CORAM

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THERESA N. ORJI-ABADUA JCA

MOHAMMED BABA IDRIS JCA

HANNATU LAJA-BALOGUN JCA

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PARTIES

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1. BASIRU BELLO

2. PEOPLES DEMOCRACTIC PARTY (PDP)

APPELLANTS 

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1. NASIRU BELLO LAWAL

2. ALL PROGRESSIVES CONGRESS (APC)

3. INDEPENDENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS 

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AREA(S) OF LAW

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

 

 

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SUMMARY OF FACTS

The 1st Appellant who was 1st Respondent at trial Tribunal was declared and returned as the winner of the Zamfara State House of Assembly election. The Petitioners filed a petition dated against that outcome of the elections claiming that the 1st Respondent is a person employed in the public service of Bungundu Local Government Council of Zamfara State and has not either resigned, withdrawn or retired from such employment thirty days before the date of the election into Bungundu West State Constituency in Zamfara state being 18th March, 2023. According to the petitioners, the Appellant was not qualified to contest the election into Bungundu West State Constituency in Zamfara State held on the 18th March for the above mentioned reason.

At the conclusion of trial, the Tribunal delivered its judgment in favor of the 1st and 2nd Respondents and granted the reliefs sought in the petition. Dissatisfied with the said judgment of the Tribunal, the Appellants filed the instant appeal.

 

 

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HELD

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Appeal allowed

 

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ISSUES

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1. Whether in the circumstance of this case, the trial tribunal was right when it held that Ground ii of the Petition is in compliance with section 134(1)(a) – (c) of the Electoral Act 2022 and when it dismissed the application of the Appellant?

2. Whether in the circumstance of this case the trial tribunal was right when it held that the 1st Appellant, Basiru Bello, did not resign, withdraw or retire from employment of Bungudu Local Government 30 days before the date of the election?

3. Whether having regard to the facts of this case, the failure by the trial Tribunal to consider relevant evidence placed before it and its reliance on the evidence of PW3 to allow the case of the Petitioners do not occasion serious miscarriage of justice?

4. Whether having expunged/discountenanced Exhibits D1 – D11, E and F, the Tribunal was right when it held that the petition succeed as prayed?

 

 

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RATIONES DECIDENDI

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ELECTION – QUALIFICATIONS OF AN ASPIRANT IN AN ELECTION AND POST-ELECTION/ PETITION MATTERS

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The said Section 106(a) – (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides:

1. Subject to provisions of section 107 of this Constitution, a person shall be qualified for election as a member of House of Assembly if –

2. he is a citizen of Nigeria;

3. he has attained the age of thirty years;

4. he has been educated up to at least the school certificate level or its equivalent; and

5. he is a member of a political party and is sponsored by that party.

The above rightly explains the qualifications an aspirant, who is to participate in an election as a member of the House of Assembly must possess (this is to be dealt with in the pre-election stage). On the other hand, paragraph 4(1) of the First Schedule to the Electoral Act, 2022 provides:

“4(1) An election petition under this Act shall –

1. Specify the parties interested in the election petition

2. Specify the right of the petitioner to present the election petition;

3. State the holding of the election, the scores of the candidates and the person returned as the winner of the election; and

4. State clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the petitioner.”

The above provisions clearly deal with post-election matters wherein a party who has participated in an election can bring an election petition upon that right.

 

 

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INTERPRETATION – CONDUCT OF COURTS IN INTERPRETATION OF STATUTES

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In the case of EZEANI VS. ONYERERI (2023) 9 NWLR (PT. 1889) 315, the Apex Court held:

“Interpretation of a statute must not defeat its intent. The general rule in the interpretation of statutes is that where the words of a statute are plain, clear and unambiguous, the courts should give effect to their literal meaning so long as the interpretation would not be absurd. When a provision in a statute is clear, the court’s power at construing it is limited…” – Per M. B. Idris, JCA

 

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STATUTES – RIGHT OF PARTIES TO EXPATIATE STATUTES

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In my opinion, the retained grounds by the trial Tribunal did not add words but expatiated on the grounds provided for by Section 134(1) of the Electoral Act, 2022 just as the same case of OJUKWU VS. YAR’ADUA(SUPRA) held:

“… the legal right of a party is to expatiate on a statute; not to expand it….”  – Per M. B. Idris, JCA

 

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EVIDENCE – WHERE A PERSON GIVES EVIDENCE WITHIN HIS KNOWLEDGE BY VIRTUE OF A POSITION HE OCCUPIES

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As held in that case i.e. GUNDIRI VS. NYAKO(SUPRA), where a witness gives an account of information which is not within his personal knowledge, he will not be accredited as a competent witness. However, this does not apply in this case, as where a person gives evidence which comes to his knowledge by virtue of the position he occupies, he is a competent witness for that purpose. The PW1 gave evidence that files of the Local Government are in his custody. Therefore, he does not need to have a personal knowledge of the events of the 1st and 2nd Respondents’ resignation or refund of salaries received to be a competent witness. Just like a company, the Local Government acts through officers. See the case of INTERDRILL (NIG) LTD VS. UBA PLC (2017) 13 NWLR (PT. 1581) PG 74 – 75 AT PARAS G – C wherein the Court held:

“… officers of a company involved in transaction involving the company and some other party are competent and compellable witnesses in a court of law if and when the transaction becomes subject of litigation. This is also the case where an officer is employed by the company after the transaction was concluded, provided such an officer is fully briefed and documents relevant to the transaction are made available to him by his employee. In the instant case, PW1, the sole witness for the respondent was not in their employment when they granted the appellant overdraft facility. When he gave evidence he claimed to be the Business Officer of the respondent whose duties included managing the relationship between the customer and the bank. PW1 easily qualified as one of those who acted on behalf of the respondent company, and the fact that he was not in the employment of the respondent when the overdraft facility was granted to the appellants did not make his evidence worthless. He was a competent and compellable witness and much weight should have been attached to his testimony. Therefore, the Court of Appeal could not be faulted but rather deserve commendation for detecting the error fallen into by the trial court and thus rectifying same.”  – Per M. B. Idris, JCA

 

 

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BURDEN OF PROOF – BURDEN OF PROOF IN ELECTION PETITIONS

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It is trite that in an election petition, the burden of proof lies on the petitioner whose duty it is to adduce evidence for the purpose of tilting the scale of justice in his favour. In other words, where the petitioner alleges, and fails to satisfy the burden of proof, he will not be entitled to judgment in his favour. See the case of P.D.P. VS. INEC (2022) 18 NWLR (PT. 1863) AT P. 698, PARAS. C – D.  – Per M. B. Idris, JCA

 

 

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BURDEN OF PROOF – BURDEN OF PROOF IN AN ELECTION PETITION

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In an election petition, the burden lies upon the party that asserts to adduce credible evidence in proof of the assertion. The petitioner in an election petition, has the burden of proving the existence of the facts he alleged.  – Per M. B. Idris, JCA

 

 

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WITNESS DEPOSITION – WHETHER A SUBPOENAED WITNESSES NEEDS TO HAVE HIS WITNESS DEPOSITION FRONTLOADED

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There are varying decisions of this Court on this issue of frontloading a witness deposition for any kind of witnesses and I shall take a look at a few of them.

In the case of OMIDIRAN VS. ETTEH (2011) 2 NWLR (PT. 1232) AT PAGE 501 PARAS C –F held:

“…The situation where a subpoena has been issued presents a slightly different scenario. Firstly, by its very nature, a subpoena is issued by the court at the instance of one of the parties to command the appearance of a witness who is not involved in the matter before the court or who is an adverse party to the party calling him to produce specified documents or to testify, or both. It is therefore not envisaged that the statement of such a witness would accompany the petition. No procedure has yet been prescribed for the manner in which a subpoenaed witness should testify in election petition proceedings.

In the instant case, as observed by learned counsel for the appellant, the subpoenas, which clearly state that the witness would be required to produce documents and testify were issued and signed by the chairman of the Tribunal long after the time for presenting the petition, had lapsed. In my view, it amounts to blowing hot and cold for the Tribunal to have issued a subpoena commanding a witness to appear in court to testify and then to turn around and refuse to allow him to testify on the ground that his witness statement was not frontloaded.”

Also, in LASUN VS. AWOYEMI (2011) ALL FWLR (PT. 577) 713 (CA), the trial election tribunal, in the course of the trial and upon the application of the Appellant, issued a subpoena duces tecum et ad testificandum on the Osun state Resident Electoral Commission (Respondent to the petition) to produce electoral materials and to give oral evidence. However, the tribunal refused to swear in a representative of the Commissioner as a witness, on the ground, inter alia, that the petitioner had not, at the time of filing the petition, frontloaded the written deposition of the representative. In allowing the appeal filed against this ruling, this Court held at pages 745 – 746, per Ogunbiyi, JCA (as he then was) in his lead judgment, as follows:

“It is pertinent to restate that the party to whom the subpoena in question was issued is a respondent. It cannot therefore be within the contemplation of the provision of the Practice Direction that the respondent should sign a witness statement or deposition on behalf of the petitioner whose allegation of irregularities was against the said Practice Direction that the petitioner would frontload the statement of the respondent. By the mere fact of the subpoena having been issued, the witness is bound to be sworn in on oath to testify and be cross examined. The authority in the case of Onyemelukwe vs. L. D. Alberto (2001) FWLR (PT. 83) 2166… is relevant… The general provision of the Practice Direction on frontloading of witness’ deposition on oath only contemplates [a] willing and voluntary witness and not one who had to be compelled by an order of court to testify by way of a subpoena. It is not logical therefore that a party should prepare witness’ deposition for his adversary who is a respondent against the petition. Expecting that such witness would sign and adopt the deposition is beyond human reasoning as rightly submitted by the learned appellant’s counsel.”

Again, in the case of ISHAQ VS. SONIYI (2009) ALL FWLR (PT. 498) 347 (CA), although the PW2 was not listed in the list of witnesses, and although Exhibits K and DD tendered through him were not also listed in the list of documents attached to the petition, item 9 on the petitioner’s list of witnesses contained the entry “officials of the West African Examination Council (subpoena duces tecum).” The Court of Appeal held that this was sufficient notice that the petitioner intended to call by subpoena duces tecum officials of WAEC. Since there was adequate pleading by the petitioner disputing the WAEC certificate being paraded by the 1st Respondent, the Court of Appeal held that the evidence of the official from WAEC who was summoned by subpoena duces tecum was admissible in the interest of justice.

A communal look at all the above cases of this Court will show that one thing is in common. However, these cases are in contrast with the most recent case of this Court in the PETITION NO: CA/PEPC/03/2023 BETWEEN MR. PETER GREGORY OBI & ANOR VS. INEC & 3 ORS (UNREPORTED) where it was held:

“… whether they are willing or subpoenaed witnesses, their witness depositions must be filed along with petition before such witnesses will be competent to testify before the Tribunal or court.”

In the case of CBN VS. AMINU LAWAL ATANA (2022) 3 NWLR (PT. 1818) AT (PP. 518 – 519, PARAS. F – D), this Court held:

“The Court of Appeal is bound to follow its previous decision as well as decisions of courts of co-ordinate jurisdiction. Where the Court of Appeal is faced with its conflicting decisions, the guiding principles it must follow are as follows:

1. the court is entitled and bound to decide which of the two conflicting decisions of its own it will follow;

2. the court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot in its opinion stand with a decision of a superior court;

3. the court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.”

Where the court is faced with its conflicting decisions, it should follow the decision later in time. This is encapsulated in the maxim judicia posteriora sunt in lege fortiori, which means the later decision is stronger in law.  – Per M. B. Idris, JCA

 

 

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BURDEN OF PROOF – BURDEN OF PROOF IN AN ELECTION PETITION

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The cardinal principle of law, which requires that he who asserts must prove, applies to election petitions even though election petitions are sui generis. See the case of OJUKWU VS. YARADUA (2009) 12 NWLR (PT. 1154) P.188, PARA. G. In an election petition, the burden of proof lies on the petitioner whose duty is to adduce evidence for the purpose of tilting the scale of justice in his favour. In other words, where the petitioner alleges, and then fails to satisfy the burden of proof, he will not be entitled to judgment in his favour. See the case of P. D. P. VS. INEC (SUPRA).  – Per M. B. Idris, JCA

 

 

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EVIDENCE – THE TRIAL COURTS DUTY TO EVALUATE EVIDENCE

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Overall, the duty to evaluate evidence lies squarely on the trial court. Where the trial court has properly evaluated the evidence on record, an appellate court has no business with re-evaluating the evidence. It is only where the trial court has failed to perform its duty to evaluate the evidence or where it is improperly done that an appellate court can step in to re-evaluate the evidence. See the case of KOKO VS. KOKO (2023) 13 NWLR (PT. 1901) AT PAGE 296 PARA A – D.  – Per M. B. Idris, JCA

 

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EXHIBIT – EFFECT OF AN EXHIBIT BEING EXPUNGED

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The resultant effect of an exhibit being expunged from the record is that such an exhibit will be regarded as if it has not been tendered and admitted. Thus, it cannot be a legal evidence upon which the court can properly make a finding of fact. See KWENEV VS. STATE (2022) 13 NWLR (PT. 1847) 273. It therefore follows that the trial Tribunal and even this Court does not have Exhibits D – D11, E and F before it and thus cannot make any findings on it.

Also, after an inadmissible evidence has been expunged, the appellate court should consider if there is any remaining legal evidence to sustain the claim. See AMEYO VS. OYEWOLE (2009) NWLR (PT. 1142) P. 12 AT PARAS E – G.  – Per M. B. Idris, JCA

 

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BURDEN OF PROOF – BURDEN OF PROOF IN AN ELECTION PETITION

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It is trite law that the burden of proof in the petition filed by the 1st and 2nd Respondents against the Appellants rests squarely on the 1st and 2nd Respondents. It behoves them to prove by credible and cogent evidence their allegation of failure of the 1st Appellant to resign, withdraw, or retire from employment of Bungudu Local Government 30 days before the date of election. – Per T. N. Orji-Abadua, PJCA

 

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ELECTION – ORAL TESTIMONY DURING EXAMINATION-IN-CHIEF IN ELECTION PETITIONS

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PW3 testified without any front-loaded statement on oath, and gave oral testimony before the tribunal, a practice or procedure prohibited by paragraph 41(3) of the First Schedule to the Electoral Act, 2022 which prescribed that:

“(3) There shall be no oral examination of a witness during his evidence-in-chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the deposition.” – Per T. N. Orji-Abadua, PJCA

 

 

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EVIDENCE – THE MANNER BY WHICH THE EVIDENCE OF ANY PARTICULAR FACT ORDERED BY THE TRIBUNAL MAY BE TAKEN

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It should also be noted that even though by the provisions of paragraph 41(5) of the first Schedule, the Tribunal or Court may, at or hearing of a petition order or direct that evidence of any particular fact be given at the hearing in such manner as may be specified by the order or direction, sub-paragraph (6) of paragraph 41, specified the manner by which the evidence of any particular fact ordered or directed by the tribunal to be given at the hearing may take. Sub-paragraph 6 provides thus:

“(6) The power conferred by Subparagraph (5) of this paragraph extends in particular to ordering or directing that evidence of any particular fact be given at the trial –

(a) by statement on oath of information or belief;

(b) by the production of documents or entries in books; or

(c) in the case of a fact which is of common knowledge either generally or in a particular district by the production of a specified newspaper which contains a statement of that fact.”

By sub-paragraph (6) above, there is still need for statement on oath to be the means by which such evidence ordered or directed by the Tribunal to be given.  – Per T. N. Orji-Abadua, PJCA

 

 

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ELECTION – PRESUMPTION OF REGULARITY OF ELECTION RESULTS DECLARED BY INEC

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…it is established law as shown by the Supreme Court in Nyesom vs Peterside (2016) LPELR-40036 (SC), Per Kekere-Ehun, JSC., that the results declared by INEC enjoy a presumption of regularity. In other words, they are prima facie correct. The onus is on the petitioner to prove the contrary. See: Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1; Awolowo v. Shagari (1979) 6-9 SC 51; Akinfosile v. Ajose (1960) SCNLR 447.” – Per T. N. Orji-Abadua, PJCA

 

 

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EVIDENCE – WHEN EVIDENCE IS WRONGLY ADMITTED

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The law is quite settled that where a piece of evidence is wrongly received i.e., wrongly admitted, the evidence must be expunged or discountenanced rom the record when the judgment is being considered. The resultant effect being that such wrongly admitted evidence cannot be legal evidence upon which a Court can properly make a finding of fact. In Olayinka vs. State (2007) 9 NWLR part 1040 page 577-588 paragraphs H-A, the Supreme Court held that when evidence has been wrongly admitted, it is not legal evidence and the Court has a duty to expunge it from the record. Such evidence should be regarded as if it had not been tendered and admitted. The Court cannot rely on it reaching its ultimate decision. And any finding or decision based on such inadmissible evidence would be perverse and an appellate Court faced with such a situation has a duty to intervene, per Tabai, J.S.C referring to Agbaje vs. Adigun (1993) 1 NWLR part 261 page 272. – Per T. N. Orji-Abadua, PJCA

 

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GROUND OF PETITION – WHAT A VALID GROUND OF PETITION MUST BE PREMISED ON

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…I am of the opinion that a valid ground of petition must be premised on one or more sub-sections of section 134 of the Electoral Act 2022. See Salis V INEC and OGBORU V IBORI (supra). However, a petitioner can use his words provided the ground stays within the armbit of the said section 134. See OJUKWU V YAR’ADUA supra. – Per H. A. Laja-Balogun, JCA

 

 

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BURDEN OF PROOF – BURDEN OF PROOF IN ELECTION PETITIONS

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The law is trite that it is he who asserts that must prove. In a petition, since declaratory reliefs are sought, the burden is on the petitioner to prove his case and he cannot rely on the weakness of the Respondent’s case. See the following cases: HARUNA V MODIBBO (2004) 16 NWLR (Pt 900) 487 @556,557; JANG V DARIYE (2003) 15 NWLR (Pt 843) 436@466; PLATEAU STATE OF NIG & ANOR V A.G.F & ANOR (2006) 3 NWLR (Pt 967) pg 345 @417 D-F; UCHA & ANOR V ELECHI & ORS (2012) LPELR-7823 (SC); OLUWAFUJA & ANOR V INEC & ORS (2019) LPELR-49443 (CA); ADIGHIJE V NWAOGU (2010) 12 NWLR (Pt 1209) 419 @ 461-462; and Sections 131, 132, and 133 of  the Evidence Act, 2011.

In the case of ADELEKE V OYETOLA & ORS CA/J&R/EC/2023/VOL 1 Pg557@584 this Court per M. L. Shuaibu held thus:

‘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 a declaration, the onus is always on the person who alleges to establish his case and not rely on the weakness of the defence. The Petitioner must in such a situation satisfy the Court with cogent and compelling evidence properly pleaded that it 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…– Per H. A. Laja-Balogun, JCA

 

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Electoral Act, 2022.

3. Electoral Act 2006

4. Evidence Act 2011

 

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