UMAR ABDULLAH v. UMAR AHMED SULEIMAN & ORS.
(2011)LCN/4853(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of October, 2011
CA/J/EP/HR/172/2011
RATIO
INTERPRETATION OF STATUTE : INTERPRETATION OF SECTION 285 (1) OF THE 1999 CONSTITUTION WITH RESPECT TO THE JURISDICTION OF THE NATIONAL AND STATE HOUSES OF ASSEMBLY ELECTION TRIBUNALS
It is pertinent to restate that the jurisdiction of a court, of course inclusive of the Tribunal, is not inferred or imagined but obviously statutory. It is elementary to state therefore that the National and State Houses of Assembly Election Tribunals are establishment of the Constitution by the provision of section 285 of the 1999 Constitution as amended. The original jurisdiction conferred thereon the Tribunals is so exclusive and specific to the exclusion of any other court. The provision of Section 285(1) among others states that the Tribunal: “shall to the exclusion of any Court or Tribunal, have original jurisdiction to hear and determine petitions as to whether – (a) any Person has been validly elected as a member of the National Assembly; or (b) any Person has been validly elected as member of the House of Assembly of a State…” I hasten quickly to add and emphasize that the specific nature of this jurisdiction only avails to the Tribunals established under the said constitutional provision which is special and exclusive for the purpose for which it is established. It is not in other words an open ended jurisdiction available to other Tribunals which do not find their anchor under or within the purview of Section 285 of the said constitution. PER CLARA BATA OGUNBIYI, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 138(1)(A) – (D) OF THE ELECTORAL ACT AS REGARDS GROUNDS ON WHICH AN ELECTION PETITION MAY BE PRESENTED
The Electoral Act which is a legislation subject to the constitution stipulates that in order to validly present a petition, it must be in respect of an undue election or undue return. The complaint from such returns pre-supposes that it must arise from one or more of the grounds set out in Section 138(1)(a) – (d) of the Electoral Act. I would for ease of reference reproduce the said subsection which specifies grounds of petition: “”138. (1) An election may be questioned on any of the following grounds, that is to say – “(a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election; (b) that the election was invalid by reason of corrupt practices or non compliance with the provisions of this Act; (c) that the Respondent was not duly elected majority of lawful votes cast at the election; or (d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election. PER CLARA BATA OGUNBIYI, J.C.A.
QUALIFICATION TO CONTEST IN AN ELECTION: WHETHER QUALIFICATION TO CONTEST AN ELECTION IS A CONDITION PRECEDENT TO PARTICIPATE IN THE ELECTION
… in the authority of the case of Ijiogu v. Irora (2009) 4 NWLR (Pt.132) 513 at 561 this Court had this to say: “Qualification to contest an election is a condition precedent to participate in the election as a candidate has to be qualified as required by the relevant laws before he can contest an election at which votes would be cast for him. Once a candidate is found not to have been legally and lawfully qualified to have contested an already conducted election, the election is that, in law that candidate did not participate in or contest the said election.” Relevant also are section 65 and 66 of the Constitution 1999 which are clear cut and unambiguous on the imperative requirement stipulating the required qualifications to contest elections of this nature. The said sections come within the qualifications for membership of National Assembly and Right of attendance. Sub-section (2) of Section 65 has this to say for instance: “2′ A person shall be qualified for election under subsection (1) of this section if (a) he has been educated up to at least school certificate level or its equivalent” Section 66 (1) again on disqualification is confirmative wherein if says: ‘(1) No person shall be qualified for election to the Senate of the House of Representatives if – …………………… (h) he has presented a forged certificate to the Independent National Electoral Commission.” Deducing from the foregoing provisions of the law, once on election petition is based on Section 138 (1)(a) of the Act (supra) it raises the issue of qualification or disqualification under Section 65 or 66 of the Constitution. This certainly comes within the firm jurisdictional powers of the Tribunal. See the case of Argungu v. Argungu (2010) All FWLR (Pt.510) 681 at 698. PER CLARA BATA OGUNBIYI, J.C.A.
BURDEN OF PROOF: NATURE OF THE BURDEN OF PROOF IN CIVIL CASES
It is trite law that the burden of proof in civil cases is on the balance of probability and the onus is on the petitioner who is the 1st Respondent before us to prove his case. The burden of proof is not beyond all reasonable doubt and it is not also open to the petitioner at the trial to rely on the weakness of the defence in proof of his case. Whether the petitioner however discharges the 1st burden of introducing his case and casting doubt on the Respondent which would warrant the shifting of the burden onto the Respondent to disprove, it would therefore behoves that the burden would shift from the Petitioner. The burden in other words is not static unlike in criminal cases wherein the prosecution is saddled with the burden of having to prove the accused guilty of all ingredients alleged, in other words beyond all reasonable doubts. PER CLARA BATA OGUNBIYI, J.C.A.
BALANCE OF PROBABILITY: WHAT THE CONCEPT OF BALANCE OF PROBABILITY ENTAILS
The concept of balance of probability necessitates on imaginary scale as it is predicated on perception. This is not dependant on the number of witnesses needed in proof of on assertion. In other words, proof on balance of probability is not of a mathematical calculations or numbers. Rather it is the credibility of the witness/witnesses and the evidence adduced which must be worthy of truth and to be believed having regard to the situational circumstance proceed before the Court of the material time which is needing to be established. It is for instance sufficient that one witness would serve as a proof. It is the quality and not a game of numbers that should count. In other words the question that should serve the deciding factor is whether the witness’s evidence is believable. The credit worthiness is paramount wherein a witness should by his evidence show that he is possessed of the fact of knowledge of that to which he is testifying to. He should testify to the truth of what he, actually and personally knows, saw, and perceived. PER CLARA BATA OGUNBIYI, J.C.A.
JUSTICES:
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
UMAR ABDULLAH – Appellant(s)
AND
1. UMAR AHMED SULEIMAN
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. CONGRESS FOR PROGRESSIVE CHANGE (CPC)
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
5. RESIDENT ELECTORAL COMMISSIONER, GOMBE STATE
6. THE RETURNING OFFICERS, DUKKU-NAFADA FEDERAL CONSTITUENCY – Respondent(s)
CLARA BATA OGUNBIYI, J.C.A. (Delivering the Leading Judgment): By an Election Petition dated and filed on 16th May, 2011 the 1st and 2nd Respondents (then as Petitioners) jointly claimed against the Appellant (then as 1st Respondent) as well as the 3rd to the 6th Respondents of page 7 of the record as follows:
1. AN ORDER of the Honourable Tribunal declaring the 1st Respondent not qualified to contest the elections into the Gombe State Dukku/Nafada Federal Constituency, Federal House of Representatives.
2. AN ORDER setting aside the return of the 1st Respondent as elected member of the Federal House of Representatives representing Dukku/Nafada Federal Constituency of Gombe State for non-compliance with the Electoral Act 2010.
3. AN ORDER of the Honourable Tribunal nullifying the election into the Dukku/Nafada Federal Constituency Gombe State held on 26th April 2011.
4. AN ORDER directing the 3rd – 5th Respondent to conduct a fresh election into the Dukku/Nafafa Federal Constituency, Gombe State with the petitioners participating.
The grounds upon which and predicating the petition are twofold and which are evidenced of page 3 of the record and reproduced as follows:
i. That the 1st Respondent was at the time of the election not qualified to contest the election into the Dukku/Nafada Federal Constituency of the House of Representatives held on 26th April, 2011.
ii. That the election and return of 1st Respondent as winner of the election into the House of Representatives for Dukku/Nafada Federal Constituency was invalid by reason of non compliance with the provisions of the Electoral Act, 2010 and the Constitution of the Federal Republic of Nigeria.
The facts in support of the grounds are relevant and clearly spelt out at pages 4 – 7 of the record which reproduction of same is of paramount relevance:
i. That one of the pre-requisite for eligibility of any candidate to contest election into elective office by the 3rd Respondent is the sworn affidavit by the candidate provided in respondent Independent National Electoral commission Form C.F.001 (Affidavit in support of Personal particulars of persons seeking election to the office/Membership of…) accompanied with copies of the necessary credentials of the candidate.
ii. That the said form (affidavit must be sworn on oath declaring that the facts contain therein to be true and correct.
iii. That the 1st Respondent claimed in his form (affidavit) aforesaid that he attended Dukku West Primary school between 1977 and 1983. The Petitioners shall at the hearing of this petition prove that the 1st Respondent did not attend the said school as claimed.
iv. That by the form (affidavit) filled by 1st Respondent and sworn to on 14th January, 2011 at Abuja the 1st Respondent deposed that he attended Government Day Secondary School Malumfashi – November/December, 2008 and also college of Administrative and Business Studies, Potiskum 1991. The copy of the said form (affidavit) and its attached credentials are hereby pleaded and the 3rd Respondent is put on notice to produce the form (affidavit) and copies of the credentials at the hearing of this petition.
v. That the 1st Respondent did not attend the said schools and the certificates presented to the 3rd Respondent are forged.
vi. That on 21st February 2011 Nasiru Abdullahi Dukku, Auwalu Isah Dukku and Gambo Mohammed Dukku all indigenes of Dukku in Gombe State, through their Solicitors, Messrs M. A. Galaya & Co. complained to the National Chairman of the 3rd Respondent through the 4th Respondent alleging that the 1st Respondent supplied false information to the 3rd Respondent. The letter of complaint is hereby pleaded and the 3rd Respondent is put on notice to produce the original at the hearing of this Petition.
vii. That a copy of the complaint was served on the Commissioner of Police Gombe State Police command and the State Director, State Security Services, Gombe State.
viii. That in the course of investigating the allegations the commissioner of Police through the Criminal Investigation Department, on 23rd March 2011 wrote a letter with reference number CR/3000/GMS/X/VOL.18/115 to the College of Administrative & Business Studies, Potiskum, Yobe State seeking for verification of certification in respect of Umaru Abdullahi Dukku’. The said letter is hereby pleaded.
Specifically and of uttermost relevance is paragraph 8(v) of the facts in support of the grounds of the petition which same questions the qualification of the 1st Respondent wherein the Petitioners allege that he did not attend the schools as claimed and that the certificates presented by the said Respondents to the 3rd Respondent are forged.
The Appellant who was then a Respondent filed a preliminary objection in respect of the said petition wherein he sought for an order that the petition should either be struck out or dismissed in limine.
At the hearing of the petition, the learned Tribunal having regard to the entire case before it and taking into consideration the contention of all Counsel, formulated two issues for determination of Page 307 wherein it questioned itself as follows:
“1. Whether this Honourable Tribunal has jurisdiction to entertain the Petition.
2. Whether the 1st Respondent was at the time of the election qualified to contest election into the Dukku/Nafada Federal Constituency of Gombe State held on 26th April 2011.”
The learned Tribunal in summary and having considered the two issues raised found merit in the petition and upheld same.
In other words and while holding that it had jurisdiction to entertain the petition it went further to make the following order of Page 328 of the record wherein it said:
“We declare null and void the election of the 1st Respondent Umar Abdullahi as member representing Dukku/Nafada Federal Constituency of Gombe State as he was not qualified to contest same. We set aside that return and order the 3rd – 5th Respondents to conduct fresh elections into that constituency within three months from the date of this judgment.”
Obviously and being dissatisfied with the judgment of the learned Tribunal, the Appellant has now appealed against same to this court by filing a notice of appeal on the 7th September, 2011 and dated the same day. The said notice contains nine grounds of appeal with their respective particulars supplied. This is evidenced at pages 331 – 336 of the record of appeal. The record, entering this appeal in this court was transmitted on the 19th September, 2011. The Appellant’s brief is dated 27th September, 2011 and filed the same day.
On the 19th October, 2011 the hearing of this appeal, the learned senior Counsel Mr. A.O. Okeaya-Inneh in company of several other counsel, adopted and relied on the said brief of arguments for purpose of establishing the authenticity and merit of the appeal. The Senior Counsel while elucidating his arguments expatiated at great extent on issues 1, 2, and 3 which deal exclusively on the jurisdiction of the Tribunal, which counsel argued could be compartmentalized into two segments. In other words, that while on the one hand issue 1 and 2 relating qualification are pre-election matters: the 2nd aspect of jurisdiction on the other hand has been argued in issue 3 wherein the judgment of the Tribunal was argued as unconstitutional for lack of quorum. Learned senior Counsel on the totality impressed upon the Court to allow the appeal, set aside the judgment of the Tribunal and return the Appellant as the rightful elected candidate into the office.
Mr. Ayodele SAN also in company of Chief C. Ubale represented the 1st Respondent and adopted and relied on the said Respondent’s brief dated and filed 4th October, 2011. The learned senior Counsel, on the absence of quorum alleged by the Appellant submitted and argued same having been overtaken by Section 285(4) of the Constitution as amended. On the merit of the petition learned Counsel re-iterated that the Tribunal did properly evaluate the evidence and therefore urged before us that the appeal be dismissed while the judgment of the Tribunal should be affirmed.
Mr. Z. M. Umar Counsel representing the 2nd Respondent also adopted and relied on their brief dated and filed 4th October, 2011. Counsel proceeded to adopt the submission by the learned senior Counsel on behalf of the 1st Respondent and urged also that the appeal be dismissed.
Mr. Adamu Kuna was a Counsel representing the 3rd Respondent and in the absence of any brief filed on behalf of his client, the Counsel did not make any submission.
Mrs. Halita Raje on behalf of the 4th – 6th Respondents in adopting and relying on their brief of argument dated 4th and filed 5th October, 2011 elaborated on same like the other counsel representing the Respondent counsel also urged in favour of allowing the appeal.
The court following the submission by all counsel for the parties reserved judgment in this appeal in accordance with the provision of section 285(8) of the constitution of the Federal Republic of Nigeria as amended. The said provision reproduced states as follows:-
The said provision reproduced states as follows:
“(8) The Court in all appeals from election Tribunal may adopt the practice of first giving its decision and reserving the reasons therefore to a later date”
This has become necessary in view of the fact that the judgment in this appeal, which was heard by this Court, on the 19th October 2011, would lapse at the end of 60 days i.e to say on Sunday the 23rd October, 2011 as per the Constitutional Provision (supra). The need for the Pronouncement has therefore become imperative in the circumstance.
For the determination of this appeal, the Appellant has formulated six issues which same reproduced are as follows:
1. WHETHER the Honourable Election Tribunal was right in law in assuming jurisdiction to try this petition in spite of clear statutory provisions and decided cases to the contrary? (Grounds 1 and 3 of the Appeal)
2. WHETHER the Honourable Election Tribunal was right in law in entertaining an issue which is clearly a pre-election matter. (Ground 2 of the Appeal)
3. WHETHER the judgment of the Honourable Election Tribunal is in any case not unconstitutional, null and void for lack of quorum on 15th August, 2011. (Ground 8 of the Appeal)
4. WHETHER the Honourable Election Tribunal was right in law in relying on a pleading which if clearly says has been abandoned because no evidence was led in support of it? (ground 4 of the Appeal)
5. WHETHER the cross-examination of the Petitioners by the Petitioners’ Counsel did not amount to the Appellant being denied his right to fair hearing and not a mere formality that can be waived? (grounds 5 and 7 of the Appeal)
6. Whether the judgment of the Honourable Election Tribunal is not against the weight of evidence? (Grounds 6 and 9 of the appeal).
On behalf of the 1st, 2nd and 4th – 6th Respondents, three issues were each distilled from the Appellant’s nine grounds of appeal. The said issues are all encompassed and fused into the Appellant’s six issues; I would therefore consider reproduction of those issues as mere repetition and time wasting, which I would not indulge into in view of time constraint.
On the totality of the appeal before us and taking into consideration the substance of the entire case as borne out on the record of appeal as well as the submissions made by all Counsel, I hold the firm view that there are two main issues upon which the determination of this appeal could be predicated. The issues in other words are:
(1) Whether the Honourable Tribunal had jurisdiction to entertain the petition at the time it did.
(2) Whether the 1st Respondent was at the time of the election qualified to contest into the Dukku/Nafada Federal Constituency of Gombe State held on 26th of April, 2011.
while the determination of the 1st issue is a matter of law, that of the 2nd issue boils down predominantly on facts or evidence.
On the 1st issue raised, while the Appellant submits that the issue of qualification is a pre-election matter, the Respondents however hold a contrary view.
It is pertinent to restate that the jurisdiction of a court, of course inclusive of the Tribunal, is not inferred or imagined but obviously statutory. It is elementary to state therefore that the National and State Houses of Assembly Election Tribunals are establishment of the Constitution by the provision of section 285 of the 1999 Constitution as amended. The original jurisdiction conferred thereon the Tribunals is so exclusive and specific to the exclusion of any other court. The provision of Section 285(1) among others states that the Tribunal:
“shall to the exclusion of any Court or Tribunal, have original jurisdiction to hear and determine petitions as to whether –
(a) any Person has been validly elected as a member of the National Assembly;
or
(b) any Person has been validly elected as member of the House of Assembly of a State…”
I hasten quickly to add and emphasize that the specific nature of this jurisdiction only avails to the Tribunals established under the said constitutional provision which is special and exclusive for the purpose for which it is established. It is not in other words an open ended jurisdiction available to other Tribunals which do not find their anchor under or within the purview of Section 285 of the said constitution.
The Electoral Act which is a legislation subject to the constitution stipulates that in order to validly present a petition, it must be in respect of an undue election or undue return. The complaint from such returns pre-supposes that it must arise from one or more of the grounds set out in Section 138(1)(a) – (d) of the Electoral Act. I would for ease of reference reproduce the said subsection which specifies grounds of petition:
“”138. (1) An election may be questioned on any of the following grounds, that is to say –
“(a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election;
(b) that the election was invalid by reason of corrupt practices or non compliance with the provisions of this Act;
(c) that the Respondent was not duly elected majority of lawful votes cast at the election; or
(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.” Specifically, and relevant for our purpose is subsection (a) (supra). It is also pertinent to restate that the Electoral Act was enacted in Consonance to, and for purpose of election matters. It is also apparent to state that the provision of Section 138(1) of the Act is liable for interpretation by and comes within the jurisdiction of the Election Tribunal which would not lie with the deliberations of any other external court alien to that established by Section 285(1) of the constitution. The said provision of Section 138(1) of the Electoral Act which lays down the qualifications are I hold and contrary to the contention by the Appellant relates to election proper. The submission by the learned Appellant’s counsel in that behalf I hold with all respect is grossly misconceived. In other words, the question of qualification cannot be hold as preliminary issues or matters that place before elections were held. To interpret in that vein would greatly undermine the purport and intention of section 285(1) of the Constitution as well as Section 138(1) of the Electoral Act. This certainly cannot be the intention of the legislature or the law makers. The interpretation thus would cause absurdity, and great confusion which the constitution would not aim at creating.
The issue of jurisdiction is indeed very sacrosanct and which cannot be compromised. The locus classical case in point is the decision in Madukolu v. Nkemdilim (1962) NSCC 374 and APGA v. Ohakim (2009) 4 NWLR (Pt.1130) 116. The jurisdictional powers conferred on the Tribunal is confined, limited and circumscribed by the same statutes that created it. See the case of Jang v. Dariye (2003) 15 NWLR (Pt.843) 436, Fayemi v. Oni (2011) All FWLR (Pt.554) 1 at 71, also Agagu v. Mimiko (2009) All FWLR 1122 or (2009) NWLR (Pt.1140) 341.
Also in the authority of the case of Ijiogu v. Irora (2009) 4 NWLR (Pt.132) 513 at 561 this Court had this to say:
“Qualification to contest an election is a condition precedent to participate in the election as a candidate has to be qualified as required by the relevant laws before he can contest an election at which votes would be cast for him. Once a candidate is found not to have been legally and lawfully qualified to have contested an already conducted election, the election is that, in law that candidate did not participate in or contest the said election.”
Relevant also are section 65 and 66 of the Constitution 1999 which are clear cut and unambiguous on the imperative requirement stipulating the required qualifications to contest elections of this nature. The said sections come within the qualifications for membership of National Assembly and Right of attendance. Sub-section (2) of Section 65 has this to say for instance:
“2′ A person shall be qualified for election under subsection (1) of this section if
(a) he has been educated up to at least school certificate level or its equivalent”
Section 66 (1) again on disqualification is confirmative wherein if says:
‘(1) No person shall be qualified for election to the Senate of the House of Representatives if –
……………………
(h) he has presented a forged certificate to the Independent National Electoral Commission.”
Deducing from the foregoing provisions of the law, once on election petition is based on Section 138 (1)(a) of the Act (supra) it raises the issue of qualification or disqualification under Section 65 or 66 of the Constitution. This certainly comes within the firm jurisdictional powers of the Tribunal. See the case of Argungu v. Argungu (2010) All FWLR (Pt.510) 681 at 698.
Without requisite qualification a candidate has no business to participate in an election because he is o non starter. It is the qualification that gives the candidate the ticket and locus standi. To hold otherwise is tantamount to putting something on nothing and which, without much ado, will certainly collapse as it would not stand. absence of qualification is like a house without foundation; the determination which squarely falls within the jurisdiction of the Tribunal as envisaged by Section 138(1) of the Electoral Act.
On this note, I hasten to say without hesitation that the Tribunal was in proper perspective to have overruled the objection and proceeded to assume jurisdiction as it was very competent to deal with issues raised in the Election Petition presented before it.
In the result, I therefore resolve the said issue against the Appellant.
Issue two questions the qualification of the 1st Respondent at the time of election petitioned against. In other words whether he was indeed and in fact qualified and therefore illegible to contest the election which declared him the winning candidate.
On behalf of the Petitioner, it was contended that the 1st Respondent was, at the time of the election held on the 26th April, 2011, not educated up to at least school certificate level or its equivalent. This contention was vehemently objected to by the Respondents. Both parties adduced evidence in substantiation of their positions. It is obvious from all deductions that the Respondents as Petitioners’ case was based on the fact that the 1st Respondent/Appellant was not qualified to contest election into the Dukku/Nafada Federal Constituency of Gombe State. The Appellant in this issue is seriously questioning the evaluation of the evidence by the Tribunal. It is trite law that the burden of proof in civil cases is on the balance of probability and the onus is on the petitioner who is the 1st Respondent before us to prove his case. The burden of proof is not beyond all reasonable doubt and it is not also open to the petitioner at the trial to rely on the weakness of the defence in proof of his case. Whether the petitioner however discharges the 1st burden of introducing his case and casting doubt on the Respondent which would warrant the shifting of the burden onto the Respondent to disprove, it would therefore behoves that the burden would shift from the Petitioner. The burden in other words is not static unlike in criminal cases wherein the prosecution is saddled with the burden of having to prove the accused guilty of all ingredients alleged, in other words beyond all reasonable doubts.
The concept of balance of probability necessitates on imaginary scale as it is predicated on perception. This is not dependant on the number of witnesses needed in proof of on assertion. In other words, proof on balance of probability is not of a mathematical calculations or numbers. Rather it is the credibility of the witness/witnesses and the evidence adduced which must be worthy of truth and to be believed having regard to the situational circumstance proceed before the Court of the material time which is needing to be established. It is for instance sufficient that one witness would serve as a proof. It is the quality and not a game of numbers that should count. In other words the question that should serve the deciding factor is whether the witness’s evidence is believable. The credit worthiness is paramount wherein a witness should by his evidence show that he is possessed of the fact of knowledge of that to which he is testifying to. He should testify to the truth of what he, actually and personally knows, saw, and perceived.
It is clear cut that the evidence of PW3 by name Bello Abdullahi is very relevant because he insisted that he knew one Umar Abdullahi. The evidence of PW2 one Yahaya Ogbiti on ASP testified that he carried out an investigation and which same corroborated that of PW3. Exhibit P7 a letter from NECO acknowledged that a candidate with registration No.74147460FH sat for the 2008 SSCE External (i.e. Nov/Dec) at Centre No. 016017L Government Day Secondary School Malumfashi in Katsina State. The sworn statement of PW3 relating to this candidate who sat for the 2008 SSCE was also made available to the Tribunal. Exhibit P7 also had the evidence of attestation of PW3 to the photo card of the said Umar Abdullahi, who was satisfied to be on indigene of Malumfashi Local Government of Katsina State.
The evidence of PW 2 corroborated that of PW3 as well as Exhibit P7. The Tribunal for instance qt page 320 of the record held thus and said:
“We watched PW 3 as he gave evidence. He appeared to be straight forward, resolute and unshaken by cross examination. We believe him. We also believe PW2, PW1 and PW4.”
On the part of the 1st Respondent who is the Appellant his only material evidence was RW1 one Shehu Tafida. The said witness testified that he attended Dukku West Primary School in 1977 together with the Appellant and that he and the Appellant had been childhood friends. The witness went further and said:
“I do not know the secondary school 1st Respondent attended… when we finished primary school everybody went his way. I do not know if 1st Respondent dropped out of secondary school.”
The Tribunal in its findings believed the evidence of Shehu Tafido as a witness of truth. There is also the question placed on Exhibit P9, the photocopy secondary evidence and on which no foundation was laid by the Apparent, who was herd to be in possession, of the where about of the original copy of the document”
At page 324 of the record, the Tribunal held and said:
“From our analysis of the evidence placed before us thus far it is clear that the petitioners who have in this petition asserted that the 1st Respondent was at the time of the election not educated up to school certificate level or its equivalent have adduced sufficient evidence to establish the facts(s) they allege and the burden in our view shifted to the 1st Respondent to establish whether he was at the time of the election qualified or educated up to school certificate level, … we held that RW1 was only able to establish that 1st Respondent attended Dukku West Primary School between 1977 – 1983 and that Exhibit P9 is not evidence on which we can act being an uncertified photocopy of a NECO result slip, a public document within the meaning of Section 109 (a)(ii) of the Evidence Act CAP E14 Laws of the Federation of Nigeria … That Exhibit P9 cannot therefore provide evidence that 1st Respondent is or was educated up to School Certificate level or its equivalent and neither will the certificate 1st Respondent purported obtained from the College of Advanced and Business Studies Potiskum in 1991.”
The Appellant clutchingly relied on the evidence of his bosom friend RW1 and Exhibit P9 the photocopy of NECO Result. The Tribunal did not find the evidence adduced on Exhibit P9 as reliable. RW1 did not also testify to the qualification claimed by the Appellant. The hopes placed on both evidence had certainly collapsed and did not provide any shade or shelter for the Appellant. PW3 and SW1 had proved themselves to be credible witnesses of truth as found by the Tribunal.
It is therefore within the domain or Prerogative of the trial Court/Tribunal to determine such as it requires the court having to see, listen and assess the witnesses for purpose of determining their demeanors and veracity of their evidence. This is why the trial court is known as a court of evidence which privilege is not generally within the jurisdiction of an appellate court except of course in exceptional special circumstance under section 239 of the constitution where original jurisdiction is conferred on this court in respect of questions relating to elections to the office of president and vice-President. An appellate court should therefore by cautions and wary where the issue before it questions the evaluation of evidence as it is in the case at hand.
Relevant and to provide a grounding position is the case of Ukpo v. Ngoji (2010) 1 NWLR (pt. 1174) 175 per Omokri JCA (of blessed memory) wherein at page 203 – 204 his Lordship had this to say:
“By the provisions of section 136 and 137 (1) and (3) of the Evidence Act, the burden of proof of a fact in issue lies on the Person who will fail if no evidence is given by either side regard being had to any Presumption that may arise from the pleadings where sufficient evidence is adduced by the party who asserts the burden of proving the contrary then shifts to the other person against whom judgment will be given if no further evidence is adduced. Kalgo v. Kalgo (1999) 6 NWLR (Pt.608) 639; Rotimi v. Fatonyi (1999) 6 NWLR (Pt.606) 305 and Ayogu v. Nnamani (2006) 8 NWLR (Pt.781) 160 referred to.”
From all deductions and having painstakingly reviewed and analysed the record of the case before the Tribunal, their Lordships could not have arrived at a different conclusion from that which is of hand. In other words, it is clearly established by the Petitioners that at the time of the election, the 1st Respondent, now Appellant was not educated up to school certificate level or its equivalent. The burden which was shifted to the Appellant was not discharged. The Appellant was found to be an indigene of Dukku in Dukku Local Government of Gombe State and not that of Malumfashi Local Government from where the private candidate, testified to by pw3 emanated. In other words the candidate in respect of whom PW3 gave evidence was not the Appellant, who did not as he claimed, sit the Nov/Dec 2008 examination of the Government Day Secondary School Malumfashi in Katsina State.
On this note, I find the reasoning and conclusion arrived at by the learned Tribunal Judges as unassailable and I so hold. This I hold because I have no reason to disagree or hold the contrary having regard to the meticulous reasonings and deductions arrived by the learned Tribunal thereat. The said 2nd issue in the circumstance is therefore also resolved against the Appellant.
On the totality of this appeal I find same as lacking in dire merit and therefore dismissed. I further make an order upholding the judgment by the Tribunal delivered on the 24th August, 2011. In other words, I make an order declaring as null and void the election of Umar Abdullahi, 1st Respondent at the Tribunal now Appellant before us, as member representing Dukku/Nafada Federal Constituency of Gombe State as he was not qualified to contest same. I therefore set aside that return. I also make an order on the authority of Section 140(2) of the Electoral Act 2010 as amended that the 4th – 6th Respondents are to conduct fresh election into that constituency within 90 days from today. The said Appellant Umar Abdullahi having been disqualified cannot also participate in the said fresh election. No order as to costs, but each party should bear the costs of the appeal.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I agree
PHILOMENA M. EKPE, J.C.A.: I agree
Appearances
A. O. OKEAYA INNEH (SAN) WITH A. LAWAL ESQ., K. M. NOMEH ESQ. AND GODSWILL N. IWUAJOKU For Appellant
AND
OLAJIDE AYODELE (SAN) WITH CHIEF C. UBALE FOR THE 1ST RESPONDENT.
Z. M. UMAR FOR THE 2ND RESPONDENT.
HALITA RAJE (MRS) WITH IKPI EYANG FOR THE 4TH – 6TH RESPONDENTS. For Respondent
