ground for recalling such a member from representing his constituency in any legislative house in this country.
The aim of the law giver is to dissuade candidates, their agents or supporters from perpetrating electoral offences of any kind at elections. Therefore whoever desires any Court or Tribunal to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, namely, that any electoral offence was committed during an election, must prove that those facts existed. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. See Section 135(1), (2) and 136 of the Evidence Act 1990. Since the alleged electoral offences or malpractices upon which the petitioners sought the nullification of the election of the Appellant hinged on the commission of crimes, Section 138(1) and (2) of the Evidence Act is directly in issu The Section provides as follows:
“138(1) If the Commission of a Crime by a party to any proceeding is directly in issue in any proceeding Civil or Criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provisions of Section 141 of this Act, on the person who asserts it, whether the Commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the Commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the accused. ”
The petitioner sought to have the election and declaration of Hon. Labaran Abdul of the Peoples Democratic Party as a member of the House of Assembly Kano State representing Warawa Constituency nullified on grounds that he or his supporters, thugs, or agents had committed electoral offences in five polling units. The onus of proving beyond reasonable doubt the Commission of these electoral offences was on the petitioner and not the appellant. Had the petitioner proved his allegations beyond reasonable doubt, the burden would have shifted to the appellant to prove otherwise. The law is that he who asserts or takes one to a Court or Tribunal has to prove his allegations upon which relief is sought. The tribunal should have invoked the provisions of Section 142 of the Evidence Act 1990 in the appellant’s favour. The section provides as follows:
“142. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”
This would have been in consonance with the provisions of Section 33(5) of the Constitution of the Federal Republic of Nigeria 1999 which reads:
“(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty: Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts. ”
There is no provision in the Electoral Act 2006 that shifts the burden of proving electoral crimes or malpractices on the person elected and duly returned by the Independent National Electoral Commission into any office created by the Act supra. If there is, no such provision was cited by Counsel appearing before us in this appeal. In the face of the Tribunal’s findings that it was not possible to attribute the non-holding of elections in the five polling units to thuggery or violence, etc, committed by any of the parties, their agents or supporters, that doubt should have been resolved in favour of the Appellant. See Ikhane vs C.O.P (1977) 6 SC 119; Nasamu vs The State (1979) 6-9 153 at 153.
In Cyril Areh vs COP (1959) WRNLR 230. Kester. Ag. J. held at page 231 that:
“…the burden of proof lies upon the party who substantially asserts the affirmative of the issue and generally in criminal cases (unless otherwise directed by statute) the presumption of innocence casts on the prosecution the burden of proving every ingredient of the offence.”
For the legal effect of a Court or Tribunal having doubts about the party or person that committed a crime in any given circumstance, I refer to Udosen vs The State (2007) 4 NWLR (Pt.1023) 125 per Ogbuagu JSC at P.161 paragraph “C – F” to wit:
“…A doubt in the mind of a Court, it is settled, presupposes that the case against the accused person has not been proved beyond reasonable doubt. By this doubt, I hereby and accordingly resolve the same in favour of the appellant. See Namsoh vs The State (supra). It must always be borne in mind and this is settled, that the burden of proving that any person is guilty of a crime, rests on the prosecution. The cardinal principle of law is that the Commission of a crime by a party must be proved beyond reasonable doubt. This is the law laid down in Section 138(1) of the Evidence Act. The burden never shifts. Therefore, if on the whole of the evidence, the Court is left in a state of doubt (as I am in this instant case leading to this appeal), the prosecution would have failed to discharge the onus of proof which the law lays it and the prisoner/accused person, is entitled to an acquittal. See the cases of Alonge vs Inspector-General of Police (1959) 4 FSC 203, (1959) SCNLR 516; Fatoyinbo vs Attorney-General, Western Nigeria (1966) WNLR 4, and The State vs Musa Daniuma (1997) 5 SCIVJ 126 at 136-137, 156; (1997) 5 NWLR (Pt.506) 512.”
In Honorable Cletus Mbia Obun vs Alex Abang Ebu & 31 Ors (2006) All FWLR (Pt.327) 419 the Court of Appeal also held at page 450 paragraphs “G – H” and page 451 paragraphs “A – C” per Omokri JCA (of Blessed Memory) that:
“Despite the fact that the appellant called a total of 22 witnesses, himself inclusive, he did not link the 1st Respondent with the corrupt practices or other electoral malpractices alleged. It is ct mandatory requirement of the law the appellant should establish a linkage between the 1st Respondent and the acts complained of. There is no evidence that the 1st Respondent was responsible for or connected with the diversion of materials, hijacking, seizure or thuggery in Alankwu and Buentsebe Wards at the 29-11-2003 bye election. So even if the Appellant was able lo prove the election malpractices, since the acts have not been linked to the 1st respondent, it would have been an exercise in futility. In Ebese vs Ezenduka (1988) 7 MLR (Pt.536) 74 at 76, this Court held that:
“Criminal acts of thuggery and disturbance cannot affect the outcome of an election unless it can be shown by evidence that the person involved in such acts was an agent of one of the candidates in the election.”
Also in Falae vs. Obasanjo No.2 (1999) 4 NWLR (Pt.599) 476 at 488, the Court held that:
“The law is that even if a political party engaged in criminal activities which would disqualify, a candidate, it cannot affect the candidate unless it is shown that the candidate authorized or ratified the offending conduct.”
The current law and the trend by the Supreme Court is demonstrated in cases such as Buhari vs Obasanjo (2005) All FWLR (Pt.273) where the Supreme Court, per Ejiwunmi JSC, came to the conclusion at p.258 that:
“…irregularities at an election which are neither the act of a candidate nor linked to him cannot affect his election. Therefore, en elected candidate cannot have his election nullified on the ground of corrupt practice or any other irregularity committed on the process of the election unless it can be proved that the candidate expressly authorized the illegality. ”
See also Azike vs Ararume (2005) All 11 WLR (Pt.263) 740 at 754; Yusuf vs Obasanjo (2006) All FWLR (Pt.294) 387 at 460 and Maina vs Kingibe (2004) FWLR (Pt.191) 1555.
Nothing stops or prevents a candidate, his agents, thugs and supporters from disrupting elections where it becomes evident he was loosing. They may do so in order to plead thuggery, violence, or electoral malpractices at the Tribunal so as to call for bye or a fresh election thereby taking advantage of their criminal misconducts. No candidate, a political party, an agent or their supporters should be allowed to benefit from their wrong doings at an election. See The Capella (1861-73) All E.R Reprint 433; Brosette Manufacturing Nig. Ltd vs M/S Ola 16 Mobola Ltd (2007) All FWLR (Pt.379) 1340 and Solanke vs Abed (1962) 1 All NLR 220.
Where Voters do not want to be disenfranchised they have a civic duty under Section 24(a) – (f) of the Constitution of the Federal Republic of Nigeria 1999 to prevent or attempt to prevent electoral malpractices. Candidates seeking to represent constituencies in any of the legislative houses should be able to exercise some measure of control or restraint over their party supporters, thugs or agents who may want to take the law into their hands and disrupt elections when it becomes obvious that their favorite candidate is loosing the election. They could help or render assistance to law enforcement agents to eliminate electoral malpractices before, during, or after elections.
The Tribunals are authorized to determine the outcome of petitions under the Electoral Act 2006 as follows:
“146(1) An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that non-compliance did not affect substantially the result of the election:
(2) An election shall not be liable to be questioned by reason of a defect in the title or want of title of the person conducting the election or acting in the office provided such a person has the right or authority of the commission to conduct the election
147(1) Subject to subsection (2) of this Section, if the Tribunal or the Court as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the Tribunal or the Court shall nullify the election.
(2) If the Tribunal or the Court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Election Tribunal or the Court, as the case may be, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the Constitution and this Act.
(3) Subject to the provision of subsection (2) of section 149 of this Act, on the motion of a respondent in an election petition, the Election Tribunal or the Court, as the case may be, may strike out an election petition on the ground that it is not in accordance with the provisions of this part of this Act, or the provisions of First Schedule of this Act. ”
The power to nullify an election under Section 147(1) is controlled by the provisions of Section 147(2) of the Electoral Act 2006 because of the phrase “subject to…” in Section 147(1) of the Act supra. See Idehen vs Idehen (1991) 6 NWLR (Pt.198) 382. In Tukur vs Government of Gongola State (1989) 4 NWLR (Pt.117) 517 Nnaemeka Agu, JSC, stated at page 580 that: “…Whether the expression (subject to) is used at the commencement of a statute, it is an expression of limitation. It implies that what the section or subsection is “subject to” shall govern, control and prevail over what follows in that section or subsection of the enactment.”
In Aqua Ltd vs Ondo Sports Council (1988) 10-11 SCNJ 26 Karibi-Whyte JSC also held at page 51 of the judgment that:
‘The expression “subject to” subordinates the provisions of the subject section to the section referred to which is intended not to be affected by the provisions of the latter. See LSDPC vs Foreign Finance Corporation (1987) 1 NWLR (Pt 50) 413 at 461; Clark vs IRC (1973) 2 All E.R 513.’
Every Electoral Act or Decree takes into consideration how elections will be conducted so as to gain the confidence of the international community. In Holme vs Guy (1877) 5 Ch.D 901 at 905 Sir George Jessel M.R said that:
“The Court is not to be oblivious of the history of law and legislation. Although the Court is not at liberty to construe an Act of Parliament by the motives which influenced the Legislature, yet when the history of law and legislation tells the Court, and prior judgments tell this present Court, what the object of the legislature was, the Court is lo see whether the terms of the section are such as fairly to carry out that object and no other, and to read the section with a view to finding out what it means, and not with a view to extending it to something that was not intended. ”
Therefore previous judgments of the Courts not anchored on the Electoral Act 2006 may guide the interpretation of the Act supra. But their spirits should not rule or control the provisions of the 2006 Act from their graves.
In R. vs Chandra Dharma (1904-7) All E.R Rep. 570 at 571 it was held that statutes which make alteration in procedure are retrospective but if a new right is given, or a new disability imposed, then, of course, the statute would not be retrospective.
The relevant law applicable to this petition is that in force when the action was instituted. See Uwaifo vs Attorney-General of Bendel State ( 1989) 7 SC 124; Attorney-General of Lagos State vs Dosunmu ( 1 989) 3 NWLR (Pt.111) 555 and Utih vs Onoyivese (1991) 1 SCNJ 25 at 45. Laws take effect from the date of their enactment or commencement. See Onuoha vs COP (1959) 4 FSC 23; Obiriukwu vs Ohanyerewa (1959) 4 FSC 212 and Ojokolobo vs Alamu (1987) 7 SCNJ 98 at 145.
In the case of Nwobodo vs Onoh (1984) All NLR 1 Counsel cited many authorities on the issue of security for costs as determined by previous judgments or decisions of various Courts. Bello JSC (as he then was) held at page 11 of the judgment as follows:
“I have perused all the cases relied on by the majority of the Justices of the Court of Appeal relating to their decision on security. I find the statutes or subsidiary legislations that governed those cases were not in pari materia with Section 127 of the Act or the facts and the circumstances of some of those cases were not the same as of the case on hand. I may deal briefly with those cases… It appears to me that the provisions of section 127(1) of the Act are unique and the previous decisions relied on cannot assist in its construction… ”
After an exhaustive examination of the judgments cited his Lordship made an authoritative pronouncement which I intend should guide me in the determination of the matters in controversy. The pronouncement is at p.13:
“…In the application of the provisions of a statute to a particular case, a Court should not blindly adhere to the ratio decidendi of a previous case founded on the interpretation of a former statute without having first carefully examined that statute and meticulously compared it with the statute governing the case for determination by the Court in order to ascertain whether the two statutes are in pari materia. It is only when the two statutes are similar and identical that the interpretation placed on one can be a precedent to the interpretation of the other. ”
I shall now examine some of the authorities heavily relied upon by the Tribunal and learned Counsel to the 1st and 2nd Respondents in urging the dismissal of this appeal.
Oputeh vs Ishida, supra, was delivered on 9th November, 1992 under the National Assembly (Basic Constitutional and Transitional Provisions) Decree No. 18 of 1992. Sections 42(3) and 44(2) specifically provided for the holding of a bye-election in case the Tribunal nullified an election for non-compliance with the relevant provisions of Decree No. 18 of 1992. It can be clearly seen that the facts in Oputeh vs Ishida supra, are not on all fours with this appeal. Nevertheless, Uwaifo JCA (as he then was) who read the lead judgment held that it is not in every circumstance that an election should be nullified. There may arises circumstances when doing so may be unjust to the person elected. Hear his Lordship at page: “…It depends on the circumstances whether failure to hold a poll in any polling station or stations of a particular constituency would substantially affect the result of the election in that constituency. If it would not, then, although it is improper to disenfranchise certain voters by failure to hold such a poll, the election will not for that reason alone be avoided. But if it would or is likely to substantially affect the election, any result declared without such a poll cannot be regarded as a win by the successful party based on a majority of lawful votes. The election would, for instance, be substantially affected if the majority by which the respondent led in the result declared is likely to be upset by the number of registered voters in the area where no voting has taken place. See Ezike vs Ezeaugwu (1992) 4 NWLR (Pt.236) 462. Under Section 41(1)(c) of Decree No. 18 of 1992, such an election may be questioned on the ground that the Respondent was not duly elected by a majority of lawful votes. ”
As to whether substantial compliance is equivalent to absolute compliance, His Lordship held at page 53 paragraph “A-B” as follows:
“…It has been held that a return to an election will not be avoided if it appears to any Court hearing the petition which challenges the return that there was substantial compliance with the law governing election, as substantial compliance does not mean absolute compliance: See Ibrahim vs Shagari (1983) 2 SCNLR 176 at 183. I therefore answer issue (1) as follows: If a poll is not held in any particular polling station or stations and this will substantially affect the result of the election, it does not matter that the successful candidate was not at fault. A bye-election must be ordered under Section 42(3) or 44(2) of Decree No. 18 of 1992. ”
That was the law before the enactment of the Electoral Act 2006. From 6th day of June when the Act was assented to by the President and Commander in Chief of the Armed Forces of Nigeria, the law became altered or modified. The Tribunal is directed as to what orders or directives she can make to the Resident Electoral Commissioner or the Commission:
“27(1) After the conclusion of the hearing, the Tribunal shall determine whether a person whose election or return is complained of or any other person, and what person, was validly returned or elected, or whether the election was void, and shall certify the determination to the Resident Electoral Commissioner or the Commission.”
(2) If the Tribunal or Court has determined that the election is invalid, subject to Section 147 of this Act, where there is an appeal and the appeal fails, a new election shall be held by the Commission.
(3) Where a new election is to be held under the provisions of this paragraph, the Commission shall appoint a date for the election which shall not be later than 3 months from the date of the determination. ”
Section 27(2) and (3) of the First Schedule Rules of Procedure for Election Petitions does not however specify whether the “new election” shall be held by the Commission in the whole constituency or only in the polling units voting did not occur. However since Section 27(1)-(3) of the Rules is subject to Section 147(1)-(3) of the Act supra, the logical conclusion is that the “new election” would have involved in this case, the whole Warawa Constituency and not just the five polling units if non-compliance or irregularities affected the whole constituency. This would have enabled the political parties to sponsor the same or other candidates as a matter of choice. But holding a bye-election in the five polling units alone will not b in the interest of the political parties or their candidates who had been defeated at the earlier polls as they may not be allowed participation by INEC.
“Election” is defined under Section 164 of the Electoral Act 2006. It “means any election held under this Act and includes a referendum”.
The Tribunal and learned Counsel to the 1st and 2nd Respondents again relied on the case of Alhaji Buba Manu Mutum Biyu & Or vs Alhaji Abdul Aziz Ibrahim & Ors (2006) 8 NWLR (Pt.981) 1. The election there involved the Taraba State Senatorial seat into the Senate. The appellant’s petition filed on 15-05-2003 was struck out on a technical ground. The Court of Appeal set aside the Tribunal’s ruling and remitted the petition to be heard on the merit. A new trial was conducted. On 28-05-2004 the Tribunal dismissed the petition. The petitioner appealed to the Court of Appeal Jos Division judgment was delivered on Thursday, 5th May, 2006 when the Electoral Act 2006 was not yet asserted to by the President of the Federal Republic of Nigeria on 6th day of June, 2006. Thus, the decision in Biyu & ors vs Ibrahim & Ors supra, cannot be an authority for the construction or interpretation of the clear provisions of the Electoral Act 2006, hook, line and sinker. Even then the 1st Respondent polled 176,714 votes while the Appellant polled 83,279 votes. There were only two candidates at the election. The complaint of the Appellant/Petitioner concerned 117 polling units out of 735. At page 5l paragraph “B-E” Nzeako JCA who delivered the lead judgment held as follows:
“… I would thus hold that it does not matter that the complaint of the appellant herein was in respect of 117 polling stations or units out of 735 as submitted for him, it was for the petitioner to lead evidence to show the effect of non-compliance in these polling units over the constituency, viz the Taraba State Central Senatorial Constituency. Nor, is it as was submitted for the appellants testifying only to facts which constitute noncompliance with the Electoral Act. It is a question of proving to the Tribunal how these facts affect the over all result of the election. Winning or losing of an election is a question of “numbers” and figures.
As can be seen from the records, all that the appellants did was to identify and catalogue the elements of non-compliance without adding up or totaling the number of votes affected and identifying how they affect the over all result of the election in the constituency. This failure is detrimental to the Appellant’s case … ”
A declaratory relief should not be asked, nor granted by a Tribunal or Court of law if excluded by statute. See Chief Abaekere & Ors vs Minister of Chieftaincy Affairs (1963) WRNLR 53. In Ogbu & Ors vs Urum & Ors (1981) 1 All NLR (Pt.2) 240 the Supreme Court held at p.246 that, “…Sympathy cannot override the clear provisions of our Rules…..” The Tribunal should not have granted reliefs to the petitioner based on sympathies.
For avoidance of doubt I hold that the Petitioner did not prove the criminal allegations that the non-holding of elections affected substantially the results of the elections in Warawa Constituency in favour of the Appellant.
ISSUE FIVE:
The 1st and 2nd Respondents replied to issue five of the Appellant’s brief in their issue four. That is why they have only four issues for determination in their brief of argument. The question posed under issue five was whether the election and return of the Appellant was or was not in substantial compliance with the Electoral Act 2006. The Petitioner limited his complaints to five polling units namely Makera II 007; Alitini 003; Ganakakun 001; Ganakakun 002 and Jigawa 002. Was there non-compliance with the provisions of the Electoral Act 2006 as to nullify the election? I shall consider only few of the plethora of authorities the Tribunal and Counsel have relied upon in their arguments.
The process or act of conducting election vests on the Independent National Electoral commission. They make use of their staff or agents during the elections. Candidates do not conduct elections; they are merely participants or voters at the election. The Petitioner did not challenge the outcome of the election of 14-04-2007 based on the manner voting was conducted by any staff or agent of the Independent National Electoral Commission, namely their acts or omissions that contravened the provisions of the Electoral Act 2006. Even in that case, that per se is no good ground for questioning the Appellant’s election and return. See Section 146(1) of the Electoral Act 2006.
Though the 3rd-16th Respondents were joined in the petition no allegation of any misconduct was alleged against any of them nor proved at the hearing; neither did the Petitioner seek relief against any of them. In an ordinary civil case their names should have been struck out since no relief was claimed and proved against them. See Otanioku vs Mustapha (1977) 11-12 SC 9; Onibudo vs Akibu (1982) 7 SC 60 at 72; Dutse vs Governor of Kano State (1980) FNLR 269 at 271. Section 144(1)-(2) of the Electoral Act 2006 reads as follows:
“144(1) An election petition may be presented by one or more of the following persons
(a) a candidate in an election;
(b) a political party which participated in the election.
(2)The person whose election is complained of is in this Act, referred to as the Respondent, but if the Petitioner complains of the conduct of an Electoral Officer, a presiding Officer, a returning officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a Respondent and shall be joined in the election in his or her official status as a necessary party PROVIDED that where such officer or person is shown to have acted as an agent of the commission, his non-joinder as aforesaid will not on its own operate to void the petition if the Commission is made a Party. ”
My humble opinion is that Section 144(1) and (2) of the Act supra applies “if the petitioner complains of the conduct of an Electoral officer, a presiding officer, a Returning officer, or any other person who took part in the conduct of an electron…” If the Petitioner did not complain, Section 144(1) and (2) of the Act would not apply. Section 9(1)-(4) of the Evidence Act 1990 provides as follows:
“9(1) Any fact is relevant which flows or constitutes a motive or preparation for any fact in issue or relevant fact.
(2) The conduct of any party, or of any agent to any party, to any proceedings, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceedings is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
(3) The word “conduct” in this section does not include statements, unless those statements accompany and explain acts other than statements, but this provision shall not affect the relevancy of the statements under any other section.
(4) When the conduct of any person is relevant, any statement made to him or in his presence and hearing which affects such conduct is relevant. ”
A careful examination of the facts of this appeal would show that the Appellant had the majority of the votes cast at the election, namely 6,524 and the petitioner 6,257. By excluding the invalid votes and including the valid votes. the Tribunal would have come to the decision that the Appellant had the majority votes of 147 cast at the election of 14-04-2007 in Warawa Constituency. It was a very serious error for the Tribunal to have reasoned as follows:
“…, we cannot but hold that since the majority by which the 1st Respondent led in the result (which is I47 votes) is likely to be upset by the number of the registered voters in the 5 (five) polling units where the elections were inconclusive (which is 2,346 registered voters) that the result of the election would be substantially affected. See also Sorunke vs Odebunmi (1960)
SCNLR 414; Ezike vs Ezeugwu (1992) NWLR (Pt.981) 1 at 50 – 51. It is also our view that if a poll is inconclusive in any particular polling unit or units as a result of which there was no result(s) from such unit or units and if such an occurrence substantially affects the election as it is the case in the present petition, it does not matter that the successful party was not at fault. A bye-election must be ordered in the affected polling unit or units. See Oputeh vs Ishida (supra) at 53. ”
See page 810 lines 12-22 and page 811 lines 1-6 of the printed record.
Again in Sorunke vs Odebunmi (1960) 5 FSC 175 relied upon by Counsel and the Election Tribunal; it became evident that the polling officer was responsible for non-compliance with Regulation 68 of Elections (House of Representatives) Regulations 1958 which read that, “Immediately before the polling officer delivers a ballot paper to a voter;-
(a) the ballot paper shall be marked or punched with an official secret mark, and shown to the polling agents who are present. ”
This affected voting from six polling stations and two Wards of Egba North House of Representative. The Appellant was returned as duly elected with a majority of 109 votes. In the light of the above the Supreme Court stated at P.177 of the judgment that:
“This appeal, therefore, must turn on the question whether or not the election was conducted substantially in accordance with the Regulations, and whether the non-compliance, which has clearly been admitted, affects the result of the election.”
In answering the above question the Supreme Court quoted the case of Woodward vs Sarsons, 10 LRCP 733 decided by Lord Coleridge C.J. His Lordship said at p.743 that:
“…we are of the opinion that the true statement is that an election is to be declared void by the common law applicable to parliamentary elections if it was so conducted that the tribunal which is asked to avoid it is satisfied, as a matter of fact, either that there was no real election at all, or that the election was not really conducted under the subsisting election laws. As to the first, the tribunal should be so satisfied, i.e that there was no real election by the constituency at all, if it were proved to its satisfaction that the constituency had not in fact had a fair and free opportunity of electing the candidate which the majority might Prefer. ”
It is not within the province of any Court or Tribunal to speculate on what might happen in the future. Oral evidence must be direct and positive. See Section 76 and 77(a)-(d) (i) (ii) of the Evidence Act 1990.
The majority in Warawa Constituency were not prevented from voting, it was only a minority in five polling units. The interest of the majority that voted for the Appellant cannot be ignored when the tribunal is to determine what order to make. They were determining their choice candidate before the violence erupted.
The Courts have never laid it as a rule that once there is no voting in a number of polling units, or errors were detected, a fresh or a bye-election should be automatically held. The question always boils down to who had the majority of valid votes cast at the election. Hear Lord Coleridge in Woodward vs Sarsons supra at P.75 of the judgment:
“If this proposition be closely examined, it will be found to be equivalent to this, that the non observance of the rules or forms which is to render the election invalid, must he so great as to amount to a conducting of the election in a manner contrary to the principle of an election by ballot, and must be so great as to satisfy the tribunal that it did affect or might have affected the majority of the voters, or in other words, the result of the election.”
Even in Biyu vs Ibrahim, supra, Nzeako JCA posed the question at P.41 paragraphs “B-C” of the judgment as to who caused the non-compliance with the Act or the irregularities:
“…”irregularities” or “omission”, or “acts” caused by who? Are “irregularities”, or “omission” or “acts” phenomena of life which occur by themselves like appearance of the sun or the moon without human action? The answer is “no”. They are phenomena which arise from human action. It is ridiculous to argue as was done for the Appellant that the complaints are about “irregularities”, “omission” and “acts” which were observed on the face of documents used in the elections as if the documents made themselves. It was argued that the Appellants did not attack the behaviour or conduct of persons/electoral officials. They were persons charged with the responsibility of organizing and managing polls, voting, counting, collating, recording, signing, stamping the documents and announcing of the result of the polls. You cannot have “irregularities”, “omissions” or “acts” which are contrary to the law without their being precipitated and/or committed by human action. is it not the conduct of a person, positive or negative which is responsible for “irregularities”, “omissions” or “acts” contrary to the provisions of the law? ”
Another case relied upon is Ezike & Ors vs Ezeugvvu (1992) 4 NWLR (Pt.236) 462 determined by the Enugu Division of the Court of Appeal on Thursday, 30th April, 1992 under the State Government (Basic Constitutional and Transitional Provisional) Decree No.50 of 1991. The National Election Commission conducted election into the Enugu State House of Assembly on 14-12-1991. The 1st Appellant was declared the winner by the Commission. He scored 5,409 votes against 5,163 votes scored by his opponent. By the said declaration the Appellant led by u majority of 246 votes over his opponent. The Tribunal nullified the invalid votes from the scores of the two candidates and then added the valid votes to the results from a particular polling unit. The true or valid scores came to 5,546 votes for the Petitioner and 4,968 votes for the 1st Respondent. By this addition and subtraction the Tribunal found that the 1st Respondent was not duly elected by a majority of the lawful votes cast at the election and ordered a bye-election under Section 92(3) of Decree No.50 of 1991. The Court of Appeal, Ejnugu Division held at page 473 of the judgment, Akintan JCA (as he then was) that:
“It is clear from the facts proved in the instant case that but for the provisions of the above stated Section 92(3) of the Decree, the Petitioner would have been declared the winner of the election in place of the Appellant.”
Justice is not a one way traffic. The candidate that had majority of valid votes cast at the time voting was disrupted is entitled to justice. Is he to go back to the voters to commence fresh campaign, incurring additional expenditure, spending time and risking his life or energy’ etc, for a fresh or bye-election when he had not been found guilty or linked to the thugs that disrupted the voting by the Election Tribunal or for non-compliance with the Electoral Act 2006? Secondly, after the Independent National Electoral Commission has provided men and materials to ensure a free and fair election, and voting actually commenced or was about commencing, but hoodlums or political thugs and party supporters, seeing that their candidate may be defeated at the polls, disrupts the exercise, seize the ballot boxes, tear or burn election materials, chase away officials of the Commission, assaults or batter them, will it be fair and just use that the commission should be ordered to conduct a fresh or bye-election?
Thirdly, what about the majority of the voters. Have they no rights to be protected except those in the minority who did not vote? Fourthly, who stands to loose at the time violence erupted, the candidate with majority of valid votes cast or that with minority votes? Would the Independent National Electoral Commission, her officials or agents conducting the election, disrupt voting in order to call for bye or fresh election? Will the candidate with majority votes or his party agents and supporters disrupt voting at that stage? To answer these questions recourse has to be had to Section 149 of the Evidence Act 1990 which reads as follows:
“149. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case…”
The presumption is that the candidate with minority votes or his supporters/agent will gain if voting is disrupted. At the material time in question when violence erupted the Appellant had majority votes cast at the election. The petitioner was trailing. A bye or fresh election would favour the Petitioner but disfavour the Appellant, the voters in the majority and the Independent National Electoral Commission who have to start de novo. This presumption can however be rebutted by cogent evidence. But there is no such evidence in this particular appeal.
An Election Tribunal, should take into consideration the interest of all the parties and the electorate, before determining what orders to make so as to attain what is just and fair in every particular circumstance. In Ogbechie vs Onochie (1988) 1 NWLR (pt 70) 370 at 396 paragraphs “A”-“D” Oputa J.S.C held that,
“Fourthly an order of striking out, or of a non-suit, is usually made in the interest of justice. Now justice in civil proceedings is not a one way traffic. It is not justice for the Plaintiffs/Appellants alone. No. It is also justice for the Defendants/Respondents. Striking out the claim for a declaration will be of immense advantage to the losing plaintiffs (who can thereafter proceed afresh) without any corresponding advantage to the winning Defendants/Respondents in the Court of Appeal. Justice that is not even handed is not justice. It may be injustice. The Court of Appeal showed some sympathy for the plaintiff but as I observed in Willoughby vs Merchant Bank (1987) 1 NWLR 105 at p.132, justice should do far better without the bandage of prejudice or sympathy around her eyes. Fifthly when a case is heard on its merits with all necessary parties before the Court, in such a situation if the plaintiff fails to prove his case, the verdict should be one of dismissal and not striking out or a non-suit. See Olayioye vs Oso (1969) 1 All NLR 281. This was also what happened in Chief Abusi David Green vs Chief Dr E. T Dublia Green (1987) 3 NWLR 481 where this Court held that where a plaintiff has completely failed to prove his case, the proper order to make is that of the dismissal of the suit and not that of striking out the suit in order to give the unsuccessful plaintiff a second chance to prove what he failed to prove in the first trial. Giving the Plaintiffs/Appellants here a second chance by striking out their claim for declaration of title will certainly be lo the prejudice of the Defendants whose “version of traditional history” was found by the trial Court to be more probable… ”
See also NPA vs Construczion General Farsura Cogefar SPA & Or (1974) 1 All WLR (Pt.2) 463 where Ibekwe JSC held in a matter involving an unwarranted adjournment at page 471to 472 that:
“…It should always be borne in mind that the interest of justice does not mean just the interest of the respondent and the Court. In other words, the adjournment being sought should, in a strict sense, be in the interest of all concerned. ”
The titles, rights, and interests of the parties before the Tribunal should be the paramount factors to be taken into consideration when hearing or determining an election petition. Arase vs Arase (1981) 5 SC 33 at 35: Anukanti vs Ekwonyeoso (1980) 1 LRN 346 at 35I; Okpala vs Ibeme (1989) 3 SCNJ 152.
At common law the voter that was wrongly disenfranchised could sue for damages. See Asby vs White (1704) 1 Bro. Parl Cas 62 cited in Morgan vs Simpson (1974) 3 All E.R. 722 at 725.,paragraph “H-J” and p.726 paragraph “a-b” per Lord Denning M.R. There is no provision in the Electoral Act 2006 that forbids disenfranchised voters from suing those that caused the irregularities or violence which prevented them from voting.
In Jarvis Motors (Harrow) Ltd & Anor vs Carrabott & Anor (1964) 3 All E.R 89 at 91 paragraphs “B-C”, Ungoed -Thomas J., (as he then was) stated the obvious that:
“…What is not expressly forbidden is permitted…”
Apart from suing in damages, criminal prosecution of the hoodlums can be instituted in the Court of law. If that is not the case, electoral malpractices will continue to trail every election. That will not augur well for democracy in Nigeria.
Tribunals or the Courts are not to make orders rubber-stamping electoral malpractices or non-compliance at elections. When the English Parliament enacted the Representation of Peoples Act 1949 which governed elections in England Stephenson L.J., took into consideration “…a surprising result, unjust to the electorate in general, unjust lo those voters who were disenfranchised by the polling clerk’s breach of their official duo imposed by r.33 of Sch 2 to the Elections (Principal Areas) Rules 1971 to stamp 44 ballot papers with the official mark, even though those voters themselves ought to have shown to the presiding officer the back of the completed ballot paper so as to disclose the official mark, “before nullifying the election. See Morgan vs Simpson supra at p. 729 paragraph “h-J” to Pt’.729 paragraph 9. Stephenson L.J., also held at page 729 of Morgan vs Simpson’s case that “…an election is a serious -and expensive – matter and is not lightly to be set aside. “However, the omission to stamp 44 ballot papers by the officials affected the result of the election. This led to its been avoided.
The Petitioner has not shown that the non-holding of elections in the five polling units affected substantially the result of the elections and I so hold. In my humble view the Petitioner also failed to prove non-compliance by the 3rd – 16th Respondents with any provisions of the Electoral Act 2006 and the Constitution of the Federal Republic of Nigeria 1999.
I allow this appeal and dismiss the petition of Honorable Isa Garba of the All Nigeria Peoples Party before the Tribunal. Honorable Labaran Abdul of the Peoples Democratic Party was the duly elected member of the Kano State House of Assembly representing Warawa Constituency. I do so hold. I award N100,000.00 (One Hundred Thousand Naira) damages to the petitioner.
MARY U. PETER-ODILI, J.C.A.: I had the opportunity of reading in draft the judgment of my learned brother, JOSEPH TINE TUR JCA, just delivered. I agree with his decision and the reasons upon which he reached the decision. I have nothing more to add. I abide by the consequential orders my brother made.
THERESA NGOLIKA ORJI ABADUA, J.C.A.: I had read before now the lead judgment of my learned brother, J. Tine Tur, J.C.A. I agree with the reasoning and decision made therein. I, too, allow this appeal, and hereby set aside the judgment of the lower Tribunal. In its place the Petition filed by the 1st Respondent is hereby dismissed and I abide by the consequential orders made in the lead judgment.
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Appearances
A. Ayodele Esq.For Appellant
AND
M.K Dabo Esq,For Respondent
