Legalpedia Citation: (2023-12) Legalpedia 99473 (CA)

In the Court of Appeal

Holden At Yola

Fri Dec 22, 2023

Suit Number: CA/ABJ/EP/SHA/NG/159/2023

CORAM

Balkisu Bello Aliyu Justice, Court of Appeal

Abba Bello Mohammed Justice, Court of Appeal

Asma’u Musa Mainoma Justice, Court of Appeal

PARTIES

1. AHMADU BELLO
2. PEOPLES DEMOCRATIC PARTY (PDP)

APPELLANTS

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. MOHAMMED GARBA
3. ALL PROGRESSIVES CONGRESS (APC)

RESPONDENTS

AREA(S) OF LAW

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

SUMMARY OF FACTS

On 18th March, 2023, the 1st Respondent (INEC) conducted elections for member representing Agwara State Constituency in the Niger State House of Assembly. At the end of the election, it was declared inconclusive, and a supplementary election was held on the 15th April, 2023. The 1st Appellant contested the elections on the platform of the 2nd Appellant while the 2nd Respondent was the candidate of the 3rd Respondent and they all contested for the said seat along with other candidates and their respective political parties.

At the end of the elections, the 1st Respondent declared the 2nd and 3rd Respondents winners of the election and returned the 2nd Respondent as elected member representing Agwara State Constituency in the Niger State House of Assembly, having scored 9,242 votes to the 1st Appellant’s 8,415 votes.

The Appellants did not agree with the declaration of the results, and they filed this petition relying claiming that the 2nd Respondent was, at the time of the election not qualified to contest the said election and was not duly elected by majority of lawful votes cast at the election. They also claimed that the election and return of the 2nd Respondent were invalid by reason of non-compliance with the provisions of the Electoral Act.

The Tribunal found in favour of the Respondents and dismissed the petition in its entirety thereby affirming the return of the 2nd Respondent as winner of the election.

The Appellants were aggrieved with the judgment of the Tribunal hence the instant appeal.

HELD

Appeal dismissed

ISSUES

1. Whether the Trial Tribunal was right when it held that exhibits C-C1 are not admissible?
2. Whether the trial Tribunal was right when it held that the Petitioners have failed to prove their case?
3. Whether the Tribunal was right when it held that the Appellants abandoned the ground of their petition that the 2nd Respondent did not score the majority of lawful votes at the election?

RATIONES DECIDENDI

EVIDENCE – THE REQUIREMENT FOR ADMISSIBILITY OF EVIDENCE

The trite principle of law on the admissibility of evidence whether documentary or otherwise is that same is pleaded to avoid surprise to the opponent. This Court in the case of APC VS. AUSTIN & ORS. (2023) LPELR-61371 (CA), per SHUAIBU, JCA at page 7-10, para. D, held that:

The foundation for admissibility of any document, whether electronically generated or not, is that same must be pleaded and relevant to the resolution of the matter in contention. It must also conform to any other prescribed pre-condition for its admissibility. – Per B. B. Aliyu, JCA

EVALUATION OF EVIDENCE – WHERE THE PRIMARY DUTY OF EVALUATION OF EVIDENCE LIE

The law is certain that evaluation of evidence remained the primary duty of the trial Tribunal and this Court can only interfere with the evaluation of the evidence where it is established that the Tribunal failed in that duty. – Per B. B. Aliyu, JCA

ELECTION PETITION – DUTY OF A PETITIONER IN AN ELECTION PETITION

An election petition being a declaratory action, the Petitioner has the heavy burden of establishing his case with cogent and credible evidence. He succeeds only on the strength of his own case and not on the weakness of the Respondent’s case. See:BUHARI v OBASANJO (2003) 17 NWLR (Pt. 850) 587: and CPC v INEC (2011) 8 NWLR (Pt. 1279) 493: APC v SHERIFF & ORS (2023) LPELR-59953(SC) at 62 – 66. paras. B – A: and OYETOLA v ADELEKE (2019) LPELR-47529(CA) at 104 – 108. – Per A. B. Mohammed, JCA

CASES CITED

STATUTES REFERRED TO

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

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