MAHMOUD MOHAMMED v. ALL PROGRESSIVE CONGRESS & ORS
(2019)LCN/13137(CA)
In The Court of Appeal of Nigeria
On Thursday, the 18th day of April, 2019
CA/K/137/2019
RATIO
ADMISSION: DEFINITION
This term was defined in the case of Seismograph Services Nig. Ltd v Eyuafe 9-10 SC 135 at 146, per Idigbe JSC, as follows:
A statement oral or written, made by a party to a civil proceeding and which statement is adverse to his case is admissible in the proceedings as evidence against him of the truth of the facts asserted in the statement…
As held by Augie JCA (as she then was) in Lateef Atobatele Ali v United Bank For Africa Plc (2014) LPELR-22635(CA)
An admission is an express or implied concession by a party of the truth of an alleged act; it is a statement made by a party that is adverse to his case. It is admissible against the maker as truth of the fact asserted and in civil cases, they are evidence of facts asserted against but not in favour of such party.It is presumed that no man would declare anything against himself unless it was true. Thus, a party is entitled to rely on his opponent’s admission as an admission against interest to defeat his opponent’s claim.PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
UNDER SECTION 15 OF THE COURT OF APPEAL ACT, 2004, THE COURT OF APPEAL CAN TAKE ACTION THE TRIAL OR LOWER COURTS FAILED TO TAKE
This Court, by Section 15 of the Court of Appeal Act 2004 can take whatever action the lower Court ought to have taken and make any orders necessary in resolving the action. See also Mainstreet Bank Capital Ltd v Nigerian Re-insurance Corporation Plc (2018) 14 NWLR Part 1640 Page 423 at 449 Para E-F per Kekere-Ekun JSC; Kayili v. Yilbuk (2015) 7 NWLR Part 1457 Page 26 at 73 Para F-G; (2015) All FWLR Part 775 Page 347 at 387 Para B-C per Ogunbiyi JSC.PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
JUSTICES
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
MAHMOUD MOHAMMED Appellant(s)
AND
1. ALL PROGRESSIVE CONGRESS (APC)
2. INDEPENDENT NATIONAL ELECTORAL
COMMISSION (INEC)
3. NASIRU ABDUWA Respondent(s)
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This appeal arose from the judgment of the Kano State High Court, delivered on 20/2/19 by Nasiru Saminu J, dismissing the Originating Summons filed by the Appellant, Plaintiff therein. The 1st, 2nd and 3rd Respondents were the 1st, 2nd and 3rd Defendants before the lower Court. The case of the Appellant before the lower Court, was that following the primary election conducted on 3/10/18 by the 1st Respondent for the member of the House of Representatives representing Gezawa/Gabasawa House of Representative Federal Constituency, Kano State, the Appellant, who won the primary election became the flag bearer of the 1st Respondent for the 2019 General Elections. The results showed that the Appellant had 46,257 votes as against the 3rd Respondent, who followed next with 15,491 votes. The name of the 3rd Respondent was strangely submitted by the 1st Respondent Party to the 2nd Respondent, INEC, in place of the Appellant.
?After exhausting all internal mechanisms for resolving the issue, the Appellant filed an Originating Summons before the lower Court on 30/10/18, seeking
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to be declared the flag bearer of the 1st Respondent in the 2019 General Election into the Gezawa/Gabasawa House of Representative Federal Constituency. The lower Court, however, in a Ruling delivered on 23/11/18 held the affidavits of the parties to be contentious and ordered the case to proceed to hearing. It deemed the Affidavits and Counter Affidavits of the parties filed in respect of the Originating Summons as pleadings and directed the parties to file Witness Statements on Oath of their witnesses. At the hearing, the Appellant was the sole witness in proof of his case. The 1st Respondent (APC) called two witnesses, while the 2nd Respondent (INEC) called one. The 3rd Respondent similarly called one witness.
The lower Court in its judgment dismissed the claim of the Appellant. It is against this order of dismissal that the Appellant has appealed, by a fifteen ground Notice of Appeal filed on 4/3/19, seeking that the appeal be allowed and the judgment of the lower Court set aside. He also sought the grant of all the prayers sought in the Originating Summons
In prosecution of the appeal, Yunus Ustaz Usman SAN filed, on 13/1/19, an
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Appellant?s Brief of Arguments in which the following issues for determination were formulated:
1. Whether the Appellant had established on a preponderance of evidence via documentary and oral evidence that he won the 1st Respondent?s primary election for the member of the House of Representatives representing Gezawa/Gabasawa House of Representative Federal Constituency, Kano State at the 2019 General Elections
2. Whether the 1st and 3rd Respondents had any valid defence to the Appellant?s suit as a basis for the dismissal of the Appellant?s suit and the grant of N100,000:00k cost against the Appellant?
The 1st Respondent, in response, filed a 1st Respondent?s Brief of Arguments on 21/3/19, settled by Shitu Tajudeen Esq, in which the following issues were formulated:
1. Whether by the testimony of the PW1 and the documentary evidence tendered the Appellant has proved his case at the trial Court as required by the law to be entitled to the reliefs sought?
2. Whether by the peculiar nature and the circumstances of this case failure of the appellant at the trial Court to call his polling agent is fatal
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to his case?
3. Whether the witness statement on oath of the DWIII in all the circumstances of this case is legally admissible?
4. If the answer to issue No. 3 above is in the negative, whether the entire documents attached to the witness statement on oath of DWIII are not liable to be struck out?
5. Whether the 1st Respondent has put-up a valid defence to the case of the appellant at the trial Court?
The 3rd Respondent?s Brief of Arguments, filed also on 21/3/19, was settled by Abdurrasaq A. Ahmed Esq. in which the issues for determination formulated by the Appellant were adopted.
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In response, the Appellant, on 25/3/19, filed an Appellant?s Reply Brief. The 2nd Respondent filed no Brief of Arguments.
I shall accordingly adopt the Appellant?s issues for determination, the 1st of which is:
Whether or not the Appellant had established on a preponderance of evidence via documentary and oral evidence that he won the 1st Respondent?s primary election for the member of the House of Representatives representing Gezawa/Gabasawa House of Representative Federal Constituency, Kano State at the 2019 General
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Elections?
The learned Silk prefaced his arguments by asking this Court to hold, from the Ruling of the lower Court that some facts had been settled based on the affidavit and documentary evidence adduced by the parties. There is no appeal against this Ruling. The lower Court could thus not revisit these issues in his final judgment, as he was functus officio. These facts were also admitted in the respective affidavits of the 1st and 3rd Respondents. Facts admitted need no further proof. Nevertheless the Appellant subsequently succeeded by oral and documentary evidence in proving these facts, he submitted.
While the 1st Respondent did not counter this submission, the 3rd Respondent?s Counsel submitted that the lower Court only itemized some of the averments which parties agreed upon in their respective depositions but that the Court did not make a pronouncement on them. It can thus not constitute a decision of the Court and does not deter the Court from making subsequent findings on documents tendered by the parties. The Court can only be functus officio, he further submitted, if the decision reached is the type that has ?legal
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binding? effect. As the Court made no findings about the truth or otherwise of the assertion made by the parties but rather itemized the areas agreed and disagreed with, it cannot be said to have reached a final decision.
The learned Silk thereafter proceeded to argue the issue for determination, submitting that the Appellant had succeeded, via oral and documentary evidence, in establishing his entitlement to the claims in his Originating Summons. He pointed to Exhibit P12, a letter from the 1st Respondent admitting that the Appellant won the primaries. He also pointed to Exhibits P18 and P19, INEC documents, in proof of the scores recorded by him. Senior Counsel referred to the case of Emeka v Okadigbo (2012) 7 SCNJ 1 at 38 on the importance of the evidence of the party in settling disputes on who the successful party is at the primary.
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The learned Silk further asked the Court to regard as a misconception the finding of the lower Court that Exhibits P18 and P19 did not emanate from the 1st Respondent?s National Working Committee or disowned by the 1st Respondent, because there was no controversy or dispute as to who conducted the 1st
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Respondent?s primary election for the said Constituency held on 3/10/18 and that the same was conducted by the 1st Respondent?s National Working Committee and which fact was never challenged by the 1st and 3rd Respondents, thereby making it unassailable. It was also never stated in the pleadings of the 1st and 3rd Respondents or in their oral evidence that Exhibits P18 and P19, the results for primary elections for member of House of Representatives of the National Assembly representing Gezawa/Gabasawa Federal Constituency of Kano State, was disowned by the National Working Committee of the 1st Respondent. The lower Court, in rejecting these documents relied on evidence never adduced by the 1st and 3rd Respondents, thereby descending into the arena of conflict and making an unsolicited case for the 1st and 3rd Respondents which they never made for themselves and against the Appellant. The lower Court was thus in error to have held that the primaries relied upon by the Appellant was conducted by the Kano State Chapter of the 1st Respondent.
Citing Ajuwon v Akanni (1993) 5 NWLR Part 316 Page 182, the learned Silk submitted that decisions of
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Courts must be founded on grounds raised by or for the parties and in respect of which it has received arguments.
It was Senior Counsel?s further submission that the evidence of the 1st Respondent?s witness, DW1, is that the 2nd Respondent?s officers witnessed the 1st Respondent?s primary election as the statutory supervising and monitoring agency of political parties in Nigeria, which is consistent with Exhibit P18 and P19 series, which are the same as the 2nd Respondent?s Exhibit D49, D50 and D51. He pointed out that contrarily, Exhibits D20-D47, the purported result of the 3rd Respondent, was never found in the custody of the 2nd Respondent, which fact should have necessitated caution on the part of the lower Court as to its authenticity. The Appellant, having been consistent under cross examination, with regard to this document, should have this document and his evidence accepted.
The learned Silk accused the lower Court of failing to make comparisons between Exhibits P18 and P19, the result of the primaries in Gezawa/Gabasawa Federal Constituency and Exhibits P13, P13(a), P14 and P15, the result of primary election
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in Dawakin Kudu/Wurawa, Douwa and Dawakin Tofa Federal Constituencies respectively, to confirm the authenticity of the forms used in Exhibits P18 and P19 to show the format and heading of the forms used by the 1st Respondent throughout Kano State in the conduct of the House of Representative primary elections on 3/10/18, including the officials who signed the same and to compare these with the fictitious forms relied on by the 3rd Respondent.
Counsel also wondered why on application by them to the 2nd Respondent for certified copies of Exhibits D20-D47, the purported result of the 1st and 3rd Respondents, the 2nd Respondent could not find them in its records, yet those of the Appellant were found there and produced by them. The forms, he submitted, were clearly concocted in anticipation of and for the purpose of the trial. It is safer, he submitted, to rely on the forms produced by INEC, viz P18 and P19, as representing the authentic results on the day in question showing the highest votes cast in favour of the Appellant. Counsel asked this Court to invoke the doctrine of evidential inference to resolve the issue of genuineness of the Appellant?s
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forms, comparing them with Exhibits P13-15 as against the suspect forms of the 3rd Respondent. He cited Muhammad v State (2017) 13 NWLR Part 1583 Page 386 at 420 and Babatunde v State (2014) 2 NWLR Part 1391 Page 298.
He asked the Court to give Exhibits P1-P19, as well as D50 their normal meaning, as they speak for themselves, submitting that documentary evidence is regarded as the best evidence in proof of a case and cannot be varied by oral evidence. He cited A/G Rivers v A/G Bayelsa (2013) 3 NWLR Part 1340 Page 123, Skye Bank Plc v Akinpelu (2010) 3 SC Part II Page 29, Baliol Nigeria :td v Navcon Nigeria Ltd (2010) 5-7 SC Part II Page 1, Igbeke v Emordi (2010) 11 NWLR Part 1204 Page 1, Mil Governor Lagos v Adeyiga (2012) 5 NWLR Part 1293 Page 291 and Rabiu v Adebajo (2012) 5 NWLR Part 1319 Page 22. He asked the Court to hold, from these documents, buttressed by the oral evidence given, that the Appellant had sufficiently proved his case to be entitled to the reliefs sought.
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It was Senior Counsel?s further argument that the finding of the lower Court that the evidence of the Appellant was hearsay and secondary evidence is not borne out of the
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records, as the parties in their respective pleadings and evidence were in agreement that both the Appellant and 3rd Respondent participated in the 1st Respondent?s primary election representing the said constituency. The oral account of the Appellant was thus in confirmation of the documentary evidence. The lower Court?s insistence on the Appellant calling all the polling unit agents was thus unwarranted, in view of Exhibits P18 and P19. The oral evidence of the Appellant should thus not be considered hearsay but direct evidence.
It was again submitted by the learned Silk that a party can take advantage of the evidence adduced by his opponent, in particular the 2nd Respondent who is an unbiased umpire in the political arena and who authenticated the Appellant?s results, tendering the same as Exhibits D49-D51, thereby discrediting Exhibits D20-D47 of the 3rd Respondent. He took umbrage at the rejection of the evidence of this witness by the lower Court on the ground that the statement was not signed before the Commissioner for Oaths.
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Pointing to excerpts from the evidence of DW1, DW2 and DW4, Counsel?s further submission is
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that the evidence of these witnesses is hearsay and inadmissible and should be discountenanced. He asked the Court to hold that the admission in Exhibits P18, P19, D49, D50 and D51 is against the interest of the Respondents. He cited Onisaodu v Elewuju (2006) 13 NWLR Part 998 Page 12 at 532, Odi v Iyala (2004) 14 NWLR Part 875 Page 283, Orji v Ugochukwu (2009) 14 NWLR Part 1161 Page 207 at 289 Para C-H and Artra Industries Nig Ltd v NBCL (1998) 4 NWLR Part 546 Page 357 at 408.
The 1st Respondent?s Counsel commenced his arguments by placing the burden of proof on the Appellant, on the balance of probabilities, to prove that he won the primary election, relying on Section 131 of the Evidence Act, Ogba v Asade (2004) 43 WRN and Custom v Mohammed (2015) LPELR-25938 CA, which burden, he said, was not discharged. By the Appellant?s admission, he did not witness the election in all the wards of the said Constituency and was not there when the results of the election were counted and collated but that the information with regard to the primary election was related to him by his agent. His evidence thus amounted to hearsay and Exhibits P18 and P19 have
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no evidential value. The Court should thus not disturb the finding of the lower Court as there is no appeal challenging those findings.
Citing Buhari v Obasanjo (2005) 13 NWLR Part 941 Page 1 he submitted that the evidence which must be led in support of an allegation in which figures and scores of candidates at an election are being challenged should come from the officers who were on the field where the votes were counted and/or collated. Being hearsay evidence, it is not admissible in law, he submitted, citing Matazu v Mazoji (2014) LPELR- 23071 (CA) per Abiru JCA. As the findings of fact were not challenged, the findings should not be disturbed. He urged the Court not to attach any probative value to Exhibit P18 and P19 series tendered by the Appellant because the Appellant who tendered them is not the maker of those documents and since the Appellant stated in his evidence that he was not present when the results at the primary election were counted and collated, these documents should not have probative value attached. He cited Lambert v Nigerian Navy (2006) 7 NWLR Part 980 Page 514 at 547. There is no evidence before the Court as to why the
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documents could not be tendered through the maker in consonance with Section 83 of the Evidence Act, he submitted. He disagreed that the Ruling of 23/11/2018 is a final one as it does not determine the rights of the parties. Even if the Court were to hold otherwise, the Ruling is in favour of the 3rd Respondent, as it shows that not only did he win the election, it was his name that was submitted by his party to the 2nd Respondent.
It was his further submission that the 1st and 3rd Respondents had shown through their witnesses, who were agents of the 1st Respondent that conducted the election, that they were present when the results from the various wards were collated and entered into the result sheets, which evidence was unchallenged and is therefore deemed admitted. Putting the evidence of both parties on an imaginary scale, as the lower Court did, the evidence clearly preponderated in favour of the 1st and 3rd Respondents.
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The 3rd Respondent?s Counsel submitted that the issue for determination should be resolved in favour of the 3rd Respondent, as there is no evidence before the Court to show that the Appellant won the primaries conducted
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by the 1st Respondent on 3/1/18, the evidence relied upon by the Appellant being hearsay and inadmissible. Agreeing with the Appellant?s Counsel that the lower Court could not be deterred from making decisions on the documents tendered by the parties, he submitted that it is only after oral evidence and the cross examination of witnesses that the Court will make a decision. Citing the case of Ngere v Okuruket (2017) All FWLR Part 882 at 1302 at 1307, he submitted that having not reached a decision that was legally binding or made findings on the truth of assertions made, the Court cannot be said to be functus officio.
Learned Counsel submitted further that by Section 13.4 of the 1st Respondent?s Constitution, the National Working Committee (NWC) is given powers to conduct primaries for elective positions in the National and State Assemblies, which it does by setting up an Election Committee, as contained in Clause 20(a) (c) of the APC Guidelines for the nomination of candidates for the 2019 General Elections Direct Primaries. No other organ or group of individuals can usurp this party structure to set up a parallel committee to organize or
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conduct any primaries for the National or State Houses of Assembly primaries. It is the rule that it is only the National Working Committee Appeal Committee that can decide appeals from parties, and the Chairman Kano State Chapter is not part thereof, more so as neither he nor the Secretary were at the election venue when the election was conducted. One can draw the inference from Exhibit P.12, that the election referred to in that letter is the one conducted by the Chairman Kano Chapter and not the one conducted by the National Working Committee. He cited Emenike v PDP (2012) 12 NWLR Part 1315 Page 556, that a primary election conducted by a state executive committee of a political party is not recognized by the Electoral Act 2010 (as amended) and is illegal. Section 87(4) of the Electoral Act vests power, he said, on the National Executive Committee of the party.
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He disagreed with the Appellant?s Counsel that the evidence of the 1st and 3rd Respondent?s witnesses is hearsay. His submissions were in tandem with the 1st Respondent?s Counsel on the question of who a maker of the document is and that the Appellant was not the maker of
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Exhibits P18 tendered by him.
Responding to the request by Appellant?s Counsel for this Court to compare documents placed before the Court, he submitted that the Appellant did not lead witnesses through the documents tendered, contending that a party cannot dump documents on the Court and ask the Court to enquire into the documents, citing Ucha v Elechi (2012) 13 NWLR Part 1317 Page 330 at 360 and ANPP v INEC (2012) 13 NWLR Part 1212 Page 549
Even assuming, though not conceding, that the defence of the 1st and 3rd Respondents is not strong, the Appellant is not automatically entitled to the relief sought as he must prove his case on the balance of probability and not on the weakness of the defence by reason of Section 133(1) of the Evidence Act, Veepee Ind. Ltd v Cocoa Ind. Ltd (2008) 13 NWLR Part 1105 Page 486 at 519-520 Para H-A per Niki Tobi JSC and Oguejiofor v Siemens Ltd (2008) 2 NWLR Part 1071 Page 283 at 299 Para G-H Page 300 Para C-B. The Plaintiff, Counsel submitted, has failed to prove his case.
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In the Appellant?s Reply Brief, it was submitted that the 1st and 3rd Respondents could not use oral evidence of 1st and 2nd
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Respondents? witnesses to counter Exhibits P12, as documentary evidence is the best evidence and should be used as a hanger in the evaluation of evidence. The probative value of Exhibit P12 unequivocally proved that it was the name of the Appellant that was submitted. The Appellant, he said, had utilized all the complaint channels in protest to 1st Respondent at his exclusion in spite of his success and Exhibit P12 was the response and cannot be disclaimed by the 1st Respondent. It was also never canvassed in the lower Court or contained in their pleadings or testified to that the State Chairman of the 1st Respondent acted without authority. The said exhibit was clear that the election won by the Appellant was the Primary Election conducted by the National Working Committee of the 1st Respondent. The Appellant, having proved by Exhibit P12 that by the 1st Respondent?s admission, he won, the burden of showing that Exhibit P12 was written without authority was not discharged. He argued further that by the powers conferred on the State Executive Committee of the 1st Respondent by its Constitution, in particular Section 13.7 (i) (v) and (vi), the State
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Chairman is imminently empowered to perform the administrative act of responding to a letter of complaint. The learned Silk debunked the suggestion of Counsel to the said Respondents about parallel primaries being held, pointing out that only one at which both Appellant and 3rd Respondent were contestants, was held and which the lower Court was in agreement with in its Ruling, confirmed by Exhibit P12. Exhibit P18 and P19 emanated from proper and official custody of the 2nd Respondent as it is customary to give the successful party the results. He reiterated, in challenge of the contention of Counsel on comparison of documents, that where the lower Court fails to discharge its primary duty of evaluation of documentary evidence and the ascription of probative value, the Court of Appeal is empowered to consider and evaluate the documentary evidence. He cited Ekong v Otop (2014) 11 NWLR Part 1419 Page 549 at 573-574 Para F-A.
As held by lower Court and submitted by all Counsel, in line with Sections 131-134 of the Evidence Act 2011, the law is that he who asserts must prove and whoever desires judgment in his favour must establish his case on the
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preponderance of evidence. Such a party must lead credible and legally admissible evidence in order to succeed. By Section 134 of the Evidence Act Supra, the standard of proof in civil cases is discharged on the balance of probabilities. Balance of probabilities or preponderance of evidence means that in civil proceedings judgment is given to the party with the greater weight or stronger evidence. See Interdrill (Nig) Ltd v United Bank for Africa PLC (2017) 13 NWLR Part 1581 Page 52 at 75 Para C-D per Rhodes-Vivour JSC; Amadi v Amadi (2017) 7 NWLR Part 1563 Page 108 at 131-132 Para G-F per Nweze JSC.
In determining whether the Appellant has proved his case, the Court places the evidence of both sides on an imaginary scale, to see on which side the scale preponderates. See Onovo v. Mba (2014) 14 NWLR Part 1427 Page 391 at 414 Para A-B per Ogunbiyi JSC; – Uwah v. Akpabio (2014) 7 NWLR Part 1407 Page 472 at 489 Para B- D per M.D Muhammad JSC; Wachukwu v. Owunwanne (2011) 14 NWLR Part 1266 Page 1 at 36-37 Para G-C per Tabai JSC quoting Fatayi Williams JSC in Odofin v. Mogaji (1978) 2 NSCC 275 at 277.
?Preponderance of evidence, however, does not depend on
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the number of witnesses called by each party but on the quality and probative value of the evidence of those witnesses. See Onowhosa v. Odiuzou (1999) 1 NWLR Part 586 Page 173 at 183 Para A-B per Ogwuegbu JSC.
While this burden of proof rests, as a general rule on the Plaintiff, such burden is not as static as in criminal cases, but as the case progresses, may shift to the Defendant to call evidence in proof or rebuttal of some particular point which may arise in the case. See Chemiron Int?l v Stabilini Visinoni Ltd (2018) 17 NWLR Part 1647 Page 62 at 78 Para G-H per Peter-Odili JSC; Omisore v. Aregbesola (2015) 15 NWLR Part 1482 Page 1 at 332 Para F-G; (2015) All FWLR Part 813 Page 1673 at 1780 Para B-C per Okoro JSC.
The Claimant also must rely on the strength of his case and not because the defence or the Respondent?s case is weak. See Action Congress of Nigeria v. Nyako (2015) 18 NWLR Part 1491 Page 352 at 423 Para B-C per Peter Odili JSC.
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The broad planks upon which the trial Judge dismissed the case of the Appellant as not proved, are the following:
1. That it was not proved that the 2nd Respondent supervised the election
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and that as the evidence of its witness had been expunged, there was no proof before the Court of this fact.
2. The evidence of DW3 from INEC was hearsay, as he said he did not witness the election and was not there when the evidence was compiled but that they were given to him by the official of the 1st Respondent and that he affixed his signature thereon.
3. The result of the elections given to the Appellant by his agents at the polling units, Exhibits P18 and P19, cannot be relied upon as the agents were not called upon to testify, contrary to the position stated in INEC v Anthony (2010) LPELR ? 12183 (CA) where Aboki JCA held, in reliance onBuhari v Obasanjo Supra that ?the position of the law regarding the type of evidence which must be led in support of the allegations in which figures and scores of candidates at an election been challenged (sic) should come direct from officers who were in the field where the votes were counted and or collated?.
4. The primary election relied upon by the Appellant was conducted by the state chapter of the 1st Respondent and not by the National Working Committee. Before proceeding to a
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deliberation on these findings of the lower Court, it must be corrected, as pointed out by the Appellant?s Counsel, that there was never any suggestion in any of the pleadings of the parties that the results relied upon by the Appellant were as a result of an election conducted by the State Executive of the party. Both parties agreed that a primary election for the member of the House of Representative Federal Constituency, Kano State, to choose a flag-bearer at the 2019 General Elections, was conducted by the 1st Respondent?s National Working Committee (NWC) on 3/10/18, at which both the Appellant and the 3rd Respondent were candidates. The area of divergence, as acknowledged by the lower Court in its Ruling directing that the case proceed to trial, was who, among the Appellant and the 3rd Respondent, won the primaries.
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The Appellant alleged that he won with the following scores:
1. Abdulhalim Liman ?. 12,245
2. Ahmad Hassan. 3,964<br< p=””
</br<
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3. Isa Hassan (Appellant) 7,909
4. Mahmoud Muhammed?. 46,257
5. Nasiru Abduwa (3rd Respondent) 15,491
The 1st and 3rd Respondents however contend the scores to be as follow:
1. Abdulhalim Liman. 13,714
2. Mahmoud Muhammed (Appellant)? 13,786
3. Ahmad Hassan. 10,707
4. Isa Hussani 11,415
5. Nasiru Abduwa ( 3rd Respondent) 66,406
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There was thus no contention in the pleadings (affidavits) of the parties that different primaries were held or that the Appellant?s election was conducted by the State Executive Committee while that of the 3rd Respondent
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was by the National Working Committee.
Indeed, the lower Court in its Ruling transferring the proceedings to trial mentioned no such dichotomy, outlining the areas of agreement and discord when it held as follows (at Pages 176-177):
?In this case, from the affidavit evidence of parties on both sides, they were in agreement that:
There was primary election held by the 1st Defendant under the supervision of the 2nd Defendant.
They also agreed that both Plaintiff and the 3rd Defendant participated in that election.
They all agreed that a winner of that election was declared and his name submitted to the 2nd Defendant as a flag bearer of the 1st defendant in the forthcoming General Election into the Gezawa/Gabasawa House of Representative Federal Constituency.
However, they differ as to the results of the election and by extension the winner of the said election whose name was submitted to the 2nd Defendant ?
In this case parties have stated their facts in their respective affidavits and are deemed as pleadings of the parties. In the circumstance, I order parties on both sides to file their list and statement of
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witness on oaths on or before 29/11/18
I am thus in agreement with the Appellant?s Counsel that the facts stated by the lower Court in its Ruling, distilled from the affidavits of the parties, which the lower Court deemed as the ?pleadings?, rendered the Court functus officio with regard to those issues.
Defining ?functus officio?, the Supreme Court in Dingyadi v INEC (No.1) (2011) 18 NWLR Part 1224 Page 1 at 186 Para D-F per Chuwuma-Eneh JSC held:
?.. the principle of functus officio ? connotes that a Court as this Court having given its decision in a matter before it ceases to have the power to reopen the same matter all over again in the same proceedings. ? Albeit, where a Court has duly performed its duty by handing down its decision/Ruling as in this case it has exhausted as it were, all its powers with regard to that matter. And so, the Court becomes functus officio and incapable of giving any decision or making any competent orders with regard to the same matter it has previously decided for want of the jurisdiction to do so.?
Underlining Mine
?Thus, once a
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Court makes an order or gives judgment in an action, it becomes functus officio and ceases to possess the power to vary or review such order or judgment. See also Ngere v. Okuruket XIV (2017) 5 NWLR Part 1559 Page 440 at 499 Para D-G per Kekere-Ekun JSC.
To be functus officio, the order does not have to have been made after final judgment, I hold. It may be a decision or ruling made in the course of the case, but which binds the Court and precludes it from further deliberation of the matter. One of the exceptions being the ?slip rule?, which this case is not about and also matters which call for the exercise by the Court of its discretion, which again this is not.
Indeed, of equal importance is the fact that parties and the Court are bound by their pleadings and the issues joined therein. They cannot go outside the pleadings either to introduce evidence or decide the issues in controversy. In consequence, the Court must always be on its guard so as not to deviate from the case made by each party in the pleadings otherwise it will unwittingly be making for parties, an entirely new case. See Odom v. PDP (2015) 6 NWLR Part 1556 Page 527 at
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565 Para D-E; (2015) All FWLR Part 773 Page 1962 at 1989 Para E, per M.D. Muhammad JSC; Fagbenro v. Arobadi (2006) 7 NWLR Part 978 Page 172 SC at 194-195, Para H-B per Onnoghen JSC (as he then was).
Having held as it did in its Ruling above and in view of the contents of the affidavits of the parties, as the issues of parallel congresses was never raised, neither any contention on different executives conducting the primaries, the subject was not open for discussion, I hold.
In consequence, and as submitted by the Appellant?s Counsel, the following facts agreed upon by the parties in their affidavits and so held by the lower Court, are:
1.That there was only one primary election held by the 1st Respondent, All Progressives Congress (APC), on 3rd October, 2018, under the supervision of the 2nd Respondent, Independent National Electoral Commission (INEC).
2. That both the Appellant and the 3rd Respondent participated in that primary election organized by the National Working Committee of the 1st Respondent.
3. That a winner of that primary election was declared and his name submitted to the 2nd Respondent as a flag bearer of the
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1st Respondent for the member of the House of Representatives representing Gezawa/Gabasawa House of Representative Federal Constituency, Kano State at the 2019 General Elections.
The lower Court erred and went outside the pleadings of the parties and the evidence before it, accordingly when it held:
?Moreso, in this case, the 1st Defendant from whom the results i.e. Exhibits P18 and P19 (series) said to emanate (sic) categorically disowned the results and contended that the state chapter of the 1st Respondent is not responsible for conducting primary election rather the National Working Committee from whom Exhibits D20-D47 (of 1st and 3rd Respondents) were said to emanate
?
As aforesaid, the parties neither pleaded that two congresses were held and any evidence given to this effect will go to no issue, as litigation is fought on pleadings. Pleadings are the pillars upon which a party?s case is founded. Not only do they give the other side notice of the case they are to meet at the trial, they also define the parameters of the case. Any evidence led on facts not pleaded thus goes to no issue and will be expunged or
29
discountenanced by the Court. See Tabansi v Tabansi (2018) 18 NWLR Part 1651 Page 279 at 295 Para A-B per Aka?ahs JSC; Anyafulu v. Meka (2014) 7 NWLR Part 1406 Page 396 at 424 Para G-H per Kekere-Ekun JSC; Ogboru v Okowa (2016) 11 NWLR Part 1522 Page 84 at 150 Para D Per Okoro JSC.
Evidence on parallel congresses will accordingly be discountenanced by this Court.
Another of the reasons given by the lower Court for dismissing the case of the Appellant is that there was no proof before the Court that the 2nd Respondent supervised the elections. As has again been pointed out by the learned Silk and which I agree with, this was never an issue raised by the parties before the lower Court. Indeed, the lower Court in its Ruling above noted, as points of agreement in the affidavits of the parties that ?from the affidavit evidence of the parties they were in agreement that: there was primary election held by the 1st Defendant under the supervision of the 2nd Defendant?
?
As held by me above, parties are bound by their pleadings, which in this case are the affidavits of the Appellant in support of the Originating Summons and the Counter
30
Affidavits of the Respondents.
The Appellant deposed in Paragraph 9 of his Affidavit as follows:
“9. That the said primary was conducted in a very peaceful atmosphere and was witnessed by officials of the 1st Defendant, as well as the representatives of the 2nd Defendant and various security agencies who all appended their respective signatures on the said result sheet issued to me?
The Counter Affidavits of the 1st and 3rd Respondents in answer to this deposition are identical, and as stated in Paragraph 22 and 21 respectively of their Counter Affidavits, are the following:
?That Paragraph 9 of the Plaintiff?s affidavit in support is only true to the extent that the election of 3/10/2018 conducted by primary election committee of the 1st Defendant was peaceful.?
In the 2nd Respondent?s Counter Affidavit, it was deposed in Paragraphs 4, 5 (d) and (e) as follows:
?4.That the 2nd Defendant sent a team of its officials headed by one Muhammad Ubale to monitor the primary election.?
5 (d)
?That the result sheet handed over to the 2nd Defendant officials indicated that that the
31
Plaintiff won the primary election as he received the highest votes?
5 (e)
?That a comprehensive report of the primary was submitted to the 2nd Defendant by the team of its official (sic) that monitored the primary election. Now shown to me is the copy of the said report and is hereby annexed as Exhibit INEC 2?
It is trite law that essential allegations should be specifically traversed. In order to raise any issue of fact, there must be a proper traverse. Every allegation of fact, if not denied specifically or by necessary implication shall be taken as established at the hearing. See Orianzi v. A/G Rivers State (2017) 6 NWLR Part 1561 Page 224 at 266-267 Para H-A per Galinje JSC; Oshodi v Eyifunmi (2000) 13 NWLR Part 684 Page 298 at 337, Para B, per Iguh JSC; Salisu v Odumade (2010) 6 NWLR Part 1190 Page 228 at 238-239 Para G?A, per Ogbuagu JSC.
The same applies to affidavits. The law is that any averment in an affidavit which has not been categorically denied or controverted is deemed to have been admitted by the opponent. See Oredola Okeya Trading Co v. Bank of Credit & Commerce in Re (1) Amolegbe (2) NDIC
32
(2014) 8 NWLR Part 1408 Page 76 at 96 Para B per I.T. Muhammad JSC.
The monitoring of the election in question and its supervision by INEC, the 2nd Respondent, was not specifically denied by the 1st and 3rd Respondents in their ?pleadings? and was in fact admitted by their witnesses in evidence. The failure of the 1st and 3rd Respondents to specifically deny the monitoring and supervision of the election by the 2nd Respondent and their admission of this fact in their evidence, taken together with the findings of the lower Court in its Ruling above, rendered requirement for proof of this fact unnecessary thus requires no further proof. It must be acted upon by the Court. See Ezechukwu v. Onwuka (2016) 5 NWLR Part 1506 Page 529 at 552-553 Para H-A; (2016) All FWLR Part 824 Page 148 at 165 Para B per M.D. Muhammad JSC.
It was therefore not open to the 1st and 3rd Respondents to challenge in evidence the fact of the supervision of the election by the 2nd Respondent (INEC), I hold. The lower Court was thus in error to have held that ?the fact of the 2nd Defendant supervising the election of 3rd October 2019 has not been proved?.<br< p=””
</br<
33
The lower Court was there in error when it held with respect to the evidence of DW3, the 2nd Respondent?s witness, that the evidence of this witness ?who was alleged to have supervised the said election ? had been expunged from the record as such cannot be relied upon to prove that he indeed supervised the election.?
Indeed, Section 86(1) of the Electoral Act Supra, mandates the 2nd Respondent ?to keep records of the activities of all the registered political parties?.
The 1st and 3rd Respondents would be treading on slippery ground to contend that their activities were all conducted outside the purview of the 2nd Respondent.
The lower Court, however expunged the entire evidence of this witness, viz his Witness Statement on Oath and his cross examination, together with all exhibits tendered, on the ground that it was not sworn to before a Commissioner for Oaths.
This, I note, arose from the response of the witness to a question put to him under cross examination by Counsel to the 1st Respondent, when he stated:
?I signed witness deposition on oath in my office at INEC office Gezawa?<br< p=””
</br<
34
The lower Court, in its judgment held:
?On the credibility of the witness statement on oath of a witness not signed before the Commissioner for Oath or a person duly authorized by law, is that once the document is shown to have been sworn to before of (sic) Commissioner for oath, there is a presumption of regularity that all requirement for the oath taking are duly complied with and the document was signed and stamped by the Commissioner for Oath and was duly made before him as shown on the statement?. which was sworn before the Commissioner for Oath High Court Registry Kano State on 4th December 2018. However that presumption is rebuttal in the sense that where the evidences led to the contrary (sic), the onus is on the deponent to prove that he swore to his statement on oath before the Commissioner for Oath or any person authorized to administer oath?.DW3 was confronted with his challenge under cross examination wherein he stated thus:
?I signed my witness deposition on oath in my office at INEC Office Gezawa?
This presupposes that the statement on oath credited to DW3 was not signed before the
35
Commissioner for Oath. Thus the presumption of regularity was successfully rebutted?.I have no option in this case but to tow the path of my learned brothers at the Court of Appeal and Supreme Court respectively and declare that the witness statement on oath of DW3 dated 4th December 2018 having not been signed before the Commissioner for Oath is incompetent and same is hereby expunged.
Having so held, the documents i.e. Exhibit D49, D50 and D51 tendered through DW3 will not stand as the evidence of DW3 is the hanger upon which the Exhibits rest?They are incompetent and accordingly expunged?
The learned Silk has however argued that the validity of an oath is not dependent on where the oath is administered but before whom it was administered. The presumption of regularity enures in the Appellant?s favour, he submitted. The 1st and 3rd Respondents had the onus to prove that the statement on oath was not made before a Commissioner for Oaths, which onus was not discharged. This finding by the lower Court should thus be set aside, as it amounted to a mere speculation and reliance on technicalities. Citing Okpala v Okpu (2003) 3
36
SCM 157, Salami v Ajadi (2008) 24 WRN 144, he submitted that justice should never be defeated by technical justice. In any event, Sections 113 and 114 of the Evidence Act 2011 are the saving provisions for defective affidavits. The statement of the lower Court that the evidence of the 2nd Respondent, DW3 from INEC, is hearsay is thus perverse, as this witness merely gave evidence of the results which were lawfully in his custody, thereby making his evidence direct and not hearsay. Even if the oral evidence of DW3 is discountenanced, the pleadings of the 2nd Respondent survives and cannot be deemed abandoned, as the 2nd Respondent can take advantage of the evidence adduced by the Appellant. He cited Akomolafe v Guardian Press Ltd (2010) All FWLR Part 517 Page 773 at 784 per Onnoghen JSC (as he then was).
The 1st Respondent?s learned Counsel submitted that the entire testimony of DW3 is inadmissible, not only being hearsay evidence but having admitted that he deposed to the statement in his office in Gezawa. There was no Commissioner for Oath in the office in Gezawa. The statement had thus violated a mandatory provision of Section 112 of the Evidence Act.
37
He asked this Court to uphold the decision of the lower Court striking out the statement as well as all the exhibits tendered by him.
The submissions of 3rd Respondent?s Counsel were in alignment with the submissions of the 1st Respondent?s Counsel. He cited Section 109 and 112 of the Evidence Act as operating against the Witness Statement which is an affidavit, also citing Chidubem v Ekenna (2009) All FWLR Part 455 Page 1692 at 1706 Para F, 1708 Para A-F, Buhari v INEC (2008) 4 NWLR Part 1078 Page 546 at 608. The exhibits tendered by the witness must be expunged along with the statement as the statement is the hanger upon which they rest, as pleadings must be supported by evidence or otherwise deemed abandoned.
The lower Court, in holding as it did, relied on the dictum of Ogunwumiju JCA in Erokwu v Erokwu (2016) LPELR-41515 (CA) and Buhari v INEC (2008) 12 SCNJ 1 at 91 cited in that case by my learned brother.
Ogunwumiju JCA giving the incidents of oath taking held:
?The concept of oath taking involves:-
i. The deponent making a statement in writing,
ii. The document is taken to a Commissioner for Oaths or
38
any person duly authorized to take the oath,
iii. The Commissioner for Oaths requires the deponent to swear on a holy book particular to the deponent?s faith or a mere declaration for a deponent whose faith forbids him to swear,
iv. The Commissioner for Oaths then asks the deponent to verify what has been stated
v. The deponent afterwards signs in the presence of the Commissioner for Oaths who witnesses that the Affidavit was sworn to in his presence. This explains the phrase ?Before me? usually signed by the Commissioner for Oaths.
When a deponent swears to an oath, he signs in the presence of the Commissioner for Oaths who endorses the document authenticating the signature of the deponent. Signatures signed outside the presence of the Commissioner for Oaths fall short of the requirement of the statute and such document purported to be sworn before Commissioner for Oaths is not legally acceptable in Court. In Chidubem v. Ekenna & 12 Ors (2008) LPELR-3913,(2009) All FWLR (Pt. 455) 1692, this Court held as follows:-
?The attempt by learned counsel for the Appellants to draw a distinction between signing a
39
deposition and swearing an oath is in my humble view, merely splitting hairs. The two acts are of the same transaction. The law is that the deposition on oath must be signed in the presence of the person authorized to administer oaths.
In this case, the Respondent upon cross examination stated when asked where he signed his statement on oath that ?I guess in my counsel?s chambers?. This to my mind presupposes that the document was not signed before a commissioner for oaths. Respondent?s counsel?s reference to the word ?guess? as being a supposition and not definite or certain cannot obviate the implication of the response. Respondent would easily have said ?I signed before the Commissioner for Oaths? if he did. ?I guess in Court? or ‘I guess before the Commissioner for Oaths? would confer another impression on the Honourable Court. The impression conferred is that he signed in chambers of his counsel but a Commissioner for Oaths later attested to it. He simply did not sign it in the presence of a Commissioner for Oaths as required by law.
This is not a defect in form as envisaged
40
by Section 113 of the Evidence Act 2011. It is a fundamental and statutory error that cannot be waived. Therefore the witness statement of the Respondent dated 9/10/2008 is incompetent and inadmissible, it is hereby expunged having failed the statutory test of authenticity and admissibility.?
I am in agreement with the statement of my learned brother above that ?when a deponent swears to an oath, he signs in the presence of the Commissioner for Oaths who endorses the document authenticating the signature of the deponent? and that ?signatures signed outside the presence of the Commissioner for Oaths fall short of the requirement of the statute and such document purported to be sworn before Commissioner for Oaths is not legally acceptable in Court.?
?As submitted by the Appellant, and which I agree with, the performance of the functions of a Commissioner for Oaths is not confined to his office. It is his presence and the paraphernalia of his office, inclusive of his stamp, that gives the oath its authenticity. Thus the fact that the oath was taken outside the office, is not without more, conclusive of the fact that it was
41
not sworn before the Commissioner for Oaths. The important question is whether the oath was sworn to before the Commissioner for Oaths, as advocated in the case above of Erokwu v Erokwu Supra and not whether the deponent physically went to the office of the Commissioner for Oaths to subscribe to the oath.
It is the presence of the Commissioner for Oaths that is vital and not his physical office, I hold. It is this that must be disproved by the 1st Respondent and not the venue of the oath taking, I further hold.
The learned jurist Ogunwumiju JCA rightly held and again I agree, that the response given by the deponent in the case of Chidubem v Ekenna Supra was indicative of the fact that the statement was not made before the Commissioner for Oath.
In the case of Buhari v INEC (2008) 19 NWLR Part 1120 Page 246 relied upon by the lower Court and cited in the case of Erokwu v Erokwu Supra, the Supreme Court unequivocally agreed with the Court of Appeal?s decision to strike out the depositions of the Appellant?s witnesses sworn to before a Notary Public who was also counsel in the chambers of the senior Counsel to the Appellant which they
42
held, at Pages 381-382 Para D-D per Tobi JSC was in violation of Section 19 of the Notary Publics Act and 83 of the Evidence Act (now Section 112 of the Evidence Act 2011 (as amended).
That decision did not turn on the question whether the document was sworn to before a Commissioner of Oath but on the propriety of the oath being sworn before a Notary Public who was involved in the case and thus a violation of Section 83 of the Evidence Act, now Section 112 of the Evidence Act 2011 (as amended).
Contravention of Section 112 of the Evidence Act, as urged by the 1st and 3rd Respondent?s Counsel is thus not the issue in contention in this case.
However, even if I were to agree with the statement of the lower Court that the Statement on Oath of this witness is inadmissible for failure of the same to be taken before the Commissioner for Oaths, the exhibits tendered by this witness cannot be affected by this ?virus?, I hold. This is because, as submitted by the Appellant?s Counsel, these documents can be classified as being in support of the facts pleaded in the affidavit in support of the Originating Summons and which the lower
43
Court, as aforesaid, ordered to constitute the pleadings. Documents tendered in support of facts pleaded are admissible, I hold. See Abubakar v. Chuks (2007) 18 NWLR Part 1066 Page 386 at 403 Para C-D per Tobi JSC.
The lower Court, even assuming that the Witness Statement of DW3 was rightly expunged, was in error, I hold, to have expunged not only the evidence elicited under the cross examination of this witness but also the documents tendered by him. This is because evidence obtained under cross examination, on matters that are pleaded, that is, on matters on which issues are joined, is admissible, I hold. See Omisore v. Aregbesola (2015) 15 NWLR Part 1482 Page 1 at 281 Para D-E; (2015) All FWLR Part 813 Page 1673 at 1735 Para E-F per Nweze JSC; Buhari v. Obasanjo (2005) 13 NWLR Part 941 Page 1 at 203, Para A-C, per Belgore JSC (as he then was).
Furthermore, and as rightly submitted by the learned Silk, a party can give evidence on a point raised in his opponent?s pleading. See Egesimba v. Onuzuruike (2002) 15 NWLR Part 791 Page 466 at 499, Para G-H per Ayoola JSC; Dagaci of Dere v. Dagaci of Ebwa (2006) 7 NWLR Part 979 Page 382 at 447 Para F,
44
per Tobi JSC.
In this case the 2nd Respondent in its counter affidavit to the Originating Summons, which, by Order of Court aforesaid, constitutes the 2nd Respondent?s Statement of Defence, averred in Paragraphs 5(b)-to 12, at Page 318-319 of the Record, as follows:
?5b. That the said primary election was supposed to be conducted through direct primaries at various wards of Gezawa/ Gabasawa federal constituency.
c.That the result of the primary election was handed over to the 2nd defendant?s official for our records. now shown to me is the copy of result sheet as submitted to the 2nd defendant by the 1st defendant?s official and is hereby annexed as Exhibit INEC 1.
d. That the result sheet handed over to the 2nd defendant officials indicated that the plaintiff won the primary election as he received the highest votes.
e. That a comprehensive report of the primary election was submitted to the 2nd defendant by the team of its official that monitored the primary election. Now shown to me is the copy of the said report and is hereby annexed as Exhibit INEC 2.
6. That the 2nd defendant issued Form CF001 which
45
is the particulars of candidate sponsored by the political to the 1st defendant.
7. That said forms were to the candidates of the 1st defendant that emerged winners of its primary election to fill.
8. That after filling the said forms the candidate returned same to the 1st defendant who return same to the 2nd defendant for publication as required by law.
9. That the 1st defendant did not forward the name and form CF001 of the Plaintiff to the 2nd Defendant as its candidate for Gezawa/Gabasawa Federal Constituency for 2019 General Elections but that of the 3rd Defendant. Attached herein is the copy of Form CF001 of the 3rd Defendant.
10. That the 2nd Defendant has no power to reject name of a candidate submitted to it by 1st Defendant or any other political party.
11. That it is this Honourable Court that have (sic) the power to look into the 1st Defendant?s action and make appropriate order.?
The documents thus tendered by DW3 from INEC in support of these facts pleaded, are admissible, I hold, and stand independent of his witness statement. So also his evidence given under cross examination witness.
?
I note that
46
Exhibits D49-D50 tendered by this witness are the same as Exhibits P18-P19 series tendered by the Appellant, thereby giving the Appellant?s documents authenticity and that they were indeed obtained from the 2nd Respondent. The contention of the 1st and 3rd Respondents that these documents tendered by the Appellant have no probative value, he not being the maker, cannot thus be sustained, the same documents having been tendered by the maker, which is INEC.
Counsel to the 1st and 3rd Respondents argued before the lower Court and this Court that these documents tendered by DW3 constitute hearsay, as the witness was not at all the wards, relying on information given to him. The lower Court, in agreement, held the words in the statement to be hearsay as DW3 stated that he did not witness the election on the said date and was not there when the result of the election was compiled but that they were given to him by the official of the 1st Respondent, whose name he does not remember, and affixed his signature thereon. The Court thereupon concluded from this that ?Therefore it is my finding that the fact of the 2nd Defendant supervising the said
47
election of 3rd October, 2018 has not been proved by the Plaintiff, I so hold.?
From the records, this witness, under cross examination by the 1st and 3rd Respondent?s Counsel agreed that he was not there when the result of the said election was compiled, insisting however that the results were submitted to him at Gezawa INEC Office by the officials of the 1st Respondent.
Under cross examination by the Appellant?s Counsel, the proceedings went as follow:
?Exhibit D50 shown to the witness
I said No. Reasons-party wishes. Person declared Muhammed Mahmoud. Item D outcome of the primary accepted. I ticked YES. Exhibit 49 D50 and /Exhibit D51 were submitted to me by the party, 1st defendant. The basis of Exhibit D49 is what informed my result in Exhibit D50. I brought Exhibit D51 because it was also given to me by the party officials. I cannot pick and choose what party gave to me but have to bring everything as it is.
There are 22 wards in Gezawa/Gabasawa.
It is humanly impossible for me to be in the same wards at the time at the same place. I was not the only one appointed to monitor election on that day
48
?.I was the team leader for monitoring election in Gezawa/Gabasawa Primary Election. I visited some wards within Gezawa and then went back to my office.”
I note that this witness, as confirmed in the forms submitted by him above, stated that the results were as submitted to him by the officials of the 1st Respondent. I do not consider it fatal to his evidence that he did not recollect the official?s name.
Indeed the witness stated in the attachment to Exhibit 50 under the column for ?conduct of primary? ?party wishes?, thereafter following this up under the column for ?Name and gender of winner declared? – ?Mahmoud Mohammed?.
In a subsequent column under ?Overview? he reiterated:
?It was done as party wishes?,
He thereafter stated the scores as follows:
?1. Abdulhalim Liman. 12,245
2. Ahmad Hassan. 3,964
3. Isa
49
Hassan? 7,909
4. Mahmoud Muhammed?. 46,257
5. Nasiru Abduwa 15,491?
The document above was attached to the covering letter to Exhibit D50, which stated as follows:
?INDEPENDENT NATIONAL ELECTORAL COMMISSION
Gezawa Local Government
Kano State
Our Ref:?.. Your Ref:?.. Date:3rd October, 2018
INDEPENDENT NATIONAL ELECTORAL COMMISSION GEZAWA L.G.A
The REC INEC KANO
THROUGH:
HOD/EPM
REPORT ON THE HOUSE OF REPRESENTATIVE
As being directed to monitor and forward a report on the above subject matter sir, here in Gezawa is the same, that is the party has its candidate so all they did is submission of the list no election was conducted in our present.
?
Attached is the list of
50
the result ward by ward final or summary to this note for your information.
Best regards.
SIGNED
Muhammed Ubale
Electoral Officer
INEC KANO
CERTIFIED TRUE COPY
SIGNED
DATE: 13/11/18?
Exhibit D49, the result forwarded by DW3 is set out below:
EXHIBIT-D-49
ALL PROGRESSIVES CONGRESS KANO STATE CHAPTER
NAMES OF LOCAL GOVERNMENT
1. 2. TOTAL SCORES
GEZAWA GABASAWA SCORES IN WORD SCORES IN FIGURE
S/N NAMES OF ASPIRANT
1 ABDULHALIM LIMAN 11,263 982 TWELVE THOUSAND TWO HUNDRED AND FORTY-FIVE 12,245
2 AHMED HASSAN 2,220 1,744 THREE THOUSAND NINE HUNDRED 3,964 AND SIXTY-FOUR
3 ISA HUSSAN 2,939 4,970 SEVEN THOUSAND NINE HUNDRED AND NINE 7,909
4 MAHMOUD MOHAMMED 22,393 23,864 FORTY SIX THOUSAND TWO HUNDRED AND FIFTY-SEVEN 46,257
5 NASIRU ABDUWA 6,970 8,521 FIFTEEN THOUSAND FOUR HUNDRED AND NINETY-ONE 15,491
I believe, the misconception of the lower Court is the belief that before Exhibit D50 can be given credence, it must be shown that the witness must have physically attended all the 22 wards.
?Their role, I hold, was to monitor the elections,
51
which this witness claimed he did through their agents and also agents of the parties.
It also appears that the lower Court was treating the 2nd Respondent as if it was a contestant in the election and not an independent party statutorily mandated to monitor the activities of the political parties.
On an occasion, referring to the witness, it stated with so much vitriol, ?He shamelessly stated that he affixed his signature on the result sheet because they were submitted to him at his office at INEC office Gezawa Local Government
The witness clearly stated that the results for the election in question were submitted to him by the 1st Respondent. The fact that he did not collate or was present when the results were collated, does not invalidate the document which he signed, I hold. It also does not disprove the fact that the documents were handed to him by the 1st Respondent.
?
There is also no evidence before the lower Court that there was any other election on the day in question for which the results returning the 3rd Respondent as winner were given to him. The witness was forthright in stating that he was not present at
52
all the wards but that it was the 1st Respondent that gave him the results. His evidence is thus direct evidence of results submitted to him and which were lawfully in the custody of the 2nd Respondent, rendering the documents tendered by him admissible, I hold.
Indeed, there is no INEC document bearing the results on the date in question, apart from that submitted by this witness. Where then is the acknowledgment by INEC of the 3rd Respondent?s result?
The evidence of DW3, I hold, being an impartial umpire in these elections must be accorded higher probability, possibly than even that of the parties, where such is not shown to have been ridden with inaccuracies or untruths.
The Appellant has asked that I compare the result sheets in respect of Exhibits P18 and P19, the primaries in question, with Exhibits P13-P15, 1st Respondent?s primaries held on the same day in Dawakin Kudu/Warawa, Doguwa and Dawakin Tofa Federal Constituencies, in contradistinction with the result sheets relied upon by the 3rd Respondent, which the lower Court, it complained, refused to do. Had the lower Court done so, he argued, the falsity of the 3rd
53
Respondent?s results would have been apparent.
As submitted by the Counsel to the 3rd Respondent, it is not for this Court to engage in a general consideration of all the documents tendered by the Appellant and which were not identified specifically before the trial Judge. See Ucha v Elechi Supra.
This Court can however intervene to evaluate evidence which formed part of the proceedings before it and which the lower Court failed to evaluate. See Esuwoye v Bosere (2017) 1 NWLR Part 1546 Page 256 at 315 Para C-F per Onnoghen JSC (as he then was); Momoh v. Umoru (2011) 15 NWLR Part 1270 Page 217 at 281 Para C per Adekeye JSC; Sule v. State (2015) 10 NWLR Part 1466 Page 1 at 28 Para C-F per Ogunbiyi JSC.
From the proceedings before lower Court, the Appellant?s Counsel, in his written address before the lower Court, asked that Court to invoke the doctrine of ?evidential inference? in resolving the genuineness of the Appellant?s Exhibit P18 and P19 and P13-P15, as compared with Exhibits D20-33 and D36-47. The lower Court, however made no finding on this submission.
?
The Appellant, cross examining DW1 and DW2, 1st
54
Respondent?s Returning Officers for Gabasawa and Gezawa Local Governments respectively for the election in question, challenged them with the authenticity of the Result Sheets tendered by them. These witnesses, while admitting the presence at the venue of officers from the 2nd Respondent, and the police, agreed that these officers did not sign the result sheets.
In the words of DW1, under cross examination by Appellant?s Counsel, at Page 211 of the Record:
?I wrote Exhibit D20. The party agents signed on the column in Exhibit D20. There is no provision for the signature of the DPO, INEC officer or any other officer when I was collating these results. There were INEC officers, police officer.?
DW2 stated, also under cross examination by the Appellant?s Counsel, with regard to the authenticity of their document, as follows:
?On the day of election I was at Gezawa?I signed only one document among Exhibits D36-D47. I signed only Exhibit D36 the 3rd Defendant scored 33,682 votes on Exhibit D36?The scores 33,662 on Exhibit D36 is for Gezawa only. There is no provision of the signature of Police,
55
INEC Officer, Civil Defence or any other person on Exhibit 36. I am a returning officer. I knew the Police, Hisbah, Civil other security officers and INEC officers were at the collation centre on the date of the election
As submitted by the Appellant?s Counsel and which I find to be true, an observation of the result sheets tendered by the Appellant show columns for the signatures of the ?Chairman Local Government Congress Committee?, the ?Secretary Local Government Congress Committee?, ?INEC Officer? and ?Police Officer?.
Exhibit D20 and D36, the 1st Respondent?s Result sheets for Gabasawa and Gezawa are, however, bare of any signatures, except the signature of the Returning Officer.
There is thus a clear discrepancy between the results tendered by the Appellant and 2nd Respondent, showing the full representation of the participating officers at the said elections, and those tendered by the 1st and 3rd Respondents, which are bare of any signature apart from the Returning Officer of the 1st Respondent.
?
More damaging to the 1st and 3rd Respondents is the letter by the
56
State Chairman of the Party in response to a letter of complaint by the Appellant, tendered by the Appellant as Exhibit P12. The letter is set out below.
EXH P 12
?ALL PROGRESSIVES CONGRESS
KANO STATE HEADQUARTERS
Maiduguri Road, By Kwatari Sabo, Hotoro, Kano
TEL: 08037037190
Our Ref?.. Your Ref. Date: 26th October, 2018.
Messrs M. B Dan?azumi & Co.
Legal Practitioners,
Plot 110 New Court Road,
Kano State.
Dear Sir,
RE: WRONGFUL SUBSTITUTION OF NAME OF GABASAWA/GEZAWA CONSTITUENCY OF KANO STATE FLAG BEARER.
Your letter dated the 25th of October refers.
CA/K/137/2019 Page 43
As you are aware, the National Working Committee of the Party conducted Primary Election in Gezawa/Gabasawa Federal Constituency of Kano State on the 3rd of October 2018.
The exercise was held peacefully without rancor in the presence of relevant security agencies and other stakeholders.
The Aspirants and their total scores at the end of the primaries are as follows
57
6. Abdulhalim Liman. 12,245
7. Ahmad Hassan. 3,964
8. Isa Hassan? 7,909
9. Mahmoud Muhammed?. 46,257
10. Nasiru Abduwa 15,491
From the forgoing, the winner in the said election is your client in the person of Mahmoud Muhammed. His name alongside all other successful flag-bearers from Kano were submitted to the National Party Headquarters at Abuja.
Upon submission of same, the State chapter of the party received all the relevant forms which were handed over to the successful candidates including your client for filing and onward transmission to the headquarters on or about the 18th of October, 2018.
It is
58
surprising to hear that your client has been excluded or substituted.
The party did not, in anyway play any role in the unlawful exclusion and hereby reiterates its position that as a law abiding party such practices are abhorred.
Yours faithfully
Alhaji Abdullahi Abbas
State Party Chairman,
Kano State.?
The lower Court was silent on this damaging document.
The 1st and 3rd Respondents have however argued that it is only the Appeal Committee of the National Working Committee that can decide appeals from parties and that the Chairman Kano State Chapter is not part thereof. They also allege that the election referred to in the letter is the one conducted by the Chairman Kano Chapter and not the one conducted by the National Working Committee.
I find this latter contention contrary to the clear words in the letter which is specific that the disputed election in question was conducted by the National Working Committee where it stated:
?As you are aware, the National Working Committee of the Party conducted Primary Election in Gezawa/Gabasawa Federal Constituency of Kano State on the 3rd of October
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2018..?
It is therefore clearly not true that the election conducted which returned the Appellant as winner was by the Kano State Chapter.
In response to the first contention, Article 13.7 (iv) of the Party?s Constitution contained at Pages 604-656, in particular at 628-629 of the Record gives the State Executive Committee, whose head is the State Chairman of the Party the mandate to ?Exercise control and take disciplinary actions on all organs, officers and members of the Party and determine appeals brought before it by any member or organ of the party within the State?.
The Chairman is thus eminently qualified, I hold, to have written Exhibit P12 and an important channel in the appeal and disciplinary process. He was not a meddlesome interloper as learned Counsel would want this Court to believe.
Exhibit P12 thus constitutes an admission against the interest of the 1st and 3rd Respondents.
This term was defined in the case of Seismograph Services Nig. Ltd v Eyuafe 9-10 SC 135 at 146, per Idigbe JSC, as follows:
A statement oral or written, made by a party to a civil proceeding and which
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statement is adverse to his case is admissible in the proceedings as evidence against him of the truth of the facts asserted in the statement…?
As held by Augie JCA (as she then was) in Lateef Atobatele Ali v United Bank For Africa Plc (2014) LPELR-22635(CA)
An admission is an express or implied concession by a party of the truth of an alleged act; it is a statement made by a party that is adverse to his case. It is admissible against the maker as truth of the fact asserted and in civil cases, they are evidence of facts asserted against but not in favour of such party?It is presumed that no man would declare anything against himself unless it was true? Thus, a party is entitled to rely on his opponent’s admission as an admission against interest to defeat his opponent’s claim.?
Underlining Mine
In Onyenge v Ebere (2004) 13 NWLR Part 889 Page 1 at 39 Para F-G the Supreme Court, per Tobi JSC held an admission against interest to be ?the best evidence? of the opponent.
I accordingly hold Exhibit P12 to be an admission against the interest of the 1st Respondent and the best evidence against
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it, requiring no further proof. This is not a case requiring agents from each polling booth to give evidence, as desired by learned Counsel to the 1st and 3rd Respondents and the lower Court, but a clear admission by the 1st Respondent, confirmed by the 2nd Respondent, of the replacement of the successful Appellant by the 3rd Respondent.
By this letter, it is clearly admitted by the 1st Respondent that the Appellant was the winner at the election of the Gezawa/Gabasawa Federal Constituency of Kano State held on the 3rd of October 2018 and that while the 3rd Respondent only scored 15,491 votes, the Appellant scored 46,257 votes to emerge the winner at the elections. The letter also admitted that contrarily, the 1st Respondent, in spite of these scores, submitted the 3rd Respondent?s name to the 2nd Respondent as the party?s flag bearer. This, I hold, was contrary to Article 20 (iii) and (iv) of the 1st Respondent?s Constitution.
In spite of this admission, the Appellant, by other evidence, discharged the burden of proof placed on him.
?
Putting the evidence of the parties on an imaginary scale, the scale clearly preponderated, I
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hold, in favour of the Appellant.
The Appellant, I accordingly hold, established on a preponderance of evidence that he won the 1st Respondent?s primary election for the Member of the House of Representatives representing Gezawa/Gabasawa House of Representative Federal Constituency, Kano State at the 2019 General Elections. I accordingly resolve the 1st issue for determination in favour of the Appellant.
The 2nd issue for determination is:
Whether the 1st and 3rd Respondents had any valid defence to the Appellant?s suit as a basis for the dismissal of the Appellant?s suit and the grant of N100,000.00 cost against the Appellant?
Having resolved the 1st issue for determination in favour of the Appellant, it follows that the 2nd issue for determination must also be resolved in the Appellant?s favour.
In consequence, this appeal succeeds. The Judgment of the lower Court, coram Nasiru Saminu J delivered on 20th February 2019 is hereby set aside.
This Court, by Section 15 of the Court of Appeal Act 2004 can take whatever action the lower Court ought to have taken and make any orders necessary in resolving the
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action. See also Mainstreet Bank Capital Ltd v Nigerian Re-insurance Corporation Plc (2018) 14 NWLR Part 1640 Page 423 at 449 Para E-F per Kekere-Ekun JSC; Kayili v. Yilbuk (2015) 7 NWLR Part 1457 Page 26 at 73 Para F-G; (2015) All FWLR Part 775 Page 347 at 387 Para B-C per Ogunbiyi JSC.
The reliefs sought by the Appellant in its Originating Summons dated 30th October 2018 and filed on the same date are accordingly granted in the following terms:
1. A DECLARATION IS GRANTED that having conducted its only Primary Election in the Gezawa/Gabasawa Constituency of Kano State on the 3rd day of October, 2018, for the purpose of nominating the 1st Respondent?s candidate for the General Election into the House of Representatives slated for 16th February, 2019, or any other date for such exercise, it was mandatory for the 1st Respondent to have on the 18/10/2018, nominated and forwarded the winner of the said Primary Election, as the party?s flag bearer for the purpose of participating and contesting in the House of Representatives Gezawa/Gabasawa Constituency of Kano State Election slated for 16th day of February, 2019 in accordance with the
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Electoral Act 2010 (as amended) and the 1st Respondent?s guidelines for nomination of candidates.
2. A DECLARATION IS GRANTED that the Appellant having scored the highest number of votes and declared winner by the Electoral Officer in the 3rd October, 2018 direct Primary Election of the 1st Respondent, was entitled to have had his name submitted/forwarded to the 2nd Respondent on the 18th October, 2018 by the 1st Respondent, and he is consequently entitled to fly the 1st Respondent?s House of Representative flag for Gezawa/Gabasawa Constitutency for the 16th February, 2019 General Election in accordance with Section 87 of the Electoral Act, 2010 (as amended).
3. A DECLARATION IS GRANTED that the refusal of the 1st Respondent to submit the name of the Appellant to the 2nd Respondent on the 18th day of October, 2018, as the 1st Respondent?s flag bearer for the General Election into the Gezawa/Gabasawa Constituency of the Federal House of Representatives, slated for the 16th day of February, 2019, after winning the Primary Election is contrary to the provisions of the Electoral Act, 2010 and the 1st Respondent?s guidelines for
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nomination of candidates.
4. IT IS DECLARED that it is illegal, unlawful and contrary to both the Electoral Act, 2010 and the 1st Respondent?s guidelines for the 1st Respondent to have on the 18th October, 2018, submitted the name of the 3rd Respondent to the 2nd Respondent as the House of Representatives candidate for the Gezawa/Gabasawa Constituency in the General Election slated for 16th February, 2019, after the Appellant emerged as the winner of the House of Representatives direct Primaries conducted by the 1st Respondent and supervised by the 2nd Respondent.
5. AN ORDER of injunction is granted restraining the 2nd Respondent either by itself, officers or agents, privies, staff or through any person or persons howsoever from recognizing, accepting or dealing with the 3rd Respondent (whose name was wrongfully submitted/forwarded to it by the 1st Respondent on 18th October, 2018) as the flag bearer of the 1st Respondent in the February 16th, 2019, General Election, or any other day for such exercise, the 3rd Respondent having not emerged in accordance with the provisions of the Electoral Act, 2010 as amended.
6. AN ORDER IS GRANTED
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directing the Respondents, particularly the 2nd Respondent, to recognize forthwith, accept and deal with the Appellant as the rightful and equitable flag-bearer of the 1st Respondent in the Gezawa/Gabasawa House of Representatives Constituency of Kano State, General Election that was slated for 16th February, 2019, having emerged as the winner of the 1st Respondent?s Primary Election held on the 3rd day of October, 2018 and whose name ought to have been submitted/forwarded to the 2nd Respondent by the 1st Respondent on the 18/10/2018, in accordance with the Electoral Act, 2010 as amended.
7. An ORDER IS MADE setting aside anything done or purported to have been done by the Respondents, their agents and privies or any person or persons by whatever name called, jointly or severally, in giving effect to the wrongful submission or substitution on 18th October, 2018, of the 3rd Respondent?s name as the 1st Respondent?s candidate for election into Gezawa/Gabasawa Federal Constituency at the forth coming House of Representatives General Election scheduled for the 16th of February, 2019 or any such further date or other dates or time as was
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prescribed by the 2nd Respondent for that purpose.
8. An ORDER IS GRANTED directing the 1st Respondent to submit the name of the Appellant who got the highest number of votes at the 1st Respondent?s House of Representatives Primary Election for Gezawa/Gabasawa Constituency of Kano State, to the 2nd Respondent as the validly nominated candidate to represent the 1st Respondent at the February, 16th, 2019 General Election or such other time or date as prescribed by the 2nd Defendant for that purpose.
9. Costs of N200,000.00 are awarded in favour of the Appellant against the 1st and 3rd Respondents each.
SAIDU TANKO HUSSAINI, J.C.A.: I read in advance the draft copy of the lead judgment just delivered by my Lord, OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA, with whom I agree in toto that this appeal has considerable merit hence the appeal succeeds and same is allowed. In effect the Judgment delivered at the Court below on 20th February, 2019 dismissing the claim of the appellant is set aside. In its place is entered this Judgment and the reliefs as itemised in the lead judgment. I further abide by the order as to
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costs.
JAMES GAMBO ABUNDAGA, J.C.A.: I have had the advantage of reading in draft the judgment delivered by my learned brother, OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA. The judgment is no doubt, a painstaking exercise of the evaluation of both the documentary and oral evidence adduced at the lower Court, and the consideration of submissions of the respective learned counsel for the parties on the said evidence.
I am in total agreement with my Lord on the conclusions reached in the judgment. The lower Court was indeed in error in its finding that the claims of the Appellant before it were not proved. The evidence evinced from the record of appeal has once again brought to fore the falsehood of the claims to internal democracy among the political class. None of the political gladiators is ready to lead the fight towards the attainment of rule of law in our democratic experience. Here is a situation where a winner had clearly emerged by a wide margin through popular choice only for him to be short-changed by what was shamefully referred to as party choice. This has to stop.
Having said so much, I too
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hold that the appeal is meritorious and is allowed, the judgment of the lower Court is set aside and in its stead, judgment is entered for the Appellant.
I abide by all the consequential orders made in the lead judgment including the order as to costs.
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Appearances:
PARTIES ABSENT
Y. USTAZ USMAN SAN, Y. A. ADAMU, M.B. DAN AZUMI, ASABE AHMED, MUSTAPHA OMALE, SADIYA USMANFor Appellant(s)
TAJUDEEN SHITTU FOR 1ST RESPONDENT,
ABDURRAZAQ A. AHMED FOR 3RD RESPONDENT.For Respondent(s)
Appearances
PARTIES ABSENT
Y. USTAZ USMAN SAN, Y. A. ADAMU, M.B. DAN AZUMI, ASABE AHMED, MUSTAPHA OMALE, SADIYA USMANFor Appellant
AND
TAJUDEEN SHITTU FOR 1ST RESPONDENT,
ABDURRAZAQ A. AHMED FOR 3RD RESPONDENT.For Respondent
