SENATOR AHMAD ABUBAKAR MO-ALLAHYIDI v. BINOS DAUDA YAROE & ORS
(2019)LCN/13823(CA)
In The Court of Appeal of Nigeria
On Saturday, the 26th day of October, 2019
CA/YL/EPT/AD/SN/168/2019
RATIO
WHETHER THE COURT IS BOUND TO ACCEPT EXPERT WITNESSES OR THEIR EVIDENCE
In AKEREDOLU V. MIMIKO (Supra) the Supreme Court held that:-
The Court is not bound to accept the evidence of any expert, even one who has no disclosed incentive or motive other than helping the Court in the quest for justice. Therefore when an expert witness, by his own ipsi dixit, portrays himself as one hawking his evidence or a mercenary who would fight any man?s battle for a fee as it were, gives evidence in Court, the Court has a duty to treat his evidence with disdain it deserves. After all, as the saying goes, ?he who pays the piper dictates the tune.”
Furthermore, in ANDREW V. INEC (2018) 19 NWLR (Part 1625) 523 at 557 the Apex held:-
As was rightly in my opinion submitted by Chief Wole Olanipekun SAN, in an election matter such as the instant case, the evidence required is not the one which was picked up from perusing documents made by others. Otherwise, any one with basic comprehension/arithmetic skills would be able to testify anywhere in Nigeria. The requirement of the law is that a petitioner must call eye witnesses who were present when the entries in the forms were being made and can testify on how the entries in the documents were arrived at. It is to be noted that the appellants witnesses were not the makers of the documents in respect of which they testified and were not present when the documents were made. They were thus, not competent and/or capable of giving testimonies and explain the circumstances surrounding how the entries in the electoral documents were made. See Oke v. Mimiko (Supra).At page 919 of the Record of Appeal, PW10 during cross examination stated that he does not know who made the entries in Forms EC8A EC8D. This is a clear admission that the witness was neither the maker of the documents nor was he involved in the entries made in the documents. PER ABDULLAHI MAHMUD BAYERO, J.C.A.
LIMITATION OF SECTION 68 OF THE EVIDENCE ACT 2011 ON EXPERT WITNESSES
Section 68 of the Evidence Act 2011 which allows for the reception of evidence of experts does not cover the area of statistical analysis of election results in respect of which PW10 testified. The only areas in which experts can give evidence under the Evidence Act 2011 are:-
a) Foreign Law
b) Customary law or Custom
c) Science or Art and
d) Identity of handwriting or finger impressions. PER ABDULLAHI MAHMUD BAYERO, J.C.A.
INTERPRETATION OF STATUTE: EXPRESSIO UNIUS EST EXCLUSION ALTERIUS
It is a principle of interpretation of statutes that the express mention of a thing excludes all others which would otherwise have applied by implication with regards to same. The latin maxim expressio unius est exclusion alterius.In ANPP V. USMAN (2008) 12 NWLR (1100) 1 66 at 68 paragraphs A-E it was held that:-
……….. statistical analysis does not fall within the items contemplated under Section 57(1) of the Evidence Act requiring the Tribunal or Court to form an opinion from the parties nor does it require a statistical analysis of an expert to enable it determine whether a candidate has been duly elected by a majority of lawful votes at the election. The evidence of expert opinion on matters such as the matter at hand which does not require calling for expertise is generally excluded under the Evidence Act as it does not help the Court and could be a cause of confusion.”
The Tribunal was therefore right and on a sound footing when it refused to accord any probative value to and act on the evidence of PW10 and Exhibit AA. PER ABDULLAHI MAHMUD BAYERO, J.C.A.
COMPUTER GENERATED EVIDENCE:Whether the Tribunal erred in law to have placed no probative value on the electronic evidence tendered by the Appellant and marked as Exhibits N, N1-N33.
Section 84(4)(a) and (b) of the Evidence Act, 2011. The provision is reproduced as follows:-
In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate-
a) Identifying the document containing the statement and describing the manner in which it was produced;
b) Giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer
c) Dealing with any of the matters to which the conditions mentioned in Subsection (2) above related, and purporting to be signed by a person occupying a responsible in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence in the matter stated to the best of the knowledge and belief by the persons stating it.
PER ABDULLAHI MAHMUD BAYERO, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
SENATOR AHMAD ABUBAKAR MO-ALLAHYIDI Appellant(s)
AND
1. BINOS DAUDA YAROE
2. PEOPLE’S DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the National and State Houses of Assembly Election Petition Tribunal for Adamawa State sitting in Yola delivered on 28th August, 2019 in Petition number EPT/AD/SEN/01/2019. The Appellant who was the Petitioner before the Tribunal was the candidate sponsored by the All People?s Congress for the Adamawa South Senatorial District election held on 23rd February, 2019. At the conclusion of the election, the 3rd Respondent returned the 1st Respondent sponsored by the 2nd Respondent as winner. Aggrieved with the return of the 1st Respondent by the 3rd Respondent as winner, the Appellant by a Notice of Petition dated and filed on the 15/03/2019 approached the Tribunal wherein he challenged the return of the 1st Respondent as winner on the following grounds:-
I) ?That the 1st Respondent was not duly elected by majority of lawful votes cast at the election held on the 23rd February, 2019 in respect of Adamawa South Senatorial District of Adamawa State
?II) The election of 1st Respondent was invalid by reason of corrupt practices or
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non compliance with the provisions of the Electoral Act, 2010 (as amended). The Appellant?s grouse against the conduct of the election is in respect of Demsa, Lamurde, Numan, Guyuk and three wards in Mayo Belwa Local Government Areas. It is the contention of the Appellant in the Petition that the 1st Respondent would not have been duly elected by majority of lawful votes cast in the election if the results from the election in those Local Governments are voided on the ground of electoral irregularities and acts of non-compliance. After hearing the Petition, the Tribunal delivered a Judgment on 28th August, 2019 in which it dismissed the Petition. Dissatisfied, the Appellant filed the Petition on 15th March, 2019 challenging the said return and sought in the main for the Tribunal to set aside the election of the 1st Respondent as the senator ? elect for Adamawa South and declare the Appellant as the winner of the said election. The Tribunal delivered its Judgment on 28th August, 2019 and dismissed the Petition.
?Dissatisfied, the Appellant filed the Notice of Appeal on 10/09/2019. The Appellant?s Brief was filed on 27/09/2019 and
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distilled four issues for determination from the four grounds of appeal. The 1st Respondent?s Brief of argument was filed on 4/10/2019. The 2nd Respondent?s Brief of argument was filed on 4/10/2019 that of the 3rd Respondent was also filed on 4/10/2019. On receipt of the Respondents Briefs, the Appellant filed a composite reply Brief on 7/10/2019 to all the Respondents Briefs. In the Appellant?s Brief, the following issues were formulated for determination:-
ISSUE ONE
Whether having regards to the facts and circumstances of this case, the Lower Tribunal can be said to have rightly applied Section 68 of the Evidence Act 2011 when it refused to admit or give probative value to the evidence of PW10 and Exhibit AA? (Distilled from Grounds 1 and 2).
ISSUE TWO
Whether having regard to the provisions of Sections 83 (1) and (2) (b), 87 (a), 89 (a) (i), (ii) and (e) of the Evidence Act 2011, the Lower Tribunal can be said to have acted within the ambit of the law when it refused to accord probative value to or act on the evidence disclosed by Exhibit N, N1- N33? (Distilled from Grounds 3).
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ISSUE THREE
Whether upon a calm evaluation of the totality of the evidence adduced by the Appellant and elicited from 1st Respondent?s witnesses under cross examination, it can be said that the learned trial judges rightly held that the Appellant had not established his case so as to be entitled to judgment. (Distilled from Grounds 5, 6, 7, 8, 12 and 13).
ISSUE FOUR
?Whether upon a community reading of Section 49 of the Electoral Act 2010 as amended and paragraph 10, 11, 12, 13, 28(b) (iv) of the 3rd Respondent?s Regulations and Guidelines for the Conduct of Election (Exhibit P) and same juxtaposed with Exhibit N, N1-N33 and Exhibit M, it can be said that the Appellant did not establish irregularities and corrupt practices. (Distilled from Grounds 4, 9, and 11).
On issue one, counsel submitted that upon a calm consideration of the totality of the evidence of PW10 and Exhibit AA which was termed ?Report of the Inspection/Statistical Analysis of Accreditation Data in Forms EC8A(1), EC8B(1), EC8C(1) EC8D(1), Voters Registers and Polling Unity by Polling unit accreditation report used in the 23rd February, 2019 Adamawa South Senatorial District
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Election? (Find same at pages 735 ? 755 volume 2 of the printed Record of Appeal) this Honourable Court will find that decision of the lower Tribunal rejecting the evidence of PW10 and the said Exhibit AA has no legal basis and ought to be set aside. That it is not in doubt that the law is settled that the correct test of the relevance of expert opinion is whether the witness is specially skilled in the particular field in which his testimony/opinion becomes material and where so found, evidence of his qualification as an expert in the said field becomes vital, admissible and relevant. He cited ANPP V. USMAN (2008) 12 NWLR (Pt. 1100) and AIGBADION V STATE (1999)1 NWLR (Pt. 586) 284 in support.
That in ANPP v. USMAN (SUPRA) Page 73 Paragraph E ? G it was held that a party calling an expert has the duty to elicit from him in the witness box evidence of the basis of his claim to be an expert in any field he professes and there is a duty on an opposing counsel to cross-examine the expert witness effectively in order to raise doubt as to the witness expertise. That contrary to the holding of the lower Tribunal, this Honourable Court will find that in the cause of his evidence-in-chief, PW10 tendered in evidence Exhibits Z, ZA to ZD. Of particular importance in proof of his qualification to render statistical analysis (in Exhibit AA), is Exhibit Z which is a Yaba College of Technology Degree in Statistics. That this piece of evidence was glossed over by the Lower Tribunal in preference to Exhibit ZC- MBA of School of Business Management. We submit that having limited their finding of PW10?s requisite qualification to his MBA Degree in Business Management rather than Exhibit Z which is his Degree in Statistics which was in issue in his evidence and in his report, this created the wrong impression in the minds of the learned Tribunal judges that a qualification in PW10?s MBA of School of Business Management rendered PW10 as not qualified or competent to render statistica
