Legalpedia Citation: (2023-06) Legalpedia 51986 (CA)

In the Court of Appeal

ABUJA JUDICIAL DIVISION

Fri Mar 24, 2023

Suit Number: CA/AK/EPT/GOV/01/2023

CORAM

Muhammed Lawal Shuaibu JCA

PARTIES

ADELEKE ADEMOLA JACKSON NURUDEEN

APPELLANTS

ADEGBOYEGA ISIAKA OYETOLA & ORS

RESPONDENTS

AREA(S) OF LAW

CONSTITUTIONAL LAW, ELECTION PETITION, EVIDENCE, JUDGMENT, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The appellant and the 1st respondent contested for governorship of Osun State conducted by the 3rd respondent on 16th July, 2022 under the platforms of the 2nd and 4th respondents respectively. The Appellant was declared the winner of the said election and was returned elected being the person who has the majority of lawful votes cast at the election.

Being dissatisfied with the election and return of the appellant, the 1st and 2nd respondents filed a petition at the lower tribunal alleging that the appellant was at the time of the election not qualified to contest the election, he was not duly elected by majority of the lawful votes cast at the election and that the election was invalid by reason of non-compliance with the provisions of the Electoral Act, 2022.

​In response, the appellant filed his reply to the petition and thereafter, the matter proceeded to trial. At the conclusion of the trial and upon overruling the pre-emptory challenges to the competence of the petition by the appellant, the reliefs sought by the 1st and 2nd respondents were granted.

Miffed with the above decision, appellant approached this Court appealing same.

HELD

Appeal allowed

ISSUES

Ø  Whether the majority decision of the Tribunal was validity rendered?

Ø  Whether the Tribunal rightly dismissed the objections to its jurisdiction to entertain and determine the petition?

Ø  Whether the Tribunal rightly admitted and gave effect to certified true copies of documents tendered by the petitioners?

Ø  Whether the Tribunal rightly rejected Exhibit 2R, RW4 and rightly held that forgery was proved with regards to Form EC9 and file D?

Ø  Whether having regard to the subsisting regulations/law and the totality of oral and documentary evidence placed before the Tribunal, the tribunal rightly reached its conclusions that over-voting was proved thus entitling the petitioners to the reliefs sought in the petition?

Ø  Whether the appellant proved that Exhibits R-BVR, R.BVR 1-129, 2R.RW2, RBVM, RBVM, RBVM 1 series and other documentary evidence made by the respondent to the petition and issued during the subsistence of Exhibit BVR complied with oral evidence before the tribunal disproved the petitioners’ case before the Tribunal?

Ø  Whether the Tribunal rightly gave effect to the contents of the tables presented by the petitioners whose contents were derived from evidence already placed before the Tribunal in terms of unchallenged documentary and oral evidence and rightly granted the reliefs of the petitioners?

Ø  Whether the appellants proved allegation of bias against the Tribunal?

RATIONES DECIDENDI

TRIBUNAL – WHETHER EACH MEMBER OF TRIBUNAL IS REQUIRED TO EXPRESS AND DELIVER HIS OPINION IN WRITING

The issue that calls for consideration here relates to the extent and/or the scope of the application of Section 294 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which explicitly provides as follows: –

1. Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.

2. Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion. Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of Justice may be pronounced or read by any other justice whether or not he was present at the hearing.

3. A decision of a Court consisting of more than one Justice shall be determined by the opinion of the majority of its members.

What is discernible from the above particularly, in Sub-section (2) & (3) of the Constitution is that each Justice of the Supreme Court or the Court of Appeal shall express and deliver his opinion in writing or may state in writing, that he adopts the opinion of the any other who delivers a written opinion. Furthermore, a decision of a Court comprising of more than one Judge shall be determined by the opinion of the majority of its members.

As stated earlier that the contention of the parties in this appeal is that in view of the collegial nature of the lower Tribunal, each of the members is required to express and deliver his opinion in writing. In OJO VS INEC (SUPRA), this Court was emphatic that a careful and analytical reading of Section 294 (2) & (3) of the Constitution that only in the Supreme Court and the Court of Appeal that each Justice is required to express an opinion in writing, either in support of the opinion of another Justice or in dissent to that opinion. Thus in the case of any other Court or Tribunal consisting of more than one Judge, no such requirement of separate written opinion is necessary.

It was hitherto held in SAIDU VS ABUBAKAR (SUPRA) that an election tribunal is like pre-1979 Supreme Court, wherein members are not required to write separate judgments. In effect, it is valid for a member of the Tribunal to write and authenticate the judgment of the Tribunal.

However, in NYESOM VS PETERSIDE, also following its earlier decision in SOKOTO STATE GOVT. VS KAMDEX(NIG) LTD. (SUPRA), the Supreme Court opined that though the provision of Section 294 (1) & (2) of the Constitution refers specifically to Justice of the Supreme Court and of the Court of Appeal, the principle is applicable to any Court or Tribunal that sits in a panel of two or more members. Interestingly, the two decisions above have a common feature that is, the issue before the apex Court was not on the need for individual Judges to express and deliver separate opinion in writing. The main issue in the two cases was whether a judicial officer who did not participate in Court proceedings in respect of a case has the legal right or capacity to write a judgment or opinion to determine the dispute between the parties to the case. Specifically, the apex Court has held in SOKOTO STATE GOVT. VS KAMDEX (NIG) LTD (SUPRA) that the judgment delivered by Galadima, JCA who did not sit with Panel of Justices that heard the appeal affected the competence of the Court in the proceedings concluded in the delivery of the judgment which in law is part and parcel of the proceedings in the hearing and determination of the appeal. – Per M. L. Shuaibu, JCA

TITLE OF JUDGMENT – WHEN NAME OF MEMBER 2 IS NOT INCLUDED ON THE TITLE OF JUDGMENT

It was also the contention of the appellant that since the name of member 2 was not included on the title of the judgment, such judgment is not a majority judgment. Suffice to say that, the signature of the said member 2 was on the judgment delivered by Honourable Justice Tertsea Aorga Kume and that means that she concurred with the said judgment, more so that she is by law not required to express her written opinion separately. In HADI SULE VS STATE (2017) LPELR- 47016 (SC) 33- 34 it was held inter alia that since the appeal is not about substance of the judgment but about only the non-signing or sealing of the judgment and its non-dating, equity follows the law and takes as done which ought to be done. This is what Section 168 (1) of the Evidence Act, 2011 is about when it provides that any judicial Act shown to have been in a manner substantially regular, it presumes that formal requisites for its validity were complied with. – Per M. L. Shuaibu, JCA

ELECTION PETITION – ELECTION PETITION MAY BE PREDICATED ON ANY OF THE FOLLOWING GROUNDS

The provision of Section 134 (1) of the Electoral Act, 2022 provides three grounds for questioning an election and thus election petition may be predicated on any of the following grounds: –

1. A person whose election is questioned was at the time of the election not qualified to contest the election.

1. The election was invalid by reason of corrupt practices or non-compliance with provisions of this Act, or

1. The respondent was not duly elected by majority of lawful votes cast at the election.

In YUSUF VS INEC (2021) 3 NWLR (pt. 1764) 551 @ 561, it was held inter alia that each of the grounds of the petition is separate, distinct and stands on its own. Thus, the set of facts offered to prove one of the grounds may not be employed to prove another grounds. Where for instance, a petition is predicated on the ground that a person was not elected by a majority of lawful votes cast at the election, all the evidence led relating to non-compliance with the provision of the Electoral Act goes to no issue, as they did not arise from the latter ground. – Per M. L. Shuaibu, JCA

PRELIMINARY OBJECTION – WHEN A PRELIMINARY OBJECTION OR ANY OTHER ISSUE TOUCHING ON JURISDICTION IS RAISED IN ANY PRE-ELECTION MATTER – CONDUCT OF COURTS

But before embarking on the discovery on whether the lower Tribunal has considered the appellant’s objections or not, it is also important to note that Section 285 (8) of the Constitution provides that a preliminary objection or any other interlocutory issue touching on the jurisdiction of the Tribunal or Court in any pre-election matter or on the competence of the petition itself is raised by a party, the Tribunal shall suspend its ruling and deliver it at the stage of final judgment. – Per M. L. Shuaibu, JCA

JUDGMENT – CONDUCT OF THE COURT IN EVERY RULING OR JUDGMENT

Evidently, the Tribunal in fidelity to the extant Practice Directions suspended the ruling but outrightly dismissed of the objections without considering their merits. Granted, that every Judge has his style of judgment writing but in every ruling or judgment, the Court must demonstrate a full and dispassionate consideration of the issue properly raised and heard and must reflect the result of such an exercise. – Per M. L. Shuaibu, JCA

DOCUMENT – CONDUCT OF EVERY PUBLIC OFFICER HAVING CUSTODY OF A PUBLIC DOCUMENT

By virtue of Section 104 (1) and (2) of the Evidence Act, 2011 every public officer having custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of legal fees prescribed in that respect, together with a certificate written at the foot of such document or part of it as the case may be. The certificate shall be dated and subscribed by such officer with his name and his official title and shall be sealed, whenever such officer is authorized by law to make use of a seal and such copies shall be called certified copies. In effect, any document which was not paid for and does not bear a certification written at the foot of such copy that it is a true copy, dated and subscribed by such officer with his name and official title does not qualify as a certified true copy of a public document, hence inadmissible. See TABIK INVESTMENT LTD VS G.T BANK PLC (2011) 17 NWLR (PT. 1276) 240, NWABUOKU VS ONWORDI (2006) ALL FWLR (PT. 331) 1236 and UDOM VS UMANA (2001) (supra). – Per M. L. Shuaibu, JCA

RECEIPT – MEANING OF RECEIPT – WHEN RECEIPT FOR PAYMENT IS ISSUED AFTER CERTIFICATION

A receipt is written acknowledgement that a specified article or sum of money has been received. A receipt generally is a document or a piece of paper which signifies that goods or service have been paid for. It is an evidence of payment.

For a document to be a receipt, it must be a document whereby the receipt or deposit or payment of money is acknowledged or expresses. In other words, the acknowledgement must be specific, clear and unambiguous.

​It is beyond any peradventure that payment of legal fees and evidence of same is an integral part of the certification process and that the appellant in this case is not ex facie disputing the fact of payment of the legal fees but the fuss is mainly on the dates when the payments were made. What also stands out clearly, is the fact the 3rd respondent had never denied such payment as same was marked “paid”. Thus, it is my view that what is required of the party that demands for a certification of public document is the payment of prescribed fees which was done in this case. The fact that the receipt for payment was only issued after the certification does not ipso facto, renders the said certified public documents inadmissible. – Per M. L. Shuaibu, JCA

DATE OF CERTIFICATION – WHEN RECEIPTS HAVE NO DATE OF CERTIFICATION

Learned appellant’s counsel has strenuously argued that the Tribunal should have discountenanced Exhibits SCH1, SCH2, SCH3, and BVR as done in the case of SOKOTO VS INEC (2022) 3 NWLR (PT. 1818) 577 on the ground that the receipts did not correspond with the certification dates of the Exhibits.

 

I have also examined the Supreme Court’s decision in SOKOTO VS INEC (Supra) where Exhibit PI-P14 were discountenanced, same having been found to have no date of certification. The same cannot be said of the Exhibits under consideration in this appeal. Apart from the fact that the 3rd respondent in the present case acknowledged payment for the certification, Exhibit RC1, on its face shows that, it is a receipt issued for BVR relating to Osun State Governorship Election of 16th July, 2022. Furthermore, Exhibit RC2 also discloses that it is for payment for the CTC of Electoral Forms EC8A of EC8B, EC8C, EC8D and EC8E series, and guidelines issued to the 2nd respondent. In effect, the facts of this case is not on all fours with that of SOKOTO VS INEC (Supra). I therefore agree with the respondents that the authority in that case is inapplicable. The lower Courts are severally admonished not to apply ratio of a case across board without regard to the facts of the case before them. See EMEKA VS OKADIGBO (2012) 278 @ 311. – Per M. L. Shuaibu, JCA

DECISION – MEANING OF DECISION IN RELATION TO A COURT

Section 318 of the 1999 Constitution defines decision in relation to a Court, as any determination of that Court and includes judgment, Act, Order, Correction, Sentence, or Recommendation. – Per M. L. Shuaibu, JCA

EVIDENCE – EVIDENCE GIVEN BY A WITNESS IN A JUDICIAL PROCEEDING

The provision of Section 46 (1) of the Evidence Act on the other hand, provides that evidence given by a witness in a judicial proceeding or before any person authorized by law to take it, is admissible for the purpose of proving in a subsequent judicial proceeding the truth of the facts which it states, when the witness cannot be called because he is dead, cannot be found, he is incapable of giving evidence or his attendance will cause delay or involve unreasonable expense. – Per M. L. Shuaibu, JCA

PLEA OF ESTOPPEL – FOR THE PLEA OF ESTOPPEL PER REM JUDICATAM TO APPLY

The law is also settled that for the plea of estoppel per rem judicatam to apply, the parties must be the same, the decision relied upon to support the plea must be final and the same question must be for decision, in both proceedings that is, the current and earlier proceedings. See AMINU VS HASSAN (SUPRA) and NWOSU VS UDEAJA (1990)1 NWLR (PT. 125) 188 @ 221. – Per M. L. Shuaibu, JCA

PRECEDENT – THE TIME HONOURED DOCTRINE OF PRECEDENT

By time honoured doctrine of precedent as it operates in Nigeria and Common Law countries, the decision on a given issue of law handed down by the apex Court which is the Supreme Court is not only Superior but binds subordinate Courts including all Courts exercising appellate jurisdiction. The same principle applies down the ladder.

Thus, the law is that a decision of a Court of competent jurisdiction no matter that it seems palpably null and void, unattractive or unsupportable, remains good law and uncompromisingly binding, until set aside by a superior Court of competent jurisdiction. See BABATUNDE & ANR VS OLATUNJI (2000) 2 NWLR (PT. 646) 557 and EZEOKAFOR VS EZEILO (1999) 9 NWLR (PT. 619) 369. – Per M. L. Shuaibu, JCA

JUDICIAL NOTICE – MEANING OF JUDICIAL NOTICE

In the present cases, none of the parties argued against the binding force of the Court of Appeal decision in Appeal No. CA/A/362/2019 but the divergence is on the mode of placing the decision before the lower Tribunal. The trite general principle is that no fact of which the Court must take judicial notice need to be proved. In SARAKI VS KOTOYE (1990) 4 NWLR (PT.143) 144, it was held by the Supreme Court that judicial notice is the cognizance taken by the Court itself of certain matters which are notorious or clearly established, the evidence is deemed unnecessary.

The provision of Section 122 (1) (m) of the Evidence Act, 2011 listed the course of proceeding and all rules of practice in force in any Court established by or under the Constitution as facts which Court must take judicial notice of.

​Perhaps, it is also important to state that the duty of counsel who wants the Court to use the authorities cited must provide and cite the case with clarity that is the name of the parties, the year of the case was delivered, if it is unreported, a certified true copy, where the case has been reported, the name of law-report, the year, volume and the page. See CHIDOKA & ANR VS FIRST CITY FINANCE CO. (2012) LPELR-9343 (SC).

The documents tendered by the appellant, Exhibit 2R.RW4 (judgment in CA/A/362/2019) were indeed certified and that same was reported as ADELEKE VS RAHEEM & ORS (2019) LPELR 48729 (CA). In the circumstance, the appellant’s counsel having acquitted himself of his duty to the Tribunal, it then behoves on the tribunal to not only take notice of the judgment but abide by the pronouncements contained therein. I repeat, that issue transcend beyond the admissibility of the judgment but its binding force on the Tribunal based on the principle of stare decisis. – Per M. L. Shuaibu, JCA

BVAS – MEANING OF BVAS

The key issues here are the use of BVAS as integral part of election processes and the jurisprudential effect of Section 137 of the Electoral Act, 2022. Before delving into the said issues, it is pertinent to know what is BVAS (Bimodal Voter Accreditation System). BVAS is a device used to register voters. It accredits voters before voting on election day and is used for transmitting results to INEC viewing portal after voting. Thus, it helps to scan the barcode or QR on the PVC or voter’s register before voting. Note that BVAS does not require internet connectivity during voting but it requires the internet when transmitting results to the INEC portal. – Per M. L. Shuaibu, JCA

TRANSMSSION OF RESULTS – DUAL MODE OF TRANSMISSION OF RESULTS

In the light of the foregoing, it is correct to say that there are dual mode of transmission of results under the extant Electoral Act, 2022. After the close of poll, at the level of various units where the presiding officer would enter the scores of various political parties in Form EC8A (polling unit result) in which he signs that particular result and countersigned by party agents, the result will then be scanned and uploaded to INEC result viewing portal for public viewing. It is also at the point the accreditation data that has arisen from that polling unit will also be uploaded, but the physical result, the BVAS result will also be taken to the Registration Area Collection Centre. At the collection centre, the collection officer will at this point have the benefit of seeing the original result and BVAS report as the accreditation data as transmitted and the result sheet from polling unit. – Per M. L. Shuaibu, JCA

CLAIM FOR DECLARATION – IN A CLAIM FOR DECLARATION, THE ONUS IS ALWAYS ON THE PERSON WHO ALLEGES TO ESTABLISH HIS CASE

It is settled based on a plethora of judicial decisions that where an election petition is declaratory in nature, it is incumbent on the petitioner to prove his case and not rely on the absence of evidence by the respondent. In effect, in a claim for declaration, the onus is always on the person who alleges to establish his case not to rely on the weakness of the defence. The petitioner must in such situation satisfy the Court with cogent and compelling evidence properly pleaded, that he is entitled to the declaration. Admissions by the defendant may not satisfy as proof. It is only after the petitioner has proved his case that the onus would shift to the respondent to establish that the result of the election was not so affected. See GUNDIRI VS NYAKO (2014) 1 NWLR (PT. 1391) 211, C.P.C VS INEC (2011) 13 NWLR (PT.1317) 260 and OMISORE VS AREGBESOLA (SUPRA).

The above in my view remains the law even on the face of Section 137 of the Electoral Act, 2022 that stipulate that a party alleging non-compliance with the provisions of the Electoral Act during the conduct of an election does not need to call oral evidence to prove the allegation of originals or certified true copies of documents manifestly disclose the non-compliance alleged. What the new Act seems to have done is to lighten the heavy burden on the petitioner to prove non-compliance with the Electoral Act. – Per M. L. Shuaibu, JCA

DOCUMENTS – A DOCUMENT TENDERED MUST BE SUBJECTED TO THE TEST OF VERACITY AND CREDIBILITY

In ANDREW VS INEC (2018) 9 NWLR (PT.1625) 205 @ 558, the Supreme Court inter alia held that document tendered must be subjected to the test of veracity and credibility. Where it involves mathematical calculations, how the figures were arrived at must be demonstrated in open Court.

Also, the duty of a party tendering documents is to ensure that such documents qua exhibits are linked to the relevant aspect of the case to which they relate. – Per M. L. Shuaibu, JCA

POLLING UNIT AGENTS – OBLIGATION ON PETITIONERS TO CALL POLLING UNT AGENTS WHO OPERATED BVAS MACHINES

On the allusion that Section 137 of the Electoral Act dispenses the obligation on the petitioners to call polling unit agents who operated the BVAS machines in the disputed polling units, my view is that it does not, in so long as the documents tendered are not such that manifestly disclosed the non-compliance alleged. In the instant case, the tribunal was wrong to have reached a conclusion on over-voting based on the contents of the table presented by the 1st and 2nd respondents and also on Exhibit BVR which requires demonstration in open Court. – Per M. L. Shuaibu, JCA

VOTERS’ REGISTER – TO PROVE OVER-VOTING, THE PETITIONER MUST TENDER THE VOTERS’ REGISTER AND FORMS EC8As

It is clear from my earlier analysis on BVAS that it accredits voters before voting on the election day and it is also used for transmission of results to the INEC viewing portal. However, transmission of results are not instantaneous and thus human factors may affect its proper functioning.

It is also apparent from the record that the success of the appellants’ election was truncated by the lower tribunal on ground of over-voting in the disputed polling units. In ABUBAKAR VS INEC (2020) 12 NWLR (pt. 1737) 37 @ 128, the Supreme Court had held that voters’ register is the foundation of any competent election. Without the voters’ register, it will be difficult to determine the actual number of voters in an election. And if the number of registered voters is not known, the Court cannot determine whether the numbers of votes cast at the election are more than the voters registered to vote. Thus, to prove over-voting, the petitioner must tender the voters’ register and Forms EC8As so as to work out the difference of excess votes easily.

​Lastly on this point, where a petitioner complains of non-compliance with the provisions of the Electoral Act, he has a duty to prove it polling unit by polling unit, ward by ward and the standard required is proof on the balance of probabilities and not on minimal proof. He must show figures that the adverse party was credited with as a result of the non-compliance. He must as well establish that the non-compliance was substantial and that it effected the election result. See UDOM VS UMANA (NO.1) (SUPRA).

I am however, not unmindful of the paradigm shift brought about in the arena of proof in Section 137 of the Electoral Act, 2022 but the fact remains that the initial burden of proving the allegations in the petition lies squarely on the petitioners (1st and 2nd respondents).

Although, the 1st and 2nd respondents relied on documentary evidence, Exhibit BVR, but PW1 gave oral evidence ostensibly to demonstrate over-voting from the report, Exhibit BVR. Apart from failing to tender the register of voters, they also did not tender the BVAS devices from which the data was extracted. There is therefore no denying the fact that both the voters’ register, Forms EC8As together with BVAS machine formed the foundation of all that transpired at the polling units. – Per M. L. Shuaibu, JCA

EXPERT – MEANING OF AN EXPERT

As regards the veracity of the evidence of PW1 who by an objective assessment, cannot be described as an expert. An expert is a person who through education or experience has developed skill or knowledge in a particular subject that he or she may form an opinion that will assist a fact finder. The law is that when a Court has to form an opinion of a foreign law, or of science or art, or as to identify of handwriting or finger impression, the opinions upon that point of person specially skilled in such foreign law, science or art, or impressions are relevant facts. Such persons are called experts. Thus, the evidence of such knowledgeable experts would be imperative. See OMISORE VS AREGBESOLA (SUPRA). – Per M. L. Shuaibu, JCA

EVIDENCE – EVIDENCE MADE BY A PERSON INTERESTED AT THE TIME

Again, he did not deny his membership in the APC that commissioned him to give evidence on its behalf. The provision of Section 83 (3) of the Evidence Act, 2011 is to the effect that evidence made by a person interested at the time when proceedings were pending or anticipated, involving a dispute as to any fact which the statement must tend to establish is inadmissible. – Per M. L. Shuaibu, JCA

BIAS – MEANING AND CLASSES OF BIAS

Bias is defined to mean a feeling in favour of one side of the dispute or argument resulting in the likelihood that the Court so influenced will be unable to hold an even scale in the matter before it. See KENON VS TEKAM (2001) 14 NWLR (PT. 732) 12 @ 14-42. Also, in ADEBESIN VS STATE (2014) LPELR – 22694 (SC), the Supreme Court classified bias into three, namely (1). Peculiar bias as exhibited by a member of the Tribunal or Court having a peculiar interest in the subject matter of the dispute. (2). Personal bias- existence of those relationship between a member of the Tribunal or Court and one of the parties to the dispute and (3). Official bias- an abnormal desire or indication to pursue a predetermined line of action which would prevent an impartial adjudicator of the dispute between the parties.

And it is also settled that in determining the likelihood of bias, the Court looks at the impression which would be given to other people. – Per M. L. Shuaibu, JCA

BIAS – FOR AN ALLEGATION OF JUDICIAL BIAS TO SUCCEED

In other words, is there any cogent evidence to satisfy this Court that there was in fact such bias or likelihood of bias? For an allegation of judicial bias against the person of a Judge to succeed, the accuser must establish his allegation on some extra-judicial factors or reasons but where such factors or reasons are absent, such “perceived” judicial bias is insufficient to justify disqualifying a Judge from participating in a case which is properly brought before him for judgment.

CASES CITED

STATUTES REFERRED TO

1.  Evidence Act, 2011
2. Electoral Act, 2022
3. Constitution of the Federal Republic of Nigeria, 1999 (as amended)

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