PEOPLES DEMOCRATIC PARTY & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR
(2011)LCN/4954(CA)
In The Court of Appeal of Nigeria
On Friday, the 2nd day of December, 2011
CA/J/EP/HA/196/2011
RATIO
NON-COMPLIANCE OF A MANDATORY PROVISION : CONSEQUENCE OF NON-COMPLIANCE WITH THE PROVISIONS OF THE MANUAL FOR ELECTION OFFICIALS 2011
On the 1st issue raised, it is pertinent to state that the provision of the Manual for Election Officials 2011 lays down that requirement of signing and stamping of election results is mandatory. It is trite therefore that where there is the failure to comply with a provision which is mandatory same would anticipate and be followed by sanction. PER CLARA BATA OGUNBIYI, J.C.A.
PRODUCTION OF ORIGINAL COPY OF THE SIGNED AND STAMPED COPY OF ELECTION RESULT: EFFECT OF FAILURE TO PRODUCE THE ORIGINAL COPY OF THE SIGNED AND STAMPED COPY OF AN ELECTION RESULT
On the 2nd issue raised, Exhibit A was the result sheet of the election form the Angwan Baraya Mission II polling unit in Jannarex Ward which was a carbon copy. To ascertain the authenticity, as to whether it was signed and stamped, the original copy ought to have been produced. This the Petitioners failed to produce despite PW2 who testified in their favour. They cannot therefore be heard for the lapses created by them. The failure to produce raises a presumption against them that production would have been unfavourable. PER CLARA BATA OGUNBIYI, J.C.A.
HEARSAY EVIDENCE: WHETHER THE EVIDENCE GIVEN BY A PARTY’S WITNESS IN RESPECT OF A POLLING UNIT OUTSIDE HIS OWN UNIT WOULD AMOUNT TO A HEARSAY EVIDENCE
Issue 3 relates to the evidence of PW7 which the Tribunal held amounted to a hearsay evidence. The said witness was greatly relied upon by the Petitioners at the trial in proof of the petition. His testimony under cross examination for instance had this to say:” It is true there was restriction in movement on the day of the election. I did not go beyond my polling unit as a law abiding citizen. I only knew what happened in my polling unit.” (Emphasis is mine). This evidence is very clear without more that the witness was only confined to his polling unit and no more. It therefore goes without saying that the witness could only give credible evidence in respect of his own polling unit and any evidence given in respect of a polling unit outside his own would amount to a hearsay evidence having been heard from a different source. The Tribunal was certainly on the right footing in holding that the evidence of PW7 as regards the conduct of the election in other polling unit only amounted to a hearsay and therefore in admissible. The cases of Buhari v. Obasanjo (2005) All FWLR (Pt. 273) 1 is evident in support amongst others. It follows therefore that all the references made by PW7 to documents which were neither prepared by him nor was he present when they were prepared would not be credible and admissible. See the case of Mark v. Abubakar where it was held at pages 184-185 that: “Any evidence given by a person who is not the maker of the document nor was he present when the document is prepared will amount to documentary hearsay evidence.” Suffice to say therefore that Evidence by PW7 both oral and documentary are subject to the authority under reference (supra). On the said issue, the Tribunal I hold was right in holding the evidence of PW7 as hearsay. PER CLARA BATA OGUNBIYI, J.C.A.
JOINDER OF NECESSARY PARTIES TO AN ELECTION PETITION: WHETHER PERSONS WHO ARE NOT INEC STAFF COULD BE JOINED AS NECESSARY PARTIES IN AN ELECTION PETITION
The provision of section 137(3)(a) and (b) of the Act is limited to cover only INEC and its staff related persons. The petition at hand on the pleadings did make serious criminal allegations against the said two persons who were non INEC staff. The constitutional provision is very clear and explicit on the principle of fair hearing wherein a person should not be condemned in his absence. This is more so where the allegation is criminal in nature. The joinder of the said two persons was very necessary as it would infringe against their fundamental constitutional rights to fair hearing. Needless to say that they needed to defend themselves and should under no circumstance be shut out. The learned Tribunal was again, I hold, certainly on a right footing in taking the steps it did. In other words by striking out the offending paragraphs 21 and 23 of the petition. PER CLARA BATA OGUNBIYI, J.C.A.
Justice
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
Justice
1. PEOPLES DEMOCRATIC PARTY
2. ISA SHIKBEN SHUAIBUAppellant(s)
CLARA BATA OGUNBIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the National and State House of Assembly Election Tribunal sitting in Jos and delivered on the 29th September, 2011. The 1st and 2nd Appellants herein filed a petition on 18th day May, 2011, seeking to have the 2nd Appellant declared as the winner of the election held on the 26th day of April, 2011 into the Plateau State House of Assembly representing Mangu North-East Constituency of Plateau State.
In its judgment delivered on the 29th day of September, 2011, the Honourable Tribunal upheld the election and return of the 2nd Respondent herein and dismissed the petition. See page 667-708 of the record of Appeal.
Dissatisfied with the judgment, the Appellant herein filed their notice and grounds of appeal on the 18th day October, 2011. See pages 709-716 of the Record of Appeal.
SUMMARY OF FACTS
On the 26th day of April, 2011, General Election was conducted by the 1st Respondent, into the house of Assembly representing Mangu North-East Constituency of plateau State. Upon conclusion of the said elections, the 2nd Respondent was declared and returned as the winner of the election with 18,725 votes as against the 2nd Appellant’s 16,315 votes.
The 1st and 2nd Appellants, the Petitioners at the Tribunal, being dissatisfied with the declaration and return of the 2nd Respondent as winner of the election filed their petition on 18th May, 2011, seeking 7 reliefs, essentially to have the 2nd Appellant declared and returned as the winner of the election. See page 12-66 of the Record Appeal.
The said petition was served on the all the Respondents. The 1st Respondent filed its reply on 7th June, 2011. See pages 71-123 of the Record of Appeal. While the 2nd Respondent filed his reply to the petition on the 10th day of June, 2011. See pages 137-407 of the Record of Appeal.
Issues having been effectively joined, the petition was set down for hearing. The Appellant called 7 witnesses and tendered some documents in proof of their petition. The 2nd Respondent called 12 witnesses and also tendered some documents. The 1st Respondent during trial did not call any witness.
After the close of evidence parties filed their various final written addresses and the petition adjourned for judgment. Judgment was delivered on 29th September, 2011, wherein the 2nd Respondent was declared the winner of the election. Being dissatisfied with the decision of the Tribunal, the Appellants herein have filed their notice and grounds of appeal.
For the purpose of arguing this appeal, the Appellants adopt the notice and ground of appeal filed on the 18th day of October, 2011, and have distilled the 7 issues being argued in the Appellants’ brief of argument there from.
Being dissatisfied with the judgment delivered on the 29th September, 2011, wherein the learned Tribunal dismissed the petition, the Appellants have now appealed to this Court vide noticed and grounds of appeal filed 18th October, 2011 and containing eight grounds of appeal at pages 709-716 of the record of appeal. The record of appeal was served on the Appellant on the 25th October, 2011. Briefs were accordingly exchanged between parties in accordance to the Practice Directions by the President of the Court of Appeal. While the Appellants’ brief was dated and filed 2nd November, 2011, that of the 2nd Respondent was dated and filed 11th November, 2011. A reply brief was further filed on behalf of the Appellants on the 14th November, 2011. No brief was however filed on behalf of the 1st Respondent.
At the hearing of the appeal on the 25th November, 2011, both learned senior counsel representing the Appellants and 2nd Respondent adopted and relied on their respective briefs of arguments and also adumbrated on same. While it was submitted on behalf of the Appellants that the appeal be allowed, therefore, the 2nd Respondent’s senior counsel urged that same be dismissed. The learned senior counsel Mr. O. I. Olorundare while leading his brother Mr. S. T. Ologunorisa SAN and in company of other counsel adumbrated on their brief and submitted on paragraphs 8-31 of the petition which he argued are allegations of civil nature and which standard of proof required is on the preponderance of evidence as against criminal allegations which proof is beyond reasonable doubt. The counsel therefore urged this Court on the totality to allow the appeal, set aside the judgment of the trial Tribunal and declare the 2nd Appellant as the candidate returned as duly elected at the said election therefore.
On behalf of 2nd Respondent the learned senior counsel Mr. Solomon E. Umoh also in company of his juniors centered their clients’ cases as bordering on five essential points. In other words the learned counsel posed a question as to whether non signing or non stamping of a result could constitute an electoral offence under the Electoral Act. The second point raised relates to whether the carbon copy of the result was sufficient for the Tribunal to have arrived at a compelling conclusion that there was no stamping of the result beyond reasonable doubt.
Thirdly, whether or not the Tribunal was correct in considering the evidence of PW7 as hearsay as it affects other polling units save his own where he voted and spent the whole day. In other words that his evidence relating other units was regarded as hearsay with the exception of his own unit. The learned senior counsel also considered the legal effect of the Tribunal in striking out the two paragraph 21 and 23 the petition for non joinder of two persons who were indicted and not made parties to the petition. Finally, the fifth and last point raised related the rejection document Form EC8B (i). On the totality therefore, the learned senior counsel urged that the appeal be dismissed as lacking in merit.
From the eight grounds of appeal both parties raised seven issues for determined and which are similar in nature. The reproduction of the issues formulated by the Appellants are as follows:
1. Whether the allegation of non-signing and non-stamping of the election results are criminal allegation such that the applicants were required to prove same beyond reasonable doubt. (GROUND 1).
2. Having tendered a carbon copy of election result given to the Appellants’ agent, were the Appellants under obligation to tender the original copy of Exhibit A, the Polling Unit result sheet in Gindiri Ward II. (GROUND 2).
3. Was the honourable Tribunal right when it held that the evidence of PW1 and PW7 are hearsay, unreliable and inadmissible? (GROUNDS 3 and 6).
4. Were the Appellants required in law to plead and lead evidence on two sets of results in order result to succeed on Ground 2 of their Petition (GROUND 4).
5. Whether the Tribunal was right when it struck out paragraphs 21 and 23 of the Petition. (GROUND 5).
6. Whether the Tribunal was right when it refused to admit Form EC8B (i) for Gindiri Ward II in evidence (GROUND 7).
7. Whether the Appellants, as Petition proved their petition and are therefore entitled to Judgment (GROUND 8).
Also on behalf of the 2nd Respondent the seven formulated are as follows:
1. Was the Tribunal right when it held that the criminal allegations made by the petitioner which included the non signing and stamping of election results at the ward level had not been proved beyond reasonable doubt. (Distilled from Ground 1).
2. Was Exhibit A in its peculiar state as a carbon copy enough to form the basis of a finding that the results it reflected was not signed and stamped without the original copy and that the non-stamping and signing of same substantially affected the outcome of the election. (Distilled from Ground 2).
3. Was the Tribunal right in not attaching any weight to the evidence of PW7 as regards the conduct of the election in other polling units save his own polling unit alone as being hearsay and consequently inadmissible. (Distilled from Ground 3).
4. Did the petitioners prove the 2nd ground of the petition as required by law. (Distilled from Ground 4).
5. Was the Tribunal right when it struck out paragraphs 21 and 23 of the petition for failure to join necessary parties to the petition? (Distilled from Ground 5).
6. Was the Tribunal right when it rejected Form EC8B (i) in evidence (Distilled from Ground 7).
7. Did the Petitioner prove its petition as required by law. (Distilled from Ground 6 and 8).
I would however consider that the appeal be disposed off on five main issues as follows:
1. Whether the tribunal was right when it held that the criminal allegations made by the petitioner which included the non signing and stamping of election results at the ward level had not been proved beyond reasonable doubt.
2. Whether Exhibit A being a carbon was enough to form the basis of a finding that the results it reflected was not signed and stamped without the original copy and whether the non-stamping and signing of same substantially affected the outcome of the election.
3. Whether the Tribunal was right when it held that evidence of PW7 as hearsay and therefore inadmissible as regards the conduct of the election in other polling units save his own polling unit.
4. Whether the tribunal was right when it struck out paragraphs 21 and 23 of the petition for failure to join necessary parties to the petition?
5. Whether the tribunal erred in rejecting Form EC8B (i) in evidence.
On the 1st issue raised, it is pertinent to state that the provision of the Manual for Election Officials 2011 lays down that requirement of signing and stamping of election results is mandatory. It is trite therefore that where there is the failure to comply with a provision which is mandatory same would anticipate and be followed by sanction.
Consequently, and with the allegation being criminal in nature and in the absence of proving same, the Hon. Tribunal was therefore right when it held that the proof which was beyond reasonable doubt had fallen short of expectation. This is more so and confirming the Tribunals findings in view of Part VIII Sections 117-132 of the Electoral Act, 2010 as amended. The authority in point is the case of Kallamu v. Gurin (2003) 16 NWLR (Pt. 847) 498. It is pertinent to state further that the 2nd Respondent in his reply did totally deny the allegations made by the Petitioners and hence the burden of proof placed upon the Petitioners beyond reasonable doubt. This burden having not been discharged, the said issue would be resolved against the Appellants.
On the 2nd issue raised, Exhibit A was the result sheet of the election form the Angwan Baraya Mission II polling unit in Jannarex Ward which was a carbon copy. To ascertain the authenticity, as to whether it was signed and stamped, the original copy ought to have been produced. This the Petitioners failed to produce despite PW2 who testified in their favour. They cannot therefore be heard for the lapses created by them. The failure to produce raises a presumption against them that production would have been unfavourable. The Evidence DW12 who served as DPP agent at the same unit as against PW2 was to the effect that the election at the said unit was peaceful without any violence. In the absence of cross examination of the witness DW12, his evidence should be accorded credibility over and above that of PW2 in respect of the Angwan Baraya Mission II polling unit.
The said issue 2 is also resolved against the Appellants.
Issue 3 relates to the evidence of PW7 which the Tribunal held amounted to a hearsay evidence. The said witness was greatly relied upon by the Petitioners at the trial in proof of the petition. His testimony under cross examination for instance had this to say:
“It is true there was restriction in movement on the day of the election. I did not go beyond my polling unit as a law abiding citizen. I only knew what happened in my polling unit.” (Emphasis is mine).
This evidence is very clear without more that the witness was only confined to his polling unit and no more. It therefore goes without saying that the witness could only give credible evidence in respect of his own polling unit and any evidence given in respect of a polling unit outside his own would amount to a hearsay evidence having been heard from a different source. The Tribunal was certainly on the right footing in holding that the evidence of PW7 as regards the conduct of the election in other polling unit only amounted to a hearsay and therefore in admissible. The cases of Buhari v. Obasanjo (2005) All FWLR (Pt. 273) 1 is evident in support amongst others. It follows therefore that all the references made by PW7 to documents which were neither prepared by him nor was he present when they were prepared would not be credible and admissible. See the case of Mark v. Abubakar where it was held at pages 184-185 that:
“Any evidence given by a person who is not the maker of the document nor was he present when the document is prepared will amount to documentary hearsay evidence.”
Suffice to say therefore that Evidence by PW7 both oral and documentary are subject to the authority under reference (supra).
On the said issue, the Tribunal I hold was right in holding the evidence of PW7 as hearsay.
On this score, I therefore resolve also that issue three be against the Appellants.
Issue four was the propriety of the Tribunal in striking out paragraphs 21 and 23 of the petition for non joinder of necessary parties. The two persons Fwangehi and Umaru Jibrin who were accused by the petitioners in paragraphs 21 and 23 of the petition were neither shown to be INEC officials, its staff, nor other persons engaged by INEC in the conduct of the election. The provision of section 137(3)(a) and (b) of the Act is limited to cover only INEC and its staff related persons. The petition at hand on the pleadings did make serious criminal allegations against the said two persons who were non INEC staff. The constitutional provision is very clear and explicit on the principle of fair hearing wherein a person should not be condemned in his absence. This is more so where the allegation is criminal in nature. The joinder of the said two persons was very necessary as it would infringe against their fundamental constitutional rights to fair hearing. Needless to say that they needed to defend themselves and should under no circumstance be shut out. The learned Tribunal was again, I hold, certainly on a right footing in taking the steps it did. In other words by striking out the offending paragraphs 21 and 23 of the petition. The said issue is also resolved against the Appellants.
The last issue questions the propriety of the Tribunal rejecting Form EC8B (i) in evidence. The allegation relates to falsification of figures in the said Forms EC8A(i) and EC8B(i) and the evidence of PW3 was relied upon in proof thereof. PW6 also testified that elections at the Kasuwa I polling unit was characterized by malpractices and irregularities, intimidation and thus the entries in the said Forms EC8A(i) and EC8B(1) differ. The said witness gave different and contradictory evidence. For instance and on one hand, in this evidence in chief relating Buhari Sadiq he said he was one of the supporters of the 2nd Respondent and engaged in multiple voting at the unit.
On the other hand however and under cross examination, he contradicted his earlier evidence wherein he said that it was one Buhari Muhammed. The evidence of this witness cannot therefore be credible in proving Form EC8B(i). This is more so when his evidence weighed against that of DW10, Zilli Tanimu who testified to the fact that the election was peaceful, free and fair in substantial compliance with the provisions of the law. The said witness DW10 was not contradicted during cross-examination. The Tribunal was therefore right in holding that the credible evidence of DW10 certainly created further doubt as to the complaints made in the testimony of PW6. The learned Tribunal I hold and contrary to the Appellants contention, did not err in rejecting Form C8B(1) in evidence. I therefore so hold.
The said issue is also resolved against the Appellants.
On the totality of this appeal I therefore hold that same is devoid of any merit and is hereby dismissed. In its stead, I make an order upholding and confirming the judgment of the trial Tribunal delivered on the 29th September, 2011. An order is therefore made declaring Ladan Abdullahi Garkuwa, the 2nd Respondent as having been duly elected as the winner of the election held on the 26th day of April, 2011 into the Plateau State of Assembly representing Mangu North-East Constituency of Plateau State; the said election having been held in substantial compliance with the provisions of the Act.
There shall be no order made as to cost but each party is to bear his own costs of the appeal.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have been privileged to have had a preview of the judgment just delivered by my learned brother, Clara Bata Ogunbiyi, JCA. His Lordship adequately, brilliantly and succinctly dealt with all the issues formulated for determination in this appeal. This has been done to such an admirable extent that I have nothing gainful more to add.
I agree with the lucid reasoning and conclusion that the appeal is devoid of any merit, I also dismiss the appeal. I abide by all the consequential orders made in the said lead judgment of my learned brother, Ogunbiyi, JCA. inclusive of the one regarding costs.
REGINA OBIAGELI NWODO, J.C.A.: I agree
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Appearances
O. I. Olorundare, SAN, S. T. Ologuorisa, SAN with S.G. Odey Esq., Daniel Gopep Esq, P, Ninmol Esq, Benjamin Ishaku, Esq. Joshua John Esq, A. M. Umar Esq, A. T. Balogun Esq., P.A. Ubeng Esq, D. P. Dusu Esq and M. Ahupa for Esq.For Appellant
AND
S. E. Umoh SAN with C. E. Atsenokha Esq. A. Joseph Esq., D. N. Gwaison Esq., M. W. Hamani (Mrs.), O. O. Agu Esq., E. B. Ede Esq., N. P., Mwansat Esq, A. Yusuf Esq. and B. D. Daze for the Respondent.For Respondent
