CORAM
U. MOHAMMED, JUSTICE SUPREME COURT
OBASEKI
PARTIES
1. BARR. ENNOCH ETSU KWALI 2. ALL NIGERIA PEOPLES PARTY (ANPP) APPELLANTS
1. HON. ISAH EGAH DOBI2. PEOPLES DEMOCRATIC PARTY (PDP)3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)4. RESIDENT ELECTORAL COMMISSIONER (REG) FEDERAL CAPITAL TERRITORY, ABUJA 5. ELECTORAL OFFICER, ABAJI AREA COUNCIL6. ELECTORAL OFFICER GWAGWALADA AREA COUNCIL7. ELECTORAL OFFICER KWALI AREA COUNCIL8. ELECTORAL OFFICER KUJE AREA COUNCIL9. AYAURAABAJI PRESIDING OFFICER 10. ABAJI CENTRAL PRIMARY SCHOOL PRESIDING OFFICER11. AGYANA/PANDAGI PRESIDING OFFICER 12. NAHARATI TSOHO PRESIDING OFFICER 13. NAHARATJ SABO PRESIDING OFFICER 14. UNGWAN LIMAN PRESIDING OFFICER 15. ALU PRIMARY SCHOOL PRESIDING OFFICER16. PANDAGI PRIMARY SCHOOL PRESIDJNGOFFICER 17. IJAH SARKI PRIMARY SCHOOL PRESIDING OFFICER 18. KIGBEIKOFAN SARKI PRESIDING OFFICER19. DANGARA PRIMARY SCHOOL PRESIDING OFFICER20. KWAITA SABD PRESIDING OFFICER21. PETTI PRIMARY SCHOOL PRESIDING OFFICER 22. LEDA PRIMARY SCHOOL PRESIDING OFFICER23. KOROKO PRESIDING OFFICER24. LELEYI PRIMARY SCHOOL PRESIDING OFFICER 25. YANGOJI PRIMARY SCHOOL PRESIDING OFFICER 26. ASHARA PRIMARY SCHOOL PRESIDING OFFICER27. KULO PRESIDING OFFICER28. ZAGABUTU PRIMARY SCHOOL PRESIDING OFFICER29. RUBOCHI OPE PRESIDING OFFICER30. CHIDA PRIMARY SCHOOL PRESIDING OFFICER31. KUJE CENTRAL PRIMARY SCHOOL PRESIDING OFFICER32. KOFAN SARKI SAUKA PRESIDING OFFICER33. UBOGBAGYI PRIMARY SCHOOL PRESIDING OFFICER34. CHIKUKU PRESIDING OFFICER35. RUBOCHI UNGWAN SARKI PRESIDING OFFICER36. UKYA PRIMARY SCHOOL PRESIDING OFFICER37. LANTO PRIMARY SCHOOL PRESIDING OFFICER38. TIKA PRIMARY SCHOOL PRESIDING OFFICER RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
This is an appeal against the decision of the National Assembly Election Petition Tribunal, Abuja, before which the Petitioners/Appellants commenced election petition proceedings against the Respondents challenging the return of the 1st Respondent as a member of the National Assembly House of Representatives representing the Abaji/Gwagwalada/Kwali/Kuje Federal Constituency of the Federal Capital Territory, Abuja. The Petitioners/Appellants challenged the election on the grounds that the election was riddled with misconduct and malpractices thereby making the election void. At the end of the trial, the trial Tribunal held that the Petitioners/Appellants had failed to prove their case and establish a case of non-compliance with or breach of the Electoral Act, 2006. Thus, the petition was dismissed and being displeased by the decision of the trial Tribunal, the Petitioners/Appellants filed the instant appeal.
HELD
Appeal Dismissed
ISSUES
Whether or not the refusal by the Tribunal to hear and determine the Appellants’ application dated 2nd October 2007 did not amount to an abdication of the Tribunal’s duty to do justice, which led to the breach of the Appellants’ right to fair hearing thereby rendering null and void the proceedings of the 2nd of October 2007 and the subsequent judgment delivered on the 6th of October 2007 Whether or not, on the basis of the pleadings and the evidence adduced before the Tribunal more particularly the Certified True Copies (CTC) of the Registers of Voters, the burden to produce the Originals of the Registers Voters still rested on the Appellants? Whether or not the Tribunal was right in its findings that without the evidence of the witnesses from the polls, it was impossible to prove over-voting? Whether or not, there was sufficient legally admissible evidence upon which the Tribunal supported the findings that the Appellants won the majority of lawful votes cast at the Election?
RATIONES DECIDENDI
PRELIMINARY OBJECTION – DUTY ON COURTS TO RESOLVE A PRELIMINARY OBJECTION FIRST WHEN RAISED IN AN APPEAL
“It is a settled legal principle that where a preliminary objection is raised in an appeal, it must be given priority and determined or resolved by the Court at the initial stage before going into the merits of the appeal. See the cases of: Goji Vs. Ewete (20002 15 NWLR (Pt. 7362 p. 273 ; Onyekwuluje Vs. Animashaun (19962 3 NWLR (Pt. 439) p 637; Nigeria Navy Vs. Garrick (20062 4 NWLR (Pt. 696)p. 69 at pgs. 94-95; NNPC Plc. Vs. Imakrukhe (2002)5 NWLR (Pt.760) 294.”
DETERMINING AN ELECTION PETITION – STRICT COMPLIANCE WITH THE PROCEDURE LAID DOWN IN THE ELECTORAL ACT AND PRACTICE DIRECTION WHEN DETERMINING AN ELECTION PETITION
“Time is of essence in the hearing of an election matter, this position is well established and not a novel legal proposition. It is therefore imperative that in an election petition, the procedure laid down in the Electoral Act and the Practice Direction must be strictly complied with. See the cases of: Buhari Vs. Yusuf(2003)14 NWLR (Pt, 841)p, 446 and Abubakar Vs. INEC(2004)1 NWLR (pt, 854)p. 207.”
BRIEF OF ARGUMENT – STATUS OF A BRIEF OF ARGUMENT FILED OUTSIDE THE TIME STIPULATED BY THE PRACTICE DIRECTION
“Where a brief of argument is filed outside the time stipulated by the Practice Direction, the brief is rendered liable to be discountenanced by the court.”
PRINCIPLE OF NATURAL JUSTICE – CONCEPT OF THE PRINCIPLE OF NATURAL JUSTICE
“It is an age-long settled principle of law that the fundamental requisite of due process and procedural fairness entails affording parties the opportunity to be aware that a matter is pending for or against them, make an informed choice whether to acquiesce or contest and be heard in the matter. This is the time-honored principle of natural justice embodying the ”audi alteram partem” rule which simply means, ”please hear the other side’: The essential feature of fair hearing pursuant to the provisions of Section 36 of the 1999 Constitution is that, a Court or Tribunal as the case may be must hear all sides to a case. Fair hearing demands equal treatment, equal facilities, equal opportunities and equal consideration to all parties involved in a case. See the cases of: Saleh Vs. Munguno (2003) 1 NWLR (Pt. 801) p. 221; Military Gov Imo State Vs. Nwanwa (1997) 2 NWLR(Pt. 490)p. 675; Udo-Akagha Vs. Paico Ltd (1993)4NWLR (Pt. 288) p.434; Kotoye Vs. C.B.N (19892) NWLR (Pt.98). 419Adigun Vs. A.-G, Oyo State NO.1 (1987) 1 NWLR (Pt. 53) P. 768.”
“FAIR HEARING” – MEANING OF “FAIR HEARING”
See also Okike v. L.P.D.C (2005) 15 NWLR (pt. 949) p. 471 at p. 532 where Pats-Acholonu JSC (of blessed memory) said:
“The expression “fair hearing” which has been variously interpreted in numerous judgments in the common law countries does not require quantitative analysis. Fair hearing denotes and imports the concept and practices speaking jurisprudentially, of a very fundamental tenet which behoves of the court, tribunal or any quasi-judicial body to conduct its affairs so transparently open that it accords all the parties involved in any disputation the opportunities of marshalling their case adroitly to their possible best so that a common man in the street can easily see and declare that the person affected has been freely allowed to put his case forward for consideration. You cannot complain of lack of fair hearing when you refuse to co-operate. “
PRINCIPLE OF FAIR HEARING – WHETHER A PARTY WHO HAS FAILED TO AVAIL HIMSELF OF THE OPPORTUNITY TO BE HEARD CAN TURN AROUND AND COMPLAIN OF A BREACH OF FAIR HEARING
“Therefore, fair hearing is a double edged sword, that is, it is available to all parties, the initiator and the defender of a case. However, in a situation where a party has been granted a reasonable opportunity of being heard but he deliberately refused to avail himself of such an opportunity through his own or his counsel’s, neglect or tardiness, he cannot turn round to complain of a breach of fair hearing. See the cases of; Renolds Construction Coy Ltd Vs. Okpegboro (2000) 2 NWLR (pt. 645) p. 367 and NDIC Vs. Ecobank Niq, Ltd (2003) 11NWLR (Pt. 830) p. 93.”
EXERCISE OF DISCRETION – EXERCISE OF A COURT’S DISCRETION IN GRANTING AN APPLICATION
“I wish to reiterate at this juncture that, the exercise of a Court’s or tribunal’s discretion in granting an application is one that will be exercised judiciously and judicially taking into consideration the peculiar facts of each case.”
ELECTION PETITION – NATURE OF AN ELECTION PETITION
“An election petition going by its peculiar traits is held to be ”sui generis’’ As I earlier on in this judgment stated, one factor or feature which marks out election proceedings in the sphere of adjudication is that time is of essence in the hearing of petitions, appeals arising therefrom and other related matters. This conclusion is evident from the community reading of the provisions of the Electoral Act, 2006 in its Sections 141 and 148; Paragraphs 7(2), 12(1), 16(1), 17(1), 24(1) and 51 of the First Schedule to the Act and the Practice Direction No.2 of 2007. From the provisions of the 1999 Constitution of Nigeria, election petitions are special proceedings completely distinct, divorced and separate from civil proceedings. See the cases of Obi Vs. Mbakwe (1984)NSCL Vol 15 p. 127; Abdulahi Vs. Elayo(993) 1NWLR (Pt. 268)p. 171and Ajibola Vs. Ajadi(2004)16 NWLR (Pt. 898)p. 91. In the case of: Orubu Vs.INEC (998) 5 NWLR (Pt. 94)p. 323 at p. 347.”
In the case of: Orubu v. INEC (998) 5 NWLR (Pt. 94) p. 323 at p. 347, the Supreme Court held that
”An election petition is not the same as ordinary civil proceedings, it is a special proceedings because of the peculiar nature of elections which by reasons of their importance to the well-being of a democratic society, are regarded with an aura that place them over and above the normal day to day transaction between individuals which give rise to ordinary or general claims in court. As a matter of deliberate policy to enhance urgency, election petitions are expected to be devoid of the procedural clogs that cause delay in the disposition of the substantive dispute. “
ELECTION PETITION – ELECTION PETITION MUST BE GIVEN EXPEDITIOUS ADJUDICATION.
“Therefore, it is the spirit of the laws relating to elections that as much as possible, petitions should be given expeditious adjudication to enable the parties know the result of the election in which they participated. See Section 148 of the Electoral Act, 2006 and the cases of: Ogbebor Vs. Danjuma (2003) 15 NWLR (Pt. 842) p. 403 and Balogun Vs. Odumosu (1999) 2 NWLR (Pt. 592) p. 590.”
STANDARD OF PROOF –STANDARD OF PROOF REQUIRED IN ELECTION AND CIVIL CASES
“It is an established common law principle that civil cases of which election cases are a specie are decided on the preponderance of evidence and the balance of probabilities. To put in another way, the standard of proof required in civil cases is that of preponderance of evidence only. That is, when in a matter two sets of facts are put on an imaginary scale and it tilts to one side, the side to which it tilts has the weightier materials, the facts and law elicited would then preponderate in favour of the fact that the party is putting across. This common law principle was codified in Section 135 of the Evidence Act which provides that he who asserts must prove. In civil cases basically and primarily, it is the plaintiff who asserts, the burden therefore is upon him to prove his case with cogent and credible evidence. The plaintiff therefore has the burden of proving his claim and his case is liable to be dismissed where he fails to discharge the burden. In this regard, see the cases of: Amadi Vs. Orisakwe (2005) 7NWLR (Pt. 924)p. 385; Onwuchekwa Vs. Ezeogu(2OO2)8 NWLR (pt. 799) p.333; Ayinde Vs. Abiodun (1999) 8 NWLR (pt. 614)p. 587; Mogali Vs. Odofin (1978) 4 SC P, 91; Onwuama Vs. Ezeokoli (2002) 5NWLR (pt. 760) p. 35 and Motunwase Vs. Sorungbe 098825 NWLR (Pt. 922p. 90.”
BURDEN OF PROOF IN CIVIL CASES – SHIFTING NATURE OF THE BURDEN OF PROOF IN CIVIL CASES
“Regarding the shifting nature of the burden of proof in civil cases, the law is trite that where in a case the plaintiff discharges the primary burden of proof on him, the burden shifts to the defendant to rebut the plaintiff’s case. See the case of: Dabo Vs. Abdullahi (2005)7 NWLR (Pt. 923) p. 181”
ALLEGATION OF CRIME – STANDARD OF PROOF WHEN AN ALLEGATION OF CRIME IS MADE EITHER IN CRIMINAL OR CIVIL CASES
“An allegation of the commission of a crime both in criminal and civil cases must be proved beyond reasonable doubt. Consequently, the allegation of manipulation of election materials, results and all illegal acts during elections must be proved beyond reasonable doubt. It is therefore inappropriate for a court or tribunal to infer that a particular candidate at an election was responsible for the illegal acts committed during the election in the absence of evidence which shows beyond reasonable doubt that he himself was responsible for the alleged acts.”
ADMISSIBILITY OF DOCUMENTARY EVIDENCE – RULE REGARDING ADMISSIBILITY OF DOCUMENTARY EVIDENCE
“The general rule regarding admissibility of documents is that any statement made by a person in a document and tending to establish that fact shall on the production of the original document be admissible, as evidence of that fact. See Section 91(1) of the Evidence Act. The exception to this general rule is that where the original document cannot be produced, a copy of the original document or of the material part thereof certified to be a true copy in such manner as may be specified in the order approved by a Court may be produced in lieu thereof, see Section 91(2) (b) of the Evidence Act these are referred to as primary and secondary evidence respectively.”
PROOF OF FACTS – FACTS UPON WHICH LEGAL RIGHTS ARE DEPENDENT MUST BE PROVED IN ORDER FOR IT TO SUSTAIN A JUDGMENT.
“What is more Section 135(1) of the Evidence Act provides that whoever desires any court or tribunal to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. See also the provisions of Sections 135(2), 136, 137, 138, 140 and 141 of the Evidence Act regarding the production and the legal effects of facts in evidence.”
CONDUCT OF AN ELECTION – ACCREDITATION OF VOTERS IS A PREREQUISITE FOR A VALID VOTE.
“Accreditation is a prerequisite for a valid vote at the conduct of an election. To put it in another way, before a vote can be validly returned, there must have been accreditation of the voter. See the cases of Nweke vs. Ejims and Haruna Vs. Modibbo supra.”
BURDEN OF PROOF – ON WHO LIES THE BURDEN OF PROVING A FACT IN ISSUE
What’ is more by the combined effect of the provisions of Sections 136 and 137(1)(2) 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. See the cases of: Ayogu Vs. Nnamani(2006) 8 NWLR (Pt. 981) p.160 at pgs.186 -187; Kodilinye Vs. Odu (1935) 2 WACA p. 336; Rotimi Vs, Saforiji (1999) 6 NWLR (pt. 606) p.305 and Kalgo Vs. Kalgo (1999) 6 NWLR (Pt. 608) p. 639.”
PROCESS OF ADJUDICATION – NEED TO STRICTLY ADHERE TO DUE PROCESSES IN ADJUDICATION
“The process of adjudication is not a child’s play, it is a very serious and technical business. There are due processes laid down for the conduct of cases in a court or tribunal of law. These must be adhered to strictly by all counsel and parties thereof, enforced by the courts step by step and precept by precept subject to the recognizable exceptions. It is therefore not in the place of a court to engage in imaginative inferences in the alternative of hard established evidence.”
ALLEGATION OF ELECTION MALPRACTICE – DUTY OF A PETITIONER WHEN AN ALLEGATION OF ELECTION MALPRACTICE IS MADE
“The law is trite that when an allegation of this nature is made, it is the duty of the petitioner, in the instant case, the Appellant to establish that the perpetrators actively committed the malpractices. The particulars of and actual place(s) where the alleged malpractice(s) which prevented the electorate from exercising their franchise occurred must be disclosed. See the case of: Opia V. Ibru (1992) 3 NWLR (Pt, 231) p, 658.”
GROUND FOR CHALLENGING AN ELECTION – WHETHER UNDUE INFLUENCE IS A GROUND FOR CHALLENGING AN ELECTION
“Under the Electoral Act, 2006, undue influence is not a ground of challenging a winner of an election. See the case of: Buhari Vs. Obasanjo (2005) 13 NWLR (Pt. 941) p. 148, where it was held that undue influence is not recognizable as a ground in election petition and that any person who is desirous of Prosecuting such offence would need to file a charge in the normal criminal proceedings.”
INVALIDATION OF AN ELECTION – WHETHER AN ELECTION SHALL BE LIABLE TO BE INVALIDATED BY REASON OF NON-COMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT
“By the provisions of Section 146(1) of the Electoral Act, 2006, an election shall not be liable to be invalidated by reason of non-compliance with the provisions of the Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of the Act and the non-compliance did not affect substantially the result of the election. This Section therefore vests an election Tribunal with the powers to decide from the evidence presented before it in each case whether an alleged non-compliance is substantial enough to warrant nullification of an election. See the case of: Bahari Vs. Obasanjo supra.”
EVALUATION OF EVIDENCE – WHETHER THE COURT OF APPEAL IS EMPOWERED TO EVALUATE EVIDENCE
“An appeal is said to be a continuation of the hearing process, and this Court can invoke its powers under Section 15 of the Court of Appeal Act, 2004 to generally assume jurisdiction over the whole proceedings as if the proceedings had been instituted in this Court as a court of first instance. What this means is that this Court can evaluate evidence which the trial Tribunal failed or neglected to evaluate.”
DOCUMENTARY EVIDENCE – DUTY ON A PARTY RELYING ON DOCUMENTS IN PROVING HIS CASE
“It is settled law that a party relying on documents in proving his case must relate each of such documents to the specific area of his case in respect of which the document is being tendered in support of his case, that is, there must be a link between the documents and specific areas of the petition.”
DOCUMENTARY EVIDENCE – RULE GOVERNING THE ADMISSIBLITY OF DOCUMENTARY EVIDENCE
“Documentary evidence is one of the vital methods by which a petitioner is required to substantiate his allegation in his petition. The general rule that governs the admissibility of documentary evidence is equally applicable to documents to be tendered in election petitions. See the case of: Ojukwu Vs. Obasanjo (2004) 1 EPR p. 626 at p. 673. Also in the case of: Alao Vs. Akana (2005) 11NWLR (Pt. 935) p. 160 at p. 178, the Supreme Court held that:
“It bears repetition to say that the case of the Appellant failed because the evidence led at the trial did not prove what was alleged in the Statement of Claim. It must be noted that several documents were tendered pursuant to the claim but it must be borne in mind that admitted documents useful as they could be would not be of much assistance to the Court in the absence of admissible oral evidence by persons who can explain their purport. ”
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999.|Court of Appeal Rules, 2007.|Electoral Act 2006|Evidence Act|
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